House of Lords
Thames Tideway Project: Contingent Guarantees
(10 years, 2 months ago)
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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, 2 months ago)
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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, 2 months ago)
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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, 2 months ago)
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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, 2 months ago)
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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.