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Oral Answers to Questions
(11 years, 5 months ago)
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Jeremy Lefroy (Stafford) (Con)
1. What recent assessment she has made of the level of crime in (a) Staffordshire and (b) the UK.
The Secretary of State for the Home Department (Mrs Theresa May)
Since the election in 2010, police recorded crime in Staffordshire has fallen by 17%. In England and Wales as a whole, recorded crime is down by more than 10% under this Government, and the independent crime survey shows crime at its lowest level since records began in 1981.
Jeremy Lefroy
I welcome that news from the Home Secretary. Deliberately failing to insure vehicles is a crime that increases costs and dangers for law-abiding motorists. As part of its zero tolerance campaign, Staffordshire police force has removed 350 such vehicles from the roads in the past six weeks. What support is my right hon. Friend giving to police forces that make tackling such crime a priority?
Mrs May
I thank my hon. Friend for bringing to the House the excellent work that Staffordshire police force is doing to tackle this particular problem, which is an issue that blights many areas up and down the country. Other forces would do well to look at the example set by Staffordshire police, and recognise the importance of this crime in the eyes of the public and follow its example.
Jenny Chapman (Darlington) (Lab)
Oak Tree farm in Staffordshire was the site of an illegal waste operation, and often such operations are a front for organised crime. Will the Secretary of State commit to working with colleagues in the Department of Energy and Climate Change and the Department for Communities and Local Government? Investigations are often hampered because no one Government agency takes full responsibility for investigating what I believe are crimes.
Mrs May
The hon. Lady raises an interesting point, and the Home Department is happy to work with other Government Departments where that will genuinely help in the fight against crime. As she says, issues sometimes fall between the stalls of different Departments, and I will certainly look into the particular matter she has raised.
Gordon Henderson (Sittingbourne and Sheppey) (Con)
2. What steps her Department is taking to control immigration and ensure that net migration continues to fall.
The Minister for Immigration (Mr Mark Harper)
Net migration is down by more than a third since the election, and immigration has fallen by 100,000, bringing it to its lowest level since 2003. The Government will continue to take steps to ensure we hit our target of getting net migration down to tens of thousands by the general election.
Gordon Henderson
I welcome the consultation into tackling illegal immigration in privately rented accommodation, but does my hon. Friend join me in encouraging hotel and guest house owners to engage in that consultation process so that their views can be fully represented?
Mr Harper
I welcome that, and anyone with an interest in our proposal should respond to the consultation so that we can take their views into account. I reassure those whom my hon. Friend represents that our proposals are aimed at those renting their only or main home, so they should not be a great concern to those running guest houses or hotel accommodation.
Keith Vaz (Leicester East) (Lab)
Immigration control must be firm but also fair. Last Tuesday, the courts ruled that Jimmy Mubenga was unlawfully killed while being escorted to the airport by G4S, and two days later the Justice Secretary said that G4S and Serco had been overcharging his Department over a number of years. Given that those two companies hold contracts worth £180 million with the Home Office, will my hon. Friend initiate an audit into the quality of their immigration work as well as their charging policies, to ensure that his Department has not been overcharged?
Mr Harper
The right hon. Gentleman who chairs the Home Affairs Committee will know following the Lord Chancellor’s statement last week, that across Government the work he has called for is already under way to review all contracts that those companies hold with the Government, to check on how they are being conducted, and specifically on how they are charging the Government. That work is under way and colleagues will report to the House in due course.
Dr Julian Huppert (Cambridge) (LD)
The Minister will be aware that education is one of our greatest exports and we benefit hugely from genuine students who come to this country to study. Will he confirm that the Government will not introduce a cap on students who come here to study, and say that he would not support one?
Mr Harper
I can give my hon. Friend that assurance. The Government have been clear: we have rooted out abuse and removed the ability of hundreds of colleges to bring in international students. However, we welcome genuine students to Britain and to our excellent universities. We made it clear in the mid-term review that there is no cap, and we welcome the brightest and best, wherever they come from in the world, to come and study in the United Kingdom.
Mr Ian Davidson (Glasgow South West) (Lab/Co-op)
Will the Minister accept that the net migration figure can be manipulated by making Britain so unattractive that people wish to leave? Surely the figure that should be looked at is the one for gross immigration, and surely that cannot be controlled until we stop the free movement of people from the European Union.
Mr Harper
I make three points to the hon. Gentleman. First, as I said to my hon. Friend the Member for Sittingbourne and Sheppey (Gordon Henderson), the immigration figure—the gross number—is down by 100,000 to its lowest level since 2003. My second point concerns people in the United Kingdom who have no right to be here. I actually want them to leave, which will contribute to reducing net migration. Thirdly, on the in-flow of people from the EU, as he will see from the numbers, the EU is not where the bulk of net migration comes from; the majority of people coming to Britain come from outside the EU.
Mr James Clappison (Hertsmere) (Con)
In the light of the recent upwards revision of the migration figures between 1997 and 2010—an additional 500,000 migrants were found, meaning that overall immigration in that period was 4 million and that net migration under the last Government was 3 million, which amounted to three cities the size of Manchester—can my hon. Friend assure me that in the future we will have robust statistics and no return to the open-door policies favoured by the last Government?
Mr Harper
My hon. Friend will know that Migration Watch has written to the Office for National Statistics about that historical period, and I understand that it is engaged in a dialogue about it. I also understand from the ONS that it has revised its methodology so that its current recording of statistics is accurate, but his general point is very sensible: we had a period of uncontrolled immigration under the last Government—a mistake that this Government are not going to make.
Pete Wishart (Perth and North Perthshire) (SNP)
Does the Minister finally recognise that Scotland has its own immigration issues, and can he name just one thing that the Government have done to help us to address our distinct problems and issues?
Mr Harper
One thing is that the number of foreign students going to excellent universities in Scotland is up, as it is across the whole of the United Kingdom. The hon. Gentleman’s desire to have a border between England and Scotland and to turn England into a foreign country is not one welcomed by people either in England or in the rest of the United Kingdom, including in Scotland.
Philip Davies (Shipley) (Con)
The coalition agreement said that exit checks would be in place by 2015. Will the Minister guarantee that this commitment will be met and explain how he will deliver on it?
Mr Harper
As my hon. Friend might be aware from conversations elsewhere and questions I have answered, that is a clear coalition commitment, and through the work we have done already, including through the data we collect on our e-Borders programme, we already have quite a bit of coverage of those coming into or out of the UK. It is a much better system, actually, than exists almost anywhere else in the world. Further work needs to be done, and that work is under way, as we progress towards 2015.
Grahame M. Morris (Easington) (Lab)
3. What recent assessment she has made of the effectiveness of UK laws on guns.
The Minister for Policing and Criminal Justice (Damian Green)
Firearms control in the UK is among the toughest in the world. This shows clearly that gun crime will not be tolerated by this Government or wider society. We keep firearms laws under review to ensure that they remain appropriate, proportionate and properly implemented. This includes strengthening the guidance to police to reflect recommendations of recent reviews, including the Home Affairs Select Committee report on firearms control.
Grahame M. Morris
I note the Minister’s answer, but will he and the Home Secretary learn the lessons of history, not least the terrible tragedy of the Atherton case in my constituency, and back the Labour amendment to the Anti-social Behaviour, Crime and Policing Bill to make it clear in law to licensing officers that those with a history of domestic abuse and violence should not be able to own a gun?
Damian Green
I am happy to reassure the hon. Gentleman that we are learning the lessons of that terrible incident. As he knows, I have spoken to Bobby Turnbull several times about this matter, and I am happy to assure the hon. Gentleman that the strengthened guidance, with particular application to domestic violence, will be introduced within weeks, so that very direct lesson is being quickly learned.
Sir Edward Garnier (Harborough) (Con)
My right hon. Friend might know that a relatively small number of identifiable guns are used repeatedly in gangland drug dealing and other forms of violence. What steps is his Department taking to ensure that the police have the legal weapons available to them to crack down on these hirers and renters out of such weapons?
Damian Green
My hon. and learned Friend is right that the middlemen who provide the guns are often as guilty as those who fire them, which is why we are increasing the maximum penalty for the manufacture, sale or transfer of these guns. I hope that that will send a clear message that these types of middlemen are indeed as guilty as those who pull the trigger.
Mr David Hanson (Delyn) (Lab)
Bobby Turnbull’s mother, sister and aunt were murdered on 1 January 2012 by somebody who should not have had access to a firearm because of his history of domestic violence. Will the Minister reflect on what he has just said and accept that only legislation, not guidance, on domestic violence and firearms will be sufficient? He has the opportunity this week to support an Opposition amendment to the Anti-social Behaviour, Crime and Policing Bill. Will he do so?
Damian Green
As the right hon. Gentleman knows perfectly well, that amendment has already been debated. We want to take practical steps to ensure that all police forces react appropriately to evidence of domestic violence when considering gun licensing. That is why we will strengthen the guidance, and do so quickly.
Tessa Munt (Wells) (LD)
Ministers and the Department have been undertaking an investigation into the cost of licensing to the police. Is there any news on the results of the consultation, and are taxpayers continuing to subsidise the cost of screening and licensing for guns?
Damian Green
As the hon. Lady knows, we are still considering the current cost of licensing. I am looking at possible changes to full cost recovery, because we want to make the system more efficient and cheaper, and to deliver a service that provides greater safety to the public.
Jonathan Ashworth (Leicester South) (Lab)
4. What steps the Government are taking to tackle antisocial behaviour.
The Minister of State, Home Department (Mr Jeremy Browne)
The Government are introducing new powers to tackle antisocial behaviour that will be more flexible, quicker to deploy and more effective at protecting the public. The measures include sanctions to prevent antisocial behaviour, as well as positive requirements to address its underlying causes.
Jonathan Ashworth
I am grateful to the Minister for that answer, but is it not the case that while breaching an ASBO results in a criminal record, breaching the new injunction that the Minister is bringing in will not? Is that not a signal that the Government are not serious about tackling antisocial behaviour?
Mr Browne
No, I do not agree. I agree with the Labour Chair of the Home Affairs Committee, the right hon. Member for Leicester East (Keith Vaz), who said:
“I very much welcome the Government’s decision to overhaul the statutory framework for tackling anti-social behaviour.”
While I am at it, I also agree with the chief constable of Thames Valley police who said:
“The fact is, the experience has been that the ASBOs have been quite bureaucratic, in terms of securing them, and maybe not as effective at tackling the problem as we hoped.”
Andrew Bridgen (North West Leicestershire) (Con)
Figures from the Ministry of Justice show that of all ASBOs issued up to the end of 2011, 57% were breached at least once and 42% were breached more than once. What steps will my hon. Friend take to reform antisocial behaviour laws to better clamp down on offenders?
Mr Browne
My hon. Friend is right to draw the attention of the House to the serious failings of the ASBO system. As I said in my initial answer, the replacement measures will be more streamlined, efficient and effective, and will reduce antisocial behaviour across the country.
Mr Pat McFadden (Wolverhampton South East) (Lab)
Can the Minister tell the House how placing 12 conditions on the use of CCTV cameras by the police and local authorities will help to fight antisocial behaviour? Why are the Government tilting the balance in favour of the criminal and away from victims of crime and antisocial behaviour?
Mr Browne
Britain deploys CCTV far more widely than most comparable countries around the world. I do not think anybody looking at us dispassionately would take the view that we are under-monitored by surveillance cameras. At the same time, and as the Home Secretary said, on her watch—on this Government’s watch—we have seen crime fall to its lowest level since the independent survey began more than 30 years ago. That is a record we should all be pleased with.
Mr Philip Hollobone (Kettering) (Con)
Does the Minister recognise the role that local skate parks can play in giving youngsters something to do, and in combating antisocial behaviour? Will he congratulate all those involved in refurbishing the Ise Lodge skate park in Kettering, a much-used local facility?
Mr Browne
I am happy to join my hon. Friend in paying tribute to the people who have refurbished the skate park in Kettering. He makes an important wider point, which is that the Anti-social Behaviour, Crime and Policing Bill puts tough sanctions in place to deal with antisocial behaviour. At the same time, the measures learn from the best experiences of restorative justice and try to correct some of the underlying causes that lead to antisocial behaviour in the first place. We believe that that is an effective combination for dealing with this problem.
Gloria De Piero (Ashfield) (Lab)
The families of those who have lost loved ones through dog attacks, chief police officers, the Royal Society for the Prevention of Cruelty to Animals, Battersea Dogs Home and hon. Members from both sides of the House support the introduction of dog control notices. Tomorrow, Labour Members on the Committee considering the Anti-social Behaviour, Crime and Policing Bill will call for their introduction. Will the Government back us?
Mr Browne
As we have explained—for the benefit of those who do not serve on the Committee and have not heard this argument at length—the provisions in the Bill already deal with exactly the type of problems that the hon. Lady and others envisage would be dealt with by dog control notices. An important change is being made with regard to dogs, which is that owners will now be responsible for the behaviour of their dogs in the private realm, as well as the public. That will, I hope, address serious cases—some of which have resulted in people’s deaths—in a way that I know will be welcomed across the country.
Julie Elliott (Sunderland Central) (Lab)
5. What recent assessment she has made of the effects of budget reductions on front-line policing.
The Minister for Policing and Criminal Justice (Damian Green)
Forces are rising to the challenge of making savings while maintaining and improving service to the public. Our police reforms are working. Recorded crime is down by more than 10% under this Government, and the most recent recorded crime statistics show that every police force in England and Wales saw a fall in crime in the 12 months to December 2012.
Julie Elliott
The 4.9% cut announced in the spending review is the equivalent of losing some 10,000 new police constables, on top of the 15,000 already lost, including 712 in my region. What additional resources will be made available to support delivery of front-line policing services in the north-east in future?
Damian Green
I am happy to congratulate Northumbria police. It has lost officers, as police forces across the country have, but in the 12 months to December 2012, crime in the hon. Lady’s area fell by 12%. That shows how the effective use of police resources is the way to cut crime, provide a better service to the public and make our streets safer.
Sir Bob Russell (Colchester) (LD)
In the spirit of joined-up government, when did the policing Minister last discuss with the Ministry of Defence the cuts in the MOD police and their impact on the civilian communities next door?
Damian Green
I have constant meetings with Defence Ministers on a range of subjects. I am happy to reassure my hon. Friend that crime in the Essex police area was down 4% in the 12 months to December 2012, so the success story of crime reduction under this Government applies to his constituents as well.
Barbara Keeley (Worsley and Eccles South) (Lab)
Greater Manchester police has 825 fewer officers, including 652 fewer front-line police officers. Since the cuts started, police forces have been dealing with 14% of violent crimes against the person through community resolutions. Does the Minister agree that it is time to ensure that community resolutions are used for low-level crime and not driven just by police cuts?
Damian Green
There is absolutely no evidence that the use of community resolutions is driven by police cuts. Indeed, as the hon. Lady says, Greater Manchester police, like any large urban force, faces a number of difficult problems. As such, it deserves particular congratulations on the fact that in the 12 months to December 2012, crime in Greater Manchester fell by 13%, showing how effectively the force is doing its job of making Manchester safer.
John Howell (Henley) (Con)
6. What steps she is taking to tackle the organised grooming and sexual exploitation of children.
Glyn Davies (Montgomeryshire) (Con)
16. What steps she is taking to tackle the organised grooming and sexual exploitation of children.
The Minister for Policing and Criminal Justice (Damian Green)
This Government are absolutely committed to tackling child sexual exploitation. That is why I am leading a new national group on sexual violence against children and vulnerable people, which is taking urgent action to protect children, significantly improve support for victims and bring perpetrators to justice.
John Howell
Will the Minister join me in congratulating Thames Valley police force on continuing to bring cases under Operation Bullfinch? Will he also congratulate the girls who gave evidence, often in very difficult circumstances?
Damian Green
I am happy to echo my hon. Friend’s last point. I am pleased that justice has been served, following the long police activity that led to Operation Bullfinch, and that the perpetrators are now behind bars where they belong. There are a lot of lessons to be learnt, and I know that Thames Valley police are playing a significant role in ensuring that the police get better at dealing with this type of horrible crime.
Glyn Davies
Will my right hon. Friend give an assurance that the Home Office is working with, and sharing knowledge with, the Welsh Government and the devolved Governments in Scotland and Northern Ireland to identify and eliminate the scourge of grooming and sexual exploitation throughout the UK?
Damian Green
My hon. Friend is right that that kind of work between different police forces is important. The national police working group on child abuse and investigation has representatives from Welsh, Scottish and Northern Irish forces, while the Child Exploitation Online Protection Centre works with colleagues across the UK in combating this particularly abhorrent crime.
Ann Coffey (Stockport) (Lab)
Children going missing for repeated periods of time is one of the key indicators of sexual exploitation. It is important that data on missing children is considered alongside other data from health, schools and children’s services better to identify children at risk of sexual exploitation and to disrupt sexual grooming at an early stage. Does the Minister agree that, although it is good to see the number of rising prosecutions for child sexual exploitation and the lengthy prison sentences for offenders, prevention is the best outcome for children?
Damian Green
I agree with the hon. Lady, who I know has a long record of constructive activity in this field, that missing children are particularly vulnerable. That is why the new taskforce I am chairing has on it significant representation from the Department for Education, so that those who are looking after the children can try to reduce the numbers that go missing in the first place.
Meg Hillier (Hackney South and Shoreditch) (Lab/Co-op)
I visited Nigeria last week with the all-party parliamentary group on Nigeria. While we were there we met the federal agency dealing with trafficked children. Nigeria is the source country for the majority of trafficked people into this country. I welcome the Minister’s taskforce, but does it include people who have an understanding of Nigeria? Perhaps he will update us on his relations with that country.
Damian Green
In a previous ministerial job, I, too, visited Nigeria, and the hon. Lady is quite right to raise what is an important issue there. I am happy to assure her that part of the taskforce’s work is specifically to promote greater international co-operation so that in countries such as Nigeria—it is important to have activity going on in such countries as well as in this country—we are establishing and maintaining better links with the authorities.
Steve Baker (Wycombe) (Con)
22. During Operation Ribbon, I saw for myself how individual police officers are ferociously committed to defeating these appalling gangs, but will the Government make sure that the organisations—the police and crime commissioners, the local police forces and, indeed, the National Crime Agency—are properly incentivised to work together?
Damian Green
I agree with my hon. Friend’s point, particularly about the National Crime Agency. As he will know, CEOP becomes part of the National Crime Agency later this week. I hope that one of the various beneficial effects that will flow from that will be a much more co-ordinated and rounded approach to child sexual exploitation.
Bridget Phillipson (Houghton and Sunderland South) (Lab)
7. What estimate she has made of the number of student visitor visas that have been issued in the last year.
The Minister for Immigration (Mr Mark Harper)
In the 12 months to March 2013, 69,542 student visitor and extended student visitor visas were issued—6% more than in the year to March 2012. A recent study conducted by the Home Office showed that student visitors come mainly for short courses or university summer schools and make a valuable contribution to economic growth.
Bridget Phillipson
I am grateful to the Minister for his answer, but he will know that last year the independent chief inspector raised concerns about the risk of abuse in the student visitor visa system. What action is he going to take to address these concerns, strengthen the check and close this loophole?
Mr Harper
There is not a loophole. If the hon. Lady had listened to my answer to her question she would know that I said—and I said the same thing at questions last month—that we have conducted a research study that clearly showed that the route is not abused and that there is no sign at all in respect of the nationalities on which we clamped down on tier 4 visas of any increase in student visitor visas. A significant portion of those coming to the country as student visitors are non-visa nationals, half of whom are from the United States of America.
Mr Speaker
The Minister should not be discouraged in any way. In my experience, politicians may have to say things several thousand times before they are heeded. The Minister is getting some good practice.
Greg Mulholland (Leeds North West) (LD)
We must of course ensure that our visa system is fit for purpose, but will the Minister acknowledge the importance of non-EU students not only to the national economy but to local economies? There are 33,000 in Yorkshire and the Humber and 5,795 at Leeds university alone, and they make a huge contribution to the local area.
Mr Harper
I do acknowledge that, and, as I made clear in answer to an earlier question, we have no plans to cap the number of students who come to our excellent universities and make a valuable contribution to growth. The best of them will have an opportunity to remain here after their studies if they find graduate-level jobs that pay decent salaries, and they are very welcome to do so.
Chris Bryant (Rhondda) (Lab)
I warmly congratulate the Minister on slapping down the swivel-eyed loons in his own party who are calling for a ban on non-EU students, but does he not understand that his own policy is effectively introducing a cap? That is why the Prime Minister had to fly to India to beg people to start coming back to study in this country. When will the Government stop undermining British universities and colleges which are trying to compete around the world for this important market?
Mr Harper
That is because a significant number of people who have come to this country in the past purporting to be students have not actually been students. We have rooted out a large number of bogus colleges that were abusing the immigration system, and I make no apology for our having done so.
Richard Graham (Gloucester) (Con)
8. What assessment she has made of the potential effects of introducing a bond requirement for visiting nationals from countries deemed to be high-risk.
The Secretary of State for the Home Department (Mrs Theresa May)
I am planning to launch a small-scale pilot scheme later this year to test the impact of requiring financial bonds, in limited circumstances, from a minority of visitors from selected nationalities who present a high risk of overstaying. The details are still being finalised, and I will make an announcement in due course.
Richard Graham
Any requirement for United Kingdom citizens to post bonds for visiting relatives from countries such as India risks being seen as yet another bureaucratic obstacle to cross-border family visits. Does my right hon. Friend agree that it is vital for UK citizens to be reassured about both the goals and the benefits of any such policy in advance of its implementation?
Mrs May
My hon. Friend is right: we need to explain to people why we are proposing a pilot to establish whether we should introduce the system more widely. As I have said, we are still finalising the details, and we are currently looking into the operation of bond schemes in other countries. We want to set a level that gives people an incentive to return home rather than overstaying, but is not disproportionate. We are considering all the possible implications of introducing such a scheme.
Mr Barry Sheerman (Huddersfield) (Lab/Co-op)
Will the Home Secretary acknowledge that some people feel very resentful about the manner in which she has introduced this scheme? They do not understand the logic. They do not oppose the bond system, but they object to the way in which some countries have been chosen rather than others. Will the Home Secretary make clear what the criteria are, and how the scheme will be expanded?
Mrs May
We have not introduced the scheme yet. I shall make an announcement in due course about what it will cover and how it will operate, but the aim is to concentrate on places that we believe present a significant risk of overstaying. As I said to my hon. Friend the Member for Gloucester (Richard Graham), it is important for the bond—where we do introduce it—to be set at a level that is high enough to constitute a disincentive, but is not disproportionate.
Fiona Bruce (Congleton) (Con)
9. What steps her Department is taking to reduce the use of legal highs.
The Minister of State, Home Department (Mr Jeremy Browne)
New psychoactive substances can present a significant risk to public health, and people should not assume that they are either legal or safe to consume. We are forensically monitoring the emergence of new drugs in the United Kingdom, and have banned many substances that have been proved to be harmful.
Fiona Bruce
I thank the Minister for his reply, and for the recent banning of khat, but what can be done about other legal highs which are being sold to young people in Cheshire? The police tell me that the moment the content of one packet is banned, a very similar substance, or the same one, is resold in a different wrapper.
Mr Browne
I pay tribute to my hon. Friend for the interest that she takes in this important issue in her constituency. It is important for everyone to understand that it is not the name or the packaging of the product that is banned, but the group of chemical compounds that gives the drug its characteristics. Changing the packaging will not change the legal status of the drug, and law enforcement officers in my hon. Friend’s constituency and elsewhere should proceed on that basis.
Paul Flynn (Newport West) (Lab)
Banning the designer drug mephedrone resulted in a 300% increase in its use. Banning khat is likely to have the same effect. Has the Minister examined the report of the all-party group on drug policy reform that suggested the New Zealand proposal, which is intelligent and practical and is likely to lead to a reduction in use?
Mr Browne
I spent over an hour last week speaking to the New Zealand Health Minister about precisely this subject. It is a very interesting area of policy development and we will study carefully what is happening in New Zealand and the policy there. I should offer a word of caution, however, to the hon. Gentleman, who has a long record of campaigning on the issue. Over recent years, we have seen quite big falls in the use of some of the most serious illegal drugs—heroin and crack cocaine—so the illegal status of those drugs does not appear to have led to the rise in use, as he claims would be the case.
Diana Johnson (Kingston upon Hull North) (Lab)
Maryon Stewart, the founder of the Angelus Foundation, tragically lost her daughter Hester because of legal highs. She is calling for additional protection for young people through amendments to the Intoxicating Substances (Supply) Act 1985, as set out in a new clause tabled by Labour to the Anti-social Behaviour, Crime and Policing Bill currently in Committee. Will the Minister confirm that the Government will support the strengthening of legal protection for our young people from legal highs when that is voted on in Committee tomorrow, and if not, why not?
Mr Browne
I am sorry for everybody who is feeling that, in effect, everyone is invited to the Committee, although I suppose everyone is able to attend. It is a reasonable new clause. At present the way we proceed in this country is that there is an Advisory Council on the Misuse of Drugs—there is a scientific expert body of opinion that informs our drugs policy—but I readily acknowledge that the threat posed to public health by legal highs is a fast-evolving one, and that is why I have been talking to people such as the New Zealand Health Minister about how we can best respond to those threats.
Stephen Phillips (Sleaford and North Hykeham) (Con)
10. What steps the UK Border Agency is taking to deter health tourism to the UK.
George Freeman (Mid Norfolk) (Con)
11. What steps she is taking to tackle abuse of UK public services by illegal immigrants.
The Minister for Immigration (Mr Mark Harper)
On 3 July I launched a public consultation on proposals to strengthen arrangements for regulating migrant access to the NHS in the forthcoming immigration Bill. We are working across Government to build immigration policy into our benefits, health and housing systems and other services.
Stephen Phillips
I am grateful to my hon. Friend for that answer, and I welcome the consultation that has been announced. Can he confirm that bringing immigration enforcement back into the Home Office will deter all forms of abuse of our immigration system, including health tourism?
Mr Harper
I can give my hon. and learned Friend that assurance. Part of the reason for the Home Secretary’s decision is to have two very clear cultures within what was the UK Border Agency, so we have both high-quality, fast decisions for those applying for leave to enter the UK and stay here and a very good enforcement function with a clear law enforcement culture. That is what we are building and will continue to build.
George Freeman
First, may I congratulate the Home Secretary on the excellent news of Abu Qatada’s deportation? Does she agree that nothing symbolises the broken covenant of citizenship or fuels political disengagement more than the inability of Government to ensure that public services such as welfare are there for citizens who pay for them, rather than illegal immigrants who do not?
Mr Harper
I agree, and that is part of what we are trying to achieve in our proposals on the health consultation, on landlords and on the consultation we published last week on cracking down further on illegal working. We want Britain to be a welcome place for those who come here to contribute, but we want to deter those who do not, and make sure those who are here without any legal status are removed or leave the country.
Kevin Brennan (Cardiff West) (Lab)
In introducing measures to protect public services, will the Minister take care not to bring about unintended consequences? One of my constituents, a UK citizen, has been studying in the US and cannot bring his wife into the country from the US because while he was studying she was supporting him. He was therefore not earning the threshold income that is now required to come to the country, despite the fact that he has a contract here with money well above the threshold. Will the Minister look into that issue?
Mr Harper
I clearly do not know all the details of the specific case the hon. Gentleman raises, but if he writes to me about it I will look into it. The general principle of our family migration reforms, however, was to make sure those who wanted to bring family members to Britain were earning above a certain level of income so they supported their family, rather than expecting the taxpayer to do so, and that general principle is a very well founded one.
Sheila Gilmore (Edinburgh East) (Lab)
The Minister said that he was already cracking down on businesses that were employing illegal immigrants. Why then has the number of businesses that have been fined decreased in the past two years?
Mr Harper
That is a question I answered at the previous oral questions and I was frank with the Member who asked it—I said it is an area where we need to do better. I think the hon. Lady will find when we publish our performance statistics for this financial year—since the creation of our immigration enforcement organisation —that the numbers are going in a much more positive direction.
Mr Speaker
We are short of time but let us have a brief snippet from Christchurch.
Mr Christopher Chope (Christchurch) (Con)
Why does my hon. Friend not make it a criminal offence to be an illegal immigrant?
Mr Harper
It is, of course, the case that people in the United Kingdom without leave are breaking our laws, but our primary objective for those here without leave is to remove them from the country. It would be self-defeating to prosecute all of them and lock them up in prison, as we would thus be keeping them here for longer and making sure the taxpayer paid a higher cost.
Fiona Mactaggart (Slough) (Lab)
12. What steps she is taking to make Britain more hostile to traffickers engaged in modern day slavery; and if she will make a statement.
The Secretary of State for the Home Department (Mrs Theresa May)
The Government have a strong record in tackling modern slavery. We work closely with partners in priority source countries to stop people from being exploited, and to disrupt the organised criminals engaged in these appalling crimes. Our effective legislation and strong enforcement, in-country and at the border, will be further strengthened through the establishment of the National Crime Agency later this year.
Fiona Mactaggart
The Government’s human trafficking strategy, published in 2011, pointed out that offenders
“perceive trafficking as a ‘low risk’ crime because of the relatively low risk of being caught”.
Since then, the risk of being caught, successfully prosecuted and convicted has reduced. What is the Home Secretary doing about it?
Mrs May
Of course, we disrupt groups involved in human trafficking not only by prosecuting people specifically in relation to human trafficking— sometimes, we use other prosecutions to do that. I recognise the concern in the House about human trafficking, and the excellent work done by my hon. Friend the Member for Wellingborough (Mr Bone) in the all-party group on human trafficking has ensured that we keep the issue at the forefront of our consideration. We do make every effort to ensure that we can prosecute people, be it specifically in relation to human trafficking or in other ways that can disrupt groups involved in human trafficking.
Mr David Burrowes (Enfield, Southgate) (Con)
What is the Home Secretary doing to ensure that the hostility towards traffickers is not unfairly transferred to the victims of trafficking and that steps we are taking across government, particularly with the Ministry of Justice, will ensure that those victims of trafficking are not prosecuted?
Mrs May
I thank my hon. Friend for raising an issue of concern. If people have been forced into criminal activity as a result of their trafficking experience, consideration is given to discontinuing the prosecution. However, we often need to make sure that victims make their trafficking situation known, and the Crown Prosecution Service has issued comprehensive guidance on the steps that should be taken to make relevant inquiries.
John Robertson (Glasgow North West) (Lab)
13. Whether the Government plan to bring forward legislative proposals on communications data.
The Parliamentary Under-Secretary of State for the Home Department (James Brokenshire)
The Government remain committed to ensuring that the police and intelligence agencies have the powers they need to catch paedophiles, terrorists and those involved in organised crime. Her Majesty’s Gracious Speech in May stated that we would
“bring forward proposals to enable the protection of the public and the investigation of crime in cyberspace.”
We will do so in due course, and this may involve legislation.
John Robertson
I thank the Minister for his answer. However, it is well known in political circles that the Home Secretary and the Deputy Prime Minister do not exactly see eye to eye on communications data. Could we therefore have a Bill where we can put forward proposals that we can debate? Could we ensure that we put a communications data Bill before Parliament in the way that we expect, and not have a fight between the two coalition parties?
James Brokenshire
There is understanding across government on the challenges and issues involved in protecting the police’s ability to fight crime and on the fact that a gap is emerging in this whole issue of communications data. It is important that we strike an effective balance between keeping the public safe and protecting civil liberties. That is why we are taking this issue seriously and considering it carefully—I have to say to the hon. Gentleman that the previous Labour Government did not do that. We will make proposals in due course to get this right.
Dr Julian Lewis (New Forest East) (Con)
Most people on both sides of the House, at least in the major parties, recognise the need for communications data to be preserved so that terrorist needles can be found in a communications haystack. Will the Minister confirm that we should be reassured by the fact that the people who preserve the communications haystack for a limited period are not the Government but the suppliers from the communications industry themselves?
James Brokenshire
My hon. Friend makes an important point. It is clear that, in about 95% of serious organised crime cases, and in virtually every terrorism investigation, the use of communications data has been extremely important. The structure that has been established is that communications providers themselves retain the information, and safeguards are in place for the requests that are made. It is precisely that structure that we are examining carefully to see how it can be strengthened to reflect changes in technology.
Richard Ottaway (Croydon South) (Con)
14. How much has been received under the Proceeds of Crime Act 2002 from those convicted of human trafficking in the last three years; how much has been paid out to victims of trafficking in compensation; and if she will make a statement.
The Minister for Immigration (Mr Mark Harper)
The Government are committed to fighting human trafficking, as my right hon. Friend the Home Secretary set out in an earlier answer. Over £2 million has been recovered from traffickers in the past three years. Victims can apply for criminal injuries compensation and the Government pay £3 million a year for support services for victims through our contract with the Salvation Army. The figures on compensation paid to trafficking victims are not collected centrally.
Richard Ottaway
As victims are usually without support of any kind once they have left Government-funded shelters, and the avenues for claiming compensation are extremely limited, would it not make sense to take the funds confiscated from traffickers and put them into a fund for the benefit of victims of abuse?
Mr Harper
I thank my hon. Friend for his question. I would say a couple of things. First, the Government think that the priority should be making it easier for victims to secure compensation from confiscated assets, and we are working with the Ministry of Justice and the Crown Prosecution Service to achieve that. Secondly, victims of trafficking who leave Government-funded support through our contract are helped appropriately, either to return to their home country to a safe environment where they will not be retrafficked or, if they claim asylum through the asylum system or if their immigration status allows, to remain in the United Kingdom.
Mr Geoffrey Robinson (Coventry North West) (Lab)
Is not the point what was put to the Minister by the hon. Member for Croydon South (Richard Ottaway)? An amount is collected, and we have no indication or record as to how much of that is paid to victims. Until we know that we do not know how efficient the system is, and the Minister needs to know.
Mr Harper
The point I made is that information on awards made by judges in compensation orders and so on is not collected by the Government. However, we spend £3 million on our Salvation Army contract, which supports victims of trafficking to give them a period of reflection after they have been saved from traffickers. That is a valuable process that we continue to support.
Mr Dominic Raab (Esher and Walton) (Con)
T1. If she will make a statement on her departmental responsibilities.
The Secretary of State for the Home Department (Mrs Theresa May)
Last Friday, we witnessed an attempted act of terror designed to divide our community. The motivations behind the explosion outside a mosque in Tipton as people gathered for Friday afternoon prayers are not yet known, but the intention was clear, and the potential for injury and loss of life was obvious. West Midlands police are investigating the incident, and are treating it as an act of terrorism. I do not wish to say anything further that may prejudice their investigation, but as I have made clear previously, this country will not be divided by terrorism. We stand united as a Government, as a Parliament, and as a nation in our opposition to these cowardly acts.
Mrs May
My hon. Friend raises an interesting matter, and our response to this atrocious crime constantly evolves as the threats change. That includes understanding where the organised crime groups are operating and where vulnerable people are being exploited. UK law enforcement agencies are working closely with their counterparts in priority source countries, through joint investigation teams, supporting prosecutions in other jurisdictions, and providing training to judges, and I am happy to tell him that in each of the countries that he has specifically mentioned there has been cross-border work with law enforcement agencies and others.
Yvette Cooper (Normanton, Pontefract and Castleford) (Lab)
May I join the Home Secretary in condemning the attack near the mosque in Tipton? It is vital that we do not let extremists divide us with their brutal and appalling acts.
Does the Home Secretary believe that it is acceptable that in many police force areas people who ring 999 in a serious emergency now have to wait over 10% longer for the police to arrive?
Mrs May
What I am pleased to see is the way in which police forces up and down the country are maintaining their response capabilities and enhancing neighbourhood police teams and their ability to respond in a variety of ways to events that take place. It is clear that the proportion of police officers in front-line roles is increasing.
Yvette Cooper
Except that it clearly is not. More than 7,000 police officers have gone from first response, which includes 999, neighbourhood police and traffic cops. Now we are seeing evidence of increasing delays in 2012 compared to the previous year—a 10% increase in West Mercia, an 18% increase in Wiltshire, and in Devon and Cornwall a 25% increase in waits for the police to arrive. What does the Home Secretary have to say to victims, whether of knife crime, domestic violence or burglary, who have to wait longer as a result of her decisions? She promised that the front line would not be hit. Will she now withdraw that promise and accept that the front line is being hit and the police service is being hollowed out as a result?
Mrs May
The right hon. Lady is very well aware that Her Majesty’s inspectorate of constabulary has made it clear that the front line in policing is being protected. I note that no Member on the Opposition Benches, be it the shadow Home Secretary or any other hon. Member, welcomes the 10% fall in crime that we have seen since the general election.
Simon Hart (Carmarthen West and South Pembrokeshire) (Con)
T2. Will the Home Secretary update the House on the role of police and crime commissioners in her proposals for the handling of police complaints?
The Minister for Policing and Criminal Justice (Damian Green)
I am aware that many PCCs have innovative ideas on how to handle low-level complaints, in particular, against the police, and I see this as a positive way for them to engage with their local community. I am giving careful consideration to the role that PCCs can play in the new arrangements because I think they could play a valuable role in improving the area of police complaints.
Sarah Champion (Rotherham) (Lab)
T3. Multi-agency safeguarding hubs—MASHs—are acknowledged as a key approach to tackling child sexual exploitation. Can the Minister please state how many MASHs have been established across the country? Will an evaluation be done on their effectiveness?
Damian Green
MASHs are being established literally by the week so I cannot give the hon. Lady an exact figure, but I completely agree that the early successes in some areas of the multi-agency safeguarding hubs suggest that that is an extremely important way of improving our response to child sexual exploitation. I will be visiting one over the next few days and intend to see for myself exactly how they can be most effective.
James Morris (Halesowen and Rowley Regis) (Con)
T5. Too many teenagers in Britain are still the victim of knife crime, which can destroy individual lives and leave families in grief. What steps is the Home Secretary taking across Government to improve education about the folly of teenagers carrying knives?
The Minister of State, Home Department (Mr Jeremy Browne)
My hon. Friend is right to draw the attention of the House to this particularly dangerous form of criminal activity and its occasional prevalence among young people in particular. We are working with police forces across the country and we have put in place a programme of action specifically aimed at gang violence to try to reduce the incidence of knife crime. I am pleased that violent crime as a whole is falling across the country.
Hugh Bayley (York Central) (Lab)
T4. Last year, community resolutions were used in more than 33,000 cases of violent crime nationally. In north Yorkshire, they were used for more than 500 violent offences, and more than 250 cases of serious violence involving injury. They were never used for such cases when Labour was in power. Is it any wonder that the public think the Government are going soft on violent crime?
Damian Green
There is not the slightest shred of evidence for that final, rather wild assertion by the hon. Gentleman, but I will happily agree with him that the use of a community resolution should be for those crimes where it is appropriate. If it is being used inappropriately, we will certainly look very hard at that, but his remarks about violent crime are well out of order.
Andrea Leadsom (South Northamptonshire) (Con)
T8. I am delighted with my right hon. Friend’s decision to use the block opt-out for police and criminal justice measures, but bearing in mind her intention to opt back into the European arrest warrant, will she reassure the House that she will take steps to ensure that British people can be extradited only if there is enough evidence to charge them?
Mrs May
My hon. Friend raises an important point that I know has been a concern to many hon. Members. The amendments that I have tabled to the Anti-social Behaviour, Crime and Policing Bill, which, as we heard earlier, is in Committee, will address this very point by saying that judges should discharge somebody if a European arrest warrant is issued at a point where the requesting country has not already decided to charge and try that individual.
Kate Green (Stretford and Urmston) (Lab)
T6. What changes will the Home Office make to the family migration rules in the light of the recent High Court finding that the income threshold is onerous and unjustified?
The Minister for Immigration (Mr Mark Harper)
That is not quite what the judgment said. We are considering the judgment very carefully. The judge made it quite clear that the Home Office was perfectly entitled to have an income threshold that applied nationally. The judge said that in certain circumstances he had some concerns. Applications where that is the only issue on which the case would have been rejected are being held and we will make an announcement in due course.
Mr John Leech (Manchester, Withington) (LD)
Does the Minister accept that, unless safeguards are put in place for landlords taking reasonable steps to verify immigration status, there is a real danger of discrimination against foreign nationals from landlords choosing to avoid the risk by simply not renting properties to them?
Mr Harper
The hon. Gentleman raises a good question, which we thought about carefully. To reassure him, first, landlords will have to check the documents of everyone to whom they want to rent property—there are similar checks with employers—so they will have to confirm that someone is a British citizen or has leave to be in the country. Secondly, they are bound by the provisions of the Equality Act 2010 not to discriminate against somebody on the grounds of their race or nationality.
Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)
T9. What consideration are Ministers giving to additional resourcing for South Wales police in relation to the pressures on Cardiff as a capital city and the apparent discrepancy of upwards of £1 million with other capital cities across the UK?
Damian Green
I have heard these representations from various representative areas in Cardiff before, and as the hon. Gentleman will know, successive Governments have not thought that a particular grant should be made. I hope that he will join me in congratulating his police force in south Wales on the 5% fall in crime in the 12 months to December 2012.
Richard Fuller (Bedford) (Con)
May I commend again the Home Secretary’s announcement of a consultation on stop-and-search? Will she advise the House what steps she is taking to increase participation in that consultation, and whether she has drawn any early thoughts from the review by HMIC into stop-and-search as provided by police authorities throughout the country?
Mrs May
I am indeed taking steps to encourage as many communities as possible to respond to the consultation on stop-and-search, and will be writing to a number of faith groups around the country in particular to encourage them to respond to that consultation. The figures that we saw in the HMIC report on stop and search show why it is so important that we hold this consultation. This is a valuable tool for the police, but it must be used properly.
Anas Sarwar (Glasgow Central) (Lab)
If a US citizen had been held in Britain without charge, it would quite rightly not be accepted or tolerated. Shaker Aamer is the last British citizen at Guantanamo Bay. He has been there for 11 years without charge and has faced more than four months on hunger strike. All of us supported the Home Secretary’s determination to deport Abu Qatada from the UK. Will she demonstrate that same determination and energy to make sure that we see the release of Shaker Aamer so that he can return to his family in Britain?
The Parliamentary Under-Secretary of State for the Home Department (James Brokenshire)
The UK is committed to using its best endeavours to secure Mr Aamer’s release and return to the UK. The hon. Gentleman may be aware that the Prime Minister spoke to President Obama at the G8 in June and has followed that up with a subsequent letter. We have long held that indefinite detention without review or fair trial is unacceptable, and we welcome President Obama’s continuing commitment to closing the detention facility at Guantanamo Bay.
Mr Robert Buckland (South Swindon) (Con)
Victims of serious crime will be reassured that the Government are minded to opt back into the European arrest warrant. Does my right hon. Friend agree that there is much support across the EU for adopting the sort of proportionality tests that the Government are minded to introduce in amendments to legislation?
Mrs May
My hon. Friend is right; a number of other member states have expressed concern about proportionality, and indeed some already operate, in various forms, a proportionality test. I think that the Government’s decision to table amendments in order to introduce a proportionality test in the UK will ensure that we do not see the European arrest warrant being used for the minor and trivial crimes that have led to much concern about its operation.
Mr Adrian Bailey (West Bromwich West) (Lab/Co-op)
I welcome the Home Secretary’s earlier remarks about the appalling explosion outside a mosque in my constituency. Notwithstanding the calm and measured response from all faiths in the local community, there is a fear that it was part of a systematic process of attacking mosques in this country. What extra steps is she taking to ensure that such attacks are prevented in other places?
Mrs May
The hon. Gentleman raises an important point. Indeed, over the weekend, I discussed the incident in Tipton and the incident that took place in Walsall a few weeks ago with Chief Constable Chris Sims of West Midlands police. I know that he is ensuring that there are further patrols and a further police presence to try to give the local community support and confidence. The Government are looking at all forms of extremism, and we regularly look at whether there is more we can do to ensure that we stop extremism in whatever form it takes.
Jane Ellison (Battersea) (Con)
Last week I spoke at an excellent conference on female genital mutilation organised by Wandsworth council’s violence against women and girls unit. I took along handfuls of the UK statement against FGM, sometimes known as the health passport. It was warmly welcomed, and indeed gathered up enthusiastically, by community workers attending the conference. I urge the Home Office to do everything possible to get this excellent document into the right hands over the coming days and weeks.
Mrs May
My hon. Friend makes an important point. She has campaigned long and hard on this issue, and very effectively, for which she deserves our support and thanks. It is right that the statement, the so-called FGM passport, is being welcomed by those who see it. I urge all Members of the House, if they represent communities that they feel would benefit from seeing the statement and distributing it, to get in touch with the Home Office, using the number on the website, so that we can ensure that they have copies to distribute to their communities.
Mr Bob Ainsworth (Coventry North East) (Lab)
What assessment has the Home Secretary made of the police’s capacity to investigate business crime associated with football? There is growing concern about money laundering, fraud and tax evasion. I am particularly concerned, of course, with what has gone on recently at Coventry City football club.
Mrs May
I am not aware of the specific issue the right hon. Gentleman raises in relation to a particular football club, but the whole question of financial crime, which I believe we have not given sufficient attention to across the board in this country, will be given a much clearer focus after the creation of the economic crime command in the National Crime Agency. The command will be able to look at various sorts of financial crime. He mentioned money laundering, which is an area on which we are already putting an extra focus, because of the support it gives to organised crime groups.
Mr Speaker
Order. Extreme brevity will allow us to accommodate two more questions.
Mr David Ruffley (Bury St Edmunds) (Con)
Thank you, Mr Speaker. The Home Secretary is listening to those of us who are worried that some British citizens are being extradited under the European arrest warrant on flimsy grounds. Will she indicate when she will bring forward amendments to the Extradition Act 2003 to deliver greater protections for British citizens?
Mrs May
I am grateful to my hon. Friend. We are introducing those amendments to the Extradition Act and others through the Anti-social Behaviour, Crime and Policing Bill, and I understand from the Minister of State, my hon. Friend the hon. Member for Taunton Deane (Mr Browne), that they will be considered in Committee tomorrow. It is important to ensure that we can add extra safeguards for British citizens who are being extradited under the European arrest warrant.
Paul Goggins (Wythenshawe and Sale East) (Lab)
I am sure that the Home Secretary will agree that dealing with historical sexual abuse requires effective support for victims and witnesses. A constituent of mine has recently been identified as a potential witness in a serious case going back many years, which has caused him great distress, and it does not help that the investigating police force is located some 200 miles away from where he now lives. Will she look at what effective liaison and support could be provided by the local police in such cases?
Damian Green
The right hon. Gentleman makes a perfectly valid point. I hope that he will welcome the measures that we have already taken to protect witnesses, particularly in these types of cases—for instance, we are piloting video evidence so that they can give evidence before the court case and not in courtroom surroundings. We are looking at the possibility of stopping multiple cross-examination in court, particularly of vulnerable witnesses. I shall certainly keep the right hon. Gentleman’s specific point in mind.
Control of Conversion Therapy
Diana Johnson (Kingston upon Hull North) (Lab)
The petition is from Hull and East Riding Labour LGBT group, which has collected over 2,000 signatures against conversion therapy, a therapy that claims to be able to convert people who are homosexual to becoming heterosexual. I commend, in particular, Colin Livett, Danny Norton and Tom Stephens for all their hard work in producing the petition and obtaining so much support.
The petition states:
The Petition of Citizens of the UK,
Declares that the Petitioners believe that being lesbian, gay or bi-sexual is not a disease, disorder or illness and cannot therefore be “cured” or changed; and consequent upon this belief and the declarations of the professional bodies of the appropriate medical organizations, further declares that “conversion” or “reparative” therapy does not work and can do serious harm to patients.
The Petitioners therefore request that the House of Commons urges the government to control “conversion” or “reparative” therapy by banning it completely for those under the age of 18 and making it available to those over the age of 18 only after informed written consent and only when carried out by a licensed medical practitioner.
And your Petitioners remain, etc.
[P001196]
Cambridge to Fenland Train Service
Stephen Barclay (North East Cambridgeshire) (Con)
I present a petition on behalf of my constituents. The petition states:
The Petition of residents of North East Cambridgeshire,
Declares that at present the population of March has no access via public transport to evening entertainment and activities in Cambridge; further that the population growth rate, faster than for the East of England region and England overall, experienced by Fenland demonstrates the need for better public transport; further declares that another Petition on this subject has been signed by more than 700 residents of North East Cambridgeshire.
The Petitioners therefore request that the House of Commons urges the Government to require a late train service from Cambridge to March in the next Greater Anglia franchise.
And the Petitioners remain, etc.
[P001197]
Sir Bob Russell (Colchester) (LD)
On a point of order, Mr Speaker. You will recall that, following Home Office questions this afternoon, I drew your attention to the fact that a statement to be made tomorrow had been the subject of considerable media coverage over the weekend.
I regret to inform you that within the past hour or so, Sky Television has been holding up and quoting at length from the relevant report. Hon. Members will not be allowed to look at the report until 8 o’clock tomorrow morning. We will not be able to take a copy away, but will have to hand it back at the Department of Health. Can we have a ruling on what is going on at the Department? Clearly, the situation is a shambles.
Mr Speaker
I am grateful to the hon. Gentleman for his point of order. I have not seen or heard the broadcast to which he refers and it is always as well to be personally familiar with the evidence. However, this is the second time—I make no complaint about it—that the hon. Gentleman has raised his concerns today. He may seek to do so again tomorrow in the presence of a Minister from the Department concerned. The Minister will then have the opportunity to respond if he or she so chooses.
Suffice it to say that material for presentation to the House should be seen and heard first by the House; it should not be bandied about elsewhere. By what route the report got there I know not, but with all due respect to the estimable organ concerned, it seems a pretty poor second best. The House of Commons should be the premier audience.
Point of Order
Sir Bob Russell
Mr Speaker, I understand that either tomorrow or later this week the Secretary of State for Health will be giving a statement about 14 hospital trusts, including one in my constituency. However, given what appeared in two of the Sunday newspapers yesterday, there has been massive briefing, which could have come only from the Department. I think that a gross abuse of the House. Could a Health Minister be brought here today to explain why all that information was released to the press before it has come to the House?
Mr Speaker
My immediate response to the hon. Gentleman is twofold. First, there is no plan, intention or requirement for a Minister to come here today. The hon. Gentleman will have patiently to wait until tomorrow, at which point he might have an opportunity both to air his concerns about the substance of the matters under discussion and, if necessary, to repeat the point of a procedural character that he has made this afternoon.
Secondly, I am not familiar with the particular press reports to which the hon. Gentleman has just referred, although I did hear some sedentary hums of assent to the complaint that he was making. It would be only when I was familiar with the detailed facts of the situation that it would be fair for me to comment. Sometimes, reports that appear are of a speculative character and owe their genesis to determined reporters trying to get ahead of events and not necessarily to a deliberate briefing. On the other hand, we all know that deliberate briefing and outrageous leaking take place from time to time. The hon. Gentleman knows that I deprecate them in the strongest terms.
Meanwhile, the hon. Gentleman has given advertisement to the House of his intended presence for these matters to be considered tomorrow. He might catch my eye on that occasion.
2014 JHA Opt-out Decision
(11 years, 5 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
20:29 - The House divided: - Ayes: 237 / Noes: 350 - Question accordingly negatived.
20:43 - The House divided: - Ayes: 341 / Noes: 244 - Question accordingly agreed to.
Mr Speaker
I inform the House that I have selected amendments (c) and (b) in the names of the Leader of the Opposition and the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith). It might help the House if I explain that I shall invite the movers of those amendments to move them, formally or otherwise—formally, I expect—at the conclusion of debate. The selected amendments may therefore be addressed in the course of the debate.
The Secretary of State for the Home Department (Mrs Theresa May)
I beg to move,
That this House believes that the UK should opt out of all EU police and criminal justice measures adopted before December 2009 and seek to rejoin measures where it is in the national interest to do so and invites the European Scrutiny Committee, the Home Affairs Select Committee and the Justice Select Committee to submit relevant reports before the end of October, before the Government opens formal discussions with the Commission, Council and other Member States on the set of measures in Command Paper 8671, prior to the Government’s formal application to rejoin measures in accordance with Article10(5) of Protocol 36 to the TFEU.
For 40 years, ever since the United Kingdom entered what was then just a Common Market, power flowed in one direction—from this country and this place, which ought to be sovereign but in practice is often not, to the institutions of the European Union. Since the referendum in 1975, not once was the consent of the British people sought or given for a series of treaties that gave more and more power to Europe.
The Government’s decision, which I announced in a statement last week, to opt out of around 130 European justice and home affairs measures, before seeking to opt back into those measures that we believe work in the national interest, will be the first time in the history of our membership of the European Union that we have taken such a set of powers back from Brussels. Let us be clear that, however complicated the issues we are about to debate—I will soon come to those issues—we are first and foremost talking about bringing powers back home. That is something—
Jacob Rees-Mogg (North East Somerset) (Con)
Will the Home Secretary give way?
Mrs May
Will my hon. Friend allow me to finish my sentence? He is quick off the mark, as he always is on these matters.
That is something that should be celebrated by anybody who cares about national sovereignty, democracy and the role of this place in making the laws of our country.
Jacob Rees-Mogg
I am very grateful to my right hon. Friend for giving way to me so early on. Is it not unfortunately the case that 43 of the measures are, in effect, defunct anyway, that the ones we opt back into come under the European Court of Justice, and that that is a much bigger give-away of power than the relatively minor removal of powers that is happening under the opt-out?
Mrs May
I am sure that I do not need to remind my hon. Friend, given his attention to detail in these matters, that were we not voting and deciding to opt out of the number of measures we are proposing to opt out of, we would find ourselves subject to all these measures, all of which would be subject to the European Court of Justice.
Let me be clear: this should not be a one-off event before usual service resumes. This Government have made sure that never again will a Prime Minister sign away sovereignty in a European treaty without a referendum. We in the Conservative party have made clear our intent to negotiate a new relationship with the European Union which will then be put to the British people in an in/out referendum. Of course, it is too early to be specific about the changes we will seek in that negotiation, but I am clear that the decision to opt out of these justice and home affairs measures in 2014 does not leave us with the ideal settlement—far from it. Significant problems still need to be addressed, such as the interpretation and enforcement of free movement rules, the creative way in which measures agreed by nation states are subsequently interpreted, and the jurisdiction of the European Court of Justice.
Mr Bernard Jenkin (Harwich and North Essex) (Con)
Will my right hon. Friend give way?
Keith Vaz
I am most grateful to the Home Secretary. May I thank her for engaging in a fruitful discussion about the motion with me and the Chairman of the European Scrutiny Committee? The Chairman of the Liaison Committee was abroad, so he could not be part of those discussions. Will the Home Secretary confirm that she really needs a vote of the House today in order to start her negotiations? Would it not be far better to have the scrutiny of the Select Committees, for which she allows until 31 October in her motion, and then have a vote that gives her the mandate she seeks?
Mrs May
The point is that this is a two-stage process. It has been made clear to us by the European Commission that it will not start the discussions about certain aspects of our proposals—for example, looking at transitional arrangements—until it is clear that the UK intends to opt out. That is why it is necessary for the Government to exercise the opt-out. In a little while, I will explain the commitments that were made to Parliament, which we are indeed abiding by today, but there will be a second opportunity for Parliament to vote on the number and content of any measures that we seek to opt into. The Government have given their current indication of what we think those measures should be. As our motion says, we look forward to the scrutiny by the European Scrutiny Committee and the two other Select Committees, which will inform our judgment before we enter formal negotiations.
Mark Reckless (Rochester and Strood) (Con)
Will the Home Secretary confirm that if the House votes tonight for her motion she will immediately notify the European Commission that this country has decided to use the block opt-out?
Mr Jenkin
I thank my right hon. Friend, who is being very generous. I welcome her words about the importance of this House maintaining control over these matters, but we lose control over them in perpetuity if we opt back into any of the measures. That therefore represents a permanent transfer of sovereignty that the current situation does not represent. Do I take it from her comments on the renegotiation that what the coalition agrees to opt back into would not be subject to renegotiation by a future Conservative Government? It would seem rather incredible to believe that a British Prime Minister could opt into something in one Parliament and then in the next Parliament go back and say, “No, we want to opt out again after all.”
Mrs May
The whole point about the renegotiation that we as the Conservative party have announced we will be undertaking is that we achieve a new settlement in terms of the relationship between the United Kingdom and the European Union. We have our views on the future of the European Union as well. Those views have been very ably expressed by the Prime Minister in speeches that he has made. As part of that renegotiation, it would be odd indeed, and colleagues would question it, if the Conservative party, as part of its commitment, said, “We will renegotiate, but not these bits.” We will renegotiate the United Kingdom’s relationship with the European Union. I should add, in response to my hon. Friend the Member for Rochester and Strood (Mark Reckless), who asked about the opt-out, that the House of Lords will also debate this matter on Monday.
Mrs May
My hon. Friend may find it rather strange that we have to opt out and then try to opt back in, but that is precisely because of the system that was negotiated by the previous Labour Government. It is not possible for us to opt out of every measure apart from, for example, the European arrest warrant; as I will explain, we have to opt out of everything and then choose to opt into some measures.
Dr Julian Huppert (Cambridge) (LD)
The Home Secretary is being extremely generous in giving way. Those of us who are keen to see some of the opt-ins are very concerned about the time gap between the opt-out and the opt-in. Will she assure us that it will be as brief as possible, particularly so that, for example, Rob Wainwright, the director of Europol, does not accidentally lose his job because we are out for a few minutes?
Mrs May
My hon. Friend raises a very important and valid point. It is our intention––and we expect to be able––to work with the European Commission in order to ensure that the transition period for any measures that we want to opt back into is as smooth and as short as possible. It is clear that the Commission will not start properly to look at those transition arrangements until we are clear that we are going to opt out and then try to opt back in.
Mr John Redwood (Wokingham) (Con)
An opt-out from all the measures would be very popular on the Conservative side in this House and outside. That is what we want to do, because we do not trust Europe to boss us around and take our democracy from us. Why not vote for the opt-out today and then vote on any possible opt-back-ins after the consultation and consideration at a later day?
Mr Cash
I am most grateful to my right hon. Friend for giving way. Her response to the hon. Member for Cambridge (Dr Huppert) seemed to suggest that the speed with which he advocates the sorting out of the opt-ins might truncate the amount of scrutiny that is needed. I thought, as a result of the amendment tabled by me and other Select Committee Chairmen to the original motion, we had established that progress had been made on that point. Will my right hon. Friend make the situation clear?
Mrs May
I am happy to make it clear and sorry if my remarks to my hon. Friend the Member for Cambridge led my hon. Friend the Member for Stone (Mr Cash) to interpret my response in that way, because that was certainly not my intention. I will specify more clearly the process as I see it in due course.
Mrs May
I have been extremely generous to Members. I may be prepared to take some interventions later in my speech, but I want to make some progress.
Before I took a number of interventions, I mentioned the European Court of Justice. I also want to refer to the European Court of Human Rights, which contradicts laws passed by our Parliament, overrules judgments made by our courts, and interprets the articles of the original convention on human rights in an expansionist way. That is totally unacceptable. I therefore believe that we also have to consider very carefully this country’s relationship with Strasbourg as well as our relationship with Brussels. Indeed, my right hon. Friend the Justice Secretary is working on that particular issue.
Before I turn to the policy detail of the 2014 decision, I want to address the role of Parliament in making it. I know hon. Members have had some concerns about this, and I hope I can provide some reassurance, including to my hon. Friend the Member for Stone, the Chairman of the European Scrutiny Committee, about the process we will undertake.
Under the terms of the Lisbon treaty, which the previous Government signed in 2007, the United Kingdom has until 31 May 2014 to decide whether to opt out of about 130 justice and home affairs measures covered by the treaty. If we do, the opt-out will come into effect on 1 December 2014. As I have indicated in response to earlier interventions, it is not possible to opt out of individual measures. The opt-out must be exercised en masse, after which we may seek to rejoin any measures in which we would like to participate. This would be subject to negotiation with the European Commission and other member states. As I confirmed in my statement last week, the Government intend to exercise the opt-out. We then plan to seek to rejoin a limited set of measures that underpin practical co-operation in the fight against crime.
The Government have always said that we will give Parliament time to scrutinise that decision properly. In his statement in January 2011—
Pete Wishart (Perth and North Perthshire) (SNP)
Will the Home Secretary give way?
Mrs May
I have not explained the point yet, so I suggest that the hon. Gentleman waits to hear what I am going to say.
In his statement in January 2011, the Minister for Europe, my right hon. Friend the Member for Aylesbury (Mr Lidington) said:
“Parliament should have the right to give its view on a decision of such importance. The Government therefore commit to a vote in both Houses of Parliament before they make a formal decision on whether they wish to opt out.”—[Official Report, 20 January 2011; Vol. 521, c. 51WS.]
Today’s vote is the fulfilment of that commitment. It is, as the wording of the motion makes clear, the vote on whether the Government should exercise the right to opt out. The decision about which measures the UK should seek to rejoin is separate, so there will be a second, separate vote on that matter. We have published that set of measures, along with explanatory memorandums, in Command Paper 8671, last week.
Wayne David
The Home Secretary quoted the Minister for Europe’s statement of January 2011, but she did not mention that he went on to say:
“The Government will conduct further consultations on the arrangements for this vote, in particular with the European Scrutiny Committees, and the Commons and Lords Home Affairs and Justice Select Committees”.—[Official Report, 20 January 2011; Vol. 521, c. 51WS.]
Will she tell us whether those discussions took place, as promised two years ago?
Mrs May
We are going to ensure, as the motion suggests, that the Scrutiny Committee and the two Select Committees have the opportunity properly to scrutinise the set of measures, and there will be two votes in the House. We have always been clear that Parliament and its Committees should have adequate time to scrutinise the set of measures. That work does not need to be done before today’s vote, because today’s vote is about the decision to exercise the opt-out.
Sir Alan Beith
I am grateful to the right hon. Lady. I can confirm that I was consulted about the voting arrangements, but that was only last week and it took place by telephone because I was out of the country. That consultation took place only a week ago. What happened to the commitment that, by February this year, the Committees would be given explanatory memorandums on which to base their work on the opt-ins?
Mrs May
I have already said to the right hon. Gentleman and to others who have raised the issue of the explanatory memorandums that I am sorry that it was not possible to produce them at an earlier date. We have looked at the time available for scrutiny by the Select Committees and the Scrutiny Committee, and for the second vote on the potential measures that we might choose to opt back into. The explanatory memorandums were made available last week, and they are available to the Committees in their consideration of any measures that the Government should opt into or seek to rejoin. That information has now been made available and I hope that it will be able to inform the Committees’ considerations.
Andrew Percy (Brigg and Goole) (Con)
I congratulate my right hon. Friend on asking us to vote on this opt-out today, but I am a little confused about the question of opting back in. We on this side do not like block votes, so will we be able to vote on each individual measure when we decide whether to opt back into them?
Mrs May
The decision on the form that that vote will take has not yet been made, but I am well aware of the views of some Members on that matter.
I said in my statement last week:
“Following our discussions in Europe, another vote will be held on the final list of measures that the UK will formally apply to rejoin.”—[Official Report, 9 July 2013; Vol. 566, c. 177.]
But, to make this commitment absolutely crystal clear, and to reassure hon. Members who were worried about the role of the Committees in scrutinising the Government’s plans to rejoin the selected measures, we have listened to the points that were raised—I was grateful to the Chairmen of the European Scrutiny Committee and the Home Affairs Select Committee for the conversations that I had with them; the Chairman of the Justice Committee was indeed abroad—and we have tabled a new motion for today’s debate. That new motion explicitly invites the European Scrutiny Committee and the Home Affairs and Justice Committees to submit reports before the end of October, in advance of the Government opening formal discussions with the European Commission and other member states. I therefore hope the new motion will receive wide support from hon. Members across the House.
Mr Davidson
I am grateful to the Home Secretary for giving way to a Scottish Member. To clarify, if reports are being produced for the Committees, will those Committees be asked to produce individual responses? If they produce individual responses, does it not make sense to have individual votes on particular items, rather than simply taking them in a lump?
Stephen Phillips (Sleaford and North Hykeham) (Con)
My right hon. Friend has set out the timetable, but under the relevant paragraph of the protocol there is no opt-in to those measures that the United Kingdom wants to opt into until 2 December 2014. Indeed, there is no indication that the Commission has to negotiate before that date because of the way the article is framed. Has the Commission indicated that it will negotiate with the UK Government on those measures we wish to opt back into?
Mrs May
The Commission is clear that any work that would be undertaken would take place before that date, but it wants to be clear that the UK Government have decided to opt out. Without that it is not possible to have proper discussions on proposals to opt back in.
A vote today on the decision to exercise the opt-out will show other European nations that the Government have the support of Parliament in exercising the opt-out, it will give the Government a strong hand in our negotiations with the EU, and it will show that we are serious about bringing powers back home. It will allow us to start informal discussions with the Commission and other member states, but no formal negotiations will begin until the Committees have done their work. The House will, of course, vote again on the final list of measures that we will formally apply to opt back into.
Pete Wishart
I am grateful to the right hon. Lady for finally giving way to a Member from a minority party—the hon. Member for Belfast East (Naomi Long) is waiting too. The Home Secretary has said on several occasions that she is speaking on behalf of the whole United Kingdom when it comes to these measures, but she will know that there is great unhappiness in the Scottish Government, Police Scotland, and the whole legal profession about this opt-out. Why was there so little consultation with the Scottish Government, why did they know nothing about this until last week, and why is she indulging in such UKIP-ery?
Mrs May
It is not the case that the Scottish Government knew nothing about this until last week. The Under-Secretary of State for the Home Department, my hon. Friend the Member for Old Bexley and Sidcup (James Brokenshire), visited Scotland in January and met the Justice Secretary, Kenny MacAskill, and ACPO Scotland. He also visited Northern Ireland and met the Justice Minister, David Ford, to discuss these issues in relation to Northern Ireland.
Naomi Long
Will the Home Secretary confirm, as she failed to do last week when I questioned her on this matter, that the Justice Minister in Northern Ireland is not reassured by what he has heard in discussions with the Home Office about the operation of the European arrest warrant?
Mrs May
As I believe I said last week during my statement in response to a similar question from the hon. Lady, I am aware that concern has been expressed about the European arrest warrant because of the importance—I intend to refer to this a little later—of the operation of that arrest warrant between the United Kingdom, and particularly between Northern Ireland and the Republic of Ireland. A lot of concern expressed previously was when it was thought that the Government would not propose to try to opt back into the European arrest warrant. Of course we must have further discussions with relevant Ministers in Northern Ireland on this matter.
I turn now to the substance of the debate. The Government will exercise the opt-out, but as I announced last week and have said today, we propose to seek to opt back into 35 measures where we believe it is in the national interest to participate. My right hon. Friends the Secretary of State for Justice, the Minister for Government Policy and the Minister for Europe and I have listened to the views of the law enforcement agencies, have considered the civil liberties of British subjects and have been mindful of how the European institutions, particularly the Court of Justice, operate, and to borrow a phrase coined by my hon. Friend the Member for Esher and Walton (Mr Raab), who has particular knowledge of and expertise in these matters, we have pursued a policy of seeking “co-operation not control”—for example, it is not for Europe to impose minimum standards on our police and criminal justice system. There are therefore more than 20 minimum standards measures that we will not seek to rejoin.
Likewise, we should not pretend that all these measures facilitate cross-border co-operation; they do not. Where they do not—as with the measure on counterfeiting, for example—we will not seek to opt back in. Furthermore, the last Government signed us up to the Prum decisions on the identification of DNA, fingerprint and vehicle registration documents, but then did nothing to implement them. Rejoining now would leave the UK open to a fine that would run into millions of pounds, so we will not rejoin those measures. Lastly, I want to make it absolutely clear that we will do nothing that leads to the establishment of a European public prosecutor or anything akin to a European police force.
Mr James Clappison (Hertsmere) (Con)
I welcome the points that my right hon. Friend has just made. Will she bear it in mind that this is part of the EU’s overall ambition to establish an area of freedom, security and justice in which the European institutions, not this House, take the decisions, and European Courts, not our courts, take the legal decisions?
Mrs May
My hon. Friend is right to be concerned about the indications of some of the intentions about the future of Europe. We have made it clear—it is in our coalition agreement—that we will not support anything that, for example, establishes a European public prosecutor, which we do not believe is the right way to go. Furthermore, on the new Europol regulation, which I will mention later and on which we will have a further debate tonight led by the security Minister, the Under-Secretary of State for the Home Department, my hon. Friend the Member for Old Bexley and Sidcup (James Brokenshire), we do not wish, as I said, to do anything that leads to anything akin to a European police force.
We have concluded, however, that some of the measures in the opt-out decision help us to tackle crime and keep our country safe, and we should therefore seek to opt back into them. We believe that there are 35 such measures, as I indicated last week. I will deal first with the most controversial of the measures we plan to opt back into: the European arrest warrant. It is a controversial measure because, although we clearly need strong extradition arrangements in place to see justice done, when extradition arrangements are wrong, they can have a detrimental effect on our civil liberties. Hon Members, especially my hon. Friend the Member for Enfield, Southgate (Mr Burrowes), will remember that last year I stopped the extradition of Gary McKinnon and then secured changes to the operation of our extradition arrangements with the United States.
I believe that the operation of the European arrest warrant is in similar need of change, which is why I propose new safeguards to increase the protection offered to those wanted for extradition through the European arrest warrant. First, as I indicated earlier, the Government have tabled amendments to the Anti-social Behaviour, Crime and Policing Bill, which is currently in Committee in this House, to ensure that an arrest warrant can be refused for minor crimes. Secondly, we will work with other member states to enforce their fines and ensure that, where possible, an investigation order is used instead of an arrest warrant, meaning that police forces and prosecutors would share evidence and information without requiring the extradition of a suspect at the investigative stage.
Thirdly, I will amend extradition legislation to ensure that people in the UK can only be extradited under the European arrest warrant when the requesting member state has already made a decision to charge and a decision to try, unless that person’s presence is required in that jurisdiction for those decisions to be made. Fourthly, I will amend our law to make it clear that in cases where part of the alleged conduct took place in the UK and where that conduct is not criminal here, the judge must refuse extradition for that conduct. Fifthly, I want to ensure that people who consent to extradition do not lose their right not to be prosecuted for other offences.
Sixthly, we propose that the prisoner transfer framework decision should be used to its fullest extent so that British subjects extradited and convicted can be returned to serve their sentence here. Seventhly, where a British subject has been convicted and sentenced abroad—for example, in their absence—and is the subject of an arrest warrant, we will ask, with their permission, for the warrant to be withdrawn and will use the prisoner transfer arrangements instead. Eighthly, I plan either to allow the temporary transfer of a consenting person so that they can be interviewed by the issuing state’s authorities or to allow them to do this through means such as video-conferencing in the UK. Where the suspect is innocent, this should lead to the extradition request being withdrawn.
Those are all changes that can be made in our own law, and which could have been made at any time by the Labour party.
Sir Gerald Howarth (Aldershot) (Con)
I am most grateful to my right hon. Friend and I apologise for not being here at the outset. The safeguards she mentions, which we intend to enshrine in English law, are welcome. However, the European arrest warrant will become subject to the European Court of Justice. What assurances can she give the House that the safeguards will not be challengeable by the European Court of Justice, and therefore annulled?
Mrs May
My hon. Friend is right that if we opt back into the European arrest warrant it will be subject to the European Court of Justice. However, I suggest he look at other EU countries that already have similar measures, certainly in terms of proportionality, and operate them without any question of whether it is right for them to be so operated. I believe it is possible for us to put these measures into our law and do so in a way that provides extra safeguards for British citizens. Many of the changes reflect the policies of other member states, which means we can have confidence in their durability. Co-operation across borders in the fight against crime is vital, but it must not come at the expense of the civil liberties of British subjects. I believe that the Government’s programme of reform will get the balance right.
Nick Herbert (Arundel and South Downs) (Con)
Will my right hon. Friend give way?
Mrs May
I will make just a little more progress and then give way to my right hon. Friend.
It is important to remember that we need robust extradition arrangements in place. Since 2009 alone, the arrest warrant has been used to extradite from the United Kingdom 57 suspects for child sex offences, 86 for rape and 105 for murder. In the same period, 63 suspected child sex offenders, 27 suspected rapists and 44 suspected murderers were extradited back to Britain to face charges. A number of those suspects would probably never have been extradited back to Britain without the arrest warrant.
Nick Herbert
Hon. Members are understandably concerned about the constitutional implications of the changes, but I support my right hon. Friend’s stance. Is it not important to reflect on the implications of not participating in the European arrest warrant? Having separate arrangements with all 28 countries of the EU would tie the hands of our own law enforcement agencies and make it harder for them to bring potentially serious criminals to justice, increasing cost and delay. Should we not focus on the benefits of some multinational co-operation, as well as some of the risks?
Mrs May
My right hon. Friend is absolutely right. He refers to delay, and there are very good examples of the EAW enabling speedier extradition. Hussain Osman, one of the failed 21/7 bombers from 2005, was extradited back to this country from Italy in less than eight weeks. As I indicated earlier in response to an intervention, the authorities in Northern Ireland tell us that the arrest warrant, together with other measures, plays an important role in underpinning their work with the Republic of Ireland in tackling the constant threat of terrorism. My right hon. Friend is absolutely right that those who say we should not be taking these measures and should not participate in the arrest warrant—I recognise and respect that some hon. Members are against our participation in the arrest warrant—need to say what they would do to secure the return to Britain of terrorist suspects who deserve to face justice, or to prevent foreign criminals evading justice by hiding in Britain. As long as we have adequate safeguards to protect the civil liberties of British subjects, we need robust extradition arrangements with other European countries, and that is what the arrest warrant gives us.
Mr Andrew Turner (Isle of Wight) (Con)
Will my right hon. Friend assist me by explaining Norway and Switzerland’s position on the current arrangements? Why is this help not necessary for Iceland, but necessary for Ireland?
Mrs May
Of course some countries negotiate arrangements with other countries—indeed, we have individual arrangements with countries outside the EU —but if we had to negotiate separate bilateral agreements with all 27 other member states, why does my hon. Friend think that they would work any better than the arrest warrant? Would that suddenly improve the level of justice in certain countries or speed up the system? On the contrary; I think it would be likely to slow it down. As my right hon. Friend the Member for Arundel and South Downs (Nick Herbert) said, all sorts of problems with speed and cost could ensue, and we would risk being unable to bring foreign nationals back here to the United Kingdom.
Wayne David
The Home Secretary has outlined the changes to the European arrest warrant that she would like to make unilaterally, but what changes would she like to make at a European level?
Mrs May
I have been discussing with other member states the operation of the European arrest warrant and the possibility of some changes being made to it. Some member states are looking at the way they operate the European arrest warrant and may change some of their legislation to make it better for us in terms of proportionality. We are talking to other member states that might also be taking powers to introduce proportionality in a way that reduces the number of trivial crimes for which European arrest warrants are issued into the United Kingdom.
Steve Baker (Wycombe) (Con)
A few moments ago my right hon. Friend talked about a number of serious offenders whom she said might not have been extradited were it not for the arrest warrant. As that seems to be part of her positive case for opting into the arrest warrant, can she be clear what the difference is—for those of us who are perhaps not experts in this area—between the arrest warrant and other extradition arrangements?
Mrs May
Following the introduction of the European arrest warrant, there is a clear difference between the extradition arrangements in Europe now and those that previously existed, which came under the banner of the Council of Europe. One of the key issues is the level of delay that occurs; the European arrest warrant can be exercised much more quickly. I cited the case of the failed 21/7 bomber who was extradited from Italy in eight weeks. Before the introduction of the European arrest warrant, that could have taken a considerable period of time—many months and potentially years. The ability to extradite more quickly is one of the advantages of the European arrest warrant.
Sir Richard Shepherd (Aldridge-Brownhills) (Con)
The difficulty has always been the concept of the mutual recognition of different legal systems. The assumption is that we are working on the same premises, but we are not doing that across Europe. All the evidence given to the Joint Committee on Human Rights—whose opinion I hope my right hon. Friend will ask for as well—was about the victims of the system as it works now. Why can we have mutual recognition of legal systems that many people across Europe do not think are equivalent to ours in terms of standards of justice and court procedure?
Mrs May
My hon. Friend raises an important point. It is exactly that issue in a number of areas—for example, pre-trial detention—that right hon. and hon. Members have raised as a key concern about the operation of the European arrest warrant. There are member states that have been extraditing individuals before they have properly investigated the case and before they have the evidence to charge and try them. That has often led to British citizens waiting for many months in jails abroad while the investigation took place. It is why one of the changes I wish to make to the operation of the European arrest warrant here in the UK would enable judges to discharge the extradition request if the requesting country had not taken a decision to charge and a decision to try the individual.
Mr Blunkett
I am grateful to the Home Secretary, who has been generous in taking a considerable number of interventions. I would like to reinforce her point about the time it took before the European arrest warrant. I think even the hon. Member for Aldridge-Brownhills (Sir Richard Shepherd) would accept that the French jurisdiction was a reasonable place to which to extradite people, but will the Home Secretary confirm that before the European arrest warrant, we had one case that took nine years? With the frustrations in that case—and not only those of Ministers—and the damage it did not only to the relationship with France but to the course of justice, it was common sense to try to get a better system operating across Europe.
Mrs May
The right hon. Gentleman has put the point very well, and I am sure the whole House has listened to the example he provided. It is exactly such examples that make me think it right for us to ensure that we have a system that is better to operate. As he says, this is not only about relationships between Governments, but about the course of justice. That is why we want to ensure the more suitable, proper and swifter extradition arrangements that the EAW provides.
I said that our proposed list of measures for opting in was chosen because the measures would improve the practical fight against crime and the co-operation to achieve it. We of course await the views of the Scrutiny Committee and the Select Committees, but, for example, we want our law enforcement agencies to be able to establish joint investigation teams with colleagues in other European countries; we plan to rejoin the European supervision order, which allows British subjects to be bailed back to the UK rather than spend months and months abroad awaiting trial; and the second-generation Schengen information system—a new way of sharing law enforcement alerts throughout Europe—has the capacity to bring significant savings to our criminal justice system, as well as make it easier to identify foreign criminals. Again, this is just a question of practical co-operation, so the Government plan to join the database. I hope the House will see from the list of measures that the vast majority of what the Government propose to opt back into is uncontroversial, and based on the very sensible principle of “co-operation not control”.
I want to reiterate the Government’s position on Europol. As I mentioned earlier, the House will debate its future later tonight. The Government believe that Europol does excellent work under its British director, Rob Wainwright, which is why we propose to rejoin Europol in its existing form as part of the 2014 decision. There is a separate decision to be taken about Europol, and tonight’s debate will not be about the organisation in its current form but in its proposed future form. As things stand, the Commission proposes to change Europol’s governance and powers, potentially allowing it to direct national police forces and requiring us to share sensitive intelligence crucial to our national security. I believe that would be entirely unacceptable. These powers are unnecessary and would undermine our way of policing—and Europol has not even asked for them. The motive of the Commission appears to be nothing more than state-building. That is why we will not opt into the new Europol regulation and will never do so until those concerns have been put beyond doubt.
Some of my hon. Friends have been keen for me to address the question of the jurisdiction of the European Court of Justice. I have mentioned it already, but let me look at the issue once again. Between 1995 and the end of November 2009, 136 measures in the field of police and criminal justice were adopted in Brussels under the so-called third pillar. This meant that they were not the usual EU Acts and were not subject to either Commission enforcement powers or the full jurisdiction of the European Court of Justice. As a result, we could not be told by others that we had not implemented things properly and we could not be fined millions of pounds as a result. There were no European Court rulings that bound us, and we had a veto in negotiations.
When the last Government signed the Lisbon treaty, they changed the constitutional basis of the European Union, giving more powers over police and criminal justice matters to European institutions, and removing our veto in police and criminal justice. Now, at the end of a five-year transitional period on 1 December 2014, these pre-Lisbon measures become subject to Commission enforcement powers and the full jurisdiction of the European Court of Justice.
In fact, the whole justice and home affairs structure since Lisbon takes too much control away from elected national Governments. The Commission or the Council propose a measure, and the UK has the right to decide not to opt in, but if we decide that the measure is in the national interest and we do opt in, we are subject not only to qualified majority voting in the Council but to co-legislation rules in which the European Parliament is considered to be an equal to the Council of Ministers. Elected national Governments are sidelined—and that is before we even consider the role of the European Court of Justice in interpreting the measure once it becomes binding.
Mark Reckless
Is the Home Secretary aware of the European Union Act 2011 in the context of what is required for a referendum? Section 4(1)(i) refers to
“the conferring on an EU institution or body of power to impose a requirement or obligation on the United Kingdom”;
while (j) refers to
“the conferring on an EU institution or body of new or extended power to impose sanctions on the United Kingdom”.
Surely an opt-in to the various 35 measures will do that and should trigger a referendum.
Mrs May
Let me give my hon. Friend the answer that I gave when the matter was last raised with me. I do not believe that opting back into these measures would trigger a referendum under the powers that the Government have. However, I think Members should welcome the Government’s statement that no future United Kingdom Government will sign a treaty unless a suitable vote is held among the British people.
The issues involving justice and home affairs to which I referred earlier are being considered in the Government’s “balance of competences” review. Undoubtedly the jurisdiction of the European Court of Justice will need to be considered when, after the election, a future Conservative Government renegotiate Britain’s relationship with the European Union; but the choice that is before us now is binary. We are a coalition Government with no mandate to seek a renegotiation of our relationship with Europe. We must make a choice about whether, having exercised our right to opt out of these measures, we should seek to opt back into any of them—knowing that we would be subject to the junction of the European Court of Justice—if we think that they are in the national interest.
I acknowledge the risks involved in being subject to the European Court, but when it comes to the arrest warrant, I am also aware of the very significant risks of having no framework within which we can extradite criminals to and from Britain. Let me repeat that anyone who says that ECJ jurisdiction is too high a price must say how they would cope without that extradition framework.
It would be remiss of me to participate in the debate without highlighting the absurdity of the position of Labour Members. They have attacked our decision to exercise the opt-out, but it was the last Government who negotiated the opt-out in the first place. Their amendment demands that we opt into various specific measures, but the former Home Secretary the right hon. Member for Kingston upon Hull West and Hessle (Alan Johnson) admits that the reason for our having to opt out of all these measures en masse is the failure of Labour’s negotiating strategy.
Labour Members now admit that the arrest warrant is in need of reform, but they did not do a thing to change its operation when they were in office. They question our negotiating strategy, but it was they who did not just sign us up to the Lisbon treaty but wanted to sign the constitutional treaty that went before it. They imply that somehow the Government are not tough on crime, but our police reforms are working, and crime is falling. They have no policies, no ideas, and nothing to say. They are completely and utterly irrelevant.
Let me end as I began, by reminding the House what this debate is about. It is about the fact that, for the first time in 40 years, a British Government are bringing powers back from Brussels. Of course we should not stop there, and, like many members of my party, I am impatient for more. That is one reason why it is so important for us to have a Conservative majority Government at the next election. Even as a coalition, however, this Government have delivered the first ever cut in a European budget, have vetoed a European treaty, and have put into law a clear guarantee that no more powers will pass to Europe without a referendum of the British people; and now we are bringing powers back home.
A vote in favour of the Government’s motion will send a clear signal to the Commission and the other member states that Britain is serious about bringing powers back home, and it will strengthen our negotiating position in Brussels. The House will have an opportunity in future to vote on the final list of measures that we will seek to rejoin, but a vote in favour of the motion today is a vote in favour of exercising the opt-out. I therefore call on Members on both sides of the House to support the motion, and to vote with the Government.
Yvette Cooper (Normanton, Pontefract and Castleford) (Lab)
There is a serious debate to be had about European crime and justice, about how we should tackle cross-border crime, and about where we should work with Europe and where we should operate alone. On many issues we will agree with the Government, and on some we will not. There is clearly disagreement within the Government, and within the Conservative party.
These issues are extremely important, and Parliament needs to hold a serious debate before being asked to reach a conclusion, but that is not what is happening today. Instead, the House of Commons is being asked to endorse the Home Secretary’s plan for an opt-out, and her negotiating strategy in relation to opting back in, less than a week after she set out her plan. She has had three years in which to think about the opt-out, and she gave the House three working days before calling for this vote.
The Select Committees have repeatedly asked the Home Secretary for the lists of measures, and have not been given them. She produced them only on Tuesday. When we called a debate on the European arrest warrant some weeks ago, she said:
“This is an important decision, and not one that we should rush into lightly”.—[Official Report, 12 June 2013; Vol. 564, c. 421.]
So why is she rushing the House today? Why was this debate arranged by an emergency business statement? Ten days ago the Leader of the House said the business for today would be the Defence Reform Bill. What changed in less than a week? What made this an emergency that could not have been planned many weeks, if not many months, ahead?
Members have had no chance to seek the views of law enforcement experts on the list the Home Secretary has set out, no chance to seek the views of European and constitutional experts on the implications, no chance to find out whether transitional arrangements will be needed and what risks might be attached to them, and no chance to explore the financial penalty to Britain of pulling out. There has also been no chance for those who have concerns about the European arrest warrant to assess the impact of her reforms, and also no chance for those who support the European arrest warrant, as we do, to make sure that it will not be put at risk by those transitional arrangements or by opposition from the Commission in the negotiations.
And why do we need a vote today to endorse the Home Secretary’s plan? She does not need it to start negotiations. In fact she told the House of Commons in October that negotiations had already started. She does not need it to start the formal process with the Commission either. In fact her own motion—the second and latest motion, which she tabled in even more of a rush than the first one when it became clear that she was facing difficulties and opposition—says the Select Committees shall report
“before the end of October, before the Government opens formal discussions with the Commission, Council and other Member States”.
If she is not going to start formal negotiations until October, why on earth is there such a rush to endorse her strategy today?
The Home Secretary has not told us what status the Select Committee reports will have, or whether she might change her list once they have reported. She has said that there might be another vote in October once the Select Committees have reported, in which case why are we having this initial vote now? This looks like a bounce—an attempt to bounce Parliament; an attempt to get a rushed endorsement of her strategy without Parliament having a proper chance to consider what is going on. If she was serious about the parliamentary scrutiny to which she belatedly made reference in her second motion, she would agree that this vote on the Government’s strategy should be delayed and maximum scope should be given to the Select Committees to look both at opt-out and opt-in.
Wayne David
My right hon. Friend has suggested that there may be an attempt to bounce the House into making this decision, but does she think there is a possibility that the Conservative party Government want to have as little debate as possible on this issue because of divisions within the Conservatives’ own ranks?
Yvette Cooper
My hon. Friend is right that that is what it looks like. Why else would there have been such late notice that we were going to have this debate at all today? We have had plenty of discussions over many months about the European arrest warrant and the opt-in, opt-out process. Everybody has known that this was coming, so why was this the subject for an emergency business statement? We have had very few emergency business statements in this Parliament, yet this somehow qualified for one. That raises questions as to whether this was about political party management rather than having proper respect for the House.
Pete Wishart
Can we clarify the Labour position? Would Labour opt out of the EU policing and human affairs chapters if these conditions were met? Would the Labour party opt out of these measures?
Yvette Cooper
I am going to come on to the substance because our view is that we should not be opting out without proper guarantees and assurances in place about the key measures we think it is vital to be opted into.
Let me turn to the substance of the plan. Clearly, without time for scrutiny it is hard for the House to take a view on the mix of measures and the overall plan. I welcome the Home Secretary’s proposal to opt back into some of the measures, and I am glad she has ignored the Eurosceptic voices and has chosen to support the European arrest warrant. She is right about the seriousness of the cases in which it has been applied, and to support the arrest of Arunas Cervinskas, returned from Britain to Ireland after his attempted rape and serious assault of an 18-year-old girl, and the arrest only a few days ago of Mark Lilley, who was found hidden in a luxury Spanish villa after 13 years on the run for drug smuggling and dealing. He will soon be back in the UK to face his long prison sentence. Then there is the example that the Home Secretary used last week and again today of Hussain Osman, who was extradited back to the UK, after attempting to blow up a tube train, in less than two months. She is right to say that we cannot go back to the days when it took 10 years to extradite a terror suspect to France or when it took 11 years to get Ronnie Knight back from the costa del crime.
I am glad, too, that the Home Secretary has ignored the Eurosceptic voices and decided to support joint investigation teams; she has decided to support Operation Golf, in which 126 suspects from a Romanian crime gang were arrested for benefit fraud, money laundering and child neglect, and more than 270 trafficking victims were saved. We cannot go back to the days when foreign crime gangs were untouchable, allowed to damage our society or cause serious harm to victims. So I am glad that she has decided to ignore the Eurosceptic Back Benchers—to ignore the Fresh Start group—and instead to agree with the arguments made by Labour Members, by the police and by the Liberal Democrats.
I am glad, too, that the Home Secretary has accepted the exchange of criminal records, Eurojust, the co-operation to protect personal data, the co-operation to combat child pornography and measures on football hooliganism. She has come a long way since the Prime Minister described the European arrest warrant as “highly objectionable”. I am very pleased that the Home Secretary and the Prime Minister have done a U-turn on this; it is a shame that it has taken them so long.
Let me turn to some of the measures that the Home Secretary wants to opt out of—again, it is very hard to take a view without full scrutiny of the measures that the Government have set out.
Mark Reckless
Before the right hon. Lady goes through her list, will she give us some understanding of why the Labour Government left us with this block opt-out, binary choice rather than allowing us to pursue the measures on an intergovernmental basis, without the oversight of the European Court of Justice, in the way successfully negotiated by Denmark?
Yvette Cooper
I am not sure that Denmark and the opt-out negotiations is the best possible example to refer to, because Denmark’s experience of going through its opt-out and opt-in process was that it was turned down by the Commission on some of the measures it wanted to opt back into. I want to come on to deal with that point shortly.
We have said before that it is right to look at the proposals in the opt-out and we have no objection to the principle of opt-outs. Indeed, the Labour party negotiated the opt-out in the first place. However, it is also right to make sure that proper assurances and guarantees are in place for the key measures that we believe—and we now understand the Home Secretary believes—we should stay part of.
Yvette Cooper
I will give way but I do want to come on to some of the measures that the Home Secretary is proposing we opt out of and stay out of.
Mr Redwood
Does the shadow Home Secretary accept that if we opt in to a fundamental measure such as the European arrest warrant, some future Home Secretary could find an ECJ judgment that fundamentally went against the view of this House and that Home Secretary’s ability to conduct criminal justice properly, and they would be unable to do anything about it?
Yvette Cooper
The right hon. Gentleman is right to say that opting into the EAW does mean it will be subject to the ECJ, but I have to say to him that the importance of the EAW, not only to our crime-fighting and to British police forces, but to victims is so immense that it would be highly irresponsible, against the national interest and against the interests of victims of crime to opt out of it. I understand his views, and it is important that he should have the opportunity to express them, but I just disagree with him on this matter, given the serious cases we have seen. About 900 suspected foreign criminals are extradited to other European countries each year as a result of the EAW being in place. Without the EAW it would take far longer to be able to send back the suspected criminals who ought to be returned, be it to their home country or to the countries in which they are alleged to have committed serious crimes, in order to be tried and to face justice.
George Eustice (Camborne and Redruth) (Con)
But all the uncertainty the right hon. Lady cites about the ability to opt back into some of these JHA policies stems from the fact that we had this block opt-out that the previous Government negotiated. What did they think were the advantages of a block opt-out as opposed to an optional opt-out on a case-by-case basis?
Yvette Cooper
The negotiations took place to secure the best possible deal and flexibility for the UK at the time, and it was right to do so. The hon. Gentleman signed the letter opposing all the opt-ins, and I understand where he is coming from. He should be able to express that view, but again, I disagree with him about the importance of these measures for fighting crime and protecting victims.
Steve McCabe
As we are going to keep coming back to this issue, is it not fair to admit that the block opt-out was the price that the other member states extracted to allow us an opt-out at all? We have discovered how difficult that is, and the suggestion that it would be easy to opt back in item by item may run into exactly the same difficulties.
Yvette Cooper
My hon. Friend makes a really important point. Indeed, those concerns were raised by the House of Lords in its detailed and thorough report on the opt-out and opt-in process about the risks in the negotiating process. That is why it is important—I shall come on to this—to have those proper assurances in place and to have proper information about the attitude of other European member states across the Council and about the attitude of the Commission. I shall give way to the hon. Member for North East Somerset (Jacob Rees-Mogg) if he still wants to intervene, but then I wish to make progress.
Jacob Rees-Mogg
Accepting that it is important that there are extradition arrangements with other countries, does the right hon. Lady not think that it would be possible—since Lisbon, the European Union has legal personality—to negotiate an agreement between the United Kingdom and the EU that covers this, but is not justiciable in the European Court of Justice?
Yvette Cooper
The Government have said that that would not be possible and that they would have to go back to the previous convention. Under that extradition convention, we experienced some long delays, including taking 10 years to send a suspected terrorist back to France. I do not think that is acceptable, and I do not think that the public would think that it was acceptable for us to have a French terrorist, or someone wanted in France, in this country and being unable to send him back quickly to face trial and to face justice.
Yvette Cooper
I shall give way once more, then I want to make progress, as many Members wish to contribute to the debate.
Mr Jenkin
We still do not know whether the right hon. Lady is in favour of opting out or not—it sounds like not.
Yes, it might be more difficult to extradite some people from the European Union to this country, or it might be easier if we had a bilateral agreement. Were we to maintain sovereign control of all our extradition arrangements we would be able both to extradite whomsoever we liked and to deport them, and we cannot do that if we are more and more subject to the European Court of Justice.
Yvette Cooper
In fact, having sovereign arrangements with no ability to extradite without having to go through a very long, legal process that may last 10 years does not help us to get rid of the suspected criminals whom we want to send back to Europe, and it does not help us to bring back to Britain the suspected criminals who have fled abroad. For very many years, people fled to the costa del crime, and Britain was unable to bring them back.
I shall make some progress, as I want to refer to the points that hon. Members have made about the measures that the Home Secretary wants to opt out of. Again, it is hard to take a full view without proper scrutiny and without Select Committees being able to look at this. The Prime Minister described this last week as
“a massive transfer of powers”.
The Home Secretary has described it as an historic moment, and said that we should celebrate the sovereignty involved in this particular opt-out process and in the Command Paper that she published last week. But we should look at the details in the explanatory memorandum of some of the things that we would opt out of. Britain would no longer be expected to have a good practice guide on mutual legal assistance in criminal matters, but we will keep one anyway as part of other plans for the European investigation order. Nor will we sign up to the European judicial network, which offers a point of contact in each country for judicial queries, but that, too, will still happen anyway, again because of the European investigation order. We will not sign up to having someone to act as a contact point for cross-border allegations of corruption, but UK bodies plan to do so anyway. We will not sign up to receive a directory of specialist counter-terrorism officers, but we are already doing it so we will carry on doing so. I suspect somebody will send it to us in the post anyway. We will not sign up to a whole series of accession measures which apply to other countries and did not cover us anyway. Time and again we are opting out of dozens of measures that either do not operate any more or cover areas where we plan to carry on regardless, whether we are in or out.
Mr Clappison
I am grateful to the right hon. Lady for giving way again. Of the 130 measures, are there any at all that she does not want to opt back into?
Yvette Cooper
There is a whole series of measures in respect of which it will make no difference whether we are in them or out of them. We have no objection to opting out of a series of redundant measures. However, there must be proper assurances and guarantees about the measures that we need to opt back into. Rather than a massive transfer of powers, this is, as the Prime Minister said, more like a massive transfer of hot air. There is not the substance in this to justify the Home Secretary’s parade of historic significance and celebration of sovereignty.
Although the Home Secretary has not set out any major benefits from opting out of these measures, we know that there are risks to the serious measures where even she now admits we need to opt back in. She has no guarantees in place and no assurances from the Commission or the Council that at least on the most important measures—the arrest warrant, data sharing, joint investigations—we will be able to opt back in. She will know that the House of Lords pointed out that when Denmark exercised its opt-out,
“the Commission had frequently refused permission for the Danes to conclude agreements in certain areas”.
Nor has she any guarantee on the timetable or, for example, whether we will simultaneously be able to opt back into the European arrest warrant, whether there will be a gap in its operation, or whether complex or risky transitional arrangements will need to be negotiated.
Given how important the Home Secretary herself has said the European arrest warrant and various other measures are, surely it is important to ensure that there is no gap in operation. She can provide no assurance for the police that there will no interruption, therefore, of their use of the arrest warrant. The House of Lords report also said that
“the Government have not provided us with even a summary of the reactions of the other Member States to the Government’s intention to exercise the opt-out”
which
“may be critical in assessing the potential success or otherwise”
of the UK’s negotiation to rejoin particular measures. Surely on these most important measures she should seek assurances from the Commission and the Council before she asks this House to opt out.
Mr Cash
I am grateful to the shadow Home Secretary for giving way; I was in contest with her in the days when I was shadow Attorney-General and she was in government. She will recall the 17th report of the European Scrutiny Committee in 2001 and she will also recall that there was very severe criticism by that Committee of the manner in which this was all done with respect to the European arrest warrant. If she does not remember, no doubt she can look it up. With respect to the proposal before the House and the official Opposition amendment, how does she reconcile the words in that amendment with article 10 of protocol 36? I am sure she will remember what that says.
Yvette Cooper
As always, I bow to the detail of the hon. Gentleman’s memory. I confess that it is true—I cannot remember the details on page 37 of the 17th report of the European Scrutiny Committee from 2001, though I am sure that if I gave way to him again, he could quote precisely to me, line by line, the detail of its conclusions.
Our position is simple. We think the European arrest warrant is so important that we should be getting assurances. We should be doing as the House of Lords suggested. We should be getting the summary of reactions of the other member states to the Government’s intention. We should be getting assurances from the Commission that it will look favourably on getting us back into the European arrest warrant simultaneously and that we do not have a gap in operation.
Yvette Cooper
I hesitate to give way to the hon. Gentleman because I suspect he will quote from page 37, but I will do so briefly, then I want to make final progress.
Mr Deputy Speaker (Mr Lindsay Hoyle)
I hope that the hon. Gentleman’s intervention will be brief.
Mr Cash
Basically, the European Scrutiny Committee, under the chairmanship of the Government at that time, said:
“The presentation of radically changed texts in the last days of a Presidency, with calls for their immediate adoption, does not appear to us to be an appropriate way of determining changes at EU level to the criminal law…The legislative process should be open and transparent and not one of secret bargaining.”
Yvette Cooper
The hon. Gentleman probably does need to recognise that things have moved on slightly since 2001, and there are some important issues for us to resolve today.
As I said, we have no objection to the opt-out in principle. We did negotiate the option in practice. Nor do we have any objection to opting out of a series of redundant or superseded measures, which the UK does not participate in anyway. But we do have serious objections to going ahead with an opt-out without the assurances about the serious measures that we need to opt into. We have serious objections, too, to being asked in the House of Commons to adopt and endorse a half-formed strategy, which may or may not change by October.
The Home Secretary is asking the House of Commons to endorse her opt-out, to endorse her opt-in, to accept that a possible future Conservative Government will opt-out again, and to recognise that Select Committees may still shake it all about anyway. This is a massive game of hokey cokey. She is asking us to vote for the hokey and for the cokey, the hocus and the pocus, the smoke and the mirrors, and it is not an honest debate with Parliament about the important issues of crime and justice. The Home Secretary is asking for a blank cheque from the House of Commons today: a blank cheque on which of the measures she will end up opting back into; a blank cheque for European negotiations with no guarantees in place for the police. To those who want bigger changes in the relationship with Europe, she says, “Vote to opt out, and don’t worry yourselves about the detail to opt back in.” To those who support crime fighting, she says, “Vote to opt out, then leave me to negotiate. It will be fine.” There is no real substance for those who want to opt out, and a lot of risk and uncertainty for those who want to opt back into the series of measures.
This is a parliamentary charade: a promise of a massive transfer of powers that is not real; a promise that European crime-fighting powers are safe with no guarantees; a call to endorse the Home Secretary’s strategy with no proper scrutiny; and a vote that could wait until October. That is why we will not support her strategy tonight.
Mr John Redwood (Wokingham) (Con)
Today’s debate should be about the very future of the United Kingdom’s democracy. I and many of my right hon. and hon. Friends believe that one of the great duties of a state is to settle on a fair and strong criminal law and to ensure that the crime-fighting resources are put in to maintain that law. We also believe that, in an increasingly global world of criminal activity, those functions can be properly discharged by the Home Secretary in Cabinet and by the police forces of our country only if we have proper co-operation and collaboration arrangements with other countries abroad. We need those co-operation arrangements, not just with other European countries in the European Union or the few countries in Europe not in the European Union, but with every country around the world. I am pleased to say that thanks to successive Governments and Home Secretaries we do have in place a set of pretty good arrangements with the major countries, and we have demonstrated our ability to negotiate successful arrangements for extradition and mutual crime fighting with those countries that are not in the European Union and to find ways of doing that with countries in the European Union.
Let me make it clear at the outset that those of us who do not wish to opt back in to European criminal justice measures are no more soft on crime than anyone else in the House. We believe that there can be an alternative way of ensuring proper co-operation and collaboration with France, Germany and the other leading European Union countries, just as we have those successful co-operation arrangements with countries that are outside the European Union.
Our objection to any of these measures, including the European arrest warrant, is not necessarily about the measure itself, and certainly not its purpose, but about the way in which the institutional structure is developed to back up the measure. We are trying to protect our democracy, this Parliament and future Home Secretaries from the event that the European Court of Justice, once we have opted into any of these measures, can use that opt-in as a device for making good criminal law in Brussels and in the Court that this House and the British people might fundamentally disagree with.
Dr Huppert
The right hon. Gentleman talks about alternatives to some of these measures. Is he aware of the formal evidence given by the police, who said that alternatives to the European arrest warrant
“would result in fewer extraditions, longer delays, higher costs, more offenders evading justice and increased risk to public safety”?
Does he accept that that is the police’s advice?
Mr Redwood
Of course we can find police and others who take the hon. Gentleman’s view, but I think that it is putting very different weights in the balance. He is giving us an immediate topical problem of view, and I am giving him something fundamental about a national democratic state and the future good government of our country. When I weigh those in the balance, there is no issue for me; of course we must protect our national democracy and then work away at any imperfections there might be in the cross-border arrangements because we have put democracy first.
Martin Horwood (Cheltenham) (LD)
If the right hon. Gentleman is challenging the fundamental idea of an international arrest warrant operating among the 28 member states, is my maths correct that he would have to replace it with 784 bilateral extradition treaties, and that is just on one of these justice and home affairs measures?
Mr Redwood
My maths tells me that there are far fewer countries in the European Union than in the rest of the world, and we manage to have pretty good arrangements with the rest of the world. I have every confidence in the ability of the current and future Home Secretaries to restore our bilateral arrangements with the other 27 members of the European Union just as surely as we have bilateral arrangements with most of the other 200 countries in the world. The hon. Gentleman will remember that there was a time before this country was in the European Union, and certainly before we were in this current set of criminal justice arrangements, when we had perfectly good working relationships. I am sure that he and I would have liked them to be improved—one can always improve and make progress—but he should not be so defeatist about the ability of our Ministers and civil servants to defend Britain’s interests and come up with a good answer.
Chris Bryant (Rhondda) (Lab)
The right hon. Gentleman suggests that it would be perfectly fine to abandon the European arrest warrant and rely on bilateral arrangements because we have such wonderful arrangements with so many other countries in the world. The Russian Federation, for instance, is covered by the previous version of the EAW, the European convention on extradition, but we have not managed to get Mr Lugovoy back, have we?
Mr Redwood
To find a country where there is a problem does not disprove my case. My case is that if there is good will—[Interruption.] The hon. Member for Rhondda (Chris Bryant) seems about to allege that all members of the European Union cannot be trusted and that we can do a deal only with the Commission. I have more faith in France and Germany than he does. I think that it would be in France’s and Germany’s interests, should Britain opt out of the European arrest warrant, to put in place really good arrangements, because they will want them to operate for them in Britain just as surely as Britain needs the arrangements to operate in France and Germany. As someone who does not like centralised European government arrangements, I find that I am often warm-hearted towards, and supportive of, the French and Germans and believe that we can make very good arrangements with them because it is in our mutual interests to do so. It is the rapid pro-Europeans who so dislike our French and German partners that they say that it all has to be bound up in central European government because we cannot trust France and Germany to come to a sensible arrangement with us over these important matters.
What is it about our country that these people do not like? What is it about our national democracy that they wish to tear down? A previous Government negotiated in good faith the third pillar arrangements for criminal justice. The idea of the third pillar was that, yes, we wanted enhanced co-operation and collaboration with our nearest neighbours, and of course I accept that there are more likely to be issues with France, Belgium and Holland, because they are very close, than with countries in Asia, so there is a reason for enhanced collaboration. We worked out a system in which we could have better procedures, enhanced collaboration and more co-operation, based on the mutual agreement of the states involved, not based on an independent united states of Europe Government, which is emerging as a result of this and other exercises but not from an independent court where there is no democratic accountability to the British people.
In recent months, we have had case after case from the European Court of Human Rights that this country and the British people have deeply disliked. There is very little we can do about that. If we give further enhanced powers to the European Court of Justice, we will have another series of such decisions from the European Court of Justice that we do not like. All major political parties will have to go to the electorate, shrug their shoulders and say, “We can do nothing about it. We still expect our salaries and to sit in the Parliament of the United Kingdom, but don’t expect us to revise this. We no longer run the criminal law and can no longer change the law in the way you want or expect. That is now settled in Brussels. Even your MEPs probably won’t be able to sort it out because the European Court of Justice is supreme above all elected officials and can provide the motor for making decisions on these crucial matters.”
The case before us today is very simple. Those who vote for opt-ins vote for European centralised justice and for the uncertainty of the European Court of Justice, which will in due course make decisions that the British people and their elected representatives cannot tolerate. Those who vote for opt-ins vote because they do not like this country’s democracy and they vote themselves out of a job.
Those of us who vote for the opt-out, and nothing but the opt-out, vote for the reverse. We vote for the House to take the responsibility. We vote to trust successive Home Secretaries. We vote to trust the judgment of the British people to judge their Governments and Home Secretaries, elect those who do a good job and throw out of office those who do a bad job. That is a true democratic system.
I do not want to live in a country where criminal justice has been transferred to independent experts abroad whom we cannot sack or influence. I do not want to go to my electors and say, “As a result of the vote we have had tonight and what happened subsequently, another major power of this country’s democracy has been seceded to the European Union in perpetuity in such a way that we can never get it back.”
It is a simple issue. I urge the House to vote for the opt-outs and against the opt-ins.
Keith Vaz (Leicester East) (Lab)
It is always a pleasure to follow the right hon. Member for Wokingham (Mr Redwood) on a subject about which he knows so much and speaks with such passion.
My primary interest in contributing to this debate is to talk about the process that has been adopted and speak in support of the amendment tabled in the name of the Chairs of the Liaison Committee, the European Scrutiny Committee, the Backbench Business Committee, myself and others. However, I should also say that it is pretty rare—I am trying to think of a single other such occasion—for many of the Chairs of the Select Committees to come together in this way to amend a Government motion.
Our amendment has had to change over the past 48 hours or so because the Government’s motion changed. I should thank the Home Secretary for engaging with the Select Committee Chairs following her statement to the House on Tuesday. The Government’s original motion did not allow for any scrutiny by Select Committees before a vote of the House. The new motion, which the right hon. Lady tabled on Friday, allows for scrutiny and permits the Select Committees to scrutinise the Government’s proposals so that the House can vote on the matter at the end of October.
I say “permits the Select Committees”, but throughout the process the Government have always said that scrutiny by the Select Committees was of paramount importance in dealing with this issue. In fact, in a letter to the Chair of the European Scrutiny Committee on 15 October 2012, Lord Boswell said:
“This Government has done its utmost to ensure that Parliament has the time properly to scrutinise our decisions relating to the European Union and that its views are taken into account.”
On 20 January last year, the Minister for Europe said this in a written statement: “I hope that today I have conveyed to the House not only the Government’s full commitment to holding a vote on the 2014 decision in this House and the other place, but the importance that we will accord to Parliament in the process leading up to that vote.” I was therefore very surprised, when I heard the Home Secretary’s statement on Tuesday, to find that the Select Committees had, in a sense, been shunted to one side and not been given the opportunity to scrutinise the Government’s decision.
I accept that this is a long and difficult process. Anyone who has served as Minister for Europe—I see quite a few former Ministers for Europe dotted around the Chamber—will know that dealing with the European Union is not a piece of cake. It takes a huge amount of time and effort to get one’s negotiating stance together, especially when one is putting forward a view that will not be accepted by our European colleagues. However, if the Government have had a long discussion about these matters, the Home Secretary can expect the Select Committees to want to scrutinise them. The Justice, Home Affairs and European Scrutiny Committees all have right hon. and hon. Members—I see here the hon. Members for Rochester and Strood (Mark Reckless) and for Cambridge (Dr Huppert) and my hon. Friend the Member for Birmingham, Selly Oak (Steve McCabe)—who are seeking to ensure that their views are put forward.
As a result of the Government’s decision last Tuesday, of which we had absolutely no notice, we have had to change the business that the Committee had agreed in order to pursue this when we come back in September. There will be only two sitting weeks in September to scrutinise every one of these proposals. Then there is the natural break for the party conferences, and the House will also come back for two weeks in October. By and large, Select Committees, sit once a week. Their members are very reluctant to sit more than once a week because they are all assiduous Members of this House who have other things to do, usually serving on other Committees. That means that if we devote all our time to this cause, we will have just four sittings in which we can scrutinise the proposals.
As the Home Secretary knows, a lot of business is going on in the Home Office. I do not have to tell her that, because she is one of the most active Home Secretaries making structural changes to how policing, immigration and counter-terrorism are dealt with. She has set the Select Committee on Home Affairs a huge amount of work over the past three years. We will have to put that to one side in order to spend our time scrutinising these proposals. I am sure that that will also apply to members of the other Committees.
Today’s motion still does not give us enough time. There is not enough time before 31 October to be able to do justice to the kinds of things that the right hon. Member for Wokingham talked about—not just individual matters but fundamental issues of principle. However, we will do our best. As I promised the Home Secretary last week when I met her, the Home Affairs Committee, subject of course to the views of its members, will have a report for her by the end of October, but to do so by then will be extremely tough.
My question to the Home Secretary is this: why should we have a vote tonight, given that we got these proposals only on Tuesday last week? What is the point of asking the House to deliberate on these matters before the Committees have had the opportunity to discuss and to scrutinise them? She says that she needs a mandate in order to be able to show the Commission that the House is prepared to opt out.
Mark Reckless
Is not the motion somewhat confused between two distinct issues: first, whether we should exercise the block opt-out; and secondly, what we may or may not then want to opt back into? Would not the right thing to do tonight be just to vote on the block opt-out, as per the amendment that I believe the right hon. Gentleman has tabled with the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith)?
Keith Vaz
The best course of action would have been to take note of what the Government have done without making a decision as that would have given the whole House an opportunity to come to a view that these matters need to be scrutinised.
Of course, we need to opt out of some of the measures, for the reasons given by the hon. Member for North East Somerset (Jacob Rees-Mogg), the shadow Home Secretary my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper) and others. Some of the measures are obsolete and, to be frank, I did not know that until I heard about it today. I have not had the chance to look through the measures and I am not sure that every other Member has, either.
I would have preferred a take-note motion and not a Division over something that I think the House as a whole supports: the need for us to look again at European legislation and to decide very carefully whether or not we want to opt into some of the measures again. The Home Secretary has missed that opportunity so, sadly, we will divide, which I think will send mixed messages to the European Union about what this House really intends.
I have a point of substance about the European arrest warrant. I have heard what my right hon. Friend the shadow Home Secretary has said, but I am concerned about the way in which the warrant operates. I am particularly concerned about those cases mentioned by right hon. and hon. Members that highlight the disproportionate way in which other countries deal with it compared with what we do. We have more surrenders than arrests and it is better for our European partners than it is for us, according to Home Office statistics.
I accept all the cases that have been mentioned by my right hon. Friend the shadow Home Secretary and the Home Secretary; I think the Front Benchers agree on them. On the very serious cases, we need co-operation with our European partners. It would not be practicable to negotiate with each one.
The problem, however, rests with the judiciary in some of these countries, including Poland. So many of the cases in this country relate to Poland and are very minor. I read of someone who had the European arrest warrant issued against him because he had stolen a wheelbarrow. Another person who gave false information when obtaining a loan of only £200 from a Polish bank has also been subject to the European arrest warrant. Our courts are being clogged up because of judicial decisions. I had hoped that our Committee could have gone to Poland to meet its chief justice to try to understand exactly why this is happening, but we will not have the time to do that now, because this House goes into recess in four days’ time and we will not be back until September.
Mr Cash
I am grateful to the right hon. Gentleman for the way in which he is making the very important case for our mutual amendment. Does he accept that one of the real problems is not just the question, as the Home Secretary has said, of whether our own laws would be involved and whether we would be able to make appropriate amendments in this House, but that the definition of judicial authority is absent from the European arrest warrant? I suspect that that is the reason why it is so difficult to deal with the examples the right hon. Gentleman has given. It is a question not of whether we can amend the laws in this House, but of whether the European arrest warrant itself does the job of creating proper judicial authorities.
Keith Vaz
The hon. Gentleman is absolutely right. I want to give the Home Secretary the benefit of the doubt. The proposals she has announced today may represent the right approach to deal with the issues raised by the hon. Member for Esher and Walton (Mr Raab) and others, and her amendments to domestic law may be sufficient, but we do not know whether that is the case, because we need time to consider her proposals. Unless there is engagement with the judiciary in other countries, anything we do in our domestic law will, to be frank, not make any difference.
George Eustice
I understand the right hon. Gentleman’s point, but the Government also need time to negotiate these opt-ins if they are to get them right, so the longer his Committee has to deliberate on these matters, the more difficult it makes it for the Government. I am on the Environment, Food and Rural Affairs Committee and we frequently meet twice a week. This is a very important issue, so could his Committee not just commit, for this short period, to that extra day a week in order to get the job done effectively?
Dr Huppert
I thank the Chair of the Select Committee for giving way. Just to show that we are indeed doing the work, perhaps he could put that point to us on Wednesday, as we are also meeting then. We are meeting twice a week at the moment, and we can continue to do so.
Keith Vaz
The hon. Gentleman is one of the most assiduous attenders of the Home Affairs Select Committee, and yes, we are meeting twice this week. Tomorrow, we are taking evidence from the Home Secretary. The perfect time for us to begin our inquiry would have been the point at which she gave evidence to the Committee, but before having this vote. I can give her notice that we will be asking her about these matters tomorrow, although I am sure that she knows that already, bearing in mind the composition of the Committee. That is the approach we should have taken. There is no need for this mad rush or for instant decisions. Why do we need to rush this through the House and get it all over with before the summer recess? I see no reason to do that, given that we have until 1 December 2014 to vote on the matter.
Steve McCabe
Has my right hon. Friend reflected on what it would do to the Home Secretary’s credibility if she were to press on with telling Europe what she was going to opt back into, only for the Select Committee and the House subsequently to come to a different view? Would not that entirely undermine her negotiating position?
Keith Vaz
My hon. Friend is absolutely right. It is nonsense to suggest that the other member states of the European Union somehow do not know what happens in this House, do not read Hansard, do not have access to BBC Parliament and therefore have no idea what the Home Secretary has done so far, and that all this will come as a total surprise to them on 31 October. Of course everyone is aware of where the Home Secretary stands. UKRep has been prepared for the negotiations, and everyone knows what this Government want to opt into and out of.
We have here an opportunity for the House to move in one direction, just as we did on the private Member’s Bill that was introduced by the hon. Member for Stockton South (James Wharton). No Member voted against his Bill. That sent a clear message to the country and to the rest of the EU that something had to be done on EU reform. Similarly, we could send one strong, powerful message if we did not have a vote today. I hope that, having listened to this debate, the Home Secretary will accept the amendment that has, most unusually, been tabled by most of the Chairs who sit on the Liaison Committee. That would strengthen her hand enormously in the negotiations.
Mr William Cash (Stone) (Con)
This has been a classic example of scrutiny going wrong, not from the point of view of the European Scrutiny Committee, the Home Affairs Committee or the Justice Committee, but from the point of view of the way in which the Government have handled it. We have been through these matters over the past week, and they are being given a great deal of consideration. I am glad to say that we have had the opportunity to meet the Home Secretary, as the right hon. Member for Leicester East (Keith Vaz) described. She has listened, and made changes to the original motion, which would have severely prejudiced the scrutiny by this House that takes place in line with the principles that my right hon. Friend the Member for Wokingham (Mr Redwood) set out. Those principles are fundamental to the running of our affairs in this House that relate to the European Union. There was a danger that the scrutiny process set up under the requirements of our Standing Orders was going to be completely bypassed, but the Home Secretary has listened and we have made some progress.
There is another amendment, to which the right hon. Member for Leicester East referred, and I urge the Government to accept it. If they do not do so, I strongly urge Members on both sides of the House to vote for it. It would be unfortunate if the Government were obdurate and said that they were not prepared to accept it, in opposition to the views not only of three Select Committee Chairmen but of many others who form part of the Liaison Committee, who I have reason to believe would want to support the amendment.
The Government’s motion states that they would
“seek to rejoin measures where it is in the national interest to do so”.
As it happens, at this juncture nobody is in a position to form a judgment about what is or is not in the national interest because the scrutiny process has not taken place. If we are to have a scrutiny process that means anything, combining the three views of the respective Select Committees, it is simply not possible or practical for a decision to be taken until those matters have been properly considered.
Mark Reckless
I am not sure whether my hon. Friend has noticed some consternation among Liberal Democrat Members who think it is always and everywhere in the national interest to opt into anything that the European Union is doing.
Dr Huppert
The hon. Member for Rochester and Strood (Mark Reckless), who serves on the Home Affairs Committee with me, is heavily wrong in this case, but that is not what I wished to say. Does the hon. Member for Stone (Mr Cash) believe that one cannot hold a position on something until it has been through a Select Committee? Select Committees do wonderful work but there are other ways to find things out. Not every single decision of this House goes through a Select Committee—that might be a bit slow.
Mr Cash
If that were the case for scrutiny, I would simply refer the hon. Gentleman to the Standing Orders of this House that make it crystal clear that the scrutiny process must be as good as it possibly can be. Indeed, there is an inquiry into the scrutiny process to improve it even further in line with concerns that have been expressed by the House on a number of occasions. The process is also being reviewed throughout Europe through the Conference of Community and European Affairs Committees of Parliaments of the European Union. Everybody is anxious to ensure that European scrutiny takes place properly, precisely because of the democratic basis on which such decisions must be taken.
Mr Clappison
My hon. Friend the Member for Rochester and Strood (Mark Reckless) does not look completely overwhelmed at being told that he is heavily wrong by the hon. Member for Cambridge (Dr Huppert), but never mind that. Before my hon. Friend the Member for Stone (Mr Cash) moves away from the issue of national interest, is it not part of our national interest for our law to be determined in this House of Commons and subject to the jurisdiction of our judges rather than European judges?
Mr Cash
Indeed, and I personally take that view, which lies at the heart of the matter that I raised with the right hon. Member for Leicester East. The expression “judicial authority” leaves a great deal to be desired and has given rise to a lot of problems not only in this country but elsewhere throughout Europe. It is not just a question of whether we adjust our domestic law in certain respects, but of whether the European arrest warrant can properly fulfil the judicial role allocated to it. As I said earlier, other matters such as dual criminality must also be considered. Many questions looked at in 2001 were, as the shadow Home Secretary knows, considered by the European Scrutiny Committee, although she was not over-anxious to go into the detail. No doubt she will when she has an opportunity to come back into the Chamber, and she is very welcome to do that later on.
As the right hon. Member for Leicester East said, the original motion was withdrawn but it did not mention the role in this process of the European Scrutiny, Home Affairs and Justice Committees, despite repeated promises that those Committees would be consulted. There were also undertakings that we would be given explanatory memorandums on measures covered by the opt-out by the middle of February. In my view, and that of my Committee as a whole, the Government’s failure to provide explanatory memorandums in line with their timetable has been the major factor impeding Select Committee consideration of the block opt-out.
The history of those various exchanges and undertakings is set out in our report, “The 2014 block opt-out—engaging with Parliament”—that has been seriously lacking—which is tagged in this debate along with the Government’s response.
In my view, the way the European Scrutiny Committee and the other Committees have jointly sought information from the Government is an excellent example of the various elements of the scrutiny process working together in a consistent and co-ordinated manner. In that context, the fact that the Government’s revised motion does not provide for a scrutiny stage to be concluded by the end of October is to be welcomed. The amendment to the revised motion, which we have tabled jointly, centres on the scrutiny process and aims to ensure that the Select Committees can undertake meaningful scrutiny of the Government’s proposals. I hope that the Government will listen to that.
As Chairs of these Committees, we are concerned that the inclusion of the words
“on the set of measures in Command Paper 8671”
is likely, implicitly or explicitly, to endorse the Government’s list of 35. The amendment would simply leave out these words, so as to avoid a prejudgment of the Committee’s conclusions. That was the substance of the point made by the right hon. Member for Leicester East.
Chris Bryant
Does that mean the Government would have to come back to the House with a proper debate on the precise list of opt-in measures, rather than the impenetrable document they have provided, and make a coherent argument?
Mr Cash
The Command Paper sets out, very late in the day, various lists, proposals, explanatory memorandums and the rest of it, effectively bouncing the Committees and shunting straight past the scrutiny process, in defiance of the promises and undertakings given months ago. The Chairs are deeply concerned about this attempt to push the scrutiny process to one side. The European Scrutiny Committee, which I Chair, has a specific job to do under Standing Orders that cannot be brushed aside by the Government or anybody else. Those are the Standing Orders of the House. The other two Committees will want to look at policy questions, but we consider proposals more on a document-by-document basis, and there are 130-odd of them, so the matter has to be dealt with within the framework of Standing Orders.
I look to the Justice Secretary, who is sitting on the Front Bench, knowing in my heart that he wants to ensure that the scrutiny process works effectively, and I invite him, in consultation with the Home Secretary, to accept our amendment and put in place that proper scrutiny process. There is no great hurry. What puzzles many Members is why an attempt has been made to bounce the House, as it were; we are puzzled about why this had to be rushed, and we have had no explanation. We simply do not understand the reasons. We do not see why there has to be a vote either. Many people think there should not be one.
In January, the European Scrutiny Committee requested that the relevant Committees should have sight of the Government’s impact assessments on the various measures under consideration. Will the Home Secretary and the Justice Secretary supply us with this information as soon as possible? It is all part of the scrutiny process. If the Government really want transparent and democratic systems that work in the interests of those whom we have the honour to represent, it is essential that we do this properly.
Sir Alan Beith
Did the three of us—the three Committee Chairs—not warn the Government repeatedly against allowing this situation to arise by asking them to produce the memorandums in the early part of the year?
Mr Cash
This is driven not by hostility, but by basic common sense: it helps the democratic process and the working between the Government and the Select Committee system, whose role has been enhanced recently, to work with the grain. That is the point: this has been working against the grain. I know that my right hon. Friends the Justice Secretary and the Home Secretary, not to mention the Prime Minister, are conscious of these questions. If mistakes were made in trying to rush and not give scrutiny the opportunities that are needed in the interests of those whom we serve, it is essential to get this right. I urge them strongly to accept the amendment in the name of the Chairmen of those Committees, and on which the Chairmen of other Committees have expressed an interest too.
The Opposition’s amendment is a rather curious state of affairs, something to which I referred when I intervened on the shadow Home Secretary. I simply put it on the record like this: the full sequence would be that the United Kingdom would have to notify its block opt-out decision six months before it could notify which measures it would seek to opt back into. The specific order is clearly set out—I was not trying to bounce the right hon. Lady—in article 10 of protocol 36, and has been confirmed by the Commission in response to a question from the European Parliament. We know what the sequence should be, so it would not be possible for the Government to notify the European institutions of their intention to exercise the block opt-out once, to use the wording of the amendment, those institutions
“have committed to the UK’s ongoing participation”
in the measures concerned. There is something wrong with the wording of the Opposition’s amendment, because it does not fit with article 10 of protocol 36. Anyone can make a pedantic point, but this goes to the heart of article 10 of protocol 36.
Chris Bryant
But article 10 of protocol 36 also says that the Commission will, wherever possible, seek to ensure that there is a maximum degree of participation by the United Kingdom in any measures it wants to opt into. The difficulty arises in that sometimes the precise package of measures may not be a package of measures that works as far as the Commission is concerned— the point Commissioner Reding has already made to the Justice Secretary in private conversation.
Mr Cash
I do not know about these private conversations, and I do not know whether Prism has been at work to enable the hon. Gentleman to know what they consisted of. [Interruption.] Oh, he told you. Well, be that as it may, the fact is that article 10 of protocol 36 is clear, and has been confirmed by the Commission as such in a response to a question in the European Parliament. I will leave it at that, but it would be strange for us—I am talking about the House as a whole—to end up voting for an amendment tabled by the official Opposition, with all the expertise at their disposal, that was inherently wrong.
George Eustice
My hon. Friend is making an important technical point, but is there not a more fundamental objection? The Opposition’s amendment is tantamount to saying that we must first ask the permission of the European Commission before we can exercise the treaty right that we have for this opt-out. It is basically saying that we should wait and see what the Commission thinks before we make a decision.
Mr Redwood
I am very attracted to amendment (b), standing in the name of my hon. Friend and the other two Committee Chairmen. I note that we have three senior Committee Chairmen, all of different parties, supporting it, and I think I heard those on the Labour Front Bench implying that they, too, supported it. Can my hon. Friend say whether this is now the view of the House?
The Lord Chancellor and Secretary of State for Justice (Chris Grayling)
indicated assent.
Chris Bryant
On a point of order, Madam Deputy Speaker. As I understand it, the Justice Secretary just nodded to the assertion made by the hon. Gentleman. I think he was assenting to the Government’s acceptance of the amendment tabled in the name of the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith). If so, I would have thought it would be in order for the Justice Secretary to make that view known for the whole House.
Madam Deputy Speaker (Dawn Primarolo)
Surprisingly enough, there are no private conversations in the Chamber; Members are supposed to have them outside. That is not a point of order for me, in the sense that I saw no indication—and have heard no indication—of the Government’s attitude to the amendments, unless the Justice Secretary wants to correct me, although he is not obliged to.
Chris Grayling
Further to that point of order, Madam Deputy Speaker. It might be helpful to the House to say—as I was intending to in my winding-up speech, but this will stop everybody making the point all the way through the debate—that we will accept the amendment standing in the names of my hon. Friend the Member for Stone (Mr Cash), my right hon. Friend the Member for Berwick-upon-Tweed (Sir Alan Beith) and the right hon. Member for Leicester East (Keith Vaz).
Sir Alan Beith
Further to that point of order, Madam Deputy Speaker. Can I claim a reward for getting my amendment accepted before I have actually moved it?
Madam Deputy Speaker
Sir Alan, you were just fractionally ahead of me. I seem to recollect that Mr Speaker said that the amendments would be formally moved at the end of the debate. Perhaps this is an indication that we should have the Government opening and closing a debate before we actually have that debate, so that we know where we stand. Mr Bryant, thank you very much for your point of order—
Madam Deputy Speaker
For a change, but perhaps we could return to Bill Cash.
Mr Cash
I really have no more to add, because this has been a highly satisfactory, if slightly informal, way of proceeding. I am extremely glad that the Justice Secretary has said that the Government will accept amendment (b), because it demonstrates that, even in the inquisitorial system that we have, accountability and good sense can run together.
Wayne David (Caerphilly) (Lab)
The decision before us this evening is important—I think. I say that because the significance of the Government’s accepting amendment (b) is taking a little while to sink in, but we shall see.
This is an important debate. I do not approach this issue in an ideological way. This is not about whether we are for Europe or against Europe; it is about whether we come to a balanced decision that is in the best interests of the United Kingdom. I have to be honest: I have some reservations about the jurisdiction of the European Court of Justice. I well remember the discussions inside Government when Labour was in power about whether we should dismantle the third pillar and go along with the suggestion that it should incorporated in the treaty on the institutions of the European Union as a whole. I still have some reservations and concerns about that.
It is also important to recognise just how significant the measures we are debating are, particularly with regard to the European arrest warrant. Whatever concerns we might have—for example, about the European Court of Justice—it is important for us to look practically at what the practitioners in the field say. I am thinking in particular of the police. It is very significant indeed that the Association of Chief Police Officers has said quite emphatically just how important the European arrest warrant is in tackling international crime.
It is worth looking at the hard-core statistics and recognising that the UK has deported more than 4,000 criminals under the European arrest warrant, 95% of whom are foreign nationals removed from the UK. At the same time, more than 600 alleged criminals have been returned to the UK to face British justice for crimes committed here. It is important to recognise what ACPO emphatically said in its evidence to the House of Lords EU Committee. The summation put the position of ACPO, and indeed many others, very well:
“The majority of our witnesses considered the EAW to be an important PCJ measure that brought benefits to the United Kingdom. They said that it had led to the creation of a more efficient, simpler, quicker, cheaper, more reliable and less political system of extradition”.
That is a very important statement, and I think anyone genuinely concerned about tackling international crime effectively should be wary about rejecting such concerted advice. It is important for us to recognise that, but that is not to say that the European arrest warrant is perfect—far from it.
Many people in the evidence sessions held in the House of Lords indicated that there was room for improvement. It is significant that the Home Secretary specified in her statement this afternoon a number of unilateral measures that the British Government would like to take to improve the workings of the EAW. I would suggest, however, that it is not simply a question of us wanting to improve the EAW. As the Home Secretary said in response to my question, it is important to have a dialogue with individual member states, but it is also important to have a dialogue inside the institutions of the European Union. That is why I am concerned that the general rhetoric and bellicose attitude of this Government towards things European does not put them in a good position to negotiate inside the tent practical arrangements relating to the EAW and many other matters.
George Eustice
The hon. Gentleman has highlighted his agreement with the Home Secretary that the European arrest warrant as it stands is not perfect and could be reformed and improved. What would he change to make it acceptable to him?
Wayne David
One of the main concerns is that there are many minor infringements. The Chairman of the Home Affairs Select Committee referred to the example of the Polish wheelbarrow theft. That provides a clear practical example of where people realise that systems such as this need to be changed. A number of practical points have been put forward, and I think Members should examine them very carefully.
Genuine concern has been expressed about the practical workings of the EAW, but the central point I want to make this afternoon is that the nature of crime has changed markedly over the last few years. We all realise we live in a global economy, but we are also seeing international crime the like of which we have never seen before. The trend towards the internationalisation of criminality is, frankly, likely to continue. I well remember asking the then chief constable of Gwent, “Where is the focal point for criminal planning and masterminding in Gwent?” and the answer was that it was “in the Balkans”. That brought home to me a very practical sense that if we are serious about neighbourhood policing and tackling criminality in our own areas, we have to be concerned not just about the national picture but about the international picture, too. The European Union, and the European arrest warrant in particular, represents a very positive step towards addressing this practical reality.
As I say, practical reality is of primary concern, and it has to be placed against other measures about which we might not be so enthusiastic, such as the increasing jurisdiction and powers of the European Court of Justice. However, on balance, I am confident that we should support the proposal to opt into the measures.
The Government gave the clear impression that there would be far more consultation and debate in the House than has actually taken place. I intervened on the Home Secretary earlier when she quoted a statement made back in January 2011 by the Minister for Europe, who stated categorically that the Government would conduct further consultation on the arrangements for the vote and that, in particular, there would be consultation with the European Scrutiny, Home Affairs and Justice Committees in both Houses. In fairness to the Minister, it must be said that he recognised the significance of the vote and the need to go into all the fine detail that is inherent in these measures; but sadly, notwithstanding the apparent concession that was made a few moments ago, the Government do not seem inclined to embrace the spirit of what he said. I regret that, because I think it would be most unfortunate if the impression were given that the House was being bounced into a decision, and that we were engaged in a process that we did not wholly understand because of its contradictory nature—what with “in-out, in-out” and all the rest of it.
What we need is straightforwardness and transparency. We need a full appreciation of the complexities of the issues, and a balanced, measured response to the pros and cons with which we are faced. I think that the debate represents a small step in that direction, but I hope very much that the Government will take on board, in particular, what has been said by the Chairs of the Select Committees.
As I said earlier, this is an important issue, and no Member in any part of the House should approach it from either a pro-Europe or an anti-Europe standpoint. We must consider the pros and cons, we must recognise the reality of the modern world in which we live, and we must reach a balanced decision on whether these measures —particularly the one relating to the European arrest warrant—will help or hinder the fight against crime. Personally, I have no doubt that they will help.
Dr Julian Huppert (Cambridge) (LD)
It is a pleasure to speak in the debate, and to congratulate the Home Secretary. I welcomed the announcement that she made last Tuesday, which has given us a chance to work out how to get the details right. I see today as the first step in that process, to be followed by scrutiny by the Select Committees. I look forward particularly to working with the Home Affairs Committee. I think that it will be possible for us to be both pragmatic and well-informed, and to get everything done in time.
Although, as I have said, I supported the Home Secretary’s statement, I did not observe complete support from her own side, although I am pleased to say that a few Members have supported her very sensible position.
Mark Reckless
There may have been less than full support for the statement from Conservative Members because, at the time, we thought that we were dealing with a Command Paper and a decision to opt back into the European arrest warrant. Now that we have heard from the Secretary of State for Justice that that is no longer the case, many of us are rather happier.
Dr Huppert
I am delighted that the hon. Gentleman is happy, although on occasion he may not be entirely accurate.
We have discussed a number of measures that the Liberal Democrats, for example, would not opt into, and I shall say more about some of them later. However, I still believe that the European arrest warrant is absolutely right, and I was pleased to hear the Home Secretary extol its virtues. I hope that she will continue to do so, and that the Select Committee will continue to support a reformed arrest warrant.
What we just heard from the hon. Member for Rochester and Strood (Mark Reckless), and what we heard earlier from the right hon. Member for Wokingham (Mr Redwood) and the hon. Member for Stone (Mr Cash), illustrated the tendency of some Members to do exactly what we were urged not to do by the hon. Member for Caerphilly (Wayne David): the tendency to be so obsessed with Europe that crime, justice and all the other issues that we ought to care about—and about which our constituents actually care—fall by the wayside.
Mr Cash
I agree that this is not about Europe. It is about Britain; it is about the British citizens. I invite the hon. Gentleman to consider a case in Staffordshire. A constituent of one of my neighbouring Members of Parliament was convicted in Italy of murder and was sentenced to 15 years in absentia, but was not even in Italy when the murder was committed.
Dr Huppert
The hon. Gentleman is certainly making a point, but I am not sure that it is entirely the point. Justice systems all around the world make errors. The British justice system has convicted people, only for those convictions to be overturned on appeal. I do not claim that justice is perfect, but I do claim that an obsession with European issues weakens our focus on policing and crime, which are what we should be focusing on. I do not know the circumstances of the case the hon. Gentleman mentions, and it is entirely possible errors were made, but that does not mean we should not work with Europe or continue with the justice and home affairs co-operation we currently have.
Chris Bryant
I just wish to point out to the hon. Member for Stone (Mr Cash) that when Russia tried to extradite a man from the UK for supposedly murdering a Russian Orthodox priest, the said Russian Orthodox priest gave evidence in the case in London, thereby proving he had not been murdered.
Dr Huppert
I would be delighted to pass that on, and I am sure the two hon. Gentlemen could have a separate conversation about the matter. There are a wealth of individual cases, some of which I looked at when I was on the Joint Committee on Human Rights, but the obsession with Europe that runs through the Conservative party—or, to rephrase that, through many elements of the Conservative party—is deeply alarming. I am pleased we have managed to get sensible comments from Conservative Ministers on the Front Bench about our need to work with Europe. As crime becomes more international and people can travel more, it is important that we are able to share information.
If we were to ask the public whether they want criminals brought back here to face justice, I do not think many of them—other than the hon. Member for Stone (Mr Cash)—would immediately start talking about the powers of the ECJ. I simply do not believe that is the main issue.
We are not where we should be yet, however. We have this very odd, very convoluted, very complex process, and many of us think it would be much simpler if it had not been negotiated in the form that it was, with the very complex opt-out followed by an opt-in process. I do not think any Member would say that was the best way to proceed. It may or may not have been the best that could be achieved—I do not know the details—but it is certainly very complex, and I and my colleagues will be very happy to work with the Home Secretary and to keep the pressure on her to make sure the negotiations to opt back in are successful. That will be a complex and difficult task, however.
That is why it is also very important to make sure that nothing goes wrong. We do not want to end up accidentally not being able to get back into things we need to be in; for example, we do not want to end up having to be out of Europol for a brief period, which would mean that Europol director, Rob Wainwright—a Brit—could not continue in his role.
The Lords European Union Committee has conducted detailed scrutiny of this and has produced a detailed report. In April it concluded that it was not convinced a compelling case had been made to opt out. I have to say I agree with it. I think it would be far easier, far cleaner and far simpler not to exercise the opt-out at all. I would love to know how much is being spent in time, in effort and in getting a huge number of civil servants and lawyers to go through the details of all of this, and what the overall benefits would be.
It is absolutely true that, as many Members have said, some of the items under discussion are outdated or irrelevant, and that they simply do not matter. We should weigh that against the massive cost and the time that would be taken in this House and elsewhere in going through them all and making a decision.
George Eustice
I take the hon. Gentleman’s point on board, but is he aware that even the Centre for European Reform, a think-tank far closer to his views on these issues than mine, has said that our continued involvement with these JHA powers should be conditional on a fundamental reform of the European arrest warrant?
Dr Huppert
I agree that the European arrest warrant needs to be reformed. I have said so in many debates in this place. When I was on the Joint Committee on Human Rights, we produced a list of some of the reforms there should be. The European arrest warrant should be fixed and reformed. That is a different question, however, from the one about whether we should exercise this opt-out and go through the complex, tortuous process of opting back in again. I would prefer not to do that. I would prefer to stay as we are. I do not see any measure that actively causes us harm which we plan to get out of, but I accept that that decision has been taken, that the Home Secretary and the Conservatives are keen to exercise that opt-out, and that many of the things we will end up leaving are not very significant measures. I completely accept that and am committed to making sure that we keep the ones that are most essential for the continued protection of British citizens. That is my focus.
Mark Reckless
What about the provision on the exchange of DNA? This country has a vast database, relative to the rather limited ones in most EU countries. Is that not one issue, at least, where the hon. Gentleman’s commitment to civil liberties outshines his Europhilia?
Dr Huppert
That is indeed an issue I have more concern about. As I have said to the hon. Gentleman twice now, I do not think we should do everything that Europe wants; one example is on the rather ridiculous idea about olive oil not being able to be stored properly. That was a quickly shot down, silly story; it was certainly nothing that any of us would want to see. I hope that he will share some Europhilia with us at some point in future debates. I am pleased that this Government are reducing the amount of DNA that is kept—we had a hard fight on that.
I am pleased that in the set of things published in that Command Paper, which I hope will be the basis of the set—I would perhaps like to see even more in it—are the key measures that Liberal Democrats negotiated. In a previous Opposition day debate on this, I set out some red lines that I would want to see. I am pleased that every one of them has been met by these new approaches and that the preliminary decision includes all the list of the key EU crime-fighting measures recommended to us by the Association of Chief Police Officers. Before the hon. Gentleman rises, may I say that he knows we share a belief that ACPO, as a private limited company, is not the arbiter of what should and should not be done? We will debate that later, but it is useful to hear expert advice from the police, in whatever form they happen to put it.
We have seen many cases showing how important the European arrest warrant is. Mark Lilley, one of Britain’s most wanted men, was captured on 8 July at his villa in Spain, and he is the 51st fugitive to have been arrested of the 65 identified under Operation Captura, an initiative launched by the Serious Organised Crime Agency in 2006 to work with Spanish law enforcement to capture UK suspects thought to be hiding in Spain. That was not, and could not be, done before. Roger Critchell, director of operations at Crimestoppers, said:
“We are extremely relieved that this dangerous drug-dealer has been arrested and will be made to face justice.”
Why would anybody want to make it harder to bring somebody like that back to face justice?
The EAW also means that criminals hiding out in this country do not stay here. It will be easier to get foreign criminals off our streets and back to their states for the crimes that they have committed there. Since 2009, 4,005 criminal suspects have been deported from the UK to other EU countries, and it was good to hear the Home Secretary refer to that. Fifty-seven deportations were for child sex offences, 414 for drug trafficking, 86 for rape and 105 for murder. Does any right hon. or hon. Member really think we should be making it harder for these people to face the justice they deserve?
Mr Andrew Turner
I understand what the hon. Gentleman is saying, but can he not think of a country—Iceland is a good example—that is not part of the EU but that could be helped by having this arrangement extended to it?
Dr Huppert
If the hon. Gentleman is suggesting that the EAW could spread out to more and more countries, there is something to be said for that. I am not sure that that is entirely the argument he would wish to be making. There are very many countries with which we simply have no extradition relationships; we do not have a treaty, and we have no mechanism for sending people back to them or for getting people back whom we would like to see. That is unacceptable, and we should certainly be focusing on reducing that gap, rather than creating an entirely new one.
We do need a reformed EAW. That has been discussed and I think it is agreed by everybody here. It is not right that Poland summons so many people. I understand that that happens because in Polish law the police do not have the jurisdiction and the freedom to decide that something is too trivial to proceed with, and we should look at safeguards in that regard.
I am also pleased that, as an improvement to the EAW, the Home Secretary has agreed that Britain will sign up to the European supervision order. That will mean that when British citizens are arrested overseas they can be bailed and allowed to await trial at home. Andrew Symeou spent 10 months in pre-trial detention and a further nine months on bail in Greece, only then to be acquitted. That could all have been avoided if he had been able to spend that time on bail back in the UK. Similarly, EU nationals who come to the UK and commit crimes can be bailed back to their home countries, which will free up space in our prisons, as well as being better for those people themselves.
It is right that we work with our European partners. The UK is a leader in the field of crime and policing, and we should also be leading in Europe, not trying to run away from it. The UK Government made security and stability key priorities for their presidency of the EU in 2005, pushing ahead with EU action on counter-terrorism, people trafficking, migration and enhancing EU-wide police co-operation—things this House should support. With cross-border crime becoming ever more sophisticated, when we help Europe, we very much help ourselves. The director of Europol, Rob Wainwright, will continue to do the excellent work he is doing, co-ordinating cross-border investigations and leading teams that pull together the resources and information of multiple member states. The importance of Europol cannot be understated. It has been instrumental in the case of Madeleine McCann and many others, and to lose that expertise would be tragic.
Steve McCabe
The hon. Gentleman made reference to Rob Wainwright and not wanting him to have to stand down. During the period when we are not part of Europol, is it reasonable for a police officer from another country to head it up?
Dr Huppert
I thank the hon. Gentleman for his comments. I hope that the intervening period would be one of these nominal, legal fictions—a minute or something —and during that time we could just not notice the problem he describes. If the time period were long, we would have exactly that problem.
Europol has been instrumental. It has had a huge number of cases, more than 1,300 in the UK, which have included dealing with the world’s largest online paedophile network in Operation Rescue, which led to 184 arrests and 230 sexually exploited children being protected. That is yet another good thing we should want to support. Eurojust will help us work together, allowing cross-border cases to be focused much more effectively. A joint investigating team was set up following the murder of three members of the al-Hilli family and cyclist Sylvain Mollier in 2012 in France, allowing the French gendarmes and the Surrey police officers to work together, to deal with confusions over national laws and processes, and to maximise their capacity. This list goes on and on; we benefit from these key measures.
I am very pleased with this list of 35 measures. It is the right way to go, and I think we can scrutinise them. We should consider some of the ones that did not quite make the cut and decide whether they would benefit us or are things we could live without. I congratulate the Home Secretary on standing firm before her own party, I look forward to the scrutiny that we will all carry out, and I commend the motion to the House.
Naomi Long (Belfast East) (Alliance)
I am pleased to have an opportunity to participate briefly in this debate. I want primarily to address the issue of the EAW, which is of particular concern in Northern Ireland because of the close co-operation required between the justice Departments in Northern Ireland and the Republic of Ireland in tackling terrorism and serious organised crime, on behalf of not just Northern Ireland, but the rest of the United Kingdom.
I recognise that the Home Secretary has clearly stated her intention to opt back into the EAW, but I remain concerned at the impact of opting out without any certainty on opting back in. It may be possible for the UK to opt back into certain measures on an ad-hoc basis, but that will not be automatic and it will need authorisation from the EU. If the UK does opt back into a measure, it will have to accept re-entry criteria and the rules of the Commission and Court. Those things have to be taken into account.
The Home Secretary was unable to give the assurance sought by the hon. Member for Cambridge (Dr Huppert) as it is not in her gift to say that we will definitely be able to opt back in; it will be for the EU to decide, in negotiation with the UK. I accept that the intention is to opt back in quickly and smoothly, but it is not possible at this point to be assured on that. The uncertainty may not matter on measures where we do not need or want to opt back in, but it is dangerous on measures that are important to this country and its security—the EAW is one such measure.
As I have indicated, there are continuing concerns in Northern Ireland about the potential opt-out from a number of key areas, particularly the EAW, and the collective impact that will have on cross-border working with the Irish Republic, in particular, and with other states. The Police Service of Northern Ireland has been very vocal in its opposition to the UK’s opting out of a number of important measures and considers it vital that the UK opts back into them as soon as possible. That view was also reflected in the ACPO paper mentioned by other Members.
The House of Lords European Union Committee report was published on 23 April, after the Committee had taken evidence from a wide range of sources. In summary, its conclusions echo the concerns that stakeholders and criminal justice practitioners in Northern Ireland have outlined. Of primary concern is the risk to the EAW; the Committee believed that that was the single most important of the measures subject to the opt-out decision. The Committee was not persuaded that alternative arrangements would address the criticisms directed at the existing European arrest warrant arrangements, and believed that it would
“inevitably render the extradition process more protracted and cumbersome, potentially undermining public safety.”
The Committee also believed that the best way to achieve improvements to the EAW system was through negotiations with other member states from within. While I welcome the fact that the Secretary of State says that she is pursuing that matter, I remain concerned about the opt-out. I suspect that we would all agree that there are flaws in the EAW—I believe, however, that it worked reasonably well, and the evidence is that it did so—and deficiencies have been identified, including proportionality and the time that some nationals have spent in other jurisdictions on remand following extradition. We would all wish to see those matters reformed and addressed, but the opt-out could have significant repercussions both for the internal security of the United Kingdom and for the administration of criminal justice in the UK, and it could reduce our influence over this area of EU policy.
Bob Stewart (Beckenham) (Con)
If the European arrest warrant did not apply, is the hon. Lady suggesting that the close relationship between the police in the Republic of Ireland and the Police Service of Northern Ireland will be gravely affected, and they would not be able to exchange people as necessary?
Naomi Long
If the hon. Gentleman is patient, I shall come on to the specific problems that will occur if the EAW does not operate continuously. There are indeed challenges to that co-operation which are not about will but about means and process.
From a Northern Ireland perspective, this is of particular importance. Since the EAW came into force in January 2004, the PSNI has received about 265 EAWs for action in Northern Ireland, and 50 EAWs have been issued for action outside the UK. Of those 50, about 31, or 60%, have been sent to the Republic of Ireland. The PSNI believes that there are some areas in the process that could benefit from review, but overall it has said that it
“has proven to be an effective mechanism for ensuring the administration of justice across the EU jurisdiction.”
The Crown Solicitor’s Office believes that the EAW system
“works very successfully. When operated properly it can be speedy, effective and fair.”
Neither the PSNI nor the CSO believe that the UK should withdraw in any way from the current arrangement, and the pressures on the PSNI, the Public Prosecution Service and CSO manpower and costs would increase if we did so. The PSNI and the CSO are concerned about the likely alternatives to the EAW. If the UK withdrew from that system, under the designation by which member states that operate the system are regarded, we would become a category 2 state, as opposed to category 1. Extradition would then have to operate by way of formal requests from the UK Government to other countries through bilateral treaties or under the European convention on extradition. Such requests are more time-consuming to prepare and may involve the sending of witnesses to foreign jurisdictions to give evidence, possibly at significant cost.
With respect to the impact on north-south relations and north-south co-operation, which was raised by the hon. Member for Beckenham (Bob Stewart), before the introduction of the EAW, Northern Ireland and the Republic of Ireland followed the system known as the “backing of warrants”, which allowed an arrest warrant issued in one jurisdiction to be passed to police and endorsed or backed by a judge or magistrate in the area where the subject of the warrant lived. The Backing of Warrants (Republic of Ireland) Act 1965 was repealed by section 218(a) and schedule 3 of the Extradition Act 2003. There is no reason to assume that the Irish authorities would be willing to return to such a system. The land border between the two jurisdictions necessitates speedy arrangements that may no longer be available if the European convention or a bilateral treaty were the basis of the extradition relationship. I hope that that answers the hon. Gentleman’s question, because it is a significant issue. Indeed, the Minister for Justice, Equality and Defence in the Republic of Ireland, in discussions with the Minister of Justice for Northern Ireland, has expressed concern about its impact, given the repeal of legislation that facilitated north-south extradition arrangements.
Crucially, however, Alan Shatter TD has just given up the chair of the EU Council on Justice and Home Affairs, and is therefore exceptionally well placed to gauge the Commission’s appetite for negotiating terms with the UK to opt back in. His clear and continuing concern about the opt-out should sound a note of caution for those who believe that an opt-in will be simple and straightforward. I understand that this is a reserved matter, but even when matters are reserved decisions made by the UK Government can impact on the criminal justice system in devolved settings, and nowhere more so than Northern Ireland, given that we have a land border with the Republic of Ireland and thus a vested interest in close co-operation.
The cross-border dimension is unique in the UK, and important to us. Cross-border co-operation is essential in tackling security threats and organised crime, not only in Northern Ireland but across the whole of the United Kingdom. Of the third pillar measures, the possible opt-out from the EAW is the one that causes most alarm among all stakeholders in the Government, but it creates real uncertainty if we opt out without knowing that we can opt back in or that that will be a seamless process.
I put a question to the Secretary of State after her statement last week, and she said that the matter had been discussed with the Minister of Justice for Northern Ireland. However, she did not respond directly to my invitation to confirm that the Minister remained extremely concerned about any interruption to the operation of the EAW, and the impact that that would have on the justice system in Northern Ireland. It is important to talk to the Minister of Justice, and I hope that Home Office Ministers will recognise that listening and responding to what they hear in those conversations is of equal importance.
In response to my intervention today, the Home Secretary suggested that concerns arose only from the point where the Government indicated that they were going to opt out, but had not stated clearly that they intended to opt back in. That is not the case, however, and I put that on the record. Northern Irish Ministers remain concerned even though the opt-in is the Government’s stated intention. That has not allayed concerns, and there is serious uncertainty about the ability to opt in and about any delay in the opt-in process.
Mark Reckless
The hon. Lady says that the intention to opt back in to the EAW has been stated by the Government, but does she accept that with the acceptance of the amendment tabled by my right hon. Friend the Member for Berwick-upon-Tweed (Sir Alan Beith), that will no longer be something stated by this Parliament?
Naomi Long
I accept that that is the case, which causes me concern and, indeed, it will cause my colleagues in Northern Ireland even more concern. It would therefore be helpful if the Government could provide reassurance on that matter at the end of the debate. Any suggestion that we may choose not to opt back in would have significant consequences for north-south co-operation on justice matters in Northern Ireland.
The EAW has helped to bring offenders to justice, including those charged with serious and organised crime. The best way to effect the required improvements is to do so from within, not from outside. More than 60% of EAWs issued in Northern Ireland are for extradition from the Republic of Ireland so, in closing, I would simply ask what plans Her Majesty’s Government have to renegotiate an opt-in. How confident are the Government of success in that regard, given the reservations that have been expressed today and, indeed, given the concerns, I believe, of the Minister for Justice, Equality and Defence and of the Minister of Justice in Northern Ireland? Do the Government have the necessary support from other member states to be able to do this, and what happens if they do not succeed? What is the fall-back position? Will they try to negotiate individual arrangements with 28 states, and what appetite do those states have for entering into that negotiation?
Those are unanswered questions and points of risk in the process, and I simply ask that the Minister take the opportunity, first, to allay our concerns about the amendment that has been accepted, which will obliterate Parliament’s commitment to opt back in, and, secondly, to provide answers to those specific questions so that we understand what plan B is if the opt-in does not work out as intended.
Sir Alan Beith (Berwick-upon-Tweed) (LD)
I rise on behalf of the Liaison Committee and the Justice Committee, both of which I chair, to speak to amendment (b), which I can do very much more briefly now that the Justice Secretary has indicated that it will be accepted, although I need to explain why we tabled it. It takes something, as the right hon. Member for Leicester East (Keith Vaz) said, to bring together on matters European the right hon. Gentleman and myself, whose views are not so different on these issues, and the hon. Member for Stone (Mr Cash). That arose from the way in which the Government have gone about this process, which is not the way that they said they would go about it. However, in two moves—in a two-step—over the past five days, the Government have sought to respond to our concerns, and I very much welcome that.
The original change that was made last week was specifically to endorse the role of Select Committees in considering the Government’s proposals as to which measures we should opt back into. The reason that we were not happy with the wording which then emerged, which was a considerable improvement on the Government’s first motion, was that it appeared to us that the words would restrict the Committees’ ability to argue for the inclusion of measures not on the list or the exclusion of measures that were on the list. Our understanding had been that specific confirmation of the list was a matter for the second debate and vote, after the Committees had considered the issues raised by the Government’s statement of what they were minded to do on the various opt-in possibilities.
Chris Bryant
As I understand it, in that meeting the Home Secretary asserted that it was absolutely essential—legally necessary—that there be a vote today to allow the opt-out to happen. Does the right hon. Gentleman understand that really to be the case?
Sir Alan Beith
There has been argument about that from two Members who devote a great deal of time to the issue and I am reluctant to become the arbiter of this argument. All we sought to secure in our capacity as Committee Chairs was that the Committees’ ability to do the job was not inhibited and could not be restricted by someone pointing to the wording and saying, “You can’t discuss that possibility. It’s outwith your reach.” What the Government had made clear all along and made clear again to me in a telephone call last week while I was away with the Justice Committee was that there is to be a second-stage process as originally envisaged, and at that stage there will be confirmation of what is at present clear Government policy as to what the list is, following consideration of the representations and views that may be put forward by any of the relevant Committees.
I do not believe that in seeking to meet the Committees’ wishes and excluding those words, the Government are seeking to change their policy. They are simply making it clear that the procedure is an open one in which Committees can put forward their representations, whether they support the list or seek variations in it.
The Minister for Immigration (Mr Mark Harper)
I confirm that that is the case, but let me be clear that what the Home Secretary said about the need for this House to take a view was that it is not a legal but a political issue. The European Commission has made it clear that it will not engage in a discussion or a negotiation until we make clear the view of the Government and this Parliament. That is what the Home Secretary said in her speech and that remains the Government’s position.
Sir Alan Beith
We would have been in a happier and more comfortable position had the Government carried out their original intention to deliver memorandums to the Committees by February of this year, followed as soon as possible by more detailed impact assessments. That was not done. The Committees had been led to believe that it would be done so they waited and waited for those things to appear, so that they could start their consideration on the basis of clear information about what the Government had been advised and which way their thinking was going.
Bob Stewart
Does that mean that we now have a set time by which all the Committees are to complete their consideration? For example, is the end of consideration period to be completed by the end of the year?
Sir Alan Beith
We have an end of consideration date at the end of October, which is clear in the motion and emerged from discussions between Committee Chairs and the Government. It was not our ideal timetable, which would have started back in February, but that is where we are now.
What we have to consider now is how best the Select Committees can do their job in drawing the attention of the House and the Government to any concerns they might have about opt-ins that are on the list and opt-outs—or not-opt-ins, if that is the right phrase—that they might wish to consider. It is for the Committees, as Ministers have confirmed, to decide how they will go about this task, but a timetable has been set.
There is still more information which can usefully be given to Committees in the form of a more detailed impact assessment than is contained, for example, in the Command Paper. We are entitled to continue to seek that, and if we do not get it, awkward questions will be asked of Ministers when they come before the Committee, in order to elicit the information that we need. Our purpose, which will be fulfilled by the exclusion of these words, was to give the Committees of the House the scope to which they are entitled, which the Government from the beginning said they would have, in order to consider these matters before the final decision is made.
Chris Bryant
May I ask the Select Committee Chairman a question about how the three Committees will divvy up responsibilities? The Government have submitted not one memorandum but five—three from one Minister and one from each of the others. There might be confusion for the House if there were three reports that did not coincide.
Sir Alan Beith
Committees are well accustomed to dealing with overlap of responsibility. The Liaison Committee is also well accustomed to assisting in sorting out any problems that overlap may generate. There are issues that fall within Home Affairs which are of interest to the Justice Committee, such as Eurojust. We will find ways of dealing with that, even in a compressed time scale. I welcome the Government’s acceptance that in the letter as well as the spirit they should recognise that Select Committees of this House have a right and a duty to advise the House on the basis of open consideration without undue restriction.
Steve McCabe (Birmingham, Selly Oak) (Lab)
Like a number of other Members, I am not clear exactly what the Home Secretary thinks she is trying to achieve today. She says the vote will be a signal to our European partners, but where in the opt-out arrangements is there any requirement to have such a vote at this stage? Unless she intends to ignore the reports of the various Select Committees and the calls from Back Benchers to let us, item by item, decide on the measures that we want to opt back into, all we can possibly be signalling today is our intention to exercise the block opt-out and an intention to try to opt back into some unspecified measures. So I am not clear about the reason for the vote now. The Minister suggested that it was for political reasons. I wonder whether it is more to do with the proximity of the Conservative party conference.
Will the Minister clarify the exact date for notifying plans to opt out? The Government say it is 31 May, but I have seen other calculations that challenge that date. I am conscious that Home Office officials have had trouble with European dates and deadlines in the past, so may we be clear about the exact date?
Mark Reckless
I intervened on the Home Secretary and asked her if she would be notifying immediately, to which she said yes. It was then suggested that there is to be a House of Lords vote on Monday, so it would be immediately after that. Surely that gives enough margin of error.
Steve McCabe
I was talking about the date the Government were specifying, but that does leave a bit of time, I concede that.
One of the things that I would like to know before we conclude the debate is what estimate the Government have made of the possible costs of cessation of participation under article 10(4). Throughout the now discarded Command Paper the Government merely repeat the view that they consider the economic impacts to be negligible, but unless we have some idea of how they arrive at those figures, we could be asked to vote for a blank cheque today. I am not quite as comfortable with that as others might be.
I am also worried about the implications for security and organised crime. Article 40 of the Schengen convention of June 1985 covers surveillance and assistance across borders, but the Government’s own Command Paper acknowledges that opting out of article 40 will leave us reliant on international letters of request. It goes on to point out that there would be no way to compel other states to respond to international letters of request.
Any transitional arrangements made following the opt-out are made by the Commission and the Council without the UK, so what will happen if the transitional arrangements are not acceptable? As I understand it, we are talking about 30 measures on issues decided by the Council and the Commission, and they are subject to qualified majority voting. The measures that apply to the Schengen agreement are subject to unanimity with a veto, and we have all seen that the veto can be exercised in Europe. It would be helpful if we could have some further explanation on what consideration has been given to these factors.
Martin Horwood
The hon. Gentleman is making a very good case for a much simpler system that does not involve the clumsy and risky process of opting out of the things that we want to opt into, and then having to opt back into them. Does he now regret that his Government landed us with this precise system?
Steve McCabe
I do not know whether the hon. Gentleman was in his place when I raised this point earlier, but that is what the other member states forced on us at the time. I would be first to concede that it is not an acceptable arrangement, but it highlights how difficult it might be to opt back in without any difficulty. Has the hon. Gentleman considered that?
There seems to be some question about whether we will opt back in to the European arrest warrant. The Government indicated earlier today that we would seek to opt back in, but I could not miss the hon. Member for Rochester and Strood (Mark Reckless) celebrating the decision to accept amendment (b), which means that there is now no guarantee that we will seek to opt back in. In any event, at the point that we opt out, the Government’s intention is to fall back on the 1957 Council of Europe convention. Even the Government’s own Command Paper acknowledges that there are difficulties and shortcomings with that approach. Like the hon. Member for Belfast East (Naomi Long), I am worried that having opted out we will find ourselves without the power to bring major criminals to justice. That is an atrocious state of affairs.
I am slightly perplexed by the view of the hon. Member for Cambridge (Dr Huppert) that we can have a notional opt-out on Europol. I do not know what his coalition partners would make of this, but he seems to think that we can opt out for a matter of hours, and then opt back in. I cannot believe that a single person in the country would think that a worthwhile state of affairs. It would involve an inordinate amount of time and energy for very little. I have to assume that optimistic though the hon. Gentleman is—it is quite likely that once we opt out of Europol we will be allowed back in; I have no doubt about that—his hopes of keeping the present occupant of the job in his post is slim indeed.
What consideration have the Government given to article 10(5) of protocol 36, which I understand specifies overarching conditions regarding the opt-out, and that Commission members need to be satisfied that there is nothing in the UK’s behaviour in making the decision to opt out and then seeking to opt back in that will affect the practical operability of the measures. That will play an important part. Two things occur to me. The first is that it was not quite so easy for Denmark to opt back in. Secondly, how will we maintain the positions that we hold within some of these European institutions while we are no longer part of them? One of the prices that we have to pay for the opt-out may be to diminish rather than strengthen British influence within some of those institutions.
These are all matters worthy of some consideration and scrutiny. I cannot understand why the Home Secretary, on such a matter where one would have thought she needed quite a few allies, is not trying to find greater consensus. It would not be difficult to get agreement in the House that we should now exercise the block opt-out. It is a cumbersome process, but it would not be difficult. I do not see why we are not then using the time available to let Parliament and the Select Committees reach maximum agreement on what we want to opt back into. The Home Secretary opening negotiations and then finding herself in a position where Parliament does not agree with her will hardly strengthen her hand. Rather it will weaken her position. It would be much easier to make requests for transitional arrangements if there were a clear, strong body of opinion behind her in the House. At the moment, since we are not sure what she will try to opt back into and how many of her Back Benchers will support her or undermine her, it is difficult to know which transitional measures we should be getting behind her on. I fear that she is putting the political needs of her party ahead of the need to get this right.
Richard Ottaway (Croydon South) (Con)
The Home Secretary’s motion is the right motion, introduced in the right way at the right time, although I am somewhat relieved by the Justice Secretary’s acceptance today of amendment (b). I am also relieved that the Foreign Affairs Committee does not seem to be involved in the consultation process, as we have a heavy programme between now and the end of October, and for the life of me I could not see how we would fit in another report.
Across Europe, there is a growing and widespread concern about the direction of Europe. Those who have the bad luck to live in the eurozone have little choice but to live with the mistakes made by their leaders. But those of us outside the eurozone have a golden chance in the next four years to mould an EU that keeps the benefits of the single market, but in rejecting ever-closer union allows us to shed the burdens and inefficiencies that we find so alien to our Anglo-Saxon identity.
Ironically, much of the resentment against the EU arises from judicial decisions of the European Court of Human Rights, which is outside the EU. I put on the record that the Home Secretary has my full support in reviewing membership of the human rights convention, which now seems to be getting an interpretation that could never, ever have been envisaged by its founders.
There is growing dissatisfaction with efforts to harmonise the EU justice systems, which should be focusing like a laser beam on fighting the international crime that swirls around us. We are right to be opting out of the justice and security chapter, and right to be prepared to renegotiate those parts where it is in our national interests to do so. I for one will be watching those negotiations with interest, as they could well be a pointer to the negotiation of a new settlement in 2015. The trick is to build alliances in the negotiations much as we did in the successful negotiation of the banking union agreement last December.
Turning to the European arrest warrant, like other Members who have spoken, I believe that it is right to retain our involvement in that process. As we debate the flaws or merits of the EAW, we do well to recall what promoted both it and the growth of non-EU extradition treaties in the first place: the growing threat of international terrorism. The EAW ensures that dangerous suspects who threaten our security or commit crimes on British soil are held to account by our jurisdiction. Its fundamental aim is to serve the national interest, and it has already been proven to do just that. We lose its effectiveness at our peril.
The EAW has enabled a faster, simpler and more cost-effective extradition process for convicted offenders and criminal suspects right across Europe, and the statistics back that up. Before the EAW was introduced in 2004, extradition took, on average, a year. Today that has been cut to an average of 48 days, or 16 days if the suspect agrees to surrender. Since the EAW was introduced the number of extraditions has increased significantly, and it continues to rise year on year. Since 2009 we have issued around 150 warrants each year so that people suspected of committing crimes on British soil can be brought to justice. The number of suspected criminals who have been extradited to European countries over the same period has risen from 772 to over 1,000, and that includes sex offenders, rapists and murderers.
Almost all those suspected criminals—this is the important point—are non-UK fugitives seeking to avoid justice in their own countries. Over the past four years there have been 4,005 extradition requests from EU member states, of which only 181 were for the extradition of UK nationals, which is fewer than 5%, so 95% of those applications were for foreign nationals. When the hon. Members for Belfast East (Naomi Long) and for Birmingham, Selly Oak (Steve McCabe) ask what will happen in the interim period and whether the other members will renegotiate, I must say that it is highly unlikely that they will forgo the opportunity to get those several thousand fugitives who are using this country for sanctuary.
Steve McCabe
I am sure that the hon. Gentleman is right and that those countries will have their reasons, but it is also highly unlikely that in those circumstances they would be terribly willing to entertain the changes to the European arrest warrant that some of his hon. Friends are seeking.
Richard Ottaway
My assessment is that most of the cases are so serious that the measures on triviality and proportionality will have no impact whatsoever, and I am quite confident that the other nations will agree. Indeed, they might look at their own position in order to have some sort of parallel agreement.
There are several high-profile extradition cases for which we have the EAW to thank. A number of Members have mentioned the bomber Hussain Osman, who plotted the unsuccessful 21/7 bombing attacks on the London underground. He was extradited back to the UK from Italy in less than eight weeks. Let us compare that with the Algerian Rashid Ramda, who had been granted refugee status. He was wanted in connection with a terrorist attack on the Paris metro in 1995 that killed and injured dozens of people. It took 10 years to extradite him from the United Kingdom to France. In the climate in which we operate, we need to react fast to terrorist threats.
In my book, the European arrest warrant is a victory for justice, for victims and for law-abiding citizens in the UK. Of course we must recognise its shortcomings, which need to be fixed, and I welcome the Government’s decision to address those in the Anti-social Behaviour, Crime and Policing Bill.
I applaud the Home Secretary’s resolve to seek to rejoin the European arrest warrant after opting out of all 133 EU law and order measures in the Lisbon treaty. I must confess that I am disappointed that her pragmatic strategy to help us fight EU-wide organised crime and terrorism has provoked so much controversy. She recognises that the EAW creates a more efficient, simpler, quicker, cheaper, more reliable and less political system of extradition. It increases the mutual trust between member states and their enforcement agencies.
Without the EAW, the victims of crime would get a poorer deal, as we would have to rely on the 1957 Council of Europe convention on extradition and bilateral agreements. They are inefficient, slow and expensive, and they, too, would suffer from all the faults identified in the European arrest warrant. They would result in fewer and slower extraditions, which would be worse for suspects and victims. We would return to the bad old days when British criminals could flee to European capitals and find safe haven. The chairman of the Bar Council, no less, has said that losing the European arrest warrant
“would directly threaten law and order in the UK.”
The chief executive of the Law Society has said that opting out
“could have significant negative implications for the administration of justice in the UK.”
To all those who are ideologically opposed to the EU project—I respect their positions—I say that this is not about losing our sovereignty to the EU. It is not advocating a closer political union with the EU. Under the EAW, unlike its predecessor, EU member states can no longer refuse to extradite their citizens on grounds of nationality. Extradition no longer requires a political decision for a suspect to be handed over. The European arrest warrant is not a political instrument; it is an instrument that works in the interests of justice and in our national interest, and if we fight and lose it, we will jeopardise the fight against serious cross-border crime. Let us not play politics with this very serious issue.
Mr James Clappison (Hertsmere) (Con)
I begin by welcoming the revised motion tabled by the Government and their acceptance of the amendment from the Chair of the Justice Committee, which I think reflects well on the role that each of the Select Committee Chairs has played and on the Government’s preparedness to listen to the views of Select Committees. As a member of the European Scrutiny Committee and the Home Affairs Committee, I look forward to taking part in the scrutiny that we now understand will take place.
I cannot separate the question of the European arrest warrant, or the other measures that the Government have announced they intend to opt into, from the European area of freedom, security and justice. My view on these matters is determined by my view of the European Union’s so-called area. I do not believe that it is a question of simply looking at individual measures and deciding whether opting in or out or co-operating here or there is in the national interest; my view is that the national interest is a question of this House and this Parliament determining the laws to which we are to be made subject.
I have heard the case that has been made for the European arrest warrant. It might be that, on balance, it is helpful in co-operation, but I do not know about that. If one accepted that view, one would have to ignore the many cases that have been brought to attention where it has been used disproportionately, for example for the theft of a piglet, a pudding, a wheelbarrow, as we heard earlier, or some wardrobe doors.
There are also cases in which the extradition of UK citizens from this country has been sought by European Union member states in which the standards of justice to which they have been exposed have been well below those that we would expect to see in this country. That includes people being put on trial for very serious offences, having already been acquitted of those offences, only to be told much later that the whole charge against them was to be dropped. There is a long list of such cases in which the European arrest warrant has gone wrong, and they have been well documented, and I think that was reflected in the critical testimony that Lord Justice Thomas, the senior extradition judge, gave the review on extradition led by Mr Justice Scott Baker.
It has been interesting to hear in the debate how the civil liberties guns have in some cases fallen silent as the guns for pro-European integration have been fired on all cylinders. Even if one accepted that, on balance, the European arrest warrant was a good thing and that it was necessary in fighting serious crime and bringing serious criminals and terrorists to justice—we have certainly heard a long list of those cases produced—heaven help us if it occurs to those serious criminals and terrorists to move from a European Union country to a non-member state because, on the basis of what we have heard today, it would seem impossible to bring about their extradition unless the European arrest warrant was involved, which it would not be in those cases.
Even if we accept that, the question is whether we should be part of the European area of freedom, security and justice at all. There will be those who say that that would be a good thing, that it would help to fight crime and that we should sign up to it lock, stock and barrel. I think that if the Opposition were honest, that would be their stated position—their underlying position, at any rate. I notice that no dissent is coming from the Opposition Benches to that last comment.
However, if we sign up lock, stock and barrel, or to individual measures in the area of freedom, security and justice—including, obviously, the 35 suggested measures—we will, in each case, be handing legislative and judicial supremacy to the European Union institutions and the European Court of Justice. That means that voters in this country will no longer be determining through their choice of Government the laws to which they are subject; instead, the law will be made through EU processes, with the European Commission having the right to initiate proposals, and qualified majority voting and co-decision operating at a European level. In such cases, British courts can be overridden by a European Court.
I note in passing a point well made in an intervention from my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg): henceforth we would be subject to the jurisdiction of the European Court of Justice and the infringement procedure of the European Commission in respect of whatever measures we decided to opt into. I find that curious, particularly in light of the cases that have arisen in the past week as a result of this country’s being subject to the overriding jurisdiction of a European Court—another European Court admittedly, but a European Court none the less. Those cases have been an example of what happens when we sign up to supranational jurisdictions. What frustration have our voters felt over the years over the case of Mr Abu Qatada and the repeated occasions on which—
Martin Horwood
If we establish that we are participating in a body of European law or any international law, we obviously need some kind of jurisdiction process to judge whether those laws—not all laws—are being fairly applied. Otherwise, every member state would make up the rules as they went along. Presumably, the hon. Gentleman would be the first in line to accuse other countries of not sticking to the rules.
Mr Clappison
The hon. Gentleman should be aware of the frustration felt in the House, which led the Government to say that they were leaving open the option of leaving the European Court of Human Rights altogether. Such was their frustration, which, obviously, he does not feel. The frustration is that British courts and the Supreme Court of this country have been overridden by a supranational jurisdiction. Through the measures under discussion, we would be signing up to more supranational jurisdiction. Heaven knows how much more frustration the voters of this country will feel in the future when that jurisdiction is exercised as it has just been.
Martin Horwood
I am afraid the hon. Gentleman is hopelessly mixing up his European Courts. The European Court of Human Rights has nothing to do with the fair application of European Union law; we abide by it through our own choice by virtue of our membership of the European convention on human rights.
Mr Clappison
The hon. Gentleman is being less than fair, as I made it clear that I was referring to another European Court. My point is about supranational jurisdiction conferred on courts outside this country. That applies in this case because we are signing up to the European Court of Justice’s jurisdiction, just as we are signed up to the jurisdiction of the European Court of Human Rights. That means that British courts and the will of the British people as expressed through this Parliament can be overridden.
One can add to the case of Abu Qatada the frustration that voters have felt over whole-life sentences no longer being allowed as a result of the European Court of Human Rights. There are multifarious other cases as well.
Mark Reckless
I felt I should intervene on my hon. Friend following the intervention from my hon. Friend the Member for Cheltenham (Martin Horwood). I do not think the European Court of Human Rights can dictate to our courts. In the Abu Hamza case, it said that the nine injunctions were not binding on our courts. They are certainly not binding on this Parliament. If the Government choose to act on them because of the ministerial code, that is for the Government, but the injunctions are not binding on our courts or Parliament.
Mr Clappison
My hon. Friend is absolutely right. He will reflect, as I do, on the position taken by the Government in light of that fact. However, the European Court of Justice will have authority over this country in the case of the measures under discussion. Its decisions will be final and beyond appeal, and we will have to abide by them if they go against us. We are voluntarily subjecting ourselves to that jurisdiction.
Those who want us to be part of the European area of freedom, security and justice should be under no illusions as to the extent of the European Union’s ambition to take away sovereignty from this Parliament in that field. That is, after all, one of the specific objectives spelled out in the EU treaty:
“The Union shall offer its citizens an area of freedom, security and justice without internal frontiers”.
There are those who say that instead of signing up to the EU area of freedom, security and justice, we can pick and choose which individual measures we should adhere to and suggest that they stand on their own merits rather than being part of the EU system as a whole. In a way, that is choosing to dine à la carte from the EU menu. However, the problem with dining à la carte is that if someone keeps on doing it, they end up trying everything on the menu.
Mr Clappison
Yes, and it has other consequences for the waistline, although I will not go into that now.
History teaches us that every concession made to the EU—every measure opted into, every pillar knocked down and every red line crossed—leads to a demand for more concessions; they are put into the pocket and the EU asks for more and makes more demands. That has been the case going back to the treaty of Maastricht, the constitutional treaty of the European Union and the treaty of Lisbon.
My hon. Friend the Member for Rochester and Strood (Mark Reckless) asked why the previous Government negotiated the block opt-out from the treaty of Lisbon at all. That was a good question; the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper) was so strongly in support of all the measures, particularly the European arrest warrant, that one wonders why the possibility of opting out was ever raised.
The real answer to my hon. Friend’s question is not the one that the right hon. Lady gave. I think it is that the then Labour Government said that the fact that the UK was not part of the area of freedom, security and justice was the key difference between the defunct constitutional treaty and the treaty of Lisbon. They said that a referendum was not required so that Labour could withdraw its promise to hold a referendum, which it did virtually overnight. A referendum that had been promised to the British people was then withdrawn. [Interruption.] The hon. Member for Rhondda (Chris Bryant) looks curious, but that is a fair answer to the question about why the previous Labour Government negotiated the block opt-out at all. They certainly did not have the eventual decision in mind.
I well remember the then Foreign Secretary, David Miliband, appearing before the European Scrutiny Committee. When asked what he thought would happen when it came to the decision on the block opt-out, he said, “Who knows?” That was the background. The decision was taken to help get the Labour party out of its commitment to a referendum, and that shows how easily a promise for a referendum can be withdrawn.
I am pleased that the coalition Government have made their commitment to a referendum and that a private Member’s Bill is passing through the House that I hope will put that commitment into legislation. That is where the decision finally needs to be taken—by the British people. They need a decision on the extent to which they wish to be part of the European project.
In this context, let nobody be under any illusions. This is not about picking and choosing and dining à la carte; it is not a simple question of co-operation here and there and what would be in the interests of fighting crime. It is about whether we are prepared to concede decision making on our criminal law, on the jurisdiction of our courts and on the work that is being done by our Home Office. It is about whether we are prepared progressively to abdicate from that and surrender sovereignty to the European Union so that jurisdiction and sovereignty are exercised by European Union institutions. I believe that the answer to that must come in a referendum.
Mr Dominic Raab (Esher and Walton) (Con)
It is a great pleasure to follow my hon. Friend the Member for Hertsmere (Mr Clappison), who placed this debate in its wider and proper context.
Let me say at the outset that I welcome the enormous amount of work done by Ministers across Whitehall. I believe that it is right that we exercise the block opt-out and then assess the UK law enforcement value of any individual measure very carefully. We need the scrutiny of our Select Committees on the detail, so I welcome deferral of the consideration of that second limb of the process until the autumn. I also welcome the Justice Secretary’s acceptance of the Select Committees’ amendment.
I note the parameters of the opt-out under the Lisbon treaty. The shadow Home Secretary, who is back in her place, cast doubt on our right to opt out and then opt back in selectively. She says that we need to ask for permission that could be refused, or that we could be fined for exercising the right. Labour’s amendment is based on those contentions. I have to say that I am confused, because on 16 October 2007, the then Foreign Secretary, the former right hon. Member for South Shields, told the European Scrutiny Committee:
“it is quite open for any government to opt out of all of those measures and then as they are transposed we have the right to opt back in…if we consider that the new framing of the measure is appropriate”.
He was not talking about a right to request or something that was up for negotiation, but a clear, cast-iron right to opt back in on a selective basis.
That was followed up on 29 January 2008, when my hon. Friend the Member for Hertsmere, assiduous as ever, asked the then Home Secretary, the former right hon. Member for Redditch, whether the UK might be fined for selectively opting back in. Labour’s last Home Secretary told this House:
“The process is spelled out reasonably clearly, but I do not intend to go through it in detail now. It is straightforward and safeguards the UK’s ability to opt in. I take exception to the hon. Gentleman’s suggestion that there are penalties for not opting in. That is not the case.”
She also said:
“The deal…represents a huge negotiating success.—[Official Report, 29 January 2008; Vol. 471, c. 178-183.]
In casting doubt on our rights now, the shadow Home Secretary is rubbishing the deal negotiated and lauded by the previous Labour Government. If she is right, either they misled the House then or the EU is demonstrating bad faith now. Which is it?
Chris Bryant
I am sure that the hon. Gentleman would not want to suggest that anybody has misled the House. I am afraid that he is getting all his opt-ins and opt-outs mixed up. It is very clear what the process is in article 10 of protocol 36:
“The Council, acting by a qualified majority on a proposal from the Commission, shall determine the necessary consequential and transitional arrangements. The United Kingdom shall not participate in the adoption of this decision…The Council, acting by a qualified majority on a proposal from the Commission, may also adopt a decision determining that the United Kingdom shall bear the direct financial consequences”.
Mr Raab
I thank the hon. Gentleman. All I am doing is quoting back to the House, and to him, the assurances given by Labour Ministers about the practical operation of the exercise of block opting out and then selectively opting back in. I have many more quotes that I can read out if he likes.
The basic point is that, given the way in which Labour Members are now rubbishing the exercise of the opt-out, there has either been some misleading or misunderstanding in the way that they presented it to the House back in 2007 and 2008 or, by implication, the EU is demonstrating bad faith now. Which is it? I would be happy to take another intervention from the hon. Gentleman.
Mr Clappison
May I confirm to my hon. Friend that he is entirely right in his observations? Of course this opt-out was negotiated by the previous Labour Government. I can also confirm that the Ministers and Secretaries of State who appeared before the European Scrutiny Committee did not have fits of uncharacteristic modesty when talking about the opt-out.
Mr Raab
I thank my hon. Friend. I have already quoted him and cited the important probing that he did back in those days.
Labour Members have a choice: either they misled and exaggerated the nature of the opt-out they negotiated or the Commission and the EU are demonstrating bad faith now. This Government, this House and the British public will reward neither of those basic binary options.
The Opposition’s other line of attack is to say that the Government’s intention of junking at least 100 measures is trivial because they are meaningless or obsolete. That prompts the question of why the shadow Home Secretary’s party signed up to them in such an unblinking and unthinking manner in the first place. It demonstrates that Labour Members are the dogmatists, whereas we mean to scrutinise this stuff far more carefully and substantively, measure by measure.
The motion gives the House's endorsement to the block opt-out, but it defers any opt-ins pending consultation, parliamentary debate and approval. As we have heard, a major downside of opting back into any measure is the creeping authority of the Commission and the Luxembourg Court. I think it is acknowledged across the board, certainly by Conservative Members, that whatever we do about the opt-ins, that is a serious defect in our current relationship. I believe that the British Supreme Court should have the last word on British criminal justice matters, for example, on the extradition of a UK citizen or on policing operations. I do not understand why, having created the Supreme Court amid huge fanfare, Labour Members now want to give away jurisdiction and, in effect, emasculate the word “Supreme” in its name.
One need only look at the recent ruling by the European Court on Human Rights in Strasbourg on life prison terms, the ruling on Abu Qatada, or the ongoing saga of prisoner voting, to see what happens when we submit to European judicial jurisdiction, albeit one in Strasbourg rather than Luxembourg. If anyone thinks that the Strasbourg Court is activist, they should look at the record of the Luxembourg Court, particularly in the emerging area of justice and home affairs in cases such as the Metock and Pupino judgments. I recognise that opting back into measures without accepting the jurisdiction of the Commission and Luxembourg Court is technically not within the terms of this decision process. However, have Ministers raised this now as part of the Prime Minister’s wider commitment to renegotiate Britain's relationship with the EU? Has this marker been laid down for the future? That is a vital issue.
There are plenty of other precedents and models for a more flexible relationship on justice and home affairs. Britain is not formally a party to Frontex, the EU’s external border agency, because we want to keep our national border controls, but we co-operate on risk analysis and joint operations. Does this hurt our influence or operations? No, not a bit of it. Frontex executive director Ilkka Laitinen says:
“we do not see any difference between our UK colleagues and the others”.
Outside Europe, the Strategic Alliance Cyber Crime Working Group comprising Britain, the US, Canada, New Zealand and Australia—some of our closest partners—collaborates on cyber-crime and intelligence under a non-binding framework. It is regarded as the gold standard of operational co-operation. In terms of law enforcement co-operation at the operational level, Brussels is the odd one out in insisting that we sacrifice democratic control, bit by bit, as the price of operational co-operation. To what extent have Ministers explored these wider options for renegotiating our justice and home affairs relations with Brussels? I say that partly because it is a vital policy issue at stake but also because, at home and abroad, the crime and policing opt-out will be seen as a litmus test for Britain’s wider strategy of renegotiation. It is important for the credibility of that strategy that what we achieve on the crime and policing opt-out is understood as a point of departure, not the point of arrival.
Let me be clear about the positive alternative for our engagement with our EU partners on justice and home affairs. This is not all about knocking the European Union for ideological or dogmatic reasons. I see huge value in robust law enforcement co-operation at the operational level within Europe. The more flexible the EU can be on the structure of the legal form, the better operational friend they will find us in practice. Of course we want to exchange criminal records information, but we do not want the personal data of innocent British citizens washing around Europe, particularly with Governments—let us be honest about this—whom we would not trust to safeguard it. I have to say that I am not sure about trusting our own Government and Whitehall with lots of our personal data. If we do not trust Whitehall, what hope is there when it gets shipped off to Warsaw, Sofia and places like that?
Yes, we should engage in joint police operations, but there is no reason—none at all—for us to allow the initiation or oversight of such co-operation to be determined by EU authorities. There are also wider efforts to harmonise criminal law, which are wholly unnecessary and, to be frank, set a pretty bad precedent. Whether the question is which drugs to ban or how to define the delicate balance between hate crime and free speech, this House is the right place to pass British criminal law.
I want to touch on three specific measures. First, on Europol, I have no hesitation in saying that British police should share information and co-operate at an operational level. I worked directly with Europol and Eurojust when I was posted to The Hague during my time at the Foreign and Commonwealth Office. I see real value in the college structure that allows smoother day-to-day co-operation between national offices. Europol is not perfect as currently configured. It has all the features of bureaucracy and waste that we expect from the EU, including—believe it or not—the €35,000 contract it signed in 2010 to send flowers to itself.
For all its flaws, Europol serves an important function. However, it is not in the UK national interest to see Europol acquire supranational powers that trump national authority over our police. I am already nervous about the existing power of Europol to initiate investigations in the UK and the increasingly limited right to refuse.
The new regulation on Europol, which we will debate later, would also require UK police forces to give foreign police open access to their files. All this would be interpreted by the European Court of Justice. Step by step, the EU is heading towards a supranational model. What is our long-term vision? Should we not be saying, clearly and unambiguously, that we will not hold back willing EU states that want to go down this route, but that it is not a model we will subscribe to over the long term? I ask again whether Ministers have laid down a future marker on that point.
Secondly, on Eurojust, a college of collaborating national prosecutors is hugely beneficial. I would rather it did not splash out €300,000 on Mercedes-Benz, as it did in 2010, or €33,000 on its end-of-year bash, as it did in 2011. Still, co-operation is important.
The Commission, however, is poised to announce a new regulation to beef up Eurojust’s supranational powers and create the European public prosecutor. The announcement is expected shortly. In fact, it appears to have been delayed and one might wonder whether the reason for that was so that it would not take place before this debate, but perhaps we would flatter ourselves too much if we believed that. In any event, I ask again whether Ministers have laid down a marker whereby, if Eurojust evolves in this way, Britain must carve out a separate, bespoke relationship.
Finally, on the European arrest warrant, few Members would deny that fast-track extradition benefits the police, although I think that some of the representations from law enforcement agencies have been rather one-sided. Even Commander Gibson of the Metropolitan police has said that
“resources are stretched dealing with the amount of EAWs we receive”,
because the regime is lop-sided. For every EAW Britain issued in 2011, we got 33 back. We receive about a third of all European arrest warrants.
A lot of non-British nationals are involved and we do not have quite the same stake or interest in the safeguards to which they are subject, but the fact of the matter is that the increasingly broad net of the EAW sweeps up far too many innocent Britons who are, to be frank, hung out to dry by the British justice system.
Michael Ellis (Northampton North) (Con)
I was a fierce critic of the European arrest warrant, but does my hon. Friend agree that the changes envisaged by the Home Secretary make it completely different from that which has gone before? For example, the changes to proportionality restrict the extradition of people for petty and minor offences and the changes to bail mean that individuals can be bailed pending proceedings. There is also a change to charging decisions, because previously people could be extradited before the foreign country had even decided whether to charge them or not. Those decisions, taken by this Government, this House and the Home Secretary, mean that the European arrest warrant as we have known it will be completely different, so it can and should have our support.
Mr Raab
My hon. Friend makes a good point. I will come back to the proposals in the Anti-social Behaviour, Crime and Policing Bill and the extent to which we need to scrutinise them. I accept that this is an important opportunity to mitigate the blunt edges of the EAW, but the fact is that, at the moment, its broad net sweeps up too many innocent British nationals such as Andrew Symeou, Deborah Dark, Michael Turner, Edmond Arapi and, in my constituency, the retired judge Colin Dines, who suffered a stroke as a result of the pressure and stress of being subject to the warrant. We hope and expect that it will be dropped, but he and his family will still be left to pick up the pieces.
Jacob Rees-Mogg
Is it not the case that if we opt back in, the European arrest warrant cannot be better in future than it is now, because at present it is not subject to the jurisdiction of the European Court of Justice or to enforcement by the European Commission, but then it will be? Therefore, whatever laws we pass in this House will not be determinative. It will be determined by the European Court of Justice.
Mr Raab
My hon. Friend makes his point, which I will come back to, in a powerful way. The issue has two distinct elements. We could get away with UK safeguards without amending the framework decision, but would they then be whittled away by the Luxembourg Court? My hon. Friend is right to raise that point.
I have mentioned a series of cases, all of which are appalling miscarriages of justice. The point I want to make—this is difficult for our coalition partners, who feel strongly about civil liberties and have strongly supported extradition reform when I have raised it in this House—is that if people are concerned about extradition and blunt extradition under our arrangements with the US, they cannot turn a blind eye to what has been happening under the European arrest warrant, because this is not about the odd case but systemic. Britain’s senior extradition judge, Lord Justice Thomas, stated publicly in his evidence to the Baker review—this has already been alluded to—that the EAW system has become “unworkable” and that unfairness is a “huge problem”.
This is not about a piffling, odd case here or there, or the trivial cases that get cited and bandied around left, right and centre; it is about serious cases such as that of Symeou, who was, in effect, wanted for killing someone, and Colin Dines, who was wanted for a very serious fraud. We all accept that those are extraditable crimes—that is not the issue. The question is whether we trust the investigating prosecuting authorities and courts in some of these other countries and whether we turn a blind eye to some of the appalling prison conditions.
Nick de Bois (Enfield North) (Con)
My hon. Friend mentioned the case of my constituent Andrew Symeou. Is not the core of the problem that the European arrest warrant fundamentally rests on a concept of mutual recognition and mutual trust that all systems are the same and have equal fairness and human rights? Only last week at the Organisation for Security and Co-operation in Europe conference, Hungary, a member of the European Union, was condemned by parliamentary delegates for wrong practices, which surely cannot allow mutual trust to continue.
Mr Raab
My hon. Friend is spot on. In fact, Lord Justice Thomas has said that the EAW
“presupposes a kind of mutual confidence and common standards that actually don’t exist.”
None the less, for all the flaws in the EAW—I recognise its law enforcement benefits as well—I do not take a particularly dogmatic approach to it. The optimum solution would be not to ditch the EAW altogether, but for Britain, having exercised the block opt-out, to press for safeguards as a condition of opting back in. The problem with that, however, is that I understand that the Government regard renegotiation of the framework decision as unfeasible within Europe because there is no majority to support it. Incidentally, that blows a hole in the Liberal Democrats’ stance of saying that we can achieve safeguards through negotiation if we opt back in straight away. That is naive: we would lose all our leverage. I will come back shortly to what I think is the way forward.
The other cheerleaders for the EAW seem to point to the Hussain Osman and Jeremy Forrest cases, but we should not need extradition to get British fugitives back from Europe—a point fundamentally missed too often in this debate. Those kinds of people, particularly British nationals—whether they be in Spain or whether they are Jeremy Forrest, Hussain Osman or any of the other names that are bandied around—should be deported, not extradited, straight back home without fuss or fanfare. The point is that, far from being the cure, EU law in the form of the 2004 citizenship directive, which Labour blindly and irresponsibly agreed to, has whittled away the power to deport nationals back home, which is another clear area where Britain should seek repatriation of power. If we had stronger national powers of deportation, we would not have had to become so reliant on this blunt EU extradition regime.
Another argument is that extradition under the old Council of Europe conventions would be slower. That is true, but it does not mean that any fugitives would go free. Their return might end up being delayed for a bit, and I can see that that would be annoying for the police. But, in the absence of adequate reform of the EAW, the slightly slower surrender of crooks in return for protecting the innocent is not the worst situation we could be in, at least for a limited period during which we negotiated more balanced extradition treaties, either bilaterally or, as my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg) said, multilaterally with the EU, which now has a distinct legal personality. All the Opposition’s scaremongering about diluting public protection if we tinker with or seek to reform the European arrest warrant is nonsense.
The Government have tabled proposals to introduce safeguards into UK law to prevent further miscarriages of justice under the European arrest warrant. I welcome those proposals. There will be certain questions to consider in this context. Can we go far enough in taking off the rough edges of the warrant without falling foul of the framework decision, particularly given the fact that the Luxembourg Court will have the final word in interpreting these cases? I urge the Joint Committee on Human Rights, as well as the other Select Committees, to look into this matter. It has already produced a report on extradition in which it looked at the adequacy of the European arrest warrant, and it would be well placed to give a discreet analysis of this issue within the available timeframe. I shall withhold my final judgment on what we should do about the European arrest warrant until then.
Even with adequate safeguards, our opting back into the EAW would give the Luxembourg Court jurisdiction over the fate of British nationals. I would be interested to know whether Ministers have laid down a marker about our wider justice and home affairs relationship and specifically about the future role of the Luxembourg Court. I am talking here about the wider renegotiation of the justice and home affairs relationship. I appreciate that that is not technically within the terms of the block opt-out, but I believe that this is an opportune moment at which to lay down such a marker. Doing so would give many Conservative Members reassurance.
I can support the motion because I support the block opt-out, and I look forward to debating all the individual measures. The critical issue for me at this juncture is to receive assurance that the message has been delivered to Brussels, loud and clear, that this crime and policing opt-out process is just the appetiser, before we begin the wider renegotiation and repatriation process that Britain wants and needs.
Mr Robert Buckland (South Swindon) (Con)
It is a pleasure to follow my hon. Friend the Member for Esher and Walton (Mr Raab). In his excellent, detailed speech, he made an interesting political point about the importance of the Government setting out their philosophy on the future of justice and home affairs in the European Union. I am very enthusiastic about the economic progress of the European Union, but I have always been more cautious about justice and home affairs. That caution is in part based on my long experience as a common lawyer in the law of England and Wales, and I am glad that the Government have decided to opt out of what we used to call the third pillar.
Some of the differences between our jurisdiction and those of the other member states are sometimes a little over-dramatised. In this country, we rightly place great emphasis on the charging process and on the process that follows, from charge up to and including trial. One of the great differences in our way of proceeding in criminal matters is to be found following the decision to charge and during the detention of the defendant. In other member states, the process is often much more inquisitorial, with a heavy degree of judicial involvement in the investigation. It can involve a wholly different way of dealing with criminal proceedings from that of England and Wales, and indeed of Scotland.
That underlines the fundamental issue that we have with many of the proposals that emanated from the justice and home affairs pillar. Notably, one proposal that we rightly decided not to opt into related to access to lawyers. In this jurisdiction, we believe that access to lawyers is fundamental once a subject is charged and being interviewed formally in a police station under the terms of the Police and Criminal Evidence Act 1984. However, if we read the EU directive carefully, we see that the proposal applies to the investigative stage as well. I could not support that, and neither could the Government, bearing in mind the potential consequences for the admissibility of evidence in a trial and the burdens that it would place on the investigating authorities, which would have to ensure that lawyers were present at the early stages of the criminal process. That is why a process of opting in en bloc would have been wholly wrong. It would have embraced far too many aspects of justice and home affairs that are completely alien to the way in which we conduct criminal proceedings here.
I want to address what is probably the most politically contentious issue, the European arrest warrant. I shall remind the House of some further statistics relating to the arrest and surrender of people under the warrant. Between April 2009 and April this year, just over 4,000 people were surrendered from England and Wales to another EU country, of which only 181—or about 5% —were United Kingdom nationals. In reverse, 507 people were surrendered to the United Kingdom from another EU country in that same period, of which just over half were British nationals.
It is clear from looking at those statistics that the European arrest warrant is undeniably an important tool for the efficient administration of justice. We must have a debate on the consequences of subjecting the regime to the jurisdiction of the Luxembourg Court, but it would be wrong, and foolish in the extreme, to ignore the reality of the hundreds of victims and their families who are looking to the authorities to act swiftly to bring individuals to justice. And it does not stop there.
I have mentioned the arrest warrant, but it is right to point out that, in a large number of other measures, there exist helpful schemes of mutual recognition that will assist prosecutors—for example, when they are seeking to adduce evidence of previous convictions, where admissible, in certain trials. The mechanism will be much improved by which serious convictions recorded in other EU jurisdictions could become relevant for the consideration of juries in England and Wales. That is a good thing.
Mr David Burrowes (Enfield, Southgate) (Con)
My hon. Friend is bringing a lot of wisdom and experience to this issue. Given that we want to stand alongside the victims to ensure speedy and effective justice, does not the figure of 5% of British nationals that he mentioned give rise to concern? Let us take as an example the case of Andrew Symeou, which my hon. Friend the Member for Enfield North (Nick de Bois) mentioned. The present arrangements have done no service to the victim, given the length of time taken up by the process, and the fact that the charge was based on flimsy evidence and that the authorities had plainly got the wrong man.
Mr Buckland
I pay tribute to my hon. Friend and to my hon. Friend the Member for Enfield North (Nick de Bois) for the campaign that they have rightly pursued on behalf of that Enfield resident.
I made the point earlier about the distinction between our system of justice and certain others. Ours seeks to use proper evidence to identify individuals who are suspected of committing crimes, and then to proceed against them. We have to look at that in the context of other systems in which the investigation process is far too long and in which evidence that we would not regard as strongly probative can be used to launch an investigation that can result in someone being incarcerated for an inordinate period of time. The amendments to the Anti-social behaviour, Crime and Policing Bill, which will amend the Extradition Act 2003, are vital in this context. I was delighted to see that one amendment provides that, in the absence of a prosecution decision, a court would have to consider that factor before allowing extradition. In fact, it would be barred where there was no clear prosecution decision to charge or try the individual concerned. I believe that the sort of monstrous situation in which Mr Symeou and others have found themselves can in large measure be avoided.
Michael Ellis
I hear what my hon. Friend says, but does he agree that the changes envisaged to the European arrest warrant as enunciated by the Home Secretary a few days ago make it a very different kettle of fish?
Michael Ellis
I see the Labour Benches are as full as I would expect them to be, which says something about the interest of the Opposition in this matter. Does my hon. Friend agree that the European arrest warrant will be something completely different because its charging decisions will be made beforehand, and that proportionality is another factor that must be carefully considered?
Mr Buckland
My hon. Friend is right to repeat a good point, and he should make no apology whatever for that. When I went to court I was always taught to make the point, make it again, and make it again if I thought the jury was in some way unsure.
Mr Buckland
I certainly was not charging by the word; it was a graduated fee system, but that is for another debate. I do not think my hon. Friend should be criticised for repeating the point.
Mr Buckland
I will give way in a moment, but I want to deal with the point raised by, among others, my very good hon. Friend the Member for North East Somerset (Jacob Rees-Mogg). In an interesting intervention earlier in the debate, he mentioned the legal personality of the EU, and the possibility of an extradition agreement between the United Kingdom and the EU. I think he is right about that—[Interruption.] Well, I think he is. Against that observation, however, the reality of the situation we face in which countries and organisations are making a multiplicity of arrangements with each other means that individual bilateral arrangements will take their place far down the order of priorities—too far down for the victims of crime we represent. With the greatest respect to my hon. Friend, that is not a price we can afford to pay when it comes to the swift administration of justice.
Mr Cash
I rose to say that I thought my hon. Friend was making a good job of what I think is a voluntary opt-in to this debate, and it is very instructive. He talked about repeating a point again and again and again, but I think it worth pointing out to him that there is a rule, I believe, about tedious repetition. I am sure he did not mean that he was in any way going to fall into that trap.
Mr Buckland
I was not referring to me but to the previous intervention. I certainly do not fall into that category. I hope I do not, and I do not intend to —[Interruption.] I am grateful for the Whip’s assistance on this occasion in putting that on the record. In reality, the structures within which the Government have to work are not of their creation. They are the product of a rather depressing series of negotiations—and I speak as a more pro-European Conservative than most—that ended up in the Lisbon treaty.
Collectively, the countries of the European Union took themselves down a massive constitutional cul-de-sac when they should have been thinking about the growing economic crisis that exploded on us all in 2007-08. That is history and we must deal with its consequences, but the framework within which we operate is something the Government could not control. Setting out a clear intention—as the Government are doing—indicating which proposals they wish to opt back into, and allowing this place to debate each measure piece by piece, is the right way to proceed. That sends a clear message to our colleagues in the European Union, and allows practical measures to be taken that will enhance the administration of justice, while at the same time avoiding some of the pitfalls that I and others have outlined today.
Mark Reckless (Rochester and Strood) (Con)
I am grateful to be able to follow my hon. Friend the Member for South Swindon (Mr Buckland). I do not know whether I agree with much of what he concludes on this issue, but he has spoken at short notice so I clear him of the charge of tedious repetition.
Mr Deputy Speaker (Mr Lindsay Hoyle)
Order. I assure the hon. Gentleman that the hon. Member for South Swindon (Mr Buckland) was in the Chamber at the beginning of the debate and his name was on the list.
Mark Reckless
So his remarks were also very well prepared, for which I give him credit.
Earlier, the Home Secretary responded to me on the issue of whether the opt-ins under the justice and home affairs provisions—if indeed we have opt-ins now—would trigger a referendum. She shared her view that they would not, but she did not give reasons and I do not believe she spoke to the specifics of the point. The European Union Act 2011 was ably taken through the House by the Minister for Europe, whom I am delighted to see in his place—he may be able to correct or assist me, or perhaps share some of the Government’s legal insight, which has eluded me to date on this issue. Section 4(1) deals with triggers for a referendum, and paragraph (i) refers to
“the conferring on an EU institution or body of power to impose a requirement or obligation on the United Kingdom”.
An even clearer trigger is section 4(1)(j), which refers to
“the conferring on an EU institution or body of new or extended power to impose sanctions on the United Kingdom”.
It strikes me that with those opt-ins, the Commission would have the right to enforcement action, and the European Court of Justice potentially to deliver fines.
The Minister for Europe (Mr David Lidington)
My hon. Friend was right to read out those paragraphs of section 4(1) of the 2011 Act, but as its title makes clear, that section refers to “Cases where treaty or Article 48(6) decision attracts a referendum”. The decision we are debating this evening, which stems from specific provisions to the Lisbon treaty, is neither a treaty change nor an article 48(6) decision, and it therefore falls outwith the scope of section 4 of the 2011 Act.
Mark Reckless
I am not sure whether I have understood the Minister, but section 4(1) is of course subject to subsection (4), which states:
“A treaty or Article 48(6) decision does not fall within this section merely because it involves one or more of the following: the codification of practice…; the making of any provision that applies only to member States other than the United Kingdom; in the case of a treaty, the accession of a new member State.”
Subsection 4(4) does not appear to be triggered in this case.
Mr Lidington
I am sorry to intervene again on my hon. Friend, but the point I was seeking to make—I apologise if I was not sufficiently clear—was that this decision on the justice and home affairs 2014 measures is not the product of an initiative brought forward under article 48(6) of the European treaties. Article 48(6) provides for the simplified revision procedure of the European Union treaties; this is not a revision of the Lisbon treaty.
Mark Reckless
It seems the Minister is saying that in substance it would be something to trigger a referendum, but there is some technicality that means it will not in this instance.
Jacob Rees-Mogg
I am grateful to my hon. Friend because this is a most interesting point. Is it arguable to say that Lisbon is itself a treaty change, and that what is happening is consequent to a treaty change and therefore triggers the referendum mechanism, in spite of what our right hon. Friend the Home Secretary has said? Might that not be worth testing at judicial review?
Mark Reckless
My hon. Friend is right to say that these matters could lead to significant delays in the courts, and a test of judicial review. Some of those procedures can go on for some time, and there would be the prospect of a number of appeals. I wonder whether the Government have taken the sequencing of these issues into account in their timing.
Michael Ellis
Would my hon. Friend accept that this concerns the potential retention of more powers from Europe, not more powers going to Europe for the first time? The provision to which he refers therefore does not apply.
Mark Reckless
No, I would not accept that for a minute. I was prepared for a repetitious intervention later, but my hon. Friend got in early. I must make some progress, and I will deal with his point.
The situation is the complete opposite of what my hon. Friend says. Under Maastricht—that great success hailed from the rooftops by an ex-Prime Minister who called it game, set and match to Britain—we had intergovernmental procedures and pillared structures, meaning that the Commission and the European Court of Justice would not be involved in foreign and justice and home affairs matters; they would be dealt with solely on an intergovernmental basis. Unfortunately, those pillars have been chipped away at, and with the Lisbon treaty, they were knocked over, hence today’s motion. The previous Labour Government could not say that the constitution was exactly the same as the Lisbon treaty—I am informed by my hon. Friend the Member for Hertsmere (Mr Clappison) that making out the two were different was one of the few face-saving fig leaves they picked on—and now these areas are being folded into the treaty structure originally envisaged under the Maastricht treaty. Rather than an opt-out from 130-odd measures, as the idea is styled, the proposal was—until the acceptance earlier of amendment (b), which was very significant—to opt into Commission enforcement of ECJ jurisdiction in 35 measures, including almost all of the most important.
Mr Cash
I would like to pay tribute to my hon. Friend. I can well remember how some years ago at Oxford, at the time of the Maastricht treaty, he was able to participate in debates and discussions on these very issues. We were in complete agreement then, and have remained so ever since.
Mark Reckless
Yes, but that was partly because I and others benefited greatly from the instruction of my hon. Friend, and I now very much enjoy working with him on these issues.
There has been a sea change in how these issues are seen in this country. We talk about a zone of
“freedom, security and justice without internal borders”,
but many of the problems that the European arrest warrant and other provisions are meant to tackle are problems only because of the free movement within the EU that has led to many people from particular EU countries coming to these shores. I welcome enormously our apparent bilateral co-operation with the Romanian police. Apparently, there is an encampment of Romanians around Hyde Park corner and Marble Arch, and we are getting assistance from the Romanian police to deal with that, but were it not for the treaty rights and freedom of movement, we could deport these people.
The Immigration Minister said earlier that he did not want to criminalise being an illegal immigrant, because the objective was to get them back to their home countries. Similarly here, rather than give up our system of justice and have it administered at a supranational level, we ought to be able to deal with these extradition requests—my hon. Friend the Member for Croydon South (Richard Ottaway) informs us that 95% of them are for nationals of other countries—simply by deporting them to their countries. We do not need an extradition arrangement. If a national of a third country is creating problems in this country or if we have evidence from another state that they would like them back to deal with one of these issues, we should be able to deport them. We do not need something administered and overseen by the ECJ with enforcement powers, via the Commission, to deal with these issues.
We have heard about the protections under the EAW. My hon. Friend the Member for Northampton North (Michael Ellis) is no longer here, so I guess I will not be taking an intervention from him on this issue. We have read, however, about what these protections are. On pre-trial detention, the Home Secretary told us:
“Other hon. Members have expressed concerns about lengthy and avoidable pre-trial detention. I will amend our Extradition Act 2003 to ensure that people in the UK can be extradited under the European arrest warrant only when the requesting state has already made a decision to charge and a decision to try”.
That sounds good, but she then continued:
“unless that person’s presence is required in that jurisdiction for those decisions to be made.”—[Official Report, 9 July 2013; Vol. 566, c. 178.]
Even that protection, therefore, is inoperable in some member states—and, I fear, some of the member states that might give rise to some of the greatest problems in this regard. Even if we have that protection, however, the whole thing is susceptible to the ECJ. The ECJ will decide what it means, not us.
Ever since, under the Single European Act, we have had majority voting on health and safety matters, and we saw employment law suddenly become a matter of health and safety, meaning that European institutions, rather than Parliament, can determine what happens in this country, I have been sceptical about the ECJ. My hon. Friend the Member for Esher and Walton (Mr Raab), who is probably more knowledgeable about these issues than any other Member, rightly drew our attention to the Metock judgment and what that meant for Ireland and, by implication, other member states in terms of our powers—or now our absence of powers—over matters of immigration. Were we to opt back in and were we not to vote to leave the EU, we would be putting these 35 areas irrevocably under the control of the Commission and the ECJ. I simply cannot believe that that is right.
My right hon. Friend the Prime Minister said:
“we will negotiate for a return of powers in criminal justice. We must be sure that the measures included in the Lisbon Treaty will not bring creeping control over our criminal justice system by EU judges.”
The point, though, is that we cannot do that when something is susceptible to the final judgment of the ECJ. The Prime Minister also said:
“our legal system is here to protect our citizens, and that protection should be given up only if we can really trust the legal systems of other states.”—[Official Report, 25 March 2003; Vol. 402, c. 196.]
My hon. Friend the Member for Croydon South said that the arrest warrants built such trust, but I think the opposite is often the case. There are several member states in whose criminal justice systems I and many colleagues do not have that trust, and without it we should not be putting the rights and liberties of British citizens in their hands.
In his first full year in the House, the Prime Minister, talking about the EAW, said that
“the Home Secretary would have to say, ‘I am sorry. You may spend time rotting in a Greek or Spanish jail. Weeks may pass before you are even charged with an offence that is not a crime in this country. But there is nothing I can do about it.’”—[Official Report, 9 December 2002; Vol. 396, c. 109.]
Thankfully, there is now something he can do about it. I was reading a comment by the noble Lord Hannay, who serves on the House of Lords EU Select Committee, which people quote with great authority. He said that the planned opt-outs were
“defunct, dross or things that have no impact”,
whereas staying in the arrest warrant was a “huge prize”. That was why I was initially so concerned about the motion: it referenced both Command Paper 8671 and those 35 measures, including the EAW, and would have given the imprimatur of this House to opting back into the EAW. I am delighted that that is no longer the case. I pay great tribute to my right hon. Friend the Justice Secretary, who is in his place, and the Government as a whole for accepting the amendment tabled by the three aforementioned Select Committee Chairs. In particular, I pay tribute to my right hon. Friend the Member for Berwick-upon-Tweed (Sir Alan Beith), because he has placed principle before party.
The sequencing is important. Tonight, we have a clean motion to exercise the block opt-out. Anything further will be for the future; there might be a second blip and consideration of what we want to opt back into. The Government have set out, in a document, a preliminary view, but it is no more than that. The House has not taken note of it, let alone approved it.
A week ago, my hon. Friend the Member for Cambridge (Dr Huppert) came into the Home Affairs Select Committee beaming after the Home Secretary’s statement to the House, but earlier he referred merely to his “hope” that we might opt back into the EAW.
Mr Cash
Does my hon. Friend accept that the driving force that lay behind the necessity for the Chairmen of the three Select Committees, including the European Scrutiny Committee, to ensure that this took place, was driven by the very thing he and my right hon. Friend the Member for Wokingham (Mr Redwood) were talking about earlier? Those of us who believe in the parliamentary sovereignty of this place know that this is more about the United Kingdom than it is about Europe. We have to stick to the fourth Bloomberg principle, which is that national Parliaments are the root of our democracy.
Mark Reckless
My hon. Friend is absolutely right. The constitutional principles to which he draws attention are far more important than any temporary coalition deal that may or may not have been stitched up. If it was stitched up, it has become unstitched. Instead of a motion to have a block opt-out tied to a motion on what we would opt back into, including the European arrest warrant, we now have one decision followed by another. I trust that the decision we have now on the block opt-out will be the same as the decision on an alternative vote referendum. I hope we will have learnt our lessons and that any decision on what, if anything, is in the national interest to opt back into is delayed, rather as our Liberal Democrat colleagues reconsidered what had been stated with respect to boundary changes.
I look forward to the debates in this House, the reports of the Select Committees, the legal issues, or the potential for judicial review that we discussed, and, I hope, consideration by the Prime Minister of where we have come to. Today we have an opinion poll that shows my party level with the Labour party. We have a party that is strongly united behind the Prime Minister’s agenda, as set out in his Bloomberg speech. With this block opt-out, we can keep that as long as we do not opt in to what I consider to be the most damaging to and undermining of the traditional liberties of the people of this country. I took great heart from what my hon. Friend the Member for Esher and Walton said: he said that he was going to consider carefully the merits of an opt-in to the European arrest warrant, and that he has strict and high hurdles for what assurances would be required even to consider that that could be in the national interest. I know that his views will be persuasive to many colleagues. Instead of making the decision today, we should decide just to opt out on a block basis and leave for some time after tomorrow—perhaps many months from now—the decision on what, if anything, to opt back into. I congratulate the Government on their revised approach.
Jacob Rees-Mogg (North East Somerset) (Con)
It is good news that the Government, in their wisdom, have acceded to amendment (b), tabled by the Liaison Committee Chairman, to water down the initial proposal. It is none the less worth reviewing the process of parliamentary scrutiny that this has gone through, because what we had thrown at us last Tuesday was deeply unsatisfactory. I would like to record that dissatisfaction, even though the movements that have been made since are admirable.
It is worth bearing in mind that on 14 December 2012, the Home Secretary and the Lord High Chancellor wrote to the Chairman of the European Scrutiny Committee to say:
“We would hope to be in a position to provide you with the first of the Explanatory Memoranda by early January and to have provided all necessary Explanatory Memoranda by the middle of February. We hope that this will be acceptable to you.”
There were delays, time goes by, and the Whitehall machine did not work with that efficient Rolls-Royce nature that it has been noted for historically. On 11 February 2013, the Home Secretary and the Lord High Chancellor wrote once again—these were becoming regular billets-doux between the Lord High Chancellor, the Home Secretary and my hon. Friend the Member for Stone (Mr Cash)—and on this occasion they said:
“Each of these Explanatory Memoranda will be made available to Parliament shortly, to help inform consideration.”
Now, I do not know what view right hon. and hon. Members would take of the word “shortly”. Time is an elastic concept, but it seems to me that “shortly” does not stretch from 11 February 2013 through to last Tuesday. At that point, the elastic had long since snapped. It was broken, and there was a feeling that the urgency that had once been promised had dissipated.
Jacob Rees-Mogg
The education at Stonyhurst of my hon. Friend is exquisitely fine. His quotations are better than mine, and I pay tribute to his ability to quote such fine words.
The elastic last Tuesday was firmly broken. Instead of having proper time for parliamentary scrutiny, and instead of having time when the Select Committees could do their work thoroughly and consider this matter of the greatest importance, we were told that what was going to happen was a vote today to agree to the Government’s position, with very little opportunity for any scrutiny at all. It is therefore hugely to be welcomed that the Government decided that that was not the right way to proceed, and that the views of Parliament, representing our constituents, were important in this matter to be able to see what was happening, to deliberate, to report, to take evidence and to decide what, if anything, it might be in the national interest to opt back into. While I am grateful that the opportunity for parliamentary scrutiny has improved, it was really quite extraordinary that last Tuesday we were in such a situation as to have been denied parliamentary scrutiny almost altogether. There is some praise now, but it came from a position of dispraise before.
We have heard the most wonderful, glorious line repeated by a number of speakers that this is a most noble repatriation of powers: that never before in the history of the European Union have powers been repatriated to a nation state and that previously it has been a one-way street. The power has gone out: it has left the United Kingdom and gone to our friends in Brussels, but on this occasion there was a noble fight. Horatius was on the bridge standing there fending off the massed hoards coming from Europe to impose their will on brave little Blighty, and happily 98 powers have been restored to this great country. And the ones that are being given back? Well, they have them anyway, so why are we worrying about that at all? [Interruption.] My hon. Friend the Member for Stone is saying that I am leading up to a quotation. No, I am not; I am leading up to the detail.
This may be rather boring, and one might think speeches in this House unaccustomed to delving into such matters as detail. I hope that under, I think, Standing Order No. 42, this will be neither repetitious nor tedious—well, it may be tedious, but it will not be repetitious, because nobody else has mentioned the detail—but I should like to go through some of the items that we are opting out off, the repatriation of powers that we are getting.
Mark Reckless
My hon. Friend says that he is going to tackle a matter of detail. Before he proceeds on his new list, perhaps I can tell him that the detail we were discussing before related to when a referendum is triggered. The actual text of the European Union Act 2011 is:
“Subject to subsection (4), a treaty or an article 48(6) decision falls within this section”.
There is no comma separating
“a treaty or an article 48(6) decision”.
This can surely be described as a treaty decision, in which case it would be caught.
Jacob Rees-Mogg
I am very sympathetic to the view that my hon. Friend is expressing. The view of the Government is otherwise, but when the 2011 Act was being debated it was made clear that these matters can be settled by judicial review. If there is a continuing uncertainty, that is a sensible route to go down once we know what issues will be opted into.
Mr Cash
The very thought of a judicial review in the name of Rees-Mogg invokes memories of the greatest of all the cases on the Maastricht treaty, in which my hon. Friend’s own dear late father was the plaintiff. Perhaps my hon. Friend would be good enough to take up the cudgels in his own right.
Jacob Rees-Mogg
I am grateful to my hon. Friend for reminding me of the activities of my late noble kinsman, who did indeed bring an action on the Maastricht treaty, supported by the late kinsman of my hon. Friend the Member for Richmond Park (Zac Goldsmith), who was the backer of that great venture. It may be that we can fight on where our fathers once fought, with the continuing help of my hon. Friend, the seemingly immortal hon. Member for Stone.
Chris Bryant
I have just been cogitating on the hon. Gentleman’s earlier reference to Horatius Cocles. If I remember correctly, Tacitus admits that Rome was surrendered despite the efforts of Mr Cocles.
Jacob Rees-Mogg
I thought the hon. Gentleman was going to refer to the geese that saved Rome and divert us with a bit of cackling of geese, but it was not that in the end.
Let me return to the exciting detail of where we are restoring powers. The first example that I shall regale you with, Madam Deputy Speaker, is the Council act of 3 December 1998, laying down the staff regulations applicable to Europol employees. I think that staff regulations are very important and noble, but I hardly see that as a fine repatriation of powers. There are lots of other examples—I will not go through them all, because time is short and there are far too many.
However, there are eight decisions relating to classified information. If hon. Members are willing to return to the analysis by the Government, they will see that of those eight, all of which are being opted out of, the Government say:
“To our knowledge only small quantities of classified information are currently shared with third countries under these agreements. If the UK decided not to participate in the agreement, we would continue to be able to exchange UK classified data directly with any third country.”
Therefore, eight of the 98 powers that we are repatriating are so trivial that we have not used them and, crucially, the point has been made that we could do that by agreement with the third countries individually and get exactly the same benefits. Indeed, one of the classified information-sharing deals refers to Croatia before it was a member of the European Union, so that one falls automatically, even if it were useful. I am therefore agreeing, to my horror—and probably equally to her horror—with the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper), the shadow Home Secretary, who made the point about the triviality of some of these matters. They are really not very important.
The Schengen measures that we are pulling out of relate to the accession of member states to Schengen, which is hardly still relevant. Those measures include—oh, this is glorious—a council decision made on 18 September 2008 on the test of the second-generation Schengen information system, to which we are no longer committed. That is a serious repatriation of power!
I was thinking of the ancient types, making a comparison to Horatius on the bridge, but it is not Horatius; it is more like Sisyphus, perhaps in both senses of the man. The rock was pushed up to the top of the hill, and he tried to get it over the top, but straight it rolled back down again. To use a cricketing metaphor—which is appropriate in the middle of an Ashes test series—the degree of spin required to say that we are seeing the repatriation of power reminds me only of that famous ball bowled by Shane Warne, when he was first visiting England, when he removed Mike Gatting. It spun so much, so far that it went down in history as one of the great balls in cricket. Even Tich Freeman at his peak, when he got 305 wickets in a season, did not bowl so much spin as this Government are bowling. Even Jim Laker in 1956 was not spinning away so much when he got 19 wickets in Manchester against the Australians, for there is no real repatriation of powers.
Unfortunately, there are two sides of most ledgers. When we look at the powers that it is intended to opt back into, we see rather the reverse. To go into more of this tedious detail, which I know hon. Members find somewhat soporific, the first area—the biggest and most important—is the arrest warrant. We have heard from the Home Secretary about how the arrest warrant will be placed under strict controls. She even mentioned that there will be some limits on the joint recognition of offences, but that will not be decided by our courts or our Parliament. Instead, it will be decided by a foreign court, by foreign judges, and it will be subject to the agreement that has already been made in Brussels.
Mr Cash
My hon. Friend, who is almost always right on matters of substance, might reflect on the fact that, as I mentioned earlier, the words “judicial authority” in this context were severely criticised by the European Scrutiny Committee, and there is no guarantee that a court or a judge would be involved.
Jacob Rees-Mogg
That is an important point, and we should all learn off by heart the 2001 report by the European Scrutiny Committee, I seem to remember it was—
Mr Clappison
Does my hon. Friend agree that, on the face of it, although the Government’s proposed amendment to the European arrest warrant seems simple, it depends on the view taken by the European Court of Justice—if this area is now to be subject to the jurisdiction of the European Court of Justice—and that we have no way of knowing what that view will be?
Jacob Rees-Mogg
Where I part company with the Government is in believing that it would not be better to make these adjustments in the current structure, rather than under the new structure, and to negotiate to maintain the current structure with our European partners, because as it currently stands, if we change the law, that is the law of the land. Once we have opted in, it is not: the law of the land is subject to the European Court of Justice.
Then there is the issue of double criminality. The European Commission’s website, in explaining how the arrest warrant works, says quite clearly:
“If they are punishable in the issuing Member State by a custodial sentence of at least three years, the following offences”—
which are then listed—
“may give rise to surrender without verification of the double criminality of the act”.
Therefore, although we may pass a law saying that double criminality is a requirement before we extradite somebody, the rule of Brussels is not so. Now, in the situation we are currently in, our law is superior, but then their law will be superior.
Jacob Rees-Mogg
This is always a complex area. I have never thought that any Briton could ever suffer from xenophobia, because no Briton has ever been frightened of any foreigner.
I should like to continue a little on the detail and look at item No. 48, which is the Council framework decision on the European Union orders freezing property or evidence. Therefore, we are potentially going to give to the European Court and the European Commission rights to freeze the property of British subjects. Item No. 59 deals with the mutual recognition of financial penalties. “Mutual recognition” is the most dangerous part of the agreement on justice and home affairs.
Mr Clappison
My hon. Friend’s analysis of this list of measures is absolutely scintillating, but before he moves on from that one, is he aware that, as far as the freezing of assets or evidence is concerned, the problem is that in future the Commission will have the right of initiative to propose laws? These will then be determined through the co-decision and qualified majority voting procedure in the European Parliament and the Council of Ministers. That provision does not currently exist, because the agreement stands on its own and is subject to our law. In future, it will be subject to amendment under European law and we cannot know where that will end.
Jacob Rees-Mogg
I do not think that is quite it, because I think the process is subject to a Title V opt-out. Therefore, if any of those issues are recast, we then have to decide whether to opt into the recast decision, but the decision we have opted into will be a permanent part of the acquis communautaire and we will therefore be bound by it, even if it is recast.
There are a couple of other measures that are being maintained that it is important to mention, because the surrender of powers is so significant. They include the mutual recognition of confiscation orders, which is similar to the property issue. Then there are measures dealing with the enhancing of procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial. Therefore, we are going to give mutual recognition to trials that are held without the person accused being present, which I have always thought a potentially highly unjust way of proceeding.
We should be deeply concerned about the proposals to opt back in, because of the lack of sovereignty we will then have over those essential measures. In these important areas—mutual recognition, the arrest warrant, trials without the person present and many others—we are handing over to the European Court the ability to decide whether our procedures are good enough or whether they have to be changed to meet European requirements.
Mr Cash
I know my hon. Friend has heard this before, but does he accept that, for all the examples that could be given to demonstrate that the European arrest warrant is sometimes convenient and suits the case of those in favour of it, there are many examples that demonstrate absolutely massive deprivations of justice for those people caught up in the EAW who are most unfairly treated by it?
Jacob Rees-Mogg
That is certainly the case, but I have sympathy with the Government wanting to have an arrest warrant that works. I think that is a rational and sensible view for the Government to take, but I think that they should go about it in a different way.
The European Union took legal personality at Lisbon. The EU makes deals as the EU with the United States, Korea and Singapore in the free trade area, but it has not yet been tested whether the EU can use its legal personality to make deals with member states of the EU—but that does not mean that it cannot be tried. It would be a sensible thing to do by treaty obligation not within the European treaties, but by separate treaty obligation.
It seems to me that the Government are taking the path of least resistance, which requires a surrender of sovereignty. That surrender of sovereignty is clearly in contradiction of the coalition agreement, which says that there will be no further surrender of powers to the EU. It seems to me, too, that the status quo is the opt-out and not the opt back in. Why? Because the status quo is that these issues are not justiciable in the European Court of Justice, and justice—and the fount of justice—is the essence of sovereignty. Why is Her Majesty sovereign? She is sovereign because she is the fount of justice in this country. When we hand justice over, so we hand sovereignty over—and so the move in sovereignty by making things justiciable in front of the European Court is a major change and different in kind from the opting out, which retains the powers in the United Kingdom.
I am hugely encouraged that the Government have listened so much and have been willing to move so much in a correct way to have proper parliamentary oversight. I am confident that at least the Conservatives in this Government have the wisdom and the ability to negotiate what is in the best interests of the United Kingdom and not to go down the path of least resistance. We need to maintain sovereignty here. We need to have agreements that represent our interests but are not subject to the power of a foreign court that is unaccountable to our electorate.
Chris Bryant (Rhondda) (Lab)
It is always an enormous delight to follow the hon. Member for North East Somerset (Jacob Rees-Mogg). I always feel as if I step back in time a little and a Beaufort, Neville or Spencer is addressing the House and taking us back to the 15th century when things were simpler and a Welshman knew that he could not trust an Englishman and that was about as far as xenophobia went. The hon. Gentleman gave us a fascinating tour of spin, and it is only a shame that the Home Secretary was not in her place to hear his complete demolition of her speech earlier this afternoon.
Jacob Rees-Mogg
Given that the Home Secretary now is here, I should like to say that that was not what I was trying to do.
Chris Bryant
The great thing about the hon. Gentleman is that he sometimes achieves that to which he does not even aspire—and on this occasion he did precisely that.
Let me start with what we all agree about. International criminals co-operate; they commit crimes in many different countries; they travel and they can commit crimes in one country from another country; and they try to get away with it. Crime does not stop at the channel, which is why co-operation on justice and home affairs across the European Union is a vital part of ensuring national security in the modern era. It is why I think Members of all parties have long supported the position of leadership that the British Government have taken in trying to improve these standards across the whole EU.
We also agree, I hope, that it makes sense to review that co-operation. That is precisely why Labour secured an opt-out—the one we are talking about using at the moment—in the first place. It is a Labour opt-out available to a coalition Government. I therefore suggest that the question before us now is really fairly simple. Is this motion right—the original Government motion, notwithstanding the intervention that the Justice Secretary was forced to make earlier when he suggested that he might accept an amendment that has not even been moved—is it necessary, and is it necessary now? Let me start with the “necessary now” question.
I suggest to hon. Members that we have heard no argument to say why the Government want this vote today. They signalled months ago that they were provisionally minded to opt out—fair enough—but their decision to seek to opt in to any measures, let alone the measures listed in the Command Paper, was announced less than a week ago. The Select Committees have been clamouring for more information for months, as has already been said by three of the Select Committee Chairs, begging for a list of potential opt-ins so that they could look at the matters in hand. They asked for explanatory memorandums and never received them. True, there were briefings to the media, particularly to The Daily Telegraph, but not to the Committees about how the Government saw each of these measures. The Government expected the House to endorse opting out and opting in, including the precise list of measures, without a single word of evidence from any outside body being taken by any Committee of this or the other House.
Chris Bryant
Far be it for me to suggest that the hon. Gentleman is a mendicant in these matters, but he certainly sought this many times. If that is not the definition of begging, I am not sure what is.
Then, of course, we had the bizarre event last Thursday afternoon, which was the classic kick-bollock scramble school of parliamentary drafting that this coalition has made standard practice when the Home Secretary first tabled a motion, then the Chairs of the Select Committees kicked up and tabled an amendment, but then at the very last minute the Home Secretary withdrew her motion and tabled another one, whereupon the Select Committee Chairs tabled another amendment. Now the Home Secretary has backed down on the amendment, which is her third position in a week—no Thatcher she, I would suggest, as we are certainly not going to get a “This Lady is not for turning” speech at the Tory party conference.
The end result of all that is a list cobbled together in a deal within the Government; the House given three days and no more to decide; and a motion tabled just one sitting day before the debate. Yet the Justice Secretary himself—he has been opting in and opting out of this debate; more opting out than opting in, I note—said on 19 March this year to the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith):
“I can give my right hon. Friend, and indeed the House, a clear assurance that this Government will go further than any Government in ensuring that the House is involved in the decisions that are taken, and that as we reach agreement within the coalition on the way forward, we will need fully to engage Parliament, his Committee and, indeed, all the Committees with a vested interest in the matter”.—[Official Report, 19 March 2013; Vol. 560, c. 782.]
[Interruption.] I hear some rumblings over there, but the honest truth is that none of the Select Committees has been impressed by the way in which the Government have conducted themselves. Indeed, to be precise, the hon. Member for Stone (Mr Cash) said that this was a classic case of “scrutiny gone wrong”.
Let us be clear: these are complex matters that need to be addressed. The Command Paper is one of the most impenetrable set of explanatory memorandums that I have ever encountered—[Interruption.] I have read it and understood it, but I am not sure that the Justice Secretary has either read it or understood it. Some of what he says in his own explanatory memorandum is self-contradictory.
Mr Clappison
The hon. Gentleman might like to compare this with the one relating to the treaty of Lisbon, which was produced by his Government and was originally supplied to the House in French.
Chris Bryant
I have read it only in Spanish. It is obviously a little bit more difficult when dealing not just with one coalition partner but with 26 of them.
Martin Horwood
I would like to say that I rather agree with the hon. Gentleman about the Command Paper, which could do with some treatment from the Plain English Campaign. As regards scrutiny by Select Committees, however, I am rather puzzled by the hon. Gentleman’s assertion. The Lords European Union Committee has been able to consider these matters in great detail and has produced a weighty report—an option that was open to the other Select Committees as well.
Chris Bryant
Yes, but the Lords Select Committee makes exactly the same condemnation of the Government’s process as all the House of Commons Committees and it reached the same conclusion, which I will come on to. I would argue that scrutiny is important and is not quite as simple as some Members have suggested. The process of opting back in is complex in itself, but as Commissioner Reding said earlier this year, one measure sometimes impacts on another. Whether or not the Government choose eventually to seek to opt into the precise set of measures that they listed in the Command Paper, their choice will not necessarily be deliverable.
As I have said, the Command Paper is pretty impenetrable, but it makes some pretty bold assertions. On child pornography, it states:
“If the UK were to exercise the opt-out and decide not to rejoin this measure, there would be little practical impact”.
Is that true? Can we not at least test it in Committee—or, for that matter, test the Government’s assertions on the investigation and prosecution of genocide, crimes against humanity and war crimes? [Interruption.] I can hear what the Home Secretary is saying. She must bear in mind that what we are discussing now is not the amendment that has been accepted, but her motion. That is all that is on the table at the moment.
Should we not also be able to test the Command Paper’s assertion on the European arrest warrant? I should have thought that the hon. Member for Esher and Walton (Mr Raab) and many others would want to do that. According to the paper,
“If the UK were to decide not to participate in this measure, we believe the UK would revert to the ECE”
—that is, the European convention on extradition. It continues that
“work would need to be taken bilaterally, but there is no guarantee this would be possible where Constitutional barriers exist.”
As the hon. Member for Belfast East (Naomi Long) pointed out, an important process of negotiation must be undertaken with the devolved Administrations in Northern Ireland in particular—because of the relationship with the Republic of Ireland—and in Scotland to ensure that there are no unintended consequences.
Let me now turn to whether the motion is necessary. It is absolutely clear that it is not necessary for discussions to take place with the Commission and with other member states. Indeed, the Government told the Commission in no uncertain terms that even if a motion in this House or in another place were voted down, they would reserve to themselves the right to proceed with the process of opting out. It is true that protocol 36 —which was mentioned by the hon. Member for Stone —sets out a formal process, but we all know that the process that will actually be engaged in will be complex and political, and that there will be plenty of “behind doors” conversations.
What concerns me is that without indications about the opt-ins and without knowing whether we will be able to secure them at the same time as the opt-outs, we cannot genuinely weigh the risk of opting out against what we stand to gain. That is why we tabled our amendment, on which we still intend to divide the House. The amendment does something very simple: it insists that we should have guarantees of what we can opt into before choosing formally to opt out.
The hon. Member for Stone said earlier that our idea was nonsensical, but where did we get it? It comes directly from the Command Paper, page 5 of which states that
“there is nothing preventing the Commission giving an immediate response, nor to agreement being reached informally ahead of the UK’s formal application.“
In other words, the motion is completely unnecessary, and potentially dangerous.
Chris Bryant
It always pains me to disagree with a man whom I love so much, but as the hon. Gentleman refused to return my phone calls at the end of last week, I must disagree with him on this one occasion. I think that there are genuine risks. This is what was said by the House of Lords Committee to which the hon. Member for Cheltenham (Martin Horwood) referred:
“On the basis of the evidence we have received we do not consider that the Government have made a convincing case for exercising the opt-out…Opting out of the police and criminal justice measures would have significant adverse negative repercussions for the internal security of the United Kingdom and the administration of criminal justice in the United Kingdom.”
That is a high hurdle for us to overcome if we are to move forward.
Chris Bryant
I see the hon. Member for Cambridge (Dr Huppert) moving forward, but I will not take any more interventions, because we need to hear from the opting-in Justice Secretary.
There are many other risks in relation to the timetable. We do not know which commissioners will be responsible for the respective portfolios by the end of next year, we do not know who the President of the Commission will be, and we do not know what the majority pattern in the Commission will be. The European parliamentary elections will take place on 22 May. There will be a completely different system for the appointment of commissioners next year, and by 1 December we may well have a different Commission which will take a completely different view from the present one. Moreover, during today’s debate the Government themselves have admitted—and this has come steadily more to light—that there may well be an interim period between opting out and opting in, and I think that that poses a danger to all of us.
The Home Secretary tried to suggest that this represents the grand emancipation of Britain from the thralls of the European Union. I disagree with her. The end result will be, at best, our opting out from some 67 measures that already do not apply to the United Kingdom, have been superseded, or are completely redundant and irrelevant, and from another 30 measures in regard to which it is almost impossible to see how the jurisdiction of the European Court of Justice could possibly have any effect on the European Union.
It is a delight to see the Justice Secretary. Let me end my speech with a little rejoicing. As all Members will know, there is more joy in heaven when one sinner repenteth…and that is certainly true in relation to the right hon. Gentleman. I welcome what he is about to say, because he said in 2009:
“Our instinct will always be against handing more sovereignty to Brussels unless there is a compelling reason to do so. That includes the arrest warrant.”
I am delighted to say that he has completely changed his view. The Command Paper points out that 5,184 people were arrested between April 2009 and April 2013, and that very few of them were British. I only hope that the Justice Secretary, in the process of renouncing his previous views, decides to welcome what was announced in the House of Lords this afternoon.
The Lord Chancellor and Secretary of State for Justice (Chris Grayling)
The hon. Member for Rhondda (Chris Bryant) talks a good talk, but this evening, as usual, it was mostly nonsense. I have not changed my views in the slightest. Indeed, today’s debate is about not handing powers to the European Court of Justice in particular, and about acting in the United Kingdom’s national interest.
Let us consider the background to the debate. Five years ago, the Labour party let this country down. It let us down in the debates about the Lisbon treaty, a treaty that I personally think was thoroughly bad for this country. It promised us a referendum, and then whipped its members through the Lobbies to vote against one. It promised us that the charter of fundamental rights would have no legal force, and then voted to give it legal force. Members will recall the unedifying episode in which the former Prime Minister was so committed to the Lisbon treaty that he had signed that he would not even turn up for the official event to mark its signing, and was smuggled in a few hours later under cover of darkness to sign when no one was looking. That is the truth of the Labour party’s approach to this whole issue.
I am clear about the fact that the Lisbon treaty paves the way for the creation of a European justice system. That system is now taking shape. A raft of new measures is emerging from Brussels, and the recent addition of a new justice scorecard creates a platform that will enable more to follow soon.
My right hon. Friend the Member for Wokingham (Mr Redwood) and many others were right to say that the jurisdiction of the European Court of Justice was a key element. The treaty extends the Court’s jurisdiction to justice and home affairs measures. In December 2014, the Court will take over the supervision of more than 130 measures agreed before the Lisbon treaty, which affect the administration of justice and the fight against crime in this country. Labour Members knew that, which is why they kicked the can down the road. It is why they put off the decision, and why they negotiated the opt-out from those 130-odd measures at some point in the future. I suppose that we should give them some credit at least for creating circumstances in which this Government have the option to decide what to do on behalf of the country, and this Parliament has the option to decide. That decision now resides on this side of the House, and we do not lack the determination or the will to do the right thing for the British people.
I have still not worked out what Labour Members think. They seemed both to oppose and support the opt-out. [Interruption.] Members say that I was not here, but where is the shadow Justice Secretary? The Opposition have had to put up a junior shadow Minister.
Tonight, we are seeking Parliament’s backing for the exercise of the get-out clause that the last Government put in place. The Lisbon treaty allows the UK two freedoms. The first is to opt in or out of any new measures the Commission brings forward, so we now only participate in new measures that are in the national interest. The second is to opt out of the policing and criminal justice measures in existence before the Lisbon treaty. Tonight’s vote is about whether this country takes up that second opt-out—nothing more, nothing less. If we do nothing, in December 2014 the ECJ will take over the ultimate supervision of every one of those more than 130 measures which affect the administration of justice and the fight against crime in this country.
My hon. Friend the Member for Rochester and Strood (Mark Reckless) set out some of the issues that transition would bring. I do not think that transfer should happen and that we should see all those 130-plus measures simply pass to the ECJ. Again, Labour could not decide at the time what it wanted to do, and it cannot decide again tonight. The lesson is that the Labour party was defeated at the last election because it was no longer fit for government, and it is now so indecisive and so uncertain that, frankly, it is barely fit to be in opposition.
So let me restate clearly to it what tonight’s vote is all about. This vote starts a process. The Government have reached a settled view that we do not want to participate in all the 130-plus measures. We do not want to be part of a European justice system, but we do want to be part of the fight against international crime. We do not want courts across Europe to be told by Brussels the minimum standards that should apply to the sentences they impose. We do not want matters that should be resolved by member states to be legislated for at a European level. We want to bring powers in those areas back to the UK.
We are clear that we must exercise this opt-out or face being subject to all those measures anyway. We have decided we do not want to follow a path that leads to a European justice system. Tonight’s vote, and the vote due to take place in the House of Lords next week, will, I hope, back our judgment and exercise that opt-out.
What happens then? The Government have taken a decision in principle that it will be in the interests of the UK to join a number of measures that involve international co-operation in fighting serious and organised crime. These measures set in place the mechanisms for intelligence- sharing between enforcement agencies in fighting that battle.
Mr Cash
On whether the Government will continue to seek to rejoin, would the Secretary of State take the view that it was not appropriate to do so if the evidence taken in the scrutiny process by the three Committees led to the conclusion that that was not in the interests of the United Kingdom?
Chris Grayling
What I can say to my hon. Friend is that, as he and the other Select Committee Chairmen would expect, we will look very carefully at the conclusions they draw and we will bring these matters back to the House for a further vote. He would expect nothing less than that.
There are measures, such as the prisoner transfer agreement, that are very much in the interests of this country. I personally want to see Hungarian prisoners back in Hungarian jails as quickly as possible, but as my hon. Friend the Member for Cambridge (Dr Huppert) rightly said, we should have mechanisms to ensure our police forces can work together and share information when they need to.
Dr Huppert
I thank the Justice Secretary for that comment. Will he make it clear that he believes it is in the national interest to rejoin a reformed European arrest warrant, Europol, Eurojust and the other areas mentioned in this Command Paper?
Chris Grayling
I was coming to that point. I know just how controversial the European arrest warrant has been. My hon. Friends in the Conservative party know full well that it has been a matter of great concern to me; the shadow spokesman just quoted what I said in 2009, so it has clearly been a matter of great concern. What I say to the House and my hon. Friends who share that concern is that I would not personally have signed up to this package without the sensible reforms the Home Secretary is proposing. With those reforms being put into legislation, I can say to those colleagues who shared my misgivings that I believe we can trust what the Home Secretary is doing, that I believe we can go along with this agreement, that we are replicating the situation in other member states, and that I believe this is a robust approach.
I am also very sensitive to the points the hon. Member for Belfast East (Naomi Long) made about Irish issues, and we have taken them carefully into account. I have been to Belfast and discussed this with the Justice Minister there.
Mark Reckless
The Secretary of State says he is happy to go along with this agreement. Will he explain what agreement he is talking about?
Chris Grayling
What we have agreed to do across the Government is table amendments to the Bill before the House at the moment that introduce things like a proportionality test, which is much needed and mirrors the situation in Germany. That is the kind of reform to the arrest warrant that is very much needed.
Chris Grayling
No, I am going to make some progress.
I want to return to the amendment tabled by the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith) and the other Committee Chairmen. We recognise the desire of the House Committees to carry out detailed scrutiny of our proposals. I want to make it clear that the Government are strongly committed to the set of 35 measures in Command Paper 8671, but we do not want to circumscribe debate in this House, which is why if the amendment is moved, I will be happy to accept it.
This is not simply a question of us deciding that list. There is a process of negotiation with the Commission and the other member states to follow. We will need the support of the Council and other member states if we are going to opt back into different measures.
Chris Bryant
The Justice Secretary referred to the changes to the operation of the European arrest warrant that have been tabled here. We broadly support them. They seem to be sensible measures and I congratulate the Home Secretary on what she has done, but will the Justice Secretary clarify for us whether they have been discussed with any of the other member states or the Commission?
Chris Grayling
Both the Home Secretary and I have had extensive conversations with other member states and, of course, the proportionality test we are introducing is very similar to the one that exists in the law of Germany and one or two other member states. The hon. Gentleman has very full of knowledge of the conversations I have had in Brussels, but I have to say to him that not all the information he has come up with reflects truly the conversations I have had. What he needs to remember, which he seems to have forgotten in all of this, is that we need the collaboration of the Commission and the other member states simply to agree the process. That is why we are voting tonight. We are doing so in order that some of those process discussions can begin and we can get on with the job of making the transition possible and, so we do not leave the kind of gap he is talking about.
Chris Grayling
No, I am going to make progress as I am running out of time.
We are here tonight because the Labour party broke a promise. It said it would give Britain a say on the Lisbon treaty; it then denied that to the country. This is actually the only chance we get to say no to a part of the European treaty—the Lisbon treaty—and let me remind Labour Members that if they walk through the Division Lobby tonight, they will be voting against that opt-out. They will be voting against what they themselves negotiated, and if they vote that way tonight, we will remind them again on doorsteps up and down this country. We will tell every Eurosceptic voter up and down this country what they have done—that they are voting for a federal European justice system and not in the interests of this country.
To my Liberal Democrat colleagues I say that the list of measures we have agreed, and which we will have debated by this House, represents a sensible balance of the different views in the coalition and represents what it is in the national interest to do.
To my Conservative colleagues, I say simply this: everyone knows my position on matters European—I believe that Britain’s position in the European Union needs, at the very least, to change pretty radically—but I strongly believe that this set of proposals on which we are voting tonight is the right one for Britain. If we do not exercise this opt-out, we will be trapped in yet another part of the conveyor belt towards an ever-closer Europe. As a party we should see this as a marker of the renegotiation that will come after we have won a majority in the next general election; it will be part of a process of bringing powers back to this country, which we desperately need to do, and of restoring a position that is right for the United Kingdom. But tonight’s vote is about whether or not we exercise the opt-out that the Labour party rightly negotiated—an opt-out that is clearly in the interests of this country. It is so essential that we act in the interests of this country tonight. So I call on all colleagues from all parts of the House to vote to exercise this opt-out and to do the right thing in the interests of this country.
Amendment proposed: (c), leave out from ‘House’ to end and add
’believes the UK’s notification to the Council, Commission and Presidency to opt out of all EU police and criminal justice measures adopted before December 2009 can only be made once the Council and Commission have committed to the UK’s ongoing participation in the European Arrest Warrant, the Schengen Information System II, Joint Investigations Teams, EU Council decision 2000/375/JHA on combating internet child pornography, EU Council decision 2002/348/JHA on international football security co-operation, exchange of Criminal Records, Europol and Eurojust, which will form part of the Government’s formal application to rejoin the measures in Command Paper 8671 in accordance with Article 10(5) of Protocol 36 to the TFEU.’.—(Chris Bryant.)
Question put, That the amendment be made.
Proposed Europol Regulation
(11 years, 5 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
21:59 - The House divided: - Ayes: 232 / Noes: 336 - Question accordingly negatived.
Mr Deputy Speaker (Mr Lindsay Hoyle)
I inform the House that Mr Speaker has selected the amendment in the name of the Leader of the Opposition.
The Parliamentary Under-Secretary of State for the Home Department (James Brokenshire)
I beg to move,
That this House takes note of European Union Document No. 8229/13 and Addenda 1 to 6, a draft Regulation of the European Parliament and of the Council on the European Union Agency for Law Enforcement Cooperation and Training (Europol) and repealing Decisions 2009/371/JHA and 2005/681/JHA; and agrees with the Government that the UK should opt into the Regulation post-adoption, provided that Europol is not given the power to direct national law enforcement agencies to initiate investigations or share data that conflicts with national security.
The motion sets out the position that the Government intend to take on the new Europol regulation, which the Commission published at the end of March. The motion makes clear our view that we should not opt into the regulation now but only after it is adopted, provided that the two conditions set out in the motion are met. Those are that the regulation does not empower Europol to direct national law enforcement agencies to initiate investigations and that it does not require them to share data that conflict with national security. To join the regulation with those requirements in it would not be acceptable.
In making the recommendation, the Government had two choices. We could opt into the new Europol regulation by the initial deadline of 30 July—in other words, within three months of its publication. That would give us a vote in the negotiations, but would mean that we were bound by the final text even if it contained measures that we could not support. Alternatively, we could wait until the negotiations were finished and then make a decision, knowing exactly what we would be signing up to. That is the approach that the Government are recommending tonight.
In saying that, I recognise, of course, the important help that Europol gives us in the fight against cross-border crime. I have seen that at first hand and I know it has played a crucial role in helping the police catch some very serious criminals. For instance, Operation Rescue brought together law enforcement authorities from 13 countries to tackle an online paedophile network. Europol cracked the security features on the network’s server, which allowed law enforcement to identify the offenders. As a result, 121 suspects were arrested in the UK and 230 children were protected from abuse.
Keith Vaz (Leicester East) (Lab)
I join the Minister in praising the work of Europol, which I visited four weeks ago. I saw the superb work that is being done. Is it not better that we should be part of the discussions, influencing them, rather than just accepting the new architecture after it has been arranged?
James Brokenshire
I hope to assure the right hon. Gentleman that we will be there, influencing and seeking to negotiate the measure. We may not be opting in at the outset, but that should not in any way, shape or form be taken as the UK Government’s not wishing to seek to influence the measure and create the changes that we believe are necessary for us to consider a subsequent opt-in, post adoption.
The right hon. Gentleman will want to congratulate Rob Wainwright, whom he spoke to on his recent visit, on the important job that he is doing to make Europol an effective, well-managed and widely respected organisation in the fight against international crime.
We can point to other examples. Operation Golf, which has been cited several times previously in this House, was a joint UK-Romania investigation team targeting a specific Romanian organised crime network. Offences associated with the network included human trafficking, money laundering, benefit fraud, perverting the course of justice, theft, and handling stolen goods. Europol provided analytical support and facilitated real-time checks on its systems, and 126 individuals were arrested in the UK. Europol’s help in Operation Seagrape led directly to the identification of bank accounts used by a people-smuggling gang based near Dunkirk. French, Belgian and British agencies worked jointly to target a specific organised crime group, and 36 arrests were made. It is for those reasons that the Government believe that it is in the national interest to seek to rejoin the current arrangements for Europol agreed back in 2009 as part of the 2014 decision. That was made clear in our discussions in the previous debate.
However, that is not the matter before us now. Instead, we need to decide whether to opt into the new regulation, which sets down new rules and powers for Europol and, we believe, would change its relationship with member states in some quite troubling ways. Our first concern is with the proposals on data exchange. The Commission wants member states to share more data with Europol. That is a good idea in principle; after all, Europol can only be as effective as the information it holds. However, a strong legal obligation to supply it with data, as proposed in the draft regulation, is a different matter. It would undermine member states’ control over their own law enforcement intelligence, which we regard as absolutely fundamental.
Even more worrying is the fact that the draft regulation does not exempt member states from providing information even if it could damage national security, or endanger ongoing operations or an individual’s safety. These protections are explicit in the existing instrument governing Europol but absent from the new proposal. That is a significant change. The proposal also strengthens Europol’s power to request investigations. It can already do this to some extent, but the new proposal creates a presumption that member states will comply with a request. It also strengthens their duty to give reasons if they decide not to do so. That is particularly worrying because any reasons could be subject to challenge before the European Court of Justice.
The European Scrutiny Committee has asked whether article 276 of the treaty on the functioning of the European Union would protect us from having a refusal challenged in the Court. We are not convinced that it would. Article 276 prevents the Court from reviewing
“the validity or proportionality of operations carried out by the police or other law enforcement services”.
It is highly debatable whether a decision to refuse to open an investigation would constitute
“operations carried out by the police”
because, by definition, no operation would have been carried out. We therefore do not think that article 276 provides enough protection against the Court’s involvement. This creates a real risk of the European Court being able to second-guess our policing priorities. That would simply be unacceptable. Policing is a core function of a sovereign state and it must remain a member state responsibility.
Dr Julian Huppert (Cambridge) (LD)
The Minister raises two concerns that I share to some extent. Presumably other member states have also had these concerns. What conversations has he had with them about whether other countries will be joining us to try to get this changed?
James Brokenshire
My hon. Friend makes an important point. Discussions have already taken place and member states have voiced concerns. Our certainty faces a challenge because, as I will come on to say, there is an element of risk with regard to what will happen, given that there is qualified majority voting and the European Parliament can make a co-decision. Given the significance of the issues, it is right that we wait to see what the final measure looks like before deciding whether to opt in. I think that that is the right approach, which is why we tabled the motion. However, as I told the Chair of the Home Affairs Committee, that does not mean that we will not engage in active discussions with member states, the Commission and others in order to seek to influence this measure as it is negotiated.
I have discussed the proposal personally with senior law enforcement officials from across the UK. Like us, the law enforcement community supports Europol as it is now, but the senior officers I spoke to agreed that our issues with the new text are real and serious.
On the Opposition’s amendment, the Government agree entirely that it is right to consult chief constables and law enforcement partners as part of this process. We have consulted senior law enforcement officers from across the UK, including the Metropolitan police and policing partners from Scotland and Northern Ireland. However, I ask the House to reject the amendment, because ultimately this is a decision for Parliament and the amendment does not contemplate Parliament coming to a view on whether we should opt in post-adoption.
Some hon. Members may argue tonight that we should opt into this proposal and negotiate out the elements that cause us concern. The problem with that is that the proposal is subject to qualified majority voting and we cannot guarantee that we would get the changes we need. We could quite easily be outvoted in Council, and then we would be bound by the final text, even if it contained elements we could not accept.
The Government are not prepared to take risks on something as important as this, which goes to the very heart of our law enforcement. We therefore intend not to opt in at this stage, but to remain fully engaged in negotiations and work with other member states and the European Parliament to push for the changes we need.
We know that member states and the EU institutions value our experience in this area. We have already had indications that others recognise our concerns and are prepared to work with us to try to find a solution.
We do not expect the regulation to be agreed much before the end of 2015. When it is agreed, we will consult Parliament on it again, depositing the final text with an explanatory memorandum, and, as this House knows from the handling of the human trafficking directive, we will be able to hold another debate at that time.
I stress that the Government’s position has no immediate implications for our participation in Europol. As I have said, we believe it is in our national interest to seek to rejoin the existing Europol legal instrument as part of the 2014 decision process. By doing so we will retain our full membership of the organisation throughout the negotiations, so nothing will change for the foreseeable future.
Mr Dominic Raab (Esher and Walton) (Con)
The Minister is setting out cogently the scrutiny being exercised by the Government and the pros and cons. If we cannot remove the supranational whistles and bells, what contingency planning or negotiations are in place so that, if we do not opt back in, we can still retain operational co-operation, which, whatever anyone’s views from an ideological standpoint, most people would regard as important?
James Brokenshire
I heard my hon. Friend speak in the preceding debate about the importance of continuing operational co-operation. Members from all parties recognise the transnational nature of crime and the subsequent operational need for law enforcement divisions from all European member states to be able to collaborate and co-operate in order to fight it. We certainly believe that, because of the way in which Europol can bring a number of member states together in one space, it is the most effective way to proceed, provided that the appropriate safeguards are met when the measure is finally concluded and negotiated, and that they reflect the concerns that my hon. Friend raised in the previous debate about extensions into supranational competency. The Home Secretary also made clear in the previous debate her views on a European police force.
Subject to those safeguards being introduced, we believe that a reformed Europol measure is the optimum way forward, but it is clearly open to us to negotiate individual operational relationships with other member states. However, in our judgment, the nature of Europol and the intelligence work that it conducts in support of member states’ law enforcement agencies mean that our emphasis will be on seeking to influence the measure and to be in a position to opt into it following its adoption, provided that the appropriate safeguards are achieved. Again, that will be subject to further parliamentary scrutiny, and to the potential for a further debate in this House, to assess and analyse the provisions and to ensure that the appropriate safeguards are provided.
We wish to remain part of Europol, and will do so provided we get the amendments that we need, but we cannot support it at any price. We will not put our sovereignty and security at risk by committing ourselves in advance to a proposal that, as drafted, poses significant risks to both. The Government’s approach shows that we are serious about international police co-operation and about protecting the autonomy of our law enforcement agencies. I urge the House to support the motion tonight.
Mr David Hanson (Delyn) (Lab)
I beg to move amendment (a), in line 4, leave out from ‘2005/681/JHA;’ to end and add—
‘and calls on the Government to consider the views of the Association of Chief Police Officers in deciding when to adopt the measure.’.
I am pleased that there is consensus across the House that Europol does a good job for the citizens of the United Kingdom, and that it is beneficial to this country. A quick scan of the Europol website will show that, just in the past few months, it has taken action on false domains for websites, worked with the UK on Italian organised crime, looked into issues relating to counterfeit euros and targeted the enforcement of drug laws, to name but a few. The Minister also mentioned other areas of its work.
The agency is led by a Briton, Rob Wainwright, and it uses its information capabilities and expertise to identify and track the most dangerous criminals and terrorist networks in Europe. It engages in about 13,000 investigations each year. This year, recent successes in the fight against crime have included tackling match fixing in football. In March 2013, Europol broke up a criminal syndicate that was involved in match fixing in 380 top international FIFA and UEFA games, including one Champions League tie in this country.
Martin Horwood (Cheltenham) (LD)
The right hon. Gentleman is making a very good case for Europol, which makes me curious as to why his amendment seeks to take out the commitment to opt into Europol subject to the red lines mentioned by the Minister, and to replace it with a provision that is much more ambiguous than the one put forward by the Government in the first place.
Mr Hanson
I can assure the hon. Gentleman that we wish to opt into Europol. I will explain our amendment in a moment. This is a take-note motion, and I want to put on record the Labour party’s view on these matters.
Europol has also dealt with investigations into credit card fraud, making 44 arrests this year in its investigation into a massive credit card fraud network, much of which was located in the United Kingdom. In answer to the hon. Member for Cheltenham (Martin Horwood), yes, Europol is a good thing, and we wish to remain in it, but we also wish to discuss with the Association of Chief Police Officers the question of how we can remain in it in a way that is effective for the coalition Government and for the United Kingdom.
Dr Huppert
That is very kind of the right hon. Gentleman, although I find it odd that, if he is so keen on opting in, he want to remove the bit of the motion that says we should opt in. My point, however, is why consult only with ACPO? He will be aware that ACPO is a private company limited by guarantee, so why not mention bodies such as the College of Policing, the Chief Constables’ Council or any other such bodies? What is the obsession with only the one entity, which is just a private company?
Mr Hanson
Perhaps the hon. Gentleman will allow me to make a case. ACPO does cover Scotland. There is ACPO Scotland and Northern Ireland ACPO—[Interruption.] If the hon. Gentleman would calm down for a moment and allow me to continue rather than chirruping from the Front Bench, he will understand why I am raising the issue of ACPO. It has made severe criticisms of the Government’s approach, which I will reflect on in a moment.
Europol’s director, Rob Wainwright, recently told the European Committee in another place:
“It is undeniable that the demands of fighting international crime and terrorism require an ever-increasing level of co-operation between the member states.”
In my view and in his, and—I am pleased to say—that of the Government and the Liberal Democrats, Europol is a welcome institution. Today, however, we are considering the four or so areas where there are extensions to Europol’s activity in the new documents, which include extensions
“to strengthen and clarify the obligation for Member States to supply data to Europol in order for it to analyse…the information;”
to establish Europol links with data already in possession of member states to consider how we can process that in an effective way;
“to merge Europol and the European Police College…into a single EU agency, located”
not in the United Kingdom as is currently the case in Bramshill in Hampshire, but in The Hague; and an increase in
“parliamentary scrutiny of Europol by the EU Parliament and national Parliaments.”
The House of Lords Committee said that it wished to retain an opt-in to the proposals for European regulation. To assuage the hon. Members for Cambridge and for Cheltenham, that is the Labour party’s position on this take-note motion. In my view, however, the question under debate focuses on the words “post-adoption”. The Government’s proposal in the take-note motion states that the House
“agrees with the Government that the UK should opt into the Regulation post-adoption,”.
We are saying that the Government should consult ACPO, although I accept that that potentially involves a wider consultation about why and how the post-adoption issue should be approached.
I have in my possession a letter to the Minister from Allan Gibson, Queen’s Police Medal, who is the ACPO lead on extradition and mutual legal assistance. In it, he mentions a number of the reasons why this motion in the name of my right hon. Friend the Member for Doncaster North (Edward Miliband) was tabled to tease out from the Minister his position on a number of key issues.
The letter was sent to the Minister last week and states first and foremost:
“ACPO regards the UK’s continuing membership of Europol as highly beneficial to the national interest.”
I agree, the Minister agrees, and Liberal Democrat Members agree with that.
The letter goes on:
“ACPO supports the sharing of crime related intelligence and information between Member States facilitated through Europol…this facility has been a vital part of the development of more effective law enforcement cooperation across Europe and has made it possible to bring more offenders to justice and prevent crime.”
Again, I agree with that; I am not sure whether the Minister does, but I suspect that the Liberal Democrats do.
The letter continues:
“information exchange must be undertaken with appropriate levels of security and UK law enforcement would be keen to ensure that we had the necessary safeguards in place to protect highly sensitive intelligence and operations.”
I agree with that, which is why the Minister needs to consult in detail with ACPO on these matters to consider how we can do this without—dare I say this to Liberal Democrat Members—necessarily doing it post-adoption. In my view, they are being sold a fudge. They are being told that they can sign up to Europol, but they do so post-adoption.
I shall argue that post-adoption is an area of key concern, and one that we need to flesh out, consider in detail and come to a conclusion on. ACPO continued:
“Our view is that Europol membership is far too important to the UK to put at risk and adopting ‘a wait and see post-adoption opt in if we like it’ policy would not be the right approach.”
That is the view of ACPO, whose role is to look after, defend and develop crime-fighting potential in the UK. It continued:
“Such an approach would forfeit our opportunity to be seated around the table to influence our partners directly for one of signposting the basis on which we would rejoin, i.e. if our conditions are met.”
That is a very severe criticism, and it sets out why we need to maintain Europol membership. These are real concerns being placed on the record: in a letter to the Minister, ACPO said that it does not agree with his approach of a post-adoption opt-in. An explanation is needed, and we have tabled our amendment to explore these important issues of national security and data sharing to the satisfaction of the House, ACPO and others. We do not want to give up our seat at the table, as the proposed take-note motion proposes, in order to achieve our ends.
I welcome the Liberal Democrats’ support for Europol. Their policy briefing document states:
“We must not expose Britain to attack from criminal gangs. Liberal Democrats will keep Britain at the heart of international crime-fighting measures such as…the European Police Office (Europol) that the Conservatives want us to pull out of.”
[Interruption.] Sorry, I missed that comment from the hon. Member for Northampton North (Michael Ellis).
Mr Hanson
I am sorry, but I did not go to a public school, so my grammar might not be as good as other people’s.
The motion states that the UK
“should opt into the Regulation post-adoption”.
My concern is not that we might lose what we have with Europol, which is good, but that the Conservatives are looking for a reason not to develop it in the future. The Liberal Democrats, who are their partners in this great coalition of ours, are closer to my view than the Government’s. We need to hear the views of ACPO so that we can iron out the difficulties the Government have identified before the post-adoption position in the take-note motion becomes the default position.
I could quote many Liberal Democrats whose websites praise Europol and our signing up to the very things about the development of Europol that the Minister is concerned about. We need to consider the matter positively and find a way through it in the next few weeks and months so that ACPO’s concerns, which we might share, about data sharing and other issues can be worked on. We must not keep away from or fail to engage with the discussions about the development of the next stage of Europol.
I mention that with the hon. Member for Stone (Mr Cash) in mind. He is honoured to hold the position of Chairman of the House of Commons European Scrutiny Committee, although how he ever got given that I will never know—[Hon. Members: “He was elected.”] I appreciate that, but he was not elected by me. In the spirit of common cause, let me say that paragraph 1.13 of his Committee’s helpful report, “Reforming Europol”, which is published today, quotes a letter from the Minister, which says:
“‘In the longer term, it is clear that our continued participation in Europol…will depend on our participation in this new measure.’”
Paragraph 1.14 states:
“If the UK’s request to rejoin the existing Europol Council Decision is successful, can the Minister confirm that, once the draft Regulation has been adopted, it would not be possible for the UK to continue to cooperate with Europol on the current basis and that, if the conditions set by the Government for opting in post-adoption are not met, the UK could expect to be ejected from Europol?”
I do not know the answer to that question, but the key point is this: if the Government decide that data sharing, information sharing and other matters are red lines, I suspect that they will part company with the Liberal Democrats on some of those issues, and they might part company with the Labour party too. The Government might find themselves in a position where they cannot maintain a presence in Europol. Europol will have developed organically over 18 months to two years and we will not have been at the table to deal with that organic development, because of the Government’s decision to take part in negotiations post-adoption. The Minister, in his response to the hon. Member for Stone, said:
“If the UK opted in now, and if we could not gain amendments to the text during negotiations, we would be bound by the elements which cause us concern, and would be subject to infraction if we failed to abide by provisions in the Regulation.”
It is my view that Europol does a good thing. There are issues that Europol needs to examine with member states, and ACPO, among others, has identified issues that need to be addressed. However, the Government’s approach of not ratifying until joining post-adoption is wrong. I want to see more discussion. We will not oppose the main motion as it is just a take note motion, but we will press the Opposition amendment, which indicates that we want further discussions with ACPO. When a chief police officer writes, in a letter to the Minister that was copied to the Home Secretary, the Deputy Prime Minister and the Prime Minister, that
“Our view is that Europol membership is far too important to the UK to be put at risk and awaiting ‘a wait and see post-adoption opt in if we like it’ policy would not be the right approach”
it is a very serious criticism of the Government’s position and the Minister has a duty to explain further why he has rejected ACPO’s advice. Before we reach a final decision, we should discuss further with those who have put their concerns on the record in a way that is self-evident and open to all.
Neil Carmichael (Stroud) (Con)
One thing is clear: most of us think that we should be in Europol. My hon. Friends in the Liberal Democrats, the Opposition Front Benchers and the Minister are all clear on that. It is good that we have all come to that conclusion. It is fundamentally right that serious crime can be dealt with internationally across Europe, and Europol is the right tool to do that. I expect Britain to remain in Europol. However, the questions about data management, national security and so on that the Minister drew to our attention need further reflection and debate.
As for the Association of Chief Police Officers, the central point is not so much what it would like as an outcome regarding our membership of Europol, but how we get there. The important point is this: can the British Government be absolutely sure that they can have sufficient influence during the negotiation period?That is the central question, and it is one to which we will return in relation to a number of other issues, as we consider our future relationship with the European Union as a whole and various aspects of it. However, I would put down the marker that it is important for us to engage—as I think we will, based on what the Minister said—because we have to protect our interests in the ways that he described and that get us the right outcome.
Let me conclude this relatively short speech with this observation. During the forthcoming period of negotiation, it is critical that we negotiate through appropriate mechanisms. I fully recognise the point the Minister made about qualified majority voting, but it is important that we ensure that natural allies to our causes are also embraced and included in the process.
Keith Vaz (Leicester East) (Lab)
It is a pleasure to follow the hon. Member for Stroud (Neil Carmichael). He should not apologise for making a brief speech: they are most welcome in the House after seven hours debating the European Union. It is not the length but the quality of what he has to say that matters.
The hon. Gentleman is absolutely right that everyone who has spoken so far supports Europol—one wonders what we are debating—and is full of praise for Rob Wainwright, who is one of the very few British people to head a European organisation. Everyone who has spoken has been full of praise for an organisation that can look back at a history of co-operation between all European countries. I had the privilege of visiting Europol five weeks ago, and meeting Rob Wainwright and looking at the various methods by which countries co-operate. It was fascinating, and I would urge every Member of the House to go. The Select Committee on Home Affairs will probably go later this year, during our inquiry into international crime and terrorism.
Europol basically has an office for every European country, with its police officers present in those offices. If people wish to try to track down criminals who have left this country and gone to other countries, our office can be contacted. Those officers then cross the corridor—literally—and hand the information to a police officer in another country. Almost immediately the information is transmitted to that other country, so while the serious and organised criminals are out there trying to commit crimes, here we have an organisation that is working to cut through the red tape of the European Union and producing some superb results. As the Minister said, not only did Operation Golf—the operation that brought together our police force and the Romanian police—result in many strands of human trafficking being disrupted, but we caught real criminals. That was a great benefit to both countries.
I heard what the shadow Minister said about the Association of Chief Police Officers, and he is absolutely right: we should take into consideration what ACPO is saying. He is right to draw the House’s attention to the fact that ACPO has written to the Prime Minister and others about its concerns. However, at the end of the day, such decisions are matters for this House and those who sit in it. Although ACPO can be helpful in providing advice to this House and to Ministers, ultimately it is we who need to make the decision.
The debate comes down to this point. We need to opt in because Europol is a successful organisation—one that actually catches international criminals and disrupts criminal networks. In the area of Europol dedicated to monitoring the internet, I saw how, almost hourly, ACPO officials can view sites that are dedicated to supporting and encouraging terrorism. If we did not have organisations like Europol, our job in this country and the job of our police service would be much more difficult.
However, I think the Government are making a mistake in this motion. I supported the Government in the last vote because the Government accepted the amendment of the Chairs of the Select Committees and allowed us the opportunity to scrutinise the opt-out arrangements—and, we hope, the opt-in arrangements—when we have finished our scrutiny. The mistake that has been made is this: if we are not at the table influencing the way in which Europol 2, if we can call it that, will develop, I feel that we will not do justice to the police services in this country and we will not do justice to what we want to see happen in the fight against international crime.
We need that seat at the table if we are to influence the new architecture of the fight against international crime. That view has been put forward not just by ACPO but by others who seek to try to influence how this develops. Frankly, if we are not there and are not able to participate in those discussions, we will not be able to influence what the new architecture will look like.
James Brokenshire
I hope I can assure the right hon. Gentleman that we will be there and will remain fully engaged in the negotiations so that we are able to influence them. For the reasons he highlights, although we might not be opting in at the outset, I can assure him that the influence and the focus will be there and time will be spent to exert influence in a positive way. I recognise the right hon. Gentleman’s point; we are very cognisant of it.
Keith Vaz
I am not saying that Ministers, officials and UKRep will not be working very hard, but there is a big difference between opting in and being right at the top of and part of the process, and being able to engage in influence: they are two quite different things. The view of the officials I met at Europol was that they really needed to be there, and they could not understand why we were not going to be there, taking part in these deliberations and discussions.
Another one of the Minister’s arguments is “If we are there, it has to go to qualified majority voting”. He could ask the Minister for Europe about this, but I think he will find if he looks at the figures that we are almost always on the winning side when it comes to QMV. I do not know whether he has the figures, whether his officials could give him them or whether he could tell us about them if he makes a winding-up speech, but unless things have changed in the last 10 years, when a British Minister sits at a table where European issues are being discussed and it goes to a vote, we are almost always on the winning side.
I think we will be on the winning side on this particular issue because it is to do with policing and we are hugely respected for the work we do in the fight against international crime. I think the Minister’s argument is weak when he effectively says “We are afraid of the results at the European Council and we cannot take a risk because we might lose”. Of course we might lose, but I think we can make these arguments, especially because we have a British head of Europol, who has recently been confirmed for another term—four years, I think—in office.
I urge the Minister to think again. He says we are going to have some influence and be engaged, but it is really not the same if we are going to be on the sidelines and exert influence only after all the negotiations are over. I think people will accept the words of a British Minister who would be widely respected on the justice and home affairs agenda. He would be able to put his views forward in his articulate and intelligent way while sitting at a meeting. He will obviously draw on the efforts of ACPO, but I agree with the hon. Member for Cambridge (Dr Huppert) that ACPO is not the be-all and end-all of policing.
You will remember, Mr Speaker, although I do not want to draw you into the debate, when the 42 days issue was being discussed we were all told, “ACPO and the police service all want the House to vote for 42 days. It is everything that everyone has always wanted so we all have to vote for it”—until, of course, it changed its mind and we did not follow that approach. We hugely respect ACPO and all the people in it, but at the end of the day we need to make this decision. I very much hope that the Minister will think again and allow us the opportunity to be there at the top table, influencing these discussions.
Dr Julian Huppert (Cambridge) (LD)
There seems to be a wonderful outbreak of agreement about the value of Europol. I am not sure that all the Members who contributed to the last debate would subscribe entirely to that agreement, but certainly those of us who are here now do so, and that pleases me very much. However, wonderful as it is, Europol could be updated and reformed. I am glad that the Commission is proceeding with that task, and that we will see a new, improved Europol in 2015. I fear that the United Kingdom will be sidelined if we do not opt into the Europol regulation.
As I said earlier, almost half the 600 investigations that Europol is currently pursuing have links to the UK, and that is a huge factor for British policing. I will not list all Europol’s other wonderful merits, but I will make a connection with the last debate. I think it will have been an enormous waste of time, money and other resources if we decide to opt out of everything, then opt back into Europol in the negotiations leading up to 2014, and then get kicked out again in 2015. That strikes me as a very bizarre way of doing things.
Two key issues, which the Minister outlined very clearly, are data sharing and the proposal that would enable Europol to force the UK to initiate investigations. I do not think that those issues are as huge as some have made them out to be, but they have prompted concern, and it is right for us to deal with that. Data sharing is extremely important, but the changes that are being made are alarming. I think that many of the other member states would agree with us, and I suspect that neither of those proposals will be in the final version. Other countries will not want to share data when doing so could be too damaging. A certain amount of operational independence is necessary, and Britain should not break that principle.
It is always a pleasure to follow the right hon. Member for Leicester East (Keith Vaz). Like him—and, I believe, the other Liberal Democrats—I should prefer simply to remain at the table in order to be in on the negotiations at the outset. I think that if we had a full voting seat and could shape the future of Europol, we would win on the two points that I have mentioned and, I suspect, many others. However, that is not an option, so I am very pleased that the motion commits the Government to opting into the regulation post-adoption as long as the provisions relating to data sharing and the initiation of investigations remain. That strikes me as a reasonable approach which will ensure that we have the benefits of Europol and can continue to play a leading role in it, and I hope that our membership continues under the existing framework in the meantime.
I suspect that the amendment was intended to probe, and to that extent I understand what the right hon. Member for Delyn (Mr Hanson) was trying to achieve, but if he decides to press it to a vote, I shall strongly disagree with his decision. I hope that this is merely a probing amendment, for a number of reasons. First, the amendment deletes the part of the motion that
“agrees with the Government that the UK should opt into the Regulation post-adoption”.
I suspect that whoever drafted it—I am sure that the right hon. Gentleman would not have made such an error himself—meant to remove the words after “post-adoption”. As it is, however, I should much prefer the House to agree that we will opt in as long as the conditions are met.
Dr Huppert
It still worries me that the amendment removes that clear commitment.
I am also concerned about the role of the Association of Chief Police Officers. ACPO covers England, Wales and Northern Ireland, but specifically does not cover Scotland, which has a separate body, ACPO Scotland or ACPOS. The ACPO logo lists the three nations that it covers, but ACPOS is a different body. There are many other police-related bodies, including the College of Policing and Policing Matters.
I understand the right hon. Gentleman’s intentions, and I suspect that we agree about what we are trying to achieve. His amendment serves very well as a probing amendment, but, as I have said, if he presses it to a vote I will not support it.
Europol deals with about 13,000 investigations a year, and it is a huge help to us. I am very pleased that we will seek to remain in the new, improved version.
Michael Ellis (Northampton North) (Con)
I am delighted to follow my hon. Friend the Member for Cambridge (Dr Huppert). I, too, support Europol, although I do not think that I would go quite as far as some Members in saying how wonderful it is in every particular, as though it were an instrument of perfection. I do not think it is that; it is, in fact, a rather bureaucratic organisation. Nevertheless, I appreciate its work, which it does extremely well. Its law enforcement achievements are there for all to see on its website, and it can be very proud of those achievements, which are signal in many respects. Generally speaking, I support Europol. I also appreciate the good work Rob Wainwright does in heading that organisation, and I am glad his term of office has been extended. There are too few British officials in charge of European organisations, and I would like to see more of them doing that.
I agree with the Minister that it is not appropriate at this point to be talking about opting in, because we are not to do in this House what others would not do in their respective legislatures in Europe, which is see our sovereignty or security put at risk inappropriately—or at all. Where there is insecurity, as far as we are concerned, about the sovereign powers of this country, I do not accept we should opt into the regulations as they currently are or as they are envisaged. We should be very cautious about where we go in respect of Europol and opting in.
Generally speaking, I am extremely supportive of the Government’s position. We are opting out of some 98 measures, and this is the first time powers have come back from Europe to the United Kingdom. I welcome that and I would like to see further powers coming back to the UK. I congratulate the Government.
I also accept that it is totally appropriate for us to opt into some very important powers, and Europol is one of the bodies I would like us eventually to be able to work ever closer with, as we do not want another costa del crime; we do not want another situation developing where people can escape the law and justice, as has been the case hitherto. All Members across the House accept this principle as it is in the wider public interest, but we should not allow the sovereignty and security of this country to be jeopardised. Where Ministers of the Crown feel it is unacceptable to have the arrangements currently envisaged under the regulations, I agree that they should withhold their consent.
Europol’s functions are addressed, and can be supported, through the European arrest warrant, which we discussed in our earlier debate. I have been a strong critic of the EAW in its previous form, but I can again support the Government in this provision for the simple reason that the envisaged changes to the EAW before we could opt back into it are such that they effectively mean it will be completely different from before. If we deal with the three main problems, it will, in my submission, be a different entity—a different thing—even though the name may be the same. The first problem is to do with proportionality—the fact that far too minor and petty offences were subject to extradition. That made it an object of ridicule, as well as injustice, in many cases. There is also the issue of charging. People were being extradited to European countries without those countries having made a charging decision as to whether, and how, to proceed. We must also address the issue of bail, so that individuals who are suspected of offences can be bailed pending their proceedings. Addressing those problems would have the effect of completely changing the EAW; it would be unrecognisable from the current instrument. That should reassure those who are concerned about opting back into it.
Europol does a lot of very good work, and I hope Ministers can work with our partners in Europe to resolve any differences, and we can continue the good work that organisation does in respect of the UK.
Martin Horwood (Cheltenham) (LD)
This has been a short but confusing debate. The right hon. Member for Delyn (Mr Hanson) made what sounded like a pro-European speech, but, despite his protestations, he proposed an amendment that would remove the Government’s commitment to Europol. The contributions from the Conservative Back Benches have lacked the usual recitations from places like Stone and North East Somerset, and we instead had a constructive and positive contribution from my constituency neighbour, the hon. Member for Stroud (Neil Carmichael), and a merely mildly Eurosceptic contribution from the hon. Member for Northampton North (Michael Ellis). The Minister made what was supposed to sound like a Eurosceptic speech but he was none the less moving a motion that undoubtedly commits us to opt into the regulation post-adoption, subject only to red lines which, as my hon. Friend the Member for Cambridge (Dr Huppert) said, are perfectly reasonable conditions to set on the negotiations. Perhaps unlike the Minister, and like the right hon. Member for Leicester East (Keith Vaz), I would have rather had us at the table throughout those negotiations. I slightly regret that we are trying to influence the negotiations but not be part of them; we might be accused of wanting to have our gateau and eat it at the same time. Nevertheless, the Minister is proposing a bit of reasonable, coalition pragmatic compromise, which I think delivers the goods. It will commit us, in the end, to opt into Europol and that is absolutely the right thing to do.
Hon. Members have made many mentions of the positive aspects of Europol’s work, including Operation Golf, which led to the arrest of 126 individuals, seven in the UK, for trafficking children and the release of 181 children across Europe. It also probably saved the UK £400,000 by stopping related benefit fraud. Mention has also been made of Operation VETO, which has been led by Europol across 13 European countries and has uncovered an extensive criminal match-fixing network. A total of 425 match officials, club officials, players and serious criminals from more than 15 countries are suspected of being involved in attempts to fix more than 380 professional football matches.
However, one of the best examples of Europol’s work is outlined in the document we were debating earlier today—the Government’s decision document on the mass opt-out. It provides a description of Operation APAR, which tackled drugs, firearms and money laundering. It said that Europol co-ordinated an operation that included
“a series of coordinated arrests and searches…carried out resulting in the apprehension of 32 people and seizures including drugs, firearms, property, vehicles and electronic equipment.”
It continued by saying that Europol
“provided analytical support, facilitated information exchange between investigating law enforcement agencies and arranged operational meetings.”
The Europol mobile office was deployed in the UK, Ireland and Spain.
The Government document is clear about the importance of Europol as opposed to bilateral arrangements in this operation. It states that if Europol had not been involved
“we judge that the results of operation APAR would have been more limited and the operation would have been significantly more expensive….The UK would have had considerable difficulty securely exchanging real-time intelligence and developing operational action plans with those countries”
if it had simply been doing it bilaterally. The description goes on to state:
“Additionally Europol’s secure IT systems enabled timely and effective communication between all four Member States on the day of the operation.”
It is possible to construct such collaborations bilaterally, but in practice if we simply say, “This is what we would like to do” but we rely on everybody else to collaborate by constructing an operation such as Europol, we are acting irresponsibly.
Europol is a very important organisation and I am extremely pleased that, out of the negotiations on the mass opt-out, we are securely committing, subject to just a few red lines, to opt back into Europol. The fact that Rob Wainwright, a Brit, is leading this organisation shows us a new model of the way in which we should approach European issues across the board, with Britain in a leadership role, making a real difference, delivering not just for the people in Britain, but for all the people of Europe.
James Brokenshire
With the leave of the House, Mr Speaker, may I thank right hon. and hon. Members for their contributions in this short debate? Let me be clear that our recommendation in the motion is about participation in a future measure governing Europol; it has no impact on our current participation in Europol, which does benefit our law enforcement agencies. That point was made by everyone who has contributed to this debate: the Chair of the Select Committee, the right hon. Member for Leicester East (Keith Vaz); and my hon. Friends the Members for Stroud (Neil Carmichael), for Cambridge (Dr Huppert), for Northampton North (Michael Ellis) and for Cheltenham (Martin Horwood). That highlights the issues at hand in respect of the benefits that accrue from our current relationship.
I underline the fact that nothing that the Government have proposed reduces our commitment to tackle cross-border crime. However, we cannot risk the operational independence of our law enforcement agencies, and we need to ensure appropriate safeguards within the text so that that does not happen. I say very clearly to right hon. and hon. Members that we will play an active role in negotiations to ensure that we achieve our negotiating aims, which will allow us to opt in post-adoption. In response to the challenge from the right hon. Member for Leicester East, we consider that it is possible to achieve key negotiating objectives, even when we have not opted into a proposal before the negotiations. We have already done that on a number of measures, and we are clear about the influence that can be applied, and that is precisely what we will do. As I said, we consulted a number of our operational colleagues across the UK when considering the proposal. They all agree about the value of Europol as it currently operates, but not at any cost.
James Brokenshire
The hon. Gentleman was not here at the beginning of the debate, so he may not have heard what I said.
Jim Shannon
In Northern Ireland, we face a particular threat from dissident republicans. What assurance can the Minister give me as the MP for Strangford that we will not lose the ability, through Europol, to address the threat of terrorism at home and globally, because dissident republicans have contacts in other countries?
James Brokenshire
If the hon. Gentleman had been here to hear my opening speech, he would know that we have discussed our approach with the Police Service of Northern Ireland as well as other operational partners across the UK. While we are not seeking to opt in at this stage, we wish to negotiate and seek to influence so that we are in a position to opt in post-adoption, with the red lines.
The hon. Gentleman should accept that the information- sharing provisions in the EU document could put our national security at risk by virtue of the fact that we would not be able to control the information provided to Europol, which is precisely why we have sought to take this approach, with national security in mind. The law enforcement community shares our concerns about the risks that would be posed if we were directly tasked by Europol to undertake operations or to provide increased amounts of information to it without the necessary safeguards.
It is not the case that as a result of the approach that we have taken we have given up our seat at the table. We shall continue to play a full part in negotiations, attending the discussions and working with member states that share our concerns to seek to deliver a text that we can rejoin. Ultimately, this is a political decision for the Government, with appropriate scrutiny from Parliament. That is why we will consult and listen to the views of our law enforcement partners across the UK, but ultimately this a decision for Government and Parliament, which is why the motion is framed in this way.
Opting in at this stage poses too great a risk to our security and the autonomy of our law enforcement agencies, but once the text has been negotiated we intend to opt in if we secure the changes set out in the motion, and we will consult Parliament before doing so. Our position on the proposal is sensible and pragmatic, reflecting the need for effective co-operation and the importance of protecting our sovereignty and security. I urge the House to support the Government motion.
Question put, That the amendment be made.
Business without Debate
Petitions
Diana Johnson (Kingston upon Hull North) (Lab)
The petition is from Hull and East Riding Labour LGBT group, which has collected over 2,000 signatures against conversion therapy, a therapy that claims to be able to convert people who are homosexual to becoming heterosexual. I commend, in particular, Colin Livett, Danny Norton and Tom Stephens for all their hard work in producing the petition and obtaining so much support.
The petition states:
The Petition of Citizens of the UK,
Declares that the Petitioners believe that being lesbian, gay or bi-sexual is not a disease, disorder or illness and cannot therefore be “cured” or changed; and consequent upon this belief and the declarations of the professional bodies of the appropriate medical organizations, further declares that “conversion” or “reparative” therapy does not work and can do serious harm to patients.
The Petitioners therefore request that the House of Commons urges the government to control “conversion” or “reparative” therapy by banning it completely for those under the age of 18 and making it available to those over the age of 18 only after informed written consent and only when carried out by a licensed medical practitioner.
And your Petitioners remain, etc.
[P001196]
Stephen Barclay (North East Cambridgeshire) (Con)
I present a petition on behalf of my constituents. The petition states:
The Petition of residents of North East Cambridgeshire,
Declares that at present the population of March has no access via public transport to evening entertainment and activities in Cambridge; further that the population growth rate, faster than for the East of England region and England overall, experienced by Fenland demonstrates the need for better public transport; further declares that another Petition on this subject has been signed by more than 700 residents of North East Cambridgeshire.
The Petitioners therefore request that the House of Commons urges the Government to require a late train service from Cambridge to March in the next Greater Anglia franchise.
And the Petitioners remain, etc.
[P001197]
Sir Bob Russell (Colchester) (LD)
On a point of order, Mr Speaker. You will recall that, following Home Office questions this afternoon, I drew your attention to the fact that a statement to be made tomorrow had been the subject of considerable media coverage over the weekend.
I regret to inform you that within the past hour or so, Sky Television has been holding up and quoting at length from the relevant report. Hon. Members will not be allowed to look at the report until 8 o’clock tomorrow morning. We will not be able to take a copy away, but will have to hand it back at the Department of Health. Can we have a ruling on what is going on at the Department? Clearly, the situation is a shambles.
Mr Speaker
I am grateful to the hon. Gentleman for his point of order. I have not seen or heard the broadcast to which he refers and it is always as well to be personally familiar with the evidence. However, this is the second time—I make no complaint about it—that the hon. Gentleman has raised his concerns today. He may seek to do so again tomorrow in the presence of a Minister from the Department concerned. The Minister will then have the opportunity to respond if he or she so chooses.
Suffice it to say that material for presentation to the House should be seen and heard first by the House; it should not be bandied about elsewhere. By what route the report got there I know not, but with all due respect to the estimable organ concerned, it seems a pretty poor second best. The House of Commons should be the premier audience.
New Media and Personal Data
Helen Goodman (Bishop Auckland) (Lab)
I am pleased to have secured this debate. I am, of course, delighted to see the Under-Secretary of State for Culture, Media and Sport at the Dispatch Box, although I am a little surprised that a Ministry of Justice Minister is not here instead. The hon. Gentleman will understand why as I develop my argument.
There are many problems relating to the use of personal data by new media companies. We could be discussing the BBC report this morning: after a journalist went on to just four websites, 40 companies put cookies on to his computer to track what he was doing. We could be discussing the fact that Google has just three months to change its privacy policy or pay a £500,000 fine or the fact that Prism, used by the United States National Security Agency, has been collecting data from Microsoft and many other large companies.
However, the specific issue that I want to talk about is the use of personal data by mobile phone companies and the special sensitivity that arises because of the fact that the mobile phone companies know the location of the user. On 12 May, The Sunday Times reported that EE had sold to Ipsos MORI the personal data of 27 million mobile phone users, including their gender, age and postcode, the websites they visited, the time of day texts were sent, and, linked to that, their location when the texts were sent. Customers were clearly not aware that their data were being handed on and used in this way. Ipsos MORI then had a meeting with the Metropolitan police to discuss selling the data on for a second time. These data go beyond anything the police can get without an application under the Regulation of Investigatory Powers Act 2000. The scale of this is demonstrated by the fact that in 2011 only 2,911 such orders were given. Furthermore, a proposal to allow the police to hold such data was dropped by the Home Secretary last year.
The day after reading that article, I wrote to the Minister and requested various assurances from him. I have not had an answer so far, but perhaps this evening he will respond to the points I made. I asked him whether he had discussed the matter with industry, what steps the Government had taken to ensure that such data do not fall into undesirable hands, whether he had had a report from the Metropolitan police, whether the Government believe that it is right that a larger range of data are being used and sold than is allowed under RIPA, and what action the Government are taking to protect our citizens.
Because I did not receive an answer, I wrote to the mobile phone companies and the Information Commissioner’s Office, most of which provided full responses. I also had meetings with EE, the Open Rights Group and Big Brother Watch. Three companies told me that they do not sell on personal data at all, Ipsos MORI explained that the data were aggregated into groups of at least 50 people, and Telefonica pointed out, reasonably enough, that the location data are needed for “find my nearest” services. When I asked EE if the public might judge themselves whether they were satisfied with the arrangements it had made with Ipsos MORI and suggested that the way to achieve that would be for it to publish its contract with Ipsos MORI regarding the sale, it said that it could not do so because it was “confidential”.
All the companies said they believed that their practices fell within the Data Protection Act 1998 and that the data had been anonymised as defined in that Act. The ICO said that having datasets with names or addresses stripped out and aggregated into groups of 50
“does not enable particular individuals to be identified”.
Unfortunately that is not the case. By combining these data with other datasets—for example, those of the Land Registry—individual people can be identified. In March this year, Nature published a science report by academics at the Massachusetts Institute of Technology and Harvard, Louvain and Valparaiso universities which concluded that
“in a dataset where the location of an individual is specified hourly…four spatio-temporal points are enough to uniquely identify 95% of the individuals…These findings represent fundamental constraints to an individual's privacy and have important implications for the design of frameworks and institutions dedicated to protect the privacy of individuals.”
Jim Shannon (Strangford) (DUP)
I thank the hon. Lady for bringing this vital issue to the House. A week does not pass in my constituency without the police warning people to be aware of a scam. Data seem to become available to many organisations, especially the mobile phone groups. Does the hon. Lady agree—I hope the Minister will also respond to this—that, rather than addressing the issue regionally, it would be best to do so with a strategy across the whole United Kingdom of Great Britain and Northern Ireland?
Helen Goodman
The hon. Gentleman is absolutely right. Indeed, the European Union will make proposals, which will obviously cover the United Kingdom. That is essential, because we are dealing with international companies, so we need international agreements to tackle the problems.
The current law is inadequate to protect people’s privacy, partly because there has been significant technological change since 1998. The advent of cloud computing and the increasing sharing of personal information on online social networks mean that fewer and fewer data are needed to identify people. Furthermore, the current consent rules are completely inadequate. For consent to be meaningful, it needs to be explicit, informed and freely given. Usually, that is not the case —the consent is buried somewhere in paragraph 157 of the terms and conditions—and people have no option to refuse if they want the service at all.
Data are not used for the purposes requested or desired by their owner. In other words, the legal definition of legitimate use is too weak. The data that mobile phone companies hold are extremely sensitive and neither those that they sell nor their changed use have been agreed with the customers. The sanctions are weak, as is evident from the fact that the ICO will fine Google only £500,000 if it does not change its policies.
There are two relevant laws: the Data Protection Act 1998 and the Privacy and Electronic Communications (EC Directive) Regulations 2003. Do the Government think there is a proper legal basis for processing customers’ location data for the benefit of the marketing purposes of third parties? Does the Minister believe that the ICO is taking enough action to require mobile phone companies to keep consumers informed?
If the Government think that the public are not bothered, they are surely mistaken. Last year Demos carried out some public opinion surveys as part of a report on data sharing and protection. The surveys found that losing control of personal information is the public’s most significant concern with regard to using new technology. They also found that people are sharing more, but that they have a “crisis of confidence” in relation to it. On sharing personal data, 52% of the public were non-sharers or sceptics, compared with only 27% who were described as value hunters or enthusiastic sharers.
Against that background, Neelie Kroes, the EU commissioner for the digital agenda, has made proposals to give people effective control over their personal data, which is a fundamental right for all EU citizens. Under her proposals, an individual’s consent would have to be given explicitly and there would also be a new right to be forgotten whereby, if requested, a data holder would have to delete all the data they hold on a particular person. She also proposes that people should have easier access to their personal data; that there should be a right to transfer those data from one data holder to another; that people should receive speedy information of personal data security breaches; and that there should be stronger protection for children.
The Justice Select Committee has described the draft regulation as necessary and agrees that a shared approach across the EU is necessary for dealing with these large multinational companies, yet the Lord Chancellor has described the proposals as “mad”. The Government have complained about the costs and the potential loss of £15 million of income in fees to the ICO.
Of course no one wants to impose unnecessary burdens on business, and especially not on small and medium-sized enterprises, but if the Government got their act together and started taxing those large new media companies properly, they would easily acquire the necessary resources to enable the institutions to provide proper protection for our citizens. That is evident from the fact that Google paid only £3 million in tax on a £2 billion turnover.
Furthermore, the Government seem to be supporting attempts to weaken people’s rights. The Ministry of Justice’s summary of responses document, which it published in June 2012, said that the Government would
“resist the proposal that subject access rights be exercisable free of charge”,
and that they would resist the right to be forgotten. Although they accepted that people should receive notifications of data breaches, they resisted the introduction of a speedy timetable for them. They also felt that the imposition of a fine of 2% of turnover would be “disproportionately high”.
To summarise my argument, 70% of Europeans are concerned that companies use data for purposes other than that for which they were collected, and 94% of the British public worry about their online privacy. British people’s data have been used and sold without their knowledge, and the rapid pace of technological change means that the law is in urgent need of updating. Privacy is a fundamental human right and the EU is now bringing forward sensible proposals to tackle this, which the Lord Chancellor has described as “mad”. Is this because the Tory-led Government are so in hock to big business that they refuse to protect citizens’ privacy, or because the Lord Chancellor is so Europhobic that he cannot recognise a good idea when it comes along?
The Parliamentary Under-Secretary of State for Culture, Media and Sport (Mr Edward Vaizey)
I am grateful for this chance to respond, and I congratulate the hon. Member for Bishop Auckland (Helen Goodman) on securing this important debate on new media and data protection. I thank her for her kind words about seeing me in my place. She expressed surprise at seeing me here, but she wrote to me about this issue on 13 May this year, so she should not be surprised to see me here tonight. She has, however, inadvertently put her finger on an important matter—namely, the responsibility within Whitehall for some of these issues. She will know that, as communications Minister, I am responsible for the mobile phone companies in the round, but that the Information Commissioner’s Office remains under the jurisdiction of the Ministry of Justice. It is therefore right that the Ministry of Justice should address such matters as the data protection regulations. A similar issue arises with nuisance calls. I am driving forward reform in that area, although the Information Commissioner deals with that matter, which remains under the remit of the Ministry of Justice. However, I care passionately about these issues, and I want to see progress and change in this area.
As Minister for communications, I have been involved in trying to strike a balance between the use of personal data and the need to keep people’s privacy secure. As the hon. Lady made clear in her speech, this is a very real issue in the age of the internet. We talk about data, but let us put a bit of colour into this. We share data, as in information about ourselves, every single day on the internet. I was interested to read the recent World Economic Forum report that estimated that we send 47 billion e-mails a day, that we submit 95 million tweets—not always accurate ones—and that we share 30 billion pieces of content on Facebook every day. We are sharing personal data all the time.
A thriving information economy is essential for enhancing our national competitiveness and driving economic growth. That is why the Government have published an information economy strategy that looks at how Government, industry and academia can work together to exploit the many opportunities available in that sphere.
It is important that we distinguish between personal data that we make freely available, and personal data that we give up to mobile phone companies and that may be used in the future. The report to which the hon. Lady refers from 12 May would, on first reading, give anyone cause for concern. I am happy to report to the House, however, that not everything in that report was entirely accurate.
In a parallel world while the hon. Lady was meeting the Information Commissioner’s Office and talking to mobile phone companies, my officials were doing the same having received her letter. In fact, I replied to her letter today, and she should find that reply in her inbox this evening or tomorrow morning. Purely coincidentally, while I was going through my correspondence I found her reply to my letter in my inbox.
When the story broke, the Information Commissioner’s Office spoke to EE—the company referred to—as well as to Ipsos MORI, and was reassured that the detail of the story was not entirely accurate. EE confirmed that it works with Ipsos MORI on customer behaviour and network usage analysis, and to prepare reports on how, when and where its network is being used. However, data shared between the parties is anonymised and aggregated in groupings of a minimum of 50 to remove any individual references or identifiers.
In that respect, the article in The Sunday Times was not entirely accurate. Ipsos MORI did not sell the personal data of 27 million customers to the Metropolitan police as the data are not generically made available. Furthermore, the Information Commissioner’s Office has seen examples of the output that Ipsos MORI created using data from EE, and it confirmed to my officials that they were not sufficiently detailed or granular to enable individuals to be identified.
Ipsos MORI or EE remain responsible for ensuring that any outputs are compliant with the relevant legislation, and do not identify particular individuals. EE has confirmed that position, and is adamant that it would never breach the trust that its customers place in it, and that it complies fully with all relevant regulations. Telefónica O2 says that it does not sell customer data, and has provided details about a product that it, local councils and others use called “Smart Steps”. That is a data analytics tool used to measure and understand the number of people visiting a specific area. Telefónica O2 confirmed that data are anonymised and aggregated, in line with UK and EU data protection legislation. Similarly, 3UK confirmed that it does not sell customer data. It shares information with third parties such as service providers, to help them deliver services to their customers, but that is done in full compliance with privacy laws. Vodafone also provided details of the two legacy analytical projects in which it participates, both of which were designed to comply with the Data Protection Act.
The Information Commissioner’s Office “Anonymisation: managing data protection risk code of practice” provides guidance on how anonymisation can be used to manage and minimise data protection risk when releasing information. That code was published last year in November with the aim of helping organisations ensure their use of anonymisation techniques safeguards individual privacy. I am pleased to say that that code is online on the ICO’s website.
Where data have been anonymised and aggregated, they will not fall within the scope of the Data Protection Act as they do not enable particular individuals to be identified or differentiated from one another. The requirements of the DPA apply only to the processing—the use, disclosure, collection and storage of personal data that relate to an identifiable individual.
The Data Protection Act does not prohibit the sale of personal data—it is not clear that there is a legal loophole as such in terms of companies trading in personal data, but it is something about which individuals should be informed. As the hon. Lady points out, it is important to obtain individuals’ consent. That is an important issue that we should be addressing, particularly in an online world where often one is confronted by terms and conditions of inordinate length that no reasonable person could be expected to read in great detail. I would certainly like to see much simpler terms and conditions specifically designed for an online age covering the essentials necessary to giving informed consent.
Helen Goodman
The Minister is responding to the points I raised on 13 May, but things have moved on and I have found out more. I was not arguing that these companies were breaking the law. Clearly, they are large companies with big legal departments and would not be so foolish as to do that. My point was that these data, when combined with other data, can enable another person to identify the individuals. That being the case, we need to tighten the law. I hope the Minister will deal, in his further remarks, with that and the Government’s response to the proposed tightening of the law.
Mr Vaizey
I will certainly do that, but I hope the hon. Lady will bear with me briefly, because it is important, given what provoked this debate, that these issues be put on the record.
I was talking about consent and, in my humble opinion, meeting the hon. Lady halfway on some of her concerns, which I think were perfectly legitimate to raise in the House. Personal data required by legislation to be provided and made available to the general public—for example, directors’ information or births, marriages and deaths—can also be sold, but as I said, I would be concerned if any of the mobile operators were to release personal data for sale in contravention of the law. As she made clear, however, that was not her point.
I turn now to the thrust of the hon. Lady’s comments. We have moved on from the report in The Sunday Times to the general issue of how personal data are handled, particularly in an online and digital age. I begin with two points. First, we take this issue very seriously. Quite recently, we strengthened the powers of the Information Commissioner’s Office. All Members will recall the issue with Google street cars, which were sent hither and thither to take pictures of everybody’s houses so as to provide a public service. When data protection was deemed to have been breached, it was discovered that the ICO did not have the powers to fine Google. As she made clear, the ICO is currently considering a privacy case involving Google, and over the heads of Google and of other companies that break privacy laws hangs the possibility of a significant fine from the ICO, thanks to European legislation introduced by the Government. Those fines are already being used to full effect to combat the plague of nuisance calls.
The second privacy issue that required an important balancing act was the transposition of the e-privacy directive, in which I was closely involved. This relates directly to the issue of cookies, to which the hon. Lady referred earlier. A cookie can be many things, but in the online world, it is a small packet of data that allows one’s movements to be tracked across the web. They can provide a useful service to the user of online services by providing, for example, advertisements tailored to the interests of the individual internet user based on their browsing history, but, based on an important principle, the e-privacy directive introduces the opportunity for an individual to consent to the use of cookies. That is why anyone who uses the internet will see on most websites a pop-up display, banner or some other notice making it clear that the website uses cookies and asking the user to give their consent. By and large—I do not have any specific evidence to support this assertion—most people consent to the use of cookies, because there are some benefits. However, let us not underestimate the concerns that people have about this kind of tracking. As the hon. Lady pointed out, people want to feel that they have given their consent for tracking behaviour. Those of us who have covered this brief in Government for a while will remember the storm that occurred when BT tried to introduce tracking users through software created by Phorm. That caused an enormous row and BT had to withdraw it, because the people who used its website did not feel that their consent had been given properly. That is the kind of issue covered by the e-privacy directive.
The hon. Lady raised the matter of the proposals currently under discussion in the Commission. I am loth to correct the hon. Lady on any issue, but the proposals are not being put forward by Commissioner Kroes, who is the Commissioner for digital services, but by Commissioner Viviane Reding, who is the Commissioner with responsibility for consumer affairs. The proposals will update the data protection regulations and, as she pointed out, the Ministry of Justice is the lead Department. My right hon. Friend the Lord Chancellor has been to Brussels and he has used the straightforward and plain language that has stood him in such good stead in his career over many years to make clear the concerns of the British Government.
Let me again be clear: we do not oppose the data protection regulations. We support updating the regulations, but we have legitimate concerns about some of the detail. The most notorious regulation, which has grabbed the headlines, is of course the one that goes by that vernacular phrase “the right to be forgotten”. Our concern is straightforward: saying to any ordinary person that we are going to give them the right to be forgotten on the internet will raise a huge amount of expectation. We therefore want absolute clarity on what can be achieved by talking directly to the website—for example, Facebook—whose data we want to erase, and by asking how far that can go and how many other people one has to speak to. The clear concern of the British Government relates to scope.
The hon. Lady is right to raise these concerns. All British citizens are rightly concerned about how their data might be used in a digital age. It is right and appropriate that the Government respond in a judicious and sensible fashion.
Question put and agreed to.
Ministerial Correction
(11 years, 5 months ago)
Ministerial CorrectionsRead Full debate Read Hansard Text
Business, Innovation and Skills
(11 years, 5 months ago)
Ministerial CorrectionsRead Full debate Read Hansard Text
Ann McKechin (Glasgow North) (Lab)
Will the Secretary of State confirm what proportion of the sale proceeds will be reinvested in the business rather than taken as profit?
Vince Cable
We are not making any advance predictions as to what the sale proceeds will be or how they will be utilised. We are giving Royal Mail the commercial freedom to make those decisions itself.
[Official Report, 10 July 2013, Vol. 566, c. 371.]
Letter of correction from Vince Cable:
An error has been identified in the answer given on 10 July 2013 to the hon. Member for Glasgow North (Ann McKechin).
The correct answer should have been:
Vince Cable
We are not making any advance predictions as to what the sale proceeds will be. The sale proceeds will be returned to the Exchequer. We are giving Royal Mail the commercial freedom to make decisions itself as to how it will use any future capital it raises.
Petitions
Franchising of Stockton Crown Post Office
Cemetery at Aldridge Road, Walsall
Proposed Closure of Downham Fire Station
Written Statements
(11 years, 5 months ago)
Written StatementsRead Full debate Read Hansard Text
ECOFIN
(11 years, 5 months ago)
Written StatementsRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Chancellor of the Exchequer (Mr George Osborne)
A meeting of the Economic and Financial Affairs Council was held in Brussels on 9 July 2013. The following items were discussed.
Presentation of the Lithuanian Presidency Work Programme
The presidency outlined its work programme on economic and financial matters for July to December 2013.
Follow-up to the European Council on 27-28 June 2013
ECOFIN held an exchange of views on the follow-up to the June European Council.
Adoption of the euro by Latvia
ECOFIN adopted the legal acts enabling Latvian accession to the euro in January 2014.
Implementation of the two-pack
Ministers endorsed the code of conduct for the euro area member states on draft budgetary plans and on content and scope of the reporting obligations for euro area member states subject to an excessive deficit procedure.
Follow-up to G20 Finance Deputies meeting on 6-7 June (St Petersburg) and preparation of G20 Meeting of Finance Ministers and Governors of 19-20 July (Moscow)
Council agreed the EU terms of reference for the forthcoming G20 Finance Ministers’ and Central Bank Governors’ meeting. The presidency and the Commission reported back to Council on the meeting of the G20 Finance Deputies meeting on 6-7 June.
Any other business—Current legislative Proposals
The presidency updated Council that provisional agreement had been reached with the European Parliament on the market abuse directive/market abuse regulation.
Northern Rock (Asset Management) plc
(11 years, 5 months ago)
Written StatementsRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Economic Secretary to the Treasury (Sajid Javid)
On 11 December 2012, I informed Parliament via a written ministerial statement—Official Report, column 20WS, that UK Asset Resolution (UKAR) had identified a pool of unsecured loans in the Northern Rock Asset Management (NRAM) portfolio where the loan documentation was not compliant with Consumer Credit Act requirements.
As a result, UKAR’s board commissioned Deloitte to conduct an enquiry into the specific circumstances of the issue, and any implications for UKAR’s broader internal procedures and controls. Deloitte has concluded that the defects in CCA regulated loan letters and statements were created in 2008, before UKAR was established. The summary of the report, along with the recommendations on strengthening risk functions, is being published on UKAR’s website today. UKAR’s board has accepted all of Deloitte’s recommendations and has tasked senior management to develop an implementation plan, which the UKAR board will hold senior management to account on delivering.
The link to the report can be found here: http://www.ukar. co.uk/media-centre/press-releases/2013.
Competition and Markets Authority
(11 years, 5 months ago)
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The Secretary of State for Business, Innovation and Skills (Vince Cable)
I am today announcing that I have launched a consultation on a draft ministerial statement of strategic priorities for the soon-to-be-created Competition and Markets Authority and a first tranche of draft Statutory Instruments updating the competition regime. This follows the Chancellor’s announcement in the spending review last month that the budget of the new Competition and Markets Authority (CMA) will be increased by £16 million in 2015-16, to enable it to tackle cartels more effectively and open-up markets to new entrants, disruptive technologies and greater investment. These are major steps in our reform of the competition regime, which should deliver significant economic benefits.
I have also made a decision on the appointments of the first team of non-executive director (NEDs) members to the CMA, and I am delighted to announce the following appointments. Five NED positions will go to Annetje Ottow, William (Bill) Kovacic, Philip Lowe, Carolyn Fairbairn and Alan Giles; and the two panel NED positions will go to Roger Witcomb and Jill May. I am also appointing Roger Witcomb as the chairman of the CMA panel.
All the NED appointees will formally commence their appointments on 1 October 2013 when the CMA is legally established. I have agreed to the ordinary NEDs’ term end dates being staggered from between two and five years in order to avoid recruiting a whole new set of NEDs at the same time. The skills and backgrounds of appointees have been taken into consideration when offering their end date to mitigate against losing members who share the same area of expertise (e.g. competition law or economics) in the same year. The appointments for both Roger Witcomb and Jill May are on the basis of an initial two-year term.
The ordinary NED appointments have been made in accordance with the Commissioner for Public Appointments code of practice (April 2012) and the panel NED appointments were made following the principles of the code.
I have placed copies of the consultations and further details of the appointments in the Libraries of both Houses.
Ordnance Survey
(11 years, 5 months ago)
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The Minister of State, Department for Business, Innovation and Skills (Michael Fallon)
I am today announcing that performance targets have been agreed for Ordnance Survey for the period 2013-14. Ordnance Survey will report externally against these targets as is required of all Executive agencies in Government.
The targets are:
To achieve an operating profit before exceptional items, interest and dividends of £32.4 million for the financial year 1 April 2013 to 31 March 2014.
To achieve a free cash flow before exceptional items of £21.4 million for the financial year 1 April 2013 to 31 March 2014. Some 99.6% of significant real-world features greater than six months old are represented in the database.
To continue to reduce the underlying cost base of the core business by 5% per annum measured against a baseline of 2008-09 adjusted running costs.
To achieve a customer index score of at least 80%.
To achieve an innovation index score of at least 80.
These targets reflect Ordnance Survey’s continuing commitment to customers, to continuing sustained achievement against the business strategy that has been in place and developed over previous years, to maintaining and delivering intelligent geographic information to all users, and to offering improved value for money for all, as well as a commitment to Government policies.
Company Ownership (Transparency and Trust)
(11 years, 5 months ago)
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The Secretary of State for Business, Innovation and Skills (Vince Cable)
Today I am publishing a discussion paper which sets out a range of proposals to enhance the transparency of UK company ownership and increase trust in UK business. These measures will help prevent illegal activity; better enable companies to be held to account; and provide businesses, investors, employees and consumers with confidence that companies are acting fairly. They will support the development of a business environment where companies and individuals can operate and invest with confidence.
The first part of the paper puts forward measures to ensure we know who really owns and controls UK companies, following our G8 commitments on preventing the misuse of companies. The main elements of this section of the paper include:
Options for the implementation of a central registry of information on companies’ beneficial ownership, maintained by Companies House. We propose that the registry would hold information on individuals with an interest in more than 25% of the shares or voting rights in a company, or who otherwise control the way the company is run. We consider whether information in the registry should be made public, what information is to be provided and how it is to be updated.
A proposal to prohibit the issue of bearer shares. Bearer shares allow the owner of the shares to remain hidden as their name is not disclosed on a company’s register of members. The paper proposes that holders of existing bearer shares should be given a set period of time to convert these shares to ordinary registered shares.
Options to enhance transparency around the use of nominee directors, including whether they should be required to disclose their status to Companies House and who they are acting for. While nominees can be used in legitimate commercial scenarios, their use can allow the true owners of a company to remain hidden.
A proposal to abolish companies from being appointed as directors (“corporate directors”). Although rarely used in the UK, these can result in complex corporate ownership structures which hide the beneficial owner’s true identity.
The second half of the paper discusses disqualification rules and tackling directors who break the rules. This is especially important in the light of the corporate failures that took place during the financial crisis. The main elements of this section of the paper include:
Considering whether to amend the duties of bank directors so that there is a greater emphasis on the responsibility to promote financial stability (following the recommendation made by the Parliamentary Commission on Banking Standards).
Extending the factors taken into account by the court in disqualification proceedings. For example, allowing the court to consider the social impact of a director’s actions, breaches of sectoral regulation and previous business failures when coming to a disqualification decision.
Proposals to give courts the power to make compensation awards against a director when making a disqualification order; and to allow liquidators to sell or assign fraudulent trading actions.
Offering directors education classes or training at the end of their disqualification or a slight reduction in this period if they take up the offer.
Extending the time limit for when disqualification action must be taken. Currently standing at two years, the paper proposes a new five-year limit to take into account more complex insolvency cases.
Changing laws to prevent directors disqualified overseas from being a director of a UK company. The paper also considers allowing disqualification action to be brought against a director convicted of a criminal offence in relation to an overseas company.
The paper invites views from all interested parties by 16 September 2013. It is intended that measures will be implemented through, and at the same time as, transposition of the fourth EU money laundering directive and changes to company law. I will seek to introduce reform by the end of this Parliament.
I remain committed to reducing regulation and burdens on business and will consult on a range of company law deregulatory proposals in the autumn. These proposals will be developed in parallel to measures outlined in this paper to deliver a cohesive package of reform.
I have today also published two further documents. First, the terms of reference for a review of pre-pack administrations. The review will specifically look at whether pre-packs encourage growth and employment and provide value for creditors. Defined as an administration where the assets are sold before an administrator is appointed, concerns have been raised in the past that pre-packs are not transparent, that assets may be sold at below value, that there are conflicts of interested and they unfairly affect competitors.
Secondly, a report on the review of insolvency practitioners fees by the independent reviewer. Emeritus Professor Elaine Kempson of Bristol university. The findings are that where experienced, and usually secured, creditors are in control of proceedings, IP fees are successfully monitored. Where the creditors are unsecured and disparate, controls over fees are not working. The Government will respond to the report later this year.
I have placed copies of the consultations and further details of the appointments in the Libraries of both Houses.
Arms Trade Treaty
(11 years, 5 months ago)
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The Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs (Alistair Burt)
The campaign for the arms trade treaty has enjoyed the strong support of Members in both Houses for over seven years. From before the first diplomatic conference in July, 2012 through to the final diplomatic conference earlier this year, the arms trade treaty has been a top priority for this Government with Ministers lobbying hard for a robust agreement that could achieve the broadest possible support. With the Minister of State for International Development, I attended the diplomatic conference in July 2012 and I attended the diplomatic conference in March this year to support the efforts of our diplomats and to urge the international community to agree on this important issue. The negotiations were hard fought and compromises were necessary on all sides, but the treaty that emerged is robust, implementable and will make a significant difference to international peace and security.
In April, the treaty was adopted with overwhelming support at the United Nations General Assembly. On 3 June, I was extremely proud to sign the treaty on behalf of the United Kingdom of Great Britain and Northern Ireland on the day it opened for signature. As one of the seven co-authors of the resolution that first brought this issue to the attention of the United Nations, we have led the international efforts which have resulted in this agreement.
In accordance with the Constitutional Reform and Governance Act 2010 and as part of the United Kingdom of Great Britain and Northern Ireland’s ratification process, the Government has today laid before Parliament the arms trade treaty under Command Paper No. CM8680 with an explanatory memorandum which sets out the background to the treaty, ministerial responsibility for implementation, and financial implications resulting from ratification.
A properly regulated arms trade will help states to meet their legitimate defence and security needs to protect their citizens. The arms trade treaty will make a difference. It is the first legally-binding, truly global commitment to control exports of conventional arms. By introducing internationally-agreed standards for the arms trade it will reduce human suffering by preventing arms from being used in serious violations of human rights and international humanitarian law. It will also help to combat terrorism and crime by steadily reducing the unfettered proliferation of weapons.
Since opening for signature on the third of June, over 70 states have signed the treaty and Iceland has become the first to complete ratification. Our commitment to the treaty now is as strong as ever, our goal has always been to secure a robust treaty that can be implemented by all. We will only accomplish our aims if the arms trade treaty is rapidly and effectively implemented. Fifty ratifications are required to bring the treaty into force. We will be working hard to encourage states to sign and to ratify, to ensure swift entry into force. Like the negotiations on the treaty itself, this will take time and require the considerable efforts and persistence of a broad coalition of supporters. Universal adherence to the arms trade treaty must be our ultimate goal.
Hong Kong (Sino/British Joint Declaration)
(11 years, 5 months ago)
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The Secretary of State for Foreign and Commonwealth Affairs (Mr William Hague)
The latest report on the implementation of the Sino-British Joint Declaration on Hong Kong was published today. Copies have been placed in the Library of the House. A copy of the report is also available on the Foreign and Commonwealth Office website (www.gov.uk/government/organisations/foreign-commonwealth-office). The report covers the period from 1 January to 30 June 2013. I commend the report to the House.
Liverpool Care Pathway
(11 years, 5 months ago)
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The Minister of State, Department of Health (Norman Lamb)
The independent review of the Liverpool Care Pathway has been published today. I commissioned this review in January 2013 in response to concerns raised by patients, families, carers and a number of clinicians. The review was undertaken by an independent panel chaired by the noble lady, Baroness Neuberger.
People who use health and care services have the right to be treated with respect, dignity and compassion by staff with the skills and time to care for them properly. We all want our own and our loved ones’ final days and hours to be pain-free and dignified, with individual needs prioritised and respected, and with families and carers fully involved.
I recognise and value the high quality of much of end of life care across the country. On behalf of the Government, I would like to convey my continued support and appreciation for the work that so many doctors, nurses and others do on a daily basis to care for the dying. While most patients certainly are receiving high-quality care and many families and carers are being properly involved, we need to make sure that this is the case for everyone.
The Liverpool Care Pathway was introduced to improve end of life care by setting out principles for how the dying should be treated, whether they are in hospital, at home, in a care home or in a hospice. The review heard that when the Liverpool Care Pathway is operated by well-trained, well-resourced and sensitive clinical teams, it works well. However, it also heard too many examples of poor practice and poor quality care, with families and carers not being properly involved and supported. This has to change.
The review made a number of recommendations to Government and other health and care organisations. The Government will consider fully the recommendations of the review and over the coming months will be working with these organisations, stakeholders and charities to inform a full system-wide response to the review’s recommendations in the autumn. However, I can announce at this point our intention for the Liverpool Care Pathway to be phased out over the next six to 12 months. Instead, an individual approach to end of life care for each patient will be introduced, with a personalised care plan backed up by condition-specific good practice guidance and a named senior clinician responsible for its implementation.
In addition, the Care Quality Commission will be undertaking thematic work on end of life care, and the three new chief inspectors—of hospitals, social care and general practice—will consider end of life care issues as they develop their new approach to inspections. To support these improvements to end of life care, I am also writing to the General Medical Council and the Nursing and Midwifery Council to highlight both the need for effective guidance on supporting nutrition, hydration and sedation for the dying, but also to stress the importance of the professional regulation issues raised by the report.
However, it is clear that we need to take action immediately. I can therefore announce:
to ensure immediate action for patients, families and carers, I have written to all NHS hospitals asking them to undertake a clinical review, led by a senior clinician, of each patient who is currently being cared for using the Liverpool Care Pathway or similar plans for the final days and hours of life to ensure that the care they are receiving is appropriate. I have also asked them to ensure that arrangements are put in place to provide assurance that every dying patient now and in the future has a named senior clinician responsible for their care. I will be writing in similar terms to those responsible for dying patients being cared for outside of hospital;
it is equally important that the concerns about care are properly investigated and resolved. I will ensure that people who have a complaint about the care given to a dying patient on the Liverpool Care Pathway or similar plans have access to an independent assessment of their case should they want it. I have also asked all NHS hospitals to appoint a board member with responsibility for overseeing any complaints about end of life care and for reviewing how end of life care is provided; and
the review also recommends that incentives paid to hospitals to promote a certain type of care for the dying should cease. In response, I am asking NHS England to work with clinical commissioning groups to implement this immediately.
I would like to thank Baroness Neuberger, the review panel and their support team for their hard work and commitment. Finally, I would also like to thank all the contributors to the review, and in particular the families and carers of patients.
“More care, less pathway: A review of the Liverpool care Pathway” has been placed in the Library. Copies are available to hon. Members from the Vote Office and to noble Lords from the Printed Paper Office.
Powers of Entry
(11 years, 5 months ago)
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The Parliamentary Under-Secretary of State for the Home Department (James Brokenshire)
My noble Friend the Minister for Criminal Information, Lord Taylor of Holbeach, has today made the following written ministerial statement:
The Protection of Freedoms Act (POFA) 2012 requires Ministers across Government to undertake a review of powers of entry over a two-year period due to conclude in early 2014. The Act requires Ministers who are Members of the Cabinet with responsibility for powers of entry to examine their powers and to consider whether they are still necessary, proportionate and contain sufficient safeguards.
Ministers are required to report on outcomes of the review to Parliament by 1 May 2014.
During the passage of the Act, Ministers agreed to provide an update of progress of the review and I have today placed copies of the second six-month progress report in the Library of the House.
Grand Committee
The Deputy Chairman of Committees (Baroness McIntosh of Hudnall)
Good afternoon, my Lords. I remind the Committee that if there is a Division in the Chamber the Committee will adjourn for 10 minutes after the sound of the Division Bell. I was invited to inform noble Lords that should they so wish, the afternoon being as bright and sunny as it is, they may remove their jackets.
Public Bodies (Abolition of Victims’ Advisory Panel) Order 2013
(11 years, 5 months ago)
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Lord McNally
That the Grand Committee do report to the House that it has considered the Public Bodies (Abolition of Victims’ Advisory Panel) Order 2013.
Relevant documents: 1st Report from the Secondary Legislation Scrutiny Committee, 1st Report from the Joint Committee on Statutory Instruments.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, that is enough radicalism for one afternoon.
This order abolishes the Victims’ Advisory Panel, which I will refer to as the VAP, using powers in the Public Bodies Act 2011. This Act followed the 2010 review of all arm’s-length bodies, which was conducted to increase transparency and accountability, to cut out duplication of activity and to discontinue activities that were no longer required.
As part of this review, we proposed to abolish the VAP, since its functions are no longer required and duplicate activity elsewhere. There is a clear overlap between the work of the panel and that of the Commissioner for Victims and Witnesses, also known as the victims’ commissioner, who has a statutory responsibility for promoting the interests of victims and witnesses and encouraging good practice in their treatment. That is why the VAP is one of the bodies specified in Schedule 1 to the Public Bodies Act 2011. The Secretary of State has the power to abolish those bodies by order, and it is such an order that we are debating today.
I will now cover briefly the background to the establishment of the VAP and the panel’s membership between 2006 and 2009, before explaining why the Government consider that this order to abolish the VAP is necessary and meets the criteria set out in Section 8(1) of the Public Bodies Act to improve the exercise of public functions.
The VAP was originally established in 2003 as a non-statutory panel to enable victims of crime to have their say, both in the reform of the criminal justice system and in related developments in services and support for victims of crime. The functions of the VAP were subsequently set out in Section 55 of the Domestic Violence, Crime and Victims Act 2004. The VAP was expected to advise Ministers and officials of the views of victims of crime, with particular reference to their interaction with the criminal justice system and its agencies. The panel was also to offer views on the prevention of crime from a victim’s perspective. The Secretary of State was required to consult the panel on appropriate matters concerning victims and witnesses of criminal offences or anti-social behaviour. Where the Secretary of State consulted the VAP in any particular year, the panel was expected to prepare a report to be published and laid before Parliament.
The Coroners and Justice Act 2009 made it a requirement for the victims’ commissioner to be appointed to, and act as, chair of the panel. The Act made no changes to the core functions of the VAP. Between 2006 and 2009, the VAP consisted of around 10 volunteer members, all of whom had either experienced crime first-hand or had provided support to victims. Of those original members, four agreed to extend their tenure beyond July 2009 to support the work of the Government and of Sara Payne as the victims’ champion, until the first victims’ commissioner, Louise Casey, was appointed in May 2010.
I thank the Secondary Legislation Scrutiny Committee for its report on this order. I welcome its conclusion that this order does serve the purpose of improving the exercise of public functions and is in compliance with the test set out in the 2011 Act, which I will set out in detail shortly.
I reassure the Committee that the Government did not prejudge the process by winding down the panel before the 2011 Act came into effect. As Louise Casey announced her decision to resign as Commissioner for Victims and Witnesses in October 2011, during the consultation on our public body reforms, the Government considered that the future of the commissioner’s role should be decided before taking a decision on the future of the VAP. Accordingly, no final decision was made on the abolition of the VAP until it was clear that a new commissioner would be appointed. While the Government decided not to undertake any further recruitment to the panel during the uncertainty around the panel’s future, this did not prevent potential future recruitment if necessary.
With the appointment of a new victims’ commissioner, who has a statutory duty to promote the interests of victims and witnesses, we consider that a statutory obligation to appoint and consult a small advisory panel on victims’ issues is no longer the right approach. The commissioner provides an effective and flexible approach to ensure that a broad and diverse range of victims’ views is independently represented to government.
The noble Baroness, Lady Newlove, the current victims’ commissioner, took up her post on 4 March of this year following her appointment on 21 December 2012. She has already met many victims and their families across England and Wales, as well as the criminal justice agencies, to seek their views. This follows the work of Louise Casey, the previous commissioner, who undertook a wide remit of consultation and provided advice and challenge to government concerning the treatment of victims and their families and the services they received.
Given the role now played by the victims’ commissioner, we consider that the abolition of the VAP improves the exercise of public functions for the purpose of Section 8(1) of the Public Bodies Act 2011, such that making this order is justified. I say this for the following reasons.
First, on efficiency, abolishing the VAP will reduce the duplication of resources and activity in respect of convening panels and their administration. The victims’ commissioner will undertake a wide range of activities designed to engage the views of victims. This allows for a much greater breadth and depth of views to be obtained, which the commissioner will feed back to government and its agencies on a regular basis to inform and shape policy development and service delivery for the benefit of victims.
Secondly, on effectiveness, the abolition of the VAP will not limit the opportunity for victims to articulate their opinions about the criminal justice system and their position within it. The post of victims’ commissioner is an effective way of ensuring that the views of victims are sought and can influence the development of justice policy. During her tenure, the previous commissioner, Louise Casey, met and received correspondence from hundreds of victims who shared their views and experiences. She used this feedback to inform her advice to government, including reports and a review of the needs of families bereaved by homicide.
Thirdly, on economy, the abolition of the VAP will mean that the Government will not need to recruit and run a new panel, which has in the past cost about £50,000 a year. We believe that this additional spend is unnecessary, given that the work which the panel previously undertook clearly falls into the remit of the victims’ commissioner.
Fourthly, on securing appropriate accountability to Ministers on issues relating to victims and witnesses, this still remains through the role of the victims’ commissioner. The victims’ commissioner promotes the interests of victims and witnesses, as is her statutory duty, and is accountable to the Secretary of State for Justice. The commissioner is required to produce an annual report for the Secretary of State for Justice in her role and the work that she has undertaken, to be shared with the Attorney-General and Home Secretary, which is published and laid before Parliament.
Further, we are satisfied that the abolition of the VAP, for the reasons already stated, does not remove any necessary protections. Abolition of the panel does not affect the exercise of any legal rights or freedoms either directly and indirectly. Victims of crime will be able to have their voice heard through the channels operated and promoted by the commissioner and the Government.
The victims’ commissioner regularly meets the Minister for Victims and the Courts and the Secretary of State for Justice. She has publicly stated that she sees her role as providing challenge to government where the criminal justice system or proposed reforms to it fail to meet the needs of victims and their families, as well as working with the Government to improve the criminal justice system.
The appointment of the noble Baroness, Lady Newlove, as the new victims’ commissioner last December was a key part of this Government’s wider commitment to strengthen the voice of victims and to improve the experience of victims and witnesses in the criminal justice system. For example, we have consulted on a revised victims’ code, which includes reference to the victim personal statement for the first time giving victims a louder voice in criminal proceedings. The victims’ commissioner plays a leading role in ensuring that as we deliver these reforms the voice of victims and witnesses is represented to government. I know that the noble Baroness, Lady Newlove, has confirmed in a letter to noble Lords circulated ahead of this debate that she considers the victims’ commission to be best placed to promote victims’ and witnesses’ needs and to represent their views to government. I hope noble Lords will agree with the current victims’ commissioner that the victims’ commissioner is able to fulfil this role fully and effectively without the VAP, a body that duplicates her activities. I beg to move.
Lord Beecham
My Lords, public outrage about the abolition of the Victims’ Advisory Panel has been conspicuous by its absence, and the Opposition and I have no qualms about the Government’s decision to abolish it in the light of the appointment of successive commissioners. For that matter, all of us who heard it were deeply moved by the speech made by the noble Baroness, Lady Newlove, on these issues; I think it was her maiden speech. We have every confidence in her interest, palpably stemming from those tragic personal circumstances to which she referred, and her ability to be an effective voice for victims and a conduit to government.
However, I note that in the Explanatory Notes to the order the Government cite three criteria which they purport to apply to all bodies that are being considered for abolition and find that none of the criteria were met in this case, including a requirement for political impartiality. Having said that, and I repeat that this is no reflection on the noble Baroness, I find that a slightly surprising conclusion in respect of this position because there are potentially significant issues in this area, such as restorative justice, community sentencing, which is now very much part of the political debate under the Offender Rehabilitation Bill, and criminal injuries compensation, which is a sensitive political issue where changes were recently made. No doubt the commission will comment on all these in due course. However, despite the unique qualifications of the noble Baroness, it might be thought to be better in future appointments to have somebody who is less engaged with the political process.
That view is somewhat reinforced by a recent article in the Law Society Gazette, which records that it thought that the views of the commission should be sought about some of the matters that are currently being debated, including the impact of the Transforming Legal Aid proposals on victims and witnesses and concerns about defence work or prosecution work being carried out by, as it put it, inadequate prosecutors. It approached the commissioner—it e-mailed her—and got a telephone call back saying that she had not commented. That was fair enough. The caller repeated that the issue had not been commented on, and matters were left there. However, it turns out that the person at the other end of the phone was a press officer at the Ministry of Justice. This gives rise to the question whether the staffing and support for the commissioner—any commissioner, not just the present incumbent—should be a little further removed than the Ministry of Justice, which of course is responsible for many of the issues with which the commissioner will have to deal.
I do not raise this in a way that is critical of the noble Baroness, but it raises the issue that future appointments need to be considered. The way in which resources are made available to the present commissioner might be looked at again, given that she may feel called upon from time to time to be critical of the policy of the Government of the day, and to have someone working on that line from within the department might be a little difficult. I put it no higher than that. Perhaps the Minister might care to consider that issue in due course with this commissioner, and perhaps it should be borne in mind with future appointments. We are content that the order should be passed.
Lord McNally
My Lords, I am slightly surprised that the noble Lord raised the question of political appointments, even in the terms in which he couched his remarks. I find it extraordinary that somehow we back away from making appointments from the rich vein of political talent that is in the House. The idea that someone has to be politically neutral to be a victims’ commissioner is, I think, absurd. I can think of some likely Members on Labour Benches, including the noble Lord, who would make an excellent victims’ commissioner. The noble Lord is tempting me to express my views on the Cross-Benchers. I have always said that I find it extraordinary that people can reach 60 or 70 years of age without deciding about their political opinions, but that goes way beyond this brief.
I do not accept the idea. As the noble Lord conceded, in the choice of the noble Baroness, Lady Newlove, we have somebody who has tragic personal experience but beyond that has revealed a capacity to campaign on this issue and link with the victims of crime, which makes her an excellent choice.
I have more sympathy with the noble Lord’s idea that if you ring up the victims’ commissioner and get an MoJ press officer, that probably needs to be looked at. We are, for very good reasons, bringing within the MoJ family various bodies that carry out independent and arm’s-length functions. How we handle that is important. We must make sure that to the public dealing with them, the arm’s-length nature of their independence is underlined, while we get the benefit of the kind of back-office co-ordination that makes sense of these things.
The basic point is that we have already brought forward a range of measures that are designed to ensure that the voice of the victim is strengthened. These include consulting on a new victims’ code, which includes an entitlement for victims to give a victim personal statement when they give evidential witness statements for the first time, ensuring that the victim can describe how the crime has affected them; and announcing the piloting of a recorded pre-trial cross-examination of vulnerable and intimidated victims and witnesses to help them give their best evidence in court. As I have said, the appointment of the noble Baroness, Lady Newlove, as the victims’ commissioner gives victims a national voice and has, as the noble Lord, Lord Beecham, said, cross-party approval.
I understand that the noble Baroness has press office support as victims’ commissioner and has a dedicated press officer who works part-time. However, that press officer is based in the MoJ. Whether that has caused the confusion or the call was from part of the MoJ press team, I do not know; I have only just heard the point made. The press support which the noble Baroness will receive is fully independent of the MoJ, although it is within our building. I appreciate the noble Lord’s point—it will be duly recorded and pondered upon—and I am grateful for his more general support for this action. I commend the order to the Committee.
Public Bodies (Merger of the Gambling Commission and the National Lottery Commission) Order 2013
Lord Gardiner of Kimble
That the Grand Committee do report to the House that it has considered the Public Bodies (Merger of the Gambling Commission and the National Lottery Commission) Order 2013.
Relevant documents: 35th Report from the Secondary Legislation Scrutiny Committee, Session 2012-13, 23rd Report from the Joint Committee on Statutory Instruments, Session 2012-13.
Lord Gardiner of Kimble
My Lords, this is an administrative change that will provide some efficiency savings but that will be principally beneficial for the policy synergies and economies of scale obtainable from a single regulator in understanding and regulating the whole gambling market. This merger was first proposed by the previous Government, and the coalition has continued this support.
The Public Bodies Act 2011 provides a legal framework that enables the Government to propose the merger of specified bodies. The two commissions are so specified. This merger will ensure an integrated approach to consumer protection and allow the merged commission to advise the Government on gambling in the round.
The functions of both commissions are broadly similar, especially with regard to social responsibility. The National Lottery Commission ensures that the National Lottery is run with all due propriety and protects the interests of every participant. Subject to these duties, the NLC must do its best to maximise the money available to good causes.
Similarly, the Gambling Commission is responsible for ensuring that gambling is conducted fairly and openly, that children and vulnerable people are protected and that gambling is not a source of crime and disorder. It aims to permit gambling that is reasonably consistent with its pursuit of these licensing objectives.
Nothing in the order would affect the way in which the National Lottery and the gambling industry are at present regulated by their respective commissions; the merged body will retain the statutory functions of the existing commissions. However, the gambling industry, including the society lotteries sector, has expressed some concerns that the NLC’s duty to maximise National Lottery returns might be seen to influence regulatory decisions on commercial gambling or the provision of advice to government in favour of the National Lottery.
The key to addressing this is for the merged body to be absolutely clear as to the statutory regime within which each such decision is taken. The commission will ensure that decisions are taken within the appropriate legislative framework and that they do not take into account considerations that are irrelevant in that context, such as those applicable only to the other regime. Therefore, when making a regulatory decision on commercial gambling, which includes the society lotteries sector, considerations about the impact that this might have on the National Lottery will be irrelevant, and vice versa.
The merged organisation, like the individual commissions at present, will continue to give reasons for its decisions and be subject to judicial oversight via judicial review or the gambling appeals tribunal if, for example, it is thought to have taken into account irrelevant considerations or misused confidential information.
In addition to the preservation of separate legislative regimes and protections for the National Lottery and other gambling, the DCMS is taking further steps to ensure that its oversight of the merged commission continues to provide the appropriate level of accountability. The Minister for Sport and Tourism has written to the Gambling Commission to set out what the Government will require of the merged commission. This letter was copied to the House of Lords Secondary Legislation Scrutiny Committee by way of response to its report dated 26 April 2013. I have ensured that copies of this letter are on the table here for your Lordships’ perusal. I apologise that it has not been possible to make a copy for your Lordships available earlier, but I know that the noble Baroness, Lady Jones, has received a copy.
The Gambling Commission will put in place arrangements to ensure the following: that only relevant considerations are taken into account when making decisions; that the merged commission gives adequate reasons for these decisions; that appropriate information barriers are in place to avoid any actual, or perceived, conflicts of interest arising in the exercise of its functions under the relevant legislation; and that those handling operator-specific information are properly trained in data security protocols. In order to support these requirements, the commission is already planning to establish a sub-committee to make recommendations to the board on National Lottery issues.
All these assurance measures will be reflected in the management agreement, which will be settled between the DCMS and the merged commission in due course. This agreement will inform and underpin the department’s relationship with the merged commission. It will specify the steps that the merged commission will be expected to take to demonstrate impartiality and that the chairman and commissioners are responsible for implementing appropriate governance arrangements to manage any real, or perceived, conflicts of interest.
Given the distinct and self-contained statutory regimes relating to the National Lottery and other gambling matters, we believe that any such conflicts can be readily managed and that it is unnecessary to be prescriptive about the precise governance arrangements in legislation or the management agreement. This will preserve the merged commission’s ability to amend arrangements in the light of experience while continuing to respect the general principles set out in the management agreement. The Gambling Commission and the National Lottery Commission both support this merger.
Together, the collocation of the two commissions and the shared service arrangements that they have in place have, since January 2012, generated efficiency savings, while steps have already been taken to embed National Lottery expertise within the Gambling Commission. These actions have generated upfront costs but alongside the merger provide a sound basis for savings over the medium and long term. Once costs have fallen away, these initiatives will save more than £1.1 million per annum. The merger of the two commissions will itself generate a total saving for licence fee payers and lottery good causes of £330,000 over the 10-year assessment period considered by the Public Bodies Act.
In summary, this order will create a single organisation that is better able to provide comprehensive advice and guidance to the Government on all gambling issues, including the continuing protection of the public. The two organisations are already integrated in a number of respects, and approval of this order will allow us to realise further savings and additional benefits. I recommend this order to your Lordships.
Lord Faulkner of Worcester
My Lords, the short speech I was planning to make has changed dramatically as a result of the Minister’s opening speech, which I very much welcome. I was going to raise the conflict of interest between the Gambling Commission and the National Lottery Commission, an issue which the Secondary Legislation Scrutiny Committee picked up on and which I referred to during Committee on the Public Bodies Bill in March 2011. I made the point that from the inception of the National Lottery, the National Lottery Commission has operated with an inherent conflict of interest in that, as the Minister said, it is required to maximise the return for good causes but at the same time is supposed to protect players’ interests. I do not believe that the National Lottery Commission has, up to now, succeeded in doing that.
In drawing attention to this during Committee on the Public Bodies Bill, I expressed the hope that the merger of the two bodies would be resolved in future. The Minister was not quite right to say that the previous Administration had supported this merger. The Joint Committee on the draft Gambling Bill supported it, but the Government of the time unfortunately rejected the merger of the two bodies. To avoid wearying the Committee now, I will not quote what Lord McIntosh said for the Government on that occasion about those being two different jobs.
I listened very carefully to what the Minister said about how in future this conflict will be resolved. I want to read carefully what he has said, but the objections that I raised in March 2011 on the Public Bodies Bill seem substantially to have been met by what he has said this afternoon. I would like just one assurance, if he is able to give it to me: that he feels that the resources available to the Gambling Commission will be sufficient to do this job properly, because along with the obvious need for the National Lottery to be a success, player protection is very important.
Baroness Jones of Whitchurch
My Lords, I thank the Minister very much for his explanation of the order. I also thank him for the helpful information that he sent in advance of the debate, including the letter from Hugh Robertson to the chair of the Gambling Commission. I will return to that letter and that issue shortly.
First, I make the more general point that I understand that much of the impetus for this merger is to save money, and I do not doubt that there are savings to be made. I know that the House of Commons Culture, Media and Sport Select Committee report questioned the figures provided and felt that the overall savings should be greater. It is of course incumbent on any organisation in receipt of public money to spend that money wisely. I hope that the Gambling Commission will be held to account for this expenditure in due course.
However, I will not focus on the financial implications as I want to explore other, more pressing issues with the Minister this afternoon. We share the growing concern that gambling is running out of control. The spiralling rise of online gambling, now a £2 billion a year industry, risks damaging the health and well-being of a generation. We already know that nearly 1 million people are in danger of becoming problem gamblers and that there are already 500,000 hard-core addicts. Meanwhile, one of the Gambling Commission’s clear functions is already to protect children and vulnerable adults from being harmed or exploited by gambling, so by most measures it would appear that it is failing in that task. In that context, we need to be satisfied that the proposed merger is in the public interest and that the new, merged Gambling Commission is fit for purpose in the light of this crisis. Therefore, I should like to ask the Minister some questions.
First, is there a danger that we are rushing this decision without giving the proposal adequate consideration? The Commons Select Committee that considered this matter made two important recommendations, which need to be addressed before a final decision is made. Regrettably, I do not think that Hugh Robertson’s letter adequately addresses these issues. I take the point that we have had very little time to consider that letter. For example, the Select Committee recommended that the Gambling Commission outline the governance arrangements that it will put in place to ensure that there is a robust separation of its duties to oversee the lottery and gambling organisations to avoid the conflicts of interest to which my noble friend referred. It recommended that the details be published by the Gambling Commission in time for consideration of the order in this House. I agree that this information would have been extremely useful if it had been before us today, but it does not seem to have been provided by the Gambling Commission, unless my internet searches have failed on this occasion.
What is more, I do not believe that its original suggestion that it would set up a sub-committee to deal with lottery issues is adequate to address the governance issues. The Select Committee also recommended that the DCMS outline what steps it would take to monitor the Gambling Commission’s execution of its combined duties and what action it proposed to take if it was seen not to be acting even-handedly. I understand that Hugh Robertson’s letter is intended to address this issue by setting out what the DCMS would like to see in the management agreement with the Gambling Commission. However, we have not seen the response to Hugh Robertson’s letter from the Gambling Commission, and I should like to hear what it has to say on the matter.
Incidentally, the Minister also asked the Gambling Commission to put his letter on its website in time for this debate, but at midday today I could not find it there. Again, that might be a failure on the part of my internet search skills, but at the moment there seems to be an ominous silence from the Gambling Commission.
Also, the Minister’s letter does not adequately address the Select Committee’s question about what action the DCMS would take if, for example, there was evidence that the funding of good causes was suffering as a result of the merger. Therefore, first, given that the Select Committee’s report on this issue was published on only 2 July and that, as I understand it, the Commons will not be considering this order until September, does the Minister not think that a decision on the order should be delayed to allow all the information to be presented to this House and fully considered?
Secondly, the Minister will be aware that there are anomalies in how the National Lottery is treated compared with other society lotteries—for example, in the specified percentage required to be given to good causes and the duty of 12% that is paid to government. I gather that the DCMS is due to hold a consultation on the minimum that should be donated to good causes, and I welcome that. Also, as I understand it, the recent High Court judgment on the status of the Health Lottery, run by Richard Desmond, ruled that this was a matter for government rather than the courts. Would this merger not have been a convenient time to address these issues and the protections that need to be put in place to regulate other society and commercial lotteries that may be established?
Thirdly, is the Minister satisfied that the Gambling Commission is operating in a sufficiently transparent way? The vast majority of society lotteries raise significant sums of money for the causes which they support, but the percentage of income which they donate varies considerably. I tried to explore this a little in a recent Written Question to the Minister. In his reply, he said that the commission publishes aggregates of the financial details of these schemes. However, is that really good enough? Does the Minister feel that the Gambling Commission could do more to share information about the individual profits and donations of these lottery schemes, and, again, does he feel that this could have been addressed as part of the merger?
Crucial to any changes has to be the need to protect the £2 billion given to good causes by the National Lottery, which has become a respected national institution. The Gambling Commission could do more to reassure us that it has robust governance systems in place to ring-fence and nurture the development of the lottery while cracking down on exploitative commercial and on-line gambling.
I hope the Minister will address these concerns and more fully consider a postponement of the final decision on this order to allow for the letters to be read and for all the information to be presented to us in a proper form so that scrutiny can take place. I look forward to hearing his response to these questions.
Lord Faulkner of Worcester
My Lords, I should have put on the record at the start of my speech my entry in the register. I am a gambling regulator as a member of the Alderney Gambling Control Commission.
Lord Gardiner of Kimble
My Lords, I thank noble Lords for the points that have been raised and hope that I can allay some residual concerns. Perhaps the noble Baroness and any other noble Lord would care to have a meeting with me and my officials before the House rises if there are any issues that I might not be able to satisfy in my closing remarks. I will be very happy to discuss further any issues that I cannot satisfy today.
The noble Baroness, Lady Jones, referred to problem gambling. I strongly support the Gambling Commission and its advisory body, the Responsible Gambling Strategy Board, in their efforts to determine whether the level of gambling-related harm is increasing and what can be done to reduce it. The conundrum with which all Governments grapple is how to balance the enjoyment of the large majority who gamble safely—of course, gambling brings considerable economic and other benefits, whether employment, tax or proceeds for good causes—with finding ways to identify those at risk of harming themselves and reduce the risk of such harm.
We need the gambling industry to help drive the search for improved ways of mitigating the risks as the quid pro quo of being allowed to trade. It should be recognised that the level of problem gambling is less than 1% of the population, but we must be watchful through appropriate legislation and the work of the commission, which is informed by the Responsible Gambling Strategy Board.
I was going to say that this order has been supported by this Government and their predecessors, but the noble Lord, Lord Faulkner, reminds me that that might not be the case. I also have in my notes a suggestion that this measure was supported in both the Conservative Party and Labour Party manifestos at the last election. I had therefore better look back into the records to see how all this corresponds with the facts. However, I can say that this issue has been at large for both Governments to consider.
The order will merge two bodies with similar responsibilities, aims and objectives, as I have said. Having a single regulator that understands and regulates the whole gambling market will provide desirable policy synergies. This can be achieved while effectively managing sensitive data, handling two sets of legislation and preserving the commitment by the regulator’s predecessors to consumer protection. This is well within the capability of the Gambling Commission. While creating a single entity ensures a common approach and in-the-round advice on gambling to government, this merger will also generate savings for the industry and lottery good causes. This is a clear benefit because we want as much of these savings as possible to remain for good causes.
Neither committee in either House objected to the merger but both have requested that we publish guidance on how the Gambling Commission will maintain its impartiality. As I said earlier, a copy of the Minister’s letter to the chairman of the Gambling Commission outlining the governance arrangements that the Gambling Commission will implement is available. I am mindful of what the noble Baroness has said and I may need to reflect on that and discuss it with her. In particular, it is important that we look at the response from the Gambling Commission.
This merger has been under consideration and we have been talking to officials for a very long time. Indeed, if it had not been for the National Lottery licence competition, this proposal might well have been presented by the previous Government. For that reason, I do not think that the merger itself is a rushed affair. However, we need to make sure that the fine tuning and governance arrangements are fit for purpose. I would like to have discussions with the noble Baronesses on that.
Apprenticeships (Alternative English Completion Conditions) (Amendment) Regulations 2013
Baroness Garden of Frognal
That the Grand Committee do report to the House that it has considered the Apprenticeships (Alternative English Completion Conditions) (Amendment) Regulations 2013.
Relevant documents: 3rd Report from the Joint Committee on Statutory Instruments.
Baroness Garden of Frognal
My Lords, these regulations introduce an amendment to the alternative completion conditions for English apprenticeships. As noble Lords know, employment is usually a precondition of any apprenticeship. Indeed, experience of genuine employment is what sets apprenticeships apart from most other forms of vocational training and gives apprentices a real head start in their careers.
Apprentices have a unique opportunity to learn from one or more mentors, and to develop, practice and hone real occupational skills. The apprentice will work alongside the master, watching, copying and refining their skills. For his part, the employer will demonstrate, guide and correct the apprentice’s work. Both apprentice and employer have a real stake in the apprentice’s development and success. Noble Lords will be aware of the value of this approach and of the part employment plays more generally in guaranteeing the quality of the training offered through apprenticeships and of its contribution to the apprentice’s future value to prospective employers. However, in a very limited number of cases an exception to employed status is needed, and this is what the alternative completion conditions specify.
This issue was thoroughly debated during the passage of the Apprenticeships, Skills, Children and Learning Act, and there was agreement on all sides that some specific groups should not be denied access to apprenticeships because they could not meet the requirement for employment. Regulations were approved last year to cover three types of exception. First, there are apprentices who begin their training while in employment but are made redundant during the course of the apprenticeship due to changes in the employer’s circumstances. Secondly, the provisions support athletes hoping to represent the nation in an Olympic, Paralympic or Commonwealth Games discipline. Thirdly, there are a very small number of jobs or occupational areas in which employed status is not the norm. A few of these were approved for apprenticeships last year, and today I am looking for the Committee’s support to add one further case.
In 2012, the first set of alternative completion conditions were approved, with the assurance that these would be reviewed regularly. We remain adamant that only very exceptional cases must be allowed in order to ensure that the quality of all apprenticeships is not compromised. The Government have carefully considered all subsequent applications and decided that only one of the three submitted should be taken forward. The advanced apprenticeship in maritime occupations shares common features with the others previously approved in Schedule 1. Apprentices will be engaged in a commercial activity and supported by experienced colleagues involved in a collective venture.
I assure noble Lords that this is not the thin end of any wedge. Extending alternative completion conditions to able seamen and trainee officers in the Merchant Navy will ensure the best start to naval careers and reduce the maritime sector’s reliance on recruiting personnel from overseas. The exceptions provided for under the regulations reflect the Government’s desire to ensure that otherwise able candidates are not excluded from the possibility of gaining an apprenticeship by force of circumstance. The regulations accordingly tread a very careful line between recognising and providing for such circumstances and continuing to guarantee the quality of the qualification to which training will lead. That is consistent with the Government’s recent response to Doug Richard’s review of apprenticeships.
On that basis, I commend the regulations to the Committee.
Lord Greenway
My Lords, I thank the Minister for outlining these regulations. I say at the outset that I very much welcome them. I declare an interest as the patron of the Maritime London Officer Cadet scheme. This change has arisen out of an anomaly that arose that restricted apprenticeships in the Merchant Navy.
The apprentice framework for maritime occupations unfortunately fell between two stools—two sets of statutory requirements, one being the specification of apprenticeship standards for England, the SASE, and the other the regulation supporting European Community guidelines on maritime transport state aid. To satisfy the former, trainee officers had to be employed but were forbidden from being employed by the European regulations, so there was a problem there. I am delighted to say that although it has taken a while, things have worked out well, and these new regulations do not alter that.
I do not need to tell your Lordships that the Merchant Navy annually recruits some 800 or 900 entrants into the business. Deck officer and engineer cadets generally have two to three years’ training. In the Merchant Navy, we prefer to call them cadets, not apprentices, but they are in fact the same thing. It is very important that we continue to train sufficient numbers of these young officers, because although our Merchant Navy has declined over the years, these young officers can still get very worthwhile jobs working for foreign companies, and after being at sea for a number of years they can come ashore and fill the multitude of maritime-related jobs ashore, not least in the City of London. I very much welcome these regulations.
Lord Young of Norwood Green
My Lords, I, too, welcome these regulations. I listened carefully to what the noble Lord, Lord Greenway, said. He is an expert in this field, and it seems that this is a seaworthy recommendation from the Government.
I have a couple of comments to make. The Explanatory Memorandum states:
“It is intended that the certifying authority, which will be the Alliance of Sector Skills Councils, will issue guidance from time to time on the administrative arrangements relating to the application and awarding of apprenticeship certificates. This guidance will cover circumstances where the standard completion conditions do not apply. The Secretary of State is not intending to issue guidance”.
I am quite pleased. The Alliance of Sector Skills Councils should have the right experience and occupational awareness, but there ought from time to time to be some check that that guidance meets the necessary standards and criteria. I would welcome the Minister’s views on that.
I am not expecting an answer from the Minister today, but I was somewhat surprised to see that the number of under-19 apprenticeship starts as a proportion of the total for all ages in England shows a decrease in 2010-11 and 2011-12 at the same time as the total annual number of vacancies for apprenticeships increased from around 43,000 to just over 100,000. Furthermore, the proportion of candidate applications for apprenticeships for under-19 year-olds had decreased from 2009-10, while it had been increasing for over-19s. I find it surprising that demand is less than supply. My experience is that it is usually the other way round. I like to quote British Telecom apprenticeships; you can get into Oxford or Cambridge more easily than you can get a British Telecom apprenticeship. There are something like 300 apprenticeships and usually about 25,000 applications.
I am really puzzled by those figures. I am not expecting an answer this afternoon. The only thing I can think of is that the figures do not compare like with like and are about a decrease for under-19s as a percentage of the total. That could be because the number of apprenticeships available in that range has also slightly decreased, if my memory serves me right, although the overall figures have gone up. I think that is the answer, but this is an important area. I apologise for slightly extending the range of questions, but as it occurred in the Explanatory Memorandum, I thought it was fair game. Apart from that, I am happy to endorse the government recommendation.
Baroness Garden of Frognal
My Lords, I thank noble Lords for their contributions and for their support for this statutory instrument. I was interested to hear the expertise of the noble Lord, Lord Greenway, on this and to learn that the Merchant Navy prefers the term “cadets” to “apprentices”. In most fields, we see cadets as slightly different from apprentices, but the maritime world has its own long-established ways of doing things. It was also good to hear that when people get these qualifications it means that they will bring expertise back into land-based fields. The City of London has a great tradition of maritime-based trade and expertise. I can see that that is a good career option for people from the maritime world.
I assure the noble Lord, Lord Young, that the Government have a close relationship with the Alliance of Sector Skills Councils and that there will be monitoring and checking as we continue with these measures. The Government are trying to address the decrease in the number of under-19s in a number of sectors, although the total number of apprenticeships has increased significantly. We are, for instance, looking at a grant for employers and various other incentives, which should make it more straightforward for employers to bring the under-19s into different schemes.
I have indeed heard the noble Lord talk about the BT apprenticeships, which are highly sought after. I spent an interesting day on Friday visiting British Airways and its apprenticeship scheme. I was told that there had been 20 applications for every place on the programme. Some large employers are doing enormously valuable work in bringing in apprentices. It is extremely encouraging to see the enthusiasm of young people who find themselves on these programmes and their real commitment to, and focus on, work. We certainly wish that to continue while apprenticeships grow across all sectors.
I have probably answered the queries of noble Lord, Lord Young, at least in part. I think that there is widespread agreement that this is a good move forward.
National Minimum Wage (Amendment) Regulations 2013
Lord Popat
That the Grand Committee do report to the House that it has considered the National Minimum Wage (Amendment) Regulations 2013.
Relevant documents: 4th Report from the Joint Committee on Statutory Instruments.
Lord Popat
My Lords, the regulations before us increase the minimum wage rates for all workers and increase the maximum amount for living accommodation that counts towards minimum wage pay.
These regulations increase the main minimum wage rate—that is, the rate that applies to workers aged 21 or over—by 12 pence an hour from October, from £6.19 to £6.31. This increase follows the recommendation of the Low Pay Commission. It takes into account the need for caution as we recover from this recession. Even though the economy remained weaker in 2012 than had previously been forecast, levels of employment in the low-paying sectors have been relatively resilient. The commission concluded that an increase of 1.9 per cent will go a long way towards maintaining the relative earnings of the lowest paid, while at the same time being affordable to businesses of all sizes.
The Low Pay Commission’s recommendation for the adult rate was based on extensive and sound economic evidence, analysis, research and consultation. We are confident that the commission was right to take a prudent approach. We believe that it is important that we do not do anything that would reduce employment or employment opportunities for the lowest-paid workers.
I will now speak about the minimum wage rates for young people. In the debate on last year’s minimum wage regulations, noble Lords discussed the Government’s decision to accept the Low Pay Commission’s recommendation that the youth rates should be frozen at the same level as 2011. While this was not an easy decision, it was one that we felt was needed to avoid jeopardising the employment of young workers. The Low Pay Commission found that the labour market position of young people has stopped deteriorating and that there were some signs of improvement, although it is too early to know if these will become a trend. As a result, the commission concluded that a further freeze in the youth rates was not necessary. However, it recommended a smaller increase than for adults in order to help to protect the labour market position of young people. The draft regulations increase both the 16 to 17 year-old rate and the rate for 18 to 20 year-olds by 1% to £3.72 and £5.03 per hour respectively.
I am sure that noble Lords share the Government’s concern about the position of young people in the labour market. Their employment prospects have suffered more than those of other workers in the difficult economic circumstances. We believe that the tough decision that we made last year has helped to stabilise their position and that the 1% increase in the youth rates set out in the regulations is the correct approach. It strikes the right balance between retaining the attractiveness of work for young people and not deterring employers from taking on someone who may require more training in the first instance.
Lastly, I shall explain why the Government rejected the Low Pay Commission’s recommendation to freeze the apprentice rate and, instead, are increasing the rate by 1%. I should start by saying that the Government fully recognise the challenges that the commission has faced as a result of the uncertain economic environment. Its report contains substantial detail about the evidence that it considered and we thank the commissioners for all the hard work that they have put into developing their recommendations.
The commission’s underlying analysis of the labour market is of its usual high standard and the Government entirely accept its assessment of the low-paid labour market. However, rather than accept the freeze that the commission recommended, we have decided to take a different approach. The Government entirely share the concerns expressed by the commission about non-compliance with the apprentice rate. We are clear that employers must pay their staff at least the minimum wage. The Government are fully committed to the minimum wage and its effective enforcement. That is why we are increasing compliance activity, raising awareness with employers at risk of unintentionally falling foul of minimum wage rules, and ensuring that individuals are up to date about their rights. We are also ensuring that our guidance is as clear, comprehensive and consistent as possible. However, we believe that concern about non-compliance does not translate into a freeze in the apprentice minimum wage rate.
After careful consideration, we concluded that there are important reasons why we should make a modest increase in the apprentice rate. Apprenticeships are a key government policy and it is important that they are truly beneficial for both employers and apprentices. Increasing the apprentice rate by 1% will maintain its relative position compared with benefits and the youth minimum wage rates. This should ensure that apprenticeships remain an attractive route into work for young people.
As with all the minimum wage rates, the apprentice rate needs to balance affordability for employers with a fair deal for the lowest-paid workers. Many employers go further and pay more to reflect the value that a worker adds to their business. However, the apprentice rate acts as a safety net for many, and we do not want to see these young people falling further behind their peers in other areas of the labour market.
Although we are increasing the apprentice rate, I emphasise the need for caution. That is why we concluded that a rate which reflects the increase in benefits and public sector pay and which is in line with the increases in the youth minimum wage rates is appropriate. Evidence in the Low Pay Commission’s report concluded that the majority of apprentices paid on or just above the apprentice rate are young people.
We believe that the commission has played, and continues to play, a vital role in achieving the success of the minimum wage. Going against a commission rate recommendation is not something that this Government have done before; nor is it something that we took lightly. The commission has provided high-calibre analysis and advice since its inception in 1997 and we will continue to work with it to ensure that the minimum wage continues to support as many low-paid workers as possible while, simultaneously, not damaging their employment prospects.
We consider that the changes to the minimum wage rates contained in the regulations are appropriate and that they balance the needs of low-paid workers against the challenges that businesses face. I ask your Lordships to consider these regulations.
Baroness Donaghy
My Lords, I had not intended to speak in the debate but I am pleased to do so now that I have heard the Minister’s explanation of the regulations.
I was a founding member of the Low Pay Commission when it was first established. We created its infrastructure and recommended the first minimum wage. The Low Pay Commission has always been thorough and has always acted on an evidence-based footing. It is fair to say—the Minister implied this—that it has always been conservative with a small “c” on the issue of youth rates and apprentice rates for the reasons he set out. It had to get the balance right between making sure that the rates were not so large as to discourage employers and not so small as to discourage apprenticeships. Therefore, the Government have got this right.
The only additional point I would make is that there is an extra challenge coming in from the side on the issue of unpaid internships, which complicates apprenticeships in many areas. It is extremely important that we support the recommendations but also bear in mind that the issue of youth rates, internships and the application of the minimum wage is becoming more and more of a grey area.
I have always maintained, and I do now, that although there were staff whose job it was to maintain the application of the minimum wage, there were never enough. I would like the Minister to respond on that. Certainly, in many areas of industry it was quite clear that there were two levels of pay—one declared and one undeclared—but the difficulty was in getting people to complain. In areas such as the textiles centre in the south-west of Birmingham, people might go to their advice centre but they would not want their name reported because they knew that they would probably never get another job in the area if they made the complaint. They worked the legitimate number of minimum wage hours but then, off the books, they would be asked to work an extra seven or eight hours and, therefore, the average made it clear that it was not any longer the statutory national minimum wage. That practice is still happening and, if anything, is probably worse.
So, in supporting the general idea—I do not want to go against the Low Pay Commission normally, but I think in this case it has acted on the side of generosity—I would ask the question about ensuring the application of the statutory national minimum wage and that the law is carried out on the ground.
Lord Young of Norwood Green
My Lords, I, too, in principle welcome the Government’s proposal. I am always pleased to see their conversion to supporters of the national minimum wage. As someone else remarked in another context, it was not always thus. However, it is good to see that there now seems to be an enthusiastic endorsement of both the principle and application of the national minimum wage. We do not want to be in a situation where it decreases the number of jobs. We could argue that what has a major impact on jobs and the number of jobs available is the amount of growth we can get in the economy, but I do not think that this is the right place to debate the Government’s economic strategy. However, it is well known that we do not feel they have got it right—said he with the gift of understatement.
I endorse the comments of my noble friend Lady Donaghy. The Minister referred to the importance of effective enforcement and the problem of non-compliance. Are there any statistics of the number of complaints going into either ACAS or any of the other bodies? There is an employment rights helpline and I would be interested to know what the statistics are on complaints about non-compliance with the national minimum wage.
Other than having those concerns, we endorse the proposal.
Lord Popat
This has been a valuable short debate and I thank noble Lords for their important questions. A couple of specific points were raised and I shall respond to them in a moment. However, first, I should like to emphasise that the Government are committed to the minimum wage because of the protection that it provides to lower-paid workers and the incentives to work that it provides.
These regulations support the Government’s commitment to delivering fairness and supporting business, and I believe that they are fair and appropriate. The increase that the Government have recommended is reasonable, bearing in mind that the personal allowance of a large number of low-paid people has gone up in the past 18 months, which will help them to earn more money net of tax.
The noble Baroness, Lady Donaghy, and the noble Lord, Lord Young, both raised two very important issues. The LPC was established with the right infrastructure in 1997 and it does excellent work. It is quite independent of the Government and represents people from trade unions and other organisations. With the minimum wage, there is widespread acceptance that what we are recommending is appropriate.
With regard to enforcement figures, in 2012-13 the Pay and Work Rights Helpline received around 58,000 calls. Of these, the overwhelming majority—over 90%—were dealt with by the helpline. Just under 3,000 calls were referred on to the enforcement agencies for further action. We are making a real effort to ensure that employees are aware of the minimum wage and that employers are aware of the onus on them to pay the minimum wage to their employees.
I hope that noble Lords feel that they can accept the regulations. I trust that my response has been appropriate. If it has not been, I shall be very happy to write to noble Lords.
Lord Young of Norwood Green
I thank the Minister for that. For clarification, when he said that out of the 58,000 calls to the helpline 3,000 were referred to the enforcement agencies, I presume that that meant 3,000 calls from those receiving the national minimum wage. Am I right in that presumption?
Lord Popat
That is correct. In fact, the information that I have is that just under 3,000 calls were referred on to the enforcement agencies for further action—in other words, the enforcement agencies were going to take further action to resolve any outstanding issues or discrepancies between employers and employees.
Unfair Dismissal (Variation of the Limit of Compensatory Award) Order 2013
Lord Popat
That the Grand Committee do report to the House that it has considered the Unfair Dismissal (Variation of the Limit of Compensatory Award) Order 2013.
Relevant documents: 4th Report from the Joint Committee on Statutory Instruments, 6th Report from the Secondary Legislation Scrutiny Committee.
Lord Popat
My Lords, I beg to move that the Unfair Dismissal (Variation of the Limit of Compensatory Award) Order 2013 be considered by the Committee.
This draft order introduces an additional limit on the compensatory award for unfair dismissal, which is based on 52 weeks of an individual’s pay. This limit will exist alongside the existing overall limit, currently at £74,200, with the applicable cap in individual cases being the lower of the two caps. This order is an exercise of the power found in Section 15 of the Enterprise and Regulatory Reform Act 2013. The power allows the Secretary of State to vary the limit on compensatory awards for unfair dismissal in certain ways.
There are two ways in which the limit can be varied. This first is in the order before us today: the introduction of a cap based on an individual’s pay, provided that this cap is no less than 52 weeks’ pay. The second way is to change the overall level of the cap. This power is also limited. The overall level of the cap cannot be less than median annual earnings or more than three times median annual earnings. The current overall limit of £74,200 falls within this range. We do not intend, at this time, to use this aspect of the power in Section 15 to change the overall limit further.
The purpose of this order is to address the effects that the recent rapid increase in the limit has had. The current cap stands at £74,200, greatly in excess of the average unfair dismissal award of less than £5,000 which includes both the basic and compensatory elements of the award. The potential, however unlikely, for high awards creates unrealistic expectations among both employers and employees. The uncertainty that this potential creates for employers can discourage them taking on new staff while claimants may believe that if they pursue the claim, rather than accept a settlement, they will receive large sums.
I am sure that noble Lords will agree that it is important, particularly if we are to achieve our shared objectives of growth and increased early dispute resolution, to manage expectations about the level of tribunal awards. The Government consulted on the unfair dismissal compensatory award cap through the Ending the Employment Relationship consultation. Following analysis of responses to the consultation, the Government are not minded to change the overall specified cap but have decided that it is appropriate to introduce a cap based on an individual’s salary to run alongside the overall cap. The Secondary Legislation Scrutiny Committee highlighted this decision in its 27 June report, and I am thankful to it for providing the opportunity to put to rest any concerns about the consistency of the Government’s approach to consultation.
As the committee pointed out, statistically speaking, there was not unanimous support for or against any option. Half of respondents were in favour of the cap before us today and 45% were not, while 37% felt the overall cap was appropriate, and 39% felt it was not. If these numbers were the only evidence that we had from the consultation, our decision would indeed be inconsistent. However, these data are only a part of the evidence we received. As we have only 30 minutes today, I will refer to only a few key points.
First, among respondents who opposed the pay-based cap, almost 40% opposed any cap at all on rewards. Noble Lords will appreciate, however, that all Governments have agreed that it is necessary to have a limit on compensation for unfair dismissal. Secondly, as our government response clearly stated, very few respondents made any suggestion of an alternative level for the overall level of cap. Of the 26 respondents who suggested an amount, eight suggested £26,000, six suggested £78,000, five suggested £52,000 and three suggested £50,000. The remaining four suggested amounts in the range of average annual earnings and three times that amount. Moreover, these suggestions were not backed by supporting evidence. Without support or evidence, the Government chose not to initiate a legislative change to the overall cap at this time. I am sure noble Lords will agree that we do not want to choose a new cap arbitrarily.
Thirdly, a key component of consultation analysis is to consider the quality of evidence provided. We were, on balance, convinced by respondents’ arguments for a salary-based cap; it is a tailored approach to unfair dismissal awards that is fair to claimants. It is right that the cap is based on pay because the compensatory award is meant to reflect loss caused by the employer’s actions in dismissing the employee. Since the compensatory award is based on financial loss, it makes sense to link it to the individual’s pay. Let us also not forget that this change is about correcting perceptions.
We estimate that only 0.25% of people who bring an unfair dismissal claim receive an award which exceeds their annual salary. This estimate is based on the total award, that is, both the basic and compensatory awards combined, so the number affected by limiting the compensatory element of the award would be likely to be even lower. This order has no effect on the basic award, which is currently capped at £13,500.
The Government are committed to promoting growth in the UK economy and take the view that this cap will facilitate that growth while still being fair to individuals who have been unfairly dismissed. I commend this order to the Committee.
Lord Monks
My Lords, I thank the Minister for that explanation of the Government’s position. I note that he did not address much the report of the Secondary Legislation Scrutiny Committee, which criticised the Government for inconsistency in the way that they have conducted the consultations and come to their conclusions. This is partly because the last time this issue was considered the Government were not enthusiastic about a pay-based cap but they have changed their position in the intervening period. That is an argument with the Secondary Legislation Scrutiny Committee. Perhaps the Minister will find an opportunity to explain the Government’s view on that point a little more. However, on the substance of the issue—
Lord Monks
The Minister will be grateful that I do not propose to go through my opening remarks again. I am sure that he has got that particular point. The Division neatly ended a paragraph of thoughts and so I will move on to another: the purpose of the change.
We are being asked to believe that because people can see a crock of gold in this compensatory award at present, the cap has become an expectation which encourages claims and then deters employers from undertaking recruitment because they are afraid that this gathering mass of people will all think that they are going to get their name up in lights with the top award. It seems far-fetched in the extreme to say that the picture being presented is a real one. I instead come to the conclusion, which I would test on the Minister, that this is simply about reducing the amount of money that some employers have to pay to some employees. It is a step at the expense of the employee in favour of the employer.
This is one of many steps that have been taken in this area in recent times, particularly with the raising of the qualifying period for unfair dismissal from one year to two, which took 3 million workers out of the scope of unfair dismissal legislation. That was perhaps the biggest but there have been a number of other changes. I suggest that this is another salami cut into employment rights at work. It is not the biggest—I do not want to exaggerate my case—but it is one under which some employees will lose, while some employers are going to gain from it. I hope that the Minister will acknowledge that that is really what it is about rather than this romantic story that the Government seem to be advancing: that all this reduced compensation will mean fewer claims, which means more employment, to put it in the reverse way from how I put it before. Is this not simply about reducing the amount that employers have to pay to workers who they have unfairly dismissed? Those workers have been not just dismissed but unfairly dismissed.
Baroness Donaghy
My Lords, I shall make a couple of points. My noble friend Lord Monks has already referred to the Secondary Legislation Scrutiny Committee’s report. I understand that in the absence of clear consensus on views, sometimes the Government have to take a leadership position, which this Government have done. Unfortunately, it is not a consistent position. I question why the Government have decided not to take action on the basis of no consensus on one issue and to take action on the basis of no consensus on the second issue.
Lord Young of Norwood Green
My Lords, we have had a fair amount of consensus this afternoon on previous statutory instruments but I think that this is the one where we part company, as we have signalled in previous debates on this issue under the Enterprise and Regulatory Reform Act. If there was one move that the Government made that we firmly endorsed, it was to encourage the mediation process through ACAS. We supported that; we thought that it was constructive and sensible. If only the Government had pressed the pause button after having done that and had waited for a period of time to see its effect, that would have been profoundly important. However, the Government were not satisfied with that. As my noble friends have commented, they have gone on to introduce a number of other significant changes. One change was increasing the period of service required before a claim for unfair dismissal could be entered from one year to two years, and my noble friend Lord Monks has referred to that. That is a profound change in itself.
The consultation process that the Government went through was, as someone somewhere else said, “a damn close run thing, Carruthers”. The figures are really quite marginal. In some cases, they swing the other way on whether or not there should be caps. As my noble friend Lord Monks said, the Secondary Legislation Scrutiny Committee itself pointed out in paragraph 20 of its report:
“It is of course for Government to decide on policy-formulation in the light of consultation responses. We note, however, that there was a lack of consensus on both the key issues relating to compensation for unfair dismissal canvassed in the 2012 consultation process. In the case of the overall cap, the Government saw this as reason to make no change. By contrast, an even division of opinion among respondents has not held the Government back from implementing its proposal to introduce a pay-based cap. It is hard to see these outcomes as demonstrating consistency in the Government’s response to consultation”.
We welcome the Government’s response on that point. However, we cannot help feeling that the lower paid will again face the consequences of this and that it will have an impact on older workers, who may have longer service with an employer.
We do not believe that this will address the real issue. Unfortunately—my noble friend Lady Donaghy is right—this is based on perception, as the Government have admitted, and on the wide publicity that has been given, not only in the tabloids but in the broadsheets, to the one or two cases which return significantly large figures. This is an ill-conceived proposal and we would like the Government to think again. However, in any event, I welcome the Minister’s response.
Lord Popat
My Lords, I thank noble Lords for their valuable and detailed comments during this short debate.
The order focuses on giving adequate recompense to those who have been unfairly dismissed while also providing certainty for business on its potential liability. It will bring expectations more in line with the likely amount of award that can be expected in an unfair dismissal claim at tribunal. Secondly, it will enable employers to hire with more confidence, as this individualised cap will reassure them about potential liabilities.
A number of points were raised which I should like to address in my remaining time. The noble Lord, Lord Monks, referred to reducing the cost to employers. We estimate conservatively that, as I said earlier, only 0.25% of unfair dismissal claimants might be affected by the cap. This is about allowing employers and employees to take informed decisions on how to resolve disputes. If they know in advance the likely outcome of a tribunal, it will help the two parties to settle in advance.
The noble Lord, Lord Monks, also said that the Government were inconsistent in their approach to considering the consultation response. As I said in my opening remarks, although there was not unanimous support for any single option, when considering the totality of the evidence and not only the bald figures that we received from this information, the Government were convinced by the response argument for a salary-based cap. The cap applies to many different circumstances. A pay-based cap is a more individualised yet clear method of ensuring that parties know the potential level of award while still fairly compensating claimants.
The large gap between the expectation and the reality is a problem for both employees and employers. It is unfair to allow a situation where the mis-sold promise of big pay awards means that individuals make decisions based on flawed assumptions. We want to ensure that individuals can make informed and intelligent decisions based on more realistic information and an assessment of likely awards. This is not about pushing the parties down any particular route; it is there to help them.
A number of other issues were raised on the same subject. The order will give business clarity about the potential cost to employers in cases where they have to fire employees. Certainty is very important for employers when they employ people. It is also important that we do not give unrealistic hope or expectation to employees who are unfairly dismissed. The order clarifies the position for both parties.
We are competing in the global world and it is important that our employment legislation is clear-cut. This order is clear-cut for both employees and employers. I hope that I have covered all the points raised. If I have not, I shall be happy to write to noble Lords.
Lord Young of Norwood Green
My Lords, the Minister said that a pay-based cap will make the system more consistent. It may make it more consistent, but is it fair? The impact for someone on lower pay of losing their job can be far higher than on someone on a significantly higher pay rate. It is not just consistency that you look for when making this kind of legislation, it is whether it treats people fairly. The Minister did not address that issue and I would welcome his views on it.
Lord Popat
My Lords, as I said earlier, 0.25% of cases at the tribunal for unfair dismissal have resulted in compensation of £74,200, but 90% of the cases that have gone to the tribunal have resulted in compensation of just under £5,000. Therefore, even somebody on the minimum wage will probably be able to get the right level of compensation. All parties recognise the need for a cap. As I said earlier, the median award is £4,560, which is below the median salary. Therefore, for 99.75% it is quite reasonable for low-paid people to have this cap or the maximum of £74,200.
Baroness Donaghy
I was making a general point about the Government allowing, if you like, propaganda about excessive amounts of money to simmer around in the pot, whereas we all know that the reality is that the award figure is very low. I should have mentioned earlier that, even when the minority of the minority of the minority are awarded compensation, 40% of them do not receive it. They have to either accept nothing or go through the civil courts to chase the employer for the award. Therefore, the talk about caps and limits and about putting employers off employing people goes along with the propaganda about large amounts of money, when the reality is that those amounts are small and 40% of them do not get paid. Does the Minister not feel that he could at least put forward a consistent point of view about this and not put a cap on the pay-based awards?
Lord Popat
The noble Baroness raises a very important issue. This large amount of £74,200 has been in place for some time. We are trying to clarify matters, and the most reasonable or most equitable way of doing this and of speeding up the tribunal process or the agreement between employers and employees is to bring in a cap of either 12 months’ salary—which is quite reasonable because it gives the employee 12 months to find an alternative job—or £74,200. As I mentioned earlier, 95% of the awards given in the past have been settled for less than the median of £4,560. We have put information on median awards on ET1 claim forms to help to address issues of perception. We are also improving the guidance to help employers and employees to have better information.
The Government have given due regard to the comments of the Secondary Legislation Scrutiny Committee and have concluded that the order meets the requirements of the Act. I commend it to the Committee.
House of Lords
Introduction: Lord Livingston of Parkhead
Death of a Member: Lord Chitnis
The Lord Speaker (Baroness D'Souza)
My Lords, I regret to inform the House of the death of the noble Lord, Lord Chitnis, on 12 July. On behalf of the House, I extend our condolences to the noble Lord’s family and friends.
Retail: Portas-plus Package
Lord Naseby
To ask Her Majesty’s Government, further to the Answer by Baroness Hanham on 12 February (HL Deb, col. 557), what proposals they have to boost independent retailers in addition to the Portas-plus package.
Lord Naseby
My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I declare an interest in that a member of my family works in the retail trade.
The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Hanham)
My Lords, following the Portas review, we have lifted planning restrictions, doubled small business rate relief to help small shops, and provided communities across the country with a multimillion pound package of support so that they can drive new ideas for their local economy. Beyond the Portas pilots, the Government have invested millions through the High Street Innovation Fund and high street renewal awards. This is alongside more than £115 million of government funding to boost enterprise and initiate business start-ups.
Lord Naseby
Is the Minister aware that the Portas proposals and the extensions to them that she has just announced are enormously welcome to everybody in the retail trade? Nevertheless, two dimensions are hitting Britain’s high streets today. The first is low demand for the past two and a half years, which we all understand, because of the state of the economy and what we inherited in that dimension. The second, however, is business rates. Business rates have now reached the extent that they are the largest single overhead of any retailer, particularly the independent retailers. Against that background, can my noble friend confirm that there will be a commitment from the coalition Government to find a fairer way to tax both the high street and the online traders?
Baroness Hanham
My Lords, as the noble Lord will know, the Government have doubled the level of small business rate relief for the past three and a half years, and the higher level of relief will be available throughout the next year. Approximately half a million small businesses in England are estimated to benefit from that. We have also given authorities powers to grant their own business rate discounts, and central government is funding 50% of that. We have also reduced, and are reducing, corporation tax for larger businesses and corporate structures. Although I understand that concern is expressed by some about their business rates, I am not aware of any plans to change the system.
Lord Cotter
My Lords, pro rata to turnover, small shopkeepers provide more jobs than the big supermarkets do, although we are also seeing a great increase through mini-expresses and other means employed by the supermarket chains. It is welcome that the Government have come forward with schemes for business rates but those schemes lack a certain breadth and viability for many people. Will my noble friend look into the unfair situation whereby small shopkeepers frequently pay considerably more in business rates, based on turnover, than the big chains do?
Baroness Hanham
My Lords, I am not totally sure that they do. Business rates, as the noble Lord knows, are levied on the rate of rent paid so that, whatever happens, payments will be consistent. I am aware that there is concern about this, as I have acknowledged. However, I think that the Government feel at the moment that there is nothing to do to change that except to give small businesses the relief that I have already described.
Lord McKenzie of Luton
My Lords, the Question of the noble Lord, Lord Naseby, refers to “independent retailers”. Is that a distinction which is reflected in government policy, and what definition has been adopted?
Baroness Hanham
My Lords, I have accepted my noble friend’s interpretation. Independents, of course, are small retailers which, as the term suggests, are not part of a chain. On the other hand, small retailers may be part of a chain. It depends on the size of the business. To be clear, we are looking to ensure that small businesses can thrive in high streets. I have outlined the measures that we have taken to try to ensure that and to support them over the coming years.
Lord Phillips of Sudbury
Will my noble friend please take into account, when considering improvements to this already useful package, the fact that we are, in our times, seeing a decrease in the cohesion of local communities? Independent shopkeepers give character to town centres but also, more importantly, very often support local community activities in a way that the supermarkets totally fail to do. Will the Government take account not only of that but of the crazy disparity in tax payments between the little local shop on the high street and some of the big online retailers?
Baroness Hanham
My Lords, I totally agree with my noble friend that local, small and independent shops help provide community cohesion. There are many in my area which I know are very valued for the work that they do. One of the reasons why we are very anxious to see the high street flourish is that these independent traders are there, as well as others. After all, they are the centre of local communities, and they should be the generator. You meet people in the local butcher’s, and you meet people on the high street. They are also keen to take part. I fully accept that from my noble friend.
Baroness Farrington of Ribbleton
My Lords, will the Minister tell the House whether any government support or money is available for the conversion of space above high street shops to housing accommodation? There is a great demand for affordable housing in the centres of many of our towns and small cities. What are the Government doing to assist that?
Baroness Hanham
My Lords, as I indicated in my opening remarks, the Government have made changes to the planning regime which will enable local shops to become residences if that is a suitable change. I totally agree with the noble Baroness about the empty space above so many shops. Yes, we are very anxious to see those brought into use, and under permissive development they could be, but there are often structural reasons why they cannot, for example because they have no separate entrance. However, I take the noble Baroness’s point, which is very well made.
Medical Litigation: Impact on Medical Innovation
(11 years, 5 months ago)
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Lord Saatchi
To ask Her Majesty’s Government what assessment they have made of the impact of medical litigation on medical innovation.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, it is the Department of Health’s view that no assessment is required as no changes are needed to the law or medical guidance in this area. The current system allows for doctors to initiate novel treatments provided that they are evidence-based, in the best interests of the patient, and with patient consent. While the law does not seek to block innovation, it does require new forms of treatment to be rigorously tested before being introduced.
Lord Saatchi
My Lords, would my noble friend allow me to share the latest figures with your Lordships’ House? The number of lawsuits filed against the NHS last year was double the level of four years ago. Last year the payout of claims against the NHS was £1.2 billion. The current Treasury provision for likely payouts in the future for litigation against the NHS is now over £19 billion. Against that backdrop, is there not a danger that the growing fear of medical litigation leads to a growing bias against medical innovation? Will my noble friend consider the warnings of judges about the tendency of current law to inhibit medical progress? For example—
Lord Saatchi
I will shorten what I was going to say. Will my noble friend consider the warnings of judges, including that of the noble and learned Baroness, Lady Butler-Sloss, that under current law no innovative work—such as the use of penicillin, or performing heart transplant surgery—would ever be attempted?
Earl Howe
My Lords, naturally I share my noble friend’s concern about the level of litigation in the NHS. Having said that, I have seen no evidence that a particularly large or indeed significant element of that bill relates to medical innovation. We need to reflect that all treatments in routine use in the NHS today began as innovative treatments. We continue to support the introduction of new and innovative treatments in the NHS. I think that, if anything, doctors have more concerns about being reported to the General Medical Council than they do about being sued.
Lord Campbell-Savours
My Lords, is there not a danger that the requirement to publish the patient mortality rates of individual surgeons will act as a disincentive for surgeons to innovate and take risks in circumstances where patients themselves might want those surgeons to take a risk?
Earl Howe
There is indeed a danger that if the information that is published has not been carefully scrutinised to make sure that it is balanced and reflects faithfully the performance of the individual surgeon or the surgical team. I share the noble Lord’s concern that we should not just release information that has not been carefully examined in that sense, but there is a value, I suggest, to patients and clinicians themselves to have benchmarking metrics against which to judge performance.
Lord Walton of Detchant
My Lords, does the Minister agree that there is a longstanding Bolam judgment—which to the best of my knowledge is still active—to the effect that, in the management of a particular patient, a doctor is not negligent if he or she has acted in accordance with the views of a group of informed medical opinion? It does not have to be the majority medical opinion so long as the individual has acted in accordance with the views of a well recognised group of other doctors.
Lord Mawhinney
My Lords, by how much are litigation figures reduced by the intervention of mediators or arbitrators?
Earl Howe
I cannot give my noble friend a figure for that, but I can tell him that mediation and arbitration are increasing features in cases of this kind. We are very keen for that mechanism to grow, because the more that cases get into the hands of lawyers—I say this with great respect to noble Lords who are lawyers—the higher the bill to the NHS and the more distress there is to patients and families.
Baroness Wall of New Barnet
My Lords, I congratulate the noble Lord, Lord Saatchi, on linking these two important issues of innovation and litigation. I worry that the innovation that has become part of the Liverpool care pathway has had the reaction that it has. We understand today that there is going to be a cessation of that care pathway, because people are reporting being tarnished by it, whereas many patients have had great experiences and families’ involvement in that. It concerns me that we will either stop something because there is an issue about it or stop innovating.
Earl Howe
I share the noble Baroness’s concern, but at the same time I recognise that the noble Baroness, Lady Neuberger, and her expert group have done a very thorough job of work. It is now up to the Government and the whole medical community to consider and reflect on the conclusions that the noble Baroness has reached. One thing that she has said is that her decision is not a recommendation to move away from best practice in end-of-life care.
Lord Marks of Henley-on-Thames
My Lords, while of course we need to be cautious about encouraging a compensation culture, does my noble friend agree that medical litigation not only secures compensation for many who deserve it but does a great deal to maintain and improve medical standards in this country?
Earl Howe
My noble friend makes an extremely important point. Our policy is that it is right that NHS patients who are injured as a result of clinical negligence should be able to obtain correct and full compensation. Under the current system, compensation is in general paid only where legal liability can be established. The underlying principles are clear cut and enshrined in common law.
Lord Patel
My Lords, does the Minister agree that the only bar to surgeons introducing new surgical procedures is that they subject them to external audit to make sure that they do not harm patients?
Airports: Passenger Numbers
(11 years, 5 months ago)
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Lord Clinton-Davis
To ask Her Majesty’s Government how many passengers used each of the United Kingdom’s main airports in May 2013; and how many in May 2012.
Lord Clinton-Davis
My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I declare that I am life president of BALPA.
Earl Attlee
My Lords, the noble Lord asks for a lot of data. The Civil Aviation Authority publishes monthly statistics on the number of passengers at each reporting airport. By way of example, passenger numbers at Heathrow exceeded 6 million in May this year, up 5% compared with May last year. At Gatwick, passenger numbers exceeded 3 million, up 8% from the same time last year.
Lord Clinton-Davis
I thank the noble Earl for that information. Does he agree that inordinate delay in selecting a new hub airport can only give Paris, Amsterdam and Frankfurt a real, perhaps decisive, advantage, which will be immensely difficult, if not impossible, to reverse? Why do the Government not recognise that, with improved access, Heathrow will provide a speedier answer than any other airport in existence today—one that would hugely benefit British aviation and our economy as a whole?
Earl Attlee
My Lords, I do not agree that there is inordinate delay. This is an extremely important decision. There is no right answer and when we find our solution we must have national consensus. The Airports Commission is the right way of determining the right answer and getting national consensus.
Lord Spicer
My Lords, how long will it take to complete the latest Boris Johnson wheeze?
Earl Attlee
My Lords, I am sure that the Airports Commission will take into account the practical difficulties and advantages of “Boris Island”.
Lord Foulkes of Cumnock
My Lords, does the Minister agree that there would be many more flights out of United Kingdom airports if air passenger duty was not so high? This is particularly the case for the Caribbean: the friends and family of people who live there are unable to go back to visit them because of the very high level of air passenger duty. A proposal has been put to the Department for Transport to change the level for to the Caribbean, but we have not yet had a response. Could the Minister say when that response will be forthcoming? I hope that he will give it sympathetic consideration.
Earl Attlee
My Lords, it is first important to understand that air passenger duty is essentially a revenue-raising tax—that is its purpose. It is not so much an environmental tax. APD is not a tax on international aviation fuel, which would be prohibited by the Chicago Convention. As I said, APD is a revenue-raising tax, which needs to be clear and simple and to ensure a fair contribution from the sector to public finances.
Lord Bradshaw
My Lords, I wonder whether the noble Earl agrees that, in answer to the Question of the noble Lord, Lord Clinton-Davis, the key issue is how many people move from one aeroplane to another at airports; and to exclude from some of these large figures all the people who stop here for a period? That way, we can separate the number of interlining passengers from the destination passengers.
Earl Attlee
My Lords, as usual, my noble friend is on the money. The Airports Commission has access to the statisticians and data available at the Department for Transport to inform its research and decisions.
Baroness Scotland of Asthal
My Lords, I wonder whether the noble Earl would reconsider the answer he gave to my noble friend Lord Foulkes, when he said that air passenger duty is simply a revenue-raising tax? Is the noble Earl suggesting that Her Majesty’s Government do not take into account the severe impact that such a tax has on a region that is vulnerable and in need of help and support?
Earl Attlee
My Lords, the Government do consider the effect of APD. For instance, we have devolved APD to Northern Ireland because we faced competition from Dublin, which meant that the Belfast airports were getting into difficulties with the transatlantic trade. I understand the noble and learned Baroness’s point and that of the noble Lord, Lord Foulkes, about families wanting to go to the Caribbean, but I should also point out that there is quite a lot of holiday traffic to the Caribbean as well.
Lord Naseby
How can it be right that this tax is lower if you go all the way to Los Angeles than it is to get to the Caribbean? We do not have too many families going to Los Angeles on the lower rate but we have thousands who want to go to the Caribbean.
Earl Attlee
My Lords, as I tried somewhat clumsily to explain, we have to make sure that air passenger duty is not a tax on fuel. Therefore, we cannot tax per mile because, effectively, that would be a tax on fuel and we would fall foul of the Chicago Convention. It is, I accept, a fairly crude calculation and you can get peculiar results, as my noble friend suggests.
Lord Faulkner of Worcester
Can the Minister give an assurance that the claims of Birmingham Airport will be considered in the airport review, bearing in mind that it is the one airport in the country that has spare capacity; that there is not the degree of opposition to expansion and building new runways there that exists at Heathrow, Gatwick or Stansted; and that it will be less than an hour from London by high-speed train?
Earl Attlee
My Lords, I can assure the noble Lord that the Airports Commission will take into account the benefits of Birmingham Airport and, in particular, the arrival of HS2, because that will make a big difference. I am certain that that will be within its calculations.
Lord Davies of Oldham
My Lords, the Minister must have noticed considerable activity by airport interests in putting their case before the public. When the Minister travels by Tube, as I am sure he does, in recent weeks he must have left this House and walked past advertisements raising that issue. What reply do the Government give to those important interests? Is it the same lame reply of long delays that we get in this House?
Earl Attlee
My Lords, I am confident that the Airports Commission is well able to see past an advertising campaign.
Digital Strategy
(11 years, 5 months ago)
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Baroness Lane-Fox of Soho
To ask Her Majesty’s Government what plans they have following their digital strategy to enable adults to acquire the necessary skills to make use of digital services.
Baroness Lane-Fox of Soho
My Lords, I beg leave to ask the Question standing in my name on the Order Paper and, in so doing, declare an interest as chair of Go ON UK.
Lord Wallace of Saltaire
My Lords, we are setting up a cross-government team to lead and co-ordinate the Government’s work on digital inclusion. This will help offline adults and businesses to develop their digital skills. The team will work closely with Go ON UK, as the noble Baroness is well aware.
Design of assisted digital provision is in the early stages. This is how offline adults will access central government digital services. We are considering how to include an element of learning in that provision to encourage offline adults to use digital services independently in future.
Baroness Lane-Fox of Soho
My Lords, I thank the Minister for his Answer, and I commend the Government’s use of digital services. However, as he will be aware, all the data show that it is the lowest income households who have the most to gain from those services but are often the hardest to reach. I wonder what steps the Government are taking to ensure that this complex problem is addressed and that no one is left behind.
Lord Wallace of Saltaire
My Lords, I was visiting a large housing association in Bradford on Friday morning and was happy to learn that it provides for its tenants centres where people who do not have the skills can go to be helped to use the internet. That is very much part of what is in line. The noble Baroness will be aware that there is a joint DWP-DCLG scheme, which is working with the private sector to provide that for social landlords. That is one way in which one reaches one of the harder areas of the population which we must reach.
Lord Clement-Jones
My Lords, as regards the Government’s digital strategy, the NAO has recently pointed out that there are slipping projections for superfast broadband to rural areas, a lack of competition and the need to change the procurement model. Are not these serious criticisms, and is not the plan not to implement the Digital Economy Act until 2015 another disappointment?
Lord Wallace of Saltaire
My Lords, I am something of an expert when it comes to which parts of the Yorkshire Dales National Park one cannot get mobile access. I am conscious that there are all sorts of contradictions in wanting to develop rural broadband, with national parks resisting having mobile phone masts put up all over them.
Some weeks ago, the Chief Secretary to the Treasury announced, as part of the Investing in Britain’s Future package, that there will be an additional £250 million match-funded to extend superfast broadband to such hard-to-reach areas.
Baroness Bakewell
My Lords, are the Government aware that more and more councils are going online? In fact, they are offering a bribe—a reduction for people who pay their bills online—thus penalising the millions of older people who are not willing or able to go online themselves. Surely the health cost of isolating more and more older people from the free running of society and their councils is something the Government should take into account.
Lord Wallace of Saltaire
My Lords, the Government very much take that into account. Incidentally, the statistics do not show that all older people are incapable of using digital services. The assisted digital scheme is precisely a means of helping people who do not find it easy to access the internet. They are given incentives to encourage them to ask their friends and others in care homes and elsewhere to help them to access the internet. I admit that the only government service that I have yet used online is renewing my driving licence. I understand that the most complex procedure that you can currently do entirely online is the enduring power of attorney, which I suspect one needs younger people to help with.
Baroness Wheatcroft
My Lords, instead of a subsidised TV licence or free television licence for the elderly, might not subsidised broadband be a good idea?
Lord Wallace of Saltaire
My Lords, I had better take that one away and think about it.
Lord Wright of Richmond
My Lords, is the Minister aware—I doubt whether he is yet—that one way to acquire digital skills is to have as many grandchildren as possible?
Lord Wallace of Saltaire
Yes. I have also discovered that one of the ways to go backwards in digital skills is for your son to emigrate. You cannot then ask him to help in the middle of the night.
Lord Reid of Cardowan
My Lords, the disconcerting element of the Minister’s Answer to the noble Baroness in the first case was that this is at an early stage. We are now decades into the internet. We are at least a decade on from envisaging digital services. Whether it is a matter of the social justice of excluding people who cannot use this, of hygiene and security on the internet or, indeed, of the chronic shortage of skills that we have as regards cyber for the future, will the Minister reassure us that, while he may be at an early stage in this process, rapid progress will be made? I declare an interest as a twice-over grandfather.
Lord Wallace of Saltaire
My Lords, things are actually moving quite fast. This is not simply something that central government are attempting to impose. I am encouraged by how much is being done at the local level by voluntary organisations and by partnerships between the public and the private sectors. The assisted digital scheme is intended to pull a number of these together and make sure that they are encouraged to help precisely in those areas of the country where digital skills are least well developed. The speed at which people are moving over to digital as mobile smartphones expand is very rapid.
Lord Avebury
My Lords, I am sure my noble friend is aware that according to the Office for National Statistics, 3.8 million disabled people have never used the internet. How are those people going to claim universal credit when the applications have to be made online? If they all go to the centres that he mentioned, will they not be completely overwhelmed?
Lord Wallace of Saltaire
My Lords, that is precisely what the assisted digital and digital inclusion schemes are intended to deal with. They encourage people to learn how to use the internet themselves and, where they find it difficult to do so, to assist them and advise them on how to gain the access they need.
Lord Stevenson of Balmacara
In the last quarterly report of the GDS, the figure of 20% of the population needing some sort of assistance is quoted. I make that about 10 million people. Will the Minister comment on the fact that in the recent report on the rural broadband programme, the chairman of the Public Accounts Committee said that only 9 of 44 locally managed programmes are expected to meet the 90% superfast broadband coverage target? The programme now will not be delivered until March 2017—nearly two years late. What is plan B?
Lord Wallace of Saltaire
My Lords, things are actually changing very rapidly. I am fed up in Saltaire with the number of letters Virgin has put through my door telling me that it has now wired the entire village. The speed at which superfast broadband is being expanded is very rapid. This is not a matter simply for the Government. One of the things that worries me about the current statistics of where the Government need to catch up is that 60% of the population have shopped online and continue to shop online but less than 30% have accessed government services online. That is where we hope to catch up.
Highway and Railway (Nationally Significant Infrastructure Project) Order 2013
(11 years, 5 months ago)
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Earl Attlee
That the draft order laid before the House on 15 and 16 May be approved.
Relevant documents: 3rd Report from the Secondary Legislation Scrutiny Committee, 2nd Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 10 July
Supply and Appropriation (Main Estimates) Bill
(11 years, 5 months ago)
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Marriage (Same Sex Couples) Bill
(11 years, 5 months ago)
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Baroness Anelay of St Johns
My Lords, this is a procedural matter, which is why I have leapt to my feet in advance of my noble friend Lady Stowell. I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Marriage (Same Sex Couples) Bill, has consented to place her interests, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
Amendment 1
“Survivor benefits under occupational pension schemes
(1) The Secretary of State must arrange for a review of the following matters relating to occupational pension schemes—
(a) relevant differences in survivor benefits;(b) the costs, and other effects, of securing that relevant differences in survivor benefits are eliminated by the equalisation of survivor benefits.(2) For the purposes of this section, each of the following are relevant differences in survivor benefits—
(a) differences between—(i) same sex survivor benefits, and(ii) opposite sex survivor benefits provided to widows; (b) differences between—(i) same sex survivor benefits, and(ii) opposite sex survivor benefits provided to widowers;(c) differences between—(i) opposite sex survivor benefits provided to widows, and(ii) opposite sex survivor benefits provided to widowers.(3) The review must, in particular, consider these issues—
(a) the extent to which same sex survivor benefits are provided in reliance on paragraph 18 of Schedule 9 to the Equality Act 2010;(b) the extent to which—(i) same sex survivor benefits, and(ii) opposite sex survivor benefits,are calculated by reference to different periods of pensionable service.(4) The arrangements made by the Secretary of State must provide for the person or persons conducting the review to consult such other persons as the Secretary of State considers appropriate.
(5) The Secretary of State must arrange for a report on the outcome of the review to be produced and published before 1 July 2014.
(6) If the Secretary of State, having considered the outcome of the review, thinks that the law of England and Wales and Scotland should be changed for the purpose of eliminating or reducing relevant differences in survivor benefits, the Secretary of State may, by order, make such provision as the Secretary of State considers appropriate for that purpose.
(7) An order under subsection (6) may amend—
(a) England and Wales legislation;(b) Scottish legislation.(8) In this section—
“occupational pension scheme” has the same meaning as in the Pension Schemes Act 1993 (see section 1 of that Act);
“opposite sex survivor benefits” means survivor benefits provided to surviving spouses of marriages of opposite sex couples;
“same sex survivor benefits” means survivor benefits provided to—
(a) surviving civil partners, and(b) surviving spouses of marriages of same sex couples;“survivor benefits” means survivor benefits provided under occupational pension schemes.”
Baroness Stowell of Beeston
My Lords, I will speak also to Amendments 2 to 5, on the subject of occupational pension benefits. I am grateful to my noble friend Lord Lester, the noble Lord, Lord Alli, and the noble Baroness, Lady Royall, for adding their names to this group of amendments.
The Government have listened carefully and understand the concern that has been expressed that same-sex married couples will be in a different position from opposite-sex married couples as regards occupational pension benefits. The effect of the difference in treatment, which is permitted under the exception in Schedule 9 to the Equality Act 2010, is that currently civil partners and, by virtue of the provision made in Schedule 4 to this Bill, people married to someone of the same sex may not benefit from their civil partner or spouse’s pensionable service prior to 2005 in respect of any survivor benefit payable on the death of their civil partner or spouse.
We discussed this issue at some length in Committee and on Report, when we had a full debate on Amendments 84 and 84A, tabled by the noble Lord, Lord Alli. I am grateful to him and other noble Lords for highlighting this important issue and for engaging in constructive discussions during the passage of the Bill, which have led us to bring forward this group of amendments.
I will begin by making clear that we are talking here about which period during which contributions were actually made to a pension scheme will be taken into account when calculating survivor benefits on the death of the pension scheme member. Therefore, this issue does not affect people whose pensionable service began in 2005 or later. For those whose pensionable service began prior to 2005, the concern is that contributions that they have made will not benefit their partner on their death. I should also make clear that if the Government were confident that equalising these benefits was straightforward and sustainable, we would be happy to support a move towards equalisation. But as a matter of principle, and as I have explained previously, successive Governments have avoided imposing retrospective costs on pension schemes, particularly private sector pension schemes, which have not been taken into consideration in their funding assumptions.
It would be irresponsible of any Government to commit themselves to imposing potentially significant costs on businesses and the taxpayer without first undertaking an assessment of all the implications and knock-on effects, and assessing the scale of the costs involved. This group of amendments therefore requires the Government to arrange a review of the differences in survivor benefits in occupational pension schemes between opposite-sex couples and same-sex couples in legal relationships, both marriage and civil partnership. It will look at the issue in the round and will include looking specifically at the effect of eliminating differences in treatment because of sexual orientation in terms of survivor benefits between people married to someone of the opposite sex and people married to someone of the same sex. I can therefore assure the House that the review will include an exploration of the issue which is the focus of the concern of the noble Lord, Lord Alli.
As I have said, we must also look at the full costs and implications of any change. This means looking at the effect of equalisation across the board, because any changes made for one group could have significant wider implications. The review will therefore also consider the differences in treatment between widows and widowers of marriages of opposite-sex couples and the impact of removing the current exception permitting these gender-based differences of treatment provided by Section 67 of the Equality Act. It is important to emphasise, however, that these existing gender-based differences in treatment for widows and widowers in relation to survivor benefits arise from changes that have been made over time as a result of societal change. These longstanding differences reflect the historical fact that in the past many women were not economically active and relied on their husbands for their pension. These differences are therefore not consequences of the measures in the Bill, but it is important that the review considers all the interdependencies between the arrangements for different groups in occupational pension schemes in the round.
It is also important that interested parties are consulted and that all relevant voices are heard. The review will also therefore include consultation with those interested parties that the Secretary of State considers appropriate. This point was raised by my noble friend Lord Higgins. I can assure him and the House that consultation will include, for example, pension scheme trustees and industry bodies, as well as organisations representing the interests of lesbian and gay employees.
Following this comprehensive review, the amendments require the Secretary of State to publish a report of the outcome before 1 July 2014. The amendment also includes an order-making power. This ensures that if on consideration of the outcome of the review the Secretary of State thinks that the law needs to be changed in order to reduce or eliminate differences between survivor benefits, this can be achieved through secondary legislation, subject to the affirmative procedure.
I hope that these amendments reassure the House that we have listened to the strength of feeling on this issue and have responded in good faith with a sensible and measured way forward. The Government’s amendments will ensure that if we were to make any changes to the existing arrangements for differences in survivor benefits we would do so with an understanding of the full implications of such changes and of the potential costs both to schemes and to the taxpayer. I beg to move.
Lord Alli
My Lords, I thank the Minister and my noble friend Lady Royall of Blaisdon for making this amendment possible. I am glad that the Government will re-look at this issue and that if they can they will change the law.
This is also my last opportunity to speak on the Bill. I want to say thank you not just to the Front Benches on both sides of the House but to the House. I have been truly humbled to have been part of the Bill in this place. This week will mark the 15th anniversary of my entry into your Lordships’ House. As a gay man, over those 15 years you have changed my life. You have given me dignity where there was sometimes fear, you have given me hope where there was often darkness and you have given me equality where there was sometimes prejudice. Those who want radically to reform this place come with their plans. Let me say this to them: witness this day; witness this Bill; judge us on the creation of the liberties that we protect and extend.
This is a special place and I am proud to have figured in it. My life and the lives of many others will be better today than they were yesterday, and I thank the House for that.
Lord Lester of Herne Hill
My Lords, I am glad that I put my name to these amendments. I add my support to the Minister for the wisdom of the amendments. It is an open-ended consultation that is not prejudged, it is time-limited so there will not be undue delay, and if there are changes it will be subject to affirmative procedure, which means that Parliament will be able to be properly consulted, as the public and all the interested groups will have been.
To add a further point, if change is brought about it will avoid the need for further litigation that could finish up in the European Court of Human Rights, as I read its case law, because if there is to be change it will remove a source of discrimination that, it could be strongly argued, is not compatible with convention rights. For all those reasons, I am very glad to support this.
The noble Lord, Lord Alli, has described me in the past as a lone ranger, but I was not sure that that was a compliment. I sit among my Liberal Democrat tribe not as a lone ranger; we are full of support for that team. I should say, though others will also say it from these Benches, that we are very proud of the fact that we were the first to think of civil partnership, to do civil partnership in a Private Member’s Bill and then to support the admirable Equality Act, so I do not think that I am a lone ranger. Anyhow, I do not watch cowboy films because I am too frightened of what will happen to the horses of the Indians.
I join in the tributes to the Minister and her extremely skilled team. Part of that team was responsible for the Equality Act 2010, which I have described as the best civil rights legislation in the world, and that I believe to be the case. The Minister has had to deal with the Bill in difficult circumstances; there are some in the House who are strongly opposed to it. However, the way in which amendments have been considered and debated across the House honestly and transparently has been extremely important, and I have learnt a great deal from listening to those debates.
I joined the House 20 years ago and I can tell those who are a bit younger that it would have been quite inconceivable for the House to have been able to approve this measure then. It would have been fairly impossible 15 years ago. What has changed for the better has been the modernisation of this House through appointments, and I pay tribute to the previous Government for the appointments that they made that I think have secured a House that is truly countermajoritarian and truly concerned with individual rights and with protecting minorities against the abuse of powers by the tyranny of the majority.
Lord Rowlands
My Lords, I rise to make a brief contribution—my one and only contribution to the Bill—because listening to the debates and reading the correspondence has brought vivid memories back to me of voting at 4.27 am, 46 years ago this month, by 99 votes to 14 for Mr Leo Abse’s Sexual Offences Act decriminalising homosexuality. I was a 27 year-old Member of Parliament who had only been elected the year before, totally unexpectedly so because I was not expected to win a Conservative stronghold. That brief political experience did not prepare me for the vehemence of the reaction to my stance in that year. I have never since come across anything quite like the level of abuse and vehemence that I received in certain quarters of the constituency because of my support for that Bill. How could I possibly legitimise such horrid, heinous and sinful practices? The church, at that time, took rather a curious position on the Bill. It kind of supported it because it could help in the mission to save the sinful souls of homosexuals. The Bishop of London of the time said that it would allow,
“the reformation and recovery … of those who have become the victims of homosexual practices”.—[Official Report, 13/7/67; col. 1291.]
I do not know how well that mission has succeeded since.
Lord Higgins
My Lords, I join other noble Lords in congratulating my noble friend the Minister on the Front Bench on the way in which she has handled this Bill throughout. Indeed, I join all those who expressed appreciation to the noble Lord, Lord Alli, and others who have carried on the debate in such an eloquent and satisfactory manner. I am particularly grateful to the Minister for saying that the review will take into account the position of pension fund trustees and other beneficiaries in ensuring that equality is maintained. I would ask particularly whether the position will be protected so that those in a same-sex marriage do not gain access to a closed pension scheme in a way that would prevent members of the company’s other scheme entering it. Perhaps that point might be taken into account by the review. Can my noble friend say what the composition of the review is to be? I am at rather a loss to understand what interests of Her Majesty are involved in this; that came straight out of the blue. Can my noble friend clarify that particular point?
Finally, I am glad that the order resulting from this review is to be subject to a resolution so that the House will be able to debate the result of the review without having to resort to a prayer. Overall, I think that we have made significant progress. I still have grave reservations about the position of registrars and so on, which I understand was a whipped vote on the other side. In any event, on this particular aspect of the Bill, the Minister has certainly done an excellent job and I am very grateful to her.
The Lord Bishop of Norwich
My Lords, I support this group of amendments. A review of the benefits accruing to all survivors under occupational pension schemes is both desirable and necessary. The principle of equity under the law for those whom the law holds to have the same status in relation to the deceased is a sound one. Hard-pressed pension schemes must be tempted to limit benefits, and the complexity of some schemes may hide inequity, so this principle is clear and just and I support it. Indeed, the Church of England pension scheme already treats surviving civil partners in precisely the same way as widows and widowers.
There is a wider reason for supporting these amendments. It is no secret that the majority of Christian churches and other world faiths do not believe that same-sex marriage accords with their understanding of marriage itself. However, many of us, including on these Benches, welcome the social and legal recognition of same-sex partnerships and believe that our society is a better and healthier one for such recognition. That is why I support this group of amendments. This point has sometimes been obscured in public commentary on what has been taking place here, but not in the debates in your Lordships’ House. The courtesy and clarity with which your Lordships have listened to each other represent our very best traditions, and I echo all that has already been said in this brief debate.
I, too, thank the Minister for her work and the Government for accommodating the needs of the Church of England and other faith traditions, and for wanting to do so. That has also been a characteristic of this House as the Bill has been debated. While the Bill is necessarily complex as a result of meeting many needs—and we are making it a bit more complex again—it will serve very well both its supporters and those who are still unconvinced about it, and that is a signal achievement.
Baroness Royall of Blaisdon
My Lords, I was very pleased to add my name to this group of amendments. I thank the Government for listening and recognising that action should be taken in order to get rid of this last inequality, which in my view is an anomaly. However, it is of course right that consultation, a review and an assessment should be undertaken before any final action is taken. I especially thank the Minister, who steered through the discussions on the compromise with her usual aplomb, skill and understanding. I am glad that we can all agree that this is the best way forward.
Lord Elton
Before the noble Baroness sits down, since there is no opportunity for a Back-Bencher to join in after that, and she sprang rather quickly to her feet, I wish to say that I welcomed the attempt to produce equality in this aspect of the Bill at each stage and that I am particularly glad to support it now. Perhaps it is best to pass over the rest of the debate we have heard.
Baroness Stowell of Beeston
My Lords, I am very grateful to all noble Lords who have spoken in this debate and for their support for these amendments. I will respond to some of the questions that were put by my noble friend Lord Higgins. He asked whether those who are currently excluded from a defined benefit scheme would not get access to such a scheme to a greater advancement than anyone else as a result of this review. I can assure him that that is not the case. The purpose of the review is purely to look at the contributions that people made before 2005. The noble Lord asked about the composition of the review. We will publish terms of reference in due course, and at that time we will be able to offer a little more detail.
As to the role of Her Majesty the Queen and the comments of my noble friend Lady Anelay before I moved Third Reading, I do not have a comprehensive response to that question except to say that that was just a formality that is sometimes necessary on the government Chief Whip’s part before a Bill passes on to the Commons. It is all to do with various, specific interests that Her Majesty may have in a piece of legislation. In no way does it pre-empt proper process or the granting of Royal Assent. It is a pure formality and there is nothing unusual in it.
I will respond more broadly to this debate and to those that we have had on the Bill in your Lordships’ House over the past few weeks. At Second Reading, I urged the House to ensure that the protections that allow the church and other faiths to maintain their legitimate belief that marriage is only between a man and a woman should work properly. I also said that this House should debate and scrutinise whether the Bill protects freedom of speech. Your Lordships have done that, and I am grateful to all who have contributed. Those of us who have supported the Bill in principle, and those who have been concerned about protections for those who did not, have together made this an even better Bill.
While the amendments we have made were all tabled by the Government, they have all been inspired by your Lordships and by the debates we have had in this House or through the work done in its committees, particularly the Delegated Powers and Regulatory Reform Committee. During the passage of the Bill through both Houses, the Government have made 23 substantial amendments, 17 of them while the Bill has been in this House. The most significant include the reviews to which we are committed—on civil partnerships, humanist marriages and the equalisation of survivor benefits for same-sex and opposite-sex married couples—as well as the amendment to the Public Order Act, which is a significant protection for freedom of speech.
We have also made amendments on religious protections, in particular one that clarifies the word “compel” in Clause 2. Religious faiths, notably the Catholic Church and others who are neither the Church of England nor the Church in Wales, and who did not wish to opt in to marrying same-sex couples, wanted us to strengthen further the clause in the Bill that states that a person may not be compelled to conduct a marriage of a same-sex couple. This matter was also debated in the Commons and the movers of the amendment there were defeated by 321 votes to 163. Even though the will of the Commons was clear on this point, the Government said that they remained open-minded and would continue to listen. We did so, and were persuaded to come forward with our own amendment on Report. The Bill is now clearer, and says:
“A person may not be compelled by any means (including by the enforcement of a contract or a statutory or other legal requirement)”.
I was pleased that the noble Lord, Lord Brennan, whom noble Lords will remember was critical of the Bill at Second Reading, commended the amendment, saying that it dealt with concerns about public functions comprehensively. He said:
“I cannot remember seeing in a statute—certainly not in one of this kind—the words ‘by any means’. That is an all-embracing, protective phrase and I commend the Government doubly for such a courageous use of language to achieve one of the protections that they said they wanted to achieve: institutional independence”.—[Official Report, 8/7/13; col. 105.]
Lord Higgins
I am sorry to interrupt, but is it not the case that registrars will effectively be compelled, even if they have conscientious objections, to marry same-sex couples?
Baroness Stowell of Beeston
The amendments to which I am referring concern religious protection. The point that was made during our debate on registrars was that they are public servants, carrying out a public function, and are therefore not in the same position as people of faith as to the requirements if they are conducting a marriage in their own church. They are employed to do a job as public servants.
Our debates have provided evidence to support something else I said at Second Reading. It is possible for us to allow in law something that not everyone agrees with, and to respect our differences of view. In particular, I note the comments of the noble Lord, Lord Rowlands, about the contrast between our debates and those of the past on previous gay rights legislation. I note, too, what the right reverend Prelate the Bishop of Norwich said when he paid tribute to the way in which we have debated the Bill in your Lordships’ House.
“( ) an order under section (Survivor benefits under occupational pension schemes);”
Lord Cormack
I understand that this is the time that one would make a brief contribution on this Motion. I am very sorry to be doing it now in a sense because my noble friend the Minister in effect wound up the proceedings on the Bill when she was answering the amendments. However, I was not to know that she was going to do that. I want to make a very brief speech and congratulate all those who have campaigned for this measure on their success. However, in doing that, I ask them to bear in mind that although this may be a day of unqualified rejoicing for them, many in our country, who by no stretch of the imagination could be called either homophobic or bigoted, are unhappy about this Bill. They are unhappy about it because it changes the structure of society by changing the definition of marriage.
I hope that all those who enter into marriage under its new definition will, indeed, live happily every after, but the sincerity of that wish in no sense prevents my saying to them, “I understand that you feel euphoric today but please have a thought for those who have different views and for the many, not just thousands but millions of people in this country, for whom marriage will always be equated with what remains in this Bill the Christian definition of marriage”. I hope that in recognising that, they will also remember the great Churchillian motto: magnanimity in victory.
Those who support the Bill have won; there is no doubt about that. It would be churlish and ridiculous to pretend otherwise and I, for one, would never do so. I hope that the divisions in our society which I fear will not come to pass. For my part, I will do my best, in whatever way I can, to ensure that they do not. However, if we are to have a society that is not embittered, and bitterness is the most corrosive of all emotions, it is important that both sides of this argument recognise the validity of the other side. The noble Lord, Lord Alli, for whom I have developed a very real regard during these debates, is, indeed, a doughty campaigner and has every right to feel pleased with the result of his campaign. However, I say to him, and through him, “Please remember the millions of decent people for whom this is not a day of rejoicing”.
Lord Framlingham
My Lords, I, too, wanted to make a brief contribution, having sat through all the remaining stages and the Motion that the Bill do now pass. I am one who does not think that it should.
Today has the potential to be deeply sad for this House and for millions of people—children, parents, families, teachers, clergymen—indeed, anyone who believes in the traditional family unit and its fundamental role in the life and cohesion of our country. If this Bill in its present form becomes law, a large number of people with understandable aspirations will be given new freedoms and be made very happy. But surely it must be right and only fair that your Lordships’ House should give some consideration to a much larger number of people, running into millions, whose lives will be less happy and whose concerns and problems will be increased by this legislation.
Have we got the balance right? I think not, particularly as the opportunity to adjust the balance was spurned by the Government’s complete rejection of any meaningful amendments. Happiness won at the expense of other people’s happiness is rarely trouble-free in the long term.
The questions that many are asking are: why now and why the haste? The simple truth is that the coalition Government have colluded with equal love campaigners and the European Court of Human Rights in bringing a case—an appeal—against our country’s long-established and settled position on marriage. There was a suggestion—some would call it a threat—that if legislation were not brought forward by June this year then changes would be forced on us. The House of Lords Library tells me that as legislation is proceeding the case in the European Court of Human Rights will probably not now be pursued. What outrageous, behind-the-scenes arm twisting.
The result is that not one meaningful amendment has been accepted, not because none has been worth while but for the sake of entirely contrived deadlines, which suit campaigners in a hurry and a Government who want it off their plate well before the next general election. How cynical and how dangerous. Given the huge effect the Bill, if passed, will have on millions of people, what an abuse of the parliamentary system to put speed before truth. So many important issues causing great concern have been left unresolved and hanging in the air, such as the effect on teachers, faith schools, the issue of adultery, consummation, the effect on registrars, which has already been referred to, and the use of premises—issues touching the lives of thousands every day, not to mention the effect on marriage itself.
Those of us who have sat through all the stages of the Bill and have watched the Government knock down amendment after amendment have despaired at their intransigence. This House prides itself on being a revising Chamber. On this Bill it has been a bulldozer. We are being used to bulldoze through an ill thought through Bill, the ramifications of which the people have not begun to understand. All great issues are essentially very simple. We make them complicated when we do not want to face them or when we are anxious to hide their true meaning and purpose. This Bill is built entirely on pretence. It pretends that there is no difference between a man and a woman. From this deceit have sprung all the problems we have been wrestling with—problems we have failed to resolve and which will bedevil generations to come. How can we possibly give our blessing to legislation built on pretence?
To those noble Lords who simply voted for this Bill at Second Reading for constitutional reasons, to those who have come to understand during our scrutiny its far-reaching measures, to those who are dismayed at the lack of concern for the worries of millions of people by the rejection of all the amendments, to those who believe that rushed, ill-thought-through legislation is dangerous, and to those noble Lords who prefer scrutiny to bulldozing—I realise that I am asking too much at this late stage—I was going to plead with your Lordships to vote against this Third Reading to defend this House’s integrity and to grant adequate time for Parliament and the people fully to understand what is going on and, I believe, to receive the thanks of millions of people.
Lord Fowler
My Lords, in some humility, I say that I disagree with both my fellow Conservatives who have just spoken, and in particular with the last speech. I do that in the context of paying tribute to the very high standard of the debate that has taken place. I pay tribute to the noble Lord, Lord Dear, and his colleagues for the way it has been conducted.
It is never ever been our case—those of us who want reform—that opposition is homophobic. That is not remotely the case that we have been putting. There is a central division between us. When opponents of the Government’s legislation have said, “Remember what people outside are saying”, that goes two ways. We might remember also what many tens of thousands of gay and lesbian people outside are saying. It is important to them, as the noble Lord, Lord Alli, so movingly said, in personal terms. I am struck and touched by the numbers of people who have been in touch with me to say what an important decision this is. It is, of course, after years and years of discrimination. That is what makes their support so moving.
The second point is that it is important in another way. During the passage of the Bill, I have been, as it happens, to a range of countries where discrimination against gay and lesbian people is not only an underlying feeling, but it is set out either in legislation or in official attitudes of those countries. I think in particular of a country I am recently back from—Russia. I think of Ukraine and Uganda. Personally, I hope that the message of this House of Lords is that there is a better way of doing these things than the way that those countries are doing them. It is a plea for equality and for non-discrimination. That is the hope and the message that I hope goes out from this House. I believe that, very shortly, the Government will have done a great thing here and I congratulate them on it.
Lord Dear
My Lords, I start my brief but sincere comments by thanking very much the Minister for the compliments she just paid me. I am grateful to her. I also thank all of those who have spoken on all sides of the House in the numerous debates that have taken place about the Bill, and especially those who supported me in the passage of the Bill through your Lordships’ House. All of us from my side were more than a little surprised at the level of support that the Bill has attracted within the House. If one looks at the opinion polls taken outside among the general public, it runs at about 57% in favour of the Bill. The votes in your Lordships’ House ran 20% or so ahead of that. I make no comment about that except that it surprises, and others will take considerable pleasure from that.
All I say, very sincerely, is that despite the serious doubts that some parts of our society harbour about the wisdom of the Bill, I—and I am sure I can speak on behalf of my supporters—fully recognise the parliamentary process and willingly accede to it. We all hope very sincerely that if passed by the House of Commons, the Bill will prove to be a success.
Baroness Farrington of Ribbleton
Earlier today in your Lordships’ House, there was a reference to grandchildren being able to teach those of us who are grandparents about information technology. I have also found through listening to children out in the country that, unlike some of us from our generation, we are not actually changing what is happening in the country, we are recognising it. As a 12 year-old said to me, “What is the problem with that? Two people love each other”. Our grandchildren’s generation, and many of our children’s generation, live in what the Japanese call the house of tomorrow. I thank all my colleagues around the House who have been involved in steering the Bill through, but in particular the Minister, who, if she does not get George Clooney, perhaps could be on her way to sainthood because of the patience she has shown during the passage of the Bill.
My only worry comes from my experience in the education service, where stories appear which say that a school is going to ban Christmas or going to do this or that. I am proud of this House for the trust it is putting in trustees, governors, local vicars, parents, communities and teachers through the passage of the Bill and make a plea to all concerned for when the stories start appearing, as they will. Fortunately, in August, which is known as the funny month, most schools are not sitting—with the exception, I believe, of those in Scotland—so the press stories will not start just yet. However, my plea to anybody who reads a critical story connected with the passage of the Bill, such as one saying, “We told you so” or that it is not working, is to remember the story of the local vicar in Lancashire who was castigated in the press for saying that you could not put “gran” on a monument in the churchyard because it was not serious enough. That turned out not to be true and the poor man spent the rest of his clergyman’s life being castigated for something he had never done. When the stories start, as they will, please wait to hear the outcome of the due process and whether somebody is found guilty of something by the governors through appeals and the disciplinary procedure. Do not get caught out by the knee-jerk reaction that the media will try to create in certain circumstances. Let us make certain that this Bill is a success and that this House has done a good thing. Yes, there are people who do not want change—there are always people, of course, who do not want change—but we have recognised change and we should be proud of it.
Baroness Barker
My Lords, the passage of the Bill has been a remarkable thing. Having sat through every bit of it, I have to say that the discussions in your Lordships’ House have been not just of the highest calibre but deeply thoughtful about the nature of the society that we wish to pass on to future generations; none more so than the contributions from the Bishops’ Benches. The Bill represents a real sea change for gay people and for our society—a good one that heralds the start of a new relationship between minority groups and faith groups. All those groups have an important part to play in building strong communities for the future and that is why we on these Benches have supported this Bill at every stage.
We have been helped enormously by the Front Bench team in dealing with some quite difficult, tricky and intricate issues. I say to the noble Lord, Lord Cormack, that, no, there is no room for triumphalism. However, he will perhaps allow some of us today to celebrate what for us is a really important step towards equality and equal treatment. There is no room for intolerance but this House should be very proud.
Baroness Thornton
My Lords, the custom at this stage of the Bill is for all of us to look at each other and congratulate ourselves on the piece of legislation that we are just about to sign off. Of course, I realise that not all noble Lords feel the same sense of satisfaction at a job well done that the Minister, other noble Lords who have supported the Bill and I feel at this moment. I regret that they are not sharing the sense of joy and happiness that some of us are experiencing. Certainly, if the London Gay Men’s Chorus’s tuneful offerings outside the House are anything to go by, very many others feel the same. Some of us, indeed, could not resist wearing pink carnations. However, I note that even the noble Lord, Lord Cormack, is somewhat resplendent in pink himself.
To noble Lords who opposed the Bill I say that you have tested the Bill to within an inch of its life, and for that I congratulate you. No one expected that getting the Bill through your Lordships’ House would be a walk in the park, and I think that noble Lords have done their job as they see it with dedication and commitment.
There were moments at midnight when we were again discussing adultery when I thought we were never going to reach this point. Those moments were made all the more memorable by the description by the noble Baroness, Lady Stowell of Beeston, of what is adultery and what is not. I refer noble Lords to col. 146, 8 July 2013, if they are in any doubt. I wish her well with George Clooney, and I myself do not think that he is anything like worthy of the noble Baroness.
I very sincerely hope that time will change the views of noble Lords who are still concerned about the Bill. I hope that the happiness the Bill will bring to thousands of same-sex couples will persuade everyone that, after all, Parliament was right in its huge majorities on free votes, which led us to where we are today. I hope that your own marriages will indeed come through this change unscathed and as whole as ever, and that marriage itself will actually be strengthened and deepened by the Bill.
We must recognise that when the Prime Minister, to whom I pay tribute for his steadfast support, my right honourable friend the leader of the Opposition, Ed Miliband, and the leader of the Liberal Democrats all speak in unity, then the issue has powerful friends. However, even with those powerful friends, free votes ran through the Bill on all the major votes, and were won all the way through with huge majorities.
I pay tribute to the Minister, the noble Baroness, Lady Stowell of Beeston, for the way in which she steered the Bill through the House. Patient, energetic and always ready to listen, she never lost her sense of humour or proportion. Ditto her helpmates, the noble and learned Lord, Lord Wallace, and the noble Baroness, Lady Northover. Indeed, we worked together on this Bill, and I am glad of it. The Bill team were always helpful and friendly, and are to be congratulated on their very hard work. I know that the demands that were made on humanism, pensions and a host of other issues meant that they and the Ministers had to go back and persuade their colleagues in government that they needed to revisit or revise matters they thought already settled. I know how hard that is.
Across the House there has been remarkable work by groups of Back-Bench Peers, co-operating to win the free votes on the Bill. My noble friend Lord Alli has been remarkable; not only did all of us on the Labour side receive bulletins and information about what was going to happen and when votes were taking place, but he also organised some light entertainment for Labour colleagues. On Monday the actor Richard Wilson and last Wednesday evening Paul O’Grady, aka Lily Savage, joined us in Committee Room G. I thank them for their support and generosity. My noble friend Lord Alli has talked to everyone all the time, which I think helped the good humour and tolerance which characterised the debates even when we fiercely disagreed.
There are other Members one should thank. The noble Lord, Lord Harrison, and the noble Baroness, Lady Massey, fought the corner for humanist weddings. The noble Lady, Baroness Meacher, and the noble Lord, Lord Lester, helped to find a way through on humanist weddings. My noble friend Lady Gould explained with great clarity the issues faced by transsexual people, matters not yet resolved and to which we may return some time in the future, but not on this Bill. Many of my colleagues have been here all the way through. I thank you all.
I personally have been blessed with support and equal sharing, as it should be, by my noble friend Lady Royall, who fitted the Bill in with her many other duties. I thank her. My noble friend Lord Tunnicliffe sat next to me all through the Bill, and kept us to time and calm while under duress. I also thank the back room: Bethany Gardiner-Smith from the Opposition Whips’ Office, whose research, political management and inspired amendment-drafting made many things possible.
Baroness Stowell of Beeston
My Lords, I am very grateful to the noble Baroness, Lady Thornton, for ensuring that everybody got a fair mention in tributes. Having spoken at some length at the end of the previous debate, I shall keep my remarks brief. I am sorry if my remarks then seemed to pre-empt a debate on Bill do now pass, but I was not sure whether there would be a debate on that and felt that there were some important things that I wanted to get on record, which is why I took the opportunity when I did.
I said at Second Reading, and have done so a couple of times since, that we all move at different paces when faced with change. I most certainly respect anyone who has a different view about whether couples of the same sex should be able to marry, and I would never seek to criticise anyone who disagrees with me on this point. I have been pleased to say repeatedly that the belief that marriage should be between only a man and a woman is legitimate; people are free to express that view; and the protections in the Bill ensure that religious freedoms cannot be called into question. That is so important. I am grateful to my noble friends for making the points that they did and for giving me the opportunity to restate that, because I cannot say it too often.
The amendments on which the House divided during the time that the Bill was in this House were not agreed, but I do not agree with my noble friends that no meaningful amendments have been made to the Bill while it has been here. I spoke at some length in responding to the previous debate about the changes that we have made, so I shall not go through them all again in detail. However, as I said, 23 substantial amendments have been made to the Bill—that does not include any consequential amendments. Seventeen of them have been made while the Bill has been in your Lordships’ House. Even though amendments brought by other Peers have not been accepted by this House, the Government have brought forward amendments to the Public Order Act to ensure the protection of freedom of speech. As I have said previously, we have clarified issues around the word “compel”, because we thought that it was possible to do that without introducing any other uncertainty in the Bill or diluting its principle. I am pleased that we were able to do that, and that it was received and accepted so graciously by those who sought those changes.
It is so important to say how much I respect all noble Lords and their views on this Bill. I believe that we have brought forward a Bill that is a force for good and that the change it brings about is right and reflects the change in society. However, there is no question whatever that anybody who disagrees with it should in any way feel that their views have not been properly taken into account during our debates. I said before that I wanted to see that it was possible to put something into law that not everyone agrees with, while respecting our differences of view. I think that this is what we have achieved. On that note, there is probably little more to say, except how grateful I am to all noble Lords for their contribution to the passage of this Bill.
Local Audit and Accountability Bill [HL]
(11 years, 5 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
17:00 - Division on Amendment 2 - Ayes: 170 / Noes: 205 - Amendment 2 disagreed.
Lord McKenzie of Luton
Lord McKenzie of Luton
My Lords, in moving the amendment, I will speak to the other amendments in this group as well. As noble Lords will doubtless recognise, Amendment 1 is a paving amendment and the substance is in Amendments 6 and 9. Amendment 9 is consequential on Amendment 6.
The proposition is straightforward, and we had understood there was consensus. Notwithstanding this, we have not seen a government amendment to give it effect. The amendments provide a route to securing a central procurement of auditors in the future. As we discussed on the first day in Committee, by the time the key provisions of this Bill come into force, it is expected that all the audit contracts with principal local bodies will be undertaken by private sector firms, under arrangements entered into with the Audit Commission. This will comprise some 800 principal authorities, including local authorities, NHS and police bodies, and so on.
The contracts—I think that there are 10 of them—run to March 2017, but can be extended for three years. When these contracts have run their course, the authorities will make their separate appointments, although there is flexibility for authorities to jointly procure, together with other bodies. It is generally accepted that the central procurement exercise undertaken by the Audit Commission has generated substantial savings for local bodies—some 40% reduction in fees—and had some, albeit limited, impact on broadening the diversification of provision in the audit market.
The Government’s own impact assessment has recognised that individual audit procurement is unlikely to match central procurement in generating reduced fee levels. Research shows that market concentration in audit services leads to higher audit fees, and while there is a credible argument that individual procurement will act against market concentration, major providers in the market are large, economically powerful entities with resources to invest in tackling the new opportunities.
One risk is that the larger authorities will fare well in this, because they will be more attractive clients to the big firms. In practice, smaller authorities will end up with less choice, being the junior partners in joint appointments and perhaps missing out on the services of the larger firms or being unable to afford them. The Government will doubtless remind us that authorities can group together. They can, but there is no clear framework to support this. Indeed, there is no explanation, for example, of what happens if there is joint provision when a conflict develops between one of the authorities and the firm involved.
The amendments, particularly Amendment 9, which is at the core of it, adopts the approach already included in the Bill for potential central procurement for smaller authorities. It enables regulations to specify a person to appoint auditors with relevant powers relating to fees, et cetera. It especially encompasses the prospect of authorities being able to opt either in or out of the arrangements, which we know is a key requirement of the Minister. The Minister has expressed an appetite for facilitating ongoing central procurement, provided that it is not mandatory, and a hope to be able to return on Report with some ideas. Perhaps we can now hear what they are. We know that the Minister and officials have been having discussions with the LGA, but we do not necessarily think that arrangements run by it are the only, or, indeed, the best approach. If we are to preserve central procurement, we need the legislative basis to do that. That is what the amendments provide. I beg to move.
Lord Palmer of Childs Hill
My Lords, in Committee, my noble friend said that the Government would commit to amend the legislation to create a framework to support a voluntary national procurement exercise. When she replies, I would appreciate it if she could put some meat on that earlier commitment.
Dealing with the point made by the noble Lord, Lord McKenzie, if one was always looking in terms of cost savings, which seemed to be the main thrust of his speech, we would have almost the demise of all local authorities. It would be a case of, “Let us have it all done nationally and then we would save some money”. We as a Government are committed to localisation. The idea that local authorities should be to a degree able to choose their auditor is part of that localisation. There was a feeling of despair in the noble Lord’s comment about how local authorities would be less hard negotiators than the Audit Commission. I doubt whether that will be the case. Many local authorities would be very hard negotiators on their own behalf in fixing the audit fees, the level of audit taking place and how it will dovetail with the internal audit systems of the local authority. A local authority that has a good local internal audit system can probably negotiate much harder with the external auditors, because of its knowledge of its internal audit system, than the Audit Commission has in the past.
I believe that the amendments are unnecessary, and I would welcome and wait for my noble friend’s comments on how the Government will keep the commitment that she made at an earlier stage of the Bill.
The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Hanham)
My Lords, I thank the noble Lord, Lord McKenzie, for introducing the amendments so succinctly and clearly and my noble friend Lord Palmer for reminding me—although I am not sure that I made a total commitment—that I said that we would return to the matter.
Both noble Lords have laid out the situation very clearly. The proposal in the Bill is that local authorities should be able to purchase or contract for their own auditor. They can do that individually, in conjunction with another authority or in a group. That is about as wide as the Bill takes it. The noble Lord and the Local Government Association have made strong recommendations that we should consider further the current situation, which is that the Audit Commission has purchased the contract for all local authorities. We have made it clear that there must be optional arrangements about this. Local authorities must be able to get their local auditors in the way that they wish. However we accept—and did accept—that there was potential for wider procurement, with a procurement body such as the Audit Commission, which did not require local authorities to purchase from it, but could be used by local authorities if they wished. So we accept that there is potential for such arrangements.
I have asked departmental officials to work with the Local Government Association to clarify what arrangements it envisages might need to be made and to get the detail right for any amendments that we would propose elsewhere. The Government intend to make an amendment to the Bill in the Commons, which will allow arrangements for optional centralised procurement to be made in regulations. I am happy to keep noble Lords who are interested in this informed.
Lord McKenzie of Luton
My Lords, I thank the Minister for her reply and the noble Lord, Lord Palmer, for his contribution to this short debate. I say to the noble Lord that I do not advance the proposition that all local authorities will not be hard negotiators. My point was that there could be a differentiation between the smaller authorities and the larger authorities. I am sure that the larger authorities will be well capable of looking after themselves—they prove that on a daily basis.
Localism and audit appointments within a regulatory framework are more complex issues than localism generally in the context of provision of services. Cost savings is one feature, but it seems to me, particularly in the current climate, that it is a very important feature of what we should be helping local authorities to achieve.
The Minister has in a sense reiterated what she said before. I do not honestly believe that that takes us any further forward. We have accepted that there should be a permissive, not a mandatory, regime. If that is where the Government are, I am not sure what is in this that cannot be accepted because it provides a route to set up exactly that sort of regime.
The Minister said that there was an intention to bring forward an amendment in the Commons. With respect, however, in the next breath—as I understood it—she said that that was not certain. I do not know whether the noble Baroness might be able to clarify that point for me before I conclude—it is fairly critical.
Baroness Hanham
My Lords, I want to make it clear that it is the Government’s intention to see that the proposed arrangement is fulfilled, so that there might be wider procurement than there is at present. In order to do that, I am unable to say today that it will follow exactly these provisions because discussions need to take place. The Local Government Association in its briefing, as I am sure the noble Lord will have seen, is happy that that should be the situation. It is content to have those discussions and to see that an appropriate amendment is put forward in the Commons.
As a politician, one should never hedge. What I am told is that there will be an amendment. I should never have put any doubt in the noble Lord’s mind about that. I hope that will help to clarify the situation and prevent the noble Lord feeling that he has to press this amendment, when I suggest that it is completely unnecessary.
Lord McKenzie of Luton
My Lords, again, I thank the Minister for that. Indeed, I was tempted to press this amendment but I take her assurance that an amendment will be brought forward in the Commons that will enable central procurement, but not on a mandatory basis. If that is the proposition we can take from this discussion, that is as far as I can take this amendment today and accordingly I beg leave to withdraw.
Lord McKenzie of Luton
“(6) Before the commencement of this section, the Secretary of State must be satisfied that effective successor arrangements are in place or achievable for—
(a) the management of existing audit contracts entered into with the Audit Commission;(b) the maintenance and updating of Value for Money profiles; and(c) certification functions currently undertaken by the Audit Commission.”
Lord McKenzie of Luton
My Lords, I will speak also to Amendment 3. The more we delve into this Bill, the clearer it becomes that the decision to close the Audit Commission was taken without a clue as to how some of its functions were to be carried out in the future or how some of the savings that it has driven could be maintained.
We have just discussed how a central procurement function might be preserved, and we will come on to discuss how the commission’s efforts to prevent and detect maladministration and error can be carried out in the future. Amendment 2 focuses on three specific areas, which are,
“the management of existing audit contracts … the maintenance and updating of Value for Money profiles; and … certification functions currently undertaken by the Audit Commission”.
It requires that robust processes are in place for these before the Audit Commission is closed. We have discussed these before and received assurance that the Government have these matters in their sights, but we are again sadly lacking in detail as to what is proposed.
As we discussed in Committee, the management of ongoing audit contracts is not a straightforward, passive matter. It requires the availability of certain powers that are currently available to the Audit Commission; for example, in relation to fee setting. Given the public interest in local public audit, any successor arrangements will need to ensure transparency in audit quality monitoring. The FRC is to monitor major audits and it is unclear what public reporting there will be on this. All other audits can be subject to cyclical monitoring by the supervisory bodies but there is no commitment yet to any public reporting on the results of this monitoring. Perhaps the Minister will tell us now what is proposed in this regard.
In Committee, the Minister told us that,
“we are giving consideration to the transfer of current Audit Commission tasks, including the value-for-money profiles”.—[Official Report, 17/6/13; cols. GC 25-26.]
Now is the chance for the Minister to be a little more specific. The value-for-money profiles are widely used; there were some 9,000 visitors to the commission’s website in the past financial year. They bring together data about the costs, performance and activity of local councils and fire authorities. The profiles show how organisations are spending resources, what services they perform and how these cost and performance levels compare between organisations and over time. The commission is enhancing the visibility of these profiles by presenting information about how spending and activity have changed over time, how councils’ performance differs, and factors affecting variation in activity and cost. Can we be very clear on this: are these profiles to be maintained and, if so, how?
It is accepted that certification processes may diminish as grant funding streams are reformed and phased out but there will certainly be the need to deal with housing benefit funding before this is absorbed fully into universal credit. Can the Minister give us some assurance on just this one matter, if not the generality of the replaced certification regime?
We have so little hard information on these areas and the Bill is about to leave your Lordships’ House. We should remember that it is actually three years since the decision to close the commission was announced. In these circumstances, requiring these matters to have been satisfactorily dealt with before the Audit Commission is closed seems the very least that we can do.
The same applies to being satisfied as to how the new audit regime is to be co-ordinated across government and how accounting officers will be entitled to obtain assurances on the effectiveness of financial management arrangements. There will be no organisation to publish the outputs from the audits of over £200 billion of public money. Accounting officers will need to continue to have access to analyse the outcomes of local work, and individual government departments will need arrangements to receive the outcome of audits. We are entitled to be assured that this is all in place before the commission disappears.
That is all that this amendment seeks to achieve, but it is very important. I beg to move.
Lord Palmer of Childs Hill
My Lords, the purpose of Amendments 2 and 6 is clearly to try to improve the transitional arrangements. It seems to be felt that we need a certain overprotection for transitional arrangements, but when private corporate bodies change their auditors and way of management, some transitional arrangement always has to take place. It works in a natural way, without the Secretary of State being involved in every item.
Amendment 2 inserts three paragraphs. The first deals with,
“the management of existing audit contracts entered into with the Audit Commission”.
One of the main purposes of the Bill is to make the audits of the various local authorities much more the responsibility of the local authority. Its appointment of the auditor and dealings with the auditor, and the auditor’s dealings with the authority, will become a more localised matter. However, because there are a limited number of audit firms, there will be a consistency in the types of audit operated.
The main point that the noble Lord spoke about was,
“the maintenance and updating of Value for Money profiles”.
Value for money in the external audits of local authorities has been a very important and costly factor in terms of the time that the Audit Commission and private firms of auditors have spent on those activities and how much they have charged for them. Two or three years ago, the value-for-money audits carried out by external auditors were more limited. There was no large-scale review of the use of reserves, assets and finance. Under the current arrangements, external auditors do not have to carry out a prescribed list of value-for-money exercises.
Currently, before the Bill, that situation is very much localised. There is a virtue in that localisation. Different firms of auditors will possibly take a different view on what is needed within that particular local authority, and that view will have an effect on the fees charged to that authority and on how much work needs to be done. As the years progress, it will be interesting to see how different local authorities have their value-for-money details published. We hope that all local authorities will publish these, and there may need to be some national gathering of that information for comparison purposes. However, that does not necessarily need to be in the Bill. Although I understand where the noble Lord is coming from on this, I think that it amounts to a little too much control which is not needed.
Baroness Hanham
My Lords, I thank my noble friend Lord Palmer for bringing some rationality into this particular aspect. I support him very much in reminding the House that this is an intention to bring to a local level the management of an extremely important part of local government’s responsibilities, which is to have proper audited accounts, but to do it in a slightly different way from what has been done in the past, without the overall management of the Audit Commission but having to take into account the fact that these have to be properly done, whether they are done on the optional basis that we are talking about—having the wider procurement—or because they have taken account of having these on their own requirements.
Lord Christopher
My Lords, before the noble Baroness sits down, will she kindly explain a point on which I am very unclear? Some time before 2017, someone will have to decide whether the existing contracts are to be extended or not. My view is that they should be extended because they are cost-effective. Who will handle that, and who will deal with the situation that would arise if perhaps a small number of local authorities covered by a particular contract do not wish to renew while the remainder do?
Baroness Hanham
My Lords, the current contracts are due to last until 2017, and there will then be an interim arrangement between 2015 and 2017, as I have described. After 2017, unless for some reason it is decided universally to extend the contracts again en bloc—which is completely outside what we are talking about today, and it is probably unlikely—it is for the local authorities to make their own decisions about the contracts: where they want them to be, and with whom. Following 2017, within that interim period between 2015 and 2017, local authorities will have to decide what they will do and how to manage it.
Lord McKenzie of Luton
Again, I am grateful to the Minister for her response and to the noble Lord, Lord Palmer, for his challenges. I will start with the noble Lord. I sought to focus on the contracts that are in existence, not the subsequent regime, in which local authorities may or may not appoint their own auditors. However, there is a bundle of contracts, to which my noble friend Lord Christopher referred, which are ongoing at the moment but which will need management. That management is more than just a passive affair, so it needs to be put in place.
I thought that the arrangement about extension was that it would ultimately be a decision for the DCLG about its 10 bundles of different contracts—you do not necessarily have to make the same decision in respect of each of them. I say to the noble Lord, Lord Palmer, that I did not say that there should be some standardised approach to value-for-money issues. I sought to ensure that there was security of the value-for-money profiles that the Audit Commission currently produces—data that are available to all authorities and others as well—so that authorities are able to make their own judgments and undertake their own exercises, whatever they may be. After the Minister’s response, this is the area I feel less confident about. We do not know from the reply whether they will be maintained, even broadly, in their current form, or whether they will be available as a valuable tool for local authorities and health bodies in the future.
It was not my intent to get the Secretary of State involved in all things. The purpose of the amendment is to require the Secretary of State to be assured that these matters are in place—not that the Secretary of State is operating them—by the time the Audit Commission closes. Once the Audit Commission goes, that will be a very clear break with the current situation. So far as the role of the FRC and supervisory bodies is concerned, I understand their role in that, but the key issue is on how transparent the result of their work will be. We do not yet have clarity on what will be the consequences of their auditing of audit work and what will happen to that. That was part of what I was inquiring about.
Perhaps the noble Baroness can first deal with that point about transparency of the FRC’s supervisory activities or the supervisory bodies: what is likely to be in the public domain as a consequence of their work? It would be helpful if we could have an answer on that. I should also like some clarity on the value-for-money profiles. Is it intended that the data will still be collected, maintained and available to relevant bodies—whether in precisely the same form as now, or not? Is it intended that these profiles be available in the future, once the Audit Commission has closed? This is an important issue, so could the Minister give some further clarity on it?
Baroness Hanham
My Lords, I may need to write to the noble Lord on the detail of this. However, our understanding is that clarity and transparency will remain as they are at present, so that the Financial Reporting Council will have much the same monitoring role. Anything that it does in relation to councils and local audit will have to be as transparent as is necessary. I would prefer to write to the noble Lord, particularly on this issue, and to make sure that the information is put into the Library of the House.
Lord McKenzie of Luton
I am grateful to the Minister for that but perhaps it is time we stretched our legs. I beg leave to test the opinion of the House.
Lord McKenzie of Luton
“(7) Before promulgating a statutory instrument containing regulations or an order which would fall within section 40(7), the Secretary of State shall publish and consult with relevant persons on a draft thereof.”
Lord McKenzie of Luton
My Lords, this is a rerun of the amendment we moved in Committee concerning hybridity. It was prompted by the report of the Delegated Powers and Regulatory Reform Committee which drew attention to Clause 47 of the Bill relating to regulations under Clause 2. Clause 2 enables the Secretary of State, by affirmative resolution, to include someone as a relevant authority and to make provisions about how the Bill affects them. This is the case even though the regulations might be a hybrid instrument, although Clause 47 requires it to be treated as not being a hybrid instrument. The Delegated Powers and Regulatory Reform Committee made it clear that if the hybrid instrument procedure is not to afford protection in cases of hybridity, there should be another form of protection—hence our amendment concerning publication and consultation.
In Committee, the Minister told us that instances of hybridity will be rare. Indeed, I do not think that we have yet had an example of one. There was, however, acknowledgment that, where they arose, there would be an especially compelling reason for the Government to consult. In response to the Delegated Powers and Regulatory Reform Committee, the Minister reiterated the Government’s acceptance of the need to consult and promised an announcement on Report. We look forward to that announcement and, specifically, to hearing why the commitment should not be carried in the Bill. I beg to move.
Lord Palmer of Childs Hill
My Lords, from these Benches we also look forward to the Minister giving that information. Although there is worth in the amendment, I wonder whether it needs to be in the Bill rather than being done by regulation at some stage in the future.
Baroness Hanham
My Lords, as the noble Lord said, I was sympathetic about his amendment in Committee. It would ensure that if the Government were to bring forward what might amount to a hybrid instrument under the powers in Clause 2, the bodies affected would be consulted before regulations were laid. This, indeed, would need to be through regulations. We do not expect that the need to bring forward regulations would be anything less than rare.
As I said in Committee, we recognise that in these cases there would be especially compelling reasons for the Government to consult. In our previous discussion I referred the noble Lord to our forthcoming response to the DPRRC’s report. We have accepted the committee’s point and informed it that we would announce our commitment, which I am doing, and consult affected bodies at Report. We confirmed that this will not entail the need for any amendment to the Bill. I am happy to give that commitment today, and to consult relevant persons on a draft of any statutory instrument containing regulations or an order falling under Clause 40(7) of the Bill. Any such regulation would be subject to the affirmative process, so Parliament would have the opportunity to scrutinise it. In the light of that commitment, I hope that the noble Lord will feel that we have satisfied his requirements.
Lord McKenzie of Luton
I am grateful to the Minister for that commitment which is very clear. I would still prefer to see it in the Bill, but I will not press that point. The answer is clear and I beg leave to withdraw the amendment.
Lord McKenzie of Luton
Lord McKenzie of Luton
This is a return, briefly I expect, to a drafting point. Under Clause 4 there is a requirement that,
“a relevant authority … must be audited … in accordance with this Act and … by an auditor appointed by that authority in accordance with this Act”.
The second requirement cannot be met before 2017 at the earliest when the appointments made by the Audit Commission come to an end. It could be three years later if any of these contracts are extended.
The concern is how the general requirements for audit provided for in the Bill can operate before local appointments are operative. I believe that we see eye to eye with the Government on the issue. The Minister’s letter of 25 June states:
“Officials believe that when the provisions are commenced, we will be able to commence different provisions for different purposes and as a result, we will be able to avoid any of the unintended consequences you highlight”.
I accept that there is flexibility on commencement of provisions but remain unclear as to how this would operate in the circumstances highlighted. Is it being contended, for example, that Clause 4(1)(a) could be commenced before Clause 4(1)(b)? It would be good to have some clarity on this issue before the Bill leaves your Lordships’ House. I beg to move.
Lord Palmer of Childs Hill
My Lords, I would also welcome the Minister clarifying some issues, particularly if there is, indeed, a problem of a practical nature. At present, most local authorities are audited by a professional firm. A fairly small proportion is audited by the commission. Those audited by professional firms will be audited under the continuing contracts until 2017. The local authority will then have the ability to appoint a new auditor. This is what happens in the commercial world. One has an auditor, the auditor audits for a period—generally for the year, in this case for slightly longer—and then there is a new appointment. This is quite the natural way of things. I am not sure—and I hope that the Minister and the noble Lord, Lord McKenzie, will clarify this—why we need to have this because, in a practical sense of the word, auditors are there for a period, they finish their term of office and then they, or another auditor, are appointed. That is the natural way of things whatever we decide or do not decide in your Lordships’ House.
Baroness Hanham
My Lords, first, I confirm that it is possible to introduce different parts of the Bill at different stages, and the order in the Bill can be switched around. I think the noble Lord asked whether Clause 4(2) could be introduced before Clause 4(1) and the answer is that it could—it is a case of whatever is convenient. The Bill introduces powers to commence different parts of the Bill at different times and to make savings on provisions relating to the Audit Commission Act 1998. Therefore, we would expect to commence this reference in line with the introduction of the local appointment, which I think we were discussing when the noble Lord, Lord Christopher, was here.
If the noble Lord wants to know our wider intention of how to manage the overall transition to the new audit framework, it may be helpful if I say a bit more about that. Our intent remains, as I said, to close the commission in spring 2015. The existing audit contracts will continue to run until 2017, but management of those will transfer to an interim body. We have discussed these over the three previous amendments. As the contracts will run until 2017, authorities will not need to make their own appointments until that stage, but they will have to have made those appointments so that there is a smooth transition between the contracts currently managed by the Audit Commission and whoever manages them subsequently, into the local authority’s own regime. We therefore expect that much of Part 3 of the Bill, which deals with local appointment, will not be commenced until closer to 2016, which then gives them a year to do that. It will be 2016 when procurement of auditors for 2017 is likely to begin.
The current intention is that the new eligibility and regulatory framework and provisions on the conduct of audit will come into effect immediately following the closure of the commission in 2015. It is our intention to make arrangements to enable us to do this under the powers in the Bill, subject to analysis of the transitional arrangements—again as we have discussed, there have to be transitional arrangements—that may arise.
Lord McKenzie of Luton
I missed the Minister’s first point. Would she mind repeating the beginning of that sentence?
Baroness Hanham
It is our intention to make arrangements to enable us to do this under the powers in the Bill. Our current intention is that the new eligibility and regulatory framework and provisions on the conduct of audit will come into effect immediately following the closure of the commission in 2015. The provisions will then relate to whatever interim arrangements for the body are in place. I hope that that is sufficient clarification for the noble Lord to withdraw his amendment.
Lord McKenzie of Luton
I thank the Minister for her reply and the noble Lord, Lord Palmer, for his contribution. I say to the noble Lord, Lord Palmer, that my point was not about auditors and succession of auditors but on quite a narrow drafting point. One of the requirements in Clause 4 is that the audit must be undertaken,
“in accordance with this Act … by an auditor appointed by that authority”.
Obviously, until 2017, the auditors will have been appointed by the Audit Commission, and the question is how the system works under those circumstances. I accept the broad point that matters can be introduced at different stages but I am still a little mystified as to how the new framework is to operate from 2015, so long as Clause 4(1)(b) is there—unless that is simply excluded from what is introduced in 2015. Perhaps I should read the record and we might have a further discussion on this in due course if necessary.
Lord Palmer of Childs Hill
Before the noble Lord, Lord McKenzie, sits down, I will just comment on the point about the appointment of the auditor by the Audit Commission. In practical terms, the Audit Commission currently suggests who the auditor should be—for example PricewaterhouseCoopers, or Grant Thornton, which has a large number of these audits. The local authority is the one that appoints the auditor, under its own constitution, although it accepts in practice the auditor that has been put forward by the Audit Commission—whether it is the Audit Commission itself or a professional firm. I would have to go back to the constitution but, as I understand it, the local authority has a constitutional duty to appoint an auditor, which it currently does on “the instructions” of the Audit Commission. However, the appointment cannot be foisted on a local authority, because it is a legal body in itself.
Lord McKenzie of Luton
My Lords, the noble Lord makes an interesting point but my understanding is that the contracts for the audits are with the Audit Commission not with the local authority. If the noble Lord is right, that in fact unlocks this particular conundrum: although it is not a contract organised by the Audit Commission, if it is nevertheless an appointment by the authority, then I think the problem goes away. With respect to the noble Lord, I do not think that is the position but we might just follow up on that. Having said all that, I beg leave to withdraw the amendment.
The Deputy Speaker (Lord Geddes)
My Lords, before calling Amendment 6, I should point out that there is a mistake on the Marshalled List. It should read: “Page 5, line 28”.
Baroness Hanham
Baroness Hanham
My Lords, in moving Amendment 7, I will also speak to Amendment 8, which between them make small changes to Clause 7. These amendments enable two or more auditors to be appointed to exercise jointly one or more functions and enable a different auditor to be appointed to act separately to undertake one or more functions. The noble Lord, Lord McKenzie, first raised this issue by tabling two amendments in Grand Committee, which would have enabled auditors appointed jointly to issue advisory notices or to seek judicial review either individually or jointly.
I said that we would consider the drafting of Clause 7 to check that it provides the desired level of flexibility for auditors to work jointly and individually. The two amendments that we are bringing forward are a result of those deliberations and give relevant authorities greater flexibility in the way in which they can appoint more than one auditor. Authorities will of course be able to appoint just one auditor. Alternatively, they will be able to appoint more than one: jointly, to exercise one or more functions; separately, to undertake different functions or different parts of the accounts; or some combination of those. We consider that it will very rarely be the case that authorities wish to appoint more than one auditor to act jointly throughout the whole audit. However, where they choose to do so, the auditors must act jointly. The clause already enabled auditors appointed separately to undertake some functions jointly if those functions overlapped, but it did not allow auditors to be appointed with the purpose of undertaking some functions jointly and others separately. I am grateful to the noble Lord for raising this matter. I hope that the amendment will enable a more flexible approach, and I beg to move.
Lord McKenzie of Luton
My Lords, obviously we are content with these amendments, and I thank the noble Baroness for taking forward this issue. We did retable our original amendment as Amendment 21, but that was simply to make sure that something was on the agenda. Clearly, I will not move it when we reach that stage.
Baroness Hanham
Lord McKenzie of Luton
“(10) Such regulations shall in particular provide that an individual shall be ineligible to act as a member of an audit panel if that individual has any disqualifying interest.”
Lord McKenzie of Luton
My Lords, the purpose of the amendment is to test the scope of the term “independence”, although it is written in terms of an audit committee rather than an audit panel. I regret not having been able to attend the meeting which the noble Baroness, Lady Hanham, kindly organised to consider these issues, but I am grateful for the note which was provided.
We have reflected on the proposition that all principal authorities must have an audit committee whose functions include those required of an audit panel, and we see some merit in the Government’s argument that this could be too restrictive. We consider that all principal authorities should have an audit committee to undertake the range of functions with which we are familiar. Given that the appointment of auditors is a new function, the audit committee would be a natural place to provide the appropriate scrutiny and oversight of the relationship with the external auditor.
However, given the importance to that scrutiny and oversight role of the independence requirements, we think these should be paramount. These independence requirements are not mirrored in audit committee arrangements, and the CIPFA guidance is more focused on the separation of engagements of executive and scrutiny members. That guidance does not require a minimum number of independent, non-councillor members. So if we insist on audit committees to carry out the auditor panel role, and on the independence requirements to be satisfied, it seems to be the case that many local authorities would have to substantially restructure their arrangements. We encourage them to do so, but to require them to do so where audit committees are currently functioning well is perhaps against the spirit of localism.
The suggestion that the auditor panel might be a small sub-committee of an existing audit committee almost gets the best of both worlds, and may at least provide a transitional solution. However, the primary purpose of the amendment was to address the definition of independence. For this purpose, the Bill requires members of the audit panel to be independent of the authority for which the auditor is to be appointed. In the Bill independence is defined in terms of individual positions; that is, membership and relationships—so parent or grandparent. It does not cover influential business relationships, for example. The amendment is intended to open up this possibility.
It seems from the briefing note received just last week that it is intended for these other matters to be covered through a combination of regulation and guidance. This is welcome, but we should at least ask when we might see a draft of this. When will it be ready for colleagues in the Commons to consider, if not for ourselves? The Bill has spelled out in some detail the membership and personal relationships components of a definition of independence, but we have little or no information on these other components. I would be grateful to hear further from the Minister. I beg to move.
Lord Palmer of Childs Hill
My Lords, the amendment of the noble Lords, Lord McKenzie and Lord Beecham, says that an individual will be ineligible if that individual has a disqualifying interest. Yet it seems, by all the purposes of any law there is, that if you have a disqualifying interest you are by nature ineligible. I listened to the noble Lord, Lord McKenzie, and I still struggle to see why one needs to clarify and why one needs the amendment, because if one has a disqualifying interest one would be ineligible. I raised this matter at early stages of the Bill. As for who should sit on these panels, yes, the members of the local authority who are qualified may sit on the panel, and there then seems to be a great emphasis on independent members.
At this stage I declare an interest, and I probably should have done so earlier in the course of this debate. I am currently a chairman of a local authority audit committee. I do not think that this disqualifies me, and perhaps it qualifies me particularly to comment on this. One of the interesting things which I hope the Minister will address in her answer is that it is currently quite the custom in many local authorities, including my own, for a member of that local authority who is of a different political party from the ruling party to be the chair of the audit committee. That very often provides a very independent chairman or chairwoman of that committee.
I am worried that if we change that and require an independent committee chair, will that chair be as independent as an opposition chair? By the nature and appointment of audit committees, when looking for people who will be independent, particularly in the case of chairs, there is in some cases a possibility that those appointing will look among people they know who may have political sympathy with the ruling administration. The current arrangements seem to give chairs greater independence. This is probably wider than the amendment of the noble Lord, Lord McKenzie, but it seems to me to follow on from what is a disqualifying interest. I think we are giving that too much concentration, rather than the actual and real independence of the person who chairs that committee.
Baroness Hanham
My Lords, my noble friend and the noble Lord, Lord McKenzie, raised several issues, seeking clarification about the auditor panel. I start by reminding noble Lords how the auditor panels will operate, and how we are moving to keep arrangements streamlined and flexible in terms of whom the auditor panel is made up of. First, I want to confirm what I said in Committee, that we do not expect these auditor panels to be large. We expect them to be quite small, probably three or five people at the most. This does not exclude members of the audit committee being members of the panel, as long as they are independent members. If the audit committee has an independent member, that member can be a member of the audit panel. I do not think that there would be anything to exclude them being chair of the panel, if that is required. It would not actually preclude a member of the opposition being chair of that panel. We can see that that is how they will be made up.
Other than that, they can appoint a completely separate auditor panel outside the audit committee regime. There again, they will have to make sure that the members of that panel are majority-independent. Again, that would not preclude any member of the local authority being part of it, even though they might be considered to have some relationship with what is going on because, by definition, they were a member of the council. None the less, we think that there might be some virtue in having a councillor or councillors on the auditor panel to help with the selection.
Amendment 10 goes back to our discussions on wider issues; that is, the assessment of the independence of auditor panel members beyond direct personal links to the audited authority. I hope that I have explained that we need them to be really independent. Some concern was expressed last time, a concern which I do not think the noble Lord raised this time, about significant business relationships. By any definition, a significant relationship with a local authority, particularly on a contractual basis, would preclude somebody being a member of the panel.
We do not want to make much more regulation, but I think that we need to look at giving some guidance about who can and cannot be on an auditor panel. We will do this as the regulations are considered later in the year.
Baroness Eaton
Can the Minister give a bit more information about the process of selection for independence? That would deal with the point made by the noble Lord, Lord Palmer, about political affiliations sometimes not being absolutely clear. Is there likely to be a clearly defined process for how local authorities select independence? Rather than their just saying, “That is an independent person; we’ll have them”, is there going to be due process?
Baroness Hanham
My Lords, local authorities have due process already, as the noble Baroness knows, on how to appoint people, panels, independent committees and standards boards where independent members are required. I would not want to tie this down too firmly, other than to say that they must be pretty clear that nobody on the panel has a connection with any firm that may be applying to do the audit. If they have a political affiliation that should be declared so that, before the auditor panel is set up, it is known if they have a particular affiliation. Apart from, as I have suggested, there perhaps being one councillor on the panel, it is pretty clear that people should have some experience of audit so that they know what an audit looks like and what they might be expected to do.
We do not rule out independent members possibly being a member of a political party but it is essential that that is known so that there is transparency about it. We would hope that not more than one person, who would probably be the person off the council, would be that member.
It will be essential for members of auditor panels to declare any wider interests, commercial as well as political, and any other interests that they might feel had any relevance. Those would need to be taken into account in an appointments process that the committee undertook. If members of the audit committee were making the appointment they would have to make a balanced judgment on the balance of the panel, aligned with what I have already said. If it is an external appointment it will have to go through an external appointments process.
I think that it is clear that there should be, and be seen to be, independence in the auditor panel. I think that it is clear that local authorities have experience of dealing with external appointments. Although I understand the concern that the panels could be “stuffed” with political appointees, I think that there has to be transparency as to who is appointed. If it were found that it was just a political panel, it might be very open to question.
Lord McKenzie of Luton
I thank the Minister for her reply. The noble Lord, Lord Palmer, criticised the drafting of the amendment. I should explain that its purpose was simply to put down a mechanism which could be used to address wider issues of independence. We had in mind, specifically, significant business relationships. The Bill defines independence in terms of personal relationships; it should cover as well, for example, significant business relationships, which was the purpose of the amendment.
I was comforted by the briefing note that was produced following the meeting. It states:
“Through this combination of regulations and statutory guidance the Government intends to address other important aspects of independence for an auditor panel. We intend to work with interested parties and the sector to develop the detail of these, but as an example they might cover … the necessary skills and experience of panel members … specifying that certain persons are not independent where they have … significant commercial relationships with the authority or audit firm … the process through which independent members should be appointed … considerations around political balance, where the panel includes elected members … the conduct of members and, for example, how declarations of interest are managed on an ongoing basis”.
Each of those points, or at least some of them, were touched on by us in Committee. I took comfort from that. In a sense, that was the issue or the focus that my—clearly inappropriately drafted—amendment was seeking to address.
I reiterate where we are on the issue of audit committees or auditor panels. I think that, because there is in some instances a potential conflict between wanting to fulfil the independence requirements and the broader role of the audit committee, the best solution where they cannot be aligned is the sub-committee approach. I am not quite sure who at the meeting raised that, but the briefing note again confirms that the auditor panel could simply be a sub-committee of the audit committee. As long as that auditor panel fulfils the independence requirement, honour and justice are satisfied. That seems to us to be a helpful way forward which still encourages local authorities all to have audit committees and to move to greater independence relating thereto.
Baroness Hanham
Although I do not think that I mentioned sub-committees, I think that I made it clear that where there are audit committees, the membership could be drawn from the independent members of that committee, with possibly a local councillor. The implication is that audit committees are meant to be there and could form the basis of the auditor panel.
Lord McKenzie of Luton
My Lords, I am grateful for that and beg leave to withdraw the amendment.
Baroness Hanham
“( ) omit “, 23A(1)”, and”
Baroness Hanham
My Lords, Amendment 11 is necessary following a recent amendment to the Companies Act 2006 made by regulations. As I am sure noble Lords are instantly aware, paragraph 21 of Schedule 5 to the Bill modifies Section 1253(5) of the Companies Act 2006. That section specifies the conditions for delegating functions, such as the function of recognising supervisory bodies, to an existing body and refers to Schedule 10 to the Companies Act 2006, which is also applied by Schedule 5 to the Bill. On 8 July 2013, the Statutory Auditors and Third Country Auditors Regulations 2013 were laid. One effect of these regulations is to insert a reference to paragraph 23A(1) of Schedule 10 in Section 1253(5) of the 2006 Act. Paragraph 23A of Schedule 10 to the Companies Act is expressly omitted by paragraph 27(2)(f) of Schedule 5 to the Bill. This is because paragraph 23A of Schedule 10 concerns arrangements for independent monitoring of third country audits, which are outside the scope of this Bill.
Therefore, for consistency with the other modifications to Section 1253 in paragraph 21 of Schedule 5 to the Bill, we are providing for the omission of the new cost reference that the Third Country Auditors Regulations 2013 will contain. This is a minor, extremely clear and easily understood technical amendment that responds to an amendment to the Companies Act 2006 and I beg to move.
Lord McKenzie of Luton
My Lords, we are perfectly happy with this amendment.
Lord Wallace of Saltaire
Lord Wallace of Saltaire
My Lords, this group of amendments deals with amending the scope of the auditors’ work. Amendment 12, which amends Clause 19, puts into the Bill a requirement for auditors of relevant authorities, other than health service bodies, to satisfy themselves that the statement of accounts presents a true and fair view. This requirement for health bodies is already in Clause 20.
The noble Lord, Lord McKenzie, moved a similar amendment in Grand Committee. In response, we provided assurance that it is indeed the Government’s intention to require larger relevant authorities to produce statements of accounts which are “true and fair” and for local auditors to give an opinion on whether this is achieved. We explained that this is not included in the Bill, but the same outcome will be achieved through a combination of the Bill and the regulations to be made under Clause 31, mirroring the same approach that is currently used.
We have reflected on this and other related discussions since Grand Committee, and consider that there are benefits to placing an explicit requirement in the Bill for auditors to give an opinion on whether the statement of accounts is “true and fair”, rather than retaining the current approach. The key benefit, of course, is alignment within the Bill between the audit requirements for health bodies in Clause 20, and those for local government bodies in Clause 19. Furthermore, presenting accounts that are “true and fair” is an established accounting and audit concept which is also used in legislation governing the audit of central government and companies.
The amendment will make clear that the accounts of the larger relevant authorities must meet the same high standards. However, because Clause 19 applies to all non-health bodies subject to audit under this Bill, this amendment will apply the “true and fair” standard to the audit of all relevant authorities. As we said in Grand Committee, the Government do not consider it appropriate that the “true and fair” standard should apply to smaller authorities. Smaller authorities are required to ensure that their accounts “present fairly” or “properly present”, which are briefer and more proportionate forms of accounting.
It will therefore be necessary to modify these requirements for smaller bodies, which the Government intend to do through the regulations under Clause 5. The modifications will retain the audit requirements on smaller bodies so that auditors of smaller bodies are required to continue to satisfy themselves that the accounts “present fairly” or “properly present”.
We are not planning to make the other amendment to Clause 3 that the noble Lord, Lord McKenzie, moved in Grand Committee, which would require relevant authorities to prepare statements of accounts which are true and fair. We believe that the amendment to Clause 19 achieves all that is needed. The duty on auditors in Clause 19 will effectively require the authority to prepare to true and fair standards. We will confirm that requirement in the regulations that will be made under Clause 31, by requiring the chief finance officer of larger relevant authorities to certify that the accounts show as true and fair. This is similar to the approach for health service bodies—which are required to keep proper accounts showing a true and fair view—and the Companies Act which says that the directors must not approve the accounts unless they are satisfied that they give a true and fair view.
Amendments 13 to 17 amend Clause 20, which sets out the general duties of auditors of health service bodies. These are needed to provide that the auditor of the accounts of special trustees is not required to give a regularity opinion. Clinical commissioning groups—which are covered by Clause 20—are funded by Parliament to commission healthcare services. As such, they are accountable to Parliament for how they utilise these resources. Clause 20 therefore requires the auditor to give an opinion on whether the CCG has used these resources as Parliament intended and in accordance with guidance covering financial transactions.
However, this clause currently requires auditors of the accounts of special trustees to provide a regularity opinion of these accounts. Special trustees are appointed by university or teaching hospitals under Section 212 of the National Health Service Act 2006 to hold property on their behalf. There are currently only three boards of special trustees in existence: for Great Ormond Street Hospital in London, the Royal Orthopaedic Hospital and Moorfields Eye Hospital. As these bodies do not receive funds voted by Parliament, there is no need for a regularity opinion by the auditor on their accounts. The general duties of the auditor of a special trustee are otherwise the same as for a CCG.
Finally, Amendment 65 is consequential to the amendments made to Clause 20 and technical in nature. It is required to enable Clause 20 to apply to audit of the accounts of NHS trusts and the trustees of NHS trusts in the same way as it applies to special trustees. I beg to move.
Lord McKenzie of Luton
My Lords, I thank the noble Lord, Lord Wallace, for introducing these amendments. We are happy with them. I will speak first to Amendment 12. We debated this issue of accounts being required to show a “true and fair” view in Committee, as the noble Lord said. We had drawn attention to the disparity of wording in the Bill between the general duties of auditors of relevant bodies which are health service bodies and those which are not. The requirements for local authority accounts to show a true and fair view was part of the process towards full GAAP compliance in the whole of government accounts.
In response to our amendment, the Minister, the noble Baroness, Lady Hanham, reassured us that it was a requirement for larger relevant authorities to present accounts that were true and fair and this was achieved through the interaction of primary and secondary legislation—the Audit Commission Act 1998 and the Accounts and Audit (England) Regulations 2011. The Minister said in Committee:
“We intend to mirror this requirement in the regulations to be made under Clause 31”.—[Official Report, 17/7/13; col. GC 30.]
However, the Minister went on to say:
“This approach is less complex than specifying ‘true and fair’ requirements in the Bill, because further amendments would be required to disapply these provisions … for smaller authorities, which, as the Bill makes clear, are not required to ensure that their statement of accounts are true and fair”.—[Official Report, 17/7/13; GC 31.]
As I said, we support the government amendment. I was going to inquire about how that latter point would be dealt with, but the noble Lord covered that in his presentation.
Before commenting on Amendments 13 to 17, I take the opportunity to thank the Minister and the Bill team for facilitating a meeting about the differing effects of the Bill on local authorities and health service bodies, and for the helpful follow-up tabulation. That tabulation presaged the amendment in noting that a regularity of opinion was necessary in respect of clinical commissioning groups, because they were funded by Parliament to commission healthcare services. This is not the case for NHS trusts which receive income from contracts.
The Bill already disapplies the regularity requirements for NHS trusts in Schedule 13 and, under this group of amendments, does so for special trustees. The amendment specifically restores the other requirements of Clause 20(1) in paragraphs (a) to (c) for special trustees. However, it is not immediately clear how those provisions are reinstated in respect of NHS trusts—that is, those which are not special trustees. I think that the clue to that is in Amendment 65, to which the noble Lord referred, but it would be helpful to have clarification on that point. Subject to that, we are happy with the amendments.
The Archbishop of York
My Lords, on Amendment 12, if the statement is true, are not the words “fair view” fatuous? Could you have a true statement which needs qualifying as being unfair? If it is true, it is true. Are those warm words, are they warming up the word “true”? What do they add, those words “fair view”? If it is true, it is true.
Lord Palmer of Childs Hill
My Lords, unfortunately in accountancy there is a certain jargon. “True and fair view” is jargon used by firms of accountants and auditors from time immemorial, probably since the formation of the Institute of Chartered Accountants of Scotland, which was the first institute.
My query is whether this is not something which could be included in the external auditors’ audit report in the normal way. Currently, the external auditors’ audit report will say that the accounts have been true and fair and all the other jargon that goes with it in a format which has evolved over the years. The amendment seems to provide that the auditors must be satisfied that the local authority presents its accounts in a true and fair way. If that be the case, I wonder whether my noble friend can say, either now or in writing, whether the auditors’ report itself will need to be amended. Currently, the auditors’ reports just say that the accounts are, in their opinion, true and fair—or words of that nature. Now we seem to be saying that the external auditor must be satisfied that the local authority has presented its accounts in a true and fair way, which seems to be going beyond the opinion that those figures are true and fair. I know that we have a jargon and that the statement should be true but not fair seems completely wrong, but this is a form of words which has been used by accountants for years and is being replicated in the Bill.
The government amendments raise the question of other accounts which the external auditors are auditing at the same time and which are included in the audit of that local authority’s accounts. For instance, when a local authority’s accounts are audited, the auditor—it is not necessarily the same auditor, and if it is, it is a section of that auditor separated by a Chinese wall—audits the pension fund of that local authority. That is treated by external auditors as a separate audit. Because of national accounting requirements introduced about three years ago, those pension fund accounts had to be incorporated within the accounts of a local authority, producing some very strange figures and below-the-line amendments, which sometimes make accounts of a local authority understandable only by a very rare breed of people. I believe that there is someone in Whitehall who is meant to understand them. Will my noble friend comment on that inclusion within the audit report and how it affects the supplementary accounts which are amalgamated by law, such as pension funds of the local authority?
The Archbishop of York
Does not the noble Lord think that a legislature is entitled not purely to accept jargon, however old it is, because the law needs to be very clear about what it is stating? Yes, jargon may have been there for centuries. In the council of the Church of England, the jargon is well known, but when we draft a Measure to come to your Lordships’ House it will be in a language understandable by the people. So yes, that may be the jargon, but what is the meaning? What is it getting at? Do you still have to keep jargon when you are legislating?
Lord James of Blackheath
My Lords, my attempts to help in this House usually end up in worse confusion, but let me try. I raised the same question about 40 years ago when the phrase was first coming into regular usage. The explanation I got at the time was that the accounts will be true but they may not be fair because they do not answer the question which accountants never ask at an audit stage: that is whether there is a working capital certificate sufficient to support the cash flow. Therefore, you have to say that the accounts are true, but they may not be fair because they may not highlight the pitfall that the cash is going to run out. So “true” and “fair” belong to each other, but they have a separate and subtly different meaning.
Lord Wallace of Saltaire
My Lords, I have been sitting reflecting on the Psalms which are read to us in that wonderful translation at the beginning of Prayers each day and the number of redundant words which are used in repeated phrases in the course of them. I think that it is not only accountancy which uses phrases which might possibly be pruned if one wished.
Let me try to answer some of the questions which have been raised. Amendment 65, about which the noble Lord, Lord McKenzie asked, amends Schedule 13, which makes provision for NHS trusts. On the question of auditors and related audits, I take the point raised by the noble Lord, Lord Palmer, and think that I had better promise to write to him. The next group of amendments tabled by the noble Lord, Lord Wills, raises some large issues about the related audits, which we certainly need to discuss seriously.
I am briefed to say that “true and fair” is an established audit concept. The National Audit Office’s code of audit practice will set out how that is to be reported in auditors’ reports, so the NAO will tell the auditors exactly how to interpret the auditors’ jargon. I beg to move.
Lord Wallace of Saltaire
“(2A) In auditing the accounts of special trustees for a hospital, a local auditor must, by examination of the accounts and otherwise, be satisfied—
(a) that the accounts present a true and fair view, and comply with the requirements of the enactments that apply to them,(b) that proper practices have been observed in the preparation of the accounts, and(c) that the special trustees have made proper arrangements for securing economy, efficiency and effectiveness in their use of resources.”
Lord Wills
“Auditors right to documents and information of private contractors
(1) A local auditor has a right of access at all reasonable times to audit documents from private companies that the local authority have contracted services to during the last financial year.
(2) Local auditors only have a right of access to audit documents from private companies, under subsection (1), that relate to the service provided to the local authority by that company.
(3) A local auditor must publish any audit documents, obtained under subsection (1), as part of a local audit publication.”
Lord Wills
My Lords, both amendments aim to improve transparency in the new arrangements for local government. Amendment 18 is very similar to one that I tabled in Committee, and Amendment 23, with which it is grouped, is identical to the one that I moved then. Both were resisted by the Government, and I am bringing them forward again to give Ministers the opportunity to think again about whether it is really in the best interests of the Government, let alone in the public interest, to restrict transparency in the way that continuing to resist the amendments would.
I set out the case for the amendments in Committee, so I will not repeat those arguments in detail now. However, since then, both Ministers and their officials have met me to discuss the amendments, and I should like to place on record my gratitude to them all for all the time and trouble that they took in doing that. The noble Baroness, Lady Hanham, then followed up with a letter, which, I understand, has been copied to all interested Peers, setting out in some detail the grounds of the Government’s resistance to the amendments. Again, I am very grateful to the Minister for the careful and thorough way in which she and her officials have approached these issues, and I think they are now owed the courtesy of a response to their arguments.
Their first argument is that the amendments represent an increase in transparency and would bring auditors under the Freedom of Information Act in a way that they were not under the previous regime. I regard this as an argument for the amendments, not against them.
The recent Grant Thornton report for the Care Quality Commission showed just how important transparency can be in the work of those scrutinising the delivery of public services. What the Secretary of State for Justice last week rather politely referred to as,
“a significant anomaly in the billing practices under the current contracts”,—[Official Report, Commons, 11/7/13; col. 573.]
for electronic tagging has shown how important transparency is for scrutinising the work done by private sector companies for the public sector. In the light of what has been revealed recently about such work and about what has happened in the NHS, I am baffled as to why Ministers should still be resisting increasing transparency.
However, these amendments are not only about increasing transparency; they also set out to tackle a decrease in transparency brought about by the new arrangements. The Audit Commission, which is being replaced by the provisions of the Bill, was covered by the Freedom of Information Act. My understanding is that, in addition to information that it held for its own purposes—which was of course covered by the Freedom of Information Act—some information held by auditors would also have been regarded as being held by the commission in certain circumstances; for example, when it was investigating a complaint against a specified auditor, when it was conducting a quality control of their work, or when it had required an auditor to provide information for the discharge of wider Audit Commission functions, such as making judgments on local authorities’ use of resources. In such circumstances, the information would have been deemed to have been held by the Audit Commission and so subject to the Freedom of Information Act.
These are important categories of information that cover significant areas of public interest and concern. Yet, as far as I can see, no public authority, as defined in the Freedom of Information Act, has inherited those responsibilities from the Audit Commission, so under the new regime such information will no longer be covered by the Freedom of Information Act. I think it should be. This restriction of transparency damages the public interest. These amendments seek to prevent that happening.
Next, the Government appear to believe that there are already sufficient provisions for transparency for these amendments not to be necessary. However, as I set out in Committee, the fact that local authorities themselves are covered by the Freedom of Information Act does not always provide the necessary transparency for private sector bodies carrying out public sector work. Nor does the right of electors to inspect accounts and audit documents always provide the necessary transparency, important though that right is and has been for all the years that it has existed.
The Minister will be well aware of all the information that would not be available for scrutiny by the public under this regime. Why should the citizen have to resort to the cost and trouble of going to court under the Government’s regime—as the Minister suggested in her letter—to secure rights to transparency, when such rights could be made available to them under the more accessible regime of the Freedom of Information Act?
The Government then argue that exemptions under the Freedom of Information Act, particularly regarding commercial sensitivity and audit activity, mean that little extra information would be made available under these amendments. The Minister, however, will be aware that these exemptions are subject to a public interest test. That is a relatively high hurdle to overcome, so it may mean relatively little information will become available through the means of these amendments. However, when the hurdle is overcome it means that the information that does become available is—by definition—in the public interest. I believe such information should be made available to the public. I am surprised that Ministers want to deny it to them.
Finally, we come to the nub of the Government’s arguments, which is that transparency increases cost and so increases audit fees and, ultimately, the cost to taxpayers—and that it may also restrict competition as some auditors will be deterred by the requirements of transparency from bidding for such work.
These arguments crumble as soon as they are examined in any detail. Quite apart from the fact that the Government admitted, in answering a Parliamentary Question from me on 3 July, that they have made no estimate of the cost of bringing local auditors under the Freedom of Information Act; quite apart from the fact that greater transparency can often save money by revealing fraud, corruption, incompetence and inefficiency; quite apart from the question of why anyone should want an auditor carrying out crucial scrutiny of public services who would be deterred from such work by making what they do subject to scrutiny by the public they serve; quite apart from all that, the Government's own figures suggest, as far as I have understood them, just how flimsy this argument is.
Lord Shipley
My Lords, I remind the House of my vice-presidency of the Local Government Association. I was unable to discuss this matter when it was raised by the noble Lord, Lord Wills, in Committee, but he is making a very powerful case. I hope Ministers will be able to respond in a way that meets the issues that he has so rightly raised.
It is clear in Amendment 18 that a private company that is contracted, let us say, to run a refuse collection service or to run a leisure centre will appoint its own auditors to carry out an audit of the service that it undertakes. However, I do not think that that will prove sufficient. The public interest requires, where public money is being spent on a service, that the auditor on behalf of the public sector should have access to information that lies with the body that is providing the service through a contract. This appears to be an attempt to prevent a local government auditor having access to information that would assist the undertaking of that audit because a service has been provided by a private sector company. That does not stand the test of public accountability.
The noble Lord, Lord Wills, has got it right with Amendment 18. It is reasonable to say:
“A local auditor has a right of access at all reasonable times to audit documents from private companies that the local authority have contracted services to during the last financial year”,
and it is reasonable to say:
“Local auditors only have a right of access to audit documents from private companies … that relate to the service provided to the local authority by that company”.
In both respects, that is a reasonable requirement for a local auditor to expect. The public interest is best served by the auditor having those powers because this is about contract compliance in financial matters and service delivery. It is a basic requirement if an audit is to be undertaken successfully. How else can the general public have confidence that public money is being efficiently and properly spent on their behalf? I hope that we will hear from the Minister something that will convince us that Amendment 18 is not necessary.
On Amendment 23, there should be no diminution in the rights under the Freedom of Information Act. When it comes to transparency, particularly in view of the matters that have occurred recently, of which the noble Lord, Lord Wills, reminded us, your Lordships’ House has a duty to ensure that transparency in public expenditure and the delivery of the public interest actually happen. I hope that the Minister can give us the assurance that the noble Lord, Lord Wills, is seeking.
Lord Palmer of Childs Hill
My Lords, this is a very interesting amendment. I just wanted to add one other perspective. Any local authority worth its salt, particularly in this time of outsourcing, when so much is being outsourced to outside companies and bodies, will insist—as I have always insisted in my own local authority—that it has a right within the contract with the outside contractor to be able to audit the documents of the outside contractor. The place to do all the things that my noble friend has suggested is very often within the contract between the local authority and the contractor.
How that works in practice is that the local authority and its internal auditors need to see what the audit processes are within that outside contractor. The idea that the auditor of the local authority will go in on a normal basis and delve into the detailed books and records of the outside contractor is probably stretching the imagination a bit. The trouble with audits—this is where the noble Lord, Lord Wills, really hits the nail on the head—is that they are, in general, historical and you are looking at what went wrong. The noble Lord, Lord Wills, gave two good examples of what went wrong. The question to the noble Lord, Lord Wills, is: if the Government or the local authority had the ability to go in and audit the sort of companies and organisations the noble Lord described, would they have found these particular problems at that stage?
The noble Lord, Lord Wills, is on to a very important point. But I believe—as I hope that my noble friend the Minister will tell your Lordships’ House—that those protections of being able to audit should be more properly contained within the contract between the local authority and the outside body to which it is contracting.
The Earl of Lytton
My Lords, I have some knowledge of procurement issues. I, too, declare my interest as a vice-president of the LGA, but my knowledge comes mainly from the All-Party Group for Excellence in the Built Environment, which last year looked at the question of public sector procurement.
One of the things that we identified was the difficulty that many local authority and public sector bodies have in getting these very complicated contractual arrangements right. If they were not got right, you had some form of mission creep. You had this wall of contractual arrangements that could not be looked at until long after the event; for instance, the provision of a sports centre or a school over quite a number of months. Things had gone wrong in a number of cases because there was not the ability to oversee the thing properly or the knowledge of these very complex matters within the particular procuring body—not necessarily local government—to get a real grip on these things. The question was raised as to whether there should be an external procurement adviser to steer the body through. As I say, it might have been a local authority or it might have been a charity or something like that.
The noble Lords, Lord Wills and Lord Palmer, have hit on a very important point here: at which point can you see through into the detail and at which point do you get to “thus far and no further” in terms of the audit not running into some sort of mission creep? It is plain to me that there must be safeguards. Some very significant sums of money are involved. The earlier that problems are picked up and the process can look at structures and get feedback, the sooner they can be put right or something put in place to limit damage.
If not necessarily for the same reasons, I think that the noble Lord, Lord Wills, has raised an extremely important point, and I hope the Minister will feel able to respond positively to that.
Lord McKenzie of Luton
My Lords, we are sympathetic to my noble friend’s amendments and supportive of the intention behind them, which is to improve transparency in the new arrangements for local government. As I said in Committee, these open up a very important area of discussion.
Freedom of information legislation has played an important part in opening up government to the public. With some local authorities now outsourcing large portions of their services to firms such as Capita, questions must be asked about how to hold such firms accountable, given the significant amounts of public money that they now manage; for example, some councils will be handing over control of critical council services such as planning, licensing and environmental health to private, for-profit companies. This will make it harder for local residents to get answers and action on issues affecting them. It will also make it harder for elected councillors to monitor and scrutinise these services on behalf of local people. It will make it almost impossible to change services if councillors and residents decide that they want things done differently. My noble friend and others have mentioned the G4S and Serco revelations of last week, which have rightly caused much outrage. We have called for freedom of information legislation to be extended to the delivery of public services by the private sector in order to give greater accountability and transparency.
Lord Wallace of Saltaire
My Lords, this has been quite a wide-ranging debate and I recognise the importance of the issue that is being raised. I thank the noble Lord, Lord Wills, for the discussion that we had the other week and for the determination with which he is pursuing this. The Government are not persuaded that these amendments serve the cause. It seems to us that the current arrangements provide the requirement for transparency in outsourcing, but I recognise the much wider issues that the noble Lord is raising, such as the growth of outsourcing over the past 25 to 30 years, the potential conflicts of interest that then arise and the rise of substantial amounts of public money that are now being spent by private contractors. The current and recent cases of alleged fraud and error that have arisen in a number of areas of outsourcing of the work programme have not been mentioned. However, noble Lords will also remember that there have been a number of worrying cases.
This has grown up over a long period, from well before this Government took office, but it is with us now and we certainly need to look at it. I promise the noble Lord, Lord Wills, that if he would like to pursue this we are open to further discussions. This is the sort of subject that is perhaps appropriate at some stage for a committee of one or other of the Chambers to look at, to see whether the current rights of freedom of information, rights of access, and challenges from electors and others are adequate, or whether there is a systemic problem that needs to be addressed by legislation.
Local authorities are covered by the Freedom of Information Act and information is directly available from the auditor through the right for local electors to ask questions and raise objections. These cover contractual arrangements with private contractors. The DCLG consulted on bringing local auditors into FOI in spring 2011, when the consultation asked whether local auditors should be brought into the FOI Act. The conclusion was that they should not be brought within the Act, because it was believed that doing so would add little to local authorities being covered in the FOI Act, and because provisions in the Bill retain,
“rights for electors to inspect the statement of accounts and audit documents, and to raise questions and objections with the local auditor”.—[Official Report, 24/6/2013; col. GC 203.]
As I said in Committee, all respondents to this question said that bringing auditors into the FOI Act would increase audit fees. I shall not repeat the argument that I presented in Committee in resisting these two amendments, but the Government’s door is not closed on this. It is a matter that affects all parties and all those in charge of local authorities, future Governments, this one and past ones.
A previous Prime Minister said that the FOI Act was the single biggest mistake that he thought he had made. We disagree with him. It is painful, but necessary. The universality of outsourcing across a range of areas means that from time to time we need to look at this overall, but we are not persuaded that on this particular occasion in this particular Bill these amendments are necessary or appropriate. With that assurance, I hope that we are open to further discussions and that the noble Lord may be willing to withdraw his amendment at this stage, recognising that the question is not therefore necessarily closed.
Lord Wills
My Lords, I am grateful to everyone who has contributed to what has been a valuable debate and from all sides brought to it a wealth of experience and expertise. I am grateful to the noble Lord, Lord Shipley, for his support. The noble Lord, Lord Palmer of Childs Hill, and the noble Earl, Lord Lytton, brought invaluable experience to bear on these issues, and I am grateful to them. They both made a valid point about the fact that the audit can discover problems only after the fact, and the noble Lord, Lord Palmer, asked me directly why I thought that these amendments would still be valuable in the light of that. They would be valuable for many reasons. Perhaps the most important one is that knowing what you do will be subject to public scrutiny is a powerful incentive to getting it right. If you know that what you are doing can be covered up successfully, that is more likely than anything else to ensure fraud, incompetence and inefficiency. I hope that that reassures the noble Lord, Lord Palmer. I am also grateful for the support of my noble friends on my own Front Bench.
I am particularly grateful for what the Minister said; I am grateful to him and his officials for the way that they have engaged with this issue so far. I hope that I am not wrong in detecting just the slightest imperceptible budging from their resistance to these amendments that I saw in Committee, or at least a willingness to carry on engaging with the issues. I welcome this. I also disagree with the view of the former Prime Minister on the Freedom of Information Act and agree with this Minister.
I shall withdraw the amendment today, but I hope that we can return to these issues at Third Reading. The Government have said that they are prepared to look at this again and I welcome that. Even if they do not accept these particular amendments, if they can come up with something better I am happy to discuss that with them. I also ask the Government to look at two issues between now and Third Reading, because they bear on the whole purpose. First, in his response the Minister did not really address my arguments about the inadequacies of the current regime. With all respect to him, he just repeated the arguments in the noble Baroness’s letter to me. I have said why I took issue with those arguments, and I hope that he will look at Hansard and look again at the problems that I have with the regime that is proposed.
Secondly, there is the question of cost. This has not been the time to get to grips with this, but I still think that the argument about costs is unpersuasive. The fact that a consultation produced a predictable response from the predictable vested interests is no argument for government policy to be made on that basis. So I hope that the Government will look at what the actual costs of compliance are likely to be, how much of a deterrent they are likely to be, how far those costs can be absorbed by auditors and how far they would have to be passed on.
I am happy before Third Reading to extend to the Minister and his officials the invitation that he so kindly extended to me in Committee of meeting them again, discussing these issues and seeing if there is a way that we can find some common ground. If not, we will probably have to return to the matter at Third Reading. In the mean time, I beg leave to withdraw the amendment.
Lord Wallace of Saltaire
Lord Wallace of Saltaire
My Lords, this amendment makes a small change to paragraph 1 of Schedule 7. It slightly changes the requirements on a local auditor when issuing a public interest report. The Bill currently places a duty on local auditors to inform the auditor panel before making a public interest report. The amendment changes that duty to a duty to inform the panel,
“as soon as is reasonably practical after”
making a public interest report. The noble Lord, Lord McKenzie, moved a very similar amendment in Grand Committee. At that time we agreed with the intent of the amendment that the auditor panel should not influence the auditor’s decision as to whether to issue a public interest report. After further reflection, we consider that such an amendment would be a helpful clarification and would reduce the risk that the auditor panel could be perceived to be influencing the auditor’s judgment. I beg to move.
Lord McKenzie of Luton
My Lords, we have Amendment 20 in this group. Obviously, we support the government amendment because it is in keeping with the amendment that we moved in Committee. In Committee we sought to strengthen independent around the process of an auditor issuing a public interest report, and without sight of the government amendment we have retabled our Amendment 20. The sequence has been: in the draft Bill, a requirement to consult with the audit panel; in the current Bill, a requirement to notify the panel before the public interest report is issued; in our amendment, a requirement to notify when it is issued; and now, in the government amendment, to notify as soon as is reasonably practical. This is a progression with which we could not possibly disagree, and we thank the Government for accommodating this point.
Lord McKenzie of Luton
“(d) to assist in the prevention and detection of maladministration and error.”
Lord McKenzie of Luton
My Lords, this, too, is a re-run of the amendment moved in Committee, which we consider is unresolved business. Its intent is to add to the purposes for which data matching can be used the prevention and detection of maladministration and error. At present, data matching can be used for the prevention and detection of fraud. The relevant Minister can add certain specified purposes by regulation, but only after a consultation exercise. The prevention and detection of maladministration and error is not currently one of these additional purposes. Accepting the amendment would not immediately bring this purpose within the scope of data matching but would allow it to be included in future after due process.
The Audit Commission currently undertakes data-matching exercises for the purpose of the prevention and detection of maladministration and error but does so under its audit powers. I refer again to the national duplicate registration initiative relating to GP lists and the role played by data matching. When we asked about how this would proceed in future, we did not receive an answer. Perhaps we can have an answer today. How would that initiative go forward with the Audit Commission having been abolished?
The amendment is only about preserving opportunities for tackling maladministration and error, not extending them, a matter on which I would assume we had common cause. In Committee on 26 June, the noble Lord, Lord Wallace, said:
“I understand that the Audit Commission has already run exercises looking at error rather than fraud, using its other powers and that furthermore, following the abolition of the commission, such exercises might not be possible. I am, therefore, interested in better understanding the outcome of such exercises … and … the risks and benefits of including a power such as that proposed”.—[Official Report, 26/6/13; col. GC 223.]
Will the Minister share with us the conclusions of the further deliberations and discussions with the Audit Commission on this point? I remind him that the amendment enables only the introduction of a power. Further steps would have to be taken before it could become effective.
Lord Wallace of Saltaire
My Lords, I begin by informing the House that, following careful consideration of all options, the Cabinet Office will assume responsibility for the national fraud initiative, subject to the passage of this Bill. The transfer to the Cabinet Office will allow the national fraud initiative to continue and develop its effective and important work to complement wider government activities to tackle fraud.
Officials are continuing to discuss transitional issues over the coming months to ensure a smooth handover once the legislation is in place. Perhaps it would be appropriate to remind noble Lords that I am the Lords spokesman on the Cabinet Office. I was indeed being briefed by the Cabinet Office fraud and error team some weeks ago. We are considering whether or not to draft a data-sharing and data-matching Bill for the consideration of the House. We face some very large issues at national as well as at local level, which involve issues of data privacy and identity assurance, all of which we need to discuss within the wider framework of national and international consideration of this as well as consideration by local authorities. Noble Lords may remember that in Committee I expressed some surprise at just how far local authorities and the Audit Commission had gone in this direction when the national Government were being very hesitant about how far it would be appropriate to go in some of these areas.
On this Bill, it is the Government’s intention that the data-matching clauses should, before we move towards discussing the much larger issues in the changing digital revolution that we are concerned with at present, remain consistent with the provisions in the Audit Commission Act 1998 to ensure continuity and stability on its transfer to its new home. Amendment 22 would insert a fourth potential purpose for data-matching exercises: to assist in the prevention and detection of maladministration and error. The noble Lord, Lord McKenzie, made a very persuasive case for this amendment in Committee and provided some helpful examples of the types of exercises that the Audit Commission had already run, looking at error rather than fraud, using its other powers.
My noble friend Lord Palmer of Childs Hill rightly highlighted the issue of function creep in relation to data-matching exercises. In doing so, he brought to the House’s attention the need for very careful consideration of these matters, Perhaps I should say that as a liberal in every sense, I am battered on both sides on the question of the convenience that the digital revolution provides us with but also the enormous threats that it offers to individual privacy if we are not careful about how we manage data holding, data sharing, data matching and data mining. I am sure that all noble Lords are aware of the distinctions between all of those. This is a very difficult area, and while the detection of error as well as of fraud is inherently valuable, it would allow the new owner of the national fraud initiative to continue the Audit Commission’s work. Any amplification of ministerial powers in this area therefore requires careful consideration. I assure the noble Lord that my officials are working with a range of interested parties to gain an in-depth understanding of past and potential future uses of this power. This includes representatives from the Information Commissioner’s Office, and I will be meeting the Information Commissioner before the summer on this matter.
My officials are also seeking further advice from the Audit Commission about exercises it has carried out using its other powers and the risks and benefits that such an extension might entail. I look forward to meeting the noble Lord in due course to update him on progress in this area, recognising that we are tip-toeing around the edges of one of the major issues that any future Government will be facing in the next three to five years: how we cope with the explosion of digital information available on cloud computing. I hope with those assurances that the amendment can now be withdrawn.
Lord McKenzie of Luton
My Lords, I must express some disappointment with the Minister’s response. I am grateful for the information on the transfer of the NFI to the Cabinet Office and I am reassured that it will be in the safe hands of the noble Lord as the Minister in your Lordships’ House. I share the concern about the enormity of some of the data holding, data sharing and data mining privacy issues. I took it, perhaps from what the Minister said, that there was the prospect of some broader legislation not too far down the track. However, I hang on to my point that this amendment would not extend one little bit what happens at the moment. In fact, the amendment would not even take us as far as we are today with the Audit Commission because it would need those further processes before it came into being. Whatever else is going on and whatever the scale of these other issues—I share the noble Lord’s concerns over those—I fail to see why this provision cannot be taken forward. It seems to me that there is a diminution in the Government’s task of tackling maladministration and error without these powers being available. I do not think the noble Lord explained how they would be dealt with differently once the Audit Commission goes out of existence and how this range of opportunities would be replicated under the new arrangement. I do not know whether the noble Lord would like another go at trying to convince me on that, but it would be helpful if he could. What will happen to the Audit Commission’s current audit powers to deal with maladministration and error? What will replace those just to have an equivalent process when the Audit Commission goes?
Lord Wallace of Saltaire
The Cabinet Office is looking at the issue of fraud and error in government as a whole in a wider context and would like to examine the experience of the Audit Commission further and to feed that into our wider discussion about the future of data sharing, data mining, data matching and that whole area. We do not intend to leave a long-term hole but to treat this within the broader context of what is happening. Some of us have been concerned in rather a different context with the shift from household electoral registration to individual electoral registration, where, as it happens, some of the same issues arise.
Lord McKenzie of Luton
I am grateful for that further explanation. I take the point that this will not just be left lying fallow but that there will be some active consideration of it. I still hang on to my point that the active consideration could take place without implementation by having the amendment in the Bill. If not, we will need primary legislation of some sort in the future to bring it into being as part of the data-matching process, if that is what the conclusion is on further analysis. Having the amendment in the Bill does not mean that it has to be activated, because the Minister has to go through a consultation process to do that. As there is going to be this broader look, it seems to me that the Government have reached the wrong conclusion. They could have adapted the Bill to include this amendment even if they never implemented it. I think we have probably been around this enough, unless the Minister wants to say something further.
Lord Wallace of Saltaire
I note the noble Lord’s preference for belt and braces. I have some doubts about how many pieces of legislation we have passed that have not been commenced, so perhaps I am slightly in the other area on this. However, I promise to write to the noble Lord further about how the Government intend to take this forward.
Lord McKenzie of Luton
I am grateful for that. I recognise that the Minister sees this as extremely poor, as, indeed, do the Government. I beg leave to withdraw the amendment.
Baroness Hanham
Baroness Hanham
My Lords, in June, the Delegated Powers and Regulatory Reform Committee published its report on the Local Audit and Accountability Bill. The report made a recommendation regarding the provisions in the Bill to prevent local authority newsletters unfairly competing with local newspapers. We have considered the recommendations in this very useful report carefully, and this group of amendments is the result of those considerations.
The committee said that in certain circumstances it is inappropriate for powers to make the code mandatory to be exercisable by directions rather than by statutory instrument, and subject to no parliamentary procedure. The committee recommended that, where the Secretary of State wishes to exercise his power to issue a direction to all local authorities in England or to a specified description of authorities, the affirmative resolution procedure should apply. While recognising that there can be circumstances where it is appropriate for the Secretary of State to be able to give directions to a class of, or to all, local authorities, we accept the committee’s recommendation that the exercise of this power in relation to classes of, or to all, local authorities, should be by affirmative statutory instrument.
We also agree with the committee’s implicit view that, where the power is exercised in relation to a single authority that the Secretary of State believes is not complying with the code, it would be appropriate for this to be by way of direction. However, we do not agree with or accept the committee’s recommendation that, where the power is exercised in relation to a single authority otherwise than where the Secretary of State believes the authority is not complying with the code, this should be by negative statutory instrument.
Our aim is simple: to be able to take effective action against those authorities that are giving rise to concern about their publicity, particularly relating to the publication of newspapers. Above all, in the case of such authorities, quick and effective action needs to be taken. These amendments ensure that the Secretary of State can continue to take that quick action against individual authorities. In cases where groups of authorities or all local authorities in England are being required to comply with some or all of the publicity code, we agree that this should be by order, subject to the approval of both Houses of Parliament. I beg to move.
Lord Beecham
My Lords, we are now coming to that part of the Bill that reflects several of the obsessions of the Secretary of State, not necessarily of the Minister. It is interesting that the draft Bill committee had, of course, no opportunity to consider these matters because they were not part of the original Bill; they were tacked on to the Bill at a later stage. I suppose we should be grateful that at least the Delegated Powers Committee has had an opportunity to comment on it. In fairness, I am grateful to the Minister and to the Government for accepting at least part of its recommendations, the part that referred to directions given to all local authorities. However, I find it difficult to follow the reasoning for the rejection of the second recommendation about directions to an individual authority.
The committee indicated that a power does not merely afford a specific and targeted enforcement mechanism but could—and would, if the relevant subsection is relied on—have the character of a legislative power. It took the view that it is inappropriate for powers of this kind, to make the code mandatory, to be exercisable by directions rather than by statutory instrument. Hence the two recommendations it made; in fairness, the Government have accepted one of them, although they did not accept the other. That decision was communicated to the committee and is reported in its sixth report, which was printed as recently as 11 July. In fairness, the report was written in June, but it does not indicate exactly when. However, it was considered by the committee only a matter of a few days ago—or at least, its report was published only a few days ago.
Baroness Hanham
My Lords, as the noble Lord knows, on the code of conduct, as regards publicity, and in general, it would be fair to say that the code is probably reasonably well observed among the majority of authorities. There could be occasions—I say “could be” because that is how we need to put it—in which a number of authorities breach all or part of that code, in which case it would be essential that the Secretary of State was able to take action. If it is a large number, there would, presumably, by definition be some really serious element that had come about so that the Secretary of State needed to be aware of it. However, this could do with a further look at in Parliament, and further consultation. We fully accept that that would need parliamentary time.
We already know of local authorities that are breaching the code in terms of a number of publications—what is in the publication and what relates to them at the moment. Since we now know about these it would not be sensible to have to wait and waste a lot of time in delaying taking the direction to stop them, getting them to comply, getting that matter dealt with and moving on.
We have responded in as straightforward a way as we can to the DPPRC’s recommendation, except for on this one area. Indeed, it may be that these individual directions to these individual authorities and would be the most that would be applied. I do not expect there to be many; as always, with these things, there are those who breach and cause trouble for the rest. However, there is no doubt that we would expect or hope to continue with the provisions in the Bill as have been outlined and, for the reasons that I have said, that it makes sense to get individual local authorities to stop what they are doing as quickly as possible. They are probably just breaching individual aspects of the code.
Lord Tope
My Lords, I shall also speak to Amendments 28, 30, 33, 35, 36 and 37. Before doing so, I must, for the first time in your Lordships’ House, declare my interest as a vice-president of the Local Government Association, now for very nearly two weeks. It gives me great pleasure to do so, and to begin by not doing what the LGA will not wish me to do. The LGA remains resolutely opposed to Clause 38; we will have an opportunity very shortly to look at that. The preferred position of the LGA—and, I think I am right in saying, of all the political groups in that body; it most certainly is the position of my own Liberal Democrat group there—is that it would prefer to see the deletion of the clause entirely.
I have tabled this collection of amendments because I recognise that the Government will not be able to agree to do so because the terms of the coalition agreement state:
“We will impose tougher rules to stop unfair competition by local authority newspapers”.
That is what is in the coalition agreement, and the Bill is the vehicle that the Government have chosen to implement that part of the agreement. I accept that I, too, am bound by that agreement. My clutch of amendments is therefore an attempt to meet the terms of the agreement which I personally signed up to, as did my party. However, it is targeted, rather than the broad-brush approach that the Government seem to have at present.
The problem with Clause 38 is that it is rather more than a catch-all, although it does apply to all local authorities. It gives the Secretary of State power to intervene, regardless of whether the local authority is complying with the code or not. That is not in accordance with the coalition agreement which is quite specific about dealing with unfair competition. In reality, it means that those authorities—if there is more than one—which are producing a weekly newspaper, paid for by commercial advertising that arguably might have gone to a local commercial newspaper, are in competition with that local newspaper. That part of the agreement attempts to give some protection to local newspapers going through a difficult—probably terminal—period. Whether that is a correct analysis of the situation for local newspapers—and it certainly is not a complete analysis, nor is it a subject for debate today—that is the position we are in.
Amendments 25 and 28 seek to limit the rather wide-ranging power that the clause currently gives to the Secretary of State and to target it on those authorities deemed to be in breach of what is, at the moment, a voluntary code. That gives the Secretary of State the power—which he feels is insufficient at the moment—to deal with a real problem and not just the threat of a possible problem. We all accept—and the Minister has said many times that she accepts—that the overwhelming majority of local authorities, regardless of their political complexion, are complying with the code, have shown no signs of not doing so and are certainly not coming under the terms of the coalition agreement.
Amendment 25 and Amendment 28 are the targeted approach. Amendment 30 and Amendment 36 simply extend the period in which the Secretary of State has to give notice of a direction from a very short 14 days, which includes non-working as well as working days, to 28 days. This is in accordance with best practice; it is certainly in accordance with common practice. It gives a local authority a reasonable, though not a long, time to make its case if it feels that the direction is misplaced—as any local authority in that position is very likely to do; otherwise it would not have put itself in that position in the first place.
Amendment 33 and Amendment 35 state the method by which the Secretary of State has to inform an authority. At the moment the clause is silent on how this is to happen. I have a horror that it is likely to be done via a press release from the Secretary of State—something for which he is quite well known. The first the local authority might know of the fact that it is the target would be if it were to receive something through the media in the language that the current Secretary of State is renowned for using. So these amendments state how the Secretary of State must issue that direction.
The Earl of Lytton
My Lords, I willingly gave my name to the amendments in this group. Like the noble Lord, Lord Tope, I did not feel that this was the right stage of the Bill to argue about whether Clause 38 should stand part, although I am aware of the LGA’s concern on that. It leaves hanging the question of justification, to which the noble Lord, Lord Tope, referred. The rule seems to be designed to deal with the very few, to the potential disadvantage of the many. That is a questionable approach. The purpose of Amendments 25 and 28 is to address this.
On Amendments 30 and 36, the period of 14 days is manifestly too short for the sort of notification and response that is required in this situation. I am advised that 28 days is regarded as appropriate and the norm. Will the Minister be kind enough to explain why the norm must be cut in half?
Amendments 33 and 35 concern the basis on which the Secretary of State will inform an authority—perhaps he might choose to do so by text message to the chief executive, or something like that—and the clarity of the procedures for that confirmation, which are worthy of being tightened up. I hope that there will be a favourable response to that suggestion as well.
On Amendment 37, it seems that the present code allows for latitude in what the authority shall “consider” or “have regard to”. It might be a value-for-money consideration or something like that. The question is whether, in transition from the current voluntary code to the proposed statutory code, the latitude will continue to be there. That is the nub of the question, and the bit that has not yet been answered satisfactorily. Having said that, I very much support the thrust of the amendments in this group.
Lord Beecham
My Lords, as I listened to the noble Lord, Lord Tope, moving his amendment—which, given an opportunity, we would support, faute de mieux—I was reminded of the remarkable film of the man who walked on a high wire between the Twin Towers in New York. It was an extraordinary experience. With this amendment, the noble Lord is navigating the gap between the Bill and the coalition agreement. I do not recommend that he emulates the high-wire artist, because he is very likely to fall precipitately to the ground, judging by what he has advanced tonight.
To begin with, the noble Lord assumes—he may be right—that the Government’s proposals are directed at unfair competition. That is the term used in the coalition agreement. It may be the case, but what constitutes unfair competition is far from clear. What the evidence is for unfair competition existing is even less clear. I will quote, as I did in Committee, from material supplied by the National Union of Journalists. One might have thought that it would be fairly sympathetic to the Government’s point of view, since journalists’ jobs are presumably more at risk if there is unfair competition in the newspaper industry than are the jobs of a handful of local government press officers. The NUJ pointed out:
“The last select committee charged with investigating the matter, observed that there was no evidence of a link between high-frequency local authority publications and the decline of ad revenue, circulation etc of the local press in the local authority catchment area”.
It also pointed out that the Audit Commission—perhaps this is one of the reasons that it is being abolished—in 2010,
“effectively debunked the assertion of newspaper proprietors that local authority publications represented unfair competition and were commercially damaging to other local newspapers”.
The Audit Commission found that the money spent by councils was not unreasonable, that few council publications were published sufficiently frequently to be a viable media for most local advertising, and—a matter to which no doubt we will return—that the current accountability framework would ensure that any misuse of public money could be dealt with.
Those are fairly strong views by an interested party that, one might have assumed, would be sympathetic to the Government’s position but is not. Its evidence is substantial in that respect. It also points out that the press began reducing its workforce many years ago, and that already something like 61% of local newspapers in the area it contacted had closed or struggled. One reason was the decline in advertising revenue, but it was not to be attributed to local authorities including advertising in their publications, because, as the Audit Commission pointed out, in almost all cases the publications were too infrequent to have that impact. Some 55% of newspapers cited competition from the new media.
It does not stop there. There are free newspapers in circulation. The Evening Standard is a free newspaper. I am not sure about the new paper launched by the Independent. It may be free, or cost a nominal amount. Some of the newspaper groups themselves publish freesheets. Metro is published by a newspaper group and carries advertising. Therefore, the notion that somehow local authorities are responsible for the difficulties is ludicrous.
Even if local authority publications constituted competition, to what extent would it be unfair? Is it unfair because the publication is free, or in some other way? Are advertisers not able to make a commercial judgment about what would suit them better? I should have thought that that was central to government policy. The proposal to dismiss the Government’s suggestions here would not constitute a breach of the coalition agreement because there is no evidence that the unfair competition part is at all relevant to what the Government are trying to do.
There is another issue. The Government’s proposals would apply to the code, but the code can change. We do not know what restrictions the next code will bring in. Most of the code, as it stands, is fairly reasonable and acceptable. I dispute the necessity to limit titles to four publications a year, but most of the rest is fairly balanced. What is to stop the Government tightening the code and deciding on a range of things beyond those that they now say should not be published—or, conversely, should be published—in local newspapers? This would give a blank cheque to a Secretary of State to tie the hands of democratically elected local authorities in terms of how they communicate to their electorate, who, after all, should have the final say in what is done locally.
Of all Secretaries of State, the present one is the last person I would like to see entrusted with those powers. I would be quite happy, or relatively happy, for the noble Baroness to have that power but I would not be at all happy to have the present Secretary of State exercising it. Nothing in the Bill would prevent him tightening up the code and using this mechanism to ensure that it is enforced. My preference is for the whole clause to go. I am anticipating what may be said, perhaps rather more briefly, in a subsequent debate. The noble Lord’s amendment would moderate the damage but in my view he should have stuck to his guns and his party’s principles and recognised that he would not breach the coalition in so doing. Then we could have perhaps exercised a bit more leverage on his coalition partners, for the time being, and improved the Bill rather than allowing it to go forward to the statute book in its present form.
Baroness Hanham
My Lords, I am probably in danger of saying the same thing three times as there is no doubt that these amendments stray into each other. We have heard some pretty wide comments on the code as it stands, which probably go slightly wider than the intention behind the noble Lord’s amendments. None the less, we should be very clear that we are talking about the publicity code. I think that guidance is given to local authorities on seven aspects of the publicity code, their behaviour in relation to it and what it involves. It is a statutory code but compliance is voluntary at the moment. If the Secretary of State had to intervene, it would become mandatory only as regards the aspects on which he gave directions, if that was done across the board. If the Secretary of State gave an individual direction, that would be mandatory only for the relevant local authority. This is not a case of putting the whole code on a mandatory basis but of directing local authorities where they are seriously breaching the current code. We are interested only in those local authorities—and there are some—which are giving rise to concern about their publicity because they are producing far too many weekly or fortnightly publications—the terms of the code are three monthly—or are going beyond the reaches of propaganda or stepping outside what they should be doing and producing publicity which is too political. Those are the areas we are dealing with. As I have said several times, I totally accept that the majority of local authorities comply with the code without thinking about it. It is part of their lives, as it were, and they do not set out to breach it. However, some do and this Bill gives us an opportunity to make sure that they are put under some constraint.
Amendment 25 would require the Secretary of State to be satisfied that a local authority had failed to comply with the code under Section 4. The amendment is not necessary and inappropriate. It would needlessly complicate and risk delaying the exercise of the power of direction, which, as I have explained, needs to be quick. Having the making of a direction formally conditional on this simply opens the door to even more debate, argument and delay. That is not compatible with our aim of rapid, targeted action.
Amendment 28 would remove the power for the Secretary of State to give a direction to an authority whether or not he thinks that authority is complying with the code to which it relates. This would remove the Secretary of State’s power to issue a direction where there was doubt over compliance with the code in the future. It is right, when legislating for a new provision, to ensure that as far as possible the provisions cater for different eventualities so that you do not have to keep coming back to the various aspects but cover them so that they do not need to be followed up.
Amendment 30 would lengthen the period a local authority might continue not to comply with the publicity code. The noble Earl, Lord Lytton, agreed with my noble friend Lord Tope that the 14-day period was too short. Local authorities will know perfectly well when they are breaching the publicity code, so a two-week notice period is perfectly reasonable under those circumstances. The notice must be given in writing. A text message or an e-mail will not do. A formal notification must be given, marking the start of the 14 days’ notice. I am sure that the local authority concerned would have plenty of time to raise its concerns.
I return to the important point made by the noble Lord, Lord Beecham, on the form of the code. The Secretary of State cannot just change the code any old how. Any changes to the code would have to be approved by both Houses of Parliament, and any revision to it can be made only through the negative resolution procedure, so it would have to come before this House. The noble Lord shakes his head but a negative resolution can be turned into a proper debate in this House, as he knows as well as I do. The revision must be laid in draft before each House of Parliament and cannot be laid until after 40 days. This is the norm. If you laid the changes before 40 days, the noble Lord, Lord Beecham, who keeps an eye on these things, would leap on it after day three. If either House votes against the proposed change, it cannot go ahead. I think that is more or less the situation with any such proposal.
Amendment 35 is similar to the amendment on the notification. I think it is intended to require the Secretary of State to write to individual local authorities—I have already indicated that he will—modifying or withdrawing a direction. Any notification between the Secretary of State and a local authority would have to be in writing.
Our amendment, which makes provision that the exercise of the power by the Secretary of State to ensure compliance with the code in relation to all local authorities in England of a specified description, or to all local authorities in England, should be made by an affirmative statutory instrument, removes the need for these amendments. It would be highly unusual for an order-making power to be subject to a requirement for the Secretary of State to bring it to the attention of relevant authorities. To make special provision for the publicity code in this instance would bring confusion to other order-making powers, and is unnecessary.
Amendment 36 would build on Amendment 30 which, as I have said, would lengthen the period a local authority might continue not to comply with the publicity code. For the reasons I have set out and because we wish to move swiftly where there is an abuse of taxpayers’ money, I see no reason to extend the 14-day period.
Finally, Amendment 37 would require that a direction must take into account whether the authority has demonstrated to the external auditor that acting outside the code is in the financial interests of the authority to whom a possible direction may apply. This amendment would, I am afraid, once again delay the process. Local authorities know when they are spending too much money. In some circumstances, local authorities can act outside the code and issue notices, leaflets and newsletters as long as they are straightforward. I think that we will discuss that later.
This is also unnecessary. The provisions already allow local authorities to make representations before a direction is made requiring them to comply with the code. The 14 days does give them an opportunity to comply. Those representations could include a view from the auditor if the local authority wants it, but we would not require it. Taken as a whole, we do not consider the amendments necessary. I do not suppose that the noble Lord will be entirely reassured by what I have said but we have other amendments and we will no doubt consider them even further. I hope that from what I have said so far, the noble Lord will be happy to withdraw his amendment.
Lord Tope
My Lords, I am grateful to the noble Earl, Lord Lytton, for clearly supporting my amendments and putting his name to them. I am not entirely clear whether the noble Lord, Lord Beecham, was supporting them, grudgingly or not, but I am grateful to him for at least recognising my high wire act. I shall endeavour to remain on the wire. I am grateful to the Minister for at least a detailed reply on the amendments. To say that I am disappointed would imply that I had higher expectations in the first place. I am sad to say that I probably did not.
I was surprised at the Minister’s dismissal of the issue of the 14 days to 28 days notice, as 28 days is normal, good practice. It is hard to understand what is to be of such urgency that it can be dealt with under the 14-day notice but is so urgent that it cannot be dealt with in 28 days. I am surprised more than disappointed. The Minister will know that these provisions are causing widespread alarm, much of which I believe to be understandable but misplaced. I hope that in her further replies, which she herself said she will have to make, she will give greater reassurance on a number of the examples that I gave in moving the amendment—whether they are of the more standard publicity-type notices that local authorities issue, such as bank holiday recycling arrangements or notices about public health, or the rather more difficult ones concerning the third runway or HS2. I hope that we can get some reassurance on that.
A great majority of authorities cope within the voluntary code but we know that most local authorities are risk averse. They need to be and should be risk averse. They are advised by lawyers who are by nature risk averse. I fear that the consequences of what we are doing here will be far greater than even the Secretary of State intends. We will continue with this issue. I am quite certain that it will continue throughout the passage of the Bill. I hope that the Government will be willing not to dig in their heels but to look at how they can better and more specifically achieve their objectives than is currently the case. I beg leave to withdraw the amendment.
Baroness Hanham
Baroness Hanham
Baroness Hanham
Baroness Hanham
Baroness Hanham
“4B Power to make order requiring compliance with code
(1) The Secretary of State may by order made by statutory instrument impose a duty on all local authorities in England, or all local authorities in England of a specified description, to comply with a code issued under section 4 that applies to those authorities.
(2) An order under this section may impose a duty to comply with—
(a) one or more specified provisions of a code, or(b) all of the provisions of a specified code.(3) A order under this section may—
(a) specify the steps that an authority to which the duty applies must take to comply with it;(b) specify the time within which such an authority must comply with the duty.(4) The Secretary of State may make an order under this section which applies to an authority whether or not the Secretary of State thinks that the authority is complying with the code to which the order relates.
(5) An order under this section—
(a) may make different provision for different cases or classes of case, including different provision for different descriptions of local authority;(b) may make incidental, supplementary, consequential, transitional or transitory provision or savings.(6) A statutory instrument containing an order under this section may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.
(7) In this section “specified” means specified in an order under this section.”
Lord Beecham
“(3) In section 4 of the Local Government Act 1986 (codes of recommended practice as regards publicity) after subsection (8) insert—
“(9) In respect of the characteristics set out in section 4 of the Equality Act 2010, nothing in section 38 of the Local Audit and Accountability Act 2013 shall restrict the rights of authorities in pursuance of their obligations under section 149 of the Equalities Act 2010 to publish at any time factual material by way of correction or rebuttal of inaccurate statements which promote discrimination, harassment or promotes or constitutes other unlawful acts.””
Lord Beecham
My Lords, this amendment stems from concerns raised at a meeting of the all-party group inquiry into electoral conduct, to which I referred in Committee. Doubts have been expressed about whether it would be possible for local authorities at any time, but even during elections—perhaps especially then—to correct mis-statements of fact that could give rise to problems in relation to the Equality Act, such as racist or discriminatory statements that might apply to particular groups.
The noble Baroness said that she would look into this and write to me to clarify the position. I am grateful to her for doing that. She confirmed that it is permissible for local authorities to do exactly that, even during an election period, which is probably the most urgent time, provided that it is a factual statement. The purpose of the amendment is simply to allow the Minister to repeat for the record and Hansard the assurance that that is the position. That would be of some comfort to electoral officers and local authorities that might be confronted with this situation. Given some of the things that are being said up and down the country by various groups, it is likely that at some point local authorities will feel constrained to issue material of that kind, perhaps during an election period. It would be good to have that assurance on the record. I am extremely grateful to the noble Baroness and indeed to the Government for acknowledging that perhaps there was a doubt and for clearing it up so comprehensively.
Baroness Hanham
I am happy to confirm what I have written to the noble Lord and I will read it out. The publicity code explicitly provides for a local authority to correct or rebut misinformation, making explicit provision in the sections about objectivity and care during periods of heightened sensitivity. Moreover, it contains provisions about equality and diversity, specifically allowing local authority publicity to seek to influence the attitudes of local people or public behaviour in relation to matters including equality, diversity and community issues.
During an election period, for example, local authorities may publish factual material. A local authority should take care when issuing publicity and should not be issuing publicity that seeks to influence voters. However, this does not prevent an authority from fulfilling its role in seeking positively to influence people in terms of equality and diversity. Hence if there is disinformation in circulation promoting harassment, a local authority may take action to correct it at election time or indeed any other time. The provisions in the Bill do not change the contents of the publicity code that have been agreed by Parliament. Rather they give the Secretary of State the power to ensure that taxpayers’ money is not being wasted by local authorities by disregarding the publicity code. Nothing in the publicity code prevents local authorities addressing issues of discrimination or harassment and tackling them head on. No local authority can claim that the provisions in the Bill to tackle non-compliance with the publicity code prevent them complying with the Equality Act.
In short, this amendment is not necessary and I hope that, with the reassurance that I have given the noble Lord and what I have said in the House today, he will be willing to withdraw the amendment.
Lord Beecham
Indeed, I am, and I repeat my thanks to the Minister for making the position clear. Now it is on the record. I beg leave to withdraw the amendment.
Lord Beecham
Lord Beecham
My Lords, in the parallel universe occupied by the Secretary of State, Pulitzer prize-style municipal correspondents can no longer haunt the corridors of town halls, rigorously holding local authority leaders and councils to account. They have now been supplanted in his imagination by what he describes as “town hall Pravdas”. To adapt a phrase, it seems that the local authority devil wears Pravda. In so doing, the local civic newspapers disseminate propaganda at public expense.
As I have demonstrated, there is very little evidence to support any of that, still less that the effect has been damaging to the local media. On the contrary, local media have very consciously and over many years withdrawn from reporting local government. I remember in the early 1980s, when I was leader of Newcastle City Council, urging the BBC to appoint a local government correspondent. They had a very good reporter there who has now made a national reputation, Mr Michael Blastland, who covered local government and much else. That was rather unusual for a local television and radio station, but it was not by any means a full-time job and the idea did not seem to catch on.
Furthermore, at a later point, the local papers in Newcastle, the Journal and the Evening Chronicle—which, strange to say, my constituents and those of the noble Lord, Lord Shipley, when he was a councillor and leader of Newcastle City Council, were able to distinguish from the city council newspapers occasionally distributed, contrary to what the Government appear to think happens in the real world—apparently decided that they would reduce the amount of coverage of local affairs. They attended meetings and contacted members of the council, me and others, less frequently.
I raised the point with them and made it nationally as well. The Journal in Newcastle, the morning newspaper, said that it had conducted a survey and its readers were not interested in local affairs. Therefore, it ceased to be to any extent a paper of record, which is what good newspapers ought to be. It did this not because of competition from half a dozen issues of Newcastle City News but because, in its judgment, the readers were not interested. Some of us like to think that the virtue of local media is that they seek to educate and inform the local community. They have abdicated that responsibility; they have done it of their own volition and it is ridiculous to suggest that that has been caused by local authorities.
The conflation of a variety of issues that have been adduced to support the Government’s position on the whole issue of a code of publicity is entirely unconvincing. There is no significant cost to local authorities. There is no evidence, as I have already reported, via the National Union of Journalists, that it has had an impact on the circulation of local papers and the decline of revenue. On the contrary, there are many other explanations, which I will not rehearse again. As for the other main argument, that there is a danger of political abuse by some of these papers advocating a party line or support of the authority in control of the local council, of course that can and should be dealt with without a code, because it would be unlawful as matters stand to conduct propaganda in that way.
We have debated at considerable length the role of the auditors. The auditors have a responsibility in this and other matters. They are entitled to look at whether council expenditure, in the area of publicity, for example, is lawful and appropriate. In addition, there are other sanctions that can be applied, including, in extremis I suppose, judicial review. Therefore, both props of the Government’s case fail. It is not necessary to emulate the man on the wire to deal with these matters. It is simply the case that the Government are overreaching themselves.
I have to comment on the hypocrisy of a Government who allow, possibly promote, their Civil Service spokesman to make statements using the personal pronoun. Therefore, government spokesmen—not Ministers, or even MPs or Peers—in the form, presumably, of press officers or civil servants are all too often quoted as saying, “We are taking action on it”. It might be on welfare benefits or whatever. That is a politicisation of the Civil Service that is a step too far. It happens all too regularly. I do not say that it did not happen under the previous Government. I cannot recall such events, but it may still have happened. Under any Government, it is wrong for that to happen. If that were to happen in local government, there would be a legitimate outcry. It would be quite wrong for a chief executive or an officer of an authority to use the personal pronoun on a political issue, as opposed to saying that it is the council’s policy.
In addition to all the other grievous sins of omission and commission that the Government commit in this area, this is something that they ought to look at on their own account before they descend on local authorities in the way that they propose in the Bill. Again, I remind your Lordships that the draft Bill committee was given no opportunity whatever to discuss matters of this importance. It is not surprising that the Local Government Association is completely united across the political divide about this, hence my amendment opposes that the clause should stand part.
Baroness Hanham
My Lords, the trouble with clause stand part debates is that they tend to come after everything else has been said. The danger is that one says it all over again. As I said, three groups of amendments have all covered more or less the same ground. I must ask the Chamber to forgive me if I cover some things that have already been said. It is clear that the Government do not see the situation in quite the same way as the noble Lord, Lord Beecham, has laid out tonight, nor as the Local Government Association has seen it in wanting all these provisions removed. We do not believe that should happen. We accept, as I said, that the great majority of local authorities will never breach the code. They will always do, and be guided by, the right thing.
I shall not say which local authorities we already know are breaching the code. I have them. I could do it, but I think it is probably not helpful. I hope noble Lords will accept my assurance that at least a dozen are breaching it at the moment. Either they are publishing publications, very frequently, outside the terms, or they are including propaganda or their own political statements. It is there and it is wrong; that is not what was meant to happen. As I say, with legislation the opportunity comes to try to put that right. Once again, it is putting it right for a minority—I totally accept that—but put it right we must. The Secretary of State is not taking very draconian powers. If the Secretary of State would have to put a broad direction out to a whole lot of authorities, we would be very worried about what local authorities were doing. That provision is there in case it is needed, but we are much more concerned at the moment about the individual authorities doing individual transgressions.
There are two elements of this, as I have said right from the outset. The provisions are necessary to make sure that taxpayers’ money is not abused; to see that local authorities produce publicity, not propaganda; and to ensure that local newspapers—which the noble Lord, Lord Beecham, slightly downgrades—hold local government to account. They are often full of what is going on; they are the proper means by which that should be done. The provisions do not change the publicity code itself; the guidance remains the same, allowing local authorities to communicate effectively with their communities. However, the clause provides the Secretary of State with the power to direct one or more authorities, as I have said. The clause also sets out the procedure to be followed, as we discussed—14 days’ notice in writing—and provides for a direction to be modified or withdrawn in writing.
Lord Beecham
I thank the Minister for her reply, of course, but I simply do not recognise the world she describes. I am in my 47th year as a councillor in Newcastle and have seen very successful journalists, now on the national stage, cutting their teeth as municipal correspondents on both the morning and evening papers in Newcastle. I have seen them coming to council and committee meetings and telephoning and speaking to members of the council, leaders and opposition leaders over the years. There was then a gradual decline, from about the late 1980s. Journalists now very rarely attend council meetings and hardly ever attend a scrutiny meeting—a function that ought to be made more of in local government and in the local media. As I understand it, they rarely contact officeholders.
We all agree that the local broadcast and print media should be informing people and helping to hold local government, and indeed other public organs, to account. However, the fact is that they are not doing it and they are not doing it because they are facing a cyclical decline as they are overtaken by other forms of media, to which I fear most of us are contributing these days on our BlackBerrys or iPads. The world has moved on, which is unfortunate, and it seems entirely wrong that the Government should seek to restrict what councils themselves can do to explain what is happening to their communities in the way that is being described. It would of course be wrong for them to use these publications for political purposes; as I have already indicated, that can and ought to be dealt with under existing audit procedures or otherwise. However, it is clear that the Government are not going to move on this—the entire Government, as the coalition partners are unfortunately united—and, in that case, there is no prospect of this amendment carrying. I therefore beg leave to withdraw it.
Lord Beecham
Lord Beecham
My Lords, this amendment refers to the Government’s proposal—which, again, was not subjected to scrutiny by the draft Bill committee—to introduce, effectively, an element of retrospection into the question of whether a referendum should be held. The Bill affects councils that have set council taxes for 2013-14 that would have been excessive if the clause becomes law, by virtue of the change that the Government are imposing in relation to levies by other organisations. Fortunately, it turns out that only a small number of authorities would be affected by the Government’s proposals. Those authorities are Wandsworth—an authority well known to the noble Baroness and other noble Lords—Bolton, Bury, Manchester, Oldham, Rochdale, Stockport and Tameside. There is clearly a clutch around the Greater Manchester area, which presumably relates to some joint organisation in that area which collects a levy. Why Wandsworth should be affected, I really cannot say, although that does not really matter.
In Committee, the Minister indicated that councils had been notified by, I think, 31 January, that this might happen. However, that is a very late stage in the budget-making process, and it would have been very difficult at that stage to have reduced their council tax to the level which, if the Government were to apply the new rules, would have been operative. I repeat that the problem is not about the council’s own budget, it is about the levy imposed by other organisations. Had it been a precepting authority, the precepting authority itself could have had to call and finance a referendum on its own budget.
Many of us are extremely unhappy about the whole concept of these compulsory referendums, which of course do not apply when the Government increase taxes, with a considerably greater effect on the household budget than a corresponding increase in council tax. A 2% VAT increase takes a lot more out of people’s pockets than a 2%, or even slightly higher, council tax increase. Be that as it may, the effect is curiously different between a levying body and a precepting body; a levying body simply passes the cost on. The total amount of money is not enormous and would seem to amount to some £7.3 million. If the councils had been able to reduce their council tax to match the levy that they have had to impose, that would have been the cost to them, to be taken out of services. Nevertheless, it is a significant encroachment and, of course, if that were now to trigger a referendum—because the referendum limit becomes lower in future and councils may feel that they have to go for one—the cost of that, across these authorities, is likely to be pretty much the amount of the total levy across all those authorities. It is a bizarre situation. Given that it is now clear that it applies only to a very small number of authorities, in one particular cluster—in what, by the look of it, must be the special circumstances of Greater Manchester—I hope that the Government will reconsider this matter.
I suppose the Government do not have to apply the provisions of the Bill. If they do not want to amend the Bill and they want to reserve the power, so be it, but I strongly urge the Minister to think again about imposing this. It is wrong in principle, and it is an unnecessary reaction to what turns out in any event to have been a pretty small problem in terms of the number of authorities and the cash affected. It would be a statesmanlike move on the part of the Government to accept that perhaps, in the circumstances, they rather overreacted, fearing worse than has actually transpired, and to indicate that at the very least they would reconsider whether to proceed with the implementation of the clause, if they insist on its standing part of the Bill. I beg to move.
Lord Shipley
My Lords, I speak in support of Amendment 43, and will be brief. I agree with the noble Lord, Lord Beecham. I think it is bad policy to backdate the definition of an excessive council tax rise so that it includes a levy from April 2013. I understand that in January this year letters were sent out to local authorities suggesting that the Government might take this course of action. I will say two things about that. The first is that it is simply not enough notice. Council tax-setting takes much longer than just a few weeks. There is a requirement that council tax is effectively set by the beginning of March, so that bills can be sent out. In my view, given the lengthy periods of consultation that local authorities are required to undertake, a period of six months would have been more reasonable.
My second reason for objecting to the Bill as it stands is that one should have respect for the law at the time at which the law is applied. I believe that councils and levying authorities abided by the law at the time. As the noble Lord, Lord Beecham, quite rightly pointed out, it is a comparatively small problem. Retrospective change, whether or not there was a warning, seems to me to be wrong in principle, and should therefore be resisted. The noble Lord, Lord Beecham, said that he felt that the Government were overreacting. I concur with that, because I believe that it is an overreaction to backdate in the way the Government propose.
The Earl of Lytton
My Lords, since my name is to Amendment 43, I would like to voice my support for the point that has just been made, and was also made by the noble Lord, Lord Beecham, about the undesirability of retrospection. Notwithstanding the comments made by the Minister at a previous stage of the Bill, there is no question in my mind that Clause 39(15) and (16) are, beyond peradventure, retroactive in their effects. Apart from the self-evident difficulties that that will create within the continuum of local government finance, one supposes that there must be some reason why this has been put in the Bill. I would like to inquire what that reason is, because to date we seem to have had reassurance that there is no intention that this should be retrospective. I do not wish to work out how many angels dance on the head of a pin between retrospection and retroactivity, but I prefer the term “retroactive”.
It seems to me that this is almost calculatedly destabilising, and I cannot believe that that was really the intention. It seems to me that there is a necessity for some further words of qualification, so that the clause is targeted at whichever particular issue needs it, and it is not capable of any sort of generic destabilisation of previous years of local government finance settled business, or what should be settled business. I hope the noble Baroness will be able to give an explanation.
Baroness Hanham
My Lords, Amendments 42 and 43 would remove subsections (15) and (16) from Clause 39. Amendment 45 allows for transitional provisions to be made in respect of previous arrangements or contracts entered into prior to 2013-14. As noble Lords have said, subsections (15) and (16) are not linked and they fulfil different purposes. However, I understand that the noble Lord, Lord Tope, originally tabled these to address a single concern, although he has not spoken tonight. It was made clear in Committee by the noble Lord, Lord Tope, and now the noble Lords, Lord Beecham and Lord Shipley, that Clause 39 and subsection (15) in particular have a retrospective effect, and that the clause would be impractical and councils would have insufficient time to take account of the changes.
With respect to the noble Lord, Lord Shipley, I must restate the Government’s disagreement with this view. Neither the clause nor subsection (15) is retrospective. They do not interfere with the council tax and levies set last year. Those increases have been made and are in authorities’ tax base for future years.
Subsection (15) simply allows the Secretary of State—should he so choose—to set a referendum principle for 2014-15 focusing on authorities where the council tax, including levies, increased by a large amount in 2013-14. The Secretary of State will consider whether he wishes to do this later in the year as part of the usual round of principle-setting. Authorities and levying bodies will have an opportunity to make representations on principles, which will be put to the other place for approval.
Furthermore, authorities will have the opportunity to set an overall increase in council tax and levies in excess of the principles, making the case to the local population in a referendum if that is where they need to go. If noble Lords work it out—as I think the noble Lord, Lord Beecham, has done—they will find that very few authorities are likely to be affected because the combination of the levies and the council tax potentially gives a bigger pot for the percentage increase.
The approach proposed in the clause is entirely consistent with previous and current practice. Perhaps I may go back to the unhappy word of capping. As part of the setting referendum principles, the Secretary of State considers all relevant factors. These always include council tax decisions taken by authorities in previous years. It is worth highlighting that 2012-13 and 2014-15 have been the only two years since the 1980s when levies have not been part of excessiveness considerations. We are simply reverting to the definition of excessiveness used by successive Governments from 1984 to 2010. This approach resulted in some smaller authorities with a history of lower council tax being set more generous referendum principles in 2013-14. No one accused the Government of taking retrospective action when they took this approach.
The possibility of the Secretary of State setting specific principles for those authorities where substantial levy increases resulted in substantially higher bills in 2013-14 should come as no surprise to them. His speech to the New Local Government Network and his Written Statement of 30 January 2013, and letters to all authorities, could have left them in no doubt as to the possibility. Council tax and levies for 2013-14 were set in full knowledge of the Government’s intention for 2014-15—that is, a year later on.
The Government have been clear from day one that council tax payers should be protected from excessive increases, and this clause will extend that protection. It will also increase fairness for local authorities by ensuring that all the money raised through council tax is potentially subject to a referendum if it is in excess of the principles. At present, there are areas where more than 50% of the local council tax bill is made up of levies and is therefore not subject to a referendum.
The legislation is not retrospective. We have been clear about what the situation is since January this year. Existing legislation already gives powers to the Secretary of State to determine different categories of authority, so the measures will not necessarily be across the piece.
Amendment 43 would remove subsection (16) from the clause. It may be helpful for me to explain the purpose of that subsection, which is not, as noble Lords have already admitted, directly linked in purpose with subsection (15). To be able to determine whether an excessive increase has been set in 2014-15, all authorities will need to make a like-for-like comparison between the council tax in 2014-15 and that set in the previous year. The principles will be based on an amount including levies in the next year, so the removal of the provision would not be helpful for many local authorities. It would mean that their previous year’s relevant basic amount of council tax would be at a much lower level than that of the subsequent year, against which it was being compared. Subsection (16) simply means that the 2014-15 figure can be compared with the one for 2013-14, which includes the levies that were set for that year. Without subsection (16), authorities would be effectively required to compare apples with pears, and the whole clause would be unworkable. I am sure that that was not the noble Lord’s intention.
The Government have been entirely open with authorities about their intention to bring levies within the scope of the referendum legislation and to take into consideration the previous increases when setting future referendum principles. A Statement approving the referendum principles for 2013-14 was laid in the other place on 13 February—so between January and February plenty of notice was given. Amendment 43 would undermine the Government’s commitment to protect council tax payers and prevent all authorities and levying bodies being subject to the same kinds of accountability and financial discipline. In view of the comments that I have made, I hope that the noble Lord will not press the amendment.
Amendment 45 replicates one which was proposed in Committee, so I shall expand on the response that I made then. The issue here is city deals and the levies that are envisaged by combined authorities in future years following the agreement between the Government and local authorities, particularly in West Yorkshire. The city deal implementation plan agreed between government and the Leeds City Region included the following summary text:
“Leeds City Region will establish a £1bn West Yorkshire … Transport Fund overseen by the new Combined Authority. The Fund will be financed by a levy that the Combined Authority will place on individual councils”.
In Committee, the noble Lord, Lord Tope, read into the record an e-mail from the director of finance at Bradford Metropolitan District Council. Bradford’s contribution to the city deal is funded by a £1.2 million increase to its levy each year.
We have looked at these figures carefully. These levy amounts would produce a council tax increase in Bradford of 0.7% in 2014-15, falling to 0.5% by 2023-24. We have also established that similar percentage figures apply across authorities in West Yorkshire. There is therefore no need for any transitional or other provisions to be made for contracts already entered into, as the levies envisaged by the authorities in the Leeds city deal area are substantially below the current 2% referendum threshold. I therefore hope that the noble Lord is willing to withdraw his amendment.
Lord Beecham
My Lords, it comes to this, it seems to me: you have a system which takes no account of levies, you change that system weeks before the statutory date for the budget so that the levy in that year can be taken into account in settling a referendum limit for the following year—and yet that is not considered retrospective. I seem to speak a different language from the Minister and the Government, and the dictionary speaks a different language as well. It is simply a semantic quibble to say that it is not retrospective.
It is a complicated matter for authorities. The noble Baroness referred to the city deal in West Yorkshire. This was entered into months before the budget. The Minister, with respect, rather airily dismisses the impact of the potential application of the principle in terms of the referendum limit. She quoted Bradford. Leeds is the largest authority in the area. It will gradually build up a contribution until it reaches £15.5 million. That represents a council tax increase of 0.2%, then 1% in 2015-16 and 0.7% per annum right up to 2022-23; 0.7% is a third of the referendum increase threshold. That is quite a substantial chunk, given the pressures that we all know are—and will continue to be—visited on local authorities, as envisaged by the LGA. The Minister’s successor by one or two as leader of Kensington and Chelsea is, of course, the LGA’s chair. As a percentage it does not sound large, but as a percentage of what is committed by way of an increase, it is very large; and that is in the case of a group of authorities of roughly comparable size, function and budget.
It gets worse than that if, for example, one looks at the position of the Lee Valley Park area. This runs along the Lee Valley, through east London and the Hertfordshire-Essex border. It gets its money from 32 London boroughs, the Corporation of London—which will probably not miss a few bob here or there—Hertfordshire County Council, Essex County Council and Thurrock unitary authority. So there is a vast number of authorities there, not all of which are represented on the board.
In fact, the riparian authorities are limited to Essex, Hertfordshire and other councils and only one member from six of the London boroughs—whereas the total cost is met by 32 London boroughs. Two of their representatives sitting in this Chamber tonight can confirm that. So here is a levying body which individual authorities cannot really influence, yet what it does will have an impact on their referendum.
That is objectionable in principle, but I urge the Government to realise, particularly in relation to the levies that accrue as a result of a deal entered into by the Government—the city deal proposal—that a transitional arrangement would be desirable. I hope that the Government will revisit that. They may not need legislation to do it—I would not imagine that they would—but I hope that they will look at this again. It seems unfair that an arrangement with the Government could precipitate difficulties of that kind. However, in the light of tonight’s debate, I beg leave to withdraw the amendment.
Finance Bill
(11 years, 5 months ago)
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The Commercial Secretary to the Treasury (Lord Deighton)
As noble Lords are aware, this Government came to power in the midst of an economic crisis and inherited the largest deficit in our peacetime history. Since then, the Government have taken resolute action to deal with our debts and get the economy moving again. The Finance Bill before us represents the latest stage in those plans by legislating for measures to deal with the deficit, to encourage economic growth and support businesses of all sizes and to create a fairer and more efficient tax system.
I turn first to growth and competitiveness. The Government have set out our ambition to have the most competitive tax system in the G20. We have already made significant progress towards that goal. In 2013, the main rate of corporation tax will be 23%, far lower than the uncompetitive 28% rate that we inherited. However, we want to do more to relieve the tax burden on business. Clauses 4 and 6 will reduce the main rate of corporation tax to 21% from April 2014, and to 20% from April 2015—the joint lowest rate in the G20, and lower than any comparable EU member state.
It was also announced in Budget 2013 that once the main rate has fallen to 20%, it will be unified with the small profits rate to create a single headline rate of corporation tax—simplifying the system. These changes have been widely welcomed by business groups such as the Confederation of British Industry and the British Chambers of Commerce, but competitiveness is not only about the corporation tax rate. The Government are also supporting the innovative sectors that will drive future economic growth.
Clause 7 and Schedule 1 increase the annual investment allowance from £25,000 to £250,000 for two years from April 2013. That will provide additional, time-limited support for businesses investing in plant and machinery, and will particularly benefit small and medium-sized firms. Clause 34 introduces a new, more generous above-the-line tax credit for large companies’ R&D expenditure, providing more visible and more certain relief to those companies engaged in ground-breaking research in the UK. Clause 35 introduces new tax reliefs to support the UK’s creative economy, including animation and high-end TV. Those will be among the most effective reliefs available anywhere in the world. As John Cridland, Director-General of the CBI, said:
“Providing further support for our world-beating creative industries … and increasing the rate of the above the line R&D tax credit will … have a material impact on some of the most important sectors of the UK economy”.
Creating a competitive tax system goes hand in hand with making sure that companies and individuals pay the taxes they owe. That is why this Finance Bill includes significant new measures to tackle tax avoidance by the small minority of individuals and businesses who are not willing to pay their fair share. I know that this is an area in which noble Lords have shown great interest.
Clauses 203 to 212 and Schedule 41 establish the UK’s first general anti-abuse rule, or GAAR. That is a major new development in UK tax law, and will provide HMRC with an important new tool to tackle abusive tax avoidance. It sends a clear message to those who create and promote abusive tax avoidance schemes that their activities will not be tolerated.
We are also strengthening the disclosure of tax-avoidance schemes—or DOTAS—regime. DOTAS has already been highly successful, with more than 2,000 tax avoidance schemes being disclosed to HMRC since its introduction in 2004. This Finance Bill will further improve the information that promoters of tax-avoidance schemes have to provide about the use of their schemes, making DOTAS an even more effective tool.
The Government will also continue to introduce anti-avoidance rules to address specific types of avoidance in areas of the tax system. This Finance Bill includes legislation to close 15 loopholes which have been used to avoid tax.
Taken together, those measures will raise tax revenues by almost £2 billion up to 2017-18, as well as protecting future revenues. Noble Lords will also be aware that the Government have been at the forefront of international efforts to strengthen tax standards and tackle avoidance by multinational companies. The OECD will present its action plan for tackling base erosion and profit shifting to the G20 in July.
Tackling tax avoidance is an important part of delivering a tax system that is fair. There is, however, more to fairness than tackling avoidance. This Government recognise the financial pressures that many families are currently experiencing and are determined that hard-working families should be able to keep more of the money they earn. That is why this Government have set an ambition for the personal allowance to increase to £10,000 by the end of this Parliament—an ambition which will in fact be reached one year early, in April 2014. Clause 2 takes an important step towards that ambition, by setting the value of the personal allowance at £9,440 from April this year. This is the largest ever cash increase in the personal allowance, and represents a tax cut for 24 million people. It will save a typical basic-rate taxpayer £267 a year.
This Finance Bill also takes action to ensure that the wealthiest members of society make a fair contribution. It introduces a new annual charge on enveloped dwellings to ensure that owners of high-value properties cannot avoid paying their fair share of tax by placing their property in a corporate envelope.
The Bill legislates for a new cap on certain unlimited tax reliefs from this April to curtail excessive use of these reliefs by high-income individuals who want to reduce their tax bills. The cap will be set at £50,000 or 25% of a person's income, whichever is the greater, ensuring that these reliefs cannot be exploited unfairly.
The Bill reduces the pensions tax relief lifetime and annual allowances to £1,250,000 and £40,000 respectively. This will limit the amount of relief available to the top 2% of pension savers and curb the growing cost of pensions tax relief, which has doubled in the decade since 2001.
By rewarding work and ensuring that reliefs are properly targeted, this is a Finance Bill that delivers a fairer tax system. The Government are committed to greater consultation on tax policy changes. Most of the measures in the Bill were announced at Budget 2012 and have been subject to extensive consultation. We published more than 400 pages of draft legislation for comment in December, and received more than 400 responses. This consultation has ensured better legislation with fewer changes required. I take this opportunity to thank the noble Lord, Lord MacGregor, and noble Lords on the Economic Affairs Committee for their detailed examination of the draft Finance Bill and the thoughtful and constructive comments in the report before us today.
To conclude, the Bill sets out measures to improve our competitiveness, tackle tax avoidance, and help hard-working families and businesses. It builds on the progress that the Government have already made to deal with the enormous debts we inherited and get the economy moving again. The underlying damage to our economy has turned out to be greater, and the road to recovery longer, than anyone had thought. We are, however, on the right path. I commend the Bill to the House.
Lord MacGregor of Pulham Market
My Lords, I am very pleased to introduce the report of the sub-committee of the Economic Affairs Committee on the draft Finance Bill 2013. In the time available, it is right that I should focus not on the Finance Bill as a whole, tempted though I am to do so, but on our report, much of which is technical but none the less important for that. Indeed, my noble friend has referred to the three measures already.
As always, we had to work at speed. I am grateful to our witnesses, professional and official, to Bill Sinton, our committee clerk, and his team, and to our special advisers Trevor Evans and Tony Orhnial, who served us well in previous years and have done so again, not least because of their expert knowledge and experience of HMRC and Finance Bills. I should also like to thank my fellow members of the sub-committee for their knowledge and wisdom, their objective approach and their speedy and intensive work.
I particularly want to emphasise an important and, as it turned out, for us valuable change this year, to which my noble friend has just referred. In December 2010, the Government introduced a new approach to tax policy-making which set out a number of stages at which consultation should be undertaken. It involved a draft of the Finance Bill being published in December, some three months before it was laid before Parliament. This was a very welcome change from many points of view, not least the work of the sub-committee. In previous years, we could start our work only after the Finance Bill had been published. Therefore, we had to work in great haste to have any influence at all on the debates in the other place. Inevitably it was always late in the day. However, outside commentators, including most chartered accountancy and taxation bodies and one former Treasury Minister, had frequently alluded to the expertise in our committee and the more useful role it could perform.
Consequent to this new approach, this House revised the terms of reference of the sub-committee so that it could start its work earlier in the year and examine the provisions of the draft Finance Bill. The draft Finance Bill was published in December 2012 and we began our inquiry in January 2013. Starting earlier provided us with the opportunity to influence the content of the Finance Bill as published, as well as the Committee stage debates in the House of Commons.
Not least because of the shortage of time, the sub-committee has to focus and this year it examined three topics concerned with the avoidance of tax: the general anti-abuse rule, or GAAR; the annual residential property tax, later renamed the annual tax on enveloped dwellings; and the cap on the availability of certain reliefs. I can touch on only some of the main points.
The sub-committee devoted the majority of its time to the general anti-abuse rule, which is a radical approach to countering the avoidance of tax. The GAAR is narrowly targeted at abusive transactions that fail a stringent “double reasonableness” test; the provisions also include the formation of an advisory panel to agree guidance and give its opinion on the application of the double reasonableness test to a given set of tax arrangements. It followed the recommendations of what became known as the Aaronson study.
Our report considered the narrow GAAR a “reasonable starting point” but recommended a wider post-implementation review after five years, which would look in particular at how the double reasonableness test had been applied in practice, and its deterrent effect. We thought it important that it be made clear to the press and the wider public that the GAAR would not apply to structural issues involving the taxation of multinational groups. These have to be dealt with by reviewing the international tax rules in fora such as the G8, the G20, the OECD and the EU. We argued that the Government need to communicate much more clearly what the GAAR can and cannot achieve.
Since we published our report in March, there has been a huge amount of publicity and debate in Parliament and the press about corporate tax avoidance among multinational companies, with the spotlight on Google, Starbucks and Amazon—not least from the Public Accounts Committee in the other place. Of course, we welcomed—and our report argued for—the lead given by the Prime Minister and the British Government at the recent G8 summit and the decisions taken there. It is important to recognise that the GAAR is only a small part of that and the two are in many ways separate.
I should add that having dealt with Scottish independence, in the spring our main committee embarked on a new topic: “Taxing Corporations in a Global Economy: Is a New Approach Needed?”. This does cover these wider issues and we hope to complete our report before the Summer Recess.
We agreed with our witnesses on the importance of guidance from HMRC and the advisory panel on how the GAAR would apply to particular transactions. We recognised that progress was being made in drafting this guidance but we remained concerned that our witnesses felt that it was far from acceptable as it stood at the time of our inquiry. We thought it important for the guidance to include as many examples as possible, illustrating up-to-date arrangements on both sides of the boundary between abusive and non-abusive.
We also thought it important for the advisory panel to have a balance of views and we recommended that the opinions of the panel on whether proposed tax planning schemes are caught by the GAAR should be publicised so that taxpayers can see how the GAAR is being applied. There were also concerns about the application of the GAAR to inheritance tax planning transactions, and a specific concern concerning the imposition of the charge where adjustments arose from the application of the GAAR.
The Finance Bill as published on 28 March was redrafted to deal with the point concerning the imposition of the charge and we were pleased to see this. The finalised guidance was published on 15 April and had been very substantially redrafted, consistent with the recommendations in our report. There was specific recognition that the GAAR could not apply to most structural international tax planning, and the number of examples had doubled, including an increase in the number of inheritance tax examples.
In the Commons debate on the GAAR, our report was quoted with approval. The Opposition had tabled an amendment to require a post-implementation review after two years. I have ploughed through all the Hansards of the Commons in relation to these issues and have noted the number of times that our report was commented on. The Government rejected the requirement to have a post-implementation review after two years, arguing that a two-year period was too short. We agree with this. However, while we welcome the Government’s acceptance that the operation of the GAAR will need to be monitored carefully, we continue to believe it necessary to set a timeframe for such a review, notwithstanding the difficulties that the Exchequer Secretary highlighted at Report stage in the Commons. Our report had suggested five years and we recommend that with a change as important as this the Government should commit themselves to a post-implementation review around the five-year point.
The application of the GAAR to the sorts of multinational company tax-planning issues to which I have referred was raised by several Members of Parliament. The tendency to promote the GAAR as a panacea for dealing with the problem of tax avoidance was deplored and we agree with that. “The valuable scrutiny” of the Bill provided by our report was commended. Building on this, the need for the taxation of multinational groups to be tackled in international fora was discussed in the debate on the GAAR and other clauses, including at Report stage. As we know, at the G8 summit the Prime Minister and other G8 leaders set the ball rolling by asking the OECD to draft a template for multinational companies to report the tax that they pay in each of the jurisdictions in which they operate.
It is important that this first step is treated as urgent and that the momentum achieved at the G8 is maintained. We argued for that in our report. The need for the advisory panel to have a wide balance of views was discussed in the Commons debates and the Exchequer Secretary assured the House that the panel would be broadly based and have commercial expertise to provide reassurance that the GAAR would not be abused, with too much power being placed in the hands of a part of the Executive. We welcome that too.
The annual tax on enveloped dwellings is part of a package of measures to address stamp duty land tax avoidance by using companies to buy expensive residential properties, a practice known as “enveloping”. We agreed with our witnesses that the Government’s proposals might have been more appropriately designed had they consulted interested parties at the outset, but we recognised that once consultation was under way, the Government responded to the need to exempt certain businesses and other organisations.
We remained concerned about the relief for farm houses and thought that this needed further work. We shared the concern of witnesses about the practical workability of this tax and encouraged HMRC to set out in detail how it would implement the provisions and we recommended a review of its operation after three years. We thought that further work was needed on the capital gains charges on de-enveloping properties. We agreed with a widespread concern about whether the problem that the legislation sought to address justified its length and complexity.
The Finance Bill as published responded to the need for further work on the relief for farm houses and the two clauses implementing this were substantially redrafted. Our concerns around the length and complexity of the legislation were not alleviated by what appeared in the Finance Bill as published. Much of Part 3 of the Bill is devoted to this particular tax. Some 107 pages involving 84 clauses and four schedules is hardly tax simplification.
Finally, on the cap on income tax reliefs, our report expressed concern about the potentially adverse effects of limiting relief for genuine trading losses and recommended a review of the potential impact of this measure in time to inform the Finance Bill debates in the House of Commons. It was disappointing that the Government did not respond to this recommendation. However, the measure’s impact on businesses, particularly smaller ones, was raised in the debates in the Commons. We continue to believe that it is important to monitor carefully the potential disadvantage to small businesses of restricting relief for genuine trading and other losses so that remedial steps can be taken if this proves to be a problem.
In conclusion, we were gratified by the extent to which the recommendations in our report were acted on by the Government and also informed the Finance Bill debates in the Commons. We continue to believe it important that the effect of these measures is assessed by way of systematic and independent post-implementation reviews. It is our view that a commitment to carry out post-implementation reviews is as important as the Government’s very welcome commitment in their new approach to tax policy-making to consult on the design and implementation of a measure.
To sum up, I believe that the new system overall has proved its worth and that it makes even more relevant the work of the sub-committee on Finance Bills of the Economic Affairs Committee in that it enables much wider debate and consultation with all the many relevant companies, private sector experts and tax and accountancy committees, not least through the medium of our committee, and it gives the House the opportunity to make recommendations to the other place in a timely manner, not, as in the past, rather late in the day. I commend our report to the House.
Lord Wakeham
My Lords, my noble friend Lord MacGregor has said in his usual clear way virtually all that needs to be said about our report, so I want to add very little. I would like to reflect for a few minutes on the process by which Parliament approves Finance Bills and how it has changed over the years. I have been involved in Finance Bills, year by year, for some 40 years, sometimes as a Minister in the Treasury, sometimes in opposition and sometimes as a Back-Bench supporter of the Government. In some ways things have improved and in some ways they have not, but there really is nothing more important in the parliamentary year than the granting of supply to the Government.
Many years ago, when I had some responsibility for these matters, one of the things that I tried to get agreement to was two annual finance Bills, one at this time of year dealing with rates of tax and major matters and one in the autumn to deal with technical and other smaller matters that otherwise get crowded out. For a number of reasons we were never able to get agreement to that and I do not think it has been pursued since, but it is an improvement that ought to be reconsidered. As a result, the passage of the Finance Bill is done mainly in a bit of a rush just before we rise for the summer.
The big change this year is that we have a draft Bill, which is an excellent innovation. The Minister has given us a good account of it and I congratulate him on what he said. What has also changed substantially in those 40 years is the ministerial representation in the House of Lords. For many years, under both Governments, we did not have a Treasury Minister in the House. That has now changed, and very good Ministers they have been, but quite often we did not have one.
I recall one instance when I was Leader of the House, when a Minister not in the Treasury made a very good speech from the Dispatch Box introducing the Finance Bill. Something made me ask to see the briefing that he had received from the Treasury, and it was an absolute disgrace—I was appalled. I put it in a brown paper bag and sent it to the Permanent Secretary, saying, “If you think this is the briefing a Minister in the Lords should be given to introduce your Finance Bill, it’s not my idea”. I got a very good letter of apology from him and I think that things have improved since, although of course now we also have Ministers who are able to look after themselves. Still, I hope that the message was received loud and clear in the Treasury that in this House there are many noble Lords who are more experienced than many Members of the House of Commons, and that that experience ought to be used.
Finance Bills are not always treated on their merits; sometimes they get caught up in a wider debate. For instance, a good many years ago the Opposition thought that a Conservative Government—this is strange, really—were about to bring in a Bill to change the trade union levy to opting in and not opting out. We were told that if this was true, their opposition to the Finance Bill would know no limits. I was government Chief Whip at the time and I knew this not to be true. I eventually managed to persuade the Opposition that it was not true, and the then opposition Chief Whip claimed credit for the whole thing. He had persuaded the Government not to go ahead with their proposal, but he had to agree to give us the Finance Bill in, I believe, one week, which was the object of the exercise in the first place. It was a great victory for their wonderful Chief Whip. The concession was given. The whole purpose of the exercise was to get a very difficult and dispirited Opposition into some sort of order and disciplined enough to pass the Finance Bill, with proper scrutiny but no filibustering, and to get both Houses up before the Summer Recess. I will not mention the name of the opposition Chief Whip but those sitting on the opposition Front Bench know exactly who I am talking about—a great man.
Some things change and some stay the same. One thing that has changed, of course, has been the Economic Affairs Select Committee sub-committee of this House that considers the Finance Bill. That has not always been easy. Gordon Brown, when he was Chancellor, strongly disapproved of it and did what he could to get rid of us because he did not approve of the House of Lords having any say on taxation matters. He was quite wrong. The House of Lords, of course, has an absolute right to discuss and debate Finance Bills in any way it wishes. What we do not have the right to do is to amend or delay them. The terms of reference under which the sub-committee operates are a self-denying ordinance that we, as the House of Lords, have imposed on the sub-committee, which we could change if we wanted to. In fact, I see no particular need to do so.
This year we considered, as my noble friend said, a draft Finance Bill under his excellent chairmanship, and we have done a very good job in a totally non-partisan way. We made a number of practical suggestions, which have found their way into the Finance Bill. They are sensible and often detailed suggestions that will make the legislation work better. One part of our work that I find particularly valuable is the hearing of evidence from experienced practitioners, who make mostly useful suggestions to us on how the legislation can be worked, with plenty of emphasis on the difficulties.
This year our deliberations on the so-called GAAR—the general anti-abuse rule—were especially important. We thought that the Government were right to bring this in, but it was never going to be able to solve all the problems of what we now call aggressive tax avoidance. We explain ourselves in some detail in our report, but I will make a further suggestion to HMRC to tackle these matters. Each new rule sets off clever people to think of ways to avoid it, and the more specific the rule, in some ways the easier it is to find a way around it. I was brought up in a different age, when “true and fair” were the watchwords. In a way, the GAAR seeks to replace them. However, the more we can relate our taxation, and particularly tax planning, so that the taxpayer is under an obligation to demonstrate that the records of the enterprise to be taxed show a “true and fair” view of what has been going on, the sooner aggressive tax avoidance will become yesterday’s problem. Years ago, in the Ramsay case in the House of Lords, which was a very special case, the courts gave a very clear signal that they would support that straightforward way of looking at things. The Government have certainly made a start in these matters, but there is still a long way to go.
Baroness Kramer
My Lords, it will surprise no one that, in my mind, the most significant measure in this Finance Bill is the lifting of the tax threshold to £9,440, shortly to rise to £10,000. More than 23 million people are now paying £700 a year less in tax—that is cash in their pocket—and 3 million of the lowest paid are out of income tax altogether. It has led to a fairer society. I was very pleased to read the ONS study, which named this as one of the key elements in income now being shared more equally between households than at any time since 1986. That is a very significant achievement.
I was also exceedingly pleased by the change in capital allowances—the temporary uplift in the capital allowance from £25,000 to £250,000. From my work with small businesses I am very aware that one of the competitive deficits in the UK is small businesses which have not invested in new technology in their production lines. This gives them a real incentive to do so and to do it now. The timing of that, as we begin to emerge from recession and companies have new opportunities to grow and expand, is absolutely essential and will be an important element in the economic growth that we are all seeking.
I was very privileged to be a member of the Finance Bill sub-committee. I thank the noble Lord, Lord MacGregor, for his fair but effective chairing of that committee. It has been one of the most enjoyable committees in which I have participated; that was shown by the work we achieved and the consensus that existed right across those from different political parties and on the Cross Benches. Like the noble Lord, Lord MacGregor, I emphasise that the work we looked at, particularly on the GAAR, does not cover international and multinational tax abuse. It does not cover issues such as forms of avoidance by deferring income from one year to another, as that is not its purpose. We have to emphasise that, as so often friendly politicians fall into the trap of thinking that the GAAR fulfils that role. It does not and should not. Christian Aid and others asked for clauses to be introduced into the Finance Bill that might do some of that work, but that is not appropriate as this has to be an international effort. I understand that they want a study—which seems right—on the impact of UK tax structures on developing countries. However, that is outside the scope of the Finance Bill.
Ironically, if the GAAR is a success, in a sense we may almost never see it used. Its role is very much one of deterrence. It makes the judgment as to whether a GAAR works quite difficult. However, the review is absolutely crucial. If it turns out that general rules—the noble Lord, Lord Wakeham, spoke eloquently on this issue—are far more effective in partnership with specific rules in managing the constant attempts of companies to find mechanisms around attempts to get them to pay their fair share of tax, we will need to start to think through whether or not we should consider an anti-avoidance GAAR. Like many others—I notice that the noble Lord, Lord Haskel, who spoke eloquently on this issue, is not here today—I note the importance of including a clearing system, which has been discarded as being too expensive at this time.
I am one of those who are somewhat concerned by the narrowness of the GAAR, not because it is anti-abuse but because we have the double reasonableness test. I understand where the Government are coming from in introducing such a test, but I have two concerns. One is that there is quite a lot of deference by the Government to the accounting profession. It would be wise sometimes to be more cynical and challenging to that profession around these issues. Also, if it is taken to its extreme so that nothing is ever an abuse because somebody can always come up with a reason as to why it has some economic basis, this whole exercise will have been in vain. Therefore we need to look at the application; that is a very particular vulnerability, and one in which we have to have an ongoing watching brief.
I will move quickly to the issues around stamp duty, land tax avoidance and the annual residential property tax which we also examined. I know the legislation is complex, but I believe that it is a crucial step. For many people the unfairness of watching those with very large and expensive properties avoiding the stamp duty and the inheritance tax that they bear on their smaller properties has tended to undermine the sense of common bond that is necessary in our tax system. My concern is less about what is in the legislation than the fact that, as yet, it does not capture some of those opportunities for abuse—for example, the use of the Cayman Islands for trusts and companies that have also been used by those seeking to avoid those kind of taxes. If I am wrong, I should be glad for the Minister to correct me. There are still loopholes and none of us wants to see them exploited.
I also found myself defending the Chancellor over his cap on income tax relief. This is not an approach which is palatable to everybody. For many years, I lived in the United States where the alternative minimum tax plays this kind of role. No matter how people choose to invest—whether or not it is in economic growth—on the basis of fairness, I believe that everyone should participate in the income tax system, and the tax on reliefs gets us much more into that territory. Fairness matters, especially in a time of austerity—we are all in this together.
This issue has been widely debated and there is little else that I can add to the speeches that came before mine, except to say that I think this has been an important Finance Bill which helps to position us for a fairer society, as well as one that is growing economically.
Baroness Wheatcroft
My Lords, I echo the words of my noble friend Baroness Kramer in saying what a pleasure it was to sit on the committee chaired by the noble Lord, Lord MacGregor. This is not a subject that everybody would find intensely intriguing, but our deliberations were always entertaining, as well as interesting.
The most important thing that this Government have done on income tax is to make sure that the wealthiest pay the most. The top 1% now contributes more to the coffers of the country than in the past. This is a principle to which we need to adhere and I am glad to see that it will continue. The theory is—and I am sure it will be proved right—that, even as the top rate comes down, we will get more income from the wealthy. There are ways that they can move their domicile and their tax status, should they find their surroundings uncongenial.
However, we need to go a lot further in simplifying tax. My noble friend Lord MacGregor referred to the Office of Tax Simplification. It was created in July 2010, though I fear that tax has not become much simpler since. Indeed, the latest edition of Tolley’s Tax Guide now runs to 16,220 pages. The individual guides on income tax, corporation tax and capital gains tax each run to more pages than War and Peace. There must be progress that we can make there; I would like to think so.
Moving to the Finance Bill, the two issues I wish to address are the GAAR—which has been much spoken about—and the income tax relief limit. The GAAR is going to be a disappointment to a lot of people, and we should not be surprised by that. The hostility to the way in which many multinationals organise their tax affairs runs deep. The hope is that the Government are doing something about it. The GAAR cannot and does not attempt to do that, nor can the Government do so alone. It is right that the route that we are taking is through international organisations such as the OECD and the G8 because, as a country, we cannot move unilaterally to deal with the taxation of multinationals.
Winston Churchill, always a good man to quote, said:
“We contend that for a nation to try to tax itself into prosperity is like a man standing in a bucket and trying to lift himself up by the handle”.
It is a good image. If we go out on a limb and create a tax regime that is inhospitable to other countries’ companies, we will be the ultimate losers. We need a regime that is fair, and the only way that this can be done is on a multinational basis. We are going in the right direction and leading the discussion, but I am under no illusion about our chances of success any time soon.
In the mean time, what is to be done? The debate in the other House spent a long time discussing the possibility of companies having to declare the amount of corporation tax that they pay in this country. The Government do not want to go in that direction. However, they could encourage a degree of boasting. Would it not be a good idea if companies were encouraged to declare proudly how much tax they were paying in this country? I do not mean fudging it by folding into their total tax bill VAT, national insurance and anything else that they can think of. We want to know about corporation tax. It would be very good if some companies followed the lead of RTZ, for instance, and spelled out proudly what they were paying, to see whether that would win them a few brownie points from consumers. It was intriguing to see how Starbucks eventually reacted to public fury over its tax bill. While proclaiming all along that it was doing nothing wrong—which was absolutely true in legal terms—it felt obliged to offer a bung of £25 million. That was a strange thing to do in the circumstances: “I’m not guilty but, just in case I am, here you are”.
The GAAR cannot deal with this. As my noble friend Lady Kramer said, it will not be the easiest thing to operate. A double-reasonableness test is a hard one to get over. Not only must an action be seen to be reasonable, even if it is not in some minds reasonable, but the individual undertaking the action need only contend that he had a reasonable belief that it was a reasonable action for the action not to fall foul of the GAAR. One of the most interesting sessions that our committee had was when two tax counsel came before us. Their eyes lit up at the prospect of the work to come. These things will be contested.
Nevertheless, it has to be a step in the right direction, and it is already beginning to change behaviour. I am told that fewer questionable schemes are being put forward. It is good to think that the creativity that has gone into finding ways around the tax laws might be used in more positive ways. Avoidance on the aggressive scale that has been in evidence is against the interests of the country, and it is absolutely right that a measure such as the GAAR should be brought in to try to deal the worst cases of abuse.
The other item in the Finance Bill that I will talk about probably needs very speedy changing. It is the limit on reliefs. I understand why the Government feel that it is right to limit the amount of tax relief of which any individual can make use. However, the law of unintended consequences could mean that entrepreneurs are restricted in what they do at a time when we need businesses to flourish, and young businesses in particular to grow and invest. It would be perverse to bring in something that could involve an individual facing a tax bill that is higher than the profits from their business. The Minister may have seen the evidence put forward by the Chartered Institute of Taxation, which is deeply concerned about how this may work. In the end, our committee recommended that there should be a review of these provisions. It was perhaps unfortunate that the Government did not follow their own tax consultation framework in driving through the proposals. Therefore, a speedy review is a very good idea.
Lord Bilimoria
My Lords, I declare my interests in this area. I remember when qualifying as a chartered accountant it was very clear that tax avoidance was legal and tax evasion was illegal. Recently, there has been a huge public outcry about avoidance having escalated to abuse and companies operating within the law have been vilified.
The tax gap has been estimated at around £32 billion. Within that tax gap, it is estimated that the annual cost of tax avoidance is around £5 billion and the annual cost of tax evasion about £4 billion. The official definition of tax avoidance is,
“bending the rules of the tax system to gain a tax advantage that Parliament never intended. … It involves operating within the letter but not the spirit of the law. Tax avoidance is not the same as legitimate tax planning”.
Tomorrow an event will be held by the All-Party Parliamentary Group for Social Science and Policy entitled, “What can policy makers do to reduce tax avoidance by large companies?”. The invitation letter to the event states:
“Tax avoidance by multinational companies such as Google, Starbucks and Amazon has sparked a public outcry. A recent poll commissioned by ActionAid found that 80% of people want the government to take tougher action. In 2012 Amazon paid just £2.4m of UK corporation tax on UK sales of £4.2bn—less than the £2.5m it received in government grants. Thames Water paid no corporation tax and pocketed a £5m credit from the Treasury. Every pound lost through tax avoidance could have been spent on protecting public services—yet last year HM Revenue & Customs wrote off £5bn in tax as uncollectable. It estimates the … ‘tax gap’ at £32bn”—
as I said—
“while many tax experts believe the … figure is twice that”.
I thank the noble Lord, Lord MacGregor, and the Economic Affairs Committee, of which I was proud to be a member, and all the officials—Bill Sinton and the team. It was a tremendously constructive and pro-active committee in which to take part.
In his opening speech, the Minister said that the objectives are to improve competitiveness, tackle tax avoidance and help hard-working families. The noble Lord, Lord MacGregor, made the very important point that, for the first time, we as a committee were able to meet in advance of the Finance Bill being published and look at a draft version. I congratulate the Government on allowing us to do this and thus take advantage of this House’s expertise.
There is no question that the intentions of the GAAR—the general anti-abuse rule—are good. However, does the Minister accept that it is too narrowly targeted and focused through the double reasonableness test, and therefore will not catch the Googles, the Amazons and the Starbucks? Do the Government accept, as the noble Lord, Lord MacGregor, said, that they need to communicate very clearly to the press and public that this will not happen, although the intentions are very good, given that people have the expectation that now that the GAAR is there, all this tax avoidance—tax abuse on a large scale—will disappear?
As the noble Lord, Lord MacGregor, said, the important point is that this needs to be tackled internationally. Are the Government confident that they will be able to do that on an overall basis? Furthermore, I do not think that the public understand clearly where the tax that is generated comes from or the composition of the tax pie. Will the Government confirm that they will publish tax information to enable everyone to understand where the tax they are paying is going so that they understand clearly that corporation tax actually makes up a very small proportion of the tax that is generated in this country? The companies that are being attacked should pay more corporation tax but are they being sufficiently congratulated on the employment they are generating, the taxes generated through that employment, the innovation they are generating and the business they are bringing to this country? Are things being looked at in proportion? However, as the noble Baroness, Lady Kramer, said, there is no question that the GAAR should at the least be a deterrent and send out a signal that tax avoidance which becomes abuse is not acceptable.
The cap on income tax reliefs was not consulted on properly by the Government. It was ill thought through and I agree with the noble Baroness, Lady Wheatcroft, that it risks restricting reliefs for genuine trading and other losses. In fact, she described it as perverse. I request that the Government do a more detailed review to get a better understanding of the effect of the cap because it could hamper business investment. The Government did very well in consulting on the GAAR, but unfortunately I do not think that they consulted adequately on the caps and reliefs. The noble Lord, Lord MacGregor, spoke about simplification and the noble Baroness, Lady Wheatcroft, spoke about Tolley’s Tax Guide getting bigger and bigger. Surely the Minister would agree that the Government should be working towards simplifying tax. Could he confirm that?
President Clinton spoke here in London a few years ago and I remember him clearly saying that, increasingly, we live in a world that is more interconnected and integrated. Now the time has come to work together to tackle this tax abuse on a global scale. Better transparency is the only way that we can deal with it. The noble Lord, Lord Wakeham, as a fellow chartered accountant, summed it up beautifully when he talked about being true and fair. That is what we were brought up to do. Audit reports had to reflect a true and fair view. We have to aim for that.
Once again, I thank the committee, the noble Lord, Lord MacGregor, and the officials. I also thank the Government for consulting and allowing us to meet in advance so that the House of Lords can play a role and use our expertise, even though we have no power whatever over financial matters. Here is an opportunity for us to give our views in advance, and to have them listened to and taken into account by the other place, so that, as the Minister said, we have a tax system that will tackle avoidance, is fair and, most importantly, is competitive, transparent and simple.
Lord Bates
My Lords, I, too, pay tribute to the Select Committee on Economic Affairs for its excellent report. I did not serve on that committee, and I speak in the debate not because I want to speak about the report but to clarify Her Majesty’s Government’s position on another matter, which relates to hard-working families and specifically has to do with the position of the married couple’s tax allowance.
Page 41 of the Conservative Party manifesto, way back in 2010, states a desire to,
“make Britain the most family-friendly country in Europe”—
and specifically said that it would,
“end the couple penalty in the tax credit system”,
which it has largely done through the introduction of universal credit. Next, it said that it would,
“recognise marriage and civil partnerships in the tax system”.
This is a day when we have been celebrating marriage and its role in society. I welcome the Bill that has passed today for keeping marriage relevant and updated by reflecting the way in which some tax-paying citizens choose to live their lives in this country. That is a good thing. When my noble friend Lady Stowell introduced this important Bill at Second Reading, she set out clearly Her Majesty’s Government’s position, when she said:
“Marriage remains, as it has for centuries, the way in which most people choose to declare their commitment publicly and permanently to the person they love. When we hear two people exchange their marriage vows, whether in a place of worship or at a registry office, we know that we are witnessing a couple commit to the kind of values that we associate with the special enterprise of shared endeavour—loyalty, trust, honesty and forgiveness. We know that through marriage existing families are extended, as is their commitment and support to new family members. We think that it is a good thing”.—[Official Report, 3/6/13; col. 938.]
The tax system is a very useful tool for Governments to recognise things which they regard as a good thing. Twelve million people, or perhaps more, as a result of today’s legislation are part of that good thing—giving strength to their families, their communities and society.
Where are we vis-à-vis that commitment made in the manifesto? We had an unexpected turn last week. Following what was described as a lunch,
“with political reporters at Westminster”,
a report appeared on 11 July in the Daily Telegraph. It reported the Chancellor as saying:
“I have always been committed to introducing a married couples’ tax break ... David Cameron campaigned to be leader on that promise and I was his campaign manager”.
It went on to report the Chancellor as saying:
“I am absolutely committed to introducing it … and I think you can expect to see it in the Autumn Statement”.
That is all very encouraging. Some of us who have experienced the way politics works will perhaps be forgiven if we seek further general reassurance from the Minister, as it is possible that many a word of truth has slipped between the dining table of Westminster and the front-page splash of a national newspaper.
Can my noble friend clarify the position of Her Majesty’s Government in relation to the proposed married couples’ tax allowance in the Autumn Statement later this year? I particularly want clarification because we know that this was in the Conservative Party manifesto. We know that it did not make it through the negotiations with our Liberal Democrat coalition partners into the coalition agreement. In the same report of 11 July in the Daily Telegraph, there was a quote in response to this conversation at lunch from the Deputy Prime Minister, who ridiculed the proposals as,
“patronising drivel that belong in the Edwardian age”.
Later on in the report, clarification was sought from Downing Street—a great exercise in journalistic reporting; there was triangulation going on at a great level. The Prime Minister’s official spokesman said that the Prime Minister is a “big believer in marriage” and,
“That is why he thinks it is important to recognise the family—
and marriage—“in the tax system”.
There is a clear position there, perhaps a shift. I would very much appreciate if the Minister could help clarify and enlighten us.
Lord Davies of Oldham
My Lords, I shall leave that last contribution for the Minister to answer because it would be ill thought of me to intrude on coalition difficulties over an issue of that kind. I am sure the Minister will delight in replying to the noble Lord, Lord Bates, in a moment. I want to express, first, the gratitude of this side of the House to the Economic Affairs Committee and its chair the noble Lord, Lord MacGregor, for the work that they have done in this very important area. As the noble Lord indicated, there have been some advantages this year in being able to address these issues somewhat earlier than the actual arrival of legislation.
It has given them time also to concentrate in particular on the general anti-abuse rule. As the noble Baroness, Lady Wheatcroft, indicated, the proposals are sketchy enough at present that it is right that we return to evaluation of them fairly rapidly. I understand the Government’s resistance to the opposition amendment in the Commons on this matter for two years. However I take some succour from the point made by the noble Baroness, Lady Wheatcroft, that we will need to look at this carefully, not least because the problem with the GAAR is that it is a British concern but an international problem. It will work effectively only if we are able to broaden the similarities of other countries with regard to the operation of corporation tax and so on in their countries in order to make it effective.
The noble Lord, Lord MacGregor, indicated that although the committee had probed the Government, it had not got full clarity from them about how the GAAR would work. None of us is surprised by that—these are early days. However, none of us ought to underestimate either the enormous pressure from outside this House on the Government to do something about the scandals that were revealed of the avoidance of taxation—legitimate avoidance—by the multinational companies that have been identified, or the country’s obvious belief that fairness requires them to meet their dues in countries where they are making their profits and where they have vast numbers of customers.
We all recognise that this is a big challenge of the multinational age, which presents all Governments with very specific issues with regard to taxation. I am very grateful for the progress that the committee made on this matter but this is an enduring problem for us all and it will be recognised that the work done so far has merely proved a trailer for the major work that needs to be done. After all, Mr Aaronson, who commented on the general anti-avoidance rule, said that the scheme set out only to tackle egregious, unaggressive tax avoidance schemes. That indicates how narrowly focused it appears to him, as an expert. We need some breadth to it if it is to prove effective.
I welcome the contribution of the noble Lord, Lord Wakeham, although I did wince at the concept of two Finance Bills a year, as I am sure many Members of this House will and even more will at the other end. He made a very real and proper call for companies to be true and fair in their reports and in their responsiveness to the need for taxation. However, the problem there again is that we are not talking about the perspective of a decade or so ago but about a situation now where a great deal of British expenditure is on multinational companies in which these particular concepts may look a little too Anglo-Saxon, or even too British, to strike home with them. We clearly need a strategy that is embraced in our legislation but which fits with what other major powers, particularly of course the Americans, are able to do with regard to multinational challenges.
The Minister presented a short synthesis of the Finance Bill and I think we are all grateful for that—not many Ministers have been able to describe a Finance Bill in seven minutes. I am not going to criticise it for much more than seven minutes—indeed, I hope to criticise it in much less time—but criticise it I will. This Finance Bill does nothing to boost growth or improve living standards. Growth, as the Minister will recognise, is at an abysmal level and has been since this Government came to power. We are making the slowest recovery from a recession in the past 100 years and it will not do for the Minister to suggest that the Bill is apposite to our present circumstances. It is not.
The noble Baroness, Lady Kramer, commented on the fact that one element of the Bill gives some tax relief to the lowest paid in our society, but real wages have fallen by 2.4% in the past four years. That is a reflection of the fact that people are getting poorer at work—not the people who have to pay the bedroom tax and who the Government are able to challenge in those terms, nor those people who will be hit by the withdrawal of benefits, but people at work. They are poorer under this Government and it will not do for the Minister to ignore that fact; nor will it do—after all, he takes considerable responsibility for infrastructure—that the Government’s record on that at the present time is appalling. Of course, he was not directly in his post when the Government managed to produce only one school out of the 216 that the Secretary of State promised would begin under his programme of expansion.
The IMF made clear to the Government what could be done with investment. It said that £10 billion in social housing could produce circumstances in which 400,000 houses could be built and 600,000 jobs could be created. What have the Government done on that front? Nothing that any of us could notice. Meanwhile, this Finance Bill also causes affront to our people. This is not only over the question of how strongly it will address the issue of corporate taxation for the multinationals and those who do not pay their proper tax. How can one talk about fairness in our society when millionaires are singled out for the top-rate tax cut, and when hedge funds get a cut on their investment position as a result of the Bill?
The Government are giving away with one hand to the very well-off in our society, while the rest of the nation quakes under the strains of the Government’s failure to emerge from recession. That is why the Finance Bill, which we can merely comment on and not amend, has such weaknesses that the Minister surely ought to spend the next few minutes producing a rather more articulate defence of it than he did in his opening remarks.
Lord Deighton
My Lords, I thank all noble Lords for their excellent and insightful contributions. I will do my best to respond to them. Let me take first the attack of the noble Lord, Lord Davies, on current government policy. When I entered the Treasury I found myself confronted with the financial state which this Government inherited from the previous Government. I find it quite difficult to know where to begin in comparing and contrasting a government strategy which left this nation financially on its knees with the steady and consistent plan which this Government have put in place to recover the situation.
This Government have succeeded in reducing the deficit by a third, and have the confidence of international markets. This Government have put in place a growth strategy in terms of reducing taxes, and making sure that this is an economy in which investors want to invest and companies want to grow. This is the basis for sustained improvement in the decade to come. I agree that issues on infrastructure need addressing. This is because over generations—I think that this really applies to many previous Governments—we have not put in place the long-term approach to sorting out the economic infrastructure that was needed. This Government deserve credit for actually taking the right long-term steps to sort that out, which I hope will put in place a regime that will work very effectively for many years ahead.
Let me get to the specifics of this particular debate and the Finance Bill. The Bill reflects the Government’s continuing commitment to making tax policy in a transparent manner through improved consultation. Many measures in the Bill have been subject to extensive consultation and scrutiny. I take great comfort from the comments at large that the consultation process has been extraordinarily effective. My noble friends Lord MacGregor and Lord Wakeham made the point that we gave the Committee the ability to look at the draft and at the changes we put in place. I think that that is progress all round, which we should enjoy. That robust approach to making tax policy ensures that we can effectively legislate to restore the economy to growth and address the enormous deficit that was inherited. This Finance Bill is part of our plan to put the country on the right path through supporting enterprise, helping families and ensuring that everybody pays their fair share of tax. Part of this plan includes the biggest ever cash increase in the income tax personal allowance, as my noble friend Lady Kramer noted. In her view, that was the most important part of the Bill.
However, we also take firm action against those who do not pay their fair share of tax. There has been quite a detailed discussion of GAAR in this evening’s debate. Given the amount of consultation that has gone on around it and the debate that we have had, I am not sure that there is much more I can add. Insightful comments on it were made by my noble friends Lady Wheatcroft and Lady Kramer and the noble Lord, Lord Bilimoria. GAAR is part of an overall approach and works together with specific tax rules. It does not attempt to address the broader question of the tax behaviour of big multinational companies, which I think we all agree and understand needs to be dealt with through international collaboration. I am proud to be part of a Government who are leading on that issue. We will hear later this week the OECD’s proposals to the G20 to move forward on these issues following up on the ball that we rolled into play at the recent G8 meeting, so that is well under way.
On when we should review GAAR, we rejected the two-year suggestion. On whether five is the right number, the Government reserve the right to keep all taxes under review. I agree with the general sentiment that the way this works needs to be bedded into the system and therefore needs particularly careful management. Overall, I think that the Government’s approach of driving down taxes generally to make this economy more productive, and avoiding the Winston Churchill problem of the man in the bucket, is the right one. Combining that with our rigorous approach to the collection of taxes that are due is exactly the right balance for this age. I wish that our predecessors had got to grips with those two important issues much earlier so that we did not have to deal with them right from basics now.
I also agree with the general sentiment expressed by the noble Baroness, Lady Wheatcroft, and the noble Lord, Lord Bilimoria, that, in an ideal world, we would drive more simplification into the tax system. It is an easy concept to embrace but a difficult one to put into practice given everything that we are trying to accomplish. There is an Office of Tax Simplification whose mandate it is to cause some of these things to happen.
On whether we have done quite the right thing on tax reliefs, the Government are committed to supporting growth and we take action to support business tax relief in an effective way, but it cannot be without limit. We promote business investment through targeted tax relief schemes—some examples of those are the Enterprise Investment Scheme, the Seed Enterprise Investment Scheme and the venture capital trusts—and, as I have said previously, we are driving down the overall level of taxation. The balanced package leaves companies of all sizes in a very attractive tax environment which should be good for the growth of the economy.
In response to the question asked by my noble friend Lord Bates about tax relief for married couples, I can confirm that my right honourable friend the Prime Minister made a commitment to recognising marriage in the tax system. We intend to announce our plans shortly and it will be at the earliest opportunity. My noble friend was absolutely right to quote my right honourable friend the Chancellor, who said in an interview a few days ago that,
“the Government is committed to introducing it and I think you can expect to see it in the Autumn Statement”.
I hope that that is a strong enough commitment. It sounds pretty good to me.
As noble Lords are well aware, this Government inherited enormous debts. It was essential that we addressed that and got the economy moving. We have taken difficult decisions and resolute action to tackle the challenging legacy that we inherited. The Finance Bill 2013 is part of the Government’s plan to put this country back on the right path, through supporting enterprise, helping families and ensuring that everyone pays their fair share of tax. I commend the Bill to the House. I beg to move.
Draft Finance Bill 2013: Economic Affairs Committee Report
Lord MacGregor of Pulham Market
That this House takes note of the report of the Economic Affairs Committee on the Draft Finance Bill 2013 (1st Report, Session 2012–13, HL Paper 139).