Grand Committee
Consumer Rights Bill
The Deputy Chairman of Committees (Lord Brougham and Vaux) (Con)
Good afternoon, my Lords. This is the third day of the Consumer Rights Bill. If there is a Division in the Chamber, as soon as the Bell has rung, we will adjourn for 10 minutes to vote.
Clause 33: Contracts covered by this Chapter
Amendment 31A
“( ) Digital content as defined under section 2(9) shall have the same rights as goods under this Act.”
Lord Stevenson of Balmacara (Lab)
My Lords, Amendment 31A is also in the names of my noble friends Lady Hayter and Lord Knight of Weymouth, whom we welcome back this afternoon. He is too often away from our business and of course has great expertise in this area.
In his report, Consumer Rights In Digital Products, prepared for BIS in September 2010, Professor Robert Bradgate starts by saying:
“One might be forgiven for thinking that the questions addressed in this report would have been answered before now. Digital technology is now well established and widely used; consumers are familiar with and regularly purchase digital products and, indeed, some of the core questions considered in this report were first considered by a common law court as long ago as 1983 and first came before the English Commercial Court in a reported case in 1988. Nevertheless, there is as yet no wholly authoritative and satisfactory statement of the legal rights consumers enjoy on purchase of digital products. The area is not covered by subject specific legislation, and it is not clear whether digital products fall within the existing consumer protection regime of legislation such as the Sale of Goods Act 1979 … or the Consumer Protection Act 1987. This must be regarded as unsatisfactory”.
That is a bit of an understatement, I think, and it is good that the Government are now bringing forward proposals to try to codify and update the law in this area.
Last week in Grand Committee we talked about tangible goods and services but, in reading further the report I have just referred to, I noticed that there were some comments about the general propositions of introducing consumer legislation that have not yet been taken into account. Professor Bradgate says:
“It is generally accepted that the commercial community favours certainty in the law; the original Sale of Goods Act 1893 was passed on the request of the commercial community, which wanted a clear and accessible statement of the law governing contracts for the sale of goods. Equally, lack of certainty in the law is contrary to the interests of consumer buyers and may be exploited by suppliers to deny consumers their rights. It will rarely be economical for a consumer to take professional advice on a claim relating to even a relatively expensive consumer purchase, let alone to initiate legal proceedings”—
that is the point we have been making. He goes on to say:
“A clear, authoritative statement of the law would therefore be in the interests both of businesses and consumers”.
Chapter 3 concerns contracts where a trader agrees to supply digital content to a consumer. Digital sales are different from goods or services and there has been substantial debate over whether or not they are similar to goods. In particular, as most digital content is bought online, the trader and consumer do not meet and that makes it even more important to have clear rules about what each can expect and what to do if things go wrong. This is increasingly the way in which we will obtain goods and services in the future so we ought to try to use this Bill to at least get the principles right.
Why does digital content matter? In the UK entertainment sector, digital music, video and games now account for 43% of total spend; digital video games were worth £1.17 billion in 2013; 99.6% of the 189 million singles sold in the UK in 2012 were digital downloads; and 27.7% of British consumers downloaded or streamed music legally, meaning that it affects some 17.5 million citizens, especially young consumers, as 95% of 16 to 24 year-olds buy digital content. There are various other figures, including a 40% increase in spending on digital videos through downloads and recent research that puts the UK as the leading European country for total digital content spend per capita.
It cannot be sensible for the Government to be sanctioning two different regimes for tangible and intangible goods and services, and even if that situation prevails at the end of this Bill, I very much doubt that the courts will actually stand for it. Simplification and clarification of the law in this area should make it easier for businesses to understand and comply with their responsibilities; to explain and communicate to consumers what their rights under the law are; and for consumers to understand and assert their rights when things go wrong and they receive poor service.
The recent and continuing proliferation of portable internet-connected devices, including tablets and smartphones, has provided consumers with many more opportunities and new ways in which to access, purchase and consume digital content. The pace of development in the digital content sector—with new device launches, a broadening array of new products and services, and a sharp growth in digital content sales of all types—make efforts to clarify digital content rights and remedies in order to protect consumers timely and welcome. Our amendment seeks to align the rights for digital content with those for goods as far as is possible.
The department has produced and recently circulated a useful note on the differences between digital and tangible goods, for which I am grateful. The main issue between us is the question of whether, if digital content is provided in an intangible form and does not meet quality standards, the consumer should be restricted to a right of repair or replacement only. We strongly believe that the consumer should in such cases have both a short and a long-term right to reject digital content.
I draw the Grand Committee’s attention to the BIS Select Committee’s scrutiny of the Bill, which makes the case rather well. In paragraph 120, it says:
“The remedies for faulty digital content differ from those for goods. Unlike faulty goods, which a consumer will be able to reject within 30 days and receive a full refund, consumers will not automatically have a short-term right to reject faulty intangible digital content. The Government’s argument is that this is because digital content is not provided on a tangible medium”—
which seems somewhat circular—
“where it is downloaded or streamed and therefore ‘cannot be returned in any meaningful sense’. However, consumers will have a short term right to reject digital content sold on a tangible medium (such as on a DVD or CD)”.
In paragraph 121, it says:
“The different remedies available for tangible and intangible digital content in the draft Bill would … embed inconsistency into consumer law. Consumer groups argued that consumers experience intangible digital content in the same way as tangible digital content, as a good, and therefore would expect to be able to reject it and receive a refund if the statutory rights are not met”.
It is also worth also quoting the consumer organisation Which?, which said:
“We believe that it is inappropriate for the law to deny consumers an appropriate remedy due to the perceived risk of certain behaviour from a minority of others. Further, where digital content is purchased that is not as described, a replacement or repair will often not be a suitable remedy”.
Now, I accept that the concept of “returning” intangible goods does not easily sit with digital content and that digital content is very easily copied and can be very difficult to delete from a device, certainly by those of us without technological skills. However, the situation we are in is that a consumer who has bought intangible digital content which turns out to be faulty has the right to a full refund only in one particular area: if the trader did not have the right to provide the digital content in the first place. If any of the other statutory rights that are available to everybody else for goods and services are not met, the consumer does not have access to a refund. The Bill does not provide a short-term right to reject or even a second-tier remedy of rescission of contract for intangible digital content, which means that a consumer would not be able to obtain a refund if any other statutory right were breached, on the basis that intangible content cannot be returned. That simply cannot be right.
Is there not a way through this? I note in the BIS Select Committee report that the Government were arguing at one stage that it may not be necessary to require a consumer to return or delete unsatisfactory digital content, on the basis that,
“existing legislation adequately protects IP rights”,
of the supplier. In other words, where a consumer has rejected the download, she or he ceases to hold rights in that material, and any subsequent copying or use would be a breach of IP rights. Can the Minister advise me if my reading of the situation is correct? If that is the case, it seems to create the ability to bring consumer rights on intangible goods to the same level as rights on tangible goods, so that we have parity.
I agree with the BIS Select Committee that we ought to remedy the existing inconsistency in the Bill, and that there should be a short-term right to reject and a final right to reject in relation to intangible digital content. At the very least, the Bill should require that in these circumstances there is an obligation on the consumer to delete the relevant intangible digital content. In addition, the Government should set out in detail their legal advice on the question of IP rights if the right to reject is adopted.
Professor Bradgate, whose report I quoted at the start of my remarks, says:
“It is therefore recommended that the 1979 Act be amended by way of an extension of the definition of goods to apply provisions of the Act both to goods, and to digital products … and to include power in the amending legislation for Her Majesty’s Secretary of State to apply the Act by Statutory Instrument to new developments as they arise”.
Why did the Government not follow his advice? I beg to move.
Lord Knight of Weymouth (Lab)
My Lords, I too applaud the Government for wanting to legislate on this area, because it is moving very fast and we will have to keep coming back to it. My noble friend has reminded us of the importance to the nation of the digital economy and we see, as an example, the huge numbers of people now being employed in it and the exponential rate at which vacancies are occurring. Indeed, we have a committee of the House looking at digital skills at the moment. It was a joy to see the noble Baroness, Lady Harding, being introduced into the House today to add some expertise for us in this area. Perhaps when she has had a chance to settle in she can visit this subject on Report. I also remind the House of my interests as managing director of online learning for TES Global and the somewhat overegged expertise, to which my noble friend referred, coming from my professional work in the last six months.
I would, obviously, agree that, given the importance of the digital economy and the extent to which it is now in the mainstream of how many of us live our lives, it is important to have, as far as possible, a single regime for consumers and producers on how this works, because that makes it more intelligible to us all. I am pleased that, in this clause, the Government are giving powers to the Secretary to State to look at exchanges other than by money. For instance, in subsection (3), some of these powers can be brought to bear if personal data are being exchanged rather than just money. When does the Minister think that these powers might be used? We know that many of the services most of us consumers use are notionally free, in respect of monetary exchange, but those of us who bother to read the terms and conditions know that we are getting these services for free in exchange for the platforms being able to use our data. So there is a very real exchange of something of huge value to us and this is of increasing public concern. I am of the view that the Secretary of State should be thinking actively about when these powers might be used. I would be interested in any guidance which the Minister could give.
It is also a delicate area because of the nature of iterative change of digital products. These days, it is likely that most producers of digital products will take advantage of the fact that they can alter them on an hour-by-hour basis, not just day by day or week by week. It is perfectly normal, and in the good interests of innovation, for products which are not functioning perfectly to be iteratively improved without them having to be returned, which might be the case if they were real products. We obviously need to legislate with iteration as well as agility in mind. Although I endorse the notion that, for the mainstreaming reason, we should, as far as possible, have the same regime, it is important to think about whether there are aspects where digital products might need slightly different consumer rights. If I were to purchase software on a CD and it did not work, I would expect to be able to return it and get something that did, or my money back.
However, if I am downloading an app from an app store, be it the Apple Store or Google Play, and I paid only 59 pence for it, these days I would probably just tolerate it not working well. If it did not work, I would go and buy another one for 59 pence. I am not that fussed about getting my 59 pence back. But it might suit me, as a consumer, to be able to say to the producer of the app via the platform, “It doesn’t work and you have 28 days to put it right”. I have then not wasted my 59 pence. That is a different approach to returning it and getting my money back, but there is merit in thinking about different sorts of rights, given the ability of producers to iteratively improve.
Finally, a point which would be worth ensuring is not far from the forefront of your Lordships’ minds is the fact that many of these digital products are co-produced, in some cases by minors. We all know the stories of 14 year-olds who suddenly become millionaires after having created a brilliant digital product. The notion of the producer being a powerful individual is not necessarily true, so we need to ensure that whatever digital consumer rights we create are viable in relation to the producers of the goods we are talking about. On that rather rambling basis, I am happy to support my noble friend and I look forward to the Minister’s reply.
The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Baroness Neville-Rolfe) (Con)
My Lords, the digital provisions are a vital aspect of the Bill, bringing consumer law into the 21st century. As the noble Lord, Lord Stevenson, has said, we need to get the rulebook right for the future, given the sheer scale, growth and innovation of the sector which he illustrated with some telling figures. I am also grateful to the noble Lord, Lord Knight, for his intervention and for reminding us of the importance of digital skills. He mentioned the hour-by-hour changes that are made to digital content and touched on the potential for co-production, which was interesting and important. Like him, I am delighted that my noble friend Lady Harding, who I also worked with when she was in retail, has joined the House and I agree that she will be able to bring some great insights to these important debates.
I can assure noble Lords that we have given extensive thought to and researched what these rights should be. What is clear is that a goods-like approach to the treatment of digital content is the right one to take. It builds on consumer expectations and familiar concepts for both businesses and consumers. The Bill will give consumers confidence, when they buy digital content, that it will be of satisfactory quality, fit for purpose and as described. If it is not, they will be entitled to have the digital content repaired or replaced, and failing that to get some or all of their money back. This approach creates a consistent regime for consumer protection other than where differences between goods and digital content justify different treatment, for example, because of the intangible nature of digital content.
Aligning the rights for goods and digital content completely would be a step too far. The main effect of providing that digital content should have the same rights as goods, as this amendment would do, would be to give consumers the short-term right to reject digital content that is supplied in intangible form, such as the music and films we download or games that are played online. We think that this would create real difficulties for our important digital content industry and would slow or prevent launches of new products in the UK. We believe that consumers will already be well protected by the new regime we have proposed without a short-term right to reject. As the noble Lord, Lord Stevenson, said, and as the noble Lord, Lord Knight, anticipated in his remarks, we have made clear in Clause 16 that goods which include digital content, such as digital content on a DVD or within a washing machine, will attract the full goods remedies, including the short-term right to reject. This also applies to software pre-installed on a computer or apps pre-installed on a phone. If the digital content is faulty, the consumer will be able to reject the goods in which it is included and return them to the trader. However, there are some significant differences between intangible digital content and goods which have led us to take a slightly different approach to digital content that is supplied in intangible form.
First, when consumers exercise their short-term right to reject faulty goods, they have no right to retain them. Under Clause 20, they have to make those goods available to the trader. However, unless digital content is embedded within a physical item, such as a DVD, it is difficult to return it to the trader in any meaningful sense. For example, it would be difficult for a consumer to return a faulty film they had downloaded to iTunes and, even if they did, the device would automatically retain a copy of the film. It has been suggested that the consumer could be required to delete the digital content as they cannot return it. However, this is easier said than done, as the noble Lord, Lord Stevenson, partly acknowledged. A requirement on consumers to delete the digital content would be difficult for even the best-intentioned consumer. For example, if a consumer was to e-mail back some digital content to the trader, a copy would be automatically retained in their sent box. In some cases, it would be impractical to delete the digital content. For example, a consumer might buy a so-called “mod” for a virtual world game such as Minecraft to be integrated into their world and built on further. Once this mod had been built on, if the mod proved to be faulty it would be impractical to delete it. A repair, or “patch”, to return the digital content to functionality would be a much more appropriate remedy.
Lord Knight of Weymouth
Before the Minister gets back into her stride, I hope that she will forgive me if I ask her a question. Before the Bell so rudely interrupted her, she was talking about what happens if a consumer is dissatisfied with an app and whether the consumer should have to delete it from a device. Have she and the Government given any consideration as to whether, in that circumstance, the consumer could require the producer of the app to delete any data it had collected about the consumer, as an aspect of the redress for their dissatisfaction?
Baroness Neville-Rolfe
Perhaps I can come back to that when I finish developing the argument. We had the first point and I am now going to move on to the second about the ease of copying digital content. Digital content is much easier to copy than physical goods because of its intangible nature, creating issues for digital rights managers. Under many existing contractual relations, the trader will make a payment to the original rights holder for each individual who downloads that content. However, if a trader has to refund the consumer for faulty digital content that they have rejected, that may lead to problems between traders and rights holders, given that the trader will be unable to prove to the rights holder whether the digital content was deleted.
A further point is that an error in the code of a digital content product will be replicated in each and every copy of that product, unlike most goods where faults may be restricted to only a few products. Therefore, where faulty digital content is released the trader would potentially have to provide a short-term right to reject to all consumers of that digital content. That would currently be addressed by the trader issuing an update at little inconvenience to consumers. Having to provide a refund to all consumers, in contrast, could have huge consequences for the digital content industry, which we want to support, particularly our growing number of start-ups and micro-businesses. The result would be much more conservative and costly offerings from businesses, which would spend more time in product development. The availability of basic games that the developer improves over time, or the cheap apps that are enjoyed by many consumers, could be significantly affected.
A short-term right to reject is only one aspect of the new law for digital content. As I have already explained, the consumer must have adequate protection in the digital field. Therefore, the Bill introduces consumer quality rights for digital content for the first time. Most faulty digital content will be repaired with an update, but where faulty digital content cannot be repaired or replaced—or where the repair or replacement cannot be done within a reasonable time or without significant inconvenience to the consumer—the consumer will be entitled to some money back. We have made clear in Clause 44(2) that this price reduction could be as much as 100%—so a full refund. Our evidence shows that where traders are not able to repair faulty content, some traders provide a full refund.
Lord Knight of Weymouth
I am sorry to interrupt; I fear that I may become an irritating presence at this stage. Many designers of digital products have to make a decision about browser compliance, for example, if it is a web-based product, whether or not they will go back to old versions of Internet Explorer. Would the rights to which the Minister has just referred apply to digital producers in circumstances where they have had to make a judgment, when they launch their product, that it is not going to work on those old legacy browsers, as so few consumers are still using them?
Baroness Neville-Rolfe
That brings me on to the points raised by the noble Lords, Lord Stevenson and Lord Knight. Perhaps I can touch first on the issue of IP rights to address consumers’ difficulty in deleting faulty digital content. There is a role for IP law and there may be remedies available, but we again need to strike a balance. We do not want to disadvantage consumers who are unable to be sure whether they have fully deleted all copies of their digital content. That is why we have not taken this route and do not feel that it would be great for the consumer.
If I understood the point that the noble Lord, Lord Knight, was making, he asked, “Why isn’t free digital content included? When will we use the powers that are provided in the Bill to cover it?”. There is a power if future evidence of significant consumer detriment arises. That seems to me a sensible provision to make. However, we do not have enough evidence of consumer detriment at present, and requiring remedies could impact on the sometimes narrow profit margins for businesses, leading to fewer offerings to consumers altogether.
Baroness Neville-Rolfe
The department always keeps the operation of new regulations under review, and I can certainly follow up with the precise detail on this provision, if that is helpful.
The noble Lord, Lord Knight, also asked whether the consumer could require a trader to delete any data that they may have collected. In a sense, the answer is similar: it would be a significant departure from the current regime, which traders are familiar with, and of course data protection rules need to be complied with at all times.
The noble Lord, Lord Stevenson, I think asserted that consumers have the right to a refund only if the trader did not have the right to supply it. However, as I have just said under my second general point, the consumer can get 100% of their money back under Clause 44(2) if a repair or replacement cannot be made within a reasonable time or without significant inconvenience.
In conclusion, I have heard the argument in favour of giving intangible digital content the same rights as goods, including applying the short-term right to reject. I realise that there are strong views on both sides of this debate and a keenness to get this area right. We are already improving the situation for digital content by providing new rights when consumers buy digital content. There may be some attractions to the idea of providing exactly the same rights for digital content as goods, but the issues are not clear cut and a balance has to be struck with the impact on industry. To exactly align the rights for digital content and goods could have severe consequences—to the detriment of industry, which would have to bear the costs, and consequently, I fear, to consumers, who might suffer from reduced product offerings, reduced innovation and, ultimately, higher prices. I therefore ask the noble Lord to withdraw his amendment.
Lord Stevenson of Balmacara
I thank the Minister for her response, although I am very disappointed in it. I also thank my noble friend Lord Knight for his contributions. It is obviously going to be a lively afternoon if this is the rate at which he intends to intervene. I encourage him to do so, a bit like “Angry Birds”—or is that the wrong analogy? Just while I have him in my sights, his support for me was, I think, generous but perhaps a little lukewarm on the central point, which we might have a talk about afterwards. However, I also felt two things about what he was saying—which I think is relevant to the debate; I am not trying to pick on him. I agree that very often the download level, at which you are paying a matter of pence for things, can look very trivial, and that perhaps makes the effort of trying to remove the charge uncertain; but there are people in this world who look after the pence and hope that the pounds will look after themselves. For all people we have to be sure that there is not a massive rip-off taking place on a big scale. Prices are important, but they are not the only determinant.
Secondly, the failure to find a way in which one can return intangible downloads is also a way of cluttering up one’s computer. I think that I would be quite pleased if I got rid of some of the stuff that I have wittingly or unwittingly received in my computer which is slowing it down. These are points that we perhaps might come back to.
My main argument is that there is a lack of consistency in approach here. It is therefore not really about the detail, it is about the principles of this. In light of the fact that the consumer can experience some types of digital content in both tangible and intangible form, it seems unarguably the case that we need to have a single remedy and a single process under which that is operating. I think that we are building in problems for ourselves as a society if we do not get this right at this stage, and I fear that the Government are getting it wrong.
There is also a danger that the market will become skewed if one regime is seen to be effective and efficient for tangible goods but there is another for intangible goods. The better consumer protection for tangible goods and materials will be of benefit, and higher prices may even be applied to that area. Again, that would distort the market, which I thought was what we were trying to avoid. The cost elements of the two platforms are an issue to which we would have to return.
The Minister said she was worried about consumers’ willingness to try new and innovative products, but we are not hearing—as we have in previous debates in this Committee—that it is an important tenet of consumers’ interest in new products and innovative solutions that they have security in their rights. If they do not have easy, effective and properly organised rights as regards intangible goods, they will be less likely to take innovative material. That would be bad for innovation and our economy.
The Minister said that what we were asking for was a step too far but, as we heard from my noble friend Lord Knight, there is a huge asymmetry in the relationship between the traders now operating on the internet and consumers. He gave an example about the benefits that come back to producers in the form of personal data and the unwillingness of the Government to take that on board as a serious issue. If a consumer takes a free download in return for providing personal data but has no redress in terms of what the data are used for if he chooses to reject the material he has downloaded, there is a new asymmetry that we need to think carefully about.
Lord Knight of Weymouth
I am most grateful to my noble friend and I apologise if I am getting tedious. Through him, I say in response to the Minister’s response to my intervention that this is something that the Government need to think carefully about. We recently had the case of Snapchat and the pictures saved through Snapsaved.com that were released, involving a gross invasion of people’s privacy. If people decide that they do not want to risk that and therefore want to delete apps and cookies from their systems, it is reasonable for consumers to demand that those data, such as their pictures, should then be deleted by that producer.
Lord Stevenson of Balmacara
I thank my noble friend for his intervention.
In conclusion, the argument that it is not possible for us to legislate in this area, because it is just too uncertain and difficult to require consumers to behave appropriately in relation to the products that they have downloaded or bought in an intangible form, does not stack up. It would be perfectly possible, as was recommended originally by the first report received by the Government on this matter, to place a legal duty on those who wish to return digital downloads to delete them, and if they do not do so, to rely on what was implied by the Minister—that there may be rights available to the producer to ensure that anyone who tried to reuse material that they wished to return would be subject to penalties under the law. We are placing a lot of responsibility on consumers to take up matters through the courts. Why should there not also be some responsibility in the hands of the producers?
We will return to this point but, in the mean time, I beg leave to withdraw the amendment.
“( ) For the purposes of this Act, intermediary services which enable access to digital content by being a platform for introducing a consumer to a trader shall also not be considered to have supplied digital content.”
Lord Stevenson of Balmacara
My Lords, Clause 33 sets out which contracts to supply digital content are covered by this chapter. It clarifies that the chapter will apply to contracts between a trader and a consumer where a trader agrees to supply digital content that has been paid for with money; associated with any paid-for goods, digital content or services; or paid for with a facility, such as a token, virtual currency or gift voucher. As well as dealing with the substantive issue raised in the amendment, it would be helpful if the Minister can indicate whether “freemium” games and other free downloads are covered by this clause.
The substantive part of the amendment aims to make the distinction between intermediary trader services and a trader explicit. The reason why online platforms, from small bulletin boards to sites such as YouTube, eBay, Amazon, Facebook, Twitter and so on, are so beneficial is that they allow anyone anywhere to instantly connect with billions of people around the world. Before, if you wanted to speak to a large audience, you needed to own a broadcast tower. If you wanted to reach consumers around the world directly, you needed to set up store fronts. Now, all it takes is a website host, YouTube or eBay and you can connect with a global audience.
Baroness Neville-Rolfe
My Lords, I enjoyed the graphic picture described by the noble Lord, Lord Stevenson, of how things have changed and the smaller scale of everything as a result of the digital world. Despite his comments on the previous amendment, I think that we share a common goal: to legislate for the consumer of digital content in a 21st-century way.
One of the main aims of the Bill is to provide clarity on what rights consumers have when goods, digital content or services are substandard. I am sure that we are all agreed that one of the things that a consumer needs to know is to whom they should go when things go wrong. Intermediary businesses also need to be clear on when the rights do and do not apply to them, particularly when they are developing new and innovative business models. The digital content quality rights are contractual rights consumers have when they pay a trader to supply digital content to them under contract.
The noble Lord, Lord Stevenson, asked whether freemium products were covered by the clause for those who are not as digitally aware as some among the younger generation. A good example would be “Smurfs”, which is a free game but users can buy additional content within the game such as a house for Smurfers. The basic model is free but consumers then pay, sometimes at premium rates—hence the term freemium—for enhancements and additional features. Where a consumer pays for digital content and the trader provides it under a contract, the quality rights apply. This means that the initial free product will not attract the quality rights. However, the later paid-for features will, indeed, attract the quality rights. This includes being fit for the purpose for which they were bought—that is, to use in connection with the free product. Those of us who have studied the proceedings in another place will know that “Candy Crush” occupied a great deal of time among Members, to their great delight.
The noble Lord also asked what happens when the two matters come together and whether the quality rights that apply to the paid later additions then change the status of the free product. I will come back to him on that point.
The digital content chapter covers a consumer contract with the trader who supplies the digital content and not the intermediary who introduces the consumer to the trader, as they are not supplying that digital content. The intermediary will be covered only if they also supply digital content as part of their business. For example, if a consumer buys a computer game from an online trader such as Green Man Gaming, Green Man Gaming is the trader, in the same way as if they buy a board game from WH Smith, WH Smith is the trader.
If the consumer uses a search engine to find a trader from whom they can buy the game, the contract is not between the search engine and the consumer. The same is clearly true in the physical world. If the consumer uses Yellow Pages to find a shop, Yellow Pages is not the trader.
What consumers need to know is who the trader is. This information needs to be clear and transparent. I know that this is not always the case in the digital world. However, the consumer contract regulations, to which we referred in our discussions last week, came into force in June, particularly in respect of distance sales. They require that the identity of the trader and their contact details are provided to the consumer before the contract is made. This applies to digital content as well as to goods and services. Therefore, the proposed amendment is not necessary because this is how our reforms work. The rights apply against the trader the consumer has paid for the supply of digital content and not against the intermediary. The name and contact details of the trader have to be provided to the consumer under those regulations. I therefore ask the noble Lord to withdraw the amendment.
Lord Stevenson of Balmacara
I thank the Minister for her response. I take it from that that there is now agreement and clarity about the role of the intermediary, which I fully accept. I am glad to have on the record that the trader is the person with whom the consumer is contracting to provide a particular good or service delivered digitally and that the role of the intermediary is not involved unless they are also supplying either directly or indirectly material which could be called digital and it would be a paid-for service. I am also grateful for the confirmation that the consumer contract regulations will apply to that.
What I am not quite so happy about is the point raised by my noble friend Lord Knight about free downloads and what constitutes a free download—that is, not for monetary consideration—in the digital world. I wonder if the Minister would take that point away. It obviously comes up in relation to the freemium type of arrangement, but there are wider considerations here. I do not understand why the Government are taking a rather pure view of the fact that the trigger point appears to be the transfer of cash for a product that is already embedded into something that has been downloaded. The vanilla version—if I can use that term—of the game is clearly being used and operated in a traded way even though money is not being exchanged. There must be a reasonable expectation on both sides that a later development in that process would be for money to be exchanged so that the game could be enjoyed at a higher level. If the rights to it kick in only at the point at which consideration passes, then we are not covering the point at which the free version somehow interferes with and reduces the enjoyment of the player. It is perhaps too complicated to deal with here, but I would be grateful if we could exchange letters on this point. With that, I beg leave to withdraw the amendment.
“(aa) any claim made by the trader as to the outcome the digital content will achieve,”
Lord Stevenson of Balmacara
Your Lordships will be glad to know that this is my third of three amendments, and then I will have a rest and noble Lords will have a rest from me. Then again, you may not wish to know that the noble Lord, Lord Clement-Jones, will follow; with his detailed knowledge and expansive style, he may be in the same position.
Clause 34 requires that digital content sold to consumers must be “of satisfactory quality”, according to the expectations of a “reasonable person”. I am sure that it is obvious to all concerned that there are several different factors that will affect whether or not the quality expectations of a reasonable person are going to be met. These factors are: any description of the digital content, the price paid and its state and condition, as well as any other relevant circumstances. That is a very broad definition. The clause sets out that the content should be free “from minor defects”, and this is to be judged by the “reasonable person” standard, too. Therefore, a reasonable person could be said to expect a music file to work without playback problems, but if the software is complex it may be impossible to release a perfect version, and so the reasonable person would be expected to accept minor defects.
However, consumers are reporting problems with digital content. A recent EU study found consumers reporting one or more problems at, in the category of music, a level of 16% of downloads; for games it was 16%; for ringtones it was 19%; for antivirus software it was 23%; and for e-learning—presumably not TES—it was 22%. Our amendment would protect consumers where claims are made about the outcomes of a digital purchase. This follows on from the debate last week about tangible goods and what is “satisfactory”. There are obviously differences in relation to digital content. If, for example, a piece of antivirus software claims to remove all viruses or that it will protect your computer for two years and it turns out that it does not, a consumer should be able to rely on this outcome claim in being able to prove that this digital content is or is not of satisfactory quality.
In this area there are major differences between what the least and the most knowledgeable people understand about the products they can purchase, and therefore about what their expectations should be. The draft legislation assumes that digital goods should have a clear and specific purpose. That may seem a straightforward aim: it seems like an obvious truth that a product should do what it says on the tin. However, the short history of digital innovation shows that frequently the most successful innovations do not happen in ways that were expected when they first began. Amazon, Google and Facebook are obviously now used for much more than simply buying books, providing lists of links or student dating, although I gather from my children that Facebook still does have that function.
So, given that flexibility of purpose is both valued by consumers and critical to the evolution of digital goods, surely the legislation should take care that assumptions about the need for digital goods to have a specific purpose do not stand in the way of the innovation that consumers value and expect developers to deliver. Obviously, the ordinary consumer knows that they will need antivirus software before going on to the internet but they may not know how it works, what it will and will not stop and the nature of the latest threats. This places them in a far weaker position if they are negotiating with a trader.
If the consumer specifies that the digital content will be used for a particular purpose, the digital content must be fit for that particular purpose. For example, if a consumer tells a trader they want a piece of educational software for their preschool child and finds that it is in practice only suitable for an older child, we need to be able to say that it would not be fit for that particular purpose.
The clause also covers digital content supplied for a particular purpose, even where that is outside the usual purpose of goods of that type. This may be most applicable to specialist software, where a person may be seeking to use software in an innovative way. For example, PowerPoint can be used to design posters as well as doing slideshows, so a trader could conceivably sell this software for that purpose. However, posters designed using this software are not really of good enough quality to print and use and there are much better products available to do this. So, in some senses, it is not fit for purpose. This could be a problem for small businesses which may buy a piece of software off the shelf because they cannot afford a bespoke version and are then in trouble when it turns out not to be able to function as they intended.
Amendment 35 seeks to cover any public claims made by the trader about what the software may or may not be able to do that is not a usual function which would affect whether it is fit for purpose. This is a somewhat complex issue and will only apply in rather limited circumstance as interactions between buyer and seller will generally be private and not made publicly. So the amendment is quite narrow and would cover, say, a scenario where a trader was asked about a product in a public arena, such as a trade fair, and said, for example: “If you want to design posters without paying for specialist software, download PowerPoint for half the price and use that”. The consumer could then rely on this right by saying that the public statement did not achieve the quality outcomes that they needed. I beg to move.
Baroness Jolly (LD)
My Lords, for the first time, this Bill clarifies what rights consumers have when they buy digital content. Those rights include that the digital content be of satisfactory quality. If, before making a decision to buy, a consumer relies on a claim as to the outcome of digital content, it is, in many cases, absolutely right that this claim should be taken into account when assessing whether the digital content is of satisfactory quality. It may not, however, be appropriate when the claim relates to factors such as the subjective enjoyment of the content, such as an action game trader saying that the game will give the consumer “the greatest thrill of your life”. Thank you to the Bill team for that one.
That is why, as with goods, one of the factors taken into account in an assessment of satisfactory quality is “other relevant circumstances”. Again, I would like to stress that Clause 34(5) provides that this includes,
“any public statement about the specific characteristics of the digital content”.
This could include key outcomes. Where a consumer has relied on a claim made by a trader as to the outcome of the digital content, in many cases they will therefore already be able to take this into account when judging whether or not the digital content is of satisfactory quality.
When we discussed the question of outcomes relating to goods, the noble Baroness, Lady Hayter, distinguished claims about the physical characteristics of goods from claims about the outcome that the goods were supposed to achieve. Noble Lords may remember that there was much talk about the efficacy of washing machines and washing powders. However, statements about digital content may form part of the description—if the statement says that a calendar will include details of all public holidays, for example. Consumers have clear remedies if digital content, like goods, is not as described.
Where consumers are deliberately misled—again, as we have discussed in relation to goods—consumers are also protected under the Consumer Protection from Unfair Trading Regulations. The Government have given consumers a private right to redress if these regulations are breached, and we have clarified that they will apply to sales of digital content. These changes came into effect on 1 October. Under the Bill and the regulations, therefore, it is clear that there is strong consumer protection in place in relation to claims made by traders as to the outcome that digital content will achieve.
Earlier in Committee, the noble Baroness, Lady Hayter, expressed the view that if statements about outcome are already covered by the legislation, this should be included in the Bill to provide clarity to consumers. There may be a number of unintended consequences if that happened here. First, although it will in many cases be appropriate that public statements about the outcome of digital content should be taken into account when judging satisfactory quality, as with goods, a requirement that all statements be taken into account is not a practical option. Such a specific requirement would lose the necessary flexibility that we have under the current provisions. It would draw in statements made in advertising that are not intended to be taken literally. For example, an advertisement might state that a brain training app will turn you into the next Einstein, but a particular concern of the digital content industry, much of which is based on creative content, is that it would draw in statements as to the subjective enjoyment that the consumer would get from the digital content or the artistic merit of that content, which fall outside the meaning of “quality” that is understood in the Bill.
Secondly, there is a risk around narrowing the interpretation of “relevant circumstances”. The more circumstances that are specified as included, the greater the risk that the concept will be narrowly construed. As such, the Government consider that the Bill already provides the appropriate balance and flexibility in determining whether digital content is satisfactory. However, we can address the noble Lord’s point about providing clarity to consumers that statements about the outcome of digital content and goods are relevant factors in an assessment of “satisfactory quality”. This point will be set out in the guidance we will provide when implementing the Bill.
On Amendment 35, I do not dispute that it is important that consumers are protected if digital content is not fit for an advertised purpose. As we have discussed, the Bill provides this protection in Clause 34. The standard of satisfactory quality can include digital content being fit for its usual purpose and takes into account public statements made not only by the trader, but also by the producer or any representative of the trader or the producer. Clause 35 addresses a slightly different situation. Whereas Clause 34 refers to the purposes for which digital content of that kind is usually supplied, the purpose of Clause 35 is to ensure that consumers are protected when they rely on the trader’s judgment. If consumers make known to a trader that they intend to use the digital content for a particular purpose, and if it is sold to them on that basis, the clause clarifies that the digital content should indeed be fit for that particular purpose.
Let us take an example. A consumer may want to purchase an app that tells them whether or not their device is level, for the purpose of building a home extension. The consumer emails a trader to ask if the app can be used as a spirit level for building the extension and receives a reply stating that it would be suitable. So the trader has been made aware of the customer’s intentions for the app and has sold it on that basis. The consumer should be able to rely on the fact that the spirit level app will be accurate enough for their needs in constructing the house extension. Clause 35 protects the consumer even if the intended use is not the usual purpose for the digital content. Public claims about the digital content may not be relevant here. This clause is all about situations where the consumer is seeking the advice of the trader for less usual purposes, which may not be public. Indeed, this amendment may cut across the consumer protection that Clause 35 provides. Clause 34 already covers claims as to the quality or usual purpose of the digital content. I hope, therefore, that the noble Lord will be prepared to withdraw the amendment.
Lord Stevenson of Balmacara
I thank the noble Baroness for her comments, although I am slightly alarmed by the example of the spirit level app. However, that may have more to do with my technological ineffectiveness in terms of dealing with the tools of the trade; we can talk about that later. The key to some of these issues is better guidance because it is clear that we are in new territory here. What works for tangible goods may not be as effective in terms of intangible goods, and I think that that is common ground between us. Obviously we cannot see the guidance now, but I would ask the noble Baroness to advise me, not necessarily from the Dispatch Box, whether it will be available for consultation before it is issued and whether there will be the usual round of discussions with trade bodies, producers, consumer bodies and others. That would be helpful in terms of getting us to the right place. With that, I beg leave to withdraw the amendment.
Lord Clement-Jones
“( ) the fact (if it be the case) that the digital content is computer software of a type which commonly includes defects when supplied,”
Lord Clement-Jones
My Lords, I beg to move Amendment 34 and speak to Amendments 36, 37 and 38. Clause 34 specifies that digital content is,
“to be of satisfactory quality”,
and requires that digital content must be free from “minor defects”. I very much accept, unlike the noble Lord, Lord Stevenson, that there is a different regime for digital goods versus physical goods, but while this notion of satisfactory quality works well with traditional goods, it is unfortunately open to broad interpretation if applied to digital content, such as complex internet security software.
I suspect that Professor Bradgate will be much quoted today; I am no exception. In his report for BIS, which I quoted on Second Reading, he said:
“Even with extensive testing, it is quite common, and an experienced computer user will be aware of the fact, that the complexity of modern programs is such that bugs in the program are likely to manifest themselves throughout the program’s lifetime. Modern complex programs therefore need regular updating and patching to correct bugs and/or other potential weaknesses in the program as they arise”.
Professor Bradgate also states that,
“the courts have shown themselves aware of the fact that new software cannot be guaranteed free from ‘bugs’ and the presence of bugs, especially in new software, does not necessarily make it unsatisfactory”,
because bugs are considered standard in digital content on issue.
It follows that, in general, the presence of bugs in software is not in itself regarded as a breach of contract. It seems from the impact assessment that it is not the Government’s intention to change the law in this regard. The difficulty with the new implied terms as drafted is that they do not appear to cater explicitly for the presence of bugs. There is a real danger that an ordinary reader of these provisions may well be led to conclude that digital content containing bugs is not of satisfactory quality, is not fit for purpose and is not as described.
As I have mentioned, one of the signs of satisfactory quality in Clause 34(3) is “freedom from minor defects”. The test under subsection (2) is what,
“a reasonable person would consider satisfactory”.
All relevant circumstances are to be considered. However, there is no evidence that a reasonable person would be aware that bugs are normal or consider this a relevant circumstance. The position would be clearer if the fact that the presence of bugs is normal was expressly mentioned as a relevant circumstance in subsection (5), but unfortunately it is not.
Some forms of digital content—music and e-books perhaps being the classic examples—are not expected to contain bugs. That is absolutely clear. That could be catered for by specific reference to those forms of content. In fact, the overwhelming majority of digital products are provided through and on top of an intricate underlying mesh of physical infrastructure, such as the broadband network; virtual infrastructure, such as a cloud server; hardware, such as a computer or smartphone; software, such as an operating system; and other products, such as the application needed to play a media file.
As a result, defects in complex software can rarely be identified in isolation from the context in which they are being provided. Therefore, the attribution of a defect or malfunction to one particular product will, in most cases, be at best ambiguous and sometimes outright impossible. The same product might perform flawlessly in one context and work poorly in another. For this reason, to require that complex software performs without minor defects in all circumstances would be unrealistic—the consequences of strict compliance are likely to be increased cost to consumers and slower product evolution from the increased time and resource required for testing. It would be preferable for consumers and businesses to require that minor defects or malfunctions that may surface as a product or service is used should be fixed as promptly as possible. I welcome the revised Explanatory Notes clarifying that it is common to encounter some bugs in complex software, but this should be expressly included in the Bill as it would provide greater certainty to both consumer and industry.
Baroness King of Bow (Lab)
My Lords, this is an interesting group of amendments. “Oh no, it’s not”, I hear you say. Oh yes, it is. It is interesting because it relates to the fact that digital content is different from most other retail goods in so far as consumers cannot hold it in their hands. However, these amendments add more exemptions to areas where digital goods must be of satisfactory quality.
I will not speak at length on this amendment or the other amendments in the name of the noble Lord, Lord Clement-Jones, but it seems worth reiterating the peculiar nature of digital content, which is why these amendments arise. It is hard to imagine any other area of retail where a manufacturer would sell you a good when they know it is almost certainly going to have problems—it is almost certainly going to be defective in some way. Digital software is a strange anomaly because, as we heard, computer coding means that there are virtually always bugs to fix. We do not think it is abnormal any more, for instance, when Apple releases a new operating system such as iOS8 and, for whatever reason, our computing equipment is—to use the technical term—stuffed. My iPad is no longer working ever since I downloaded iOS8. There was actually an even more appropriate technical term to use but I did not think it was parliamentary.
The point here is that the Bill must tread a careful balance. On the one hand, we must not create a legal framework which is permissive towards digital content providers selling products that are simply not fit for purpose. On the other, we do not want to stop innovation and modification in the fast and frenetic world of technological advance and software downloads. In light of this, will the Minister ensure that any amendments of this nature do not tip the balance away from the consumer and towards the digital content provider? Most consumers struggling with technology feel that it is already unevenly balanced. My noble friend Lord Stevenson used the term “asymmetry”, which is very apt. Notwithstanding this, however, we recognise that with complex software it is impossible to give 100% guarantees. Therefore, it seems reasonable to say that where minor defects in software do not affect the overall functionality of the product, that digital content should not be deemed unsatisfactory. We look forward to the Minister providing further clarity on this issue because, as she pointed out, this is about getting the rulebook right for the 21st century. At present, we are not entirely clear what the rules are.
Lord Knight of Weymouth
My Lords, last Tuesday I facilitated part of an event at BAFTA organised by Innotech. One of the speakers was a young man, Jamie Woodruff, who has autism but probably earns a good income from being what I think is described as a white-hat hacker. He is a benign hacker who hacks into computer systems but has an ethical agreement whereby he gives people 28 days’ notice to resolve the security problems. If they do not resolve them, he can publish the problems. He did a live hack during the event to show how easy it is to hack into websites and expose the weaknesses that many sites have. That raises a question in my mind about quality.
I raise this issue to give the Minister an opportunity to say a little more about Clause 34(3) in respect of how quality is defined in this context. The word “safety” is used in Clause 34(3)(c). A company may have a business-to-consumer relationship in the course of which it collects a whole bunch of data. The service may be of very high quality in terms of what is described and what the consumer pays for. Indeed, the whole experience may be fine but subsequently it transpires that that business has not bothered to make the consumer’s personal data secure, it is hacked into and they lose their personal data. Does the word “safety” cover that scenario so that the consumer is protected and can have proper redress against that company?
Baroness Jolly
My Lords, this has been an interesting debate. Amendment 34 raises an important issue for digital content—when does a defect in digital content render it faulty and at what point is digital content not of satisfactory quality? I can confirm that BIS has listened to Professor Bradgate. As such, I recognise that some forms of digital content, such as software or games, commonly contain minor defects, or bugs, because it is currently difficult to produce code that is entirely error-free, whereas other types of digital content, such as music files, do not. I know that industry players such as techUK and the Federation Against Software Theft have expressed the concern that complex forms of digital content, such as software, should not be treated in the same way as simpler forms of digital content, such as music files. I believe that the Bill is flexible enough to cope with these differences.
Reasonable consumers understand that some types of digital content sometimes contain minor bugs, and that bugs will usually be fixed along the way through an update, although I went into a reverie at one stage listening to the noble Lord, Lord Knight, and remembered that my very early updates of MS-DOS were actually posted to me on a five and a quarter inch floppy disk, so things have moved on. While I know that the software industry is concerned about the phrase “freedom from minor defects”, the key point is that freedom from minor defects is an aspect of satisfactory quality only “in appropriate cases”.
We have acknowledged in the Explanatory Notes that it is the norm to encounter some bugs in a complex game or piece of software on release. A reasonable person might not expect that type of digital content to be completely free from minor defects. We will also highlight this point in business and consumer guidance when implementing the Bill. That guidance is being written in consultation with industry and consumer stakeholders. The Bill team confirmed this when we went through it again just before this session.
Assessments of satisfactory quality also take into account “all relevant circumstances” and I would expect the type and nature of the digital content to be such a relevant circumstance. However, it is entirely reasonable to expect other forms of digital content, such as MP3 or music files, to be free from minor defects. Such types of digital content would probably not be judged to be of satisfactory quality if they contained bugs, even minor ones. So it is important to retain “free from minor defects” as an aspect of satisfactory quality in “appropriate cases”, as the Bill provides.
Although I understand the driver behind the amendment, I believe that the Bill is already flexible enough to take these concerns into account. To pick up a point made by my noble friend Lord Clement-Jones, about evidence that reasonable consumers expect bugs in software, the presence of bugs is widely understood in the marketplace. In its evidence to the BIS Select Committee during pre-legislative scrutiny, Which? stated:
“Consumers are very accepting of updates and patches within the software development world and when purchasing apps”.
That will, necessarily, form part of the assessment of satisfactory quality. However, consumers do expect software to work as they are told and as described when sold and that in any given situation, you would be able to tell the difference between a faulty piece of software and one that is just evolving.
The Bill is based on, and takes into account, the expectations of a reasonable person. Amendments that address specific types of software would reduce this flexibility, and may limit the relevance of the provisions in future as the industry evolves. I am also concerned that a blanket requirement to take account of the common presence of defects could have negative implications for consumers. It would make it harder for a consumer ever to show that software was not of satisfactory quality when it contained a defect, even one that was not minor.
Amendment 36 seeks to bring the issue of defects into the concept of “fit for a particular purpose”. As such, it conflates two different concepts: satisfactory quality and fit for a particular purpose. Digital content is fit for a particular purpose or it is not. That is separate from questions about whether it is of satisfactory quality. Clause 35 relates to instances when a consumer might let a trader know that they intend to use the digital content for a specific purpose that is not the normal use of that digital content. So if a consumer tells a sales assistant that she wants to use a computer game described as helping children learn to read in order to teach her child some basic letter sounds, and the trader sells her the game for that purpose, the game must be fit for that particular purpose—it must be able to teach basic letter sounds. The consumer is relying on the skill and judgment of the trader that the game has this feature.
If the digital content is not fit for that particular purpose, Clause 35 is breached, unless the trader can show that the consumer did not rely, or it was unreasonable for them to have relied, on the skill or judgment of the trader. A defect might render some digital content unfit for a particular purpose if a necessary feature did not work well enough or, indeed, it did not work at all. In such cases, I would be concerned that a requirement to take account of the common presence of defects could create a lack of clarity for consumers and lower consumer protection. The amendment could water down the concept of “reasonably fit” in subsection (3) for products that could be argued to be of a type that commonly includes defects. This could have the effect of reducing the impact of Clause 35 and therefore consumer protection.
Lord Clement-Jones
My Lords, I thank my noble friend. She certainly came out fighting for Clauses 34, 35 and 36. I thank the noble Baroness, Lady King, for her very thoughtful contribution.
What we are trying to get at—and I do not think we are that far apart, actually, in substance—are the realities of supply of digital software. This is not an attempt to drive a coach and horses through the Bill or, to use another metaphor, to steal a march in this respect. As the noble Baroness, Lady King, said, we have to try to maintain a careful balance in these circumstances. Those who are propounding amendments to the Bill are a very responsible group of software companies, such as those represented by FAST and techUK. This is not some mirage that has been put up. They are seriously concerned about the nature of consumer expectations.
In reference particularly to Clause 35, my noble friend said, “No, no, we cannot have that amendment because it will not provide us with clarity”. We are all on the same page as far as that is concerned. What we want is clarity. Obviously, I will read what my noble friend had to say but actually an awful lot of what is in these amendments is a response to what Professor Bradgate had to say. But the Government are proposing to deal with this via consumer guidance rather than in the Bill. The big question is whether that is adequate to give sufficient clarity in the case of dispute. That is what it is all about.
We have spent many, many happy days in this House arguing whether having something in the Bill is better than having it in regulation or in guidance. In this case, with a very important industry such as the software industry, which is highly competitive—and if it cannot innovate, that will actually reduce its competitiveness—it is completely the other way round from the argument that the Minister used. Software companies need to be able to innovate and we must allow them to innovate. What concerns me is that if there is not clarity in the contract between the consumer and the software provider, that will have damaging consequences for a highly competitive industry.
I do not think that we are very far apart in our intentions but we differ over what we believe the remedy to be for the particular issues that the software industry has. I will consider Hansard. I hope that my noble friend will likewise consider what I have said with some care, particularly the issue about the changing nature of some of the software over a period of time, particularly security software. She was adamant about Clause 36 and the need for the content to be as described but we are dealing with—I do not know which Greek mythological creature changed over a period of time but it is rather akin to that. You think it is one thing but it has to respond to changing threats in security over a period of time and you may end up with a slightly different product. So it is not simply that you are going to get what is described right at the outset of the contract. That is too black and white a view. Nevertheless, the whole purpose of Grand Committee is to have a debate about these things and unpack some of the issues, and I very much hope that we can continue that discussion with the industry. In the mean time, I beg leave to withdraw.
Lord Clement-Jones
“( ) which is beyond the trader’s control (including third party software provided without warranty to the trader).”
Lord Clement-Jones
My Lords, I am very pleased to have the support of the noble Lord, Lord Sugar, for Amendment 34A. I do not know whether he is going to make a personal appearance today, which would excite us all, but let us see. I see that his name is on other amendments so you never know.
Traders often use third-party software in their digital content products. This software is usually provided to the trader on a no-warranty basis, meaning that the third party will not guarantee that the software works or is free from bugs. However, Clause 34 inserts a term into the contract between the trader and the consumer that the digital content is of satisfactory quality. This means that in effect the trader has to guarantee the first party’s content even when it does not have the same guarantee from the third party whose content it is. This creates a liability for the trader which is beyond its control. The clause risks stifling innovation as it would prejudice SMEs which have less negotiating power with third parties and may have to stop using third-party software that is provided without warranty.
Let me provide an example. An app provider creates a consumer-facing app using software that it has licensed in from a third party. The software licensor provides its software on standard terms which state that no warranty is given. The app provider must then make its app available to consumers subject to the provision in the Bill that the app is of satisfactory quality, even though it does not have that warranty upstream and even though it has no control over the software licensor’s portion of the app. If the app does not work because of the software licensor’s software which the app provider has no control over, and for which it has no recourse against the software licensor, the app provider will still be liable to the consumer. That is an illustration of the impact and I hope very much that my noble friend will take it into account when considering the merits of this amendment. I beg to move.
Baroness King of Bow
My Lords, this amendment would provide further exemptions to the providers of digital content, freeing them from the need to guarantee the third-party software they use. I understand the argument put forward by the noble Lord, Lord Clement-Jones; namely, that the trader may not have a warranty from the third party, and I am sorry that my contribution will be a disappointment to him. It appears to me none the less that it would reduce consumer protection, but after all, this legislation is called the Consumer Rights Bill. Again, this is a question of balance. The key point is that if the trader benefits financially from the use of the third-party software, surely it is inappropriate to load the risk on to the consumer. It is the trader’s decision to buy and use third-party software, so if that trader is unsure of its quality, it must be a risk that it undertakes and consequently should be liable for, not the consumer. The consumer cannot control the trader’s relationship with its suppliers; third-party software is very much the responsibility of the trader, and therefore we cannot support the amendment.
As I have already mentioned, if a business is selling digital content for profit, it is up to that business to ensure that all elements of the final product are of a reasonable quality. I hope to hear that the Minister shares this view.
Baroness Jolly
My Lords, the Bill aims to create confident consumers who are more likely to try new products and new providers, and as such, help to drive growth and innovation. With this aim in mind, our position is that there should be no gaps in consumer protection for digital content. It is only right that when a consumer buys digital content they can expect it to be of satisfactory quality, fit for purpose and as described. If not, they can expect the fault to be put right. The concerns of traders who may find their ability to claim back costs from third-party providers limited by their business-to-business arrangements need to be balanced against the needs of consumers who should be able to shop with confidence. I understand that B2B relationships may be particularly complex in the area of digital content, but complex arrangements are not a defence against faulty digital content, and consumers should not be left without adequate protection.
I shall pick up on a point made by my noble friend Lord Clement-Jones, that it was not fair on SMEs since intermediaries may limit their liability in a B2B contract. I understand the problem that some smaller traders may lack bargaining power with larger companies, and that is why we have other protections in law such as the Unfair Contract Terms Act 1997. However, beyond that basic protection and other protections, such as the Sale of Goods Act, where appropriate, we believe it is important to allow businesses the freedom to make contracts with each other without state interference. My concern is the potential for this amendment to significantly undermine consumer protection, because it would seem to have such very broad implications.
Lord Clement-Jones
My Lords, this may be slightly unusual for me, but I thank my noble friend for an extremely well reasoned response, if I may say so. Pointing out that there is no right to reject is crucial in these circumstances.
However, my noble friend has opened a door. She talked about the Unfair Contract Terms Act. Of course, there is a big flaw in that Act: if there is no warranty about copyright between a small business and another business and it turns out that the copyright is not held by the licensing business, it is not covered by the Unfair Contract Terms Act, which leads to another amendment that I have later on in the Bill. I am sure that my noble friend will be extremely sympathetic to that when the time comes for precisely the reason that she has raised. Of course we want SMEs to be properly protected in these circumstances, and I entirely accept that in an ideal world the Unfair Contract Terms Act would be fully applicable. I look forward to the debate on my Amendment 57A. In the mean time, I beg leave to withdraw the amendment.
Lord Clement-Jones
Lord Clement-Jones
My Lords, in moving Amendment 34B I will speak also to Amendment 34C.
Under the current wording of Clause 35(1), a consumer can include in a contract for digital content a term that the content is fit for the purpose for which the consumer wants to use it without providing the trader with a realistic opportunity to evaluate, reply to, agree to or reject the consumer’s request. This means that the consumer can unilaterally include terms in a contract which go against the terms and conditions or the normal use of the content or even against the use of the content stipulated by the trader. Consumers should surely not be able to include a term in the contract on their own. A term should only be included if agreed by both parties. Clarity in a shared agreement as to contract terms is essential so that both parties understand and truly agree the contract. As currently drafted, the consumer may include a term in the agreement by implication. Contract terms should be expressly agreed, not by implication.
Surely if a consumer e-mails an online content store, saying that they intend to watch “Match of the Day” for a romantic night in, then that content would be deemed fit for that purpose under the current drafting. If it did not perform the stated purpose, the consumer would have a course of action against the store. As a second example, a consumer may e-mail an online content store saying they are buying a film to watch on a plane when they will not, in fact, be able to watch it because they need to stream the film over an internet connection and cannot download it. As currently drafted, unless the trader replies before the transaction takes place, the contract will, by implication, include a term that the consumer can use the content on a plane and the trader will be in breach of contract. I am sure there are many other possible scenarios that one might dream up, but it seems very strange that the consumer can, essentially, determine the nature of the contract in these circumstances as a result of Clause 35(1). I beg to move.
Baroness Neville-Rolfe
My Lords, I am grateful for the comments of my noble friend Lord Clement-Jones and for his constructive and telling contributions throughout this session. I note his comment about the consumer essentially creating the contract. I will answer, and try to cast light on the circumstances that we foresee for this provision, by looking at another scenario. Where a consumer e-mails a trader about their desired use for the digital content and then downloads it immediately—as is the case in the example proposed—it is highly unlikely that the consumer would be able to claim a remedy under Clause 35 from the trader if the digital content was unsuitable for that particular purpose.
This scenario would already apply to goods bought online. A consumer could e-mail a trader saying that they wanted to use the goods for a particular purpose that was not their usual purpose, and then order the goods without waiting for a response. However, there is no evidence that consumers are playing the system in this way, nor that it is causing problems for traders. The first key point is that the consumer must make known to the trader the purpose for which they intend to use the digital content. Secondly, the clause does not bite if the consumer does not rely on, or it was unreasonable for them to have relied upon, the skill and judgment of the trader.
In my scenario, we think it would be open to traders to raise a number of arguments. First, the consumer may not have made known their purpose to the trader, particularly if the time interval was such that the trader could not have been aware of the purpose at the time the contract was made. Secondly, the trader has not responded in any way and so has not exercised any skill or judgment. Finally, the consumer did not rely on the trader’s skill and judgment in these circumstances since their decision was made before the trader responded, and possibly even before the trader could have done so. So the clause is unlikely to apply in the scenario I outlined.
Amendment 34B says that we should remove the phrase “or by implication”. It is important to reflect that the requirement that a trader makes known the particular purposes for which digital content is intended implies that the trader must be aware of the consumer’s intentions. The phrase “or by implication” is to be seen in that context and may be more relevant in face-to-face sales than online ones. For example, a consumer may tell a salesperson that they are teaching their child to read when they are buying a particular piece of software but may not expressly say that they want to buy the software for the purpose of teaching their child to read. I do not want to deny consumers a remedy in such a case.
Amendment 34C requires that traders should expressly agree the purpose. Again, there are scenarios where the consumer may rely on the skill and judgment of the trader without their express agreement. For example, a consumer may e-mail a trader several times, providing the trader with an opportunity to respond to their request. The consumer may assume that the fact that the trader has not denied that the digital content is suitable for their purpose implies their agreement. Again, I do not want to deny consumers a remedy in such a scenario. Nor would I want to introduce additional steps into the purchasing process that were not necessary.
The clause replicates the related clause for goods, Clause 10, and also, crucially, that in the Sale of Goods Act. Keeping the wording consistent wherever we can retains the link with existing case law on fitness for a particular purpose, and ensures a close alignment between goods, digital content sold on a tangible medium and intangible digital content. While on the face of it, this amendment seems like a sensible clarification of the provisions for digital content, it could, as I have explained, have a perverse effect. I therefore ask the noble Lord to withdraw his amendment.
Lord Clement-Jones
My Lords, I thank my noble friend the Minister for her response. It is interesting and rather tricky. This is one of the trickiest areas that we have come across to date. I can understand my noble friend’s attachment to existing case law; that is what many lawyers would say in the circumstances. However, I want to innovate. The existing case law for goods in these circumstances could be extremely dangerous.
I accept some of the Minister’s points about the consumer having seriously tried to get the trader to respond and they have not, and about circumstances in which is entirely reasonable for consumers to rely on their skill and judgment. However, the digital world is different from the product world. The ability to communicate in one direction over e-mail without having a response adds a new dimension. It will not always be the case that it being unreasonable for the consumer to rely on the skill or judgment of the trader or credit broker will get the trader out of this particular situation, where there has been a unilateral statement that the product is required for such and such and, for some reason, the e-mail has not been received or the trader has not acknowledged receipt, or whatever.
Of all the clauses we have talked about to date, I do not think that this one is really the finished article yet. There is still some room for improvement precisely because the digital world is different from the product world. If you are buying a car on the dealer’s forecourt, you are in a very different position from that of winging e-mails and pressing buttons on purchasers’ websites. This clause does not yet reflect that adequately. I shall read what the Minister has said carefully and have further discussions. In the mean time, however, I beg leave to withdraw the amendment.
“(4A) The trader is required to provide full details of the total cost of digital content prior to sale, including details of any additional service fees or charges that could be incurred by the buyer in purchasing the digital content.
(4B) The information set out in subsection (4A) should be portrayed prior to sale and the explicit consent to purchase digital content at this price sought prior to sale.”
Lord Stevenson of Balmacara
My Lords, Amendment 39 aims to ensure that a consumer is aware of their statutory rights and what that means in practice ahead of any purchase. The purpose is twofold: to ensure that consumers have those rights at the forefront of their thinking when they place the order, and the corollary of putting the rights as they are offered back in the mind of the trader. That is obviously important for digital content because traders and consumers do not interact in real time. We still have a situation where the nature of the transactions for any digital goods is new for many people and where the technical information around content lies outside many people’s normal experience.
In that context, consumer rights need to be spelled out as clearly as possible—possibly more so than for traditional goods—so that they are not an additional complicating factor. The consumer should be required to acknowledge that she or he has received that information. Another part is to ensure that all the details of costs—including potential or optional costs—are available to the consumer before they download. As previously indicated, that is especially important for online sales: consumers are not on the forecourt of a car salesroom and they cannot ask the questions that arise out of a discussion about the physical object that they are about to buy. As I am bound to say, if the Government insist on maintaining their view that digital rights are curtailed relative to equivalent tangible goods, then surely greater prophylactic measures need to be in place.
The amendment would be a good thing in its own right, but it would give statutory force to the OFT’s recommended principles for the online game industry. These include being upfront about all costs, including the download cost, unavoidable costs once downloaded and optional extra costs. All material information about the game should be provided upfront before download or play begins. That will include what the game does, how it works, compatibility with hardware, whether the game contains advertising or marketing material, and how personal data may be collected, stored and shared. Information about the business providing the game or app should make clear who the consumer is contracting with and how they can be contacted in case of queries or complaints, or if they wish to seek redress. The OFT’s principles also make it clear that in-game payments are not authorised and should not be taken unless the payment account holder—often a parent in the case of many of these purchases—has given his or her express, informed consent.
It is also interesting that the Advertising Standards Authority works to similar guidelines on price advertising in its code, which is set out by its Committee of Advertising Practice. Those guidelines include that price statements must not mislead by omission, undue emphasis or distortion; they must relate to the product featured in the marketing communication. Quoted prices must include non-optional taxes, duties, fees and charges that apply to all or most buyers. If a tax, duty, fee or charge cannot be calculated in advance, perhaps because it depends on the consumer’s circumstances, the marketing communication or advertisement must make it clear that it is excluded from the advertised price and state how it is calculated. Marketing communications that state prices must also state the applicable delivery, freight or postal charges. If the price of one product depends on another, marketing communications must make clear the extent of the commitment the consumer must make to obtain the advertised price. Lastly, price claims such as “up to” and “from” must not exaggerate the availability or amount of benefits or discounts likely to be obtained by the consumer.
I mention those because they are relevant to the amendment: there is a lot more than simply putting a blanket price on a product. I am sure that all of us have been caught to some extent by not seeing prices. This will sometimes apply to tangible goods as well as intangible goods, but it is much worse for intangible goods because, as we have said, there is a lack of direct contact. For all these reasons and the ones already indicated, it would be interesting to hear the Government’s response to this. We should strengthen this clause for the benefit of consumers and traders. I beg to move.
Lord Knight of Weymouth
My Lords, I was hoping to catch my noble friend before he sat down, but I am sure he will save up his response. I am extremely sympathetic to the amendment, given that I have signed it with him. I have a question on in-app purchases. In the course of the Committee we have discussed the iterative nature of improvement and change. It is difficult for some suppliers to anticipate all the potential in-app services that may evolve over the life of an app, for example. Is it my noble friend’s intention that the supplier of the services should set out, as far as it can foresee, what the potential cost would be of further digital content that is not completely upfront, but that it would not be completely bound by the clause if it then chooses to offer something additional?
Lord Stevenson of Balmacara
My Lords, that is an interesting point. I think that the intention behind the amendment was to restrict the applicability to purchases and the information available at the time that purchase was made. However, it is a fair point to suggest that where a purchaser clearly has intentions to upgrade or change the product in some way, there is a case for that being signalled at the time that the purchase is originally made—that other options or, indeed, if it were mandatory, extra charges could be coming down the line. Perhaps the Minister could respond to that point.
Baroness Jolly
My Lords, this amendment relates to communication of the costs that the consumer will face. This can be particularly important for digital content provided under the “freemium” model, discussed earlier in Committee, where the original digital content may be provided for free, but consumers have the opportunity to purchase extensions and improvements to this content through “in-app purchasing”. That is why the Government are committed to providing clarity and transparency to consumers when it comes to costs.
I am sure that noble Lords will be happy to know that the Consumer Contracts Regulations, which came into force in June of this year, ensure that the trader provides information to the consumer about the total price, including taxes, before the sale is made. Under the regulations, this will have to be clear and comprehensible to the consumer before they buy. The Bill makes it clear that this information becomes part of the contract and cannot be changed without the consumer’s express consent. Furthermore, the regulations make it clear that the consumer’s express consent must be given before any payments are made in addition to the main price.
We have also made it clear that pre-ticked boxes, where the trader has already ticked the “agree” box for the consumer, are not enough to signify express consent for those additional payments. This should go a considerable way towards ensuring that a consumer knows exactly what they are buying before they commit to it. Under the “Unfair Terms” part of the Bill, which is still to come, additional charges will not be able to be hidden in the small print.
Legislation to provide clarity on pricing and a clear obligation to pay is already in place. However, we are all aware of cases where young children in particular have racked up high bills relating to in-app purchases in games. This is an issue for enforcement. That is why the then Office of Fair Trading conducted an investigation into children’s online games at the end of last year, which resulted in the publication of a set of principles for games manufacturers in January, based on the Consumer Contracts Regulations and the Consumer Protection from Unfair Trading Regulations.
The noble Lord, Lord Stevenson, asked me to clarify whether the Office of Fair Trading principles applied to the online games industry. The amendment would provide a statutory basis. So the OFT principles are based on statute. They are based on the Consumer Contracts Regulations and the Consumer Protection from Unfair Trading Regulations. I am therefore confident that the OFT—now, of course, rebadged as the CMA—already has the legal toolkit that it needs. To reiterate this, the CMA, as it is now known, is currently looking into industry’s compliance with these principles and will consider enforcement action in necessary cases.
Lord Stevenson of Balmacara
I thank the noble Baroness for giving way. I am interested in what she said about the principles being set out in an OFT report but I am not clear where we ended up. Perhaps she would reflect on that a little more so that I have a better understanding of it. The principles bite quite hard on this problem, so if they were to be given statutory backing, that would go a long way towards answering the other points that are made in my amendment. Can she confirm whether that is the case? Is she saying that the impact of the Bill as it currently stands is such that it would incorporate the set of principles identified by the OFT or is she not? It is a simple question.
Baroness Jolly
That is my understanding, but I sought to check the point with my team before it goes into Hansard. They already have statutory backing in the regulations. We are already there.
Lord Stevenson of Balmacara
Just to be troublesome, the Advertising Standards Authority is not a statutory body, although it does still exist where the OFT does not. As we have heard, it is now part of the CMA. Is it also the case that the ASA’s principles, which again bite hard on this problem, would be considered to be part of the statutory provision or not? I am happy to wait for a reply because I appreciate that it might take more time.
Baroness Jolly
Rather than mislead the noble Lord, I shall send him a letter and copy it to all noble Lords who are concerned with this debate.
I shall proceed with my response. We are pleased that the games trade associations have responded positively to these principles since the industry does have a duty to behave responsibility. Of course, parents too have a responsibility, for example, to turn off in-app purchases. I confess that I did not know they exist, but my kids are a bit big for them now. I hope that, as a result of this action, we will continue to see progress on compliance with the regulations in this area, and I would therefore ask the noble Lord to withdraw his amendment.
Lord Stevenson of Balmacara
My Lords, I am grateful to the Minister for responding to these points and I look forward to receiving a letter. On reflection, if the letter could cover both the OFT, now CMA, principles and the ASA principles, that would be a lot better.
We share a concern on the generality of these issues. These games are incredibly popular and are played by loads of people, but the particularity of the problem which we have identified is that the danger arises because it is mostly children who are engaged with them. Yes, it is possible to switch off the in-app acquisitions elements that are part of the process of playing games these days, but I still think that there are many concerns which will surface in other areas alongside those, such as exposure to advertising and so on. They form part of the value chain of the very products we are talking about. Although we are dealing with a first level of concern here, I worry that we will need to come back to this, perhaps in some other forum, and question how it is that the almost addictive quality of the game-playing capacity that now engages among young people in this and many other countries is being accompanied by a new mode of trading which is not just purchase based but, as we have heard, is about acquiring personal details on purchasing habits that help to inform trading activities, particularly as they affect children. However, these issues are broader that what we have before us and no doubt we will come back to them at some point. In the mean time, I beg leave to withdraw the amendment.
“( ) If the trader becomes aware of digital content that is faulty, it is the responsibility of the trader to take all reasonable steps to inform the consumer affected so that he may exercise their statutory rights.”
Lord Stevenson of Balmacara
My Lords, we are circulating around the issues that come with the new trading activity of intangible goods. This amendment deals with the unique qualities of digital content which are, as we have heard, often updated and upgraded, in some cases almost hourly and certainly on a regular basis, once someone has bought into the arrangement. Indeed, it may well be that some of these updates are a requirement to keep the program going. As we heard earlier, antivirus software has to be updated and changed simply to cope with the developments of hackers.
Our Amendment 40 would require a trader to take reasonable steps to inform a consumer if the trader becomes aware of faulty digital content. Many digital products containing complex software are released on the understanding that the item will not be 100% perfect, and certainly not when it is released. The details of coding and the size of the programs mean that it is not always possible to spot problems. Furthermore, the product often has to run on different operating systems and, as I have said, antivirus software has to be constantly updated. This clause would simply require providers to inform those who have downloaded a defective product about the problem as soon as they become aware of it so as to allow consumers to make an informed choice about their rights to repair or refund or, indeed, as we would argue, to return.
I think that the Government accept that the software industry needs the flexibility to be able to publish and sell programs that contain minor problems. This is a good thing, as anything other than that would be unworkable, as we have heard. This flexibility is, as we have heard, not properly written into the Bill. The software industry has concerns, which the BIS Select Committee has reinforced, about requiring digital content to be free from minor defects. Our amendments would go some way towards resolving that. I beg to move.
Baroness Jolly
My Lords, when the issue of the trader’s responsibility when they are aware that they have a digital content product that is faulty was discussed in the other place, much reference was made to inaccurate mapping software that continued to be offered to consumers even after it was known to be faulty. Examples like this are embarrassing to the businesses in question. No reputable manufacturer wants to release an inadequate product, especially in these days of Twitter, Facebook and other social media, where news of such faults spreads really quickly. When problems such as this do occur, it is in their best interests to act quickly to resolve them. Consumers vote with their feet. In the case of the inaccurate mapping software, consumers simply switched back to a competitor’s product.
It is therefore in the interests of traders and manufacturers who find themselves with a faulty product to act quickly to produce an update to rectify the fault, and to ensure that consumers receive that update. Of course, in the case of updates to apps, downloaded products or products that are uploaded and then registered online, manufacturers already proactively inform consumers when updates are available.
However, the amendment has implications that would be burdensome on business and, at the least, an unwelcome irritation to consumers. The effect of the amendment would be to require traders to make consumers aware that there is a bug before they provide an update. This would seem to introduce an unnecessary step in the process, particularly for those consumers who have not already noticed the bug. It could also be burdensome for businesses, especially small businesses, if the result is an increase in complaints that have to be handled, diverting resources away from the important issue of producing the update.
Of course, I am not discouraging consumers from complaining to traders where their rights have been breached—quite the opposite. The Bill aims to empower consumers to assert their rights. However, encouraging consumers to claim a remedy where they might otherwise not have noticed that there was a fault, and a repair was already being produced by the trader, seems unnecessary. I therefore ask the noble Lord to withdraw the amendment.
Lord Stevenson of Balmacara
I thank the Minister for her response. I will read carefully what she has said and consider it. I did not agree with her view that this might in some senses be unwelcome to consumers. I think we are underestimating the worries that many people have when they buy material that is then subject to problems, and they need to be updated about that. Nevertheless, for the moment, I beg leave to withdraw the amendment.
Lord Haskel
“( ) Subsection (1)(c) does not apply where modifications are made to digital content if such modifications—
(a) benefit consumers;(b) remedy issues or risks; or(c) improve functionality of the digital content;provided that the fact that necessary changes may be made is disclosed in the terms and conditions.”
Lord Haskel (Lab)
My Lords, as my noble friend said, Clause 36 deals with digital content and the consumer’s right for it to be as described. This is important because people may not be able to properly check digital content before buying a complete program. Neither can you check whether it matches a trial version. It has to do what it says on the label.
As my noble friend said, digital content does not remain static. It evolves over time and during use. To give consumers the benefit of these improvements and the advantages of new developments as they come along, digital content providers supply updates, as the Minister explained. However, in addition to updates, upgrades are needed to make sure that the digital content works on the latest operating system and hardware.
The Explanatory Notes say that the Bill goes partly towards recognising this, in that it allows for updates that enhance features or add new features. However, the Bill is not clear. It insists that the digital content continues to match the original product. It has to remain as initially described for the duration of any contract. People in the industry, including my noble friend Lord Sugar, who has many years of experience in the software industry, consider that this could hold back progress in upgrades because the obligation of having to match the original product description could make some new features difficult or impossible to install.
This amendment therefore suggests a more practical approach while still maintaining the rights of the consumer. The amendment allows digital content to be modified if it is of general benefit to the consumer or if it improves the functionality of the software, regardless of whether the digital content continues to meet the original description. To make this absolutely clear, the original terms and conditions must disclose the fact that necessary changes may be made.
The Minister said that she was determined to provide clarity. This is what the amendment does, and achieves it by adding an exemption to Clause 40 so that subsection (1)(c) does not apply where modifications are made to digital content if such modifications are of benefit to the consumers, if they remedy issues, eliminate risk or generally improve the functionality of the digital content—provided that the fact that necessary changes may be made is disclosed clearly in the terms and conditions of the original contract. For example, the amendment will make it perfectly clear that if a consumer purchases Microsoft Office 365 they are not buying a static product and need not purchase a new version each time Microsoft issues an update or improvement. The programme will be refreshed and its features updated automatically as the consumer continues to use the software and had been informed of this at the time of the purchase.
The amendment will provide the clarity that the Government seek, less room for dispute, and continuing benefits for the consumer. I beg to move.
Lord Knight of Weymouth
My Lords, I have considerable sympathy with my noble friends’ amendment. However, I should like to return to the issue of the iPad of my noble friend Lady King, which she described as “stuffed”, following the iOS upgrade. I am sure that Apple would argue that the modifications embedded in the upgrade are of benefit to consumers, remedy issues or security risks, and improve the functionality of the iPad. Whatever the reason—it may be an old iPad that cannot handle the iOS, or it may be user or Apple error; I do not know the circumstance of her iPad being “stuffed”—the point that I am trying to make, certainly when others upgrade their iPads with the new iOS, is that if they have an old version of the device they would be struggling. We know that plenty of software upgrades depend, to some extent, on whether your hardware can cope with all the extra features that Apple in particular include. I wonder whether my noble friend’s amendment can deal with such a scenario in which benefit may apply to most but not necessarily all consumers. The amendment may be better than what is in the Bill, and it may be that I am just pointing out the complexities of this area, but I should be interested in his and any other responses to that point.
Lord Stevenson of Balmacara
My Lords, I am grateful to my noble friend Lord Sugar for putting down this amendment and my noble friend Lord Haskel for adding his name to it and standing in and presenting it for my noble friend Lord Sugar who is unavoidably detained today. As has been said, this is an alternative approach to things which is, perhaps, more reflective of a more dynamic and engaged relationship between consumer and trader in which you have to trust the trader to develop the tools you use and you go forward. It certainly beats the old advice—which I am sure my noble friend Lady King has already tried—that when in trouble switch it off, hope for the best and it will magically work itself out. It is an attractive idea that somebody up there is thinking about how it works and how best to improve it. With the dangers that my noble friend has mentioned, we need to hear from the Minister about how this has been received.
Baroness Neville-Rolfe
My Lords, I am also grateful to the noble Lord, Lord Haskel, for his amendment and for standing in for the noble Lord, Lord Sugar. I look forward to his appearance on the Lord Sugar show.
I recognise that some types of digital content, such as software and games, do, in the words of the noble Lord, Lord Haskel, evolve over time. That is precisely why we introduced Clause 40, allowing updates that were in the terms of the contract. So let me reassure noble Lords that there is nothing in the Bill that prevents digital content traders from providing updates or upgrades, under the terms of their contract, to improve the functionality of the digital content. We have heard several times from the noble Lord, Lord Knight, about the iterative nature of some digital content and I am grateful for his digitally aware intervention.
Clause 40 ensures that, as long as modifications are allowed under the terms of the contract, there is nothing to prevent the trader from updating or upgrading digital content as long as it remains of satisfactory quality, fit for any particular purpose and as described. Such contract terms would be assessable for fairness under Part 2, “Unfair Terms”. The “as described” aspect does not fix the digital content to a static description. The digital content has to match the description but this does not mean it has to be exactly the same as the original description. It simply means that if the digital content is described as containing a certain feature then it should have that feature. However, as long as it has the described features, any additional features would not prevent it from matching, rather as a blouse may match a jacket, although the jacket may have more colours.
To a large degree, the description is in the gift of the trader, as long as it includes the main characteristics of the digital content, its functionality and interoperability. I have heard the industry’s concerns that it needs to be able to provide updates that are made for the consumer’s benefit. Perhaps a feature is taking up too much processing power and slowing everything else down, or perhaps a feature has become vulnerable to a security threat and needs to be removed while it is fixed, to protect the consumer from the threat. Of course it is important that industry is able to act in these cases but I am not convinced by arguments that Clause 40 will prevent it from doing so or slow it down in cases of urgent updates.
Let us assume that a trader has needed to remove a feature of some digital content, either intending to improve functionality or protect from a security threat. What would the trader do next? They would have two options. They could repair the feature to make it work more efficiently or improve security, and then reinstate it. Or they could take a decision that it was a minor feature that not enough consumers used, so they would not reinstate it. If, in that scenario, the removal of the feature meant that the digital content no longer matched the description, as required by Clause 40, the first remedy available to the consumer would be the repair or replacement of the digital content.
In the first option I have just outlined, that is normal industry practice already and is appropriate. A consumer has bought some digital content expecting it to contain the features or perform the functions it was described as doing. If the digital content no longer does that they will be justifiably unhappy and will expect the problem to be fixed. In the second option, where the trader is not repairing or replacing the feature, the consumer would be entitled to some money back. Let us remember that the amount due is unlikely to be the full price paid. It would be an appropriate amount and we would expect this to take into account the use the consumer had already had of the digital content and the continued functionality of the rest of the digital content. So the amount might be small.
Lord Haskel
I am sorry I was not here to hear about my noble friend’s problems with her iPad. I was in a Select Committee meeting. As far as my noble friend’s comments are concerned, this is an industry that is moving all the time. If too many constraints are put on it, it will stop moving at the speed that it is meant to go. We have to ensure that consumers’ rights are not limited, but that the industry can make progress. I feel that the amendment that my noble friend Lord Sugar and I have put down meets that balance.
In her response the Minister spoke about the two options. Those options are always there, but we also have to ensure that, although the consumer has these options for their rights, the industry can make progress, otherwise we will all end up with obsolete software—rather like my noble friend.
I thank the Minister for her response, and my noble friend Lord Knight. This is a very complicated technical matter. We will have to look at the Minister’s response. The amendment is based on my noble friend Lord Sugar’s many years of experience in the industry—I am too old to be in the show. We will certainly consider the Minister’s response and the other contributions and perhaps return to the matter on Report. In the mean time, I beg leave to withdraw the amendment.
Baroness Neville-Rolfe
“(7A) It is not open to the consumer to treat the contract as at an end for breach of a term to which any of subsections (2), (4) or (5) applies.”
Lord Clement-Jones
“( ) the damage has not been caused or contributed to by an unreasonable use of the digital content by the consumer,( ) the damage is of a kind which the trader ought reasonably to have foreseen at the date when the contract was concluded,”
Lord Clement-Jones
My Lords, the rationale for this amendment is that Clause 46, which deals with consumer compensation for damage to a device or other digital content, fails to appreciate totally the complexities of security software products. Failures and malfunctions in software can occur for a variety of reasons, often without any connection to the design or development of the product itself. Improper use of the product is one common cause, while defects in the consumer's own equipment are another. The incompatibility of different pieces of digital content used simultaneously by the consumer is a third. In all these instances, the liability of the software provider can extend only to what is effectively in the sole control of that provider; that is, to cases where the cause of the damage sustained by the consumer is unambiguously and exclusively the product of that provider.
In the area of internet security products, urgent critical fixes for serious threats may sometimes get released before companies have tested the process extensively as there is generally a greater benefit for a greater number of consumers compared with a small number who may experience minor compatibility issues or false positives. These updates are developed with reasonable skill and care and they are tested against numerous possible known configurations. However, by their very nature the updates are a process that needs to be automated, and that is done under extreme time pressure. As a general rule, the faster an update is released to consumers, the greater the number of people who are protected from a new threat.
However, the current clause might encourage suppliers to slow down, delay or discourage the release of new security solutions or urgent critical fixes, to the ultimate detriment of consumers. Against that backdrop one must add the fact that the Bill does not allow the trader to restrict his liability under any circumstances. It then becomes apparent that the security industry will be confronted with a very real disincentive. Moreover, in the digital environment it is sometimes necessary to sustain minor damages that are unavoidable to protect the consumer from greater or further harm. A few examples may be helpful to illustrate this point because it is so specific to the digital environment.
It is better to delete a malware-infected e-mail from the consumer’s webmail account and to lose the content of that one e-mail than to have the consumer’s entire computer corrupted. It is also preferable as a precaution to temporarily block the consumer’s access to a website that is suspected of distributing malware rather than giving access and exposing the consumer to the risk of an infection. Similarly, it might be advisable in certain cases to take a service offline in order to address a security threat before making it available again to the consumer. In all these cases, the consumer or the consumer’s property may sustain damage, such as the loss of the content of an important e-mail that was deleted because of the malware that had infected it, the failure to receive a live video transmission while access to the service platform was blocked, or the inability to perform a particular online action at a precise moment because of a service outage. But in certain circumstances it has to be understood that this minor damage is a reasonable price to pay for the avoidance of much bigger harm, and Clause 46 should acknowledge that. I beg to move.
Baroness Neville-Rolfe
My Lords, I listened with great interest to my noble friend’s concerns. However, it is worth going back to the driver for this clause, which is to make it clear that all consumers of contractually provided digital content, free or paid for, may have a right to damages if the circumstances warrant it. Perhaps I can expand on that a little. The consumer already has the ability to bring a negligence claim in this area. If a consumer downloads some digital content that contains a virus, the consumer could seek to make a negligence claim against the trader if the virus caused loss or damage to the device or other digital content. However, excluding free digital content from the quality rights may leave consumers unsure that they have the ability to make a claim when free digital content causes damage, so Clause 46 clarifies the position. It is designed to reflect negligence principles and not to introduce any new burdens on industry.
On the question of consumer responsibility, I agree that traders should not be liable for damage that results from something the consumer has done with the digital content that it was not reasonable for them to do. Clearly, in this case, it is the consumer’s behaviour that has caused the damage and not the digital content. However, I do not agree that it is necessary to lay this out in the Bill. It is already implicit in the way the clause works. In order to prove a breach of the clause, the consumer has to show first that the digital content itself caused the damage to their other digital content or device. Secondly, they would have to show that the trader failed to use reasonable care and skill to prevent the damage. If the damage occurred because of something the consumer had done, then the consumer would not be able to prove a breach.
The concept of reasonableness in the application of this provision was referred to. I recognise that digital content operates in a very complex environment, as has been said often, and furthermore that no digital content trader can be expected to know every possible configuration of digital content on a consumer’s device. That is why we used the concept of reasonable care and skill in this clause. Reasonable care is part of the test of whether there was a breach in the first place. Even if the digital content can be shown to have caused the damage, there is no breach if the trader acted with reasonable care and skill to prevent the damage. This effectively protects the trader from expectations that they must have acted in every way possible to prevent the damage if it was not reasonable for them to have done so. It means that the trader would not be expected to test exhaustively for every possible scenario and that the trader’s activity would be judged against the normal standards in the industry.
The concept of reasonably foreseeable is slightly different. It addresses whether it was reasonably foreseeable that breaching this clause would cause the loss that the consumer suffered. However, expressly limiting the application of the provision to damage of a kind which the trader ought reasonably to have foreseen makes the provision more complex and creates an additional hurdle for consumers, making it harder for a consumer to secure a remedy.
My noble friend raised the issue of urgent updates and the need for them to be automated under the inevitable pressure of time. It is unreasonable—
The Deputy Speaker (Lord Geddes) (Con)
My Lords, it is now 6.23 pm. At least, it is according to the Annunciator, not the Clock; we should not rely on the Clock. I cut the noble Baroness, Lady Neville-Rolfe, off in her prime. Perhaps she would like to continue.
Baroness Neville-Rolfe
My Lords, I had finished explaining the background to what we were seeking to achieve, which is important for the Committee to understand and for the record because of the original nature of the discussions on online. However, my noble friend Lord Clement-Jones was particularly concerned about emergency security updates. He rightly emphasised that they need to be carried out with great speed and that some consumers could suffer minor damage.
The position as the Government see it is as follows. The consumer has to demonstrate that the trader failed to use reasonable care and skill to prevent the damage. We would expect that all reputable traders in this area would use reasonable care and skill as a matter of course, even for security updates that obviously have to be released rapidly. However, what constitutes reasonable care and skill for urgent security updates would be judged against the normal industry standards in that context, not against the standards for regular updates.
I sympathise with my noble friend’s concerns about traders facing claims concerning minor damage caused to a few consumers during the process of an emergency update. However, if the trader has used reasonable care and skill, given the context, I would not expect that Clause 46 would be engaged. I therefore ask my noble friend to withdraw the amendment.
Lord Clement-Jones
My Lords, I thank my noble friend once again for a very clear exposition. If there is ambiguity when it comes to a court looking at some of the provisions of the Bill when it is enacted, some of the explanations may be quite useful in a Pepper v Hart kind of way. That useful exposition would give some assurance to anybody looking at the clause. I will read Hansard with great interest. I thank my noble friend and I beg leave to withdraw the amendment.
Lord Stevenson of Balmacara
My Lords, we question whether Clause 46 is as effective as it might be in this area. Although the debate on the last amendment was very helpful, it served to amplify some of our concerns about how this matter should be dealt with. As the Minister explained, the issue seems to be that there is the possibility of a price reduction if a trader fails to provide, or can neither repair nor replace, digital content if the consumer requires it but the trader is in breach of the requirement to do so within a reasonable time and without significant inconvenience. There is an implication that this is about paid-for content and that it arises from the contract. An obvious question is how it will deal with free downloads. I think I caught the Minister saying that it did apply to free material. I listened carefully to what she said but I am still not quite sure about the implications of this in terms of getting redress. There is also a wider question about how these things are going to be calculated.
My first question is: what is the mechanism under which price reductions and replacement costs are going to be calculated? Is this a matter for the courts or will some guidance be issued? If so, how will it be developed and will it be subject to the usual consultation? If it is not being dealt with by the courts or in documentation issued by the Government, who is going to decide this? Is it an ombudsman’s issue? Will there be a sliding scale of time for usage, given that some digital content such as streaming a film might be for one-off use while others might be for longer, such as an anti-virus software package—which usually covers a computer for a year or longer—or games which might be used for even longer than that? What is the basis on which this will be approached? Is it that you have had it for 12 months and therefore it is a longer or shorter period depending on the original cost? Are there difficulties about digital content that relate to such matters as a consumer having had 11 months’ use out of a piece of anti-virus software that is supposed to last for 12 months but a fault in the program causes significant loss through damaged work files or a personal data breach? Do they get only one-twelfth of the price paid because that is the period of time remaining under the original contract? Presumably there is a way of calculating a scale of loss in relation to the damage caused. If so, will the Minister explain it?
Ending with our favourite fermium apps, how do they work? I gather from the body language and the nods that they will be included, but when do they get picked up? Do you get the full force of the law, as outlined in this clause, as soon as you have downloaded, or only once you have gone on to the premium aspects? How is the balance between the two arrived at? There seem to be so many questions that the clause is not working effectively. I would like to hear further from the Minister before deciding on this matter.
Lord Knight of Weymouth
My Lords, my question returns to something that I have come back to every now and then today. In the context of this clause, has the Minister thought about remedy, not only for damage to a device or other digital content but for damage to reputation? Many digital products now involve co-production whereby users of the product are creating the product. Even something as simple as Twitter is of value purely by virtue of the nature of the contributions of the users. I have given the example of Snapchat, which is possibly the most recent example of this issue, but problems of people suffering damage to their reputation arise regularly. Obviously, they have a potential recourse to law but if we are starting to legislate to protect these consumers, as we should, will this extend to protecting prosumers—an ugly word—that is, consumers who are also producers? For example, a supplier of digital services may have a problem with the privacy setting and, although the consumer has legitimately set up privacy controls to protect his privacy, those have failed and there is then an impact on the consumer’s reputation. Can consumers seek recourse under this legislation or do they have to go through other legal means?
Baroness Neville-Rolfe
My Lords, this clause aims to address a specific concern of consumer groups who have told us that, as a minimum, we should give some protection in legislation against free digital content that causes damage, as we discussed earlier. The clause aims to clarify that consumers have a right to a remedy for damage to their device or other digital content, even in relation to free digital content, if it has been supplied under a contract. It addresses a concern that there may not be a clear course of action because free digital content is not covered by the quality rights.
We are all aware that digital content sometimes contains malware, such as computer viruses, that can damage the consumer’s device. Often this is as a result of the actions of rogue traders, but malware can also be introduced accidentally from legitimate sources. For example, in January, an American personal computer manufacturer notified its dealers that it had accidentally shipped at least 500 computers that contained the Michelangelo virus, which erases the computer’s hard disk, on 6 March, Michelangelo’s birthday. The virus had infected the computers from a third-party supplier whose software was bundled in the computers. The intention of this clause is to engage negligence principles. It gives consumers rights to a remedy for all contractually provided digital content which causes damage. The remedy would be a repair or an appropriate payment.
The noble Lord, Lord Stevenson, asked about freemium apps. I have already promised to write to him, so I will ensure that this aspect is also covered in that letter. He also asked how one would calculate an appropriate payment for free digital content that causes damage. The payment is not a reduction in price of the original content. The financial remedy is to provide compensation of an appropriate amount. We would expect this amount to be proportionate to the damage caused. If the damage simply stopped the spellchecker within the word processor from working, the financial compensation would be very minor.
Baroness Neville-Rolfe
I agree—I take the rebuke. Obviously, perfect spelling is very important to the future of civilisation.
As I was saying, the digital content might have introduced a code that has damaged all the digital content on the consumer’s device, including the underlying operating system—for example, as can happen on one’s iPad. In this case, the compensation could be considerably more.
We have already debated the issues surrounding business liabilities under this clause and we have talked a little about the consumer angle. I have listened very carefully to both of the perspectives discussed in relation to this clause and I will read Hansard. I am keen to ensure that we have the balance right here. I think that we have. For that reason, I hope that your Lordships will agree that this clause should stand part of the Bill.
Lord Stevenson of Balmacara
My Lords, I thank the Minister for her comments. By her use of examples she has explained some of the difficulties. She put herself into exactly the position I was trying to bring her to, which is that I do not really understand how this works yet. I now understand the mechanism and that it will apply to free delivery, and anticipating her line of argument, presumably where free apps turn into freemium apps there will be an assessment of both the free part and the premium part because there will be two different elements in the calculation that go towards it. I can see that the issue is about the damage caused rather than the original pricing because there was no price on the free element. However, I still do not quite understand who is doing that. Is this now a matter for the courts or will some new form of arbitration system be set up for problems around free downloads? I am not looking for a response at this point, but perhaps the Minister could write to me.
Baroness Neville-Rolfe
Perhaps I may clarify that obviously it is ultimately for the courts since we are talking about provision for damages and so on. I shall set that out clearly in writing.
Lord Stevenson of Balmacara
I am now slightly more confused because the text of the Bill states that the consumer has a right and can exercise that right against a trader. Is that going to be in the courts in all circumstances? If we are talking about some of the apps referred to earlier by my noble friend Lord Knight, we are considering trivial things which may create a lot of confusion. I cannot believe that the courts will wish to engage themselves with “Angry Birds” and “Candy Crush” users who are annoyed about an issue.
Baroness Neville-Rolfe
Perhaps I have confused the noble Lord by saying that ultimately this is a matter for the courts. However, he will be pleased to know that we are planning to issue guidance in this area which will be subject to the usual consultation. The minor points being articulated by the noble Lord will be the subject of guidance and therefore, it is hoped, will not reach the courts too often.
Lord Stevenson of Balmacara
“A hae ma doots” about that—but perhaps I should not use that term in Hansard. I have some doubts about where this is going, so again perhaps I may request a letter that sketches this out in more detail; I am sure that we will reach an accommodation. In the mean time, I am happy not to press my opposition to the clause.
Lord Clement-Jones
Lord Clement-Jones
My Lords, in moving Amendment 43, I shall speak also to Amendment 44. Very significantly, the effect of Clause 47 is that liability under most of the provisions of Chapter 3 cannot be excluded or restricted. Broadly, the clause in its present form prohibits any exclusion or restriction of liability whatever, however reasonable it may be to exclude or restrict such liability. The intention of these amendments is to allow such exclusion or restriction of liability if it is reasonable. This is particularly important because, as we discussed earlier, software often contains defects and is known to do so. Increasingly, software is installed and runs alongside or on other applications or platforms. These are often refined and altered as new versions are released and indeed may have incidental defects as well. The performance of one software program may therefore often depend on other applications, interfaces and programs, and it is the resulting interplay that can expose unexpected defects, but these may not be evident or even exist when running the same program in another manner or configuration.
The appearance of a defect might lead to the conclusion that a software program is defective as an absolute and verifiable characteristic of that software, but many such defects may exist only in certain circumstances or in specific configurations. This is very different from a single consumer good which, operating alone, either functions in accordance with the marketed description or is defective. It may well be reasonable to allow the supplier to exclude liability for defects. It is important to stress that the amendment would permit the supplier to exclude or restrict liability only if a court thought it reasonable to do so.
The fact of the matter is that virtually all software contains defects. There are limited exceptions but they are highly specialised and tend to be found in application areas where the consequences of failure are so grave as to demand ultra-resilient and dependable software—for example, aircraft and automotive control systems, software for nuclear installations, software in surgical scenarios, or software to guide or launch weapons. To the extent that defect-free software exists, it will tend to be infinitely expensive.
Cheap consumer software is wholly different. It cannot be polished for ever and, if so, would be very expensive to buy a licence for. Apps are being developed all the time for the consumer at the cost of, for example, around 69p or free. Without the ability to limit such liability, this law could chill software development by micro-business and SMEs. Costs will be pushed up for such small developers as they will need to seek to mitigate or insure against such legal risks. It could end up by stifling innovation. It could make the developer think, “Why supply software under such a law to consumers at all? It’s too risky”.
In any event, this law is unnecessary as in practical terms the software industry will always find a workaround or fix to a problem. Such solutions happen each day and often very quickly. The rule will be divorced from reality. The remedy is not proportionate and, in the view of many in the software industry, is somewhat draconian. It is out of step with the way in which the industry works and looks after its customers, who are its lifeblood. A solution could be that such a rule under Clause 47 applies only if a workaround or fix is not implemented. Thus, unlimited exposure kicks in only if a fix fails.
The clause is too much of a blunt weapon to cure, at best, only a technical legal problem. Have the consequences been properly considered on developers? The effect of such potential unlimited or excludable liability can be foreseen as the near certainty of choking back innovation and the further distribution and take-up by consumers of advanced technologies in application areas where it is not reasonable for them to expect a perfect product—especially where the product is at zero or very low cost. In any event, it is reasonable to take into account any fix offered, together with a number of factors, in order to determine reasonableness.
In conclusion, as the Federation Against Software Theft suggests, a more equitable approach would be to permit the exclusion or restriction of liability to the extent that it is reasonable to do so, taking into account factors analogous to those under the Unfair Terms in Consumer Contracts Regulations 1999—SI 1999, No. 2083. That would enable the courts to develop a fair and equitable system on a case-by-case basis. I beg to move.
Baroness Jolly
My Lords, we have heard that this amendment seeks to introduce into the digital content chapter a right for businesses to be able to exclude or limit their liability for meeting the quality rights if doing so is “reasonable”.
We have chosen not to allow “reasonable” limitations on liability for the quality rights in any of the goods, services or digital content chapters of the Bill. This reflects the current law in relation to business-to-consumer contracts for goods. Clause 47 prevents a trader contracting out of the consumer’s statutory rights and remedies specified in that clause. This is because, in practice, the liability will for the most part be limited to the contract price of the digital content, as for goods. So there is a natural cap.
Clauses in consumer contracts that exclude liability entirely, or limit liability to significantly less than the contract price, are unlikely to be judged as reasonable anyway. I have heard industry concerns about the complex environment in which digital content works, and I know that contractual relationships between traders may be complex, as may the technical issues. Against this backdrop, it is difficult for a trader to have full control over the quality of the digital content that they supply, so traders have concerns about being liable for problems that are not entirely in their control. However, as I said earlier, is it right, from the consumer’s perspective, that traders can limit their liability? Surely if a trader offers to sell digital content for a consumer, they should take responsibility for the consumer getting what they expect.
Lord Clement-Jones
My Lords, I thank my noble friend for her response. In contrast to some of her earlier responses, I am not quite convinced by her analysis of the clause. This is a very serious potential issue for software suppliers in these circumstances. I noticed that she used the phrase “unnecessarily complex” again. That seems to me to be a splendid phrase to pop into a response when it is just too much bother to put in a clarifying phrase. Either it “does not provide enough clarity” or it is “unnecessarily complex”.
Although I am not wholly convinced by my noble friend’s response, I will consider it very carefully, particularly in the light of existing liabilities. My understanding of the law as it is at present is that it is not the case that liability is unlimited. I believe the clause is creating a new form of absolute liability in these circumstances. I may be wrong, but I need to check that. Therefore, I am not convinced by the Minister saying, “We do not want to alter the current legal regime and that is why we have got the clause as it is”. My belief is that the clause will add to liability and create a disincentive, and that it needs mitigating in some different respects. I have no doubt that we will come back to that at some stage in the future. In the mean time, I beg leave to withdraw the amendment.
Baroness Neville-Rolfe
My Lords, this may be a convenient moment for the Committee to adjourn.
House of Lords
Introduction: Baroness Harding of Winscombe
Introduction: Baroness Mobarik
Banks: Bridging Finance
(9 years, 6 months ago)
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Baroness Gardner of Parkes
To ask Her Majesty’s Government whether they have any plans to encourage banks to provide bridging finance to asset-rich, cash-poor homeowners who wish to downsize, regardless of age.
Lord Newby (LD)
My Lords, the Government are keen to encourage all those wishing to downsize, of whatever age, to do so. In the vast majority of cases, bridging finance should not be necessary. For older people, the major constraint to downsizing is often the lack of appropriate alternative accommodation. We are committed to increasing the flow of such housing on to the market, for example through the care and support specialised housing fund.
Baroness Gardner of Parkes (Con)
My Lords, I thank the Minister for that reply, but I do not agree with it. Older people are having major problems because where, years ago, bridging finance would have been available to anyone—particularly if they had big equity in a house and were moving to a less expensive house—there is now a strict age limit. It was 75 when I quoted it last time to someone in the Treasury; I checked it again, and it has gone to 70 now. In some cases, some of the banks I rang said it is 65. Does the Minister not think that there is a bit of age discrimination in this?
Lord Newby
There is a problem with how banks deal with older people who are looking to move, but it has nothing to do with bridging finance in most cases. It is simply about transferring the mortgage from one property to another. The mortgage market review suggested that banks should have some discretion in those circumstances so that people would be able to remortgage on the same terms that they had before, but unfortunately, as in a number of other cases, the banks are interpreting this in a very rigid way, which is undoubtedly disadvantaging some people.
Lord Best (CB)
My Lords, will the Minister look out for a report on affordable downsizing, due to be released on 19 November by the APPG on this subject, which I chair? Will he note in particular the central recommendation that, like the right to buy for young people, we get a right to move for those of us in our extended middle age?
Lord Newby
I certainly look forward to reading the report. I will be fascinated to see how that right might be translated into reality for a lot of people, but some local authorities are beginning to look imaginatively about how you help people to move. Very often, one of the big problems is just the physical challenges of sorting out the move, switching the bills and so on. Redbridge, for example, and a number of other authorities have started to provide a service to people who wish to downsize, to help them with all those mechanical arrangements which, for some people, prove to be the last straw in stopping them from downsizing.
Lord Desai (Lab)
My Lords, does the Minister recall that during the crisis when we changed from rates and the support grant to the community charge, there was a myth that there were many asset-rich but cash-poor people? It proved not to be true. We are again hearing this myth of asset-rich but cash-poor people, but if they are asset-rich, they should not need a mortgage, as they have enough equity in their present house to relocate.
Lord Newby
My Lords, that is obviously the case for many people who have been in the same house for a long time. Some people entering retirement who still have a mortgage may require a mortgage if they are moving to a smaller property, but it is almost by definition going to be a smaller mortgage than the one they previously took out, given that there will have been some capital appreciation. One of the key challenges for us is that research shows that almost half of all over-55 households have spare space in the house. If we can facilitate downsizing where people genuinely want to do it, society as the whole will benefit.
Lord Taylor of Goss Moor (LD)
Will my noble friend agree that older empty-nesters often wish to have their grandchildren or other visitors come to stay with them? There is a myth that when people downsize—which does free up housing for families—they somehow want to go into specialist, tiny homes for people with great needs at the end of their lives. That is not actually the key to unlocking family homes: the key is to provide something for people to move into that is appropriate to their needs and expectations. The problem is the fundamental shortage of housing of that sort.
Lord Newby
My Lords, yes, I completely agree. It is important that those housing associations that provide specialist housing designed for older people—one of which is chaired by my noble friend Lord Stoneham—are encouraged to grow so that we can have more appropriately designed and sized accommodation.
Lord Davies of Oldham (Lab)
My Lords, the House will have noticed the Government’s concern about this relatively marginal problem of the asset-rich. What about the asset-poor who are forced to downsize under government policy on the bedroom tax?
Lord Newby
The noble Lord knows that 1.7 million households are waiting for social housing in the UK, and the spare room subsidy is intended to help move people into accommodation in those circumstances. I think that he would agree with me that the fundamental challenge that we in all parties face is how to increase the flow of housing, not just in aggregate but so that it is designed to meet the different requirements of different groups, including the elderly.
Lord Flight (Con)
My Lords, other than a few of the more enlightened ones, banks are now refusing to provide mortgage loans to anyone over 70. It is very well to say that banks can exercise discretion here, but when they are told by the regulator that that is what the regulator wants, not surprisingly they want to protect themselves, so they say, “Well, we’ll do what we’re told”. If they do otherwise, they put themselves out on a limb if something goes wrong. Basically, the regulator needs to be advised to make it clearer that it wants to see banks use their initiative.
Lord Newby
My Lords, as I said earlier, many lenders appear to be approaching the rules in a way that is against the spirit set out by the FCA. The FCA is reviewing the way the mortgage market review rules operate, and I hope that there will be some movement there. A number of banks and smaller building societies, in particular the Family Building Society and the Bath Building Society, of course do not have any age limits in their lending policies.
Schools: Careers Advice
(9 years, 6 months ago)
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Baroness Prosser
To ask Her Majesty’s Government whether they have any plans to change the current system of careers advice for young people in schools.
The Parliamentary Under-Secretary of State for Schools (Lord Nash) (Con)
My Lords, my right honourable friend the Secretary of State for Education has made it clear that she wants to see improvements in the quality of careers advice and guidance available to young people, with many more schools and employers working together to provide excellent support. That is a clear priority for her. We have made a number of changes in this area, including issuing revised statutory guidance to schools; we are keeping the impact of those changes under review, and are considering what else we can do to improve the links between schools and the world of work.
Baroness Prosser (Lab)
I thank the Minister for that quite helpful reply. However, I am sure that he is aware that in providing careers advice, schools face an inherent conflict. The funding regime for senior schools depends in part upon numbers of pupils being retained in the sixth form to study GCSEs and A-level subjects, and of course the position of schools in the league tables is a hugely important pressure on them. Together, those two things deter many schools from advising pupils of the opportunities maybe to study BTEC subjects, applying for apprenticeships, or moving on to further education colleges. Can the Minister therefore tell the House what the Government intend to do about that conflict?
Lord Nash
The noble Baroness is right—there is an inherent conflict in this. Schools have a clear responsibility to ensure that their pupils achieve and progress to positive destinations, whether that is university or another, high-calibre, vocational route. Our revised guidance clearly states that schools should act impartially and recognise that some students would be better suited to educational training beyond schools, and it makes it clear that schools should give other providers the opportunity to inform pupils about the offer. We believe that our new destination measures will also help considerably in that area.
Lord Cormack (Con)
My Lords, may I once again urge my noble friend to contact all secondary schools and encourage them to appoint a careers advisory panel drawn from local businessmen and professionals who really know about jobs and careers?
Lord Quirk (CB)
With the school leaving age now raised to 18, is it not the case that all 16 to 19 year-old students are engaged in special 16 to 19 study programmes which are formally and specifically geared to career aspirations? How, then, can it be that Ofsted last week published a report complaining that there was very poor use of the extra time for 16 to 19 year-olds and, specifically, that careers guidance is poor “at all levels”?
Lord Winston (Lab)
My Lords, I declare an interest as the founder and champion of the Reach Out Lab at Imperial College, London. Each year we connect with around 7,000 schoolchildren from the state sector drawn from all over London, plus another 30,000 through collaboration with the Mayor of London. It is very clear, as the Minister accepts, that there is grossly inadequate careers advice. Does he not also accept that it would be much more sensible if universities were better integrated with schools, and is it not about time that we consider that all education should be under one government department?
Lord Nash
I am aware of the excellent programme to which the noble Lord refers. I am sure he is delighted with the increase in STEM subjects which has taken place under this Government. Schools should have a thoroughly close relationship with their local business professional communities and universities and, as far as his last point is concerned, it is one that I am sure all future Governments will consider carefully.
Baroness Humphreys (LD)
My Lords, a UNISON survey in June this year showed that 83% of schools surveyed were no longer employing a careers adviser. Have the Government made an assessment of this situation?
Lord Nash
Yes. We believe that one-to-one careers advice is appropriate in certain circumstances but obviously all schools seek to identify their students’ passions and interests at an early age and develop them. The evidence is quite clear from a number of reports, including those from McKinsey and Education and Employers Taskforce, that the best careers advice for young people comes through activities and contact with the world of work. For many of our young people, particularly those from workless households, careers advice these days is as much about inspiration as actual advice on detailed careers.
Baroness Uddin (Non-Afl)
My Lords, the Minister will be aware of the importance of face-to-face careers advice for pupils, but particularly for those with learning disabilities, special educational needs and conditions such as autism, only a small number of whom are actually able to access jobs. Can the Minister assure the House that all those disabled people requiring or requesting careers advice will receive it from fully trained careers advisers who are well trained on disability rights and matters?
Baroness Wall of New Barnet (Lab)
My Lords, having accepted the proposal and explanation by my noble friend Lady Prosser about the challenges faced by secondary schools, further education institutions and universities, how are the Government going to achieve their goal of having more apprenticeships—a major problem for employers—when most young people going into apprenticeships find out from family rather than from any other available careers advice?
Lord Nash
My Lords, we have an active programme to encourage people to consider apprenticeships. We have a range of marketing materials available from the National Apprenticeship Service, and Not Going to Uni is also an extremely good source of information. The National Apprenticeship Service funds the Education and Employers Taskforce, and more than 70 advisers from the National Careers Service, the National Apprenticeship Service and jobcentres are actively embarked on this at the schools show.
Children: Obesity
(9 years, 6 months ago)
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Baroness Benjamin
To ask Her Majesty’s Government whether they have any plans to develop a co-ordinated cross-departmental strategy to address childhood obesity in order to ensure the health and wellbeing of children.
Baroness Benjamin (LD)
My Lords, I beg leave to ask the Question standing in my name on the Order Paper and declare an interest as chair of the All-Party Group on a Fit and Healthy Childhood.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, we published our cross-government strategy, A Call to Action on Obesity in England, in 2011. It sets out our approach to tackling obesity and includes a national ambition for a sustained downward trend in the level of excess weight in children by 2020. This requires ongoing collective action across all government, businesses, healthcare professionals and individuals. We are seeing encouraging signs of progress, with obesity rates in children falling to 14% in 2012, the lowest level since 1998.
Baroness Benjamin
I thank my noble friend for that Answer. However, a report by the All-Party Group on a Fit and Healthy Childhood has confirmed that childhood obesity has become an epidemic across the country. In some areas, 40% of children are overweight. Medical and dental experts are raising concerns about obesity and health issues in children and millions are being spent by the NHS because of this. Does my noble friend agree that this epidemic has to be called a national emergency and that someone at Cabinet level should be responsible for co-ordinating strategy across all relevant government departments for the sake of our children’s long-term well-being? Will he please agree to meet the all-party group to discuss this report?
Earl Howe
My Lords, first, I commend the all-party group for its report. Tackling obesity is one of our major priorities, as it is for Public Health England. We have a well developed and wide-ranging programme of actions to tackle obesity. We have set a national ambition for a downward trend in excess weight in children. We are delivering the programme through initiatives such as Change4Life, the National Child Measurement Programme, school sports funding and the School Food Plan, and through voluntary partnerships with industry. As regards co-ordination, Public Health England is a leader of the public health service and numerous government departments are contributing to the anti-obesity agenda. We have a Minister for Children, and we have already established the Obesity Review Group, which brings together a range of experts and delivery partners from across the system to try to co-ordinate efforts to meet our national ambitions.
Lord McColl of Dulwich (Con)
My Lords, will the Minister acknowledge that the Department of Health and NICE misled Parliament and the nation in saying that the obesity epidemic was due to lack of exercise? Will the Minister acknowledge that in fact obese people do not need to increase their activity one iota in order to lose weight? All they have to do is to eat or drink fewer calories.
Earl Howe
My Lords, although physical activity can have a role in maintaining a healthy weight, the Government agree with my noble friend that its health benefits are nevertheless subsidiary in those who are obese to the need to eat and drink less. My noble friend may be interested to know that NICE is currently consulting on its draft public health guideline on maintaining a healthy weight and preventing obesity among children and adults. It currently expects to publish this guideline in February next year.
Lord Elystan-Morgan (CB)
My Lords, does the Minister accept that many of us are obese because we are the proud but inevitable products of heredity? Further, does he accept the splendid words of the Scottish author, Eric Linklater, who, speaking of a person of ample frame, said, “His outline spoke not of greed but of grandeur, not of gluttony but of the magnanimity of the human form”?
Earl Howe
There is, I am sure, no more elegant way of describing the issue under consideration at the moment. The noble Lord makes a very important point about heredity. I do not think that sufficient is understood about the role of our genetic make-up in the way in which we all differ in our weight and size. However, for those who are obese, there are clear, evidence-based actions that they can take to lose weight if they have a mind to do so.
Lord Berkeley (Lab)
Does the Minister agree that the link between cycling and the avoidance of obesity is extremely strong? Will he speak to his colleagues in the Department for Transport as his predecessor, whom I met at a conference a few years ago, said that the Department of Health would not encourage cycling because it was a transport matter?
Earl Howe
We are straying a little towards obesity in general rather than obesity in children. However, I concur with the noble Lord that cycling has an important place in the way in which we can take exercise, which is beneficial for our general health. I will, of course, take back the noble Lord’s message.
Lord Walton of Detchant (CB)
Will the Minister say what success, if any, the Government have had in persuading manufacturers to reduce sharply the sugar content of fizzy drinks? Has consideration been given to the possibility of restricting the sale of high-calorie-content drinks through vending machines?
Earl Howe
My Lords, our current emphasis is on overall calorie reduction, of which sugar forms an important part. The scope for reformulation to reduce sugar levels varies widely depending on the food that one considers and a reduction of sugar levels does not always mean that the overall calorie content is reduced. The issue is not black and white. An example of that is when sugar is replaced by starch or other ingredients. Nevertheless, we are discussing with the food manufacturing industry ways in which it can reformulate its food and the Scientific Advisory Committee on Nutrition is finalising its review on carbohydrates, looking at sugar as a particular component of that.
Baroness Wheeler (Lab)
My Lords, given the difficulty of ensuring effective cross-department co-ordination on childhood obesity, what is the Government’s response to a call by the Royal College of General Practitioners to set up a COBRA-style task force? Would that not be a key way of ensuring a joined-up approach that extended beyond the Department of Health?
Earl Howe
My Lords, as I mentioned earlier, we have set up the Obesity Review Group, which contains a multiplicity of experts to co-ordinate the efforts being conducted not only in government but also in local government and on the part of business and the wider private sector. While I buy into the central point made by the noble Baroness that this needs an overarching scrutiny, we believe that we have that already.
Energy: Winter Supplies
The Parliamentary Under-Secretary of State, Department of Energy and Climate Change (Baroness Verma) (Con)
My Lords, we continue to actively manage risks to the secure energy supplies on which we depend. Working with Ofgem and National Grid, we have introduced new electricity system balancing measures through which we expect de-rated margins to remain around 6.5%; this is within the reliability standard of 4%. Our gas infrastructure is resilient, and import infrastructure can meet nearly double our annual demand without even counting on significant domestic production. We also engage closely with the EU and our G7 partners on measures to increase the EU’s energy security.
Lord Ezra (LD)
My Lords, I thank my noble friend for her Answer, but will she kindly elaborate further on the security of electricity supplies? In view of the fact that the reserve capacity is down to very low levels, and that a number of stations have had unexpected outages—including Didcot B, announced today—can she indicate whether there are likely to be disconnections during peak winter conditions?
Baroness Verma
My noble friend is right to highlight the outages. However, as I stated in my initial Answer, the grid already has existing options for companies to receive payment to reduce the amount of electricity they are taking from the grid at a time of peak demand during winter months. They are finalising new agreements with additional power stations to provide reserve services following the recent loss to which my noble friend referred. The national grid has around three gigawatts of additional tools to boost supply when margins are very tight and is in the process of extending our mutual assistance arrangements with both France and the Netherlands.
Lord Lawson of Blaby (Con)
My Lords, the noble Lord, Lord Ezra, has rightly drawn the attention of the House to a truly alarming state of affairs, which is the direct result of subordinating over a number of years energy policy to the damaging, fundamentally immoral and futile demands of the Climate Change Act. Has my noble friend had time to study the outstanding GWPF lecture given by our right honourable friend Owen Paterson MP on this very subject only last week? If she has not, will she now do so?
Baroness Verma
As ever, I am grateful for my noble friend’s interventions because they enable me to highlight that, of course, we do have to look at the costs of any policy. However, we also need to look at the commitments we have made to reducing carbon emissions both in our global targets and in our national targets. I remind noble Lords that having a lower-carbon energy sector has brought in more than £45 billion worth of investment in electricity generation. That is a clear signal that we need a diverse range of energy supplies. I have not looked at my right honourable friend’s lecture notes but I will do so.
Lord Teverson (LD)
The Minister mentioned interconnectors, so does she agree that we have a meagre four gigawatts of interconnector supply internationally with the Netherlands and France? Should we not concentrate in terms of balance on increasing that supply, and in that way get a much greater single market in electricity within the European Union?
Baroness Verma
Again, my noble friend raises a very important point. Of course we are working very closely with our partners and we are looking at developing ways of enhancing interconnector supply. I agree with my noble friend that we have work to do, but work is in progress and it is progressing in the right direction.
Lord Pearson of Rannoch (UKIP)
Does Her Majesty’s Government agree that the crippling cost of the EU’s mad climate change policy, to which we are subservient, falls largely on people who cannot afford it? Does the widow’s mite come to mind?
Baroness Verma
No, my Lords. We have a sensible policy in this country, and people across the world look at what we are doing to encourage green energy as well as traditional fuels. If we are to leave a cleaner planet for future generations, we have a part to play.
Baroness Worthington (Lab)
My Lords, demand for energy has fallen so far this year. In the first half of this year we saw a 17.5% reduction in gas demand and a 5.7% reduction in electricity demand. People are walking around today in T-shirts. There is no need for the hysterical headlines that we are seeing about closures in plant. We have 25% of our energy today coming from wind. The question is: does the Minister agree that it is time to create an energy security board so that we can stop the alarmist headlines, have a mature debate and get our energy security and demand management policy back on track?
Baroness Verma
I agree with the noble Baroness that we need to have a sensible energy debate; maybe she could take that message back to her leader.
Lord King of Bridgwater (Con)
Can my noble friend tell the House that since the Leader of the Opposition announced a proposal to freeze electricity prices, what announcement has been made by any energy company of further investment in energy generation in this country?
Baroness Verma
My noble friend follows on from what I said in response to the noble Baroness opposite. We need a sensible energy policy and we are working towards a sensible debate. We have ensured that we are hard on energy companies where we see that they are not being fair to the consumer. We have brought in the CMA and have tightened Ofgem’s rules—so the Government have done a lot. Energy companies need to play their part, but we as political parties need to play ours.
Lord Stoddart of Swindon (Ind Lab)
My Lords, is the Minister aware that when I worked in the electricity industry for the CEGB, we needed 18% spare capacity? She is now trying to persuade the House that 4% spare capacity will give security of supply. Can I assure her that that policy—particularly since we have 25% of energy coming from wind power—is endangering security of supply, not only for industry but for all consumers as well? I hope that the Government will treat this as a matter of urgency, particularly in light of the fire at Didcot over the weekend.
Baroness Verma
My Lords, I think that I have made it clear through my responses that we are very aware of what we have in reserve. We are giving—and have given—powers to both national grid and Ofgem to ensure that we have enough supply.
Armed Forces (Service Complaints and Financial Assistance) Bill [HL]
(9 years, 6 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
15:51 - Division on the amendment. - Ayes: 172 / Noes: 209 - Amendment disagreed.
Lord Rosser
“( ) The Ombudsman may, after advising the Secretary of State, investigate any matter deemed to be in the public interest on—
(a) any aspect of the system mentioned in section 340O(2)(a);(b) any matter relating to the Ombudsman’s functions under this Part;and make a report to the Secretary of State.”
Lord Rosser (Lab)
My Lords, we have had debates in Committee and on Report on giving the Armed Forces Service Complaints Commissioner, now to be known as the ombudsman, wider powers to be able to report on thematic issues without being dependent on the Secretary of State asking for such reports. One reason for providing those wider powers—which is what this amendment seeks to do—is that, under the present arrangements, the commissioner has never been asked by a Secretary of State for Defence to report on a particular area of concern that she or the Secretary of State may have. It is therefore not credible to argue that the ability of the Secretary of State to call for such reports covers the situation.
The Commons Defence Select Committee believes there would be value in the commissioner—the ombudsman—being able to undertake research into and report on thematic issues, in addition to the annual reports, and that the ombudsman’s experience on these issues should be utilised. The Defence Committee reported that, during visits to units, the current commissioner had been informed of issues that would not necessarily come to her as complaints but on which she thought some work needed to be done. Such issues, which might refer to a general culture at a particular location or unit, or more widely, of discrimination or bullying, for example, would not be covered by new Section 340L, which relates to recommendations arising as a result of maladministration. A situation or treatment of an individual or individuals could be questionable or unacceptable without there being evidence of maladministration—assuming there was a willingness to make such a complaint, which relates to process, and whether a complaint has been conducted in a procedurally sound way.
In Committee, the Minister, on behalf of the Government, expressed concern that:
“an ombudsman with a wider remit to investigate matters of their own volition, notwithstanding whether they must first notify the Secretary of State of their intentions, could overlap with these other jurisdictions and cause confusion and difficulties”.—[Official Report, 9/7/14; col 243.]
That argument does not stand up. If that is the reason for not giving the ombudsman a wider remit in relation to thematic issues, then it must equally be a matter of concern under the powers in Section 340L. In respect of those powers, the Minister has said the ombudsman could make recommendations relating to wider systemic issues as a result of finding maladministration.
One difficulty of the Bill is that it is not clear what investigations, if any, the ombudsman can or cannot carry out on his or her own volition beyond investigating an individual complaint of maladministration. The Minister said in Committee that such recommendations could relate to systemic issues, but then said that the amendment seeking to provide for this went “beyond that required”, which would suggest that the Bill does not give, in the Government’s eyes, either the wider powers sought by the Defence Committee or sought in this amendment.
The Minister also said in Committee that there was scope for the ombudsman to raise wider issues,
“in appropriate ways … and to provide an input to investigations or inquiries conducted by other appropriate bodies”.—[Official Report, 9/7/14; col. 243.]
Clearly, the latter aspect, of providing an input into an investigation that somebody else has decided to initiate, does not meet the terms of this amendment, on the ability of the ombudsman to be able to carry out his or her own investigation and make his or her own recommendations.
I also have a concern that the Minister’s comment that there is scope under the Bill for the ombudsman to raise wider issues “in appropriate ways” is mainly a reference to being able to put something into the annual report. That view has been strengthened by the Minister’s statement on Report that:
“If systemic failings are identified through the complaints system, it is important that those are brought to the attention of both the individual service and the Ministry of Defence … the Bill gives the ombudsman scope to use their judgement to cover such matters in the annual report as they think relevant to the operation of the system or to the exercise of their role. The ombudsman’s annual reports, like those of the commissioner, will be able to look widely at the system of redress, the sort of complaints that are encountered and what sort of failings and misconduct the system has to deal with”.
The Minister also said on Report that the ombudsman could make wider recommendations,
“beyond those solely relating to maladministration, to addressing the effectiveness of the redress system or other systemic issues. Such wider recommendations could concern the better handling and investigations of complaints of a particular nature, where there is a finding of maladministration in connection with the handling of the complaint at hand. In addition, such recommendations could well concern the commissioning of training in carrying out investigations into certain matters—discrimination being a good example—or appointing a subject matter expert to investigate systemic issues or concerns that have apparently arisen. It is then fundamentally down to the services to respond appropriately and we would expect them to do so”.
It is evident from those quotes from what the Minister said on Report that the Government’s position is that, while the ombudsman can draw attention to systemic issues that have apparently arisen and recommend that they be investigated, the one thing that the Government are not prepared to allow the ombudsman to do is investigate such issues of concern on his or her own volition unless required by the Secretary of State to do so—and, as we know, Secretaries of State have a track record of not asking the commissioner to do so.
Indeed, the Minister made this position clear on Report when he said:
“Although we want the ombudsman to address wider issues, including where they have identified systemic abuse, we do not want the ombudsman to have any statutory powers to investigate thematic issues. We do not, for example, want the ombudsman to have any powers to require the production of papers or to question witnesses beyond the powers set out in respect of the exercise of the ombudsman’s primary function of investigating alleged maladministration in the handling of service complaints and whether, as a result, injustice has been caused”.
So the issue is not the principle of the ombudsman being able to call for the production of papers or questioning of witnesses—since that could relate to maladministration—but instead to do so in the context of an investigation into a thematic issue of concern to the ombudsman as opposed to an individual complaint of maladministration. The reason given for this stance by the Government on Report was that they,
“do not want the ombudsman to be an inspectorate for the Armed Forces or to perform the functions of a rapporteur. … Conferring such a role on the ombudsman would also serve to divert the resources of the office”.—[Official Report, 29/7/14; cols. 1544-6.]
I hope that the second reason is not a significant one, since it appears to be saying that the reason for not allowing the ombudsman to investigate thematic issues is not related to the merits or otherwise of so doing but rather because the resources cannot be provided to allow him or her to do so.
Lord Palmer of Childs Hill (LD)
My Lords, it is to the credit of your Lordships’ House that we have a Bill with only one amendment. It is a compliment to all sides of the House that we have managed to get a Bill that has got to this stage. I am a fairly new addition to this place but one amendment to a Bill seems a massive achievement. However, it is even greater than the noble Lord, Lord Rosser, just said. I believe that we have achieved an awful lot in the Bill and the amendment is almost clutching at straws or trying to find problems. I find that the commissioner—the ombudsman—will be able to take matters to the Defence Council and the problems described seem more in the realms of fantasy than reality.
As I see it in the Bill, in reality we have the ability to conduct investigations—I do not read it as saying that there can be no investigation of any sort. I do not think that the proposal by the noble Lords, Lord Rosser and Lord Tunnicliffe, gives the ombudsman that much more power than is there already. The ombudsman may investigate if a matter is,
“deemed to be in the public interest”.
In fact, most problems occur when particular members of the Armed Forces suffer some sort of bullying or have some complaint. That is where the complaints arise, rather than the big systemic complaints to which the noble Lord, Lord Rosser, referred. I do not see that the amendment is needed. There have been a lot of reassurances; they may not all be in the legislation but can be found in Hansard. But it has been proved that assurances given in Hansard can be taken and used in the appropriate manner.
If there is a vote, I shall certainly vote against the amendment, but I take this opportunity of asking my noble friend the Minister whether he would comment on a specific case. Perhaps he could say how, bearing in mind the comments of the noble Lord, Lord Rosser, the approach to that specific case would be helped and enhanced by the new legislation that we seek to pass. I refer to the case, reported over the last few days, of former Corporal Neathway, a paratrooper who was disabled. It took three years for his complaint to surface and for it to be seen that his commanding officers, at lower staff level and brigadier level, had not done what was necessary. What would happen under the new legislation, after the efforts of your Lordships’ House, with all the faults that the noble Lord, Lord Rosser, has sought to expose, if the case of this former corporal in a parachute regiment happened now rather than three years ago?
The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Astor of Hever) (Con)
My Lords, the issues covered in this amendment have already been the subject of useful and detailed debates in Committee and on Report. I said on Report on 29 July that I would consider the issue further so that we could return to it this afternoon.
The Bill provides that the ombudsman’s primary function will be to investigate and report on allegations by complainants that there has been maladministration in handling their complaint. The reports from the ombudsman will contain binding decisions on whether there has been maladministration and whether, as a consequence, injustice has or could have been caused. The ombudsman can also make recommendations for remedial action including the reinvestigation of the complaint, suggested improvements to the way in which investigations into such allegations are carried out, or specific actions that would make the complaints system more effective. In addition to this, there is nothing to stop the ombudsman commenting on any underlying concern or pattern of behaviour that has given rise to the complaint.
As I said on Report, we envisage that, when the ombudsman considers it appropriate, he or she will publish information on any matters of general concern arising from the operation of the service complaints system, however such matters come to the ombudsman’s attention. We do not think that a statutory power needs to be provided for the ombudsman to be able to do this. We want the ombudsman to raise such issues as quickly as possible. When systemic failings are identified, it is important that they are brought to our attention so that they can be put right when possible.
My noble friend Lord Palmer of Childs Hill raised the really important issue of the Neathway case and asked how that case would be covered by the Bill. The Bill will mean that the complaints process in future is quicker; anyone who is unhappy with how their complaint has been handled will be able to approach the ombudsman—for example, if they believe that their case has taken too long to resolve. The ombudsman’s independent oversight will give the Armed Forces lessons in how to further improve the process.
A service complaint panel has reached a determination about the service complaint made by ex-Corporal Tom Neathway, the panel on behalf of the Defence Council has formally apologised to ex-Corporal Neathway and has made recommendations for the Army to consider. The Army has appointed a commanding officer unconnected with the events to consider all matters arising from the service complaint panel’s determination.
The Bill also provides that the ombudsman must produce an annual report. This will be able to look widely at the complaints system, the sort of cases it handles and what sort of failings and misconduct the system has identified. As I have said before, this is a wide and appropriate role for the ombudsman to have, using his or her knowledge and experience of the complaints system and any information that has come to light through that process, whether from the complainant, families, service welfare organisations, MPs or the services themselves. The ombudsman therefore has the ability to report on any underlying themes. The current commissioner has used her annual reports to comment on issues such as the effectiveness of the Army’s zero-tolerance policy on bullying.
The ombudsman can therefore report on a wide range of issues relating to the effectiveness, efficiency and fairness of the service complaints system, including on any systemic issues that have come to his or her attention. This can be done immediately through individual investigation reports, or by publishing information of general concern, or through the annual report.
The aim of this amendment, however, is to allow the ombudsman to carry out investigations into wider issues, such as a culture of bullying at a particular location, and to produce reports on those issues. Consequently, its purpose is to introduce a new role for the ombudsman that goes beyond that set out in the Bill.
There are three important reasons why we do not want the ombudsman to have such a power. First, carrying out such investigations would divert the ombudsman from their primary role of making the complaints system work better and, in particular, hold the chain of command to account in its handling of service complaints. Secondly, the ombudsman might not be the best person to carry out such an investigation. Such investigations might require the full-time dedication of a number of people with specific skills and expertise, such as investigators and lawyers. Finally, it is the chain of command that is responsible for the welfare of its people and for the environment in which they work. We would expect the ombudsman to bring any systemic failings to the attention of the individual service concerned, and to the Ministry of Defence, so that they can put things right. However, it is not for the ombudsman, in the manner of an inspectorate, then to go on to examine these issues.
I hope that I have made the Government’s position clear. We do not want the ombudsman to highlight any thematic issues they come across and to make these concerns quickly and publicly available. However, we do not want the ombudsman and supporting staff then to go off and investigate these matters. Giving him or her the power to do so would significantly change their role and distract them from the main task of making the service complaints system better.
As we have now reached the final stage of our consideration of this Bill, I thank all noble Lords for their work on it. I agree with my noble friend Lord Palmer and I also thank him for his support on this amendment. We have had some excellent debates on a number of issues, some of which we have looked at in considerable depth. I hope that all noble Lords feel that there has been adequate time for scrutiny. I am particularly grateful to the noble Lord, Lord Rosser, for the constructive way that he has put the Opposition’s case, and to my noble friends Lord Thomas and Lord Palmer and others for their expert contributions. I also thank my noble friend Lady Jolly for her assistance, and officials both in this House and in the Ministry of Defence for ensuring the smooth running of the Bill.
With that, I ask noble Lords to reject this amendment.
Lord Rosser
My Lords, I thank the Minister for his response. I express no surprise that the Government have not felt able to accept this amendment, since the Minister indicated to me in a recent letter that the Government would not be tabling any amendments on thematic investigations for Third Reading. As we come to the end of our consideration of the Bill, I thank the Minister and the noble Baroness, Lady Jolly, for their thoroughness and unfailing courtesy, at the Dispatch Box, in correspondence and outside the Chamber, in responding to issues that we have raised. I extend those thanks to the Bill team and to all noble Lords who have taken part.
I also thank the Minister for his kind words. I am grateful to him for having somewhat contradicted the noble Lord, Lord Palmer of Childs Hill, who clearly believes that the issue I am raising is of no significance. Indeed, I think he used the expression “clutching at straws”. The Minister clearly does not believe that the issue I am raising is clutching at straws. He has said specifically that the Government do not want the ombudsman to be able to carry out an investigation into, for example, bullying at a particular location. That is not a minor issue or clutching at straws; that would be a particularly useful and relevant role for the ombudsman to have. When the Minister talks about undermining the chain of command, it depends on whether the chain of command will regard the ombudsman as the enemy or as being of assistance to it in dealing with issues of military life and military personnel that arise. We are getting off on a very bad footing but I sense that the ombudsman will be regarded as the enemy, who should not be let out more often than is absolutely necessary.
In his response, the Minister reiterated the Government’s position: while they agree that the ombudsman should address wider issues, they do not want him to have any statutory powers to investigate those issues. The ombudsman can apparently report that there is a wider problem but he or she cannot fully investigate whether that is the case, or, if it is, the extent to which it is the case, and make recommendations. The ombudsman can do this if the Secretary of State requires him to do so but not of his own volition. We know that Secretaries of State do not ask—they have not asked the present commissioner—for such investigations to be carried out. Investigations into maladministration will not necessarily provide scope for raising matters of concern over thematic issues or abuses because such an investigation needs a specific complaint, or complaints, of maladministration. There does not have to be a procedural issue in how complaints are dealt with for there to be an issue of concern.
In conclusion, the main issue is that the Government intend that the ombudsman may only report, not investigate, concerns over systemic or thematic abuses or issues, and that it should then be up to the Defence Council or the Ministry of Defence whether any further action is taken to investigate those concerns. By definition, the ombudsman will not be able to substantiate such concerns or base any recommendations on the facts that emerge from the investigation. He or she will not have the power to investigate concerns beyond what arises from an individual complaint, not about the issue itself but about maladministration of the way a complaint has been dealt with. As the Joint Committee on Human Rights said, the appearance of the independence of the ombudsman is important to provide the necessary confidence. In opposing my amendment, the Government have not provided a sufficiently convincing explanation of the difficulties that would be caused by the ombudsman having the power to carry out investigations.
Lord Astor of Hever
My Lords, I may be able to help the noble Lord. In winding up, I misread one word. I said that we do not want the ombudsman to highlight any thematic issues; I should have said that we do want the ombudsman to highlight the thematic issues. That was entirely my misreading.
Lord Rosser
Although that sounds like a significant change in the Government’s position, actually it is not. What the noble Lord has said is that the Government want the ombudsman to be able to highlight systemic issues—that is, to say, “I’ve been told that there is a problem”—but not to investigate the issue. I am grateful to the noble Lord for correcting what he said but it does not alter the position that the Government do not want the ombudsman to be able to investigate.
There is a difference between telling somebody that there is a problem and being able to investigate it. As I was saying when the Minister intervened, the Government have not provided a sufficiently convincing explanation of the difficulties that would be caused by the ombudsman having the power to carry out investigations into thematic issues of concern of his or her own volition, even though they do not dispute that it may be necessary to carry out such investigations—but only if the Secretary of State requires the ombudsman to do it. So it may be necessary if the Secretary of State wants it but not if the ombudsman thinks it should be done. That does not add up to a credible position on the Government’s behalf, and I wish to test the opinion of the House on my amendment.
Lord Kennedy of Southwark (Lab)
My Lords, on Report, I moved an amendment about having a credit union for the Armed Forces. The noble Baroness, Lady Jolly, responding for the Government, was unable to accept my amendment but agreed that I could meet with the Minister responsible, Anna Soubry. That meeting took place at the MoD last week, and was very positive. Following the debate in the Chamber, a meeting also took place with forces charities which are supportive of a credit union for the Armed Forces. I understand that a discussion has taken place with the company which provides the payroll service for the MoD and it is hoped that either the costs will be considerably reduced or there will be no cost at all to the MoD.
What I understand to be happening next is that the MoD will identify a number of credit unions that are the right size to be able to deliver financial services to the Armed Forces community. We should be in a situation by the end of this year or early next year to offer the Armed Forces community credit union facilities that will provide loans, savings and other financial products that will be available through payroll deduction.
I thank the noble Baroness, Lady Jolly, for her kind assistance, Anna Soubry for working very hard on this, and the noble Lord, Lord Astor. I have been a supporter of the credit union movement my whole adult life and, as a Labour Co-op Member of your Lordships’ House, I am delighted that the campaign has proved successful and that members of the Armed Forces community will soon be able to benefit from this development, as will the Armed Forces charitable services. Could the Minister maybe say a few words to the House? I thank him very much for that.
Criminal Justice and Courts Bill
(9 years, 6 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
18:13 - Division on Amendment 39 - Ayes: 80 / Noes: 170 - Amendment 39 disagreed.
21:07 - Division on Amendment 97 - Ayes: 80 / Noes: 106 - Amendment 97 disagreed.
Lord Beecham
“(13) Before this section comes into force, the Secretary of State shall—
(a) consult the Parole Board about the resources required for additional hearings resulting from the implementation of this section; and(b) lay a report before Parliament containing—(i) his assessment of the resources required for additional hearings; and(ii) his plans to ensure that the Parole Board has adequate resources to fulfil the requirements of this section effectively.”
Lord Beecham (Lab)
My Lords, I shall speak also to Amendment 8. Amendment 1 is by way of a sunrise clause that would require the Secretary of State to consult the Parole Board about the resources required for additional hearings resulting from the implementation of this clause of the Bill, which deals with the arrangements for the Parole Board, and lay a report before Parliament containing his assessment of the resources required for additional hearings and his plans to ensure that the board has sufficient resources to fulfil the requirements of the proposed section.
The amendment was the subject of debate in Committee. It was prompted by the growing pressures on the Parole Board and the impact that they were having on the timely discharge of its responsibilities. In that debate I expressed concern about the effect on the board’s workload of a number of provisions in the Bill as a result of the number of categories of offender being made subject to the decision of the board in relation to release instead of being eligible for automatic release after serving two-thirds of their term. These cases include prisoners convicted of terrorist and explosives offences, who would be subject to the enhanced dangerous offenders scheme, all offenders serving extended determinate sentences, and others who would be subject to discretionary, rather than automatic, release after serving half their term. In addition, the Bill prescribes a new release test for recalled prisoners.
All these factors threaten a substantial increase in workload, with a potential requirement, on the Government’s own estimate, eventually, of 1,000 extra prison places. The situation is certain to be made worse by a substantial anticipated rise in oral hearings consequent on the decision of the Supreme Court in the case of Osborn. Given the department’s track record in forecasting the effect of IPPs on prison numbers, there must be some doubt, to put it mildly, as to the robustness of its estimate. As it is, the board is anticipating holding an additional 4,500 oral hearings a year.
The Minister wrote to me on 29 July in reassuring terms, saying that the experience of the first few months after the judgment showed that the board’s predictions about the caseload were too pessimistic, and that in any case, it was,
“developing significant changes to its operating model and these were being tested”.
The Minister affirmed that the resources question would be kept under review and, of course, I welcome that. It would, however, be interesting to know what the projected caseload in that respect now looks like and what the anticipated cost is and to receive an assurance that any extra work for the board, and its already reduced staff, will not be at the expense of its basic caseload and the times in which it can deal with hearings. Will the Minister provide his assessment of the cost of the additional hearings and how and when this will be met? In particular, will he tell us what consultations have taken place with members of the board and others over the proposal for one-member panels for determinate sentence reviews and two, instead of three, members for indeterminate case reviews?
The Minister hinted somewhat coyly that the Government were,
“considering a number of options”
to address the situation. Three months after the relevant debate in Committee, and all of six days before the first day on Report, the Government unveiled their proposal to create an entirely new service, recall adjudication, which is the subject of the Government’s amendments in this group and of my further amendment. The Government’s proposals are based on the judgment of the Supreme Court in the Whiston case, which the Government interpret as giving a green light in terms of compatibility with human rights obligations—assuming that these are not to be abrogated as the Tory Party attempts to fend off the threat from UKIP. Justice, however, the legal organisation, questioned the robustness of that interpretation.
The Minister organised a briefing meeting at short notice and will, of course, describe the proposal in the course of this debate as he speaks to the amendments in his name. In essence, however, the Government propose to allow the Secretary of State to refer determinate sentence recall cases to a recall adjudicator, which may, in a somewhat circular fashion, turn out to be the Parole Board. Consultations have apparently been held with the board and the judiciary. The Minister told those of us who attended the meeting that they had apparently approved the change, although, for some reason, there has been no public consultation nor, until now, any parliamentary involvement. Such parliamentary involvement, of course, in terms of this Bill, is at virtually the last gasp.
In his letter of 13 October, the Minister indicated that the department would be working with the Parole Board and other unidentified stakeholders on,
“the drafting of the rule”—
in the singular, strangely—
“the design of adjudicator model and the guidance underpinning this”.
That is all very well, but Parliament is not being consulted, nor will it have any opportunity to exercise any judgment about the proposals. It is simply being expected to sign a blank cheque with the promise that the resources aspect will be the subject of a report to Parliament—eventually—but with no apparent intention to seek parliamentary approval of this or any other aspect of what is, after all, a radical change. This is happening at a time when the Parole Board is in the middle of a triennial review which these proposals will clearly pre-empt.
As the Prison Reform Trust points out, even if it were proposed and acceptable for determinate sentence recall prisoners to be denied an oral hearing, why, at the £60 cost of a paper hearing, is it necessary to create a wholly new and untested structure? How sensible is it, when the whole system is caught up in a maelstrom of change and acute pressures which affect all the statutory players—the Prison Service, NOMS, probation, the police and the courts—to add another ingredient to the mix?
In the event the proposal may prove to be acceptable, but at this stage we have very little information to go on; for example, on the criteria on which the Secretary of State will rely, the qualifications, training and job description of those who will be employed, or, of course, the cost. Given the plethora of as yet unanswered questions, it would clearly be desirable for change of this magnitude to be the subject of a proper parliamentary process before what may, it is to be hoped, be a positive change. It is equally desirable, if not more so, to review the outcome of this untested change and secure parliamentary approval after a period in which its efficacy can be judged—hence the second amendment in my name, which is a sunset clause, as opposed to the original sunrise clause in Amendment 1.
I submit that it is not unreasonable to ask the Government to bring forward a report on the workings of this new arrangement, with details of full costs and the like, and then after a modest period to seek approval for its continuation. This habit of last-minute amendments, one with which we are becoming too familiar, not merely from this department but from others, impedes the proper functioning of parliamentary scrutiny and of your Lordships’ House in particular. The Minister is not personally responsible for that, but his political master is, and it is time that the Lord Chancellor and Secretary of State bore in mind the role of this House and of Parliament as a whole in considering matters of great public moment such as those that affect the Prison Service, those who work in the Prison Service and, of course, those in their custody. I beg to move.
Lord Woolf (CB)
My Lords, I disclose that I am the chairman of the Prison Reform Trust, which, as the noble Lord, Lord Beecham, has already pointed out, has circulated a paper that expresses concerns which he has adopted, very admirably, in the submissions he has just made to the House. I urge the Minister to think about those submissions very carefully. Whereas I, of all people, would like to think that I am a supporter of any procedure that cuts the costs of the administration of justice, at this stage the matter has not been detailed enough. Perhaps it would be better to find another instrument to which this very late amendment can be attached, but some such machinery to deal with this is urgently required.
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, I thank the noble Lord, Lord Beecham, and the noble and learned Lord, Lord Woolf, for their contributions to this short debate. I will take this opportunity to explain to the House in a little more detail the context and reasons for the Government’s amendment, which will enable the Secretary of State to appoint “recall adjudicators”, before going on to explain the nature and purpose of those amendments. I will then turn to the amendment the noble Lords have tabled to Clause 3, and to their Amendment 9A, which seeks to insert a new clause.
When your Lordships last debated the provisions in Part 1, concern was raised about the burden that some of the provisions would place upon the Parole Board, particularly given the increased demand for oral hearings following the Supreme Court judgment in the case of Osborn, Booth and Reilly. At the time I explained what the Parole Board and the Ministry of Justice were doing in response to that demand, and indicated that we were considering whether there may be other options to alleviate the pressure on the board.
I hope that these government amendments demonstrate to the House our commitment to supporting the board and will serve to alleviate some of the concerns that have been expressed. They will allow the board to focus its resources where they are most needed. It is only recently that it has become possible to contemplate amending the legislation in the way that we now propose, and I hope that this answers the criticisms made by the noble Lord, Lord Beecham, of the amendment and its lateness.
In July, a Supreme Court judgment was handed down in the case of Whiston v the Secretary of State for Justice. This dealt with the question of whether an offender who is subject to home detention curfew and is recalled to prison for breaching his licence conditions is entitled, under Article 5.4 of the European Convention on Human Rights, to have his detention reviewed by a court-like body—the Parole Board. The Supreme Court found that there was no such entitlement and that for all determinate sentenced offenders further detention during the licence period was satisfied, in Article 5 terms, by the original sentence imposed by the court. Therefore this does not depend on any party-political interpretation of the European Convention but on the decision of the Supreme Court.
Last week I chaired an all-party meeting in which we discussed these changes—which, of course, I accept have come late in the day. I hope that I was able to explain during the meeting to those noble Lords present the reason behind this change and why it was late, in order to give Peers an opportunity to understand what we were doing. The Whiston case is a significant change to previously established domestic case law on which the current provisions in the Criminal Justice Act 2003 are founded. Under the 2003 Act, determinate sentence recalled prisoners are entitled to have their cases referred to the Parole Board. This was to satisfy their Article 5 rights to a court-like review of their detention.
But the Whiston judgment means that the review of determinate sentence recall cases no longer has to be conducted by the board because Article 5 is not engaged. We are therefore seizing this opportunity to build into the statutory framework a new, flexible way of working which will provide for this category of case to be diverted away from the board. That is what these amendments are designed to do.
Amendment 9 inserts new Section 239A into the Criminal Justice Act 2003. This will create a power that enables the Secretary of State to appoint “recall adjudicators”. It is these adjudicators who will take on the functions relating to the release of recalled determinate sentence prisoners currently performed by the Parole Board. The Secretary of State will be able to appoint the Parole Board as a recall adjudicator to allow the board to continue to review these cases if necessary, but also to appoint other persons.
Much of the detail of how the recall adjudicator model will operate—including exactly who will be appointed and the nature of those appointments—will be the subject of further detailed development. As I indicated during the meeting, and do again in the House, the appointments will be filled by those with significant criminal justice experience. I apologise if at this stage I cannot provide noble Lords with the level of detail for which they might normally wish. I acknowledge, of course, that the as yet unknown detail about the precise operation, impact and cost of the new model is what lies behind the noble Lord’s amendment to insert a sunset or sunrise clause into these provisions. I will return to that when I respond to the amendments.
First, I shall explain to your Lordships the main features of the provisions as well as the safeguards that will make sure the system for reviewing the detention of recalled prisoners will remain fair, robust and efficient and—importantly—that risk assessment and public protection will continue to be of paramount importance in any release discussion. While the review of detention need not be undertaken independently by a court-like body or process, it will have to satisfy the common-law requirements of impartiality and procedural fairness in line with the Osborn judgment. This means that oral hearings will still be required if they are necessary in the interests of fairness to the prisoner in the particular case and it will be necessary to interpret that requirement consistent with the Osborn decision.
Your Lordships have already agreed that Clause 8 should stand part of the Bill. This introduces a new test for the release of determinate sentence recalled prisoners. The test requires consideration to be given to whether the offender needs to be detained for the protection of the public but also whether the offender would be highly likely to breach their licence again if released. Recall adjudicators will be required to apply that test—that is, they will be under a statutory duty to consider both public protection and the risk of further non-compliance in reaching their release decisions.
A consistent and robust process will be followed by recall adjudicators. To ensure that this is the case, these amendments provide a power for the Secretary of State to issue procedural rules. Of course—this is important—there will be an opportunity for further parliamentary scrutiny, as these rules will be made by statutory instrument, subject to the negative procedure.
The Secretary of State will also have the power to appoint a chief recall adjudicator. The chief recall adjudicator, who must also be appointed as a recall adjudicator, will oversee the activities of these adjudicators and bring coherence and co-ordination to their work. To assist in this role, provision is also made for the chief adjudicator to issue guidance. Recall adjudicators will be required to carry out their functions in accordance with that guidance.
The Secretary of State will be responsible for making decisions on appointments and the termination of appointments, although the chief recall adjudicator will be able to make recommendations to the Secretary of State about the termination of appointments.
The other amendments that we have tabled in this group all flow from and are consequential to the provisions in Amendment 9 to allow for the appointment of recall adjudicators.
I hope that your Lordships will agree that these amendments will not only help to alleviate pressure on the Parole Board but will give us the opportunity to look afresh at an alternative model for reviewing the detention of determinate sentence prisoners when they are recalled to custody. In short, if these cases do not need to be dealt with by the board, we believe that they should not be. The recall adjudicator provisions will give us the flexibility that we need to put such a system in place. This is the package of government amendments that I commend to the House.
Before I sit down, I turn to the amendments tabled by the noble Lords, Lord Beecham and Lord Kennedy. The Government cannot support these amendments. Amendment 1 places a statutory duty on the Secretary of State to consult the Parole Board and to lay a report before Parliament about the resources that the board requires before the provisions in Clause 3 are implemented.
The Government are committed to ensuring that the Parole Board is always adequately resourced to fulfil its important responsibilities. The amendments that I have spoken to, which are designed to alleviate pressure on the board and to free up its resources, underline that commitment. I assure your Lordships that any future pressures on the board arising from the implementation of other provisions in the Bill will be discussed with the board so as to ensure that the necessary arrangements and resources are in place. I can confirm to noble Lords that there have been discussions with the Parole Board, the Lord Chief Justice and the senior presiding judge about the appointment of recall adjudicators.
Clause 3 adds a small number of additional terrorist-related offences to Schedule 15B to the 2003 Act, and the impact of this on the board will be minimal. We do not believe that a duty to consult the board or to lay a report before Parliament is appropriate or necessary. With respect, and as I said in Committee, such a duty would not be a practicable approach to these provisions. Changes to the workload of an arm’s-length body are commonplace. There are governance structures in place to ensure that new pressures on the Parole Board are taken account of. As noble Lords will be aware, the Ministry of Justice is accountable to Parliament for the discharge of its responsibilities. Putting such an obligation on the face of the legislation would, I suggest, be an undue burden on Parliament.
That brings me to the other amendment tabled by the noble Lords, which would insert a sunset clause into the recall adjudicator provisions, suspending them two years after the date of commencement. Prior to this, within 18 months of commencement the Secretary of State would be required to lay before Parliament a report on the impact of these provisions. Having done so, the Secretary of State would be able to make regulations for the continuation of the provisions—those regulations to be made by statutory instrument and subject to affirmative resolution of both Houses. In effect, Parliament would have to review the impact and agree to the continuation of the provisions to avoid their suspension after two years.
I understand the concern of noble Lords that the introduction of recall adjudicators is a new and, as yet, untested concept. It is critical that we get this right, and I appreciate the recommendation by the noble Lords for greater scrutiny by this House and the other place. However, I do not believe that it would be either appropriate or helpful to have a sunset provision of this sort. I can assure your Lordships that we will continue to work closely with the board and others on the development of the recall adjudicator model, making sure that it delivers the efficiencies and benefits that we expect while we maintain, as we are obliged to do, a robust and fair process for recalled prisoners.
Lord Lloyd of Berwick (CB)
My Lords, I do not know whether the Minister’s amendment has been called. I rise just to say that I certainly support the Government’s view, subject to the amendment proposed by the noble Lord, Lord Beecham. Anything that we can do to relieve the burden on the Parole Board is worth doing. I confirm, incidentally, that the Minister was quite right to say that this would not have been possible until the recent decision of the Supreme Court at the end of July. To that extent, I certainly support the Government.
I hope that I may be permitted to add one comment. We shall shortly be coming to Amendment 39 in my name, which would do far more to relieve the burden on the Parole Board than this proposal could ever do. Furthermore, it could be done without any cost at all, it could be done at once and it has been calculated that it would save the Government some £25 million a year. I hope that those who are interested in relieving the burden on the Parole Board will stay behind and take part on that amendment when it is called.
Lord Faulks
My Lords, we have had something of a trailer from the noble and learned Lord, Lord Lloyd, and I do not propose to respond in detail at this stage. For the sake of clarity, I might say that these amendments are about determinate sentence prisoners as opposed to indeterminate sentence prisoners, into which category IPP prisoners fall.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I want to make one very small point about the Government’s proposals, which is mainly to do with the name “recall adjudicator”. I understand that when a district judge goes to prison and hears cases and then gives an additional period in custody to prisoners who offended while in custody they are referred to as adjudicators. We will have adjudicators turning up at the prison gates, plus recall adjudicators. I wonder whether that is a sensible way to proceed. I raise that as a small point.
Lord Beecham
My Lords, I am grateful to the Minister for his typically clear exposition of the Government’s position—or some of the Government’s position. I thought there were some omissions in how he put matters. He adopted the Candide style of defending the Government, where everything is the best of all possible judicial worlds, but that might be a slightly flawed approach in the circumstances. He did not, for example, deal with the point of the Government’s own estimate of 1,000 extra prison places being required as a result of the changes in category. That was before the Osborn case, which will clearly increase the load further. It may be that the board’s original estimates were on the high side, but there can be no gainsaying the fact that the board would be required to conduct a great many more oral hearings than at present.
There may well be merit in the Government’s proposals for recall adjudicators, but I do not know why the Minister should be so hesitant about reviewing the position in a couple of years. If, indeed, he is confident that the system will work, there would be no problem. If, on the other hand, the system presents problems, it is as well to deal with them before too long a period of time passes. I should have thought that the sunset position in respect of the new organisation would be worth considering. The problem that the Government and the Parole Board face is, of course, the huge number of matters to be dealt with. The noble and learned Lord, Lord Lloyd of Berwick, will hopefully be making his contribution to reducing those numbers, shortly, perhaps. We will see what happens.
At the moment, what we seem to end up with is a two-tier system and it is not quite clear to me how the two organisations will be managed. The Parole Board exists as a board. Will the adjudicators, for example, be directly a board or will there be a separate board for that? All of this is up in the air. It is, frankly, not good enough for the Government to say that they have to rush this legislation through because of the Whiston case. That is not the case at all. They could have taken the time to consult, not only with those within the system but with those outside it, and not simply—though necessarily—with the House of Commons and your Lordships’ House, but with other interested parties. None has been given an opportunity to be consulted on a major change of this kind. I do not blame the Minister, but it is regrettable that the Government have acted in this rather typical way under the aegis of the present Lord Chancellor.
I will not divide the House on this matter. We hope that the system works. We would like the Government to consult widely, even now, on how the matters are to be taken forward, and to keep the matter under review. It may be that, for example, the Justice Select Committee will want to look at the operation of the new system after a period. However, that does not excuse the Government for bringing legislation to us at short notice, in a matter as important as this, without allowing for a proper examination. Having said that, I beg leave to withdraw the amendment.
Lord Ashton of Hyde
Lord Ashton of Hyde (Con)
My Lords, Amendments 2, 3 and 101 make minor changes to correct an inconsistency in the current legislation relating to driving bans imposed on those who are sentenced to, or are serving, custodial terms.
The Coroners and Justice Act 2009 created an as yet unimplemented provision that requires a court, when sentencing an offender to custody and banning the offender from driving, to take account of the time the offender will spend in custody when setting the length of the driving ban. This was a widely welcomed provision and was designed to avoid a driving ban expiring, or being significantly diminished, during the period the offender is in custody. It therefore requires the court to consider the impact of the time the offender will spend in custody and extend the driving ban by an appropriate amount. The issue that this proposed new clause and amendments address is caused by subsequent legislation—which applies only in England and Wales—that changed the process by which sentences are calculated and expressed by the court.
In short, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 took away from the courts the requirement to calculate, and deduct from the sentence, time spent on remand. This function is now carried out by the National Offender Management Service, which is best placed to calculate periods spent on remand. This change in process is, however, inconsistent with the provision introduced by the Coroners and Justice Act 2009 that required the court, in setting the appropriate driving ban, to take account of the sentence length after the remand time credit has been deducted.
To allow the court to impose the extended driving ban at the same time as it imposes the custodial term, this proposed new clause, and consequential amendments to Schedule 1, remove the requirement that the court consider the sentence length after the remand time is deducted. These amendments are therefore a small change to allow the court to impose a custodial term and a suitably extended driving ban at the same time. These amendments will, in due course, allow work to proceed to commence the provisions in the 2009 Act across the country, as soon as it is practical to do so.
Lord Beecham
My Lords, I welcome the noble Lord, Lord Ashton of Hyde—more Jekyll than Hyde, I would have thought—to the Dispatch Box on what I think is his first occasion and congratulate him on the way in which he has presented the amendments. I look forward to working with him until he starts speaking from this Dispatch Box next May.
There is nothing much more to be said because, on these amendments, there is no great concern on the part of the Opposition or anybody else. Nevertheless, I am sure that the House will join me in congratulating the noble Lord and echoing my anticipation of listening to many more contributions from him on this Bill. I dare say that the noble Lord, Lord Faulks, would welcome some help from him during the next few days, and I am sure that he will get that.
Lord Faulks
“( ) In subsection (5A) (inserted by section 14 of this Act)—
(a) for “to a prisoner” substitute “to—(a) a prisoner”, and(b) at the end insert “, or(b) a prisoner serving a sentence imposed under section 236A.””
“(c) include provision for the court to decline to make an electronic monitoring condition in any case where the court considers that it would be unjust, unnecessary or impractical to do so.”
Lord Marks of Henley-on-Thames (LD)
My Lords, Amendment 6 is an extremely modest amendment. Your Lordships will appreciate that Clause 7(3) permits the Secretary of State to make electronic monitoring conditions compulsory. I spoke on this issue in Committee, arguing that the imposition of an electronic monitoring condition should remain a matter for the court. I argued that the power to impose such a condition on a prisoner’s release on licence was, indeed, a desirable and sensible power, and that such a condition should be imposed where appropriate. However, I also argued that there may be circumstances in which it would be impractical or unnecessary to impose such a condition, for example where an offender was disabled or was to be hospitalised upon release.
In response to my amendment, my noble friend Lord Ahmad said that he was aware of the concerns that physical or mental health issues or possible practical problems might make compulsory electronic monitoring conditions unsuitable. My noble friend also gave, as an example of impracticality, a case where arrangements could not be made for recharging the battery in the tag—he was right to do so and there may be many other examples of impracticality. However, my noble friend contended that there was flexibility in the order-making power under the subsection that would enable these cases to be taken into account. I am concerned about that. My noble friend said that the Secretary of State would be able to,
“provide for cases in which the compulsory condition should not apply”.—[Official Report, 14/7/14; col. 402.]
I regret that I do not read the clause in that way. While there would, under subsection (3)(3)(b), be power to make provision in relation to persons selected on the basis of criteria specified in the order or on a sampling basis, that is not the same as enabling cases to be dealt with on a case-by-case basis.
The amendment would, quite simply, enable the Secretary of State to incorporate into the order a small element of judicial discretion, whereby, in a given case, a court could decline to make an electronic monitoring condition if it considered it would be unjust, unnecessary or impractical to do so. It would be for the Secretary of State to decide whether to incorporate such provision as I suggest in the order he makes. For that reason, I reiterate that my amendment is modest and limited. It is intended to be helpful. I beg to move.
Lord Ponsonby of Shulbrede
My Lords, I want to speak in favour of the amendment of the noble Lord, Lord Marks, but to slightly widen the point that he made. It is my understanding that if one gives a suspended sentence when sentencing and includes, as a part of that, a curfew, then the court is obliged to provide that the curfew is tagged. Very often that is appropriate, but not always. I have certainly dealt with cases where it was totally unnecessary to tag the offenders concerned and it just added to the cost of the whole sentence. There should be judicial discretion when giving tagged curfews in suspended sentences.
Lord Beecham
My Lords, the Bill extends electric monitoring, a procedure which thus far has proved problematic and extremely expensive, when you think of the problems with G4S and I think Serco in the contracts that they had. It extends the principle into new territory—namely, that of prisoners on licence. The policy in that respect has been criticised by the Chief Inspector of Prisons on the grounds that there is little evidence of absconding or committing further offences while prisoners are on licence. It would be interesting to hear the Minister’s comments on that. In passing, I hope that he is in a position to deny current rumours that the highly respected chief inspector is unlikely to be reappointed. He has a deserved reputation for the job that he has been carrying out in difficult circumstances for the last few years.
The impact assessment in support of this provision is somewhat feeble. It states:
“Though benefits likely to arise from the increased use of ELM have been identified, we are not able to quantify these benefits at this stage, as ELM is not yet in widespread use in England and Wales. As such, we are unable to calculate impact”.
In other words, this is an impact assessment with no impact whatever. As the following further statement confirms, the number of additional prison places cannot be accurately estimated. Let us reflect on the terrible overcrowding in our prisons now, with a shocking rise in the number of suicides, as we read at the weekend. What is the Government’s estimate of the likely impact of the implication of this new technology, in terms of both cost and of increasing the prison population?
The way in which the Government intend to progress the matter is, as usual, equally unsatisfactory, with the Secretary of State empowered to impose a code of practice without parliamentary scrutiny or approval—hence Amendment 8, which would require such parliamentary approval for the code of practice that the Government envisage. Perhaps the Minister could tell us what is happening about the code. In Committee, the then Minister, the noble Lord, Lord Ahmad, who has escaped or is on licence to another department, said that a revised code would be issued to promote transparency in relation to outsourced services. What is happening about this? What consultations have taken place, and with whom? Will there be reports on the outcome of those consultations?
Amendment 7 would make contractors subject to the provisions of the Freedom of Information Act in the same way as public authorities. It seems absurd that, in the world of the Ministry of Justice alone, Her Majesty’s prisons are subject to FOI requirements while private prisons are not. Given that we are talking about encroachments on the liberty of the individual—and they may well be justified in many cases—it is surely necessary to extend the protection of the FOI regime to this area. I should make it clear that we are not against electronic monitoring, as it clearly has a place, but it must be technically effective and cost effective, especially in the light of the previous experience, with the contracts that went so badly awry and led to large sums of money having to be reclaimed from the contractors, and applied sensibly. We have very little to go on at the moment in terms of how the new scheme would work.
Lord Faulks
My Lords, I am grateful to all noble Lords who have taken part in this debate. Perhaps I should begin by suggesting that Amendment 6 is, perhaps, not as well conceived as it might be, because it would provide for the court to decline to impose an electronic monitoring condition in certain cases. However, the court has no role in setting conditions for offenders released from custody on to licence after serving the required part of their sentence. This is a matter for the Secretary of State, through the governor. The parole board also makes recommendations as to licence conditions when the offender is subject to discretionary release.
In the case of an electronic monitoring condition imposed by virtue of an order made under proposed new Section 62A of the Criminal Justice and Court Services Act 2000, as inserted by Clause 7, this is solely a matter for the Secretary of State, through the governor. The amendment would actually have no effect. However, I understand the concern behind the amendment, which is that offenders should not be made subject to compulsory electronic monitoring when this is unsuitable for some reason, or when it is impractical. We recognise that there will be offenders who are unsuitable for compulsory electronic monitoring. For example, this may be because of physical or mental health issues, or because of a practical problem, such as not being able to make arrangements for the offender to recharge the battery in the tag.
These issues are, we suggest, already dealt with by the clause. The order-making power specifies that the Secretary of State may provide for cases in which the compulsory condition should not apply. I appreciate that this may not be immediately obvious from a reading of the clause, but the Explanatory Notes—although I take the comments of the noble Lord, Lord Beecham, about their inadequacy in some respects, and I shall come on to deal with that—are helpful in this regard, as indeed was my noble friend Lord Ahmad when he spoke on the matter in Committee.
Lord Beecham
Could the Minister indicate whether there will be consultation on those proposals, and with whom?
Lord Faulks
I hope to come to that in a moment.
As was explained in Committee, the code will not only encourage the use and enforcement of contractual provisions to ensure that current FoI obligations about information held on a contracting authority’s behalf are met but will promote the voluntary provision of other information where this would help to provide a more meaningful response to requests. The success of this approach will, as was also made clear in Committee, be monitored by both the Government and the Information Commissioner. If it does not achieve sufficient transparency, we will consider what other steps, including the possible formal extension of FoI to contractors, are required. Once the code of practice is issued, it is important that we give it the opportunity to prove its worth before deciding whether further measures are necessary. I therefore invite noble Lords not to press Amendments 7 and 120.
We also debated Amendment 8 in Committee, and I sought then to explain why it is not appropriate. We agree that the code of practice is a necessary and important document. It is intended to make sure that the necessary safeguards are in place for the proper management of the data gathered by electronic monitoring conditions. It will, of course, comply with the Data Protection Act. However, it is for operational purposes and will not introduce any new legal requirements. That is why we do not propose to agree its content through parliamentary procedure.
I should remind the House that it passed the provisions in the Crime and Courts Act 2013 that inserted new Section 215A into the Criminal Justice Act 2003. This also provides for a code of practice relating to the processing of data from electronic monitoring and is linked to provisions allowing location monitoring of offenders as a community requirement. This provision was approved by Parliament with no requirement for the code to be subject to affirmative secondary legislation. The amendment would, therefore, be inconsistent with the provisions already approved for a code of practice.
I should perhaps add a little more about the scrutiny that has been undertaken in relation to electronic monitoring and the approach to contract management that has informed the new contracts. Within the MoJ, and specific to electronic monitoring, this has meant the new contracts being drafted and let with key elements such as open-book accounting being critical. Accountability for contract management will be much clearer, with contract owners called regularly to account for their detailed knowledge of the contracts and their operational assurance that services are properly assured and audited.
On the amendment, I can only reiterate the assurances that I have given previously. We have committed to consultation on the code of practice, which will include consulting the Information Commissioner. I also confirm that the code of practice will be published. I do not have, at the moment, a specific date for publication of the code of practice but we hope to issue guidance to the standard contract clause by the end of 2014. If I receive further information on the probable date for the code of practice, I of course undertake to inform the House, and certainly the noble Lord, Lord Beecham.
I hope that I have satisfied the House on these issues of concern. Electronic monitoring would naturally be a matter of concern, but it is also a valuable tool in the detection and prevention of crime. I therefore ask the noble Lord to withdraw his amendment.
Lord Marks of Henley-on-Thames
My Lords, in relation to Amendment 6, I accept my noble friend’s point that it is for the Secretary of State rather than the court to deal with electronic monitoring conditions. He is right about that. He was also right to recognise the concerns as to whether such conditions could be imposed inappropriately or where unnecessary, unjust or impractical.
I understand him to have given an assurance that he understands that the power to make an order which makes,
“provision by reference to whether a person specified in the order is satisfied of a matter”,
enables the order to ensure that the person is satisfied that it would not be impractical to impose such an electronic monitoring condition. On that basis, I join in his observation that it is not entirely clear, even though it may be clear from the Explanatory Notes, which of course form no part of the statute. Those who are left with the difficult task of unravelling this arcane piece of drafting will no doubt be able to read the report of that assurance. On that basis, I beg leave to withdraw this amendment.
Lord Faulks
“Recall adjudicators
(1) After section 239 of the Criminal Justice Act 2003 insert—
“239A Recall adjudicators
(1) In this Chapter, “recall adjudicator” means a person for the time being appointed as such by the Secretary of State.
(2) The Secretary of State may appoint the Board or another person.
(3) The Secretary of State may, in particular, appoint a person—
(a) to carry out all or only some of the functions of a recall adjudicator;(b) to carry out such functions only in relation to a specified area;(c) to carry out such functions only in relation to a specified description of case.(4) The Secretary of State may make rules with respect to the proceedings of recall adjudicators.
(5) The Secretary of State may appoint a recall adjudicator (referred to in this section as “the chief recall adjudicator”) to oversee the activities of recall adjudicators.
(6) The chief recall adjudicator may, in particular—
(a) issue guidance with respect to the carrying out of the functions of recall adjudicators, and(b) make recommendations to the Secretary of State about the termination of appointments under this section.(7) Before issuing guidance the chief recall adjudicator must consult the recall adjudicators and the Secretary of State.
(8) A recall adjudicator must carry out his or her functions in accordance with guidance issued from time to time by the chief recall adjudicator.
(9) The Secretary of State may make payments to a recall adjudicator.
(10) A person is not to be regarded as acting on behalf of the Crown, or as enjoying any status, immunity or privilege of the Crown, by virtue of an appointment under this section.”
(2) The amendments of Chapter 6 of Part 12 of the Criminal Justice Act 2003 (release etc of fixed-term prisoners) in section 8 of this Act confer functions on recall adjudicators in connection with the release of fixed-term prisoners following their recall.
(3) Schedule (Recall adjudicators: further provision) to this Act contains further provision relating to recall adjudicators.”
Lord Faulks
(i) ”
(ii) for “the Board” substitute “a recall adjudicator”,”
“( ) in subsection (4), for “the Board” substitute “a recall adjudicator”,”
(i) ”
(ii) for “the Board” substitute “a recall adjudicator”,”
“( ) in subsection (3), for “The Board” substitute “A recall adjudicator”,”
(i) for “Board” substitute “recall adjudicator”, and(ii) ”
Lord Faulks
Lord Lloyd of Berwick
“(a) after subsection (2) insert—“(2A) Without prejudice to the powers of the Secretary of State to change the release test under this section, the Parole Board shall direct the release on licence of prisoners serving indeterminate sentences with a tariff of less than 2 years imposed before 2008 when the Criminal Justice Act 2003 was amended.”;”
Lord Lloyd of Berwick
My Lords, this amendment relates to a group of 650 prisoners serving indeterminate sentences for the protection of the public under Section 225 of the Criminal Justice Act 2003. They are part of a much larger group of over 5,000 prisoners serving indeterminate sentences under that section. However, this amendment does not affect the larger group.
As your Lordships know, the IPP sentence has now been abolished. Mr Blunkett, who introduced the sentence in 2003, has accepted that although the idea was sound the implementation was disastrous—for which, I believe, he has apologised, a rare thing in politics. The problems became apparent very early on. As a result, Section 225 was amended in 2008. The amendment affected in two ways the group of prisoners with whom I am particularly concerned. First, the indeterminate sentence ceased to be available for those with a tariff of less than two years. Secondly, whereas the court was bound to assume under the provisions of the Act that the defendant was dangerous before 2008, that assumption ceased to apply after 2008. It was for the judge thereafter to decide in each case whether or not to impose an indeterminate sentence.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, in over half a century in the law, inevitably one comes across a number of injustices in individual cases of one sort or another. However, I think I can fairly say that I have never come across an injustice as plain and persistent as this on an institutionalised basis, because that is what this is, and it grows worse with every passing year.
In order to understand how truly shocking it is, it is necessary to understand three basic matters. First, preventive detention, which IPPs essentially amount to—incarcerating people on an indefinite basis, not as punishment for what they have done but to guard against the risk that they may cause harm if they are set at liberty—is basically inimical to our sense of fairness. It is true that we accept that discretionary life sentences can be passed in the cases of the most serious and dangerous offenders, but that is really a very far cry from IPPs, with which we are concerned here, which extended to no fewer than 153 specified different crimes. They were, of course, as has been explained, abolished in 2012 once the basic unfairnesses finally came to be recognised.
Lord Ramsbotham (CB)
My Lords, I pay tribute to my noble and leaned friend, Lord Lloyd, for his tireless pursuit of this particular issue, which amounts to nothing less than a stain on our national reputation for observing the rule of law. More than that, as a former Chief Inspector of Prisons, I am most surprised that the Secretary of State, who is faced with enormous financial problems in the management of his prisons, should not be seeking every possible way of getting out of the prisons the people who should not be there. That is an avoidable expense, and I have said this over and over again.
Furthermore, as the Minister knows, the prisons do not have sufficient resources to provide the means by which these people can prove their right to be released to the Parole Board. Only last year, I reported to the House a most tragic case of an IPP prisoner who had already been in prison for more than three years after his tariff and was sent to a prison where he would receive the course that he required in order to satisfy the Parole Board, only to be told that not only did that prison not have the course, but it was not intending to do so for two years; so he committed suicide. He is not the only IPP prisoner to have taken his own life because of his despair of the Government exercising their obligations, which have been so clearly deployed by the noble and learned Lord, and observing this country’s reputation for observation of the rule of law.
Lord Hurd of Westwell (Con)
My Lords, this House is quite accustomed to criminal justice legislation and in debates of this kind looks inevitably to those who have genuine experience of the legal profession to take the lead. Every now and then, however, an issue comes up that requires some contribution from people like the noble Lord, Lord Ramsbotham, and myself who, although we are not trained lawyers and have never practised law, nevertheless in the course of our careers have come across, and have been made to come across, cases where injustice appears to have been done. This is turning into such a debate.
It is hard to unpick the excellent demonstration of the facts produced by the noble and learned Lord, Lord Lloyd of Berwick. We are left with those facts, but we have to find a remedy. The noble and learned Lord has set out in his amendment the only remedy that he thinks is to hand: to take back into Parliament, into our own hands, the permission—the discretion— which is given in the legislation to the Lord Chancellor, but which he repeatedly refuses to exercise, although the arguments for exercising that discretion have been made over and over again and are very strong indeed.
Therefore, I simply come in to say, as someone who is not a lawyer but who has been forced by his career to take an active interest in the effect of the law on individuals, that I see in this an example—I would say a flagrant one—of injustice being permitted, indeed committed, by those who do not intend it. Nevertheless, the law as proposed would have that effect. I therefore very much support the noble and learned Lord’s amendment and the arguments which have been put in its favour from all sides of the House.
Lord Carlile of Berriew (LD)
My Lords, we have heard three very powerful speeches from noble Lords—and noble and learned Lords in two cases—on the Cross Benches, and I anticipate that we are about to hear another one in a moment. We also heard a powerful intervention from a former Home Secretary, who is one of the most admired figures in British politics in the last 40 years. I cannot improve on what they have said, and will not try to do so. All I want to say, speaking as I do from one of the political Benches in this House, is that this is an issue upon which those of us who sit on political Benches are entitled to, and should, exercise our consciences. If we engage our consciences, the extraordinary speech from the noble and learned Lord, Lord Lloyd of Berwick, completely wins the day. I therefore hope that noble friends, as well as those elsewhere in the House, will see that if this matter divides the House, the only course they can take is to support this amendment.
Lord Phillips of Worth Matravers (CB)
My Lords, the unhappy cohort of prisoners to which this amendment relates linger in prison years after they have completed terms of imprisonment that reflect their culpability. They linger because of a statutory presumption that they are dangerous, which is discredited, has been repealed, and is surely, in the cases of many of them, unjustified. I find it impossible to envisage any credible reason why the Secretary of State has not exercised the power that he has been given to procure their release. His inertia belies the title of Secretary of State for Justice. This amendment cries out for the support of the House.
Lord Wigley (PC)
My Lords, I apologise for having missed the first two minutes of the speech of the noble and learned Lord, Lord Lloyd, in moving this amendment. As he and the Minister may well be aware, this subject has been exercised me considerably over many months now, having seen cases arising in Wales, and we had a debate on this matter earlier this year. I pay tribute to the way in which the noble and learned Lord, Lord Lloyd, has persevered with this important battle, by now over many months and years. The facts that he has put before the House this afternoon should most certainly be of concern to anyone who takes an interest in matters of law and who is concerned about the good name of the UK’s judicial system. The case is valid for the whole cohort, but I very much hope that, at least in the limited number of instances he has quoted, where very little risk is at stake, there can be no possible argument, even from the Government’s own standpoint, for not making progress on this matter. I follow the plea made by the noble Lord, Lord Carlile, that noble Lords of all parties across this House take this issue to heart. I very much hope that colleagues on the Labour Benches will stand up and be counted on this matter.
The Lord Bishop of Rochester
My Lords, I stand here as someone who does not share the professional knowledge that some have shown very clearly in this debate; their arguments were clearly and well made. The simple argument from fairness as regards one cohort of prisoners against another has also been referred to, which is also a powerful argument. A very pragmatic argument has also been alluded to, which is that we have within the prison estate this group of prisoners who have good reason to feel unhappy with their lot. That cannot but make their management more difficult for those who are charged with managing them within the prison estate. Therefore, pragmatic arguments as well as what you might call moral and legal arguments are relevant to this case. I am one of those who would wish to support this amendment. Not only would it right a wrong, but it would lead to an easing of the burdens upon those who have responsibilities for the management of our prisons.
Lord Woolf
My Lords, I pay credit to the speeches that have already been made from all sides of the House, including, I am glad to say, from those Members of this House who are entitled to be known not only as “noble Lords” but as “noble and learned Lords”. I do not conceive that anyone would think that I was not in complete agreement with every one of their speeches. However, just in case that might not be the situation, I say most emphatically that I have never heard such an indictment of our justice system as I have listened to this afternoon.
Lord Dear (CB)
My Lords, coming from a background in policing many years ago, it might be thought by those who indulge in stereotypes that I would be a lone voice advocating that we should get involved in what is sometimes called “lock them up and lose the key”. I stand in your Lordships’ House today to say that I fully accord with everything that has been said. The case was admirably laid out by the noble and learned Lord, Lord Lloyd of Berwick, and other noble and learned Lords in this House. I, too, agree with everything that was said, and if the House is invited to divide, I shall vote with the amendment.
Lord Clinton-Davis (Lab)
My Lords, I fully support the argument adduced by the noble and learned Lord, Lord Lloyd. It goes without saying that we are entitled to remove a stain—and I say that advisedly—on our legal system. I will not detain the House for long, but I fully support what the noble and learned Lord, Lord Lloyd, has said, which has been supported by so many other Peers.
Lord Beecham
My Lords, I join other noble Lords in paying particular tribute to the noble and learned Lord, Lord Lloyd, who has been indefatigable in pursuit of correcting an injustice. I will say at the outset that while I agree from these Benches that action needs to be taken to redress the situation, I will not be going through the Lobby with him, but nor will I, if the Government resist this amendment, go through the government Lobby. The problem is that the amendment may extend to people within the category, most of whom should certainly by now have been released, but who nevertheless remain, on proper assessment, people with whom there would be a risk if they were released. I submit that the correct procedure is for the Lord Chancellor and Secretary of State to exercise the power that is clearly given to him in the legislation.
One of the issues that has so troubled Members of this House and many outside is the failure of successive Governments—and I am afraid that it was true of the Labour Government—to provide the necessary resources which would enable people in serving these sentences to qualify for release. I am minded to refer to a letter which I received a month ago—one which other Members of your Lordships’ House may also have received. It is not from somebody who has actually been imprisoned for as long as those who are the subject of the amendment, but it is nevertheless a very telling example of what is still happening as a result of that failure to provide the resources, and shows the need for the system to be robust in examining the cases. I am not sure whether the writer of this letter would want me to quote their name or indeed the name of the prisoner on whose behalf the letter was written, but it will give a flavour of the situation, which is much worse for those who have been inside prison for a longer period.
The person in question, the correspondent tells me, was charged with attempted actual bodily harm and grievous bodily harm with intent, and was given a three-year IPP. He is now a year and a half over tariff, which is much less than those who would be covered by the amendment. In addition to the stress of not knowing how long his sentence will continue, during his incarceration he has suffered the loss of his wife and mother, and has been diagnosed with lupus and is obviously on medication for this. He has been an enhanced prisoner virtually throughout his sentence, with no reprimands, sanctions or IEP warnings. He is the healthcare representative for his wing as well as the violence reduction and older persons’ representative. He has undertaken every course advised by the authorities and completed his sentence plan. Together with fellow IPP prisoners, he now needs to know what further action they can take to secure their release date. Just knowing their official release date would give both them and their families something on which to focus. Having a definite date when their future will start will enable them to put their past troubles behind them. To have no end to their sentence is surely unacceptable in this day and age, and in fact is the reason that this whole system was deemed out of date and not viable.
That is a very clear illustration and telling indictment of the present situation. It has to be corrected. For the reasons already given, I do not believe that the noble and learned Lord’s formulation quite meets those requirements or deals with—
Lord Wigley
If this formulation does not meet the requirements, why has the Labour Party not put forward its own amendment to do so?
Lord Beecham
Because the Act to which we have already referred gives the Secretary of State the power to do exactly what is required. He should be exercising that power, and that is what we would expect him to do.
We share the concern of all Members of your Lordships’ House, and the deep anxiety voiced about what is happening to people who serve much longer sentences than the person whose plight is laid out in this correspondence. We call upon the Government to use the power that they rightly conferred upon themselves just two years ago. In that way the matter can be resolved. Of the 650 prisoners, while some are still deemed to be at high risk, many are already deemed to be at low risk and on that account very likely to be released. As other noble Lords have pointed out, that will free up prison spaces and potentially reduce the cost to the public purse, both of which are highly desirable objectives. Therefore I hope the Minister can give an indication that action will be taken—if not necessarily strictly along the lines that the noble and learned Lord, Lord Lloyd, has proposed then in some other way—to deal with the appalling situation affecting too many people which has accumulated over the years.
Lord Faulks
My Lords, this has been an excellent and very well informed debate, with contributions from sources well versed in the law and experienced in criminal law, and sources who had occasion to come into contact with the law and its implications. I am grateful for all those contributions, many of which were extremely economical—I congratulate noble Lords on their restraint in allowing the House to proceed—but powerful.
We return to this subject of IPP prisoners who remain in prison despite the fact that the sentence has now been abolished and may not be imposed on offenders convicted after December 2012. We debated a very similar amendment at length in Committee so I do not intend to rehearse the entire debate we had then. Noble Lords are well aware of the Government’s position and we do not think it would be right or appropriate retrospectively to alter IPP sentences that had been lawfully imposed prior to the sentence’s abolition, particularly because these sentences were imposed with public protection issues in mind. However, I recognise, as many noble Lords have said, that fairness—an elusive concept though that is—should be at the forefront in considering these issues, as should the equally elusive concept of justice that is vital in considering issues of this sort. I am also painfully aware of the implications of keeping any prisoner one day longer than he or she ought to be kept in prison because of the expense involved, expense that we can ill afford, but the Secretary of State has to balance concepts of fairness and justice with his duty to protect the public.
Perhaps I may make one or two observations about the history, which has been summarised by noble Lords in the course of this debate. While echoing the worthwhile tributes paid to the noble and learned Lord, Lord Lloyd, for his tenacity in this area, I cannot quite agree with his assessment of the disparity in position between short-tariff IPP offenders sentenced before the 2008 reforms and those sentenced afterwards. It is not the case that, prior to 2008, courts were without any discretion in imposing IPP sentences. It was in the court’s discretion to judge whether the offender met the high risk threshold set out in the 2003 Act—did he present a significant risk of serious harm? The presumption that he presented such a risk if he had committed a previous Schedule 15 offence was a rebuttable presumption, and the court was free to disregard it if it was not a reasonable view in the individual case. I do not deny that, where they found the offender to meet the dangerousness threshold, courts were indeed obliged to impose IPPs on eligible offenders, and that was plainly Parliament’s intention.
I should also stress that it remained possible to receive an IPP with a lower tariff than two years until IPPs were abolished by this Conservative-led Government by the LASPO Act 2012 where the offender had a serious previous conviction, and in fact a number continued to get short-tariff IPPs. It is likely that some of those sentenced to IPPs with short tariffs between 2005 and 2008 would have remained eligible for an IPP, and perhaps received an IPP after the 2008 reforms. I cannot agree, therefore, that this group of IPP prisoners can be presumed to be less dangerous than other IPP prisoners.
As I have said before, it is right that offenders serving indeterminate sentences of imprisonment for public protection—a species of preventive detention, as the noble and learned Lord, Lord Brown, said—should continue to be detained post tariff if their detention is necessary for the protection of the public and they are therefore not safe to release. The noble and learned Lord, Lord Lloyd, and a few others have seen an analysis of management information, prepared last year, relating to the situation of IPP prisoners who were sentenced prior to July 2008 with tariffs of under two years, who remained in prison and whose tariff had expired.
It is true that initially the cost of providing the information, which has been accurately summarised by the noble and learned Lord, was considered too high but, such was his tenacity and, as I understand it, such was the respect that the Ministry of Justice had for him, the information was provided and has been summarised by the noble and learned Lord. The position is that my colleague the Prisons Minister, Andrews Selous, has agreed with the House authorities that the information can be lodged in the House Library. It will take one week for this to appear but I confirm that he has requested that it be put in the Library. However, I can also confirm that the figures that the noble and learned Lord announced were accurate, so they have informed the debate in terms of the numbers and the periods in prison.
Lord Woolf
Before the noble Lord sits down, I wonder whether he can help me on one matter. Does he accept that a shortage of resources, either in the Parole Board or within the Prison Service, in providing courses for persons in the category that my noble and learned friend Lord Lloyd has identified has caused an unintended consequence in that—possibly; one cannot say it with certainty—these prisoners have been detained for far longer than they should have been, and that, equally, there is going to be further delay before their cases can be fully considered?
Lord Faulks
I accept that there have been certain delays in providing all the courses that might have been provided. Indeed, that has been the subject of quite widespread litigation, when individual prisoners have received compensation. Sometimes the compensation has been a higher figure if the court has thought that it would have made a difference and sometimes a lower figure if the court has thought that it would have made no difference. However, the test remains the same, regardless of cases, as I said a little earlier. The Parole Board has of course had a number of pressures, as I described earlier, not least caused by the Osborn, Booth and Reilly case. As I also indicated, increased resources have been provided financially, and there is a general awareness in the Parole Board—an arm’s-length body but under the Ministry of Justice—of the need to provide hearings as soon as practicable. However, I have responded by pointing out the fact that all these prisoners have had their cases reviewed by the Parole Board, and we believe that the system is working satisfactorily.
Lord Lloyd of Berwick
My Lords, I regret to say that I do not find the Minister’s reply satisfactory in any way, no more than it was on the previous occasion. I do not intend to deal with any of his arguments, save just to mention one. He criticised the amendment on the grounds that we would be bypassing the discretion of the Lord Chancellor, but that is the whole point of the amendment. The Lord Chancellor has declined to exercise that discretion, so it is up to us now to exercise it in place of him. That is the purpose of this amendment.
The amendment has been supported in the strongest possible terms—indeed, some of the strongest terms that I have ever heard in this House—by lawyers and non-lawyers alike. I particularly value the support of the non-lawyers. The official position of the Opposition is that they cannot support the amendment but they are not opposing it. I hope that a great number of those who are sitting on the Opposition Benches will support the amendment for the reasons that have been so clearly explained by others. Nevertheless, I must express my gratitude for the fact that the Official Opposition are not opposing it.
There is just one other thing that needs to be said. From the many letters that I and others have received, both from prisoners and from their families, I know that this debate is being followed by those who will be most affected by the result. They will carefully read what we have said. They are looking to us in this House to do something for them, and I hope that we will not let them down. I wish to test the opinion of the House.
Lord Faulks
“( ) In section 250 (licence conditions), for subsection (5A) substitute—
“(5A) Subsection (5B) applies to a licence granted, either on initial release or after recall to prison, to a prisoner serving an extended sentence imposed under section 226A or 226B, other than a sentence that meets the conditions in section 246A(2) (release without direction of the Board).
(5B) The Secretary of State must not—
(a) include a condition referred to in subsection (4)(b)(ii) in the licence, either on release or subsequently, or(b) vary or cancel any such condition included in the licence,unless the Board directs the Secretary of State to do so.”( ) In section 260(2B) (early removal from prison of extended sentence prisoners liable to removal from United Kingdom), for “section 246A” substitute “this Chapter”.”
Lord Beecham
“Stop and search of children below the age of 10
In section 1 of the Police and Criminal Evidence Act 1984 (power of constable to stop and search persons, vehicles etc.), after subsection (2) insert—“(2A) Where the person is below 10 years of age, an appropriate adult must be present before the search may be undertaken.””
Lord Beecham
My Lords, this amendment addresses the problem of stopping and searching children below the age of 10 and requires an appropriate adult to be present before the search is undertaken.
As I said in Committee, the amendment stems from the report of the All-Party Parliamentary Group on Children chaired by my noble friend Lady Massey. In reply to a request for information about stop and search, the group was told that between 2009 and 2013, 1,136 children under the age of 10 were subjected to the process in 22 police force areas. The figures are something of an underestimate because the Met’s record did not include 2009 and 2011, and other forces did not supply information. It is noteworthy and somewhat surprising that the Sussex police force apparently conducted 454 of those searches, which is a high proportion of the total number. That suggests either that there are some particular problems in that force’s area, or, perhaps more probably, that recording elsewhere is not reliable, so the national figure is probably understated.
It is regrettably apparent that there is no complete picture of the number of children under 10 who have been subjected to this procedure, such that the scale of its use can really only be estimated. In Scotland, 72 children of seven years or under were stopped and searched. Some forces make an effort to take a child home before searching, but they were unable to say how many looked-after children were subject to the procedure, and only 20 police forces—around half—had separate custody facilities for children in the police stations.
The all-party group very reasonably suggested that data should be collected in relation to ethnicity and on other aspects, noting that among the forces that supplied data on the ethnicity of under-18s, 41% were black and Asian—a disproportionately high quotient. It was noted that some forces do not even record the names and addresses of these children or their dates of birth.
The Home Office has reviewed stop and search powers in general. I congratulate the Home Secretary on the steps taken in that respect, but specific guidance on this issue appears to be lacking. In his reply in Committee the Minister appeared to be somewhat complacent, if I may say so, when he stated that existing provisions were adequate. He referred to the safeguards already in place for stop and search powers, stating that the police were obliged,
“to provide key information to the person being searched about the purpose of the search and the grounds for searching, and ensuring that the person subject to the search understands the procedure”.—[Official Report, 14/7/14; col. 471.]
We are talking about children under the age of 10. How realistic is that assurance in the circumstances? As I said, in Scotland and possibly other force areas, children under seven were subjected to the procedure.
The all-party group made a number of recommendations, including that an annual review of stop and search powers should assess the proportionality of stop and searches in relation to age, including the stopping and searching of children under 10. It recommends that the PACE code should be revised to require the recording of the date of birth of children and young people on stop-and-search forms and central recording systems, with specific guidance on carrying out the procedure, including advice on safeguarding and child protection, and that steps should be taken to protect vulnerable children—for example, those in care or at risk of abuse.
It said that the annual review should assess the proportionality of stop and searches of under-18s in relation to ethnicity; that the Home Office and the DfE should work with police to consider how best to monitor the rates of search of looked-after children; and that all newly built custody suites should have a separate area for children and young people, with the Home Office directing forces to consider the allocation of areas to be used separately for children and young people within existing facilities. Finally, it suggested that the Home Office should work with ACPO to share good practice in developing juvenile custody facilities.
Lord Faulks
My Lords, I am grateful to the noble Lord, Lord Beecham, for setting out his amendment so clearly. What lies behind it is wholly understandable. However, it must be put in the context of the significant programme of reforms that the Government have introduced on the police use of stop and search, to which the noble Lord did make reference.
Noble Lords will be aware that on 30 April, the Home Secretary announced a comprehensive package of measures to reform the way that stop and search is used. The measures, some of which were launched on 26 August, will ensure that the powers are used fairly, effectively, and in a way that encourages community confidence. These measures will impact positively on all sections of the community, including children. The Government are highly sensitive to the need to ensure that sufficient safeguards are in place so that the public can trust the police to use all their powers appropriately. The Police and Criminal Evidence Act and its codes of practice have robust safeguards that ensure consistency, transparency and rigour in the way in which stop and search is used by the police.
The use of stop and search has reduced significantly under this Government. However, these powers are vital in the fight against crime and the police must be able to act promptly should they have a reasonable suspicion that a person is carrying an unlawful item. It is a sad fact that in some areas it is quite common for children under the age of criminal responsibility to be used by older children and adults to carry drugs and weapons and, in some cases, firearms for the criminal benefit of others, either in the hope that police may not suspect that they are being used to carry the items or in the knowledge that if they are suspected of being couriers or are stopped and searched, they cannot be arrested or prosecuted for any criminal offence because they are below the age of criminal responsibility.
There are also operational difficulties. How does a police officer judge a child’s age with any precision? What do the police do while waiting for the “appropriate adult” referred to in the amendment to arrive? There are safety issues, too. What if the child has been given a gun or a knife by older gang members? One knows how easy it is for older gang members to manipulate younger ones.
These issues need mature consideration. That is why I maintain what I said in Committee, that although we remain open to revising or improving—if appropriate—the very considerable steps we have taken to improve stop and search powers, we will await the final report at the end of this month and take notice of any recommendation to change the operational procedures. However, I am sure the noble Lord and the House will bear in mind the significant reform package that we have already brought before the House.
I will me give a further example of the operational difficulties that might be caused if this amendment were to find its way on to the statute book. Imagine that a fight breaks out between two gangs of youths and the police have reasonable suspicions that weapons have been concealed. If the police were then required to wait, this could prevent them from acting in a case where there is an immediate issue of public safety involved. That could be difficult, as I am sure the House will understand.
There are already important safeguards attached to Section 1 stop and searches, which were outlined when the amendment was last debated on 14 July. They apply to anyone who is stopped and searched, regardless of age. Furthermore—this is worth stressing—Section 11 of the Children Act 2004 places the police under an obligation to make arrangements to safeguard and promote the welfare of children when exercising their functions.
This is stop and search—which is, one hopes, a fleeting encounter to, if necessary, disable somebody who the police reasonably think has something that they need to have removed from their possession. However, in response to the noble Lord’s understandable concern, let me stress that the Government have made a priority of ensuring that stop and search should be used fairly, so that the police target this power when they have reasonable suspicions that a person is carrying an unlawful item. In those situations, where there is a risk to public safety, we suggest that it is right that the power to stop and search an individual is not unduly restricted, regardless of age.
Unfortunately, it is not entirely a creature of a bygone age, as the noble Lord suggests, in harking back to Oliver Twist or something of that sort. There is a case that, unfortunately, young children are used in the way that I have described. The requirement to wait until an “appropriate adult” turns up is difficult, and unnecessary in light of the safeguards that exist to protect the welfare of children under the age of criminal responsibility.
While I understand the noble Lord’s concern, and the initial hesitation that anybody would have with a child under 10 being involved in the criminal justice system, we suggest that there is reason for this power to exist, appropriately circumscribed in the way that I have attempted to describe. For those reasons I ask the noble Lord to withdraw the amendment.
Lord Beecham
My Lords, I am grateful for the Minister’s response. I shall not ask the House to divide on the amendment but I will make a couple of suggestions to him. First, in the mean time, the proper recording of events—ascertaining names, addresses and dates of birth—should become pro forma. It is surprising that it is not yet universal. It would be a relatively straightforward matter. I presume that it would be for the Home Office to direct the police authorities, but no doubt words ought to be had with ministerial colleagues about that. Secondly, given that Scotland has now changed the law, I suggest that in a year or 18 months, whichever Government are in office at that time—I hope that it might be a different one—could look at the Scottish experience. I take the Minister’s point but it is more relevant to the stopping than to the searching. We agree that it necessary for the police to stop, but the question is about the search part of it. Given that Scotland has made a change in respect of the age of 12, I would have thought that its experience, within a relatively short period, would be relevant here. If the Minister would be good enough to give an undertaking—if he or his party are still in office at that point—that that would be put into force, it would be a welcome concession. I hope that an incoming Government from our party would take the same position. In the circumstances, I beg leave to withdraw the amendment.
Baroness Meacher
Baroness Meacher (CB)
My Lords, I shall speak also to Amendment 43A, which takes the place of Amendment 43 on the Marshalled List. The intention was to have withdrawn Amendments 45 and 46, so I shall not refer to those two amendments today.
I must apologise to the Minister and your Lordships for coming into this debate rather late in the day. The noble Baroness, Lady Finlay, who I was going to say is not in her place but who now is, is the person who has raised the concerns about Clause 19 at earlier stages and had a very helpful meeting with the Minister.
Clause 19 introduces a new offence of ill-treatment or wilful neglect by care workers, including doctors and nurses. A similar offence for care providers is introduced in Clause 20. I have less of a problem with an offence of ill-treatment—it seems to me that that is a proactive act which is a little bit clearer—but I have no doubt that an offence of wilful neglect of an individual would lead to criminal investigations of good clinicians simply because patients may believe that they should have had medications or treatments which were not appropriate at the time or may have been judged not appropriate by the relevant clinician.
Our amendments would raise the bar for such offences for individual doctors and nurses by introducing the requirement that the care worker commits an offence only if their activities amount to a gross breach of a relevant duty of care owed to the individual who is allegedly ill-treated or neglected. Of course, I understand the history behind Clause 19 and the fact that offences already exist for ill-treatment and wilful neglect of children in certain circumstances and of adults who lack capacity. I suggest that such situations are rather different from those of competent adults in, for example, an acute hospital or GP surgery. My concern is that we have lost sight of proportionality here, and the consequences will be disastrous, both for good, conscientious clinicians and for the NHS, with its impending £30 billion funding gap.
Of course, none of us can accept ill-treatment or wilful neglect of patients—and I will come back to that in a while. I wonder whether those in the Government who designed this new offence for individual clinicians have really appreciated the devastating effect on conscientious care workers if they find themselves under criminal investigation when it is clear that they have used their clinical judgment in good faith or done their very best with the resources available to them.
The Government have stated that the offences are intended to deal only with the most serious incidents—that has to be right. However, the offence is broadly drafted and the police will have an obligation to investigate cases of alleged neglect unless it is absolutely clear at the outset that there is no case to answer. Almost any decision could potentially be investigated for wilful neglect, even though, later, the vast majority and probably the whole lot would not go all the way to prosecution and a guilty verdict. The question of proportionality is therefore highly relevant.
Criminal investigations are incredibly disruptive, time-consuming and costly. The potential cost to the NHS of disproportionate criminal investigations is impossible to estimate accurately, but my main concern is the unwarranted distress and catastrophic nightmare that such investigations would cause for the conscientious worker—and the vast majority facing investigation probably would be conscientious workers. It is not acceptable for the Government to say that it would be up to prosecutors not to prosecute other than in serious cases. It would be far too late at that stage to prevent the damage. Doctors and nurses are likely to find themselves suspended during a criminal investigation—it is very different from a disciplinary investigation. Their self-respect, and professional and public respect, will be in ruins. Huge damage will have been done before the matter comes anywhere near prosecutors. Does the Minister agree that the problem with Clause 19 is the investigations rather than, later down the line, the prosecutions?
I am aware of the Government’s consultation in March this year on the proposed formulation of the new offence. They claim, and I do not doubt it, that the 130 responses indicated broad support for the proposals. On the face of it, they sound eminently reasonable—how could one disagree with them that we need to deal with these problems—but I question the clarity of the consultation documents on the consequences of Clause 19 and those investigations. I do not believe that the British people would support the cost, disruption to services, and devastation caused to good workers, doctors and nurses that criminal investigations would create under these provisions.
I understand that the appalling consequences for doctors in hospital settings have been debated at earlier stages of the Bill. I agree with others that Clause 19 will be entirely disproportionate in its consequences for those hospital staff. I will focus on GPs because they are incredibly vulnerable to malicious complaints.
As things stand, we know that GPs daily experience fear of complaints. We know, and the Minister knows, that GPs regularly have to see 60-plus patients in a day. Many of those patients will have relatively minor ailments, but in that list will undoubtedly be patients with life-threatening illnesses. This means 10 hours of stressful, direct patient contact. Any one of those patients may leave the surgery dissatisfied, rightly or wrongly, with the outcome of the consultation. The patient may want an antibiotic and the doctor may know that it is not the right thing. The issue then is whether the doctor really has the time to explain the whole business about why an antibiotic may not be a good idea. That is their vulnerability: if they had all the time in the day slowly to explain to patients, or to people with learning difficulties or language problems or whatever it is, there would be no problems, but doctors do not have that luxury, and GPs certainly do not. Any angry patient could regard this as wilful neglect. Of course, it is not, and ultimately there would not be a prosecution, but the investigation will nevertheless have to take place.
The point then is not about the prosecution. Does the Minister really believe it appropriate for the threat of a criminal investigation to hang over GPs, nurses and doctors every time they go to work? I could not cope with work if every day—and every 10 minutes—I was worried that I might face a criminal prosecution for the judgment I was making. I say it again: we will not tolerate ill treatment or wilful neglect of patients. The question is whether Clause 19 and criminal investigations are the best way of dealing with these issues.
Have the Government assessed the likely impact of this new offence on the willingness of doctors to become GPs and on their early retirement plans? In this country we already have a shortage of doctors willing to train as GPs. Large numbers of doctors—six in 10, we understand—are planning early retirement. What will happen to the supply of GPs if Clause 19 comes into effect? The BMA describes the situation already as having reached crisis point. GPs are moving abroad as the pressures in this country become more and more unpleasant.
Applicants for GP training are at their lowest level for five years. Advertisements for GP partners that we know five or 10 years ago would have had 30 responses now receive maybe none. Nobody wants to be a GP partner these days even in quite desirable areas—and I happen to know a few. At the same time the pressure to transfer more care into the community rises year on year. I appeal to the Minister to think again before Third Reading. The Minister can quote from the ambitious figures for the number of GP training places to be made available, but will there be any trainees to fill those places? There is also the expectation—I would say a wish—that the number of trainee doctors becoming GPs will increase from 40% to 50%. Well, I doubt it if this clause becomes law.
Amendments 42 and 43A seek to raise the threshold for a criminal investigation of a professional care worker. I read the Minister’s letter to the noble Baroness, Lady Finlay, but I have to confess that I was not persuaded by the arguments. As I said, none of us can condone ill treatment or wilful neglect of patients. I have repeated that again and again because that is not the point here. The point is how we deal with these things not whether we do so. The Government have strengthened the Care Quality Commission and I applaud them for doing that. The Care Quality Commission needs to be able to deal with these things effectively, and much better they be dealt with through the Care Quality Commission than in this way. I hope the Minister can assure us that further thought will be give to this damaging clause before Third Reading. I beg to move.
Baroness Finlay of Llandaff (CB)
My Lords, I apologise for coming in just after my noble friend Lady Meacher had started speaking, due to traffic congestion. I am most grateful to her for having put the amendment so clearly. I endorse the point that nobody, but nobody, thinks that wilful neglect is all right. It is not all right. It is not to be allowed to even happen let alone condoned. The problem is that the burden of proof on the individual and on the organisation that employs them has been set at different levels as the clauses are currently drafted. The requirement is to prove gross neglect for an organisation but that had not appeared in relation to the offence committed by the individual. The difficulty is proving intent.
I had a meeting with the Minister at which he spent a great deal of time—I am very grateful to him—and he replied fulsomely with a long letter following that conversation. I remain unconvinced that the Bill will not effectively result in healthcare professionals being hung out to dry—that was a phrase I used before and I use it again—by an organisation that does not support its clinical staff adequately when serious complaints come in. At the end of the day, it is not wilful neglect but it is interpreted and viewed by understandably distressed relatives as neglect of their relative who may have suffered serious harm within the system or become extremely ill because of the progress of the disease. Although the work conditions for the staff have made it extremely difficult for them to function well, they have not been guilty of wilful neglect.
I stress that I do not think this applies only to nurses and doctors. If a physiotherapist or an occupational therapist declines to comply with a request from a patient or their family, that could be interpreted by the family or patient as wilfully withholding something that they feel they need. There is then some unintended adverse incident further down the line that was not predicted and the complaint goes against that healthcare professional. No one should underestimate how damaging it is to a healthcare professional to have a complaint made against them, and how most extremely conscientious healthcare professionals can feel quite destroyed by a complaint. However, an accusation of wilful neglect that goes to the police would certainly destroy somebody’s professional reputation. Even if it proceeds no further, they will find it very difficult to shed the trauma of that experience of being referred to and investigated by the police.
I hope the Minister can clarify exactly how intent will be interpreted and implemented, and how it will be proven that an organisation has intent to neglect patients. I suggest that the organisation can prove that it did not directly intend to but, actually, if it is really badly managed and is not supporting its front-line workers, it is neglecting patients because it is not allowing its staff to do their duty properly. However, I can see that such an offence would be very difficult to stick anyway. Certainly, if the burden of proof is higher for the organisation than for the individual, as I said before, I foresee that people will be hung out to dry.
Lord Winston (Lab)
My Lords, I hope I will be forgiven a short interjection on the amendment, which I fully support, particularly the points raised by the noble Baronesses, Lady Meacher and Lady Finlay. Perhaps I can best illustrate the point I want to make by telling a true story to the Minister, who I know is a very compassionate man. I think, like me, he will feel extremely angry about this particular incident within our health service.
My next-door neighbour was ill for years with Parkinson’s disease and, eventually, was so incapacitated that he had to be taken into care because he could not be looked after at home. His wife reluctantly saw him go into care. When eventually he became comatose, he was admitted to the Royal Free Hospital in Hampstead. His wife went to visit him every day while he was comatose. She used to speak to him and a nurse came up and said, “Madam, I don’t know why you are speaking to him because, of course, he can’t hear a word you are saying”. The nurse did not recognise that an unconscious patient is often fully capable of hearing and at least mentally responding if they cannot physically respond. In a sense, that is a pretty neglectful issue.
After a while, my neighbour’s wife—I should say that her husband has since died—then went to the nursing station and said, “My husband has not been washed or shaved for five days. He is lying in bed in a very dishevelled state and I feel very unhappy about this”—she is a very polite woman. The nurse in charge said, “That is not my job. I have nothing to do with that”. She was then rather cursorily directed towards a ward orderly. She said to the ward orderly, “I wonder if there is any possibility that my husband could be washed and shaved”. The orderly simply said to her, “That is not my priority at the moment”.
Does the Minister feel that that is wilful neglect? It seems to me to be a question of definition. I am sure that he feels, as I do, that this is not a criminal offence and not suitable for punishment with imprisonment. It is certainly suitable for a reprimand and for proper management in a ward of a teaching hospital.
Sadly, this kind of incident is not rare. It goes on all the time and goes on particularly, as we all know, in wards with distressed, elderly people, some of whom are sometimes completely irrational and sometimes mentally disturbed and wandering. Often they are treated with grave disrespect at the least—and often they seem to be treated with a good deal worse. I do not believe that that is wilful neglect, but if this amendment is not passed or some form of it is not accepted, there is a real possibility that people who should not be in court and should not be charged by the police may find themselves charged with a criminal offence. That would be absolutely wrong and very bad for our National Health Service.
Baroness Thornton (Lab)
My Lords, I have a sense of déjà vu facing the Minister on this matter again, along with the two the noble Baronesses who have spoken to the amendments. It would be sensible for any Minister to listen very carefully to the eloquence of the noble Baronesses, Lady Meacher and Lady Finlay, with their expertise and their long record of dealing with these issues, and the concern that they have expressed for doctors and nurses. I agree with both noble Baronesses and with my noble friend about the need to take action about wilful neglect and bad treatment—obviously, absolutely, of course. However, the Minister needs to answer the points that have been put to him about the effect that the measure might have. I would like to know whether some impact assessment has been made on this proposal and, if so, what it said, because I searched in vain for that information. I also searched in vain for information from anyone lobbying on behalf of the badly paid social care workers, who are also included in this legislation, because they do not have the lobby that the doctors and nurses have, in the shape of the two noble Baronesses. I do not apologise for raising this right now, but it makes me wonder whether statutory regulation of social care workers might help in this matter. It is a shame that the Government have consistently set their face against that.
The government amendments in this group seek to add types of care providers to those already identified, and the types of third-party providers who exercise education or other children’s services functions on behalf of local authorities. Does that include private adoption agencies, free schools and academies? Who does it seek to cover? Looking at the Bill, I cannot see whether that is the case, or not, and I would be interested to know whether it is.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, I thank all noble Lords for their contributions to the debate on these important new offences. I have listened carefully to all four speeches. If I may, I shall start with government Amendments 47, 48, 49 and 50. These are minor and technical amendments, which add additional types of excluded care provider to those already identified in Clause 21, for the purposes of the care provider ill treatment or wilful neglect offence in Clause 20.
The Clause 21 exclusion currently applies to local authorities when exercising their functions in respect of the provision of education and other children’s services and other organisations when exercising social work functions relating to children on behalf of a local authority. It has come to light that a small number of third-party providers might also exercise education or other children’s services functions on behalf of the local authority or instead of the local authority, following a formal direction from the Secretary of State, or, as the case may be, from Welsh Ministers. Clearly, it would be unfair for such provider organisations not to be excluded from the care provider offence to the same extent that the local authority would be if it were exercising the relevant functions itself. Amendments 47 and 48 therefore remove these organisations, to the extent that they are providing those services, from the meaning of a “care provider” for the purposes of Clause 20 in England and Wales.
Amendment 49 makes similar provision in relation to independent agencies that provide adoption support. Those providers that are run by local authorities will already be covered by the exclusion in Clause 21. However, as currently drafted, independent agencies with which a local authority has made arrangements for the provision of adoption support, will not. Amendment 49 corrects this small inconsistency. I hope that that is helpful to the noble Baroness, Lady Thornton. The organisations in question are “registered adoption societies” and “registered adoption support agencies”. Amendment 50 places definitions of these phrases in the Bill. I am sure that noble Lords will agree that it is important to make these changes, to ensure that there is consistency and equity in the application of the care provider offence across organisations. To answer the express question of the noble Baroness, Lady Thornton, who asked whether the exemptions included private adoption agencies, free schools and academies, the answer—as I hope she has gathered from my remarks—is yes.
Amendments 42 and 43A, in the name of the noble Baroness, Lady Meacher, seek to achieve two particular purposes, and try to put the individual care worker offence on a par with the care provider offence. They restructure Clause 19(1) so that the care worker offence is dependent on there having been a gross breach of a duty of care owed by the care worker to the victim of the alleged ill treatment or wilful neglect. I understand the point that the amendments seek to make—that there should be some kind of a threshold in order for the offence to bite.
However, there are real problems with the noble Baroness’s approach. We have approached the issue in a different and, I suggest, a better way. The “wilful” element of neglect, and the intent to cause harm required for someone to be found guilty of ill treatment, means that the threshold for this offence as drafted in the Bill is very high and, by its very nature, captures only the worst types of behaviours. Our view is that should a care worker ill treat or wilfully neglect someone in their care, that would always represent a gross breach of a duty of care. It seems to us that a care worker who is being paid to provide healthcare or adult social care services will always owe a duty of care to the individual to whom those services were being provided. That ill treatment or wilful neglect of the individual, which would involve some form of deliberate act or omission, would amount to a gross breach of that duty.
Regretfully, accepting the noble Baroness’s amendments would cause significant unnecessary confusion and complexity and it would risk diverting attention away from the central issue of what has been done by that individual care worker in respect of a person in their care. It would be unhelpful to introduce the concept of a duty of care explicitly. Moreover, specifying that there must be a gross breach of the duty of care in effect raises the threshold before the offence could come into play. There would be a very real risk that behaviour which anyone would recognise as ill treatment or wilful neglect could go unpunished. Any ill treatment or wilful neglect is totally unacceptable, and the care worker offence is drafted very carefully to reflect that. The Government could not accept any amendments that might undermine that and make it harder in practice to prosecute an individual care worker. The approach that we have taken is simpler, clearer and more logical.
The noble Baroness, Lady Meacher, expressed her fear that our proposals might lead to an avalanche of cases and to innocent professionals being “hung out to dry”, as it was put. To address that point, it is important to note that employees of a hospital or a care organisation are already subject to other statutory duties in relation to the care of patients, for example with regard to negligence and to health and safety. The offence that we are proposing would only bite if someone behaves in a way that meets the criteria of the offence—the very worst cases where their behaviour amounts to ill treatment or wilful neglect. We do not share the pessimistic view of the attitudes of health and social care staff that—
Baroness Meacher
Can the noble Earl explain what he means by “will not bite”? He seems to be saying that the doctor or nurse will not be found guilty if they have not indulged in a gross breach of duty, but does the noble Earl accept that these doctors and nurses could easily find themselves under criminal investigation even if they have acted utterly properly and with good faith? That is the issue, rather than the issue of where it bites.
Earl Howe
I do not accept that at all. There is already a range of possible offences. If a patient, or a member of the family of that patient, raises a complaint about a particular doctor or nurse in relation to patient care, that complaint could be considered under a variety of headings. It would have to be considered and looked into. The complaint is unlikely in the first instance to home in on this particular offence. The investigation would, however, take place. Our view is that it would then be up to the Crown Prosecution Service to see, first, whether anything bad had happened, and if it had, whether it conformed to this offence or to any of the variety of other offences that are already on the statute book. I do not accept that the creation of this offence on its own would compound the problem that the noble Baroness has raised.
I am sure that she would agree that the vast majority of health and social care staff would never dream of deliberately harming or neglecting people in their care, nor would they try to cover it up. I suggest that that fact, if it became apparent in the earlier stages of an investigation, would be compelling in regard to the attitude taken by the prosecuting authorities. It is perhaps of some comfort to the noble Baroness to note that in relation to the Mental Capacity Act and to the Mental Health Act, there is no evidence that large numbers of cases have come forward. She will know that we have framed this offence to align with the way the offences in those Acts are phrased. Individuals are protected from unfounded allegations and, as I have said, the Crown Prosecution Service will not pursue a case unless it is in the public interest to do so. Even if, let us just imagine, a private prosecution were brought, the person accused has the right to refer the case to the Director of Public Prosecutions, who will close the case down if satisfied that the evidential and public interests tests are not met.
I suggest that there is little that either the noble Baroness or I can do to prevent unfounded or vexatious complaints from coming forward. That is a real problem. Often complaints rest on poor communication—she was right to raise that point—but I suggest that this is not relevant to the matter that we are now considering.
Baroness Barker (LD)
I have listened at considerable length to the arguments put by the noble Baroness, Lady Finlay, and I have also discussed the matter in some detail with my friend in another place Paul Burstow, who was responsible for all the research work that went into this. He worked with the main investigators of Mid Staffordshire NHS Foundation Trust and Winterbourne View. I invite the Minister to look at Clause 20(1)(b), which refers to the duties and failures of care providers. I understand where the fears expressed by the noble Baroness, Lady Finlay, come from, but they may be ill founded. The whole purpose and intent behind Clause 20 was to make sure that never again will front-line staff be jailed for the offences that they committed while the senior managers and directors of those organisations walk free, as happened in Mid Staffordshire and at Winterbourne View. All these clauses are exactly designed to ensure that staff are not hung out to dry and have the effect that when complaints are raised against staff—as they frequently are—they will, at last, be able to cite the shortcomings and failings of their employers as background in their own defences. This is a point that needs to be drawn out of this debate.
Earl Howe
My Lords, this is Report stage so I shall be brief, but I am grateful to my noble friend for the point she has made. I understood from the noble Baroness, Lady Meacher, that she was not proposing to speak to Amendments 45 and 46. Nevertheless, the noble Baroness, Lady Finlay, raised a point about the unevenness between the two offences. However, I agree with my noble friend Lady Barker. If we interfere with the wording as drafted in the Bill, we are in serious danger of doing the very opposite of what the noble Baroness, Lady Finlay, seeks, which is to have the two offences broadly on a par with each other.
Baroness Meacher
I thank the Minister for his response. I do not believe that offences for GPs and other doctors involving competent adults are comparable with offences for front-line staff dealing with incapacitated adults or children. The noble Earl indicated that they are somehow comparable, and that because there has not been a swathe of complaints in relation to the earlier offences, we would not get them here. I think we would and that has not been fully dealt with. I recognise what the noble Earl has said—and certainly recognise what Paul Burstow has said—and do not have concerns about Clause 20 in particular, but there are concerns about this. We have not been able fully to deal with matters today and I hope that we can have a further discussion with the Minister before Third Reading. I understand the purpose of Third Reading but it is very difficult to feel that we can just leave this here when there are so many ends not tied up at this stage.
Baroness Meacher
I understand what the noble Earl is saying but we need to discuss how we take this forward and what we do at Third Reading. With that, I beg leave to withdraw the amendment.
Lord Faulks
ScheduleRecall adjudicators: further provisionMental Health Act 1983 (c. 20)1 The Mental Health Act 1983 is amended as follows.
2 In section 50(3)(a) (further provisions as to prisoners under sentence: disregarding Parole Board powers when identifying release date), after “Board” insert “or a recall adjudicator (as defined in section 239A of the Criminal Justice Act 2003)”.
3 (1) Section 74 (restricted patients subject to restriction directions) is amended as follows.
(2) In subsection (5A)(a) and (b), after “Board” (in each place) insert “or a recall adjudicator”.
(3) At the end insert—
“(8) In this section “recall adjudicator” has the meaning given in section 239A of the Criminal Justice Act 2003.”
Criminal Justice Act 2003 (c. 44)4 The Criminal Justice Act 2003 is amended as follows.
5 Before section 239 insert—
“Parole Board and recall adjudicators”.6 In section 239(1)(b) (functions of the Parole Board), after “by” insert “or under”.
7 (1) Section 250 (licence conditions) is amended as follows.
(2) In subsection (5A) (inserted by section 14 of this Act), for “Subsection (5B) applies to a licence granted, either on initial release or after recall to prison,” substitute “Subsections (5B) and (5C) apply”.
(3) In subsection (5B) (inserted by section 14 of this Act), at the beginning insert “In the case of a licence granted when the prisoner is initially released,”.
(4) After that subsection insert—
“(5C) In the case of a licence granted when the prisoner is released after recall to prison, the Secretary of State must not—
(a) include a condition referred to in subsection (4)(b)(ii) in the licence, either on release or subsequently, or(b) vary or cancel any such condition included in the licence,unless a recall adjudicator directs the Secretary of State to do so.”8 In section 260(2B) (early removal from prison of extended sentence prisoners liable to removal from United Kingdom), after “Board” insert “or a recall adjudicator”.
9 In section 268 (interpretation of Chapter 6 of Part 12), at the appropriate place insert—
““recall adjudicator” has the meaning given in section 239A.” 10 In paragraph 34 of Schedule 20B (licence conditions in certain transitional cases), for sub-paragraph (6) substitute—
“(6) In the case of a Parole Board licence granted when the prisoner is initially released, the Secretary of State must not—
(a) include a condition referred to in section 250(4)(b)(ii) in the licence, either on release or subsequently, or(b) vary or cancel any such condition,unless the Board directs the Secretary of State to do so.(7) In the case of a Parole Board licence granted when the prisoner is released after recall to prison, the Secretary of State must not—
(a) include a condition referred to in section 250(4)(b)(ii) in the licence, either on release or subsequently, or(b) vary or cancel any such condition,unless a recall adjudicator directs the Secretary of State to do so.”11 In paragraph 37(2) of that Schedule (early removal from prison of prisoners liable to removal from United Kingdom in certain transitional cases)—
(a) after “Board” insert “or the recall adjudicator”, and(b) for “paragraph 6, 15, 25 or 28” substitute “this Chapter”.Domestic Violence, Crime and Victims Act 2004 (c. 28)12 In Schedule 9 to the Domestic Violence, Crime and Victims Act 2004 (authorities within the remit of the Commissioner for Victims and Witnesses), after paragraph 26 insert—
“26A A recall adjudicator (as defined in section 239A of the Criminal Justice Act 2003).”
Offender Management Act 2007 (c. 21)13 The Offender Management Act is amended as follows.
14 In section 3(7)(a) (arrangements for the provision of probation services: risk of conflict of interests), for “or to the Parole Board for England and Wales” substitute “, to the Parole Board for England and Wales or to a recall adjudicator (as defined in section 239A of the Criminal Justice Act 2003)”.
15 In section 14(2) (disclosure of information for offender management purposes), after paragraph (d) insert—
“(da) a recall adjudicator (as defined in section 239A of the Criminal Justice Act 2003);”.Coroners and Justice Act 2009 (c. 25)16 In section 131(4)(d) of the Coroners and Justice Act 2009 (annual report of Sentencing Council for England and Wales: effect of factors not related to sentencing), after “Board” insert “or a recall adjudicator (as defined in section 239A of the Criminal Justice Act 2003)”.
Equality Act 2010 (c. 15)17 In Part 1 of the Schedule 19 to the Equality Act 2010 (public authorities: general), after the entry for the Parole Board for England and Wales insert—
“A recall adjudicator (as defined in section 239A of the Criminal Justice Act 2003).””
Lord Faulks
“( ) A person is not a care provider for the purposes of section 20 to the extent that the person carries out a function of a local authority in England mentioned in subsection (1) in respect of which either of the following has effect—
(a) a direction under section 15(6)(a) of the Local Government Act 1999 (power of Secretary of State to direct functions of a best value authority to be carried out by another person);(b) a direction under section 497A(4) or (4A) of the Education Act 1996 (power of Secretary of State to direct certain functions to be carried out by another person).”
“( ) A person is not a care provider for the purposes of section 20 to the extent that the person carries out a function of a local authority in Wales mentioned in subsection (3) in respect of which any of the following has effect—
(a) a direction under section 29(6)(a) of the Local Government (Wales) Measure 2009 (nawm 2) (power of Welsh Ministers to direct certain functions of a Welsh improvement authority to be carried out by another person);(b) a direction under section 25 or 26 of the School Standards and Organisation (Wales) Act 2013 (anaw 1) (powers of Welsh Ministers to direct education functions to be carried out by another person);(c) a direction under section 154 or 155 of the Social Services and Well-Being (Wales) Act 2014 (anaw 4) (powers of Welsh Ministers to direct social services functions to be carried out by another person).”
“( ) A registered adoption society or registered adoption support agency is not a care provider for the purposes of section 20 to the extent that it provides adoption support services (as defined in section 2(6) of the Adoption and Children Act 2002).”
““registered adoption society” means an adoption society (as defined in section 2 of the Adoption and Children Act 2002) which is a voluntary organisation (as defined in that section) and in respect of which a person is registered under Part 2 of the Care Standards Act 2000;
“registered adoption support agency” means an adoption support agency (as defined in section 8 of the Adoption and Children Act 2002) in respect of which a person is registered under Part 2 of the Care Standards Act 2000.”
Lord Beecham
“Identity theft
After section 9 of the Fraud Act 2006 (possession etc. of articles for use in frauds) insert—“9A Identity theft
(1) A person is guilty of an offence if, knowingly and without reasonable cause, he uses a means of identification of another person or a fictitious person.
(2) A person who is guilty of identity theft is liable, on summary conviction, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum (or both).
(3) The Secretary of State may by regulations set out what constitutes a defence under this section.””
Lord Beecham
My Lords, Amendment 51 relates to identity theft, which is a growing problem, particularly in this age of cybercrime. It is rising rapidly and is estimated to cost more than £3 billion a year. It is usually referred to in the context of fraud and economic crime but, as I said in Committee, a number of offences could apply to the use of someone else’s identity; for example, those under the Fraud Act 2006, the Forgery and Counterfeiting Act 1981, the Criminal Justice Act 1987 and the Theft Act. As the Minister said in Committee, these relate to the use of a false identity for fraud purposes. For example, Section 2 of the 2006 Act deals with the crime of fraud by false representation. In the Minister’s words, this would,
“cover a person pretending to be someone else for the purposes of making a gain for himself or another”.—[Official Report, 14/7/14; col. 485.]
However, the motive might not be economic gain; it might be to obtain information for personal reasons or in the course of undercover activities, such as some of those that have featured in industrial disputes or civil liberties and environmental campaigns. There is also the kind that I saw demonstrated in a remarkable one-man show at the Edinburgh Festival by the stand-up comedian—if that is not too limited a description—Mark Thomas. He had been working for an environmental campaign and someone attached himself to it—not an undercover policeman in this case but an undercover person employed by someone else. It took a long time for this chap to be exposed but exposed he was. He had used a false identity to become involved in the organisation.
In Committee, the Minister criticised the amendment on the grounds that it would also apply to innocent persons; for example, people who collect a parcel from the post office using a relative’s identification. That is a little far-fetched. It ignores the unlikelihood of anyone being charged with an offence in such circumstances and, perhaps more relevantly, the explicit provision contained in the amendment empowering the Secretary of State to set out in regulations what would constitute a defence to a charge under the proposed new section.
In fairness, the Minister outlined a range of initiatives being pursued by a variety of bodies and this is welcome, although it is unclear how co-ordinated the activity is. However, given the very serious concerns about fraud and infractions of privacy, it is surely time to consolidate and update the legislation. I suggested that it would be helpful to hear a report on progress in this area before Report, and it is disappointing that this has not occurred. I request that the Minister takes another look at the issue to see whether he can come back at Third Reading with a more helpful resolution to the problem. For the avoidance of doubt, I assure him that the amendment is not designed to protect Nigel Farage and UKIP from identity theft at the hands of David Cameron and the Conservative Party. I beg to move.
Lord Faulks
My Lords, the Government recognise that there are significant challenges in dealing with the many consequences of identity theft. However, as I explained in Committee, these challenges relate to the difficulty of identifying and catching offenders, rather than to any lack in the criminal law.
The proposed amendment suggests:
“A person is guilty of an offence if, knowingly and without reasonable cause, he uses a means of identification of another person or a fictitious person”.
It omits any reference to the consent of that other person and proposed new subsection (3) leaves the defence to be made by regulations set out by the Secretary of State. That is a fairly novel proposal: a Secretary of State who does not enjoy the undivided confidence of the party opposite is being asked to set out in regulations the nature of the defence.
Lord Faulks
I am flattered by the suggestion. However, whether it is done by me, an official or anyone else, it is a slightly strange way of formulating an offence.
I respectfully ask: where is the gap? The Fraud Act 2006 already includes offences that would apply to anyone who assumes a false or non-existent identity to commit fraud. In particular, Section 2 sets out the crime of fraud by false representation, which would cover a person pretending to be someone else for the purpose of making a gain for himself or another.
While identity theft is not in itself a criminal offence, the use of a false identity for the purposes of fraud is. As drafted, the amendment would apply to innocent persons who were able to represent a relative or partner when conducting financial or domestic affairs on their behalf with permission from the identity-holder. The noble Lord cast some scorn on the example I gave in Committee of collecting a parcel on behalf of someone else. I accept that no sane prosecutor or police officer would take that matter further. None the less, it is alarming to think that that could constitute a criminal offence, albeit one that one would not expect the police or the prosecution to pursue.
I assure the House that the Government take identity crime extremely seriously. I should like to remind the House of some of the initiatives being pursued to prevent identity crime. We are working with banks and credit card companies to promote technical solutions to identity theft to help the victims of such crimes. We are also working with credit reference agencies to provide a free service for anyone who has had their personal details used fraudulently. The credit reference agencies liaise with each other and the banks to restore compromised personal credit records. The service can be accessed by contacting Experian, Equifax or Call Credit. The Home Office is also leading a multi-agency strategic group formed to reduce the threat to the UK. The group is engaged in a range of activities to tackle the problem, such as strengthening the issuing process for government documents, tackling the supply of specialist printing equipment for criminal purposes, improving data-sharing of false identities and taking down websites offering false documents for sale.
Lord Faulks
“(3) The police constables referred to in subsection (1) are—”
The Earl of Lytton
“( ) For the purposes of this section, “police constable” also includes any person who is an employee or agent or acting under the authority of a constable (including in a supporting role), or is performing any function that would, if performed by a constable, fall within policing duties.”
The Earl of Lytton (CB)
My Lords, at Second Reading I queried whether we did not have laws enough to deal with police corruption and other noble Lords asked, “Why single out the police for this new offence?”. The Minister has answered some of those points but this is a slightly different question: will Clause 25 work anyway? I must straightaway thank the parliamentary clerks for their advice and assistance in trying to knock the wording of this amendment into shape, and I thank others outside the House who have offered comment. I am extremely grateful to the Minister and his Bill team for contacting me last week to discuss my concerns. However, on my reading of the Bill it is far from clear that Clause 25 would catch anyone or deal with the more serious cases. Indeed, the excuse “It was not me, it was that other person over there” seems an obvious get-out.
There are several categories of non-warranted persons who might be acting qua police: PCSOs, police volunteers, contractors and civilians working in administrative, intelligence or custody suite roles. I am not clear about probation officers but doubtless there are many other categories. These do not appear to be covered by Clause 25. In my view, such as it is—I am not a lawyer or necessarily an expert here—police corruption can sometimes be, but in reality seldom is, a completely solitary activity. In some more serious instances, it involves other agencies such as the Crown Prosecution Service, local authorities or the health service. Among the characteristics of performance management, an absence of leadership and the collectivisation of risk and responsibility are two. So the target for any charge of police corruption is potentially formless, impersonal and uncertain. By its very nature it is also covert, so in all probability few signs or fingerprints, if I may use that term, will show up. All that a victim of this process knows is that there is no justice; a collective cover-up is all that they see.
Before the Recess, I sent to the Minister’s then colleague at the Home Office, who is now our esteemed Chief Whip, a series of documents which had been put forward in a particular case as witness statements. I did not ask for comment on their specifics, because the case is ongoing, but drew attention to the public interest aspects that they raised. There is the fact that a custody record had been altered post hoc to include a gratuitous reference to violence; apparently there are two custody statements. A prosecution witness statement had apparently been altered without the knowledge of the witness concerned to include additional damning points relating to the accused. Digital photographic evidence had also been manipulated to show times and dates at variance with the facts. There were other aberrations but over recent months I have come across a number of similar instances.
Some of this stems from seemingly unchallengeable powers, such as those in the areas of antisocial behaviour, but there have been clear instances of making up for evidential deficiencies by invention. We also now know of large-scale documented corruption where information inconvenient to the police version of events has been suppressed, mislaid or deliberately destroyed. Few, if any, responsible officers seem to have suffered significant consequences and if Clause 25 is aimed at remedying that, I support the aim. I particularly have in mind that those clearly implicated in corrupt acts should not automatically be able to escape to a comfortable retirement, leaving the lives of others in complete ruins.
Lord Kennedy of Southwark
My Lords, I will be very quick. The amendment in the name of the noble Earl, Lord Lytton, seems very sensible. If a new offence applies to police officers, it should apply to those acting under the authority of a constable or performing a duty that would normally be provided by a constable and falls within the term “policing”. The House should be very grateful to the noble Earl for spotting the potential loophole that his amendment is an attempt to close. I hope that the noble Lord, Lord Faulks, is able to support the amendment—but, if he is not, I hope that he will be able to give us a detailed reasoning of why the Government do not think that it is necessary, as the noble Earl made a convincing case.
Lord Faulks
My Lords, I, too, am grateful to the noble Earl for bringing these matters to the attention of the House and for telling us specifically about the incidents to which he has drawn the attention of the Home Office—although he will, of course, understand, as I think he accepted during his remarks, that I cannot comment on specific cases. However, by using a specific case, he raises a wider concern about the fact that it is not specifically and exclusively police officers who may be involved in what might loosely be described as corruption.
Before dealing with the amendment in a little more detail, I will reassure the noble Earl that although the new offence in its current scope is not retrospective, existing laws will continue to apply to any behaviour before the commencement date of the Act. The question of corruption remains a considerable concern of police forces and prosecuting authorities—and the police, sadly, are used to dealing with it. In the next few weeks, Her Majesty’s Inspectorate of Constabulary will publish a report on anti-corruption capability—so there is an awareness of the need to ensure that this matter is well and truly a focus of its intention.
At Second Reading and in answer to the noble Lord, Lord Kennedy, in the context of the earlier amendment, I said that the offence in the Bill has been brought forward in response to particular issues of corruption that have occurred in the past among police officers—some of senior rank—not all of which are capable of being pursued under the common law. This offence would allow such cases to be addressed. It is something of an irony that senior police officers opposed the introduction of the offence on the basis that it was unnecessary. The noble Earl takes the opposite view: namely, that the offence should be extended beyond the scope which it currently has to include those who are enmeshed in the whole process of corruption. He is right that agencies do not act alone. They are best when they act together in a concerted way. It is very unfortunate if they act in a concerted way that is also corrupt.
Sadly, I am sure that there have been cases of police staff and other public officials corruptly accessing sensitive information or seeking to disrupt investigations by manipulating IT systems. However, the Government have taken the view that it is imperative at this time to address corruption among police officers. Other public officials, including police staff, remain subject to the common-law offence of misconduct in public office, to which I made reference earlier. There have been high-profile prosecutions for the common-law offence in recent months in connection with selling information to the press, including of prison officers, military personnel and police officers. I reassure the noble Earl that we are dealing with corruption across the board.
I should also point out that the Law Commission is starting a project to examine the broader issue of misconduct by public officials, including the misuse of sensitive official information. That, I suggest, is the proper place to look at misconduct and corruption in other areas of public service. I encourage the noble Earl to raise his concerns with the commission when it publishes its consultation document early next year. I also say to the noble Earl and to the House that the amendment would greatly extend the reach of the new offence to a group of individuals who may not have received any specific training of the type that one would expect and may not be clear that they fall within the definition he proposes, and for whom there is no public clamour for a specific anti-corruption offence in the same way that we believe there is for police officers.
I make no criticism of the noble Earl’s drafting. His intention is perfectly clear. But we believe that, notwithstanding the continued anxiety we all face to eradicate corruption wherever it is found, it would be unwise to agree such a broad amendment at such a late stage of a Bill without an opportunity to consult with police representative bodies or the wider public. Therefore, I thank the noble Earl but nevertheless ask him to withdraw his amendment.
The Earl of Lytton
My Lords, I thank the Minister for that extensive reply and the noble Lord, Lord Kennedy, for the support in principle for what I have been trying to deal with. The Minister covered a number of areas reasonably satisfactorily—although, in suggesting that my amendment covered too wide a category of others, he failed to address the issue of PCSOs who, after all, are to all intents and purposes to most people in the street wearing a uniform and are under the pay and authority of the chief constable. While I thank him for that, I will reflect on what he has said. I also reserve my position and may return to this matter at a later stage in order to see whether some other “near-police personnel”, as I call them, who are not warranted officers, should not be included in this provision. That said, I beg leave to withdraw the amendment.
Lord Faulks
Lord Marks of Henley-on-Thames
My Lords, our amendments in this group on Clause 27 regarding compulsory custodial sentences for second offences of possession of a knife would have three effects. The first, and by far the most important, would be to exclude 16 and 17 year-olds from the ambit of the compulsory custodial sentences proposed in the clause. The second would be to ensure that the circumstances the court might take into account in deciding not to impose a custodial sentence would include the likely impact of the sentence on the offender. The third would be to ensure that those circumstances would include not only the circumstances of the offence for which the offender was being sentenced at the time he came before the court, but also the circumstances of the previous conviction that brought him or her within ambit of the clause in the first place.
I turn first to the amendments excluding 16 and 17 year-olds from the operation of the compulsory sentence regime. Your Lordships will no doubt remember that in Committee this House declined to remove the whole of this clause under my stand part debate, but by a fairly narrow margin, considering that the Conservative and Labour parties whipped their Back-Benchers in favour of the retention of the clause, notwithstanding that the Government Front Bench abstained. It was nevertheless abundantly clear from the debate that there was a very strong feeling in this House that compulsory sentences for children were undesirable and damaging to the children concerned.
I should remind your Lordships that this clause was not and is not government policy. It was introduced in the House of Commons by the Conservative Back-Bencher my honourable friend Mr Nick de Bois, and carried in that House. That is how it came to be included in this Bill, notwithstanding the opposition of the Liberal Democrat Benches.
On Report, the House has before it in the next group amendments in the names of the noble Baronesses, Lady Browning and Lady Berridge, which would oblige courts to have regard to their duty under Section 44 of the Children and Young Persons Act 1933 when implementing this clause. That would mean that a court would have to have regard in every case to,
“the welfare of the child or young person”,
and would be required “in a proper case” to,
“take steps for removing him from undesirable surroundings and for securing that proper provision is made for his education and training”.
Baroness Berridge (Con)
My Lords, I shall speak briefly on the amendment proposed by my noble friend Lord Marks. First, on a point of agreement, he will have seen that under Amendment 65 in my name and that of my noble friend Lady Browning it would of course be possible for the court to take into account the circumstances of the previous offence that was what I will call the “trigger” for this provision. Those circumstances could be taken into account.
With regard to the second point, we outlined in Committee that under new Section (6B) in Clause 27(4) there is a judicial discretion not to impose a mandatory sentence unless there are particular circumstances that relate to the offence, the offender or the previous offence and it would be unjust to do so in the circumstances. I would be interested to know the Minister’s opinion on whether the likely impact on the child of the offence would be included in the consideration of the welfare of the child, which is part of the other amendments that my noble friend and I have tabled.
In relation to a third point, the imposition of a mandatory requirement on young people aged 16 and 17—
Lord Marks of Henley-on-Thames
Before my noble friend gets on to her third point regarding 16 and 17 year-olds, may I just ask her whether she was saying in her previous remarks that if it is the case that the likely impact of the offence is not caught within the phrase,
“the circumstances of the offender”,
she will therefore support that amendment of mine?
Baroness Berridge
No. In relation to the likely impact, my point was whether that is considered under the requirement in the Children and Young Persons Act to take into account the welfare of the child.
With regard to 16 and 17 year-olds, it is already the position that they are covered under the mandatory sentencing provisions if they are convicted twice of the offence of threatening with a knife, so it would be inconsistent not to include 16 and 17 year-olds under these provisions where there will be mandatory provisions when you are twice convicted of the offence of the possession of a knife.
I understand that there is not a clear age of majority in this country, but when you can marry and join the Army at age 16, if you have been found in possession of a knife and convicted of that offence and then been found in possession of a knife again by the time you are 17, I do not think it is unduly harsh to say to those young people that a prison sentence is to be imposed unless the provisions of proposed new Section (6B) are found to apply by the judge.
Finally, in relation to the disproportionality issue for black and ethnic minority young people which I have mentioned previously in your Lordships’ House, it is clear that it is also the case that those young people are disproportionately the victims of knife crime. If one is going to plead disproportionality, one has to look not only at offenders but also at victims. The use of knives on young black people—particularly men—is an issue of grave concern in that community, so one has to look at both sides of that issue and not just at the disproportionality of offenders.
Lord Carlile of Berriew
My Lords, I speak in support of my noble friend Lord Marks and will make two points. First, over recent years, I have been involved in a lot of work and study about the treatment of young offenders, partly during the time I spent as president of the Howard League for Penal Reform and partly in preparing reports requested by others. One of the givens of studies of youth penalties—of youth sentencing—is that short sentences by and large are not beneficial: they are usually destructive. They destroy ties with education, they damage ties with family, and they remove ties with good friends as well as, of course, bad friends. This has been recognised by the Youth Justice Board. One of the reasons for the reduction in the number of children in custody, as mentioned by my noble friend Lord Marks, is that it has been seen by the courts that non-custodial dispositions, on the whole, are far more constructive.
That leads me to my second point, which is about judicial—or court—discretion. I do not want to dress this up too grandly, because most of the group we are talking about appear before a youth court in their own local areas, and there is much about youth courts that needs to be reformed. That said, whenever a case comes before a youth court, the court hears all the facts about the young person concerned. It hears the facts of the case; if the defence is properly prepared, it hears about the young person concerned and about everything that has happened in their past. Many of those children who appear before courts—there is no difference in this regard between 16 and 17 year-olds and the immediately younger age group—come from very deprived backgrounds. They usually have had very little attention paid to them and more than half of them have at least one mental health issue—some have multiple mental health issues—that needs to be addressed. To deprive an experienced court of the discretion to impose a non-custodial sentence when that might fly in the face of the merits as set out in the facts and reports before the court is really an astounding proposition. I challenge the Minister to produce any empirical evidence—any studies— showing that this is a proposal that is justified on the merits. I urge him to accept that it is an error of judgment to include 16 and 17 year-olds in this provision.
The Earl of Listowel (CB)
My Lords, I support the amendment of the noble Lord, Lord Marks. Before doing so, I join in his tribute to the Government for their achievement in reducing the numbers of young people in custody by 2,000 in the past few years. It is a tremendous achievement. In some ways, I regret having to disagree with the Government on this particular point, because, of course, I would like to support a Government who have achieved so much for the welfare of the kind of young people that we are dealing with here.
I listened with interest to what the noble Baroness, Lady Berridge, said about young black men—that they are more likely to be victims of knife crimes themselves— and her concern about that aspect of the issue. It is a difficult question. Obviously, young people who carry knives around are a threat to themselves and to other young men. They are likely either to get knifed themselves because somebody else sees that they have a knife or to harm somebody else with a knife. On the other hand, there has been a growth in gang culture, a transformation in gang culture. One can see this when visiting young offender institutions. Many young people might be in great fear for their lives. Perhaps one reason why some of them might continue to carry a knife, even though they have been convicted of having one before, is that they have a genuine fear that somebody else is going to attack them with a knife.
The noble Baroness, Lady Berridge, said that 16 and 17 year-olds can get married and join the Army. That is a good point. But I think we need to keep in mind what the noble Lord, Lord Carlile, said about the particular nature of the young people who come before the courts in these circumstances. We might need to bring up the issue of developmental delay affecting children who have experienced a long history of trauma, who have grown up in chaotic or insecure families, who might have been traumatised in various ways over a long period of time, who might have been let down by the people whom they most trusted, or who, when they have been betrayed in that way, have had no one to listen to them or try to help them recognise the trauma that they have experienced. Young people like that might experience a developmental delay, so that they might appear to be a normal 16 or 17 year-olds physically, but in their way of seeing the world, in their inner world, they are actually much more immature.
I particularly draw attention to the question of young people who have been in local authority care and of care leavers. On Friday, a clinical psychologist was speaking to the Institute of Recovery from Childhood Trauma. She was describing these children who have a history similar to the one I just described and the way that they will often become very self-reliant. They believe that they have to do everything for themselves and they are distrustful of people in authority. Therefore one can see a young person in care, or a care-leaver—I am talking about probably a small minority—who, if they are told by a policeman or a court that they must not carry a knife, will respond to that authority by saying, “Well, I’ll do exactly the opposite of what you’re telling me”. Their history of being abused by others may make them particularly fearful. It may seem to them particularly rational to protect themselves, to be self-reliant—to carry their own weaponry. Their experience is of a world that is unkind and which attacks them. Therefore I would be grateful to the Minister if in his reply, or perhaps afterwards, he could say whether particular attention will be paid to children in care and young people leaving care to ensure that they are offered, at least on a second conviction, the opportunity to have a mentor, for instance, or peer-mentoring, or some other diversion, which might make a great difference to them, rather than putting them into custody.
My final point is that, thanks to the Government’s great achievement in reducing the numbers of children in custody, custody for children is now a much more difficult experience in many ways. All the rotten eggs, if you like, are in one basket, and that can be a very tough environment. We are sending these young people into what is possibly a very adverse environment. I strongly support the amendment in the name of the noble Lord, Lord Marks, and I hope that your Lordships will accept it.
Lord Paddick (LD)
My Lords, I rise briefly in support of my noble friend Lord Marks’s amendment. In particular, I will address what has been suggested is an inconsistency, in that 16 and 17 year-olds who use knives to threaten people are subject to mandatory imprisonment, whereas this would be inconsistent with 16 and 17 year-olds being excluded from mandatory imprisonment for possession. However, there are circumstances, in particular where older young men pass weapons—particularly when faced with an oncoming police officer—to younger members of the group, who are intimidated into taking possession of those weapons. Therefore, they could in those circumstances be carrying a knife innocently, as it were. As my noble friend said, if those are the circumstances of the original or even the secondary offence, those individuals should not be subject to mandatory imprisonment.
Lord Kennedy of Southwark
My Lords, the amendment in the name of the noble Lord, Lord Marks of Henley-on-Thames, seeks to take out 16 and 17 year-olds from the scope of a mandatory custodial sentence for possession of a knife in a public place. I have considerable respect for the noble Lord and a good deal of sympathy for what he is trying to achieve. However, if he pushes this to a vote today, I will not support him in the Division Lobby.
As the noble Baroness, Lady Berridge, said, there is already provision in the Bill as it stands for the court to show some discretion if it is of the opinion that there are particular circumstances which relate to the offence and which would make it unjust to do so in all the circumstances. However, as the noble Lord, Lord Marks, said, this provision was put into the Bill during its passage through the Commons by the honourable Member for Enfield North, and technically it was not a government amendment. Perhaps that was not the easiest way to have done this. However, I see the deterrent effect of such provisions and I am not convinced that removing all 16 and 17 year-olds from the scope of this would be helpful.
I am well aware that knife crime is falling, and I want that to continue. However, there are also parts of London where this sort of crime is still far too high, and we have to take action to ensure that we reduce this type of offending. During Committee—and I have talked about this before—I explained to the House that I was born in Lambeth and grew up in Southwark. I am involved with a little charity there which works with some kids on the council estates. It is quite shocking when you go down there. There are kids living on the Wyndham estate who will not cross the Camberwell New Road into Lambeth because they are terrified that they will be attacked—knifed, and so on. That is what we have to deal with. We need the council to do things, but we also need strong deterrents from the courts as well.
This provision is for all young people—those 16 and over and those 18 and over—not for a first but for a second offence. So they will have previously been caught and convicted of an offence with a knife and can be under no illusion what the likely outcome is if they are caught for a second time. We must do everything we can to stop young people killing each other with knives on our streets, which is a tragedy. However well intentioned this amendment is, it will not help achieve that aim.
However, the Government should give a commitment to review this provision after a couple of years, maybe even bringing forward a sunset clause at Third Reading. That would enable us to evaluate exactly what happens over the next couple of years and to take any corrective action quickly.
Lord Faulks
As noble Lords will be aware from previous discussion on this matter in Committee, this clause was added to the Bill by a Back-Bench amendment in the other place and the principle agreed by your Lordships’ House. Noble Lords will also be aware that agreement has not been reached on the policy underlying this clause within the Government, so I hope that noble Lords will understand why I cannot speak to the detail of these clauses, much though I would like, for example, to have risen to the challenge posed by my noble friend Lord Carlile.
The only thing I can say is simply to assist the House in answer to a technical query about Section 44 of the Children and Young Persons Act 1933 and the welfare of the child and the young person. That is not—and I do not think my noble friend Lord Marks suggested it was—an impediment to actually passing a sentence of this sort. Otherwise, a child might not ever be sent into the secure children’s estate.
Lord Marks of Henley-on-Thames
I hesitate to interrupt. My noble friend knows full well that that section merely requires the court to have regard to the welfare of the child and therefore is not an impediment to imposing the compulsory sentence. My point is that the circumstances that the court may take into account in declining to impose the mandatory sentence are so circumscribed that that runs counter to the spirit of the provision mentioned.
I assumed I was interrupting, but perhaps that is not the case and my noble friend has finished. I do not propose at this late hour to press these amendments to a vote because I do not suppose they would produce a conclusive result in favour of the amendment, although those in my party feel extremely strongly about this. We deeply regret that the Labour Party has decided not to support our position on 16 and 17 year-olds in particular, and the reason for that regret is that in the lead-up to this debate, and indeed in the lead-up to the debate in Committee, I saw not one shred of evidence from any professional body supporting the imposition of compulsory custodial sentences for 16 and 17 year-olds in these circumstances. We on these Benches believe that maintaining judicial discretion is vital to the administration of justice and we are deeply concerned by its reduction in this and other sections of this Bill. I beg leave to withdraw this amendment.
Baroness Browning
Baroness Browning (Con)
My Lords, first, I apologise to the House that I was not present when your Lordships discussed this clause in Committee, but my interest in this part of the Bill stems from the fact that during this Parliament I was a Minister at the Home Office with responsibility within my portfolio for both knife crime and gang crime.
The amendments tabled in my name and that of my noble friend Lady Berridge seek to tidy up the clause that was passed not just by this House but—as we have heard—came from the Commons with an overwhelming majority when it was tabled and proposed by my honourable friend the Member for Enfield North. So at its third reading I do not propose to rehearse again the arguments, particularly that about the deterrent effect of what is before the House in this Bill tonight. That was eloquently debated by Members on all sides of the House in Committee and the clause passed accordingly. However, quite a few things in the clause as it stands need correction and alteration. I hope some of those corrections and alterations will pick up on some of the points that have been raised tonight because clearly it is very important that this proposed legislation—whatever the difference of opinion on the substance—none the less needs to be compatible with existing legislation. There is more than one Act of Parliament already on the statute book to which this legislation needs to be tied without there being any anomalies, and I would like to flag some of them up.
First, to ensure compatibility with Article 5 of the European Convention on Human Rights the clause must provide the court with the necessary discretion to take account of particular circumstances when deciding whether to impose the minimum sentence or mitigate against arguments that any deprivation of liberty is arbitrary, contrary to Article 5. However, with the current drafting, the court may take account of only particular circumstances relating to the current offence and the offender, not those relating to the previous offence or offences, when for example the date of the previous offence—perhaps committed very many years ago—could be relevant.
In addition, Article 5 must be read in the light of Articles 3 and 37(b) of the United Nations Convention on the Rights of the Child, which means particular care must be taken in detaining children. If the necessary consequential amendment is made to disapply the requirement on the court to have regard to sentencing guidelines, there will be no requirement on the court to have regard to the welfare of the offender when sentencing those under the age of 18. Therefore, we consider that a provision requiring the court to have regard to its duty under Section 44 of the Children and Young Persons Act 1933 when considering particular circumstances in relation to 16 and 17 year-olds should be inserted.
Baroness Berridge
My Lords, although my noble friend Lady Browning states that she is not a lawyer, I think that she has outlined to your Lordships’ House in comprehensive detail the changes that are needed to ensure that this amendment, which was made in the other place, does not cause conflict with existing legislation.
Lord Kennedy of Southwark
My Lords, this group of amendments raises important issues, just as we saw with the previous group, concerning the possession of an offensive weapon or a bladed article.
I have the greatest respect for the noble Baronesses, Lady Browning and Lady Berridge. They make some very important points but I am not convinced by their arguments that what they seek is necessary. As I said previously, knife crime can have a devastating effect, not only on the person who is killed or seriously injured but on the life of the offender. In Committee, the noble Lord, Lord Blair of Boughton, told the House that he had to speak to many families whose loved ones had been murdered in such circumstances and saw at first hand the devastating effects of that. We have to get the balance right. For this group of amendments, my previous suggestion stands: we need to look at this whole area and review it after a couple of years. If the Government come back then and look at how the whole Act is operating, that is the best way forward.
I will listen very carefully to the reply by the noble Lord, Lord Faulks, especially with respect to increasing the scope to include people convicted of an offence under various military and Armed Forces Acts. Clearly the noble Baronesses have considered this very carefully. However, I am not convinced that to put in the Bill an amendment that a court must have regard to the duty under Section 44 is necessary. I am sure the Minister will respond to that as well.
Lord Faulks
I am sorry to disappoint the noble Lord, Lord Kennedy, and the House but I am unable to respond in detail because, as I said in response to the earlier amendment, the clause has been added by a Back-Bench amendment and the principle has been agreed by your Lordships’ House. However, agreement has not been reached within the Government on the policy underlying this clause. Therefore, I am unable to speak as to the detail of these clauses.
Baroness Browning
My Lords, I am most grateful—that is, I think I am grateful. This is a serious subject and it is incumbent on all of us, when legislation is passed, regardless of whatever view we have taken, to make sure that it is as legally sound as possible. I have sought advice to try to do that and I hope that that is helpful to the House. I am grateful to all Members who have contributed to the debate.
The Deputy Speaker (Baroness Pitkeathley) (Lab)
Is it your Lordships’ pleasure that this amendment be withdrawn?
The Deputy Speaker
The amendment has already been moved and the Minister has responded, so it is for the noble Baroness now to decide what she wishes to do with the amendment.
Lord Marks of Henley-on-Thames
My Lords, before my noble friend formally concludes speaking to the amendment in response to the Minister, perhaps I might indicate that in our view it is unsatisfactory that an amendment is reaching the statute book with very detailed amendments proposed by the noble Baronesses, Lady Berridge and Lady Browning, without the Government having expressed any view as to the degree to which they work. If what I suspect is now going to happen does happen, these amendments will be carried and this is the way that the Bill will go on to the statute book. We regard that as unsatisfactory. Perhaps consideration should be given to procedure on a Bill of this sort in future.
Lord Faulks
The Government’s position has not changed. Parliamentary counsel assisted the noble Baroness in making sure that the necessary amendments were properly and accurately drafted. I hope that that assists the noble Lord.
The Deputy Speaker
Does the noble Baroness wish to withdraw her amendment or seek the opinion of the House?
Baroness Browning
Baroness Browning
Baroness Browning
“(2CA) In considering whether it is of the opinion mentioned in subsection (2B) in the case of a person aged 16 or 17, the court must have regard to its duty under section 44 of the Children and Young Persons Act 1933 (general considerations).
(2CB) Where—
(a) an appropriate custodial sentence has been imposed on a person under subsection (2B), and(b) a relevant conviction without which subsection (2B) would not have applied has been subsequently set aside on appeal,notice of appeal against the sentence may be given at any time within 28 days from the date on which the conviction was set aside (despite anything in section 18 of the Criminal Appeal Act 1968 (initiating procedure)).”
“( ) After section 1 insert—
“1ZA Offence under section 1: relevant previous convictions
(1) For the purposes of section 1, “relevant conviction” means—
(a) a conviction for an offence under—(a “relevant offence”), whenever committed,(i) section 1 or 1A of this Act, or(ii) section 139, 139A or 139AA of the Criminal Justice Act 1988,(a “relevant offence”), whenever committed,(b) a conviction in Scotland, Northern Ireland or a member State other than the United Kingdom for a civilian offence, whenever committed, which would have constituted a relevant offence if committed in England and Wales at the time of that conviction,(c) a conviction for an offence under section 42 of the Armed Forces Act 2006, whenever committed, in respect of which the corresponding offence under the law of England and Wales (within the meaning of that section) is a relevant offence,(d) a conviction for an offence under section 70 of the Army Act 1955, section 70 of the Air Force Act 1955 or section 42 of the Naval Discipline Act 1957, whenever committed, in respect of which the corresponding civil offence (within the meaning of the Act in question) is a relevant offence, and(e) a conviction for a member State service offence, whenever committed, which would have constituted a relevant offence if committed in England and Wales at the time of conviction.(2) In this section—
“civilian offence” means an offence other than—
(a) an offence under an enactment mentioned in subsection (1)(c) or (d), or(b) a member State service offence; “conviction” includes—
(a) in relation to an offence under section 42 of the Armed Forces Act 2006, anything which by virtue of section 376(1) and (2) of that Act is to be treated as a conviction and(b) in relation to an offence under section 42 of the Naval Discipline Act 1957 and a member State service offence, a finding of guilt in respect of the person;“member State service offence” means an offence which was the subject of proceedings under the law of a member State, other than the United Kingdom, governing all or any of the naval, military or air forces of that State.
(3) For the purposes of subsection (1)(c) and (d), where the offence was committed by aiding, abetting, counselling or procuring, it must be assumed that the act aided, abetted, counselled or procured was done in England and Wales.”
“(a) a person is convicted of an offence under subsection (1) by a court in England and Wales,(aa) the offence was”
Baroness Browning
Baroness Browning
Baroness Browning
“(6CA) In considering whether it is of the opinion mentioned in subsection (6B) in the case of a person aged 16 or 17, the court must have regard to its duty under section 44 of the Children and Young Persons Act 1933 (general considerations).
(6CB) Where—
(a) an appropriate custodial sentence has been imposed on a person under subsection (6B), and(b) a relevant conviction without which subsection (6B) would not have applied has been subsequently set aside on appeal,notice of appeal against the sentence may be given at any time within 28 days from the date on which the conviction was set aside (despite anything in section 18 of the Criminal Appeal Act 1968 (initiating procedure)).”
“(a) a person is convicted of an offence under subsection (1) or (2) by a court in England and Wales,( aa) the offence was”
Baroness Browning
Baroness Browning
Baroness Browning
“(5CA) In considering whether it is of the opinion mentioned in subsection (5B) in the case of a person aged 16 or 17, the court must have regard to its duty under section 44 of the Children and Young Persons Act 1933 (general considerations).
(5CB) Where—
(a) an appropriate custodial sentence has been imposed on a person under subsection (5B), and(b) a relevant conviction without which subsection (5B) would not have applied has been subsequently set aside on appeal,notice of appeal against the sentence may be given at any time within 28 days from the date on which the conviction was set aside (despite anything in section 18 of the Criminal Appeal Act 1968 (initiating procedure)).”
“( ) After section 139A insert—
“139AZA Offences under sections 139 and 139A: relevant previous convictions
(1) For the purposes of sections 139 and 139A, “relevant conviction” means—
(a) a conviction for an offence under—(a “relevant offence”), whenever committed,(i) section 1 or 1A of the Prevention of Crime Act 1953, or(ii) section 139, 139A or 139AA of this Act,(a “relevant offence”), whenever committed,(b) a conviction in Scotland, Northern Ireland or a member state other than the United Kingdom for a civilian offence, whenever committed, which would have constituted a relevant offence if committed in England and Wales at the time of that conviction,(c) a conviction for an offence under section 42 of the Armed Forces Act 2006, whenever committed, in respect of which the corresponding offence under the law of England and Wales (within the meaning of that section) is a relevant offence, (d) a conviction for an offence under section 70 of the Army Act 1955, section 70 of the Air Force Act 1955 or section 42 of the Naval Discipline Act 1957, whenever committed, in respect of which the corresponding civil offence (within the meaning of the Act in question) is a relevant offence, and(e) a conviction for a member State service offence, whenever committed, which would have constituted a relevant offence if committed in England and Wales at the time of conviction.(2) In this section—
“civilian offence” means an offence other than—
(a) an offence under an enactment mentioned in subsection (1)(c) or (d), or(b) a member State service offence;“conviction” includes—
(a) in relation to an offence under section 42 of the Armed Forces Act 2006, anything which by virtue of section 376(1) and (2) of that Act is to be treated as a conviction, and(b) in relation to an offence under section 42 of the Naval Discipline Act 1957 and a member State service offence, a finding of guilt in respect of the person;“member State service offence” means an offence which was the subject of proceedings under the law of a member State, other than the United Kingdom, governing all or any of the naval, military or air forces of that State.
(3) For the purposes of subsection (1)(c) and (d), where the offence was committed by aiding, abetting, counselling or procuring, it must be assumed that the act aided, abetted, counselled or procured was done in England and Wales.””
“( ) Schedule (Possessing an offensive weapon etc: consequential provision) contains consequential provision.”
Lord Foulkes of Cumnock
“Assault on workers selling alcohol
(1) A person who assaults a worker who is required to enforce or comply with the Licensing Act 2003—
(a) in the course of that worker’s employment, or(b) by reason of that worker’s employment,commits an offence.(2) In this section—
“worker” means a person whose employment involves them selling alcohol under the provisions of the Licensing Act 2003;
“employment” means any paid or unpaid work whether under contract, apprenticeship, or otherwise.
(3) A person who is guilty of an offence under this section is liable—
(a) on conviction on indictment to imprisonment for a term not exceeding two years or an unlimited fine (or both),(b) on summary conviction to imprisonment for a term not exceeding six months or a fine not exceeding the statutory minimum (or both).”
Lord Foulkes of Cumnock (Lab)
My Lords, I am happy to move my amendment when the House and the Government are in such a contented mood. I thank all those who have stayed.
This is, I believe, the third time I have proposed this amendment, or at least some version of it, to the House. As the Minister knows, last year my Labour colleagues and I moved an amendment to the Anti-social Behaviour, Crime and Policing Bill which would have created a separate legal offence for assaulting any worker in the performance of his duties. Sadly, although many, including a number of those on the Benches opposite, were sympathetic to the amendment’s aim of encouraging prosecutions, acting as a deterrent and doing justice to the physical and emotional suffering of the thousands of workers assaulted each year, your Lordships did not give that amendment your approval.
One concern raised at the time was that the amendment was so wide in scope that it would cover so many workers as to render it ineffective. That is why I proposed at the Committee stage of this Bill in July the amendment before your Lordships, drafted with the invaluable help of the union USDAW. I thank all at USDAW for their great help on this issue. The amendment focuses specifically on those workers who are required to enforce, as part of their employment, compliance with the Licensing Act 2003. It creates a separate either way offence for assaulting a shop or bar worker who is selling alcohol, and in doing so, takes account of comments made by the Solicitor-General in the other place which claimed that, if we were truly serious about higher penalties, such an offence should be either way and not summary as was originally intended.
There are three problems in the way in which we currently deal with assaults on workers serving alcohol which this amendment attempts to address. First, it attempts to remedy the fact that at present the vital and dangerous public function performed by workers who serve alcohol is insufficiently acknowledged by the criminal justice system. Men and women who serve alcohol are required by the Licensing Act 2003 to enforce that law, in terms of its consumption and supply. They must refuse to serve those who they believe to be under age, and those who are already intoxicated. They are working in febrile environments and are responsible, like police officers, for enforcing the law. If they refuse to do so, they themselves can face legal action or lose their licences. It is therefore unacceptable that these men and women receive no effective protection from the legal system for that additional service and the physical danger that it puts them in.
That brings me to my second point. Men and women serving alcohol have, like all workers, the benefit of a clause in the sentencing guidelines—as the Minister pointed out in Committee—which makes the assault of a worker providing a public service one aggravating factor, but it is one of 19 aggravating factors, which is seldom acknowledged. This fails to acknowledge that those who serve alcohol place themselves in greater danger, and make a more vital contribution to public order and to public health, than most others in other professions. According to the Health and Safety Executive, alcohol was the trigger to threatened or actual violence in 38% of cases.
Thirdly, the current regime has inadvertently produced a system which disincentivises prosecution and ends up being too lenient. At the moment, if a worker who sells alcohol is assaulted, the crime will usually fall into the category of common assault. The problem is that common assault carries relatively lenient punishments, meaning that in many cases the Crown Prosecution Service decides not to bother prosecuting. That has certainly been the experience of the unions like USDAW and other organisations in the industry like National Pubwatch, the Wine and Spirit Trade Association and others. Lenient sentencing and lack of sentencing not only fails the victims of such crimes by depriving them of justice but also results in many incidents going unreported as people’s faith in the criminal justice system becomes less and less secure. USDAW found that 17% of workers attacked at work, or threatened with physical violence, did not report—they did not bother to report—the offence because they did not think that any action would be taken.
My amendment addresses these issues. It provides greater protection to this group of workers by doing three things. First, and most importantly, it recognises at long last the dangerous environment these men and women must work in, as well as the strenuous and vital public function they carry out in enforcing the law. It does so by creating a separate, specific offence for assaulting someone who sells alcohol, one that carries a harsher penalty of either up to six months in prison and a fine of up to £500 for those charged summarily, or up to two years in prison or an unlimited fine for those who are convicted or indicted at the Crown Court, for more serious offences.
Secondly, in creating that separate offence, it would act as a deterrent to such crimes. Between 2012 and 2013, reported incidences of violence at work increased—there were 649,000 overall, including assaults on bar and shop workers serving alcohol. At a time when we see that these crimes show no sign of abating and their frequency remains alarmingly high, we must recognise the service of this group of workers. Harsher penalties will act as a deterrent.
This brings me to the third major reason to support this amendment. It will encourage more prosecutions, as a separate legal offence is easier to determine than common assault. You can prove it more easily, and because it carries stiffer penalties, that will give the CPS greater incentive to prosecute.
I heard example after example recently at a presentation by USDAW. I know that Members of the House will know of other examples. I will not go into them in detail as time does not permit, but I assure the House that there were some horrific incidents causing great harm, which I know the noble Lords, Lord Lea and Lord Kennedy, and others who attended the presentation, will testify to. I am arguing in favour of the amendment before your Lordships today so that many thousands of other workers do not have to go through what those about whom we heard in that presentation have already suffered.
In Committee, the noble Lord, Lord Faulks—have I got the pronunciation right? I have the same problem in reverse—expressed his genuine sympathy with the amendment’s aims before arguing that it was not “at the moment” the right way to combat such crimes, citing a lack of evidence and the availability of other actions to deal with it. He also agreed to meet me and other colleagues, and he was true to his word. The general secretary of USDAW, my noble friend Lord Kennedy and I met him and we had a sympathetic response. He asked for more evidence and was interested in trying to deal with the issue, but, unfortunately, he was not willing to support this amendment, at least at this stage, until we had come forward with more evidence to persuade him.
I hope, nevertheless, that the Minister will today recognise the seriousness of this matter. If he does not accept the amendment—I hope that he will and I shall certainly test the opinion of the House if he does not—I hope that he will at least put forward some alternatives to take account of an increasingly serious problem. We should not let down these people who serve the public and make sure that the law is upheld. They deserve the kind of support that we can give them by supporting this amendment.
Lord Lea of Crondall (Lab)
My Lords, perhaps I may add one point which the union raised and which I think is the reason why the Government are having undue difficulty. It is an inconsistency which relates to semantics. These people are serving the public—they are in public houses after all. If you are a public servant, you seem to be protected in a way that these workers are not, yet they are in more direct, physical contact with the public—with many injuries sustained. I ask the Minister—I know that the matter has been brought to his attention in private conversations—how it is that these workers have less protection under a lesser criminal offence than applies to violence done to workers in the public sector who have an interface with the public. These workers are effectively in a private space, not in a public space, and the law works differently for them.
Lord Balfe (Con)
My Lords, I support the principles of the amendment, which shows how belonging to a responsible union such as USDAW can benefit workers. As I have said in this House on previous occasions, it would be wrong for the Opposition to believe that all union members are adherents of their party. Indeed, one of the USDAW executive, Mr John Barstow, a member of the Conservative Party, keeps me informed of USDAW and its doings, which are generally very beneficial and certainly of value to its members.
In a debate earlier this evening—I do not normally intervene in this sort of debate; I generally stick to foreign affairs—I noticed all the statements made about knife crime and it being argued that just being found with a knife should be a reason for a custodial sentence. I was at the meeting with the noble Lord, Lord Foulkes, the other day when we listened to USDAW. We heard some pretty horrific accounts. One of the most horrific things to me was the absence of prosecution by the police even in the face of CCTV evidence and other quite clear evidence that assaults had been committed. I hope that the Minister will be able to tell us not only his views on the clause but also how we intend to get the law, as at present, implemented because what was done is already an offence—and was an offence in many of the incidents put before us. We do not need this new law. What we are facing is a crisis of the police deciding that the law should not be enforced as it stands.
Having said that, I see no reason why we should not afford these workers the level of protection that they justly deserve. After all, as Mr Foulkes—sorry, I have known the noble Lord as Mr Foulkes and George for a bit too long, I reckon—as the noble Lord, Lord Foulkes, said, these workers are actually upholding the law that we have passed. In many ways they are as much agents of the law as the police. When they are assaulted as a result of upholding the laws that this Parliament has passed, they should benefit from the protection that the law should afford. On that basis, I hope that the Minister will be able to give us a very positive response.
Lord Kennedy of Southwark
I am delighted to be able to support the amendment of my noble friend Lord Foulkes of Cumnock; it seeks to protect shop workers from assault when they are doing their job and refusing to sell alcohol after the permitted time as required by law. The amendment has the support of the shop workers’ union, USDAW, which is a campaigning union standing up for its members. It also has a reputation as a hard-working professional organisation that works with employers and wants the businesses that its members are employed in to be a success. It is respected in the industry as a whole and the amendment is typical of the way USDAW works. The amendment has the support of not only the union but the organisations that represent the businesses in the sector and the staff who can find themselves at serious risk of assault for just doing their job, as many noble Lords have already said.
In Committee, I told the House that USDAW has run its Freedom from Fear campaign for many years. That campaign seeks to highlight the unacceptable situation that shop workers can find themselves in just for doing their job. Shop workers are among some of the lowest paid workers. They deserve the right to go to work without the risk of being verbally abused or even physically assaulted. People come into shops that sell alcohol, often late at night, usually the worse for wear having drunk far too much, and when they are told that they cannot buy any more alcohol as it is past the licensing hours, the poor shop workers can be subject to abuse and, in many cases, actual physical assault. We should also remember that these offences occur late at night, often when there are only one or two members of staff on duty in the shops concerned.
As my noble friend Lord Foulkes said, we recently met with the Minister and Mr John Hannett, the general secretary of USDAW. The Minister was very courteous and was concerned about what we heard from our friend John Hannett. Clearly the Government have not been prepared to move so far and that is somewhat regrettable. I hope that today when the Minister responds he can signal how unacceptable the situation is and that the Government take this matter really seriously and quite rightly expect people to be able to go to work and earn their living free from the fear of attack.
Lord Faulks
My Lords, this amendment in the name of the noble Lord, Lord Foulkes of Cumnock, would make it an offence to assault a worker who is required to enforce or comply with the Licensing Act 2003, either in the course of that worker’s employment or by reason of that worker’s employment. The proposed new offence would be triable either way with a maximum penalty on indictment of two years’ imprisonment, or an unlimited fine, or both.
The issue has been well described by the noble Lord, Lord Foulkes, and by other noble Lords during the debate: those who are in the position of selling alcohol can find themselves in a highly vulnerable position and can be the victims of serious assaults. The amendment was debated in some detail in Committee. As he told the House, the noble Lord, Lord Foulkes, and the noble Lord, Lord Kennedy, met with me—Lord Faulks—to discuss the issue further. We were joined by the general secretary of the Union of Shop, Distributive and Allied Workers, and I benefited greatly from their analysis of the problem and the need, as they saw it, for action. As the noble Lord, Lord Foulkes, said, I made it clear that the Government remain at the moment unconvinced of the need for a new offence of assaulting workers selling alcohol, although I said that I would consider any additional evidence and data on that point. I remain in that position and the Government remain aware that there is concern about this, but I must make it clear now, as I made it clear then, that I do not wish to accept this amendment or to return to the matter in the course of the Bill’s progression.
Lord Foulkes of Cumnock
My Lords, in no way do I want to impugn the integrity, the sincerity or any other attribute of the Minister, because he has been very helpful. However, I think that he does not fully realise the extent of the problem. If he came into city centres—I do not know if he does—late at night or early in the morning on Friday, Saturday or Sunday, he would realise some of the problems that our people face who have to serve alcohol, who get threatened, who get frightened and who get assaulted. As my noble friend Lord Robertson was reminding me, binge drinking is becoming an increasing problem.
The Minister asks, “Why pick out only one category?”. It is because those in that category face such dangers, and are upholding the law that we pass. I am sorry, I should have said that the noble Lord, Lord Balfe, was at our meeting. As he said, and as my noble friend Lord Lea said, people who serve alcohol effectively act as policemen, upholding the law on our behalf—upholding the law that we pass. We should give them some recognition for that. USDAW and I have had e-mails and letters from Conservative and Liberal Democrat Members, one or two of whom I see today, from Cross-Benchers and from independent Members as well—I think that I have got it right on this occasion—
Lord Foulkes of Cumnock
Independent Labour. On the basis that they express some genuine concern, I should like to test the view of the House.
“Publication of private sexual images
(1) It shall be an offence for a person to publish a private sexual image of another identifiable person without their consent where this disclosure causes distress to the person who is the subject of the image.
(2) A person is not guilty of an offence under subsection (1) if he or she-—
(a) reasonably believed that the person who is the subject of the image had consented to its publication;(b) reasonably believed that the publication of the image would not cause distress;(c) reasonably believed that the image had previously been published; or(d) did not intend to publish the image. (3) For the purposes of this section it is immaterial who owns the copyright of the published image.
(4) An offence under this section is punishable by—
(a) on conviction on indictment, imprisonment for a term not exceeding 2 years or a fine (or both);(b) on summary conviction, imprisonment for a term not exceeding 6 months or a fine (or both).
Lord Marks of Henley-on-Thames
My Lords, Amendment 98 stands in my name and in the names of my noble friends Lady Grender, Lady Brinton and Lady Barker. I shall address the entire group of amendments, in particular the amendments tabled by my noble friend Lord Faulks.
Your Lordships may remember that in Committee I and colleagues on these Benches moved an amendment to criminalise the practice of posting so-called “revenge porn” on the internet. This thoroughly nasty behaviour, where the perpetrators post sexual images of former lovers after the breakdown of their relationships in order to hurt their victims, has become all too common. There are a number of sites with names like “MyEx.com” where such images abound.
Unsurprisingly, the publication of such images causes untold distress, embarrassment and humiliation. Such publication has the potential to create havoc with victims’ mental and physical health, their happiness and self-esteem, their future trust in others, their ability to form relationships and their present and future relationships—social, within their families and at work. Publication by a former lover in these circumstances is a gross breach of trust. The images are taken in the privacy and trust of an intimate relationship, with the consent of the victim. They are then deliberately and callously displayed to the world without their consent, in a malicious attempt to cause distress.
The Government’s response to our amendment in Committee was to promise to consider the issues that we raised. I have been delighted by the way that such consideration has led to the tabling of the Government’s amendments in this group. They start with Amendment 103, which would establish the offence of, “Disclosing private sexual photographs and films”, widely defined, “with intent to cause distress”. I am aware that at the early stages of the Government’s consideration there was a view within the Ministry of Justice that no new offence was needed, on the basis that existing offences largely covered the evil with which we were concerned. However, further consideration has led the department to the conclusion that a new offence is indeed needed. That recognition is right and I commend and thank my noble friend, and all those who have worked with him on this within his department, for the extremely hard work that they have undertaken in the short time since Committee to develop these proposals.
The three essential elements of the new offence will be, first, that the image must be,
“a private sexual photograph or film”,
widely defined; secondly, that it must be published “without the consent of” the victim and, thirdly, that “the intention of” the publisher must be to cause the victim “distress”. Those elements largely mirror those of the offence mentioned in our amendment and we are content that the government amendments represent an effective way of dealing with this despicable behaviour.
We have had one concern as to the definition of sexual, which our amendment left undefined. The Government have sought to define it in Amendment 105. Subsection (3)(a) of their proposed new clause is clear, referring precisely to,
“an individual’s exposed genitals or pubic area”.
Paragraphs (b) and (c) of that subsection go wider. They refer to an image being sexual if, in paragraph (b),
“it shows something that a reasonable person would consider to be sexual because of its nature”,
and, in paragraph (c), if,
“its content, taken as a whole, is such that a reasonable person would consider it to be sexual”.
My noble friend and officials within his department helpfully held a meeting with us, at which they explained the difficulties that they faced in defining a sexual image. Colleagues were concerned that a topless photograph should be capable of being within the definition of “sexual”, in appropriate circumstances, and particularly where photographs of younger women were concerned. On consideration, we have come to the conclusion that paragraphs (b) and (c) enable the contents of such an image to be considered widely and that a successful balance is struck by the proposed wording. However, I should be grateful if my noble friend would confirm that he considers that paragraphs (b) and (c) considerably widen the ambit of paragraph (a).
I conclude by paying tribute to all those colleagues who have campaigned for the criminalisation of revenge porn. I particularly mention in this context my honourable friend Julian Huppert MP, who raised this issue in the other place and has worked hard on it. In view of the commendable position taken by the Government, we will not be pressing Amendment 98.
Baroness Brinton (LD)
My Lords, I, too, have my name to Amendment 98 and wish to echo the points made by my noble friend Lord Marks on government Amendments 103, 104 and 105. I also support his comments about the definitions of private and sexual, and look forward to hearing the Minister’s response.
In recent years, a new series of unpleasant crimes relating to technology have developed. Cyberstalking, cyberbullying, sexting and now revenge porn are all about abuse of power and spreading information widely on the net. I shall focus on the devastating effects of the circulation of these images, and why the three criteria outlined in the government amendments are inextricably linked and why the presence of all three demonstrates the state of mind of the perpetrator. The proposed offence is vile. It is not just blackmail, although it has been used by some for that effect. It is not just the betrayal of trust and confidence of a former partner, but about the long-term damage on the partner who has been exposed. It is an abuse of power designed to cause distress, and with the nature of social media today, the perpetrator can hand it on and on to others, including professional revenge porn sites whose participants often then choose to troll the original victim, their family and their work colleagues.
Many victims of revenge porn are too scared and humiliated to speak out but a few brave individuals do. Hannah Thompson has and is now a leading campaigner for the new law. Here is what she had to say about why she thinks the law needs to change:
“For those who don’t know, revenge porn is non-consensual pornography. It’s where a person uploads an explicit image of somebody without their permission. Often the victim’s name and contact details are attached. Not only is it humiliating but it has the potential to reach out of the screen and destroy people’s lives … Of course, there is nothing inherently wrong with sharing private images of yourself but you do so with a reasonable expectation of privacy. There is, however, something intrinsically wrong with using explicit images as a tool to harass and humiliate someone. As a victim of revenge porn, I can’t even begin to explain how relieved it makes me to think that Parliament is seriously considering these proposals. Most victims of revenge porn are shamed and forced into silence for fear that more people will find their images. They’re made to tolerate the abuse and forced to suffer through tedious copyright claims because it’s the closest they can get to having something done. I’ve spoken to victims who were suicidal, whose images were taken on a Polaroid camera before they had any concept of the Internet, who have lost their careers and whose relationships have been ruined. All the while, those who have published the images are free to sit back and revel in the pain they’ve caused to someone whose only crime was to trust them”.
Celebrities have been caught too. Photos of Jennifer Lawrence were found by a hacker, and Rihanna and Tulisa Contostavlos have had private nude photos released by former partners. But we do not know the size of the problem because only eight out of 43 police forces collect data. The Huffington Post said:
“The data that was available suggests revenge porn is on the rise: there were 35 reported incidents in 2012, jumping to 58 in 2013, and there have been 53 in the first half of this year alone”.
Tonight, Hannah and the other victims are in the public gallery watching our proceedings. Their bravery in fighting for revenge porn to be made a criminal offence would also mean that our police forces will start to catalogue this offence more carefully. Most of all, it will send a message to former partners who commit this appalling act that the effect it has on the victims is not one that our wider society is prepared to accept.
Baroness Berridge
My Lords, I support the arguments made by my noble friends in relation to this matter. I am pleased to say that, unlike the previous amendment regarding knife crime, there has been agreement, particularly among the Back Benches and the government Benches, on the need to act. I pay tribute to my noble friend Lady Morris of Bolton, who joined me in amendments in Committee but is not able to be here today.
One point that I would make in addition to those that have already been outlined is that these images are not always taken with consent. The development of technology has meant that in situations unbeknown to someone, images are taken through hidden devices and mobile phones. So it might not even be an old Polaroid; people might be completely unaware that an image has been taken, and the first that they know of it is when their ex-partner releases it into the public domain, adding even greater trauma to what is an incredibly traumatic situation for any victim. Unfortunately, there has been the development of certain professional sites where people are making profit out of this situation.
I also join in welcoming the Government’s response in relation to this. I have never found a firm view at the Ministry of Justice on this matter; I have always found there to be an open door and a willingness to consider it. As has been outlined, technology has been leaping ahead in relation to this matter. I pay tribute to the work of organisations such as Women’s Aid and to my right honourable friend Maria Miller, who led a Back-Bench debate in the other place on this issue and has been campaigning vociferously in relation to it.
Baroness Thornton
My Lords, I am pleased to say that we on these Benches support these amendments. Some time ago my right honourable friend Yvette Cooper said that people who post intimate images of their former partners online in so-called revenge porn attacks, or who blackmail them with such images, should face new criminal charges, so of course we support the amendments.
The use of intimate, private sexual images as a weapon with which to embarrass, humiliate and degrade is a crime, and it is right that it should be recognised in law. The new offence is a positive step, although in itself it is not adequate to address the underlying societal attitudes and behaviours that create and legitimise sexual violence, abuse and harassment in all its forms, so a government commitment to addressing those issues is also vital. The noble Baroness, Lady Brinton, is quite right to raise the issue of young people and the importance of not criminalising them or, for example, having them put on the sex offender register at a very early age for doing the extremely stupid things that young people are sometimes prone to doing.
The Government’s amendments will ensure that this is enacted. However, we need to ask today how effective they will be. I therefore have a series of questions to put to the Minister and to the noble Lord, Lord Marks. Could the Minister explain why this offence was not made part of the Sexual Offences Act? Will convictions for this offence be recorded by the CPS as a sex offence—in other words, would the person convicted be on the sex offender register?
As it stands, depending on the interpretation of “distress”, the law will provide a remedy to a victim who is distressed, but not angry. Professors Rackley and McGlynn, who have been advising many Members of the House throughout the discussions about revenge porn and rape porn, explained that the focus of the law should be on the offender’s actions and the absence of consent, not on the victim’s response, and I think that is right. Does the distress element also place an unnecessary additional burden on the prosecution? Professors Rackley and McGlynn contend that the mental element of the offence should be the intentional act of posting private sexual images without consent, including for the purpose of financial gain. We have to ask whether the issue of distress could actually significantly limit the effectiveness of this offence.
There is concern about the restriction of the offence to identifiable images. It should be immaterial whether someone else recognises the person in the relevant image. The publishing of private sexual images without consent should be a criminal offence, whatever the motivation of the offender and whatever form the victim’s response takes. It is the absence of consent that is fundamental. Would the restriction of the offence to identifiable images result in unnecessarily complicated evidential debates in court?
I will speak briefly to my own Amendment 106. It seems to us that we need to monitor the effectiveness and the implementation of this new law. We believe that the proposals of Clause 31 do not fulfil the Prime Minister’s commitment to equate online restrictions with the BBFC’s guidelines. Although we recognise that legislation in this area is very complex, it needs to be recognised that the Government have not yet solved the problem. It is important that there is a commitment to review the provisions of this clause within a year or so to assess their effectiveness: the number of prosecutions brought, the number of convictions, et cetera. Following a review of the new provisions, if they have not proved effective, the Government should consider the wholesale review of the regulation of obscenity and pornography. This is to ensure that the law is fit for purpose in our technological age and to reorientate the law in this area away from disgust and distaste and toward a focus, perhaps, on cultural harm—a discussion that we have had in this House before. It is therefore important to put in the Bill that 18 months from enactment would be sufficient time to see what was happening to the new regime and that the principle should be that an independent review is conducted.
Lord Faulks
My Lords, I thank my noble friends Lord Marks, Lady Grender, Lady Brinton and Lady Barker for Amendment 98 on the issue of revenge pornography. As the House has been told, I recently met with my noble friends to discuss this amendment, which I believe seeks—and this has been confirmed in the course of the debate—to achieve the same aim as the Government’s Amendments 103 to 105, 113 and 186 to 188. We particularly discussed whether the government amendment’s definition of “sexual”, when defining the material that the offence will apply to, is sufficiently explanatory.
My noble friend Lord Marks asked me, in the course of the debate, whether the additional subsections added anything to “sexual” or, as he put it, widened the ambit. I confirm that they do. The use of the word “or” makes that sufficiently clear. A photograph or film is sexual if it shows an individual’s exposed genitals or pubic area or shows something that a reasonable person would consider to be sexual either because of its nature or given its overall content. However, it would not be helpful to go further than this on the face of the statute or now by, for example, listing particular types of sexual material that would be covered. Such a list is unlikely ever to be exhaustive and its inclusion could potentially hinder the judiciary’s ability to interpret the wording of the offence in a flexible way.
My noble friend’s amendment is constructed in a rather different way to the government amendment and omits some important information, but I need comment very little on those details in view of the fact that, after some useful discussions, it has now been accepted by my noble friends on the Liberal Democrat Benches that the government amendment captures what this offence is all about.
The disclosure of this sort of material is undoubtedly extremely distressing for victims. They feel humiliated and are left deeply distraught both by the disclosure of very personal, sexual images of themselves and by the breach of trust involved in sharing images that had been considered private.
I pay tribute to my officials for working extremely hard on what is a very difficult offence to capture appropriately. We all know what this is aimed at, but it has been a considerable challenge to reflect it in the legislation. My officials have been carefully considering this problem with the relevant agencies and interested stakeholders such as the NSPCC and Victim Support. The testimonies we received, together with the efforts of a number of parliamentarians—many of whom have been identified in this debate—confirmed our intention to create a specific offence that will punish this pernicious practice.
The current law can already punish instances of this behaviour in certain circumstances. A number of offences can be used, and the recently updated guidance from the CPS has made clear that, where intimate images are used to coerce victims into further sexual activity, offences in the Sexual Offences Act 2003 can be used both where the victim is an adult and where they are a child.
This offence, however, will target very different behaviour: namely, the malicious disclosure of private sexual photographs or films. The offence seeks to target material, the disclosure of which would have the potential to cause the most harm to an individual. It will therefore apply to the disclosure of private sexual photographs or films of people, such as those which show them engaged in sexual activity or depicted in a sexual way where what is shown is not the kind of thing usually seen in public. In determining whether the picture is sexual, the court will be required to take into account both the nature of what is shown and the context provided by the whole of the pictures’ content. To commit the offence, the disclosure must take place without the consent of at least one person featured in the image and with the motivation of causing that person distress.
I will respond to a query posed by the noble Baroness, Lady Thornton, about whether this is regarded as a sexual offence in the same way as an offence in the Sexual Offences Act 2003, such as a sexual assault or voyeurism, is regarded. We absolutely agree that revenge porn is a very serious issue, with the potential to cause great harm. That is why we have introduced this criminal offence, with a substantial period of imprisonment. However, we do not think that it is appropriate to view it as a particular sexual offence in the same way as these other offences. Research in previous cases has shown that revenge porn—the emphasis here being on “revenge”—is perpetrated with the intention of making a victim feel humiliated and distressed rather than to obtain sexual gratification, which is what defines an offence as sexual. Of course, the definition says, “with the intention” of causing distress, so you do not have to have evidence of distress or some rather unnecessary distinctions about what is distress, or anger, and so on. Therefore the intention is there, and revenge lies behind it. That is not to diminish the seriousness, but more accurately to characterise what is the mischief we are aiming at.
The offence will apply equally offline as well as online—not just to images transmitted electronically but also to those which are disclosed in more traditional ways.
These amendments provide three defences available to those charged with the offence. First, it will be a defence for the defendant to prove that they reasonably believed that the disclosure of an image was necessary for the purpose of preventing, detecting or investigating crime. That, I hope, is self-explanatory, and finds its echoes in other legislation.
Secondly, where an individual adduces sufficient evidence that the disclosure in question took place in the course of, or with a view to, the publication of journalistic material and they reasonably believed that, in the particular circumstances, the publication of that journalistic material was, or would be, in the public interest it will be for the prosecution to prove the contrary. This defence will, in the rare cases to which we expect it to apply—and rare they will be—enable journalists and their sources to disclose images, for example with a view to publishing a commercial newspaper story, if they genuinely and reasonably believed there was a legitimate public interest in the publication. This is a stringent test but we believe it is necessary to ensure that the offence will not inappropriately interfere with press freedom.
Lord Marks of Henley-on-Thames
My Lords, in withdrawing Amendment 98, I simply say that I am grateful for my noble friend’s clarification that he agrees with our view that proposed new subsections (3)(b) and (3)(c) in Amendment 105 do indeed add to the rather definite description of “sexual” in subsection (3)(a).
At the meeting that we have mentioned, we discussed whether we should include a non-exhaustive list of factors that might be taken into consideration when coming to a conclusion as to whether an image is sexual. I have reached the clear view that the Minister and his officials are right to conclude that such a list would not be helpful; indeed, it might have the effect of limiting the ambit of the offence. I beg leave to withdraw the amendment.
Lord Sharkey
“Disregarding certain convictions for buggery etc: making an application on behalf of another person
(1) In section 92 of the Protection of Freedoms Act 2012 (power of Secretary of State to disregard convictions or cautions), after subsection (1) insert—
“(1A) A person may make an application under subsection (1) on behalf of another person if that other person is deceased and if the following conditions are satisfied—
(a) the applicant can show direct descent from the deceased person or from the parents of the deceased person;(b) the applicant can provide proof of the death of the person for whom the application is being made; and(c) the conviction for which the application is made is recorded in Police Central Records or the applicant can supply documentary evidence to satisfy the Secretary of State that the offence for which the deceased person was convicted or cautioned was not non-consensual, did not involve persons under the then age of consent and did not take place in a public lavatory or other proscribed public place and was not otherwise a criminal offence.”(2) In section 93 of that Act (applications to the Secretary of State)—
(a) in subsection (2)(a), at the end insert “or if applying on behalf of a deceased person, the name and dates of birth and death of that person”;(b) in subsection (2)(b), at the end insert “or if applying on behalf of a deceased person, the name and address of that person at the time of the conviction or caution”.”
Lord Sharkey (LD)
My Lords, in 2012 we passed the Protection of Freedoms Act, which allowed all those men convicted under the Labouchere amendment of 1865 and similar homophobic laws to apply to have their convictions disregarded. Some 75,000 men were convicted under these Acts; 16,000 of them are still alive and may apply to have their convictions disregarded—around 200 already have done so. However, 59,000 similarly convicted men are now dead, and the Protection of Freedoms Act makes no provision for them.
At every opportunity since the passing of this Act, I have tried to do something about this—quite often at 10 pm at night. I have tried to amend the Act so that the applications for disregard can be lodged for those now dead as well as for those still living. This seems to me a matter of elementary justice, fairness and equal treatment, and a matter of granting comfort to the families and friends of those convicted but now dead. It is a matter of providing public recognition of a wrong done. It would bring an appropriate closure to a long-running injustice against homosexual men.
In Committee on the Bill, I tried again to do this, to bring about equality of treatment for the victims of our past homophobic laws for the living and for the dead. Once again, the Government felt unable to agree and put forward two arguments. The first was that the intention of the disregard for the living was essentially practical. It was to enable convicted individuals to get on with their lives without the stigma of the disregarded offence. Since the last convictions were more than 40 years ago, this will have had a welcome, but very limited, effect. In any event, this is surely only a part of the purpose of the disregard. It overlooks the comfort provided to families, friends and lovers and it overlooks the public recognition of the wrongs done to those men.
The Government’s second argument seemed to have more force. They were concerned that extending the disregard would place a disproportionate burden on public resources. For example, they were concerned about the cost and time involved in finding records that predated the establishment of the National Policing Improvement Agency’s central database. However, in rejecting my amendment, the Minister agreed to facilitate meetings with the Home Office and the Ministry of Justice to discuss the matter. I was very grateful that these meetings took place last Tuesday and Thursday, during which it became clear that the Home Office officials’ concerns about disproportionate time and costs in extending the disregards had three basic components. The first was the danger of being overwhelmed by bulk applications. The second was the sheer difficulty in finding older records; it was pointed out to me that there was no central database for very old records, some of which may be held in local police stations or may not exist. Even if they did exist and were found, they might not contain sufficient information to qualify a person for a disregard. The third problem was the danger of spoof applications—in other words, applications lodged on behalf of an allegedly deceased person while that person was still alive. It was extremely helpful to have these concerns explained, for which I owe a debt to the Minister and to his officials.
This explanation of the likely difficulties has enabled me to revise my Committee amendment considerably. The amendment now before your Lordships addresses each of the Home Office’s concerns. The first part of the amendment addresses the concern about bulk applications by restricting the class of people who may apply on behalf of a deceased person to the direct descendants of that person or to their parents.
Lord Lexden (Con)
My Lords, I am glad to support this amendment, just as I was very glad to support the previous version that my noble friend Lord Sharkey put forward in Committee. As my noble friend reminded us again this evening, in 2012 Parliament made a decision of major importance to the gay community. It made provision in law that all living persons who had been convicted of sexual offences that have subsequently been swept away should have the absolute right to apply to have those unfair convictions disregarded. The statute book was disfigured in 1885 by the Criminal Law Amendment Act, which contained a notorious provision, smuggled into the legislation late at night, which criminalised gay men—not gay women—for the first time for consensual sexual acts in private. That provision should never have been passed. It, and other discriminatory laws were repealed some 80 years later, after they had wrecked the lives of thousands of fine gay men. The majority of them are now dead and it must surely be right that the arrangements introduced in 2012 in respect of living persons should be extended so that the families of those no longer alive can seek true justice for their forebears, and so gain satisfaction and peace of mind that such belated justice can bring.
On behalf of the gay community I thank my noble friend for the care with which, since Committee, he has discussed his amendment, as he has told us, with Ministers and officials, and modified it in the light of their comments. This amendment is needed to complete a laudable rectification of great injustice. But it will do something else of great importance, as my noble friend Lord Black of Brentwood, who cannot be here this evening, made clear in Committee. It would signal to the many countries in the Commonwealth which maintain oppressive anti-gay laws for which this country was originally responsible that Britain now wholly rejects unjust and oppressive treatment of gay people and, so far as is possible, has made amends for terrible, terrible past errors. I hope that the Government will look favourably on this amendment.
Lord Beecham
My Lords, I join the noble Lord, Lord Lexden, in supporting this amendment. I hope the Government will look at it sympathetically. In previous debates, the Minister had some reservations about costs and the like, which have now been addressed by the amendment of the noble Lord, Lord Sharkey. I very much hope that the Minister will indicate that the Government are prepared to accept that.
If there remain any areas of doubt, then perhaps he would undertake to bring the matter back at Third Reading so that any potential difficulties or shortcomings might be addressed. It is clearly not easy to do that after 10 pm on the first day on Report. I hope we can resolve any remaining doubts at Third Reading, though if the Minister is able to accept the amendment this evening then so much the better.
Lord Faulks
My Lords, I thank the noble Lord, Lord Sharkey, for his continued concern and interest in this matter, and for his elegant and accurate summary of the progress of the amendment and the resultant meetings that took place with me, my noble friend Lord Bates and Home Office officials. I hope that the noble Lord is reassured that the Government now recognise his concerns, which have been eloquently supported this evening by my noble friend Lord Lexden, as they were in Committee.
The Protection of Freedoms Act reflected the Government’s determination that people’s lives should not be unfairly blighted by historical convictions for consensual gay sex with people over 16. However, where someone has died, these provisions would not have the same effect. The Government accept that, as well as removing obstacles for the living to find work, there is a recognition that a disregard puts right a historic wrong, and that this would apply to the deceased as well as the living.
Following the helpful discussions the noble Lord, Lord Sharkey, had with me, my noble friend Lord Bates and Home Office officials, the Government are willing to explore ways of achieving disregards for the deceased, over a longer timescale. What I mean by “over a longer timescale” is not while this Bill is going through its process and not by Third Reading, as I understand my noble friend was indicating. He may ask why not. We have made some progress, but officials would want to carry out a full and proper assessment. Some issues that require attention include a precise definition of who could apply on behalf of the deceased. We have made progress in that. There is an assumption that the amount of applications will be manageable, but we want to carry out more work to obtain greater confidence on this, as each application does place a significant burden of work on the police in tracing local records. On documentary evidence, the effect of a disregard is not clear, as there are no police records to delete, and we would not want to destroy historic records from the National Archives.
These points were touched on in our meetings, but officials are most anxious that all those matters should be completely resolved before proceeding to legislate rather than to impose too heavy a burden, when we ask them to focus on so many other issues. We want to ensure that the decision to disregard maintains the current exacting standard to ensure that only the deserving are granted a disregard. Of course, there are very deserving cases.
While I cannot accept this amendment and I am not committing to introduce such a change in this Bill, the Home Office repeats its commitment to consider this matter and would be happy to include the noble Lord, Lord Sharkey, in any further discussions. He has done the House a great service by bringing this to our attention but I hope the assurances that I have given will allow him to withdraw his amendment.
Lord Sharkey
I thank the Minister for his reply and am grateful for the progress that we have been able to make in advancing the case for the posthumous disregard. I would have been even more grateful had he been able to say that the matter could be dealt with at Third Reading, but I understand that it is important to do this in a timely and proper manner.
I would like to know, however, what timescale is envisaged. We know what we are trying to check; we know what assessments we have to make. I wonder whether the Minister can give me some sense of how long it might take and perhaps some reassurance that, when it comes to discussions about the scope of Home Office Bills, there will be some liberality in the interpretation of “scope” to enable an amendment, if we get to that point, to be brought forward in a forthcoming Home Office Bill.
Having said all that, I repeat that I am grateful for the help given by the Ministry of Justice and the Home Office. I hope that we can make fairly rapid progress from hereon. I beg leave to withdraw the amendment.
Baroness Berridge
SchedulePossessing an offensive weapon etc: consequential provisionMental Health Act 1983 (c. 20)1 In section 37(1A) of the Mental Health Act 1983 (powers of courts to order hospital admission or guardianship)—
(a) in paragraph (za), after “section” insert “1(2B) or”, and(b) in paragraph (aa), after “section” insert “139(6B), 139A(5B) or”.Criminal Justice Act 1988 (c. 33)2 In section 36(2)(b) of the Criminal Justice Act 1988 (reviews of sentencing)—
(a) in sub-paragraph (zi), after “section” insert “1(2B) or”, and(b) in sub-paragraph (ia), after “section” insert “139(6B), 139A(5B) or”.Powers of Criminal Courts (Sentencing) Act 2000 (c. 6)3 The Powers of Criminal Courts (Sentencing) Act 2000 is amended as follows.
4 (1) Section 12 (absolute and conditional discharge) is amended as follows.
(2) In subsection (1), for the words from “section 110(2)” to “2006” substitute “a provision mentioned in subsection (1A)”.
(3) After that subsection insert—
“(1A) The provisions referred to in subsection (1) are—
(a) section 1(2B) or 1A(5) of the Prevention of Crime Act 1953;(b) section 51A(2) of the Firearms Act 1968;(c) section 139(6B), 139A(5B) or 139AA(7) of the Criminal Justice Act 1988;(d) section 110(2) or 111(2) of this Act;(e) section 224A, 225(2) or 226(2) of the Criminal Justice Act 2003;(f) section 29(4) or (6) of the Violent Crime Reduction Act 2006.”5 In section 100(1A) (offenders under 18: detention and training orders), for paragraphs (a) and (b) substitute—
“(a) section 1(2B) or 1A(5) of the Prevention of Crime Act 1953 (minimum sentence for certain offences involving offensive weapons);(b) section 139(6B), 139A(5B) or 139AA(7) of the Criminal Justice Act 1988 (minimum sentence for certain offences involving article with blade or point or offensive weapon).” 6 (1) Section 130 (compensation orders against convicted persons) is amended as follows.
(2) In subsection (2), for the words from “section 110(2)” to “2006” substitute “a provision mentioned in subsection (2ZA)”.
(3) After that subsection insert—
“(2ZA) The provisions referred to in subsection (2) are—
(a) section 1(2B) or 1A(5) of the Prevention of Crime Act 1953;(b) section 51A(2) of the Firearms Act 1968;(c) section 139(6B), 139A(5B) or 139AA(7) of the Criminal Justice Act 1988;(d) section 110(2) or 111(2) of this Act;(e) section 224A, 225(2) or 226(2) of the Criminal Justice Act 2003;(f) section 29(4) or (6) of the Violent Crime Reduction Act 2006.”7 (1) Section 146 (driving disqualification for any offence) is amended as follows.
(2) In subsection (2), for the words from “section 110(2)” to “2006” substitute “a provision mentioned in subsection (2A)”.
(3) After that subsection insert—
“(2A) The provisions referred to in subsection (2) are—
(a) section 1(2B) or 1A(5) of the Prevention of Crime Act 1953;(b) section 51A(2) of the Firearms Act 1968;(c) section 139(6B), 139A(5B) or 139AA(7) of the Criminal Justice Act 1988;(d) section 110(2) or 111(2) of this Act;(e) section 224A, 225(2) or 226(2) of the Criminal Justice Act 2003;(f) section 29(4) or (6) of the Violent Crime Reduction Act 2006.”8 In section 164(3) (further interpretive provisions)—
(a) in paragraph (aa), after “section” insert “1(2B) or”, and(b) in paragraph (ba), after “section” insert “139(6B), 139(5B) or”.Criminal Justice Act 2003 (c. 44)9 The Criminal Justice Act 2003 is amended as follows.
10 (1) Section 142 (purposes of sentencing: offenders aged 18 or over) is amended as follows.
(2) In subsection (2)(c), for the words from “section 1A(5)” to “detention for life for certain dangerous offenders)” substitute “a provision mentioned in subsection (2A)”.
(3) After that subsection insert—
“(2AA) The provisions referred to in subsection (2)(c) are—
(a) section 1(2B) or 1A(5) of the Prevention of Crime Act 1953 (minimum sentence for certain offences involving offensive weapons);(b) section 51A(2) of the Firearms Act 1968 (minimum sentence for certain firearms offences);(c) section 139(6B), 139A(5B) or 139AA(7) of the Criminal Justice Act 1988 (minimum sentence for certain offences involving article with blade or point or offensive weapon);(d) section 110(2) or 111(2) of the Sentencing Act (minimum sentence for certain drug trafficking and burglary offences);(e) section 224A of this Act (life sentence for second listed offence for certain dangerous offenders);(f) section 225(2) or 226(2) of this Act (imprisonment or detention for life for certain dangerous offenders);(g) section 29(4) or (6) of the Violent Crime Reduction Act 2006 (minimum sentence in certain cases of using someone to mind a weapon).” 11 (1) Section 142A (purposes of sentencing: offenders under 18) is amended as follows.
(2) In subsection (4), for paragraph (b) substitute—
“(b) to an offence the sentence for which falls to be imposed under a provision mentioned in subsection (5), or”.(3) At the end insert—
“(5) The provisions referred to in subsection (4)(b) are—
(a) section 1(2B) or 1A(5) of the Prevention of Crime Act 1953 (minimum sentence for certain offences involving offensive weapons);(b) section 51A(2) of the Firearms Act 1968 (minimum sentence for certain firearms offences);(c) section 139(6B), 139A(5B) or 139AA(7) of the Criminal Justice Act 1988 (minimum sentence for certain offences involving article with blade or point or offensive weapon);(d) section 226(2) of this Act (detention for life for certain dangerous offenders);(e) section 29(6) of the Violent Crime Reduction Act 2006 (minimum sentence in certain cases of using someone to mind a weapon).”12 (1) Section 144 (reduction in sentences for early guilty pleas) is amended as follows.
(2) In subsection (2), for the words from “an offence” to “nothing” substitute “an offender who—
(a) is convicted of an offence the sentence for which falls to be imposed under a provision mentioned in subsection (3), and(b) is aged 18 or over when convicted,nothing”.(3) In subsection (3)—
(a) for “section 1A(6)(a)” substitute “section 1(2B) or 1A(5)”, and(b) for “section 139AA(8)(a)” substitute “section 139(6B), 139A(5B) or 139AA(7)”.(4) In subsection (4), for the words from “an offence” to “nothing” substitute “an offender who—
(a) is convicted of an offence the sentence for which falls to be imposed under a provision mentioned in subsection (5), and(b) is aged 16 or 17 when convicted,nothing”.(5) In subsection (5)—
(a) for “section 1A(6)(b)” substitute “section 1(2B) or 1A(5)”, and(b) for “section 139AA(8)(b)” substitute “section 139(6B), 139A(5B) or 139AA(7)”.13 In section 150(2) (community order not available where sentence fixed by law etc), for paragraphs (a) and (b) substitute—
“(a) falls to be imposed under section 1(2B) or 1A(5) of the Prevention of Crime Act 1953 (minimum sentence for certain offences involving offensive weapons), or(b) falls to be imposed under section 139(6B), 139A(5B) or 139AA(7) of the Criminal Justice Act 1988 (minimum sentence for certain offences involving article with blade or point or offensive weapon).”14 (1) Section 152 (general restrictions on imposing discretionary custodial sentence) is amended as follows.
(2) In subsection (1)(b), for the words from “section 1A(5)” to the end substitute “a provision mentioned in subsection (1A).”
(3) After that subsection insert—
“(1A) The provisions referred to in subsection (1)(b) are—
(a) section 1(2B) or 1A(5) of the Prevention of Crime Act 1953;(b) section 51A(2) of the Firearms Act 1968; (c) section 139(6B), 139A(5B) or 139AA(7) of the Criminal Justice Act 1988;(d) section 110(2) or 111(2) of the Sentencing Act;(e) section 224A, 225(2) or 226(2) of this Act;(f) section 29(4) or (6) of the Violent Crime Reduction Act 2006.”15 (1) Section 153 (length of discretionary custodial sentences: general provision) is amended as follows.
(2) In subsection (2), for the words from “section 1A(5)” to “this Act” substitute “the provisions listed in subsection (3)”.
(3) After that subsection insert—
“(3) The provisions referred to in subsection (2) are—
(a) sections 1(2B) and 1A(5) of the Prevention of Crime Act 1953;(b) section 51A(2) of the Firearms Act 1968;(c) sections 139(6B), 139A(5B) and 139AA(7) of the Criminal Justice Act 1988;(d) sections 110(2) and 111(2) of the Sentencing Act;(e) sections 226A(4) and 226B(2) of this Act;(f) section 29(4) or (6) of the Violent Crime Reduction Act 2006.”16 (1) Section 305(4) (interpretation of Part 12) is amended as follows.
(2) In paragraph (za)—
(a) for “subsection (5) of section 1A” substitute “section 1(2B) or 1A(5)”, and(b) for “that subsection” substitute “that provision”.(3) In paragraph (aa)—
(a) for “subsection (7) of section 139AA” substitute “section 139(6B), 139A(5B) or 139AA(7)”, and(b) for “that subsection” substitute “that provision”.Coroners and Justice Act 2009 (c. 25)17 (1) Section 125(6) of the Coroners and Justice Act 2009 (sentencing guidelines: duty of court) is amended as follows.
(2) In paragraph (ea)—
(a) for “section” substitute “sections 1(2B) and”, and(b) for “offence of threatening with offensive weapon in public” substitute “certain offences involving offensive weapons”.(3) In paragraph (fa)—
(a) for “section” substitute “sections 139(6B), 139A(5B) and”, and(b) for “offence of threatening with” substitute “certain offences involving”.”
Lord Faulks
“Extension of disqualification where custodial sentence also imposed
(1) In section 35A of the Road Traffic Offenders Act 1988 (extension of disqualification where custodial sentence also imposed)—
(a) in subsection (4)(e) and (f), omit “calculated after that term has been reduced by any relevant discount”, (b) in subsection (4)(h), omit “calculated after that sentence has been reduced by any relevant discount”, and(c) omit subsection (6) (definition of “relevant discount”).(2) In section 147A of the Powers of Criminal Courts (Sentencing) Act 2000 (extension of disqualification where custodial sentence also imposed)—
(a) in subsection (4)(e) and (f), omit “calculated after that term has been reduced by any relevant discount”, (b) in subsection (4)(h), omit “calculated after that sentence has been reduced by any relevant discount”, and(c) omit subsection (6) (definition of “relevant discount”).(3) In consequence of the amendments made by subsections (1) and (2), omit paragraphs 8 and 12 of Schedule 13 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012.”
“Mutual recognition of driving disqualification in UK and Republic of Ireland
(1) Chapter 1 of Part 3 of the Crime (International Co-operation) Act 2003 (EU Convention on driving disqualifications) is amended as follows.
(2) For the heading of the Chapter substitute “Mutual recognition of driving disqualification in UK and Republic of Ireland”.
(3) In section 54 (application of duty of the UK to give notice of driving disqualification)—
(a) in subsection (1), for paragraph (a) substitute—“(a) an individual (“the offender”) is convicted of a qualifying UK road traffic offence,(aa) when convicted, the offender—(i) is normally resident in the Republic of Ireland, or(ii) is not normally resident in the Republic of Ireland but holds a Republic of Ireland licence,”, and(b) after subsection (1) insert—“(1A) A qualifying UK road traffic offence is—
(a) an offence under the law of England and Wales or Scotland mentioned in Schedule 3;(b) an offence under the law of Northern Ireland mentioned in Schedule 3A.”(4) In section 56(1) (application of duty of the UK to recognise driving disqualification imposed outside the UK), for paragraph (a) substitute—
“(a) an individual (“the offender”) is convicted in the Republic of Ireland of an offence described in Schedule 3B,(aa) when convicted, the offender—(i) is normally resident in the United Kingdom, or(ii) is not normally resident in the United Kingdom but holds a Great Britain licence or a Northern Ireland licence,”.(5) After section 71 insert—
“71A The specified agreement on driving disqualifications
(1) In this Chapter, “the specified agreement on driving disqualifications” means the agreement specified from time to time by the Secretary of State by regulations for the purposes of this Chapter.
(2) The Secretary of State may only specify an agreement made—
(a) between the United Kingdom and the Republic of Ireland, and(b) for the purpose of giving effect in one of those States to disqualification from driving imposed in the other on conviction for an offence.(3) In this section, “disqualification from driving” means disqualification from holding or obtaining a licence to drive a motor vehicle.”
(6) In Schedule (Mutual recognition of driving disqualification in UK and Republic of Ireland) to this Act—
(a) Part 1 contains further provision for the purpose of implementing an agreement between the United Kingdom and the Republic of Ireland on the mutual recognition of driving disqualification;(b) Part 2 contains provision about the transition from the EU Convention on driving disqualification to that agreement.”
“Disclosing private sexual photographs and films with intent to cause distress
(1) It is an offence for a person to disclose a private sexual photograph or film if the disclosure is made—
(a) without the consent of an individual who appears in the photograph or film, and(b) with the intention of causing that individual distress.(2) But it is not an offence for the person to disclose the photograph or film to the individual mentioned in subsection (1)(a) and (b).
(3) It is a defence for a person charged with an offence under this section to prove that he or she reasonably believed that the disclosure was necessary for the purposes of preventing, detecting or investigating crime.
(4) It is a defence for a person charged with an offence under this section to show that—
(a) the disclosure was made in the course of, or with a view to, the publication of journalistic material, and(b) he or she reasonably believed that, in the particular circumstances, the publication of the journalistic material was, or would be, in the public interest.(5) It is a defence for a person charged with an offence under this section to show that—
(a) he or she reasonably believed that the photograph or film had previously been disclosed for reward, whether by the individual mentioned in subsection (1)(a) and (b) or another person, and(b) he or she had no reason to believe that the previous disclosure for reward was made without the consent of the individual mentioned in subsection (1)(a) and (b).(6) A person is taken to have shown the matters mentioned in subsection (4) or (5) if—
(a) sufficient evidence of the matters is adduced to raise an issue with respect to it, and(b) the contrary is not proved beyond reasonable doubt.(7) For the purposes of subsections (1) to (5)—
(a) “consent” to a disclosure includes general consent covering the disclosure, as well as consent to the particular disclosure, and(b) “publication” of journalistic material means disclosure to the public at large or to a section of the public.(8) A person charged with an offence under this section is not to be taken to have disclosed a photograph or film with the intention of causing distress merely because that was a natural and probable consequence of the disclosure.
(9) A person guilty of an offence under this section is liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding 2 years or a fine (or both), and(b) on summary conviction, to imprisonment for a term not exceeding 12 months or a fine (or both).(10) Schedule (Disclosing private sexual photographs or films: providers of information society services) makes special provision in connection with the operation of this section in relation to persons providing information society services.
(11) In relation to an offence committed before section 154(1) of the Criminal Justice Act 2003 comes into force, the reference in subsection (9)(b) to 12 months is to be read as a reference to 6 months.
(12) In relation to an offence committed before section 85 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 comes into force, the reference in subsection (9)(b) to a fine is to be read as a reference to a fine not exceeding the statutory maximum.”
“Meaning of “disclose” and “photograph or film”
(1) The following apply for the purposes of section (Disclosing private sexual photographs and films with intent to cause distress), this section and section (Meaning of “private” and “sexual”).
(2) A person “discloses” something to a person if, by any means, he or she gives or shows it to the person or makes it available to the person.
(3) Something that is given, shown or made available to a person is disclosed—
(a) whether or not it is given, shown or made available for reward, and(b) whether or not it has previously been given, shown or made available to the person.(4) “Photograph or film” means a still or moving image in any form that—
(a) appears to consist of or include one or more photographed or filmed images, and(b) in fact consists of or includes one or more photographed or filmed images.(5) The reference in subsection (4)(b) to photographed or filmed images includes photographed or filmed images that have been altered in any way.
(6) “Photographed or filmed image” means a still or moving image that—
(a) was originally captured by photography or filming, or(b) is part of an image originally captured by photography or filming.(7) “Filming” means making a recording, on any medium, from which a moving image may be produced by any means.
(8) References to a photograph or film include—
(a) a negative version of an image described in subsection (4), and(b) data stored by any means which is capable of conversion into an image described in subsection (4).”
“Meaning of “private” and “sexual”
(1) The following apply for the purposes of section (Disclosing private sexual photographs and films with intent to cause distress).
(2) A photograph or film is “private” if it shows something that is not of a kind ordinarily seen in public.
(3) A photograph or film is “sexual” if—
(a) it shows all or part of an individual’s exposed genitals or pubic area,(b) it shows something that a reasonable person would consider to be sexual because of its nature, or(c) its content, taken as a whole, is such that a reasonable person would consider it to be sexual.(4) Subsection (5) applies in the case of —
(a) a photograph or film that consists of or includes a photographed or filmed image that has been altered in any way, (b) a photograph or film that combines two or more photographed or filmed images, and(c) a photograph or film that combines a photographed or filmed image with something else.(5) The photograph or film is not private and sexual if—
(a) it does not consist of or include a photographed or filmed image that is itself private and sexual,(b) it is only private or sexual by virtue of the alteration or combination mentioned in subsection (4), or(c) it is only by virtue of the alteration or combination mentioned in subsection (4) that the person mentioned in section (Disclosing private sexual photographs and films with intent to cause distress)(1)(a) and (b) is shown as part of, or with, whatever makes the photograph or film private and sexual.”
“Public interest defence to Computer Misuse Offence
In the Computer Misuse Act 1990, after section 1(2) insert—“(2A) Subsection (1) does not apply to a person who shows—
(a) that the conduct which would otherwise be an offence under subsection (1)—(i) was necessary for the purpose of preventing or detecting crime, or(ii) was required or authorised by or under any enactment, by any rule of law or by the order of a court;(b) that he acted in the reasonable belief that he had in law the right to carry out that conduct;(c) that he acted in the reasonable belief that he had relevant authority;(d) that he acted in the reasonable belief that in the particular circumstances the conduct was justified as being in the public interest; or(e) that in the particular circumstances the conduct was justified as being in the public interest.””
Lord Marks of Henley-on-Thames
My Lords, this group comprises Amendments 106A to 106D and 181A and is the last group at the end of a long day.
Amendments 106A to 106C would introduce new defences to criminal offences under three statutes, the Computer Misuse Act 1990, the Bribery Act 2010 and the Data Protection Act 1998.
I turn to Amendment 106A. Section 1 of the Computer Misuse Act creates an offence effectively of using a computer to secure unauthorised access to data or to a program—in other words, what is conventionally called hacking into other people’s computers. The amendment would create a public interest defence to that offence. The defence proposed is directly in line with a defence that already exists under Section 55(2) of the Data Protection Act 1998, to which I will return in respect of Amendments 106C and 106D.
The amendment would place the onus squarely on the defence, stating:
“Subsection (1) does not apply to a person who shows”.
The defences are that the conduct which would be an offence was necessary for the purpose of preventing or detecting crime or was required or authorised by or under any enactment, a rule of law or by order of a court; or that the defendant acted in the reasonable belief that he had the right to carry out that conduct; or that he acted in the reasonable belief that he had relevant authority; or that he reasonably believed that the conduct was justified as being in the public interest; or that in the particular circumstances the conduct was justified as being in the public interest.
Lord Beecham
My Lords, were any other Members present, they might share my bewilderment at being faced at a very late stage, not only today but in the process of the Bill, with a series of amendments of what can only be described as some complexity for those of us—and I suspect that is most of us—who are not familiar with the territory to which the noble Lord has introduced us this evening at some length. As he has said, it is not possible—it is simply laughable—to endeavour to take these amendments to a vote tonight, but it may also be difficult to do this in time for Third Reading. The Minister may be able to comment on that.
Among these puzzling amendments I am puzzled most by Amendment 106C, with its reference in particular to a defence of there being a view to publication of journalistic, literary or artistic material. I do not see how that meets the more substantive case that I can well see in relation to what might be called the Leveson issues in 106A. These are matters that clearly need to be investigated further. I do not know whether the noble Lord envisages having these matters dealt with at Third Reading, but frankly I should have thought that that was unrealistic at this stage of the Bill. There may be another opportunity with other Bills for these matters to be taken forward. They are of such complexity that it is unreasonable to expect them to be dealt with in the course of this Bill. If that sounds a bit too ministerial, I apologise. I apprehend that the Minister might for once think that I am on the right track. We shall find out shortly.
Lord Faulks
My Lords, the noble Lord, Lord Beecham, often sounds ministerial, and from comments that he may have made earlier this afternoon he is clearly anticipating events in May when he will be able to perform that task. I do find myself in the rare position of agreeing with his comments generally about these amendments, in that they have appeared very late—late even among the amendments that have appeared in the course of this Bill, and there has been no shortage of amendments and no shortage of complexity in amendments. Indeed, I pay tribute to Members of the House for managing to get through so many amendments of such complexity today. It has taken a great deal of restraint by Members to enable the arguments to be deployed, often by others. No doubt those Members who restrained themselves may have thought they would have made better arguments or expressed the arguments with more clarity than those who did speak, but admirable restraint was shown.
We come to consider these amendments. My noble friend Lord Marks will appreciate that the pressures of time on myself and my officials has limited my ability to respond adequately to what are plainly serious issues, as he has outlined. I intend to speak to Amendments 106C and 106D in this group first. Sections 77 and 78 of the Criminal Justice and Immigration Act 2008 already provide for the changes that have been proposed for the Data Protection Act. Section 77 provides for an order-making power permitting the Secretary of State to introduce a custodial sentence for breaches of the offence in Section 55 of the Data Protection Act 1998. The penalty will apply irrespective of who has committed the offence. Given that people’s liberty is at stake and the seriousness of the offence, it is vital that proper thought is given to the introduction of such a change. That is why Parliament also provided that there must be a properly undertaken and detailed consultation with the Information Commissioner, the media and other potentially affected parties before that penalty applies. Therefore, such a change in the law now would be premature.
Lord Marks of Henley-on-Thames
My Lords, I say at the outset that I entirely accept the point made by both the Minister and the noble Lord, Lord Beecham, so elegantly and in such a restrained fashion, about the lateness of these amendments. I entirely accept that the complexity of these amendments, and the fact that the Government and the Opposition have had so little time to consider them, means that it would be wrong of me to press them to the vote today.
Nevertheless, in encouraging my noble friend and his department to give further consideration to the points raised by the amendments, I will deal briefly with some of his points. He mentioned the need for consultation under Section 77 of the Criminal Justice and Immigration Act, affecting Section 55 of the Data Protection Act—as it would be with the amendment—and he deduced from that that it would be wrong to proceed without consultation. The fact is that there have been two consultations on this issue by the previous Government, and furthermore we now have the clear recommendations of the Leveson report that both of these provisions should now be implemented. In those circumstances I find it hard to understand why he expresses the view so clearly that all Leveson’s proposed changes on data protection have to be understood together. The proposals on the new defence are not subject to a consultation requirement; that refers only to the new penalties, for which there is a crying need.
I will also deal with what my noble friend said about the existing defences, particularly his reference to the Bribery Act. He mentioned that there are defences under the Bribery Act which cover conduct by the intelligence services or the Armed Forces on active service. That may be right, but it is hardly relevant to the question of whether responsible journalism should give rise to an entirely separate defence. He also mentioned the Computer Misuse Act including a saving provision for law enforcement—again, hardly relevant to whether a public interest defence should be allowed in respect of that Act.
My noble friend is right to say the purpose of these amendments is to provide a defence for journalists acting in the public interest. It is always an important issue for the public to be protected. I suggest that the balance that needs to be struck, between journalists being able to carry out investigative work for a genuine public reason and the need to protect the public from computer misuse and unlawful conduct offering financial advantage, is one which needs a great deal of attention. He is of course right that the Crown Prosecution Service has to take the public interest into account. However, the fact that it has to consider whether a couple of further defences would succeed before making its decision is not a reason for the Government not to take these amendments forward at a later stage. I beg leave to withdraw the amendment.