Grand Committee
Arrangement of Business
The Deputy Chairman of Committees (Lord Brougham and Vaux) (Con)
My Lords, welcome to the Grand Committee. We are expecting Divisions, in which case I ask the noble Lord who is speaking to stop while we adjourn for 10 minutes.
Olympic Legacy (S&T Report)
(11 years ago)
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Lord Krebs
That the Grand Committee takes note of the Report of the Science and Technology Committee on Sport and exercise science and medicine: building on the Olympic legacy to improve the nation’s health (1st Report, Session 2012-13, HL Paper 33).
Lord Krebs (CB)
My Lords, I start by thanking the members of the Science and Technology Select Committee for their excellent contributions to this report, and our specialist adviser, Professor Ian Macdonald, Professor of Metabolic Physiology at the University of Nottingham. I also thank the Minister for the Government’s response to our report. I am particularly delighted to see that the Minister who will respond to the debate is from the Department of Health as many of the recommendations in our report refer to health as well as to sport and exercise.
We conducted the inquiry, which resulted in the report Sport and Exercise Science and Medicine: Building on the Olympic Legacy to Improve the Nation’s Health, during the run-up to the 2012 Olympics. The inquiry had two purposes. First, we wanted to find out how robust the research and evidence base for improving the performance of our elite athletes is. Secondly, we asked how this knowledge for helping elite athletes might be translated into treatments and preventive interventions that could help improve the nation’s health. Our focus was on biomedical research rather than the engineering science that refined and improved the equipment used by elite athletes and amateur sports men and women alike.
Our inquiry included sport and exercise science, which is about understanding the physiology, nutrition, genetics and biomechanics of the human body in order to improve performance as well as sport and exercise medicine, which is about the treatment and prevention of ill health that might arise from exercise: for instance, muscle strain or joint injury. We did not investigate the important issue of behaviour change—how to encourage people to become more active—because we had already completed an inquiry into this topic in 2010. Although we focused on sport, we recognised that exercise includes a much broader range of activities, such as recreational walking, gardening and housework.
Both of our questions were highly relevant to the Government’s two objectives for the Olympics. These were, first, to ensure top performance of our athletes in winning medals and, secondly, as part of the legacy of the Games, to encourage the nation to be,
“healthier, happier and more active”.
On the first of these two objectives, Team GB surpassed expectation, winning more medals than in any Olympics since 1908. The haul of 65 medals, against a target of between 48 and 70, included 29 gold, placing Britain third in the gold medals table and fourth in the total medals table. This was a stunning success, but might the performance of Team GB have been even better with more systematic appliance of better science? One of Team GB’s greatest Olympic successes was in cycling, winning seven out of 10 track cycling gold medals. While the majority of this remarkable success is down to the athletes themselves, it is thought that some of it is attributable to the meticulous attention to detail of Matt Parker, “head of marginal gains”. He analysed down to the last detail the factors that might make that marginal difference between a medal and no medal: techniques such as spraying tyres with alcohol to remove dirt and increase the friction at the start of a race; heated shorts for the cyclists to keep their muscles warm; and measures to reduce the chance of athletes succumbing to performance-diminishing infections may all have contributed to the fraction of a second difference that is needed to win gold instead of silver.
However, as our inquiry showed, even in the outstanding cycling team, not all the techniques believed to enhance performance of elite athletes are based on sound evidence. For instance, we were told by an expert witness that feeding elite athletes large quantities of antioxidants to help muscle recovery not only does not have a beneficial effect but may even be detrimental. So when we look ahead to the next Olympics, there may be room for even better performance by our athletes by deploying the best scientific knowledge.
Our second question was about using scientific knowledge to help the Government’s objective of getting the population as a whole to become healthier through exercise. The health benefits of exercise are undisputed and affect a wide variety of health outcomes. The Department of Health told us that there was research to show that exercise could help to prevent or manage more than 20 chronic conditions, including coronary heart disease, stroke, cancer, type 2 diabetes and a number of mental health problems. Yesterday’s news story about an article in the British Journal of Sports Medicine lamenting the lack of exercise by children even used the emotive language of “child neglect” to refer to the health problems that will arise because children are not encouraged to do enough exercise.
Scientists do not yet understand the biological mechanisms that give rise to such far-reaching benefits of exercise. One theory is that exercise promotes a process called autophagy, in which worn-out surplus or malformed proteins and other components of our cells are recycled. Perhaps an understanding, through research, of exactly how exercise benefits our bodies would help to improve and enhance the advice to the population at large on exercise, and thereby increase the benefits.
How robust is the research into sport and exercise science and medicine? One fundamental problem of research on elite athletes is that, by definition, there are very few individuals to work on. Furthermore, elite athletes are understandably reluctant to be exposed to invasive measurements that might interfere with their training or become part of a control group in an experiment to test the efficacy of a particular intervention. For this reason, most of the research on elite athletes is observational and anecdotal. That is not to say that all sport science and medicine is weak, but several of our witnesses, including the Physiological Society and the Ministry of Defence, were critical of weak methodologies.
One way to improve the quality of research is to carry out the work on non-elite athletes and the wider public and explore the two-way flow of understanding between those groups and elite athletes. We heard about examples of well known techniques that are supported by good evidence—altitude training to improve stamina, and carbohydrate loading for long-distance runners—as well as those for which there is no evidence of benefit, including taking ice baths after vigorous sport and, as I have already mentioned, taking antioxidant supplements.
UK Sport is the arm’s-length body of DCMS charged with funding research to enhance the performance of elite athletes, with a budget, we were told, of about £20 million over the period between 2009 and 2013. We were surprised that DCMS did not appear to have in place any mechanism to ensure that UK Sport was commissioning science of the highest quality, comparable to that in fields of basic biomedical research. The Government’s response did not specifically address that point, and I would welcome clarification from the Minister about how DCMS carried out that quality assurance.
I now turn again to the relevance of sport and exercise science and medicine to the wider public. Most but not all of our witnesses agreed that the findings from research on elite and non-elite athletes had relevance to the wider population. Examples include the use of exercise and muscle conditioning to improve back and knee pain in osteoarthritis, conditions that affect many people in this country.
Advice to the public on exercise is contained in the Chief Medical Officer’s guidelines on physical activity. These guidelines exist, but how many people are aware of them? I have no doubt that all noble Lords in this Room are acutely aware that the CMO recommends that 19 to 64 year-olds do 150 minutes of moderate exercise or 75 minutes of vigorous activity a week, and that there are specific guidelines for people such as myself who are over 65, but we found in our inquiry no strategy for ensuring that those guidelines were more widely disseminated to the public. Indeed, we were told of one survey of 48 GP practices in 28 London boroughs, which found that none of the GPs was aware of the latest CMO guidelines.
The Government welcomed our recommendation that training at all levels for health professionals should include the need to support the prescription of exercise for both prevention and treatment of ill health. We also suggested that physical activity should be added to the quality outcomes framework for GP practices. I would welcome comment from the Minister on what progress has been made in this area and whether any measurable change in disseminating activity guidelines and encouraging physical activity by health professionals has been achieved.
At the same time, the National Institute for Health and Clinical Excellence—NICE—has a role in ensuring that any prescription of exercise for chronic disease is based on sound evidence. Could the Minister please update us on NICE’s assessments and how they are being translated into recommendations? Many of us who exercise do things that we believe—and are told—are good to do, like stretching before or after exercising, or engaging in muscle-strengthening as well as aerobic exercise. I would be interested to know how robust the evidence is to support these particular pieces of advice and information that are in the general public’s mind.
Finally, I turn to the National Centre for Sport and Exercise Medicine, which the Government established as part of their commitment to a lasting public legacy from the Olympic Games, as well as to improve support for elite and non-elite athletes. The Department of Health’s vision for the centre was for it to be,
“a hub of clinical and research expertise”,
used for the following objectives:
“increase exercise in the community; develop strategies to prevent diseases related to inactivity; and prevent, diagnose and manage injuries for both professional and amateur athletes”.
The centre was established with a £30 million grant to three consortia. However, we were told in our inquiry that no ongoing funding for posts or research was provided and therefore there is a question about the sustainability of the centre. We also suggested that the centre should take the lead in developing a national strategy for sport and exercise science and medicine. Could the Minister please update us on the progress of the national centre and how its sustainability is being established, and also on the production of a national strategy?
No one can doubt the importance of sport and exercise. The health of the population at large would be hugely enhanced if people exercised more. The prestige and entertainment provided by our elite athletes was vividly demonstrated by our national success at the 2012 Olympics and by Andy Murray’s Wimbledon triumph. Science and medicine can make an important contribution to the realisation of these benefits of sport and exercise. The United Kingdom has an absolutely outstanding science base in the biomedical sciences but the evidence that we heard suggested that there is insufficient cross-fertilisation between this excellent science base, carried out in our world-class universities and institutes, and the application of that science to improving the performance of our elite athletes and the health of the nation. I look forward to hearing other noble Lords’ contributions to this debate and the Minister’s reply. I beg to move.
The Earl of Selborne (Con)
My Lords, the Committee will be most grateful to the noble Lord, Lord Krebs, for the way he introduced this debate and for chairing the inquiry. I served on that committee and was enormously interested and impressed by it, particularly at the seminar that started our deliberations where I learnt a lot about the quality of the sport and exercise science and medicine in this country. It seemed very timely with the Olympics just about to start to have an inquiry into the extent to which the two objectives set out in paragraph 1 of our report were being delivered.
I will confine my contribution this afternoon to the second of those two objectives: how can the R&D base,
“be translated into treatments and preventative interventions to improve the nation’s health?”.
After all, if one thinks about it, the justification for spending public money on sport and exercise science must ultimately rest on its role in improving national health. That is not to say that winning more medals is not a perfectly laudable objective; it is clearly good for national morale and we should be proud about it. However, Dame Tessa Jowell, who we quote on page 8, paragraph 3, was right when she said that the goal of increasing participation in sport was,
“not just about increasing participation in sport for the sake of it … it was also to tackle one of the most serious health epidemics facing the UK, that of obesity”.
When you realise that the Department of Health had put an estimate on the direct and indirect cost of physical inactivity in England among our population at large at approximately £8.2 billion, you realise that we are talking of sums that concentrate our minds wonderfully.
We have not gone into behavioural change. It is one thing to estimate the cost but one knows how difficult it is for the most observant commentators to change even their own behaviour, let alone that of other people. Nevertheless, it is clear that this goal is well worth achieving, and if sports and exercise science and medicine can impact on the population at large and reverse what is, in the case of obesity, an epidemic that has been running for many years, it will be something well worth attempting. As well as mentioning obesity, as the noble Lord, Lord Krebs, reminded us, Tessa Jowell could have mentioned the 20 other chronic conditions identified as lending themselves to prevention or alleviation through physical activity. So we seek to increase participation levels in sport and exercise for all ages in order to capture the health benefits for the population at large.
The Government must be given credit for having put together a number of cross-departmental initiatives, listed at paragraph 45. They involve, of course, the Department of Health, the Department for Transport and the Department for Education. It was a bit of a surprise, I have to say, that the then DCMS Minister, when giving evidence to us, said that,
“the baseline for ... the whole sport plans, is driving up participation in sport; it is not a bigger drive on the nation’s health”.
That does not make a lot of sense. We all agree that we want more people to participate. Why? I think we all recognise that it is because there are going to be those benefits. I say again that it is perfectly reasonable for UK Sport—a DCMS arm’s-length body, as the noble Lord, Lord Krebs, reminded us—to spend government money and, for that matter, lottery money on promoting the agency’s primary objective of winning more medals in competitions. I am all for that. UK Sport also receives money from third parties that are not subject to the same commitment to share the benefits that derive from public funds. With commercial organisations there may well be a confidentiality clause, and I recognise that. However, it should be a condition of receiving public funds for there to be an obligation to promote the sharing of the research findings that I mentioned in order that the wider public might benefit. That is not happening; the links between some of the elite research, other athletic research and the wider public are not as strong as one would have hoped.
For healthcare professionals plenty of information is available. We have heard about the Chief Medical Officer’s guidelines on physical activity. However—I repeat what the noble Lord, Lord Krebs, told us—there does not seem to be an effective mechanism for promoting this information, the guidelines and other advice, to the medical professionals. Surveys show that their knowledge of the guidelines is, frankly, disappointing. At paragraph 36 we point out that Sport England told us that exercise prescription should “sit alongside” pharmaceutical and surgical interventions. Yet GPs have no incentive to prescribe exercise; I can quite see that many GPs say that that is all very well but it is most impractical for them to tell some of their more obese patients to go out and take exercise. What they want is a prescription. Nevertheless, as a layman, I am fairly confident that in many cases a prescription which simply said “Go out and take more exercise” would be a jolly sight more effective than a surgical or pharmaceutical intervention.
If you think about the quality and outcome framework, there are incentives to GPs to do this, that and the other. One incentive is to list those of their patients who fall into the category of obese, but the incentive is to put them on the list, not to take them off it. Once they are on the list, GPs get paid for keeping them there. That is not exactly an incentive for them to tell their patients how to get below the magical figure at which they are considered obese. Clearly the quality and outcome framework needs to be revised. Adding physical activity to the quality and outcome framework, as Sport England suggested, might be a good start. It would save a lot of money—I am quite confident of that. You would perhaps even make a very modest dent in the culture change we are looking for so that people recognise that exercise can help solve some of the problems that we are facing as an ageing and ever more obese population. We need to raise the profile of physical activity.
We have heard that there are up to 20 different chronic conditions which could benefit from physical activity, and I shall not repeat them. I am surprised, as a complete layman, how little understanding there appears to be of why physical activity can help with so many of those conditions, including, for example, mental health problems, cancer, type 2 diabetes and the like. This is clearly a field of great potential interest and benefit and one where sports and exercise medicine has a unique contribution to make alongside the medical and biological sciences. It would be enormously helpful if there could be much greater collaboration in order to ensure that these helpful insights are captured. However, as I said earlier, that will happen only if we have a culture where research findings—particularly those funded by the public—are made available to the wider research community and, through that, to the public at large.
Lord Addington (LD)
My Lords, this is one of those papers that when you pick it up and read it makes you think, “Oh!”. I have raised sport and exercise medicine on numerous occasions, and the noble Lord, Lord Hunt, and the noble Earl, Lord Howe, have been dragged in. My approach has always been about enhancing general medicine and making sure that people are encouraged to take up sport, because they are put back together again quickly to carry on with the rest of their lives and to carry on with sport.
This report is a fairly academic paper, and I feel that it misses some of the point. You do not play a sport or push yourself to keep fit; that is a by-product. If we could all stay fit by jogging 2.3 miles every third day or whatever it is, everybody would be happy. We would have the medical benefits. We could get on with it without trouble, but we do not. We know we do not. We need an incentive and a reason to take the exercise to get the benefit. This report slightly missed the point that you do sport because it gives you a buzz. Enjoyment is not quite the right word. Sport at various levels gives you a buzz, a feeling of achievement, the competition and the thrill. Exercise sometimes provides you with another good feeling: the chance to get outside. These feelings are going on. Although the report mentions the psychology, I do not think it got under the skin of why you are doing it.
Having said that, the report is right about the fact that we do not co-ordinate, in trying to make sure that we get the benefit of the health agenda—and, presumably, the preventive health agenda—and the saving that the nation gets. The two bits do not speak to each other.
I have come to the conclusion that sports are slightly worse than political parties for wanting to sit in darkened rooms talking to each other about themselves—only slightly, but probably worse. They do not like people intervening on what they do, and change is usually forced on them—usually by a failure to perform at a certain level, to achieve an increase in numbers or, classically, to compete at the level to which they aspire or that they are used to. So when the report says that the science of elite-level sport is unclear, that does not surprise me very much. I suspect that the art of coaching and getting the best out of people is at odds with scientific method. The psychology involved, and the signs that you are responding to what goes on around you, are probably not approached best by this. There is also resistance to intervention. Sharing—and we are much better at sharing now than we were before, probably because we have to take on funding from outside government, and it is taken seriously—still has not gone into the culture.
One obvious thing that I had not even thought about until this report came out is that, if you are an elite-level sportsman, you do not want to be experimented on. It is a bit of a no-brainer. Who does want to be experimented on, to be perfectly honest? They want to be treated, helped, supported—yes. But they will take on a revolutionary new course of action only if they absolutely have to. That is a very logical point of view to take. It is always going to be anecdotal when slight changes in practice occur.
I am increasingly aware that I am not qualified in my own sporting life. Although I flirted with the top of my sport, I am totally aware that we were amateurs; although we did not think that we were amateurs, we absolutely were. I remember the shock when a first-class rugby club got its first diet sheet. Those days are long gone. But having worked a little bit with the elite level, I can say that trying to change the culture of behaviour, when people’s whole lives have been dominated by trying to achieve performance, is something that acquires scientific language, if nothing else. Trying to identify exactly what you are getting out of it is a very important factor here. To get benefit for wider society in terms not just of health but of community support and interaction is another very important point that is not covered here.
Sports medicine has important lessons to teach ordinary medicine. It is a simple fact that a sportsman knows that, if you get a bump, you get it treated quickly; you do not go to your GP and wait three weeks for a physio appointment, because then you would find that a muscle was weakened or that there was a slight imbalance in how you walked that has led into an imbalance in your entire body, which means that you might have to take time off work. The noble Lord, Lord Hunt, said that it was a very sensible idea to get more physios involved in accident and emergency, when I raised this issue a few years ago. We are still not quite there yet, because we do not take soft tissue injuries seriously enough. Sport has already taught us, and given us examples, that you should intervene early on those things to stop them becoming chronic. We have simply not adopted that yet.
I have always been something of a fan of having sport more closely linked to the Department of Health so that we can get those benefits together, especially preventive stuff. Certainly, exercise is a factor in controlling weight and gives you an incentive not to carry extra weight—by which I mean surplus weight. My rants against the body mass index are well recorded here, and I think that we will leave the subject there. But a sensible approach to how to control weight and stay healthy is something that probably should be led by the Department of Health.
The report is interesting because it starts to open a door to what is going on. When you open a door you do not know what you will find, but here was a corridor leading to interesting places which was perhaps felt to be irrelevant to sport, at least at the moment. It is an interesting start but to think that the Olympics would change the culture overnight was a total misconception. It will not be the only misconception about the Olympics. My noble friend and I have been sitting on a committee which looked at this issue and we got the impression that many people felt that, once the Olympics arrived, the days would be longer, the summers warmer and we would be guaranteed to win gold medals not only for the next 20 years but for the next 30 years.
This has been an interesting start to a debate that needs to go further, and for that I thank all noble Lords who sat on the committee.
Lord Moynihan (Con)
My Lords, I congratulate the noble Lord, Lord Krebs, and his Select Committee on their report on sport and exercise science. It considers in detail whether there is any evidence that the Games have left a lasting legacy to encourage the nation to be,
“healthier, happier and more active”.
It questions whether the science-based support for high-performance athletes, as measured by medals at the Games, was sufficiently comprehensive and adequately disseminated to assist future generations. In commending the work of the committee on reviewing sport and exercise science as applied to elite athletes and how that work can be disseminated to a wider public, it is of no surprise to me that very little elite research is published in the United Kingdom.
It is certainly true that some sports fare better than others in this respect but in our flagship sport—football—those who earn a living dance to the tune of the paymaster. When Alex Ferguson employed a team of sports scientists, he did not want its work made publicly available to Chelsea. As a result, the Premier League has no research-based ethic, in part because of the powerful marketing machine of professional sport in the United Kingdom, and in part because there is little equipment research as the great confounder is the constant change of kit for commercial gain. The public want to buy the style of football boots used by Messi or Bale. The money is in the kit that people want to own. Tennis players will employ one model of shoes for a year and the likes of Adidas and Nike, with their research teams, will fiercely guard their commercial-in-confidence research. Every season brings a new range of kit—new ski shapes and sizes; new tennis shoes. That commercial reality is a major inhibitor to long-term research.
Secondly, it is very difficult to extrapolate the science of elite sport down to the recreational player. The science required to provide a marginal gain to Chris Hoy is of little relevance to the recreational cyclist in the country lanes this weekend. The outstanding work that Sir Clive Woodward, his team, the coaches and the intricately woven sports scientists undertook for Team GB in 2012 only marginally impacts on wider participation. For this is specialist science; it is world-leading scientific knowledge. It was borne out by 29 gold medals, as opposed to one in Atlanta only 16 years before when such specialist knowledge was absent.
This valuable work is now being taken forward by UK Sport and its subsidiary the English Institute of Sport, focusing as they are on performance solutions based around a holistic range of science, medicine, technology and research designed to increase the probability of success by optimising training programmes, maximising performances in competition and reducing the number of training days lost to injury. Clive Woodward was a pioneer in aligning and integrating this approach for the British Olympic Association—I declare an interest in having had the privilege of being chairman from 2005 to 2012, through Beijing and London—and while there are wider benefits we should not overstate the case for its application to recreational sport.
That said, there is room for wider dissemination of research where it does not impact competitive advantage for young athletes. Other countries do better in this respect. The NHL and NFL in the United States are examples. The NFL collates data centrally and provides public awareness programmes without disclosing the internal secrets of the sports scientists at the Miami Dolphins or Seattle Seahawks. Australia and South Africa deliver excellent sports science research.
The main reason for the difference is the sources of funding. In countries where research is funded by those without vested interests, the prospect for dissemination is enhanced. For countries such as ours, where tight funding control is exercised via our Premier League football clubs and governing bodies of sport, operating as they do in a highly competitive global market, the opportunity for long-term funded research is restricted.
On the wider issue of an Olympic legacy to improve the nation’s health, it is universally accepted that we need to address the challenge caused by obesity among young people, the expensive consequences we face as a country from having low levels of physical activity, inadequate facilities, and an absence of policies to address improving the nation’s health. I regret that we still have a department of sickness, whose default position to sport is the treatment of sports injuries, rather than a proactive Department of Health geared to improving the nation’s health. It is not as if the challenge came to light only during the Games. I would argue that government had a better approach to the subject 150 years ago, when the modern Olympic Games were constructed on the premises of preparing a physically active and fit generation—in that case, principally of men to fight for king and country.
Indeed, between the two world wars the British Government made comparisons with Germany and Italy and quickly recognised that as a nation we were physically ill prepared. The then Minister for Health, Sir Hilton Young, later Lord Kennet, asked at a dinner of the BMA in 1935 whether something could not be done,
“to bring home the benefits of physical culture, which was a culture of mind as well as of muscle”.
The challenge was accepted and was followed by the establishment of the BMA’s Physical Education Committee, the Central Council for Recreative Physical Training, which became the CCPR and now thrives as the Sport and Recreation Alliance under the chairmanship of Andy Reed. It was established then, in 1935, as the first significant body to receive government funding to meet the grave concern about the physical health of the community. It is indicative of the approach at the time that of the 34 original members of the council, no fewer than 14 were members of the medical profession. I declare a somewhat distant interest in that one of them was my grandfather, who was the president of the Royal College of Surgeons at the time.
Alongside those 14 sat seven physical educationalists and three prominent politicians, including Herbert Morrison. The wider aims they pursued resonate to this day. They sought,
“to establish the closest link between the Council and those responsible for physical activities in voluntary organisations and to investigate the best methods of placing the specialised knowledge of the physical training associations at the service of the population”.
They wrote their own mandate,
“to help to improve the physical and mental health of the community through physical recreation, by developing existing facilities for recreative physical activities of all kinds and also by making provision for the thousands not yet associated with any organisation”.
The last 80 years have seen successive Governments struggle to translate these aspirations into political reality, despite subsequently hosting the Olympic Games in London on two occasions.
However, as the Select Committee report and its recently published sister report on Olympic legacy highlighted, hosting the Olympic Games in London offered a unique opportunity to this country to raise the bar. Those of us involved with sport saw this as being a once-in-a-lifetime opportunity to take wide-ranging steps to create opportunities for a more active society on a national and integrated scale. Hosting a great Games was always, in my view, more than 17 brilliant days of Olympic sport and the breathtaking excellence of the Paralympic Games. As important was the objective to leave a lasting sports legacy for young and old, able-bodied and disabled, the length and breadth of the country. The sponsoring department for the Games—the DCMS at the time we won the bid to host the Games in 2005—set a target shared with the departments for education and health in the DCMS public service agreement 2005-2008 to:
“Halt the year on year increase in obesity among children under 11 by 2010”.
In reality we have witnessed a growing prevalence of obesity among all age groups during this time.
So why were the Olympic Games so important in this context? I would argue that the remarkable success of the Games—the brilliance of Sir John Armitt and Sir David Higgins in overseeing the design and build of the facilities for the Games on time and on budget, and the platform they created for the BOA to field its largest and most successful British team in over a hundred years, coupled with the work of the organising committee in putting on the Games—led to a level of national commitment and inspiration that was unparalleled in our time.
Lord Moynihan
My Lords, for politicians the Olympic Games were manna from heaven. The inspiration was there, and public enthusiasm backed by all-party support was in abundance. What was needed was the political will to translate inspiration into participation through improved facilities and a transformational change in priorities capable of matching the brilliance of the Games.
The opportunity for health and education to lead this agenda remains as strong as it did 80 years ago. Physical activity, not just sport, is the key to keeping people healthy and reducing the burden on the healthcare system. In Raising The Bar, the report I wrote with Kate Hoey when the bid was won in 2005, we called on the Government to: begin work on pioneering a nationwide programme of sport and exercise medicine, echoed in parts of this new report; substantially increase the number of training schemes for GPs as well as for sport and exercise positions; prescribe physical activity to patients, both for remittal and for preventive healthcare goals; and plough half the money saved by the proposals into the provision and maintenance of suitable sport and recreational facilities.
Of course, at the heart of such a programme is the need for co-ordination in government. In my view, the Department of Health should lead a major cross-government strategy to promote the health benefits of physical activity, so as to reinforce its importance. It was hoped that the Cabinet committee would launch this nationwide sports legacy to encourage the nation to be, to quote from the report,
“healthier, happier and more active”.
Indeed, we have had a raft of welcome initiatives labelled legacy projects, but no more initiatives in total than have been launched on an annual basis since the inception of the National Lottery. To us who are passionate about sport they are very welcome—to many other people they may pepper the daily bulletins with government press releases—but they have not transformed the landscape of the health of the nation. Now we have this report which concludes with disappointment at,
“the apparent lack of joined-up thinking in Government about the Olympic health legacy”.
The scientific case for a unified, high-priority national campaign could not be stronger. The twin causes of so much of the burden on the National Health Service are either genetic or environmental. On the environmental side, so many diseases are preventable if you maintain a healthy lifestyle. We need lifestyle departments, with teachers qualified in relevant disciplines in every school, both primary and secondary. We need to design opportunities which young people enjoy. If you want to try to improve the health of the nation it has to be through a sport that people can do by themselves. A sport requiring 22 people to take part is never going to be easy to facilitate and roll out nationwide. If you want to get girls involved, which should be a priority, it has to be in activities they want to do. They do not all want to take part in outside team sports, which is why dance is such an important option.
In closing, the report also calls for further work to be undertaken on international best practice. There is no better place to begin than Finland. No more than 30 years ago—I speak with affection and respect for that great country—it was characterised as a heavy-smoking, heavy-drinking, unfit country. It has completely changed. The past two decades have been marked by a major shift in emphasis from competitive and elite sports to health-enhancing physical activity for all, as seen most clearly in two successive sports Acts and a government resolution. Now, increasingly, multi-sectorial initiatives have led to substantial changes in the public funding of sports organisations, services and the construction of sport and recreational facilities. It is a system built on the enthusiasm of volunteers. In stark contrast, it is also a country where local authorities are central to the delivery of facilities. In the UK, sport and recreational provision is a low-priority, discretionary-line item in local authority budgets, too often to be cut first.
Finland’s sports policy places health enhancement before competitive or high-performance sports. It prioritises well-being and health and supporting children’s and young people’s growth through sports. It recognises the health benefits of the cradle-to-grave approach that is so important. We need a health and fitness programme that is both low-cost and designed from cradle to grave. Cycling, swimming and, in Finland, cross-country skiing figure prominently—all activities that you can do from five to 105. A similar nationwide approach in this country would be politically popular. I can think of no better leader of that initiative than the Minister.
We have a nation inspired by the Games. Surely it is time to translate that inspiration into participation and, in so doing, embed recreational activity as a fundamental building block for a true Department of Health in the 21st century.
Baroness Grey-Thompson (CB)
My Lords, I thank noble Lords for allowing me to speak briefly in the gap.
I am a huge fan of the benefits of sport and exercise science if it is used in the right way. In my career I have undergone numerous tests, aerodynamics, skinfold measurements, maximum lung capacity testing, something called a VO2 test—there is nothing like pushing on a treadmill until you feel you are about to collapse, and then having needles stuck into you—and I can confirm that ice baths are indeed vile. On one memorable birthday, my husband bought me three metres of aluminium so that I could build a racing wheelchair that was one kilogram lighter than that which was commercially available.
I agree with the noble Lord, Lord Moynihan, about history. There is an assumption that not much has gone on before and that sports science testing has been used for a long time. I also agree with the noble Lords, Lord Krebs and Lord Addington, that athletes do not want to be used as guinea pigs—I certainly did not—unless it is your own idea, and then it is marvellous. However, it is quite difficult sometimes to get sports scientists to think about doing things in a different way.
Within limited careers, it is important that we disseminate the information so that it goes through to quality coaching, the teaching of good physical literacy, and enables us to educate our young athletes right through to senior squad level, so that they remain injury free for as long as possible.
One of the problems I see going forward—and I have seen way too much of it—is that of literally reinventing the wheel: we do not learn from the past, somebody comes along with a new idea and sometimes wastes money doing things that have previously been done. Overall, lottery funding has significantly helped our athletes by ensuring they get the right support at the right age. As an athlete who benefited from it, I think that is tremendous. We need to keep urging national governing bodies to invest and use sports science. Some sports are using less of it now than they were 15 years ago.
Overall, there has been a positive influence on the general population. The design of sports equipment at Paralympic Games level has led to better design of day chairs. They are lighter, stronger and more aesthetically pleasing. Certainly in amputee running, the work that has gone into the development of prosthetics for sprinters has had a massive positive influence on non-runners in terms of their walking gait and equipment, and it is more generally accepted that they deserve really good prosthetic equipment. There have been some very positive things that we need to keep pushing forward.
Finally, I commend the work of the committee. I am very pleased and I am grateful for being allowed to speak.
Lord Hunt of Kings Heath (Lab)
My Lords, I, too, welcome this debate and the report of the committee chaired by the noble Lord, Lord Krebs. I think it is a truth universally acknowledged that the Olympic Games in London were outstanding and never to be forgotten and that the legacy is as important. The argument for investing in sports science in elite performance and in non-elite sports and exercise has been very persuasively put by all noble Lords who have spoken in the debate this afternoon.
The question first posed by the noble Lord, Lord Krebs, was: the performance of Team GB in the Olympics was outstanding, but could it have been even better if even more use had been made of science? The noble Lord, Lord Moynihan, answered in the affirmative and pointed the way forward in terms of there being a very strong case for future investment in science in relation to elite sport.
The noble Lord, Lord Krebs, referred to heated shorts. As a commuting cyclist, I am very attracted to the idea, particularly as Christmas is coming up and the winter will, no doubt, get colder. More seriously, it would be good to hear from the noble Earl, Lord Howe, about future investment in sports science in elite and non-elite sports. The noble Lord, Lord Moynihan, made a very important point when he said that there is a problem with the sharing of knowledge with the vested interests of investors in sports science as opposed to the non-vested interests. That does not necessarily have to be government, but government can, no doubt, play an important role.
The other question that arises from this is about the extent to which we are investing in science to increase our knowledge of the impact of exercise on good health. This is the second argument that has been put in your Lordships’ debate this afternoon. The noble Lord, Lord Krebs, and other noble Lords referred to the health benefits of exercise, and it is striking that although this is increasingly known about, it does not seem to have much impact on the general public’s desire to exercise. The post-legacy figures for the public taking up sport or more generally taking part in exercise have been very disappointing. The figure of 150 minutes of moderate exercise per week seems as far off for many of the population as it ever was. Noble Lords probably know that I live in Birmingham, and my understanding of the latest statistics there is that 22% of young people in Birmingham are classified as obese. That is a shocking figure. We know the impact that that will have in future years in terms of health inequalities and demands being made on the health service. As we know, we have an epidemic of diabetes in many parts of society and of the country. As regards the figure of 22% obesity among young people in Birmingham, you do not need much knowledge of science to know that that will lead to huge pressures being put on the health system in that city in the coming years.
I wish to ask the noble Earl, Lord Howe, about the role of general practitioners. A number of points have been made in that regard. It was argued persuasively that if GPs were to prescribe exercise that might have a positive impact in terms of people’s response. We know that as regards health issues, particularly smoking, nothing is more effective than a GP telling a patient that he or she needs to think about giving up smoking. It would be helpful to ensure that GPs are all facing in the right direction on this issue.
Does the noble Earl think that health and well-being boards ought to prioritise investment in sport and exercise vis-à-vis local authorities and the health service? After all, health and well-being boards recognise that local authorities have a big role to play in this area. Local authorities are also responsible for running extensive leisure services—or at least they were—and have a wider role in this area in liaising with schools. Surely sport and exercise ought to be a major priority in joint strategic needs assessments, which attempt to bring together wider health policies. Will the noble Earl assure the Committee that the Government will push health and well-being boards in that direction? I would argue that they could be the local equivalent of the committee set up by the BMA in the 1930s, and its successor organisations, to which the noble Lord, Lord Moynihan, referred.
Another very important point raised by the committee of the noble Lord, Lord Krebs, was the attitude of the Department for Culture, Media and Sport towards the health benefits of sport. The Government reject the committee’s assertion. My own experience in government suggests that there is a gap between the Department of Health’s policy of encouraging exercise and the DCMS’s focus on sport. Indeed, I have taken part in theological debates between the two departments on where one element ends and the other begins. This is a fruitless exercise as it is patently obvious to anyone with any common sense that sport and exercise go together. If those departments find it difficult to resolve that issue, something else needs to happen. That could involve assistance in the form of a Cabinet committee, to which the Government refer in their response to the report of the noble Lord, Lord Krebs, or, as the noble Lord, Lord Moynihan, suggested, we should simply make it clear that a good health outcome is the number one priority. I believe that something more needs to happen in this area.
Noble Lords have not really mentioned the role of the Department for Education despite the fact that it has a crucial role to play in this area. We have seen very regrettable reductions in government support for school sport and I hope that the noble Earl’s department has actively pointed out to Mr Gove the error of his ways. Following the reaction to the original cuts in government support for school sport, the Department for Education partly retracted its proposals and established the School Games project—as we are told in the Government’s response—which attempts to provide more opportunity for pupils of all abilities to take part in competitive sport in schools. But I would like to see more—and I would like to see the Department of Health become the champion in Whitehall of the need to promote school sports, competitive sports and other exercises.
I would also like to hear more about how we can encourage sports clubs to work in schools. The noble Baroness, Lady Heyhoe Flint, has done so much to encourage girls to take part in competitive sports; she will know of the Chance to Shine project, which is about encouraging state schools to come back to playing cricket. Part of that approach is to encourage local cricket clubs to send their coaches into schools. I would like to hear more about how the Government might encourage that in future.
We then come to the issue of investment. The noble Lord, Lord Krebs, referred to the role of the National Centre for Sport and Exercise Medicine. Clearly, there is a concern here about its future viability. Can the Minister give the Committee some comfort that the Government recognise that continued funding support needs to be provided? Does he think that the Department of Health’s own research and development fund could come up with some support? It seems a persuasive argument that, given that the department is concerned with improving the health of people in this country, and given that sports and exercise clearly have a vital role to play in doing so, I would have thought that the argument for some support and funding from his own department’s R&D fund, which is not extensive but is very significant, ought to be considered.
The noble Lord, Lord Addington, suggested that the noble Earl, Lord Howe, and I were interlopers in this debate. However, I have no doubt that the encouragement of sports and exercise can play a critical role in improving the nation’s health and well-being. I am also in no doubt, having listened to the debate and read the report, that investment in science and science research could help us and use that knowledge to encourage more of the population to play a part. When one looks at some of the great health problems that we face—of frailty, dementia and obesity—one can see emerging research that suggests that exercise and sports can very much help us to meet some of those challenges. Given the department’s role, does the Minister not accept that it could play a much bigger role in this whole area in future? I hope that the department will accept that opportunity.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, first, I congratulate the noble Lord, Lord Krebs, on securing this debate and on the excellent work of the Select Committee on Science and Technology, which he chairs, in highlighting the important issues associated with sport and exercise science and medicine. The Government have welcomed the Committee’s report and its focus on the quality and application of research in this area.
We agree that the biomedical basis for improving performance of elite athletes needs to be of the highest quality possible and meet international peer review standards. For this reason, UK Sport and the English Institute of Sport have robust processes in place to quality-assure the projects that they support. For example, all projects are reviewed by an independent research advisory group, which includes a number of leading experts in the field of sport science.
Our elite sport programme is the envy of the world. UK athletes continue to perform strongly at the highest levels, thanks to the funding and technical support they receive from UK Sport and the home country sports institutes. Based on Team GB’s performance, there is no reason to doubt the quality or appropriateness of the research.
In the light of this success, it makes sense for this knowledge to be shared so that it might benefit non-elite sports men and women. Indeed, there are a number of ways in which UK Sport disseminates research findings. However, it is important to remember that the end goal of research is to support and maximise athletic performance on the world stage. Although UK Sport and the English Institute of Sport concede that more could be done to disseminate their findings, they need to do so without compromising the UK’s competitive edge.
The committee’s report rightly highlights the societal and economic costs of inactivity—a point well made by the noble Lord, Lord Hunt—and the benefits of exercise in promoting health and treating chronic disease. Indeed, the UK CMOs’ report, Start Active, Stay Active, contains recommendations across the life course on the levels of physical activity needed to achieve these benefits. The noble Lord, Lord Hunt, mentioned the research funded by my department. I can tell him that the department’s National Institute for Health Research funds a wide range of research on the benefits of physical activity.
I completely agree with my noble friend Lord Selborne that it is of crucial importance that breakthroughs in sport and exercise science and medicine are translated into health benefits for patients and the public whenever relevant and applicable. For example, characterising the mechanisms by which heart function improves with exercise in elite athletes and the military can help explain how heart function is impaired in people with diabetes or with high blood pressure. There are numerous examples of where the work of UK Sport and the English Institute of Sport is linked to benefits in the health and wellness domains. These typically involve partnerships with universities and necessitate the sharing of knowledge—for example, vitamin D supplements for bone injury and soft tissue injury recovery. There are a number of other channels, including formal and informal events where knowledge is shared within and outside the elite sport community. I think we can therefore be reassured about one of my noble friend’s central points—that taxpayer funding should lead to benefits to the wider public.
Translational health research is a high priority for the Government. In August 2011 we announced a record £800 million to support this through biomedical research centres and units funded by the National Institute for Health Research. Some of this money has been used to establish a new research unit at Leicester and Loughborough. This unit is helping to expand lifestyle interventions available for the prevention and treatment of chronic diseases. The funding is also enabling the NIHR biomedical research centre at University College London Hospital to study the mechanisms through which exercise promotes health, and how to deliver effective exercise strategies.
An important link in all this, which was mentioned by the noble Lord, Lord Krebs, is the first ever National Centre for Sport and Exercise Medicine, a legacy bid commitment of the 2012 London Games. The £30 million project funded by health is on track, with the London hub now actively functioning and treating patients. Loughborough is anticipated to become operational in 2014, and Sheffield will be the final site to become operational in late 2015. As well as supporting elite athletes, the centre’s influence will extend to local NHS hospitals and primary care facilities to provide a service for anyone who plays sport. Public Health England is overseeing the continuing development of the national centre and is keen to ensure that the centre performs a clear leadership role for sport and exercise science and medicine for the next five years and beyond. Public Health England is supporting the national centre to position it as an international voice on sport and exercise medicine, with strong links with the wider physical activity agenda and a global academic platform. PHE is considering an outline business case for funding in 2014-15 to support co-ordination across the national centre and as pump priming for long-term sustainability. The centre is keen to be seen as an independent organisation which generates income through direct patient care and research funding. It has appointed R&D leads to start that work. We can see the makings of the centre as a sustainable long-term organisation going forward.
The noble Lord asked about the centre as a source of a national strategy. Public Health England is, once again, working with the national centre to develop a sport and exercise medicine network of academics to help collaboration in research funding bids across multiple academic units. However, potential for conflict of interests has emerged as a stumbling block in developing a national research strategy.
In the context of public health, the noble Lord, Lord Hunt, asked about the role of health and well-being boards and his view that they should be prioritising investment in exercise. Many noble Lords would identify with that view but we must remember that health and well-being boards have been given, quite explicitly, the freedom to prioritise their own spending in relation to local public health priorities. However, I expect Public Health England to show the way in the area for local health and well-being boards to follow.
We envisage that the national centre will continue to attract grants from the research councils and deliver work of the highest quality, with the support of their world-leading host institutions.
Given the important health benefits of physical activity, the Select Committee was right to focus attention on the training of health professionals at all levels to be able to prescribe exercise for prevention and treatment. Clearly, the content and training curricula for doctors is determined by the medical schools and royal colleges, but the Department of Health will work closely with Public Health England and other interested organisations to make the case for physical activity in healthcare. On a more practical level, I am pleased to announce that Public Health England has commissioned an e-learning module on physical activity for healthcare professionals, to be distributed by BMJ Learning.
The noble Lord, Lord Krebs, mentioned the National Institute for Health and Clinical Excellence. NICE plays an important role in turning research evidence into authoritative and practical guidance for practitioners and commissioners. Where appropriate, both its public health and clinical guidance recognise the contribution that physical activity can play in the prevention, management and treatment of particular conditions, ranging from obesity to osteoarthritis and low back pain. I assure the noble Lord that many of NICE’s clinical guidelines recognise the important role that exercise and physical activity can play in the management of individual conditions. For example, its clinical guidelines on osteoarthritis and low back pain already recommend exercise. I am confident that NICE will continue to consider the role of exercise and physical activity in the management of particular conditions, where the evidence allows.
The noble Lord, Lord Hunt, asked about the scope for disseminating exercise guidance for specific chronic conditions to GPs. We are exploring the options for a national dissemination of this learning, which would need to be underpinned by better training for doctors in the benefits of physical activity. The new e-learning package commissioned by Public Health England represents an important step in that direction.
Exercise professionals also play an important role in supporting the most vulnerable patients to exercise as part of their treatment for a range of conditions—for example, as part of cardiac rehabilitation. Ukactive has been working with the royal colleges and training organisations for the fitness industry to develop new professional and operational standards for exercise referral. That work is awaiting the update by NICE of its existing recommendations on the use of exercise referral schemes, which it plans to publish in September next year.
The noble Lord, Lord Krebs, asked about the possibility of incorporating physical activity into an indicator in the quality and outcomes framework. This year saw the introduction of two new QOF indicators for physical activity. Those measured the percentage of patients with hypertension who had been screened for inactivity and, of those not meeting the guidelines, the percentage offered brief advice on how to be active. I have to tell him that these indicators have been retired from the 2014-15 QOF as part of the exercise to free up space for GPs to provide more personalised care. That agreement saw a reduction of the QOF by more than a third. However, the NHS health check programme continues to recommend that patients should be screened for their physical activity levels and the delivery of brief advice or an exercise referral for those who are shown to be inactive. At the same time, we are actively considering the case for continued monitoring of the retired QOF indicators to help inform NHS England’s developing primary care strategy.
We are committed to the dissemination of the UK Chief Medical Officer’s guidelines for physical activity, to both the public and medical professionals, and we are working with Public Health England and other organisations to help make healthcare professionals aware of those guidelines.
My noble friend Lord Addington asked why there are not more sports injury people in A&E to treat soft tissue injuries. I agree that athletes understand the importance of prevention. Sport and exercise medicine is, as he knows, a young specialism. Part of the work of the National Centre for Sport and Exercise Medicine will be to scale up sports and exercise medicine services and it will be important to ensure that supply is linked to demand.
The noble Lord, Lord Krebs, asked about the quality assurance of research initiated by the DCMS. I have already alluded to that very briefly. There is no specific monitoring or assessment undertaken by the DCMS of the research commissioned by its arm’s-length bodies. However, UK Sport acknowledges that further steps are necessary to provide stringent assessments of standards and has already made progress on this for the next funding cycle from 2013-17. This includes the appointment of an independent, technically structured sub-committee in addition to the research advisory group that has been in existence for a number of years. That will provide a more extensive overview of all investments in science, medicine and engineering.
Sport is a key part of a wider physical activity agenda, with an important role to play in getting and keeping people active and thereby improving their health and well-being. All sport is physical activity but an important part of Sport England’s youth and community strategy is pilot funding to support how sport can best contribute to improving health and, at the same time, grow weekly sports participation. There are important links between elite sport and the health of the public.
Aligned to the ambition of getting more people participating in sport once a week, Sport England has focused its work on tackling inactivity as this is where we can make a significant contribution to reducing health inequalities and produce the greatest potential health benefits.
Returning to elite sport, the fruits of National Lottery funding are there to be seen in Team GB’s recent success in the Olympics. I was reminded today that in 1996 GB won only one gold medal. In 2000, that went up to 11; in 2004 it was 9; in 2008 it was 19; and last year it was 29 gold medals.
However, the lasting impact of sport and healthy living has always been at the centre of the legacy ambitions of the Olympic and Paralympic Games. Our 10-point plan includes: elite sport, world-class facilities, major sports events, community sport, the strategy for youth and community sport, the charity Join In, school games, physical education and disability sport. For example, there will be £150 million a year for primary school sport starting in September 2013 and £1 billion over four years to boost youth and community sport.
In his Autumn Statement, my right honourable friend the Chancellor of the Exchequer announced that the Government will provide £150 million of funding to continue the school sport premium into the academic year 2015-16, meaning that primary schools will be able to put in place longer-term plans to improve their PE and sport provision. This is not just about elite sport. It will help people start to be and stay active, whether through sport or wider physical activities.
My noble friend Lord Moynihan asked about a cross-government push. The Olympic and Paralympic Legacy Cabinet Committee is the focal point for legacy and is well placed to ensure a joined-up approach to sport and physical activity. The Department of Health is obviously the lead department for health in promoting physical activity. We are working with other departments to support active lifestyles. Departments have jointly made available £300 million to raise the game in primary school sport. The Department for Transport awarded £77 million to increase cycling in eight of our major cities, with £1.2 million from the Department of Health to support walking. More than a million more people are playing sport than in 2005. I suggest to noble Lords that that progress is positive. As regards the Government’s effort, all this adds up to a significant investment in health-enhancing physical activity, driven by what we have learnt from sport and exercise science and medicine.
Lord Krebs
I thank all those who have taken part in this debate. It has been a privilege to hear the contributions of all noble Lords, but particularly of those who have first-hand experience of participating in elite sports as Olympians or other forms of competing at a very high level.
One theme has come through repeatedly: the huge importance of the health benefits of sport and exercise in tackling the chronic diseases that plague the population of this country and will cost us huge amounts of money in future. The noble Lord, Lord Addington, raised a very important point when he talked about the enjoyment of sport and exercise. Perhaps the key to encouraging people to be more active is to show them the enjoyment that can be obtained from it. He also referred to the art of coaching elite sports men and women. There may well be an art to it but that does not mean there cannot be science as well working alongside the art. The point made by the noble Lord, Lord Moynihan, and others about learning the lessons of history and from other countries is immensely important. Although we are obviously doing many things very well, we must not forget the possibility of healthy plagiarism from other countries and the history books.
I thank the noble Earl, Lord Howe, for his responses to the questions raised during the debate. I was encouraged to hear about additional investment in sport and exercise science and medicine, the sustainability of the national centre and the e-learning module that will help professionals to disseminate the importance of exercise to patients and the public at large. I also noted and welcome that he said that there was an emphasis on disseminating and publishing the results of work on elite athletes so that it could benefit the wider community. I still very much hope that a national strategy for sport and exercise science and medicine will emerge in the not-too-distant future, but I am very pleased with the responses obtained.
EU: Fraud (EUC Report)
(11 years ago)
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Lord Stoneham of Droxford
That the Grand Committee takes note of the Report of the European Union Committee on The Fight Against Fraud on the EU’s Finances (12th Report, Session 2012–13, HL Paper 158).
Lord Stoneham of Droxford (LD)
My Lords, this Motion was at one stage in the name of the noble Baroness, Lady Corston. As noble Lords may already know, the noble Baroness was unwell last week and is recuperating at home. Therefore, I am speaking on her behalf.
The European Union Committee’s Sub-Committee E on Justice, Institutions and Consumer Protection, of which I am a member, prepared the report which is now before the Grand Committee. The Motion invites the Grand Committee to take note of the report The Fight Against Fraud on the EU’s Finances. I welcome the involvement in this debate of my noble friend Lord Newby. Given his experience in Customs and Excise, I cannot think of a Minister more qualified to reply to a debate on fraud.
In July last year, under the considered and diligent stewardship of the predecessor of the noble Baroness, Lady Corston—the noble Lord, Lord Bowness—the sub-committee of which I am a member decided to launch an inquiry into fraud on the European Union’s finances. The committee sought to gauge the vulnerability of European Union funds to fraud and assess the effectiveness of the European Union’s anti-fraud system and the effectiveness of the member states in pursuing any crimes perpetrated against the European Union’s budget.
In addition, the inquiry was timed to coincide with the publication of a directive aimed at protecting the European Union’s financial interests through the criminal law. We saw more than 30 individual witnesses and some members of the committee, including myself, travelled to Brussels, where we saw all the relevant EU agencies and bodies tasked with dealing with fraud, plus a number of MEPs. We are very grateful to all those who submitted evidence to our inquiry.
Since 2011, the Commission has produced a number of legislative proposals designed to improve the protection of the EU’s financial interests which are highlighted in the report. In addition, since the report’s publication in April this year, the Commission has also brought forward a regulation reforming Eurojust—the European Union’s criminal justice agency—and the controversial proposal introducing the concept of the European Public Prosecutor’s Office, which is designed to prosecute crimes affecting the Union’s financial interests. The Government have decided not to opt in to the Eurojust proposal, against the express view of this sub-committee, and the coalition agreement has ruled out the UK’s participation in the European Public Prosecutor’s Office.
European law makes combating fraud on the EU’s finances the responsibility of both the European Commission and the individual member states, but the member states’ authorities remain responsible for administering 80% of the money. Given this fact, the overwhelming weight of responsibility for the protection of the EU’s financial interests falls on the individual member states and, in the context of criminal frauds, their crime-fighting bodies.
The report recognises the hidden nature of criminal fraud. We understand that estimating the levels of fraud perpetrated in the individual member states with any degree of accuracy is very difficult. These problems are magnified once you introduce the additional complexity of the European Union’s 28 member state structure, but these difficulties should not allow the member states to ignore their responsibilities.
I plan to concentrate on four key aspects of our report: first, the vulnerability of EU funds to fraud and their potential scope for fraud; secondly, fraud specifically in the UK related to EU funds; thirdly, the European fraud concerning VAT; and, fourthly, the European Union’s anti-fraud structure. I turn first to one of the main conclusions of our report; namely, the vulnerability of EU funds to fraud. In 2011—the year that forms the main focus of the committee’s inquiry—the EU’s budget was €141.9 billion. In 2011, the total government revenue in the UK for the same year was £589 billion. The UK’s budget is three and half times the EU budget.
Under its obligation to report annually on its anti-fraud work, the Commission produces a figure for fraud in the European Union based on the frauds reported to it by the relevant member state authorities. The figure for 2011 was €404 million, or 0.28% of the EU’s 2011 budget. Many of our witnesses told us that this was an underestimate of the problem, and Rosalind Wright QC, former director of the Serious Fraud Office in the UK, said this figure represented the tip of the iceberg. The Commission rejected the iceberg analogy and suggested that EU funds were no more prone to fraud than national budgets, while the UK Government argued that EU funds,
“will always be vulnerable to fraud”.
The UK’s National Fraud Authority which, until its recently announced abolition by the Home Secretary, was tasked with co-ordinating anti-fraud action in the UK, told us that the current level of fraud suffered by the UK public purse amounts to about £20.3 billion per annum, which suggests that for 2011 in the UK, 3.4% of the public purse was lost to fraud. So, in line with the Commission’s evidence that the EU’s budget is no more prone to fraud than national budgets, the committee took the estimate for fraud in the UK and applied it to the EU’s annual budget for 2011 and arrived at a figure for fraud on the EU’s budget for 2011 of €4.82 billion, a figure more than 10 times more than the Commission’s official figure.
The committee’s report recognised the various caveats and warnings that have been applied to the process of deriving these figures for fraud on the EU’s budget from national figures. Nevertheless, it is clear to the committee that the Commission’s official figure for 2011 of €404 million offers only a glimpse of the levels of fraud perpetuated against the EU’s finances. If the Government are right that EU programmes will always be vulnerable to fraud, and in some member states increasingly so, the final figure will be even greater. I note that in its recent impact assessment in support of the proposed European Public Prosecutor’s Office, the Commission suggested that the actual level of fraud on the EU’s budget was in the region of €3 billion, so it is moving towards the committee’s figure.
In their formal response to this report, the Government expressed concern about our estimate of the level of EU fraud, adding that they did not recognise the committee’s figure. We were disappointed with the Government’s lack of engagement with this key conclusion of our report, so I offer the Minister an opportunity during this debate to engage with this aspect of our conclusions. Given this disappointing context, we were unable to see how the member states’ and Commission’s claims to protect the EU’s financial interests could be justified. We hope that the introduction of the directive on protecting the EU’s financial interests via the criminal law, which introduces an EU-wide definition of fraud on the EU’s finances, will help to alleviate this problem.
We also looked specifically at the extent to which fraud against the EU’s budget was committed from within the UK and assessed the rigour of the Government’s duty to report evidence of fraud to the Commission. I regret that the picture that emerged was not good. The committee recognised that the same difficulties that apply to estimating fraud on the EU’s budget also apply to assessing the levels of EU fraud committed from within our shores. None of our witnesses was willing to place a precise figure on the problem, but the National Fraud Authority suggested a figure of £41 million, about 1% of the total EU-funded expenditure in the UK. However, it warned us to treat this estimate with a “high degree of scepticism”.
What emerged is that no single government department or body appeared to co-ordinate or take ownership of the UK’s fight against EU fraud. The Government told us that they take all these matters seriously and EU fraud “extremely seriously”, but the responsibility to deal with fraud and to report it to the Commission falls on the individual department dealing with the relevant funds. When asked, the Minister was not “sure” whether the Government collated all the different departmental figures into one place. This lack of co-ordination concerned us and confirmed our view that individual member states, including the UK, do not devote significant resources to pursuing EU fraud and, as is their responsibility under EU law, to reporting it to the Commission.
We therefore recommended in the report that the Government nominate a single department or agency to co-ordinate the fight against EU fraud in the UK and to take responsibility for attempting to quantify the problem. In their response to us, the Government agreed that this information should be shared between government departments and that, while there is room for improvement, such sharing already takes place. We welcome this, although we have wondered why it has been so difficult for the committee to get a clearer estimate of the level of the problem in the UK, even allowing for the nature of fraud, from those witnesses we saw from the relevant national bodies.
Furthermore, on 2 December the Home Secretary by way of a Written Statement announced the abolition in March 2014 of the National Fraud Authority. I note that her Statement makes no mention of EU fraud, nor does it assign responsibility for dealing with the problem to any specific UK body. I therefore have to ask the Minister: who will be responsible for leading the fight against EU fraud in the UK after 31 March 2014?
I turn now, briefly, to VAT fraud or carousel fraud, as it is often known. This is a highly technical fraud perpetrated against the VAT system involving a series of often non-existent transactions involving the purported movement of goods and services within the EU’s single market. At the outset of our inquiry, the Government were of the view that VAT fraud was outside the scope of our investigations, but it was clear from the evidence received that this remains a very significant problem throughout the EU. The report is clear that the committee understands the Government’s opposition to any EU measure or action which would extend the EU’s competence into tax enforcement in the UK, but we argue that this legitimate concern should not allow fraud which diminishes the amount due to the EU to be ignored or not pursued with vigour. We have our doubts that existing EU measures are tackling this problem and, therefore, the report called on the Government to suggest alternative robust measures to combat VAT fraud. In their response the Government reassured us that they are fully committed to fighting VAT fraud and that it is “pursued with vigour” by HMRC. Perhaps the Minister will confirm what that figure will be. We do not doubt their determination, but are the Government sure that the other member states’ authorities pursue this problem with similar enthusiasm and vigour?
The committee considered the quality of the EU’s current institutional framework for dealing with fraud. We found that OLAF—the EU’s anti-fraud body— remains an agency of limited powers. Budgetary restrictions force it to be selective about the cases it pursues. We are concerned that if OLAF were to be seen as a body whose recommendations are never followed up by the individual member states which lack enthusiasm in dealing with EU fraud, its effectiveness will be questionable. We also fear that the relationship between the EU’s crime-fighting agencies—Europol, Eurojust and OLAF—as currently constituted represents a tangled web which undermines any co-ordinated response to fraud on the EU’s finances.
Finally, given that it was repeatedly proposed as a solution to the problems inherent in the EU’s anti-fraud system, the report briefly addressed the then unpublished proposal for a European Public Prosecutor’s Office. This was brought forward by the Commission in July, and we issued a reasoned opinion challenging the proposal on subsidiarity grounds. We concluded the report by asking the Government how they would propose tackling the flaws identified in our report without participating in the European Public Prosecutor’s Office proposal. We have as yet not received a satisfactory reply to that question and would be grateful if the Minister could address the issue in his reply.
While combating fraud in the EU’s finances may pose unique challenges for both the EU’s institutions and individual member states, protecting the public purse in these difficult economic times remains the responsibility of us all, as we say in the opening chapter of the report. Those of us committed to countering negative public scepticism about EU institutions also have every interest in a more vigorous approach to eradicating the perception and reality of fraud. I beg to move.
Lord Bowness (Con)
My Lords, I thank my noble friend Lord Stoneham of Droxford for his comprehensive introduction of this report and for his support—together with that of the noble Lords, Lord Rowlands and Lord Anderson of Swansea, the noble Earl, Lord Sandwich, and my noble friend Lord Eccles—during the conduct of this inquiry under my chairmanship of the sub-committee. I am sure that we all want to send the noble Baroness, Lady Corston, good wishes for recovery from her illness.
I am delighted that the House, albeit eight months after publication, now has the opportunity to debate this report. I will emphasise a few points, although they have been covered very adequately by my noble friend. I particularly regret the rejection by Her Majesty’s Government of the suggestion that one department have overall responsibility for ensuring that the fight against fraud is kept to the forefront of everyone’s attention. I note from the response that the Government believe that individual departments are best placed to detect, prevent and rectify fraud or irregularities and that reducing this to a single department would lead to duplication and slow down the process. Of course, the report did not advocate that but rather that one department should have responsibility for co-ordinating the efforts of each. While we understand a lack of knowledge of the amount of undetected fraud, it is less understandable why, in evidence, the Government were unable to give us a total figure for detected fraud.
We also advocated one point of contact between OLAF and the United Kingdom. The Government highlighted the difficulties of different jurisdictions within the United Kingdom. However, that should not create a problem. This is still one country with a national Government. There could well be a single point of contact. What happens thereafter would and should remain a matter for the relevant devolved Administrations.
We are also well aware of the Government’s position on the European Public Prosecutor’s Office. Indeed, the Committee and the House made their position on that clear. I do not know whether the present proposal will go ahead under enhanced co-operation but the recommendation in the report urged the Government to make clear what proposals they would bring forward to tackle this problem. Like my noble friend Lord Stoneham, I ask the Minister to explain further.
We were singularly disappointed by the apparent lack of engagement by the Government and HMRC in the course of this inquiry and report. That appeared to stem from the belief—a proper one—that matters of taxation are the exclusive prerogative of the member states. However, protecting one’s turf should not exclude recognition of a problem or the search for a solution. That I felt particularly true of the problem of VAT fraud and its international elements, coupled with the complicated and some may say tenuous connection between VAT gathered and money due to the European Union. It seemed and still seems to be an area of legitimate inquiry for the committee. That view was confirmed when the Minister told us, “Oh, it was only a very small proportion of the money that went to the European Union compared with VAT totals as a whole”. That small sum was £2 billion.
The committee went to Brussels and saw OLAF. We were singularly concerned about the apparent discord between the director and the supervisory committee, which evidenced itself in the morning that we were there. I do not know what the outcome is. Perhaps the Minister, having seen our report and the response, will be able to bring us up to date on the present position.
We also talked to a number of MEPs and the relevant committees. They showed considerable concern and awareness of the problem—a view shared, I believe, by my colleagues on the committee—but perhaps do not have the power necessary to make a real difference. I will be interested to hear from the noble Baroness, Lady Morgan of Ely, who is winding up for the Opposition for the first time in a European debate in which I have taken part, how, in the light of her considerable experience in the European Parliament and of matters of this kind, she sees the problem being dealt with.
Having been got up at a somewhat ungodly hour to be interviewed about this report by a radio presenter, he missed the whole point of the report and raised with me the question of the European Union’s accounts not having been signed off by the auditors. I suggested to him that it was not really relevant to the point. However, perhaps we should remember that it is not an easy matter to deal with. The stringency of the rules and the fact that the money is dealt with by member states leads to a difficult situation in the Union’s accounts. To put that in context, I read in the Times this morning that the Auditor-General has declined to sign off the accounts of the Department for Work and Pensions and that depending on whether you believe the Telegraph or the Daily Mail this is the 24th or 25th consecutive year in which that has occurred.
Lord Davies of Stamford (Lab)
My Lords, I congratulate the noble Lord, Lord Bowness, who was the chairman, and his sub-committee on their decision to focus on this extremely pertinent matter and on the thoroughness of their engagement in this revealing inquiry. I also take the opportunity to welcome my noble friend Lady Morgan to the Front Bench on a European issue. It is the first time I have had the privilege of standing beside her or behind her on a European subject on which she has been leading for my party.
Three particularly striking and salient points emerge from this report. The first relates to the amount of fraud. The Commission suggests that fraud was running at €400 million in 2011—I have taken this figure from the report—which would be 0.28% of the current budget of the EU. That is a very low figure indeed. The committee obviously thinks that that is an understatement and has decided that it wants to multiply that to produce a figure that corresponds to the fraud estimated to exist in this country as a proportion of its public expenditure. It came up with a figure roughly 10 times greater than the commission has proposed. It does not have any reason for that particular multiple and it may be that the truth lies between those two figures. However, what is inconsistent with the picture given by this report is the notion, which is purveyed the whole time in Eurosceptic propaganda, that the European Union is a sink of iniquity in terms of fraud. Clearly the level of fraud is, at worst, comparable with the level of fraud in this country. That is a bad situation. All fraud is regrettable and must be dealt with thoroughly. It should be of particular concern to parliamentarians because it is our job to monitor the performance of governance in this area. Nevertheless, the figures before us will be quite surprising for the British public, who are used to being fed the propaganda line by the media in this country that the level of fraud in the EU is vastly greater than here. Some of the analogies that the noble Lord, Lord Bowness, has cited about British government departments’ records in that area reinforce that.
The second matter is very salient. It is quite clear that the overwhelming majority of fraud, perhaps 99%, arises in the area where national Governments are disbursing EU programmes. It does not arise in the institutions of the Union where fraud is an extremely rare event. That is even more striking in relation to the false propaganda that I referred to. There is an irony here because the Eurosceptic lobby in this country, which is very powerful, as we know, always makes out that this fraud is a consequence of too much European integration and is part of the evil of European integration or, they would say, the evil of European federalism. In actual fact, ironic as it is, it is quite clear from these figures and from the reality of the position that the reverse is true. If in fact these programmes were all run by the European Commission with disbursements under the CAP, the structural funds or the cohesion funds and were the responsibility of European officials, there would not be anything like the same kind of problem. There would be vastly less fraud. The problem is that the national states are disbursing this money, and it is in the national states that the losses, fraud and corruption occur, in some nation states much more spectacularly than in others. I shall come on to that in a moment.
In a way, the reality is not evidence of an excess of federalism in the European Union but an argument for an insufficient degree of federalism in the European Union. I do not suggest for a moment that it is practical to have all the community budget disbursed by an enlarged Commission. In the United States, a lot of federal programmes are actually run by the individual states, and they are responsible for making disbursements under those programmes. Nevertheless, that is a very important and authoritative corrective to the prevailing and utterly false impression given in this country quite cynically by the media purveying a picture that is the exact obverse of the truth.
The third salient point that emerges very strikingly from this report is that there have been quite serious impediments in some of the member states in following up on allegations of fraud or prima facie evidence of fraud that have been brought to their attention by OLAF. I refer noble Lords to the very interesting Table 1 on Page 29 of the report. It is headed,
“OLAF referrals to Member States”.
The left-hand column shows the number of referrals by OLAF of prima facie evidence of fraud. All the columns are interesting but for the sake of brevity I switch right away to the far right-hand column which shows the level of convictions. Noble Lords will see that for all 27 member states—there were 27 at that time—there were 199 convictions out of 1,030 referrals. I calculate that as being roughly 18%. That is the average. One sees immediately that the United Kingdom is slightly below that. I calculate that figure as being about 15%; so in this country we are not quite as good as the average. The worst performers are Italy, Poland and Greece, which all have a record of about 6% or 7% of convictions in relation to the number of referrals. Far and away the star performer is Germany, with almost 40% of referrals resulting in convictions.
OLAF is a single organisation involving people who will be working on different cases involving different fraud allegations in different parts of the Union at any one time, so one can assume that their standard of performance and the solidity of the cases that they make will be the same irrespective of the member state where the fraud happens to have occurred. That means that there is an enormous discrepancy in the extent to which these allegations of fraud are followed up. That is a very serious matter for EU taxpayers as a whole. The question is: what do we do about it?
The report does not avoid the question of what we do about it and the inquiry took a lot of evidence on that subject. For example, I refer noble Lords to the testimony given to the committee and quoted on pages 34 and 35. Paragraph 97 states:
“The Director-General of OLAF”—
that is one perspective, but a very important one—
“gave us a vivid account…of the multi-jurisdictional problems confronting OLAF on a routine basis. He argued that such multi-jurisdictional crimes against the EU’s budget are ‘European by nature, because you cannot say it is specific to this nation or that one’. He was clear”—
this is my emphasis—
“that the solution to this problem is an EPPO”—
in other words, a European Public Prosecutors Office.
“Most of the witnesses agreed … Rosalind Wright QC”—
she is, of course, a former director of the Serious Fraud Office—
“offered two reasons in favour of an EPPO; first, the current unwillingness of the Member States to prosecute these crimes … and, second, the fact that ‘most of these very large frauds are committed across national boundaries’. Drawing on her time at the Serious Fraud Office, she explained that in such cases it had been hard to bring everyone together under one jurisdiction and that an EPPO would help”.
The committee itself, which is an all-party organisation and has always to express itself with great reserve and care—I understand these things because I sit on another sub-committee of this House—is absolutely clear, using parliamentary language. It said that,
“it is unfortunate that the Government have ruled out participation without first having had the opportunity of considering the details of any proposal and without knowing what form an EPPO would take”.
It is quite obvious what is going on here: the Government are not taking into account the national interest. They are not making, or even attempting to make, an objective analysis of where the national interest lies in this matter and what the right solution to those serious problems should be. They are not doing that and should be. It is what they are paid to do and it is what we expect a Government to do in a democratic country but they are not doing it. They are excluding the obvious, pragmatic solution, a priori, without waiting for the details and on the basis of what one can only describe as prejudice or ideology. That is simply not good enough.
Now, I am very familiar with this Eurosceptic prejudice—it is nothing more than that: a refusal to look pragmatically and open-mindedly at issues involving anything to do with the European Union. That is very pervasive in the Tory party and was one reason why, seven or eight years ago, I left the party. We have before us now a Minister who is a Liberal Democrat. I did not think such prejudice was pervasive in the Liberal Democrat Party and look forward with great interest and expectation to see how he will defend the actions, or deliberate inaction, of this Government in a case where an important national interest is being explicitly and deliberately neglected.
The Earl of Sandwich (CB)
My Lords, I follow the noble Lord, Lord Davies, in much of what he said. As a former member of sub-committee E, I thank the noble Lord, Lord Stoneham, for his introduction of the report and our chairman, the noble Lord, Lord Bowness, for all that he did. I also thank our senior legal adviser Mike Thomas, ably supported by Messrs Ridout, Mitchell and others. Mr Thomas’s outstanding work on this made the evidence much more intelligible and our conclusions more fit for purpose. We wish him well in his retirement next year.
As the noble Lord, Lord Davies, said, the subject of fraud in the European Union is enough to get everyone excited, not only the Eurosceptics but also those who consider the UK to be free of blame and squeaky clean. The fact is that fraud exists everywhere: not just abroad but in this Palace, in the City and in businesses all over the country. Noble Lords will remember that one of the biggest frauds occurred in the al-Yamamah contract. After that was investigated by the SFO and discussed at length in Parliament, it was abruptly hushed up by the then Attorney-General in the public interest. Of course, that was all about a princely sum, even for a prince, and it was assumed by most people that it was the way things worked in Saudi Arabia. But no: the SFO calmly and correctly reminded us that there are two parties to every contract who shared responsibility equally. That is worth mentioning in this case.
This country is in no position to complain about the European Union or other EU states. In fact, if our consultants wish to teach anti-corruption measures to developing countries, as they do daily around the world, they may be qualified to do so but they cannot expect countries such as Kenya and Afghanistan to look up to us as angels of accountability. We may be higher in the transparency index but we are all in the mud together. The Commission protests that fraud in the EU is no worse than fraud in the member states and it is right that there always seems to be a presumption of member state innocence. The EU institutions usually get blamed for the failure to prosecute when in fact it is more likely to be the individual country concerned. As our report states, responsibility for avoiding fraud does not rest solely with the Commission. The treaties require both the EU institutions and the member states to counter fraud affecting the financial interests of the EU.
There are, of course, recent examples of general fraud in both the EU and national Parliaments, and the issue can lead to strong emotions. In some cases, it can come to blows; last June, an Italian MEP called Raffaele Baldassarre was caught red-handed on YouTube entering a lift in the European Parliament. He proceeded, on camera, to box the Dutch journalist who was accusing him of fraud. Astonishingly, in southern Europe, the public do not always notice when their representatives are accused of fraud. There was another case, which I shall not go into, of a Maltese MEP who faced criminal charges for alleged fraud over three years. This was uncovered by the anti-fraud office, OLAF.
That brings me to one of our main recommendations, that while OLAF itself needs to improve its act and protests that it is already doing so, member states must give more support to OLAF, including taking the decision to prosecute. We were told that, in principle, to investigate a case of fraud against the EU budget, OLAF is supposed to request information from the judiciary in the member state involved. As the noble Lord, Lord Davies, said, one of our key witnesses, Rosalind Wright QC, said that judiciaries in member states are,
“in some cases … reluctant to investigate their own nationals for a fraud on a subsidy that is being paid centrally from Brussels”.
We heard from Professor Spencer and others that, even after an investigation, OLAF has no powers to compel member states to act. Some call it toothless—but that is just the point. It was a conscious decision of the member states not to give it those powers. Because of this, at €404 million in 2011, the total amount of fraud is being wholly underestimated by the Commission.
The Government’s response throws doubt on the estimates of €5 billion, although they are derived from National Fraud Authority figures. As the noble Lord, Lord Stoneham, said, in explaining the difficulty of estimating the amount, the Government say that the Commission’s database is constantly being updated and that it makes no distinction between “suspected and established fraud”. Irregularities are sometimes included and sometimes not. Again, if we and other member states are reluctant to investigate, we are never going to find out how serious the problem is; we are just going round in circles.
Communications with OLAF have been inadequate, to say the least, and what we call a lack of enthusiasm all round for reporting fraud is, to me, the most serious issue. A related problem for OLAF is that there is no single point of contact in the UK Government and very likely not in other Governments either. The Commission’s response agrees with our analysis, saying that member states have a continuing duty to provide the information. The Commission refers to the recent tightening of the system through new investigative procedures, mentioning a new regulation establishing a clearer legal framework. Her Majesty’s Government’s comment is that “progress is being made”. We shall hear in a minute what that means.
The Commission invests rather a lot of hope in establishing an EPPO, which it conceives as a “decentralised structure” integrated into the national judiciaries. We all hope that that will never happen.
On the question of a UK focal point, the Commission says that there must be a national body designated to co-ordinate what it calls anti-fraud co-ordination services, which will strengthen the co-operation between OLAF and member states. Perhaps the Minister will update us on the likelihood of any such co-ordinated service in the UK, and on any further conversations between the Home Office, the City of London police and others involved.
The Government’s response merely says that there is room for improvement; it quite reasonably rejects the idea of a new department, mentioned by the noble Lord, Lord Bowness, but it seems to me and to him that we are putting off the more fundamental question of co-ordination—unless the Minister proves us wrong.
Viscount Eccles (Con)
My Lords, I go back a long way to 1949 and the Council of Europe. If ever there were a referendum, I cannot imagine voting to come out of the European Union. That does not mean that I cease to think about the problems facing Europe and speculate a bit on how much of a contribution we can make to the solutions to those problems.
I have to record that I was new to the committee when it started this inquiry, and new to the procedures of sub-committees preparing reports, although I had read quite a number of them. As I went into that I thought about the background—the financial crisis, fairly rapid change, the expansion of the membership of the Union and the identification of problems. There is of course a rather large gap between the identification of problems and the practicality of solutions to them. I was also minded to think that many empires have fallen because they were top heavy. Today we know very many things and how to do them; in fact, there is a lot that we know about how we could do them if we had the resources, but we do not. We do not have the money and, more importantly, we do not have the people. The people who are capable of implementing some of the things that we would like to see implemented are spread very thin.
In considering the report, I wondered: where do we, the United Kingdom, rightly come into this picture? The report says with great accuracy that fraud is opaque. As the noble Earl, Lord Sandwich, said, it is also endemic. It does not matter what we are going to do, it will not disappear, because human nature is best seen as a constant. Therefore, the first question that we might ask is: how many programmes do we want? What level of expenditure within those programmes do we want? What complexity do we want those programmes to have? What are we actually trying to do with them? If we had fewer programmes we would have less fraud. The more complex the programmes are, the greater the army of people. I have applied for European money in the past, and the number of people who will advise you on how to knock down that money from the tree is legion. It is a profession—and, of course, those people could be doing something else, perhaps adding more value. So is that the right use of resources? We should think rather more seriously about the objectives we are looking for.
We then come to another danger and another question. Are we right to be judging others by ourselves? Almost certainly not. The Commission, after all, is sui generis, and I join others in saying that there is absolutely no point in being highly critical of the Commission because there is fraud against its programmes. That does not make any sense at all. I completely agree with that. Then we think about the members, their objectives, the reasons why they are members in the first place and their capacity to implement programmes. If they take advice, which they do, there are many imaginative ways of providing that advice. That imagination can extend into how you spend the money, as well as how you get it in the first place.
I cannot get excited about the uncertainty in the figures. My question is: what do you do about the situation? What is the United Kingdom’s contribution to wise implementation of answers to these problems? When there are problems there is always a temptation to design new institutions or seek more legal procedures. However, in my experience, for all the people who claim to have a good plan to do this or that, few could implement such a plan if it were put into place. Therefore, for me, it is important to implement measures within the existing systems. How can we make the existing structures work better? Reference has been made to OLAF and I completely agree that there is a pressing need to co-operate and exchange data. Whether it is sensible to have that channelled into one place, I leave to others to decide. If people are willing to work with and talk to one another, we do not necessarily need just one focal point.
However, of one thing I am certain: that is, in the difficult circumstances that pertain, particularly within the eurozone, we need to work with what we have. I do not see any future in having new centralised institutions. As for the United Kingdom, we should cope better than we do with any fraud that is perpetrated here. We should seek to minimise fraud and prosecute those committing it. As regards cross-border fraud, we should offer others maximum co-operation, but seeking a centralised, European Union-wide silver bullet to solve these problems will not work and we should not contemplate it.
Lord Rowlands (Lab)
My Lords, while I have listened to the debate I have tried to recall the evidence we received and the witnesses we heard. I regret to say that my abiding impression of the evidence we took and the witnesses we heard was that there was a kind of collective buck-passing going on and that no one was willing to accept responsibility. Everybody said that they hated fraud and that it was a serious issue, but you did not sense that dealing with it was a priority for any of the institutions. I do not know whether other members of the committee were left with that impression.
Our report found a lack of enthusiasm, a lack of uniformity of approach and weakness in the ability of OLAF to fulfil its remit. The noble Lord, Lord Bowness, reminded us of the rather extraordinary day when we witnessed a kind of internal warfare going on before our very eyes. I hope to goodness that when the Minister replies to the debate, he will reassure us that OLAF has got over that spat. This lack of co-ordination and enthusiasm are partly reflected in the incredible divergence of assessment in relation to the size of the fraud, which reflects the fact that there is no collective grappling with this problem. Incidentally, there is no lack of activity on this issue. I calculated that no fewer than 13 documents and legislative proposals dealing with various aspects of fraud were presented to our committee. It is not a question of lack of activity on the part of the Commission or anyone else but rather, it seems to me, a lack of effective follow-up, and of matching that activity with effective operational action on the ground across the piece.
There have been suggestions about reforming OLAF and Eurojust, and my noble friend Lord Davies mentioned the EPPO. The committee did not, and has not, endorsed the concept of the EPPO. I am sure that he did not intend to create the impression that it had. It did not endorse that concept in the report and has not undertaken a full inquiry into it. I hope that noble Lords do not have the impression that it has endorsed that concept. That is certainly not the case. Of course since we did our report, the Commission has come forward with a proposal. I am afraid to say that, as it was brought forward, it certainly would not have gained my support in any shape or form; I am not sure about other members of the committee. I shall tell my noble friend why. First, this House, the other House and indeed 11 Parliaments found the Commission’s EPPO proposal offensive to the whole principle of subsidiarity.
It is not only that. I have one other suggestion why the Commission’s proposal is fundamentally flawed, and it is exactly one of the points that my noble friend made. The draft seeks to propose exclusive criminal jurisdiction to one office, seeking to override national needs and priorities. I am afraid that that does not make any sense. As my noble friend rightly points out, 80% of the budget is delivered at national level. It cannot be the exclusive criminal jurisdiction of one new office to deal with the issue, when in fact the disbursement of such money is overwhelmingly conducted at national level. It has to be a shared responsibility with shared co-operation. Indeed, the treaty obliges the Commission and member states to deal with this together. Therefore, rather than looking for a solution in a brand new, single office of the kind my noble friend obviously rather likes, I would look for an alternative form of enforced shared co-operation between institutions, governments and national and European agencies. That is where the future solution to these problems lies.
My final point is that, within those improvements that we should have in co-operation and shared responsibility, and within our own arrangements, is the question of having a single agency or point of contact. Interestingly, over a year ago in the evidence that we received, there was a volunteer: Commissioner Leppard of the City of London Police volunteered to be the first point of contact, as members might recall. Indeed, in his evidence, he said that his force was in discussion with the Home Office to develop the concept of the first point of contact being the City police. That was November 2012. We are a year on. How much progress has been made? Is the proposal still considered significant? How far have we got with it? If we have got very little from it, it will only reflect what we all fear: that there is not a willingness to carry some of the reforms and changes through.
That specific proposal was put on the table just over 12 months ago—one organisation saying, “We will be the only point of contact to co-ordinate activities, including the devolved Administrations”. When the Minister comes to reply I would be grateful if he would tell us how far that proposal has gone. I would judge the success of the changes that have occurred by our doing at least the one thing that we can do ourselves: to decide on one single point at which the co-ordination of these activities takes place. If we do not do that, we will not be seen as combating European fraud.
Baroness Morgan of Ely (Lab)
My Lords, I thank the noble Lord, Lord Stoneham, for his introduction. I also thank the committee for its work not just on this report, but over many decades. The reputation of this committee is second to none. Certainly during my years on the budget control committee in the European Parliament, we used to look forward to giving evidence to your committee because we knew that there would be a thorough investigation, with sophisticated understanding of the complexities of the way in which EU finance works—so I feel privileged to speak in front of you today.
The clamour for change and the screaming headlines against the EU when the Court of Auditors published its annual report were things we learnt to live with on an annual basis. I learned then—this is underlined in the report—that the picture is much more complicated. There needs to be a better understanding than the one those screaming headlines suggested.
We need to be absolutely clear of what we are talking about when we discuss fraud. The Court of Auditors first takes sample payment transactions in the EU at EU level, national level, regional level and even down to individual beneficiary level. Any errors found in these audits are classified as either quantifiable—which means there is a potential impact—or not. The impact rate of the error is then extrapolated to reach a most likely error rate. That then applies to each department, and then to the budget as a whole. It is completely different from the way in which we do things in Britain and that is probably part of the reason for the misunderstanding.
We should be clear that those error rates cannot simply be translated into an amount lost. Let me give an example. If you have a tender process to build a road and someone completed the forms in a way which did not comply with all the rules, that does not mean that the road was not built or that you did not get value for money; it means that the forms were not completed in the correct way. That would be counted as a problem; it would be put into the figures as problematic.
As the noble Lord, Lord Stoneham, reminded us, 80% of finance is controlled by member states. In fact, the money never leaves Britain. It does not go to the EU and come back; it never leaves Britain. Therefore it is expected that member states should put systems in place to protect the EU’s financial interests.
It is also worth noting that the Court of Auditors has signed off the EU account for the sixth year in succession. It has given a clean bill of health to the Commission’s accounting books. That means that every euro spent from the EU budget was duly recorded in the books and properly accounted for. However, for payments the court requires an error rate of less than 2% before the EU budget can be declared to be free from material error. At the moment the error rate is below 5% but, as it is not close enough to that 2%, it will not sign off the payments account.
Turning to the subject of the report, deliberate fraud is different from errors. It constitutes a criminal action and has to be dealt with severely. The question being asked in the report is whether the systems and mechanisms that are in place are adequate to measure fraud and defend the EU against it. Is the UK taking up that responsibility and policing this area seriously?
The recommendations made in the report seem eminently sensible. The proposals to establish a government agency or department to take overall responsibility and for OLAF, the anti-fraud unit of the EU, to have one point of contact make sense. OLAF did not exist when I was in the European Parliament but was set up while I was there. I can assure noble Lords that there was a great deal of in-fighting when it was set up, but I hope things have settled down since then.
It makes sense to have one point of contact. I was a member of the budget control committee in 1999 when the Commission was forced to resign in response to the failure to take seriously the matter of fraud against the EU budget. The subsequent report written by the wise men suggested that it was impossible to find anyone, at any level, in the Commission to take responsibility. That phrase stood out to everyone. My concern is that having sat in the European Parliament for 10 or 15 years considering this issue and hearing that it is up to the member states to do something about it, I do not want to come back to the UK and hear, “It is not our problem. It is a difficulty for the EU. We all have to work together”.
This falling between two stools is the problem here. It is a fate that we must avoid in the UK. Knowing who is responsible for collecting and collating information and where the buck stops is fundamental to good governance. I take issue with the suggestion that the multiple jurisdictions of the UK provide a block to this. We manage to organise this for every other aspect of the EU’s relationship with the UK, so why not in the area of fraud?
Of course, the amount of fraud is by its nature difficult to quantify, so the Commission’s figures are only estimates, but it seems that there is a lack of enthusiasm to engage with the detection and reporting of fraud against the EU. This is underlined by the fact that the Commission has reported a very low number of irregularities as fraudulent in the UK, which has a relatively high EU spending rate compared with other member states, suggesting a degree of non-compliance with reporting principles. Will the Minister therefore explain what control systems and mechanisms are being put in place to detect fraud, in particular in the higher risk areas?
It was extremely disappointing that the Government did not answer the issue of VAT fraud against the EU budget seriously. Of course, a larger proportion of VAT goes to member states, but the contribution to the EU’s budget is fundamental. The figure of £2 billion that was suggested by the noble Lord, Lord Bowness, is fundamental to the revenue stream of the EU. Carousel fraud is not insignificant. While nobody is suggesting that the EU should extend its competence into tax enforcement, it is entirely legitimate for the Commission to question member states on their pursuit of this fraud which has a material effect on the Commission’s budget.
The prosecution of fraud remains a national matter, and while the UK does not want to sign up to the European Public Prosecutor’s Office, I question whether we take our responsibilities seriously in terms of prosecuting fraud against the EU budget. I remember on several occasions hearing how OLAF investigations were passed on to member states but were not pursued with any vigour in the member state. We heard evidence from some very senior British police enforcement representatives who suggested that although they understood their responsibilities, they had an inbox full of domestic crimes and targets on specific crimes that they had to meet so, somehow or other, EU fraud cases always seemed to find their way to the bottom of the in-tray. What is the Government’s target for prosecution? We have heard that 18% are prosecuted. What is the target? That seems to be a way to get this to the top of the in-tray of those police enforcement agencies.
Finally, will the Minister outline the timetable for the proposed fraud directive, and explain how he intends to use the expertise of the European committee in the Lords for those deliberations?
Lord Newby (LD)
My Lords, I am extremely grateful to my noble friend Lord Stoneham for his introduction to this report, to all noble Lords who have spoken and to the committee itself for the detailed report into the fight against fraud on the EU’s finances.
It may be blindingly obvious, but I start by saying that the Government also take fraud and the management of taxpayers’ funds very seriously. We have adopted an increasingly robust stance on financial management, and we remain committed to securing and enforcing the most effective means of fighting fraud at both a national and EU level. Fraud against the EU budget remains a matter of great concern, and this Government have adopted a leading role in calling for improvements to the way EU finances are managed.
I remind noble Lords that we are the first Government to take a firm stance on fraud against the EU budget by voting against the Council’s decision to recommend discharging the Commission of its responsibility to manage the EU budget. We took a stand by abstaining on the Council position on discharge of the 2009 EU budget and increased the pressure by voting against the Council’s recommendation to discharge in 2010 and 2011. We have also continued to encourage like-minded, budget disciplinarian member states to join us in sending the strongest possible message that financial management needs to be improved. In 2010 and 2011, Sweden and the Netherlands joined the UK in voting against the Council’s discharge recommendations and issued a joint statement calling for improvements to the way EU funds are managed.
We have also been at the forefront of the drive for real changes to improve errors within EU budget expenditure. For example, in the light of the European Court of Auditors’ reports confirming that much of the expenditure error is due to excessively complex rules, the Government successfully worked with allies to push for the significant simplification of the complex rules for beneficiaries of EU funds. I note what the noble Lord, Lord Bowness, said about it being disappointing that the Court of Auditors has been unable to provide a positive statement of assurance for the most recent budget, as has been the case for a number of years. The noble Baroness, Lady Morgan of Ely, explained why it is quite difficult to get to the necessary level of assurance. As the noble Lord reminded us, and as I have, over the years, reminded Eurosceptics within your Lordships’ House, it is a very long time since the DWP budget received a similar assurance statement.
When the Government replied to the report in July, the Financial Secretary gave a detailed response to all the findings. While that response still reflects the Government’s overall position, I will seek to respond to some of the additional requests for clarification made by noble Lords.
A number of noble Lords raised concern over the estimated level of fraud against the EU budget. The Government appreciate that the Commission’s assessment of the amount of fraud against the EU budget is an estimate and cannot give a full picture, by which I mean that the real level of fraud is necessarily going to be higher than the figure that it has produced. In order to get more nearly to a figure, it is therefore important to ensure that the quality and consistency of reporting by all member states is of a standard that allows the Commission to receive accurate information upon which to base its estimate.
It is also important that other contributing factors, such as the constant updating of the database, are resolved to improve the data that the Commission receives and holds. The noble Baroness, Lady Morgan of Ely, explained some of the complexity of the process, and although it is very easy to damn it on the basis that it should be possible to sort this out, in practice it is extremely difficult in a 27-member Union to get the kind of consistency and quality of reporting that gives us absolute confidence that the final correct figure has been reached. As the recipient of reporting information from member states, the Government believe that the Commission is best placed to provide such a clear estimate, but more work needs to be done.
I am sorry that the committee finds the Government’s decision not to recognise its estimate of actual fraud disappointing, but we maintain the view expressed by the Financial Secretary in his substantive response. I have a lot of sympathy with the noble Viscount, Lord Eccles, who said that we should not get excited about the absolute estimate of fraud but should worry much more substantively about bearing down on it.
With that that in mind, I turn to our reporting of fraud against the budget. The Government remain committed to this work and do not accept the view that we are lacking in enthusiasm or drive in our approach to tackling such fraud. In line with existing reporting obligations, the Government rigorously collate comprehensive data on fraud and consistently report them to the Commission.
As identified in the committee’s report, the UK does not have a central department or agency responsible for the fight against fraud. Individual departments and agencies are responsible for monitoring and acting on fraud against the EU funds they receive and spend. This does not demonstrate a lack of commitment or dedicated resource but reflects the UK’s national arrangements for handling EU funds. When one is talking about funds being spent by Administrations in Northern Ireland and Scotland, it is natural for them to be contacting the EU directly with information. Furthermore, the Government have a new approach to fraud because the creation of the National Crime Agency has given us the opportunity to pull expertise in anti-fraud work into a dedicated Economic Crime Command. The ECC will work closely with national police forces and partners, as well as with the EU and international equivalents. However, the Government remain of the view that the Commission, as the recipient and collator of fraud statistics, is best placed to provide a breakdown of fraud at an EU level and within individual member states. I shall come back to the question of the single point of contact.
A number of noble Lords raised the issue of VAT fraud, which has been and remains a significant problem. It is, however, worth pointing out that since 2005-06 NTIC fraud estimates have decreased from between £3 billion and £4 billion to around £1 billion in 2011-12, which demonstrates that effort has been put in to tackle this very serious, arguably the single biggest, area of EU fraud that affects the UK. We have had a significant positive impact.
We take seriously all forms of fraud, which is why in the 2010 spending review HMRC was allocated an additional £917 million to help it recover unpaid tax and excise duties in the next four years, of which some £90 million is being spent on tackling organised criminal attacks, and we have had some significant successes. Further, the number of criminal prosecutions across a range of taxes, including VAT, is to be increased fivefold. I am not sure that that is quite the target that the noble Baroness was looking for, but it is an indication of the Government’s ambition in this area. However, it is clear that VAT fraud is not solely a concern for the UK and, noting the committee’s concern and points raised by noble Lords, I can confirm that we encourage other member states to maintain the pressure to reduce VAT fraud within their jurisdictions with the same enthusiasm and vigour that we employ.
I turn to our engagement with the European anti-fraud office, OLAF. It is clear that its success relies on effective co-operation with partners in member states, third countries, international organisations and EU institutions. The Government fully cooperate with OLAF’s work in the UK. Its efforts to detect and tackle fraud, including through seeking financial redress for the EU budget where possible, is highly important to us. The UK, through the National Crime Agency, provides a number of UK-wide liaison services and is taking steps to improve our engagement with Europol, Eurojust and OLAF. This includes, through the NCA, providing bureau services to Europol and Interpol and being home to the UK Financial Intelligence Unit. It does this through the Europol national unit, which is based in the UK International Crime Bureau of the NCA and is supported by the UK national unit based in The Hague. The ENU provides a channel for all UK law enforcement engagement with Europol. The Government believe that the NCA’s work with these agencies and services, including Eurojust, Europol and OLAF, will strengthen co-operation with our European and international partners to fight cross-border fraud.
I return to the question that many noble Lords raised about our response to the requirement to provide a single point of contact. This is, as noble Lords mentioned, something that has been under discussion for some time. City of London Police has indeed offered to be such a contact point and continues to be in discussion with the Home Office. As noble Lords will be aware, the Home Office works in an extremely deliberative way and I hope that we will have a decision on this as soon as possible.
Lord Rowlands
I apologise for interrupting the Minister. What is “as soon as possible”, given that we have already had a 12-month pause?
Lord Newby
My Lords, it is a slightly flexible definition. The best I can do is draw to the Home Office’s attention the strength of feeling that clearly exists in your Lordships’ House that this decision should now be taken quickly.
Moving on to the European Public Prosecutor’s Office, the Government accept that multijurisdictional crime against the EU budget is European in nature but believe, as noble Lords pointed out, that an EPPO is not the only or the right solution to the problem. The noble Lord, Lord Rowlands, gave some of the arguments for that, but I repeat our view: a centralised European prosecutor with harmonised powers to initiate investigations and order investigative measures is incompatible with the division of responsibilities in many EU countries where law enforcement and prosecutors have different roles from that of the independent judiciary. As such, it would require fundamental changes to those member states’ legal systems and existing operational structures to implement the Commission’s vision of a supranational body with powers of investigation or prosecution within UK jurisdiction.
The Committee asked how the UK would address the shortcomings in existing processes for tackling fraud in the absence of being a participating member of the EPPO. The Government will continue to focus on preventing and tackling fraud against the budget and draw on their new approach to policing fraud. On the response to identified crimes, the Serious Fraud Office uses a similar model to the EPPO by bringing prosecutors and police together to fight serious fraud but there are differences. There are limits to the SFO’s statutory investigative powers but the existence of the SFO at national level is evidence of a domestic model that is similar to the EPPO proposal. Further, the creation of the National Crime Agency’s Economic Crime Command means that we have an opportunity to pull expertise in anti-fraud work into a dedicated policing unit. The ECC will work closely with national police forces and partners as well as the EU and international equivalents.
Lord Davies of Stamford
I am grateful to the Minister for giving way. If, as on the Minister’s own admission, the Serious Fraud Office and the ECC have structures that are very similar to the proposed EPPO in that they combine investigative and prosecuting functions, what is the ideological objection to accepting the EPPO? It appears that we have already accepted that those two functions should be shared by the same agency. The Minister will know that there is no suggestion that the courts—the judicial function—should be combined with the EPPO. The EPPO having decided to prosecute would have to do so in front of judges who would be quite independent from it.
Lord Newby
As I said, among other things there are differences between the SFO’s investigative powers and the EPPO proposal’s powers. As I should have said, it was a component of the coalition agreement that the UK would not support our involvement with such an organisation. That remains our view.
Lord Davies of Stamford
I am grateful for what is clearly a very honest and frank statement by the Minister. That gets to the heart of it. His previous remark left the impression that he was desperately trawling around to find some minor detail of difference between the structure of the SFO and the proposed EPPO to justify a decision that cannot be justified on pragmatic grounds. As he said, it is essentially a political decision. The Committee, the House and the public will be grateful for his frankness.
Lord Newby
My Lords, I think that the noble Lord is slightly confused about the difference between a political decision and a sensible decision. Just because something is in a political agreement does not mean that there are not very serious substantive reasons for it, apart from any reasons that he would disapprove of. I am sure that that is the case in this particular example.
There were two final things that I wanted to pick up on. The noble Lord, Lord Bowness, asked about the relationship between OLAF and the Supervisory Committee and what could be done and might be happening. This is an extremely unfortunate dispute that has arisen, and there is a limited amount that the UK Government can do on their own to resolve it. We accept that the Supervisory Committee has an important role but, equally, it is important that it does not operate in such a way as to impede OLAF’s work. We are trying as best we can not to knock heads together—that is perhaps too strong—but to use what influence we have to get these two bodies to work together. It is extremely depressing to read that part of the committee’s report and evidence because it is the kind of thing that legitimately gets the EU and its ways a bad name.
The final issue that I want to address, which the noble Baroness raised, is on how we would engage with committees on the PIF directive. This has raised difficult issues for the UK, and Ministers across government have been considering how best to approach the proposal. Discussions within government are now reaching their final stages, and we hope to be in a position to offer the relevant scrutiny committees a fuller explanation shortly. At the same time, we will seek to address the concerns about the opt-in trigger point.
This has been an extremely useful debate on an extremely important issue. I hope that I have been able to explain how the Government are tackling it. I realise that I will not have satisfied noble Lords in every respect, but I will speak sternly on noble Lords’ behalf to colleagues in the Home Office so that we might make progress at least in that respect.
Finally, I thank the committee for its work and for holding the Government to account in this area of our work.
Lord Stoneham of Droxford
I thank my noble friend for his response and everybody who has spoken in this debate. I have already thanked, but would like to do so again, the noble Lord, Lord Bowness, for his leadership of this group. I would also like to mention Tim Mitchell, as well as Mike Thomas, and thank them for their support during this investigation.
We had a number of speeches from members of the committee, and I appreciate their support and also that of the noble Lord, Lord Davies. It was good to hear a pro-European being so pointed in his comments, both on our report and on the Government’s approach.
On the Government’s response, I understand that my noble friend was in great difficulty in going further than the response that we have already had, but those of us who were listening carefully appreciated a number of his comments. He said that more work needs to be done on estimating the level of fraud, and the committee will certainly welcome that. He talked about the new approach with the National Crime Agency; that is something that we will want to look at, particularly with its additional emphasis in setting up a special group on economic crime. I am not sure that we got quite the single-source co-ordination that we were looking for, but we appreciate the efforts that the Government and Treasury are making on tax fraud in general and his reassurances on the work being done on VAT.
I accept that it is very difficult to give a perspective on OLAF, but my noble friend said that the National Crime Agency would strengthen relationships with OLAF and Eurojust, which we welcome.
I am sure that we wish to emphasise and support the strength of feeling that my noble friend will communicate to the Home Office, via the strong arm—we hope—of the Treasury, in relation to what needs to be done regarding the single point of contact. We look forward to the Government developing their alternative to the European Public Prosecutor’s Office proposal. I thank all Members of the Committee for their support in what has been a very interesting debate.
House of Lords
Northern Ireland: Royal Residence
(11 years ago)
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Lord Lexden
To ask Her Majesty’s Government what arrangements are being made to establish a permanent Royal Residence in Northern Ireland.
The Parliamentary Under-Secretary of State, Wales Office (Baroness Randerson) (LD)
My Lords, in Northern Ireland Hillsborough Castle is the official residence of Her Majesty the Queen and has been the sovereign’s residence since 1922. The castle is also the residence of the Secretary of State and of the Minister for Northern Ireland. Current proposals are to pass the operation of Hillsborough Castle to Historic Royal Palaces and significantly to increase public access. However, full royal and ceremonial use will continue unchanged.
Lord Lexden (Con)
My Lords, I thank the Minister for telling the House about the important decision to place Hillsborough in the guardianship of the Historic Royal Palaces trust. Does not the existence of a permanent royal residence both symbolise and underline the enduring commitment of the Royal Family to all sections of the community in this part of our country—a commitment perhaps best expressed by the late Queen Elizabeth the Queen Mother, who once told my noble friend Lord Molyneaux that each night she included in her prayers, “God Bless Ulster”? Does my noble friend also agree that it is most fitting that the decision should come in the year that His Royal Highness the Prince of Wales celebrated his 65th birthday, for the cross-community work of his many charitable organisations contributes significantly to progress in Northern Ireland today?
Baroness Randerson
My Lords, I agree with the noble Lord that the Royal Family is to be commended for its loyalty and for the work that it has done with Northern Ireland. We all remember the significance almost two years ago of the Queen’s handshake. The existence of Hillsborough Castle as a royal residence is guaranteed under the new arrangements, and full facilities for royal access will be there. It will be easy for members of the Royal Family to use the castle when they wish for their royal duties in Northern Ireland.
Lord Alderdice (LD)
My Lords, does my noble friend accept that, given the extraordinary—indeed, transformational—effect of Her Majesty’s visit to the Republic of Ireland, and the fact that Hillsborough Castle is not only a royal residence but a place of enormous political significance on the island of Ireland because of the signing of the Anglo-Irish agreement and the importance of other negotiations, there is a real possibility of tourist potential not just from within Northern Ireland and the rest of the United Kingdom, but that many people south of the border will be keen to come to Hillsborough Castle for its associations with Her Majesty and the Royal Family, as well as the important political associations that it also has?
Baroness Randerson
My Lords, the intention is that the new arrangements will make it easier to attract both domestic and foreign tourists to visit Hillsborough Castle. It is important to remember that as well as being a beautiful castle—a beautiful building with beautiful grounds—it has tremendous historic significance. It is important to remember that royal tourism alone is estimated to be worth £500 million a year to the United Kingdom. Therefore, it is important that we open up the castle as much as possible—and considerably more than has been possible in the past.
Lord Empey (UUP)
My Lords, in welcoming the Minister’s reply, I will ask her two questions. First, Hillsborough Castle is owned by the Northern Ireland Office. When is it anticipated that it will be transferred to the Historic Royal Palaces trust, and will any additional trustees, including a trustee from Northern Ireland, be added to the trust board?
Baroness Randerson
There will be no change to the ownership of Hillsborough Castle. An agreement will be signed with Historic Royal Palaces. It is anticipated, following negotiations, that it will be signed next April, but there will be a transition period of two to three years before the full handover to the new arrangements is complete. On the question of trustees, a Northern Ireland group already exists in relation to Hillsborough Castle. It is intended that this should be refreshed and set up anew under the new arrangements. It will have a strong representation from Northern Ireland, as well as trustees appointed by Her Majesty the Queen.
Lord Hamilton of Epsom (Con)
Does my noble friend accept that if Scotland votes for independence, the future of Balmoral must be called into question? Would that situation not make it even more important that there is a royal residence in Northern Ireland?
Baroness Randerson
My Lords, along with many of your Lordships, I am concentrating on supporting the Better Together campaign. I am not making plans, and neither are my noble friends, for any future situation in Balmoral.
Lord Bew (CB)
My Lords, does the Minister accept that the fact that she is able to make this announcement today reverses the great historic error of the 19th century in not having a royal residence in Ireland, and that it can only be done because of the stability brought to Northern Ireland’s constitutional status as a result of the Good Friday agreement of 1998?
Baroness Randerson
Hillsborough has been in its current situation since about 1922, I believe, but the noble Lord makes a very good point. It is the stability of the political situation that has made it possible for the Northern Ireland Office to consider new arrangements for the management of Hillsborough Castle, and to ensure at the same time that security levels are maintained. That will be possible under the new arrangements because of the security and political situation.
Lord Dannatt (CB)
My Lords, I declare an interest as a trustee of Historic Royal Palaces. Will the Minister confirm that there has been very widespread consultation both within Northern Ireland and in Ireland itself, and that the experience of Historic Royal Palaces in running five additional palaces in the United Kingdom gives the charity great experience? I hope that the Minister will also agree that we can have every confidence that this will be a successful and prominent move for the future that will make the castle more available to all people, both tourists and local residents.
Baroness Randerson
I am delighted to confirm that the Northern Ireland Office sought a secure and prosperous future for Hillsborough, and one that would enable it to be opened up to the public. Historic Royal Palaces was the obvious choice, because as an organisation it does not depend on public money and it has a very well established position through the five palaces it already runs. Indeed, it is the case that the Royal Family has already signed an agreement with Historic Royal Palaces about the future use of Hillsborough Castle.
Schools Careers Service: Apprenticeships
(11 years ago)
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Baroness Bakewell
To ask Her Majesty’s Government what steps they are taking to ensure that career services in schools make pupils fully aware of apprenticeship opportunities open to them.
The Parliamentary Under-Secretary of State for Schools (Lord Nash) (Con)
My Lords, schools are legally required to secure independent careers guidance for 12 to 18 year-olds, and that includes information on all education and training options, including apprenticeships. We will publish revised statutory guidance to help schools deliver better support to pupils, including about apprenticeships. Young people are most likely to be influenced by hearing directly from employers and apprentices. We will be strengthening the importance of partnerships between schools and businesses via the National Careers Service. Ofsted is ensuring that careers guidance and pupil destinations will be given greater priority in inspections.
Baroness Bakewell (Lab)
My Lords, I thank the noble Lord for that Answer, but given that the House of Commons Business, Innovation and Skills Committee report of 2012-13 found that,
“awareness and resources in schools and colleges remains lacking”,
expressed disappointment with the National Apprenticeship Service and recommended that the NAS should be given statutory responsibility for raising awareness of apprenticeships, can he explain how far these recommendations have been carried out?
Lord Nash
The National Apprenticeship Service funds the Education and Employers Taskforce, which is a programme to deliver knowledge about apprenticeships to schools. We also had 70 advisers from the National Careers Service and Jobcentre Plus stationed at the Skills Show in November. The National Careers Service and the National Apprenticeship Service ran a jobs bus road show, and we are pursuing a number of other measures in this area.
Baroness O'Cathain (Con)
My Lords, is my noble friend aware of the huge amount of work going on in the area of apprenticeships? Sub-Committee B of the European Union Committee is taking evidence on youth unemployment at the moment, and the great finding is that many large companies are actively getting involved in apprenticeships for the first time in many years. We have heard about some outstanding examples of this, and when our report comes out I think that he might be surprised.
Lord Nash
I am grateful for my noble friend’s comment. Our priority is to expand apprenticeships, particularly where they deliver the greatest benefits to young people, are of high quality, last longer and are more rigorous. Of course, since this Government came into power, we have delivered 1.5 million new apprenticeships.
Lord Young of Norwood Green (Lab)
My Lords, is the noble Lord aware that, when I speak to young people in a wide variety of secondary schools as part of the House of Lords outreach scheme, there is little or no knowledge of 16-to-18 apprenticeships, and that schools are focused on sixth form recruitment? What action are the Government taking to ensure that all secondary schools offer impartial guidance, have links with local businesses, and invite young apprentices to speak to pupils?
Lord Nash
I agree entirely with the noble Lord that links between schools and businesses are key. Schools can no longer feel that they need just to teach; they have to open their doors to businesses, and businesses have to engage with them. In my travels around the country, I have not found any difficulty with businesses wanting to engage with schools; it is usually a question of putting in place the structures. The organisation Business in the Community has a marvellous programme called Business Class which is providing careers advice, mentoring and workplace experience to 300 groups of schools. There is the Glass Academy in Sheffield and a number of other such models. However, we need to widen these efforts, and I know that the Social Mobility and Child Poverty Commission made some excellent recommendations in this area a couple of months ago.
Baroness Howe of Idlicote (CB)
My Lords, will the Minister confirm the steps that I am sure the Government must be taking to ensure that as many girls as boys are aware of these apprenticeship schemes, particularly in engineering, where there are certainly very many more young boys than young girls taking up these apprenticeships at the moment?
Lord Nash
I entirely agree with the noble Baroness. It is very important that we get a higher participation rate of girls in STEM subjects. We are funding the Stimulating Physics Network and the Further Maths Support Programme to increase the take-up of A-level physics. The STEM Ambassadors programme gives careers advice on more technical qualifications and apprenticeships. However, as my colleague Liz Truss said recently, it is excellent teaching and a culture of equal aspirations for all that will help engage more girls, so all we are doing to improve the quality of teaching helps in this regard.
Lord Addington (LD)
My Lords, can my noble friend assure me that a teacher or careers adviser will be able to advise a dyslexic pupil in a one-to-one interview that he or she can now access, or will soon be able to access, the apprenticeship system, as the barriers to dyslexics getting through the functional skills test in English and maths will be removed?
Lord Nash
My noble friend speaks with great passion and personal experience on this subject; I have heard him do so many times, and we have already met on this subject. The Government are aware of the technical issues with assisted technology in the English and maths assessments. We are meeting the British Dyslexia Association, Ofqual and the Dyslexia Trust to try to ensure that we send a very clear message to all involved, providers and examiners, that there is the ability to use screen readers, in the case of dyslexia, as well as other assistive technology. I think that my noble friend knows that he has my personal commitment —if he does not know, I give it to him now—that we will do as much as we can to sort this out.
Baroness Wall of New Barnet (Lab)
My Lords, in response to my noble friend’s earlier question, the Minister said that it was really down to employers to do more work. Is he aware that employers try very hard to be in touch with schools, but that there is an issue around head teachers, in particular, encouraging that? As my noble friend Lord Young said, rather than aiming primarily for academic qualifications, this country needs very good apprentices; we need women apprentices, as the noble Baroness, Lady Howe, said, but we also need people to get engaged with apprenticeships and be encouraged to do so. That is not evident.
Lord Nash
I am sorry to hear the noble Baroness make that comment. I think that it is a two-way street. We need schools willingly to engage with all walks of business for all apprenticeships, but I still hear shocking stories about schools being reluctant to send their pupils on them and heads being too focused inwardly. They cannot give their children a good education unless they give them a direct line of sight. I have been so impressed talking to young people about how the experience of going to the workplace and meeting people in work has raised their aspirations. From this they have managed to reverse-engineer backwards what they need to do to achieve this themselves.
Payday Loans
(11 years ago)
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Lord Selsdon
To ask Her Majesty’s Government what steps they are taking to regulate the issue of payday loans to those without a regular income.
Lord Newby (LD)
My Lords, the Government have made it clear that payday lenders should make loans only to those who can afford to pay them back. From April 2014, the Financial Conduct Authority will require lenders to undertake thorough affordability assessments to ensure that borrowers are able to make sustainable repayments. No later than January 2015, the FCA will cap the cost of payday loans so that borrowers in financial difficulty do not face spiralling debt.
Lord Selsdon (Con)
My Lords, I am most grateful to the Minister for his reply, but he has not actually given me the answer I needed because my skills at mathematical calculations are not great at the moment. If my noble friend wanted, for example, to take out a payday loan for £1,000 to cover him over the Recess, what would the rate of interest and repayment be over a matter of a few weeks?
Lord Mitchell (Lab)
My Lords, in 2008, 12 million people viewed advertisements for payday lending companies. Last year, the total was 7.5 billion. Do the Government feel that the time has come for us to ban advertising for payday lending on television, particularly when it is directed at children?
Lord Newby
My Lords, the Advertising Standards Authority has been looking at a rising number of complaints about payday loan advertising on television. It has the power to ban misleading ads and already has done so in respect of ads placed, for example, by Cash Lady and FirstPayDayLoanUK. From April next year, the FCA will have the power to ban misleading financial promotions. It will be able to look at advertising and the whole way in which payday loans are promoted under that new power.
Lord Martin of Springburn (CB)
My Lords, there is deep concern in the social and community-based housing movement because the payday loan operators get access to people’s personal accounts to take the direct debit. The danger is that when people receive a rollover loan, in many cases the payday loan company has taken all the money out of that account and left the housing association with a tenant who is in deep arrears. Sometimes they are forced to take out eviction notices, which they are very reluctant to do. Can this be looked into?
Lord Newby
My Lords, this matter has been looked into. The Financial Conduct Authority, which takes responsibility in this area from next April, has already proposed limiting continuous payment authorities to two payments and reducing rollovers to two. It has the power to constrain them further than that if that is still seen to be an issue. That is one of the things that the FCA will look at as part of its assessment of the total cap of the cost of payday loans, which it is currently considering.
Lord Razzall (LD)
My Lords, I will follow the previous two speakers but extend the question a little more widely. What steps do the Government propose to take to ensure that payday loan operators cannot simply move their headquarters overseas and operate outside the restrictions that are going to be brought in?
Lord Newby
My Lords, under the e-commerce directive, which was introduced during the lifetime of the last Government, payday loan operators are able to relocate. However, a majority of EU member states already have some kind of cap on the cost of payday loans, even if not necessarily as comprehensive a cap as we have, and there is an ongoing debate in those member states that do not yet have a cap about implementing one. There are already a majority of EU member states to which it would almost certainly be uneconomic or pointless for payday loan lenders to switch their bases of operation.
Lord Kinnock (Lab)
My Lords, when the lenders invariably advertise the ease of access to money and, even more crucially, the ease of repayment, can their adverts ever be anything but misleading?
Lord Newby
My Lords, a lot of effort is being undertaken by the FCA to make sure that the adverts are not misleading. We debated this at Third Reading of the banking reform Bill. The key thing is that people should know what the repayments are, not just in terms of the interest rate—people are very often not desperately familiar with that—but in terms of being absolutely clear about what they have to repay and when. The point that possibly lies behind the noble Lord’s question is whether there should be payday loans at all. As long as payday loans are legal, people have to make some sort of assessment about whether they are going to be in a position to repay them. What the Government and the FCA are committed to doing is to make the costs as clear as possible and limit the potential downside of less than prompt repayment.
The Lord Bishop of Truro
My Lords, what consideration, if any, has been given to introducing a real-time database of payday loans in order to ensure that the proposed FCA rules can be properly monitored and enforced and, in particular, to avoid the problem—a special one at this time of year—of people being able to take out multiple loans from different companies at the same time?
Lord Newby
My Lords, a real-time database is one of the things that the FCA will be looking at. In some of the countries and US states where they have effective caps on the cost of payday loans, such systems have been seen to work efficiently and be very effective.
Lord Davies of Stamford (Lab)
My Lords, we heard a moment ago about the danger of lenders from other EU countries undercutting any legislation or regulation that we introduce in this country. Has the noble Lord considered discussing with the European Commission the possibility of legislating on an EU-wide basis for the single market as a whole?
Lord Newby
My Lords, this is a rapidly moving area. If you go back five years, it was not an issue. We are discussing with other member states the operation of the consumer credit directive, for example, and the way in which the market is evolving. As the FCA moves towards putting in place a cap of the total cost of payday loans, we will see exactly how the system is working in the majority of those member states that already have a cap and whether there is any real advantage in moving to a Europe-wide system, or whether the series of national caps is proving effective.
China: Exports
(11 years ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Minister of State, Department for Business, Innovation and Skills & Foreign and Commonwealth Office (Lord Livingston of Parkhead) (Con)
My Lords, last week I was delighted to help the Prime Minister lead the largest ever UK business delegation to China. Our bilateral trade and investment relationship with China is improving. Exports to China have almost doubled since 2009 and more Chinese investment has come into the UK in the past 18 months than in the past 30 years combined. However, there is more to be done, especially in focusing on areas where the UK has particular strengths and where these match China’s emerging demands. Many of these strengths—healthcare, education, the creative industries and agri-tech, to name but a few—were showcased last week. Several agreements in these sectors were signed during the visit and these will open further opportunities for UK exporters.
Lord Wei (Con)
I thank my noble friend the Minister for his response. I look forward to the future growth in exports that will result from these significant and much needed visits, and congratulate him on the role that he played in the most recent one. We know that inward investment from countries overseas such as China and India can help build our capacity for exporting, with Jaguar Land Rover, Aquascutum and many other companies showing the way. However, our current measures of success do not necessarily capture the interactions between such investment and exporting. What are the Government doing to encourage, measure and link investment and exporting activities from countries such as China to grow total trade?
Lord Livingston of Parkhead
I thank my noble friend Lord Wei for that point and his efforts in promoting UK-Chinese trade. He is right to raise a number of areas, including export from the UK, imports from China and our relationship as regards investment. During the trip, I was delighted that we announced programmes that will help UK investment in China and Chinese investment in the UK, particularly in the area of the supply chain. We have found that, in a number of areas, to be important in improving our overall trade performance.
Baroness McIntosh of Hudnall (Lab)
My Lords, the noble Lord mentioned the creative industries. He will be aware that the delegation of which he was part included members from the cultural sector, including Sir Peter Bazalgette, chair of Arts Council England, Nick Starr, executive director of the National Theatre, and Joey the Horse, the puppet star of the National Theatre’s production of “War Horse”. Does he agree that the cultural sector in this country, particularly the performing arts, is widely respected the world over for the skills and products that it can export? Does he also agree that this is a good reason for the Government to continue to give the cultural sector the maximum possible support?
Lord Livingston of Parkhead
I thank the noble Baroness for her comments and absolutely agree that this was one of the highlights of the trip, particularly Joey the Horse, who got a standing ovation at the gala lunch that we held. Joey was the star of the trip, after the Prime Minister of course. It was not just in culture that our DNA was represented, but in the Premier League as well. This not only has export potential in its own right but is an expression of British soft power and its opportunities. We will certainly make sure that we include the creative industries as part of our overall export effort, and I thank the noble Baroness for her comments about our support of the cultural sector.
Lord Clement-Jones (LD)
My Lords, I warmly welcome my noble friend to his new role, and the success of the Prime Minister’s visit to China. I declare an interest as a partner of a law firm. Why did the Prime Minister not find room in his huge delegation for any representative of the UK legal services sector? The sector contributes some £3 billion to our professional services exports; it provides crucial commercial and dispute-resolution services and support for British businesses around the world; and, not least, will help them to take advantage of the new Shanghai free trade zone. I realise that not everybody wants to be accompanied by a lawyer on their travels.
Lord Clement-Jones
However, seriously, how does this square with the continuing support that is being given by the MoJ and UKTI to boost the growth of the legal services sector internationally?
Lord Livingston of Parkhead
My noble friend is correct that the legal services sector is one of the most important sectors for the UK. He may not be comforted by the fact that we took some accountants on the trip. The law firms were represented, particularly in discussions on the Shanghai free trade zone, in which the UK is going to provide excellent support. The UK legal sector is a great strength, not just as an export in its own right but as a reason for FDI into the UK, because it shows that the rule of law and support from professional services are very strong. I will certainly seek to champion the legal sector going forward.
Lord Davies of Coity (Lab)
My Lords, we know that nothing happens in China except by the leave of the Communist Party, which controls the whole of China. We know what the British delegation wants from China. Can the Minister tell the House what the Chinese want?
Lord Livingston of Parkhead
The Chinese refer to us as partners for growth. Particularly since the third plenum, the Chinese see a real opportunity to partner the UK in key areas, as China expands its cities and needs to make its environment greener—there are a lot of environmental issues in China. UK products are loved in China. The cultural sector was mentioned earlier. Yes, we can mention whisky. We have even been selling tea to China, which is remarkable. Going forward, the UK’s products and services are ideal for what China needs as a result of the change in its economy. We look forward to continuing to increase our exports to China, because we have a lot of ground to make up.
Lord Howe of Aberavon (Con)
No doubt my noble friend is aware that during the past year, the China Investment Corporation—a sovereign wealth fund—has taken a 9% stake in Thames Water and a 10% stake in Heathrow. This year, another Chinese corporation, Advanced Business Park, has said that it will undertake a £1 billion redevelopment of the Royal Albert Dock. Is it not clear that we are looking not at a single arrangement but at a joint, substantial, two-way partnership between the two countries?
Lord Livingston of Parkhead
I thank my noble and learned friend for that comment. We are certainly seeing substantial investment from China into the UK—and, indeed, vice versa. We visited a city where Diageo has made a large acquisition. WPP is a very strong firm in China. It certainly is a partnership. China, as one of the most powerful nations in the world, having a stake in the success and growth of the UK economy is certainly no bad thing either.
National Insurance Contributions Bill
Energy Bill
16:24 - Division on Motion A2 - Ayes: 215 / Noes: 262 - Motion A2 (as an amendment to Motion A) disagreed.
Baroness Verma
That this House do not insist on its Amendment 105, to which the Commons have disagreed for their Reason 105A.
“(iii) substantial pollution abatement equipment dealing with oxides of sulphur, oxides of nitrogen, heavy metal emissions or particles is fitted to the generating station.” Commons Disagreement and ReasonThe Commons disagree to Lords Amendment No 105 for the following reason—105ABecause it is inappropriate for the fitting of pollution abatement equipment to cause the emissions limit duty to apply to existing generating stations.
The Parliamentary Under-Secretary of State, Department of Energy and Climate Change (Baroness Verma) (Con)
My Lords, we return to discuss the emissions performance standard and whether it should be possible to apply it to existing coal plant in wider circumstances than the Bill currently envisages. The Government set out in earlier debates, both in this House and in the other place, why we believe Amendment 105 is unnecessary. It has become clear over the course of the debates that there is an almost unanimous consensus on the need substantially to decarbonise our electricity generation by 2030. There is a similar consensus that there will be little or no role for unabated coal generation in that future.
In this Bill, the Government have brought forward a suite of measures that they believe will deliver the outcomes that we all wish to see. The Bill will do so without risk to our security of supply and at the lowest possible cost to the consumer. The Government believe that they already have the right balance of measures to deliver a secure, low-carbon electricity system at the lowest cost.
Amendment 105, proposed by my noble friend Lord Teverson, would allow application of the emissions performance standard to any coal-fired power station that fits the pollution clean-up equipment needed to meet the requirements of the industrial emissions directive. To date, only one station, Ratcliffe-on-Soar, is fitting the equipment needed to comply with the directive and there is no evidence that a large number of others are seeking to do the same. However, this amendment could result in all but one of the 12 coal-fired power stations expected to be operational after 2015 being subject to limited hours or forced closure under the directive. There is a risk that this, in turn, could lead to a scenario where more stations close earlier than might otherwise be the case. Were this to happen, it would require more gas generation to be built earlier than we currently project and, crucially, result in increased cost to consumers.
As my right honourable friend the Minister set out in the other place, we already face a significant investment challenge that will require an estimated 16 gigawatts of new gas plant to be built over the decade from 2015 to 2024 and around 45 gigawatts in total of all forms of generating capacity in this period. My department has therefore looked at a scenario where all our coal-fired power stations close by 2025, which is one possible risk of this amendment. The results of this analysis show that, as a result, in the 2020s average household electricity bills would be around 3% to 4% higher, average non-domestic bills would be around 4% to 6% higher and average energy-intensive industry bills would be around 5% to 7% higher.
The Government are taking a balanced and precautionary approach that seeks to protect consumers and ensure our security of supply. Our emissions performance standard is ambitious—the first in Europe—but it is right that ambition should be balanced with measures for a sensible transition. Ultimately we must ensure that we transition to a low-carbon economy in a way that provides certainty for investors, secure energy and is deliverable at the lowest possible cost to consumers.
Amendment 105B proposed by the Motion of the noble Lord, Lord Oxburgh, would bring all existing fossil fuel plants within the EPS regime from 2025, thereby requiring them to operate within the annual emissions limit set by the EPS. In common with fossil fuel plants that are consented after the EPS comes into force and to which it will apply, the power to suspend the EPS contained under Clause 48 could be used to allow those existing plants to operate over and above their limit should it be necessary to avert a threat to security of supply. I am grateful for the spirit in which the noble Lord proposes this amendment but, ultimately, what is at stake with both these amendments is an assessment of risk. I ask noble Lords to consider carefully whether they can be confident that the amendments will not give rise to risks that, were they to materialise, would be difficult and costly to address. The Government do not have that confidence. The question that noble Lords need to ask themselves is: do they have the confidence to take that risk?
It is through the measures in the Bill that we will reform the UK electricity market and attract the capital investment needed to decarbonise our electricity sector at the lowest cost to the consumer. The Government have listened carefully during the passage of the Bill through this House and the other place and have accepted measures that have improved it greatly, but the amendments would add an unacceptable risk. This House insisting on an amendment today will delay the Bill and will serve only to undermine investor confidence. I therefore urge noble Lords to consider both the direct and the wider implications of insisting on their amendments, given those impacts, and that a significant majority opposed this amendment in the elected Chamber. The Government do not believe that the amendments would provide greater certainty without, at the same time, creating risks to our security of supply and of increased costs to the consumer. On the contrary, causing delay to this vital legislation will only create uncertainty and risk delaying investment in our energy sector when it is needed most. I beg to move.
Lord Teverson
As an amendment to Motion A, leave out from “House” to end and insert “do insist on its Amendment 105.”.
Lord Teverson (LD)
My Lords, I am very aware of my noble friend's remarks. I am also aware of the various matters around this issue. I believe that it is important that we still try to reach a compromise of some sort. Therefore, I wish to reserve my remarks and withdraw my amendment in support of the noble Lord, Lord Oxburgh, in trying to reach a compromise. I therefore beg leave to withdraw my amendment.
Lord Oxburgh
As an amendment to Motion A, at end insert “, and do propose Amendment 105B in lieu”
Lord Oxburgh (CB)
My Lords, I do not think that I have any relevant interests to declare, but I draw attention to the published record.
We have heard why the Minister feels that we should not persist with the amendment of the noble Lord, Lord Teverson, which was passed by this House with a substantial majority. Noble Lords may also have read the Minister of State’s speech in the other place. Having read the arguments, I concluded that there was little between the Government and those supporting the amendment. For that reason, I am today offering a differently worded amendment that to many of us seems both to meet the spirit of the amendment of the noble Lord, Lord Teverson, and to satisfy government concerns.
I am doing that in my capacity as unofficial chairman of this House’s unofficial cross-party Energy Bill group, which first carried out the unofficial pre-legislative scrutiny of the Bill at the request of the then Energy Minister in our House, the noble Lord, Lord Marland. The group has held widely advertised regular meetings with the Minister and officials during the passage of the Bill, and I take this opportunity to place on record our gratitude.
I also thank the Minister for yesterday convening another meeting of the group and for securing the attendance of the Minister of State for Energy. We heard what he had to say, and he heard what we had to say. We offered him the amendment that is before you today, but his officials advised him not to accept it. I think that to pretty much all those present the reasons offered for not accepting it were pretty thin.
The fundamental purpose of the present amendment —and, indeed, the original Teverson amendment—is to make clear that a role for unabated coal in the national energy mix is not foreseen beyond 2025. Indeed, that is the Government’s position. In the other place, the Minister indicated that he expected the overall contribution of coal to our electricity generation in 2025 to be about 3%. In the unlikely event that external events made it look as though unabated coal would be needed longer, the Bill already contains provisions to deal with that unlikely eventuality.
Noble Lords may ask why we are bothering with this now. It is simply to provide an additional crumb of confidence to those who are contemplating investing in new, gas-fired power generation. It is a bad time for investment in energy utilities and it would be helpful to have a clear indication that gas will be our main means of fossil-fuel generation from the 2020s onwards. It is probably unnecessary to point out that this amendment could have no real effect on energy prices in the foreseeable future. This is mostly because the amendment would have no effect on generation until well into the next decade and partly because power price is largely determined by the swing producer, which is gas. At present, coal is cheap and is making an increased contribution to our power generation. However, you will have noticed that this does not translate into lower electricity prices but rather into better margins for coal-fired power stations.
The Government have said it is urgent that this Bill should become law. We agree, and a simple way of ensuring this is to accept this constructive and simple amendment. I beg to move.
Baroness Worthington (Lab)
My Lords, if there is no one else who wishes to speak now, I will.
Here we all are, almost at the end of the process of electricity market reform in the Energy Bill. We have spent many months debating these interventions in the electricity market and felled a fair few trees printing all the documents. However, despite all this effort, the Bill is still deficient in a number of important respects. It fails to bring about true competition in generation, handing yet more power and money to incumbents via the capacity mechanism, and it fails to make clear that the objective of all this intervention is to decarbonise our electricity. The net effect of these deficiencies is that the process of decarbonisation, which the Bill seeks to introduce, is more expensive than it need be.
The original Amendment 105 and the new compromise amendment tabled by the noble Lord, Lord Oxburgh, seek to achieve the same thing: providing a back-stop for existing government policy that seeks to make unabated coal a diminishing part of the energy mix by preventing lock-in to high-emissions plant in the 2020s. This plant can be upgraded to comply with tighter air quality standards. The more coal we burn, the more effort we have to undertake, using more expensive options, to meet the same emissions reduction targets.
The Government’s chosen policy to constrain coal investment is the carbon floor price, but this is a deeply unpopular and very expensive policy. It lacks credibility as it is a financial Bill measure that can be easily done away with. It therefore creates a huge amount of political risk for investors.
The emissions performance standard underwrites that policy, reducing risk. The EPS is a tried and tested policy and it has the benefit of providing absolute clarity to the market about what is required. It is already used in California and Canada and in both cases the limit on emissions applies to old coal plant, not just new. In Canada the clarity of that regulation has brought forward investment in the world’s first commercial-scale CCS plant, which will open next year. In the UK we have not followed this but have opted instead to try to tax coal off the system—an option that is not delivering at the moment. Unfortunately, there is a great risk that this course of action will continue to fail and operators of coal will decide to sweat their assets for longer, using the large up-front payments they will now receive from the capacity market.
The original amendment required the old coal stations seeking life extensions to operate for only 40% of the time, under the EPS limit, guaranteeing that they would be available for the peak but not allowing them to baseload. In rejecting the amendment, the Government argued in the other place that this change might dissuade some plant from upgrading at all and therefore reduce the amount of plant available for peaking.
The noble Lord, Lord Oxburgh, has listened to these concerns and now tabled an amendment which offers a different approach. His amendment would require the limit on emissions equivalent to 40% of capacity to apply only in 2025, 12 years from now. Operators of upgraded plant would therefore be able to use their three-year capacity payments to offset the costs of upgrading and continue to sweat their assets for another five years at full capacity, which would then be available for 40% of the time thereafter. This seems like a good deal. By 2025, all but one of the six plants that this amendment would apply to will be more than 55 years old, having emitted together over 1 billion tonnes of CO2 over their lifetimes, so 2025 is well past their closure date.
This amendment is a compromise but one which still has the benefit of clarity for everyone: clarity for the coal plant; clarity for gas investors; and clarity for the environment. To leave things as they stand is to allow a known unknown to persist needlessly. With no decarbonisation targets to guide government policy—
Lord Forsyth of Drumlean (Con)
The noble Baroness is probably drawing her remarks to a close but before she does so, can she explain to me how what she is saying in supporting this amendment is consistent with the leader of the Opposition’s declared policy to hold down energy prices and with maintaining security of supply?
Baroness Worthington
It is absolutely consistent because what we have said is that we will seek out the least costly forms of carbon abatement. There is no cheaper way of reducing carbon dioxide than using existing gas stations in place of existing coal stations. That is how the UK decarbonised its economy in the 1990s and that is how we should be doing it again now. However, there is sufficient doubt about that, because of the price of coal relative to the price of gas. It is absolutely consistent to say that we want to keep prices low by supporting this amendment.
One of the things that the Government are currently struggling with is that, at the root of this, there is not sufficient clarity in the backing of these decarbonisation objectives. It would obviously be very easy to solve the energy trilemma by simply lopping off one of the legs. If you simply say, “All we need to do is keep the lights on at least cost”, there is no problem; you would stick with the coal. It seems that this Government are not actually committed to decarbonisation as they have lopped off one of the legs and are seeking a return to coal at just the time when, internationally, we are pressing everybody else to move away from unabated coal.
This is a sensible and moderate amendment, and it gives clarity to everyone. It reduces investor risk, particularly for those people operating gas stations and seeking to invest in new gas stations. I hope that noble Lords on all sides of this House will find that they can support this amendment and I hope that the Minister will ultimately support it, too.
Viscount Hanworth (Lab)
My Lords, we have been told that the Energy Bill has two purposes. The first purpose is to secure the much needed investment in new plant for generating electricity. The second is to decarbonise our electricity supply. Amendment 105, which has been rejected by the Government, was closely aligned with these two purposes. Its effect was to ensure that if there were major upgrades to coal-fired power stations, such as to enable them to meet the European emission requirements in respect of sulphates, nitrates and heavy metal contaminations, they should also be constrained to meet the emissions performance standards in respect of carbon dioxide that are imposed by the Bill. The subsequent amendment tabled by the noble Lord, Lord Oxburgh, reinstates this requirement but includes a let-out clause that would allow the Government to alleviate the requirement, if necessary. Presumably, this would be appropriate in a case where the lack of capacity was so pressing as to imply a real danger of the lights going out.
The Minister, Michael Fallon, argued in the Commons that to include such amendments would add to the risks faced by investors. The logic of his position escapes most of us, who believe that the original Amendment 105, or its replacement by the amendment of the noble Lord, Lord Oxburgh, would clarify the intentions of the Bill in a way that would actually encourage investment. Why does that Minister insist on the rejection of these amendments? Is it that he wishes there to be a loophole in the legislation that would allow dirty, coal-fired power stations to remain in operation, notwithstanding the ostensible purpose of the Bill? There are certainly grounds for such a suspicion. However, the Minister has asserted on several occasions that he doubts, even with the allowances the Bill affords, whether any of the old coal-fired power stations have a future.
Perhaps we should believe in his good intentions and allow ourselves to look elsewhere for the reasons for his intransigence. The reasons are not hard to find. The Minister has a need to conciliate a faction in his party that is firmly opposed to all measures aimed at staunching the emissions of carbon dioxide. They point to the cases of Germany and the Netherlands, which are in the act of commissioning unabated coal-fired power stations. They demand to know why Britain should be imposing constraints upon itself when others are failing to do so.
Lord Jenkin of Roding (Con)
My Lords, I will be brief about this. I understand the argument put forward by the noble Lord, Lord Oxburgh, and I accept that he is trying to reach a compromise. This Bill started with the support of all parties in Parliament. I was a little disappointed to hear the noble Baroness’s complaints that the Bill does not meet many of the requirements that she would wish to see in it, but on the whole her party has supported the Bill. Indeed, it has gone further and recognised that the Bill’s passage is deeply important to the future of our energy industries here.
My noble friend Lord Lawson described it as the worst Bill he had ever seen, took part in the first day of Committee and we have not heard from him since. The fact is that everybody else who has taken part in the passage of the Bill has recognised that the new machinery, which sets up the electricity market reform as an essential part of our generation and consumption measures, is crucial for foreign investment—for all investment, but particularly when we have some of the larger foreign companies willing to invest in this country. Nothing upsets them more than if they see that there is uncertainty in Parliament over the Bill.
Picking up one point made by my noble friend Lady Verma, we have offered the other House a chance to consider the amendment that was carried in this House. It was firmly rejected by a much larger majority there than passed it here. That is the purpose of this House. We have done it. It would be extremely damaging to the general intentions of this Bill if, yet again, we were to send it back to the other place. It would send the wrong message.
I understand the points, made by the noble Viscount, that there may be some marginal advantages. I have had representations from the gas industry about this. The overwhelming reason, however, that we should reject the amendment of the noble Lord, Lord Oxburgh, is that the Bill needs to be passed. It should be passed without any further delay. For that reason, I intend to vote very firmly against his amendment.
Lord Turner of Ecchinswell (CB)
My Lords, I speak in favour of the amendment. I find it difficult to understand, for anybody who concentrates not on tactical issues such as the speed of passing of the legislation but simply on the wording, what their opposition in principle could be. The simple fact of the case is that Parliament several years ago passed an Act of Parliament by huge majorities, committing us to the very significant decarbonisation of our economy: an 80% reduction in CO2 emissions by 2050. It is the clear conclusion of all analysis, including that of the Committee on Climate Change that I used to chair, that there is no believable path to that emissions reduction by 2050 which does not involve the very significant—almost total—decarbonisation of electricity in particular by around 2030.
Clearly that is completely incompatible with a role for coal other than as providing a small number of hours a year of peaking capacity into the mid or late 2020s. This amendment would simply ensure that that possibility would clearly be excluded—with, however, a get-out under Section 48 if that at all endangered an adequacy of supply. It simply seeks to ensure that we will not have unabated coal in significant quantities in the late 2020s, and it does so 12 years ahead, in order to influence the decisions on investment that are required for security of supply.
I fail to see what the disadvantages of the amendment are. It would give greater clarity over our plans for coal and over the opportunities for gas, and I therefore support the noble Lord, Lord Oxburgh, in his amendment.
Lord Forsyth of Drumlean
My Lords, I am prompted to rise because of the rather unwarranted attack that the noble Viscount made on Ministers. None of us takes responsibility for security of supply in the future. The late Baroness Thatcher used to say that the only thing that was certain in politics was uncertainty. None of us knows what the future holds or what the likely position will be in 12 years’ time. This amendment would remove the flexibility that a future Government would have in order to keep the lights on. It is really quite wrong of the noble Viscount to present this as some kind of political matter that is exercising Back-Benchers in the other place, as he did, with Ministers responding to that rather than to their responsibility to ensure that we have security of supply. I notice that when I asked the noble Baroness on the Opposition Front Bench about security of supply, she did not deal with the issue.
At the end of Question Time, we had a Question about China. We are now importing vast quantities of carbon from China because of the expansion of coal-fired power stations there, and exporting jobs that would otherwise have been here. To present this as some kind of neutral political argument—
Lord Forsyth of Drumlean
I shall give way in a second, if I may. I bow to the considerable experience of the noble Lord, Lord Turner, in this matter, but there was a thing called the financial crisis, which he is also very familiar with, which followed and which has big implications for jobs and prosperity in future. Ministers are entirely right to take account of that.
Baroness Worthington
I thank the noble Lord for giving way. I referenced security of supply in indicating that this would create greater certainty for gas investment, not least by changing the merit order so that gas operated for more of the time. The noble Lord’s interruption made me lose my place at the time, but I was going to go on to mention that I learnt yesterday that one of our biggest renewable projects, the biomass conversion at Eggborough, is now in jeopardy because Ministers in this Government have changed the early CFD feed-in rules in this Bill, which we have yet even to sign into law. The rules have been changed midway through so that the Eggborough project, which currently accounts for 4% of our supply and gives us firm renewables that mean that we can back off from wind, is now in deep jeopardy and is expected to have to close as a result of this Government changing their mind.
Lord Forsyth of Drumlean
The noble Baroness makes my point for me: there is no certainty in the future.
Lord Forsyth of Drumlean
Under this Government, under future Governments—whatever. All that the Government are arguing in this regard is, “Don’t close off options that may, in the event of the unforeseen happening, occur”. The noble Baroness, who presumably has concluded that she is never going to be in government again, has no interest in that, but those of us who believe that our parties will be in government would like to see our Ministers keep their options open. I hope that the House will reject this amendment.
Baroness Worthington
Does the noble Lord accept, though, that because demand for electricity is currently flat, keeping options open squeezes out investment in new options?
Lord Forsyth of Drumlean
Before I sit down, I say to the noble Baroness that I would be more persuaded by her if she and her party were to be more open-minded about the prospects for fracking, for example, in her advocating the future generation of electricity by gas. As always, though, the noble Baroness wants it both ways, and I hope very much that the House will support my noble friend and reject this amendment.
Lord Teverson
My Lords, I will comment on the amendment of the noble Lord, Lord Oxburgh. I agree and sympathise with my noble friend Lord Jenkin’s point that the Bill needs to proceed and that we must get it on to the statute book. The only reason I have pursued this is that, as the noble Lord, Lord Turner, suggested, the issue of the continued generation of electricity by coal is fundamental to the policies of both this and the previous Government, and therefore needs to be clarified. These two amendments are attempts to increase as far as possible certainty for investors and clarify the way forward. As the noble Lord, Lord Forsyth, said, that is not completely possible, but at least we can start to close down the risks and probabilities, which is one of the main purposes of the Bill. That is why the amendment has been pursued. I have been happy—although reluctant—not to pursue my own amendment but to try to reach a compromise.
Pricing is not a problem here. Would coal being removed from electricity generation lead to the threat of price increases? In the past few years, when coal has come on, we have not seen prices fall; in fact, the more coal has come on the system, the more they have gone up. That is the correlation; I would not say it is directly causal, but that is the history of how this has worked.
On security of supply, the vast majority of that coal comes from Russia and Colombia, with a little bit from the United States as well. The security of supply arguments do not, therefore, all run in one direction. On the question of how the coal generating industry is treated under any of these amendments, it will be free to operate at peak times for a long time. That, along with contributing into the capacity market, will be greatly to the financial benefit of the power station operators.
That is why these amendments are important. I know that this is not important to everybody, but it is estimated that our carbon emissions went up by 4.5% last year, at a time when we were hoping to bring them down. That was because of the increase in coal generation of electricity, according to the Department of Energy and Climate Change.
This is a good Bill. I congratulate my noble friend the Minister on all that she has succeeded in doing during the passage of the Bill. This is the only contentious Lords amendment, and I seriously regret that the Government have not been able to find a compromise or to help us through this important, core issue.
Lord Dixon-Smith (Con)
My Lords, I had not expected to intervene in this debate, but the previous two speeches have forced me to my feet. I remind the House that these amendments, and this part of the Bill, are talking about 2025. There is only one significant carbon target which must be met, which applies in 2050. The rest of it is interim planning. If we are being silly here, of which I am quite capable, and sticking to an interim target, we are taking a very short-term view.
Lord Turner of Ecchinswell (CB)
My Lords, I simply point out that the interim targets in the form of the actual budgets are legally binding commitments of the Government under the Climate Change Act. Once the budgets are set—three budgets in advance—they are not merely planning guidelines but are part of the Government’s legally binding commitments.
Lord Dixon-Smith
I am used to the Chancellor of the Exchequer making annual Budgets and I have been involved in politics indirectly and directly for a very long time. If the Chancellor of the Exchequer is forced to, shall we say, amend interim budgets, it seems to me that sticking our feet in the ground over an energy budget is not exactly wise.
Baroness Verma
My Lords, I am grateful to all noble Lords for their contribution to the debate. I hope that in my opening remarks I made it clear that the Government recognise the intention behind this amendment. Of course we share that intention, but I believe that the differences between us are very narrow, even though they are very important.
It boils down to an assessment of risk. All sides in this debate can agree that we neither expect nor desire large amounts of unabated coal to be operating in the 2020s, but, as my noble friends Lord Forsyth and Lord Jenkin of Roding have rightly pointed out, we cannot be sure today exactly what will be required in those years. The Government’s position is that we should take a precautionary approach, given the serious potential for security of supply implications and the impact on consumer bills if we get it wrong. We should send a clear signal that unabated coal has only a limited future in helping us to transition to a lower carbon economy by creating an EPS that applies to any new coal plant. I appreciate the attempt of the noble Lord, Lord Oxburgh, to find an alternative, but no responsible Government could or should take risks that potentially put energy security in danger.
The noble Baroness, Lady Worthington, raised a point on the capacity market; our view is that capacity payments are likely to have only a marginal impact on the overall economics of coal plant and more important drivers on occasions where upgrading will relate to the overall state of an operator’s plant, an operator’s view of the market and the value that they place on retaining coal as a hedge. Even were they able to do so, this could mean that coal plants stay open longer, but they would operate at low-load factors and hence have low carbon emissions, given the evolution of the energy market with more low-carbon generation and carbon pricing. The noble Baroness could not give complete assurance that energy security would not be at risk. She could not say that prices would stay the same—her own party’s policy does not say that.
It is time that we looked at the elephant in the Chamber—the investors. After months of uncertainty, investors are looking at us in dismay. The most important thing we need to do is to provide certainty for investors by securing Royal Assent. The Confederation of British Industry has said that the Energy Bill has undergone significant scrutiny within Parliament as well as by industry and other stakeholders and it has the broad support of industry and investors in its current shape. It is important to the success of EMR that the Energy Bill receives Royal Assent in 2013, allowing investors to make those well needed decisions about investment.
Baroness Worthington
I thank the noble Baroness for giving way. Will she comment on my questions about Eggborough, as that is the very first test of whether this Bill is actually going to deliver? It was part of DECC’s announcement on projects that are going forward under the FID enabling scheme but I hear that next week they will receive a letter saying that they are not eligible for the first tranche because of a new system that the Government have introduced of rationing out the CFD contracts.
Baroness Verma
My Lords, the noble Baroness is of course aware that negotiations that are commercially sensitive cannot be discussed; I will not go further than that because these are sensitive issues and it would not be right of me to discuss individual plants, particularly on issues of commerciality.
Baroness Worthington
I will just say that the Secretary of State was at Drax unveiling a new project that is being enabled under the CFDs. If it is that confidential, why was he there?
Baroness Verma
My Lords, I shall continue by trying to conclude quickly. The Bill has undergone thorough scrutiny and the Government have listened very carefully to all the concerns raised during its passage through this House. I am grateful to my noble friend Lord Teverson for his warm words. We have responded to a great many of the issues raised by colleagues from all sides of the House on, for example, domestic tariffs and access to markets, and we have introduced new topics—for example, carbon monoxide and smoke alarms.
We must acknowledge that the other place has accepted 112 amendments and, moreover, has welcomed them. It has recognised the expertise that this House has brought to the scrutiny of the Bill and the real improvements to it that this House has made. However, the other place has decided with a considerable majority that it does not agree with this amendment. The elected Chamber saw an unprecedented majority for the Bill as it completed its passage through the other place. Today, we can decide that the Bill proceeds to the statute book—a Bill that is essential for protecting consumers and for ensuring security of supply and decarbonisation of our economy. Nothing will send a firmer signal to investors than that this House will do nothing that prevents the Bill receiving Royal Assent.
Lord Oxburgh
My Lords, so much for my attempts to find an uncontroversial middle way of bringing all sides together. The temperature of this debate has been a little higher than I would have expected and, indeed, than I would have hoped. I agree with a great deal that the Minister has said on both security of supply and the Bill’s importance for investors. However, the fact is that the amendment increases, rather than reduces, both those things. If Members with a keen sense of smell have detected a faint aroma in the Chamber, it is the aroma of red herrings.
The Minister spoke of concerns about certainty for investors if my amendment is agreed, and the noble Lord, Lord Forsyth, said the same thing. He is quite right: we do not really know what is going to happen in 10 years’ time, but the Bill contains a measure that allows the Government to disregard these constraints if severe circumstances mean that it is necessary to do so. Therefore, that question of security of supply does not really exist.
As far as looking at certainty for investors is concerned, in the near term the necessity is for investment in gas-fired power stations. Everyone agrees with that. This amendment would improve, not reduce, certainty for investors in the time that we can look forward to. I do not know anyone who does not think that we need new gas-fired power stations, and the amendment would help investment in that regard.
The noble Lord, Lord Jenkin, rightly said that we have to get on with it. I am going to press this matter to a vote. I do not think that it need delay the passage of the Bill for more than a few days. As far as investors are concerned, getting the right Bill before Christmas, which the Government can certainly do if they are so minded, will be the main thing. The fact that that happens a day or two later is neither here nor there, and there will be a much more certain basis for investing in new gas.
Anti-social Behaviour, Crime and Policing Bill
(11 years ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Hamwee
Baroness Hamwee (LD)
My Lords, in moving Amendment 56YG I shall speak also to Amendment 56YH. I have to say that I am amazed by the influence of my noble friend the Chief Whip, who just by sitting there has prevented anyone walking in front of me.
Schedule 7 deals with the powers to seize invalid passports, and these are two quite small, probing amendments, although they are serious. The first amendment would leave out the provision for a constable, who has various powers of search and seizure, to authorise a person—any person,
“to carry out on the constable’s behalf a search under this paragraph”.
That is a search which may involve the use of force—reasonable force, but nevertheless force. I question whether it is right for such powers to be authorised—perhaps not technically delegated, but to the outside world they would seem to be delegated.
My second amendment would leave out the requirement to return an expired travel document, but not where it is thought that it might be intended to be used for purposes for which it is no longer valid. My question, of course, is: why not? If the document has expired, what harm is there? Are there no other systems that are sophisticated and efficient enough to pick up whether an expired travel document is, in fact, expired? This seems an odd sanction, merely on the basis of reasonable belief. My particular reason for questioning it is that it might really irritate people quite unnecessarily. I have written “unnecessary aggro” against this, and I genuinely think that we should avoid causing unnecessary aggro, because there are enough sensitivities around passport and immigration controls and so on without adding one which, to my mind at any rate, is not necessary. I beg to move.
Lord Ahmad of Wimbledon (Con)
I thank my noble friend Lady Hamwee, who explained that these two amendments relate to the powers to seize invalid passports. As she has said, they are probing in nature. Such powers may be necessary where a passport has been withdrawn in the public interest; for example, to disrupt a person’s travel overseas due to the serious issue that they may be engaged in terrorism.
Amendment 56YG relates to the ability of a constable to authorise a person to carry out a search on their behalf. The purpose of this provision is to allow a constable to make use of support if required when carrying out a search at places other than a port. Such support would be exercised under the authority of a constable, and I reassure my noble friend that, in view of the type of case to which this paragraph applies, it would in practice be likely to be carried out in the presence of a constable. The authorised person—such as a police community support officer—would not be empowered under the provision to use reasonable force or to require a person to hand over the passport for inspection purposes.
Amendment 56YH, which I think my noble friend labelled the “avoiding unnecessary aggro” amendment, relates to expired travel documents. I agree with my noble friend that there is often little harm in returning an expired document to the passport holder. Indeed, there is provision in paragraph 4 of Schedule 7 for that very purpose. The provision recognises that the passport holder may wish to retain the expired passport because, for example, it may include extant visas for travel to other countries. It may even provide memories of places that they have travelled to previously; as well as a visual record, for good or bad, of how we may have looked some 10, or even 20, years ago.
However, on a more serious point, the British passport does of course remain the property of the Crown at all times. There is no entitlement to a passport and no statutory right to have access to it. If a person intends to make use of an expired passport for a purpose for which it is no longer valid—in other words, for a fraudulent purpose—it is right that a constable should be able to remove the document. This would prevent it being used elsewhere for fraudulent purposes, where the level of checks may not be so robust.
It is also entirely inappropriate that a constable should hand back an expired passport to a person where he or she reasonably believes that it is intended to be used for a fraudulent purpose. It would send out the wrong message to the passport holder and would simply allow—if not, indeed, encourage—them to continue to make use of the document for wrong and potentially unlawful reasons. I hope, in light of the explanation I have given, that my noble friend will withdraw her amendment.
Baroness Hamwee
My Lords, I will do so but I have to say that, first, on the issue of the expired passport, there are some good reasons which a passport holder may not even think of at the time. One that immediately occurs to me is the need to be able to show the number of days you have been in the country, which involves showing when you have travelled out of and back into the country. There are tax reasons why a number of people need to be able to show that. It is a matter of the officer’s discretion and reasonable belief but I find it difficult to imagine how the conversations would be conducted. I should perhaps ask my noble friend whether he can tell the Committee how one challenges an officer’s decision. His notes may say, even if I did not think of it beforehand.
As regards whether someone other than a constable can exercise the powers of search and seizure, my noble friend says that, in practice, it would be the constable. If that is the case, the obvious question is: why allow for anyone else to do it? Another question is whether there will be instructions to officers—guidance, codes of practice or whatever—that might deal with this. I do not know whether my noble friend can deal with either of those at the moment—I know that colleagues are here particularly to talk about the next group of amendments—but if he has anything to say, that would be good. If not, perhaps he could write to me.
Lord Ahmad of Wimbledon
I will just assure my noble friend that I do not think I can add to what I have said other than, on the first point about why we should not restrict the power in that way, it is important that there is a level of flexibility that allows the constable to exercise it. In most cases, as I have said, the person would be someone such as a community support officer. As far as the document is concerned, my noble friend raised the point about other reasons. Of course it is at the discretion of the officer, but one hopes that at that point a case could be made. She raised the issue of tax, which is not one that I was thinking through as she spoke. I am sure that there is a list of other circumstances. However, ultimately, it boils down to the document being the property of the Crown, and it should remain so.
Baroness Hamwee
Perhaps after today the Minister could let me know what arrangements there will be for a challenge, and about a code of practice. He nods and, on that basis, I beg leave to withdraw the amendment.
Baroness Hamwee
“Report by Secretary of State
The Secretary of State shall, no later than three months after the coming into force of section 132, report to Parliament his or her recommendations—(a) for the introduction of safeguards in respect of legally privileged material, excluded material and special procedures material in respect of a person detained under Schedule 7 or 8 to the Terrorism Act 2000, and(b) for the introduction of a statutory bar to the introduction in a criminal trial of admissions made by a person detained under Schedule 7 or 8 to the Terrorism Act 2000.”
Baroness Hamwee
My Lords, in moving Amendment 56YJ I will speak also to Amendment 56YK. I also have Amendment 100A in this group, which is a consequential amendment. The whole of this group deals with Schedule 8, which is Schedule 7—port and border controls—in the previous legislation. My amendments have come up as a curtain raiser, though in this debate they are probably more of an epilogue. They relate to future possible action rather than to anything that might happen immediately, as would other actions flowing, in most cases, from the work of the JCHR. I am not suggesting that noble Lords who are moving and speaking to them are merely acting as mouthpieces—I know that that is not the case.
My noble friend Lord Lester is unwell and very sorry not to be here to speak to amendments in his name and to which he has added his name; my noble friend Lord Avebury has his instructions. I do not want to make a Second Reading speech at this point—perhaps speeches on these issues will be longer on Report—but I will make some general remarks. I acknowledge that the Government have moved forward a little on the relaxing of the arrangements to which this schedule applies, but like others I am eager for more.
I was interested in some of the comments that the Government included in their publication responding to the response to the review of the operation of Schedule 7. We do not have the responses published, but there are some interesting and telling comments. A self-declared police officer says:
“Schedule 7 should also incorporate a clear commitment and implementation process to the Equality Act 2010 general duty of ‘fostering good relations’”.
There are comments about,
“More tactful or less intimidating examinations”.
The report says of the community engagement events which the Government undertook that,
“The conduct of examinations was raised repeatedly”.
The Equality and Human Rights Commission commented at length on the lawfulness of stopping without suspicion. It said that,
“there should be no power to detain and question for more than 1 hour”,
on the basis that if an officer cannot articulate suspicion after 30 minutes of questions, he certainly should not detain for up to nine hours.
The Government asked whether respondents had any personal experience of being stopped and detained. I note that the proportion of those who said that,
“Schedule 7 powers are unfair, too wide ranging and should be curtailed”,
was considerably higher than the proportion who said they had personal experience. Even if you add the “prefer not to say” responses, it is still a higher proportion.
I was also interested to see the advice to examining officers following the recent case about,
“the right to consult a solicitor in private, in person and at any time during the period of detention”.
I know of a man who was detained but did not exercise that right because he was told by the officer who detained him that this was bound to lead to a delay, meaning that his wife and his elderly, infirm mother, with whom he was travelling, would be left even longer not knowing what was going on—a practice that I hope never to hear of again. Clearly, training in this is an issue.
Of course, my underlying point is about the balance between protection and security, and individual liberty, some of which is about what the Government can do through officers and some of which is about safeguards written into the legislation.
My amendments anticipate what we might be seeking if this debate were following the report by the independent reviewer of terrorism legislation when we know the outcome of the Miranda case, but I have picked up on his evidence to the recent Home Affairs Select Committee inquiry into this. Amendment 56YJ picks up two of his recommendations, 4 and 7, on the introduction of safeguards in respect of legally privileged material and on a bar to the use in a criminal trial of admissions made in the circumstances of such a detention.
Amendment 56YK shows that I am ever the optimist. I would never expect wording such as this to be used in legislation, but we are only in Committee. It seeks assurances from the Government about following through on—although I would say, for the purposes of the debate, looking seriously at—recommendations made by the independent reviewer following the Miranda case. I am sure that my noble friend the Minister will give assurances about that. I remain optimistic but also vigilant. As I said, Amendment 100A is consequential. I beg to move.
Baroness Kennedy of The Shaws (Lab)
My Lords, I will speak to Amendments 57 to 64. It is important to consider the backdrop here. Schedule 7 of the Terrorism Act 2000 is a highly intrusive police stopping power and it operates outside the normal regulatory framework that covers other police powers of stop and search.
Under Schedule 7, individuals are stopped and they are not under arrest but they are examined for up to nine hours, under the current arrangements, where they can be questioned, searched and have their belongings searched; they can be strip-searched; and they can have samples of their biometric data, including their DNA and fingerprints, taken from them, regardless of the outcome of the encounter and in the absence of a lawyer. People are stopped under it and are obliged to co-operate or face arrest, a period of imprisonment or a fine for any refusal. In addition, there is no right to compensation or assistance in rearranging any flights or other transportation that they might have missed as a result of this examination or detention. It is important to see just how extraordinary these powers are.
Recent research has shown that in 2011-12—the examination of this material has only just been encapsulated in a report—63,902 stops were carried out under Schedule 7. Of these, 2,240 lasted more than an hour and 680, which is less than 1%, resulted in a detention. Although no information has been provided on the number of people convicted, and on what charges, there were just 10 terrorism-related convictions between 2009 and 2012. I have been involved in most of the cases and can tell you that none was as a result of a stop at an airport or any port. We have no convictions based on these stops.
Lord Avebury (LD)
My name is attached to the amendments in this group in the name of my noble friend Lord Lester, who, as my noble friend Lady Hamwee has already said, is unfortunately indisposed and unable to be present for this debate.
Let me say at once that I agree with all the amendments proposed by the noble Baroness, Lady Kennedy, as well as those in our name. She made a convincing argument, particularly on the ineffectiveness of the legislation. In spite of the vast number of stops and searches that have taken place, we have not had a single conviction. This is not a device for catching terrorists or even being able to question them—the noble Baroness added that none of them had even been charged. This matter has caused enormous concern to the Joint Committee on Human Rights and to the Equality and Human Rights Commission, with which we have an opportunity to discuss the amendments. It is as worried as we are that Schedule 7 to the Terrorism Act could violate human rights and equality laws and cause immense damage to community relations because of its widespread negative impact, particularly on our Muslim population. The EHRC made submissions to the Home Office consultation on Schedule 7 powers, and again, in 2013, it made a further submission to the Joint Committee on Human Rights in relation to its scrutiny of the Bill. It seems to me that the EHRC has been ignored.
We recognise the importance of stop and search powers as a tool for crime detection and prevention, and we acknowledge that Schedule 7 forms part of the UK’s counterterrorism strategy, which is aimed at protecting people in ports and airports and on the chief modes of transport which have been targeted by terrorists in the past. It could also prevent terrorists from entering UK territory.
However, we believe—with others—that the legal form and practical exercise of these powers should comply with equality and human rights legislation. The powers have to be used appropriately, proportionately and in a non-discriminatory manner. In its report, The Impact of Counter-terrorism Measures on Muslim Communities, the EHRC noted that Schedule 7 is eroding Muslim trust and confidence in policing and called for greater transparency and accountability around its use. Following the consultation already mentioned, Clause 132 and Schedule 8 to the Bill propose certain changes to the provisions in Schedule 7 to the Terrorism Act 2000 for stopping, examining and detaining people at ports. However, I agree with the EHRC that to do this without the need for reasonable suspicion or other limitations is far too broad, lacks efficient safeguards, and could be a breach of the requirement that such an interference should be prescribed by, and in accordance with, the law pursuant to Articles 5 and 8 of the European Convention on Human Rights.
This point has also been made by the Joint Committee on Human Rights and several of the amendments in this group are based on its recommendations. This is especially the case when an individual is questioned about his political and religious beliefs and activities, as well as those of others in his community and family. The Islamic Human Rights Commission says it has received dozens of complaints of inappropriate questioning, such as officers asking Muslims whether they pray, whether they would be willing to spy on their communities and which party they voted for at the last election. The commission concludes that,
“Schedule 7 has done more to alienate people than address the issue of national security.”
I will give two examples from my own experience. First, a British Shia imam, returning to the UK through Heathrow terminal 1, was detained, interrogated at length and had his fingerprints and DNA taken. I was told the samples would be retained indefinitely, for comparison with samples taken at the scene of terrorist offences. I wrote to Jacqui Smith, then Secretary of State for the Home Office, on 5 December 2008, asking for the samples to be destroyed, in the light of the case of S and Marper at the European Court of Human Rights. I finally got the samples destroyed and the imam’s name expunged from the database on 25 January 2010 after 13 months of correspondence and telephone calls with Ministers and their offices and various branches of the police, including SO15, or Counter Terrorism Command.
In a second case, which is still ongoing, a friend of mine, who is a Bahraini national, has been stopped several times at Heathrow and King’s Cross and his complaint was taken over by the IPCC, which issued proceedings against the Metropolitan Police on 10 October 2013 because it would not investigate the basis for the stops. It was expected that some months could elapse before the case was heard in the High Court, and I would be grateful if my noble friend could give me an update on that. As I said to the Security Minister, James Brokenshire, it is clearly unacceptable that our police should be harassing and intimidating Bahraini refugees here, including British citizens, when they are entitled to protection from the regime that persecuted them. Instead, it is clear that our police are acting as agents of the al-Khalifa oppressors. It is odious that peaceful opponents of any state which violates human rights should continue to be persecuted after they seek asylum here. It is not simply an operational matter for the police, but one that touches on our obligations under the refugee convention. As I also said to Mr Brokenshire, I do not believe the police would have acted in this disgraceful way unless they had been told from on high that this is how they were expected to behave.
More widely, the EHRC’s statistical analysis of examinations and detentions under Schedule 7 suggests that disproportionately high numbers of black and Asian passengers are being stopped and the disproportion increases further with over-the-hour examinations and still further with detentions. The code of practice on Schedule 7 prohibits reliance on ethnicity as the sole reason for examining a person, so the EHRC suggests that an investigation be undertaken to see whether that is the practice. However, statistics alone cannot prove that a power is being used in a discriminatory manner; a more comprehensive study is needed to see whether the conduct of the police under Schedule 7 breaches the Equality Act. I hope that my noble friend will say that in light of the experience, such an inquiry will be undertaken.
Baroness Kennedy of The Shaws
My Lords, before the Minister rises, perhaps I may indicate, as I did not specifically mention it, that I, too, am urging that the threshold of reasonable suspicion should be the standard before downloading, retaining and copying material on electronic devices of any kind. Even if the Government do not accept the amendment on stopping—that there should be reasonable suspicion at that point—at the very least we should move on to reasonable suspicion before we start taking people’s devices and entering into private material and retaining it.
Lord Faulks (Con)
I, too, am a member of the Joint Committee on Human Rights. Discussion, as your Lordships will anticipate, ranged far and wide over this new Schedule 8 amending Schedule 7 to the Terrorism Act. Giving the perfectly proper right to stop and seize and, at the same time, preventing so far as possible any abuse of that power is a difficult balance to strike. However, it is worth recording that we concluded that the Government had made out a case for a without -suspicion power to stop, question and search travellers at ports and airports, given the current nature of the threat from terrorism, the significance of international travel, the overall threat picture and the evidence seen by the independent reviewer demonstrating the utility of non-suspicion stops at ports in protecting national security. Therefore, we also concluded that the retention of this power under Schedule 7 was not inherently incompatible with Articles 5 and 8 of the European Convention on Human Rights.
We are in the slightly unfortunate position of still awaiting the report by the independent reviewer of terrorism legislation on the David Miranda case, which will perhaps shed some light on this power generally. The Government clearly pay considerable heed, quite rightly, to what the independent reviewer of terrorism recommends but, with great respect to my noble friend Lady Hamwee, simply subcontracting responsibility, as her Amendment 56YK would, from the Secretary of State to the independent reviewer would go rather too far.
This is a very difficult balance to strike. The Government have come some way towards a balance in favour of those who might become the victims of an abuse of power. The question is whether they have come far enough.
Baroness Smith of Basildon (Lab)
My Lords, this has been a useful debate. The issues that have been raised are around the difficult balance between civil liberties, national security and counterterrorism measures that the noble Lord, Lord Faulks, referred to. The points made today about those issues are extremely useful and I look forward to hearing the Minister’s comments on them.
We are greatly assisted today by the supplementary written evidence of David Anderson QC. We are indebted to him because, when giving evidence on 12 November, he was asked to spell out what changes he would recommend to the port powers in Schedule 7 and the Minister, Damian Green, had already said in the other place that he expected recommendations. At Second Reading in your Lordships’ House, I said that I thought it was optimistic of the noble Lord, Lord Avebury, to hope that we would be able to see any such recommendations from David Anderson while we were still debating the Bill. I thought he was being optimistic but that optimism was well founded. We are indebted and grateful to David Anderson for the efforts that he must have gone to in order to ensure that we had his recommendations before we had completed our deliberations—indeed, as we were having our Committee debates. I hope that the Minister will endorse that. That is very helpful and greatly welcomed.
I shall not comment on each individual amendment, but a number of the amendments before us today relate to his report. As I said, I will be interested to hear the Government’s response to them as there are areas to which the Government may want to give further consideration and on which they may want to bring forward amendments before the conclusion of proceedings on the Bill.
On Amendment 56YJ and the issue of privileged material, although David Anderson reflects that identifying the details of changes is difficult before we have the Miranda judgment, he identifies this as an area where there need to be safeguards and clarity around those safeguards. It is not an area where there should be any confusion or ambiguity. It would be helpful today if the Minister were to say on behalf of the Government whether they accept the principle of David Anderson’s recommendation in this regard. We are certainly sympathetic and would welcome the opportunity to consider further the kind of safeguards that could be introduced.
Also on Amendment 56YJ, I think it was in the Beghal v DPP decision that the court supported the introduction of a statutory bar to Schedule 7 admissions in a subsequent criminal trial, although it also recognised that this would have to be given detailed consideration. David Anderson has now added his support to that of the court and that also forms part of his recommendations. Again, we would be very sympathetic to that and would be interested to know whether the Government intend to support that recommendation, which this amendment reflects.
Amendments 56YK and 100A refer to a process by which effect could be given, almost automatically, to the recommendations of the independent reviewer of terrorism legislation. There is some merit in looking at how recommendations could be acted on more quickly but we would welcome the opportunity to see more detailed proposals. It would be helpful to have a mechanism to take action more quickly than always having to wait for the next legislative slot for primary legislation in the Government’s timetable. However, whether secondary legislation, even with the affirmative procedure, would give adequate opportunity for effective scrutiny by Parliament, which should be making the decisions, has to be looked at in some detail.
On Amendment 62A, in the names of the noble Lords, Lord Lester and Lord Avebury, we would certainly be supportive of removing the restrictions if the interview takes place in a police station. Amendments 57A, 61A and 61B would establish limits on the duty to give information and documents that are held electronically. We have concerns about how this law is currently being applied. I note that David Anderson has also called for appropriate safeguards regarding the use and retention of such data. It would be helpful to hear from the Minister whether the Government consider that the problem is a lack of clarity in the existing law or whether further action needs to be taken.
We would also be sympathetic to Amendment 64ZA on the periodic review of an individual’s detention. I would welcome the Government’s comments on David Anderson’s recommendation that the intervals for review should be specified in the schedule, as outlined in the amendment, and not just in guidance. There can sometimes be a lack of clarity around the purpose of guidance. The importance of it being in the schedule and not just in guidance was also included in the JCHR report. The Government have indicated that they may support this, so I am optimistic about a positive response on that one.
This is quite a difficult area in which to find the appropriate balance. The House has heard about the attention to detail that has been given to this range of issues. It would be helpful if the Minister could clarify in his response the Government’s views on these issues, particularly in the light of the amendments which reflect so much of what is in David Anderson’s recommendations.
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con)
My Lords, I thank the noble Baroness, Lady Smith, for the way in which she has contributed to the debate. All noble Lords have recognised the seriousness of this issue. I understand that all noble Lords who have spoken have tried to exercise their best judgment in this particularly sensitive area. My noble friends Lady Hamwee and Lord Avebury, the noble Baroness, Lady Kennedy, and my noble friend Lord Lester—I am sure we all wish him a speedy recovery in his absence—have all raised a number of issues through their amendments.
As has been pointed out, the independent reviewer of terrorism legislation, David Anderson QC, has recently made some recommendations for further reforms to the powers contained in Schedule 7 to the Terrorism Act. These recommendations, as my right honourable friend Damian Green reported, are being considered by Ministers. We are grateful to the independent reviewer of terrorism legislation for his report.
I have to say that, as Mr Anderson has also observed, there is a limit to how far these matters can be considered before the conclusion of the judicial review proceedings in the case of David Miranda. That being the position, while I welcome the opportunity to air these important issues in debate now, I propose only to set out the Government’s preliminary view of the amendments before us today. Subject to the timing of a judgment in the Miranda case, I hope to give a more definitive view before the Bill moves on to Report—I will make sure that noble Lords are aware as soon as we are in that position.
As the noble Baroness, Lady Smith, invited me to do, I begin by touching on Amendments 56YJ and 56YK, which deal with some complex issues. The first of these is around safeguards for legally privileged and related material and the use of admissions in criminal proceedings. It is right that the Government are considering these matters and they are doing so now. There is no need for the Bill to require that consideration in future.
I would like to be clear that the current compulsion under Schedule 7 to the 2000 Act to answer questions means that admissions made in an examination would not normally be considered admissible in criminal proceedings. Both the High Court and the independent reviewer of terrorism legislation have suggested that a statutory bar be introduced to this effect, and this is something that we are examining carefully.
It is right that the independent reviewer of terrorism legislation makes recommendations, but Amendments 56YK and 100A seek to tie the hands of the Secretary of State by, in effect, requiring her to implement the recommendations of the independent reviewer. It is for the Government and Parliament to decide what legislative changes should flow from the independent reviewer’s recommendations. Given the importance of these issues, any such legislative proposals should be subject to full parliamentary scrutiny—as with the provisions in this Bill—rather than implemented through secondary legislation, as my noble friend has suggested in Amendments 56YK and 100A.
Amendments 57 and 58 deal with fundamental principles of the powers. First, Amendment 57 seeks to qualify the definition of the purpose for which these powers can be used. The legislation is already clear: they are for the purpose of determining whether a person appears to be someone who has been concerned in the commission, preparation or instigation of acts of terrorism.
The noble Baroness, Lady Kennedy, has expressed concern that the powers may be used in a discriminatory way. Accordingly, Amendment 57 also includes requirements on collecting data. Requiring examining officers to collect data on all protected characteristics from all individuals examined under Schedule 7 would be both very intrusive and extremely bureaucratic. It would also prolong the majority of examinations, of which 63% are completed within 15 minutes. There is a question as to how useful such data would be.
Direct comparison with the UK population is not really relevant here. A significant proportion of those who travel through ports are not UK residents. The use of the powers is based on the current terrorist threat to the United Kingdom, meaning that certain routes are given greater focus. Consequently, some ethnic groups may be more likely to be examined, but not because the powers are being used inappropriately. As the independent reviewer of terrorism legislation reported in his recent annual report:
“If the power is being properly exercised ... one would expect”
that those examined, in terms of breakdown, would,
“correlate not to the ethnic breakdown of the travelling population, but rather to the ethnic breakdown of the terrorist population”.
He went on:
“Police are however entitled and indeed required to exercise their Schedule 7 power in a manner aligned to the terrorist threat. As in previous years, I have seen no evidence, either at ports or from the statistics, that Schedule 7 powers are exercised in a racially discriminatory manner”
That said, we are working with the police and the Equality and Human Rights Commission to find a balance between increasing transparency without increasing the bureaucratic burden. I would also like to reassure the noble Baroness that the statutory code of practice for examining officers makes clear that someone cannot be examined based solely on their ethnicity or their religion.
The final element of Amendment 57 would remove the compulsion on individuals examined at ports and airports to provide information. This would fundamentally undermine the whole purpose of the legislation. Schedule 7 examinations have led to individuals being convicted for terrorist-related offences and have produced information which has contributed to long and complex intelligence-based counterterrorist investigations and the disruption of terrorist activity. If someone could simply refuse to answer questions, the utility of the provision would be fundamentally brought into question.
Amendment 58 seeks to introduce a reasonable suspicion test to be met before an examining officer may detain a person under Schedule 7. Again, this would undermine the capability of the police to identify individuals who are involved in terrorism as they passed through our ports and borders. Examinations are not simply about the police talking to people who they know or already suspect are involved in terrorism. They are also about talking to people travelling to and from places where terrorist activity is taking place or emerging to determine whether those individuals appear to be involved in terrorism, whether that is because they are or have been involved, are going to become involved or are at risk of becoming involved either knowingly or unknowingly.
For those reasons, I am not persuaded that it would be right to introduce a test of reasonable suspicion. I am pleased that my noble friend Lord Faulks has been able to explain that the Joint Committee on Human Rights has supported this position. However, the independent reviewer of terrorism legislation has recently recommended that detention be permitted and continue on periodic review only when an officer is satisfied that there are grounds for suspecting that the person appears to be a person concerned with terrorism. We are reflecting on this recommendation ahead of Report.
Amendments 59, 60 and 61 would further reduce the maximum period of detention. The police need time to carry out checks and questioning. The person may have a lot to say, detailed or complex questioning may be required, inconsistencies in the person’s account or documentation may need to be understood, or time may be needed to allow the person to consult privately with a legal adviser or to allow for interpretation. We are already reducing the maximum period by a third but there is a balance to be struck, and for that reason I do not believe that it should be reduced further.
Amendments 57A, 61A, 61B and 62 seek to restrict examining officers’ powers in respect of the property of people who are examined. The power to search for and examine property, including on personal electronic devices, is an essential part of the Schedule 7 powers. As the independent reviewer of terrorism legislation has observed,
“it is of vital importance that the copying and retention of data from mobile phones and other devices should be provided for by a law that is clear, accessible and foreseeable”.
New paragraph 11A of Schedule 7 to the 2000 Act, by clarifying the law, meets a requirement of the European Convention on Human Rights that interference with convention rights be in accordance with law that is adequately accessible and foreseeable. Amendment 62 would take away that clarification.
On Amendment 62A, noble Lords will understand that ports, airports and international rail terminals are quite different from police stations, and, as such, recording facilities are not always going to be available. If recording were mandatory, more individuals would be liable to being transported from the port to a police station where facilities are available, extending the duration of the examination. The questioning of any person detained for examination under Schedule 7 at a police station already falls under a code of practice for the video recording of interviews.
Amendments 63, 64 and 64ZA relate to areas where we are already introducing reforms through the Bill. While the Bill ensures that all persons detained under these powers will have a right to consult a lawyer and to have someone informed of their detention, Amendment 63 would extend those rights to everyone examined. As I have explained, some 63% of examinations last less than 15 minutes. More than 96% are concluded within an hour. Extending statutory rights to all those being examined, even briefly, would create an unnecessary burden and could well lead to longer examinations than are necessary. I would also like to remind noble Lords that the Bill already ensures that anyone examined for more than an hour must be formally detained, so there is no question of prolonged examination without these rights applying.
Baroness Kennedy of The Shaws
My Lords, I thank the Minister for his very considered response to the matters that have been raised. I am grateful to him for indicating that further thought will be given to some of the matters that have been part of the debate here. I know that there will be no movement on certain things, but that there might be some movement on others. On that basis, I will not press my amendment.
Baroness Hamwee
My Lords, I am extremely grateful to my noble friend for his very helpful response and I am glad that there will be further opportunity to discuss these things. He has given some important assurances on a number of points. My amendment 56YK was really rather tongue-in-cheek, of course. It was also a bit of a nod to my honourable friend the Member for Cambridge, who had it down in the Commons but did not really manage to speak to it. I would not subcontract such matters, but the assurances of further consideration are very helpful to hear. I have never doubted the very serious way in which the Government are considering this.
A number of noble Lords will want to take part in discussions of this on Report. In particular, the noble and learned Lord, Lord Lloyd of Berwick, was not able to stay long enough this afternoon, and I am sure that my noble friend Lord Lester will be back to discuss it. I think that I can assure the Committee that there will be a pretty substantial debate next time round. Most importantly, we will be looking at where the Government’s thinking is going before we come back onto the Floor of the House. There are clearly very important discussions to be had. On that basis, I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Baroness Gibson of Market Rasen) (Lab)
We come to Amendment 64A. I call the noble Lord, Lord Taylor of Holbeach. I am sorry; I call the noble Lord, Lord Ahmad of Wimbledon.
Amendment 64A
Lord Ahmad of Wimbledon
SchedulePowers of community support officersIntroduction1 Part 1 of Schedule 4 to the Police Reform Act 2002 (powers of community support officers) is amended as follows.
Additional powers to issue fixed penalty notices2 (1) In paragraph 1 (powers to issue fixed penalty notices), in sub-paragraph (2)(b), for the words after “in respect of an offence” there is substituted “listed in sub-paragraph (2B)”.
(2) In sub-paragraph (2) of that paragraph, after paragraph (ca) there is inserted—
“(cb) the power of an authorised officer of a borough council to give a notice under section 15 of the London Local Authorities Act 2004 in respect of an offence under section 38(1) of the London Local Authorities Act 1990 or section 27(1) of the City of Westminster Act 1999 (unlicensed street trading);”.(3) After sub-paragraph (2A) of that paragraph there is inserted—
“(2B) The offences referred to in sub-paragraph (2)(b) are—(a) an offence under section 72 of the Highway Act 1835 (riding on a footway) committed by cycling;(b) an offence under section 5(1) or 8(1) of the Road Traffic Regulation Act 1984 involving a contravention of a prohibition or restriction that relates to—(i) stopping, waiting or parking at or near a school entrance,(ii) one-way traffic on a road, or(iii) lanes or routes for use only by cycles, only by buses or only by cycles and buses;(c) an offence under section 24 of the Road Traffic Act 1988 (more than one person on a one-person bicycle);(d) an offence under section 35 of that Act (failing to comply with traffic directions) committed by the rider of a cycle;(e) an offence under section 36 of that Act (failing to comply with traffic signs) committed by the rider of a cycle who fails to comply with the indication given by a red traffic light;(f) an offence under section 42 of that Act of contravening or failing to comply with a construction or use requirement about—(i) lighting equipment or reflectors for cycles,(ii) the use on a road of a motor vehicle in a way that causes excessive noise,(iii) stopping the action of a stationary vehicle’s machinery,(iv) the use of a vehicle’s horn on a road while the vehicle is stationary or on a restricted road at night, or(v) opening a vehicle’s door on a road so as to injure or endanger a person;(g) an offence under section 163 of that Act (failing to stop vehicle or cycle when required to do so by constable or traffic officer).(4) After sub-paragraph (4) of that paragraph there is inserted—
“(5) In this paragraph “cycle” has the same meaning as in the Road Traffic Act 1988 (see section 192(1) of that Act).”Powers to issue fixed penalty notices: consultation with local authorities3 In paragraph 1, after sub-paragraph (2B) (inserted by paragraph 2(3) above) there is inserted—
“(2C) Before a chief officer of police makes a designation applying this paragraph to any person and specifying or describing an offence listed in sub-paragraph (2B)(b)(i), the officer shall consult every local authority any part of whose area lies within the officer’s police area.
(2D) In paragraph (2C) “local authority” means—
(a) in relation to England, a district council, a London borough council, the Common Council of the City of London or the Council of the Isles of Scilly; and(b) in relation to Wales, a county council or a county borough council.”General power of seizure4 After paragraph 2A there is inserted—
“General power of seizure2B Where a designation applies this paragraph to any person—
(a) that person shall, when lawfully on any premises in the relevant police area, have the same powers as a constable under section 19 of the 1984 Act (general powers of seizure) to seize things;(b) that person shall also have the powers of a constable to impose a requirement by virtue of subsection (4) of that section in relation to information accessible from such premises;(c) subsection (6) of that section (protection for legally privileged material from seizure) shall have effect in relation to the seizure of anything by that person by virtue of sub-paragraph (a) as it has effect in relation to the seizure of anything by a constable;(d) section 21(1) and (2) of that Act (provision of record of seizure) shall have effect in relation to the seizure of anything by that person in exercise of the power conferred on him by virtue of sub-paragraph (a) as if the references to a constable and to an officer included references to that person; and(e) sections 21(3) to (8) and 22 of that Act (access, copying and retention) shall have effect in relation to anything seized by that person in exercise of that power or taken away by him following the imposition of a requirement by virtue of sub-paragraph (b)—(i) as they have effect in relation to anything seized in exercise of the power conferred on a constable by section 19(2) or (3) of that Act or taken away by a constable following the imposition of a requirement by virtue of section 19(4) of that Act; and(ii) as if the references to a constable in subsections (3), (4) and (5) of section 21 included references to a person to whom this paragraph applies.”Powers with regard to charity collectors5 After paragraph 3A there is inserted—
“Power to require name and address etc: charity collectors3B Where a designation applies this paragraph to any person, that person shall, in the relevant police area, have the powers of a constable—
(a) under section 6 of the House to House Collections Act 1939 to require a person to give his name and address and to sign his name; and(b) under regulations under section 4 of that Act to require a person to produce his certificate of authority.”Power to stop cycles 6 In paragraph 11A (power to stop cycles), in sub-paragraph (2), for the words after “has committed an offence” there is substituted “listed in paragraph 1(2B)(a) to (e), (f)(i) or (g)”.”
Lord Ahmad of Wimbledon
One of the memorable parts of the Bill’s passage has been my attempts to be my noble friend Lord Taylor—which I have succeeded in doing on a number of occasions now.
We have made significant reforms to policing to enable the police to respond to the individual concerns of their communities and to give local communities direct access to engage with and challenge their local force. Community-focused policing is key to improving satisfaction rates and public perceptions of police legitimacy, as well as to reducing the fear of crime and perceptions of local disorder. Police community support officers are, of course, vital in delivering this method of policing. Taking time to engage and really get to know their communities, the problems they face and their priorities is central to building these strong links and helps to shape an effective police response.
When the Bill was considered in the other place, my honourable friend Steve Barclay, the Member for North East Cambridgeshire, highlighted inconsistencies in police community support officers’ powers. We have already taken steps to remedy the specific issue he raised by adding Clause 135 to the Bill, but we want to go further to support the important role that PCSOs play. We want to ensure that they have the necessary tools to keep the public safe and tackle the issues that really matter to the communities they serve. We believe that 18 new discretionary powers introduced by these amendments will do just that. These provisions will give chief constables greater discretion and flexibility in how they deploy police community support officers to tackle low-level crime and anti-social behaviour.
I turn first to new cycle powers. Failing to comply with road regulations can expose both cyclists and their fellow road users to danger, including pedestrians, as we sometimes see. That is why we want to do more to ensure that road safety regulations are well understood and adhered to. In addition to giving police community support officers the power to issue a fixed penalty notice for cycling without lights, the amendments will give them power to issue a fixed penalty notice for cycling through a red light, failing to comply with a traffic direction and carrying a passenger on a cycle. We believe that giving police community support officers a more comprehensive package of cycle-related powers will put them in a better position to drive improvements in cycle safety.
I turn to new traffic powers. We are introducing a new package of measures to give police community support officers additional powers to issue fixed penalty notices. These include for failing to stop for a police constable, driving the wrong way down a one-way street, sounding a horn at night, sounding a horn when stationary, not stopping the engine when stationary, causing unnecessary noise, contravening a bus lane and opening a door so as to cause injury or danger. Paddy Tipping, the police and crime commissioner for Nottinghamshire, has indicated a desire to see PCSOs tackling traffic offences. While we do not agree that they should be given the power to issue notices for more serious traffic offences, we believe that the new package I have outlined is practical at this time. I want to be clear that these measures are not intended to provide a means to pick on drivers or cyclists, or to raise revenue. Our focus is improving safety for all road users and to do that we must ensure that road regulations are respected and enforced.
A third area we are covering is parking outside schools. The power to tackle dangerous parking outside schools is an issue that has been raised in previous debates and it is something we wish to address. We know that patrolling outside schools is a core function for many PCSOs and this makes them well placed to use their engagement and problem-solving skills to educate drivers about the risks of dangerous parking. However, we recognise that, on occasions, stronger action is needed and to address this issue we are giving them the power to issue fixed penalty notices to individuals who park in restricted areas outside schools. Local authorities currently play a core role in parking enforcement and we know that a collaborative approach to tackle these types of offences is essential. We believe that chief constables should consider the role a local authority plays before making any decision to designate this power and we have therefore imposed a duty to consult within this provision.
Illegal street vendors and house-to-house collectors is another area of concern. In addition to the measures I have outlined, the amendments aim to support the role PCSOs play in promoting crime prevention and tackling anti-social behaviour issues. Illegal street vendors and bogus house-to-house collectors can cause a nuisance to communities and have a detrimental impact on those working legitimately. Tackling this type of behaviour is important. We recognise that illegal street vendors may be more common within highly populated cities and that is why we are giving PCSOs in London the power to issue a fixed penalty notice to illegal street vendors. This is in line with existing local authority powers. Giving PCSOs the power to confirm the identity of house-to-house collectors will support their role in providing community reassurance and tackling nuisance behaviour.
Finally, we will be aligning the powers of PCSOs to seize and retain material during premises searches with those of police officers. PCSOs already play an important role in supporting police officers to execute search warrants but their authority to seize material is limited. Granting PCSOs this power will free up police time by enabling PCSOs to operate more independently of police officers when carrying out this function.
We know that the public value the presence of PCSOs within the community and we have been clear that engagement is at the heart of their role. This should continue to be their core function. We believe that a distinction between the role of a constable and a PCSO should remain and that is why we have taken time to fully consider the implications of conferring the powers contained within this proposal. We are confident that they will enhance, not dilute the community engagement role of PCSOs and I commend the amendments to the Committee. I beg to move.
Lord Rosser (Lab)
I should like to raise one or two questions about this proposal. As the Minister has said, the role that we currently associate with police community support officers is one of public reassurance through visible street patrols and, as again the noble Lord said, through community engagement, including engaging residents more actively in local policing. Indeed, in my own personal experience, on one occasion two police community support officers knocked on my front door—fortunately they were not there to take me away—to ask me what issues, if any, were causing me concern in my own particular locality. Presumably they were doing a survey of residents’ opinions about issues of concern to them. What we now have is a list of additional powers for police community support officers to issue mainly fixed penalty notices. It could therefore be argued that these powers will put police community support officers potentially into a more confrontational position with members of the public than perhaps we normally associate with their role at present.
As I understand it, under the original terms of this Bill it had not been the Government’s intention to make considerable additions to the powers of police community support officers. Indeed, in the letter that the noble Lord, Lord Taylor of Holbeach, kindly sent to us setting out the Government’s intentions in this amendment, he referred, as has the noble Lord, Lord Ahmad of Wimbledon, to Stephen Barclay’s amendment in the other place that led to the Government tabling a new clause, which I think is Clause 135, conferring powers on police community support officers to issue fixed penalty notices for cycling without lights. As a result of that, something led the Government to say, “Let’s have a further look at what additional powers we can give to police community support officers”. We now have before us a much greater list. The original Stephen Barclay amendment was one additional power, but now we have a long list of additional powers not just affecting cyclists and not just in connection with traffic-related powers; they go further than that. One could make a case for saying that this is beginning to change the role of PCSOs.
We are not standing here opposing this, but my question is this: what led the Government to believe that the extension of powers now being proposed—in Committee stage here, the Bill having been through the other place—is appropriate when they did not believe it to be so at the time it was drawn up and when, bearing in mind the title of the Bill, we can presume that virtually all issues related to policing and the powers of the police were in fact under review and up for consideration? I would be grateful for an explanation of why this has been brought forward at this stage, but was not considered appropriate when the Bill was being drawn up. I understand that these further powers are the Government’s own view of what they want to do and are not, subject to what the noble Lord, Lord Ahmad, may say to me in response, due to any particular pressure from someone. I can see why the Stephen Barclay amendment was made. He raised and then pursued it, and obviously Government Ministers said that they would accept it and take action.
Since it appears that these additional powers have been put forward at a pretty late stage, and therefore presumably over a short timescale, who has actually been consulted on this proposed extension? Has there been wide consultation with those who might have an interest in this change of approach? Have the police themselves been pressing for this extension for some time but to no avail, and now they find that, metaphorically speaking, they have hit the jackpot, because what they have been pressing for has now been agreed at a rather late stage in the proceedings?
I am putting these points as questions for the Minister and my final question is this. Since the Government have clearly now had a look at what additional powers it would be appropriate to give police community support officers, powers that begin to change the nature of the job—the operative word is “begin”—without taking away their former functions, are the Government now going to carry out a full review of the role and responsibilities of PCSOs? I ask this because what is now in front of us gives the impression, again subject to what the noble Lord, Lord Ahmad, may say in reply, of something that has been drawn up in quite a short time and is being put forward in the Bill now when it had not been the Government’s intention to do so not very many months ago when the Bill originally arrived in the House of Commons and throughout its passage through that place.
Lord Paddick (LD)
My Lords, I should like to say a few words arising from my policing background and experience. I support to some extent the noble Lord, Lord Rosser, in what he said, at least initially. Police community support officers, if they have a useful role, are seen by the police as a bridge between police officers and the community. Part of the reason they are able to perform that role is that they have very limited powers when it comes to enforcement. They can be seen as friends of the community and not necessarily come into conflict with it. As we know from what happened with traffic wardens when they were introduced, they in fact became the enemies of motorists. We certainly would not want to erode the useful role that police community support officers play in terms of being friends of the community and a bridge between the community and what it increasingly sees as enforcement officers; that is, police officers.
The second issue is the need to keep a very clear distinction between police officers and police community support officers. The recruitment standards and the training that police officers receive are far higher than is the case for police community support officers, particularly in the training of police officers in the use of discretion. If we are asking police community support officers to use their discretion as to whether they issue fixed penalty notices to erring motorists or cyclists, considerably more training needs to be given to them on the circumstances in which they should use that discretion. As I say, there is a clear danger that the distinction between the police and police community support officers will be eroded if slowly but surely we give police community support officers more and more powers.
Thirdly, there is already confusion in the minds of the public as to what police community support officers can and cannot do. When police community support officers arrive at the scene of an incident, the public look to them to act as police officers would, and are surprised to find that they do not have the powers or the ability to intervene in a way that the public expect of them. Gradually giving police community support officers more powers will add to that confusion among the public.
Lord Ahmad of Wimbledon
My Lords, perhaps I may say first that when those PCSOs arrived at the door of the noble Lord, Lord Rosser, I am glad that they did not take him away. We would have been without his expertise and input in this Bill, so we are grateful for that. Equally, he made an important point in mentioning it. I come back to a point I made earlier: PCSOs are distinct from police officers, and I think I made that clear in my comments. What they do in terms of reassurance is something that the police themselves do. Again, speaking from my experience of working with neighbourhood teams when I was a local councillor, the police also did similar reassurance exercises.
I turn now to the specific questions that have been put to me. The noble Lord, Lord Rosser, asked why we are proposing this now. Of course, we are responding in line with the scrutiny of the Bill in the Commons. My honourable friend Stephen Barclay raised the issue, but it did go wider and beyond the specifics of his amendments. This is not something that the Government have only just thought about. I referred in my earlier comments to a Labour police and crime commissioner, Paddy Tipping, who wants us to go further. We have consulted on this and we have looked at the position with relevant experts in the field to understand the implications of the change. We have included discussions with the police at both the operational and the strategic level, the College of Policing, the partnership agencies and, indeed, national police leaders. As I said in my earlier remarks, this is about enhancing the powers of PCSOs and not about taking away from their engagement. We believe it is right that the engagement role performed by PCSOs is vital in making police accessible to all, and we do not want to overburden them with enforcement powers that would detract from that. That is why we have taken a considered position on these new packages.
The noble Lord, Lord Rosser, also asked whether we will consider more powers. These changes will mean a significant increase in the number of powers available for designation to PCSOs. That is an important distinction: this is not something that is carte blanche; it is right that the chief officers should have the freedom to take account of local circumstances and priorities when determining how their PCSOs are deployed. That will be the case in these additional powers that are being proposed. That is why we have taken the time to consider and, while we will be exploring a wider role for PCSOs, the Government believe that their particular role is being enhanced.
I hope that I have covered the specific questions asked by the noble Lord, Lord Rosser.
Lord Ahmad of Wimbledon
There was not a general consultation with all local authorities but, in our consideration, as I have said, we talked to partnership agencies and national police leagues; that, of course, in some respects includes local authorities’ opinions. This is not trying to take away from local authorities: anyone who has worked at local government level knows that local authorities, the police et cetera all work in partnership in ensuring that we get the maximum level of reassurance.
I turn briefly to the points raised by my noble friend, who speaks with great expertise in this area. I would not in any sense seek to challenge that. I believe that the vital distinction remains between police officers and PCSOs. We are merely seeking to enhance the functions of PCSOs to allow them to engage more effectively in the community and to address the very issues he has raised about their effectiveness when they arrive at a particular point. Our proposals are a proportionate response to what is needed. It will help in community engagement and effective enforcement in respect of some of the lower-level issues that are raised. Neighbourhood policing will be in a better place for that. I beg to move.
Lord Taylor of Holbeach
“Powers of community support officers
Schedule (Powers of community support officers) (which amends Part 1 of Schedule 4 to the Police Reform Act 2002) has effect.”
Lord Rosser
“Long-term police authorisation requiring independent approval
(1) The Regulation of Investigatory Powers Act 2000 is amended as follows.
(2) After section 32A (authorisations requiring judicial approval) insert—
“32AA Long-term police authorisations requiring independent approval
(1) This section applies where a relevant person has granted a long-term authorisation under section 29.
(2) The authorisation is not to take effect until such time (if any) as the relevant independent body has made an order approving the grant of the authorisation.
(3) The relevant independent body may give approval under this section to the granting of an authorisation under section 29 if, and only if, the relevant independent body is satisfied that—
(a) at the time of the grant—(i) there were reasonable grounds for believing that the requirements of section 29(2), and any requirements imposed by virtue of section 29(7)(b) are satisfied in relation to that authorisation, and(ii) the relevant conditions were satisfied in relation to that authorisation, and(b) at the time when the relevant independent body is considering the matter, there remain reasonable grounds for believing that the requirements of section 29(2), and any requirements imposed by virtue of section 29(7)(b) are satisfied in relation to that authorisation. (4) For the purposes of subsection (3), the relevant conditions in relation to a grant by an individual holding an office, rank or position in a relevant law enforcement agency, that—
(a) the individual was a designated person for the purposes of section 29,(b) the grant of an authorisation was not in breach of any prohibition imposed by virtue of section 29(7)(a) or any restriction imposed by virtue of section 30(3), and(c) any other conditions that may be provided for by the Secretary of State were satisfied.(5) In this section—
“relevant law enforcement authority” means—
(a) a police force in the United Kingdom, and(b) the National Crime Agency;“relevant judicial authority” means—
(a) in relation to England and Wales, the High Court of Justice in England and Wales,(b) in relation to Scotland, the Court of Session, and(c) in relation to Northern Ireland, the High Court of Justice in Northern Ireland;“relevant person” means—
(a) an individual holding an office, rank or position in a police force in the United Kingdom, and(b) an individual holding an office, rank or position in the National Crime Agency.(6) In this section—
“relevant independent body” must be set out by the Home Secretary in a motion passed by both Houses of Parliament before this section is enacted;
“long-term” must be set out by the Home Secretary in a motion passed by both Houses of Parliament before this section is enacted.””
Lord Rosser
We indicated at Second Reading that we intended to propose a new clause on this issue since it was clear that action had to be taken to address how covert policing operations were authorised and managed. Of course, we support undercover policing, since such operations are a vital part of the fight against organised crime and terrorism and are essential in keeping communities safe. We recognise the dedication and bravery of those officers who undertake this work. However, any such operations must be subject to the highest ethical and operational standards. That is essential for both their operational effectiveness and public confidence. Our amendment today, therefore, seeks to deal with the issue of accountability.
There are two cases that highlight how important it is that changes of the kind that we are proposing are made. The first is the case of Mark Kennedy who, as a police officer, infiltrated—I think that is the word—protest groups over a period of years: groups which said that they were involved in lawful demonstrations, rather than crime. The former policeman, it appears, had relationships with women in the protest movement and travelled to eco-protests across Europe. He later told a Channel 4 documentary of his remorse, including his regrets about and feelings for a woman with whom he had had a long affair. HMIC reviewed the activities of Mark Kennedy and other undercover officers and stated that his actions had led to the collapse of a trial of environmental protesters and that he had “defied” management instructions. The report found that Mr Kennedy had helped to unearth “serious criminality”. However, Mr Kennedy said that, while the subject had never been broached directly, it was “impossible” that his superiors had not known he was having a sexual relationship with some protesters. The report suggested that an independent body might be required to authorise such undercover operations. It also said that Mr Kennedy was inadequately supervised and that oversight of undercover officers needed to be strengthened.
The second case is that of the Lawrence family. Twenty years ago, Stephen Lawrence was murdered at the age of 18. He was, of course, the son of Neville and Doreen, who is now my noble friend Lady Lawrence of Clarendon, a Member of your Lordships’ House. Stephen was cruelly murdered by racists and there was evidence of racism in the way the police inquiry was conducted. Serious allegations have now been made that the police spied on the Lawrence family with a view to discrediting them. Peter Francis, a former undercover police officer and a member of the somewhat controversial Special Demonstration Squad, has spoken of his activities as part of an operation to spy on and attempt to smear the Lawrence family.
These two cases and other incidents have led to serious concerns about the accountability of the undercover police operations that were undertaken and raised questions about the accountability of future undercover police operations. Our amendment seeks to ensure that all long-term undercover operations are signed off by a relevant independent body, to ensure that, where needed, covert operations are used proportionately, sensitively, only when necessary and with clear and improved accountability arrangements. Additionally, we do not currently have effective oversight of these operations. There are various options we can explore and we hope that the Government will look at these options carefully. Judicial oversight is just one that could be considered.
There also appears to be an anomaly, because currently, if the police or security services want to enter—perhaps to break in, to bug a room or to intercept a phone call—they need justification that to do so is in the interests of national security in order to get a warrant. Attaining a warrant requires judicial approval. However, those undercover police officers who entered into relationships in an attempt to retrieve certain information needed no warrant.
Of course—and we appreciate this—undercover operations vary. Some will be as short as an hour or so and may involve relatively minor matters; it would be impractical to ask for independent approval for all such operations. However, our proposed new clause is intended to target long-term covert police operations, and these can span from six months to 12 months or even several years. When such operations are undertaken, there needs to be clarity about the goals, the methods and the priorities. Therefore, there should be independent approval prior to any such lengthy operation. It does not necessarily have to come from a judge, but it must be truly independent, and the very process of seeking such approval would help to ensure proportionality, and clarity of objectives and methods. Our proposed new clause would help to ensure that operations such as the hugely inappropriate and totally wrong campaign against the Lawrence family cannot take place again. That campaign and operation against the Lawrence family showed appallingly bad judgment. Surely, we all want to ensure that any operation undertaken is accountable, justifiable and in the wider public interest.
On Report in the other place, the Minister Damian Green stated that it was the Government’s,
“intention to legislate to enhance oversight of undercover law enforcement officer deployments”,
and this could,
“be done through secondary legislation”.
He outlined the Government’s proposals to increase accountability and oversight. However, proper scrutiny is necessary and we need the opportunity to scrutinise those proposals as part of this Bill. Damian Green promised in the House of Commons that he would,
“lay the appropriate order before the House shortly”.—[Official Report, Commons, 15/10/13; col. 634]
As I understand it, we have not yet seen the order, although I may be wrong in saying that. However, we feel that it would be much better to deal with an issue of this importance in what the Government regard as a flagship Bill on crime and policing. I hope the Minister, when he replies, will be able to give a helpful response.
Lord Taylor of Holbeach
My Lords, I am very grateful to the noble Lord, Lord Rosser, for tabling this amendment because I agree with him that the whole question of undercover policing is very important. I do not think that any noble Lord should be in doubt that covert techniques, including undercover policing, are an important weapon in the fight against terrorism and other serious and organised crime. Undercover police officers play a crucial role in keeping us all safe. It is difficult and dangerous work and I welcome this opportunity to pay tribute to all who undertake it.
The new clause proposed by the noble Lord seeks to introduce a system of independent authorisation for undercover policing operations. I do not believe there is any great difference of view between the noble Lord and me on this point. We both believe that there must be proper safeguards to ensure that these covert techniques are used only where appropriate and that the mechanisms for approving all such deployments are fit for purpose. However, I hope that it will help noble Lords if I set out why I do not believe that this amendment is required, not least because the Government have already instigated changes that are designed to meet the concerns that have arisen in the light of some allegations of past misconduct, which were sympathetically described by the noble Lord, Lord Rosser.
Undercover deployments are authorised under the Regulation of Investigatory Powers Act 2000, commonly known as RIPA, which stipulates that the use of an undercover deployment can be authorised only at a senior level within the police force or other law enforcement agency concerned. In giving an authorisation, the authorising officer must balance the seriousness of the crime being investigated, and the value of the evidence likely to be gathered, against the right to privacy of the person under investigation and of those others who are likely to have their privacy intruded upon, such as family, friends and other associates.
Her Majesty’s Inspectorate of Constabulary conducted a rigorous and independent review of undercover policing last year and made a number of recommendations to improve the way authorisations and deployments are made. Earlier this year, the inspectorate reported on the progress made in implementing its 2012 report and was generally positive about the work already done. The noble Lord referred to the role played by my ministerial colleague, the Minister for Policing, Criminal Justice and Victims, the right honourable Damian Green, who announced to the Home Affairs Select Committee our intention to strengthen this regime to enhance oversight of undercover law enforcement officer deployments. I am pleased to say that the order to give effect to this commitment was laid in October and is due to take effect on 1 January next year.
I will set out the effect of the changes that the Government are bringing forward. First, law enforcement agencies will need to notify the surveillance commissioners —all retired judges—of undercover deployments. In practice, what will happen is that a surveillance commissioner will see the same papers that were presented to the authorising officer and will have the opportunity to raise any concerns. Noble Lords will appreciate that most deployments are short-term in nature and, in many cases, last no more than a few hours. However, some are long-term, and these may give rise to the greatest concern. Initial authorisations last for a maximum of 12 months. Accordingly, the second change we are putting in place is that an authorisation can be renewed beyond 12 months only with the prior approval of a surveillance commissioner—who, I remind your Lordships, is someone who has held a senior judicial office.
In addition, we are increasing the rank of the authorising officer. Deployments of undercover law enforcement officers will henceforth need to be authorised at assistant chief constable level or equivalent. Any deployments lasting longer than 12 months will be authorised by a chief constable or equivalent, as well as by a surveillance commissioner, as I have already explained. The seniority of those who will now be required to authorise these deployments is an indication of how seriously the Government take proper oversight of undercover law enforcement activity. We believe that these changes will promote the highest standards of professionalism and excellence in this most sensitive area of policing. We also believe that they will achieve the aims of this proposed new clause by ensuring judicial scrutiny of long-term deployments while preserving the flexibility of law enforcement agencies to act swiftly where necessary.
Covert activity is a necessary part of the armoury of law enforcement but it is absolutely right, as is the intention behind this amendment, that it must be properly controlled and regulated. That is why the Government are making the changes that I have described. In the light of these changes and the new regime that we are now putting in place, I do not believe that this amendment is required and I hope the noble Lord will withdraw it.
Lord Rosser
I shall of course withdraw the amendment but, before I do, I have one question for the noble Lord. Does the proposal that is to be implemented in relation to the role of the surveillance commissioners also include, for particularly lengthy covert operations lasting many months, any sort of regular oversight of the operation by the surveillance commissioners, or is it a case of getting their approval beforehand and, once that prior approval has been given, that is the end of the independent oversight?
Lord Taylor of Holbeach
The prior approval is of course designed to make sure that there is no extension without the surveillance commissioner being a party to the decision. I cannot give the noble Lord a clear answer on this but I would suspect that the surveillance commissioner could make his approval dependent on an update at some point during the extended 12-month period. I will write to the noble Lord and give him some indication of how this would operate. I understand entirely what he is getting at and am quite happy to investigate and provide that to him.
Lord Rosser
I thank the noble Lord for his reply and for his offer to write to me on the issue that I have just raised. I will obviously want to reflect on the reply that we have received but I beg leave to withdraw the amendment.
Lord Hodgson of Astley Abbotts (Con)
My Lords, in moving Amendment 65, I will speak at the same time to Amendments 66 to 75. With this group, we come to Part 12 of the Bill, which is concerned with extradition. As this is the first time I have spoken at this stage of the Bill, I need to remind the Committee of my interest as a trustee of Fair Trials International. I am very grateful to that organisation for many of the real-life examples that underlie the amendments that I shall move to this part of the Bill in the next hour or so. I also acknowledge the help that I have had from Justice and several other interested parties.
Lord Faulks
My Lords, I will add just a few comments to the excellent and clear introduction of these amendments by my noble friend Lord Hodgson. He stressed the importance of the matter being trial-ready before extradition takes place, and quite rightly drew a distinction between the adversarial system, which prevails here, and systems elsewhere of a more inquisitorial nature.
Of course, if somebody is awaiting trial here, the question of bail becomes highly relevant before a judge. Indeed, a judge will be able to exercise some pressure on prosecuting authorities to get on with it, in order to ensure that somebody is not kept in custody for too long. That becomes impossible once somebody has been extradited. The matter is then in the control of the local court, and there may be just the sort of delay described by my noble friend in the case of Symeou; not only was he in Greece for a very long time but when he was granted bail it was so-called local bail, which is not the same as being granted bail in your own country, because of all the compromises that have to be made in terms of work and family life.
As my noble friend acknowledged, the Government have responded to the Baker review but there is still anxiety, as he has so skilfully pointed out.
Lord Taylor of Holbeach
My Lords, I am grateful to my noble friend Lord Hodgson for giving us a chance to debate these issues. He has tabled a number of amendments—some in this group and some to follow—and it was good that he was able to put the different groups in context of the overall value of the European arrest warrant. The Government attach great value to this facility but are seeking to improve its operation by provisions in the Bill.
As the Committee will be aware, the Home Secretary announced in July that she would introduce legislation to reform the operation of the European arrest warrant in the UK and increase the protections offered to those wanted for extradition, particularly British citizens. My noble friend has drawn attention to circumstances in which the system did not operate as we would have wished. His amendments would revise the resulting provisions in the Bill.
Clause 137 will require the UK courts to bar surrender of the requested person where the issuing state has not taken both a decision to charge and a decision to try the person, except where the sole reason that such decisions have not been taken is that the person’s presence in the country is required in order for those decisions to be taken. This will have the same effect as that intended by my noble friend’s Amendments 65 to 67, 69 and 70 and 73 to 75; that is, a person will not be surrendered before the issuing state is ready to try the person. However, the clause has the added benefit of requiring the issuing state to prove that both a decision to charge and a decision to try the person have been made, if the judge has any doubt that either—or both—of those decisions has been taken. This provides greater protection for the requested person.
I can also reassure noble Lords that when deciding whether there are reasonable grounds for believing that the issuing state has not taken these decisions, the judge can consider any factors or external evidence that could inform his or her decision. We do not believe it is necessary to set this out in explicit terms, as Amendment 72 would.
Finally, Amendments 68 and 71 seek to add a further restriction, so that extradition could not occur where the person’s presence was required in the issuing state for the required decisions to be made, if that could have been achieved by temporary transfer or video-conferencing. I understand my noble friend’s concern about the need for safeguards. However, I do not believe that this additional restriction is necessary. As I have explained, Clause 137 already ensures that extradition cannot occur in the early stages of an investigation when the issuing state is nowhere near a decision to try.
In addition, if the judge is satisfied that the sole reason that a decision to charge and a decision to try have not been taken is the fact that the person is absent from the issuing state, there is no reason why the person should not be extradited so that those decisions can be taken and the case proceed to trial. In these circumstances, requiring temporary transfer simply to charge does not seem to us to achieve anything in terms of safeguards and seems unnecessary.
Having heard these explanations and assurances and the explanation of how Clause 137 is designed to meet my noble friend’s concerns, I hope he will be able to withdraw his amendment.
Lord Hodgson of Astley Abbotts
I am grateful to my noble friend for that full and very considered response. We are, of course, going around the track for the first time today and I have some difficulty understanding the conflation of prosecution charge and try and the interpretation of Clause 137 in which I think he said—I hope I have quoted him right—that the judge can consider any external factor. Certainly the advice I have received is that that is far from the case, that the judge’s hands remain very carefully circumscribed and tied and that the judge would not have the width and breadth of discretion that my noble friend’s remarks suggested. It would be helpful if one could read in some detail what he had to say, as it is obviously highly complicated and technical, and then see whether expert external advice believes that the extraordinarily plausible answer he gave actually holds up when we come to discuss it further. I beg leave to withdraw.
Lord Hodgson of Astley Abbotts
My Lords, I will speak also to Amendment 78. These amendments expand the issues a judge can consider in testing the proportionality of a European arrest warrant. Amendment 76 deletes the words,
“but the judge must not take any other matters into account”.
Amendment 78 extends judicial discretion as regards proportionality by a list of factors, including the cost of extradition, the consequences of extradition for the suspect and the public interest aspect.
Under the Bill, the judge must have regard to the specified matters relating to proportionality so far as he or she thinks it appropriate to do so, but must not take other matters into account. Thus, the judge is limited to the three specified matters but has discretion to ignore them. As a starting point, I would like the Government to justify why a judge should be able to ignore factors that will always be germane to the issue of proportionality. If an offence is serious, extradition is more likely to be proportionate but that does not mean that the proportionality test has no place in serious crimes. Amendment 76 therefore removes the discretion to ignore relevant factors.
Under the proposed test, the judge can take into account just three factors but it is unclear how they are supposed to relate to each other. In any case, the current list of specified matters does not allow a useful proportionality analysis. As drafted, the judge would be able to take into account the seriousness of the offence and the anticipated sentence, but since regard cannot be had to any other matter, the judge cannot balance these against the relevant considerations. For example, it is difficult to see how the judge can decide whether a less serious offence would make extradition disproportionate if the judge cannot also take into account the implication of extradition in terms of the human impact or, indeed, the costs for the UK taxpayer. The financial costs of extradition are high. The Government estimate that the execution of each EAW costs on average £20,000. In addition, the human impact of extradition can extremely severe. Recent cases under Article 8 of the ECHR have shown that the extradition of single parents can drastically disrupt the development of their children. There was the judgment of Lady Hale in HH v Deputy Prosecutor of the Italian Republic in 2012.
Recognising the need for proportionality checks on the operation of the EAW, the European Commission recognised that the issue was with,
“very minor offences which do not justify the measures and cooperation which execution of an EAW involves”,
and that there is a,
“disproportionate effect on the liberty and freedom of requested persons”,
when the EAW is used in such cases.
The point of a proportionality test should be to determine whether, on a case-by-case basis, the human and material costs are justified. Indeed, the Council of the European Union’s handbook on how to issue an EAW is 125 pages long and explains that,
“considering the severe consequences of the execution of an EAW with regard to restrictions on physical freedom and the free movement of the requested person, the competent authorities should, before deciding to issue a warrant consider proportionality by assessing a number of important factors. In particular these will include an assessment of the seriousness of the offence, the possibility of the suspect being detained, and the likely penalty imposed if the person sought is found guilty of the alleged offence”.
The Bill excludes a balancing exercise that takes into account all these relevant factors.
These amendments therefore provide the judge with sufficient discretion to consider these key factors and others, including the passage of time, since prolonged delays in prosecuting an offence and issuing an EAW may provide evidence of its very low level of seriousness, and the public interest in extradition, since this will vary in line with the seriousness of the offence. Other factors might include, for instance, the person’s conduct, in particular, whether they absconded in order to evade prosecution or left the issuing state unaware that they were being pursued.
I recognise that this will call for a case-by-case test and a fact-sensitive assessment. However, this need not affect the length or complexity of EAW proceedings. An issue raised in relation to human impact would in any event have to be considered under Article 8 of the ECHR. Under the operation envisaged by these amendments, the factors considered under Article 8 of the ECHR will be considered as part of the statutory proportionality test but alongside the cost of extradition to the United Kingdom and having greater regard to the seriousness of the extradition offence. Indeed, under the Government’s proposal, it can be argued that there will often have to be two separate proportionality analyses—one under the statutory test, excluding anything to do with family life, and another under Article 8 of the ECHR, potentially resulting in confusion and complication. Unifying the two tests, as would be achieved by these amendments, would, if anything, simplifying proceedings. I beg to move.
Lord Faulks
My Lords, Clause 138, “Proportionality”, will not be an easy one for a judge to interpret, as my noble friend has outlined. The question of proportionality under the Human Rights Act 1998 is one matter and then there is the statutory proportionality, which apparently is to be restricted to certain specific matters mentioned in subsections (2) and (3) of the new Section 21A that Clause 138 inserts into the Extradition Act 2003. I respectfully ask the Minister to explain why it is so necessary to distinguish between the two types of proportionality. Proportionality is a fundamental principle in EU law and, in particular, under the Human Rights Act. I suggest there is scope for confusion and therefore possible litigation if a judge misdirects himself or herself in applying proportionality in one sense and not in another.
Lord Taylor of Holbeach
My Lords, as my noble friend Lord Faulks has just said, Clause 138 is dedicated to addressing this issue and bringing the fundamental concept of proportionality into extradition matters. Much of what my noble friend Lord Hodgson of Astley Abbots proposes has already been included within the Extradition Act 2003, as it will be amended by the Bill.
It is important to recognise that the judge will consider proportionality in addition to the existing bars to extradition, such as the passage of time and human rights considerations, including any impact on family and private life. Consequently, new paragraphs (d) and (e) as provided for in Amendment 78, which seek to merge these existing considerations into the proportionality bar, are unnecessary and would have little practical impact.
Turning to the proposed new paragraphs (f) and (g), which relate to the cost of proceedings in the UK and the duration and cost of proceedings in the issuing state, I do not believe that those considerations are relevant. The proportionality bar is designed to provide additional protection to those whose extradition is sought. It is appropriate that the matters concerned should relate to the alleged crime and the potential impact on the person concerned. Of course, costs are an issue for us all, and that is why the totality of our proposals is designed to improve the workings of the Extradition Act, including reducing unnecessary delays. However, costs to the UK arising from the extradition process should not mean a denial of justice where it is right that a person is extradited. On new paragraph (g), the costs and the duration of proceedings in the issuing state are a matter for the issuing state.
New paragraph (h) would require a consideration of the public interest. That is implicit in any consideration of extradition by the courts, which look at a range of factors alongside the proportionality bar. Taken together, the statutory bars to extradition provide a broad public interest test, so it is not necessary to include a separate test here in the Bill.
Finally, new paragraph (i), which refers to other matters that the judge believes relevant, is too open-ended and leaves too many issues that could be considered. It could lead to duplication and potential delay as a result of proportionality considerations overlapping with other considerations. My noble friend Lord Faulks talked about the complexity of these issues and the opportunity that he believed the provisions give for judicial consideration, deliberation and challenges. I think that the proposals in the amendment would complicate the matter further. I must emphasise that the proportionality bar is one among a number which must be considered already, not least whether extradition would be compatible with the requested person’s human rights.
Let me assure my noble friend that, in addition to the provisions in Clause 138, we will also take a more pragmatic approach to our administrative processes when an EAW is received. This will ensure that the most trivial requests are identified and, where appropriate, dealt with administratively before even getting to the courts. The aim will be to work practically with other member states to identify alternative solutions for trivial requests.
My noble friend Lord Faulks asked: why not merge proportionality and human rights? The proportionality bar deals specifically with the proportionality of extradition as a way to deal with the conduct alleged. Proportionality is indeed a factor when considering interferences with various rights under the ECHR, but it is considered when examining the specific rights one at a time. Our bar adds to that, but deals with the wider issue of human rights within the EAW.
I hope that both my noble friends are happy with the reassurances that I have given them and that my noble friend Lord Hodgson of Astley Abbots will be content to withdraw his amendment.
Lord Hodgson of Astley Abbotts
I am grateful to my noble friend. He rightly chided me about the list of matters in Amendment 78 and the wide-ranging nature of my proposed new paragraph (i), which would insert the text,
“any other matter which the judge considers relevant”.
Although I entirely accept that, I do not understand why three matters are chosen in subsection (3) and why a judge must not take any other matters into account. That seems to me to be erring on the other side of the argument. I hope that he will forgive me if I say that, when I hear Ministers say, “We should be pragmatic about this”, it does not reassure me, because in this area, where we are dealing with people’s liberty and livelihoods, pragmatism can go awry.
Lord Taylor of Holbeach
I understand the complexity of the issues that my noble friend is attempting to address in the amendments. If he feels it helpful for me to write a fuller explanation than I am able to give the Committee today, I would be very happy to do so. It may be easier if I do that; I hope that my noble friend will accept that.
Lord Hodgson of Astley Abbotts
Of course I would be delighted to receive a letter from my noble friend. That would also enable me to reflect fully on what has been said, take expert advice on the technical matters which we are discussing this evening and decide whether to take the matter further. In the mean time, I beg leave to withdraw the amendment.
Lord Hodgson of Astley Abbotts
My Lords, in moving Amendment 77, I shall also speak to Amendments 79, 80, 81 and 87. This set of amendments keeps us in the area we have just been talking about: one of the three specified matters. The amendments emphasise the importance of less coercive, less disruptive measures than a full European arrest warrant. Where a state issuing an EAW refuses to use them, the judge could take that refusal into account before granting an EAW.
New subsection (3)(c), which sets out the third of the three matters we have just been discussing, currently reads,
“the possibility of the relevant foreign authorities taking measures that would be less coercive”.
Amendment 77 replaces “possibility of”—a pretty low test, in my view—with “availability of”. Amendments 80 and 81 are essentially consequential.
The assumption underlying the provision relating to less coercive measures is that the severely restrictive measure of extradition, involving deprivation of liberty and the physical transport of a person away from home and family, should be used only as a last resort. The issuing state should therefore use that mechanism only when other, less restrictive measures are unavailable. If other such measures are available—for instance, because of the existence of mutual legal assistance mechanisms or, once it is negotiated, the European investigation order—extradition should be refused if they have not been used. The reference to the possibility of using such alternative measures may result in an issuing state avoiding their use due to a lack of resources and/or bureaucratic difficulties in liaison between the competent authorities of the issuing state and the judicial authority that issued the EAW.
I argue that, although the EAW system provides for extradition between judicial authorities, the physical transfer of a person under an EAW is still a process between two EU member states which are, as a whole, bound to observe the principle of proportionality. All their authorities, such as ministries of justice or the interior—where these are responsible for mutual legal assistance requests—should, therefore, be jointly expected to search for alternative solutions before choosing the heavy-handed option of extradition. Accordingly, if an alternative is available, under bilateral or multilateral arrangements between member states, this should be used before the EAW.
Amendment 79 would ensure that, if there are alternative mechanisms available to the issuing state, its failure to use them will always result in the refusal of the EAW, irrespective of the gravity of the offence or any other matter. The inclusion of the less coercive measures test appears to rest on the assumption that the step of issuing an EAW—which involves deprivation of liberty and serious human impact—should be taken as a last resort. The responsibility is on the issuing state to use less coercive measures if these are available. In the handbook on how to issue an EAW, to which I referred, the section on proportionality encourages the authority considering an EAW to use alternatives, including mutual legal assistance, videoconferencing or a summons. The logic that less restrictive alternatives should be used before issuing an EAW applies regardless of the seriousness of the allegation in question. The amendment therefore ensures that extradition is always considered disproportionate if other measures are available.
The case of Andrew Symeou demonstrates the need for it to be made clear that alternatives should be used in preference to the EAW, irrespective of the offence at issue. The Greek police and prosecution authorities could have made use of mutual legal assistance; for instance by asking UK authorities to obtain evidence from the witnesses who had allegedly incriminated Andrew. These witnesses would have been able to explain that they had been subject to police brutality and did not stand by their earlier evidence, which had been taken under pressure and without the assistance of an interpreter. Instead, the Greek authorities opted to have an EAW issued, requiring Andrew’s extradition to Greece to face trial for allegations which might have been found to be without basis much earlier if MLA had been used. The English court should have been able to refuse Andrew’s extradition on the ground that alternative measures were available. I beg to move.
Lord Taylor of Holbeach
My Lords, as my noble friend explained, his amendments in this group seek to widen yet further the proportionality bar to extradition in Part 1 cases. As I have already indicated, Clause 138 will allow the UK courts to deal with the long-standing issue of proportionality, which, as I have already said, is a fundamental principle of EU law.
Amendments 77, 79, 80 and 81 would require a judge to consider whether the requesting state has less coercive measures available to it. If so, the judge must bar extradition on proportionality grounds. However, even where such measures may exist, they may not be appropriate in each case, depending on the nature of the crime and other factors such as relevant previous criminal history. It would not be right to require a judge to bar extradition wherever less coercive measures are available. I therefore prefer the existing subsection (3)(c) of the new section inserted by Clause 138—to which my noble friend drew attention—which addresses the issue more attractively than the choice of words proposed in the amendment. That said, the existence of alternatives is clearly a relevant factor, and that is why the clause specifies that this is one of the factors that the judge must take into account when considering proportionality.
Amendment 87 to Clause 140 is consequential on the amendments to Clause 138. It would require a judge to conclude that less coercive measures were available if a person had made a request for temporary transfer, as envisaged by Clause 140, but the issuing state had refused that request unreasonably. This would mean that the judge would have to bar extradition on proportionality grounds. This would require our courts to make an assessment of the rationale of a decision made by the authorities in another member state. Given this, we do not think it appropriate automatically to link a decision not to agree to a temporary transfer with the consideration of proportionality. The EAW framework decision is clear that temporary transfer must be agreed by mutual consent, and it is therefore open to the issuing state to refuse a request, including the UK where we are seeking someone’s extradition to the UK.
Lord Hodgson of Astley Abbotts
My Lords, I support my noble friend’s amendment. The point at issue is the extent to which we are determined to make the physical transfer of somebody the last resort. How easy is it for a state that cannot be bothered to take somebody, on an EAW, without taking all the measures necessary to ensure that the person’s life is interrupted as little as possible? I am not convinced that my noble friend has the balance right, but we need to read carefully the detail of his remarks. In the mean time, I beg leave to withdraw.
Lord Taylor of Holbeach
“( ) In section 2 of that Act (Part 1 warrant and certificate), after subsection (7) there is inserted—
“(7A) But in the case of a Part 1 warrant containing the statement referred to in subsection (3), the designated authority must not issue a certificate under this section if it is clear to the designated authority that a judge proceeding under section 21A would be required to order the person’s discharge on the basis that extradition would be disproportionate.
In deciding that question, the designated authority must apply any general guidance issued for the purposes of this subsection.(7B) Any guidance under subsection (7A) may be revised, withdrawn or replaced.
(7C) The function of issuing guidance under subsection (7A), or of revising, withdrawing or replacing any such guidance, is exercisable by the Lord Chief Justice of England and Wales with the concurrence of—
(a) the Lord Justice General of Scotland, and(b) the Lord Chief Justice of Northern Ireland.””
“Person unlawfully at large: human rights and proportionality
(1) For section 21 of the Extradition Act 2003 there is substituted—
“21 Person unlawfully at large: human rights proportionality
(1) If the judge is required to proceed under this section (by virtue of section 20), the judge must decide both of the following questions in respect of the extradition of the person (“D”)—
(a) whether the extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998; and(b) whether the extradition would be disproportionate.(2) In deciding whether the extradition would be disproportionate, the judge must take into account the specified matters relating to proportionality.
(3) These are the specified matters relating to proportionality—
(a) the seriousness of the conduct for which the requested person was convicted of the extradition offence;(b) whether the sentence which the person received in respect of the extradition offence was initially suspended;(c) the conduct of the requested person;(d) the passage of time since the person became unlawfully at large; and(e) any other matter which the judge considers to be relevant.(4) The judge must order D’s discharge if the judge makes one or both of these decisions—
(a) that the extradition would not be compatible with the Convention rights;(b) that the extradition would be disproportionate.(5) The judge must order D to be extradited to the category 1 territory in which the warrant was issued if the judge makes both of these decisions—
(a) that the extradition would be compatible with the Convention Rights;(b) that the extradition would not be disproportionate.(6) If the judge makes an order under subsection (5), he must remand the person in custody or on bail to wait for extradition to the category 1 territory.
(7) If the person is remanded in custody, the appropriate judge may later grant bail.”
(2) In deciding any question whether section 21 of the Extradition Act 2003 is compatible with European Union law, regard must be had, in particular, to Article 1(3) of the framework decision of the Council of the European Union made on 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA) (which provides that that decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union).”
Lord Hodgson of Astley Abbotts
My Lords, I now seek to move Amendment 82 and will speak to Amendment 93. The background to these amendments is the existence of two different types of European arrest warrant: a prosecution warrant where a person is to be prosecuted for a crime, and a conviction warrant where a person has been convicted and has fled to another country, knowingly or unknowingly. As drafted, the Bill provides for a proportionality check for prosecution warrants but not for conviction warrants. Amendment 82 seeks to remedy this by inserting the new clause shown. The amendment creates a proportionality check for EAWs to parallel the existing human rights bar in Section 21 which will, under the Bill, be relevant only to prosecution EAWs.
Fair Trials sees many cases where suspended prison sentences imposed in respect of minor offences have been reactivated, several years after the person left the category 1 territory, with an EAW then being issued on that basis. This leads to the drastic measure of extradition being used inappropriately in respect of minor offences. There is the case of Natalia Gorczowska, who was convicted of possession of 4 grams of amphetamines and given a 10-month suspended sentence. She left to begin a new life; several years later, with no apparent reason for the delay, the sentence was reactivated and, still later, an EAW was issued, leading to significant expense and very nearly to a drastic impact upon her young son’s life. The Committee might like to note that, had the same conduct been the subject of a prosecution EAW, it would probably have fallen to be considered as one of minor gravity and unlikely to attract a lengthy prison sentence in application of the specified matters relating to proportionality to be considered before granting a prosecution EAW but not in the case of considering a conviction warrant.
This rather lengthy amendment to Section 21 allows a proportionality analysis, including a broad range of factors tailored to conviction EAWs. Applying the proposed test, the judge would be able to take into account the person’s conduct and other circumstances when addressing proportionality—for instance, whether the person deliberately evaded onerous community obligations by leaving the country, or whether the sentence was reactivated systematically, long after the person left the country and without his or her knowledge.
Amendment 93 provides discretion to refuse a conviction warrant where the subject is a British national and will serve his or her sentence in a UK prison. The proposed amendment would allow the judge at the extradition hearing to refuse to surrender a person under a conviction EAW if that person is a British resident or national, and if it is possible for them to serve their sentence in the UK. It is worded in similar terms to Section 3(1) of the Repatriation of Prisoners Act 1984, which also provides for the issue of a warrant to authorise a person’s detention to serve or complete in the UK a sentence imposed by a foreign court.
Currently, UK courts have no discretion to refuse to extradite a British national or resident to serve a sentence in another country on the basis that it is more appropriate that he or she serves that sentence in the UK. This issue has been highlighted in a number of Fair Trials cases. Individuals have been extradited from the UK following conviction in another jurisdiction yet, following surrender, have been transferred back to the United Kingdom after the lengthy and bureaucratic prisoner transfer process. This is a waste of time and money. UK courts should be given the option of refusing extradition and allowing the defendant to stay in the UK to serve the sentence. Other member states including Belgium, Denmark, Italy and Poland have included this ground for refusal in their implementing legislation.
In the announcement that my noble friend referred to earlier, the Home Secretary stated:
“Where a UK national has been convicted and sentenced abroad, for example in their absence, and is now the subject of a European arrest warrant, we will ask”,
the issuing state’s,
“permission, for the warrant to be withdrawn, and will use the prisoner transfer arrangements instead”.—[Official Report, Commons, 9/7/13; col. 179.]
The flaw in this approach is the possibility that the issuing state will simply not grant permission.
This amendment establishes a legal basis for the judge to refuse extradition and order that the person serves the sentence in the UK. This possibility is provided for in the EAW framework decision, in which paragraph 6 of Article 4 provides that the executing judicial authority may refuse to execute the EAW,
“if the European arrest warrant has been issued for the purposes of execution of a custodial sentence or detention order, where the requested person is staying in, or is a national or a resident of the executing Member State and that State undertakes to execute the sentence or detention order in accordance with its domestic law”.
Given this clear legal basis to provide the judge with discretion to refuse extradition and allow the person to serve the sentence in the UK, it is disappointing that the Government have opted for a slightly different policy, which is not placed on a statutory footing.
The reference to UK nationals in the Home Secretary’s announcement suggests that this reluctance may be because the Government wish the policy to benefit only UK nationals and not non-national residents. It follows clearly from the case law of the Court of Justice that, if the UK implemented paragraph 6 of Article 4 of the EAW framework decision, which applies to both nationals and those staying in or resident of the executing member state, it would not be able to reserve the benefit of this provision to UK nationals only. The drafting in the Bill appears to be a way of avoiding that constraint. However, the policy discriminates in favour of UK nationals and could be the subject of legal challenge, irrespective of whether or not it is placed on a statutory footing.
The policy adopted in lieu of implementation of paragraph 6 of Article 4 of the EAW framework decision is also an ineffective protection. If the issuing state refuses to use the prisoner transfer arrangements, there is no recourse and the person has to be extradited in any event. As the Home Secretary said in her announcement, the proposed change,
“could have prevented the extraditions of Michael Binnington and Luke Atkinson”,
UK nationals who,
“were sent to Cyprus only to be returned to the UK six months later”.—[Official Report, Commons, 9/7/13; col. 179.]
to serve the rest of their sentences. However, this would have been dependent on the Cypriot authorities co-operating. Had Cyprus declined to use the prisoner transfer arrangements, the judge would not have had any legal ground on which to refuse extradition.
It would make more sense for the Government to put the policy on a statutory footing, providing proper protection for UK nationals and other residents whose social reintegration would be served by their serving their sentences in the UK, in line with the relevant provisions of the framework decision. These amendments allow the judge to identify residents on a discretionary basis; equally, Parliament could set reasonable statutory criteria. By example, I understand that Dutch law provides a five-year residence criterion, which has been considered lawful by the Court of Justice of the European Union. I beg to move.
Lord Ahmad of Wimbledon
My Lords, as my noble friend has said, Amendment 82 seeks to introduce a proportionality bar for post-conviction cases. As my noble friend Lord Taylor has said, Clause 138 will allow the UK courts to deal with the long-standing issue of proportionality, which is of course a fundamental principle of EU law in cases where a person is sought for prosecution. Under the EAW framework decision, an EAW can be issued in a post-conviction case only if a sentence of at least four months has been imposed. We believe that this is a sufficient proportionality safeguard in such cases.
Perhaps I might also reassure my noble friend that the courts will still consider any representations made that the extradition would breach a person’s human rights—I believe that he mentioned this in his comments. As now, a person would be extradited only if it was compatible with their rights under the European Convention on Human Rights. This includes and applies to those people who are wanted to serve a sentence.
I turn to my noble friend’s Amendment 93. I draw your Lordships’ attention to the terms of the Statement made in July by my right honourable friend the Home Secretary—again, my noble friend referred to this—about the reform of the operation of the EAW to enhance the safeguards available for British citizens wanted for extradition. In that Statement, the Home Secretary set out our commitment to make greater use of EU prisoner transfer arrangements. Where a UK national has been convicted and sentenced abroad, for example in their absence, and is now the subject of a European arrest warrant we will ask for permission for the warrant to be withdrawn and will use the prisoner transfer arrangements instead. My noble friend acknowledged that.
Whereas this policy is limited to UK nationals, Amendment 93, put forward by my noble friend, would broaden the scope of this safeguard beyond UK nationals to those who are resident in the UK, with the consequential impacts that would lead to, including those on the public purse. This Government’s policy is that foreign nationals should, wherever possible, serve their sentences in their home country. Therefore the scope in terms of broadening this beyond UK nationals is not something the Government subscribe to, based on the policy I have indicated. I hope, based on the explanations I have given which underlie the Government’s approach, that he will at this time seek to withdraw his amendment.
Lord Hodgson of Astley Abbotts
My Lords, I have just one question. As I understood my noble friend’s remarks, he said that we now have an effective proportionality test for conviction warrants. My advice is that we do not have that and that there is no chance of a proportionality test for that.
While he is reflecting, my other point is on the question of how we are going to be able to deal with situations where countries do not collaborate. I appreciate the point about non-national residents. I hope, however, the Government will consider following up examples like that of the Dutch. They have established cases where non-nationals would not qualify and therefore the issue which he very properly raises about the impact on public funds could be avoided.
Could he just confirm that there is a proportionality test for conviction warrants, because as I understand it there is not?
Lord Ahmad of Wimbledon
For clarification, I repeat that I said that under the EAW framework, an EAW can only be issued in a post-conviction case if a sentence of at least four months has been imposed. We believe that is the sufficient proportionality safeguard in such cases.
Lord Hodgson of Astley Abbotts
I will not try to absorb all that now; I will read about it in Hansard. In the mean time, I seek to withdraw the amendment.
Lord Hodgson of Astley Abbotts
My Lords, in moving Amendment 83, I shall speak also to Amendments 84 to 86. With these amendments I am seeking to address some of the weaknesses of the temporary transfer system. Amendments 83 and 84 seek to ensure that temporary transfers remain temporary. Amendment 83 would insert in proposed new Section 21B the words,
“a specific timeframe within which the person must be returned to the United Kingdom”,
and Amendment 84 would insert the words,
“within the period specified in the judge‘s order made under subsection (5)”.
They make a temporary transfer conditional on the issuing state providing assurance that the person will be returned within the time allotted for the transfer. The purpose of the temporary transfer system is to enable the issuing state to complete certain steps in the criminal case which we referred to earlier, such as charging the person, and to allow the person to return home, without seeking their extradition. However, in the Bill as drafted, there is no system for ensuring the return of the person.
The concern is that a person brought before a judge or court in the issuing state in the course of a temporary transfer could rapidly find themselves processed in accordance with the usual course of procedure and detained pending trial. I believe that it is therefore necessary to enable the judge to obtain specific assurances that the person will be returned within a fixed period by the judge. The amendment allows the judge to refuse to grant a temporary transfer in the absence of such assurances.
Amendments 85 and 86 permit the temporary transfer system to be used more than once. The Bill allows for the temporary transfer scheme to be used once only. I entirely accept that there is a need to ensure that the temporary transfer process is not used repeatedly to delay extradition, but I believe the current restriction to one use may be too blunt. If a new point comes to light later in the proceedings suggesting that further progress could be made by the requested person attending again, then, provided it is not an abuse of the system, the procedure should be available again. It must also be unfair to prevent a requested person using a temporary transfer just because they have previously agreed to a request, perhaps by the requesting state. There is an issue here of equality of arms. I beg to move.
Lord Ahmad of Wimbledon
My Lords, the provisions in Clause 140 will allow a person to speak with the authorities in the issuing state before any extradition takes place. The clause allows for the person’s temporary transfer to the issuing state and for the authorities in that state to speak with the person while he or she remains in the UK, for example, via videoconferencing. I understand my noble friend’s concerns that there should be safeguards, but I believe that there are sufficient safeguards already in place.
Both parties must consent to a temporary transfer—a temporary transfer is only possible where the person concerned agrees to it—and in doing so the issuing authority would be agreeing that the person would be returned to the UK. If the person was not returned, the issuing state would, of course, be in breach of that agreement and the clear terms of the European arrest warrant framework decision. Neither are we aware of any cases among our EU partners where such agreements have been disregarded.
Amendments 85 and 86 relate to the circumstances in which a person may make a request for temporary transfer or videoconferencing. I am grateful to my noble friend for bringing to the Committee’s attention the suggestion of allowing more than one request to be permitted by a UK judge.
In this particular case the Government are not persuaded that there are sufficiently compelling arguments for making such a change. Allowing more than one request could be used to delay the extradition process to no good end. We would expect the cases to which my noble friend refers to be very rare, and if such a situation did arise, the individual would still be able to approach the requesting authorities via their legal representatives to provide further information to consider in that case.
Noble Lords are aware, as my noble friend Lord Taylor has emphasised, of the importance we place on getting the balance right between ensuring efficient extradition processes and the protection of the requested person. We believe that this potential for unnecessary delay would outweigh any marginal benefits it may bring.
I therefore hope, with the explanation I have given, that my noble friend will be minded to withdraw his amendment.
Lord Hodgson of Astley Abbotts
I certainly will withdraw it. I am convinced about Amendments 83 and 84, but I cannot see how the ability to get a second temporary transfer is going to cost the Government anything. In fact, it would greatly improve the efficacy in the administration of justice. If I were an EAW subject, I would be very disappointed that because the requesting state had used the temporary transfer system up for its own purposes, I was not then able to use it for myself. It is a shame that we do not have even a measure of equality of arms, always providing for the fact that this should not be allowed to detain and block up the process. I beg leave to withdraw the amendment
Lord Hodgson of Astley Abbotts
In moving Amendment 88, I shall speak also to Amendments 88A and Amendments 89, 90, 91 and 92. Clause 141 is about appeals against EAWs. I note that the noble Baroness, Lady Smith of Basildon, and the noble Lord, Lord Rosser, have tabled a stand part debate to remove this clause. I look forward to hearing their remarks in support of that fairly blunt instrument. My amendments, by contrast, offer my noble friend the Minister a focused, surgical approach to this issue.
Amendments 88 and 90 remove the requirement for leave to appeal. We have spoken about how extradition has an enormous impact on suspects’ lives and those of their families. Given the problems that, for example, Fair Trials regularly sees arising at first-instance extradition hearings, there are concerns about any measure that limits access to appeal courts. The vast majority of those subject to extradition procedures—the “little platoons” that I referred to in my first group of amendments —cannot afford a lawyer and are therefore represented by a duty solicitor. Many duty solicitors have little experience of extradition cases and therefore may not be familiar with the complex conditions of the 2003 Act and associated case law. This can be contrasted with the position of the requesting state, which is automatically entitled to representation by a specialist unit of Crown Prosecution Service lawyers. The complexity of extradition cases also means that there is often inadequate time at a first-instance hearing for consideration of all the relevant facts and issues. If suspects lose their automatic right to appeal then, so long as these problems at first instance remain, there may be cases that result in people being wrongly extradited.
These problems are demonstrated by the recent case of Krzysztof Juszczak, who in February 2013 appealed successfully against extradition to Poland on the basis that his removal from the UK would constitute a disproportionate interference with his family life under Article 8 of the ECHR. Although Mr Juszczak is the primary carer for his severely disabled stepdaughter, this was not raised by the duty solicitor before the district judge, an omission that was criticised as a failure of duty by Mr Justice Collins in his appeal judgment. As this evidence was obtained late in the process, there is a clear danger that under the proposed system Mr Juszczak would have been denied leave to appeal.
I recognise the problems raised in the Sir Scott Baker review in relation to the large number of unmeritorious appeals in the extradition process, and understand the need for a process to ensure that appeals with merit are heard and disposed of more quickly. It must be in the interests of both defendants and the state that the appeal process works to correct genuine errors rather than to delay the judicial process. However, it is surely equally true, and vital, that suspects are given a full opportunity to get a case together and identify any valid grounds on which their extradition should be refused, and any appeal process should reflect that.
The Sir Scott Baker review recommended that any leave-to-appeal test should follow the standard required for judicial review—namely, that the defendant must show an arguable case in order to be allowed to appeal. The inclusion of any higher standard of proof would be inappropriate, not least because the requirement to demonstrate an arguable case, as is the case in the judicial review process, would suffice to weed out those cases with no merit. Leave should be sought on paper, with written reasons provided for the outcome. Defendants must then have a right of appeal against refusal to a judge at an oral hearing. Only the judge at first instance or the High Court judge who would hear the appeal should consider applications for leave to appeal. If all these safeguards were guaranteed, a requirement for leave to appeal might be acceptable.
There has been concern that the lack of information about how the Government’s proposed amendments will work in practice makes it far from clear that they satisfy the above recommendations of the Sir Scott Baker review, and people could still have their lives ruined by an unjust extradition. As this concern remains unanswered in the Bill as currently drafted, the argument regarding appeal remains flawed and liable to create unfairness and inequality of arms. It has also been pointed out that the Government’s proposed amendments did not affect the requesting state’s automatic right to appeal if an extradition request is refused, thus introducing a further inequality of arms into proceedings that are already heavily weighted in favour of requesting states, which have far greater resources than individuals and benefit from a strict “no questions asked” regime that gives courts very little power to refuse extradition.
The Government have taken concerns in this regard into account, with the introduction of a requirement of leave to appeal against discharge at extradition hearing in Clause 141(2), but this amendment proposes that that requirement should also be omitted in line with the proposed approach to appeals against extradition orders in Clause 141(1).
Amendment 88A would extend the deadline for bringing appeals against extradition from seven days to 14. I reiterate my welcome for the introduction of flexibility in relation to appeal deadlines, but I remain concerned that the current drafting may be insufficient to address potential injustices, particularly when linked to the proposed removal of the automatic right to appeal. Given the impact of extradition on individuals, a standard period of seven days to appeal or seek leave is pretty short. This is often exacerbated by the need to obtain evidence from other jurisdictions and can raise enormous challenges when a person decides to change their lawyer after the first-instance hearing.
Lord Rosser
My Lords, I will be brief with what has been described as my blunt instrument on Clause 141. I will not repeat the detailed arguments put by the noble Lord, Lord Hodgson of Astley Abbots. As he said, Amendments 88 and 90 seek to preserve the automatic right to appeal against an extradition order by deleting provisions in the clause that would make the ability to appeal against an order subject to obtaining the permission of the High Court. Essentially, it appears that the Government are now proposing to remove a key safeguard for individuals at risk of extradition by repealing the automatic right of appeal. We have real concerns about this change, which of course removes safeguards for UK citizens.
The automatic right of appeal is a key safeguard against the wrongful extradition of individuals, which allows them to raise new evidence that was not available at the time of the extradition hearing or to challenge the decision of the original judgment. It was surely this automatic right of appeal that allowed Gary McKinnon and his family to challenge the initial decision to extradite him to the US, leading ultimately to the decision not to extradite him at all. Without the right of appeal, he might have been extradited without any further consideration of the evidence, old or new, showing that extradition posed a serious risk to his right to life. Indeed, in the Statement that the Home Secretary made on 16 October 2012, she specifically referred to this issue when she said:
“After careful consideration of all of the relevant material, I have concluded that Mr McKinnon’s extradition would give rise to such a high risk of him ending his life that a decision to extradite would be incompatible with Mr McKinnon’s human rights”.—[Official Report, Commons, 16/10/12; col. 164.]
Yet, subject to what the Minister may say, the Government appear to be introducing changes to the Act that would mean that if a similar case occurred after this Bill had been passed, the Home Secretary would not be able to make the same decision.
Clause 141 amends Sections 26 and 108 of the 2003 Act to provide that an appeal will lie only with permission from the High Court, and no indication is given in the Bill of what criteria will be used to decide whether permission should be granted. I hope that the Minister will be able to indicate the reason for the Bill being so vague over an issue—namely, the criteria—that could have significant human rights consequences. What in fact do the Government expect the criteria to be, do they expect them to be evidence-based and will they be available for scrutiny? What impact do the Government believe any likely criteria will have on the number of cases able to be appealed?
Once an individual has been extradited, of course, there is virtually nothing that can be done if new evidence arises to show that that was not the appropriate or fair decision and was contrary to the interests of justice or their human rights. Does the Minister not agree that, because of that, it is crucial that people effectively have an automatic right to appeal against a decision to be extradited, or at least some other means of ensuring that justice is done, and that we do not end up in a situation which, frankly, does our own extradition system no credit?
I cannot vouch for this personally, but Liberty says that extradition experts are of the view that a large number of cases that have been successful on appeal probably would not have been granted leave under the Bill. Removing the right of automatic appeal will potentially have considerable human rights and legal implications. If the Minister cannot offer some movement on this issue when he replies tonight, I hope that he will at least be able to explain why the Government appear to be taking such a major backwards step, having previously placed such emphasis on their concern for Gary MacKinnon’s human rights.
Lord Taylor of Holbeach
My Lords, as my noble friend has explained, Clause 141 makes the right of appeal against a decision to order extradition subject to the leave of the High Court. Similarly, it makes the requesting state’s right of appeal against a decision to discharge a person from extradition proceedings subject to the leave of the High Court. Clause 141 also allows the requested person to make an application for leave to appeal out of time in certain circumstances. This does not apply to the requesting state.
The noble Lord, Lord Rosser, using his blunt instrument, gives me the opportunity to broaden the debate beyond the immediate amendments and explain how this process will work and why the Government feel justified in introducing Clause 141. My noble friend Lord Hodgson, in tabling his Amendments 88 and 90, challenges us on why we are making these changes. At present, a person has an automatic right of appeal against a decision to order his or her extradition, and the requesting state also has an automatic right of appeal against a decision not to order extradition—an important factor to bear in mind.
As noble Lords are aware, the Government commissioned a review by Sir Scott Baker of the UK’s extradition arrangements. One of the key findings of his review was that the success rate of appeals was extremely low: less than 13% in 2010. In other words, the court system is burdened by unmeritorious appeals, a fact to which my noble friend Lord Hodgson referred, which then delay hearings for all appellants and means that justice is deferred. Clause 141 addresses this problem by making appeals subject to permission from the High Court. This filter applies to appeals against, for example, a judge’s decision to order extradition to a Part 1 territory, that is, another member state; a judge’s decision to send a case to the Secretary of State to consider extradition in Part 2 cases, that is, where the requesting country is not an EU member state; and to a decision by the Secretary of State to order extradition in Part 2 cases. To provide parity, it also applies to appeals against decisions to discharge a person.
My noble friend Lord Hodgson asked what sort of issues a court would consider in deciding whether to allow an application to be heard. This will be, as one would expect, a matter for the judge concerned. They will, of course, give full consideration to all the relevant factors raised by the appellant before reaching a decision. We do not think that they are appropriate to be set out in legislation, as it is a matter for the court itself to consider. I understand that noble Lords will have questions about what safeguards will be available. Let me reassure noble Lords that this provision does not prevent anyone from applying for permission to appeal. Once an application has been made, the High Court will decide which cases proceed to a hearing, but each application will be considered by a High Court judge. Furthermore, Clause 141 sets out that the High Court must not refuse to entertain an application for leave to appeal by the requested person solely because it has been submitted outside the normal time period, if the person did everything reasonably possible to ensure that the notice was given as soon as it could be.
That point brings me to the matters that my noble friend Lord Hodgson raised in relation to this in his Amendments 88A, 89, 91 and 92. My noble friend proposes to amend Clause 141 to insert a requirement for the courts to allow an appeal to be made out of time if it is in the interests of justice to do so. As I said, Clause 141 allows the High Court to hear an out-of-time appeal where the person has done everything reasonably possible to bring the appeal as soon as possible. Our approach follows that of the Supreme Court, which ruled last year that out-of-time appeals should only be considered exceptionally. We believe that this provision gets the balance right: the timetable for an appeal is clear and there must be an onus on an appellant to meet the statutory requirements, as happens in the vast majority of cases.
My noble friend is also proposing to extend the time limit for appeals in Part 1 cases from seven days to 14 days. As he has explained, this was one of the recommendations that Sir Scott Baker made in his review of our extradition arrangements. We have therefore considered it very carefully in developing the provisions in the Bill. Our view is that extending the time limit in this way would have no practical effect beyond increasing the likelihood for delay. As I said, we have introduced new protections where people are unable to submit their appeals on time through no fault of their own. We believe that this new provision will address the concerns raised by my noble friend, and indeed by Sir Scott Baker, on this issue.
What safeguards will exist under these new provisions? We do not believe that we are removing any existing safeguards. We need to get the balance right between ensuring proper protection for those subject to an extradition request while ensuring that people do not delay their proper surrender by burdening the courts with unmeritorious appeals. We believe that this approach gets these matters right. The court itself will decide the issues and the relevance of any out-of-time considerations.
The changes set out in Clause 141 will allow the courts to focus their attention on the right appeals, removing the burden of unmeritorious appeals while ensuring that proper safeguards are in place for those subject to extradition. I commend the clause to the Committee and I hope that my noble friend will be prepared to withdraw his amendment, and that the noble Lord, Lord Rosser, will see the merit in the clause.
Lord Hodgson of Astley Abbotts
I am grateful to my noble friend for that fulsome reply. I am disappointed that the Government have not seen fit to follow up the Scott Baker proposal for 14 days instead of seven days, given the complexity of the appeal process, particularly when linked to the additional steps that the Government are taking to introduce prohibitions on and difficulties in getting an appeal process going in the first place. Obviously, however, this is not the time to take the argument further. I look forward to reading with care in Hansard tomorrow what the Minister has said. I beg leave to withdraw the amendment.
“Request of further information where suspicion of mistaken identity
In section 7 of the Extradition Act 2003 (identity of person arrested), after subsection (4) there is inserted—“(4A) If the judge decides that question in the affirmative, he must decide whether the person in respect of whom the warrant was issued is the person who is alleged to have committed, or to have been convicted for, the offence on which the warrant is based.
(4B) The judge must decide the question in subsection (4A) on the balance of probabilities, but if he considers there is reasonable doubt as to that question, he may not decide it in the affirmative unless he has first requested the issuing authority to provide further information within the time specified in the request (which must not be less than a reasonable time in all the circumstances) and the issuing authority has provided him with the information requested within that time.
(4C) If the judge decides the question in subsection (4A) in the negative, he must order the person’s discharge.””
Lord Hodgson of Astley Abbotts
My Lords, Amendment 94, which is concerned with mistaken identity, and Amendment 95 would insert two new clauses into the Bill. Amendment 94 would enable the judge at the extradition hearing—whether it is a prosecution or a conviction warrant—to request more information where there is a real doubt as to whether the person sought is actually the person suspected or convicted. This would be particularly valuable in cases where there is a reasonable belief that the person sought has had his or her identity stolen or where there is a clear case of mistaken identity. In these days of cybercrime, the former is an increasingly common occurrence.
There are currently no grounds in domestic law on which to refuse extradition where there are serious doubts about whether the person sought is the person who committed the crime or is suspected to have committed the crime. Such a situation has arisen in several cases where the person subject to the EAW has had their identity stolen by the real perpetrator or where that perpetrator has identified someone else as the person who committed the offence.
This is demonstrated by the case of Edmond Arapi, who was tried and convicted in his absence in Italy and given a sentence of 16 years. He had no idea that he was wanted for a crime or that the trial or subsequent appeal had taken place until he was arrested at Gatwick Airport in 2009 on an EAW on his way back from a family holiday. The British courts ordered that Edmond be sent to serve the sentence in Italy, despite clear proof that he was at work in the UK on the day of the alleged offence. On the day that the High Court was due to hear his appeal against extradition, the Italian authorities decided to withdraw the EAW following a campaign, admitting that they had sought Edmond in error. He narrowly avoided being separated from his wife and children, including a newborn son, and spending months or years in an Italian prison awaiting a retrial. This amendment is needed to give courts greater discretion to request further information where there are reasonable grounds to believe that the person sought under an EAW is the victim of mistaken or stolen identity.
Amendment 95 seeks to clarify the approach that a judge should follow in relation to human rights and provide a stronger basis on which to refuse to execute an EAW on human rights grounds. Many have argued that the underlying assumption of the EAW system—that other Part 1 territories can always be trusted to respect the fundamental rights of those extradited—rests on shaky foundations. For instance, it has been reported that in the years 2007 to 2012, Greece violated Article 6(1) of the ECHR 93 times in criminal cases.
Garry Mann, giving evidence to the Home Affairs Committee, described his 2004 trial in Portugal as follows, stating that,
“the police … just told me it was some kind of public order offence … we went into court and there were 12 of us … we had one interpreter … she would try to say something and pass it down the line of 12, but we did not understand what was going on at all … They asked me what I thought in broken English, but again the judge and the lawyer did not speak much English … I never knew the charge that I was facing until 30 minutes before I was convicted at 11.30 that night … They said there was no time to call any witnesses. I said I would like CCTV; no time to call CCTV”.
An English court later called on to issue a football banning order against Garry refused, finding that the trial had not complied with Article 6 of the ECHR.
The courts have, however, given very short shrift to arguments alleging that extradition would lead to a violation of human rights. In accordance with the concept of mutual trust, on which the operation of the EAW is based, the courts assume that the issuing state will protect the extradited person against any unfairness and that past proceedings giving rise to convictions on which EAWs are based were fair. A person must show that they are at risk of a “flagrant” breach of their fair trial rights in order to resist extradition. The approach is difficult to sustain when there are ongoing systematic deficiencies in a justice system, which are liable to impact upon an extradited person. For instance, the European Court of Human Rights recently found Italy in violation of Article 3 of the ECHR and applied its pilot judgment procedure, recognising that widespread overcrowding was leading to systematic infringements of Article 3. The concept of mutual trust is difficult to defend in such circumstances. If an extradited person is going to be detained in the same prison, it is plainly likely that their human rights will be infringed.
The Government have taken the view that the EAW framework decision implicitly allows refusal to execute an EAW on human rights grounds, relying on recital 12 and Article 1(3) of the framework decision, which affirm that the latter shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles, as recognised by Article 6 of the Treaty on European Union and reflected in the European Charter of Fundamental Rights. However, the precise content of those fundamental rights obligations is not clear. In her opinion on the Radu case, Advocate-General Sharpston suggested that, under the charter, the test was whether there was a “substantially well founded risk” of a violation which would,
“fundamentally destroy the fairness of the trial”,
a slightly different test from the ECHR flagrancy test. However, for the time being, the precise requirements of fundamental rights are not defined in EU legislation. Accordingly the member states enjoy some discretion to apply fundamental rights as they understand them, provided that this does not compromise the unity and effectiveness of EU law. This amendment therefore falls within the permissible bounds of the EAW framework decision. I beg to move.
Lord Taylor of Holbeach
My Lords, the additional safeguards that my noble friend has proposed through Amendment 94 seek to introduce matters of mistaken identity. It is not something that we believe is necessary. Clearly, we do not want the wrong people to be extradited; the wider issues relating to identity were carefully considered during the review of the UK’s extradition arrangements. Sir Scott Baker did not find any evidence that a person who was subjected to mistaken identity had actually been surrendered to stand trial. He concluded that there was no need to amend the Act to require a judge to request further information concerning the requesting person’s identity. Nor did the Metropolitan Police, the Crown Prosecution Service or the Crown Office raise concerns about the issue.
I agree with expert opinion and I am not persuaded that a change is needed here. My noble friend asked about the case of Mr Arapi—I will try to avoid talking about particular cases—but, as my noble friend will be aware, Mr Arapi was not extradited and the Italian authorities admitted their error in making the request for him rather than another person of the same name. In his review, Sir Scott Baker found that no amendment was needed to the protections already afforded in the Act with regard to identity as there are already sufficient procedures in place to protect people who are sought as a result of mistaken identity.
The amendment raises the particular issue of a judge being clear that the person who has been arrested and appears in court is the person who is alleged to have committed the crime. This goes to the heart of the trial in the issuing stage. It is not a matter for the UK courts. The courts’ consideration of an extradition request is not one of guilt or innocence but of whether any of the statutory bars to extradition apply.
Turning to Amendment 95, my noble friend seeks to make changes to a judge’s consideration of human rights in EAW cases, including expanding the matters to which the judge should have regard when considering whether extradition would breach a person’s human rights.
We believe that there are already sufficient safeguards in the Extradition Act to allow a judge to bar extradition on human rights grounds. The 2003 Act is drafted to allow the courts to give the fullest possible consideration to human rights issues. We discussed this matter in earlier deliberations in Committee. In all cases, the judge must decide whether extradition would be compatible with the convention rights and must discharge the person if he or she decides that it would not be compatible.
In his review of the UK’s extradition procedures, Sir Scott Baker found that the human rights bar to extradition did not need amending. The review found that the bar did not permit injustice or oppression, and the Government agree with that assessment. We do not accept that a judge’s approach to human rights needs to be changed.
In conclusion, I am very grateful to my noble friend for giving the Committee this opportunity to consider various aspects of Part 12 of the Bill.
Lord Lamont of Lerwick (Con)
Am I not right in saying that the European Commission has been quite critical of some of the new entrants into the EU’s legal systems and has instanced poor training of judges and problems of corruption? As long as the criticisms continue to be made, does not my noble friend’s amendment have a real point, or is the Minister saying that the human rights considerations that he has been talking about would cover that instance?
Lord Taylor of Holbeach
The European arrest warrant provisions are indeed Europe-wide, so they cover a number of different jurisdictions. None the less, proportionality and human rights considerations are written throughout these particular parts of the Bill. As I said, Sir Scott Baker investigated this. He felt that the human rights bar to extradition did not permit injustice, if it was believed to exist, or oppression, and the Government agree with that assessment. I hope that I have satisfied my noble friend and that he will accept that the Government are not operating this mutual extradition facility which the European arrest warrant provides for in a way which is unreasonable to people who are subject to extradition requests.
Lord Hope of Craighead (CB)
Perhaps I may assist the Minister in replying to the question that has been raised. Recently, the Supreme Court had to consider a case where an individual was being sought to be extradited to Albania. The court was told that there was a high degree of corruption among the judges and the extradition was stayed so that the degree of corruption could be investigated further. The matter is now in the hands of the Lord Advocate in Scotland. That is an example of the kind of phenomenon to which the noble Lord referred—where the standards in one of the new countries are not up to the standards that one might expect. However, I suggest that the courts are very astute in ensuring that the human rights protection in relation to a fair trial is preserved. That is a very recent example which I think meets the point that the noble Lord, Lord Lawson, had in mind.
Lord Taylor of Holbeach
Not for the first time, I am very grateful to the noble and learned Lord, Lord Hope of Craighead, for his intervention in this matter. I should say that Albania is not a member of the European Union at this stage. However, the principle applies, as the noble and learned Lord said. Section 21 of the existing Act already requires the judge to be satisfied that extradition is compatible with the human rights convention, and that includes the right to a fair trial. Therefore, that already exists in law.
In conclusion, I am grateful to my noble friend for giving the Committee an opportunity to consider various aspects of Part 12 of the Bill. On a number of the issues he has raised, I think that we share the same policy objectives, and in such cases where we have differences between us, they may well simply be a matter of drafting. Having had this important debate and in the light of my comments, I hope that my noble friend will agree to withdraw his amendment. If, on reading the record, he finds that there are still aspects with which he is concerned, I hope that he will not hesitate to raise them with me.
Lord Hodgson of Astley Abbotts
Of course, I shall not hesitate at all. Again, I am extremely grateful to my noble friend. He is quite right to remind me that Edmond Arapi was not extradited, although, in the words of the Duke of Wellington, it was “a damn close-run thing” in the sense that the appeal was heard on the day that he was about to go.
I acknowledge the points that my noble friend made concerning the Scott Baker issues of identity and human rights, although I think that identity is going to become more and more important because of cybercrime and people assuming other identities. I think that that will come back for discussion. I am disappointed that we have not been able to find a way through that because, in my view, it will rise in importance and relevance.
My noble friend Lord Lamont asked the critical question: do we have sufficient mutual trust? The noble and learned Lord, Lord Hope of Craighead, said that we should have. The point, of course, is that unlike Albania, for which there would be a Part 2 warrant, the process of a Part 1 warrant, which the EAW would be, is a great deal swifter. Standing here on my feet at this moment, I do not know whether the court has more powers to make investigations in the case of a Part 2 warrant, as would be provided by my amendments, than it has in the case of a Part 1 warrant. That is something on which I cannot give an answer off the top of my head. However, I am grateful to my noble friend because I think that he has put his finger on it: is there enough mutual trust?
I am grateful to my noble friend and to the Committee for having let me rabbit on at some length about these issues. I beg leave to withdraw the amendment.
Lord Ahmad of Wimbledon
“Electronic transmission of European arrest warrant etc
In section 204 of the Extradition Act 2003 (warrant issued by category 1 territory: transmission by electronic means), in subsection (5)—(a) for “subsection (1), a” there is substituted “subsection (1)—(a) a”;(b) at the end there is inserted—“(b) information contained in the warrant is treated as being received by the designated authority in a form in which it is intelligible if the authority receives—(i) a summary of that information in English, and(ii) the text of the warrant itself,in a form in which it is legible.”
Lord Ahmad of Wimbledon
My Lords, this group of government amendments to Part 12 and Schedule 9 deal with three distinct and largely technical issues.
First, Amendment 95ZB, and the associated Amendment 98B to Schedule 9, make minor amendments to Section 204 of the Extradition Act 2003. That section makes provision for cases where the information contained in a European arrest warrant is transmitted to the United Kingdom electronically.
The amendments to Section 204 are needed to support the implementation of the second generation Schengen information system, otherwise known as SIS II. Under SIS II, the NCA will be required to certify requests entered by other member states for,
“arrest for surrender or extradition purposes”,
from the information received electronically under the SIS II process. This information will be an English language summary of the information contained within the EAW, together with the original language version of the EAW. Section 204 therefore requires amendment so that certification can take place on the basis of this English language summary, rather than a translation of the full contents of the EAW.
Amendments 95ZC and 95ZD relate to Clause 149. That clause amends the Prison Act 1952 to ensure that, in all cases where a person spends time in custody in another member state awaiting extradition to the UK, that time is counted as time served towards the UK sentence. As it stands, Clause 149 provides only for cases in England and Wales. Therefore, following discussions with the Scottish Government, we have agreed that analogous provision for Scotland can be made through administrative means. However, with the agreement of the Scottish Government, we are taking the opportunity to update relevant provisions in Scots law in relation to cases where a person is extradited to the UK to be sentenced. Section 210 of the Criminal Procedure (Scotland) Act 1995 makes provision for taking into account time spent in custody awaiting extradition to the UK in cases where a person is extradited to be sentenced. It is out of date in that it refers to the Extradition Act 1989 which is no longer in force. Amendment 95ZC amends this provision to update it in respect of extradition.
In respect of Northern Ireland, Section 38 of the Prison Act (Northern Ireland) 1953 makes equivalent provision to Section 49 of the Prison Act 1952 in cases where a person is sentenced before extradition to the UK. Amendment 95ZD, and the consequential Amendment 98A to Schedule 9, ensures that time spent in custody awaiting extradition to the UK from another member state is always credited. There is currently no legislative provision in Northern Ireland for taking into account time spent in custody awaiting extradition to the UK from another member state where a person is sentenced after extradition. Amendment 95ZD also amends the relevant law in Northern Ireland to ensure that such credit is given.
Amendments 104A, 104B and 104C to Clause 159 make consequential changes to the extent provisions arising from the two new clauses inserted by Amendments 95ZC and 95ZD. These new provisions will ensure that the UK law is fully in line with Article 26 of the EAW framework decision. Finally, Amendment 99 implements one of the recommendations in the 12th report of the Delegated Powers and Regulatory Reform Committee. That committee recommended that the order-making power in new Section 189E of the Extradition Act 2003 should be subject to the affirmative procedure. New Section 189E enables the Home Secretary to specify descriptions of persons, other than constables, who may exercise powers of detention, search and seizure in respect of people who are in transit through the UK and being extradited from one foreign territory to another. Such a power might be used, for example, to designate immigration officers. The Government are content to accept the committee’s recommendation in this regard. I beg to move.
Lord Taylor of Holbeach
“Discount on sentence for time spent in custody awaiting extradition: Scotland
(1) Section 210 of the Criminal Procedure (Scotland) Act 1995 (consideration of time spent in custody) is amended as follows.
(2) In subsection (1)—
(a) in paragraph (a), after “United Kingdom” there is inserted “otherwise than from a category 1 territory”;(b) in paragraph (c)(ii), for “for the purposes of this section” there is substituted “who was extradited to the United Kingdom otherwise than from a category 1 territory”.(3) After subsection (1) there is inserted—
“(1A) Subsection (1B) applies where—
(a) a court is passing a sentence of imprisonment or detention on a person for an offence, and(b) the person is an extradited prisoner who was extradited to the United Kingdom from a category 1 territory.(1B) The court shall specify—
(a) the period of time spent in custody awaiting extradition, and(b) the date of commencement of the sentence in accordance with subsection (1C). (1C) The date of commencement of the sentence is to be a date the relevant number of days earlier than the date the sentence would have commenced had the person not spent time in custody awaiting extradition.
(1D) In subsection (1C), “the relevant number of days” means the number of days in the period specified under subsection (1B)(a).”
(4) After subsection (2) there is inserted—
“(2A) In this section, “category 1 territory” means a territory designated under the Extradition Act 2003 for the purposes of Part 1 of that Act.”
(5) Subsection (3) is repealed.”
“Discount on sentence for time spent in custody awaiting extradition: Northern Ireland
(1) In section 38 of the Prison Act (Northern Ireland) 1953 (arrest, etc, of persons unlawfully at large), for subsection (3) there is substituted—
“(3) The provisions of subsection (2) shall not apply to any period during which any such person—
(a) is detained in pursuance of any other sentence of any court in the United Kingdom in a prison or other institution, or(b) is kept in custody in a category 1 territory before, and only for the purpose of, being extradited to the United Kingdom to serve the term of imprisonment or detention referred to in that subsection,but shall apply in addition to any other provisions of this Act imposing any punishment for an escape. (3A) In subsection (3) “category 1 territory” means a territory designated under the Extradition Act 2003 for the purposes of Part 1 of that Act.”
(2) In section 26 of the Treatment of Offenders Act (Northern Ireland) 1968 (duration of sentence), at the end of subsection (2A) there is inserted “; or
(c) any period during which he was in custody in a category 1 territory with a view to his being extradited to the United Kingdom to be tried or sentenced for that offence (and not for any other reason).In paragraph (c) “category 1 territory” means a territory designated under the Extradition Act 2003 for the purposes of Part 1 of that Act.””
Lord Beecham
“Discretion in ordering victim surcharge to offenders under the age of 18
In section 161(A) of the Criminal Justice Act 2003 (court’s duty to order payment of surcharge), after subsection (4) there is inserted—“(5) In the case of offenders under the age of 18, the ordering of payment of a victim surcharge may be at the discretion of the sentencing body.””
Lord Beecham (Lab)
My Lords, I rise to move the amendment in the name of my noble friend Lord Ponsonby, who cannot be in his place tonight. I shall be uncharacteristically brief. My noble friend draws the attention of the Committee, and indeed mine, to an anomaly in the present situation on victim surcharge orders. The payment may be ordered to be made by the parents of a young offender who are themselves the victims of a crime. That situation cannot possibly have been envisaged originally, but it appears to be the case and there seems to be no court discretion to avoid imposing what many of your Lordships would feel is a ridiculous outcome. The noble Lord may not be able to accept the amendment tonight, but I hope that he will look at it, as it seems to be anomalous and ought to be corrected.
The Minister of State, Ministry of Justice (Lord McNally) (LD)
My Lords, let me confirm at once that the noble Lord, Lord Beecham, has been uncharacteristically brief. I am sorry that the noble Lord, Lord Ponsonby, was unable to move his amendment because I know of his deep and continuing concern on these matters.
The Government are determined to provide the best support for victims of crime, which must be properly funded, but increasingly by offenders rather than taxpayers. In 2010-11, offenders contributed less than £1 in every £6 of funding that supports victims’ services. We intend to raise up to an additional £50 million from offenders to pay for services to support victims of crime. That is why we brought forward reforms to the victim surcharge last year, following public consultation, to ensure that all offenders bear a greater proportion of the cost of victims’ services. Proceeds from the surcharge are ring-fenced to fund support services for victims and witnesses. From October 2012, the victim surcharge for adult offenders was increased when ordered with a fine and extended to a wider range of in-court disposals such as conditional discharges, community sentences and custodial sentences. Similar provision was made for juvenile offenders who even before the changes made in 2012 were required to pay the surcharge when sentenced to a fine.
A key point of the victim surcharge is that all offenders, including juveniles, take responsibility for their offending behaviour and make a contribution towards funding victims’ services. Juveniles have therefore always been within its scope and I do not believe that it would be right to introduce discretion to exempt them. Having said that, I recognise the concerns of the noble Lord about the practicalities. When the offender is a juvenile, Section 137 of the Power of Criminal Courts (Sentencing) Act 2000 provides that the parent or guardian might become liable to pay a financial order made by the court. There may, therefore, be circumstances where the parent or guardian of a juvenile becomes liable to pay the victim surcharge when they have been the victim of the offence. We recognise the issue that such cases raise.
Let me reassure the noble Lord that the court does have the discretion not to order the parent or guardian to pay the surcharge if, having regard to the circumstances of the case, it considers that it would be unreasonable to do so. While the court would still need to order the surcharge in respect of the juvenile, there are a number of options open to it when it comes to payment. In this vein, the Justices’ Clerks’ Society issued a circular to its members in June this year outlining some of these approaches. These could include inquiring as to any income the offender may be receiving, particularly if they are older juveniles, in which case responsibility for paying the surcharge would fall directly to the young person. Additionally, in exceptional circumstances, the court has the power to defer payment of the surcharge until such time as it considers the offender would be able to pay it, again making responsibility for paying the surcharge the offender’s rather than that of his or her parents.
We believe that it is right that all offenders, including those aged under 18, should take responsibility and make greater reparation towards the cost of victim support services as a result of their actions. It is therefore appropriate that the surcharge should continue to be ordered when a court deals with an individual, whether as an adult or a juvenile. I hope that I have been able to reassure the noble Lord on the points he raised and that he will be content to withdraw his amendment.
Lord Beecham
My Lords, I am grateful for what I might best describe as an uncharacteristically helpful and informative response from the noble Lord, which I undertake to convey to my noble friend. We are, of course, entirely with the noble Lord and the Government in wanting to ensure that victims are compensated, especially by those who wrong them. He has adequately explained the situation and my noble friend’s fears seem to be unfounded. I beg leave to withdraw the amendment.
Lord Beecham
Lord Beecham
My Lords, I shall also speak to Amendments 95AB, 95BA and 95D in relation to the issue of court and tribunal fees. At Second Reading I described the Bill as not so much a curate’s egg as a curate’s omelette, comprising as it does so many ingredients, both good and bad, mixed up together. It is perhaps fitting that the Committee should end with a debate on a clause which impels me to produce another culinary analogy, for this clause and the process which has informed it can best be described as half-baked.
It is perfectly reasonable to update the fees for proceedings in courts and tribunals to keep pace with inflation and, in appropriate cases, to seek full-cost recovery, provided there is a reasonable and effective scheme for the remission of fees, in whole or in part, for those of modest means or less. Equally, I have few qualms about fees in cases such as those in the commercial court which the Government are anxious to promote internationally as a forum of choice, but the approach of the Government to this clause has been cavalier in the extreme.
On 4 December the Minister wrote to me to say that the Government had launched a consultation on the provisions of Clause 155, as announced the previous day, that is to say four working days before the clause comes to be considered by this House. Had progress been quicker on earlier clauses, we would have reached this clause on the very day that the Minister’s letter reached me. The consultation, incidentally, is to last seven weeks, including the Christmas and new year period. It will end on 21 January, by which time we will presumably have reached Report, if not concluded it, and there will be little or probably no time at all for the Government to give their response before the Bill’s final stage is reached.
That is not all. Impact assessments for these proposals published on 2 December say next to nothing about the impact on claimants applying to tribunals or to the courts, as opposed to the amounts the Government hope to rake in from increased fees. The Government’s attitude to consultation is underlined by paragraph 20 of the current consultation paper which refers to an earlier consultation, CP15/2011, Fees in the High Court and Court of Appeal Civil Division, to which, the consultation paper records,
“the Government has not yet responded”
after some two years, and which are, the consultation paper says, “superseded”—without, I may say, any explanation—by the current proposals.
The saga does not end there—perhaps I should say does not start there—for the Government launched yet another consultation last April, this time on fee remissions for courts and tribunals, with a four-week period for responses, and published their response, conveniently, no doubt, for them on 9 September, when Parliament was in recess. Interestingly, that document introduced a disposable capital test and airily dismissed concerns that this might have a deterrent effect on claimants. There is, incidentally, currently concern about an apparently significant drop in employment tribunal claims following the hotly contested introduction of fees, which were widely regarded as too high. Perhaps the Minister would save me the trouble of tabling a Question by agreeing to write to me in the new year with details of the number of claims before and after the imposition of charges. It is, after all, an analogous situation to that which this clause deals with.
The Government’s latest consultation paper refers to interviews and research, both of which are said to have been the subject of a full report published alongside the consultation, but for which no references are given. Painting, as ever, with a broad brush, the Government say that they believe,
“that all those who issue a court case benefit equally from the existence of the civil justice system as a whole and should share in contributing towards its indirect costs”,
and, therefore, they divide the indirect costs of the system between all cases that are issued. It is not clear to me whether the apportionment applies equally to all cases, or whether it is in some way proportionate to the amount claimed. On the face of it, this looks very like the application of the principle of the poll tax to the cost of making a claim to a court or tribunal.
Paragraph 60 of the consultation proposes to combine the fees for issue and allocation to a track—the small claims track, fast track or multi-track—without any clear explanation of the rationale. Paragraph 63 acknowledges that the hearing fees for the higher track cases are higher than the average cost of such, but it does not propose to adjust them, thereby importing the concept of more than full-cost recovery by the back door. In divorce cases, while the Government say, at paragraph 71, that they will maintain the issue fee at £410, already above the actual cost price of £270, they will impose an extra charge of £300 to cover the cost of the remainder of the proceedings. Given that, in many cases these will be a mere formality, this looks suspiciously like another example of more than full-cost recovery, though not, of course, for the complex cases where there are major issues as to income and property, where such charges might be thought to be not unreasonable.
Ominously, the Government propose changes to the fees in money claims, including, no doubt at the behest, yet again, of their friends in the insurance industry, in personal injury cases. They go so far as to say that their proposals, if applied in their entirety, would lead to reduced fees on claims of around £10,000 or less but, typically, they will not be changing those fees.
The Committee will understand that there are many questions about these proposals, but there is an overriding question about the abuse of the legislative process which, not for the first time, is being perpetrated by this Government. I acknowledge and welcome the concessions made in the Government’s amendments as far as they go. They will ensure that any increase in fees other than inflation-related increases will have to be approved by affirmative resolution, and that is a welcome improvement. But will the Government consider the amendments I have tabled, which seek to ensure that access to justice is a prime consideration before setting the size of the fee increases, and that the remission arrangements are properly scrutinised and agreed? Will they revise the existing remission arrangements in the light of the proposed major changes, and will they review the proposals to take disposable capital into account?
Given the shambles of the process thus far, I have to say that on Report the Opposition may well press for a sunrise clause along the lines of Amendment 95D to ensure that there is proper parliamentary scrutiny of the complete package when its final contents are developed. As I say, that is unlikely to be the case before this Bill receives its Third Reading.
In addition, in the mean time it will be helpful to know whether, in the indefinite age of austerity that the Chancellor has decreed for public services, the principle of full-cost recovery, and especially of more than full-cost recovery, will be extended to other services such as further and higher education, prescription charges or other parts of the health service. By what logic, one wonders, would the Government differentiate between some of the proposals they are making in this Bill, incorporating more than full-cost recovery for access to justice, and those or other public services? I beg to move.
Lord McNally
My Lords, I shall not try to follow the noble Lord, Lord Beecham, down his culinary route. One of the pleasures of responding to the noble Lord is that it is almost like doing a school exam. So many questions are fired at you in quick succession. If I do not cover them all in this reply, I will carefully read what he has said, note the question marks that Hansard inserts and try to send suitable replies, including on the point he made in opening about the figures for claims at employment tribunals after the introduction of charges.
Perhaps I may deal first with the two government amendments in the group, namely, Amendments 95B and 95C. These give effect to the recommendation made by the Delegated Powers and Regulatory Reform Committee relating to the power to charge enhanced court fees. Clause 155 currently provides that, when the power to set a fee or fees at an enhanced level is used for the first time, the relevant statutory instrument should be subject to the affirmative resolution procedure, with any subsequent changes to the fee or fees being subject to the negative procedure. The Government’s intention was that the principle of charging an enhanced fee should be subject to a full debate in Parliament, after which the negative procedure would provide the necessary level of parliamentary oversight for any subsequent changes to the fee.
However, the Delegated Powers and Regulatory Reform Committee was concerned that this would provide the Lord Chancellor with a very wide discretion to set the level of fees. Although the legislation requires the Lord Chancellor to have regard to the financial position of the courts and tribunals and to the competitiveness of the legal services market when setting fees, the committee felt it was possible that, in future, very different considerations might apply and that these should be taken into account. The committee therefore recommended that the power to set an enhanced fee should be subject to the affirmative procedure unless the amendment is being made solely to reflect the change in the value of money. The Government agree that this change would be appropriate and, accordingly, Amendments 95B and 95C will implement this recommendation.
I turn now to the amendments in the name of the noble Lord, Lord Beecham. Amendments 95AA and 95AB seek to require the Lord Chancellor to have regard to the principle of “access to justice” when setting fees. I can wholeheartedly agree with the noble Lord that this is an important consideration. However, the Lord Chancellor is already under a duty to do exactly this when setting fees under Section 92 of the Courts Act 2003. Subsection (3) of that section provides that the Lord Chancellor,
“must have regard to the principle that access to the courts must not be denied”.
Amendment 95BA seeks to make the remission scheme subject to the affirmative resolution procedure. As noble Lords will be aware, there is already a remission scheme in place. Indeed, the scheme has been in place for a number of years, but was updated and revised as recently as 7 October 2013 when the Courts and Tribunals Fee Remissions Order 2013 came into force. It is the Government’s intention that the existing remission scheme will continue to apply in all cases where enhanced fees would be introduced.
The current scheme provides for certain court and tribunal fees to be remitted in whole or in part where litigants meet certain criteria based on their disposable capital and gross monthly income. The existing scheme is made under the same order-making powers as apply to the setting of fees, for example, Section 92 of the Courts Act 2003, which relates to fees payable in respect of proceedings in the senior courts, county courts and magistrates’ courts. As the remission scheme relies on the same order-making powers as the statutory instruments prescribing court and tribunal fees, they are subject to the same level of parliamentary procedure—namely, the negative procedure. In its seventh report of Session 2002-03, the Delegated Powers and Regulatory Reform Committee welcomed a government amendment to make the order-making power in what is now Section 92 of the Courts Act 2003 subject to the negative procedure. Given that previous endorsement by the committee, and the fact that the current arrangements have been in place for some years, I see no good reason why we should now alter the level of parliamentary scrutiny.
Finally, Amendment 95D would require the Lord Chancellor to report to Parliament on the outcome of the public consultation on these proposals and to obtain approval for its response. As the noble Lord indicated, the Government on 3 December set out their detailed proposals for using the power to set enhanced fees in the consultation paper, Court Fees: Proposals for reform. This seeks views on a series of proposals for charging enhanced fees, including for money claims, in commercial proceedings and for divorce, alongside proposals for reducing the current deficit of £100 million in the cost of running the Courts and Tribunals Service. The consultation closes on 21 January. In the normal way, we will publish a response to that consultation in due course and Parliament will have an opportunity to consider it when we lay a draft order under Clause 155. I therefore take Amendment 95D as a probing amendment rather than an attempt to enshrine in statute the normal process of reporting on the outcome of a consultation.
Lord Beecham
My Lords, I always read the noble Lord’s speeches carefully and I am certainly willing to do so on this occasion. I am grateful to the Minister for his reply, and I suspect that this short debate will be seen as something of an aperitif for the rather more weighty matters that we are about to discuss when the noble Lord, Lord Carlile, moves his prayers to annul two other orders.
The Minister fails to acknowledge, however, that a negative procedure might be sufficient when one is dealing with a stable situation, but the Government are here proposing an entirely new basis for the levying of fees: in the first place, to ensure full-cost recovery, but, more significantly, potentially going beyond that to ensure more than full-cost recovery. That puts a whole different perspective on the likely impact of fees on litigants or applicants to tribunals. In these circumstances, a different procedure than the conventional negative procedure is required, at least in the early stages. This is a matter to which we may wish to return on Report.
The consultation effectively comes after the completion of the process of enacting this Bill, which will allow the Government to introduce new principles. It is the wrong way around: the consultation should have taken place and we should have had the result of that before we discussed this clause, which makes a significant difference to the way our courts operate. It is now too late for that to happen and that is a matter of regret. I am afraid that I do not resile for a moment from the criticisms I made, not of the Minister, who is not personally responsible—he is well aware of that—but of others occupying, perhaps, more senior positions, who ought to reflect on the way they are treating Parliament and its due processes when they push forward proposals of this kind in this way. Nevertheless, in the circumstances, I beg leave to withdraw the amendment.
Lord Taylor of Holbeach
Lord Taylor of Holbeach
“(8) But subsection (7) does not apply if the statutory instrument only adjusts a fee to reflect changes in the value of money.”
Lord Taylor of Holbeach
“Police and Criminal Evidence Act 1984 (c. 60)(1) Schedule 2A to the Police and Criminal Evidence Act 1984 (fingerprinting and samples: power to require attendance at police station) is amended as follows.
(2) In paragraph 1 (fingerprinting: persons arrested and released)—
(a) in sub-paragraph (2), for “section 61(5A)(b)” there is substituted “section 61(5A)(b)(i)”;(b) after sub-paragraph (3) there is inserted—“(4) The power under sub-paragraph (1) above may not be exercised in a case falling within section 61(5A)(b)(ii) (fingerprints destroyed where investigation interrupted) after the end of the period of six months beginning with the day on which the investigation was resumed.” (3) In paragraph 2 (fingerprinting: persons charged etc)—
(a) in sub-paragraph (2)(b), for “section 61(5B)(b)” there is substituted “section 61(5B)(b)(i)”;(b) at the end of sub-paragraph (2) there is inserted “, or(c) in a case falling within section 61(5B)(b)(ii) (fingerprints destroyed where investigation interrupted), the day on which the investigation was resumed.”(4) In paragraph 9 (non-intimate samples: persons arrested and released)—
(a) in sub-paragraph (2), for “within section 63(3ZA)(b)” there is substituted “within section 63(3ZA)(b)(i) or (ii)”;(b) after sub-paragraph (3) there is inserted—“(4) The power under sub-paragraph (1) above may not be exercised in a case falling within section 63(3ZA)(b)(iii) (sample, and any DNA profile, destroyed where investigation interrupted) after the end of the period of six months beginning with the day on which the investigation was resumed.”(5) In paragraph 10 (non-intimate samples: persons charged etc)—
(a) in sub-paragraph (3), for “within section 63(3A)(b)” there is substituted “within section 63(3A)(b)(i) or (ii)”;(b) after sub-paragraph (4) there is inserted—“(5) The power under sub-paragraph (1) above may not be exercised in a case falling within section 63(3A)(b)(iii) (sample, and any DNA profile, destroyed where investigation interrupted) after the end of the period of six months beginning with the day on which the investigation was resumed.””
“Police Reform Act 2002 (c. 30) | In Schedule 4, in paragraph 1(2), the word “and” at the end of paragraph (ca).” |
“Prison Act (Northern Ireland) 1953 (c. 18)In section 38 of the Prison Act (Northern Ireland) 1953 (arrest, etc, of persons unlawfully at large), in subsection (4), for “the last foregoing sub-section” there is substituted “subsection (2)”.”
“(1) Section 204 of that Act (warrant issued by category 1 territory: transmission by electronic means) is amended as follows.
(2) In subsections (1)(c) and (2)(c), for “a qualifying form” there is substituted “a form in which it is intelligible and which is capable of being used for subsequent reference”.
(3) In subsection (6)—
(a) at the end of paragraph (a) there is inserted “and”;(b) paragraph (c) and the word “and” before it are omitted.”
“section 189E(1)(b);””
Lord Taylor of Holbeach
( ) an order under section 4(5),( ) an order under section 50(4), or( ) an”
Lord Taylor of Holbeach
“( ) sections (Information about guests at hotels believed to be used for child sexual exploitation) to (Offences);”
Criminal Defence Service (Very High Cost Cases) (Funding) Order 2013
(11 years ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Carlile of Berriew
That a Humble Address be presented to Her Majesty praying that the order, laid before the House on 1 November, be annulled. (SI 2013/2804)
Relevant document: 18th Report from the Secondary Legislation Scrutiny Committee.
Lord Carlile of Berriew (LD)
My Lords, in speaking to the two Motions standing in my name on the Order Paper, I should start by saying that I do so with sadness and regret. The fact that we are having this debate on annulment Motions at all is a symptom of the breakdown in trust between barristers in criminal practice and the Lord Chancellor’s Department. I have been at the Bar for 43 years now, with 42 years in practice. Over that period there have been pinch points, there have been negotiations about costs, but they have always been resolved by constructive engagement. We are now in a situation in which, for the first time in my time at the Bar, barristers are intent on withdrawing their labour, and they are at loggerheads with a Government who a great many of them have supported over the years. That is a sad state of affairs.
I declare my interest at the outset. I am a barrister who has conducted several very high cost cases, the category on which I will focus. I was but am no longer involved in a still current case which is not affected by the changes. I am very grateful to my noble friend the Minister for meeting me, with two officials present, on 26 November. I thought the meeting was useful and possibly constructive for the future. I hope he shares that view.
What are VHCCs? They are called “very high cost cases” but that is somewhat pejorative. In truth, the letters could also stand for “very high complexity cases”. They are few in number and among the most complex cases that come before any court, criminal or civil, in terms of the law that is involved and the facts that they engage. All, by definition, have to be expected to last more than 60 court days—they are massive cases. Substantial prison sentences may ensue for the people convicted, and usually those convicted in this class of case are not career criminals but people of previous good character.
A current case of which I am aware involves nine parties, including the prosecution; 20 counsel, including nine QCs; and between 5 million and 8 million pages of documents disclosed. One might ask, “What all those lawyers are doing, trying to read between 5 million and 8 million pages for the defence. Are they just making work for themselves?”. No, not at all. “Disclosed” in this context means that the documents have been described by the prosecution as either materially undermining the prosecution case or materially assisting the defence case; there is a clear obligation on the defence to examine those documents as best as it can.
These cases are every bit as complex as some of the legendary civil cases involving Russian oligarchs and the like about which we read, and the huge commercial disputes that some of the distinguished noble and learned Lords now sitting in the Chamber were involved in in practice and as judges. They demand the same legal and analytical skills as the most difficult civil cases. There is an added element. All these cases are heard by juries; so the hugely complex material has to be translated, as it were—transposed—into a situation where it can be understood by a jury.
Some defendants are wealthy and would like to pay for their own defences, but they are not allowed to by the state. For the most part they cannot use their assets to pay for their defences because they have been seized by the state. They are the unwilling people who have been thrown on to legal aid and basically obliged to take it or defend themselves. We have had arguments in this House in the past about whether these assets should be unfrozen under careful scrutiny and management to allow them to be used to pay for their defences, but for a completely strange reason the Government are not prepared to allow this to happen. I suggest to your Lordships that that is a stubborn, unreasonable and unrealistic approach.
As I have said, these defendants are thrown unwillingly on to legal aid representation, like it or not, and the public pay. Theoretically, if they are convicted some of the costs can be recovered, but I would like to hear from my noble friend what proportion of the defence costs have been recovered in these cases. Defence costs are notoriously difficult to recover. There are a legion of anecdotes, mostly true, about how the families of those convicted can sit quietly on the assets that have been frozen and live, for example, in expensive family homes for years. Recovery is very unsuccessful.
There seems to be an implication that the Bar is being greedy, setting fees that are totally unrealistic, but I remind your Lordships and particularly my noble friend that these fees have never been set by the Bar or by any other advocate. They have always been set by the Government of the time, and, until now, after consultation, discussion and negotiation, which is a process founded on reason.
Unfortunately VHCCs have developed a substantial bureaucracy which is extremely frustrating to those of us who have had to conduct them. They involve case managers who are civil servants. I have occasionally suggested to these case managers that they are “valued members of the defence team”, a phrase that I have repeated on a few occasions in messages to them. Even that flattery has failed to secure a single attendance by a case manager at a conference in the case, or a single attendance at court when there was a critical incident occurring in a preparatory hearing or the trial. This is mere bureaucracy, which adds totally unnecessarily to the cost of these cases, the fees for which could be assessed by the very people who are sitting in the court—as used to be the case—the associates or court clerks, who saw what was going on and were able to see how much work each advocate had done in the case. The lazy got less than the assiduous.
Baroness Deech (CB)
My Lords, I speak in support of the noble Lord, Lord Carlile. The extent of the concern about this is evident in the noble and learned Lords and noble and legally aware Lords who are gathered here tonight. In fact, the cuts to legal aid and the way in which they are being implemented are set to take their place in the great pantheon of government failures, which were foreseen but went ahead anyway. The list includes home improvement packs, ID cards, the Millennium Dome, child support and so on. I predict with confidence that, in a few years’ time, people will look back at the legal aid cuts and add them to that list. They amount to the suffocation of the criminal Bar and the weakening of the quality of the judiciary who would have been expected to emerge from it.
I have an interest to declare as the regulator of the Bar, but not as its representative, so I am reluctant to comment on the level of the cut—30%—to payments to the Bar, but the effects are clear to a regulator. They will damage the administration of justice, the rule of law and equality and diversity at the Bar. There will be too few advocates ready to take cases at those miserly rates, as we have seen. They are dropping them now, mid-case, and will refuse new instructions at those rates. We are talking about contracts entered into before 2 December where the case will be heard after 31 March, so advocates are being forced by the statutory instrument to take a 30% cut in their contracted rates mid-case.
The Ministry of Justice may be relying on the profession’s sense of duty to continue the case at 30% less, but if the case is dropped, it will end up spending more because of the cost of getting another advocate to repeat months of work already undertaken. The Ministry of Justice is breaching contracts retrospectively and placing future VHCC cases in the statutory instrument category, not the former contract mode.
As a regulator, I say right now that the retrospectivity of the statutory instrument is the most offending feature. If the Government simply changed the date of effect, so that only new instructions offered in future were subject to the cuts—objectionable although they are—some of the worst effects on the administration of justice would be mitigated. Will the Minister tell the House why that should not be the case? Retrospectivity is contrary to the law of contract and the rule of law. For example, when income tax rates are cut, the Government do not expect the payer to take advantage of the new rates before the starting date. In fact, such cuts are normally given a starting date well in advance, to allow parties to plan their affairs accordingly.
The Government have tried to make the UK the world’s pre-eminent destination for swiftly resolving international high-value legal disputes. That is increasing revenue. The UK legal sector output was £27 billion in the most recent figures, and is set to grow. It has exported £3.6 billion of services and is the largest, by a long way, in Europe. Some 14% of the world’s largest law firms are headquartered in London. The Government should not trumpet the excellence of the UK—as indeed it is—as a global legal centre whose success and desirability depends on the utter reliability of adherence to the rule of law and the quality of its lawyers, and then cut at the roots of access to justice and the development of lawyers here. I can describe it only as double standards.
There cannot have been a proper impact assessment of the cuts in terms of lost business, delayed trials and the effect on equality and diversity at the Bar. The Bar is proud of its record in enabling the underprivileged and those from non-traditional backgrounds and ethnic minorities to enter the profession. Up to 19% of pupillages in recent years have gone to such young people. That cannot now be maintained. Young people cannot be expected to go into criminal or family law at those rates when they have higher than ever university debts behind them and, of course, the cost of qualifying as a barrister. In the past, they were happy to take that on the chin because they knew that at the outset, they would get some legal aid work—low rates though they were, they were enough to survive on. Now, in all conscience, how can we encourage them to join the Bar?
Lord Woolf (CB)
My Lords, I must start by making a disclosure about my judicial career, my career at the Bar and the fact that, since I retired as a judge, I have been a non-resident member of a barristers’ chamber. Of course, in accordance with the rules within this jurisdiction, a retired judge cannot go back to the Bar.
I congratulate the noble Lord, Lord Carlile, on bringing this Motion and on the way he presented it. I draw significance from the fact that the House has heard two speeches from people who, in very different ways, are able to talk about the issues before us, which have been rightly described as highly relevant to the administration of justice and the rule of law.
Having said that, I should make it clear that I also support what the noble Baroness, Lady Deech, has said from a different aspect, except that I would draw a different view from hers as to the benefits of merely postponing the date of implementation. I suggest that that would merely be sticking plaster on a very gangrenous wound. Something much more is required of the Government if they are to recognise the responsibilities that they have to the rule of law, and to which I know that the Minister attaches great importance.
Equally, I understand why the Government felt that there was a need to take action to curb the costs of the cases with which we are concerned. However, in considering whether the action taken is appropriate, I suggest that we have to ask ourselves three questions. First, will the action proposed achieve its purpose—that being to save money? Secondly, is this action disproportionate in the way that it affects a particular section of the legal profession? Thirdly, does it create a serious risk of damaging severely the criminal justice system of this country? I suggest to the House that, judged by those questions, this proposal fails all three of the matters that I have referred to as requirements.
It is the third effect with which I am primarily concerned, although indirectly that involves consideration of the first and second questions that I have identified as well. We are considering here the most eminent practitioners in the field of criminal law in this country. The noble Lord, Lord Carlile, has painted a vivid picture of the sort of cases that we are involved in. It is vital for this country’s justice system that those most difficult and demanding cases are properly tried. If they are not properly tried the whole of our criminal justice system will be under a dark shadow, which this Government will have created without proper consideration of the information available, to the extent to which consultation has taken place. I say that having been in practice at a time when the Bar would, to fulfil what it saw as its obligation to justice, take on cases up and down the country for the princely fee of two pounds four shillings and sixpence, irrespective of your seniority. Eminent counsel took those cases and took their share of responsibility for that. From what I know of the Bar standards today, I have no doubt that they would do it today if they had to.
However, you cannot expect people to go into a profession, rise to its top and be treated to the imposition of an arbitrary cut of the scale proposed here without damaging the reputation of that profession. These people are not only those on whom we rely to conduct the most difficult cases at present; they are also those we rely on to be our great criminal judges of the future. We also rely on them, by the way they conduct their practice, to ensure that the Bar gets in its recruitment programme among the brightest and the most able youngsters going through our universities today. Each of the Inns of Court has programmes whereby the senior members of the Bar—the sort of members of the Bar I am talking about—visit universities and talk to the students who want to know whether they should come to the Bar and, if they do, what sort of work they should do. They want to know whether they should take the risk of coming to the Bar in the present circumstances.
Certainly, when I was doing that, I was always able to say to them, “You will have a profession which demands a tremendous amount from you, but you will have the satisfaction of knowing that you are involved in a profession where the public at large respect what you do and which contributes to producing a quality of criminal justice that is admired around the globe”. In those circumstances, they have continued to come to the Bar. Who, however, will be able to tell people to come to the Bar when they know that they will be dependent on a Government who apparently consider it appropriate to impose a cut retrospectively, as the noble Baroness, Lady Deech, indicated, on the profession? How can you do so, as a person who has the well-being of these youngsters who are thinking of coming to the profession at heart—I speak as the father of three sons who have come into the law—if you know that what we have heard about will be on the cards when it comes to their career?
There is very real reason for the Government to reconsider their approach in this matter. It is very important that they do so. If they do not, they will unintentionally cause serious harm to a profession that it will take years, if not generations, to undo. What is at present a profession that the brightest and most able want to enter, will be one that they will feel they cannot possibly enter because the risks of doing so are so great.
I have read, of course, the report of the statutory instruments committee. I note what it says about the Government thinking it will be possible to get people not out of the top drawer but from a lower drawer to do these cases. The Government may be right in saying that, but what will be the calibre and quality of those persons? I can say, on the basis of my judicial career, that, as the judiciary works in this country, it is dependent on the Bar. It is dependent on the Bar not only for recruits but for the help it gives to the judiciary to do justice. You do not save money just by fiddling with fees. If there is the need to create savings that the Government say there is, they should have taken action before to ensure that judges have the benefit of barristers who are paid not by the hour or by the day, but on a more sensible basis in respect of cases so that they have the same incentive as the justice has that cases should be disposed of expeditiously and not in the way that sometimes happens because of how our fees are structured. Reforms were possible. Cases require management, but it has to be possible for the management to take place economically.
Lord Brown of Eaton-under-Heywood (Non-Afl)
My Lords, I do not think I have any relevant disclosures to make. I have not had a private client for some 34 years since I followed the noble and learned Lord, Lord Woolf, as Treasury Counsel, and I shall never have another.
This very afternoon, in answer to a Question about our trade prospects with China, the Minister, the noble Lord, Lord Livingston, said:
“The UK legal sector is a great strength … the rule of law and support from professional services are very strong. I will certainly seek to champion the legal sector going forward”.
I believe that I quote him accurately. I just wish that he would share his views and commitment with the Lord Chancellor.
For many years the criminal Bar has been the poor relation of the various specialist Bars. Over the past decade it has already suffered a series of cuts in public funding. Of course it does not earn for the Exchequer the riches that, for example, the commercial Bar earns when acting, very often on both sides of the litigation, in commercial disputes. However, I argue that the work undertaken by the criminal Bar is altogether more important than most commercial work. Most commercial cases result ultimately just in the adjustment of companies’ balance sheets and book entries; they rarely affect the quality of people’s lives. The outcome of criminal cases, by contrast, is generally critical to real people; usually their very liberty is at stake. More than this, the strength of the rule of law, and indeed public respect for it, depends above all else on the proper administration of the criminal justice system.
Very high cost cases, the subject of the swingeing further cut in fees under consideration here, are generally the most demanding of all the cases in the criminal calendar, as the noble Lord, Lord Carlile, has explained, and usually, and appropriately, they are undertaken by the elite of the criminal Bar. There already exist few financial attractions for those contemplating practice, or indeed already practising, in crime at the Bar. If you impose these additional cuts, that elite will fall away.
The Attorney-General himself is said to have acknowledged at a recent Bar conference that he no longer expected people of excellence to come to the criminal Bar. Consider, if you will, the effect of that upon the future quality of those who practise at the very heart of the criminal justice system. Consider its impact on recruitment, as the noble and learned Lord, Lord Woolf, has made plain. Consider its impact on the rule of law, and consider its inevitable consequences in terms of the future judiciary. Where shall we find the next generation of criminal judges? What indeed about the present position, as described by the noble Lord, Lord Carlile, with current cases going hopelessly awry because, understandably, Counsel are on occasion declining to continue with cases with their fees savagely and retrospectively cut?
Of course I recognise that the Ministry of Justice has many calls upon its budget and that we live in harsh economic times, but I just cannot accept that these difficulties justify cuts so inevitably and gravely damaging to the criminal Bar, to the administration of justice and to the very rule of law. If drastic economies in the legal aid budget are required, and if they must be found in relation to the kind of cases in question here, better far to my mind that the department revisit a measure long ago suggested but, regrettably, hitherto rejected: the ending of the automatic right to jury trial in complex and protracted fraud cases. Indeed, it is my own clear opinion that not merely would this save countless millions of pounds of legal aid funds, it would also make for better justice.
That, of course, must be for another day. In the mean time, let us surely strive to safeguard rather than destroy the quality of the existing criminal Bar. Let us annul, not merely postpone, this order and these regulations. I, too, support the Motion.
Lord Hope of Craighead (CB)
My Lords, along with others, I am extremely grateful to the noble Lord, Lord Carlile, for tabling these Motions so that we can debate these important measures. I should make it clear that I have never practised at the English Bar and never sat in an English court. My experience has been of practice, both civil and criminal, north of the border. However, although I have never sat in an English court, I have sat in a United Kingdom court, have had some experience of dealing with criminal cases and think that I can speak with some authority in support of the points which have been made so effectively by the noble and learned Lords, Lord Woolf and Lord Brown of Eaton-under-Heywood.
A cut of 30% on fees previously set by the Government surely must be regarded in the present financial climate as severe. I appreciate, of course, that the Minister and those for whom he speaks in this House have very little room for manoeuvre, given the cuts that already have to be made across the entire department. However, it would help if the Minister in his reply were able to put these two measures into their overall context. As I understand it, we are dealing here with cases that take a very long time and provide the advocate with the benefit of continuity of employment throughout a long period. As has been pointed out, these are complex cases which require unusual amounts of work outside the court room and are, in comparison with rates elsewhere in the system, better paid. I could therefore perhaps understand it if the strategy behind these measures was to reduce the cost of legal aid at this level, so as to keep any reduction at the lower levels, with which we are not concerned this evening, to an absolute minimum—or even to preserve the existing position at the lower levels. After all, it is at the bottom of the scale that there is real hardship. One hears not infrequently that the costs of travel and other overheads exceed the amounts payable as fees to the advocate. If there is any margin over that, it is often very small. I would be grateful if the Minister would say whether this is what the Government have in mind, and give us an assurance that there is no question of cuts of this dimension being made elsewhere across the system. That would be some reassurance to those who are deeply concerned about what the Government have in mind in the overall planning.
I will direct my remarks to the amendment set out in regulation 3(5) of the Criminal Legal Aid (Remuneration) (Amendment) Regulations 2013, as the provision which it seeks to insert affects the advocate’s freedom of contract. The standard terms already provide for their amendment within the terms of the contract. There is a contractual power to do this, but it is not entirely unqualified; this is not the place to debate how extensive that power is. However, when it comes to altering the terms for payment, I suggest that it is a question of degree. The stage may be reached when the amendment proposed, purportedly within the contract, is so great that it cannot be altered without the advocate’s agreement. In that situation, if agreement is not reached, the advocate would have a right to terminate the contract.
That leads me to consider what the effect would be if the amendment goes through. As I understand it, it would tie the advocate who agrees to this form of contract to the rates set out in Schedule 6. That being so, those rates can then be amended by a further order without the need for the advocate’s agreement. There is no need to alter the contract: what one does is to look at the schedule and alter the schedule by a further order. Once the advocate is tied in to such a contract, he or she has no escape from it, however much the reduction in the rates may be. As there is every prospect, if one is realistic, that the cuts now proposed will not be the last, the stage could be reached when the rates will become wholly uneconomic—indeed, some may say that this stage has already been reached. That amendment is a profoundly unattractive change in the existing arrangement. I do not understand why it is there and I suggest that the Government are taking a great risk by proceeding along these lines.
Members of the Bar, after all, are not civil servants. One of the strengths of the Bar, vital in our modern democratic society, is the independence of each one of its members from each other and from anyone else. That is an essential part of the system, which lies at the centre of maintaining the rule of law, which we all believe in. One of the characteristics of their independence is that advocates cannot be forced to accept terms to which they have not agreed or which they find unattractive. That leads directly to the consequences—to which the noble and learned Lord, Lord Woolf, drew our attention —which could be very far reaching and very damaging. Those already engaged in work of this kind might be well advised to withdraw from their contracts, lest they be sucked into an ever increasing pattern of cuts. There are many who might be attracted to this kind of work in other circumstances who would not wish to subject themselves to the reformed contract where they are subject to change without any further amendment of the contract itself.
I therefore have this further question for the Minister: what assurance can he give to those who may be willing to accept employment on these amended terms as to what the future holds for them? This is very relevant to the issue of recruitment. Schedule 6, as I have suggested, is open to further amendment. Are we to expect further cuts in these rates next year or is it proposed to do so within the life of this Parliament? If so, what further opportunity will there be—indeed what opportunity will there be at all—for consultation before any further amendments are proposed? What opportunity will there be for an advocate to withdraw if he decides that the rates that are then proposed are so completely unattractive that he is not prepared to carry on with that work? These are questions that all those engaged in this kind of work would wish to be answered and I hope very much that the Minister will be able to do so.
Lastly, on the point raised by the noble and learned Lord, Lord Brown, about jury trials, I come from Scotland where, as it happens, there is no right to a jury trial. It is up to the prosecutor to decide whether the offence should be tried by a judge alone in the sheriff court, with a sheriff and a jury, or in the High Court with a jury. The length of sentence is affected by that decision, but there is no reason why a case of very considerable complexity should not be tried before a single sheriff. The accused has no right to object to that. It raises the issue as to whether there is not considerable force in the point of the noble and learned Lord, Lord Brown, that we are reaching the stage where a jury trial in some of these cases may need to be reconsidered.
Lord Faulks (Con)
My Lords, my noble friend Lord Carlile has summarised the arguments against the statutory instruments with his usual clarity and vigour, and I do not wish to weary the House with repetition. I would, however, like to add a few words and in doing so should declare an interest as a practising barrister. I am not a barrister who does criminal cases and I very rarely do cases where legal aid is involved. However, I have sat until recently as a recorder in the Crown Court and am thus familiar with our criminal justice system.
I entirely understand the desire on the part of the Government to reduce spending on legal aid. The LASPO Act was the Government’s first move in reducing costs. There is no reason why lawyers should be in any way immune from austerity, nor should justice be recognised as some sort of special case, up to a point. Nevertheless, what troubled many noble Lords in scrutinising that Bill as it went through the House was the risk of real injustice not to lawyers but to those who encountered the system and would be at risk of being denied access to justice. The Minister reassured those of us who were anxious, particularly in relation to Part 1 of the LASPO Bill, as it then was, and made some important concessions. However, the impact of the Act is going to need careful watching to ensure that real injustices do not result.
Lord Mayhew of Twysden (Con)
My Lords, I acknowledge that I have something to declare, which is that many years ago I used to conduct criminal cases as a member of the Bar. I recognise very well what the noble and learned Lord, Lord Woolf, was saying about the fee of two pounds four shillings and sixpence. The difference between the scenario that he described and my own was that he described people of the highest eminence accepting two pounds four shillings and sixpence as it was their duty. I was at the bottom of the heap—the opposite—and was very glad indeed to have it.
The debate so far has been of the highest quality and I shall be very brief as I do not wish to diminish the impact that it undoubtedly had on my noble friend who is about to reply. The trick that the Government have to fulfil is that they have to make provision to reduce the deficit, and must do so in a way that avoids unintended consequences. I believe that it is a tragic fact that the reduction of 30% that has been described this evening will have an unintended consequence. Fewer people will take the work and the consequence will play over to the task of reducing the deficit. It will increase the deficit for the reasons that high judicial authority has emphasised again tonight.
I want to add one additional circumstance that I can foresee. If you are doing a very long case which, as my noble friend Lord Carlile described, is one of high complexity, you become associated in the minds of instructing solicitors with that case—“Oh Mr Mayhew will not be available; he is tied up in this case which has gone on for months and with many more to come”. When you finish that case, you will find typically that there is no work left and you will have a long gap in your practice before you are instructed again. That will bear on the decision of the advocate as to whether to accept the fee that is offered. That point has not been made tonight, but it is one that is similar in character and perhaps easily overlooked.
The Secondary Legislation Scrutiny Committee, in its 18th report, has drawn attention to what has been said about these measures by three professional bodies. It has called for a more robust defence, and I look forward very much to hearing from my noble friend that the Government believe they have a more robust defence to the many points of criticism of profound weight that have been put before your Lordships this evening.
Baroness Scotland of Asthal (Lab)
My Lords, this has been an extraordinary but sad and rather sobering debate. I am grateful that, from the powerful opening by the noble Lord, Lord Carlile, until the noble and learned Lord, Lord Mayhew, sat down I have found no reason to disagree with one word that has been said, save that I shall make a few comments a little later to help clarify the views of these Benches for those who sit opposite. The reason I say “sad and sobering” is that we should be very clear that this is not a parti pris debate.
So far we have had the benefit of hearing from two former Lords of Appeal in Ordinary, one former Lord Chief Justice, the current regulator and now a very eminent member of the Bar and recorder. I declare my own interest as not only a member of the Bar, a recorder and deputy High Court judge, but someone who is in practice and who, although I have not taken legal aid criminal cases since leaving Government, certainly did in the past. The voices I have just spoken about are joined now by two former Attorneys-General of different complexions politically and, some would say, physically. This is something upon which those who are committed to justice and the rule of law and concerned about the quality of justice in our country have now spoken, and so far we have spoken with one voice.
It is very important to hear the echo of what has been said, because it is an echo of real alarm and concern. I was struck by the comments of the noble Baroness, Lady Deech, about the effect of retrospection, an issue I had intended to alight upon. I was struck by the description of the noble and learned Lord, Lord Woolf, when he talked about these provisions as “a gangrenous wound”. It is a description with which, regrettably, I wholeheartedly agree.
I was also grateful that mention was made of the Lord Chancellor’s responsibility in terms of his oath. Members of this House will be familiar with it, but I shall repeat it so that the House and others may be reminded of what the oath of the Lord High Chancellor of Great Britain is. The oath that the current Lord Chancellor swore was this:
“I … do swear that in the office of Lord High Chancellor of Great Britain I will respect the rule of law, defend the independence of the judiciary and discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible. So help me God”.
How does the Minister contend, on behalf of the Government, that that oath by the Lord High Chancellor of Great Britain is being discharged?
Let me help the House as to why I am concerned about whether the Lord Chancellor has taken that oath into account in bringing these orders forward. I know that when he gave evidence to the Select Committee he seemed to suggest that it was not possible to grant access to justice to all people at all times. That, if I may respectfully say so, is a fundamental misunderstanding of the Lord Chancellor’s role. It is his duty to ensure that there are sufficient resources so that access to justice for all people at all times can be equally made available. Moreover, the wounds that the changes proposed in these orders will inflict may so damage the availability of good access to justice that the cost will be very difficult to bear. There are those who say that they know the cost of everything and the value of nothing. Let us be clear: the value of our justice system is very high indeed.
Lord Alton of Liverpool (CB)
My Lords, perhaps a non-lawyer might be permitted to detain your Lordships’ House for just a few moments. Although I am not a lawyer, I have a daughter who has this year qualified as a barrister and should declare that. I was particularly struck by what my noble friend Lady Deech said in her remarks earlier on, when she reminded us of the deleterious effect that the Government’s policies may well have on this rising generation of young lawyers. Taken together with what the noble and learned Lord, Lord Woolf, said in his remarks about the high ideals that so many lawyers have when entering the legal profession, in pursuing this vocation, I think that the Government need to listen extremely carefully to the very distinguished contributions that have been made this evening and with such force.
I support the noble Lord, Lord Carlile, for two principal reasons. The first is that I think that the Government’s policies will significantly impede the possibility of younger people from more disadvantaged backgrounds from entering the law—the point that the noble and learned Baroness, Lady Scotland, has just made. Secondly, having represented and been associated with inner-city areas of Liverpool since I was first elected to the city council there as a student some 40 years ago—at about the time when the noble Lord, Lord Carlile, began to practice at the Bar—I am acutely aware that social justice does not just require access to health, welfare and decent housing: it also requires access to law. That was a point that I made several times during the course of the LASPO legislation and return to again tonight.
Over the past few decades, much has been done to improve the diversity of those working at the criminal Bar. However, the further reduction of barristers’ remuneration proposed by the Government has alarming social mobility implications. Criminal banisters have already sustained a disproportionate reduction in remuneration over the last decade. The noble and leaned Lord, Lord Mayhew, and others have rightly emphasised the dramatic effect that a devastating 30% reduction will have on those who are now working in the profession. In return, they are expected to work long, unsociable hours and tackle difficult and, as we have heard, complicated issues of public importance.
These further swingeing cuts are simply unsustainable and the reality is that they will deter talented individuals from middle and low income backgrounds from entering or staying within the profession. Instead, the criminal Bar will once again become the preserve of the independently wealthy. Those without independent wealth to sustain them will turn to more financially rewarding areas of practice or to another profession altogether; we heard about the alluring effect of commercial law. They will do so not out of greed but simply out of a desire to receive an income comparable to the earnings of other equivalent professionals.
Yet instead of treating criminal barristers like other professionals, the Government have asked them to bear wholly disproportionate cuts to their incomes. As the Criminal Bar Association has pointed out in its correspondence with Members of your Lordships’ House, no other public service professionals have been asked to shoulder cuts on the scale proposed by the Ministry of Justice. I think that the noble Lord, Lord Carlile, was quite right to say to us at the very outset that this is simply crude.
As a consequence of these measures, the criminal Bar will see an exodus of talent. The results will be far reaching and the consequences borne by society as a whole. That is my second point. People accused of serious crimes face the prospect of not having anyone of sufficient quality to represent them; and there will also be a lack of experience to prosecute the more serious cases in due course. As we have heard, it will also influence the make-up of the Bench as well as the years pass.
It is all too easy to forget the important part that criminal legal aid has played in ensuring a fair and just society because the criminal law is not something that impinges on the everyday life of most of us. Yet when liberty and the protection of the public are at stake, it is paramount that both the defendant and the state have quality of representation. If we accept the fundamental principle that all defendants are innocent until proven guilty, and may not have actually done what they are accused of, we should ask ourselves this simple question: “If I found myself in court accused of a serious crime and was trying to defend my innocence, who would I want defending me?”. If the answer is a highly qualified, independent and dedicated advocate, it has to be understood by us all that the price of these measures is that we will forfeit that, and justice will be the loser. It is for those reasons that the arguments of the noble Lord, Lord Carlile, deserve our support tonight.
Lord Thomas of Gresford (LD)
My Lords, it is a privilege to follow the noble Lord and the comments that were made in particular by the noble and learned Baroness, Lady Scotland. Referring back to my own beginnings, I was one of those who, having left university, was not in a position to go to the Bar as I had wished. I became a solicitor, and as a young articled clerk I instructed Lord Elwyn-Jones, leading Emlyn Hooson, in a number of cases. I was attracted by the lustre that surrounded the Bar at that time. Elwyn-Jones was a Nuremberg prosecutor, as was David Maxwell Fyfe, which my noble friend has recently had brought to his attention. Maxwell Fyfe really wrote the European Convention on Human Rights. It was the attraction of this profession that drew me, after serving as a solicitor for five years, to pay my 100 guineas to my pupil master and to enter on a different track as a barrister.
I played my part thereafter in civil cases, but more often in criminal cases, prosecuting, defending and later sitting on the Bench as a recorder. I was proud of the system in which I played such different roles. I was proud of the way in which justice could be achieved under the system that we had inherited over so many centuries. I am really sad today—a word that has been used by a number of people—that we seem to be coming to the end of that great tradition at the Bar. I know that my noble friend says no, but that is not how I see it. I agree with the noble Baroness, Lady Deech, who talked about the suffocation of the criminal Bar by these proposals. That is what I think it is.
I do not wish to repeat everything that has been said so well and ably, and with his usual eloquence, by my noble friend Lord Carlile. He has been an opponent on many occasions but I have also worked with him on a number of cases. We have worked together on some serious matters. I want to focus on the way in which entry to the Bar will be so curtailed by these provisions. When I go to see young people being called to the Bar at the various Inns of Court, particularly Gray’s Inn, it saddens me to look at them and their parents, who are so proud of them for what they have achieved and how they have worked to get their degrees to become qualified. Finally, there they are in their fresh wigs and gowns, all ready to start on a career which has been so fulfilling in my own life—they are ready for it but there are no openings.
Today, if you wish to get a pupillage, you will struggle. Very properly, you receive a minimum level of payment, £12,000 a year, as a pupil in the common law field and criminal field. Last year, a commercial set advertised that it was prepared to pay £65,000 per year to a pupil. That, I think, illustrates the huge gap between the commercial Bar and the Bar with which I am familiar. I accept so much of what the noble and learned Lord, Lord Brown, said—that we deal with people’s lives, and not just with money and contractual obligations and so on, as the commercial Bar does. We make a difference to people’s lives in the profession that we follow. These young people who have come so far will not get the pupilages—and if they do, will they ever get the tenancies?
Lord Bach (Lab)
My Lords, I declare an interest, rather an old one, in having been a junior member of the Bar doing criminal law, pretty uniquely, for many years. I was calculating a few minutes ago that the last time that I practised was some 14 years ago. I am not a Queen’s Counsel, although once or twice in this House I have been called that inadvertently—and much worse besides—and I have never sat. If anything, I speak as someone who was once a junior criminal barrister.
The House owes a huge debt to the noble Lord, Lord Carlile of Berriew, for tabling these two Motions. His speech and the speeches of noble Lords who have spoken have attacked these proposals with passion and in trenchant terms. I regret only that this important debate is being held effectively at dead of night, when the points made demand a greater audience at a better time of day, because the principles that they concern are of huge importance. All that I can say is thank goodness for Hansard.
My position on these regulations is fairly simple. Some cuts to criminal legal aid are justified; some cuts to VHCC costs are also justified. I had to make such cuts some years ago in criminal legal aid and VHCC rates. I do not resile from having to do that—any Government would have to do that at a time of economic difficulty. But frankly the percentage of cuts that is being proposed—the crude and absurd figure of 30%—seems to be much higher than any figure for which I was responsible and which can possibly be justified. I say “absurd”, because quite a lot of the burden of this will not necessarily fall just on eminent Queen’s Counsel who lead in these cases, but on junior barristers, either those being led or who sometimes in these cases are the sole advocates for a defendant. It will fall too on solicitors, which has not been mentioned: that is, solicitor advocates in court and solicitors who have to do the preparation for these very long cases. The damage that will be done to them has been described extremely eloquently already.
If my speech now becomes slightly less generous to the Ministry than others have been, I hope the House will forgive me, but one is left with a fairly strong impression that the Government really do not care very much any more whether there is a credible, high-quality legal profession practising criminal law, either now or, more importantly perhaps, in the future. We should not be surprised by what I call this recklessness. One must see it in context.
Anyone who has followed the Government’s approach to legal aid from almost the day they came into office—a point made by the noble Lord, Lord Carlile—will know that almost immediately they removed the Legal Services Commission’s grants for young trainee lawyers in social welfare law firms and advice centres. Anyone who has followed this approach will know that the Government do not care very much about the consequences of their actions, culminating in the tragedy—my word—that is Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act, which has already come close to destroying access to justice for hundreds and thousands of our fellow citizens.
To remove legal aid from social welfare law was tantamount to an attempt to kill it off. Was it ideological? It seems that way. Why would any Government have done something so ridiculous in financial terms and so monstrous in social terms, destroying a system of law that gave some access to justice, often in the form of fairly cheap legal advice, to poor people at the point in their lives when they needed it and in order that their lives could be put back on track? In exactly the same way that many noble Lords and noble and learned Lords have spoken tonight about how criminal law affects people’s lives, we must not forget how those acts of legal advice on housing or welfare benefits that have been given to people on legal aid also affected their lives in very important ways, often so that their lives could be put back on track.
It was a policy of supreme ignorance as well as utter recklessness. Now we see that Act in practice, this hard-nosed, ignorant approach to our law continues—all of it forecast in the debates that took many hours in your Lordships’ House some time ago. Law centres have been allowed to close. The exceptional cases provisions of the Act are now so rarely allowed that they might as well not exist. The anecdotes and evidence as far as domestic violence is concerned are something that this House will really have to consider at some stage in the future—all the net results of this Government’s approach to legal aid from the moment they were elected.
Here we are again. Anyone in legal circles, practising lawyers who thought that they could just keep quiet while the first stage of legal aid cuts was taking place, because all that was about was a few solicitors who did this kind of work or advice centres that advised in civil law, and that criminal law legal aid would be seriously touched, could not have been more mistaken. At least the Bar Council and the Law Society were very much part of the fight against the LASPO Bill and they should be commended for that. However, we are in this position now with this only the first of a number of orders that the House is likely to have to consider. The Government are not satisfied with the havoc—again, I chose my word carefully—they have already caused and are causing day by day and have turned their attention in a very real way to criminal legal aid and then potentially to destroying a great deal of the principles behind judicial review. All of which, no doubt, will come before us in due course.
These are all to be put into effect, at best, by statutory instrument. There is no primary legislation involved here, so the Government tell us. We have these big changes taking place with all the restrictions that statutory instrument legislation has for Parliament. All the while, this country’s deserved and historic reputation for having a legal system that protected everyone in its own way and allowed everyone some access to justice is seriously threatened by a Government who—and I do not like having to say this—seem to have so little idea of what is actually important. Instead of treasuring our legal system they are in serious danger of demeaning it.
Lord Beecham (Lab)
My Lords, I rise from the lower ranks of the legal profession and many years ago was apt to brief members of the criminal Bar, few—with the exception of the late and much lamented Lord Taylor of Gosforth—of the eminence of many of those who have spoken tonight. I ought therefore to declare my interest which is, of course, registered. I also have, like the noble Lord, Lord Alton, a paternal interest because my daughter is a barrister. She also sits as a part-time deputy district judge but she is not at the criminal Bar.
In the earlier debate tonight, I raised the issue of how the Government go about or do not go about consulting on matters of great significance. We are in exactly the same position in relation to the present proposals. The noble Lord, Lord Faulks, on the other hand, perhaps to protect himself from his colleagues, threw the question at the Opposition regarding our stance. If he looked at the record he would have seen, as my noble friend Lord Bach’s reply has indicated, that there were some cuts under the previous Government —indeed, my noble friend Lord Bach put through a 5% cut in fees. That is one-sixth of the present cut this Government is inflicting.
We made it very clear in discussions over the legal aid bill that there is a need to look at the cost of the whole system of justice, not to isolate a particular part like this and impose a massive swingeing cut on it. One can look, for example, at the Serious Fraud Office which unfortunately again is in the news, having again incurred a significant cost, perhaps because it is underresourced. In all events, there are other areas under the auspices of the Ministry of Justice that would repay attention and if we are looking for savings—and it is accepted that there have to be savings—then we ought to be looking not just at this end of the system but at the system as a whole to find sensible savings that would not impact on access to justice.
The Minister of State, Ministry of Justice (Lord McNally) (LD)
My Lords, like the noble Lord, Lord Bach, I have, on a number of occasions, been promoted above my abilities in terms of legal qualifications. I have been referred to this evening as “learned” and I was recently introduced, at a conference, as “Lord Justice McNally”. My more mundane task this evening is to set out the Government’s position on the Criminal Legal Aid (Remuneration) (Amendment) Regulations 2013 and the Criminal Defence Service (Very High Cost Cases) (Funding) Order 2013. Both these instruments were laid before the House on 1 November 2013.
Before I get into the detail of the two instruments, I want to set the legal aid transformation in context, as was requested by the noble and learned Lord, Lord Hope of Craighead. The need for reform of legal aid-funded services to ensure a cost-effective, sustainable legal aid system is recognised by all the major political parties and has been the subject of debate for a decade or more. It was the Labour Party that instituted the Carter review. It was the Labour Party that made cuts in legal aid prior to 2010 and promised further cuts in its 2010 manifesto. During the passage of LASPO, it said that it would not cut civil legal aid but would cut criminal legal aid. Now, it does not like the legal aid cuts. I still wait to hear whether the Labour Party would restore the legal aid cuts if it were to come into office in 18 months’ time.
The fact is that changes in technology and its increasingly fundamental role in the functioning of the criminal justice system demand the kind of changes to working practice and business models seen throughout the public and private sectors in recent years. The introduction of alternative business structures and an increasingly well informed customer base are examples of changes that present their own challenges, and which the legal professions must meet. Those changes are accompanied by the fact that the number of businesses providing criminal legal aid services now exceeds demand for such services. To put it bluntly, there are too many lawyers seeking the work available. New entrants to the market, new technologies, new working methods and oversupply in relation to demand are all factors that force change in any industry, sector or profession. I urge the Bar to recognise that the change is necessary to deliver efficient and effective legal services in new and innovative ways.
For our part, the Government recognise that the services the profession delivers are a vital component of our legal system and, where necessary, ensure access to justice and equality before the law. That is why, looking more widely, the Lord Chancellor has asked Sir Bill Jeffrey to review the provision of independent criminal advocacy in the courts of England and Wales, as just referred to. That review is intended to consider the experience, skills and future structures that might best support the continuing provision of quality, independent advocacy services. However, alongside the need to ensure access to justice and a healthy, sustainable legal sector, the profession must also recognise that the Government are obliged to seek the best possible value for money from the legal aid budget.
I turn now to the instruments that are the subject of this debate. They apply a reduction of 30% to the legal aid fees paid to litigators and advocates in what are known as very high cost criminal cases, although I will accept the description of them by the noble Lord, Lord Carlile, as being very high complexity cases as well. This will save £19 million per annum in a steady state. The noble Lord, Lord Carlile, will be familiar with these cases; as he told us, he has undertaken this sort of work in the past. For the benefit of others, I should explain briefly that VHCCs are the longest and most expensive Crown Court trials funded by legal aid. Under the current system, they are those cases which are expected to last more than 60 days at trial; the overwhelming majority of them relate to fraud offences of one type or another.
These cases are managed by the Legal Aid Agency under contracts with service providers, with work being agreed in three-month stages in advance as the case progresses. Typically, these cases are complex and run for a number of years; the amount of preparation involved can be enormous. Although the debate today has concentrated on fees in VHCCs, I should also mention, for completeness, that the remuneration regulations also make two other changes to the criminal legal aid scheme. As the noble Lord, Lord Beecham, indicated, they reduce fees paid to most expert witnesses involved in legally aided criminal cases by 20%. They also amend the category of work in which a provider of legal aid services can claim a fee. This is a consequence of the changes in the scope of criminal legal aid for prison law, which is being implemented through separate secondary legislation.
Lord McNally
It is very late and noble Lords have all had a very good time.
Lord Carlile of Berriew
It is very late, but this is an important debate, as has been made clear. I have one question to ask. If my noble friend thought it right that there should be an extensive consultation on the generality of legal aid, why was there no consultation on VHCC cases?
Lord McNally
This is the first time that VHCC cases have been cut by this Government. I do not think that they were cut by the previous Government. Were they? I stand corrected.
There was a consultation and this has not come out of the blue. I have been talking to the Bar for three and a half years about these cuts.
I hope we do not get an interruption from my noble friend Lord Phillips. He came in very late.
Lord McNally
No. These matters have been discussed over a long period. We received 16,000 responses from representative bodies, practitioners and other organisations, individual members of the judiciary, Members of the House of Commons and the House of Lords, individual solicitors and barristers, and members of the public. The majority of responses did not support the Government’s original proposals for reform, although there was some support for particular measures. Some, including the Law Society, specifically acknowledged that VHCCs were an area where the Government might be able to make savings.
As we said in responding to consultation, the Legal Aid Agency analysis of fraud VHCCs shows that the average value of a contract is £1 million and such contracts run for three or four years on average. Even with a 30% reduction in fees VHCCs will remain high-value, long-duration cases that, because of the way these cases are managed with regular phased payments, bring certainty of income for providers for the extended period in which they are instructed in these matters. That is why the Government believe that a reduction in fees is sustainable in this area.
We believe it is right that our reductions should affect advocates who receive higher levels of legal aid fee income, rather than those who are on much lower fee income. In 2012-13, more than half of those with fee income of more than £200,000 worked on VHCCs, compared with just 20% of those with fee income of between £100,000 and £200,000. Just 4% of barristers who earned below £100,000 worked on a VHCC in 2012-13.
Concerns have been raised about the impact of this fee cut on existing contracts. It is precisely because these cases run over a number of years that we must ensure that the ongoing fees represent value for money. We are therefore reducing rates in existing contracts where cases are at a relatively early stage and where the ongoing costs are likely to be significant. I cannot give any assurances about changing the position that we have taken on this because we are under responsibilities to make these cuts.
We have taken a fair and balanced approach to applying the new rates to existing contracts. The new rates do not apply to contracts where cases were at trial on 2 December or those that, before 2 December, were set to come to trial on or before 31 March 2014. These include cases that had a date set at any point in the past for trial on or before 31 March 2014 but that date has been vacated and a new date fixed, even if that trial date is after 31 March 2014; where the trial has taken place but there remain outstanding proceedings, such as confiscation proceedings; and where the original trial has concluded but a retrial will take place, even if the retrial is after 31 March 2014.
A number of points have been raised but I am conscious of both my time limit and the House’s. I have referred to the fact that VHCCs represent a tiny number of total cases; fewer than 1% of the total Crown Court trials over the past year were VHCCs. I understand the points that the noble Lord, Lord Carlile, was making about the returning of cases, but we will just have to see how this works out. I do not want to bandy figures about.
I hope that the Bar itself thinks very carefully about how we navigate through these matters. I believe that when a very distinguished profession talks about going on strike, it crosses a Rubicon that is very difficult to re-cross.
As for the idea of funding legal aid from restrained assets, it may be that one or more parties might put that as a suggestion in their manifesto; maybe we will see that, although I remember the debates in this House about removing jury trial from High Court cases. We have had lots of suggestions but none with the immediacy with which we can address the issue.
I accept the point that was made about the present system being bureaucratic and the hourly rate-based system not being ideal. I cannot remember which noble Lord it was—was it the noble and learned Lord, Lord Woolf?—but one of them got very close to suggesting one case, one fee, which was one of the first things rejected by the Bar when we were having those negotiations that apparently have never taken place. The fact is that we have explored alternatives, and I have no doubt that ideas will continue to be floated.
I have said to my own party and I say to all three parties that, after what has been a very painful period, we should look at how we handle legal aid. As we have said so often, although to listen to some speeches you would not believe it, since 2010 to when this exercise is finished, which is some three or four years away, legal aid will have been cut from just over £2 billion to £1.5 billion. That leaves us with a legal aid expenditure about which I will not bandy words as to whether it is the most generous in the world, but it is an extremely generous allocation of money by the taxpayer. It is incumbent on all parties to see how we can look at that kind of sum and get a better and more efficient outcome from it. That requires a willingness to contemplate change and flexibility from all parts of the legal profession. I would hope that we can look at it in that way.
I hear what my noble and leaned friend Lord Mayhew said about the sacrifices that the high-cost barristers make in losing other business and being out of the loop. However, even with a 30% reduction in fees, VHCCs will remain of high volume and long duration, with regular payments that bring certainty of income to providers. We believe that it will continue to attract lawyers once they come to see the points that are on offer.
There is no sign of a lack of young people entering the profession. We all wish the daughter of the noble Lord, Lord Alton, well in it; she certainly knows where to come for advice.
We are looking at the review under Sir Bill Jeffrey. We cannot accept all the existing contracts but we have, as my noble friend Lord Carlile knows, tried to widen that as far as possible. We had to bring in a cut-off point somewhere. Noble Lords will have heard in many other professions where they have had responsibility the suggestion, “Why don’t you put it off?”, or, “Why don’t you have a review or do it some other way?”. I wish that both the Treasury and the Government worked differently than they do. The noble Baroness, Lady Deech, has the idea that you can, as it were, go across the meadow picking flowers from here and there to finance things. The fact is that my department, as part of an overall spending review in response to a very real economic crisis, has had to take across the board cuts of 23% in 2010, a further 10% after a further review in 2012, and a further 1% in this review. We cannot go plundering other parts of Whitehall to make up the difference. We have to make hard, tough decisions about our expenditure at this moment, and try to make them in the fairest and broadest way that we can. Somebody asked whether we were also targeting other earners. The figures that I have, and I will confirm this, are that the cuts that we have consulted on were of about 7% on average. Of course we have targeted the higher earners.
Noble Lords made a number of points and I have tried to explain the context. We have had a very frank debate. I will close by saying to the noble and learned Baroness, Lady Scotland, that my right honourable friend the Lord Chancellor is well aware of his responsibilities and those of his office. I am sure that he will read the report of this debate in Hansard very carefully. I hope that in the mean time the noble Lord, Lord Carlile, will withdraw his Motion.
Lord Carlile of Berriew
My Lords, it is now 11 pm so I shall be very brief but I do want to reply to the debate. Twelve out of the 13 Members of your Lordships’ House who have spoken in this debate have spoken consistently with the same thread, criticising the Government for the introduction of these statutory instruments. As I listened to those contributions, I reminded myself of what a privilege it is to be a Member of your Lordships’ House. There were magnificent speeches, many of them from the Cross Benches, three from noble and learned Lords who have held very senior positions in the judiciary, and two from noble and learned Members of this House who have been Attorney-General on opposite sides, with very different types of practice in their experience.
I believe that your Lordships have provided my noble friend the Minster with the finest debating tutorial he could ever have had and that the Lord Chancellor could ever have had in how wrong the Government’s decision to introduce these statutory instruments has been.
Lord McNally
My noble friend interrupted me and I shall interrupt him just once. It is only for this reflection: yes, we have had a good debate and I do not doubt the eminence of those who contributed to it, but I have said it before: the legal profession must not exist in a bubble and congratulate or commiserate with itself. I sometimes wish that this House was full to the gunwales so that we could have a proper debate on these matters and see whether this unanimity of view about the sufferings of the legal profession was quite so evenly spread as a debate like this might sometimes indicate.
Lord Carlile of Berriew
My noble friend is a much liked, popular and witty Member of this House and I will not rise to the uncharacteristic and unjustified provocation of that intervention. I was about to say that I hope that the Lord Chancellor himself will read every word of this debate and will take note of what I think I described earlier as the finest debating tutorial one could have. If my noble friend is saying that all that has happened in this House in the past couple of hours has been a demonstration of self-interest by lawyers, one or two non-lawyers, judges and others who are acting in concert to defy the Government then, in my view, that demeans what has been a magnificent debate. I thank all those who have taken part for giving me the privilege that I described earlier.
I have some sympathy for my noble friend the Minister who sought to respond to the debate. He read out a familiar litany, but it was a litany without a message save the message of mistake. He allowed himself to stray into the suggestion that there had been consultation about the VHCC changes. He sought to elide into the VHCC changes consultation that had taken place on completely different legal issues. It is important to emphasise at the end of this debate that there was no—zero, zilch—consultation on these VHCC changes, and that is fundamental to the complaint that the Bar makes about the high-handed way in which this unilateral breach of contract has occurred.
My noble friend said that the Government were “under responsibilities to make these cuts”—those were his very words; I noted them as he said them. However, with great respect to my noble friend, that phrase is meaningless. The Government have the responsibility to get it right, not just to make cuts for the sake of making them. He said in relation to what is going to happen to these VHCC cases, in which there are now no advocates, that “we will just have to see how this works out”. That took my breath away. It is an acceptance that there are now cases with no advocates, that there is no plan B for these cases and that the promises that the Government made to everyone that it would all be all right on the day have simply been shown to be wrong. I would never accuse my noble friend of being incoherent but the brief that he had was full of incoherence, and we saw it displayed this evening.
At this late hour, I do not propose to divide the House but I believe that I do not need to do so. This debate has been well worth having because of its overwhelming effect of showing that the Government are wrong in what they have done with these cases and that the explanation which my noble friend sought to give just did not hold water at all. With the permission of the House, I beg leave to withdraw the Motion.
Criminal Legal Aid (Remuneration) (Amendment) Regulations 2013
Lord Carlile of Berriew
That a Humble Address be presented to Her Majesty praying that the regulations, laid before the House on 1 November, be annulled. (SI 2013/2803)
Relevant document: 18th Report from the Secondary Legislation Scrutiny Committee