Grand Committee
Arrangement of Business
The Deputy Chairman of Committees (Baroness Gibson of Market Rasen) (Lab)
My Lords, I have to inform you that if there is a Division in the Chamber while we are sitting, the Committee will adjourn for 10 minutes.
Infrastructure Bill [HL]
(10 years ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Verma
“Petroleum and geothermal energy: right to use deep-level land
(1) A person has the right to use deep-level land in any way for the purposes of exploiting petroleum or deep geothermal energy.
(2) Land is subject to the right of use (whether for the purposes of exploiting petroleum or deep geothermal energy) only if it is—
(a) deep-level land, and(b) within a landward area.(3) But that does not prevent deep-level land that is within a landward area from being used for the purposes of exploiting petroleum or deep geothermal energy outside a landward area.
(4) Deep-level land is any land at a depth of at least 300 metres below surface level.
(5) This section confers the right to use Scottish deep-level land for the purposes of exploiting deep geothermal energy only in cases where the sole, or main, use of that energy is to be, or is, the generation of electricity.”
The Parliamentary Under-Secretary of State, Department of Energy and Climate Change (Baroness Verma)
My Lords, in the UK, gas provides around three-quarters of our heating needs and a third of our electricity. However, North Sea gas is declining. By 2025 we expect to be importing close to 70% of the gas we consume. Natural gas from shale could play a crucial role in supporting UK energy security, building on our 50-year history of onshore oil and gas exploitation. I ask noble Lords to bear that in mind when weighing up the amendments we lay before the House today. I know some will, rightly, raise concerns about the impact of shale gas development on our climate goals. I see shale as a part of the transition to a low-carbon economy.
Shale gas has a role to play in this. The carbon footprint of UK-produced shale gas would likely be significantly less than coal and also lower than imported liquefied natural gas. As the Committee on Climate Change said last year, for flexible power supply and for heating and industrial use, the UK will,
“continue to use considerable, albeit declining, amounts of gas well into the 2030s”,
which will leave,
“a considerable gap between production of North Sea gas and our total demand”.
It argues that this demand,
“can either be met through imports or UK production of shale gas”,
and concludes that,
“if anything, using well-regulated UK shale gas to fill this gap could lead to lower overall lifecycle greenhouse gas emissions than continuing to import LNG. It would also increase the proportion of energy produced within the UK, improving our energy sovereignty”.
So the benefit to the UK of using home-grown shale gas is clear. It can displace a proportion of gas and oil imports. We have to face it: North Sea gas production is falling and we are becoming increasingly reliant on gas imports. Domestic shale gas could increase our energy security by cutting those imports. It can benefit the UK in terms of jobs, tax revenues and growth, mitigating some of the falling revenues from the North Sea. Ernst & Young’s recent supply chain report found that the industry could support around 64,000 direct and induced jobs. It can support the UK’s transition to a low-carbon economy by helping balance the intermittent supply of renewable energy.
The Government therefore support the development of shale gas and oil. However, it has become clear that difficulties in obtaining underground access pose a barrier to exploring this new industry. The same problem also applies to the deep geothermal industry, which is likewise at an early stage of development in the UK. There is growing interest in the role that geothermal district heating networks could play as part of the transition to low-carbon heating.
Currently, petroleum and deep geothermal energy companies must attempt to negotiate an access agreement with each landowner through whose land activities pass, no matter how deep the works. For new lateral drilling methods which can cover much larger areas underground, existing means of obtaining underground access can be disproportionately costly and time-consuming in relation to the potential benefits. Where a single landowner, or a group of landowners, refuses access, this can create significant delay and in the case of geothermal is likely to stop the project entirely. This is despite the fact that allowing underground access at depths below 300 metres is unlikely to affect the landowners’ use of their land.
These amendments therefore seek to simplify the current process by granting use of land below 300 metres in order to access petroleum and geothermal resources. Let me be crystal clear: we are not proposing any changes to surface access or to the regulatory system that deals with the potential risks associated with drilling and hydraulic fracturing. These regimes will remain the same. The Government have been clear that shale development must be safe and environmentally sound. A company looking to develop shale or geothermal would still need to obtain all the necessary permissions, such as planning and environmental permits. In addition, the onshore oil and gas industry has committed to engage with communities early at each stage of operations, as well as consulting through the planning application process. I reassure noble Lords that there are robust regulations in place to ensure on-site safety, prevent water contamination, mitigate seismic activity and minimise air emissions, and the Government are not proposing to change them.
The government amendment before the Committee follows a 12-week public consultation on our proposals. The consultation attracted a large number of responses and provided an opportunity for the public to voice their concerns. The majority of respondents included campaign text opposing hydraulic fracturing or the proposed change to underground access legislation but did not specifically address the questions to the consultation. Surveys have shown higher public support. For instance, a recent University of Nottingham survey shows that among people who are aware of shale gas, support is more than 50% and more people support its extraction than oppose it. Support for the consultation proposals among stakeholder organisations that provided detailed responses on specific issues was considerably higher than the individual responses. Stakeholder responses from the petroleum and geothermal industry unanimously supported the legislation, as did wider industry, such as manufacturing, the steel industry and engineering associations. There were diverse views among local authorities and land and farmers’ associations, with a majority of local authorities and consultancies in favour of the proposal. Most public institutions and law societies remained neutral to the proposal, often agreeing with the proposal’s rationale, but raising specific issues. Environmental groups and various civil society organisations opposed legislation. Having carefully considered the various issues raised within the consultation responses and whether any compelling new arguments had been presented, we firmly believe that the proposed policy is the right approach. The full government response has been published on our consultation website.
I will now outline our proposals, as set out in these clauses. The first new clause seeks to introduce a right to use land at least 300 metres below the surface for the purpose of exploiting petroleum or deep geothermal energy. The right is limited to these purposes. For deep geothermal energy, the right to use Scottish deep-level land is limited to cases where the sole, or main, use of that energy is the generation of electricity.
The second new clause provides details on the scope of the right of use, and further clarifies the types of ways in which the right may be exercised and the sorts of purposes for which it may be exercised. This clause includes references to passing substances through or into land at depth and includes leaving substances in that land. This applies only in relation to the use of the land for the purposes of exploiting petroleum or deep geothermal energy, so it would not, for example, create any provision for nuclear waste. It does not replace any of the existing regulatory regime, so an operator will still require all the necessary permissions, like planning and environmental permits. Indeed, this clause also ensures that the provisions grant only a right of use and nothing more, so companies will have to comply with existing regulatory requirements.
The third new clause provides the Secretary of State with a delegated power to require companies, by regulation, to make payments to landowners under whose land the right is exercised or other persons as defined by the regulation in return for the right of use. The regulation may also introduce a requirement for companies to provide specified information on these payments. The provisions are included only as a reserve power because both industries have made voluntary commitments to make a one-off payment of £20,000 to affected communities for each unique lateral well that extends by more than 200 metres. The key advantage of such a voluntary approach is to enable flexibility on the detailed arrangements. Different sites may require different arrangements depending on their characteristics. However, in case these voluntary payment schemes are not honoured, this clause will ensure that the Secretary of State can through regulation render them mandatory. Any such regulation will be subject to prior consultation.
The fourth new clause provides for a similar delegated power for a notice scheme. As with the payment scheme, the details of a statutory notification scheme would be set out in regulations following consultation. For now, both industries have committed to notifying communities of works taking place at depth, outlining the area of underground land accessed and the payment to be made. At this very early stage in the development of the shale gas, shale oil, and deep geothermal industries, the typical characteristics of a site and the typical timeframe for development are unknown. We cannot with certainty foresee the way in which industries’ activities will develop in different areas across the UK. A voluntary notification scheme is flexible so it can be adapted as the industries develop. The reserve power to create a statutory notification scheme would be applied only in case the voluntary approach proves not to be satisfactory.
The new fifth clause contains supplementary provisions concerning the powers to introduce payment and notice schemes. The clause contains provisions for the enforcement of statutory payment and notice schemes, including financial penalties for companies that breach the requirements. It also permits statutory schemes to confer functions on certain people, including the Secretary of State, such as a duty, or a requirement to consult. A sunsetting provision is included, which provides that the Secretary of State must review the payment and notice scheme provisions after five years and repeal the relevant sections if a power is not exercised within seven years and if the Secretary of State is satisfied there is no convincing case for retaining it. The Delegated Powers and Regulatory Reform Committee has recommended that regulations made by the Secretary of State to repeal these provisions be subject to the affirmative resolution procedure, and we will be looking to table an amendment to this clause before Report to that effect.
The sixth clause contains the relevant definitions and interpretations. Areas that are “onshore” are currently identified by the definition of “landward area” in regulations made under the Petroleum Act 1998. This clause includes a power to make changes to that definition.
Finally, the amendments seek to update Clauses 28 to 31 to reflect the inclusion of the new clauses on the right of use, and set out matters such as when the new clauses will come into force. We have also introduced an amendment to update the Title of the Bill.
“(c) outside—(i) Ramsar sites of international importance especially as waterfowl habitat;(ii) World Heritage Sites;(iii) Special Areas of Conservation as designated under European Council Directive 92/43/EEC;(iv) Special Protection Areas as classified under European Council Directive 2009/147/EC;(v) National Parks;(vi) Areas of Outstanding Natural Beauty;(vii) Sites of Special Scientific Interest;(viii) Nature Reserves; and(ix) The Broads.”
Baroness Young of Old Scone (Non-Afl)
My Lords, by way of an aside, it is slightly surreal to be debating an amendment to an amendment on something that does not appear in the Bill. I should declare an interest as vice-president of the Royal Society for the Protection of Birds and president of the Wildlife Trust for Bedfordshire, Cambridgeshire and Northamptonshire.
Biodiversity in our species and habitats is not in a good way in this country. The State of Nature report showed that 60% of species are in long-term decline; that is, 755 species in the UK are in danger of extinction. The 2011 UK National Ecosystem Assessment showed that 30% of ecosystem services—the services that we as human beings get from the natural world and the environment—are in long-term decline. It is not, therefore, an issue about “tweety birds”, things that crawl and flowers but the very basic services on which human life depends.
The water framework directive, that highly important piece of European legislation, was responded to by the UK Government, who said that the percentage of waters achieving “good” status by the end of 2015 would increase from 26% to 30%. Alas, we are now in decline, with 25% of waters achieving “good” status under the directive—not a great story. Some of the most important ways in which to turn that around are about making sure that those nationally and internationally important protected sites are the jewels in the crown of our ecosystem services, conservation and environment, and are properly protected so that species, habitats and waterbody quality are maintained.
My amendment would require shale gas extraction not to be permitted within these special conservation sites. I am sure that the Minister will say that the welcome reassurances we have just heard about the existing protection measures continuing should be sufficient: there is a body of European and UK law that already applies to all these sites. Alas, we see that being breached increasingly frequently. We are seeing the first signs of rise in damage to sites of special scientific interest since I thought we had put an end to that at the end of the 1980s. It is a heartbreaking turnaround.
The Committee will understand why I am concerned about the impact of shale gas extraction. There is a significant land take. The sites last for as long as 20 years. There are about 120 well pads per site. The impacts are well beyond the immediate site of entry into the substructure for extraction. There are issues such as water stress, and a recent AMEC report showed that up to 25,000 cubic metres of water per well could be required. That is not just about the abstraction of clean water, which already has many competing demands from human beings, wildlife and other uses, including industrial use, but results in waste water that has to be disposed of. We certainly do not have the waste water capacity to do that. There is water stress and water pollution. We have to be aware of the propensity to spills. The fluids used for extraction can pick up toxins, heavy metals and radioactivity from existing substances in the substructure.
Perhaps what I worry most about is habitat fragmentation and loss. We already know from our experience in the construction of onshore wind and solar technologies that unless they are very carefully handled, we see fragmentation and loss of habitat on a much wider scale than is absolutely necessary. I am not knocking those important technologies, but they need careful management. Of course we need to be aware that these sites create noise and activity such as traffic access and we run the risk of disturbance of some of the most important species.
Some 15% of the land that is under consideration for the next round of extraction coincides with special protection areas, special areas of conservation under European legislation, Ramsar sites, which are important globally designated wetland sites, and SSSIs, which are the jewel in the crown of national protection sites. An example that is very close to my heart is that 85% of the global population of pink-footed geese winter in the UK, yet two of the four main overwintering sites for pink-footed geese lie within the possible shale gas extraction sites. We have to pay real attention to those important areas. Potential licence areas also cover some of our most sensitive river systems. All nine of the Chilton chalk streams suffer from low flows as a result of overabstraction so further abstraction of water and the potential for water quality issues would be a real worry there.
The Government introduced additional planning guidance advising that there should be no shale gas extraction in national parks, the Broads, areas of outstanding natural beauty, natural beauty and world heritage sites except in exceptional circumstances where a public interest test could be shown. We welcome that, but it is not enough. It is guidance rather than having a legislative basis and does not cover sites of biodiversity importance, and our nationally and internationally important wildlife sites.
I welcome the amendments that we will debate shortly that other noble Lords have raised to introduce stronger environmental regulation around shale gas extraction and I appreciate that the Minister was keen to stress that the rights of owners of surface land and the protection of surface land remain. But additional measures are needed, hence my amendment. Removing these sensitive areas from the 14th licensing round would reduce the total area being offered for licence by just 12%. That is not a huge sacrifice in order to ensure that our most important sites remain protected and that we do not see an increase in the threat to our most globally important wildlife sites that we are already beginning to see from other pressures. I beg to move.
Lord Jenkin of Roding (Con)
I thank the Minister for her powerful explanation of the case for developing shale gas. She also mentioned the fact that this legislation and, indeed, the whole consultation extended to geothermal energy. It is about that that I would like to say a few words in support of the amendment which I have tabled to the Government’s first new clause.
I totally support the case for extending the right to underground access. It is essential, and equally essential for both shale gas and geothermal energy. One of the advantages of the Recess was that the Government’s response to the consultation was published when we had a bit of time to look at it. I have read it from cover to cover. I have to say that it was not a particularly interesting exercise. I admire very much the detailed attention which was given to the public’s replies to the consultation, and I was not in the least bit surprised that the exercise was used by large numbers of people not to address the main questions the consultation was about. It evoked a torrent of opposition from organisations and people who have declared themselves totally opposed to any form of shale gas development. One thing that rather amused me was the criticism made by some of the people who put in a response about the inclusion of geothermal energy in the same consultation, as if somehow the Government were spoiling their protest by adding something which they probably supported. Conditions about underground access and the need for a simpler process, which I totally support, apply equally well to both. That is made perfectly clear in the impact statement about geothermal activities, which says:
“Operators wishing to extract geothermal energy have to negotiate with landowners for underground access. This is a time consuming, uncertain and potentially costly process. If a landowner refuses access, that project cannot continue”,
or would go ahead only after a lengthy and expensive process.
One thing I gained from the report, the Government’s response and the consultation is just how much more needs to be done by the industry and the Government to make the case for the development of shale gas. The Government have made it perfectly clear—indeed, my noble friend repeated it this afternoon—that over the next 20 or 30 years gas is bound to play a significant role in our energy supplies and how much better that we should have indigenous sources rather than being increasingly subject to the vagaries of a flexible and perhaps unpredictable international market.
I have discussed this with the trade association that represents onshore gas developments. It entirely recognises the problem, but I was left a bit unclear about what it is planning to do about it. It is something that has to be done, and the Government certainly have to take a lead on that.
Geothermal energy is important in this context. When I started reading the paper, I was aware that I did not know nearly as much about geothermal energy as I should. I know that my noble friend Lord Teverson is very knowledgeable about it—he has geothermal in his part of the country, Cornwall—but I was not, so I asked a number of people to explain to me what the potential is, how it should be developed and what they were doing about it. I found that immensely interesting.
I do not propose to use this speech to deliver a lecture to noble Lords, but I will make three short points. Geothermal energy promises to be part of the future energy mix of the United Kingdom. It offers a supply of secure, low-carbon energy without the variability of wind and wave. It is derived from heat radiating from the centre of the earth and must not be confused with ground-source heat from solar warming. That is quite important: one is talking about sources of heat that may be a kilometre, a kilometre and a half or even two kilometres deep.
Lord Borwick (Con)
My Lords, I welcome the Government’s amendments. They are critical to allow the shale gas industry to get on with the job of extraction. Furthermore, these amendments involve no disruption to families or communities.
The Government have said that the current rules for agreeing subsurface land access are time-consuming, uncertain and costly, as my noble friend mentioned. Currently, landowners own the land to the centre of the earth. This means that companies involved in shale gas have to negotiate for access to land thousands of metres below the surface, where there is no possible impact to households. However, given that lateral wells could extend for several kilometres, this could involve hundreds or thousands of individual negotiations and make the industry unworkable. On top of this, Greenpeace has set up a campaign—I believe it is called Wrongmove—specifically designed to use this legal loophole to stall the industry by asking people to not allow land access rights. It is important that we get a move on with shale extraction; such delaying tactics will slow the process right down.
These amendments are welcome. They would bring shale into line with other industries, such as coal and telecommunications, which already drill and lay pipes below people’s homes at a much shallower depth. The measures apply only to drilling 300 metres or more below the surface, and the proposals will not impact the robust regulations for shale gas drilling. The Royal Society has concluded that the industry can be undertaken safely. My noble friend the Minister mentioned that it will not affect people on the surface. Indeed, if people on the surface can actually detect that somebody is drilling a mile down beneath their land, they will be in such a state of technological advance relative to other human beings that I am sure they will be able to make a fortune out of that ability to detect fracking. However, I wish that legislation in this area would not insist on the word “petroleum” to refer to everything other than petrol. I appreciate that there are some technical reasons, but it really does confuse matters.
I am very much in support of these amendments.
Lord Whitty (Lab)
My Lords, I have an amendment in this group, Amendment 95ZBH, to go with Amendment 95ZBG. Those noble Lords who are familiar with the proceedings of the Energy Bill and the Water Bill will know that my proposition here has appeared before your Lordships in a different guise in both those proceedings. I am reasonably convinced that shale gas and shale oil should be part of our energy mix. I am somewhat sceptical about the exaggerated claims of the transformational effect of having a supply of shale gas within the UK on our total energy mix, but that is for the future.
I do not wish to impede the proper exploration or delivery of shale gas and oil. However, the Government have to recognise that some reassurance is required. It is not simply about campaigns and nimbyism and general antagonism towards shale gas and fracking; it is a very realistic, logical and understandable apprehension of what impact could result from widespread use of this technology. As I say, I do not wish to impede it, except in certain respects, to which I shall come later. However, I implore the Government to recognise that, if they are to give the go ahead to widespread use of drilling, both exploratory and delivery, of shale and oil through fracking, the public need reassurance about the risks. Secondly, they need reassurance that the proper regulation covers them which, by and large, the Government have managed to assure me is there. Thirdly, I am less reassured about the degree to which the enforcement of those regulations can be guaranteed by the various bodies, particularly the Environment Agency, local authorities and the HSE. At the moment, the resources available to those bodies are being squeezed rather than the opposite. While I have faith in those organisations—and both the noble Baroness, Lady Young, and myself have had some experience of the Environment Agency—they have the ability to do it but not currently the staffing or resources to deal with widespread use of fracking and drilling. Therefore, we need reassuring on the level of resources as well as the rigorousness of enforcement.
The final thing on which we need reassurance concerns the public’s general apprehension that, despite the fact that we have good regulation and that in general the regulations will be enforced, there could be some breach, disasters or unforeseen effects from a major new technology—and a very costly one locally and potentially more widely. History teaches us that we have had previous experience of this. In many ways we know the great benefits which were brought about by the development of the coal industry and, most of us would argue, the nuclear industry, but they have also caused serious risks and serious damage to our environment. No provision was made in the early days of the coal industry—why would it be?—or indeed the early days of the nuclear industry for the contingencies of clear-up of the waste and other damage which might be caused. If we are moving to a new phase of technology, we should begin to make provision for ensuring that the industry that is licensed to undertake shale fracking and drilling has the wherewithal to meet any potential disastrous outcome.
My previous amendments to the earlier legislation on energy and water were slightly more complicated than this, so I have tried to make it a bit simpler and also to give the Government some flexibility. The Government could do this in a number of ways. They could require as a condition of the licence that a contingency fund is established by an individual fund or they could require that an individual firm donates to a nationwide or region-wide fund. My amendments therefore leave that with the Secretary of State and the form of the regulations entirely with the Secretary of State, but a contingency fund for that liability needs to be established in one way or another. I think that my amendment makes that principle clear. The Government may not be prepared to accept the precise wording but an indication that in principle they understand and accept that argument would be welcome.
Again looking back somewhat historically, I say two other things. First, the Government make a lot of the fact that this is nothing new—that we have had onshore wells in the UK for decades. I know that in my adopted county of Dorset there is a significant amount of onshore oil drilling. However, it is also a fact, which I was not aware of until relatively recently, that over the last 100 years licences have been given for onshore drilling mainly in England at more than 2,000 wells. For 53% of those wells, most of which were defunct years ago, the ownership is unclear. That means that the liability is unclear and it also means that if at some stage it is found that some damage has been done, we will not know who is liable.
Switching to looking forward, if we are now giving licences to drill to a number of different organisations, some of which are relatively small companies, we need to have the reassurance that in the future—and it may be decades in the future—they will have the wherewithal to meet the costs of clearing up that damage. That is what my amendment seeks to achieve. As I said, I am not wedded to the wording. I can make it much more complex again if the Government insist or they could make it much more complex themselves, but I would like an indication of support in principle for my amendment.
While I am on my feet, I express support for the amendment of the noble Lord, Lord Jenkin, and the reference to heat, albeit that it is not entirely clear why it is necessary and why the Scottish dimension is different from that of everybody else, but certainly heat from geothermal needs to be referred to in the same context as power.
Secondly, in general I support the overall approach of the amendment in the name of the noble Baroness, Lady Young. Surely, at least in relation to national parks, it must be clear that there should not be any above-ground drilling. At the very least, I hope that the Government will be prepared to accept that. A wider range of sites, which I would also like to be protected, is designated in the noble Baroness’s amendment. However, it is pretty clear that the population, whatever their views on fracking and drilling in general, do not want any intrusions into our national parks.
Lord Teverson (LD)
My Lords, I very much support the amendments of my noble friend the Minister. The socialist in me would say that I do not see why individual landholders should have particular rights over ground more than 300 metres deep. It does not in any way disturb their properties above; 300 metres is a long way down. Certainly all shale gas, conventional gas or oil, geothermal or hot rocks geothermal extraction takes place below that level.
I thank my noble friend Lord Jenkin for his excellent exposition of geothermal; I can see that the exchange of information will be more than two-way in the future and he will quickly overtake me on this issue. There has been an uncertain legal position over the right to heat; how do you define heat? It is not a substance but a characteristic of substances that you then extract. These proposals make the situation absolutely clear to developers so that geothermal extraction can start to take place and investors can have some confidence in this form of energy.
I had a great experience earlier this month. I went to a quarry called Rosemanowes, near Penryn, some 10 miles away from my home. More than 20 years ago, the then DTI carried out some boring for geothermal experimentation there. Under DECC’s Energy Entrepreneurs Fund, an organisation called Geothermal Engineering Limited has been able to reuse that borehole by putting down another polypropylene pipe for 1.5 kilometres. Water was pumped down and came back up from that depth at a temperature of 60 degrees. The company reckoned that they could increase it to 90 degrees. Obviously, the further you go down the more you can increase the temperature. With the renewable heat incentive introduced by the Government, deep geothermal heat becomes possible. As my noble friend Lord Jenkin said, in the short term, extraction of heat from geothermal will be far more important than the potential for electricity generation; you have to go down to some 9 kilometres to increase the temperature to 200 degrees. With much smaller investments, there is potential to reuse existing boreholes —the noble Lord, Lord Whitty, said that there are 2,000 scattered around England—for geothermal heat. That is why I particularly welcome these new clauses.
I predict that in the medium to long-term future, geothermal will be far more important than shale gas. I also think that the shale gas revolution, which I am not against as a substitute for North Sea oil strategically in our energy security, is probably overhyped. However, if it can be made to work under exacting environmental standards, I do not want to get in its way. I therefore welcome these clauses and accept that they must be considered within the context of very strict environmental control and licensing outside this piece of legislation.
As to some of the other amendments, I agree with my noble friend Lord Jenkin and do not understand why there is an exclusion regarding geothermal energy. I agree also with the noble Baroness, Lady Young, that there should be some specific restrictions in the legislation. I am not sure the whole of her list should be included but we need to be firm about certain areas, and it would be useful if it were stated in primary legislation.
I very much agree with the objectives of the noble Lord, Lord Whitty, but am not sure about some of the detail. Why do we need a whole 12 months of monitoring beforehand, looking at base data? I am sure there are all sorts of technical reasons for that but I wonder if they go a little far sometimes in standing in the way of a development that can go ahead. I agree that there are a number of areas that we have to be very careful about. Whether those are put in secondary legislation or in the Bill, I am not sure. I congratulate my noble friend on bringing these amendments forward. They will do great things for our energy mix in future.
The Duke of Montrose (Con)
My Lords, I must apologise to the Committee as I have not read the consultation response and so am not up on all the issues that have been looked into. I declare an interest as an owner of land in Scotland.
As we venture into this field of land at a depth of more than 300 metres and questions of ownership and interest, I just wonder whether all aspects have been looked at. One thing that is quite useful is that all coal, petroleum and so on are in the power of the Government but there is a chance that, once a shale extraction site has been established and there are large channels out under various properties, people may find that something else can be developed within that property. That might be coal gasification or something like it at deeper levels. I do not know how deep coal mines go in this country. I hope, with any luck, that they are not more than 300 metres but some coal mines are very deep indeed. One has to think of what effect establishing the shale gas network will have on other interests within the land.
I was very interested in the noble Lord, Lord Whitty, talking about the knowledge of the Environment Agency in monitoring this. In fact, it may well be that the skills that my noble friend Lord Borwick referred to in being able to detect deep drilling will become rather more vital. Presumably the Environment Agency can tell that drilling is more than 300 metres deep. It would be perfectly possible to drill a hole 300 metres deep and then put out side-feelers at less than 300 metres, saying “Oh, but we drilled to the depth we needed to”. That is where more surface problems might arise.
I guess that the question of why heat is not included in the Scottish powers is that we did not reserve heat to Westminster when we passed the Scotland Act. No doubt the Minister will tell me what the correct answer is on that. The other thing I thought of is this: supposing this network is established at great cost and somebody then does something to damage it—certainly an earthquake would damage it but you could not blame anyone for that—what rights do the owners of a shale extraction business have to their assets that are underneath other people’s property?
Baroness Worthington (Lab)
I will speak to the Government’s amendments to the Infrastructure Bill and to Amendment 95ZBE in my name. We have had an excellent debate this afternoon. The Labour Party’s commitment to environmental protection is absolutely steadfast. We have an excellent track record of delivering protection for the environment in government. We were the Government that passed the Climate Change Act and the Countryside and Rights of Way Act. We also established the national parks. There should be no doubt about our desire to enhance and protect our environment, and tackle climate change. That said, we do not oppose the extraction of new fossil fuels in this country on principle. However, we will insist that they respect environmental limits at both a local and global level.
I turn to the specific issue of trespass, which these clauses mainly address. They deal with a legal anomaly that was established relatively recently by legal precedent. We believe that this anomaly should be addressed and we do not agree that this somehow takes away a long-established right that people have held dear. It is certain that a legal precedent will be used to hold up the proceeding of geothermal and potentially fracking. People are saying that we need judicial scrutiny of each and every incident of fracking, but that seems to me quite an inefficient and wasteful use of judicial time when we have existing systems for ensuring that these projects go ahead under tight limits.
Equally, I have some sympathy with the numerous civil society groups that have now set themselves in opposition to fracking. My reason is that, unfortunately, this whole issue has been handled so appallingly badly that there is now a deep sense of mistrust and opposition, which is very genuine and heartfelt. Polling shows that as much as a quarter of the population is quite vehemently opposed to fracking, a quarter is supportive and a half does not care, but that first quarter will be vocal and will want to have its voice listened to. The opposition has grown because of the way that this matter has been presented to us. It was offered as a silver bullet to all our energy needs. We were told that this was going to drastically reduce costs and create a huge number of jobs, and that was the basis on which it was promoted.
I was very interested to listen to the Minister’s speech today, which was very different in tone. The emphasis was on energy security and climate change benefits relative to other sorts of fossil fuels. That is very welcome because that is the area where fracking has a role to play in terms of potential security of supply. It is certainly also true to say that, done well with the proper environmental protections, fracking, and fracked gas in particular, can have a significantly lower carbon footprint than imported sources of gas.
I think that there has been a certain amount of overhyping and a certain naive belief that we can look across the Atlantic at what has happened in the US and simply import it here. I am sure that those parallels have been drawn by various people in the Government. That is unfortunate because the US does not have a reputation for strong environmental regulation—quite the opposite. It has also until very recently set itself against action on climate change. Therefore, one can see how the Government saying that we are going to do what the US has done has necessarily upset people and caused them to be deeply suspicious. It is also true that we are in a world where we are trying to take action to tackle climate change, and this is a potential new source of fossil fuel which is being brought to the market and which would otherwise stay in the ground.
Therefore, I understand where the opposition is coming from on this but I do not think that the solution is to hold up this new source of energy through exploitation of an obscure trespass precedent. I think that the answer is to make sure that we have very strong environmental protections and regulations, and a number of the amendments that we have tabled today have been put forward with that precise aim in mind.
Our amendment is part of our attempt to introduce stronger environmental regulations for fracking for geothermal and gas. We will see fugitive emissions from fossil fuel activities but at the moment there is not really a government policy or an environmental approach to such emissions in this country. My noble friend Lord Whitty pointed out that we have been extracting fossil fuels onshore for a couple of centuries and that we have had some experiences. However, relatively speaking, climate change is quite a new thing and fugitive emissions have not been considered to be an issue before. There is of course monitoring of these facilities but mainly from a health and safety perspective. Companies do not like to have obviously dangerous concentrations of methane because it is potentially explosive, which is a health and safety issue and could damage equipment. There is an incentive for them to do that sort of monitoring but there is little incentive to do monitoring that relates to climate change. Our concern is that, overall, if we are going to see this industry develop—and I remain relatively sceptical that it will happen on the scale that some people hope—we should do this firmly in the knowledge that it must be monitored and managed in terms of our climate change targets and carbon budgets.
Baroness Verma
My Lords, I thank all noble Lords, in particular my noble friends Lord Borwick, Lord Teverson and Lord Jenkin, for their support for the amendments. The debate has been informative and measured. I hope, in responding to the amendments, that I can reassure noble Lords and address some of the concerns that have been raised. If I do not satisfy noble Lords today I will read Hansard and write back to them in fuller detail.
The amendment in the name of the noble Baroness, Lady Young of Old Scone, would exclude these proposals at a range of locations, including national parks, the Broads and areas of outstanding natural beauty. She called them the jewels of our great country. Companies will still need all their other permissions to be in place before accessing underground land. Sensitive areas would be protected in exactly the same way as they are now. The Government have recently clarified the strong protections that exist for these areas. Where applications represent major development, planning permission can and should be refused in national parks, the Broads and areas of outstanding natural beauty except in exceptional circumstances where it can be demonstrated they are in the public interest.
Applicants for licences will also have to show that they understand the environmental sensitivities of the area applied for and are ready and geared up to address them. They will have to consider the implications of the new planning guidance. We do not intend to include any exemptions to these in our proposals, because we believe that the existing regimes have already been clarified to allow for these sensitivities.
The noble Baroness also asked whether this clause would lead to water shortages. Where water for fracking operations has been provided by local water companies, they are obligated to produce and update every five years a long-term plan that has contingency reserves in case of drought. Therefore, water companies will always assess the amount of water available before providing it to operators. The Environment Agency has said that it will not license abstraction above environmentally sustainable levels. The amount of water used for fracking is controlled by an abstraction licence specifying the maximum amount that can be used.
My noble friend Lord Jenkin very eloquently laid out the potential of geothermal—far better than I did. His amendment proposes to extend the right to use deep-level land for geothermal energy where the main use of that energy is, or will be, the generation of heat, as well as electricity. He also asked about Scotland. My noble friend the Duke of Montrose was able to respond to and answer that question for me by saying that the amendment includes geothermal energy for the purpose of electricity generation because, under the Scotland Act 1998, generation is a reserved matter. So the use of deep geothermal energy for other purposes is devolved to the Scottish Government and, for that reason, we have had to exclude it from clauses; however, we are in discussion with the Scottish Government as to whether they wish to extend the scope to cover this area of heat generation.
My noble friend Lord Borwick asked why we used the word “petroleum”. Licences to exploit oil and gas in the UK are awarded under Section 3 of the Petroleum Act 1998, and that Act permits the Department of Energy and Climate Change to grant licences to search for, bore for and get petroleum. So we use “petroleum” in the context of the Bill because the licences granted to operators are petroleum licences under the 1998 Act.
I turn to the amendments of the noble Baroness, Lady Worthington, to which the noble Lord, Lord Davies, has put his name. The purpose is the production of a report on fugitive greenhouse gas emissions from onshore energy extraction, and that the report be produced six months after the passing of this Bill, and will include,
“monitoring, reporting and managing of existing and future fugitive emissions”.
I draw noble Lords’ attention to the fact that these fugitive emissions are reported already at a national level on an annual basis, as part of the UK Greenhouse Gas Inventory. The detailed methodologies and data sources used to inform these emission estimates are provided in that report, which is publicly available.
The noble Baroness of course raises the concerns of certain groups, and we should take all concerns raised by all people very seriously. However, we must remain committed to ensuring that we work absolutely to the rigour of the regulators. As I set out in my opening remarks, fracking will enable us to reduce our carbon footprint. I know that both the noble Baroness and I share concerns about environmental impact, and we work hard and closely together. I am very pleased that the Opposition agree that we want to ensure, first and foremost, that it is environmentally acceptable to reduce our carbon footprint and work towards reducing carbon emissions. I have certainly never felt that the Government have seen fracking as the silver bullet. What I have seen and heard many times over is that it is part of the wider energy mix that we need to have in our country to ensure that we have energy security and less dependency on outsourcing it from international markets.
I turn to the amendment proposed by the noble Lord, Lord Whitty, for the establishment of a contingency fund by undertakings engaged in the onshore oil and gas industry in order to meet the cost of any environmental or economic damage caused as a result of onshore oil or gas activities. Let me make it clear that the operator is liable for the shale gas well and any damage or pollution it may cause. When operations finish, the operator is responsible for safe decommissioning of the well and for restoring the site to its previous state or suitable condition for reuse. Regulators and controls are in place to minimise risks and any impact on landowners. Any one of these regulators will consider individual concerns about impacts, as far as they fall within their responsibilities. If any environmental damage were to occur, then, in accordance with statutory requirements and government policy, remediation of the damage would be dealt with under the main regimes for dealing with contamination. These regimes provide for the remediation of environmental damage and contaminated land, including water, and apply to the extraction of both petroleum and deep geothermal energy. Taken together, if a company causes damage, harm or pollution to the environment, companies can be required under these regimes to remediate the effects and prevent further damage or pollution. This is the same approach that applies to other industries and we believe that the existing law is robust.
At present, if a shale gas operator becomes insolvent and no rescue mechanism for the company can be found, in limited circumstances the liability could ultimately pass to the landowner. Environmental regulators and planning authorities have the power to require upfront financial bonds to address this risk wherever they deem this necessary. This is more expensive for companies than a group scheme would be but it provides the reassurance that neither taxpayers nor landowners will be left to foot the bill. As a less expensive alternative to upfront bonds, my department has been working with the industry’s trade body, the UKOOG, the onshore operators group, to ensure the development of an industry scheme that will step in and pay for the liabilities in this situation and any other where the liable company cannot be identified.
Baroness Young of Old Scone
I thank the Minister for her response to my amendment to her amendment but I do not think that I am convinced. At the very least, if the guidance proposed for national parks, the Broads, AONBs and World Heritage sites is all that is on offer, can we at least have that guidance expanded to special protection areas, special areas for conservation and SSSIs? It seems a shame that we are getting reassurances on landscape but not on biodiversity when the UK is already failing its biodiversity internal scorecard. However, at this point, I beg leave to withdraw the amendment.
Lord Jenkin of Roding
Lord Jenkin of Roding
My Lords, I am completely convinced by my noble friend’s reply and am interested to know that the Government are in discussion with the Scottish Government about heat being used. I think that we need to follow this up, but in the mean time I am very happy not to move this amendment.
Baroness Worthington
“(6) No later than 6 months after the passing of this Act, the Secretary of State must, in consultation with the Committee on Climate Change, publish a report on fugitive green-house gas emissions from on-shore energy extraction in the UK.
(7) The report must include proposals for the measurement, monitoring, reporting and managing of existing and future fugitive emissions.”
Baroness Worthington
My Lords, I am afraid that I am not reassured by the noble Baroness’s reply either, welcome though it was. It is good that this is being captured and possibly reported, but my point was that I do not think that it is capturing all the point sources as accurately as it could. More than that, somebody reporting emissions is not really the nub of the problem; it is managing those emissions down and ensuring that they stay within a carbon budget. I believe that the Government need to think again about whether they have a policy package in place to deal with fugitive emissions. I do not think that they do. Therefore, this amendment is important, but at this stage I am happy not to move it.
Baroness Verma
“Further provision about the right of use
(1) The ways in which the right of use may be exercised include—
(a) drilling, boring, fracturing or otherwise altering deep- level land;(b) installing infrastructure in deep-level land;(c) keeping, using or removing any infrastructure installed in deep-level land;(d) passing any substance through, or putting any substance into, deep-level land or infrastructure installed in deep- level land;(e) keeping, using or removing any substance put into deep-level land or into infrastructure installed in deep-level land.(2) The purposes for which the right of use may be exercised include—
(a) searching for petroleum or deep geothermal energy;(b) assessing the feasibility of exploiting petroleum or deep geothermal energy;(c) preparing for exploiting petroleum or deep geothermal energy;(d) decommissioning, and other activity which falls to be continued or undertaken, in consequence of activities undertaken for the purposes of exploiting petroleum or deep geothermal energy.(3) The right of use includes the right to leave deep-level land in a different condition from the condition it was in before an exercise of the right of use (including by leaving any infrastructure or substance in the land).
(4) The right of use—
(a) does not give a person (“R”) any power which is greater than, or different from, the power which R would have had if the right had been granted by a person legally entitled to grant it; and(b) does not relieve a person (“R”) from any obligation or liability to which R would have been subject if the right had been granted by a person legally entitled to grant it.(5) Section (Petroleum and geothermal energy: right to use deep-level land) and this section bind the Crown.”
Baroness Verma
“Payment scheme
(1) The Secretary of State may, by regulations, require relevant energy undertakings to make payments in respect of the proposed exercise, or exercise, of the right of use.
(2) The regulations may require payments to be made—
(a) to owners of relevant land or interests in relevant land;(b) to other persons for the benefit of areas in which relevant land is situated.(3) The regulations may—
(a) specify the amount or amounts of payments;(b) make provision for determining the amount or amounts of payments.(4) The regulations may require relevant energy undertakings to provide the Secretary of State, or any other specified person, with specified information about—
(a) the proposed exercise, or exercise, of the right of use;(b) the making of payments in accordance with regulations under this section.(5) Before making any regulations under this section, the Secretary of State must consult such persons as the Secretary of State considers appropriate.”
Lord Whitty
“(c) make provision for any contingency fund prescribed by the Secretary of State under subsection (3A).“(3A) Regulations shall enable the Secretary of State to require the establishment of one or more contingency funds either by a single energy undertaking, or by a number of energy undertakings or by all undertakings engaged in the on-shore gas and oil industry, and such a contingency fund shall be available to meet the cost of unforeseen damage to the environment or economic damage to any person or persons arising from the operation of oil or onshore gas activity.”
Lord Whitty
My Lords, I am not entirely convinced by what the Minister said. Indeed, her reference to the need for an industry scheme for potential compensation where it is unclear where the liability lies shows that there is an issue here. I would be grateful if between now and Report the Minister could let us have some more information on that and on the bond scheme to which she referred, because I am still broadly of the opinion that this needs to be underwritten by legislation. Subject to that, I shall not move the amendment.
Baroness Verma
“Notice scheme
(1) The Secretary of State may, by regulations, require relevant energy undertakings to give notice of the proposed exercise, or exercise, of the right of use.
(2) The regulations may require relevant energy undertakings—
(a) to give notice—(i) to owners of relevant land or interests in relevant land;(ii) to persons of other specified descriptions;(b) to display notice within the area in which relevant land is situated or elsewhere;(c) to publish notice (otherwise than by displaying the notice).(3) The regulations may make provision about the information which the notice is to contain, including provision about information relating to—
(a) any payment scheme regulations which are in force;(b) the application of any payment scheme regulations to the proposed exercise, or exercise, of the right of use;(c) the method for obtaining a payment under any payment scheme regulations.(4) The regulations may make provision about the manner in which notice is to be given, displayed or published, including provision requiring notice to be—
(a) displayed at specified places or places of specified descriptions;(b) published in specified publications or publications of specified descriptions.(5) The regulations may require relevant energy undertakings to provide the Secretary of State, or any other specified person, with specified information about—
(a) the proposed exercise, or exercise, of the right of use;(b) the giving of notice in accordance with regulations under this section.(6) Before making regulations under this section, the Secretary of State must consult such persons as the Secretary of State considers appropriate.
(7) In this section “payment scheme regulations” means regulations under section (Payment scheme).”
“Payment and notice schemes: supplementary provision
(1) Regulations under section (Payment scheme) or (Notice scheme) may make provision about the enforcement of relevant requirements, including provision for the imposition of financial penalties in respect of breach of relevant requirements.
(2) Regulations under section (Payment scheme) or (Notice scheme) may confer a function on—
(a) the Secretary of State, or(b) any other person, apart from the Scottish Ministers or the Welsh Ministers.(3) The functions that may be imposed include—
(a) a duty (including a restriction or prohibition);(b) a function involving the exercise of a discretion;(c) a requirement to consult.(4) The provisions of sections (Payment scheme) and (Notice scheme) and this section which specify particular kinds of provision that may be made in regulations under section (Payment scheme) or (Notice scheme) do not limit the powers conferred by that section to make such regulations.
(5) The Secretary of State must carry out a review of sections (Payment scheme) and (Notice scheme) and the preceding provisions of this section as soon as reasonably practicable after the end of the period of 5 years beginning with the day on which they come into force.
(6) The Secretary of State must by regulations—
(a) repeal section (Payment scheme), and make any consequential amendments (including repeals) of the other provisions of this Act that the Secretary of State considers appropriate, if the relevant conditions are met in relation to the power under section (Payment scheme); (b) repeal section (Notice scheme), and make any consequential amendments (including repeals) of the other provisions of this Act that the Secretary of State considers appropriate, if the relevant conditions are met in relation to the power under section (Notice scheme).(7) The relevant conditions are met in relation to the power under section (Payment scheme) or the power under section (Notice scheme) if—
(a) that power is not exercised within the period of 7 years beginning with the day on which that section comes into force, and(b) the Secretary of State is satisfied that there is no convincing case for retaining that power.”
“Interpretation
(1) For the purposes of deciding whether land is deep-level land—
(a) the depth of a point in land below surface level is the distance between that point and the surface of the land vertically above that point; and(b) in determining what is the surface of the land, any building or other structure on the land, and any water covering the land, must be ignored.(2) In sections (Petroleum and geothermal energy: right to use deep-level land) to (Payment and notice schemes: supplementary provision) and this section—
“deep geothermal energy” means geothermal energy in deep-level land (including in water or any other fluid in deep-level land);
“deep-level land” has the meaning given in section (Petroleum and geothermal energy: right to use deep-level land)(4);
“landward area” has the same meaning as in the Petroleum Licensing (Exploration and Production) (Landward Areas) Regulations 2014 (see regulation 1(2) of those Regulations);
“petroleum” has the same meaning as in Part 1 of the Petroleum Act 1998 (see section 1 of that Act);
“relevant energy undertaking” means a person who proposes to exercise, or exercises, the right of use;
“relevant land” means land in respect of which the right of use is proposed to be, or is, exercised;
“relevant requirement” means a requirement imposed by regulations under section (Payment scheme) or (Notice scheme);
“right of use” means the right conferred by section (Petroleum and geothermal energy: right to use deep-level land);
“Scottish deep-level land” means deep-level land in Scotland or beneath waters adjacent to Scotland;
“specified” means specified in regulations under section (Payment scheme) or (Notice scheme);
“substance” includes electricity and any other intangible thing.
(3) The power of the Secretary of State to make regulations under section 4 of the Petroleum Act 1998 includes power to make such amendments of the definition of “landward area” in subsection (2) above as the Secretary of State considers appropriate in consequence of any other exercise of the power under section 4 of the 1998 Act.”
Baroness Worthington
“Shale gas extraction: baseline monitoring
(1) No shale gas extraction may take place before the operator has measured the baseline levels of methane in the groundwater over a 12 month period.
(2) After section 199(1) of the Water Resources Act 1991 (notice etc. of mining operations which may affect water conservation) insert—
“(1A) Notices under subsection (1) must, in the case of shale gas extraction, include baseline levels of methane in the groundwater.
(1B) Where a notice under subsection (1) includes baseline levels of methane in the groundwater, the Agency must issue a notice under subsection (2) requiring the levels of methane in the groundwater to be measured over a 12 month period.””
Baroness Worthington
I shall speak also to Amendments 95ZBN and 95ZBP. This carries on from where we left off in the last debate. As we said, we are absolutely committed to improving our environment and meeting our legally binding climate change goals. A key aspect of any new development, specifically an energy development based on fossil fuels, is that we need to ensure that the industry is set up in a way that is fit for the 21st century and the challenges faced by the 21st century.
We understand that this industry is really just getting going, but that is not the case everywhere. In the US, we have seen the industry grow very quickly with minimal regulation. That has been the cause of a high degree of concern. There are conflicting reports, but it seems that you can have increased methane emissions to air and groundwater from these activities.
Our first amendment would require that we get a handle on this issue and have a process for establishing a baseline of methane emissions to groundwater. Obviously, this is a complex issue and the exact wording of the amendment may not be precisely as it would need to be to address the problem. However, we have tabled it now because we are absolutely committed to ensuring that this is done in the right way. We hope that the Government can share that concern and goal. As I mentioned, the existing monitoring of methane is more geared towards health and safety than environmental concerns. That is what I allude to when I say that this must be governed in a way that is fit for the 21st century, where those global environmental concerns now have greater weighting than they have done.
There is obviously the question of how you go about the monitoring. Also, as touched on in the previous debate, there is the question of the cost. I hear anecdotally that the Environment Agency recently put in an application to the department for a sum of money to enable a very accurate form of laser monitoring to take place. That request for additional funds was declined. Are funds being made available so that the Environment Agency can do this job properly, so that we can start out on the right foot and ensure that we are using the best technologies that we know exist to get a good and accurate data set to enable us to manage this?
Amendment 95ZBN covers a number of different issues, beginning with the mandatory use of environmental impact assessments. At the moment, we know that the industry is volunteering to do environmental impact assessments for all fracking applications but we do not think that a voluntary approach is the right way forward. We also heard evidence from a number of groups that they see applications coming in that are conveniently sized at 0.9 hectares, which is just a tiny fraction below the statutory requirement. If you are a hectare in size, you must conduct an EIA. The RSPB made representations to us that it has been asked to comment on planning applications where no EIA has been shared with it. Even if the industry says that it is going forward on a voluntary basis, in practice it is not at all clear that that is actually the case. I suppose that the particular issue is that the footprint of fracking seen above ground is quite small but its impacts in terms of the wider local and global environment can be extensive. There is definitely a need for an EIA, irrespective of the size of the footprint of the site, because it has such potential extended impacts from its operation.
Among those impacts is the use of fracking fluids. This is another great difference between the UK and the US. In the US, there was minimal regulation: you could literally do what you liked and did not need to tell anybody. That has not given the industry a good reputation. We do not want that repeated here. There is a need to disclose the fracking fluids. Obviously, when they are a mile down they are perhaps not of huge concern to local populations, but they come back up and there is the question of their handling above ground. It is not just a question of saying that they are too far away for us to care about. These fluids obviously have to get into the ground, but then they come out again, so there needs to be proper disclosure. Only then can you build up the trust needed to get the social licence for these projects to go ahead.
The third element is that water companies should become statutory consultees. This touches on another and controversial aspect of fracking: its use of water. Water often powers the fracking and the demand for water is extensive. We are fortunate in the UK that, at certain times of year, we do not have a shortage of water, but at other times of year we do. We have the issue of abstraction from water courses. We would not want to see this industry exacerbate areas already under stress. I know that the industry will say that we are moving to recycled use of water, but in reality a significant proportion of the fracking fluid stays underground and does not ever come back, so recycling is only part of the solution. There is also the potential for pollution of wastewater and drinking water sources, so it is correct that the water companies should be statutory consultees on applications.
Lord Young of Norwood Green (Lab)
My Lords, I wanted to address this series of amendments not because I am opposed to any of them but to make a plea for looking at the genuinely objective evidence that is available. Durham University is conducting a lot of independent, objective analysis of fracking incidents and the potential threats. I agree with my noble friend Lady Worthington that there is a need to build public trust, but sometimes it is hard to do that when certain organisations are totally hostile to fracking applying in any circumstances whatever. They make allegations that are, quite frankly, unsubstantiated. That is my concern. When we look at evidence, we need to look at evidence that is substantiated.
Another website that is worth looking at is that of the US Environmental Protection Agency. It frequently asks questions such as: why does there need to be a two-year analysis of what is going on, and why can we not say now that fracking is terrible, ruins the environment and so forth? The response is that that is not the case. There have been some quite dreadful things. To my eternal shame, a BBC programme endeavoured to show that fracking was the cause of methane contamination, which meant that you could light the gas as it came out of the tap. My plea is that of course we should have proper safeguards and we need to build public trust, but we also need to ensure that we are not repeating unsubstantiated allegations and that we look at objective evidence. Of course fracking will not be the total solution but there is no doubt that, certainly in America, it has substantially cut emissions and it could have a role to play here, although the environment is somewhat different.
Lord Jenkin of Roding
My Lords, I do not think that any of us is in any doubt about the importance of baseline monitoring for the purposes of environmental control. I totally agree with much of what the noble Lord, Lord Young of Norwood Green, said about the misrepresentation that is going around on the whole question of fracking. This must be scientifically based. To my mind, that is where both the Government and the industry have so far failed to convince the public of the case for fracking. As the noble Baroness, Lady Worthington, said in her opening speech, my noble friend Lady Verma made the case for the need for shale gas on environmental grounds. That is the case we need to go on pressing.
With regard to the amendment moved by the noble Baroness, Lady Worthington, an enormous amount of work is being done by the British Geological Survey on the baseline monitoring of contaminants of various kinds, and on the protection of water. This has been sparked by examples in America, where there never has been any proper baseline monitoring. That is an example of the imperfections of their system of regulation, of which our people have taken full account. They recognise that if we are to control contaminants—it is very important that that should be done—we need to know where we are starting from. That is the heart of the noble Baroness’s amendment.
I am told that the British Geological Survey is about to publish a further study. It originally put in the 12-month period on the grounds that there might be seasonal variations. Its latest work on the contamination of drinking water has shown that there are no seasonal variations: there is no evidence of that at all. I would not be in the least surprised if, in its further report—this is the advice I have had—it finds the 12-month period to be unreasonable and that the best method of assessing baseline monitoring for methane should be scientifically based. The work that is done by the BGS in this country is, for the most part, to the highest standard. The Government are entirely justified in putting their faith in it.
I do not know what the Minister will say in response to the amendment, but I would guess that everything the noble Baroness, Lady Worthington, is asking for is, in one way or another, already being achieved or will be achieved by the Government’s existing policy. I am interested to hear my noble friend’s reply. I share the view of the Committee that baseline monitoring is absolutely crucial if we are to have effective regulation.
Baroness Young of Old Scone
My Lords, I shall comment on baseline monitoring. We need to learn from other monitoring schemes that are already in place as a result of regulatory regimes and the planning system.
There are two issues here. First, the 12-month period may not be required for methane monitoring but it certainly is for biodiversity monitoring, which is also mentioned in one amendment in the name of the noble Baroness, Lady Worthington. Too often, I have seen planning appeals and inquiries get hideously beached as a result of inadequate 12-month monitoring of biodiversity impact. If a species is present only at certain times of the year, it is quite difficult to do a baseline account of it if you are doing that in a season when the species is not present and is not expected to be present. That causes delays in planning processes. It is important to make it very clear that some of these impacts and baselines can be dealt with only on a 12-month basis.
I accept the commendation by the noble Lord, Lord Jenkin, of the work done by the BGS and other statutory agency baseline surveys and ongoing monitoring processes. However, the other point of principle we ought to regard as important is the need to make commercial organisations that want to undertake commercial activities responsible for ensuring that the baseline monitoring that needs to happen before they begin is undertaken—and undertaken at their expense. That is an important principle commonly adopted in many regulatory regimes and in much of the planning system. We must not move away from that. It is important that the commercial organisations get their heads around what the issues of their impact are before they start to put forward their propositions, rather than relying on somebody else’s baselines and not really understanding, when their propositions come forward, what they will need to monitor and how they will need to monitor it. That is an absolutely fundamental principle.
Lord Borwick
My Lords, I entire agree with the noble Baroness when she says that the task is to increase people’s confidence in this process of fracking, but I am absolutely certain that the 12-month baseline suggested here is not the right solution, because of the work done by the British Geological Survey mentioned by my noble friend Lord Jenkin. I understand that it was published on Monday 6 October as an interim study and found in its conclusions that background methane in aquifers is generally low and that the majority of sites that it has studied over time have shown little change in the methane levels. That suggests that a risk-based approach should be taken, rather than monitoring in every individual site proposed.
On the second amendment in this group, Amendment 95ZBN, the danger I see is the composition and amount of fracturing fluid cannot necessarily be told immediately at the beginning of the planning process. If this amendment was passed, if it was decided to change the chemical make-up of the fracturing fluid, the whole planning process would have to be gone through again —and, if it turned out that a greater quantity was needed than originally proposed, it would be necessary to go through the planning process again. Given that that process is in danger of taking many months or years to go through, a small geological change that increases the amount of fracking fluid that is required might delay the process right in the middle and make the situation more dangerous than it would otherwise have been. All this is being looked at by the Environment Agency and, with its rules, we should increase the confidence of people in the work that is being done on the regulation of fracking by that agency.
Lord Whitty
My Lords, I want to underline one point under Amendment 95ZBN, which will be tedious because it was raised during the course of the passage of the Water Bill, on the role of water companies. I understand the exasperation of my noble friend Lord Young and the noble Lord, Lord Borwick, who referred in similar terms earlier to scares being raised about shale gas, and their not necessarily being very scientifically based. However, I do not think that Thames Water or Severn Trent Water fall into the category of scaremongering green organisations. They really ought to be brought into this process, because the biggest anxiety is about the effects on the water system and giving the water companies a statutory consultee role would help to reassure a number of people about the effect of fracking operations on the water supply. I therefore hope that proposed new subsection (3) in that amendment is adopted by the Government.
Baroness Verma
My Lords, again, I am extremely grateful for the measured way in which this debate is taking place and for the very eloquent way in which noble Lords have presented their arguments, whether supporting what the Government are doing or raising amendments to show concerns. I welcome the spirit behind the amendments, which are aimed at ensuring that environmental safety is fully protected throughout the shale gas extraction process and reassuring the public that that is the case. My noble friend Lord Borwick said that to enable trust we need to ensure that the regulators are presenting a trustworthy way in which to approach the regulatory system.
We have among the most trusted regulators in the world. The commitments the regulators—the Environment Agency and so forth—have undertaken has allowed the debate to become much more measured.
Baroness Worthington
My Lords, I thank the Minister for her response although, again, I am not wholly reassured. Particularly, one of her final comments served to illustrate why there is a level of distrust in the current approach. Put simply, if you leave it to the operators to do everything on a voluntary basis, including paying for all of this, where is your reassurance that it is done to the correct standards? Obviously, a profit motive drives this. Let us not try and beat about the bush. This is about not UK sovereignty of energy but shareholders and people making money. If you ask them to pay for monitoring, they will do monitoring in the best way they think fit. That may well be simply a handheld device or the very minimal level of monitoring, which will not be good enough to establish whether we have a problem, either in terms of establishing the baseline or keeping on monitoring against it.
Baroness Verma
Of course, the Environment Agency has to be satisfied. As the noble Baroness is aware, it is among the toughest of the regulators we have.
Baroness Worthington
Absolutely, but the noble Baroness will also be aware that it is under quite considerable pressure in terms of its budget. This is an additional new task that it is being asked to perform but is it being given the budget to do it properly?
Baroness Verma
Again, I apologise for intervening but I should like to reassure the noble Baroness that the Environment Agency has reassured us that it has adequate resources.
Baroness Worthington
Then perhaps my anecdotal point about the money being asked for in order to do the very best in laser monitoring is not true. Perhaps we can have some more correspondence about that before Report.
I will not dwell on this for too long. I think it is fine to say that we are going to take a risk-based approach but exactly how are we going to do this, what level of monitoring will be done and how are the Government going to keep monitoring all these voluntary approaches that are being proposed—voluntary EIAs, for example? The industry can say that but are the Government monitoring whether applications are going in at a local authority level without EIAs? I have certainly had representation from groups saying that they are going in without publicly available impact assessments. I hope that that is not the case but my sense is that the Government are taking rather a lackadaisical approach to this in thinking, “Well, if the industry says it’s doing it, it must be doing it, so that’s fine”. I am afraid that that is not how you engender trust.
I hope that more can be said about the role of the water companies as well. It is not just us who think that they should be statutory consultees; this is coming from Water UK. Therefore, it is certainly something that the Government should take seriously. Of course, if the water companies are required to make a response, they do not have to make it a voluminous response; it can be very short. However, they will then at least be part of the process and there will not be the potential for them not to be involved, which would severely weaken the level of information and knowledge that local planning officers have.
I shall leave it there. I am sure that we will return to this on Report but, at this stage, I am happy to beg leave to withdraw the amendment.
Baroness Worthington
“Application of emissions limit duty
In Schedule 4 to the Energy Act 2013 (application and modification of emissions limit duty), after paragraph 1(1)(b)(ii) insert—“(iii) substantial pollution abatement equipment dealing with oxides of sulphur, oxides of nitrogen, heavy metal emissions or particles is fitted to the generating station.””
Baroness Worthington
On to another topic, although a related one. Many of us in this Room today spent a good deal of time last year working on the Energy Bill. That received Royal Assent and passed into law and we are now working through the detail. One aspect of the suite of measures brought in under the Energy Act was an environmental performance standard. This was to be applied to new installations of large-scale generation and would bring in a limit on the amount of CO2 per kilowatt that could be emitted by substations. In effect, it ruled out the building of new coal stations without CCS.
We had a good old debate about that and noble Lords may remember that we sought to amend that legislation to address what we considered to be quite a serious loophole. That was that, in applying these performance standards to new coal, there was a danger that old coal, which is less efficient, older and less reliable, would escape from such a regulation and people would then seek to continue in operation. Essentially, companies owning these assets would continue to sweat those assets for as long as they possibly could use whatever method they could. We warned that under the capacity mechanism—another key aspect of the Energy Act—such old coal plants would be able to receive generous amounts of money that would enable retrofits to be carried out to keep the plant limping along and meet the international environmental regulations. Therefore, we would see coal not only in the system for longer but operating at higher load factors than would otherwise be the case. During the debate, we were reassured that this was not a necessary provision and that everything was fine. Coal was going to be phased out and we should not worry our heads about it.
Why have we retabled this amendment? We have done so because, as we said before, half the projects under the Infrastructure Bill are energy related. We have to get a clear set of messages out to investors about what type of investment to pursue. Given that we are trying to solve quite a complex set of challenges, including moving to a lower carbon economy, there has to be a clear signal about the need for investment in low carbon. Unfortunately, the combination of the capacity market and the absence of any kind of EPS backstop on coal mean that there are conflicting signals.
Lord Jenkin of Roding
I listened to the noble Baroness with great interest. I had not interpreted this amendment as being directed at the question of whether coal-fired plants should be able to apply under the capacity mechanism. I, too, have been rather disturbed to see that as a possibility not only for coal-fired stations in this country but for those in other countries as well, which will be able to apply. If this is indeed the case, we need to look at this very carefully.
What puzzles me is the connection with the amendment that the noble Baroness has tabled. I understood that we had always been in favour of attaching abatement technologies to coal-fired stations that may have some life left in them to reduce nitrogen oxide, sulphur dioxide and other toxic gases. The noble Baroness is right to say that it puts up the price; a very good example of that is the difficulties that Drax has been having over recent years, where abatement plants were put in years ago. For the life of me, I find it very difficult to understand why attaching that sort of plant to an existing power station should necessarily be an occasion for the exercise of the powers under the Energy Act, to which she refers—a question of abatement of the emissions limit. Perhaps the fault is mine. The amendment is one that I had not studied before, so I listened to her with great interest. Bearing in mind that we have always encouraged the addition of abatement plant to coal-fired power stations, I would have thought that to make it a trigger in the further reduction in carbon emissions would be counterproductive. I see the noble Baroness shaking her head at me; it may be that I have completely misunderstood her purpose.
Lord Teverson
My Lords, when I saw this amendment, I thought that it looked remarkably familiar. It took me back to the trauma of four years of the Energy Bill, and the White Papers before it. However, I am actually very pleased to see it because it was an important principle of an amendment that we tabled at the time. To explain this a little more from where I stand, this is one of the areas where white is black and black is white in coal terms. Making coal plants far better for the world in their nitrous and sulphur emissions, which we all want, means that they can escape the rundown that is caused by the European directives that mean that these coal stations have to go. The way in which the emission performance standards were written into the Energy Bill means, effectively, that they have a free life up to about 2044, or something like that—if you can keep them going—when we can change the emissions performance standards and they lose their grandfather rights. That is the issue.
I have not gone into this matter in the great detail that the noble Baroness, Lady Worthington, has, but I can see that there are ways by which being able to participate in the capacity mechanism gives enough financial stability for the energy companies to take on the investment that would enable them to comply with the large plant combustion directive and its successors and so continue to be high carbon emitters in this economy for many years to come. That has to be a bad thing. I will not go all the way through the arguments that we had in previous debates but, clearly, it is bad in terms of emissions. Coal is not good in that regard. I am not absolutely against coal being part of the capacity mechanism. I would prefer it if it was not, but I do not think that it is absolutely fundamental. What worries me is that, by investing to comply with European directives, we then have them for a long time into the future, which we would not otherwise. That is bad, but, at a time when an argument has emanated from the Treasury wishing gas to be particularly strong, it works against gas investment as well. That is investment that the Government has rightly said is important for medium-term fuel strategy and clearly is half the level of carbon emissions.
Without going through all the arguments again, this sort of amendment gives a double win for the Government on greater incentives for gas investment in the medium term and on meeting its carbon targets more certainly as time goes on. I hope that the Minister and her colleagues will find a way to realise those objectives, which are from both sides of the coalition, by looking at this very carefully.
Lord Whitty
My Lords, I support the amendment and my noble friend. The arguments she made during the Energy Bill have come to pass—I do not think that Bill lasted for four years, as the noble Lord, Lord Teverson, said, but it felt like it. The reality is that while in America the arrival of shale gas has driven out coal, to the benefit of carbon emissions—this links back to previous debates—it has also had the knock-on effect that the world price of coal has gone down. Therefore, the economics of coal in the rest of the world now look much more attractive. The economics of continuing to run coal-fired stations look dramatically more attractive.
A number of things were not clear during the debate on the Energy Bill and when it passed, including the exact way in which the capacity mechanism would work and who would be eligible. Some of that has become clearer with the regulations that have gone through. We now know which plants are being put in as a capacity mechanism; it includes some pretty old coal plants. Plants that companies such as EDF gave a clear indication, seven or eight years ago, would close about two or three years from now are now being rolled forward. The way to square that would have been for the performance standard to apply to old coal as it does to new coal plants, but it does not.
While the noble Lord, Lord Jenkin, is right that we encourage all plants to fit this abatement of sulphur et cetera, we have not applied the new emission standard in the Energy Act to all this old coal plant. As I understand it, the purport of the amendment is to ensure that they will be treated in the same way as new plants. That would change the economics of coal.
The other thing that has changed since the debate on the Energy Bill is that it was assumed at that time by some of the modellers that, as was originally intended, there would be a ratcheting up of the carbon price floor. That would also have altered the relative price of keeping on old coal, to the detriment of the coal industry. Of course, within a few weeks of the Energy Bill receiving Royal Assent, the Chancellor announced that we are no longer going to ratchet up the carbon price floor. Leaving aside the principled arguments about the use of a carbon price floor, the effect of that is that the economics do not look the same as they did when we were discussing that Bill. Clearly they were expressed as looking that way by the Government. As the noble Lord, Lord Teverson, said, it could mean that old coal plant could be running for decades as a result of the emissions performance standards not fully applying and the abolition of the carbon floor price ratcheting up.
The amendment is intended to ensure that that is not the case. As the noble Lord, Lord Teverson, has said, the immediate effect is to make our energy supply more dependent on old coal and less attractive to investment in new gas. Therefore, the higher the level of old coal that qualifies under the capacity mechanism, the less investment there will be in new, efficient gas generation.
In all terms, the economics have been made more difficult. The environmental cost of carbon emissions could be substantial. I therefore hope that the Government at least understand part of that argument and recognise that they have to do something along the lines my noble friend is arguing in support of these amendments.
Lord Oxburgh (CB)
My Lords, briefly, I support the thinking behind the amendment. I have two points. There has been significant discussion of the gas price and the coal price. One should bear in mind that both of these could go up and down fairly dramatically. It is quite likely that the shale gas price in the US will rise, simply because the majority of the shale gas in the US resource is not economically exploitable at the present price of between $3 and $4. This is not of great importance, except to emphasise that coal and gas can change. It is important that we see the long-term perspective here and that we do not legislate now on the basis of how these prices look today.
I am not sure that the wording that we have here is right, but the Government need to come back to the House and let us know how they are actually going to meet their obligations under the Climate Change Act in the light of the elevation of the carbon price and the other considerations to which noble Lords have drawn attention.
Baroness Verma
My Lords, I am grateful to the noble Baroness for tabling these amendments. I know that many of us heard the well rehearsed arguments during the passage of the Energy Bill. I agree with the noble Lord, Lord Whitty; I do not think it was four years, although it probably felt like four years. Whatever, we all got a lot of grey hairs from it—I remember that.
The measures in the Bill and our electricity market reforms have demonstrated that they are already working and starting to deliver new investment in electricity infrastructure: a clear demonstration of industry confidence. In April, we announced the allocation of the first contracts for difference to eight renewables projects. These projects included offshore wind, coal-to-biomass conversions and a dedicated biomass plant with combined heat and power. By 2020, these projects alone will be able to provide up to £12 billion of private sector investment, supporting 8,500 jobs, and could add a further 4.5 gigawatts of low-carbon generation capacity to Britain’s energy mix. This builds further on the major growth in the UK’s renewable electricity sector that we have seen, with capacity more than doubling since 2010 and with renewables now providing around 15% of our electricity. I wanted to point that out before I came back to the noble Baroness’s amendment.
We recognise that the intent behind the Energy Bill amendment was to achieve outcomes broadly consistent with those to which the Government are firmly committed. The potential uncertainties of applying the EPS in the way proposed by the amendment, on balance, pose risks that the Government should be unprepared to take.
The noble Baroness has already helpfully explained that existing coal-fired power stations will need to invest in fitting equipment in order to meet the requirements of the EU industrial emissions directive. That directive succeeds the large combustion plants directive and sets much more stringent limits on emissions of oxides of sulphur and nitrogen from 1 January 2016. However, I recognise that there have been a number of developments since last year as we have set about implementing our electricity market reforms.
I do not share the noble Baroness’s analysis of the current position or her prediction of the future. I am therefore not convinced that in the case of this amendment there is a need to revisit the conclusion reached by both Houses on this point less than a year ago. I do not think that I want to go back and rehearse the arguments made during the debate on the Energy Bill that led to the rejection of the amendment previously. They highlighted the risk that it could lead to a scenario where coal plants closed earlier than might otherwise be necessary to most cost-effectively achieve the decarbonisation of the electricity system. Were this to happen, the need for more generation capacity to be built earlier than we currently project could result in an increased cost to consumers. The noble Baroness may be prepared to risk imposing such unnecessary cost but I am not. The argument in recent months has been how consumers feel about the cost of energy.
I think there is almost unanimous consensus on the need substantially to decarbonise electricity generation by 2030. There is similar consensus that there will be little or no role left for unabated coal generation in future. However, we continue to believe that applying the EPS as proposed by the amendment is unnecessary and potentially a risky intervention to the market. It is our other EMR policies that will work to deliver the outcomes that we all wish to see but without risking our security of supply and ensuring that we are able to give consumers energy at as low a cost as possible.
The noble Lord, Lord Whitty, asked why we allow existing coal stations to participate in the capacity market. We do it so that the market ensures security of electricity supply at the least cost to the consumer. It is important to reiterate that all existing coal plants still need to meet their environmental commitments and will be subject to the carbon price floor. I assure the Committee that it is also about the fact that we have seen 7 gigawatts of new gas plant come forward seeking capacity agreement, which indicates that the capacity market is bringing on new investment.
I am not convinced that we need to revisit this argument. I know that the noble Baroness is absolutely committed to raising this issue again but I hope that I am able to convince her that the steps we are taking in the broader argument are ensuring that we are able to deliver at a cost value to the consumer and that security of supply remains, and that we remain committed to bringing on as much low-carbon energy as possible through the reforms that we have made in the Energy Act. I hope that on that basis she is able to withdraw the amendment.
Baroness Worthington
My Lords, I am grateful to the Minister for her reply. I am particularly grateful to the noble Lords who contributed. It is certainly true that the noble Lords, Lord Teverson and Lord Whitty, explained what the amendment does more clearly than I was able to do. For the avoidance of any doubt, we were simply seeking to limit the amount of time that old coal-fired power stations could run so that they did not provide base load power. That is the purpose behind it. It would not mean that they should shut or that they should not upgrade; it would simply mean that we had a mechanism for preventing them from base loading and thereby displacing otherwise clean capacity.
It is true that one of the cheapest ways of reaching a lower carbon intensity is to run your gas stations first and your coal stations as peaking plant; that is just incontrovertible. Every kilowatt hour produced with gas produces half the emissions compared with a coal station. In the act of upgrading these stations, those kilograms of CO2 per kilowatt hour will increase. That is because it takes energy to run the filters. So we are taking an already inefficient station, making it less efficient and more carbon intensive, all apparently in the interests of keeping the lights on, when, in fact, we have seen that far more capacity than is needed is coming forward. This coal will displace investment in gas if that gas turns out to be more expensive. Therefore, it does not deliver on security of supply, and it does not deliver on cost-effectiveness because it forces us to do more of the more expensive things. We will have to decarbonise in other ways if we do not close coal, and that will be expensive. It is about cost-effectiveness, and that is why we want this amendment.
The Government do not have a coal policy. They do not have a plan for phasing out coal. Everyone can say fine words about it but coal stations are in the ownership and hands of the private sector. If they can make a profit from running these plants, they will. The Government put nothing into the Act dealing with EMR that stopped old coal—in fact, the reverse. They have created a new incentive, and by allowing firms to apply for three-year contracts the Government are paying them to upgrade. Eight gigawatts of coal is a lot of capacity. Eight gigawatts of new gas would engender a large amount of lower-carbon capacity that would be more flexible and, in the long run, cheaper and more reliable.
We listened with great care to the arguments put forward in the previous debate. The world has changed since then, not least—as my noble friend Lord Whitty pointed out—because policies have changed. The Government took the opportunity in the Budget, shortly after Royal Assent, to freeze the carbon price floor, which was a key defence mechanism. I shall not go on any further. This is a fundamental flaw in the Energy Act. I would like to revisit it, and I am not persuaded by the arguments that have been made. However, at this stage, I beg leave to withdraw the amendment.
Baroness Worthington
“Decarbonisation target range
In section 1(5) of the Energy Act 2013 (decarbonisation target range), omit all the words after “2030”.”
Baroness Worthington
My Lords, it is approaching 6 pm and we have been here for some time, so I do not propose to speak for long on this amendment. However, it relates to another important aspect of the Energy Act that we need to revisit. The Act’s first sections are about the need for decarbonisation. Indeed, that was the justification for all the measures that followed; we were about to embark on a process of decarbonisation, which was why we needed contracts for difference and to make all the interventions that we did. However, those sections are very oddly worded and actually prevent a decarbonisation target from being set until criteria are met. In effect, rather than setting a decarbonisation target, the Act prevents one from being set and ties the hands of a future Government. That is not good lawmaking and certainly, if there is a change of Government, we would wish to set a decarbonisation target as soon as possible to clear up the mess, and give the signal to investors that this is the target we are aiming for them to meet and that that is how they should make their investments. The provision in the Act is inappropriate, and this amendment seeks to delete the part that restricts the setting of a decarbonisation target and ties the hands of future Governments. It has no place in the Energy Act.
If it is true that the Government’s intention is to use the Act to decarbonise, why would you then restrict the decarbonisation target from being set? It makes no sense. Let us be clear that the Minister rightly pointed to some investments coming into renewables. That is being driven by a legally binding European target that expires in 2020. That is just around the corner in energy investment terms. There is absolutely nothing in the Government’s policies that means we will continue to do renewables—nothing, at least, that is legally established. If we see the continuation of opposition to all renewables on the basis that they are more expensive—when, in fact, their costs are falling rapidly—we could see that whole industry being undermined and stopped, post 2020, in the absence of any other target at a European level.
Now, I do not happen to agree with targets being needed at a European level on renewables specifically, but we need decarbonisation targets. We need a clear plan and to create the right investment climate so that people can make the right decisions—not the wrong ones. This amendment is simply to allow us to do that. Should we have a Labour Government in 2015, we are absolutely clear that we would set a decarbonisation target. We seek to move this amendment so as not to have our hands tied by what is a very inappropriate piece of legislation in the previous Energy Act. I beg to move.
Lord Teverson
Since we are in Committee, why did the noble Baroness not just delete the whole of subsection (5) altogether?
Baroness Worthington
That is a good question. In the interests of taking out the most annoying part of the Act, we restrict ourselves to simply removing the part that restricts us in the timing of when a decarbonisation order could be set. That is the reason.
Baroness Verma
My Lords, as I made clear during previous discussions on the Energy Bill—now the Energy Act—a decision to exercise this power is absolutely not something that should be rushed into or done in isolation. We had some very long discussions around this target so I will not go back and repeat those. But such a target would have a significant implication for the power sector, the so-called “non-traded” sector, for consumers and the wider economy. It is therefore vital to understand fully, based on evidence, whether a target represents the best approach to meeting our economy-wide carbon budgets cost-effectively and, if so, at what level it should be set.
It is for these reasons that the Government have maintained that the right time to consider whether to set such a target is in 2016. That is the point at which, in line with the requirements of the Climate Change Act, we will undertake extensive analysis to set the level of the fifth carbon budget in law which will cover the year 2030. This will allow us to consider the target in the context of the whole economy and what is required to ensure that the UK not only meets its 2050 emissions target but also remains competitive with other member states. In 2016 we will also have a better understanding of how the market will respond to the reforms that this House debated in the passage of the Energy Act and a clearer idea of EU and global climate change ambition. It is about timing. We laid out very clearly that 2016, in line with the fifth carbon budget, is the right time for this. I suspect that the noble Baroness and I will not agree here but I hope that at this point she will withdraw her amendment.
Baroness Worthington
My Lords, I do not propose to detain us any longer on this. I listened to that response. I sincerely hope that whoever is in government will set a challenging decarbonisation target in 2016. It would be better if we let the next Government make that decision but I am very happy to withdraw at this stage.
Baroness Kramer
(a) section 26 or 27 or Schedule 5;(b) section (Maximising economic recovery of UK petroleum) or (Levy on holders of certain energy industry licences) or Schedule (The Licensing Levy);(c) any of sections (Petroleum and geothermal energy: right to use deep-level land) to (Interpretation).”
Baroness Kramer
Lord Berkeley
“Part 4ALevel crossingsLevel crossing bill
Within 12 months of the day on which this Act is passed, Her Majesty’s Government shall introduce into Parliament a bill to give effect to the recommendations of the Law Commission and the Scottish Law Commission on level crossings (Cm 8711), and which is substantially based on the draft Level Crossings Bill prepared by the Law Commission and the Scottish Law Commission.”
Lord Berkeley (Lab)
My Lords, I will also speak to Amendment 100. These amendments are nothing to do with fracking. They take us back to infrastructure of the road and rail sort. This amendment came about because, quite conveniently, the Law Commissions did a study on the legal situation of level crossings. I believe they took about seven years to do that, so they must have done it extremely thoroughly. They produced an excellent report about this time last year which made a number of recommendations and, very helpfully, included a draft Bill to implement them.
The purpose of it all was because, as we will see, some of this legislation goes back to the first railway. Some 150 years or so ago, there were of course no internal combustion engines and if there were level crossings they were probably to take horses and carts across. It is very different now when in some places, as noble Lords will know, the pressure on level crossings for access is pretty extreme whether it is from the railways or the roads, and particularly in urban areas. When the railways want to run more trains, they find that they cannot because people complain too much that the gates are shut too often and vice versa. Obviously, the solution is to build a bridge or tunnel but that does not really go down very well in urban areas either.
This report by the Law Commissions really deserves some detailed consideration. I tabled these amendments in July and the Government had not responded so I was tempted to try to get a response by tabling the Law Commissions’ draft, which was about 50 pages long. The noble Baroness was quite pleased when I withdrew from that. However, it has resulted—we can debate whether it is a result or a coincidence—in the noble Baroness kindly sending to me and colleagues the government response to this report, and putting a copy in the Library. It is an excellent response, so my purpose in moving this amendment now is to see whether we can press the Government a bit more for a timetable and to discuss one or two of the issues on which I think they might not agree with the Law Commissions.
One issue which covers the whole thing is whether level crossings should be subject to the Health and Safety at Work etc. Act, as most similar activities are. It may come up on Report when we start talking about the strategic road company, which the Minister kindly gave some of us a briefing on yesterday, and the comparison of safety relationships between road and rail. But on level crossings, the Government have moved a good way in accepting many of the recommendations to make the thing simpler. I do not know how many of the Committee have managed to read these 28 pages overnight but perhaps I could mention a couple of issues. If your Lordships have not, it does not really matter.
For me, if the Government went ahead with their recommendations it would be 90% good and I hope that they will. They are quite right to query again how much this should apply to heritage railways, especially when there are volunteers. That needs taking with a bit of a pinch of salt because dealing with a level crossing on a 100 miles per hour railway is not the same as dealing with one on a 25 miles per hour railway, so they have done well to question that. I mentioned the Health and Safety at Work etc. Act; we could go through that again.
It is a good idea to get rid of all this old legislation. I am told that there are 800 Acts applying to level crossings. Network Rail has to deal with all these things and if we started talking about how much all these changes might cost, I get the impression from Network Rail that a lot of money would be saved—especially on lawyers, which is always a good thing. On whether the Office of Rail Regulation should introduce codes of practice, I think that it should but it is not really the end of the world if it does not. But on the regulations, I worry about what happens when it comes to consultation between road users, planners, highways authorities and rail people, and whether the Government have got it quite right as to who has the last word on how discussions will take place as to who gets priority. That needs a lot more consultation but it is still in the report. As I said, the legislation goes back to 1839. I shall not read out all the different bits of legislation because it will take too long but this certainly needs further work.
The closures need to be made simpler. Network Rail has told me that it costs a great deal of money, time and effort to get closures. Some people will debate whether Network Rail should be allowed to make closures, but when you look at the railway safety statistics, level crossing accidents come very high up the list of causes of accidents—leaving suicides aside, which are slightly different. As we try to make our railways more efficient, run faster and more frequently, we need to look at protecting the public by making some of these closures. I hope that the Minister will accept that they can go ahead. I am not going to go through any more, particularly the Scottish ones. We can possibly leave those to the Scottish Parliament if we get some devolution, which is another issue.
In her covering letter, which is very helpful, the Minister said:
“I have … asked officials to develop, as a matter of urgency and no later than the end of 2014, an action plan which will outline where we believe further work is required and how this will be taken forward”.
That is very good and I welcome it, but there are always two sides to these things. Perhaps the Minister can answer either tonight or in a letter how many of these changes actually need legislation—primary legislation, secondary legislation or none at all? The Law Commissions proposed one great big Bill but it does not have to be done that way. I worry after the next election. Which Government would want to bring in a level crossing Bill in their first session? They would not because they would have other priorities.
Therefore a timetable would be good, showing what could and could not be done. We could then start a process of discussion about some of the issues in this government response, which would be very helpful. It really is important. It will save Network Rail a great deal of money and it will help avoid some of the disputes that take place between road and rail users and their operators. Everyone must agree that we should get rid of legislation going back to 1830-something. Now is the time to do it. With that quick introduction, I beg to move.
Lord Hodgson of Astley Abbotts (Con)
My Lords, I support the noble Lord, Lord Berkeley, and in particular his request for the Minister to consider a timetable. I will not pretend that I have the knowledge of the railways that he has, but I have worked with the Law Commission on a number of its proposals and Bills. It is punctilious about avoiding political controversy and exceptionally thorough in its consultation; as the noble Lord pointed out it has been involved in this in the seven years of consultation. It therefore does an exceptionally valuable job in updating, tidying up and spring cleaning our legislation.
There is, however, a danger attached to that, which is that the Law Commission regards legislation proposals that it has brought forward that have not been implemented within a certain period as needing to go back for further consultation because it needs to make sure that the public mood and the facts have not moved on. I support the noble Lord, Lord Berkeley, in this because I hope my noble friend will realise that if this matter is left on the shelf, the Law Commission will say that it is no longer fit for purpose and will need to start consultation all over again to see what has happened in the intervening period since the last consultation was carried out.
I support what the noble Lord is suggesting and I hope that my noble friend will be able to act as Dyno-Rod for departmental inertia to make sure that it is brought forward quickly to avoid having to go round the whole course again.
Lord Davies of Oldham (Lab)
My Lords, I will briefly intervene, not because I have the expertise of my noble friend Lord Berkeley; if he believes that he may be pushing at an open door as regards the Minister’s response, that is very good news indeed. My qualification for speaking about level crossings is that I live on the border of Hertfordshire and Essex, in one of the flattest parts of the country, the Lea Valley. The railway line there is plagued by the problem that it has a very large number of level crossings of all kinds, from the latest state-of-the-art crossings in some parts, to those where people open a little gate and run for it, dragging the dog behind—because they usually have a recalcitrant animal as well—and take risks getting across. Incidents on the line are constant.
I know that my dear friends at RoSPA—the Royal Society for the Prevention of Accidents—indicate that there are only nine deaths per year and that limited numbers of people are injured. We have 6,000 level crossings, and they are not all on the line that I know so well, but as my noble friend Lord Berkeley has emphasised, there is no doubt that because of the improved efficiency of the railway line—which is not just for local stations but is also the Stansted line, and which therefore supplies an important service to Stansted —very fast trains cause greater problems when you have some crossings which to all of us look exceedingly casual.
There was a tragic case only two weeks ago, when one of the most experienced local cyclists—someone who had travelled all over the world on his bike and raised lots of money for charities, who rode his bike all the time and was very advanced in years—decided that he could beat the train. Of course, this happened on one of our crossings, which is a bit posher than some, with an automatic gate that comes down on one side, and an automatic bar that comes down on the other side. However, if you are prepared to take the risk, you can wiggle between the two, and this poor fellow took the risk and got hit by a fast train.
We need to address this issue. We all know that with so many crossings, it is quite unrealistic to expect the problems to be resolved overnight. We are also aware at the present time that the whole responsibility falls on Network Rail. The costs and responsibility for safety all rest on Network Rail, while it is quite clear that other users create so many of the problems. That is why, at the very least, there should be some sharing out of the costs where it can be established that the local authority responsible for the road access may well not have played its part as fully as it ought to have done.
I am therefore looking forward to the largely positive reply from the Minister; it is an absolute delight to anticipate such a response. I emphasise that we were somewhat disappointed that there was nothing in the Queen’s Speech about a Bill, given that there was a small number of Bills—and rather pot pourri Bills as this one is to a certain extent—covering a range of issues. We were concerned that there was nothing about a level crossing, but I am very glad that my noble friend has raised the issue with this amendment, and I look forward to the Minister’s response.
The Minister of State, Department for Transport (Baroness Kramer) (LD)
My Lords, I am very grateful to the noble Lord, Lord Berkeley, for raising this issue. I know that he speaks also for the noble Lord, Lord Bradshaw, who has had to leave. I welcome the opportunity to discuss this matter. It is an area in which the Committee rightly takes a very keen interest.
As we all know, the UK has the best level crossing safety record in Europe. We want to ensure that it is maintained and, of course, to see that it is improved. We are absolutely not complacent about level crossing safety. The noble Lord, Lord Davies, rightly pointed out that, as we run more trains and operate many of our lines at full capacity, the issue becomes more acute. He mentioned that the relevant cost fell on Network Rail. I can understand why people say that other road users should pay for the provision we are discussing. I do not want to fight over who is going to pay. When it comes to taking a decision on a closure, we need to move forward in an accelerated fashion. Therefore, I will accept a little injustice in order to make sure that we are really efficient when we need to be. I do not think that is what is inhibiting the system although I take the point that the noble Lord makes.
This amendment is about the law surrounding level crossings. At present, the legislative framework surrounding the management and operation of level crossings is, frankly, antiquated and complex. I have been passed a note informing me that 10,000 Acts apply to level crossings. I did not even know that we had 10,000 Acts. That is the most extraordinary figure and it says it all. Indeed, that complexity is the reason why we, or, rather, the Government of the day, requested the Law Commission and the Scottish Law Commission to undertake a review in 2007. The review was initiated in 2008. I take this opportunity to place on record my thanks to the Law Commissions for the tremendous amount of hard work which has gone into developing their report, and recommendations which were published in September 2013. The examination of 10,000 Acts is demanding work.
The Committee will appreciate that this is a highly complex area which touches on a wide range of issues including railways, highways, health and safety, planning, land and criminal law. The Law Commissions’ 86 recommendations represent the culmination of five years of investigation. Following legal and policy analysis, the Department for Transport has published its response. I apologise that noble Lords have not had a little more time to read it. I suspect that the noble Lord, Lord Berkeley, was always going to be the most dedicated reader and I congratulate him on going through it. The response indicates which of those 86 recommendations we intend to accept, reject or implement in a modified format.
We accept the case for reform which the Law Commissions have presented and have accepted the majority of their recommendations. However, in some key areas—for example, closures and the application of the Health and Safety at Work etc. Act, as the noble Lord, Lord Berkeley, mentioned—the Department for Transport’s response indicates that we believe we need additional policy and legal consideration. This arises very much as a result of talking to the industry. The Committee will understand that some level crossings are site specific and that that creates additional complexity. However, we believe that we have to pursue these issues because in some cases there may be alternative proposals that work rather better.
On closures, the department needs to be convinced that the process recommended by the Law Commissions would shorten timescales and cut costs, which it is meant to do. We need convincing that that is what it would do. Stakeholders from both road and rail have voiced concerns about the possible implications and have pointed out to us areas where there is lack of clarity. We need to explore those further.
I very much understand that this is a probing amendment but I am told by those who understand procedure that it is a real oddity to put in a piece of legislation a clause which would legally commit a future Government to introduce a complete Bill. Although I know that is not the purpose of the amendment, technically there is an issue there. I should also draw the Committee’s attention to the fact that the Law Commissions’ recommendations contain significant devolution elements which we must and will discuss further and reach agreement on with the Scottish and Welsh Governments before implementation could proceed. As I said, we are also aware of stakeholder concerns about some of the recommendations. They must be addressed because this is highly practical, operational stuff and we have to get it right.
We want to move quickly, but we recognise that there is work to be done, and we are trying not to set ourselves an artificial deadline. However, I am very concerned that this does not get kicked into the long grass—as, I suspect, are all of your Lordships who have spoken.
We have said that we will come forward with an action plan. We will produce it by the end of 2014. It will be an outline of where we think further work is required and how it can be taken forward as a priority. I point out that that action plan will address some of the specific issues raised. The noble Lord, Lord Berkeley, asked whether most of this requires legislation. Unfortunately, it does, but we will look for those areas where we do not need legislation, because that will give us a little flexibility. There are also additional complications that flow from our need to get the Law Commission to consider whether it can simplify some of its recommendations. The action plan will cover that issue as well.
I hope that the noble Lord, Lord Berkeley can agree that this is the best way forward; I hope that he will feel comfortable to withdraw his amendment, because it seems to me that we are all pretty much on the same page on this important issue.
Lord Berkeley
I am very grateful to the Minister for a comprehensive reply. It was a probing amendment, and one would not want the text to commit a future Government. She has outlined many of the challenges. I am sorry that I got the number of Bills wrong by a factor of about 12, which is pretty bad. If we can have a timetable, with all these issues addressed and listed, including issues relating to Scotland, Wales, the EU and whatever, that would be extremely helpful. If the noble Baroness can get the agreement of Network Rail and, we hope, all the train operators and everyone else, that is a major step forward. I again thank the Minister and the Law Commission, because it has got the issue on the agenda. Let us hope that we can see it driven to a conclusion in less than the seven years that it has taken to produce its report. On that note, I beg leave to withdraw the amendment.
Lord Jenkin of Roding
“Part 4AImpact of infrastructure spending on costs for consumersProvision of impact data
(1) The Treasury may by regulations make provision for the regulators to provide data, in a manner prescribed by the regulations, about the anticipated impact of infrastructure spending on the cost of products for consumers.
(2) Regulations made under subsection (1) may prescribe—
(a) the type of infrastructure spending about which data must be provided;(b) the nature of the data to be provided;(c) the methodology for collating and manipulating the data, including assumptions that should be made; (d) the form in which the data should be presented;(e) the persons that should receive a copy of the data.(3) The regulations may make different provision for different regulators where necessary.
(4) The Treasury must scrutinise data provided under subsection (1) and assess—
(a) the cumulative impact of infrastructure spending on the cost of products for consumers;(b) the affordability of any anticipated increases in the cost of products for consumers, taking into account factors other than infrastructure spending that are also likely significantly to impact the cost of products; and(c) differences in affordability between different groups of consumers, if any.(5) The Treasury must publish data provided under subsection (1) and the assessment made under subsection (4) in such manner as it reasonably deems appropriate.
(6) The Treasury must take into account the assessment in subsection (4) in making decisions about the extent, prioritisation or timing of infrastructure spending.
(7) In this section—
(a) “consumer” means any business, individual or household of individuals that purchases a product or products;(b) “product” means a good or service the provision of which is regulated by a regulator;(c) “a regulator” means any of—and “the regulators” means all of them.”(i) the Northern Ireland Authority for Utility Regulation;(ii) the Office of Communications;(iii) the Office of Gas and Electricity Markets;(iv) the Office of Rail Regulation;(v) the Water Industry Commission for Scotland; and(vi) the Water Services Regulation Authority,and “the regulators” means all of them.”
Lord Jenkin of Roding
My Lords, I beg to move the new clause standing in my name. To begin with, perhaps I may say that I was very grateful for the opportunity to talk to my noble friend Lady Kramer about this and for the help that the department was able to give me.
As the heading suggests, this is about the impact of infrastructure spending on costs for consumers. That is an issue that has achieved a rising level of importance. My noble friend Lady Verma said in an earlier debate that the effect of rising prices on consumers is of growing concern in the country.
There is wide support across society for increased investment in infrastructure, but the question of how much of the cost will fall to be borne by consumers is, I have to say, a great deal less certain. The new clause is aimed to get the Treasury to lift the veil, as it were, so that we know more about what it will cost consumers.
That this is primarily a matter for Treasury Ministers rests on two facts. First, the responsibility for projected infrastructure investment is spread right across Whitehall and covers a great many departments. The costs fall to be met in many different ways: investment by private companies, local authorities; government departments; and, no doubt, other ways as well. In most areas, regulators also have a key role, but it is only the Treasury that can cover the whole field, bring it all together and assess the impact on the cost of products for consumers. That is what subsection (1) of this new clause provides.
Lord Berkeley
My Lords, I support this amendment. When I read it I thought that it was a breath of fresh air, which, from my small experience of some of these regulatory bodies, is very necessary and probably should have come earlier. The noble Lord, Lord Jenkin of Roding, talked about the importance of competition, which we discussed under the Energy Bill. An awful lot of the regulators, which he rightfully lists, under Section 7, are by definition monopolies, because that is the way they are.
I certainly believe that monopolies are generally inefficient because they are not subject to competition. One role of the regulators should be to make them more efficient and make sure that they reduce their costs as much possible and increase their efficiency. On the rail side, the Office of Rail Regulation has a duty to look at Network Rail’s costs and to make a decision on whether it is efficient. If it is not, the ORR has a duty to reduce its requirement and to reduce its costs while not affecting the efficiency of the operation. As I said in a recent speech in your Lordships’ House, the ORR has already reduced Network Rail’s costs by about 40% in 10 years. It is rightly intent to continue that trend with another 20% or 25%.
That is designed to make sure that the company is efficient and that, therefore, the customers, who largely are the train operators, get the services at the least cost and look after the interests of the customers. The other thing that the regulator has to do is make sure that the company is properly financed so that it can deliver on its objectives.
Lord Whitty
My Lords, as a former consumer champion, I am fully in support of what the noble Lord, Lord Jenkin, is trying to do here and, in particular, I see the sense in putting it in the hands of the Treasury. The Treasury is the only government department, with the occasional exception of No. 10, which can ensure that individual departments do not go off at a tangent. The problem is not only the multiplicity of regulators but that each of them rests within a culture of a different department. The consumer function, insofar as it is reflected in Whitehall, is a very minor function of the business department’s responsibilities. It is only the Treasury that can insist that regulators and departments really look after the interests of consumers.
Whether the Government follow through the amendment of the noble Lord, Lord Jenkin, or the NAO’s report, this is something that needs doing, and therefore I hope that we get a positive response.
Lord Davies of Oldham
My Lords, I, too, congratulate the noble Lord, Lord Jenkin, on putting forward a very useful amendment. However, as he indicated, in terms of the level of expertise available among staff currently devoted to aspects of this kind of work in the Treasury and the fact that we would also need some legislation, the whole proposal will produce enormously beneficial results but not next year, nor probably after that. It would take some time before we had the full range of expertise indicated in the noble Lord’s amendment.
He is absolutely right on one thing: of course the country is not prepared to take time over these issues because the consumer is all too well aware that they are bearing the costs of a great deal of interest by the companies. What the companies reflect is what they classically reflect in the private sector—the massive increases in pay for their directors and chief executives since they became independent operators, a significant increase in profit and a whopping price rise for the consumer, who has very little capacity to avoid such price rises.
We know that consumers are meant to move around among the energy companies—we know how easy that is with regard to water, for example, and other areas where the natural monopolies obtain. The noble Lord, Lord Jenkin, has identified what we on this side of the House have emphasised for several years: that the operation of a great deal of these services to the public through such private companies, some of which are natural monopolies, has produced a most distressing situation for people who we all know are seeing nothing in the way of increase in their own resources, with low wage levels, and are meeting ever increasing costs. I therefore strongly support the amendment and congratulate the noble Lord, Lord Jenkin, on making this great effort to produce an outline of what is necessary. However, we will expect the next Government to move more directly even than this proposal.
Baroness Kramer
My Lords, I am afraid that I wear a number of hats with this Bill. While much of the advice has come from the Treasury, I also speak at other times for Defra. I therefore speak as a government Minister across the breadth of a number of issues. I can assure the noble Lord that my noble friend Lord Deighton will be happy to meet him. I hope that he will take advantage of that opportunity, because it is important to share the thoughts that he has expressed eloquently today.
The noble Lord, Lord Whitty, said that departments pay little attention to the consumer and that it is a small part of what they do. That may have been true of the departments that he was part of in his time in government, but if he came today to the Department for Transport, he would hear almost nothing but the words “passenger”, “traveller” and “consumer”. They are key in the way that we have been shaping policy, and I think that one can see it in the response of a lot of the transport industry, which is now beginning to put passengers at the heart of what it does. Historically, that might well have been absent and one might have accused much of the industry of being engineering-biased, but I assure the noble Lord that it is certainly not the case in today’s world.
The Government fully recognise the importance of ensuring that infrastructure investment is delivered in a way which protects consumer interests and is affordable to current and future customers. I think that we can say that a lot of the pressures today are caused by the fact that investment in infrastructure essentially disappeared off the radar screen for virtually a generation. We want to be sure that we do not do that to future generations. It is central to government policy and to the work of economic regulators, such as Ofwat and Ofgem, operating in each sector.
However, the Government disagree with this amendment and have some serious reservations about trying to aggregate across sectors for infrastructure costs. Bang our heads as we might, we cannot think of a way in which one could do this that could be robust or meaningful.
Let me try to be practical about this. Different consumers in different parts of the country consume different amounts of travel by rail or air—I am now talking about transport, because it is my area—and different amounts of water and energy, all differently priced. Consumers also use very different amounts of these services depending on their needs and preferences, which makes any attempt to aggregate across sectors, to depict a typical household or clusters or types of household, pretty much impossible. Once one starts trying even to estimate an average, it becomes meaningless.
It is the sector-by-sector assessment of their customer base which regulators do in detail that we think is the effective way to assess consumer impacts and affordability. I am thinking of new transport infrastructure, which would obviously be included in this package. It might give the Committee some understanding of how it is near enough impossible to do this in an aggregate way. Transport investment affects personal affordability in many ways and affects different social groups in different ways. For example, if we bring in a smart motorway scheme, it leads to reduced congestion and you could argue that it leads to reduced fuel bills. On the other hand, because there is reduced congestion, more people may well use the road, so because they are travelling their fuel bills go up. However, it may be that they are making that journey because they now have access to a job or to additional business. You surely ought to net out that benefit in order to come to a conclusion on the additional cost caused by that additional piece of motorway. Getting this sorted out is virtually impossible.
HS2 is probably the biggest piece of infrastructure seen across Europe. We have said that there will not be premium fares, so what number do you put in for the burden on the consumer? Is it the standard fare? You were not including it when that standard fare was being used on the existing line. Is it the additional revenue? Then again you are netting out benefits. To try to unravel this into something that would let you have a formula that would make any real sense is near impossible. It is not really a sensible way in which to try to look at this. When we think about capturing cumulative effects in a way that has some meaning, it seems impossible to work your way through the human behaviours and their responses to infrastructure to get you to something that you want.
Back in the department, when we are trying to decide whether to fund a scheme, we try to look at this complex picture. How does the scheme impact on the individual, the environment, the economy or personal health? What happens, in terms of safety, to accident levels and to various other societal benefits? It is based on in-depth, long-standing scientific evidence about how people and businesses value different things. It is just a much more complex picture when we try to put this together into a scheme business case.
The fact that I am saying that cross-sector aggregate measures look at something too complex to come up with a meaningful answer does not mean that the Government fail to take affordability extremely seriously. The Government are taking targeted action on some of the costs that have been discussed today. We have introduced a range of measures to help hard-working families with the cost of living, which is surely what we are all trying to get at. For example, increasing the tax-free personal allowance has a big impact on the cost of living for individuals. Freezing fuel duty has a big impact on the cost of living, as does helping local authorities to freeze council taxes. Those are mechanisms for trying to deal with this set of issues and link in no way to the kind of cumulative cost assessment that is being discussed in this amendment.
Targeted action on bills includes action at the last Autumn Statement, in which the Government announced a series of steps saving the average household around £50 on its energy bills. We recently announced an extension of the freeze on rail fares. Last year, that saved season ticket holders around £70 over 2014 and 2015. It is completely separate from trying to calculate the specifics of a specific infrastructure investment. It has been possible because the Government have a long-term, credible economic plan.
For example, Ofgem undertakes detailed and regular assessment of energy market customers, the affordability of bills and consumers’ ability to pay. Ofgem has published a strategy on consumer vulnerability which set out to understand and identify the causes of vulnerable situations in the energy market and to reduce the likelihood and impact of such situations. It regularly monitors and publishes data on energy disconnections for debt and other issues related to supplier dealings with domestic customers. Suppliers are required by their licences to avoid disconnecting consumers who are of pensionable age, disabled or chronically sick in the winter months—the “winter moratorium”. Ofgem also requires the big six energy companies not to disconnect vulnerable consumers at any time of year, and to reconnect a customer as a matter of priority and usually within 24 hours, if they are later found to be vulnerable. Regulators take these assessments and monitoring of consumers very seriously indeed and see it as an absolutely core part of their role.
Lord Jenkin of Roding
I start by saying that I am most grateful to noble Lords who have voiced their support for the amendment. If we were to debate this in a wider forum, we might find a good deal more support. I certainly have that in mind. We may return to this matter on Report.
Having said that, I am very grateful to my noble friend for spelling out so clearly what she and her colleagues in government see as the difficulty of forming, as she came back to again and again, an aggregate view. I do not think that people are looking for an aggregate; they are looking for consistency and a common approach to find out how much of this investment will actually fall on consumers.
The example that the noble Lord, Lord Berkeley, gave of the Thames tunnel has been very carefully worked out by Thames Water with the help of Ofwat. What the charge is going to be on water consumers—I am one of them—is known, perhaps not over the next 80 years, but over the next two or three years. I do not know how long it will be. That is the kind of example that might well be extended to other interesting investments.
This is the impression I have formed on what the UKRN is going about. I was getting very depressed at one point when the Minister was spelling out the impossibility of doing what we were asking it to do. Yes, the UKRN is a very important innovation. It is a much stronger and more effective body than its predecessor. It is emphasising cross-sectoral issues and looking, as I said a few moments ago, for consistency. It will be able to add considerable wisdom over the next two or three years and help successive Governments to try to make a better estimate of what an investment programme of the size that we now face in this country, running into hundreds of billions of pounds, is going to cost consumers.
Baroness Kramer
The language of the amendment is that the Treasury must assess the,
“cumulative impact of infrastructure spending”.
That is why I used words such as “aggregate” and “cumulative”; I am happy to substitute “cumulative”. That is our problem.
Lord Jenkin of Roding
I quite understand that. I take that point. Indeed, I read the evidence that was given to the Public Accounts Committee by John Kingman. He made that point very thoroughly. He is an extremely able civil servant and he declared himself very firmly as the chief official in the Treasury concerned with the impact on consumers. He made the exact point my noble friend has made that there are great differences between the industries and the different circumstances.
One is looking for consistency on this—I keep coming back to that word. The UKRN is going to be in the position to throw a good deal of light on this. I was therefore very grateful when my noble friend said its establishment was an important step forward. That is a good start. Parliament is going to have to push this in both Houses. I do not know whether the Public Accounts Committee report and the Government’s response are going to be debated in another place, but we would certainly have an opportunity, in the context of this Bill, to air the matter again on the Floor of the House. We will certainly take account of the points my noble friend has made and perhaps revise the wording of the amendment accordingly. In the mean time, I am very happy to withdraw it.
“Revenue from shale gas: sovereign wealth fund
(1) The Secretary of State may, by regulation, establish a sovereign wealth fund to receive and deploy revenue from the extraction and sale of shale gas.
(2) The regulations shall provide—
(a) that the fund shall receive no less than 50% of any revenue received by the United Kingdom Government from any activity connected with the extraction and sale of shale gas;(b) that the assets of the fund shall be deployed to serve long term public objectives other than those connected with monetary and exchange rate policy;(c) that the assets of the fund may be deployed in the United Kingdom or overseas;(d) that no more than 4% of the assets of the fund may be paid out in any one year; and(e) for the governance, independent oversight and transparent reporting of the activities of the fund.”
For those unfamiliar with the term “sovereign wealth fund”, it means a fund created by a state to receive all or part of the revenue or profit from a particular source or activity. It operates under the auspices and laws of its host state. Its assets remain in that state’s ownership and those who manage the fund are answerable for their performance. To be absolutely clear from the start, the amendment does not propose the creation of an uncontrolled or uncontrollable body that can charge about like a rogue elephant.
Lord Teverson
My Lords, I congratulate my noble friend on putting forward this excellent amendment. It would be very good if something like this appeared in the manifestos of however many parties we have in the general election next year.
This comes down to the stewardship of the proceeds of non-renewable resources. That is the point. My part of the world, Cornwall, was one of the richest mining areas in the 19th century. Over a period of about 60 years it had the equivalent of billionaires and some of the greatest exports. It was certainly one of the richest parts of the UK. Where is it now? It is one of the poorest EU regions and receives some of the highest forms of EU aid in the European Union. Not one penny of that income from tin, copper and arsenic was retained, so we have an example of how that generational opportunity was very soon dissipated and lost to today’s generation. Perhaps that is a very simplistic illustration, but it is a very real one. We have one small quasi-sovereign wealth fund in the UK: the Shetland Charitable Trust. There are issues around that, but that local authority has managed to keep some of the proceeds from North Sea oil.
The noble Lord, Lord Hodgson, made the point extremely well. As he said, the Norwegian fund is so large that for each citizen—some 5 million of them—it would be something like $200,000 within a three-year period.
Having spent the income from North Sea oil, I do not see that within a European context overall we are wildly ahead of some of our neighbours because we had that asset. Clearly it is a challenge to government, and I suspect that the Treasury is not so keen in this area, particularly when we are tackling a £90 billion per annum deficit. It may be that this is a difficult time to persuade the Treasury that we should start banking it rather than paying off the mortgage. However, I think this is an important area. It is intergenerational. We think more about those issues these days. You have to start somewhere with something like this. You start when you start to explore and use a new non-renewable resource, and unconventional gas or oil is one of those. The start may be modest but I hope that as we reduce the deficit in our public expenditure such a sovereign wealth fund can take up the slack and be of benefit to future generations.
Baroness Maddock (LD)
My Lords, I am happy to support this amendment. It is probably two weeks ago today that I was in Norway on an Inter-Parliamentary Union visit. We were privileged to have a presentation about the Norwegian sovereign wealth fund: how it started, where it was and the fact that during the recession we have all suffered, the sovereign wealth fund did not suffer. It was interesting to see it from that point of view, but we need to be aware of two things that are very different there.
Lord Davies of Oldham
My Lords, I will be very brief. First, I congratulate the noble Lord, Lord Hodgson, on his excellent exposition of a very important concept. We see much merit in it. The one thing that we cannot replicate as far as the Norwegians are concerned is that they launched their fund at a time of great and increasing prosperity. Any Government in power at present or for the foreseeable future in the United Kingdom are not faced with that same position.
Secondly, there is a community dimension to the issue of shale gas. We are all too well aware of the price that local communities might pay in terms of disruption while the shale gas is mined. Thirdly, I emphasise that while we may underestimate how much is there, of course we may overestimate it too. It is much easier to identify how much is there than to actually extract it. Therefore, we must be able to follow the greater balance of optimism that exists in some places. None the less, the Committee ought to be enormously grateful to the noble Lord, Lord Hodgson, for raising this issue. I hope that the Minister will give him a positive response.
Baroness Verma
My Lords, first, I thank my noble friend Lord Hodgson for his amendment and for the most eloquent way in which he explained the merits for the Norwegian people of having a sovereign fund. Of course, shale represents a huge economic opportunity for the UK. It could potentially create thousands of jobs, generate significant business investment and provide substantial revenue for the Exchequer in future.
However, unlike the offshore industry in Norway, the shale industry in the UK is still very much in its early stages. The Norwegian Government’s petroleum fund was established in 1990, as my noble friend said, but that was nearly 20 years after oil first started being produced and when the levels of revenue were well known. In the UK, shale gas is still in the exploration phase. My noble friend said that it was a potential but as yet an unknown. The Government will not be able to forecast the scale or timing of shale revenues until more work is done to determine the extent of gas that can be technically and commercially recovered. It would therefore be inappropriate to indicate now how potential future revenue would be used. As a result, the Government have no current plans to assess the possibility of creating a sovereign wealth fund from this revenue.
I recognise the arguments behind this amendment. Diverting future revenues from government finances to a specific shale fund, or one created by revenue from other natural resources, would come at a cost. Shale revenues may also be needed to make up for shortfalls elsewhere. The UK continental shelf is a mature basin and oil and gas revenues from the North Sea are declining; the Government would likely need to either raise additional tax revenue elsewhere or cut spending to maintain the fiscal balance. The Government consider that, in general, hypothecation, or earmarking revenues for a particular spending purpose, is not always an efficient way in which to manage the public finances. Like all government receipts, revenues are remitted to the consolidated fund to support general expenditure. My noble friend Lord Teverson recognised that fact. Once it goes to the Treasury, it becomes slightly difficult to extract it—but that is because of the methods that we have used, whichever Government have been in power. It allows the Government to allocate resources most efficiently across the economy.
I thank all noble Lords for contributing. It has been a very informative debate, which has raised some very important points. The noble Lord, Lord Davies, said in his concluding sentence that I should be sympathetic to this proposal. Is it something that the Labour Party will put in its manifesto for the next general election? It would be interesting to know how that debate would follow.
Lord Davies of Oldham
Could I ask the Minister whether she thinks she will put it in her manifesto?
Baroness Verma
I have laid out very clearly our position in government. Generally, hypothecation of revenue is not something that we support.
I conclude by recognising that the noble Lord has made some incredibly important points, but I feel that I cannot accept his amendment and hope that he withdraws it.
Lord Hodgson of Astley Abbotts
I thank my noble friend. I feared that “inappropriate” and “hypothecation” would be words used in the arguments produced. I am grateful to noble Lords who have taken part in support of the amendment. The noble Lord, Lord Teverson, put his finger on the matter. If we do not set it up when we start, it will never get set up; it either happens now or it will never happen. Once the money starts to flow, no Government will ever take their hands off it, and the Treasury certainly will not. So we either set the framework up now or this will go the same way as North Sea oil.
The argument that my noble friend has not answered at all—it is unanswerable—is about the inter-generational fairness. Why should we spend it all on ourselves? No matter what the situation may be, if we have got ourselves in a hole we should clamber out of it and not try to rob future generations of what they should share with us. I shall not go on any further, but I am disappointed with what my noble friend has said, although I am not surprised. I shall discuss the matter with people who are more sympathetic with what I am trying to achieve and see whether they want to come back to this at a later stage. I beg leave to withdraw the amendment.
Baroness Kramer
“(ba) regulations under section (Payment scheme) or (Notice scheme), or”
Baroness Kramer
“(4) In Part 4 (energy)—
(a) sections 26 and 27, sections (Maximising economic recovery of UK petroleum) and (Levy on holders of certain energy industry licences), sections (Petroleum and geothermal energy: right to use deep-level land) to (Interpretation), and 28 and Schedules 5 and (The Licensing Levy) extend to England and Wales and Scotland, and(b) section (The Extractive Industries Transparency Initiative) extends to England and Wales, Scotland and Northern Ireland.”
Baroness Kramer
The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)
I have to advise the Committee that if Amendment 98AZA is approved, I shall not be able to call Amendment 98AB for reason of pre-emption.
Amendment 98AZA
Baroness Kramer
“(5) In Part 4 (energy)—
(a) sections 26 and 27, section (The Extractive Industries Transparency Initiative), sections (Petroleum and geothermal energy: right to use deep-level land) to (Interpretation), and Schedule 5 come into force at the end of the period of two months beginning with the day on which this Act is passed,(b) sections (Maximising economic recovery of UK petroleum) and (Levy on holders of certain energy industry licences) and Schedule (The licensing levy) come into force on such day as the Secretary of State appoints by regulations, and (c) section 28 comes into force on the day on which this Act is passed.”
Baroness Kramer
Baroness Kramer
House of Lords
Thames Tideway Project: Contingent Guarantees
(10 years ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Berkeley
To ask Her Majesty’s Government why they have indicated the availability of contingent guarantees in support of Thames Water; and whether this complies with their policies on offshore financial instruments, governance and taxation.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord De Mauley) (Con)
My Lords, to be clear, the Government are not providing a contingent guarantee to Thames Water. The Thames tideway tunnel project will be financed and delivered by a competitively tendered infrastructure provider which is an entirely separate entity to Thames Water. Details of a contingent government support package for this entity, which complies with all relevant government policies, were announced in a Written Ministerial Statement on 5 June.
Lord Berkeley (Lab)
My Lords, I am grateful to the Minister for that reply. Every week the Government tell us that they intend to outlaw aggressive taxation and leverage policies. The Minister says that Thames Water is not going to be in receipt of these funds but the Thames tideway tunnel project will be. Why are they allowing that to be financed in a tax haven while also promising it a government guarantee? Is there not a conflict of interest here somewhere?
Lord De Mauley
My Lords, I have comprehensively answered the noble Lord’s point about tax in earlier short debates on this subject. Perhaps we will come back to that later, but I will address his point about the appropriateness of offering a government support package. The contingencies covered by it are set out in the Written Ministerial Statement. It is common for Government to provide support of some kind to major infrastructure projects—for example, the PFI projects under the previous Government. The government support package here will cover low probability but high impact risks that the market could not take on at a reasonable cost to customers. The infrastructure provider will be incentivised not to call on it and it will exist only during the construction phase. The important thing to bear in mind is that the infrastructure provider will pay for the cover. Furthermore, the financing for the project is sought competitively to help minimise the cost—and that means the cost to customers.
Baroness Parminter (LD)
My Lords, given the Government’s work with Infrastructure UK, Thames Water and Ofwat to identify the exceptional risks for which the contingent financial support has been offered, what measures have the Government asked to be put in place to minimise the likelihood of those risks and the resulting cost to the taxpayer?
Lord De Mauley
My Lords, the latter half of my noble friend’s question is quite difficult to answer at this stage. The Written Ministerial Statement referred to the contingencies covered by the support package. There are, for example, measures to deal with situations where claims exceed insurance cover, where economic or political events affect access to debt finance, where there are exceptional cost overruns and where the IP goes into special administration. It allows for discontinuation in certain circumstances and deals with how value for money for taxpayers is to be achieved. I can assure noble Lords that we have kept this to an absolute minimum to ensure a competitive process.
Lord West of Spithead (Lab)
My Lords, will the Minister confirm that Thames Water has now put in place all the security measures that were required to ensure that water supplies cannot be easily contaminated or poisoned by terrorists?
Lord De Mauley
I cannot answer that specific question. I can say that it is Ofwat’s job to oversee exactly what each water company does, particularly Thames Water.
Lord Brooke of Sutton Mandeville (Con)
Pursuant to the question asked by the noble Lord, Lord West, is my noble friend aware that on the Thursday of the occupation of the Iranian embassy rather more than 30 years ago, the chairman of Thames Water was rung up by an anonymous caller on that morning and asked whether, if he received instructions to cut off the water to any of his customers, he would accept that order implicitly? The chairman replied, “If it was the Iranian embassy, yes; if it was any other customer of ours, no”. In my view, he demonstrated considerable knowledge of the international scene.
Lord De Mauley
I know that we are always grateful to my noble friend for his grasp of history. He was there. On the question asked by the noble Lord, Lord West, it is important enough that I will write to him.
Lord Grantchester (Lab)
My Lords, we have heard growing anxieties around certain facets of the water industry. Further to the specification and preparatory works notice regarding the Thames tideway tunnel recently published, will the Government look again at the value-for-money condition to provide better clarity concerning financial commitments for customers before agreeing contingent government support?
Lord De Mauley
My Lords, I agree 100% with the noble Lord that value for money for customers is absolutely key and is an absolute focus of the Government.
Housing: Private Rented Sector
Lord McKenzie of Luton
To ask Her Majesty’s Government what steps they will take to improve housing stability for those renting in the private sector, particularly families.
Lord McKenzie of Luton (Lab)
My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I draw attention to my interest declared in the register.
The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Lord Ahmad of Wimbledon) (Con)
My Lords, the Government are avoiding the excessive red tape which would push up rents and reduce supply. We have recently published a model tenancy agreement to encourage longer, family-friendly tenancies. Our £1 billion Build to Rent fund will deliver up to 10,000 new homes for private rent, and our housing guarantee schemes will attract long-term investors into the market to increase choice, quality and stability for renters. In responding to the Question, I, too, refer the House to my entry in the register of interests.
Lord McKenzie of Luton
My Lords, I thank the Minister for his reply. We know that the demographics of those renting privately has been changing, with more families and children in the sector. However, for many, it is not through choice: they are priced out of the private market and cannot secure a social home. We know that it is the most expensive type of tenure and that tenants are nine times more likely to move than in other sectors. Of course, this is especially disruptive to the education of children. While we note from the model tenancy agreement that the Government say that they now see the benefit of longer-term tenancies and some predictability on rent increases, why will they not legislate to give tenants the right to such tenancies? What would the Minister say to a family who want to stay put to have the peace of mind that children can continue at the same school but have been refused a longer-term tenancy on the lines of the Government’s model?
Lord Ahmad of Wimbledon
My Lords, first, on the final point, I totally agree with the noble Lord on the need for long-term tenancies to ensure the education of children. As a father of three, that is something to which I can relate personally. However, I take issue with the suggestion about the private rented sector in terms of cost. If we just examine some of the facts, private sector rents have actually fallen in real terms every single year through this Government in England, including in London. If you account for inflation, for example in London they have risen by 1.1%. Average rents are down in real terms: inflation was 1.6% for the year to March, while rents grew by just 1%.
On the issue of length of tenancies, while I hear the point made by the noble Lord that the length of tenancies could be increased through legislation, practice has shown that tenancy lengths have increased by 6%, to about 3.8 years for an average tenancy, and 80% of private renters who have moved in the last three years ended their tenancy because they wished to move to another property.
Lord Morris of Handsworth (Lab)
My Lords, will the Minister tell the House to what extent the bedroom tax contributes to families being made homeless?
Lord Ahmad of Wimbledon
Issues around the spare room subsidy are well documented. The important principle behind that particular policy which should not be forgotten was to ensure that more rooms and more housing could be made available to those who needed it. While that policy has caused some concern in certain areas, currently we are demonstrably seeing that the rooms that are being freed up are being utilised. We are seeing more rooms being made available to address the acute need and demand for housing.
Lord Shipley (LD)
My Lords, the Minister referred to the success of Build to Rent, in that it will have built some 10,000 homes by 2015. Do the Government have any plans to extend Build to Rent? Have they given any thought to the creation of a housing investment bank, which could lend money and create more housing units in the private rented sector, thus giving greater foundations to those who are renting by enabling them to stay in their homes at rents that they can afford?
Lord Ahmad of Wimbledon
My noble friend raises an important point about expanding the rented sector. He is correct that our £1 billion Build to Rent fund will provide development phase finance to large-scale private rented sector developments, building up to 10,000 new homes. Eight round 1 projects are now in contract, worth £124 million and delivering more than 1,600 new homes for private rent. He also asked about other schemes and I have heard the suggestion that he put forward. The Government are currently supporting the housing guarantee schemes, which are now open for business and supporting up to £10 million-worth of investment in large-scale private rented projects and in additional affordable housing. For example, the delivery partner in our private rented housing debt guarantees has received a lot of strong interest. A £500 million European Investment Bank loan facility for affordable housing debt guarantees, which was announced on 7 January this year, has attracted eight borrowers. So there are a variety of schemes that the Government are supporting and promoting to ensure that we address this very important need.
The Lord Bishop of Rochester
My Lords, I am grateful to the Minister for his assurance that the Government are aware of the needs of families in relation to the length of tenure for tenancies. Is the Minister also cognisant of the needs of retired persons, where length and stability of tenancy are important not only for their well-being in old age but also for their contribution to the communities where they are living in a sustainable way?
Lord Ahmad of Wimbledon
The right reverend Prelate again raises an important point at the other end of the age spectrum, and the Government are very much cognisant of ensuring stability for residents and that their needs are met. One thing on which we are clear is our approach to the private rented sector, through landlords, through providing greater protection and a greater sense of professionalism for both landlords and agents. We are also helping provide an increased level of guidance to tackle any perceived rogue landlords and making more help available to tenants in this particular sector.
Baroness McIntosh of Hudnall (Lab)
My Lords, I think some Members of your Lordships’ House were a little surprised by the figures that the Minister produced in relation to average rent increases, particularly in London. Will he tell the House where those statistics have come from and who produced them?
Lord Ahmad of Wimbledon
Our statistics come from a variety of sources, but I will write to the noble Baroness on that—
Lord Ahmad of Wimbledon
Noble Lords may laugh, but I have the figures in front of me which I quoted. The noble Baroness raises an important point about the verification of sources and I shall, of course, inform the House accordingly.
Lord Forsyth of Drumlean (Con)
My Lords, is my noble friend satisfied with the asymmetric treatment of tax relief on mortgage interest for buy-to-let landlords, which has the effect of forcing up prices and thus giving them an advantage over private buyers and ultimately pushing up rents?
Lord Ahmad of Wimbledon
The Government have shown, through the various schemes which have been launched recently, our commitment to ensure that more people can engage with the property ladder. For example, a recent scheme that my noble friend may be aware of is that of rent to buy. Some £400 million is being made available to allow people to rent now and buy later. As he knows, we have also introduced the Help to Buy scheme, which is helping 53,000 new households. He made the important point that perhaps some people would be gaining more perceived benefits. He may well be satisfied with the point I would put to him: that through our initiatives the Government are demonstrably ensuring that the ability to purchase your first home is being made more widely available.
Money Laundering: UK Parliamentarians
(10 years ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Clement-Jones
To ask Her Majesty’s Government whether they will make representations about the inclusion of United Kingdom parliamentarians under the definition of “Politically Exposed Persons” in the European Commission’s proposed fourth Money Laundering Directive.
The Commercial Secretary to the Treasury (Lord Deighton) (Con)
My Lords, while UK parliamentarians are not currently considered to be “politically exposed persons”—or PEPs—domestically, revised global standards to which the UK is fully committed will require that they are treated as such. These global standards require enhanced due diligence and ongoing monitoring only when the business relationship is assessed as high risk. The UK will make representations when negotiating the fourth money laundering directive to ensure that it reflects these standards.
Lord Clement-Jones (LD)
My Lords, I am afraid that my noble friend’s response is only partly reassuring. Even before the fourth directive has come in, many Members of this House and their relatives are being treated as PEPs. I myself and my son were unable to access an ATM and my brother was unable to exercise a joint power of attorney. What steps is the Treasury taking to show Members of Parliament in both Houses that in future they will not be treated in exactly the same way as a deposed dictator or a political pariah?
Lord Deighton
My Lords, the key here is in the approach of the banks in doing their due diligence appropriately. The main feature of these arrangements is that domestic PEPs should be assessed in terms of their level of risk, and in the main UK parliamentarians should be assessed as low risk and, frankly, treated in precisely the same way as any other customer. The problem is when banks do not apply the right kind of risk-based assessment and instead revert to inappropriate box-ticking approaches.
Lord Harris of Haringey (Lab)
My Lords, perhaps the Minister will explain that to the clearing banks in this country. Perhaps he could explain why my daughter, who was then aged 12, was required to appear with her driving licence and a utility bill in her name in order to be allowed to have a savings account with no more than 40 quid in it.
Lord Deighton
I absolutely accept the criticisms that are made where banks behave disproportionately. It happens too often and we should work with them to fix that. I will certainly undertake to look at the revised guidance that will be coming out as part of these arrangements to ensure that the banks take a proper, risk-based approach which is sensitive to the real risks involved in these transactions. I would encourage Members to follow up with their banks when there is a problem. It is appropriate to complain to the Financial Ombudsman Service, which is a facility that we have in place. I took the liberty of looking at the number of complaints about PEPs received by the financial ombudsman. I think that there were around 50 in 2013 and 30 this year out of a total of half a million complaints. However, I encourage Members to pursue their interests.
Lord Wright of Richmond (CB)
My Lords, is the Minister aware, although I rather doubt whether he is, that my two sons coincidentally tried to open bank accounts in Singapore and in New York? In both cases they were asked who their father was, and on discovering that I was a Member of this House, were both refused accounts.
Lord Deighton
It is always difficult for me to comment on individual cases. I think that Members are making their points very clearly, with a variety of illustrations that I absolutely take on board. I will certainly follow up with the banks domestically through the Joint Money Laundering Steering Group, which provides the guidance. We are trying to strike a balance that makes it impossible for corrupt politicians, terrorists and criminals to go about their business but which leaves the rest of us unimpeded to go about our lives in a normal way.
Lord Flight (Con)
My Lords, the position of Members of this House and of the Commons is far worse than the Minister suspects. Some 150,000 people are rated as PEPs in this country, covering virtually all Members of this House and the House of Commons, including all spouses and all children. Wearing a hat as a banker I would add that, worst of all, banks are required to look at every transaction in the account of a PEP, both in and out, to satisfy themselves that they are proper transactions. The world of PEPs is by no means limited to just those who someone thinks are high risk. It covers virtually everybody and is completely out of control.
Lord Deighton
My noble friend is correct that the PEP definition includes close family members and business associates. I go back to the original point that it is not within the banks’ responsibility to look at every transaction of a domestic PEP; they should be assessing whether that PEP is high risk. If the PEP is not high risk, the banks should treat them like every other customer. That is where we need to focus our efforts to correct this problem.
Lord Soley (Lab)
My Lords, I do not think that the Minister has taken on board the full range of problems, as other companies also put an unreasonable interpretation on this requirement. I am far from convinced that the way it has operated has at any time been useful in stopping money laundering, and we need to take a much harder look at it. It would be far better to look at other methods of checking for money laundering than simply asking for a person’s occupation and then declaring that they may therefore be a risk.
Lord Deighton
First, my Lords, I need to make the point that having an effective, comprehensive, international campaign against money laundering is a critical weapon for us, and we are taking leadership in this area. I absolutely accept that the implementation domestically needs to be significantly refined. As I have already said, I will work with the FCA and the industry bodies to ensure that we have a more proportionate application of the rules.
The Lord Privy Seal (Baroness Stowell of Beeston) (Con)
My Lords, if we can be brief we will hear from the Cross Benches and then from the Liberal Democrats.
Lord Levene of Portsoken
My Lords, the Minister started his remarks by saying that those of us in this House should have little to worry about. I have to say, from personal experience of having an account in France to look after the small needs of the home that I own there, that one is treated as if it were the Spanish Inquisition. They really do not want to know any differently. Can the Minister give an assurance to the House that he will convey to his colleagues in Europe that these rules are meant to be applied reasonably and not draconically?
Lord Deighton
I can confirm that that will be precisely the message in the final negotiations on the fourth money laundering directive.
Lord Razzall
My Lords, I am sure that the Minister will accept that his answers have not entirely reassured Members of this House who are treated as politically exposed persons. Perhaps he can explain to me and to many of my colleagues who are not members of the Government: what is it that we might do, or what might be done to us, that makes us politically exposed people?
Lord Deighton
The thing to remember is that although the intention behind this approach is to catch potentially corrupt public officials around the world, defining someone as a PEP is not an end in itself—it is merely a trigger point at which an assessment should be made of the individual’s business and whether it is high risk. It is that assessment of whether it is high risk that is not working well enough at the moment.
Lord Davies of Oldham (Lab)
My Lords, is it not clear that the House is struggling with two concepts: on the one side, that the Minister might be right; and on the other, that something good might come out of Europe? On this occasion, both things obtain.
Lord Deighton
I am not sure that there is a particular answer to that. I think that I have been extremely clear about what we are trying to accomplish. I accept where the challenges are and I accept that we need to do a lot of work with the banks on the implementation of the rules to make sure that they are proportionate.
ISIL
(10 years ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Avebury
To ask Her Majesty’s Government what additional measures they are suggesting to allied states to prevent ISIL occupying further territory in Syria and Iraq.
The Minister of State, Foreign and Commonwealth Office (Baroness Anelay of St Johns) (Con)
My Lords, we are working closely with allies to deliver a sustained, comprehensive strategy to degrade and defeat ISIL. We welcome the recent decisions of Canada, the Netherlands, Belgium and Denmark to join air strikes against ISIL. The Foreign Secretary continues to emphasise to our counterparts the need collectively to squeeze ISIL’s finances, to provide appropriate support to moderate forces in Iraq and Syria, and to work for an inclusive Government in Baghdad and political transition in Syria.
Lord Avebury (LD)
My Lords, we are about to witness genocide, with the Daesh terrorists slaughtering thousands of Kurds in the besieged city of Kobani. Cannot the coalition airdrop military and humanitarian supplies to the defenders, as it has done in Iraq? If the Turks cannot help us by allowing use of airbases, as was suggested by Susan Rice yesterday, could they not at least allow the coalition to place observers on the border, so that the air strikes that we are mounting against ISIS in Kobani can be directed by observers on the ground?
Baroness Anelay of St Johns
My noble friend points to a situation in Kobani which deeply concern us all. Naturally, we are watching developments very closely. Turkey is already playing an important role in our coalition effort against ISIL, particularly through its humanitarian support in the region—my noble friend referred to that work, which I am sure will continue and intensify. Turkey is also assisting in providing support to the Syrian moderate opposition. Therefore we welcome Turkey’s support for the air strikes in Syria and Iraq, and the President of Turkey’s affirmation that he and his country are willing to play their part in the military campaign. My noble friend is right to press us to look further at how we might discuss with Turkey where that direction of help may develop. I am grateful to him for raising those issues today.
Lord Anderson of Swansea (Lab)
My Lords, the Foreign Secretary told the Telegraph yesterday that there was a legal basis for air strikes in Syria—not just in Iraq, where there is no doubt—but as there is no Security Council resolution and no question of self-defence, on what doctrine of international law do the Government depend?
Baroness Anelay of St Johns
My Lords, with regard to Iraq, the position was set out clearly in the recall of Parliament, and my noble friend the Leader of the House repeated that. With regard to Syria, there are arguments that there is a legal basis in international law; namely, where there is a humanitarian disaster, action may have to be taken. What I can say clearly is exactly what the Prime Minister and the Leader of this House have said; that is, if we get to a position where it is felt appropriate to move to further engagement and if there is a knowledge ahead, a premeditation, of taking further action, then nothing will be done unless the Government return to Parliament to have that matter considered.
Lord Alton of Liverpool (CB)
My Lords, in her reply, the Minister mentioned the importance of an inclusive Government in Baghdad. Given the number of Sunni Muslims who have been antagonised by the kinds of policies that have been pursued in the past, can she say what more is being done to prevent them becoming a fertile breeding ground for IS? Will she say a word also about the position of the Yazidis, Christian minorities and others, who are without adequate accommodation as the winter months now approach?
Baroness Anelay of St Johns
My Lords, there are two different strands there; I will refer to the humanitarian effort first. Clearly, as winter draws in fast, the humanitarian effort has to be directed at preventing people from dying of hypothermia. It is a most serious matter. I know that DfID has clearly worked hard on that, and, I understand, so have our partners. I discussed those matters with the president of the International Committee of the Red Cross when I was in Geneva last month. With regard to the way in which minorities have suffered in the existing crisis, it is clear that life in the whole area for Christians and other minorities is deeply distressing. We certainly discussed repeatedly with the Government of Iraq how that might be resolved. I can say to the noble Lord, Lord Alton, that when Foreign Office Ministers visit the region, they always meet the Christian communities to discuss their concerns. My honourable friend Mr Ellwood, in his visit at the end of August, specifically raised the persecution of Christians with the then Foreign Minister Zebari and other senior officials. It is something that we take very seriously.
The Archbishop of Canterbury
My Lords, I thank the noble Baroness for her last answer, which was very reassuring. However, given that the terrible events in Iraq and Syria are the result of a global phenomenon of ideology, what steps are the Government taking to support other areas such as Nigeria, Kenya, Somalia, Pakistan and Sudan where similar problems need to be either prevented, mitigated or contained?
Baroness Anelay of St Johns
My Lords, this is a matter that I discussed this very morning with a group set up by my noble friend Lady Warsi at the Foreign Office. She did most important work; the group is considering freedom of religion or belief. I can say firmly not only that this is one of the six priorities for this Government, but, as when my noble friend Lady Warsi led on this, it is a personal priority for me to ensure that throughout government and throughout our discussions, we consider exactly those points. It is not just a matter of looking at one area but of considering how a breaking down of religion or belief around the world can undermine the very societies in which people need to have security.
Leader of the House of Lords Bill [HL]
Deputy Chairmen of Committees
The Chairman of Committees
That Lord Taylor of Holbeach be appointed a member of the panel of Deputy Chairmen of Committees, in place of Baroness Anelay of St Johns.
Select Committees
The Chairman of Committees
That Lord Taylor of Holbeach be appointed a member of the following Committees, in place of Baroness Anelay of St Johns: Administration and Works, Privileges and Conduct, Procedure and Selection.
Arctic Committee
The Chairman of Committees
That Baroness Neville-Jones be appointed a member of the Select Committee in place of Lord Ashton of Hyde, resigned.
Serious Crime Bill [HL]
(10 years ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Bates
“( ) After that section insert—
“18A Provision of information as to defendant’s interest in property
(1) This section applies if the court—
(a) is considering whether to make a determination under section 10A of the extent of the defendant’s interest in any property, or(b) is deciding what determination to make (if the court has decided to make a determination under that section).In this section “interested person” means a person (other than the defendant) who the court thinks is or may be a person holding an interest in the property. (2) For the purpose of obtaining information to help it in carrying out its functions under section 10A the court may at any time order an interested person to give it information specified in the order.
(3) An order under this section may require all or a specified part of the information to be given in a specified manner and before a specified date.
(4) If an interested person fails without reasonable excuse to comply with an order under this section the court may draw such inference as it believes is appropriate.
(5) Subsection (4) does not affect any power of the court to deal with the person in respect of a failure to comply with an order under this section.
(6) If the prosecutor accepts to any extent an allegation made by an interested person—
(a) in giving information required by an order under this section, or(b) in any other statement given to the court in relation to any matter relevant to a determination under section 10A,the court may treat the acceptance as conclusive of the matters to which it relates.(7) For the purposes of this section an allegation may be accepted in a manner ordered by the court.
(8) If the court makes an order under this section it may at any time vary it by making another one.
(9) No information given by a person under this section is admissible in evidence in proceedings against that person for an offence.””
The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con)
My Lords, in Committee there was a helpful debate on the provisions in Clauses 1 to 4, which relate to third-party interests in assets subject to a confiscation order. There was general agreement that the current arrangements for considering third-party interests are not sufficiently robust, allowing defendants to drag out and frustrate the enforcement of confiscation orders. The Bill addresses this by bringing forward the determination of third-party interests from the enforcement stage to the confiscation hearing and conferring new powers on the court to make binding determinations as to the extent of any third-party interests.
As part of this process, Clause 2 creates a requirement for the prosecutor to detail any known third-party interest in property associated with the defendant in their statement of information. That includes any interests that the defendant may have in companies, trusts, bank accounts and property. The defendant will then be under a duty to respond to every allegation in the prosecutor’s statement for which information has been supplied and the extent to which each allegation is accepted. Where an allegation is disputed, the defendant must provide full details of any matters relied on.
That is a very wide-ranging power, and the court may order the provision of any information from the prosecutor or the defendant that it believes it requires. The court may then use that information to make a determination at the confiscation stage as to the defendant’s interest in property. In making such a determination, the court will, by extension, also be ruling on the extent of any third-party interests in the relevant assets.
As my noble friend Lord Taylor said in Committee, there was general welcome for the provisions, but the noble Baroness, Lady Smith, questioned whether more could be done to address the problem. Having reflected on the debate, we agree that there is one further step that can usefully be taken further to enhance the court’s powers. Amendments 1 and 14 now provide the court with the power to order an interested person, such as someone making a claim against the defendant’s property, to provide the court with any information that the court believes necessary to determine the defendant’s interest in the property.
Conferring such a power on the courts will further strengthen the provisions to tackle bogus third-party claims. It is unlikely to be necessary for a court to order an individual with a legitimate claim to provide information—it is in that person’s interest to do so on their own initiative. The amendments are, however, aimed at individuals who are attempting to make spurious claims on behalf of—in all likelihood, in collusion with—a defendant to protect an asset from confiscation. Those individuals are unlikely to want to co-operate with the court by providing a witness statement unless compelled to do so. If a person fails without reasonable cause to comply with an order to provide information to a court, it may draw such inference as it believes is appropriate. Thus, for example, if a third party fails to provide information substantiating their alleged interest in property that the prosecution believes is wholly owned by the defendant, the court will be able to draw the conclusion that the property in question is indeed 100% owned by the defendant.
I trust that the House will agree that that represents a sensible addition to the court’s powers to ensure that the effective and timely enforcement of confiscation orders is not deflected by spurious third-party claims.
I will respond to Amendment 4, which is grouped, once the House has had the opportunity to hear from the noble Baroness, Lady Smith. For the time being, I beg to move Amendment 1.
Lord Warner (Lab)
My Lords, I support my noble friend’s amendment. I apologise to the House for not being able to participate in the earlier stages of the Bill. I am doing so now mainly as a result of my membership of the Joint Committee on the draft Modern Slavery Bill, which will be coming to this House later in the Session. The Minister may recall that the Joint Committee made a number of recommendations to improve asset recovery, given what I might describe as the lacklustre performance in this area under the 2002 Proceeds of Crime Act, which was heavily criticised by the Public Accounts Committee.
In the Government’s response to the Joint Committee’s report, they said that the regime in the 2002 Act would be strengthened through this Bill and that they would use what they called,
“a range of non-legislative proposals to improve performance”.
They committed to implementing most of the committee’s legislative recommendations through a combination of this Bill and the Modern Slavery Bill. I have some concerns that the Bill before us does not really cut the mustard in terms of protecting proceeds of crime for the benefit of victims under the Modern Slavery Bill. I do not want a situation where, when this House gets to the Modern Slavery Bill, we are told that we have not done all we should under the Serious Crime Bill.
The key issue for the Joint Committee was the ability of the police, prosecutors and the courts to move swiftly to ensure that there were some assets to confiscate on securing a conviction. This means that when the police are about to act, they have to enable prosecutors to go to the court to try to freeze assets, not only to secure proceeds but to prevent those assets being used for criminal purposes. It is far from clear in the Bill how this is to be achieved. Can the Minister point me in the direction of provisions that effectively allow this early intervention to safeguard assets for confiscation? What work has been undertaken on the non-legislative means, especially with the police and prosecutors, to ensure that the previous practices are put to one side and that their behaviour and conduct are changing more in line with the need to confiscate such assets? What confidence can we have, when we come to consider the Modern Slavery Bill, that the Bill before us has been toughened up sufficiently to improve the prospects of securing the proceeds of crime for the benefit of victims?
Can the Minister also explain why he thinks that the government amendment on third party goes far enough to secure control over third-party holdings of criminal assets? Asking people who are sophisticated criminals to provide information about the transfer of assets to them is hardly likely to produce much in the way of assets for victims. Why cannot the police and prosecutors seek restraint on suspicion of asset transfers or shared use at a much earlier stage in the proceedings? I accept that the transfer of assets abroad poses more difficult jurisdictional issues, but should we not be raising this issue while this Bill is before the House, rather than waiting for the Modern Slavery Bill? Many of us who were on the Joint Committee will assuredly be raising these issues if we do not think that the committee’s report has had an adequate response.
To sum up, I suggest that the Bill leaves too many questions unanswered about a more credible system for restraining the disposal of criminal assets before conviction. That is why my noble friend’s amendment is so helpful; I think it helps the Government off a hook. The Home Secretary has made it clear that the Modern Slavery Bill is a flagship Bill for her, so I do not think that she will be desperately pleased if we get to the consideration of that Bill and find that we have blundered over these provisions when we get there.
Baroness Smith of Basildon (Lab)
My Lords, perhaps I should have spoken to my Amendment 4 before the noble Lord, Lord Warner, but I first want to welcome the noble Lord, Lord Bates, to his new position. I know that it is not easy taking over in the middle of a Bill. I congratulate him on the amendments that he has brought forward and on some of the measures mentioned in his comments. I know he listened to the comments that we made in Committee. We spend a lot of time on Home Office matters in your Lordships’ House, and I am sure that we shall spend many happy hours debating this Bill and others.
We debated this issue at some length in Committee because nothing can be more important in this area than ensuring that proceeds of crime legislation is properly enforced. As I said at the time, we support many of the measures in the Bill, but we want to encourage the Government to use this opportunity to make the Bill as effective as it can possibly be. I shall not go into the detail of what we raised and discussed in Committee, other to say that the systems as a whole, including confiscation orders and restraint orders, are not working as well as they should. I think that was the point being made by my noble friend Lord Warner. We are not really recovering enough of criminals’ ill gotten gains. We can do better.
The noble Lord, Lord Bates, will be aware that in Committee my noble friend Lord Rosser and I went into a number of reasons why we feel the system is so ineffective and how it could be improved. These are some of the areas. The evidential threshold for freezing the subjects’ assets is very high and the cost to the CPS can be prohibitive. As we have heard, criminals often move their money overseas. There are those who try to move their money once they know that they are under investigation, and there are sophisticated criminals working here who have complex labyrinths of companies and transactions to try to hide the money. Moreover, confiscation orders are often an afterthought and the penalties for non-payments are not enough of a deterrent. Recoverable assets, including the third-party interests, are not identified early enough. There is a lack of leadership and strong incentives for the agencies involved in applying for and enforcing confiscation orders and, as we have heard, it is incredibly difficult to recover assets from overseas.
At the time, we tabled a number of amendments to address those specific areas. They were probing amendments, as we wanted to try to stimulate the debate and make some progress but also to prioritise those issues on which we felt serious progress could be made in the Bill. I say to the noble Lord, Lord Bates, that at the time I was disappointed by the answers from the noble Lord, Lord Taylor, as the then Minister. I felt that he was not really willing to engage to find ways to improve the Bill. I am delighted by the noble Lord’s comments today that I was at least partially wrong—if not entirely, unfortunately—because the Government have considered one of our amendments and I am pleased to see some amendments put down before us today.
At this stage of the Bill, we did not want to retable a whole raft of amendments that we felt could be helpful but there is still an opportunity to improve matters here. We could do better than what we have here and there is an opportunity to consider further some of the points we raised in Committee. Our amendment is a single amendment, which asks for a wider consultation to be undertaken on a number of ways in which we can improve the system as a whole. We have taken advice on this and spoken to those who are practitioners, have been involved and have given advice. There are things we could do better to really make a difference, so while we support many of the measures here and appreciate the amendment, we could be more effective. The fact that the Government have already taken on some of our suggestions indicates that room for progress remains.
I shall not go into detail on those matters that we have discussed previously but I want to focus on three areas that we think the consultation could take note of and improve. The first is the importance of early disclosure of third-party interests. The value of the money that is eventually confiscated is eroded when people other than the defendant crop up and say, “Actually, that property being confiscated is mine, or partly mine, and not the defendant’s”. Sometimes that will be genuine; equally, it is not unknown for it to be a ploy drummed up by the defendant. The practitioners have told us that this happens because the confiscation process is so lengthy and strung out that it ends up giving criminals plenty of time to be inventive in looking at ways to drum up bogus claims. It is very quick to tell the truth but it takes much longer to be imaginative.
At the moment, third-party claims are not addressed at the confiscation stage in the Crown Court. They get heard afterwards, at a different stage, in the High Court. The Bill seeks to address this by ending the split jurisdiction between the Crown and High Courts. Under the Bill, third-party claims will be determined by the Crown Court at confiscation stage. Clauses 1 to 4 introduce requirements for prosecutors to set out any known details of third-party interests in the statement of information that they provide to the court and for the defendant to detail any known third-party claims in response to the prosecutor’s statement. The court then has the power to determine the extent of any third-party interests in the defendant’s property, prior to making the confiscation order. It is good that that determination will be binding but we went further in our amendments in Committee, one of which suggested giving the court the power to order the defendant to provide information at any time under an order and details of any third-party interests in property.
The Government took that on board and we welcome the amendment the Minister has spoken to. Where a third party unreasonably fails to comply with the order, the court will be able to draw the appropriate inference. In our amendment we suggested a specific time delay of 21 days, but there is no time in the government amendment. What would be the time period here before the court can draw any inference from not providing that information? Will it be set out in secondary legislation or by order, and will they also have to notify the prosecutor of any change in circumstances—which is something we also suggested at the time.
I also assume that there will not be a reciprocal duty on the prosecutor and that the details of the investigation will not have to be disclosed to the defendant, but it would be helpful if that could be confirmed or if the Minister could tell me if I have misunderstood and if that is incorrect.
I also want to check whether the Minister has given any further thought to providing such a power to the court at the restraint stage. When I spoke in Committee, I quoted the impact assessment, which said:
“In many cases third party claims are made at a relatively late stage in proceedings and are deliberately used to frustrate confiscation investigations”.
In Committee, the noble Lord, Lord Taylor, said that it was not appropriate to bring the determination of third-party interests back to restraint stage. The reason he gave was that not all defendants were made subject to a restraint order and not all restraint orders lead to confiscation orders. That is an entirely valid point and we accept that. That is why it would be helpful for the further consultation that we are proposing to work through those points—which are important, crucial and very valid—to make sure that assets are not dissipated before we are even able to do anything about it.
The second point made in Committee which could make a lot of difference is the costs to the CPS of seeking to obtain a restraint order. One of the issues raised with us by practitioners is that when an application is unsuccessful, the prosecution is liable for the legal costs of the defendant. The CPS is undergoing cuts of 27% to its budget over the course of this Parliament. Obviously prosecutors want to minimise any risk of what could be an expensive failure. In Committee, the noble Lord, Lord Taylor, told us that it would not apply in most cases because the orders are obtained ex parte. That is correct, but we have looked into this further and, of course, not all orders are obtained ex parte. If an order is obtained ex parte, it is more likely to be appealed and significant costs can be racked up on appeal.
The amendments that we tabled in Committee suggested that defendants should be able to recover costs at legal aid rates only when an application requires an individual who has succeeded in setting aside a restraint order to pay his or her own costs. But if the alternative is to put the cost risk on to the prosecutor, there will be an inevitable dampening effect on the appetite for large-scale restraining orders, which is clearly not in the public interest. If I recall correctly, the noble Lord, Lord Taylor, said in Committee that the Government would look into this and draw it to the attention of the Ministry of Justice. Has there been any further thinking on this issue? What was the response from the Ministry of Justice?
The third point concerning deficiencies in the system is that we seek further consideration on the enforcement of orders against assets located abroad. This is perhaps one of the most important issues in the whole proceeds of crime debate. Practitioners tell us that this is one of the key problems that they face. Criminals hide their ill-gotten gains overseas. In an FOI response to the shadow Attorney-General’s office, the Serious Fraud Office revealed that £37 million of its £106 million of unpaid confiscation orders is thought to be located overseas.
Criminals are pretty savvy. When they have substantial assets, they often seek to put them where the UK authorities are least likely, and will find it hardest, to recover them. That usually means a jurisdiction with which the UK has no standing mutual co-operation agreements. Even where that is not the case, without mutual recognition of confiscation orders in the jurisdiction where the assets have been hidden, those charged with enforcing the orders effectively have to relitigate the issue abroad. It is hard, it is slow and it is not very effective. There are countries that want to co-operate with us to return criminal assets, but the process by which they would have to do so is quite difficult and drawn out, and they may not have much experience or expertise in doing so.
There is an example on page 5 of the fact sheet that is quite useful in illustrating that. So we have included in the consultation proposal a legal obligation to repatriate liquid assets subject to a restraint or confiscation order that have been removed overseas. When we tabled this in Committee, the noble Lord, Lord Taylor, said that the Proceeds of Crime Act already allows the court to make any order that it believes is appropriate for the purpose of ensuring that the restraint order is effective. But it is not being effective; time and again the issue is the ability to enforce any order.
Baroness Hamwee (LD)
My Lords, I, too, welcome my noble friend to his position. It must have come as quite a facer in the middle of his holiday to be told what a workload he was going to be coming back to.
Before I come to Amendment 4, I would like to say a word about part of the wording of Amendment 1 and indeed Amendment 14—and this point crops up elsewhere. I suspect that we are looking at a bit of modernised style, because we are told to have in mind the concept of the court “thinking”. There are a number of places now where the court “thinks”. We are quite used to words like “considers”. The Minister himself, in introducing the amendment, used the term “believes”, but one might “suppose”, “imagine” or “suspect”—one could go on for quite a long time.
I am a little concerned that we should be cautious about using modernised language without being very clear about what it means, particularly when similar concepts have been introduced in other legislation using different, and perhaps more “old-fashioned”, words. English is a rich language, and its richness covers a lot of subtleties. I just wanted to get that off my chest because I might come back to it on other legislation.
However, most of the debate so far—and we will hear more—is about the effectiveness of the restraint and confiscation regime. I share the outrage of other noble Lords about criminals salting away the proceeds of their crime. We used to discuss it quite a lot in the context of legal aid: that there were recipients of legal aid who were suspected of having a good deal of cash if only one could find it. Now, in the context of the Modern Slavery Bill, as the noble Baroness said, we could do better.
I hesitate to support the amendment going into legislation. The changes which it appears that we are all agreed should be made to the regime will barely have been in force before April 2015, which is the proposed end of the consultation period. Of course we should be assessing and evaluating the impact of the changes made by the Bill—in themselves, in the wider context and continually—to the confiscation regime. We should be prepared to make changes. Is it sensible to have a consultation running in parallel with the introduction of some alterations? Indeed, are we always talking about legislation that needs changing or about practice? I suspect that quite a lot of the problems are in the area of practice.
The noble Lord, Lord Taylor of Holbeach, explained in Committee that a couple of the proposals were, in the Government’s view, unnecessary; I do not want to anticipate what my noble friend will say. Indeed, as the noble Baroness reminded the House, on the recovery of costs, the noble Lord said that the Government would consider capping legal aid rates. However, without for a moment wishing to suggest that the concerns regarding the application of the Modern Slavery Bill are not important—they are immensely important—it seems that without the amendment there is nothing to preclude both consultation about the application of the provisions of that Bill and the bringing forward of more legislation. Conversely, consultation does not solve the issues which have been raised during the passage of the Modern Slavery Bill—which, like other noble Lords, I am very keen to see being effective.
Baroness Butler-Sloss (CB)
My Lords, the Proceeds of Crime Act has been inadequately applied. There is no doubt that it could be better dealt with. As far as they go, the Minister’s amendments are to be supported—but they by no means go far enough. As a member of the Joint Committee on the Modern Slavery Bill, I strongly support the speech of the noble Lord, Lord Warner. However, it goes further than that. The Modern Slavery Bill is an important part of getting the proceeds of crime, but all of us in this House want to see criminals dispossessed of their assets. The Proceeds of Crime Act and all of the amendments go further than the Modern Slavery Bill. We do need something.
I am not entirely certain, having listened to the noble Baroness, Lady Hamwee, that we need it in Amendment 4, but we certainly need either this amendment or a very strong undertaking from the Government that—side by side with implementing the government amendments to the Bill—they will consult. If there was a strong commitment to consultation before the Modern Slavery Bill comes in—bearing in mind that it is much broader than the Modern Slavery Bill—I would be content with that. However, if the Government are not going to give a strong commitment, I would find myself supporting Amendment 4.
Lord Bates
My Lords, first, I thank the noble Baroness and also my noble friend for their warm welcome to me in this role. I will do my very best to try to ensure that I answer as fully as possible the very serious points which they made.
I will commence with the points raised by the noble Lord, Lord Warner, and to some extent the points raised by the noble and learned Baroness, Lady Butler-Sloss, in relation to the Modern Slavery Bill. As these Bills were drafted and conceived, and as they move through the legislative process, they are seen very much as two parts of an attempt to address the problem of human trafficking and the gangs that seek to profit from that. They also seek to ensure that those gangs are unable to hide away the funds which they amass from the misery they afflict on others. On that we are absolutely united. I would also say to the noble Lord, Lord Warner, that we set out a number of points in a detailed letter which was drafted and sent to his noble friend the noble Baroness, Lady Smith of Basildon, on 7 October. A copy has been placed in the Library but it might be helpful, as part of my response to the debate, if I place some of the remarks from it on the record in this House.
In responding to Amendment 4, let me first say that we share the objective underpinning this amendment— namely, to further strengthen the effectiveness of the asset recovery regime provided for in the Proceeds of Crime Act. It is also worth noting at this point that, under this Government, more than £746 million of criminal assets have been seized through all four current methods of recovery, which in itself is a record amount. I know it is not getting anywhere near to addressing the full scale of the problem but it shows that the law enforcement of the courts is having some effect. Of course we want to do even better. One of the aims of the Government’s serious and organised crime strategy is to crack down on those who do not pay their confiscation orders. As part of this, the criminal finances improvement plan aims to look at ways to improve the recovery of the proceeds of crime.
The amendment calls for consultation on ways to strengthen the legal framework as set out in the Proceeds of Crime Act. Part 1 of this Bill is the product of just such a consultation. It already includes significant reforms to the asset recovery regime. I do not for a moment suggest that these provisions are the last word in terms of changes to POCA—if I may use that acronym for the Proceeds of Crime Act. We remain open to further constructive suggestions, which was very much what the noble Baroness asked us to do. We remain open to suggestions and to having a constructive dialogue over what improvements can be made with, among others, the National Crime Agency, police forces, the Crown Prosecution Service and Her Majesty’s Courts and Tribunals Service.
Let me turn to the specific proposals contained in Amendment 4. First, the amendment calls for a change in the test for securing a restraint order. Clause 11 already reduces the legal test for obtaining such an order from “reasonable cause to believe” that the alleged offender has benefited from his criminal conduct to “reasonable grounds to suspect”. This was a point that the noble Lord, Lord Warner, also touched upon. That will enable restraint orders to be secured earlier in an investigation. We remain at this stage unpersuaded of the case for removing the requirement to show that there is a real risk that the defendant will dissipate his or her assets. Such a test goes to the heart of the purpose of a restraint order. If there was no such risk, there would be nothing to be gained from seeking a restraint order.
Lord Warner
My Lords, before the Minister sits down, I have a question for him about his answer to me on restraint orders and third parties, which left me extremely puzzled. If he does not have the answer today, perhaps he could write to me. As I understood what he said—and I do not, in any way, disagree with it—restraint orders may well be taken certainly before someone is charged and possibly before they are arrested, because the investigation may give the police and the prosecution reason to believe that the people have considerable assets which may disappear at the point of arrest. However, as I understood him, he then said that it made no sense to make that restraint order deal with dissipation of assets to a third party. If the person does not know that the restraint order has been taken out because they have not been arrested or charged, what is to stop the courts including a provision about dissipation of assets which the person may have or subsequently engage in dissipation of? If the chap or woman does not know they have actually got a restraint order on them, I cannot see at the moment why it should not be drawn more widely to cover dissipation at the point when restraint is introduced. However, the Minister seemed to be saying that was not possible. If I have got it wrong, he can answer me now; if I have not, could he explain what the Home Office lore is on why that does not make sense?
Lord Bates
I will, of course, take very seriously what the noble Lord said. I do not think that was exactly what I said, but I will check the record and clarify it if necessary. The point I was making was that if it was necessary to identify third-party interests at the restraint stage, which Amendment 4 seeks to do, that might alert people who are not unconnected to the person of interest that an investigation is under way. This might damage the prospects of bringing a successful prosecution. I was seeking to make a point of argument rather than a point of law or lore. However, I will read the record and clarify this, if need be, for the noble Lord.
Baroness Williams of Trafford (Con)
My Lords, I can be relatively brief with this group of essentially minor and technical amendments to Part 1 of the Bill. Amendment 2 is consequential upon the provisions in the Criminal Justice and Courts Bill in respect of the new criminal courts charge, which will recover some of the trial costs from offenders. This amendment will ensure that, although the court takes no account of any confiscation order when imposing a criminal courts charge, payment of a confiscation order will take precedence over payment of the new charge.
Amendment 51 inserts into Schedule 4 a consequential amendment to Section 22 of the Proceeds of Crime Act, arising from the provisions in Clause 6. That clause provides that priority will be given to the payment of a victim surcharge order where a defendant has insufficient funds to pay both a confiscation order and a victim surcharge order. This amendment to Section 22 of POCA will ensure that a victim surcharge order is taken into account by a court when it is reconsidering the available amount payable under an existing confiscation order. Amendment 52 makes the equivalent change to Section 107 of POCA which relates to Scotland.
Amendments 3 and 15 are to Clause 7 and the equivalent provision for Northern Ireland in Clause 29. These clauses amend POCA to provide the court with the power to make any order it considers appropriate for ensuring that a confiscation order is effective. Such a compliance order may, among other things, impose a travel ban on the defendant. Clauses 7 and 29 provide for a right of appeal to the Court of Appeal by the prosecutor against a decision by the Crown Court not to make a compliance order, and by the prosecutor or person affected by a compliance order against the decision to make a compliance order. However, as currently drafted, these clauses do not provide for any right of appeal against a decision of the Crown Court to vary or discharge a compliance order. This is at odds with the existing provision in respect of the variation and discharge of a restraint order. These amendments remedy the inconsistency.
At the request of the Department of Justice in Northern Ireland, Amendment 16 amends Clause 30. This clause empowers the Crown Court to discharge a confiscation order where the defendant has died and it is not possible or reasonable to seek payment of the order from the defendant’s estate—for example, where there are no assets remaining in the estate. In England and Wales, an application to the Crown Court will be made by the designated officer for a magistrates’ court. The Department of Justice in Northern Ireland has advised us that, in Northern Ireland, the prosecutor would be best placed to make any application to discharge an order and not the chief clerk. This amendment makes the necessary adjustment to Clause 30 to this end.
Finally, Amendment 54 corrects a drafting error in Section 185 of POCA. I beg to move.
Lord Bates
Lord Bates
“Orders for securing compliance with confiscation order
After section 97A of the Proceeds of Crime Act 2002 (inserted by section (2)) insert—15“97B Orders for securing compliance with confiscation order
(1) This section applies where the court makes a confiscation order.
(2) The court may make such order in relation to the accused as it believes is appropriate for the purpose of ensuring that the confiscation order is effective (a “compliance order”).
(3) The court must consider whether to make a compliance order—
(a) on the making of the confiscation order, and(b) if it does not make a compliance order then, at any later time (while the confiscation order is still in effect) on the application of the prosecutor.(4) In considering whether to make a compliance order, the court must, in particular, consider whether any restriction or prohibition on the accused’s travel outside the United Kingdom ought to be imposed for the purpose mentioned in subsection (2).
(5) The court may discharge or vary a compliance order on an application made by—
(a) the prosecutor;(b) the accused.(6) For the purposes of any appeal or review, a compliance order is a sentence.
“97C Breach of compliance order
(1) This section applies where—
(a) a compliance order has been made in relation to an accused, and(b) it appears to the court that the accused has failed to comply with the compliance order.(2) The court may—
(a) issue a warrant for the accused’s arrest, or(b) issue a citation to the accused requiring the accused to appear before the court. (3) If the accused fails to appear as required by a citation issued under subsection (2)(b), the court may issue a warrant for the arrest of the accused.
(4) The unified citation provisions (as defined in section 307(1) of the Procedure Act) apply in relation to a citation under subsection (2)(b).
(5) The court must, before considering the alleged failure—
(a) provide the accused with written details of the alleged failure,(b) inform the accused that the accused is entitled to be legally represented, and(c) inform the accused that no answer need be given to the allegation before the accused—(i) has been given an opportunity to take legal advice, or(ii) has indicated that the accused does not wish to take legal advice.(6) If the court is satisfied that the accused has failed without reasonable excuse to comply with the compliance order, the court may—
(a) impose on the accused a fine not exceeding level 3 on the standard scale,(b) revoke the compliance order and impose on the accused a sentence of imprisonment for a term not exceeding 3 months,(c) vary the compliance order, or(d) both impose a fine under paragraph (a) and vary the order under paragraph (c).(7) The court may vary the compliance order if the court is satisfied—
(a) that the accused has failed to comply with the order,(b) that the accused had a reasonable excuse for the failure, and(c) that, having regard to the circumstances which have arisen since the order was imposed, it is in the interests of justice to vary the order.(8) Evidence of one witness is sufficient for the purpose of establishing that an accused has failed without reasonable excuse to comply with a compliance order.
“97D Appeals against variation or discharge of compliance orders
The prosecutor or the accused may appeal against a decision of the court under section 97B(5)—(a) to vary or refuse to vary a compliance order, or(b) to discharge or refuse to discharge a compliance order.””
Lord Bates
My Lords, these amendments follow up the debate in Committee on the new offence of participating in the activities of an organised crime group. Noble Lords will recall that in response to various amendments tabled at that stage by my noble friend Lady Hamwee and the noble Baroness, Lady Smith, my noble friend Lord Taylor undertook to consider further the potential for the offence to capture the naive or unwitting participant.
I am pleased to say that discussions between Home Office officials and the Law Society, the Institute of Chartered Accountants in England and Wales and the Local Government Association have continued over the summer. As a result of those deliberations, I have tabled Amendment 20, which is similar but not identical to Amendment 21 put forward by the noble Baroness, Lady Smith. Both amendments would change the “reasonable cause to suspect” limb of the mental element of the offence. In Committee, noble Lords were concerned—
Baroness Williams of Trafford
My Lords, we are considering the third group of amendments, rather than the fifth, and I should move Amendment 5, as that is my role. I apologise to my noble friend Lord Bates.
Strengthening the proceeds of crime legislation is a priority for the Scottish Government, as it is for the UK Government. Maximising recovery of moneys through the route of criminal confiscation is a major part of this. Chapter 2 of Part 1 already replicates for Scotland a number of the changes made by the Bill to the confiscation regime in England and Wales. At the request of the Scottish Government, it is now proposed to replicate a number of further provisions—namely, those in Clauses 7, 9, 10 and 12. In each case, the England and Wales provisions are subject to appropriate modifications and adaptations to take account of Scots law and any policy refinements determined by Scottish Ministers.
Amendments 5 and 6 broadly replicate the provisions in Clause 7 to enable the courts to make a compliance order imposing overseas travel bans and other restrictions and requirements on an accused person, for the purposes of ensuring that a confiscation order is effective. Unlike in England and Wales, it will not be possible to make a compliance order against a third party. Amendment 7 replicates the provisions in Clause 9, which ensure that individuals who abscond before conviction, but are then convicted in their absence, may be subject to confiscation.
Amendment 8, which replicates subsections (1) and (2) of Clause 10, increases the maximum default sentences where offenders fail to pay confiscation orders in respect of amounts over £500,000. There are no changes to the early release arrangements in Scotland. Amendment 8 also provides that, where a confiscation order was made by a court in England and Wales, or in Northern Ireland, but it falls to be enforced in Scotland, the courts in Scotland, when sentencing the defendant for non-payment of the order, would apply the default sentences set elsewhere in Part I of the Bill, rather than the sentences applicable for non-payment of a fine.
Amendment 9 replicates the provisions in Clause 12 to ensure that a restraint order may be maintained following the quashing of a conviction and pending the outcome of a retrial.
Amendments 10 to 13 point in the opposite direction. Rather than adding new Scottish provisions to the Bill, they would remove Clauses 19, 20, 22 and 23. Those clauses, which were included in the Bill at the request of the Scottish Government, sought to make it an offence to breach a prohibitory property order or an interim administration order. These orders are designed to prevent a person from dissipating identified assets through the course of a civil recovery investigation. As such, they are analogous to restraint orders under the criminal confiscation regime. Under the existing civil recovery regime, the focus of these orders is on applying prohibitions on dissipating property rather than on the owners of, or those who control, the property in question.
After further consideration and discussion with operational stakeholders, the Scottish Government have concluded that the introduction of these offences would result in a loss of flexibility in the civil recovery regime and have therefore asked for the relevant clauses to be removed from the Bill. Breach of these orders will continue, as now, to be dealt with through contempt of court proceedings.
The other amendments in this group are either consequential on the amendments that I have already described or make other technical amendments to the Scottish confiscation regime in Part 3 of POCA. I beg to move.
“Compliance orders: appeals by prosecutor
(1) The Criminal Procedure (Scotland) Act 1995 is amended as follows.
(2) In section 108 (Lord Advocate’s right of appeal in solemn proceedings)—
(a) in subsection (1), after paragraph (cc) insert—“(cd) a decision under section 97B(2) of the Proceeds of Crime Act 2002 to make or not to make a compliance order;”;(b) in subsection (2)(b)—(i) in sub-paragraph (ii), for “or (cc)” substitute “, (cc) or (cd)”;(ii) in sub-paragraph (iii), after “paragraph” insert “(cd) or”.(3) In section 175 (right of appeal in summary proceedings)—
(a) in subsection (4), after paragraph (cc) insert—“(cd) a decision under section 97B(2) of the Proceeds of Crime Act 2002 to make or not to make a compliance order;”;(b) in subsection (4A)(b)—(i) in sub-paragraph (ii), for “or (cc)” substitute “, (cc) or (cd)”;(ii) in sub-paragraph (iii), after “paragraph” insert “(cd) or”.”
“Accused persons unlawfully at large
(1) In section 111 of the Proceeds of Crime Act 2002 (conviction or other disposal of accused), in subsection (1), for “after” substitute “and, either before or after he became unlawfully at large”.
(2) For subsection (4) of that section substitute—
“(4) Once the accused has ceased to be unlawfully at large—
(a) section 104 has effect as if subsection (1) read—(1) This section applies if—
(a) in a case where section 111 applies the court did not proceed under section 92,(b) before the end of the period of six years starting with the day when the accused ceased to be unlawfully at large, the prosecutor applies to the court to proceed under section 92, and(c) the court thinks it is appropriate for it to do so.”;(b) section 105 has effect as if subsection (3) read—(3) The second condition is that—
(a) before the end of the period of six years starting with the day when the accused ceased to be unlawfully at large, the prosecutor applies to the court to reconsider whether the accused has benefited from his general or particular criminal conduct (as the case may be), and (b) the court thinks it is appropriate for it to do so.”;(c) section 106 has effect as if subsection (1) read—(1) This section applies if—
(a) a court has made a confiscation order,(b) the prosecutor believes that if the court were to find the amount of the accused’s benefit in pursuance of this section it would exceed the relevant amount,(c) before the end of the period of six years starting with the day when the accused ceased to be unlawfully at large, the prosecutor applies to the court to proceed under this section, and(d) the court thinks it is appropriate for it to do so.”;(d) the modifications set out in subsection (3)(a) to (d) of this section do not apply to proceedings that take place by virtue of section 104, 105 or 106 (as applied by this subsection).”(3) In section 112 of that Act (accused neither convicted nor acquitted), in subsection (1)(c), for “two years” substitute “three months”.
(4) For subsection (4) of that section substitute—
“(4) Once the accused has ceased to be unlawfully at large—
(a) section 106 has effect as if subsection (1) read—(1) This section applies if—
(a) a court has made a confiscation order,(b) the prosecutor believes that if the court were to find the amount of the accused’s benefit in pursuance of this section it would exceed the relevant amount,(c) before the end of the period of six years starting with the day when the accused ceased to be unlawfully at large, the prosecutor applies to the court to proceed under this section, and(d) the court thinks it is appropriate for it to do so.”;(b) the modifications set out in subsection (3)(a) to (d) of this section do not apply to proceedings that take place by virtue of section 106 (as applied by this subsection).””
“(b) after subsection (2) insert—“(2A) In its application in relation to confiscation orders, subsection (2) of section 219 of the Procedure Act is to be read as if for the Table in that subsection there were substituted the following Table—
Amount to be Paid under Compensation Order | Maximum Period of Imprisonment |
|---|---|
£10,000 or less | 6 months |
More than £10,000 but no more than £500,000 | 5 years |
More than £500,000 but no more than £1 million | 7 years |
More than £1 million | 14 years |
(a) amend section 219(2) of the Procedure Act (as applied by this section) so as to provide for minimum periods of imprisonment in respect of amounts ordered to be paid under a confiscation order; (b) amend the Table in subsection (2A) so as to remove, alter or replace any entry (including an entry inserted by virtue of paragraph (a) of this subsection) or to add any entry;(c) apply (with or without modifications) any provision of the Procedure Act relating to enforcement of fines in consequence of exercising the power in paragraph (a) or (b) (including modifying any such provision in its application in relation to confiscation orders by virtue of this section).(2C) In its application in relation to a confiscation order under Part 2 of this Act, subsection (8) of section 222 of the Procedure Act is to be read as if, in relation to a transfer of fine order under section 90 of the Magistrates’ Courts Act 1980, for “139 of the Powers of Criminal Courts (Sentencing) Act 2000” there were substituted “35(2A) of the Proceeds of Crime Act 2002”.
(2D) In its application in relation to a confiscation order under Part 4 of this Act, subsection (8) of section 222 of the Procedure Act is to be read as if—
(a) before the words “section 90” there were inserted “section 35 of the Criminal Justice Act (Northern Ireland) 1945,”;(b) in relation to a transfer of fine order under section 35 of that Act, for “139 of the Powers of Criminal Courts (Sentencing) Act 2000” there were substituted “185(2A) of the Proceeds of Crime Act 2002”.”( ) In section 459 of that Act (orders and regulations)—
(a) after subsection (3) insert—“(3A) Subsection (3) does not apply to the power of the Scottish Ministers to make an order under section 118(2B).”;
(b) in subsection (5)(a), after “section” insert “118(2B),”;(c) in subsection (6)(b), after “section” insert “118(2B),”.( ) In section 219 of the Criminal Procedure (Scotland) Act 1995 (fines: periods of imprisonment for non-payment), in subsection (8)(b), after “section 118(2)” insert “, (2A) and (2B)”.”
“Continuation of restraint order after conviction quashed or verdict set aside
(1) In section 121 of the Proceeds of Crime Act 2002 (application, recall and variation), after subsection (8) insert—
“(8A) The duty in subsection (8) to recall a restraint order on the conclusion of proceedings does not apply where—
(a) the proceedings are concluded by reason of—(i) an accused’s conviction for an offence being quashed under section 118(1)(c) of the Procedure Act, or(ii) the setting aside of the verdict against the accused under section 183(1)(d) of the Procedure Act,(b) the restraint order is in force at the time when the conviction is quashed or the verdict set aside (as the case may be), and(c) the High Court of Justiciary has granted authority under section 118(1)(c) or 183(1)(d) of the Procedure Act to bring a new prosecution or the prosecutor has requested that the court grant such authority.(8B) But the court must recall the restraint order—
(a) if the High Court of Justiciary refuses a request to grant authority under section 118(1)(c) or 183(1)(d) of the Procedure Act to bring a new prosecution, (b) if the High Court of Justiciary has granted authority under section 118(1)(c) or 183(1)(d) of the Procedure Act to bring a new prosecution but no proceedings are commenced by the expiry of the time mentioned in section 119(5) or 185(5) of that Act (as the case may be), or(c) otherwise, on the conclusion of the proceedings in the new prosecution of the accused under section 119 or 185 of the Procedure Act.””
“( ) After that section insert—
“168A Provision of information as to defendant’s interest in property
(1) This section applies if the court—
(a) is considering whether to make a determination under section 160A of the extent of the defendant’s interest in any property, or(b) is deciding what determination to make (if the court has decided to make a determination under that section).In this section “interested person” means a person (other than the defendant) who the court thinks is or may be a person holding an interest in the property.(2) For the purpose of obtaining information to help it in carrying out its functions under section 160A the court may at any time order an interested person to give it information specified in the order.
(3) An order under this section may require all or a specified part of the information to be given in a specified manner and before a specified date.
(4) If an interested person fails without reasonable excuse to comply with an order under this section the court may draw such inference as it believes is appropriate.
(5) Subsection (4) does not affect any power of the court to deal with the person in respect of a failure to comply with an order under this section.
(6) If the prosecutor accepts to any extent an allegation made by an interested person—
(a) in giving information required by an order under this section, or(b) in any other statement given to the court in relation to any matter relevant to a determination under section 160A,the court may treat the acceptance as conclusive of the matters to which it relates.(7) For the purposes of this section an allegation may be accepted in a manner ordered by the court.
(8) If the court makes an order under this section it may at any time vary it by making another one.
(9) No information given by a person under this section is admissible in evidence in proceedings against that person for an offence.””
Baroness Williams of Trafford
My Lords, as we noted in Committee, the tentacles of cybercrime can now stretch across the globe. A perpetrator, sitting in their bedroom in London, could be hacking into a computer anywhere in the world, or, located outside the UK, a British national could be causing serious damage to their host country or in our own. The new offence provided for in Clause 40 acknowledges this reality and captures the serious damage that cybercriminals can cause in any country.
Clause 40 goes on to define a reference to country as including a reference to: a territory; any place in, or part or region of, a country or territory; and the territorial sea adjacent to any country or territory. My noble friend Lady Hamwee moved an amendment in Committee to seek further clarity on the last of these three points, which gave rise to an interesting debate on how best to capture damage caused outside territorial waters.
Following that debate, we have given further consideration to the position of installations such as oil rigs, ships and so on that are located outside the territorial waters of any country. Although I acknowledge that this scenario is extremely unlikely, it is not clear that the offence as currently drafted would capture an attack that caused serious damage to the human welfare of those living and working on such an installation, or to the surrounding environment.
To provide greater clarity on this point, therefore, Amendment 17 replaces the reference to damage to human welfare in any country with a reference to damage to human welfare in any place. Amendment 18 similarly replaces the reference to damage to the environment in any country with a reference to damage to the environment of any place.
Once these changes are made, there is no longer any need to extend the meaning of “country” to include its territorial seas. References to damage to the economy or national security of any country will remain, as either the economy or national security of a country has been damaged or it has not. In these cases, it is not necessary to include territorial seas within the definition of a country, so Amendment 19 removes this reference. I am most grateful to my noble friend for raising this issue and I beg to move.
Baroness Hamwee
My Lords, I am grateful to both my noble friends on the Front Bench.
Lord Bates
Lord Bates
My Lords, my apologies to the House for the slight mix-up in the order. It is one of the things that happen when you take people out of the Whips’ Office and put them in a departmental office—they forget their day job. We were sharply reminded of it and I am grateful to noble Lords for their patience.
These amendments follow up the debate in Committee on the new offence of participating in the activities of an organised crime group. Noble Lords will recall that, in response to various amendments tabled at that stage by my noble friend Lady Hamwee and the noble Baroness, Lady Smith, my noble friend Lord Taylor undertook to consider further the potential for the offence to capture the naive or unwitting participant. I am pleased to say that discussions between Home Office officials and the Law Society, the Institute of Chartered Accountants in England and Wales and the Local Government Association continued over the summer. As a result of those deliberations, I have tabled Amendment 20, which is similar but not identical to Amendment 21 put forward by the noble Baroness, Lady Smith. Both these amendments would change the “reasonable cause to suspect” limb of the mental element of the offence. In Committee, noble Lords were concerned that “reasonable cause to suspect”, as an objective test, could capture the unwitting or naive and that there might be instances where the “reasonable cause to suspect” became clear only with the benefit of hindsight.
In providing for a threshold of “suspects” without qualification, Amendment 21 certainly deals with the concerns about inadvertently capturing the naive or unwitting. By definition, these individuals will genuinely not have suspected, when they took part in the relevant activities, that they were participating in organised criminal activities, even if they had reasonable grounds to do so. But this threshold might also capture the paranoid who suspected that their conduct was contributing to the activities of an organised crime group, despite the fact that there were no reasonable grounds for such suspicion. Amendment 20 therefore also requires the suspicion to be reasonable. This adds an objective test—there were reasonable grounds for the suspicion—to the subjective test that the individual genuinely suspected, and it requires both to be met for the offence to have been committed. It therefore provides some further additional protection against overcriminalisation. The approach in Amendment 20 has been welcomed by the stakeholders whom we consulted over the summer.
I will respond to the other amendments in this group once the House has had an opportunity to hear from the noble Baroness, Lady Smith, and my noble friend Lady Hamwee. For now, I beg to move.
Baroness Smith of Basildon
My Lords, I can certainly forgive a technical hitch when we are given a welcome substantive response. I am grateful to the Minister, because he has taken away the points that we raised in Committee and has brought forward proposals that will make the Bill more workable. It was always our concern, which the noble Lord, Lord Taylor, said he would reflect on, that those who were not criminals but who were caught up in criminal activities for which they were not responsible could be affected by the clause. It could also act as a deterrent to people to report crimes in which they had become unwittingly involved because they could themselves be prosecuted, so I think that this is a major step forward. We have tabled our Amendment 21, but I think that the Minister has addressed the points that we have raised. We also needed to consider whether there was a case for an additional defence. I think that the Minister is saying that it is not necessary, because the change in the mens rea from suspicion to “reasonably suspects” is enough. It would be helpful if he would clarify that. However, this is a positive move from the Government, which makes the Bill more workable, and we are grateful to the noble Lord for taking on board the points that we made.
Baroness Hamwee
I welcome the Government’s response to this. My amendment seeks further clarity on the provision in Clause 44(8) which makes it,
“a defence … to prove that the person’s participation was necessary for a purpose related to the prevention or detection of crime”.
“Necessary” is narrow, which is right, but a,
“purpose related to the prevention or detection of crime”,
seems to me very wide. The example that came to mind at the previous stage was undercover policing, which is a contentious activity, although we heard from a report in the last day or two some good news on how it is conducted.
I am still puzzled about whether the phrase,
“participation … for a purpose related to”,
and not just,
“necessary for … the prevention or detection of crime”,
takes it beyond something that is acceptable. My amendment invites my noble friend to amplify the provision, if he is able to do so.
Lord Bates
I am grateful for the welcome that the amendment has received. I am mindful of the two questions, which I shall do my best to address. In response to the noble Baroness, Lady Smith, the Bill already provides for a defence when the,
“participation was necessary for a purpose related to the prevention or detection of crime”.
We considered that that, together with raising the threshold for the offence to “reasonably suspects” and a requirement for any prosecution to be in the public interest, provided that additional safeguard. We therefore concluded that the general defence of acting reasonably is unlikely in practice to add any additional protection from overcriminalisation of this offence. However, in the light of particular concerns expressed about the position of the regulated sector specifically, we looked again at the need for a bespoke defence for the regulated sector.
Two aspects of the Proceeds of Crime Act have been raised in this context. The first relates to the obligation that members of the regulated sector have to report money-laundering carried out by another. This aspect is addressed in Amendment 22, which would provide a partial defence that would apply to a member of a regulated sector who took part in activities that he did not know or suspect to be criminal activities as part of an organised crime group. We believe that the additional dimension is there and that it provides a further protection for those who are involved in financial services. I am sure that is why the Law Society, the Institute of Chartered Accountants in England and Wales and the Local Government Association have welcomed the amendment as far as it goes.
On the point raised by the noble Baroness, Lady Hamwee, I covered that in the previous answer to the noble Baroness, Lady Smith, but I will come back to her with more detail in writing if necessary. I beg to move.
Lord Mackay of Drumadoon
Lord Mackay of Drumadoon (CB)
My Lords, I intend to speak also to other amendments in my name, namely Amendments 26, 27 and 28. Amendment 25 is directed at paragraph 2(2) of Schedule 1. It seeks to replace “involved in” with “convicted of”, so that new Section 1(1A) would read:
“The appropriate court in Scotland may make an order if … it is satisfied that a person has been convicted of serious crime (whether in Scotland or elsewhere): and … it has reasonable grounds to believe that the order would protect the public by preventing, restricting or disrupting involvement by the person in serious crime is Scotland”.
I resist the temptation to enter the debate on whether “think” means “believe” by noticing that the “satisfied” appears in this provision.
New Section 1(5) of the Serious Crime Act 2007, which is also to be found on page 55 of the Bill, will provide that the term “appropriate court” means in Scotland the Court of Session or sheriff. As many of your Lordships will be aware, the Court of Session is the supreme civil court within Scotland. It handles civil business as opposed to handling criminal proceedings. As far as my understanding and experience go, it is not a normal part of its judicial role to make a formal ruling that an individual has committed a serious offence in Scotland. The prosecution and conviction of a person on a charge of serious crime has to take place in a criminal court, either the High Court of Justiciary or a sheriff sitting in exercise of the criminal jurisdiction that a sheriff court has. That distinction is applicable to all aspects of new Section 2A, which is at the foot of page 55, which states:
“For the purposes of this Part, a person has been involved in serious crime in Scotland if he … has committed a serious offence in Scotland; … has facilitated the commission by another person of a serious offence in Scotland; or … has conducted himself in a way that was likely to facilitate the commission by himself or another person of a serious offence in Scotland”.
These are all issues which, to my mind, involve alleged criminality.
If a Court of Session judge sitting in a civil court were to be involved as an “appropriate court” for the purposes of these provisions, a sheriff sitting in the sheriff court as an “appropriate court” would reasonably also be expected to be assessed as exercising the sheriff court’s civil jurisdiction. I would be grateful if the Minister could confirm that those inferences have been correctly drawn.
Thus, the terms of the additional provisions set out on this page of the Bill would allow certain judges sitting in the civil courts in Scotland to impose a serious crime prevention order in Scotland on a person who had not been convicted in criminal proceedings of any serious crime committed in Scotland or, for that matter, elsewhere.
The Law Society of Scotland has been interested in this matter for some time. Having discussed the matter with it and seen the representations that it made in response to some consultations carried out by the Scottish Ministers, I submit that the provisions relating to the roles of the “appropriate court” are inadequate. It is suggested that the judge in such a court has to be satisfied that the person in respect of whom the order is sought has been involved in serious crime. That, they maintain, should be in the criminal court.
In addition to that concern, the position of the Law Society of Scotland in this matter is that the making of a serious crime prevention order in Scotland should be based on a pre-existing conviction of a serious crime, not just on allegations that fall to be considered once the matter comes before a judge. That position is based on the consequences for a person if they are made subject to a serious crime protection order. I do not intend to go into this in huge detail, but it is perfectly obvious—looking at the provisions of the Serious Crime Act 2007—that such an order has considerable implications for a person on whom it is placed. That means that any debate in court in proceedings leading up to the making of such an order has to be such that will ensure that all aspects of the allegations made against the person who is being threatened with the imposition of an order, and equally any explanations from the person concerned, are brought before the court for its consideration.
Obviously, this is based on provisions that have applied in England for some years. The background to it, I understand, is that Scottish Ministers issued a consultation paper in September 2013 entitled Serious Crime Prevention Orders in Scotland. The consultation paper explained that Ministers wanted to consider the effectiveness of serious crime prevention orders elsewhere in the United Kingdom as part of their policy for disrupting the activities of serious organised crime. As part of that policy, they sought to tighten the existing legislation and introduce new legislation in Scotland to make it harder for serious crime groups to operate. The Law Society of Scotland launched a response to the consultation paper. Among a number of submissions it made was one saying that a serious crime prevention order should only be made by a court in Scotland following a conviction for an offence of the person in question falling within one or a number of serious categories of crime.
After the Scottish Ministers received the various responses to their consultation paper, they announced that they would give further consideration to the options available for introducing serious crime prevention orders in Scotland. The route that the Scottish Ministers have followed has involved their requesting the United Kingdom Government to legislate to extend the provisions of Part 1 of the Serious Crime Act 2007 to Scotland. The Scottish Ministers, however, have never fully explained in public their reasons for rejecting the Law Society’s submission that no order should be granted unless the person to whom it relates has been convicted of a serious offence. The Law Society remains of the view that no order should be made unless the Lord Advocate or the police force have sought it in respect of a person to whom a conviction has already adhered. Given the restrictive nature of such orders, the Law Society remains of the view that it is unreasonable to impose such an order when an alleged offence remains unproven.
The Law Society understands that in England there have been no cases in which orders have been pronounced without a conviction against the subject of the order. They are referred to as stand-alone orders. It is fully accepted that there are not likely to be many of them were the provisions to be applied in Scotland, but if they were, in the Law Society’s opinion, they would clearly amount to an unreasonable restriction in the absence of a suitable foundation for them.
I therefore hope that the Minister will be able to accept Amendment 25 as representing the views of a very important body within the justice system in Scotland, which finds some support when one looks at the terms of Schedule 1 in its present form. Amendments 26 to 28 are there because of the content of page 55 of the Bill. If Amendment 25 is accepted, they would be of relevance. If it is refused, they become superfluous as a consequence of that decision.
In conclusion, I hope that the Minister can accept the amendments. If he can, that will be very welcome; equally, if he is unable to do so, it would be helpful if he could explain the approach that the Government have adopted to the various points raised.
At this stage, it is right that I should publicly recognise that, following Committee on the Bill, I had a very useful meeting with the noble Lord, Lord Taylor of Holbeach, for which I was very grateful, as was the Law Society when it was advised what had taken place. I beg to move.
Baroness Williams of Trafford
My Lords, before I address the specific points raised by the noble and learned Lord, Lord Mackay, it might assist the House if I provide a little background to Schedule 1. The provisions to extend the serious crime prevention order to Scotland have been included in the Bill at the request of the Scottish Government. The main policy driver for this in Scotland is the implementation of the serious and organised crime strategy, Letting Our Communities Flourish, in which the Scottish Government have committed to tackle serious and organised crime and to disrupt and dismantle organised crime groups. That is a priority for both the Scottish and the UK Governments. Clause 45 of and Schedule 1 to the Bill will extend the serious crime prevention order regime to Scotland and provide an additional power for law enforcement agencies to minimise the harm that serious organised criminals do to communities in Scotland.
A serious crime prevention order is a civil order that is used to protect the public by preventing, restricting or disrupting a person’s involvement in a serious crime. It is not intended to operate as a punishment. Serious crime prevention orders have operated successfully in England, Wales and Northern Ireland since 2008. When the Serious Crime Act 2007 was going through Parliament, the then Scottish Government decided to consider the effectiveness of serious crime prevention orders elsewhere in the UK before deciding whether those orders should be introduced in Scotland. It is a measure of confidence in the value of the orders that the Scottish Government have now concluded, following consultation last year, that the provisions in Part 1 of the Serious Crime Act 2007 should extend to Scotland.
As the noble and learned Lord made clear, the intention of these amendments is that the serious crime prevention orders should only be made by a court following conviction for an offence. I hope that I can allay the concerns of the noble and learned Lord by reassuring him that there will be a robust framework of safeguards for the use of SCPOs—as they are called—in the civil courts.
The class of applicant authorities will be restricted. Only the Lord Advocate will be able to make applications for civil or criminal SCPOs in Scotland. This reflects the current position in England, Wales and Northern Ireland, where only prosecutors may apply for an SCPO. It is not the case, as suggested in the Law Society of Scotland’s briefing paper, that the police will be able to apply for stand-alone SCPOs. I hope the fact that the Lord Advocate will act as a gatekeeper in this regard will provide some comfort for the noble and learned Lord, as he is a former holder of the office.
When considering an application for an SCPO, the court will need to be satisfied that the respondent has been involved in serious crime and believe that imposing an order would protect the public. Courts will impose an SCPO only when it is a necessary and proportionate response. There will also be a right of appeal against the imposition of an order. Furthermore, third parties will have the right to be represented at SCPO hearings if a decision concerning the order is likely to have a significant adverse effect on them.
It is also worth noting here that, since the 2007 Act came into force, no stand-alone order has been imposed in the rest of the UK in the absence of a criminal conviction. That said, we are working with the CPS to make better use of this preventive tool in future, including by seeking stand-alone orders in appropriate cases. I stress that, although these orders are civil, their overriding aim is to protect the public from harm.
The noble and learned Lord made a point about stand-alone orders in the more junior sheriff courts. In Scotland, a sheriff court may consider both civil and criminal cases. For criminal cases, on indictment a sheriff court may consider all crimes except murder, treason, rape and breach of duty by a magistrate. Stand-alone orders may also be considered in the Court of Session. It will be for the Lord Advocate to decide in which court to make the application. If a sheriff court sitting in its criminal capacity has the power to impose an SCPO, it is logical that it should have the same power when sitting in its civil capacity.
Schedule 1 seeks to replicate what is already in existence in England, Wales and Northern Ireland. Other than allowing for different legal systems, there are no real differences in how the regimes will operate. I very much hope that I have been able to reassure the noble and learned Lord, Lord Mackay, that the safeguards that will be in place will ensure that SCPOs will be imposed by Scotland’s civil courts only where it is necessary and proportionate to protect the public from the harm caused by serious crime. In the light of those assurances, I hope that the noble and learned Lord will be content to withdraw his amendment.
Lord Mackay of Drumadoon
I am very grateful to the Minister for her clear and helpful response to my question on the reasons for the Government’s position. In the light of that position and in the absence of any support from anyone else in your Lordships’ House, these four amendments are coming to a rather abrupt end. Speaking more seriously about it, I have little doubt that what the Minister has said today will be of use to those in Scotland who will come to implement the provisions in this Bill. In these circumstances, I beg leave to withdraw the amendment.
Baroness Williams of Trafford
My Lords, the four amendments in this group are minor, technical and drafting amendments to the provisions in respect of serious crime prevention orders. I do not propose to go through them in detail, but I would of course be happy to do so if it would assist the House. In the mean time, I beg to move.
“( ) in subsection (1), for “, the Treasury or the Scottish Ministers” substitute “or the Treasury”;”
“(a) to the person from whom the substance was seized, and(b) if the officer thinks that the substance may belong to a different person, to that person.”
Baroness Williams of Trafford
My Lords, we now turn to the amendments relating to Clause 65—no, we do not. I am sorry but I had what is completely the wrong speaking note and I apologise to your Lordships.
During debate in Committee, I agreed to consider further an amendment put forward by my noble friend Lady Hamwee to what was then Clause 56—it is now Clause 59. Where a substance suspected of being used as a drug-cutting agent has been seized and the court makes an order authorising the continued retention of the substance, Clause 59(7) requires the relevant police or customs officer to notify a person entitled to the substance of that fact, if they were not represented at the court hearing. My noble friend queried why such notice should not also be given to the person from whom the substance was seized, if different from the person entitled to the substance.
I am grateful to my noble friend for raising a pertinent point. On further consideration, we agreed that her suggested amendment would strengthen the provisions in the Bill by helping to minimise any impact on the legitimate trade. Amendment 35 to Clause 59 therefore extends the notice provision in that clause. A similar point also arises in relation to Clauses 56 and 61, which also require notice to be given to a person entitled to the seized substance. Amendments 33, 34 and 36 therefore make equivalent changes to these clauses, while Amendments 37 and 38 to Clause 64 make consequential amendments to the definition of “entitled”. Once again, I am grateful to my noble friend for raising the point and I beg to move.
“(2A) The persons “entitled” to a substance for the purposes of this Part are—
(a) the person from whom it was seized;(b) (if different) any person to whom it belongs.”
Lord Bates
“( ) In subsection (1)—
(a) after “ill-treats” insert “(whether physically or otherwise)”;(b) after “ill-treated” insert “(whether physically or otherwise)”.”
Lord Bates
My Lords, we now turn to the amendments relating to Clause 65, which clarifies and updates the law on child cruelty in Section 1 of the Children and Young Persons Act 1933. We had an informed debate on Clause 65 in Committee, during which a range of issues were raised in relation to Section 1 of the 1933 Act. In responding to that debate, my noble friend Lord Taylor undertook to reflect further on some of those issues over the summer. Having done so, we propose to make two further changes to Section 1.
The first is to clarify that the behaviour necessary to establish the ill treatment limb of the offence can be non-physical. In Committee the noble and learned Baroness, Lady Butler-Sloss, argued that as well as clarifying that the offence can be committed where the consequences of the behaviour in question are psychological, as Clause 65 already does, further amendments should be made to clarify that the offence can be committed by way of non-physical—for example, emotional—ill treatment and neglect. The Government’s view is that a failure to provide for a child’s emotional needs is beyond the neglect element of the offence, as a result of the House of Lords judgment in R v Sheppard. However, we consider that the ill treatment limb of the offence can relate to non-physical cruelty and Amendment 39 makes this explicit.
Baroness Walmsley (LD)
My Lords, I wish to speak to Amendment 41 in my name in this group. I welcome Clause 65 and the Government’s amendments to it, but I have tabled this further amendment, the purpose of which is twofold. First, it would delete the limitation in Section 1(1) of the 1933 Act that only people with responsibility for a child or a young person can be prosecuted for child abuse. This means that anyone could be prosecuted for such offences—for example, clergy, pastors, friends, relatives, neighbours or lodgers—not just parents or people acting in loco parentis. It is unclear to me why Section 1 was ever limited in this way. I ask the Government to explain why, particularly since we have seen in the recent Rotherham scandal how many children are abused by people who are not responsible for them. Secondly, it would clarify the meaning of “ill-treats” in order to make it clear that any allegation, by word or deed, that a child is possessed by an evil spirit or has harmful supernatural powers is unlawful because it amounts to serious emotional abuse of the child.
This amendment was debated twice on the then Children and Families Bill at the end of last year and the beginning of this year, and was followed by correspondence with my noble friend Lady Northover. Further to that correspondence, it is clear that the Government now accept two important facts that were not recognised before these debates. First, they now recognise that possession accusations are child abuse, regardless of what is done to the child as a result. Secondly, they accept that neither criminal nor civil law on child abuse can be used to take action on such abuse if it is perpetrated by someone who is not a parent or acting in loco parentis. Thus neither Section 1 of the Children and Young Persons Act 1933 nor the Children Act 1989 can be used in such cases.
However, the Government did not accept the need for the change that I was proposing, pointing to various other criminal statutes that could be used where someone had caused a child injury by making a possession accusation: the Public Order Act 1986, the Protection from Harassment Act 1997 and the Serious Crime Act 2007—my noble friend mentioned all of these in the correspondence. Those other statutes are not appropriate for three reasons. First, the point of my amendment is to protect children from knowing that they are believed to be possessed by evil spirits or to have supernatural powers, whereas using those statutes would entail the child having to give evidence that they were harmed by the allegations—thus precisely obviating the protection that my amendment is seeking.
Secondly, the primary aim of the amendment is not to prosecute but to prevent this kind of abuse. This can be done only if the law explicitly states that a possession accusation constitutes an offence against children—which, I reiterate, would not make a belief in evil spirit possession an offence, just the communication of that belief to the child or those known to the child. It is not my intention to get in the way of people’s seriously held religious beliefs. I hope I made that clear the last time I raised this point.
Thirdly, none of the cited laws has ever been used to charge anyone for alleging that a child has supernaturally evil powers, which is not surprising. It is extremely unlikely that any prosecutor would agree to a wholly speculative prosecution that balanced having to prove a child’s psychological trauma against the expression of strongly held religious beliefs, in the absence of direction from central government on this issue. I invite the Minister to seek the opinion of the Director of Public Prosecutions on this point if the Government are going to rely on these various statutes.
The numbers of children killed or seriously physically injured in this country by this form of faith-based abuse are not great—probably still under 100, although of course even one is too many. However, we do not know how many children are psychologically scarred for life by being told that they are possessed by evil spirits, that they are responsible for causing supernatural harm to their loved ones and that they are an object of hatred, fear and revulsion. Members of the National Working Group on Child Abuse Linked to Faith or Belief estimate that that number could run to many hundreds.
Are we failing to take action on this horrible torment of children because we are reluctant to challenge, in this instance, the religious practices of minorities? If the Government believe, as they say they do and I know they do, that possession accusations are child abuse, they should prohibit the practice specifically as they have every other form of significant harm to children. I ask my noble friend again to consider the wisdom of such an amendment.
Baroness Butler-Sloss
My Lords, I thank the Minister for giving me the opportunity to discuss with him his Amendments 39 and 40. I am extremely grateful to him. I am happy with Amendment 39; it takes us a long way along the road that I have been battling for under the Children and Young Persons Act 1933, and I think it goes far enough. I thought that Amendment 40 was unnecessary. I have now been convinced by the Minister that it is not unnecessary, so I am also happy with that.
On what the noble Baroness, Lady Walmsley, has said, I suspect that the offences that the police and social workers did not deal with in Rotherham, for example, were so serious that the first part of Amendment 41 would not be necessary. However, I see the point that the noble Baroness is making and it is, with respect, a good one. Her point is that most, but not all, cases come under other legislation, and that is a point well worth taking away.
I agree with the noble Baroness’s point about evil spirits and witchcraft. We in this country underestimate what goes on in relation to witchcraft. It is an extremely serious and worrying, though limited, problem in relation to children, and it ought not to be ignored. There are those who, sometimes under the guise of an obviously totally debased form of religion, are trying to exorcise children through really appalling child cruelty. The noble Baroness is raising that area and, again, with respect, the Government ought to look at that rather more carefully.
Lord Swinfen (Con)
I am not sure that I heard my noble friend correctly but he talked about child cruelty when someone was, first, in possession of drugs and, secondly, under the influence of drugs. I understood him to say that they were actually under the influence of the drugs of which they were charged with being in possession. Purely for clarification, what is the position if they are in fact under the influence of a different drug? I ask this because barristers are on the whole extremely clever. I would like to make certain there is no escape clause in the Bill.
Baroness Howe of Idlicote (CB)
My Lords, I believe that the noble Lord, Lord Ponsonby, was going to speak to Amendment 41A, but if he is not here I would be happy to make that case—or part of it, anyhow.
Child protection law clearly defines a child as a person under the age of 18. This is enshrined in the Children Act 1989 and in the United Nations Convention on the Rights of the Child. However, the law on neglect is 80 years old, so quite clearly it is seriously out of date. In 1933, life as a 16 year-old was very different. The school-leaving age at that time was 14. In 1931, 88.5% of males and 75.6% of females aged 16 to 17 actively participated in the labour market.
Current laws on work and benefits mean that 16 to 17 year-olds are made more vulnerable to neglect. You will not qualify for universal credit if you are under 18—with some limited exceptions. The minimum wage for a 16 to 17 year-old is £3.72 an hour, which makes it impossible for many to live independently.
This law clearly has had serious impacts on 16 to 17 year-olds. The police find it much harder to prosecute parents or guardians of 16 and 17 year-olds for abuse or neglect because these laws do not apply to 16 and 17 year-olds. Around 16,000 young people aged 16 to 17 experience a risk of homelessness as a result of conflict or relationship breakdown with their families. Ofsted’s review of serious case reviews between 2007 and 2011 showed that 18% of cases were in relation to 14-plus year-olds. One of the issues that the review highlights is that many young people in SCRs were treated as adults rather than being considered as children because of confusion about the young child’s age and legal status, or a lack of age-appropriate facilities.
What I am really stressing is that the law is inconsistent and needs clearing up. While a 16 year-old can marry, they still need permission from a parent or guardian. It makes no sense that an adult can break the law if they sell alcohol or cigarettes to a 16 to 17 year-old, or smoke in a car with a 16 or 17 year-old in the back seat, but not if they abuse or neglect them. I very much support this amendment from the Children’s Society. I hope that the Minister will be able to take account of it and work further on what needs to be done to update this law.
Baroness Benjamin (LD)
My Lords, I rise briefly to support my noble friend Lady Walmsley on Amendment 41. This subject has been brought to my attention for the last 20 years or more and it is getting worse. Just last week there was a report on the number of children who are accused of having been bewitched. We need to make sure that those children feel secure and protected in the society that we live in. This is a form of cruelty, as my noble friend has said, and we must be assured in this House and in wider society that those children are protected, looked after and that they feel secure. The people who actually do these cruel things to children—because that is what it really is: child cruelty—must be aware that they cannot hide behind religious beliefs. That is the case at the moment. We need to make sure that everything is in place to ensure that children feel protected and secure and—as my noble friend said—feel that they have got somebody to whom they can turn if in need.
Lord Rosser (Lab)
My Lords, we have come back to a clause that was much debated in Committee. While we very much welcomed Clause 65 and the change to make clear that it is a crime to inflict cruelty which is likely to cause psychological suffering or injury to a child, we also supported amendments tabled at the time by the noble and learned Baroness, Lady Butler-Sloss, and called for by various children’s organisations, to further update the offence. As I understand it, those organisations, and indeed we ourselves, welcome the amendments that the Government have tabled and the explanations they have provided.
However, I would like assurances on a couple of issues. First, our original amendment further defined the scope of the offence by adding the words “physically or emotionally ill-treats, physically or emotionally neglects”. As the Minister has said, the Government have now tabled an amendment to clarify that the behaviour necessary to establish the ill-treatment limb of the offence can be non-physical, and we welcome this.
Another change relates to Section 1(2)(b) of the 1933 Act which makes specific provision about liability for the child cruelty offence in circumstances where a child under the age of three has suffocated while in bed with a drunken person. Again, the Government have listened to the Committee amendment and extended the provision to cover circumstances where the person is under the influence of illegal drugs, and it applies also where an adult suffocates an infant while lying next to him or her on any kind of furniture or surface. Again, this is welcome.
The Committee amendment would also have removed the reference to unnecessary suffering, which somehow suggests that the suffering of children may otherwise be necessary, and replaced it with a reference to serious harm. We understand the Government’s concerns that the overall impact of the amendment would be to raise the threshold of unnecessary suffering to serious harm, but we would like to hear more of the Government’s thinking after having given further consideration to the Committee amendment. We would like assurances that the difficulties with the term “unnecessary suffering” will be sufficiently addressed while also making sure that the threshold for harm is not raised.
Finally, the Committee stage would have defined the word “wilful”, which many have criticised as too difficult to interpret. Here, the Minister said that the Government felt that the concerns raised would be best dealt with through guidance rather than by amending the legislation. In the light of that, we would like reassurances on the following points: namely, that the police and others within the criminal justice system will be made fully aware of the change in law so that they understand the impact of psychological abuse; that guidance and directions will directly address the case-law definition of “wilful” to secure absolute clarity, including on the inclusion of “reckless state of mind”; and that that will be communicated to all parties. I hope that the Minister will be able to provide the assurances that I seek.
Lord Bates
My Lords, I thank noble Lords for their contributions to this debate. I will seek to answer all the points they have raised as best as I am able. I will be mindful as I do so that I am relatively new to this field, in which many of your Lordships have immense and deep personal knowledge and experience. We therefore want to give that every possible attention and consideration. I will follow no particular order, but will try to follow through some of the points that were raised.
The first point was raised by my noble friend Lady Walmsley, who asked about Section 1 of the Children and Young Persons Act; in fact the amendment is directed at any person who,
“has responsibility for any child”,
or is otherwise “legally liable to maintain” them. It therefore goes beyond that narrow definition of parental supervision to something much wider: to those who have responsibility for the child.
I turn to the extreme religious practices that were referred to by my noble friends Lady Walmsley and Lady Benjamin, and other noble Lords. As my noble friend Lady Walmsley explained, Amendment 41 seeks to amend Section 1 of the 1933 Act to make it an offence for any person to allege that a child is possessed by evil spirits or has supernatural harmful powers—the unacceptable practice sometimes referred to as “witch branding”. I am aware that my noble friend proposed similar amendments during the passage of last Session’s Children and Families Bill and has been in correspondence with the Department for Education regarding her concerns.
I share my noble friend’s commitment to safeguarding children from this and all other forms of abuse. A belief system can never justify the abuse of a child. We need to ensure that children are not subjected to abuse, or left vulnerable to potential abuse, because someone alleges that they are possessed. However, the Government believe that the current law is sufficient for this purpose. It provides adequate protection for children from the type of abuse that this amendment is trying to prevent. While the existing legislation does not specifically mention communication of a belief that a child is possessed by evil spirits, the current offence of child cruelty already captures ill treatment or other conduct by a parent or carer that is likely to cause a child unnecessary suffering or injury to health.
The Government are amending Section 1 through Clause 65 to make it absolutely clear that physical and psychological suffering or injury is covered by the offence. In addition, we are now making one further clarification in respect of the “ill treatment” limb of the offence to make it explicit that the behaviour amounting to “ill treatment” can be non-physical as well as physical. Those changes will make it even clearer that conduct of the type described by my noble friend’s amendment is capable of being dealt with, as we believe it is, under the Section 1 offence.
Where the conduct in question could not be covered by the offence of child cruelty or is not committed by a parent or carer, it could be caught by other criminal offences depending on the circumstances of the case. I am aware that Department for Education officials had earlier discussed the issues around witch branding with the Crown Prosecution Service, which makes any decision on whether a prosecution should be pursued. I understand that my noble friend has been sent a copy of the CPS guidance for prosecutors; this is an area with which the noble Lord, Lord Rosser, is also concerned. The guidance illustrates which legislation and which offences could be considered in different circumstances. I believe that it covers all the situations where a child might face potential harm, including those situations where the perpetrators of potential harm are third parties, such as “rogue pastors”.
Our approach should be to ensure that the scope of the current legislation is better understood to ensure that it works as it should. We will certainly engage in conversation with colleagues in the Department for Education and with other officials to do this. We must also raise awareness among the relevant communities and faith groups. That is a very important part of combating this problem: not only catching the offences when they happen but supporting work to raise awareness. I am sure my noble friends are aware that the Department for Education is part of the national working group on the issue, which published an action plan in 2012.
The department is funding two organisations, AFRUCA and the Victoria Climbié Foundation, which work with black and minority ethnic communities on safeguarding issues. In addition, part of the Department for Education grant to Children and Families Across Borders has been used to produce an online application to raise awareness of issues relating to witchcraft and spirit possession, which was launched earlier this year. This issue is an ongoing concern for the Department for Education and the Home Office, and I know that they will value enormously my noble friend’s input into developing an appropriate response.
My eagle-eyed noble friend Lord Swinfen spotted a potential gap in the existing law. The relevant wording is that the person would need to have been in possession of the drug that they had taken and of which they are under the influence. There would need to be evidence that the person was in illegal possession of that drug immediately before taking it. My noble friend highlighted that point and thought that it could be an area that a skilful barrister might be able to argue his way round. That may be the case and we will have to see how it is tested. However, that is the test which is required under existing law.
I am grateful to the noble Lord, Lord Rosser, for his welcome of the amendment. He asked about replacing the reference to “wilfully” with the word “recklessly” or defining it as meaning that a person with responsibility for a child foresaw that an act or omission regarding that child would be likely to result in harm, but nonetheless unreasonably took that risk. There is a well established body of case law that sets out the meaning of the term “wilful” in this context. It clearly provides, among other things, that “wilful” already implies an intentional or reckless state of mind.
We are concerned that inserting a definition of “wilfully” into Section 1 of the 1933 Act would risk creating uncertainty in respect of the significant number of other existing offences subject to the “wilful” mental state; for example, the offence of wilfully neglecting a person lacking mental capacity under Section 44 of the Mental Capacity Act 2005 being taken forward in the Criminal Justice and Courts Bill. For these reasons, the Government cannot agree to the proposed changes. That said, I reiterate the assurance given by my noble friend Lord Taylor in Committee—namely, that Ministry of Justice officials are liaising with the Department for Education, the Crown Prosecution Service and the police on whether any updates or revisions to the relevant guidance would be necessary to ensure that the effect of Section 1 of the 1933 Act, as amended, including the correct understanding of “wilfully”, is clearly understood and appropriately applied by front-line professionals.
The noble Lord, Lord Rosser, made another point about whether the term “unnecessary” actually needed to be there as some considered it archaic and not relevant to modern times and wished for it to be deleted. Others want to use “serious or significant harm”, with “harm” defined broadly, to include “the impairment of physical, intellectual, emotional, social or behavioural development”. It seems to us that the overall impact of such a change would be to raise the threshold of “unnecessary suffering” to “serious harm”.
Lord Rosser
I think I had accepted what the Government had said: if you use the words “serious harm”, it would raise the threshold. However, I asked for assurances that the difficulties with the term “unnecessary suffering” will be sufficiently addressed rather than just being left. I had accepted the Government’s point that if you put in “serious harm” you might end up raising the threshold, but that still does not address the issue of the reference to “unnecessary suffering” with the implication, almost, that there can be such a thing as necessary suffering as far as children are concerned.
Lord Bates
I am grateful to the noble Lord for his clarification of his position, which I certainly accept. In this context, I refer him back to the reassurances given by my noble friend Lord Taylor in Committee, to which I referred previously. That guidance, and the understanding of how the rules should be applied by front-line professionals, will, of course, be taken very seriously indeed. We want to make sure that people understand that thoroughly.
In response to the point made by the noble Baroness, Lady Howe, about the age of 16 or 17, young people aged 16 or over are lawfully able to be married, and are generally deemed capable of living independently of their parents. Those under the age of 16 are generally more vulnerable and dependent on those who care for them. For this reason, we believe it is right that Section 1 of the 1933 Act is focused on protecting persons under the age of 16. I realise that there is a campaign—if I may call it that—or movement that seeks to change that through the UN convention but, at the moment and in this context, we feel that 16 is the right threshold.
I have tried to address most of the points raised by noble Lords in response to my moving the amendment. I beg to move.
Lord Bates
“( ) In subsection (2), in paragraph (b)—
(a) after “to bed” insert “or at any later time before the suffocation”;(b) after “drink” insert “or a prohibited drug”.( ) After that subsection insert—
“(2A) The reference in subsection (2)(b) to the infant being “in bed” with another (“the adult”) includes a reference to the infant lying next to the adult in or on any kind of furniture or surface being used by the adult for the purpose of sleeping (and the reference to the time when the adult “went to bed” is to be read accordingly).
(2B) A drug is a prohibited drug for the purposes of subsection (2)(b) in relation to a person if the person’s possession of the drug immediately before taking it constituted an offence under section 5(2) of the Misuse of Drugs Act 1971.””
Baroness Butler-Sloss
“Child abduction warning order
In section 2 of the Child Abduction Act 1984 (offence of abduction of child by other person), after subsection (3) insert—“(4) A chief officer of police may issue an order under this section (a “child abduction warning order”) in respect of a person (“A”) if it appears that the following conditions are met—
(a) A is over 18; and(b) A has without lawful authority or reasonable excuse been found in the company of a child (“C”); and(c) C is reported missing and is found on two or more occasions to be in the company of A; or(d) there is reason to suspect that C’s behaviour is, by reason of association with the defendant, giving significant cause for concern.(5) An order under subsection (4) prohibits A from being in the company of C.
(6) A person who, without reasonable excuse, does anything that he or she is prohibited from doing under a child abduction warning order commits an offence.
(7) A person guilty of an offence under this section is liable—
(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine (or both);(b) on conviction on indictment, to imprisonment for a term not exceeding 5 years.(8) The Secretary of State must issue guidance to chief officers of police in relation to the exercise by them of their powers with regard to child abduction warning orders.
(9) The Secretary of State may, from time to time, revise the guidance issued under this section.
(10) The Secretary of State must arrange for any guidance issued or revised under this section to be published in such manner as the Secretary of State considers appropriate.””
Baroness Butler-Sloss
My Lords, I am moving again the amendment relating to child abduction warning notices which I raised in Committee. I do not want to go through everything that was said on that occasion. I was supported by the noble Baronesses, Lady Walmsley and Lady Howarth, and the noble Lord, Lord Rosser, who also supports my bringing this amendment before the House again. The problem is that the police do not have adequate powers to deal with grooming of young girls at the point at which the girl is in the process of being groomed but has not yet been taken off and sexually abused, raped or whatever. It is at a relatively early stage, but if it is not stopped it will carry on, as we know from a number of cities around the country.
The quite simple point, as was very neatly expressed by the noble Lord, Lord Rosser, in Committee, is that the current notice that the police have leads to no action being taken unless the threshold of an abduction threat has been met. This applies to the stage before the actual abduction threat. I am not happy about what the noble Lord, Lord Taylor, said. I understand his concern that the police might have a power greater than they have in other powers but something needs to be done, which is why I have raised the matter again. I beg to move.
Baroness Walmsley
This proposal came out of a parliamentary inquiry co-ordinated by Barnardo’s and chaired by Sarah Champion MP. Two of my noble friends, my noble friend Lady Benjamin and my noble kinsman Lord Thomas of Gresford, and I were both on that inquiry. We heard first-hand what others have been able only to read: the evidence for making this change to the law. It was very interesting and moving to hear the evidence of the victims. It was also moving to hear the evidence of the police who are committed to protecting children but feel that they do not have sufficient tools to do so.
Our focus should be on prevention or at the very least on the earliest possible intervention. The police are asking for this power to be made statutory so that they can enforce it at an earlier stage of the grooming process. It was made very clear that many of these young girls are quite willingly in the company of older people who eventually abuse them. One young person who gave evidence to us said that she genuinely thought that these people were her friends and the only people who cared about her in the world. That indicates that these young people are not there because they have been physically abducted; they are there willingly. Very often, in a prosecution, they are not willing to give evidence that they have been abducted.
Passing this amendment, or something very similar, would strengthen young people’s confidence in the police. Currently, the approach has a further damaging effect because it erodes the confidence of victims and their families in the ability of the police to protect them when they see that an abuser has broken the terms of a child abduction notice but no action is taken. That is why we need to make it statutory.
Lord Rosser
I certainly do not intend to repeat the arguments that have already been made in Committee and on Report in favour of this amendment. As the Minister will well know, in his response in Committee, the noble Lord, Lord Taylor of Holbeach, accepted that proposals to strengthen the impact of child abduction warning notices had the support of the police, legal experts, representatives of local agencies, young people who had been affected by sexual exploitation, children’s charities and others. The then Minister undertook to consider carefully the benefits of putting these notices on a statutory footing and how such a statutory scheme might operate. He indicated that the Government were committed to examining the case for placing child abduction warning notices on a statutory footing but said that, while the Government may not have completed their review by Report stage, he would update the House on progress. I may have missed a letter but I am not aware of the Government having completed their review.
Among the issues that the then Minister felt needed to be considered were whether it was appropriate for the police to impose an order or injunction, breach of which is a criminal offence; the test for the grant of an order; the prohibitions or restrictions that might be attached to an order; the penalty for breach of an order; and the reference in the amendment requiring a child to have been found two or more times in the company of the person to be made the subject of an order. On these issues, which were raised by the then Minister in Committee, as far as I am aware, we await the Government’s conclusions. I am assured that all those groups and bodies interested in this specific issue are happy to work with the Government to resolve these points.
Lord Bates
My Lords, I thank the noble and learned Baroness, Lady Butler-Sloss, for tabling this amendment and for giving me the opportunity to put on the record some of the developments that have occurred over the summer, since my noble friend Lord Taylor addressed this issue in Committee on 15 July. I also congratulate my noble friend Lady Walmsley on the work of the committee that produced the report. I have had an opportunity to see and to review it. It produced some disturbing material and we need to get that material and that evidence into the policy process. I will set out what we are doing in response in my remarks.
We can all agree that child sexual exploitation is a horrendous crime; the Government are determined to stamp it out. We have seen this from the dreadful events in Rotherham, as highlighted by Professor Alexis Jay’s report, where there were appalling failures by the council, the police and other agencies to protect vulnerable children. We were all sickened to read about the victims in Rotherham and the horrific experiences to which they were subjected. Many have also suffered the injustice of seeing their cries for help ignored and the perpetrators not yet brought to justice. Our priority must be the prosecution of the people behind these disgusting crimes. Where there has been a failure to protect children from abuse, we will expose it and learn from it. I am grateful to the noble and learned Baroness, Lady Butler-Sloss, for again articulating the case for putting child abduction warning notices on a statutory footing. We note that there is support for this position from the police, legal experts, children’s charities and others.
Police forces are tackling child grooming for sexual exploitation. This is clear from the increasing number of these cases before the courts and the significant sentences being handed down to perpetrators. There will always be more to do. The Home Secretary has written to all chief constables to ask them to take on board the lessons from the Jay report into the failings of Rotherham, and from the rolling Her Majesty’s Inspectorate of Constabulary inspections into how forces are protecting children.
Amendment 42 is an important contribution to this debate. The existing non-statutory child abduction warning notices are issued by the police. That is entirely appropriate where breach of a notice is not, of itself, a criminal offence. As the noble Lord, Lord Rosser, reminded us, in Committee, my noble friend Lord Taylor undertook to examine further the case for placing child abduction warning notices on a statutory footing. I am grateful to the noble and learned Baroness, Lady Butler-Sloss, for affording me this opportunity to update the House.
Over the summer, Home Office officials have worked with policing colleagues to examine the issues in more detail. Discussions have taken place with colleagues representing the National Policing Lead for Child Protection, the national policing co-ordinator on child sexual exploitation, the CEOP—Child Exploitation and Online Protection Centre—command of the NCA and the College of Policing. While, in some cases there may be merit in the statutory offence of breaching child abduction warning notices, it has become clear through these discussions that the effectiveness of the current system is in its simplicity and non-bureaucratic process. Such notices are intended to disrupt predatory behaviour and stop access to a vulnerable child. They are often a useful step along the path towards more formal orders, and it is suggested that the immediacy of these notices could be inhibited by the need to apply for an order from the court.
Existing non-statutory child abduction warning notices are issued by the police. That is entirely appropriate where breach of a notice is not, of itself, a criminal offence. As my noble friend Lord Taylor indicated in Committee, it would be an unusual step to invest directly in the police—rather than in the court—a power to impose what amounts to a restraint order or an injunction, breach of which is a criminal offence. Compare, for example, restraining orders under the Protection from Harassment Act 1997, which are granted by the courts. Other civil preventive orders such as serious crime prevention orders and gang injunctions, which are dealt with elsewhere in the Bill, are also subject to judicial oversight. We will continue to consider carefully with policing colleagues their views on the potential use of a statutory notice and whether, in their view, further changes are required better to protect children.
It is important to note here the wider work taking place across government to protect children. The Home Secretary is chairing meetings with other Secretaries of State to look at what happened in Rotherham. We will consider the findings of Professor Jay’s report and consider what the state at every level should do to prevent this appalling situation happening again. The meetings will build on the existing work of the Home Office-led national group to tackle sexual violence against children and vulnerable people, which is bringing the full range of agencies working in this area together better to protect those at risk and create a victim-focused culture within the police, health and children’s services. In July, the Home Secretary made a Statement about the sexual abuse of children, announcing the establishment of an independent inquiry panel of experts in the law and child protection to consider further whether public bodies and other non-state institutions have taken seriously their duty of care to protect children from sexual abuse. The inquiry panel will be chaired by Fiona Woolf.
Given what I said, there is still more work to be done on this issue to find a position that balances the need of police forces to be able to take appropriate, effective and timely action when required and the need for safeguards, including appropriate judicial oversight. On this point, we still need to be convinced that making the change does not affect the simplicity, speed and unbureaucratic nature of the existing process. I hope and expect that we will have completed our consideration of this proposal before the Bill completes its passage through the House of Commons. I will, of course, notify the noble and learned Baroness and other noble Lords who have spoken in this debate of the outcome of our consideration of this issue. Indeed, I would add that, given the level of expertise in this House, it would be extremely useful if interested noble Lords would join me in a discussion with officials and other representatives so that they can see some of the responses we have already had about data, and the number of notices that have been issued and their effect, soon after the conclusion of our deliberations today, and certainly in the next few weeks. That will ensure that we can draw on the input and expertise of this House.
I know that the noble and learned Baroness would have liked to hear something more definitive in my response today, but I ask her to bear with us and accept that the intentions of Her Majesty’s Government are those of all noble Lords: we are absolutely resolute in respect of this heinous crime. I hope that she will agree to withdraw her amendment at this stage.
Baroness Butler-Sloss
My Lords, I thank all those who have taken part in this short debate and the Minister for setting out the thought processes of the Government, together with those who have been advising them. I am not entirely happy, as the Minister would expect. Perhaps I may start by saying that it is not the police in Rotherham who I was talking about because they failed the children. It is the police who do not fail children in other parts of the country and are issuing the child abduction notice who are concerned about its ineffectiveness. That, I think, is the point. I understand the advantages of an immediate notice and I can see that it is a disadvantage that an immediate notice necessarily has a statutory backing. But I wonder if the Minister could take away what I was thinking about while I listened to what he said. It may be that if the notice is immediately disregarded, one ought then to be looking at some sort of statutory notice that would make it a requirement to go to the magistrates’ court because it would be the second time. What you want to do is catch the groomers before they become child abductors and rapists. It is this early stage that the noble Baroness, Lady Walmsley, and I are particularly concerned about. However, I would welcome the opportunity to take part in any discussions, as I am sure would the noble Baroness—she is nodding—so do please ask us to take part. On that basis, I beg leave to withdraw the amendment.
Bishops and Priests (Consecration and Ordination of Women) Measure
(10 years ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Archbishop of Canterbury
That this House do direct that, in accordance with the Church of England Assembly (Powers) Act 1919, the Bishops and Priests (Consecration and Ordination of Women) Measure be presented to Her Majesty for the Royal Assent.
The Archbishop of Canterbury
My Lords, it is now 95 years since Parliament conferred on the Church of England the power to initiate legislation, which, following parliamentary approval and Royal Assent, becomes part of the law of England.
Most of the Measures passed by the Church Assembly and, since 1970, by the General Synod have been necessary but modest revisions of the church’s rule book and the law of England. Texts such as the Church of England (Miscellaneous Provisions) Measure 2014 or the Ecclesiastical Fees (Amendment) Measure 2011 were not framed with excitement in mind, but even they sound positively racy compared with that early piece of Church Assembly legislation considered by this House in the days of Archbishop Davidson—the Ecclesiastical Dilapidations Measure 1923. Just occasionally, though, the church brings to Parliament legislation which is of more significance and effect. The Church of England (Worship and Doctrine) Measure 1974 was one such, and so was the legislation passed by Synod in 1992 to enable women to be ordained priests in the Church of England.
This evening—or late this afternoon, as noble Lords have been so quick on criminal justice—the House has before it another piece of legislation designed to achieve a change of historic significance, at least in church terms. Its effect is to enable the Church of England, for the first time, to open all three orders of ministry—deacons, priests and bishops—without reference to gender. The process that was begun by the legislation to enable women to become deacons in the 1980s and then priests in the 1990s will at last be completed by legislation which enables women to become bishops—and indeed, archbishops, since they are not a separate order of ministry in the Church of England. Over the past 20 years many women have given outstanding leadership as vicars, archdeacons and cathedral deans. Now for the first time every post will be open to them.
For many people within the Church of England—and others, looking at it from outside—it has been a process full of frustration. It has been somewhat baffling, particularly in recent years, that something which seems so simple and obvious should have become such a considerable problem. After all, surely the big step was taken in the early 1990s with the admission of women to the priesthood. That indeed is true theologically and psychologically. What matters to most people in the church is who the vicar is. For people in parishes the person who matters most is the vicar.
Nevertheless, the Church of England at the Reformation did not opt for a system of congregational or Presbyterian governance. We remained, like the Roman Catholic and Orthodox communions, an episcopal church where bishops are the leaders in mission and ministry and give authority to others as ordained ministers of the gospel through the laying on of hands. Above all, they are the focus of unity. That is very relevant to the structure of this Measure. It is because bishops are at the heart of Anglican polity—indeed, they are included in the Lambeth-Chicago Quadrilateral as one of the four defining features of Anglicanism—that the process of securing agreement to this legislation has been so long and difficult. The heart of the dilemma has been how to try and maintain the theological breadth and diversity of the Church of England while securing a solution which avoids any appearance of equivocation over the Church of England’s commitment to equality between men and women.
In November 2012 the Measure failed and it looked as if the circle could not be squared. By a narrow margin in the House of Laity of six votes the General Synod rejected legislation at the final approval stage despite the fact that it had received approval from all but two of the dioceses in the country. In the course of last year, however, perhaps chastened by that sobering experience and the very adverse reaction across the country, people from a wide range of convictions in the Church of England came together and put together the Measure before us. The result is a very simple piece of legislation, buttressed both by a declaration from the House of Bishops setting out five key principles and by regulations, made under canon, to establish a grievance procedure with an ombudsperson, which will be overseen by independent review.
For traditional Catholics and headship evangelicals, it remains a matter of regret that the Church of England has taken the decision that it has, but they accept that the arrival of women bishops is the clear wish of the overwhelming majority within the Church of England and, in general, people have signalled their wish to remain as loyal members of this church for as long as it has a respected place for them. Similarly, for many of the advocates for gender equality, it remains a matter of regret that the Church of England has made special arrangements for those who on the grounds of theological conviction are unable to receive the ministry of women priests or bishops.
Nevertheless, the overwhelming majorities at Final Approval in the three Houses of Synod—95% in the House of Bishops, 87% in the House of Clergy and 77% in the House of Laity, majorities which in this House would be considered moderately comfortable—signal the commitment that there is to delivering this historic change while, so far as possible, maintaining the traditional diversity of the church.
It is not simply for reasons of history or nostalgia that we wish to remain a broad church. Reconciliation is at the heart of the Christian message; in fact, it has been said that it is the Christian message. It is a message which, as the discussions in this House during the past few weeks have shown, the world desperately needs. The example of being able to live with difference and yet to live in unity is called for more and more. We may regard other members of the Christian family as irritating, embarrassing or plain wrong, but they are part of the family and we do not choose our families.
There is much else that I could say, but let me in conclusion simply add two other points. First, I want to note that Clause 2 constitutes what in our view and that of government lawyers is a clarificatory provision concerning the definition of “public office” in the Equality Act. This is a complex area which we covered in some detail in our memorandum to the Ecclesiastical Committee, which is annexed to the committee’s report.
Under the declaration of the House of Bishops, there will be some occasions when some bishops—men as well as women—will need to ask another bishop to exercise some of their functions in relation to a particular parish. If episcopal posts were public offices, as defined in the Equality Act, appointing to them in the expectation that the person concerned would observe that self-denying ordinance would constitute discrimination in the terms in which the appointment was offered. We do not believe that episcopal offices fall within the definition of “public office” in the Equality Act—life Peers do not either, for that matter—but it is unclear what view the courts would take if the matter were ever tested, so Clause 2 puts the matter beyond any doubt.
Secondly, one of the many happy consequences of this Measure will be that the Benches of the Lords spiritual will in due course include women as well as men, but that could take some time if the normal seniority system were simply left to take its course. We have a bunch of young and vigorous Bishops who are not going to retire too soon, and they really do not die very often. The Synod did not have the power to include in the Measure amendments to the law on the issuing of parliamentary writs, but there has been consultation with all the main parties on the possibility of a very short and simple government Bill which could be taken through this Session to accelerate the arrival of the first women Lords spiritual. There has been solid cross-party support and I very much hope that the Government will be able to find a suitable legislative slot very shortly.
The Measure before your Lordships today is very long overdue. The arrival of women Bishops in this House is equally long overdue. I commend to you the Motion standing in my name.
Lord Lloyd of Berwick (CB)
My Lords, this is, on any view, an important debate, for the reasons given by the most reverend Primate. I wonder how many of your Lordships remember, as I do, the equally momentous occasion 21 years ago when we debated the Priests (Ordination of Women) Measure. That Measure, too, had a very long gestation period, but there was one speech that I particularly remember on that occasion—others of your Lordships might remember it, too—and that was the speech of Lord Runcie, who had recently retired from being archbishop to the comparative safety of the Cross Benches. I remember him describing what had occurred as having been not unlike a battlefield, in which he described himself as being one of the “walking wounded”. It was a most wonderful expression to have used, and must in itself have won over a number of your Lordships on that occasion.
I also remember him listing, quite distinctly, the qualities that he looked for when interviewing potential candidates for ordination. He went on to say that he found those qualities every bit as common among women as among men. In some ways, he thought they would add something, so he simply said, “Why not?”. I remember that I was totally convinced by that argument. I think your Lordships then were convinced by that, too. He has, of course, been proved right.
I do not overlook the fact that there are still 1,650 parishes—I think it is—where Resolutions A & B are still in force. The fact remains, however, that women priests now make up one-third of all our serving clergy and that proportion, I suspect, is likely to increase. There are already 22 women archdeacons and six women deans. Why, as has been asked, has it taken so long to take this last step? In the words of Frank Field at the meeting of the Ecclesiastical Committee, to which I shall be coming back a little later, what, in the end, has all the fuss been about? If one asks the same question as Lord Runcie asked 21 years ago, surely the qualities necessary to make a good diocesan or suffragan bishop are every bit as frequently found among women as they are among men. Therefore, to that question, I would answer an emphatic yes. Certainly, it has proved to be the case in the other Anglican communions overseas, where women bishops have been in existence for many years.
Unlike Frank Field, however—and I do not want to take up too much time—I am not surprised that it has taken so long to reach the position that we have now reached. I do not think that the church is in any way to be criticised on that account. I say that for two reasons. In the first place, the theological convictions of those who opposed women priests 21 years ago have not lessened in the mean time. Indeed, their difficulties could be said to have been, in a sense, compounded by the fact that we are now talking about the consecration of bishops and not the ordination of priests. Secondly, and equally important, there is the ecumenical argument, which is simply not to be brushed aside. One can just about imagine the Roman Catholic and Orthodox communions accepting women priests in our lifetime, but it is clear that, for them, women bishops are simply out of the question. That is clear from paragraph 25 of Annex 1, if your Lordships would like to refer to it. For those who have put so much effort into bringing the communions together, this will be a hard pill to swallow. One must bear that in mind.
For those reasons, I am not surprised that it has taken so long. As for the failure of the Synod to reach agreement, as it so nearly did, as the most reverend Primate explained, in November 2012, that was a great sadness—one suspects, particularly for the noble and right reverend Lord, Lord Williams.
However, the church was quick to learn from that failure, and the Synod was surely right to make a fresh start under the inspired leadership, if I may say so, of the most reverend Primate, for all four reasons set out in Annex 2. The new Measure seems to me to be a great improvement on the previous one. As we know, it has been passed by all the dioceses without exception with great majorities in every case. It came before the Ecclesiastical Committee, which I have already mentioned. We had a full meeting with the representatives of the legislative committee of the Synod. We asked them all sorts of questions. I remember shrewd questions from the noble Lords, Lord Glenarthur, Lord Plant and Lord Judd. It seems to me that the team led by the most reverend Primate answered all our questions to our great satisfaction. When the Motion was put, it was passed unanimously—again, unlike on the previous occasion.
I hope that we will follow the lead of the Ecclesiastical Committee and, like the most reverend Primate, I hope that it will not be long before we can welcome our first woman bishop as a Member of this House. That would clearly involve, by agreement, finding some way to accelerate their progress, but I hope that we will do just that. For that reason, I support the Motion.
Baroness Berridge (Con)
My Lords, who would have thought that last business on a cold and wet Tuesday could be so significant, so exciting? In fact, I called a rather bemused Table Office at 10 minutes to five on the last day of the summer term when I saw the Measure on forthcoming business and inquired urgently, “Am I allowed to speak?”. I have therefore been musing this summer what I should say on this seriously exciting stuff if you are a woman attending an Anglican church.
Perhaps I should briefly elaborate. If you are a woman in 21st century Britain and you take for granted your freedoms, you just need to read a novel such as A Thousand Splendid Suns by Khaled Hosseini, describing life today for Afghani women, to know how fortunate you are. If you are a woman in politics and lacking vision, you have just to pop to Victoria Gardens and stare at the statue of Emmeline Pankhurst; you will soon find fresh inspiration.
Women in leadership in the church is, of course, a trickier issue. With a few notable exceptions such as Elizabeth Fry, we are not brimming with role models in leadership—or so I thought until three years ago, when I visited the Anglican cathedral in Kampala, Uganda. And there you will find plaques on the wall to the people who left England in the late 19th and early 20th centuries at the invitation of the king of Buganda, who had asked the Anglicans to come with their Christian message. I noticed that the plaques on the wall fell into two distinct categories: the first was of small family groups, such as Dr and Mrs Manning and their six year-old child; and then there were women—women who left England alone to go to a land that they had never even seen in a photograph and never came home. Perhaps they would have gone anyway, even if, at that time, they had been allowed to use their talents in English parishes. However, I suspect that many women went overseas as, at that time, it was one of the few options for them to use their talents. The irony that they taught and led congregations of black men may only have dawned on later generations. No one knows the names of these women, but they are role models. Their legacy is obvious, as after exporting much of the best talent for decades, if not centuries, it is perhaps no surprise that 98% of the Anglican Church is outside England, and much of it is growing numerically very quickly.
Since I decided to speak, the issue of the best talent for leadership has arisen in another guise for the Anglican Church, which the recruitment of women as bishops may inadvertently assist. There are no published data on the social background of the leadership of the Anglican Church, but the Church Times journalist Madeleine Davies applied the criteria from the recent report by Alan Milburn’s social mobility commission to the current Anglican leadership and found that half of our bishops are from public schools. Although I rate the most reverend Primate as the most down-to-earth Etonian I have ever met, I am keenly aware that this is treading-on-eggshells territory. Half the bishops may have been on assisted places to attend such schools, and there was certainly no chapel at my state comprehensive, so that might be the explanation.
I am convinced that God, who lived on earth as a skilled craftsman, has given the competence to lead churches to some unusual suspects. Women as bishops will probably give a head start to broadening the educational background among leaders, and I hope that the work of my noble friend Lord Green of Hurstpierpoint to talent-spot and develop leadership will include looking at barriers to entry, recruitment in your own image and unconscious bias, which we all carry. Perhaps my noble friend could do a wee investigation of those on the approved list held by the Crown Nominations Commission to see what the future trend might be.
There is one additional aspect that my noble friend Lord Green might consider that did not trouble Alan Milburn but may disproportionally affect women in the church. I was so troubled by this issue that when I attended Synod in York I mentioned it to Dr Caroline Boddington, who I understand holds the list I mentioned. I referred to the women going to Buganda alone. They were, of course, single women. Marital status, I am told, is irrelevant to selection, but if an institution which has so many single people in its ranks ends up disproportionately promoting married people, one might want to investigate. God was, after all, a skilled craftsman who was single.
The Measure before your Lordships’ House is a wonderful opportunity for the church to be a role model for our boardrooms, Armed Forces and, indeed, Parliament to show how leadership is done at its best. I thoroughly welcome the transitional provisions to see women bishops join this House earlier than the current system would allow. I hope that the heart of the most reverend Primate is not sinking at my high expectations of future leadership by both men and women in the church. I have always believed it is a miracle that this state comp girl is a Conservative Peer. All that I have outlined is eminently possible. An exciting era is about to begin.
Lord Griffiths of Burry Port (Lab)
My Lords, I will make a short speech, if I may, at several levels. First, as a member of the human race committed to fighting for gender equality and the smashing of glass ceilings that prevent women from rising to the very top of institutions, I welcome this proposal. Secondly, as a member of the Ecclesiastical Committee, I simply reiterate the support that I gave for this Measure when the committee met earlier. It is about time, too. We all think that, and we now just want the action to proceed. Thirdly, as a member and former president of the Methodist Conference, I am determined that it should not simply be Anglican voices that give expression to their delight in this debate; Methodists across the land will rejoice at it. We will of course endeavour not to gloat at the tardy joining of Methodists by Anglicans on the road that sees women in top leadership. Fourthly, as the husband of a wife who is a direct descendant of the Pankhurst family—my wife is sitting in the Chamber at the moment so I had better say the right thing—I have learnt what can be achieved by the determination of women seeking after justice and righteousness. Finally, in my own right, I want to be able to show my grandchildren with great pride my name on the record when this Measure was accepted.
Baroness Perry of Southwark (Con)
My Lords, I was immensely privileged to be co-opted over many years as the only lay woman in a group of the most senior women in the Church of England, who for many years had a residential meeting once a year in the beautiful St George’s House within Windsor Castle. Those women had become quite senior—they were archdeacons or deans—but, alas, they had banged their heads against the concrete ceiling which the church, my church, had then imposed upon them. I cannot tell you of the immense pain which many of those women suffered with the feeling that their own church, which they loved and served, still did not recognise the potential that they had. As a lay member of that group and the church, I say how infinitely humiliating it was to feel that the church that I loved—and, if I may say so, that I found it increasingly difficult to love—continued to reject the potential of those wonderful women within it, who performed at all sorts of levels in the church in a way which made it so greatly enriched by the work that they did.
I feel that I speak in this House for those women, because they are not here today. I listened to their stories over those many years when we met. The one thing which I think was most outstanding about them was their immense patience. They put up with the way that they were treated. One woman who was extremely senior—I will not mention her role—had to work with male colleagues who refused to take the host when she was officiating and met without her at key meetings because they did not wish to have her voice heard. There were women who were criticised because their high heels clonked as they walked in procession up the aisle of the church, and so on. There were unbelievable stories and yet they remained patient and conciliatory. They were willing to give and to understand the views of those who disagreed with them and wanted to continue to reject them and their calling. These were women who genuinely felt that they had a vocation to serve in the church, not women who were trying to push themselves forward because they wanted promotion, yet time and again their sense of vocation had to be put to one side.
I simply want to put on the record the immense courage and patience which those women showed in all the negotiations, which were painful. If you are on the receiving end of a refusal of recognition, it is not much fun; yet, as I say, they continued to work patiently with the people who disagreed with them and wished to exclude them, giving concession after concession over the years. I cannot tell you how immensely happy I am at the passing of this Measure today. I remember one occasion when we were meeting down in Windsor and were joined by the wonderful Bishop Wolf from America. I speak of the immensely moving moment when, after a couple of days of Bishop Wolf being simply Jo—she was just one of the girls when we were all chatting, having our breakfast and lunch or in our discussions together, and so on—at the end of our meeting, the person who was chairing it turned to her and said, “Bishop, would you give us your blessing as we leave?”. The moment when a woman stood up and gave me her blessing as a bishop was one of the most moving of my life. I look forward very much to having this in my own church, here in England and in the United Kingdom. I welcome the Measure.
Baroness Howe of Idlicote (CB)
My Lords, first, I declare my interest as a vice-president of WATCH, or Women and the Church. Naturally, WATCH warmly welcomes this Measure. We also especially congratulate the most reverend Primate and the Synod on achieving a solution to what seemed an intractable problem, as we have heard from others, and for doing it in such a short time.
However, I still wonder whether there might be some problems for senior women who might be considered for episcopal appointments. One is that they may have served many years in more junior positions despite their gifts and experience, and therefore be older than the usual run of candidates. Further, while some have already achieved high office, others might not have had the opportunity to follow the path which has previously been the norm for candidates to high office. As we have already heard, there have been some examples of why that may well have benefited many other parts of the world. It is therefore not altogether something to be totally sad about.
The second issue relates to the arrangements for the appointment of Lords spiritual. New diocesan bishops normally have to wait their turn, which can take five years or more. Members of both Houses have expressed concerns on this point in relation to newly appointed women bishops and would be interested to know of any arrangements to appoint women to this House as early as possible. That point has also begun to surface, I think.
We have before us a very short Measure on which this House needs to decide. However, the substance of it lies in the declaration of the House of Bishops and supporting documents. This declaration sets out the arrangements by which clergy and laity who dissent from the Measure can still continue to worship and function as members of the Church of England. WATCH fully accepts that declaration and recognises its importance in achieving the goal of seeing women appointed as bishops. Naturally we shall rejoice, as will virtually the whole church, when that occurs. Nevertheless, inevitably, these arrangements incorporate some measures of discrimination against women and give rise to questions which may not have been tackled in the very short time allowed for framing this legislation.
I have four specific questions which I hope the most reverend Primate will be able to answer, and I think that he has already hinted at the direction in some of his comments. First, can the Archbishops confirm that they will continue to observe the long-standing tradition of consecrating each new bishop? The document was silent on this point, but the most reverend Primate will appreciate how important it is for the validation of the episcopal orders of women and of those male bishops who ordain women.
Secondly, how can congregations in favour of the ordained ministry of women request the episcopal ministry of a non-discriminating bishop? As I understand it, the bishops’ declaration allows for parochial church councils—PCCs—on behalf of their congregations, to request the episcopal ministry of a male bishop. However, there are already parishes that have a woman priest but whose bishop does not recognise that priest’s orders. The declaration is silent on the question of whether such a PCC can request a non-discriminating bishop under the new arrangements. It is also silent on whether such PCCs have access to the newly created independent reviewer of disputes, who is to pronounce on,
“any aspect of the operation of the House of Bishops’ Declaration”.
Thirdly, can the most reverend Primate confirm that any newly appointed conservative evangelical headship bishop will minister only to parishes that request his ministry? There appear to be two possible models for the appointment of a headship bishop. One would be the “flying bishop” model instituted by the Act of Synod of 1993. In this model such a bishop would minister only to those parishes that specifically requested his oversight. The other—and, one has to say, much less acceptable—model would be to make a suffragan appointment to a specific see. In this case the majority of parishes under his oversight would not wish to receive the oversight of a bishop wedded to the concept of the subordination of women.
Fourthly, and finally, can the most reverend Primate confirm that Clause 2 of the Measure will have the effect of allowing the church to discriminate exclusively on grounds of gender and will not facilitate discrimination on grounds of sexuality and remarriage after divorce?
Clause 2 of the Measure declares that the office of bishop is not a public office—and we have had that confirmed by the most reverend Primate—and therefore is not bound by Section 50 of the Equality Act 2010. This clause is crucial to the regime for women bishops set out in the House of Bishops’ declaration, because that regime depends in part upon arrangements that discriminate against women. Reluctantly, women and supporters of women bishops have accepted it on this basis. However, the effect of this clause is finally and irrevocably to exempt the bishops from the anti-discrimination requirements of the Equalities Act 2010, not only in relation to gender but also in relation to other protected characteristics under that Act, including, most importantly for the church, sexuality and remarriage after divorce. Verbal assurances have been given that the bishops will not avail themselves of that exception, and I think that that is also what the most reverend Primate was telling us, but to have that assurance recorded in Hansard would really be a great help. I very much look forward to the most reverend Primate’s reply.
Lord Cormack (Con)
My Lords, I thank the most reverend Primate for the most generous way in which he introduced this Measure. I also pay tribute to the noble and learned Lord, Lord Lloyd, who is the chairman of the Ecclesiastical Committee—a committee on which I had the honour to sit for some 40 years—for the understanding way in which he spoke.
I do not wish to enter a jarring note in this debate, nor do I wish that anything I should say should diminish the delight and joy of those who have an unreserved welcome for this Measure. However, this is a debating Chamber, and where there are diversities of views it is important that those views should be voiced, if only briefly. I happen to belong to what Archbishop Hope—now the noble and right reverend Lord, Lord Hope—referred to very memorably in earlier debates on the ordination of women as the traditional integrity within the Church of England. I have the great good fortune of being able to worship every Sunday in the cathedral of the Blessed Virgin Mary of Lincoln. Before I moved from Staffordshire, I was churchwarden of the church of St Mary in Enville in the diocese of Lichfield.
For me, this is not a matter of equality in the secular sense to which the noble Baroness, Lady Howe, alluded in her speech. I honour the position of women in all walks of life. I revere the Blessed Virgin Mary, second only to our Lord himself. I have had the great privilege of being associated with some very fine women leaders in various walks of life, including the noble Baroness, Lady Howe; I have worked in a secular capacity with her for several years on matters of equality. So this is not a matter of gender discrimination. However, I happen to believe—this matter was referred to with great understanding by the noble and learned Lord, Lord Lloyd—that the majority of Christendom cannot be just lightly brushed aside. I talk of the Roman Catholic Church, and the Orthodox Church in particular. The majority of Christians in our world belong to one or other of those churches. I worked in the ecumenical field as a lay man, and I always longed for the day when there would be a unity among the catholic churches, of which the Anglican Church is one. The noble and learned Lord, Lord Lloyd, was right when he said that what we are doing this evening—I shall certainly not oppose it—will not exactly accelerate ecumenism. Let us not put it any more strongly than that.
Baroness Brinton (LD)
My Lords, to follow my noble friend Lord Cormack when I clearly come from a very different position might seem difficult, but I respect everything that he has said. I start by relating an anecdote. My step-grandmother died earlier this year. She was absolutely clear that she did not want her local woman vicar to take her funeral. The loving generosity of the incumbent not only to make the arrangements for somebody else to come and take that service but also to remove herself from the village on that day was very moving. I am quite sure that the magnanimity of which the noble Lord speaks is not only there, but comes from the heart of those who feel that today will see a long wrong righted while understanding that that is not a universal view.
There has been some jumping round the centuries since we started this debate, and I am minded of the joke when I was a bursar of a Cambridge college. At a bursars’ meeting there was an argument about the applicability of VAT on chapel repairs—it is the sort of thing you get used to at Cambridge bursars’ committees. After 20 minutes of debate, the bursar of St John’s turned to the bursar of a 17th-century college and said, in an exasperated tone, “You post-Reformation colleges just don’t understand our problems”.
I am reminded of the research by my noble friend Lord Tyler on the very early days of the precursor to your Lordships’ House, the council that King John founded. Although there is no evidence of women attending the council, there were women on the council because there were abbesses who were wealthy enough to be taxed, which is of course why King John wanted them there. So as and when there are women Bishops in this House we need to remind them that, while they may be the first to actually sit on the Bench, they will not be the first to have actually been appointed to the Bench.
Nearly half a century ago at my girls’ school, growing in faith, a group of us used to chat after our confirmation course and tea and biscuits about what we wanted to do in the future. We did not call it women’s ministry, but we talked about it in those days. We all felt very clearly that God was calling us to do something yet we did not know what it would be. We knew it was not just going to be the wife of the vicar, or a Sunday school teacher, although I have certainly been the latter. One of my school friends from those days was the first woman ordained on 12 March 1994. She will always say it is because her surname began with a “B”, but the truth is she was in that first group. Another close friend of mine was the reverend mother of an Anglican order. Both demonstrate that long before we moved to a position where we have bishops in the Church of England, even within my own shortish lifetime women’s ministry has been extremely important.
When I was a Sunday school teacher 20 years ago, just as the debate was raging about the ordination of women, I asked my Sunday school class how they felt about it. Even then, they did not understand what the issue was, and the girls in particular all saw that the women deacons in our church and those women who had special ministries were part of God’s plan for us here. Now they are adults, they are also fulfilling their own role in whatever way God sends them and it was wonderful to hear that a third of our vicars are now women. For those of us who are politicians and cheeky enough to comment about today as being a great day, when we look at the number of women MPs just at the other end of the corridor we perhaps ought to be mindful that we also have some way to go.
I sat in the public gallery of Synod at Church House on 20 November 2012 and I also attended the very helpful bishops’ meeting the following day for Peers and MPs. It is evident that the long consideration and careful love in the views of the House of Bishops and the House of Clergy in working with those for whom this has been theologically difficult has moved us to a different place. Justifiably there remain concerns yet, as a humble member of the Church of England, I feel quite clearly that in five or 10 years’ time we will have all forgotten what the deep issues were because we will have moved into a new era and be tolerant and understanding as our Lord would want us to be.
Baroness McIntosh of Hudnall (Lab)
My Lords, I should like to speak briefly, first as a member of the Ecclesiastical Committee—which I count a great privilege—and secondly as, in some way, a representative of the many, many people in this country who are not members of the Church of England, or indeed of any church, but who are none the less, in some curious way, deeply attached to the Church of England. We are people who have grown up in a world in which the ministry of the Church of England has been very important to the social and, indeed, the political fabric of this country. Those of us who are in that place have watched the progress of this issue about women bishops over the past few years initially with considerable dismay and latterly with—yes—joy. Even for those like me, for whom the theological issues are not the main matter in dispute, there was a question of the role and the importance of the church in wider society. The fact that it stood out against the consecration of women for so long undermined some of its credibility in the communities in which it was ministering.
I live in, and am a trustee of the church in, a parish which, I am very sorry to say, still holds out against women priests. Therefore, I do not think that at least some of the people with whom I spend some of my time in that parish will be all that pleased to see this Measure go through. However, as I said, there are many people in this country who are not members of the church but who are very glad that it is there, both at the parochial level and more widely, and for whom this is a good moment. We should record our gratitude to the most reverend Primate for leading this last bit of process, which has resulted in this Measure coming forward.
Finally, we should just remember that, although I fully understand and respect the points made by the noble Lord, Lord Cormack, about the Church of England’s place within the wider ecumenical movement, it is none the less different from other churches because it is an established church. It is part of the polity, and the politics, of this country in a most unusual way. I hesitate to call it unique, because I cannot altogether authenticate that, but it is certainly most unusual. That is why all of us, not just the members of the church, have an interest in this Measure, and all of us, even respecting the theological differences which make it difficult for some people to accept this, should none the less see this as a very good day for the church and for the country.
The Lord Bishop of Rochester
My Lords, I stand here as one who has had the privilege—at least it felt like that most of the time—of chairing the General Synod’s steering committee, which brought this last piece of legislation to fruition. In that regard, I put on the record during this debate in your Lordships’ House appreciation —some of which has already been expressed—for the contributions and hard work of so many who have brought us to this point, where I think most of us are pleased to be.
Reference has been made to patience, which the noble Baroness, Lady Perry, mentioned, and which has been shown by many, as well as understandable frustration and all sorts of other things, too. We need to place on record our thanks to those who have continued —yes—with patience, but also with some sharpness at times to persuade, to lobby and to keep this issue at the forefront of our minds, our attention and our action over recent years. I also put on record appreciation —which does not get done too often—of those who have been our advisers on the national staff of the Archbishops’ Council, who have been tireless in their efforts to enable us to find the legislative and other ways to come to where we are today.
I also put on record appreciation for those who have continued to have their misgivings and reservations about the rightness of making this move, not least because many of them, as is witnessed by the vote in General Synod so recently, have brought themselves to the point of recognising that this is the way in which the church as a whole must go forward, and either voted in favour or declined to vote against when it came to the final vote. Many of those people, not least those who are traditional Catholics, have contributed generously and valuably to the process and the outcome that we have reached at this point.
Lord Mackay of Clashfern (Con)
My Lords, I happen to be a Presbyterian and am associated with a church that is established in a different way north of the border but still in the United Kingdom. I want to emphasise, as strongly as I can, that we are dealing here with a decision by the Church of England. The Measure has been decided on by the Church of England and the role of Members of this House is to approve it so that it becomes part of the law of England. I particularly want to emphasise that it was for the Church of England to decide this, not Parliament. The Church of England has now decided it and it is for Parliament simply to approve it so that it becomes part of the law of England.
Lord Tyler (LD)
My Lords, I want to contribute briefly this evening because I was very moved by what my noble friend Lord Cormack said earlier. I should say, by way of background, that I come from a long line of Anglican priests. Indeed, I am the black sheep of the family, having fallen into politics, which is regarded by the rest of the family as being disastrous in that respect. My grandfather, a Cornish parson, was so horrified by the way in which Parliament treated the 1928 prayer book that he became convinced it was necessary to disestablish the Church of England. I follow in that respect, too.
I want to express my appreciation of what my noble friend Lord Cormack said earlier because his generosity should, I hope, be shared by others who may be disappointed, or even dismayed, by the way in which this Measure has come forward. I rejoice in the way it has come forward. I recollect very well a service in Truro Cathedral, on a bright, beautiful Cornish day nearly 20 years ago, when the then bishop, who had voted in the Synod against the Measure for the ordination of women, preached eloquently to us, expressing the most moving reason for changing his mind. He recollected that in the New Testament, in the Acts of the Apostles, the Almighty had given guidance to those who were voting on a decision to replace one of the apostles. He said, “What is good enough for the Apostles is good enough for me”. As part of that very moving ceremony, when he presented the seven candidates with a bible, he also presented them with a bunch of sweet peas, which he had picked from his garden that morning. It was a very moving moment when he, who had been relatively opposed to the ordination of women, said that he accepted the outcome of that vote. I hope that those who may now be concerned, apprehensive, worried or even dismayed will not only listen to my noble friend in the way in which he has accepted the outcome of this process but may also remember the words of that very distinguished Bishop of Truro.
Lord Berkeley of Knighton (CB)
My Lords, perhaps I may add a word from someone who was brought up in the Catholic Church and to whom, therefore, the ordination of women was very foreign. However, one word sums up much of what I have heard, particularly from the noble Lords, Lord Cormack and Lord Tyler, and that word is love. Recently, my wife was buried by a lady vicar, who also christened our grandchild. In the course of that, I came to realise that the semantics are not important; what is important is the degree of love. This lady bestowed a quite extraordinary gift on me, and I feel that we have come to a stage in our history where this is not only acceptable and desirable but extremely important. I have seen myself do a complete volte-face over the last decade, to a point where I enormously welcome women bishops, and I know that people such as the noble Lords, Lord Cormack and Lord Tyler, will do so as well. It is correct that we should also show great love to those who find this difficult. Having seen both perspectives, I can see that “love” may sound corny but it is in fact the answer.
Baroness Sherlock (Lab)
My Lords, I thank the most reverend Primate for his introduction to this Measure and all noble Lords who have contributed to this historic and extraordinary debate. I, too, thank the noble Lord, Lord Cormack, for the graciousness of being willing to stand up and explicitly commend this Measure to the House, given the pain that it clearly has caused him. I also thank the noble and learned Lord, Lord Lloyd of Berwick, for having shared with us the context and the excellent report from the committee under his chairmanship. I thank all committee members who contributed.
I probably should declare an interest, in that I, too, am an active member of the Church of England. The nearest that I have come to high office is that I was briefly the secretary of my PCC. The downside of being brought into your Lordships’ House was that, tragically, I was unable to be present in Durham on the evening that the PCC met and was forced to relinquish that role—I can tell noble Lords now that they will never get me back to do it again. None the less, because of that, it is an enormous privilege for me to be even a small part of this debate. I am so pleased to be able to do it.
Of course it was so different in November 2012, when the last attempt to resolve this issue was rejected by Synod. I was among those who were dismayed by the result as well as slightly baffled. As the most reverend Primate pointed out, for any Chief Whip in this House a 64% majority would be a result, and we did not think that he could have done much better. At a meeting with a bunch of parliamentarians from both Houses attended by the most reverend Primate the Archbishop, people were concerned. He explained that he would address the matter with urgency. People were very impressed—as were, I am sure, other noble Lords who were there—but a Member of another place said, “That is all very well, but the same people will be in Synod until the next election, so how can anything possibly change?”. I shall paraphrase what the most reverend Primate said, but he said, “I do not know, but I have worked in situations where very unlikely people have been reconciled and I believe in a God who is capable of doing miracles”. He may have had a point.
I pay tribute to the most reverend Primate for the commitment that he has brought to this process, the urgency that he has taken and the care and love that he has lavished on it. Working with the right reverend Prelate the Bishop of Rochester and all members of the steering group of the General Synod from a range of persuasions has enabled him to help Synod come to the place where it felt able to support the Measure before us today.
Baroness Northover (LD)
My Lords, on behalf of the Government, I, too, welcome the recent vote by the General Synod of the Church of England to allow the consecration and ordination of women bishops. I welcome the most reverend Primate’s presentation tonight of the relevant measure to enable this, and the thoughtful debate that we have had. The most reverend Primate rightly described this as a historic change and it is surely right that the church at every level should truly reflect the men and women in the populations it seeks to serve. Like the noble Baroness, Lady Sherlock, I also pay tribute to those who have put their points of view in such measured terms. We heard moving speeches by my noble friends Lady Perry and Lady Brinton, and the noble Lord, Lord Berkeley of Knighton, as well as from others, on the deep significance of this change. I also note the tone of reconciliation that has been expressed.
On the subject of our House, I confirm that we are keen participants in the discussions mentioned by the most reverend Primate on the options that might be available to ensure that we do not have to wait too long before we see women bishops in the House of Lords. I noted the way that the most reverend Primate glanced back at his colleagues. From the Government I can confirm that although we are looking at all sorts of options, capital punishment is not among them, and nor is getting rid of turbulent priests. It is to be hoped that they have nothing to fear.
This is indeed a historic day. As a former historian, I feel privileged and delighted to be able to answer from the Government that we welcome this move by the General Synod of the Church of England and that we support the measure before your Lordships tonight.
The Archbishop of Canterbury
My Lords, I begin by thanking your Lordships for the interventions that have been made. As has already been said, they have been moving, testing and interesting. I am particularly grateful that the tone of the debate has followed that of the General Synod, which was one of peaceful and thoughtful reflection rather than the much tougher and harder-edged debates of the past, which some of my right reverend colleagues will remember better than me, and from which they still bear the scars.
I cannot comment on everything that has been said by everyone or we would be here much too long, but I will pick up a few of the points that were made, particularly by the noble Baroness, Lady Howe, and answer the two questions that she asked that have not already been answered by the right reverend Prelate the Bishop of Rochester. First, on behalf of the church and particularly the Lords Spiritual, I thank the noble and learned Lord, Lord Lloyd of Berwick, for his chairmanship of the Ecclesiastical Committee over an extended period and for the way in which he most helpfully enabled the committee to meet quickly after the General Synod vote. That is why, if the measure is approved by the House this evening and the other place next week, I believe, we will be able to proceed at the General Synod in November and have the whole thing, as they say, done and dusted. The noble and learned Lord, Lord Lloyd, has worked very hard on this and we appreciate it very much indeed. I shall give the figures that he picked up on. Of our roughly 15,000 to 16,000 parishes, fewer than 1,000 have passed what they call resolutions to restrict the ministry of women priests: so it is not a huge proportion.
The noble Baroness, Lady Berridge, spoke eloquently about the quality of bishops—or, in her implication, the absence of quality in bishops for some time, perhaps as a result of the shallow pool from which they are drawn. I am very sorry about my education but I could not do much about it at the time. All I can say is that the pool is being improved.
The noble Lord, Lord Green, chaired a committee which completely reviewed the way in which those who are seen as potential bishops are developed and selected. The right reverend Prelate the Bishop of Ely, who is in his place this evening, is in charge of that process, among many other things, and is advancing it quickly. I hope that we will see that improvement which was spoken about. Issues of selection on the basis of social background were also raised. Having sat on seven selection processes so far, I have never yet heard the subject mentioned or hinted at in any way whatever, so I can reassure the House on that. Being single or married is not relevant. Six of our 40 dioceses are led by single men, and I have no hesitation in agreeing with the noble Baroness about the exciting potential of the next generation of bishops, both men and women.
The noble Lord, Lord Griffiths, with his normal sense of humour, implied quite rightly that we will be following the Methodist example. I have confessed to him in person—but I may as well do so to the House for absolution—that it was one of my ancestors who chucked Wesley out: we all have our ancestors. The noble Baroness, Lady Perry, spoke eloquently about the pain undergone by many extraordinarily talented women and the patience that they have shown over the years. I echo that strongly and wish to speak of the change of mood in the church over the last few years.
In particular, I pay tribute to the right reverend Prelate the Bishop of Rochester, who brushed over his extraordinary leadership of the steering group which took this measure through. This might be something for your Lordships’ House: at one point in the General Synod we abandoned completely our imitation of Parliament and met together in smaller groups with mediators—a remarkably skilled group of mediators led by one of the staff at Lambeth. I think it is fair to say that that was a turning point in which we learnt to listen to each other for the first time—and to love each other, as the noble Lord, Lord Tyler, remarked.
I turn to the very helpful speech by the noble Baroness, Lady Howe, and I pay tribute to her as the deputy chair of the Equal Opportunities Commission when it began in 1976. She has considerable experience in this area and an eagle eye for bad practice, which keeps us all on our toes. I will say two things before answering her question. She spoke about the issue—as did the noble Baronesses, Lady Perry and Lady Sherlock —of what people had gone through for many years. They asked whether they were just forgotten. We have just appointed a Bishop of Hereford, aged 64, six years before obligatory retirement, and I see absolutely no reason—I feel passionate about this—why we should not draw on the experience of those who have spent many years in non-episcopal ministries. It is essential to improving the quality of bishops. As we deepen the pool, we do so in terms of gender but also in terms of looking very openly at those who have the greater experience.
I am very grateful to the noble Baroness, Lady Howe, for mentioning that WATCH—Women and the Church —accepts the declaration of the House of Bishops. It is an important declaration which sets out five principles of non-discrimination, acceptance of diversity and recognition of difference across the universal and Catholic Church which is enormously important.