House of Commons (17) - Commons Chamber (12) / Petitions (3) / Written Statements (2)
House of Lords (13) - Lords Chamber (11) / Grand Committee (2)
My Lords, good afternoon. I start with the usual announcement that if there is a Division in the Chamber while we are sitting, the Committee will adjourn as soon as the Division Bells are rung and resume after 10 minutes.
(9 years, 7 months ago)
Grand CommitteeMy Lords, the amendments in this group—I shall speak to them all together—seek to improve protections for whistleblowers. Twenty years ago, the Nolan committee highlighted the importance of,
“encouraging a culture of openness”,
in organisations to tackle and prevent malpractice. Since then, successive Governments have recognised the importance of this. The previous Labour Government brought in the Public Interest Disclosure Act and this Government have said repeatedly that they want to protect and encourage whistleblowing. The Prime Minister, for example, said:
“We will always back whistleblowers when they challenge poor standards, particularly in large organisations”.—[Official Report, Commons, 26/2/14; col. 257.]
However, there are still significant gaps in the current protections for those making disclosures in the public interest. These gaps in protection not only discourage individual cases of whistleblowing and damage individual whistleblowers quite unfairly; they also inhibit the creation of an effective culture in organisations that encourages transparency.
Large organisations that serve the public in both public and private sectors are powerful institutions. They are often driven by a potent internal culture and every case of whistleblowing challenges the powerful vested interests that run such organisations. As I have said in these debates, too often after a scandal is revealed, after the abuses have been tackled and the guilty punished, and after all the fine words about whistleblowers have been spoken, it is all too easy for those dominant interests in these organisations to revert to carrying on much as they did before. The powerful never like being challenged.
Repeated failures within the NHS, for example, have highlighted not only how important whistleblowers can be in protecting the public, but how difficult they can find trying to expose incompetence and wrongdoing. These problems are not confined to the NHS. For all the police wrongdoing after the Hillsborough disaster that has now been exposed, for 20 years no one blew the whistle. No one blew the whistle on the scandal of MPs’ expenses, even though the Fees Office in the House of Commons was well aware of the scams that went on. Whistleblowers need effective protection if the public interest is to be secured and there is clearly a need to do more. I hope that the Government will take advantage of a rare legislative opportunity to plug the gaps in protection for whistleblowers, which these amendments aim to do.
I am grateful for the support that I have received from my Cross-Bench colleagues, the noble Lord, Lord Low, and the noble Earl, Lord Lytton, and my noble friends on the Labour Front Bench. I am also grateful to the Minister and her officials for sparing the time to discuss these amendments with me in advance of today’s Committee. I hope that the Government will now respond to these amendments, to which I shall speak relatively briefly.
Amendment 66 simplifies the concepts of allegation and disclosure of information, and tackles the confusion that has arisen from the Employment Appeal Tribunal decision in Cavendish v Geduld, where an artificial distinction was made between a worker making a disclosure of information, which was protected, and the making of an allegation, which is not protected. It is unfair to expect non-legally trained workers to choose the precise wording to ensure that their disclosure is one of information rather than merely an allegation. The Cavendish v Geduld decision provides a convenient way for bad employers to ignore the concerns raised by claiming that the disclosure represents an allegation, as opposed to information. Moreover, the decision undermines one of the Public Interest Disclosure Act’s key policy aims, which is that protection should be most easily obtained for disclosures to the employer.
Amendments 63 and 67 seek to tackle the continuing problems of so-called gagging clauses. Even though the current law renders gagging clauses in any agreement void, there is evidence that further clarity is required. It is difficult to know exactly how extensive this problem is because of the confidential nature of severance agreements, but the experience of Public Concern at Work, the whistleblowing charity, suggests that many still feel gagged, even though these clauses may not be applicable in law. The National Audit Office also recently looked at this issue and concluded that many individuals believed they were gagged as a result of the events leading up to the signing of the agreement, including: the culture of the workplace; the attitude towards whistleblowing; the wording of the agreement itself; and because it was often not made clear to individuals that confidentiality clauses would not prevent them making disclosures on concerns of public interest. The National Audit Office looked at 50 agreements from the public sector, 49 of which were found to include a confidentiality clause which, in the end, prevented the individual discussing the terms of the agreement. It judged that none of the agreements would have legally prevented the whistleblower raising a concern, but its report gives several examples of how individuals nevertheless felt gagged.
Amendment 64 seeks to extend the protection for whistleblowers to student healthcare professionals. Students in these professions, with the fresh insights they bring to their work, are often well placed to make disclosures in the public interest. The case for extending whistleblowing protection to them has been extensively rehearsed. I do not intend to repeat it today, as I under- stand that the Government have already made a commitment to extending these protections. However, I would be grateful if the Minister could tell the Committee what progress they are making in doing this.
Amendment 65 seeks to tackle the problem of job applicants who find themselves denied employment opportunities because they have made a disclosure in the public interest. If an individual is labelled as a whistleblower, it can be difficult for them to get work because they can find themselves, in effect, blacklisted, not through a formal, central database but informally. This is a particular problem in small industries and within small communities. Unlike in other areas of discrimination law, job applicants are not considered workers under the Public Interest Disclosure Act, which provides protection where a worker secures a position and is then victimised, forced out or dismissed if the employer becomes aware of an instance of whistleblowing in a previous job. The amendment seeks to plug the loophole, which was identified in BP plc v Elstone, where the Court of Appeal stated that this situation was created because the drafting of the Act had not considered the situation of a job applicant being victimised for raising concerns in a previous job. The amendment addresses this anomaly. It might be helpful to the Committee to remember that an employer who is unaware that an applicant blew the whistle in a previous job would not be in breach of the Public Interest Disclosure Act. This is because, to succeed, the worker would need to prove not only that they had made a protected disclosure in a previous job and the prospective employer knew this—perhaps through a reference check or because the applicant informed the prospective employer of their whistleblowing past at interview—but also that this led to the decision not to recruit them. Without this causal link being demonstrated to the Employment Appeal Tribunal, there would be no case to answer. The amendment seeks to put this beyond argument.
Amendment 62 seeks to extend protection to those victimised for being falsely accused of whistleblowing. The Public Interest Disclosure Act does not protect a worker dismissed or victimised because the employer wrongly believes that they are a whistleblower. The worker cannot, therefore, link a disclosure to the dismissal or victimisation. This is an obvious anomaly and, in addressing it, the amendment follows the precedent of the Equality Act, under which legal protection for sexual orientation can still apply, even though an employer wrongly believes that someone is homosexual or heterosexual and discriminates on that assumption. Although the Equality Act is prohibitive legislation and the Public Interest Disclosure Act is not, other changes, such as the recent ones on vicarious liability, have borrowed from discrimination law. The amendment suggests a similar approach in relation to those who are wrongly identified as whistleblowers, without suggesting that being a whistleblower should be seen as a protected characteristic.
Amendment 68 seeks to embed a code of practice into statute, so that it will be taken into account by courts and tribunals. This was a key recommendation of the whistleblowing commission, chaired by the former Appeal Court judge Sir Anthony Hooper, which did invaluable work in this area in 2013. It drafted a 15-point code of practice, which provided practical guidance to employers, workers and their representatives and sets out guidance for raising, handling, training and reviewing whistleblowing in the workplace. A statutory code of conduct would send out to all organisations, in the public and private sectors, a powerful signal about the importance that Parliament attaches to providing adequate support for whistleblowers. This should help to drive the necessary cultural change within organisations to encourage whistleblowing.
Finally, I turn to Amendments 68ZA to 68ZF, which work together to set up a new office of a whistleblowing ombudsman. I am even more grateful than I usually am to the clerks for their invaluable help in drafting these amendments. Despite their length, they are essentially probing amendments, aimed at eliciting the Government’s attitude towards setting up such a whistleblowing ombudsman or some similar organisation. Establishing this was another important suggestion made by the whistleblowing commission. Its work, and the range and scope of the amendments that I have put forward today, suggest that providing adequate protection for those making disclosures in the public interest is a continuously evolving challenge.
Establishing an ombudsman, which need not involve expensive and elaborate bureaucracy, could provide an effective way of responding to this challenge. It could receive concerns and investigate retaliation against whistleblowers. It could also offer a form of alternative dispute resolution in whistleblowing cases. This would mean that whistleblowers would not always have to wait for such rare opportunities for legislation as this Bill to receive the protections that they deserve and the public need them to receive. It may also help to avoid the delays and costs of court and tribunal cases. I do not expect the Minister to make a pledge this afternoon, but I hope that she will at least feel able to commit to exploring positively and constructively the creation of such an organisation. I beg to move.
My Lords, I have my name to most of these amendments. I was not able to get my name to those starting with Amendment 68ZA, which relate to the whistleblowing ombudsman, but I support those as well.
I support everything that the noble Lord, Lord Wills, has said about this group of amendments. Amendment 62, as we have heard, aims to give extra protection to individuals who are falsely accused of blowing the whistle because the employer erroneously assumes that they were the source of the disclosure, based on a previous incident or a reputation for challenging poor behaviour or malpractice in the past. It is wrong that employers should be able to penalise people when they have simply jumped to unsubstantiated conclusions, perhaps or perhaps not based on something that happened in the past. It would be the purpose of this amendment to avoid that possibility, or at least to give those who have been damaged by employers making such unsubstantiated assumptions a remedy.
Amendments 63 and 67, as we have heard, will help to alleviate some of the misconceptions around the protection afforded to whistleblowers under Section 43J—the anti-gagging provision—which was inserted in the Employment Rights Act by the Public Interest Disclosure Act. As has been said, the legal principles on which Section 43J is based are not the problem; it is that the section could be drafted more clearly. Instead of providing an oblique defence, the new provision in the amendment would act as a shield, preventing information that may point to malpractice, wrongdoing or a health and safety risk being buried in secret settlements. Clearer wording that could be understood by an individual who is not legally trained may well break down this potential barrier for the worker and be of benefit to the employer, as their duties and obligations in this area will be rendered all the clearer.
My Lords, I apologise for being a little late for the beginning of the remarks of the noble Lord, Lord Wills, but I will say a few words in this debate. Generally on this side we are supportive of moves that provide extra protection for whistleblowers. Clearly, people who feel that they have to whistleblow must be protected and must have the remedy for being protected. Listening to the debate, I think that the idea of having some form of national code that would supersede the many codes that have grown up is on the face of it a good thing. I will say only that speed is always of the essence in these cases. If they are allowed to drag on, they become very bureaucratic —the individuals are put to huge inconvenience and stress while their grievances are dealt with. My only concern about setting up another regulator or ombudsman is about whether that would just create a bureaucracy that would add to the burden on those who try to deal with these issues, and would slow up the process in which grievances can in general be dealt with quickly. Obviously I will be very interested to hear what the Government have to say in response. We are broadly sympathetic to this tightening up of legislation in this area and the encouragement it should give to genuine whistleblowers.
My Lords, we support these amendments. I will preface my remarks by reminding us that in many circumstances this is a matter of life and death. Often the whistleblower finds that his or her life is turned upside down for a considerable period of time and they are put under enormous stress. The lives of the general public can also be affected, as we know from some of the first cases, for example that of the paediatric unit in Bristol. We know that when large organisations get it wrong, they put people and the public at risk, sometimes in extreme circumstances. It is right to remind ourselves of that, and of how much courage it takes for an individual in a large organisation to bring themselves to the point when they feel they have to whistleblow. They might have gone through the procedure of trying to alert their first line manager or even somebody further up the management chain, and still have failed to get any recognition that there was a real problem to be addressed.
We therefore think that the amendments proposed by my noble friend Lord Wills are reasonable; they are justifiable in trying to sort out whether a worker is in fact a whistleblower and is ensured protection. That is extremely important. The amendment enables workers who have been wrongly identified as having made a protected disclosure to be protected under PIDA. Trying to ensure that gagging clauses are finally rooted out is surely another important amendment, and I look forward to hearing the Minister’s response to it. The National Audit Office concluded that many individuals believed that they were gagged regardless of whether or not this was actually the case. Anything that makes that situation clearer and provides adequate protection surely is worth while.
I do not think I need to take much time over the question of whether or not we should include student medical professionals. It seems necessary and I hope that the Government will be sympathetic to it.
Amendment 65 deals with blacklisting. Although we believe that there should be a further inquiry into the general nature of blacklisting, my noble friend Lord Wills has suggested a very reasonable approach to what happens to an individual who, having already lost their job through no fault of their own, finds themselves in a situation where they are unable to gain any further employment, which is surely appalling.
Amendment 63 seeks to ensure that there is not a get-out clause where an employer can suggest that instead of something being a disclosure of information where there is a protected circumstance, that can be got round by considering that it in fact was an allegation, which does not give the employee protection.
I do not need to go into an awful lot more detail because my noble friend Lord Wills and the noble Lord, Lord Low, gave a very detailed analysis. But I will deal with the point about the whistleblowing ombudsman, if only to respond to the noble Lord, Lord Low. One can always make the point about another layer of bureaucracy but when somebody finds themselves in the position of being a whistleblower, we would like to think that these situations are dealt with speedily and promptly but all the evidence tells us that unfortunately these cases go on, in many cases for years, and surely at the end of the day what the individual wants is justice. Having somebody who is genuinely independent as the last port of call is a worthwhile suggestion.
For those reasons, we support these amendments and I look forward to hearing the Minister’s response.
My Lords, as a new Member of the House, it has been fascinating to follow this Bill through Committee. I am sorry I was unable to speak at Second Reading but I just wanted to say that I support the Bill as a whole, and Clause 144 on whistleblowing. However, listening to noble Lords, there seems to be a lot of new material here that could hold up this important Bill. I should like to hear from my noble friend the Minister what else may be planned outside the Bill on this very important issue.
My Lords, the power in Clause 144 is just one of a number of changes the Government are making to improve the whistleblowing framework. In particular, we are acting in this Bill to ensure that prescribed persons—mainly regulators—report annually on whistleblowing. The purpose of this is to make the existing process, which of course is provided for in the Employment Rights Act 1996, transparent and more effective. I think it is an important provision.
I know that the noble Lord, Lord Wills, is very passionate about this subject. I valued the meeting we had to discuss his very wide-ranging amendments and understand the issues around whistleblowing right across the piece. I reassure him that his desire to improve the way whistleblowing is handled is shared by this Government.
I am grateful to the noble Lord, Lord Low of Dalston, for his comments, including his emphasis on openness, which is, of course, a feature of this clause, and I commend the noble Baroness, Lady Mobarik, on her first intervention in this Committee and for a typically acute question, which I hope I will be able to answer.
This is an important debate. The Government are determined to protect and encourage whistleblowers. Indeed, I take this opportunity to congratulate the whistleblowers at Mid Staffordshire NHS in particular, but others too, on their courage—in the words of the noble Lord, Lord Young. Attitudes must change, as the noble Lord, Lord Wills, has highlighted, quoting the Prime Minister. That is why we are making a number of statutory and non-statutory changes in this Parliament to change the culture and improve and promote the whistleblowing framework. I believe that these changes, mainly outside the Bill, should be given the chance to take effect, and perhaps I can highlight them as I go through and comment on the various amendments.
I will begin, if I may, with Amendment 68. The Government agree that a code of practice and guidance for employers would help to promote the whistleblowing framework. This is why we are currently working with key stakeholders to create improved guidance and a non-statutory code of practice. We intend to publish these before the end of this Parliament. I strongly believe that educating employers on the benefits that whistleblowing can bring to an organisation will contribute to a positive cultural change in the way whistleblowing disclosures are handled.
Until now, the Government have expected the legal framework alone to drive behavioural change by encouraging employers to embrace whistleblowing, but clearly, from the evidence that we have, not least the examples that the noble Lord presented, the law alone is not having this effect. This is why the Government are taking steps to provide detailed guidance setting out how the law should be interpreted. We will keep this under review, and if this is not bringing about the change that we expect to see, we will consider introducing a statutory code of practice.
Amendments 64 and 65 look to amend the definition of a worker to include students in the healthcare sector and job applicants. This is a good call, and I can confirm that as a result of the Government’s call for evidence of 2013, we are making a change to bring student nurses and student midwives into the scope of the whistleblowing framework. It is the Government’s intention for this to be in place by 6 April. The statutory instrument has been laid before Parliament, and I believe there is a debate in the other place on 3 February.
The Government wish to extend the definition of “worker” further to include all students within the healthcare profession, although further work must first take place to design a legislative solution that works for the different professions within this sector. The different regulators in the healthcare sector have varying arrangements for registering professionals and training people, all of which needs to be taken into account. The noble Lord, Lord Wills, encouraged us to cover all healthcare students in the scope of PIDA. I can say that the Department of Health is beginning discussions with the relevant professional bodies about this work, and I am happy to undertake to keep him informed of progress, if that would be helpful.
Amendment 65 would extend the definition of “worker” to cover job applicants as a way to prevent whistleblowers being blacklisted and struggling to find new employment. The Government agree that those who have previously blown the whistle should not be disadvantaged when seeking new employment opportunities. That is why we are in the process of identifying the most suitable solution to address this issue, but it is a complex area, and we must ensure that any legislation would not have unintended consequences, such as creating an unfair burden on employers to prove either that they did not know that a person was a previous whistleblower or, if they did, that whistleblowing was not the reason for not hiring them. These kinds of scenarios could make recruitment processes unfair, burdensome or bureaucratic, and we have to see what we can do to get around that.
We must also ensure that employers are not unfairly exposed to the risk of tribunal claims from job applicants: for example, if they had no knowledge that an unsuccessful job applicant had previously blown the whistle, but found themselves drawn into an employment tribunal case, having been accused of causing detriment to a whistleblower.
I appreciate noble Lords’ input to suggested drafting of the legislation through this amendment, but there is work to be done to get this right and it will take time, beyond this Parliament, to reach a suitable solution. It would not be right to add this half-cooked work to a Bill designed primarily to help small business and not to introduce new burdens for employers. If this work is to get the support we need, we have to get it right.
Amendments 63 and 67 look to provide clarity to whistleblowers on gagging clauses, which I believe can be achieved without new legislation. The Government have made very clear that gagging clauses are completely unenforceable when there is a public interest concern to disclose. The new comprehensive guidance for whistleblowers, which I have mentioned, will emphasise that settlement or severance agreements do not prevent ex-employees from raising public interest disclosures. This is set out in Section 43J of the Employment Rights Act, so it is a speedy solution.
The noble Lord, Lord Wills, and I discussed the lessons of the useful report published by the NAO in 2013, which was also mentioned by the noble Lord, Lord Young. Although this confirmed, as he acknowledged, that gagging clauses do not prevent workers from raising legitimate public interest concerns, it also showed that the workplace culture, or lack of information, often leaves the worker feeling gagged. I accept that point, so the Government are introducing a number of measures aimed at changing cultural attitudes to whistleblowing. This should help to ensure that workplace environments do not leave workers feeling that they are unable to make a disclosure.
I turn to Amendment 62. The whistleblowing framework is in place to protect those who have blown the whistle: for example, the investment banker who has reported fraudulent practice in his bank or the construction worker who has exposed health and safety laws being ignored. Those who have been dismissed for any reason other than making a public interest disclosure and believe it to be unfair would need to seek redress under unfair dismissal provisions. From the research the Government carried out in 2013, through a call for evidence, this has not come up as an area for concern. Therefore, the Government consider that there is no case for this new legislation at present. However, if noble Lords feel there are issues in this area that need to be addressed, I would be keen to know, and to have examples, so that we can look at them.
Amendment 66 proposes to include “allegations” within the meaning of a disclosure of information. The Government agree with the Employment Appeal Tribunal decision in 2009, in the case of Cavendish Munro Professional Risks Management Ltd v Geduld, that the legislation should protect individuals who make a disclosure conveying information, not those who simply raise an allegation or expression of concern. For example, a worker stating simply that they had concerns that an employer did not follow health and safety laws would be making an allegation. If that same worker explained the reasons and facts—such as a door being wedged open, putting people at risk in the event of a fire—this would meet the criteria for it to be a public interest disclosure. This is quite a small change.
Amendments 68ZA to 68ZF would provide for a whistleblowing ombudsman and set out provisions as to how this would operate. I am grateful to the noble Lord for giving the Committee the opportunity to debate this. Its purpose would be to investigate failures in dealing with whistleblowing. However, I fear that if the ombudsman were drawn into investigating all issues reported by whistleblowers, its remit would be unmanageably broad. It would potentially span all issues covered by the many regulators as well as all criminal activity that the police would investigate. The equivalent US office is huge, and given the remit this would be a major undertaking, but as the noble Lord helpfully made clear, this is a probing amendment. I also noted the concerns of the noble Lord, Lord Stoneham, about doing things speedily. This is right and relevant.
In his powerful speech on his amendments, the noble Lord, Lord Wills, set out details of the functions that an ombudsman of this nature would have and provided a good checklist. Annual reporting and best-practice guidance were on that list. As I have already said in response to the noble Baroness, Lady Mobarik, the Government are already putting these measures into effect.
However, the Government recognise that one of the main issues that people have with the whistleblowing legislation is that it is not designed to address the issue reported by the whistleblower; it is designed mainly to address the employment dispute that might arise as a result of someone blowing the whistle. The noble Lord and I discussed this.
I am glad to say that the measure in this Bill will go some way to help ensure that the issue that is reported by the whistleblower is dealt with. Clause 144 introduces a duty on regulators and professional bodies that are listed as prescribed persons to report annually on the whistleblowing disclosures made to them. I believe that this will improve transparency in the way that disclosures are handled. Of course, culture matters, too—in fact, it probably matters more than anything, as Mid Staffordshire showed us—which is why we are well advanced on our national code.
I understand the noble Lord’s concerns and appreciate the work that has gone into preparing for this discussion, which is why I have tried to respond at length. We are making progress. We need to change the culture around whistleblowing, especially in the public sector, which seems to be behind best practice externally.
We are working across government and with external stakeholders to make sure that we get our guidance on whistleblowing right. Those stakeholders include Public Concern at Work, with which I know the noble Lord has worked closely to understand the concerns of those who blow the whistle. I hope that in the circumstances the noble Lord will agree not to press his amendments.
My Lords, this has been a short but important debate. I am grateful to every noble Lord who has taken part in it and for the support for the amendments from all sides of the Committee. I am also grateful to the Minister for such a thorough, comprehensive and thoughtful reply.
I am not really surprised that the Government feel that they already have all these issues covered in the Bill and are therefore going to resist the amendments, but I take some comfort from what I thought was a positive approach on the part of the Minister. I noted that she said that if the Government feel that the measures that they are taking for a non-statutory code of practice do not work, they are prepared to look again at a statutory code of practice. We may return to this issue on Report to get a little more clarity on how often the Government are going to review it and what their measure of success or failure will be before they are prepared to consider a statutory code of practice.
I do not want to delay the Committee any more because this has been a helpful and constructive debate. I will read carefully what the Minister has said. I note that she did not completely rule out the idea of a whistleblowing ombudsman; she thought that the way in which the proposed new clauses had been drafted was too broad. I understand her concerns about speed and bureaucracy, but I do not think that they are inherent in the concept. What I may do—I give the Minister and her officials due warning—is look at this again and see whether I can crystallise some of the issues around the ombudsman to get a little more detail on how the Government may want to proceed. I thank all noble Lords again and beg leave to withdraw the amendment.
My Lords, I shall speak to all the amendments in this group. It is as well to remind ourselves what an employee has to go through even to get to an employment tribunal.
The Enterprise and Regulatory Reform Act created a number of hurdles that people have to pass. First, they must go to early conciliation at ACAS. If that breaks down, they are issued with a certificate to say that conciliation has been unsuccessful and they must go into the employment tribunal system. An entry fee has to be paid to the employment tribunal service. If they want to take it to a full hearing, there is an additional fee. We do not believe that it is just or fair for a pregnant woman who has been discriminated against at work, for example, to have to pay £1,250 to enter the employment tribunal system.
After going through an incredibly stressful time, including an often expensive employment tribunal, someone might be given a compensatory award that says that they have been wronged at work. The employer must remedy that problem but might decide not to pay. There are a number of hurdles that someone has to get past to be paid, which is why we must try to find a way of remedying the problem, particularly in cases where an employment tribunal sitting in front of a judge has declared that the employee deserves to be compensated and the wrong must be righted.
Amendment 68ZH says:
“Any payments made under this section by the employer must be paid to the employee to the extent that the relevant sum has been fully paid before any sums are payable under the penalty notice”.
Ironically, fines might well be paid to the Government as a result of an employer failing to comply but the compensatory reward could remain outstanding. The Exchequer might benefit but the individual has been denied justice in that the compensatory award has been ignored by the employer. That is why we are recommending that in these circumstances that sum should be dealt with first. Again, I look forward to hearing the Minister’s response to this.
Then there is the question of naming and shaming. We already have a number of circumstances in other legislation where employers are named and shamed. With regard to the national minimum wage, the circumstances in which employers are actually prosecuted or even named and shamed are very few and far between. That is why we believe that this clause ought to include,
“a provision for the publication of the name and other particulars of an employer who does not pay the relevant sum as per the conditions of the notice”.
I beg to move and look forward to hearing the Minister’s response.
My Lords, I support the principle of these amendments. I look forward to hearing the Minister’s detailed response. It is right that the Government have introduced a number of reforms on employment tribunals, but in doing so they have introduced fees. I understand that the Government are in the process of starting an inquiry into the impact of those fees. We know that the number of people going to employment tribunals has fallen dramatically, so we need to know the reasons for that.
The principle of fees seems to be right in terms of deterring people from making frivolous claims, but we need to ensure that the integrity of the employment tribunal service is open to people with genuine claims, even if they have low means. Therefore, if we are tightening up on the fees, we should be looking closely at the payment of compensation so that the individuals who are awarded compensation get the money as quickly as possible, and preferably ahead of the fines that subsequently could be due on the employer for not having paid that money earlier.
My Lords, I thank noble Lords for their amendments. I believe we share the same aim—that of ensuring the best outcomes for individuals who have been through an employment tribunal, and ensuring that they receive their awards. Our research indicates that, without enforcement, only 40% of awards are paid within six months. That is clearly scandalous. Our financial penalty clause is intended to incentivise prompt payment of employment tribunal awards and to prevent employers ignoring judgments by employment tribunals. It applies to all tribunals, awards and settlements conciliated by ACAS. Employers who have not paid the award will receive a warning notice from the enforcement officer. By paying the award in full, promptly, they will avoid a penalty. However, if they do not pay in full, they will be hit with a penalty of 50% of the award. If they continue not to pay, or to pay only part of the award, they can receive further penalties, each of 50% of the unpaid amount, as well as incurring interest on the outstanding award. We consider that encouraging prompt payment in this way is an effective way of dealing with a problem that we agree exists.
Before I return to the amendment, I will respond to the point made by the noble Lord, Lord Young, about employment tribunal fees. It is reasonable to move away from funding being provided largely by the taxpayer towards a more balanced process, whereby the £74 million cost of administering claims to the employment tribunal system are met in part by those who use the system and benefit from it. However, it is important to emphasise that the Government have been very careful to ensure that fee waivers are available for those people of limited means in order that they are not excluded from seeking redress through tribunals. As the noble Lord, Lord Stoneham, has already mentioned, helpfully, the Government—
I hear what the Minister says, but surely there ought to be some concern—as I think the noble Lord, Lord Stoneham, mentioned—about a situation where, in some regions of England, the number of employment tribunals has dropped by 80%? Surely that is not an indication that 80% of claims were vexatious. Does she really not have any concern in this situation that fees are deterring people from bringing what could be completely fair and justifiable cases before an employment tribunal? The evidence we hear from trade unions, which are normally the buffer between the employee and employer, is that that is exactly what is happening.
My Lords, I am glad that the noble Lord intervened to register his concerns, which to some extent I share. That is why the Government have committed to reviewing the introduction of fees. We are considering the scope and timing of the review, and will bring forward our plans in due course. We need to understand what is going on here, of course, but I was trying to make a general point about trying to improve things. The provisions in the Bill are another example of our efforts to do just that—to ensure that there are fair results and that people who are given awards receive them in due time.
I turn to each of the amendments, acknowledging the spirit of them, but obviously, as is usually my wont, looking to make sure that we do not have any perverse effects. I will start with Amendment 68ZG, which is designed to include costs in the calculation of the money that is considered to be owed for the purposes of the penalty. It is worth noting that “costs” or, sometimes, “preparation time” awards—where people are not paying for attorneys—are made in only a tiny proportion of cases. Costs awards are not related to the compensation for the breach of employment rights—for example, in a case of discrimination—but to the way in which one of the parties has behaved during the tribunal process. A good example would be the deliberate, repeated late disclosure of documents. Indeed, last year only 242 costs orders were made to claimants—in the context of more than 42,000 claims. The Government do not believe that adding costs to the calculation will add a significant additional incentive to pay. But I am sympathetic to the noble Lord’s intention and will consider further whether we need to make a change ahead of Report.
Turning to Amendment 68ZH, we are clear that a penalty regime must incentivise prompt payment in full and not inadvertently reduce the likelihood of individuals gaining their full award. Allowing the penalty to be used to offset the award, as proposed in the amendment, would not, we fear, incentivise prompt payment of the award in full, which is our objective. The point of the penalty is to act as a deterrent and a sanction for non-payment. Conflating money owed to the claimant with a civil penalty would cause confusion and might raise questions about which liability had been met when money was paid. We believe it would be better to keep the civil penalty separate from the money owed to the individual. The clause already encourages an employer to make full and prompt payment to avoid a penalty altogether. As I have explained, the only way in which an employer can avoid a penalty is to pay up in full once they receive a warning notice. This seems to be the most effective approach.
Amendment 68ZJ seeks to introduce a naming scheme. As the noble Lord will be aware, there is already a scheme for the national minimum wage. We are considering naming as part of the Government’s overall approach to increasing the full and prompt payment of tribunal awards. We need to carefully consider the options to ensure that we find the most effective response. I would be happy to update noble Lords on our thinking ahead of Report.
Turning to Amendments 68ZK to 68ZM, I reassure the noble Lord that unpaid awards are already recoverable through the county court, or the sheriff court in Scotland, as they are treated as judgment debts. There is also a fast-track scheme in England and Wales where a court enforcement officer can pursue the money on the claimant’s behalf. Furthermore, interest accrues on those unpaid tribunal awards at 8% per annum. So there is an incentive to pay promptly and in full.
Finally, in response to Amendment 68ZMA, I hope I can provide further reassurance. As I have outlined, there are already a range of mechanisms by which an individual is able to enforce their tribunal award. In addition, under Clause 145, a government-appointed agent will impose penalties for non-payment. The penalty scheme we are introducing through this clause offers an alternative, cost-free way to ensure that the claimant gets the money they are owed. Therefore, the Government do not consider that there is a need to set up a further mechanism at this stage, but we shall continue to monitor the situation following implementation of the new penalty provision.
I hope that my explanations, including about our wider plans, have provided reassurance to the noble Lord and that he will be content to withdraw the amendment.
Before the noble Lord, Lord Young, replies, I wonder if I might be permitted to say a word or two about Amendment 62ZMA. I am afraid I was not quick enough on the draw before the Minister rose to reply. I thought that more noble Lords would intervene on some of the earlier amendments so I missed my cue.
Since I am speaking slightly out of turn, I will not make all the points that I might have made in support of the amendment. I am very grateful to have heard what the Minister had to say but there is a considerable amount of concern about the effectiveness of regimes for enforcing the payment of awards. A number of suggestions have been made for addressing this problem. I wonder if the Minister might be prepared to meet me before Report to talk through some of the options and to see if we cannot slightly firm up the provisions that are already there and find a formula or mechanism which might be slightly more likely to deliver results than what is in place at the moment and, indeed, what is proposed by the Minister.
My Lords, I am grateful to the noble Lord, Lord Low, for his comments. I would of course be delighted to host a meeting and go through these important issues—what we are doing, what we are not doing and how to find the best way forward in this important area so that the penalties work and the awards are paid.
My Lords, I thank the Minister for her comprehensive reply. Are we satisfied? No, I do not think we are entirely, although I welcome the suggestion from the noble Lord, Lord Low, of a meeting; that is a useful and practical possible way forward. The research carried out in 2009 by the Ministry of Justice, which administers the system, showed that 49% of those employment tribunal awards—almost half—went unpaid in the first instance before any enforcement action was taken through the county court system. If it were 4% or 9%, we might say, “Okay, it’s not doing too badly”. Each case represents an individual who has fought their way through all those hurdles, got through to the employment tribunal and won an award but, no matter what the penalties are, they do not yet seem to be convincing the majority of employers. It is even worse in Scotland.
We still have real cause for concern. I have raised the fact that we have seen a dramatic decrease in people being prepared to go to a tribunal, and this seems to be adding insult to injury when they actually do go there. Nearly half the employers are able to say, “We can ignore it. We’re not bothered. We’ll see if we can weary the individual to the point where they won’t continue”. I am sure that some will not go through the county court because by that time they will have had enough. That is our concern.
My Lords, I reiterate that I also feel that the current situation is scandalous—I think that is the word I used—and the question is how we can best find measures that will solve the problem and bring the rate of payment in such areas much closer to what one might expect in other areas of the law. I hope that our meeting might assist with that.
I think that I have made the necessary points, and I beg leave to withdraw the amendment.
In this situation we have another worrying set of circumstances with regard to underpayment of the national minimum wage, a situation that we have protested about on numerous occasions. There have been only a pitiful number of prosecutions of people who have failed to pay the minimum wage, and even the naming and shaming has not exactly resulted in a large number of employers being brought to the attention of the public and their credibility, image and brand being exposed for failing to meet their obligations under the national minimum wage. That is why we have suggested that the penalty should be increased from £20,000 to £50,000.
As we say in Amendment 68ZQ, we believe that the Secretary of State should provide,
“an annual report to Parliament on the effectiveness of … enforcement of the national minimum wage”.
Does the current enforcement regime have the necessary resource to police the situation and go on to enforce it? As we then say:
“the level of the financial penalty for underpayment, including but not limited to its impact on compliance”;
should also be reported on, as should,
“changes in provisions relating to the national minimum wage improving other measures of pay in the labour market”,
as proposed subsection (c) says. In addition, having looked at how enforcement currently takes place, which is via HMRC, we believe that it would be more effective if it was enforced by local authorities. There are a number of examples where local authorities currently enforce at the local level, whether on environmental issues or food safety. It seems to us that they would be much more effective than HMRC is. I look forward to hearing the ministerial response to these amendments.
I thought that the Government were doing much more than the noble Lord, Lord Young, indicated to enforce the minimum wage. That has been led by the Secretary of State and the naming and shaming is an important element of it—there has been considerable publicity. The Minister should perhaps spell out a little exactly what the Government have been doing in this area and the Opposition should not take all the credit. They deserve the credit for introducing this measure, but the Government are committed to seeing it enforced, and seeing that people are paid appropriately.
Finally, it should be said that this is a Bill for small businesses and, as we saw in the previous discussion, there is a danger as to affordability when it comes to the paying of fines, particularly by small employers. Those should be appropriate, so I will be interested to hear what the Minister will say about enforcement. I hope she will confirm the Government’s commitment to making sure that the minimum wage is firmly enforced.
My Lords, I was certainly in accord with the noble Lord, Lord Stoneham, on his last remarks, but I find it rather strange that he should pray in aid of his argument that any fines should be affordable by the small businesses concerned. Small businesses have no need to incur any penalties whatever; all they have to do is abide by the law and they will not be forced to pay a penny more than they are legally obliged to do. There is no merit to that argument. If you do not want the fine, pay the national minimum wage.
While I suspect that the Government will resist the move from £20,000 to £50,000, my point in respect of the amendment has two prongs to it. One is that I want to know why there should be an upper limit at all at £20,000. Why is there a need for an upper limit? In earlier parts of this clause, it says that the total amounts should be in respect of the amount owed to the individual. But if there is an upper limit of £20,000—and goodness knows what kind of employer would incur a debt of failure to pay the national minimum wage in excess of £20,000—why should we use that as a cap? What is the logic, first, for having a cap at all and, secondly, for that to be the figure? If £20,000 is not to be a sufficient disincentive, £50,000 might just about do the job, and for that reason this amendment ought to be accepted by the Government.
My Lords, I, too, support this amendment and I take issue with the noble Lord, Lord Stoneham. The worst thing for a small business that is obeying the law is that there is another business down the road that is not. There has been quite some fragmentation at the bottom end of the labour market since 1998 and we know that the way people are employed—or quasi-employed—is now much more dubious in terms of what they are entitled to and how you can check on it. Where people are not being paid the minimum wage for the hours that they work, it is important that the authorities can both check on it and enforce it. I fear that, at the moment, there are not many resources for doing either. Strictly speaking, the wages inspectorate is part of this as well as HMRC, but this is not top of its priorities and the number of prosecutions in this area has been very limited. I am not denying that there have been noises from BIS and from the noble Baroness’s fellow Ministers on this front, and I welcome that. However, the reality is that are a lot of people who are either on zero-hours contracts, which we will debate in moment, or on various other quasi- terms which they cannot argue with the employer and whose money is below the rate they should be getting.
The Agricultural Wages Board used to have a particular inspectorate—it was not even five people at last knockings —but when the board was abolished last year we received assurances that that resource would be transferred into HMRC. I understand that no such increase has actually occurred, either in the wages inspectorate or HMRC. Regarding HMRC, I would be reluctant to agree with Amendment 68ZR that enforcement should go entirely to local authorities. HMRC often has a way in because it sees the books, so I would keep a role for it. That could be followed through in rather the same way as local authorities follow through environmental health legislation by being given more of a role in that respect. Local authorities would also need the resources to be effective in this area.
We need to recognise that the present situation is not adequate. The enforcement resources that would be subject to the annual report are not adequate either. Having a maximum penalty of £20,000 is also not a deterrent for a lot of employers who operate on the murkier side of the labour market. It is not always small companies that are doing this; it is often large companies, or their sub-contractors, or labour-only suppliers who are paying below this rate. We therefore need a step change. Amendment 68ZN would go a considerable way to providing a degree of deterrence. Amendment 68ZQ would mean that Parliament would at least know what the level of resources in this area ought to be and actually is. On Amendment 68ZR, I would hope that local authorities would have some role, but HMRC and its resources are also an important element.
My Lords, when the Minister replies, perhaps she could clarify whether it is £20,000 per person or £20,000 for the company. I do not think there is any difference between us. The noble Lord, Lord Stoneham, is right to say that the most effective way of ensuring compliance is by actually prosecuting. So far, the number of prosecutions is very small and is not even steadily rising. Now that HMRC has the information on tax avoidance, we have the power and the tools to make sure that businesses comply. I hope that the Minister will say something in her reply about how we ensure that we use the full force of HMRC and that action is taken against the very few businesses that do not comply.
My Lords, perhaps I may say a couple of words in support of these amendments. I was a member of the first Low Pay Commission when it was formally established in 1998. We obviously spent some time on the issue of enforcement. The difficulty was that the people who were in industries that did not pay a statutory minimum wage were very often reluctant to complain in the first place. Certainly, in some of the textile industries that we visited, it became fairly clear that if anyone put their head above the parapet, not only would they eventually lose their job in their own workplace but they would not find a job again in any textile industry within travelling distance. I am sure that that is not unique to textiles, so it will always be a major problem to enforce this and to get people to make a formal complaint and take that kind of risk with their future.
The Low Pay Commission is also keen for there to be a very good system of accessible information for people who want to know what their rights are. The original information issued by the Low Pay Commission was very good. Unfortunately, this Government changed it so that it was no longer fit for purpose. That was a statement made by the Low Pay Commission—that the website was no longer fit for purpose—so it is hardly surprising that the number of complainants is not only not rising but is probably falling in relation to the increased number of people in the labour market as a whole.
As my noble friends Lord Watson and Lord Whitty have said, the casualisation—or further casualisation—of the workforce makes this extremely difficult to enforce. My view is that the more headline news you get about successful prosecutions and fines, the more likely people are to put their head above the parapet. It always amazed me when people used to say about the previous employment tribunal system, “Oh, the penalties that you can get are £50,000 a year”, which was ridiculous; the level at the time when I was chair of ACAS was £5,500. That was the average settlement, not the headline figures that newspapers would imply. The reality of the minimum wage and its enforcement is so far removed from the kind of discussion that we are having today that it is almost difficult to know where to start. I urge the Minister to think about accessible information, and perhaps to consult the Low Pay Commission to ensure that it is adequate for both applicant and respondent.
My Lords, I thank the noble Lord, Lord Young, for his amendments to Clause 147, and for giving us the opportunity to debate the important subject of the national minimum wage. I have heard a number of concerns raised by the Opposition about the underpayment of the national minimum wage. I hope that my notes will cover what the Government are doing about that.
Clause 147 is an important step towards ensuring that employers comply with the national minimum wage legislation. It will amend the National Minimum Wage Act 1998 so that the maximum penalty that can be imposed through a notice of underpayment will be calculated on a per-worker basis rather than per employer. This will substantially increase the penalty for employers who owe large arrears to a number of workers. My noble friend Lord Storey asked this question, so I am pleased to confirm that the penalty of £20,000 is per worker.
By applying the penalty to each worker, employers owing high arrears to a number of workers may be issued with a greater penalty overall, as well as a higher maximum penalty. The higher penalty will deter employers from breaking national minimum wage law in the first place, ensuring that workers receive what they are entitled to and to come down harder on those employers who continue to break the law.
I will now respond to each amendment. Amendments 68ZN and 68ZP are designed to increase the maximum civil penalty available for non-payment of the national minimum wage from £20,000 to £50,000 per worker. I heard what the noble Lords, Lord Whitty and Lord Watson, had to say on this subject, and we welcome the recognition from the Opposition that there is a need to increase these penalties but we do not see the evidence to set the upper limit at £50,000. As the impact assessment for the measure sets out, 6% of cases in 2013-14 involved total arrears in excess of £20,000. None of these cases was anywhere near the upper limit suggested in the amendment.
Under the Bill, the penalty will be applied on a per worker basis, as I said. When you look at the cases where HMRC issued a notice of underpayment in 2013-14, the change means that in almost every case, the employer would have been issued with a penalty equivalent to the total amount of arrears they owed, rather than having the overall penalty capped at £20,000. As a result, the amendment would have had very little impact on the level of penalties in those cases.
However, I reassure noble Lords that if, in future, there is evidence to suggest that a higher maximum is needed, we can make that change through secondary legislation. I hope that I am giving reassurance to the party opposite that if we think in future that £20,000 is not enough and we need to raise it, we can bring in secondary legislation to increase the penalty.
How many cases were in court for underpayment of the national minimum wage last year?
I will certainly come back to the noble Lord on that in a minute.
I turn to Amendment 68ZQ. It is designed to impose reporting requirements on the Government’s approach to national minimum wage compliance and enforcement, as well as the impact of the minimum wage on wages more broadly.
I welcome the Opposition’s continued interest in this area and their desire to ensure that the system is working as well as it can. However, we believe that we are already transparent in our approach to reporting on the effectiveness of the national minimum wage and its impact on workers’ wages. Every autumn, the Government submit evidence to the independent Low Pay Commission, including an assessment of the national minimum wage’s impact on the labour market. That evidence is considered by the Low Pay Commission before it makes its recommendations to the Government. If new minimum wage rates are to be set, Parliament has an opportunity to debate them before they are introduced in October. Therefore, I hope that noble Lords will agree that the amendment is not necessary, as it simply imposes obligations that will duplicate reporting that is already taking place.
Finally, I turn to Amendment 68ZR, which would give local authorities power to enforce the national minimum wage. The Government already have an enforcement body dedicated to the national minimum wage, with a strong track record in this area.
I will respond to the question of the noble Lord, Lord Young. Since it started that work in 1999, HMRC has identified more than £54 million in arrears for more than 229,000 workers during more than 65,000 employer interventions. We are doing a lot more. The Bill, as my noble friend Lord Stoneham said, is to give small businesses help and support. We have gone as far as we can to make sure that employers do not break national minimum wage legislation. The noble Lord, Lord Young, asked how many cases of arrears there were last year. In 2013-14, there were 680 cases, with total arrears of £4.6 million.
My Lords, I heard what the Minister said in response. I do not think that we are not totally satisfied with it. I may have missed in the exchange over the figures the Minister’s response to our view about enforcement by local authorities. Can he confirm what attitude is taken towards that?
Towards regulations devolving the enforcement of the national minimum wage to local authorities, as proposed in Amendment 68ZR.
My Lords, we have a very strong HMRC enforcement regime. We do not see any point in giving the power to local authorities. However, HMRC has regional offices to enforce the legislation. Of course, many other government departments play an important role in enforcing it.
Is the Minister aware that a lot of people on the minimum wage do not have the information and that some people do not have the ability to work out what their entitlements are? What steps can be taken therefore, in a form which informs the employee, to the point where they are getting what they are entitled to and do not have to seek any external assistance, whether through an inspectorate or otherwise? It is a duty and a responsibility that the spirit of the national minimum wage when it was introduced should be upheld. It was introduced to be helpful rather than to be put in a legal straitjacket whereby people are not getting the underlying justice that was its intention.
The noble Lord, Lord Morris, raises the important issue of how we help to ensure that people are paid the minimum wage and what guidance we give them on working out by how much they are being short-changed. Since 2013, we have published detailed new guidance on calculating the national minimum wage, which is available on the GOV.UK website. We have also updated several GOV.UK pages which hold information about the national minimum wage. This includes new information about current and future national minimum wage rates, a worker’s checklist, guidance on work experience and internships, information on the increased penalty for breaching the national minimum wage and the revised criteria for naming and shaming employers who breach national minimum wage legislation. Therefore, quite detailed information is available for workers to help them work out by how much they might have been short-changed in cases of people being paid less than the national minimum wage.
A propos the Minister’s final point, is there not also the employment rights helpline, which we introduced? Does the Minister have information on the level of complaints or reporting of failure to pay the minimum wage on the employment rights helpline?
I am afraid that I will have to write to the noble Lord with that information. I do not know whether it is available on our websites.
I have just been given some information on how many calls have been received on that subject. From the beginning of 2014 to October 2014, the number of inquiries that we received was 10,086. The number of complaints that we received relating to the national minimum wage was 1,550. I will certainly write to the noble Lord with more information on this subject, which we appreciate is quite important.
I thank the Minister for his response. We will take into account the points that he has made and reflect on whether we need to come back to any or all of these issues on Report. I beg leave to withdraw the amendment.
My Lords, we suggest that this new clause be inserted into the Bill. In the case of non-compliance, we believe it is justified that,
“any relevant remuneration the worker would have received in respect of holiday pay or other leave pay”,
ought to be included as part of the national minimum wage assessment. I beg to move.
I thank the noble Lord for his amendment and, indeed, for his succinct introduction, which I do not think I can quite match in responding to the amendment, which introduces a new clause to include holiday and other leave pay within the calculation of the minimum wage.
The Government do not consider that the amendment is necessary. That is because under the Working Time Regulations, a worker is entitled to a week’s pay for each week of leave, and there are already routes of redress if these payments are not made. A worker who believes that they have been underpaid can make a claim to an employment tribunal. This claim has to be submitted via ACAS, which will first offer early conciliation. Where holiday pay has not been paid, workers have a choice as to how they may claim the money they are owed. They can bring an action against their employer under Regulation 30 of the Working Time Regulations or they can bring an action for unlawful deduction of wages under Section 23 of the Employment Rights Act.
Both claims are brought in the employment tribunal. Where the worker is entitled to other leave pay which forms part of his or her wages, he or she will be able to claim any underpayments through an action for unlawful deduction under the Employment Rights Act. In addition, the early conciliation system allows for disputes over pay to be resolved before recourse is made to the tribunal, so without litigation. If a worker believes that he or she has not received the correct holiday pay, he or she can contact ACAS, which I am sure will be very helpful and will offer early conciliation. If that is not successful, a worker can take a claim to an employment tribunal. ACAS offers helpful guidance on holiday pay on its website.
The Government firmly believe that the holiday pay arrangements currently in place are sufficient and there is no evidence to suggest that enforcement in relation to holiday pay should be extended to the National Minimum Wage Act. I did, however, pick up the point from the earlier discussion that perhaps people do not always know what the routes for information and redress are. In writing to noble Lords, as I promised to do on the earlier amendment, I would be happy also to set out the arrangements on holiday pay so that people have a full understanding.
I hope that the noble Lord has found my explanation of the avenues that exist reassuring and will therefore agree to withdraw his amendment.
I have listened carefully to the Minister’s response. We think there is a connection in that employers who fail to pay the minimum wage are often also in this situation, where they do not respect full holiday pay and leave entitlements. We will take into account the response and consider whether to come back to this on Report. In those circumstances, I beg leave to withdraw the amendment.
My Lords, Amendment 68ZT asks the Government to publish a report on the whole issue of internships. Clearly, it is a probing amendment, and I make it clear that I am not against internships. Paid internships are not only fair but can be argued to be good for business, as they allow all to compete on an equal footing for valuable experience. Across all sectors, those firms offering paid experience get more applications from a broader range of candidates. By offering the minimum wage, or even the London living wage, firms are able to secure the most able workers.
However, where internships are informal and unpaid, they are likely to be unstructured and unhelpful for the intern and for the company. The proliferation of unpaid internships is now a barrier to social mobility and is blocking routes into higher-paid jobs for young people from low-income backgrounds. Although information on internships varies, the Chartered Institute of Personnel and Development, of which I am a member, estimates that 21% of businesses offering internships do not pay their interns. According to the Sutton Trust, it is estimated that across the UK 22,000 interns are working unpaid at any one time. Data from the trust show that 31% of recent graduate interns are working for no pay. In the 2012 report on fair access to professions, the Social Mobility and Child Poverty Commission noted that unpaid internships are concentrated particularly in the creative industries, the media, and financial and professional services.
The Sutton Trust report continues by stating that an unpaid internship can cost an individual £926 a month in London, or £804 a year in Manchester, on a six-month work placement. The cost of working for nothing rules out all but those from better-off families and discriminates against the majority of young people, who cannot afford to work for free. The trust goes on to say:
“All internships longer than one month should be paid at least the National Minimum of £6.50 per hour, and preferably the National Living Wage of £7.85 (or London Living Wage—£9.15—in London)”.
I am not making any particular proposals on this issue; I am simply indicating what other organisations support. If I am asking for an inquiry, it would be rather inconsistent for me to state what policies I particularly supported. The trust wants internships to be advertised publicly rather than being filled informally, and recruitment processes to be fair, transparent and based on merit. That reflects a statement issued by BIS regarding internships, so I do not think it contradicts anything that is already BIS policy.
An Ipsos MORI poll of 1,700 adults in England for the charity suggested that 70% felt that unpaid internships were unfair as only the wealthy could afford to take them, and some 55% agreed that internships of up to six months should pay at least the minimum wage, with 73% supporting it for placements of more than a year. The YouGov polling shows that 65% of businesses support the proposal to end unpaid internships, presumably because it gives an unfair advantage in certain cases if you do not level the playing field. Bodies such as the Institute of Directors, UK Music, the Royal Institute of British Architects and a range of bodies representing the PR and creative industries also support getting rid of unpaid internships. Alan Milburn, chair of the Social Mobility and Child Poverty Commission, has called on policymakers to adopt a four-week limit on unpaid internships. As I have said, BIS supports an open, fair and transparent process of appointment to internships and indicates:
“Anyone who is a worker is entitled to be paid at least the minimum wage, this includes interns who fall into the worker category”.
Thereby hangs the problem. The lack of clarity about what constitutes an internship is frustrating the application of the National Minimum Wage Act.
In conclusion, internships are becoming essential for access to many professions. Because a high number are unpaid and unaffordable to those from ordinary backgrounds, too many young people are being excluded from the opportunities that they deserve. Although I accept that there will always be a need for casual labour in a flexible labour market, the current position is unfair and disproportionate. A civilised society should be prepared to look at the obvious nooks and crannies in its system, not least if it might go some way to solving our poor productivity record. I cannot help but think that the increasing casualisation of our labour force and our poor productivity record have something in common. I beg to move.
My Lords, I came along this afternoon intending to support my noble friend Lady Donaghy on this amendment and I shall attempt to do so, but I regret that so comprehensive has been her advocacy of it that it has left me with little to say. Perhaps I might stress two or three of the points that she made.
One of the aspects that worry me is undoubtedly the fact that unpaid internships are, by their very definition, exclusive to people who, by whatever means, are able to have their costs of living covered while they undertake them. That necessarily makes them exclusive and is unfair. Some people would say that life is unfair; yes, of course it is, but in terms of employment we can try to make the playing field as level as possible. I see no reason why anybody undertaking an internship of more than one month should not be paid. Up to one month, it may be genuine work experience; beyond that, it is a bit more. While the person may find personal benefit, the employer gets a benefit as well. That very important point should be looked at.
There is also a rather disturbing trend now of companies emerging that will charge people a fee for placing them in an internship. That is worrying and, while some of them are paid, you may have to pay even to get on to an unpaid internship. I do not believe that that is right. There are also situations where auctions for internships are held. They sometimes involve charities and, on the face of it, that is worth while but, again, it suggests that it is not an appropriate way to bring anybody into the workforce, paid or unpaid. I regret that development.
Most of all, it is important that anybody doing a job should be paid the rate for that job. Some Members of this House and some Members of the House just down the Corridor need to look at their own practices in this respect, because it has been revealed that there are more than a few unpaid internships within the Palace of Westminster. That does not set any kind of positive example for keeping anybody on beyond a month. With those brief remarks, I am pleased to support the amendment in the name of my colleague and noble friend Lady Donaghy.
I very much thank the noble Baroness for tabling this important amendment. In doing so, she brings with her a wealth of experience in this area. We know of Members in both the House of Lords and the other place who employ interns—I was conscious of that when I first came to Parliament—but you can do that only if your parents can look after you financially. If you are living on a council estate in Sheffield, Liverpool or Glasgow—let us keep the full nations in and also say Swansea—your chance of doing an internship in Westminster would be non-existent. We also know that if you do an internship in Westminster, it is an opportunity for real career advancement.
My view is that all internships should be open and accessible, and freely advertised. They should be paid after an agreed period, at minimum wage, and be for a set period so that we level the playing field and it will not be just the rich and wealthy who can afford to provide those opportunities for their children. Everybody could have that opportunity as well. But there are real difficulties in this area; it is not quite as simple as we think. I thought, “Great. Interns should be paid”, et cetera, but then we have to think carefully through the issues. That is why this probing amendment is so important.
What is the position of work experience? As a former employer, I remember that local schools would send pupils for two weeks’ work experience. What about volunteering and genuine volunteers? A close friend of mine volunteers every Saturday to work in the local Oxfam charity shop. How does that work out? Some young people generally want to volunteer—with no ambition to follow a career in that area but because they have a social conscience. The other issue is: how does that fit in with sandwich courses at universities, where people will go from university as an intern for a full year? Those things need to be carefully considered because of the interrelationship between them, and because of the issues of taxation and finance involved.
My only concern about the amendment is that it calls for a report in 12 months’ time; I think that it needs to be sooner, rather than later. When the Minister replies, I hope that we will hear some supportive sounds about the probing amendment.
Finally, I was quite surprised that when I tabled a Written Question asking how many interns there were in Westminster, the Government were unable to provide that information, which seemed to me bizarre.
My Lords, I support my noble friend Lady Donaghy’s probing amendment. I have to make a declaration of interests. I am chairman of a company called Instant Impact. The principal business of that company is the recruitment of graduates from universities, which is obviously close to what we are discussing today.
“The condition of your birth does not determine the outcome of your life”.
Those are not my words, but those of an unlikely source, US Republican Congressman Paul Ryan, a staunch right-winger and not one we would expect to support the nanny state. Who among us could disagree with that?
Of course, in the Labour Party, we believe passionately that everyone should have an equal chance to succeed, no matter what his or her background may be, but the Conservative and Liberal Democrat parties are wedded to the same mantra: whatever our birth may be, each of us should have the same opportunity.
When most of us were young and seeking our first jobs, it really did not matter whether we had worked as interns. Indeed, the term barely existed. Sadly, all that mattered was where the candidate went to school and, more importantly, where the candidate went to university. In my case, Ealing Technical College probably did not stack up too highly. A good degree was a help, but not a necessity. A gentleman’s third-class honours was still acceptable with a wink and a rueful smile. That was true then, but no longer.
Today, the CV has become a rite of passage. It must be fine-tuned and honed, with not so much the right school, but certainly the right university and, without question, the right level of honours degree. The soft factors also count: sporting activity, cultural pursuits and charities supported. In a highly competitive world, whatever makes you stand out and interesting will help you to land the job you want. These days, young people need to include job experience on their CVs. They need to show that they have worked for a series of organisations and that they have become well rounded individuals. One of the ways that they do that is by becoming interns.
To the wealthy and well connected, getting their sons and daughters into suitable internships is relatively easy. I bet that many of us in the Room today have address books that other people would kill for. We have access to everyone who counts and, even if we do not, we have no problem in working the network to make sure that we get our children or grandchildren through the door. Some of us are able to fund our children if they do not get paid for their internship. After all, we can argue that it is the final part of their education and goes with the territory.
As a result, whole swathes of our economy are riddled with unpaid interns. The media, fashion, advertising and the new social media companies recruit unpaid interns at will, simply because they can. As has been said, how many Members of Parliament or Peers in our own Palace of Westminster have unpaid interns working in their offices or their constituencies? I do not know the answer but I would bet that the number is much higher than most of us suspect.
What happens if your parents do not have the contacts or are simply unable to fund you while you are working for nothing? I hope that the Government accept my noble friend’s amendment because we need more information about whether people are being exploited. If they are, I hope that the Minister will commit to looking at a four-week limit, as suggested by Intern Aware. I should like to hear the Minister’s views on this. I hope that she does not suggest—as the noble Lord, Lord Popat, did, when the noble Lord, Lord Storey, asked a Question in the House a few weeks ago—that we should refer to the Government’s Graduate Talent Pool for an answer. I have never heard of it and nor has anyone else I know. It really does not feature on the intern recruitment side. I also ask her not to suggest that HMRC has the powers to intervene and that it can hunt down any offenders. It is stretched to capacity, and anyhow it has other fish to fry.
There are many organisations that support the four-week limit. Axa, a major insurance company, says that a four-week limit to unpaid internships will ensure a fair opportunity for everyone. Ernst & Young says that young people deserve to be paid for the work that they do on internships, and if they do not, it is reprehensible. The wonderful Charlie Mullins, the founder of Pimlico Plumbers, a small business—which is not so small these days—says that it is completely reprehensible for companies to expect interns to work without pay. The ACCA has asked for an end to unpaid internships. RIBA expels members who use unpaid interns. UK Music says that interns should always be paid at least the national minimum wage. Lastly, the Times said in a recent editorial that the,
“abolition of unpaid internships is worthy and desirable”.
Under current national minimum wage law, an intern is entitled to pay only if they are working under a contract; of course, for a contract to exist it needs consideration. That means that if an intern receives nothing except expenses from their employer, the national minimum wage will not apply. The worst employers are exploiting this loophole and, under the law as it currently stands, there is little that can be done. The dice are loaded against those who cannot afford to take unpaid internships. The solution is not to discourage rich people from helping their children but to do a lot more to help clever kids who do not have wealthy parents.
My Lords, I thank the noble Baroness, Lady Donaghy, for raising this issue and giving us the opportunity to have a debate. She brings great knowledge and experience of all employment matters, notably as a former chair of ACAS and now from her work at the CIPD.
Internships can and do provide valuable opportunities for young people taking their first step in the labour market, and we wish to encourage them. Speaking for myself, last July I had the very happy experience of taking an intern from a modest social background here in the House of Lords, and over the years I took a good number of interns when I worked in retail, as part of sixth-form studies or college vocational assignments. I tried to take people who might not otherwise get a chance to come in and get work experience; that is a great thing that employers, and indeed the public sector, can do.
The term “internship” is of course a relatively new concept—and, I am afraid, like so much else, a bit of an Americanism. As has been said, there is no definition of internships in UK legislation. Individuals undertaking an internship may be workers, employees or volunteers, depending on the reality of the situation and not their job title or what an employer decides should be set out in a contract.
The flexibility of our labour market is a source of pride and there are currently more people in work than ever. In the past year alone the number of people in work rose by 512,000, so employment is now at a record 30.8 million, providing valuable opportunities to young people. Of this remarkable growth, eight out of 10 were employees and eight out of 10 were in full-time jobs. In a labour market as flexible as the UK’s, there are a multitude of possible employment relationships that suit the employer and the individual, and this has to include short-term placements, internships and work experience. There is no single test to determine whether a contract of employment exists and whether an individual is an employee. Only an employment tribunal can determine whether a contract of employment exists. I appreciate that sometimes this can be confusing and unhelpful. Last October, my right honourable friend the Secretary of State announced a review of employment status—rightly, I think—to ensure that these issues are considered. We hope that the review will conclude in March.
The noble Baroness’s amendment asks the Government to publish a report which would assess the growth of internships over the past five years, their incidence by sector, their average length and the subsequent career choices of interns. We are not convinced that it makes sense to write the requirement for a report into the Bill. Internship and work experience policy is a matter for the Government to consider as part of their normal work on employment policy. As I have said, we are looking at the issue in the context of a review of employment status, conscious of the need to preserve good practice in relation to work experience, where it exists.
I understand the concerns raised about pay and social mobility, and that some young people will not know about the opportunities or be able to find internships. I assure noble Lords that the Government are keen to work with employers and young people to ensure access to high-quality graduate opportunities and that is why we fund the Graduate Talent Pool service—which more people have probably heard of now, as a result of the Question in the House answered by my noble friend Lord Popat and because of the discussions on this Bill. The service is free to employers and graduates and provides information on all aspects of internships.
My noble friend Lord Storey asked about volunteers. Genuine volunteers who are not workers and who willingly give their time for free are exempt from the national minimum wage. The Government’s Social Mobility Business Compact seeks to influence business to remove barriers to social mobility and to promote open and fair access to opportunities. This is what the noble Lord, Lord Watson, and my noble friend Lord Storey seem to be seeking. There are a number of strands to this, including work experience and paid internship opportunities. We are involving education providers—schools, colleges and universities —so that they build up links with business and other employers, including charities, which is another important area.
There is an issue about the entitlement to the minimum wage and I should explain that an intern’s entitlement depends on their employment status. If the intern is an employee or a worker, they are entitled to at least the national minimum wage from day one, and all other rights attached to their employment status. If the intern is a volunteer, they are not entitled to the national minimum wage but can receive reasonable out-of-pocket expenses. This may be the only way that people can get work experience. I worry that regulation could be perverse in its effect, especially with small businesses which probably cannot afford the great schemes we have been talking about that are provided by the big accountancy and insurance companies and so on. It is quite a complex subject.
One word I did not hear—and I was listening very carefully—was “exploitation”. The feeling many of us have on this issue is that young people who are desperate to make sure that their CVs look good so that they can say that they have had the right experience are prepared to be exploited to make sure that their CV looks good. Many employers out there prey on them, and in many cases those situations where people are not paid can last for long periods of time. More than anything else, we want to address that.
I thank the noble Lord for that further clarification. There is a lot of common ground here. We need to address certain issues and, clearly, we are all keen to stamp out exploitation.
My Lords, I am very grateful to noble Lords who have taken part in the debate. I thank the noble Lord, Lord Storey, for his comments. Of course, there is no intention to interfere with the perfectly well known volunteer system or with anything to do with sandwich courses in universities. I think we all know what we mean when we talk about these cases, but we are not very strong on analysis, and we need to pin that down.
My noble friends have certainly pointed to the exploitation issue—that somebody can be very willing because of the future opportunities that an internship can give them. Because their family can support them they might grit their teeth and say, “Well, let’s put up with this for a few months, because it will open doors that otherwise will never be opened”. It is still exploitation. The vast majority of people that I am talking about do not even get through the front door; they do not even get through the door to enable themselves to become disgruntled, so that they can go for enforcement or to various websites to ask about it. They are outside this semi-privileged circle. That is the issue that I want to pinpoint.
It certainly has not been my experience—and I used to work outside London—that all internships are a gilded circle. Internships and work experience are quite broadly based in the cities of Britain, which is a very good thing. I am keen that that should continue in big firms and small firms, in the public sector and in the voluntary sector. We have to be careful that we do not take steps which, with the best will in the world, have a perverse effect, so it is right that we should debate these issues. Like the noble Baroness, I have a lot of passion to make these things work and to encourage more opportunities for more people.
I thank the Minister for that comment. I think that we are not too far apart on the need to identify and be more objective about what we are talking about. I am referring all the time in this amendment to unpaid internships. As I have said, I think that there is an element of exploitation. Perhaps any report or further discussion that we might have could look at some time limits that are acceptable. I am grateful for the Minister’s comprehensive reply. I will look at that in more detail but at this stage beg leave to withdraw the amendment.
My Lords, I shall speak to a number of the amendments in this group as well as say a few words by way of a general introduction. The rise in the use of zero-hours contracts is a trend that should concern Members across the Committee. While a small number of people find this type of contract suitable, too many people from across the UK are at the mercy of unscrupulous employers who are exploiting this type of employment. The increasing reliance on this form of employment does nothing to promote the jobs that the country needs. For many employees, zero-hours contracts present huge drawbacks in comparison to permanent regular work. There is no guaranteed level of regular earnings to provide any certainty over meeting bills or planning for the future. By our very nature, we human beings need stability and certainty in our lives; these types of contracts do not offer that. The need to respond to calls to attend work, frequently at short notice, disrupts life outside of work and places a particular strain on families and on arranging care for dependants. One of the most concerning aspects about the explosion of such contracts is that women are likely to be disproportionately affected by them.
Zero-hours contracts by share of the workforce are most common in: the arts, entertainment, and recreation services—2.5% of the workforce; in accommodation and food services—2.2% of the workforce; and in healthcare services—1.2% of the workforce. Not surprisingly, they are most common among people in caring and leisure occupations, where it is 1.7%, and among the less skilled—1.4%. These industries have high percentages of female employees.
We welcome Clause 148, which introduces an exclusivity ban in zero-hours contracts. This is a welcome step forward from a Government who had to be dragged kicking and screaming on this issue, but they have fallen far short in bringing forward measures which tackle the exploitative use of such contracts. This does nothing to change the practices of companies that base their entire workforce management strategy on them. Our Amendment 68ZU would reinforce the powers of the Secretary of State. Amendment 68ZW, perhaps in time-honoured fashion, would delete “may” and insert “must”—I cannot think where I have encountered that before—while Amendment 68ZAB would extend the powers of employment tribunals.
This is a huge problem area, and we need to remind ourselves that workers in these circumstances find themselves in situations where they do not attract sick pay, holiday pay or national insurance contributions. While we would not deny that there are some circumstances where zero-hours contracts might be relevant and applicable, the numbers that we are currently encountering place a huge burden on the workforce. This disproportionately affects them in terms of the employment rights and benefits that the vast majority of the workforce would expect to be theirs as of right. In those circumstances, I beg to move.
This amendment is all very well but I am not quite sure where it is leading us. It is not very specific. The Government have included clauses to stop people being excluded from doing other work while on a zero-hours contract, which seems to go to the heart of one of the principal problems. Here we are talking in general terms about an obligation on an employer to offer a fixed-hours contract to a worker who has worked regular hours for a continuous period. I am not sure where that is leading to. It is very general, apart from saying, “What we really want is to get rid of all zero-hours contracts and put everyone on a permanent contract on a 40-hour week or 35 hours a week, or whatever it is”. That is not actually what zero- hours contracts are being used for.
I accept that there is some bad practice, which we want to see eliminated. Where there is discrimination or unfair practices, we should work at that. The principal source of exploitation is where people are excluded from doing other work by these contracts. Some of these contracts have worthwhile benefits, as we have seen during the recession. One thing that the recession has done is to enable people to share work around when it is limited. I suspect that as the work comes back, as it is clearly doing as we move out of recession, some of these problems will begin to fade in their severity.
I want to make it clear that this is an attempt not to rule out zero-hours contracts but to introduce some reasonable ground rules. I shall give the Committee some statistics that it might find interesting. The Chartered Institute of Personnel and Development research last November noted that 83% of staff on zero-hours contracts had been engaged for longer than six months, and 65% had been engaged for two years or more. We have a situation in which 65% of staff on zero-hours contracts have been on them for two years or more; that is not a short-term need. If someone has been employed for that length of time, does the noble Lord really not think that they should be entitled to basic rights such as holidays, sick pay and pension contributions?
We are not embarked on a Don Quixote-like mission, tilting at windmills and hoping to abolish all zero-hours contracts, but we are on a mission to ensure that there is some fairness and reasonable ground rules. We are suggesting that if someone has been employed on a zero-hours contract for a reasonable period of time, it indicates that there is a permanent need for this type of employment. In such a case, they ought to have the employee rights that workers on full-time contracts would enjoy.
I thank the noble Lord for his speech and his intervention. I accept that there are issues here which we need to deal with but we are putting very general terms in here. One thing we do not want to do is to lose some of the flexibility which people have benefited from over the last couple of years, when work has been in short supply. One major problem is in the local authority area, where people are doing social care work. The Government should obviously look at and deal with this area, because they have the means to do so through their contracts, but I am not sure whether these general terms that are being looked for will actually do the job.
I want to say a brief word about this because I must admit that I have a personal dislike of the phrase “zero-hours contracts”. Casual labour has existed for a very long time. It has had different names and different fashions have been followed. I think we are all aiming to ensure that while we do not completely get rid of a flexible labour market, basic employment rights are available to those who have spent any significant length of time in a particular job. We know what we are talking about here, do we not? There is the story of the burger operative—or whatever they are called—who was told that he was not working when not serving a customer. His pay was therefore suspended so that he was receiving pay only when he was serving customers. The argument then was, “Of course, the franchisee went beyond his remit”. That is a marvellous excuse made by some national brands; they can blame a local manager for doing something when the tone has probably been set at national level.
This could be extended to all sorts of other areas by saying, “You are not actually working”. I know that the noble Lord, Lord Stoneham of Droxford, used to work for the National Union of Railwaymen. I wonder if the same would apply to a train driver who is not driving his train while stopped at a signal, and therefore should perhaps not be paid until such time as the signal is green. That was how ridiculous some of these practices were on the ground. To go back to the reality of the casual world of work, as we know it in this country, those practices are not really funny. They are quite serious examples of exploitation so I make no apology for supporting my noble friend Lord Young on these amendments, if only to try to get to a situation where we are paring back all these gimmicky phrases and looking at people’s basic employment rights.
I thank the noble Lord, Lord Young, for these amendments and for the debate we have had on this part of the Bill, which went slightly wider than the amendments. I ought to say that Labour did nothing about zero-hours contracts for 13 years. The number of them went up by 75% between 2004 and 2009. What we have done is to carry out a review into these contracts, so that we can deal with any abuse. As a result, we are banning the type of contracts which mean that employees are not allowed to work for any other employer, while still allowing people such as students to benefit from the flexibility that they offer.
We introduced Clause 148 to deal with this mischief and I am glad to hear the noble Lord’s support for it and my noble friend Lord Stoneham’s perceptive analysis. The noble Baroness, Lady Donaghy, rightly tried to improve our English and not talk about zero-hours contracts. It may be that like one of the terms we were struggling with earlier, the term is an Americanism. Wikipedia does not give its origin but I will hunt it down.
At present, an individual subject to exclusivity terms in their zero-hours contract cannot seek work elsewhere, regardless of whether the employer offers only occasional, minimal, or even no hours of work. Exclusivity terms are unfair for the individual who, as a result, is prevented from boosting their income or building on their work experience. Frankly, it is also damaging to the economy because it prevents people from reaching their full employment potential.
As my noble friend Lady Harding made clear at Second Reading, from her own experience of running a supermarket in Yeovil, zero-hours contracts are an important element of a flexible, vibrant labour market, and they work for employers and individuals alike. I even heard the shadow Business Secretary agreeing that sometimes people quite like to use them. However, I think that we also agree that people working under such a contract must get a fair deal.
The ban on exclusivity terms in zero-hours contracts, as set out in the clause, is straightforward. From the moment the clause commences, individuals can simply ignore an exclusivity clause and work for another employer as well if they wish. There is no process, no admin and no need to discuss this with the employer—I am not sure that people understand this—and any attempt by the employer to stop a second or third arrangement would be unenforceable. This is a major change and a reduction in employer flexibility, but one that we believe is right.
Amendment 68ZU seeks to provide a route of redress for zero-hours workers who need to enforce their rights, allowing for regulations to set out the details. The clause already provides for an order-making power that will allow for this.
Amendment 68ZW seeks to make the use of that order-making power mandatory. However, given the fact that routes of redress will be delivered through the order-making power, I am sure that the Committee will agree that in this case the amendment is unnecessary. The Government will have to bring forward regulations; otherwise, the ban on exclusivity terms in zero-hours contracts will have no meaning. For this reason, I do not believe that we need to make this amendment. The regulations that will be possible under the order-making power will also be able to address the issue of redress that is covered in detail in Amendment 68ZAB; that is, that an employment tribunal will have the power to consider claims related to the exclusivity ban, including providing remedies to the individual and issuing penalties to the employer. The Government recently consulted on using the order-making power. We are currently finalising the details with a view to publishing the government response shortly on how we plan to tackle avoidance.
Amendment 68ZZ suggests that the definition of an exclusivity term is too narrow. However, the Government have looked at this and consider the description in new Section 27A(3) of the Employment Rights Act 1996, which will be inserted by Clause 148, to be sufficiently broad. It covers any provision in a zero-hours contract that prohibits working for others, as well as terms that require an individual to seek permission from their employer to do so.
I believe that our approach will deal sensibly and effectively with both avoidance of the ban and routes of redress for individuals on a zero-hours contract who suffer a detriment. I hope that on this basis the noble Lord will agree to withdraw the amendment.
The Minister indicates that the Government have had some consultation and regulations will be published. I wonder if she will give some timescale for those.
Right. Obviously, as we said earlier, we welcome this measure. We are probing a bit to see whether or not the controls that the Minister referred to and the powers of the Secretary of State are sufficient. We will take into account the points that she made in her response, and we will consider whether we need to return to these issues on Report. In the mean time, I beg leave to withdraw the amendment.
My Lords, again, this amendment seeks to extend the Secretary of State’s powers and to make it more explicit in the legislation. That is justifiable in the circumstances and we have identified the relevant provisions. There is some flexibility in it, so zero-hours workers have a right to be awarded financial compensation, of amounts to be determined by the Secretary of State. Employment tribunals are given powers to enforce their judgments, which is relevant and reasonable in the circumstances. Returning to an issue to which I referred in an earlier contribution, it imposes an obligation on an employer to offer a fixed-hours contract when a worker has worked regular hours for a continuous period or a series of continuous periods of employment, to be determined by the Secretary of State. We are not seeking to do away with flexibility; we recognise that that is appropriate in some circumstances. However, we believe that at the moment zero-hours contracts are, in many circumstances, a bridge too far and that they deny workers basic employment rights.
Amendment 68ZAC is intended to ensure that workers are fully enabled and empowered by understanding the nature of the zero-hours contract, so the employer has to provide basic information about terms and conditions for all zero-hours workers within two months of their start date. Again, we think that is a reasonable requirement. We regard a contract of employment as an inalienable right of workers and we seek to extend that right to those on zero-hours contracts. I beg to move.
My Lords, I support the amendments in this group. The daughter of a friend works for a burger company and is on a ZHC. She does not know until the previous Friday what hours she will get for Monday. She cannot plan her life; she cannot budget; she cannot buy any large goods; she cannot study. She cannot do another job alongside it—I am delighted that the Government are moving to stop that ban continuing—and, if she were not living it home, she could not rent, as landlords want evidence of steady income. The Unite union, which has done splendid work on this, was told by a call-centre worker, who had worked for a multinational firm for five years: “I am only informed if I have shifts one week in advance and the hours I am given can range from nought to 48. I feel regularly anxious about whether I will be able to pay the rent and put food on the table.” She too is on a ZHC. A third person on a ZHC, a lone parent, expects, and is expected, to work on Fridays and had arranged and paid for childcare, as she must. Her shift was cancelled an hour before and she was told to work on Saturday instead. She had to pay for the childcare she did not need on Friday but could not find childcare for the Saturday when she needed it, so she refused. Her hours were cut the following week as punishment.
As my noble friend Lord Young said, we estimate that nearly 2 million people are on ZHCs in cleaning and domiciliary care, retail, hospitality, catering, call centres, construction and customer services, with wages at or around the minimum wage. Some 75% of those on ZHCs find that their hours vary every week and 40% are not allowed to work for anyone else, although we welcome the fact that this Bill begins to address that problem. They are on call—unpaid—and required at an hour’s notice. They are hoarded but not used, a sort of just-in-time stock control applied not only to tinned tomatoes but to staff. Of course, after six months they should be given a proper fixed-hour contract. We may be in a 24/7 economy, which needs a flexible labour market, but, as Pickavance argued in his report, fluctuating demand—the excuse for flexible labour and ZHCs—is largely predictable.
My Lords, I am grateful to noble Lords for their amendments and the opportunity further to debate aspects of zero-hours contracts. I am also grateful for the clarification by the noble Lord, Lord Young, that he does not want to get rid of all flexibility. I was also very glad that the noble Baroness, Lady Hollis, joined our discussion. Her three case studies demonstrate the need for Clause 148.
As I set out in our previous debate, the Government recently consulted on the matter of avoidance and routes of redress, including powers to go to employment tribunals and seek compensation. I am pleased to reassure the Committee that that is already possible under Section 27B in Clause 148.
Amendment 68ZX would require employers to offer fixed-hours contracts once an individual has worked regular hours as determined by regulations. The noble Baroness, Lady Hollis, mentioned six months. Before I respond, let us reflect on how those with zero-hours contracts feel about their employment. The CIPD survey published in November 2013 found that many individuals chose to work on a zero-hours contract and were found to be more content than those in permanent employment. I accept that there will be hard cases but these are overall comments. Zero-hours workers, when compared to the average UK employee, are just as satisfied with their job, happier with their work-life balance and less likely to think that they are treated unfairly.
To respond to the point made by the noble Baroness, Lady Hollis, fluctuating demand is not predictable. My noble friend Lady Harding told us about that at Second Reading from her experience. Even the noble Baroness acknowledged that there are sectors of the workforce and individuals—students, those in IT, the recently retired, and many others—who are happy with zero-hours contracts, and, of course, happier to have a job than not to have a job. Imposing restrictive criteria over how a zero-hours worker can be employed may have the perverse effect of discouraging employers from creating jobs at all.
I appreciate that that is not the noble Lords’ intention, but I know that the Committee will understand the risk of unintended consequences, because it is something that we consider a lot when we are trying to legislate in this House. There is a clear risk that employers will simply let people go, or offer no work at the end of a qualifying period to avoid converting the contract to fixed hours. It would also be very difficult to define what is meant by “regular hours” in all those different industries.
The Government have already made some changes in this area. The flexible working regulations were amended in June 2014 to ensure that any employee can request flexible working. That is just as relevant to someone on a zero-hours contract as it is to a permanent member of staff. If a zero-hours worker is an employee and can show 26 weeks’ continuous service, they can make a request for formalised hours or a particular shift pattern.
Amendment 68ZX also requires a right for zero-hours workers to be provided with financial compensation. As I understand it, that power is already provided for in the clause.
The Minister says that people are satisfied with that. I was just checking my statistics from the CIPD, in which only one in five older people prefer the contract that is being offered them; the other four-fifths would like regular hours. The problem is that you cannot run a second job alongside a first—which is the point of Clause 148, which we all welcome—unless you know what your hours in the first job will be. It is very simple. Unless you have the ability to turn it into a reliable, regular, predictable contract, with the exceptions that we all agree may well be necessary—in IT, arts events, so on and so forth—the freedom you are giving in Clause 148 will be partly illusory. You cannot do it.
I thank the noble Baroness for her clarification. This is not an easy area. I also note that she made a number of good points about bad employer practices. I will mention something we are doing that may help on all these points. We have already encouraged business groups and unions to develop codes of practice. Those need to be sector-specific and industry-led, as we think that creates the most impact. A one-size-fits-all solution from the centre will not work, for exactly the reasons that we are debating this afternoon. The guidance would include, for example, in what circumstances a zero-hours contract is appropriate and where it is not, and the kind of considerations mentioned by the noble Baroness will be relevant.
Amendment 68ZX also seeks powers for employment tribunals to enforce their own judgments. Well established court-based enforcement options are already available to enforce employment tribunal awards, such as the fast-track system or county court in England and Wales and the sheriff courts in Scotland. The primary function of the employment tribunal is of course to provide a forum in which parties can resolve their disputes and obtain a judgment. The employment tribunal does not have responsibility for the enforcement of the awards it makes to individuals. Tribunal-led enforcement of its own awards would represent a fundamental departure from the normal principles of civil justice and enforcement. If the enforcement of employment tribunal awards for zero-hours claims became a tribunal-led affair, many other employment tribunal and civil court users would begin to question why the tribunal or court did not pursue or enforce its judgments or awards.
Amendment 68ZAC suggests that zero-hours workers should be provided with information about their basic terms and conditions within two months of their start date. I agree that employers should provide their staff with clear terms and conditions, and I reassure noble Lords that employees are already entitled to a written—or, I think and hope, online—statement of the particulars of their employment arrangement. That entitlement applies to individuals on a zero-hours contract if their employment status is that of an “employee”. However, the Government acknowledge that there is a wider issue about whether all workers, regardless of their employment status, should be entitled to a written statement. That is being considered as part of the review of employment status, including the risks, impact and opportunities involved in any new arrangements, which I mentioned when we were discussing interns. Officials will report to Ministers on the outcomes in March.
The noble Baroness, Lady Hollis, also talked about the interlink between zero-hours contracts and jobseeker’s allowance or universal credit. Universal credit was of course designed to be responsive to fluctuations in earnings—it is different in that way, and to my mind better—so, for people who are working, financial support will be reduced at a consistent and predictable rate. In weeks where a claimant has lower or no income from their zero-hours contract, universal credit payments would increase.
The point is that if you are going to be paid only at the end of the month, what do you live on in the mean time? Just to make it clear, your universal credit payment will be paid in arrears at the end of the month. However, you learn only at the end of the second week that you do not have the income. Although I absolutely agree that UC will reflect the total earnings over the total month, what do you live on in weeks two and three?
The noble Baroness makes a point that bears on the universal credit payment system in the round. I think that the clause is actually helpful, compared to the status quo, if we make these changes on zero hours. I am advised that universal credit is paid in real time, so if the claimant informs the system in real time, they will get the money. I must apologise that I am not a welfare expert, I am a Business Minister.
Whether it is the handwriting or whatever, it is certainly the case that UC will be based on real-time information, but the payment will be made at the end of a month in arrears. Therefore you have the problem of income-smoothing when you have unpredictable hours, and we know that the hours of 75% of people on ZHCs vary every week. That is why, going back to Clause 148, I ask how you can run a second job with unpredictable hours if your first job has unpredictable hours. Your two employers may want you at the same time, but neither employer may want you at another hour.
The noble Baroness makes a good point. In a sense, that is a problem for employers, who could previously have a zero-hours arrangement that was exclusive. As I explained in opening, we have decided that that should not be the case in future. I am sure that the new arrangements will take some thinking about and settling in but, as far as I am concerned, if you are on a zero-hours contract, you can offer your services to—I do not know—two fashion magazines rather than just one. That is an excellent move forward. In any event, many people on zero-hours contracts who benefit so much from them, especially those in the categories that we were talking about, are not looking for universal credit, as the noble Baroness acknowledged.
I have probably taken this as far as I can this evening. I have tried to set out why we are proposing this, and I hope that the noble Lord will feel able to withdraw his amendment.
I was interested when the Minister said that one of our amendments, seeking compensation if shifts were cancelled at short notice, was catered for in the Bill. I had another careful look and I presume that she is referring to new subsection (5)(c) on page 138, which states rather broadly:
“requiring employers to pay compensation to zero hours workers”.
It does not state in what circumstances. I would welcome some clarification. If that is not possible today, it is still an important issue that requires an answer in writing.
I thank the noble Lord for raising the issue. I was going to deal with it in my response, but decided not to because of the complexities. I can give him some comfort but the best thing is to consider the questions that he has asked and write to him and copy that to other noble Lords, because this is obviously an important issue.
I think the noble Baroness for her response. It has been an interesting debate. I thank my noble friend Lady Hollis for her usual forensic analysis. We will need to consider our response in the light of the Minister’s answers. Although we do not necessarily have an agreement on this, we are seeking to improve the Bill. We are not seeking to abolish flexibility or all zero-hours contracts but we seek to create a fairer scenario for workers employed in those circumstances. With those caveats, I beg leave to withdraw the amendment.
My Lords, this is a probing amendment to analyse the relationship between the flexible labour market and the benefit system that is supposed to support it and which often fails to do so. Some 6 million people in this country have part-time or flexi-hour jobs, and well over 1 million—probably nearer 2 million—are on ZHCs. Most are on or around minimum wage. Unite estimates that half of all workers under 30—that is 3.75 million—are on ZHCs and other short-hour contracts.
As I have said in relation to a previous amendment, of those who are on a ZHC, 75% find that their hours vary every week; only one in five have the same hours and thus the same pay each week. Many do not know on Friday what hours and what pay they will get on Monday.
We have already discussed the abuses that workers may face: unpredictable hours, low pay—nearly 60% of those on ZHCs earn less than £500 per month, with no proper contract, no reliable income, shifts cancelled at an hour’s notice and no ability, which the Bill addresses, to work another job alongside it. There is one other downside that has been largely overlooked and which applies not only to ZHCs but to any part-time job: the interaction more fully with the benefits system. The CIPD, whose figures I have with me, found that 37% of people on ZHCs—that is, 400,000 people—as well as hundreds of thousands of others in short-hour jobs work fewer than 16 hours a week, most at or around minimum wage, in any one job. Tesco was recently recruiting some 800 staff. Ninety-six per cent of the vacancies were for part-time positions, deliberately designed to save the company paying employer national insurance and thus saving Tesco some £100 million a year, even though that left many of its employees without national insurance rights.
Snapshots of Jobcentre Plus show that the majority of jobs usually advertised are part-time, which can mean that those filling them do not come within the national insurance system. As I am sure the Committee knows, for you to come within the NI system you have to earn at least £5,700 in any one job, although you and the employer do not pay NI rates until you are earning at the primary tax threshold of £7,500. Cruelly, and completely irrationally, if under the new freedoms you run three £5,000-a-year jobs alongside each other—for example, cleaning, work in the lunchtime sandwich shop, local newsagent or launderette, or bar work—although your £15,000 income from your three £5,000 jobs is amalgamated for tax purposes it is not amalgamated for national insurance purposes and you are outside the system. I estimate that some 200,000 people are caught this way. We can argue the statistics but I have had the privilege of being a member of a working party on this subject, chaired by the IFS and set up by the Minister’s right honourable friend in the other place, Steve Webb.
The Bill rightly allows people to run two ZHC jobs alongside each other but that will substantially increase the number of people caught. Although their amalgamated income would take them over the NI threshold, because they have to earn more than £5,700 in any one job, they are still penalised. Such jobs are not temporary contracts for entry-level jobs. As my noble friend Lord Young said earlier, half of those doing them stay for more than two years and one-quarter stay for more than five years in such ZHCs.
Who are they? People can be credited into the national insurance system if they are unemployed and on JSA or ESA, if they have children under 12, if they are caring for older people for more than 20 hours a week or if their household income is so low that they will qualify for universal credit.
Who then is excluded from coming within NI? They may be young people living at home. Rather than live off benefit, which would bring them into NI, they are bravely patching together an income that does not. If you are unemployed you get NI, but if you piece a living wage together through two or three jobs then you do not.
They will, in particular, be middle-aged women with children over 12, whose partner’s income floats them off universal credit but who have one, or three, part-time jobs, all below the lower earnings limit, which they have fitted around their family life and caring responsibilities for years. Does it matter? Why am I banging on about this? Without NI, you lose statutory rights to sickness, holiday and maternity pay. Above all, you fail to build your 35 years towards a full state pension. This mattered less until the spring because, in the past, married women could derive a state pension from their husbands—the 60% dependency pension. In future they will not be able to get a pension through him, or through their own work, even if they are working 30 hours a week in three ten-hour jobs. They will go into retirement with much lower pensions. If you lose seven years of NI contributions, and many women in their 40s and 50s may be working without NI contributions for seven years or so, your state pension on retirement drops, on current figures, by £30 a week for the rest of your life.
I have tried, and I am still hopeful that another Government may be able, to amalgamate a couple of mini-jobs for NI purposes, just as they do for tax, to bring a worker into NI. I recognise that in the past the difficulties in doing this were with divvying up the employer’s contribution among two or three mini-job employers and collecting the appropriate information about hours of work. I acknowledge that those two roadblocks were real but we are allowing the self-employed to acquire the full new state pension without an employer’s contribution, so that problem has disappeared and, as the Minister has said, we are collecting real-time information for UC so we can track it all. We could therefore treat people with ZHCs as though they are self-employed or, if they are working less than 16 hours in any of their jobs but at least that in total, they could be regarded as meeting JSA work conditionality and be credited in. We could let older workers, especially women, revisit their national insurance record at the point of retirement to make good any shortfalls, whenever they had occurred, and not confine their ability to do that to the last six years of working life when family pressures—and, therefore, their exposure to a bundle of mini-jobs that did not bring them into NI—may well have occurred much earlier than this.
The coalition Government have, wrongly, refused all such possibilities. With this amendment, I am trying another path to again get people on ZHCs into the national insurance system. Revisit the lower earnings limit, the point at which you come into national insurance. It is currently £5,700 but you do not pay it until £7,500. You could abolish the LEL altogether. After all, if you are on JSA, ESA or UC you come into the national insurance system as of right, without paying a penny and, at that point, without working. It is therefore arguable that there is no point in the LEL any more. However, if that is too radical, I make a more modest suggestion that anyone earning £3,000 a year in any one job—that is £60 a week, or around 10 hours per week at minimum wage—should be credited into NI. A few weeks back, I tabled a Written Question asking what the net cost of this would be, given that so many people are credited into NI without any wage from work. I did not expect it to be high. The noble Lord, Lord Deighton, helpfully replied that the information was not available, which I find hard to believe. I am glad to see the noble Lord, Lord Newby, here; perhaps by now the Minister has had the datasets sorted. That is the reason for this probing amendment.
More positively, we know that the best predictor of anyone in a full-time job is that they held a mini-job the year before, and that a zero-hours contract job of around 10 hours may be a stepping stone back into the labour market for older women. It may, over time, add to our tax and NI receipts.
However, the real case for the amendment is a moral one. We are—some of us—happy to have a flexible labour market in which all the risk passes to the worker, who is then exposed to an exploitative labour market and a rigid and inflexible social security system. Even with this Bill, and even being able to work a couple of ZHCs together—which will be difficult, given that you cannot predict the hours in either of them—you still have to get above the LEL in any one of them to come within NI, so the risks of losing years of your state pension accrual remain.
The flexible labour market will send hundreds of people into retirement with an incomplete state pension, simply because issues such as these are off the Government’s radar. I beg to move.
My Lords, I support Amendment 68ZY. My noble friend Lady Hollis has been tenacious in seeking to achieve fairness for a section of the workforce that is excluded from the national insurance system.
As my noble friend explained, this group of workers is caught by the rules whereby someone has to earn, in a single job, an amount above the lower earnings limit—£5,700 a year—to come into the national insurance system, although they do not have to pay national insurance contributions until they earn more than £7,500 in a single job. If, however, they have two or more short-hours jobs—mini-jobs—all of which pay below £5,700 but which may involve them working, say, 30 hours a week, they cannot add the wages of those jobs together to get above the lower earnings threshold and into the national insurance system. The amendment is simple. It proposes lowering the earnings threshold for entering the national insurance system to allow many more of the growing number of workers on mini-jobs and non-guaranteed hours to get into the national insurance system.
In the past, it was thought that perhaps 50,000 people, mostly women, were affected, as they sought to get an income by putting together a series of mini-jobs. But the scale of the problem is now far greater because of the increase in the use of zero-hours and minimum guaranteed hours contracts in the economy, which can deliver little or no wages in some weeks if little or no work is offered. Workers may need several casualised jobs to get an income but then find that not one of them pays above the £5,700 entry level for the NI system.
According to the ONS’s Annual Business Survey in January 2014, there were some 2.7 million zero-hours contracts, of which 1.4 million provided work to people and 1.3 million did not. The 2011 Workplace Employment Relations Study revealed that 23% of workplaces with 100 or more employees used zero-hours contracts. My noble friend has provided far more detail on the growing evidence available but it is clear that the number who find themselves excluded from the national insurance system will increase.
A modem welfare system has to be inclusive and responsive to the realities of the contemporary labour market. Over the years, Parliament has recognised the unfairness of locking certain groups of people out of the national insurance system and has amended the rules accordingly. As my noble friend listed, mothers of children aged under 12, disabled people, carers, a grandparent caring for a child whose mother works, and the unemployed on JSA are credited into the national insurance system. It seems all the more unfair that there is a group of workers whose pattern of employment and earnings does not deliver wages in any one job sufficient to meet the entry point of £5,700 for the NI system and they cannot add their wages from their other jobs to get through the turnstile. A hundred pounds per week, which is below the lower earnings limit, equates to almost 16 hours on the national minimum wage, so a person with more than one such mini-job could be working a significant number of hours but still be excluded.
Universal credit is income-based so it will not provide a comprehensive solution to this problem. For example, if a single person is earning more than £4,000 a year in any job, they are above the level for universal credit so they do not get credited in. However, £4,000 is significantly below the lower earnings limit of £5,700 and if not one of their mini-jobs pays above this level, they still cannot get credited in. My noble friend gave us another example. If a partnered woman is working but has no single job paying wages that reach £5,700, and if her husband is in work and they have two children aged over 12 when his earnings float him off universal credit, the woman cannot get credited through to the national insurance system. The need to address the position of such women is made even more urgent because from April 2016 these women will no longer be able to gain state pension though their husbands, as the married women’s dependency pension will cease. They will be locked out either way you cut it. Yet the ONS report revealed that women make up a greater proportion of those on zero-hours contracts, and that people who report being on such contracts are more likely to be younger and, I presume, to be single.
The Secretary of State, Vincent Cable, and other employer bodies such as the EEF, the CBI and the IoD argue that zero or no guaranteed-hours contracts have a place in today’s labour market and that employers need flexibility in today’s global economy to manage the consequences of economic downturns. If that is the case, the issue of workers who accrue income across one or more contracts but cannot enter the NI system is here to stay. It means also that it is here to be addressed. The right of businesses to employee flexibility should not deprive workers of access to the national insurance benefits system—but that is exactly what it is doing and will do, unless the problem that my noble friend has so tenaciously and consistently articulated is addressed.
It is argued that such zero-hours contracts are required to meet a short-term need of employers but the persistency of zero-hours contracts is evidenced by the Chartered Institute of Personnel and Development, whose findings indicate that of the workers affected, 65% have been on such contracts for two or more years, 40% for five or more years and 20% for 10 or more. The employer’s need may be short term but the employee’s contractual position can be long-term and bring a long-term lock-out from the national insurance system. The Government’s ban on exclusivity clauses in zero-hours contracts allows people to work for more than one employer but will not provide a definitive solution to the problem. The freedom to have several contracts does not provide entry into the national insurance system if none of them produces a wage above £5,700.
My noble friend Lady Hollis has faced varied rebuttals from the Government on her proposed solutions: that it is not reasonable to try to share employer’s NI across mini-jobs; that the women will still not want to pay class 1 contributions; that there are only a few of them; that their situation is temporary; that they have time to make up missing years; that universal credit will solve it and that, if all else fails, there is pension credit. That persistent rebuttal is becoming increasingly hollow, though, since both the Secretary of State and business itself confirm that there is an integral need for these minimum and no-guaranteed-hours contracts as a functioning part of a modern labour market, so we need to find a solution.
I repeat: over the years, Parliament has recognised the unfairness of locking certain groups out of the NI system, including the state pension, and has amended the rules accordingly. As my noble friend has advised, it has rightly accepted that those who are unemployed and in receipt of benefits such as JSA, have no employer and do not pay national insurance are in the national insurance system. Those who are lucky enough to get a single job earning £6,000 or £7,000 do not pay national insurance contributions but are also in the system. Lowering the lower earnings entry point to allow many more of the growing number of those on mini-jobs and no-guaranteed-hours contracts to enter the national insurance system has the merit of simplicity and is the fair thing to do.
My Lords, after that forensic double examination, I cannot help reflecting that I am glad I am not responding. I support the amendment because it raises a significant issue. I also want to add the point that here are a Government who say that the best thing we can do is to encourage people to get into work, and I think that that is right; people who are locked out of the employment market, for whatever reason, face a real challenge. So these are people who are determined to work, which is what the Government want them to do, and determined to make a contribution not only for themselves but for their families, yet they are being penalised. The case being made is a valid one. We recognise by the nature of the contributions that this is quite a complex issue, so I look forward to the Minister’s response.
Such expectation, my Lords. I know that the question of NI eligibility raised by the amendment is one about which the noble Baroness is deeply concerned and has been for some time; this is not the first time the issue has been raised in your Lordships’ House by her and others. I hope that I can reassure them that the Government are already actively considering this matter, and I look forward to working further with her on this outside the debates on the Bill, to see how best it can be addressed. We are in no sense claiming that this is not a valid issue.
I know that officials from a range of government departments have already been in discussion with interested parties, including the noble Baroness, over recent months, and this work has been considering the evidence base around the matter of national insurance eligibility. As the noble Baroness is aware, it remains a work in progress and we believe that we do not yet know enough to make a sensible legislative change at this point. There are many complex issues regarding the scale of the problem and how to address it.
The noble Baroness raised the figure of 200,000 people who might be affected by the problems that she has so graphically described, but these figures do not align with DWP analysis, which suggests that 50,000 individuals are affected and that the group is disproportionately made up of under-25 year-olds. The noble Baroness laughs but the DWP is not coming up with a low figure for the sake of frustrating her; that is its best view. That is why we need to do more work on the issue.
I am sorry—I did not understand that sentence at all. Would the noble Lord care to explain to me why somebody on £60 a week would be in the contributory system, while somebody on £110 would not?
I am drawing the distinction between somebody who is on a zero-hours contract at that level of income and somebody on a higher level of income, on a straightforward contract, which might pay £5,000 a year. The noble Baroness’s amendment deals solely with people on zero-hours contracts—that is what the clauses deal with.
No—that is not a correct statement. I made it very clear in my opening remarks that this is a problem. My amendment says:
“Such workers shall be eligible for inclusion within the national insurance system”,
and that does not exclude others. I would obviously expect, as the noble Lord absolutely rightly recognises, that that would apply to people on ZHCs. However, as I made very clear in my opening remarks, this affects all those on short-hour or part-time contracts, where in any one job they are not over £5,700, but could by aggregation or in this way, by lowering the LEL, come within the NI system. If we believe in encouraging people into work, we should do this.
My Lords, I was not suggesting that the amendment would exclude the possibility of further provisions being made for people who are not on zero-hours contracts. However, the amendment would amend a clause that deals specifically with zero-hours contracts—that is what the Bill deals with. It is not dealing with people who are on straightforward contracts for, say, five hours a week. That is the point I am making, that this is partial. I am not saying that that means it is worthless; I am simply saying that it is a partial solution, even if the Government were to accept it.
I reiterate what both noble Baronesses have said, that individuals with earnings below the lower earnings limit, whether on zero-hours contracts or not, are not without some protections already. At the highest level, individuals have to reach the lower earnings limit in only 30 years of a 49-year working life to qualify for a full state pension. Those who reach state pension age from 6 April 2016 will require an additional five years. That means that the individual can fall below this limit for a significant number of years—up to 14—and not be penalised in retirement.
Of course, there are also the other protections, which both noble Baronesses have referred to. Not only income that is above the lower earnings limit counts towards eligibility for a full state pension. Many national insurance credits also count towards that entitlement. For instance, NI contributions can be credited where a person is unable to work full-time due to ill health or because of caring responsibilities. These can be awarded to those receiving certain benefits, such as child benefit or working tax credits, to help build entitlement to a state pension. While we cannot be certain, it is highly likely that many individuals whom the noble Baroness is seeking to benefit are getting national insurance credits during those years in their working life where their earnings fall below the lower earnings limit.
I know that the noble Baroness is keen to make changes as soon as possible, but more work is clearly needed to understand the full extent of the issue. In any event, as I have said, this amendment, which deals only with zero-hours contracts, does not and would not resolve the issue entirely in the way that the noble Baroness wishes. I therefore urge the noble Baroness to continue working closely with the DWP and HMRC on this matter so that they can have the benefit of her very considerable experience and we will eventually reach a satisfactory solution. However, I submit that the way we should do that is not through this Bill and this amendment.
I thank my noble friend Lord Young, and especially my noble friend Lady Drake for her powerful speech.
The noble Lord, Lord Newby, made three points in reply to which I need to respond. The first was that work was in hand on the working party chaired by the IFS—which, as I said, his right honourable friend Steve Webb set up—on how best the problem should be addressed. Not so. We were told explicitly that all that we could do was collect the data on how many people might be affected, not come up with any policy recommendations. I noticed that when I suggested half a dozen, they were not included in the minutes.
I would be delighted to have the wider remit that the Minister suggested, because that would indeed allow us to take the issue forward. Instead, it has hung around his second point, which is the number coming from DWP of 50,000 as opposed to my figure of 200,000. I am not sure about the propriety of my citing this information in the Moses Room, but if he checks the minutes and the additional information based on research of P14s from HMRC and his department, he will probably find that it is estimated that 130,000 people will be above the current LEL in any one pay period, which could be a week or a month, but over the course of the year will be below LEL, so they are in addition to the 50,000. In addition to that, it was suggested to the working party that about 30,000 or more, possibly far more, are untouched or uncaught because they work for very small employers—the newsagent’s shop, and so on—and are not within the PAYE system. Put those figures together and you get to more than 200,000, my original figure of some two months ago.
The Minister’s third point was that the amendment was very partial and that there was a wider problem with part-time workers more generally. I absolutely agree; he is right. I will be delighted if, as a result, I have persuaded him that the Government need to come back on Report with a comprehensive amendment, a freestanding clause which will address the issue more widely. I invite him to do so, because that is what he has been suggesting and would be consistent with his position in his reply.
At the core—okay, we are arguing between ourselves —is that it cannot be right, first, that someone who is not employed comes into the national insurance system but someone who may be working 30 hours a week cannot do so. Secondly, it cannot be right that when we have a flexible labour market—we have all agreed that a flexible labour market in a 24/7 economy is necessary—all the risks, including the risk of losing a sizeable chunk of your state pension, should fall on the shoulders of the worker, usually a middle-aged woman. That cannot be right. I regard it as immoral. If we want a flexible labour market, and most of us accept that there is a need for it in places, we should ensure that the national insurance system supports those people to do what the rest of us want, wearing our hats as consumers. If we do not, I think that we are behaving immorally. I am sure that, on reflection, the Minister would agree.
I am very happy to continue to discuss numbers on the working party. I am very happy that the Minister will recommend to his right honourable friend that we enlarge the terms of reference of that committee and therefore come up with policy recommendations, and I would be very happy if the Minister were minded to produce some of those recommendations on Report as a government amendment. I would then be very content. I beg leave to withdraw the amendment.
My Lords, Clauses 149 to 151 give Her Majesty’s Treasury powers to make UK-wide regulations with regard to public sector exit payments. Amendments 68A to 68N and 101A will provide Scottish Ministers with equivalent powers to make regulations to recover exit payments made by relevant bodies in Scotland. They do not enable Scottish Ministers to make regulations affecting payments made elsewhere in the UK. I can confirm that that the Scottish Government have seen these amendments in draft and are content with them. I beg to move.
(9 years, 7 months ago)
Lords Chamber
To ask Her Majesty’s Government what plans they have to give Ofsted the powers to inspect the management of academy chains.
My Lords, when inspecting an academy in a chain, inspectors can and should consider the effectiveness of the governance arrangements and the school improvement support provided by the chain. Ofsted also carries out inspections of groups of academies within chains. These are an effective means of considering the management of academy chains and ensuring academy chains are held properly to account. The Secretary of State has written to HMCI recently, setting out our views out on this, and the letter is available on our website.
I thank the Minister for that reply, and I am very pleased that the Secretary of State has belatedly been forced to make some concessions on this matter. However, can the Minister explain why we continue to have one set of rules for the people who run academy chains and another set of rules for local authorities? The latter are assessed on their strategic leadership of their schools, which of course is essential to the schools’ performance and improvement. So why do we not assess academy chain managers on the same basis as local authorities?
There have not been any concessions. It is completely unnecessary for Ofsted to inspect chains’ head offices. Its batched inspection methodology, which it has used in a number of cases, is working extremely well. Ofsted has a great deal to do. As of September this year, it is taking in-house all its subcontracted inspectors, who do the vast majority of its inspections, and it is unnecessary to ask it to do a further task that is not needed.
Could my noble friend explain to the House what role the new regional commissioners will have in relation to academy chains and Ofsted? For example, if Ofsted finds that a school is not being supported as it should be by its parent academy chain, whose responsibility is it to remonstrate with the academy chain and make sure that it gets that support?
The regional schools commissioners are responsible for looking at the performance of academy chains, particularly schools that are doing poorly. They are in close touch with all academy chains. Each regional schools commissioner has a responsibility for an academy chain, and it will be their task to make sure that appropriate support is brokered and, in extreme cases, to help to broker a change of sponsor.
My Lords, the Secretary of State’s letter mentions an inspection framework for the management of academies. Exactly what inspection framework is meant?
Is my noble friend aware that he is surely right? Local authority inspections are one thing but, in addition, there are a whole host of charitable foundations that have Ofsted inspections—but that is, again, in a different framework.
Does my noble friend agree that the overwhelming success of the majority of free schools and academies is the strongest evidence yet that allowing autonomy and freedom to schools and heads is the best way in which to raise standards?
I entirely agree with my noble friend: free schools are our most successful group of non-selective state schools, with 24% rated outstanding. We are told by Ofsted that we have the highest-performing school system that we have ever had. The performance of the first batch of primary academies is much higher than that of local authority maintained schools, and secondary academies open for any length of time are clearly also doing better.
My Lords, would the Minister care to comment on a fear that local authority schools have a much higher percentage of children with special needs, particularly those with special needs that affect their behaviour? The Minister very kindly wrote to me, giving me the percentage improvement in free schools and academies, but many schools contact me to say that their local academies and free schools do not take as many children with difficulties and problems, and that, in addition, those schools get better funding.
I am very happy to write to the noble Baroness again with more details on this. However, as far as I am aware, most academies, particularly the 1,000 schools that we have taken out of local authority maintenance over the past four years, many of which were languishing in failure for years, have very high rates of pupils with SEN, EAL and free school meals. However, I am happy to write to her with more details.
To ask Her Majesty’s Government what is the average salary paid to general practitioners working within the National Health Service.
My Lords, in England, in 2012-13, the average income for a contractor GP was £105,100 and for a salaried GP £56,600—both before tax. A contractor GP is a practitioner who entered into a contract with the NHS as a single-hander or as part of a partnership. Eighty per cent of GPs are contractors.
I am grateful to my noble friend for that reply. In view of these quite respectable salaries, might it not be reasonable to expect a little bit of work in the evenings and on Saturdays?
My Lords, the Government recognise that GPs work hard but that some patients would like more convenient opening hours. We have invested £50 million in piloting improved access to general practice this year, which will benefit 7.5 million patients. A further £100 million of investment will follow next year, which will mean that even more patients can have access to longer evening and weekend hours.
Will the Minister confirm that the increased remuneration for GPs was part of structural and other changes in the NHS which took hundreds of thousands off the waiting lists, reduced the maximum waiting time from three years to 18 weeks, halved the incidence of hospital acquired infections and increased the efficiency and service in our accident and emergency units to 98% over a decade, and that, if all those beneficial changes have now been reversed, that cannot be placed within the context of doctors’ wages?
Certainly those changes under the last Government are well recorded but GPs wages have been falling every year in real terms since 2005-6. The expenses-to-earnings ratio increased from 62.7 to 63.7 and the additional funding announced at the end of last year will support general practice and out-of-hospital care more widely to improve infrastructure and pilot new ways of working.
My Lords, following the Royal College of General Practitioners report in June 2014 about the difficulty of getting doctors to practise in areas of deprivation, what progress has been made to ensure that poorer areas have the requisite number of GPs?
I can tell my noble friend that today has brought good news. NHS England, Health Education England, the Royal College of GPs and the BMA today published a 10-point plan to boost GP numbers. As part of this, NHS England is working with the BMA and the royal college to explore a time-limited incentive scheme to offer additional financial support to GP trainees committed to working for three years in areas where it is hard to recruit GPs.
My Lords, in view of the answer that the noble Baroness has just given, I wonder whether she was listening to the Radio 4 report at lunchtime today—I am sure that she was not and has many better things to do—about the extreme difficulty that these schemes are having in recruiting trainee doctors into general practice. Indeed, the University of Leicester attempted to recruit 250 doctors, if I remember rightly, but fell about a third short of that number. In those circumstances, is it appropriate for us to be casting a jaundiced eye on what these people are paid?
I am not sure about the salary and I am sorry that I missed the programme. We are aware that there are certain areas where we feel that there are not GPs and there should be more GPs. We are working really hard and, as I said, this new incentive is in place as of today and will, we hope, be able to solve that problem.
My Lords, can my noble friend explain why GPs in this country are paid substantially more than GPs in France, despite the fact that the standard of medical care in France is at least as high as it is in this country, if not higher? I speak as someone who from time to time receives medical care in both countries.
I suspect that the French GPs do not have such a competent union.
Does the Minister agree that sooner or later we will have to tackle the issue of developing a comprehensive primary care service in this country that operates for 24 hours, around the clock and seven days a week, which is a much bigger issue than GP salaries?
Community and primary services are being looked at in the round by NHS England with a view to seeing what changes need to be implemented to effect, I guess, the way in which we work in modern times.
Is the noble Baroness aware that the number of patients being seen by general practitioners is rising year-on-year? Is she also aware that the amount of bureaucracy is becoming overwhelming for GPs, who are spending up to 50% of their time uselessly filling in forms and papers? Could they not spend more time seeing patients?
Yes, indeed. Again, we are working hard with NHS England to try to reduce the sort of form filling and bureaucracy that GPs are currently having to do so that they can spend more time with their patients.
My Lords, does the Minister realise that many GPs are thoroughly demoralised by all the attacks on them by ill informed politicians? What is more, without mentioning which party it was, a certain group criticised GPs and said, “We know what you are doing. You are on the golf course playing golf rather than doing your work; so we are going to pay you only for what you do”. The GPs thought that that was rather a good idea and it resulted in a 25% pay rise.
My Lords, I am sorry, I missed the question in the whole of the tale.
My Lords, I thank my noble friend Lord Reid for once again setting the record straight on this issue. Moreover, in Labour’s last year in office, 98% of patients were being seen by their GPs within four hours. Does the Minister agree that the key problems that need to be addressed were set out in the Nuffield Trust’s recent report—an emerging crisis in the GP workforce, not enough GPs being trained, more trainees now working part-time, more existing GPs planning to retire early, and the numbers just not keeping up with those of hospital doctors?
There is a whole mix of issues. Morale is clearly one, but it is our view that the 48-hour target did not work. From 2007 to 2010 the percentage of patients who were able to get an appointment within 48 hours when they wanted one declined from 86% to 80%. This Government take a different approach. We are trying to focus on local solutions rather than top-down targets. According to the latest data from the GP patient survey published in January this year, 84% of patients were able to book an appointment at their GP surgery when they needed one and 91.8% of patients got an appointment at a time that was convenient to them.
My Lords, going back to the answer my noble friend gave to the noble Lord, Lord Laming, who made a fundamentally important point, she said that the work of GPs was being looked at by NHS England. As I understand it, NHS England is answerable, in some form or other, to this Government. Does my noble friend accept that if there is to be the sort of fundamental and comprehensive change that not only the noble Lord, Lord Laming, but a lot of other people believe to be necessary, that change will have to be agreed on a cross-party basis rather than on a narrow, government basis, whoever happens to be in Government?
Yes, consensus is already a good idea. I am sure that the next few months will see all of us airing our differences. But in some areas—the one that comes to mind immediately is the area of joined-up services between health and social care—there is already quite a lot of agreement.
(9 years, 7 months ago)
Lords Chamber
To ask Her Majesty’s Government whether they intend to place an order for any Type 26 Frigates before the General Election; and if so, how many.
My Lords, we are working positively with BAES to maintain momentum on detailed ship design, cost, technical integration, supply chain and shipbuilding on the Clyde. Our common aim is to achieve greater maturity in designing the capability needed by the Royal Navy while maximising taxpayers’ value for money. We expect to make an announcement before the end of this Parliament. We are planning to replace the 13 Type 23s on a one-for-one basis.
I thank the Minister for that reply. Interestingly, Japan is an island nation dependent for its existence on the sea, rather like the United Kingdom, but it does not run global shipping and is not responsible for 14 dependencies worldwide. It has just decided, in this very dangerous and chaotic world, to increase the number of destroyers and frigates in its navy from 47 to 52. Does the Minister think, in view of the fact that we have only 19 destroyers and frigates, that replacing the 13 frigates with the Type 26, bearing in mind that the oldest of them is seven years beyond its design date already, is very urgent? At the very least we should order long-lead items for those 13 now.
My Lords, it will be for the 2015 SDSR to consider how best to deliver the capability that the Royal Navy requires in the long term, but to ensure that the Navy gets the number of Type 26s and the capability that it requires we must be certain that we have a mature design and build programme before committing to an initial order size. I can assure the noble Lord that we expect to make decisions on some of the longer-lead items shortly.
My Lords, would it not be a good idea for some of these frigates to be built other than in Scotland, in view of the uncertainties surrounding that place?
My Lords, the Type 26 will be built by BAE Systems on the Clyde. Complex UK warships are built only in UK shipyards and we have no plans to change this. Although the contract has not been awarded, we have been clear that from 2015 the Clyde will be the UK’s only shipyard that builds complex warships.
Will the noble Lord tell the House what the incremental cost is of maintaining and refitting the Type 23s, which would not have been necessary had the Type 26 programme come forward on time? If the reason for the delay in the programme is lack of money, as I suspect, why on earth have the Government underspent in their defence budget in this Parliament—against a much reduced, severely reduced, some of us think irresponsibly reduced defence budget? The Government have underspent by nearly £400 million; the exact figures were given to me in a Written Answer the other day. Is that not a dereliction of duty, both to the country and to members of the Armed Forces themselves?
My Lords, I cannot give the noble Lord the figures that he requires, but I can assure him that we want to get the Type 26s and the capability that the Royal Navy needs, to get value for money for the taxpayer, and to have a very strong British shipbuilding industry.
My Lords, there are reports that the delays referred to by other noble Lords are due to arguments about the growing sophistication and weight of the Type 26s, which has vastly increased costs. BAE Systems originally put the weight at 5,400 tonnes, which has now risen to 6,500 tonnes. Fully loaded, they are expected to weigh 8,000 tonnes. Costs have risen by £100 million per frigate. Can my noble friend say what action the MoD is taking, following Sir Nick Houghton’s comment that there was,
“an expensive habit of over-specifying our equipment needs”?
My Lords, my noble friend makes a very good point. As an example, we acknowledge that there have been in-service reliability issues with the Type 45 destroyers’ power and propulsion systems. I can assure my noble friend that we have learnt lessons. We are addressing them as we take forward the Type 26 programme.
Can the Government indicate to what extent a decision to order Type 26 frigates before the election, and the number of them, pre-empts options on the future strategic role of the Navy under the 2015 strategic defence and security review, which has yet to be undertaken? Could the Government indicate their assessment of the extent to which there will be an export market for the Type 26 frigates and whether there have been any expressions of interest?
My Lords, bilateral conversations are ongoing with a number of international partners to explore opportunities for co-operation on the Type 26 itself, as well as on its design and on the systems that are planned to be fitted to it.
(9 years, 7 months ago)
Lords Chamber
To ask Her Majesty’s Government what assessment they have made of progress in teaching foreign languages in schools.
My Lords, the inclusion of a foreign language in the English baccalaureate measure has raised entries from pupils in England by 20% since 2012. We are reforming GCSEs and A-levels in foreign languages, with new teaching from September 2016, to ensure that they are demanding and relevant to employers, and further and higher education. From September last year, maintained primary schools have had to teach a foreign language to pupils from the age of seven.
Does my noble friend agree that one of the many advantages of learning a foreign language is the practical benefit to trade and diplomacy? In the case of non-European languages such as Cantonese, Mandarin and Arabic, where the sounds and structure are very different, is it not easier for children to learn them if they are taught them from a very early age?
I agree entirely with my noble friend about the importance of these matters. It is clear that developing language skills helps cognitive development. Offering more children the opportunity to learn Mandarin, for instance, will help to encourage mobility between the UK and China, and the long-term success of our economy. The Prime Minister has pledged to increase substantially the number of people learning Mandarin Chinese. The Confucius Institute at the IOE is leading the way in this regard.
My Lords, the Question is about progress. The problem is that we have no real idea about that, because there is no benchmark either to help schools to interpret the national curriculum guidelines consistently, or for pupils to know what level of competence they should achieve at the end of each key stage. Will the Minister agree to consider introducing a light-touch measure for progress linked to the Common European Framework and apply it to all key stages?
In April last year, we published a set of key principles for assessment, produced as a result of consultation on accountability. We also announced last May a new package of pupil assessment methods developed by teachers for their fellow teachers. Schools are able to develop whatever methodology of assessment they like. However, I will take note of what the noble Baroness says and look at that further.
Will my noble friend tell me what the Government are doing to ensure a supply of well qualified and competent teachers of modern languages, both at primary and secondary level?
I am delighted to answer my noble friend’s question. We have increased the bursary available to people with a first class degree in, for instance, languages, to £25,000. We are providing £2 million to fund nine projects across the country that will help primary and secondary teachers teach the new modern language curriculum at key stages 2 and 3. The National College for Teaching and Leadership facilitates an expert group for languages and also has a pilot scheme for subject enhancement in primary schools.
My Lords, does the Minister accept that it is the quality of foreign language teaching, particularly in primary schools, that remains a key challenge? I note what he has just said, but that teaching has been characterised by some as being “rusty O-level” and only a page or two ahead of the children. We all support the idea of extending foreign language teaching to primary schools, but it should not be at the expense of quality. Given what the Minister said, is he satisfied that enough extra resources are being put in to make that kind of teaching a distant memory?
We believe that they are, but obviously we will keep this matter under review. We do feel that we need to redress the situation in languages. The European Survey on Language Competences in 2012 showed us that our 2011 GCSE students were the worst at languages across all the countries surveyed.
My Lords, is the Minister aware that, particularly in Canada, for example, schools are bilingual? Are there any plans to try to get more bilingual schools in England, particularly in some of the European languages?
I am sure that the noble Baroness will be delighted to hear that we have introduced six new bilingual schools under the free schools programme— notably the Bilingual Primary School in Brighton; the Europa School UK near Abingdon; the Judith Kerr Primary School; the La Fontaine Academy in Bromley; and the London Bridge School. Later this year, the Marco Polo free school will be opening.
My Lords, the Minister will be aware that I have expressed concern in the past about the changes in teacher education and the increasing difficulty of national planning. In view of the shortage of language teachers, does he envisage a situation where there will be a complete shortage of language teachers in certain parts of the country, and how does he plan to rebalance this particular problem? Will he speak to the university colleges of education and the church colleges about the importance of teacher education?
I agree entirely with the noble Baroness about the importance of the matter. More than 1,800 places for modern language teacher trainees are allocated for 2015-16, which is an increase of 4%. As I say, we have substantially increased the bursaries, which were brought in for language teachers by this Government.
My Lords, for how many of our secondary and primary school pupils is English a second language, and is the Minister confident that we have sufficiently able teachers of English to make sure that, when children leave primary schools and go on to secondary school, they are fluent in the English language?
Will the Minister say whether any resources have been made available to schools to bring in native speakers? It used to be that teaching assistants—for example, French, German, Italian or Spanish assistants—were available and could be funded, particularly in secondary schools. My guess is that in primary schools they would be even more useful. Is there any effort to make that happen?
The noble Baroness makes an extremely good point. We have given the British Council, for instance, £500,000 to recruit foreign language assistants to work in the UK. Currently, some 1,250 foreign language assistants have been recruited for English schools, and the British Council is working with Hanban to introduce a number of Chinese language assistants into the country.
Given the multicultural identity and diversity of ethnic backgrounds of people in the United Kingdom at present, there must be hundreds of thousands—perhaps millions—of people, including, I suspect, hundreds of thousands of schoolchildren, who are bilingual. What thought have the Government given to, or what action have they taken on, mobilising this resource by focusing either on recruitment or on some form of potentially creative, if informal, educational process to make sure that we use the resources that our multicultural society has given us?
My Lords, will the Government consider special courses for foreign students wishing to learn the va et vient of English parliamentary language?
My Lords, given that there has been a substantial increase in foreign language teaching in primary schools, are the Government concerned about the drop from 84% in 2012 to 76% in 2013—and what specifically are they doing to make sure that primary foreign language teaching does not drop further?
Perhaps I may give the noble Lord another opportunity to answer the very pertinent question from the noble Lord, Lord Cormack, about the proportion of primary school children in England for whom English is not their first language. I think that the Minister inadvertently forgot that question.
We are fully aware of the high proportion of primary school pupils in England for whom English is not their first language. Many schools are suffering with pupils who come to the country not speaking any English at all. With regard to which languages pupils may study at primary school, of course they could study their native language but that would probably not pass muster with Ofsted in a broad and balanced curriculum.
My Lords, I beg to move that this Bill be now read a third time—a first time.
That the draft Regulations laid before the House on 26 November, 1 December and 3 December 2014 be approved.
Relevant documents: 16th and 17th Reports from the Joint Committee on Statutory Instruments and 21st Report from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 22 January.
(9 years, 7 months ago)
Lords Chamber
That the draft Order laid before the House on 4 December 2014 be approved.
Relevant document: 17th Report from the Joint Committee on Statutory Instruments. Considered in Grand Committee on 22 January
(9 years, 7 months ago)
Lords ChamberMy Lords, in moving Amendment 70, I shall speak also to Amendment 71—slightly less fast-tracked legislation than that which my noble friend the Chief Whip sought to take through the House just now.
Under the Terrorism Prevention and Investigation Measures Act 2011, the Secretary of State can impose restrictions on an individual leaving a specified area—the so-called “travel measures”. Clause 13 provides that the Secretary of State must publish factors to be taken into account when deciding whether to impose such restrictions on an individual. My amendment would add not only the restrictions but “and what restrictions to impose”. The area to which I have just referred is not defined, quite understandably, but it could be anything from a small postal district to a very large region. This is a probing amendment, seeking reassurance about the factors that will be applied to the decision as to what the area is, as well as whether to impose the travel measure. I appreciate that the Secretary of State’s decision will have to be a reasonable one, but I am looking to find a way not only to make the criteria objective, but as far as possible, transparent.
Amendment 71 would add to proposed new subsection (1A) of Section 23 of the 2011 Act the provision that, where there is a travel measure, an individual who breaches it is not guilty of an offence—because breaches of the TPIMs measures are offences—if he contravenes the measure,
“with reasonable excuse and in exceptional circumstances”.
I have in mind, again in probing, how an individual who leaves a fairly confined specified area will be dealt with if, for instance, there is a medical emergency involving either himself or a family member living with him, or if there is a sudden severe illness of a family member who is living at the family home and not at the place where the individual has been relocated. Quite understandably, he will want to get there as fast as possible and not have to take time seeking a permit allowing him to do so. It is a humanitarian and reasonable matter that one might well have in legislation. If my noble friend gives me assurances about how these things have been dealt with in the past—they are not new—and understanding has been shown so that a prosecuting offence has not been pursued, I will be happy with that. I beg to move.
My Lords, I am grateful to my noble friend for tabling these amendments, which allow us to have a discussion on the travel measure that can be imposed on a TPIM subject.
Amendment 70 would amend the requirement for the Secretary of State to publish factors to take into account when deciding whether to impose restrictions under the travel measure. This would add an additional requirement to publish factors on “what restrictions to impose”. The purpose of the requirement in the Bill is to indicate the types of factors that the Secretary of State may consider when deciding whether to impose the travel measure. In each instance the location and size of any boundary will depend on the individual case. The factors that the Secretary of State may consider could include: national security considerations necessary to prevent or restrict involvement in terrorism-related activity; the original location of the TPIM subject, and by virtue of that, their family connections; the ability to access services and employment; the proximity to airports or ports; and the proximity to other TPIM subjects or prohibited associates. Any restrictions would have to be necessary and proportionate, as the noble Baroness rightly reminds us. The Secretary of State will publish these factors at Royal Assent and a copy will be placed in the Library.
Amendment 71 would allow a TPIM subject to use a “reasonable excuse” in exceptional circumstances to justify leaving the United Kingdom. In such circumstances, a prosecution for breaching the TPIM notice could not be brought. All other breaches of a travel measure—or any other measure—already allow for a reasonable excuse. The reality is that, if a TPIM subject leaves the UK without permission, they will be absconding from their TPIM notice. This is a very serious matter, as I am sure the noble Baroness would agree. It was the problem of absconsions which led to the creation of TPIMs as a successor to control orders. These individuals may very well pose a danger to the public in this country or overseas. We maintain that there is no reasonable excuse for leaving the UK without permission.
If a TPIM subject has a legitimate need to leave the UK, they can seek permission from the Secretary of State. There should be no circumstances where they leave the country without prior agreement. This morning, I discussed with officials the length of time that such measures might take. The experience is that these exchanges, permissions and interactions tend to take place on a very speedy basis. In the circumstances, we would not anticipate that there would be a problem in securing that permission.
I trust that, with that explanation and those reassurances, my noble friend may feel able to withdraw her amendment.
My Lords, that is very helpful. I wondered whether my noble friend might refer to the need to have a passport to travel outside the UK, which would probably have been dealt with as part of the arrangements for the individual. I will read through the list of considerations which my noble friend gave in response to my first amendment. I beg leave to withdraw Amendment 70.
My Lords, in moving this amendment I will speak also to Amendment 74. The noble Baroness, Lady Smith, also has an amendment in this group.
Clause 15 deals with appointments which an individual can be required to keep. Following comment from the current Independent Reviewer of Terrorism Legislation, this takes advantage of the legislation in order to require individuals to attend appointments, for instance, in connection with deradicalisation. I really do not like that term: perhaps I might say appointments that would help the individual return to or lead a more comfortable and normal life. Amendment 72 would add that the individual could request somebody other than the specified person.
Different individuals respond in different ways to different counsellors, if I can use that term in a very wide sense. This work has to be dealt with case by case, and it would be a pity if it were to fail because of the individual and his counsellor simply not getting on and there not being a sensible opportunity to change the personnel. We all know of people who we simply cannot rub along with for reasons that sometimes we cannot even quite identify.
Amendment 74 would provide, in connection with such appointments, that the Secretary of State would be deemed to have given permissions for travel to enable the individual to attend appointments and, crucially, will not unreasonably withhold permissions to attend appointments relating to deterring other people from involvement in terrorist-related activity. We are all aware—it is a matter of common sense—that returning fighters may have a positive role in deterring other people. In the debate on Thursday on the latest proscription order that has been introduced, the noble Baroness gave an example of a woman trying to return to this country who was disillusioned with what she had found—I think—in Syria. That sort of disillusionment should be harnessed, and I would like to find every way of making this legislation positive as well as inevitably negative. I hope that my noble friend can assure the Committee in that connection.
I gave the Bill team notice of this matter this morning—if it has not yet reached the Minister, I will understand if he cannot answer—and will pick up an issue that the independent reviewer raised. This matter was also taken up by the JCHR: the question of privilege against self-incrimination. The Government’s response to the independent reviewer’s report was to say that this would not be appropriate. The Government referred to a “blanket approach”. Can the Minister unpack that a little today? I beg to move.
My Lords, our Amendment 73 is in this group. As has been said, Clause 15, on appointments for people on terrorism prevention and investigation measures, allows the Secretary of State to require an individual to attend meetings with such persons as the Secretary of State may specify, at such locations and at such times as the Secretary of State may by notice require. The specified persons may choose the time and place of the meeting. The clause is expressed in general terms and the purpose of the amendment, which is a probing amendment, is to give the Government the opportunity to say more about what kind of meetings an individual would be required to attend, for what purposes or objectives and over what period of time. It would also be helpful if the Minister could say if assessments will be made of the outcome of these meetings and to whom the assessments, if they are made, will be given.
Our probing amendment provides for the Secretary of State to be able to instruct an individual on a TPIM to attend deradicalisation programmes, since we think it is important that the Secretary of State should be able to require people to attend Channel meetings and appointments and possibly those relating to other parts of the Prevent programme. However, I hope that in his response the Minister will not only address the specific point covered in this probing amendment but talk in more depth about how the Government envisage using powers under Clause 15.
My Lords, I am grateful to noble Lords who have spoken in this debate. I will put some remarks on record that I hope will answer some of the points made by the noble Lord, Lord Rosser, and then deal with some of the points made by my noble friend Lady Hamwee. I am grateful to noble Lords for raising these matters.
Amendment 72 seeks to amend the appointments measure by overtly stating that a TPIM subject may request an alternative person to the individual specified by the Secretary of State. The Secretary of State will consider whether an appointments measure is necessary for a TPIM subject for purposes connected with preventing or restricting the individual’s involvement in terrorism-related activity. If a TPIM subject wants to meet a particular person, such as a counsellor, there is nothing to prevent them from making their own arrangements to do so, as long as the measures in their TPIM notice are not breached. In addition, the TPIM Act 2011 already provides the ability—under Section 12—to vary the measures in the individual’s TPIM notice, or for the Home Office to grant permission for the subject to do something they would otherwise be prohibited from doing.
The choice of people or organisations—a point touched on by the noble Lord, Lord Rosser—that a TPIM subject is required to meet will be decided on a case-by-case basis. To develop that a bit further, the types of people who it might be appropriate to recommend particular meetings with include probation officers, somebody from a job centre, if, for example, they are looking for work, or another of the individual’s mentors. As my noble friend said, the point is that we want people who return to the UK to be reintegrated into mainstream society because we believe that they can be very important elements in the prevention strategy aimed at those who might follow in their footsteps. This consideration would include whether such requests might lead to more genuine engagement or were aimed at undermining the effectiveness of this measure, or whether any national security concerns were raised.
Amendment 73, in the name of the noble Lord and the noble Baroness opposite, would amend the appointments measure in Clause 15 that allows the Secretary of State to require an individual to attend meetings as specified by the Secretary of State. The appointments measure is a broad power that allows the Secretary of State to require a TPIM subject to meet relevant organisations or people who can contribute to their ongoing management and integration. The measure includes the ability to require TPIM subjects to meet specified people to assist with their deradicalisation, including, but not limited to, providers of the Channel programme, for example. It is therefore unnecessary to specify explicitly that this is available via the appointments measure.
Amendment 74 seeks to specify that the Secretary of State may not unreasonably withhold permission for a TPIM subject to attend appointments related to deterring other people from involvement in terrorism-related activity. The purpose of the TPIM notice is to protect the public from terrorism and to prevent the TPIM subject from engaging in terrorism-related activity. If the measures are no longer necessary, the TPIM notice must be revoked. Therefore, anyone on a TPIM notice remains an ongoing national security concern. This being the case, we do not consider TPIM subjects necessarily to be good people to mentor others. However, if a TPIM subject chose to speak at a meeting to deliver a deterrent message, he or she could do so as long as it did not breach any of the measures in his or her TPIM notice. If it did breach any of the measures, or he or she encouraged people to engage in terrorism, of course they could be prosecuted.
Turning to the specific point—I am grateful to my noble friend for sending the notice to the Bill team ahead of this debate—about David Anderson’s report on TPIMs, the new measure will be an important part of the management of TPIM subjects and will mean that they must meet organisations and other persons as required by the Home Secretary. Its primary purpose is not to gather evidence to prosecute TPIM subjects. Nevertheless, it would be undesirable to create a situation where a TPIM subject provided clear evidence of committing a crime—including terrorism—but where, due to a statutory bar, that evidence could not be relied on, in any circumstances, in criminal proceedings.
In addition, the criminal courts have the power to exclude evidence where to allow it would have an adverse effect on the fairness of proceedings. We consider this to be a sufficient safeguard to ensure that information obtained in these meetings cannot be unfairly used against the individual. However, we will consider on a case-by-case basis whether appropriate assurances can be provided about how information obtained through the appointments in these measures will be used.
I was asked whether the assessments would be reported back—and, if so, to whom. Where appropriate, assessments will be provided to the Home Office. The ongoing necessity for meetings to continue will be kept under review depending on the nature of the meetings. Some may be one-off while others may be regular over a prolonged period. I think that the overarching message of the response to these amendments is that each case will be different and therefore, in order to be effective, each TPIM will need to be tailored to the individual concerned. With that additional information and explanation, I hope that my noble friend will feel able to withdraw her amendment.
My Lords, I am grateful for the response. On the last point which is not the subject of an amendment, I am glad to hear that questions of reassurances about evidence are and will be dealt with case by case. I had perhaps not understood the context of this, and that that might be the case. I am glad to hear it.
I hear what my noble friend said on my other amendments in the group and I do not think that it is necessary to detain the Committee, other than to comment that a change of counsellor/mentor/adviser will be within the provisions for review, which I think is how my noble friend explained how a change might be made. It is useful to understand that that might be the procedure. However, I am glad to see that it is appreciated that, for this to be successful, it must be a very personal matter. I beg leave to withdraw the amendment.
My Lords, Amendment 75 is not a probing amendment. This is for real. Perhaps the most challenging feature of Part 2 of this Bill is the reintroduction of internal relocation orders into the TPIM regime, which many of us would regard as a regrettable necessity. Amendment 75 concerns what should be the appropriate level of judicial oversight in these cases and would, I believe, go some way to take the sting out of the highly toxic question of internal relocation.
The amendment is designed to give effect to one of the independent reviewer’s 10 recommendations made in his March 2014 report into TPIMs—recommendation 3. Put simply, although I fear I shall have to explain the amendment a little more fully in a moment because, on its face, it is less than crystal clear in its effect, the position is this. Under the present TPIM regime, one of the four conditions that has to be satisfied before a TPIM order can be made—it is called Condition A—is that the Secretary of State “reasonably believes” that the person concerned,
“is, or has been, involved in terrorism-related activity”.
That is the particular condition which is referred to in Section 3(1) of the 2011 Act, which in turn is what Clause 16(1) of this Bill relates to.
At present, if a TPIM order is made, the courts can review it or hear an appeal ultimately against it only on a limited basis. The court is expressly required by the statute to apply the principles of judicial review. In other words, the court decides only whether the Secretary of State was acting reasonably or perversely in reaching her belief. The court does not have the jurisdiction to reach its own conclusion. This would continue to be so if Clause 16(1) is enacted in its present form.
Personally, as I made plain in what I regret was my rather overlong speech at Second Reading, I can see no true distinction between the Secretary of State reasonably believing something and her being satisfied of it on a balance of probabilities. But the more important point for present purposes is this: even if there is a difference, the decision as to the person’s involvement in terrorism under Clause 16(1) as it stands, subject only to the limited scrutiny of judicial review, is one solely for the Secretary of State and not for the courts. Like the independent reviewer, David Anderson, I believe that the decision should be for the courts, especially—I emphasise “especially”—in those cases where the Secretary of State is to deploy that most disruptive of measures, now to be made available to her, internal involuntary relocation—“internal exile” as it has been called. Indeed, that was the term used at Second Reading by the right reverend Prelate the Bishop of Durham.
Make no mistake, these orders—because we used to have them in control order cases—are deeply resented, not least, of course, by the persons’ families, who can be very severely and very harshly affected. They contribute worryingly to what some civil liberty and minority groups call the “folklore of injustice”. At Second Reading , the noble Baroness, Lady Kennedy of The Shaws, called it the “folklore of oppression”. It was, said David Anderson, perhaps unsurprisingly, only “with a heavy heart” that he came to the recommendation that this measure should be reintroduced as now is provided for by Clause 12 of this Bill.
My amendment is tailored simply to apply to those TPIM orders that require relocation. It provides that in these particularly troubling cases it will be for the court to reach the final, substantive decision, on the balance of probabilities, as to whether the person being internally exiled is, or has been, involved in terrorism-related activity.
I should make it plain that there is nothing particularly novel or radical about this proposal. The Prevention of Terrorism Act 2005 introduced control orders in place of the original discredited Belmarsh regime of the internment of foreign suspects without charge and without trial on an indefinite basis. The 2005 Act, by Section 4(7)(a), provided in terms that the court could confirm a derogating control order only if,
“it is satisfied, on the balance of probabilities, that the controlled person is an individual who is or has been involved in terrorism-related activity”.
That is precisely the position which, I suggest, should be achieved here.
As Mr Anderson pointed out at paragraph 6.16 of his 2014 report, the Government had already accepted in relation to the earlier proposed ETPIMs legislation—the enhanced TPIMs scheme, which in the event never came into being—that at the High Court review of such enhanced orders the Home Secretary should be required to prove the suspect’s involvement in terrorism on the balance of probabilities—again, just as I suggest should be the position here.
The Joint Committee on Human Rights, at paragraph 4.14 of its report on the Bill just this month, welcomed the introduction of the balance of probabilities test, but added that,
“in order for this change to make a real practical difference, we recommend that the TPIM Act be amended to require the court also to consider whether the balance of probabilities standard was satisfied, in place of the current, lighter-touch judicial review standard. Such an amendment would give effect to the unimplemented part of the Independent Reviewer’s recommendation”.
Mr Anderson himself, at paragraph 6.17 of his 2014 report, having doubted whether his proposed change—from the Secretary of State reasonably believing the suspect’s involvement in terrorism to the court being satisfied of this on the balance of probabilities—would have made a difference in any of the earlier TPIM cases, importantly added:
“It would however help reinforce the legitimacy of TPIMs, by enabling the Government to say (as it cannot at present) that a TPIM notice may only be upheld if it is proved to the satisfaction of the High Court that the subject has been involved in terrorism”.
My proposed amendment, as I have explained, is in fact rather more limited than Mr Anderson’s recommendation. Rather than applying to all TPIM orders in future, it would apply only when internal relocation is one of the measures ordered. There is of course no such phrase as “internal relocation” or “involuntary relocation” in the Bill—it is not used in Clause 12 or indeed in paragraph 1 of Schedule 1 to the 2011 Act, which Clause 12 amends. Therefore my amendment, I hope accurately, has had to spell out the particular circumstances which constitute the internal relocation and where it would apply.
I hope that the House will support this amendment and indeed that the Minister may himself come to see its merits. It would, I suggest, send out an important message that we in this House recognise the very real problems that result from internal relocation orders and are concerned to balance the need for them, as best we may, by strengthening the safeguards against their inappropriate use. The court should be given this additional responsibility in its oversight role. The independent reviewer’s recommendation ought not lightly to be rejected. The fact is that I have yet to hear or read of any cogent, coherent basis for rejecting it. I beg to move.
My Lords, I have spoken about internal exile, as I choose to call it, on a number of occasions in this House. I am persuaded by the independent reviewer that, because of the threat faced by this country at this time, there may be the rare occasion when one would want to disrupt the connections and associations in a particular place of someone subject to a TPIM order. It should be used on the rarest of occasions, and the standards that the courts should look to in making the decision should be high.
I support what the noble and learned Lord, Lord Brown, has said. We should see this idea as a huge departure from what we would consider normal. For people to be taken away from their families and the place that they know and sent to live somewhere else in the country is a very hard thing. We have to recognise that sometimes it will disrupt good associations as well as negative ones, so that they are no longer with their mother or father, or with some of the people who are voices of sanity as distinct from siren voices. It surely makes sense to say that this is such an exceptional step that there should be this additional safeguard, which has been proposed by one of our most senior retired judges.
My Lords, the noble and learned Lord, Lord Brown, has moved his amendment with his customary cogency and clarity, and I agree with him and with the remarks that have just been made by the noble Baroness, Lady Kennedy. Over the years I have had the opportunity to visit people who were subject to relocation orders under the control orders regime. I have seen that, in some cases, the relocation was accepted with good grace; in other cases, however, particularly those where children were involved, it caused great disturbance and much resentment. I have also taken the trouble to read all the judgments in the relocation cases that went before the courts under the control orders regime. My instinct is the same as that of the judges who heard those cases. If you read the judgments, although the judges were not required to do so, I think in every single case—from memory at least—they applied the standard that is set out in this amendment for completeness and in order to make it clear that they approved of the relocation in the circumstances of the case.
I agree with the comments that have been made, that we should be extremely reluctant to order people to relocate, because of the disturbance that it causes to their family and because they are very dislocated as a consequence of that relocation. As a general proposition, all restrictive measures under counterterrorism legislation should be exercised only when there is a clear necessity to do so, and the balance of probabilities is a good test. With those comments in mind, I hope that the Minister will at least accept the principles behind the noble and learned Lord’s amendment, whether it be probing or otherwise—it is the principle that counts.
My Lords, I would like to strongly support the amendment by the noble and learned Lord, Lord Brown. These measures are things that you only do in very, very special circumstances and under very controlled conditions, but the removal of them from the old control orders regime—we realise now—was a mistake and an error. I absolutely think that we have to put these measures in place to ensure that people are protected in these circumstances.
My Lords, I wish to add just a small point in support of what my noble and learned friend Lord Brown of Eaton-under-Heywood has said, and that is to stress the word “legitimacy” which he used in the course of his address. It is crucial that this particular system should not be open to challenges in the court to any extent; one must try to the maximum to minimise the risk of challenges. This is a very difficult area, as shown by these cases to which the noble Lord, Lord Carlile, just referred. It is the interaction between Article 3 of the Convention on Human Rights, which deals with detention, and Article 8, which deals with respect for the family life of everyone. Where you get these human rights in play, it opens up the possibility of arguments being raised by way of challenge to orders of this kind.
The strength of the amendment which is being suggested is that it cuts back the open door—if I might put it this way—to challenges, and limits them in the most sensitive of all areas, which is the kind of relocation to which the noble and learned Lord has drawn attention. It is right that this is not a probing amendment. It is actually a very important point to try to secure these TPIMs in a way that makes them robust enough to stand up against possible challenges which, if the amendment was not made, would be very likely to come.
My Lords, my support for the noble and learned Lord’s amendment is for real, to use his own term. I was reading a little—obviously I do not have the experience of other noble Lords, including my noble friend—about control orders at the time they were to be abolished and TPIMs introduced. One could not help but feel quite disturbed by some of the experiences undergone and the impact, as has been said, not only on the individuals subject to the orders but on members of their families so, as I say, I support this amendment.
I have just one question for the noble and learned Lord. It is about whether it is necessary—he must consider it is because he has included them—to have the words about the individual having “no connection”. As I read it, but I might have missed something, the amendment to Schedule 1 to the 2011 Act takes out the references to having a connection with a locality because the 200-mile limit is being introduced. If that is so, and we are losing references to there being a connection in the Schedule, is that reference necessary in the amendment?
My Lords, I think noble Lords on all sides of the Committee have acknowledged that, because of the situation in which we presently find ourselves, powers of this sort are regrettably necessary. However, as noble Lords have said, their legitimacy is critical, and the rigour with which conditions are examined before they are imposed and the nature of that imposition itself are of the utmost importance. For all those reasons, I support the noble and learned Lord’s amendment.
My Lords, I apologise that I was not here at the beginning of the noble and learned Lord’s remarks. I support the amendment and the remarks made by my noble friend Lady Kennedy of The Shaws. I have a question for the Minister. Members of the Joint Committee on Human Rights, of which I am one, with heavy heart agreed that we had to agree with the independent reviewer, but we said:
“We look to the Government to be proactive in bringing forward ideas about how to mitigate the alienation and resentment likely to be caused in some minority communities”,
by relocation. I would be very grateful if the Minister could give the Committee some idea of what ideas might be brought forward by the Government.
My Lords, it is always with some trepidation that I rise to speak in a debate where I am the only non-lawyer to contribute, so I was particularly grateful to hear my noble friend speak, so I am not the only non-lawyer contributing to this debate. All noble Lords have made the point that relocation with a TPIM should be an exceptional provision. That has been the case. We were very disappointed when the Government removed the relocation part of TPIMs and the old control orders. Nobody likes the idea. As the independent reviewer said, this is something that has to be done in the interests of public safety. My understanding is that they are used only rarely. If my information is correct, currently only one person is subject to a TPIM provision.
Not being a lawyer, I have a couple of questions for the noble and learned Lord, Lord Brown. I think one of the reasons why the Government have made changes here is because they consider that substituting,
“is satisfied, on the balance of probabilities”,
for “reasonably believes” is a higher legal test. The noble and learned Lord, Lord Brown, said that is not the case. I am not a lawyer, so I leave it lawyers to have that debate, but it would be helpful to have some clarity about whether that is in law a higher legal test than “reasonably believes”. The noble Lord, Lord Carlile, said that in effect this is already happening and is how the courts see their role at present. If that is the case, it would be helpful to have some facts on that.
My other point was alluded to by the noble Baroness, Lady Hamwee. It is about individuals subject to the relocation part of a TPIM having no connection. My understanding is that part of the reason would, in some circumstances, be that the person would have no connection with the area they were going to to ensure that they were not associating with people they had engaged with in the past who had led them into terrorism-related activities or potential terrorism-related activities. That is not an easy thing for anybody, and nobody welcomes somebody being moved to an area where they have no connection, but if we were to rule that out in all circumstances, that might be quite difficult. I would be interested to know a bit more about this. I think there is widespread support for a very high test that should be used only in exceptional circumstances, but I am interested in the Minister’s comment and welcome further clarification from the noble and learned Lord, Lord Brown.
My Lords, I am grateful to noble Lords for having spoken in this debate. I say that I am grateful as a general courtesy. It has not been an easy debate to speak to, and I ponder whether my response will be sufficient to ease noble Lords’ and the noble and learned Lord’s concerns. I shall just raise some points with the noble and learned Lord on his amendment, but I give advance notice that this is one issue on which we need to reflect more.
I am particularly cognisant of the support that the amendment has received from my noble friend Lord Carlile, as a former Independent Reviewer of Terrorism Legislation, as well as from my noble friend Lord Macdonald, who reviewed the legislation in 2011. He looked at its adequacy, which led in a way to the introduction of the more focused TPIM. Then, of course, there is the noble and learned Lord, Lord Hope. So there has been a range of voices. I shall put some points and answer some questions and then take it from there.
I am grateful to the noble and learned Lord for raising this matter; he has tremendous expertise in this area. Replacing the previous text at the point in the Bill does not amend the standard of evidence that the Home Secretary must apply when considering whether the person is or has been involved in terrorism. I underscore the point that all noble Lords have made—the noble Baronesses, Lady Smith and Lady Kennedy, made it—that this is a regrettable necessity. The amendment would therefore have the effect of requiring, for TPIMs that include relocation, the court and the Home Secretary to make independent judgments on whether the person is or has been involved in terrorism, but on different bases. It is therefore highly likely to lead to some confusion. It also removes the enhanced safeguard of raising the standard to that of the “balance of probabilities” for TPIMs which do not include relocation.
The Government recognise that the enhancements to the TPIM Act in the Counter-Terrorism and Security Bill were not part of the package of measures agreed by Parliament in 2011. It is therefore right that we consider whether the current legal threshold of reasonable belief continues to be the appropriate test for the imposition of a TPIM. We have concluded that the threshold should be increased for all TPIM notices to recognise the stringent preventive measures that may be imposed. Given her remit in relation to a range of aspects of terrorism, the Home Secretary remains best placed to make the decision to impose a TPIM notice to protect the public from terrorism. It is therefore right and proper that it should continue to be for the Home Secretary to decide whether a TPIM notice should be imposed, as it has been since 2011 and as it was under the previous system of control orders established in 2005.
I well remember the noble and learned Lord’s speech at Second Reading. He apologised, but I think that we were all immensely helped when he talked about his experience of how control orders were often struck down by the courts when they were actually brought forward. The TPIMs were therefore an attempt to limit the incidents in which they could be introduced on that basis, by introducing time limits and raising the threshold test, as well as allowing them to have access under supervision to the internet and telephony.
The court will continue to be required to review the Home Secretary’s decision as to whether the conditions for imposition of a TPIM are met—and the court must now, as part of its review, satisfy itself that the Home Secretary could make that decision at the higher legal threshold. This comes to the point raised by the noble Baroness, Lady Smith, who asked whether it is a higher legal test to have a “balance of probabilities”.
Although I tread deferentially in the company of distinguished lawyers, certainly my understanding is that you have reasonable suspicion, then reasonable belief and then, above that, a higher threshold of the balance of probabilities, which is where we are heading now. The courts will continue to apply an intense level of scrutiny to the decision-making process on the issue.
I am grateful to the Minister for that considered response. I am perhaps even more grateful to all those who spoke in support of this amendment. I say to the noble Baroness, Lady Hamwee, that I will, of course, look afresh at the correct matching of my wording with that of the amended paragraph 1 of Schedule 1 to the 2011 Act when we come back to that.
The noble Baroness, Lady Smith of Basildon, asked whether there is a higher test involved in balance of probabilities than that in reasonable belief. This runs parallel to a point made by the Minister just now. When we come back to that, I would be very grateful if the Minister could give us an illustration of where, on the facts, you could reach a different conclusion on reasonable belief from that on the balance of probabilities. I maintain that there is no distinction.
However, that is, frankly, almost an irrelevance. Regarding my amendment, I do not in the least mind—I am completely agnostic on this—whether one leaves in Clause 16(1) as it stands and adds the wording suggested in my amendment after it, or, as the amendment proposes, leaves out the subsection and inserts my wording in its place. I do not mind whether the Secretary of State makes a decision—as initially she is bound to do—by way of reasonable belief or as a conclusion on the balance of probabilities. What matters is that the decision of hers should then be subject to review or appeal by the court, not on the basis of judicial review but on the different basis of her having to establish to the satisfaction of the court, on the balance of probabilities, that the person concerned has been engaged in terrorism-related activity. That is a real difference, and I will say, with the greatest respect to the Minister, that if he looks back at Mr Anderson’s 2013 and 2014 reports on TPIMs he will see that that was the position that was going to be arrived at regarding enhanced TPIMs; it was going to be for the court—whatever the Minister decided—then to reach its own conclusion on the balance of probabilities.
The noble Lord, Lord Carlile, who brings huge expertise, having been a distinguished independent reviewer, suggested that actually there is not all that much distinction between the judicial review standard that a court is presently required to adopt and an appeal by which the court would have to be persuaded on this issue and reach its own decision. The court does its best by way of judicial review and, in an area as sensitive and relevant to human rights as this, the court will of course go out of its way to adopt as intrusive a standard of judicial review as it feels it can. However, it simply cannot—it would be disobeying the statute if it tried to—substitute its own decision for that of the Secretary of State.
I hope that that meets most of the points that were raised. Of course I am prepared—and am grateful for the offer—to talk to the Minister. We have only a week between now and Report on this part of the Bill. Of course I am not going to press the amendment today, but it may well become necessary to do so a week today, unless the Minister sees the light—if I may put it that way—and is prepared to shift the Government’s position. In the mean time, I beg leave to withdraw the amendment.
My Lords, the amendment stands in my name and those of my noble friends Lady Hamwee and Lord Paddick. I shall speak also to Amendment 77. In this grouping, there is also Amendment 78 of the noble Baroness, Lady Smith of Basildon.
The Explanatory Notes refer to data that are “necessary” to attribute internet protocol addresses to a person or device. However, that word does not appear in the Bill; I believe that something similar happened in the draft Communications Data Bill in 2012, which was picked up by the committee on the draft Bill. There is a tendency to put “necessary” in Explanatory Notes but not to transfer that to the Bill. Amendment 76, therefore, at least seeks to apply the test of “necessary” to communications data that could,
“assist in identifying, which internet protocol address … belongs to the sender or recipient of a communication (whether or not a person)”.
At least it tightens up, somewhat, the scope of communications data—relevant internet data—required.
I have seen an itemisation of possible data—I confess that I do not know what the origin was, but it refers to possible data which would be required to be retained. I state just for interest that it includes,
“account-to-IP address mappings for broadband … source IP address and port for NAT on mobile and cloud networks … MAC addresses on cloud WiFi networks … source port information in server logs”,
and:
“MAC addresses from end-user equipment”.
This is above my technical pay grade and I think we need some clarity about what sort of information is being required. Therefore, in Amendment 77 we are requesting that when the term “other identifier” is used, meaning an identifier used to facilitate the transmission of a communication, what qualifies as “other identifier” should be specified in regulations made by the Secretary of State.
I have seen it cited that there has been consultation with industry on these matters. Certainly, the Internet Services Providers’ Association has complained that it was not consulted on this section on the collection of IP addresses. It posted something on its website on 24 November, so something may have happened in the intervening two months, but it certainly felt at that time that it had not been consulted. Of course the association would be qualified, as the experts, which I am not, to know what is being talked about here and what is, indeed, necessary and essential to identify an IP address.
I mentioned at Second Reading that the Bill refers to,
“the sender or recipient of a communication (whether or not a person)”.
I still believe that it is somewhat misleading to suggest that a person can be identified from an IP address. Even with a static IP address allocated to a particular device or subscriber, you would at best know who the subscriber was, but you would not necessarily know who was using the device at a particular time. It may not have been the subscriber; it may have been a friend, a relative or a business associate. If it is a dynamic IP address I understand that there can be tens of thousands of people who could have used it. Even with this other information, even if you can identify the device that was using it at 4.12 pm on a Tuesday afternoon, it is still not clear that you can, of itself, then identify the person using it. You would need other investigations—police investigations—to ascertain who precisely was using the device.
I hope that I have conveyed the meaning of Amendments 76 and 77, which seek to put greater precision into the Bill as to what further communications data are being required to be kept.
My Lords, our Amendment 78 in this group seeks to make it explicit that the extra data retention provided for in Clause 17 does not extend beyond that which is necessary for the purpose of identifying a user from the internet protocol address. The amendment is not meant to impact on the rest of the Data Retention and Investigatory Powers Act.
Clause 17 amends the definition of “relevant communications data” in the Data Retention and Investigatory Powers Act 2014. The clause expands the definition of “relevant communications data” to include an extra category of data—described as “relevant internet data”—in Section 2 of the DRIP Act, to allow the Secretary of State to use powers under Section 1 of that Act to bring in regulations to ensure that this “relevant internet data” is retained by communications service providers. Essentially, the Government are using this fast-track primary legislation to amend emergency primary legislation from last July to enable the Secretary of State to bring in secondary legislation relating to a clause in this Bill, which extends the current provision on data retention.
My Lords, I am grateful to my noble friend for introducing this amendment. I will try to address the key points and then come back to the questions that she and the noble Lord have raised.
To be clear, communications data are the who, where, when and how of a communication, but not its content. They are a vital tool in the investigation of serious crime, including terrorism, and in safeguarding the public. Gaps in communications data capability are having a serious impact on the ability of law enforcement and the intelligence agencies to carry out their functions. We shall talk about these wider issues in the next group of amendments, but it is significant that communications data have played a very important role in every security service counterterrorism operation over the last decade. The data are used in 95% of serious and organised crime investigations handled by the Crown Prosecution Service. That is what we are talking about at present.
On the point raised by the noble Lord, Lord Rosser, Clause 17(3)(c) contains a statement about what is not data for the purposes of the Bill. I think that that is a legal definition of a web log; so there is specific mention in the Bill of what cannot be accessed under this provision.
However, the provision in the Bill is on the issue of IP addresses. Every internet user is assigned an IP address to ensure that communication service providers know which data should go to which customer and route that accordingly. Addresses are sometimes assigned to a specific device, such as a broadband router located in a home or company. However, as my noble friend Lady Ludford referred to, they are usually shared between multiple users—hundreds or even thousands—and allocated automatically by the provider’s systems. The amendments seek to ensure that the scope of this provision is limited to the retention of data that are required to allow the identification of a user from a public internet protocol address, and I am very pleased that on that principal issue there is not a great deal of difference between us. It is important that this provision goes no further than is absolutely necessary to ensure that communications service providers can be required to retain the data necessary to link the unique attributes of an internet connection to the person or device using that data at any given time.
At this point, I should say to my noble friend Lady Ludford that in essence we are talking here about adding another essential piece of the communications jigsaw. We are not actually saying—and I do not think that anyone is making this claim—that somehow an IP address on its own will be sufficient to identify what has happened. However, alongside other communications data—for instance, other CCTV footage or other surveillance evidence that may be there—this could be helpful in identifying who was where on a particular device and communicated with whom at a particular time.
The noble Lord, Lord Rosser, asked for examples of access data that may be required. An example is port numbers, which are akin to a house number, where an IP address is akin to a postcode. I know that the noble Baroness, Lady Lane-Fox, could probably give us a tutorial on the technical points; I could probably do with one at some point. Other types of data include the MAC address—the identifier of a particular computer—the time, the location and so on. Those are the types of data covered by “or other identifier”, and that is set out in the Explanatory Notes which accompany the legislation and in the addendum to the draft data retention code of practice, on which the Government have recently consulted. The code of practice sets out very detailed safeguards concerning how data can be collected. The consultation began on 7 December and concluded last week, and we look forward to informing the House of the findings very shortly.
The way in which an internet service provider identifies its individual customers varies from company to company depending on how their systems work. It is therefore important that the legislation is drafted in such a way as to enable us to work with individual communications service providers so that they retain only the data that they need to resolve an IP address. Our ability to do so would be limited by the amendment, which specifies the items of data to be retained in secondary legislation. For that reason, we cannot agree to the amendment.
The amendments seek to ensure that the provision goes no further than IP resolution, and I am able to confirm that the provision is already limited in this way. Clause 17(3), to which I have already referred, defines the data to be retained as data which,
“may be used to identify, or assist in identifying, which internet protocol address, or other identifier, belongs to the sender or recipient of a communication”.
At this point I should say that, although we are talking about the Counter-Terrorism and Security Bill, this provision will be of significant assistance to those who are seeking to tackle, for example, the worrying growth in accessing child sexual exploitation online. That is an important element here.
The noble Lord, Lord Rosser, asked whether the Minister for Security, my honourable friend James Brokenshire, will be writing. The Minister in the Commons dealt with all the salient issues. We of course reflected on the points raised in the debate, but there is nothing that we see as requiring further clarification at this stage.
The noble Lord also asked whether the combination of primary and secondary legislation is confusing. This legislation is accompanied by a retention of communications data revised code of practice for those implementing the legislation. The Government also work closely with communications service providers. This will ensure that there can be no confusion about how the legislation can be applied.
My noble friend Lady Ludford asked whether any consultations with communications service providers have taken place. The answer is yes—probably not at the time that she was talking about, when the Bill was going through the other place, but certainly since then. We regard communications service providers as an integral part of this whole process and we want to work very closely with them.
The noble Lord, Lord Rosser, asked how we define a communication and whether it includes messages sent by social media. Any messages sent over the internet, including via social media platforms, will have associated communications data. That has always been the case under existing legislation. Where those data are generated or processed in the UK by a company subject to the data retention notice, they can be used to resolve an IP address—that is, they can be retained under this Bill. Those data could then be accessed only where it was necessary and proportionate to do so for a specific investigation. However, that is quite separate from the content of a communication. What was said or written in, for instance, a Facebook message or a FaceTime call could not be retained under the Bill.
Similarly, the Bill ensures that we cannot ask internet access companies to keep a record of internet services that a given user account may have accessed, known as web logs, even where the data could be used to help resolve IP addresses. Any data which cannot be used to identify or assist in identifying the user of an IP address are already outside the scope of this provision. A requirement to retain data may be imposed only where it is necessary and proportionate to do so.
Accordingly, while I agree with the sentiment behind these amendments, I do not agree that they would add to the tightly drafted provisions that we already have. With the explanation that I have given and with my responses to the questions, I hope that I have offered sufficient assurances to noble Lords and that my noble friend will feel able to withdraw the amendment.
My Lords, I appreciate my noble friend’s extensive reply and explanation. I am still somewhat uneasy that the terms of the Bill are permissive in that the data may need to be retained if it may “assist in identifying”, which is quite loose language. Will my noble friend explore whether there is any way of getting further precision? Presumably the limit of the extent of the kind of data we might be talking about is known, and I feel that what the data are should be spelt out somewhere, even if it is a broad list, so that everybody can understand this matter—I shall join him in the tutorial that he has invited the noble Baroness, Lady Lane-Fox, to carry out, as I have already frankly admitted my own ignorance. It is not helpful to have potential legislation when people do not know what data on them will be retained. It seems reasonable to ask my noble friend to reflect further on the idea of importing the words “necessary and proportionate”, which I think he used, into the Bill and/or to consider further whether it is possible to spell it out in regulations. In awaiting, I hope, that further reflection, I beg leave to withdraw the amendment.
My Lords, in moving Amendment 79 standing in my name and that of the noble Lords, Lord Blair, Lord West, and Lord Carlile, I shall speak to all the amendments in the group through to Amendment 99.
This is an exceptional series of amendments that has been tabled in your Lordships’ House today, and I recognise that for some it seems an unacceptable use of parliamentary time. I make no apologies at all for doing this, as we face a very serious situation indeed in our country at present. Our legislation is not up to date to meet it, and it is the duty of Parliament to ensure that it is at this critical time. It is common ground across the House that the threat is now very significant. We are in the front line and we need to address that.
I start with a bit of history. Noble Lords who have taken an interest in this subject will be familiar with my amendments because they have been lying around for the past two and a half years. They are part of the Communications Data Bill that the Government published in draft two and a half years ago. In keeping with best parliamentary procedure, they invited the Joint Committee of both Houses to examine and report on the Bill, under the distinguished leadership of my noble friend Lord Blencathra, who I am delighted to see in his place today. If I say that that Joint Committee reported two years ago, and in terms of dealings in Parliament, nothing has happened since, it might be thought that the problem has gone away but, of course, the opposite is the case.
I am delighted that the noble Lord, Lord Evans of Weardale, is in his place. In his maiden speech, the noble Lord, a distinguished former director-general of MI5, said that after an extremely difficult period, by 2013 he thought the worst was over. He now admits that he was wrong. The threat in many ways is obvious. Before Paris and Belgium, the Government raised the threat level to severe. Intelligence showed what might be coming. We could easily have been Paris or Belgium. Thankfully, so far we have not been exposed in the same way, except for the tragedy of Fusilier Rigby, but it is a very brave man indeed who says that at the present time we would not be.
I believe that it was Andrew Parker, current director-general of MI5, who said that there are probably about 2,000 people in this country who are either supportive of or actively involved in promoting terrorist activities. I have lived a little bit of my life in the field where terrorism was a major challenge to this country but I never had to deal with suicide bombers. Some of the developments that now exist are of a scale and a difficulty—and a fanaticism, in the jihadist threat—that is of a different dimension to that which we previously faced.
It is easy to think that perhaps we are going through a rather bad phase, but I do not think anybody would seriously believe that about the current problems, particularly in the Middle East. The events just this last weekend in Yemen show yet another country that seems to be in chaos and confusion. I saw with interest—I had forgotten—that we are now in our fifth year with Syria in a state of chaos. If anybody in your Lordships’ House is brave enough to say when any of those countries presently in chaos will return to some measure of normality and peace and calm, I simply do not believe them. The evidence is that, with all the current distress and difficulties, it is going to get worse.
How do we face this challenge? How do we face the explosion of new technology that means we are up against terrorists who are extremely adept at using any new means of communication that is, perhaps, beyond our reach or, certainly at the present time, beyond our legislation? It is interesting that, at the moment, we are facing this challenge on the basis of legislation that is 15 years old. It is worth remembering that this is the 25th anniversary of the internet. We have to take on board the explosion in new developments since then and the possibilities for communication under new technologies.
I want to deal with one point straightaway. As soon as we start talking about access to communications data, people think—I am certain some very distinguished noble Lords think—somebody is going to listen to telephone calls. However, it is nothing to do with the content. It is to do with who, where and when certain contacts and certain patterns of contact are established. It is on that basis that the intelligence plays such a vital role. It includes the use of things that not all your Lordships—that certainly includes me—are masters of. I am not a tweeter. We have Facebook and Twitter. Somebody tried to explain WhatsApp to me; somebody else tried to explain Snapchat. I do not know about them, but it is absolutely clear that the terrorists and jihadists do. The understanding is that part of the reason for ISIL’s amazing advance across Syria and into Iraq was that their communications were so good and the way they kept together was entirely due to one or other of the last two systems that I mentioned, which they handled with great intelligence.
The problem that we now face is not boots on the ground. That never was the answer to this sort of situation. It is the problem of getting good intelligence. I have tabled what was available to me and my noble friends who have joined me in this enterprise. It is the original draft Bill that was carefully examined by my noble friend Lord Blencathra, and the noble Lord, Lord Armstrong, who I am delighted to see in his place. He was another distinguished member of the Joint Committee that examined that Bill, as was the noble Lord, Lord Jones. They proposed a number of important amendments. The Joint Committee submitted its report to Parliament two years ago. I understand that those criticisms were then considered carefully by the Home Office and were largely, if not totally, accepted. I also understand that amendments have now been suggested that go a very long way to meeting the important observations of that Select Committee. But they have not been available.
We face a crisis in security. There is a major threat and at the same time we have antiquated legislation that badly needs updating. We have done our best by drawing the attention of the House to this issue and by tabling amendments to include complete clauses of the previous Bill that were available to us. I hope that before Report the Government will either table amendments themselves or otherwise make the revised Bill available to Back-Benchers in this House to examine. Amendments could then be tabled so that this House has the opportunity to debate the matter. It will be the only opportunity that we will have in this Parliament and for this year, while the nation is at risk and the threat to our citizens is real. This is the only time in which we can tackle that.
I have carefully read the excellent report of my noble friend Lord Blencathra. It carries a number of criticisms which are covered in our amendments, some of which are quite significant. The most significant is what was called the snoopers’ charter. It covered far too wide a range of purposes. It not only covered national security and crime but made data available to local authorities to pursue things such as abuse of fly tipping, housing benefit and a whole range of other matters. It was also made available to the Inland Revenue to pursue tax offenders of one sort or another. Against this crisis and because of the quite exceptional nature of what we are proposing, my colleagues and I who tabled these amendments propose deleting all of those additional purposes in the Bill. We have included only national security and serious crime. I hope that everyone in your Lordships' House will agree that those are the critically important issues. Let us remember that what we are doing is not completely new and unprecedented. The principle has been established of data collection. We are bringing it up to date with the new challenges that the new technologies have brought.
I am not alone in having serious concerns. In another place, when the Home Secretary made her Statement two weeks ago following the events in Paris, Sir Malcolm Rifkind, former Foreign Secretary and current chair of the Intelligence and Security Committee said that new technologies were preventing the agencies from exercising the capability they used to have. Jack Straw, who was, unusually, responsible in his time for all the agencies because he was both Home Secretary and then Foreign Secretary said that it was,
“beyond argument that the legislation … has to be revised … so that we can resolve this issue as soon as possible”.
In his further remarks he asked for close co-operation to resolve this communications data issue,
“as soon as possible, and ensure that the intelligence and security agencies and the police have the capabilities today and tomorrow that they had in the past under legislation freely agreed by this House?”.—[Official Report, Commons, 14/1/15; col. 875.]
I say “Hear, hear” to that.
I quote—also from this report—a very good response by the shadow Home Secretary, Yvette Cooper, to the statement made by the Home Secretary two weeks ago. She said:
“Governments need to keep our people safe so that we can enjoy the very freedoms that our democracy depends on”.—[Official Report, Commons, 14/1/15; col. 871.]
She went on to say:
“We agree that the police and the agencies need to get the intelligence to keep us safe and that they need updated legislation”.—[Official Report, Commons, 14/1/15; col. 873.]
My Lords, I placed my name in support of Amendment 79 with those of the noble Lords, Lord King of Bridgwater, Lord Carlile of Berriew, and Lord West of Spithead. I echo what the noble Lord, Lord King, has said. I am not a party politician but this issue is far beyond politics. I put my name down in order to place in the records of the House the significance of communications data to the police and security services, which are now specifically mentioned in subsection (6) of the new clause proposed in Amendment 87. Those three agencies and the police are the agencies—the only ones—to which this communications data section will now apply.
Those agencies’ needs must be understood. They have been subject to a great deal of obfuscation, both witting and unwitting. The police and the security services are not asking for new powers. Rather, they are asking for the retention of what they already have but are now losing. They need the ability to determine, in specified circumstances, which telephone or other device has been used where, when, and to communicate with whom. This is an investigative tool of equal significance to DNA and fingerprinting, but changing technology is eroding that ability.
This is not the first time we have faced such a threat. I first met the noble Baroness, Lady Manningham-Buller, in the early 1990s, and we were then discussing the fact that mobile telephones were appearing and were destroying the ability of the police and the security services to carry out lawful interception. Fortunately, that technology was overcome and new measures were brought in—and that is what people in these services are asking for now. The situation is that mobile telephones and the internet are merging. All the different apps for phones mentioned by the noble Lord, Lord King, along with all the other services, are increasingly being used across the internet via something I now know more about than I ever wanted to—a system known as VoIP, the Voice over Internet Protocol. This makes all those transmissions untraceable. I will not specify them, but they are being used in methodologies that Members of this House will be using most days. They are already changing things and we are losing our technological edge on terrorists and criminals.
We are not asking, as I heard a senior politician say on the radio recently, to listen to or to read every message, phone call and visit to an internet site by every person in Britain. A moment’s thought would show that that is completely and utterly impossible. We want to retain for one year data about where and when a particular device has been used, and to communicate with what. If suspicion emerges about a device or its user, that data can be interrogated.
I want to point out the reason for our insertion of the words “serious crime”, because this is not just a terrorist matter. Let me give two examples of capabilities that are now disappearing. A teenager goes missing in Sussex. She has had episodes of self-harm and she was last seen heading towards Beachy Head. All teenagers, whether or not they are capable of self-harm, are likely to have their phone with them. That phone will locate the child—but in a few years’ time, it will not. I cite the example of a dead body found in a field with signs of violence. One of the first things that the senior investigating officer will say is, “Get me the phone data”. What he or she wants to know is which phone has been carried across that field in the past few days. Which phone has been within a few hundred yards of the site of where the body was found? That information is what the police need in order to be able to identify the murderers by the technology that betrays them. At the moment, we can do it in most cases, but we are gradually losing that capability.
I turn to an actual case. Noble Lords will remember the terrorist attack on Glasgow airport. It had been preceded two days before by an attempted atrocity in central London, at the Tiger Tiger nightclub. The Metropolitan Police were 20 minutes behind the bomber when he reached Glasgow airport—and the way they did that was through tracing the phones.
The noble Lord, Lord West, recently mentioned the phrase “snoopers’ charter”, and referred to it as sanctimonious claptrap; I agree with him. In this amendment we have limited those who could exercise this kind of power to the security services and the police when investigating or preventing serious crime. They are not snoopers but lifesavers. Perhaps I may add to what the noble Lord, Lord King, said. I could usefully put before noble Lords how the Home Secretary finished her Statement to the House of Commons:
“It is too soon to say for certain, but it is highly probable that communications data were used in the Paris attacks to locate the suspects and establish the links between the two attacks”.
Given my professional background, I, along with my colleague and noble friend Lord Condon, can say, “Almost certainly”. The Home Secretary went on to say:
“Quite simply, if we want the police and the security services to protect the public and save lives, they need this capability”—[Official Report, Commons, 14/1/15; col. 871.]
I agree.
My Lords, my name is also on this amendment in support of the noble Lord, Lord King, along with those of the noble Lords, Lord Carlile and Lord Blair. I will mention some history as well, which is important because of the time lags and time. In 2009, when I was Minister for Security and Counter-Terrorism, I was made aware that changes to communications technology meant that a record of communications information would no longer be held by the communications service providers and that technology was changing the type of data that were available. This information was held purely as it was needed for the companies’ billing procedures—that is why they kept it—and, as such, was available for use by properly authorised state officials, in particular for prosecution of serious crimes and in terrorism cases. New technologies and methods of communication meant that firms were beginning to, and going to, charge differently.
Over time, communications material, which, as has already been said, was used to help to gain convictions in over 95% of serious criminal cases, was going to be lost—a very serious and irrevocable loss that would impact on the security and safety of our nation and our people. To try to ensure such information would be kept, and to access these new technologies, we started to draft a new communications data Bill. There was then an election, the coalition came into power, and the coalition drafted a new Communications Data Bill which was passed to Parliament for pre-scrutiny, as has been mentioned by the noble Lord, Lord King. It had many flaws and underwent considerable redrafting —the noble Lord, Lord Blencathra, will, I am sure, talk about this later—to ensure that there were sufficient safeguards and so on. Indeed, the Home Office, as the noble Lord, Lord King, has mentioned, did a considerable amount of work to rectify all the faults with that Bill. Subsequently, for political reasons, it was kicked into touch. We find ourselves today, some six years—not two and a half years—after we started to try to draft legislation that would ensure no loss of what we already had, having done nothing but expend a great deal of hot air. Week by week we are losing the ability we once had; for example, to place a criminal close to the scene of a crime on a certain day, as has just been mentioned by the noble Lord, Lord Blair.
The Prime Minister and the Home Secretary have both said in the past few weeks that this legislation is needed urgently—and they are right. So why is nothing happening? Well, yes, there are reviews going on, not least by the Government’s Independent Reviewer of Terrorism Legislation, Mr Anderson, and that is very sensible. But perhaps as a nation we should move more expeditiously on such a crucial matter.
One of the great strengths of this House is that it contains globally admired experts on almost every issue under the sun, and it can also act as a conscience for the elected Chamber in the other place. The noble Lords, Lord King, Lord Carlile and Lord Blair, are acknowledged experts in this field and clearly their advice has to be taken very seriously. They have identified this window of opportunity to rectify the growing shortfall in our ability to prosecute crime, whether criminal or terrorist. Do we really want murderers, people traffickers, serious organised crime and terrorists to be able to communicate and plot out of the reach of our law enforcement agencies? Do we want them to be able to avoid detection and prosecution in a way that they have not been able to in the past? The answer, surely, has to be no.
That does not mean that there do not have to be sufficient safeguards; for example, to ensure data that are properly looked after, as the communications providers have indeed always had to do, and to decide how long such data need to be held for. In addition, we need to investigate the costs because companies will be keeping data they no longer require for themselves so will want to charge us—they will probably want to overcharge us—for the privilege. The Government should be very hard-nosed on this point.
Much has been, and will be, said about individual privacy but, as the European human rights legislation points out, privacy is not an absolute right. There is much emotive claptrap using words such as “snooper”. It is, in that context, interesting to note that the judges at the tribunal looking into the allegation that GCHQ is involved in mass surveillance have just reported and were all absolutely clear in their judgment that there is no “mass” but rather only highly “targeted” surveillance properly authorised. Indeed, as the noble Lord, Lord King, mentioned, the data we are looking at here are not the contents of the letter, but what I would call the outside of the envelope. To be quite honest, the people we should be really worried about looking inside the envelope are various private companies, firms and ne’er-do-wells—not the Government.
My Lords, I am afraid that it falls upon me to be the first to break the all-party consensus. I disagree, reluctantly, with the amendments in the names of my noble friends Lord King and Lord Carlile and the noble Lords, Lord Blair and Lord West. The 21 amendments would incorporate practically the whole of that original draft communications Bill—called at the time the snoopers’ charter—into the Bill before us and into law. Before any noble Lords think I have gone soft and wet on terrorism, I will quote the introductory remarks of the conclusions of the Joint Committee’s report:
“It is the duty of government—any government—to maintain the safety and security of law-abiding citizens, so that they may go about their lives and their business as far as possible in freedom from fear. This is not only in the public interest; it is in the interest of law-abiding members of the public. For this the law enforcement authorities should be given the tools they need. Reasonable access to some communications data is undoubtedly one of those tools”.
That is what we said two years ago; I stand by it today. What we said in looking at that draft communications Bill is relevant today because, with 21 proposed new clauses, this is almost a Second Reading:
“Our overall conclusion is that there is a case for legislation which will provide the law enforcement authorities with some further access to communications data, but that the current draft Bill is too sweeping, and goes further than it need or should. We believe that, with the benefit of fuller consultation with CSPs than has so far taken place, the Government will be able to devise a more proportionate measure than the present draft Bill, which would achieve most of what they really need, would encroach less upon privacy, would be more acceptable to the CSPs, and would cost the taxpayer less. We make detailed recommendations accordingly”,
on how to do that. That is what we said two years ago; I still stand by it.
The problem we faced a couple of years ago when looking at the Bill was that, with the best will in the world and with the right intentions, the Home Office misdirected itself. Its main concern was to make sure that the Bill was future-proof. RIPA was passed in 2000, while our Joint Committee was looking at this in 2012. The Home Office concluded that it was not going to get a new RIPA every year, so if we were to pass a Bill in 2012 or 2013 it would have to be so wide-ranging in scope that it could encompass every new technological gizmo which might come along. Bear in mind that the ghastly—that is not the committee’s opinion but mine—Facebook and Twitter were invented only between about 2005 and 2007, years after RIPA was passed. The Home Office rightly considered that, if we passed a Bill in 2013, we should make it so that it could encompass any future technological change which came along. That was a fatal mistake at the Home Office and, because it made the breadth of Clause 1 so obscure and so wide to capture everything, people called it the snoopers’ charter. That was not pompous rubbish. The way the Bill was drafted meant that it could be called the snoopers’ charter if the agencies wished to make it so.
Initially the Home Office could not tell us what its real concern was on the grounds of confidentiality, and not letting the terrorists and the bad guys know. Within a couple of weeks most organisations that came before us, including the police, said that all they wanted were “who”, “where” and “when”, the things they used to get from the original telephones and the mobile telephones. They did not want all the wide-ranging theoretical powers which Clause 1 and the proposed new clauses here could give them. When we came to look at that in terms of the internet, we came across the crucial areas of contention, which were IP addresses and web logs up to the first forward slash. It would seem quite straightforward for someone on my committee to say yes to permitting access to web logs up to the first forward slash. Even if someone was checking up on me and I logged on to bbc.co.uk, that is all you could get. You would not know what else I was on to because after that came the content—the “what”—of the communication.
It was also pointed out to us that if I was logging on daily to Alcoholics Anonymous, you could not see the rest of the pages, but that in itself could give a message that this person was logging on to that website on a daily basis, and there was a bit of content involved in that. My committee determined—absolutely rightly, in my view—that it was for Parliament to decide on those issues. We could not allow the draft Bill with its very broad-ranging Clause 1—which my noble friend has replicated here—to stand without Parliament being able to say specifically, “Yes, we like that bit and we want to have IP addresses and web logs” or not. It was impossible to extricate that. If noble Lords wish to put down an amendment to ban web logs, it would be impossible to draft the amendment because we have no clue to which bit of Clause 1 we should do it.
Our recommendation was that that clause should be split up, with a specific sub-clause to give the House of Commons and us in this House a chance to vote yes or no on whether we want IP addresses or web logs. I took the view that if we did it that way then on balance, with a bit of grumbling in both Houses, the Government would probably have got web logs and IP addresses in that Bill, because Parliament would have been deciding. My committee did not want to pass some general obscure Clause 1, pat ourselves on the back that we had balanced freedom and responsibility and given the security services the powers they needed, to find a few months later a policeman or someone from the Security Service popping up and saying, “Aha, what you did not realise is that we have this additional power hidden in here”.
That was what caused people to call the provision the snoopers’ charter. We were very fortunate in that the Home Office took on board most of our recommendations. I was privileged, and I believe my noble friend—well, I call him my noble friend—Lord Armstrong of Ilminster was also privileged to see some of the revisions that the Home Office made. I would say that it took on board 95% of what the Joint Committee recommended. If that measure had then gone on to become law—it hit political problems in the coalition—no one could rightly call it the snoopers’ charter.
In paragraph 292 of our report we said:
“Whether clause 1 should allow notices that require CSPs to retain web logs up to the first ‘/’ is a key issue. The Bill should be so drafted as to enable Parliament to address and determine this fundamental question which is at the heart of this legislation”.
I believe that the revised Bill the Home Office were working on would have given us that opportunity. We do not have that opportunity today and it is damaging to go forward with these proposed new clauses—
I am interested in why the noble Lord believes there is no opportunity for us now, within this two-month period, to actually utilise the work that the committee has already so admirably done, and the work that has been done in the Home Office, so that it can be incorporated into a sensible new Bill that covers all these worries?
If the Home Office were to come along with a whole range of those clauses as proposed in our Select Committee report, I would be the first to commend them and to propose them. In the political climate coming up to the election, it may not be possible to produce those clauses and get the consent of both Houses of Parliament. There may be time, but there is severe political difficulty in trying to bounce those new clauses on an unsuspecting public or legislature at this stage.
I congratulate my noble friend on some other key issues in his proposed new clause. He is right to dump all those extraneous public bodies which our committee was very concerned about. The Home Secretary repeatedly says, and rightly so, that she needs the data Bill to tackle terrorism, paedophilia and serious crime. That is the mantra. The committee agreed, but there should not be 600-odd public authorities in the Bill which are allowed to use some of the powers. They do not have the full powers of MI5 and M16—of course not—but it tarnishes the importance of the big players getting access to data if local councils are in there. Of course local councils say that serious crime is involved. They say that fly-tipping is not just someone chucking an old mattress over the hedge of a farmer’s field because gangs are making millions from it, so it is serious crime and local councils want to be in there. I say that they should use other measures rather than a Bill which has constantly been touted as dealing with paedophiles, terrorists and serious crime. In that case, the organisation which is responsible for putting the little lion on British eggs should not be included either. It is: it made a case to be included because apparently, if it is done improperly or wrongly, the EU may cut off £20 million of our funds, and therefore it is serious crime. A distinction has to be made between serious crime related to gun running, people trafficking and big money and the rest of crime.
My noble friend has included the police and the two security services. My committee recommended that we should include the National Crime Agency, HMRC, which also does a lot of work on this, the United Kingdom Border Agency—or whatever we call it now—and the FSA, whatever that is called now too. Those big bodies make up 99% of all requests for data. The other 1% are all the extraneous other bodies.
The committee also made some other very important recommendations which touched on many other aspects of my noble friend’s proposed new clauses. The committee believed that the SPOC—single point of contact—system is far better than anyone ever expected. Nearly all of us on the Joint Committee felt that we could not have the SPOC system as it would be one policeman going up to another and saying, “Hey, Sarge, sign this on the nod and we’ll get access to data”. When the committee visited the Metropolitan Police, we were delighted—perhaps I should have said amazed first—to find that the system was exceptionally good and exceptionally well run and should be no cause for concern. The police, being the police, of course invented a computer program. No one officer can move on to the next stage to authorise the collection of data until all the boxes have been filled in—not ticked, but filled in. Then another policeman has to review it. In some ways, we should have guessed that the inevitable bureaucracy of the police would come up with a system which was pretty fool-proof and pretty safe. In fact, the committee recommended that the police system was so good that the other extraneous organisations should go through the police and the system should go out to tender. I hope the Met would get it. If the Met got that tender, it would be running a rather good SPOC system in the rest of the country. I hope that placates the noble Lords, Lord Blair and Lord Condon, because I am opposed to some of the rest of the proposed new clauses.
If we go ahead with my noble friend’s proposed new clauses, I am very concerned that we will hit a huge storm of criticism that we are introducing the snoopers’ charter by the back door.
So far, no one who has spoken in this debate has referred to the final amendment in this group, Amendment 99. It is the sunset clause for 31 December next year. So it will go, but it will go because the other legalisation goes anyway. In other words, after the election, we know that both Houses have got to spend a lot of time on this because of the sunset clause. Surely putting the sunset clause in this group, plus the other amendments from the Home Office, meets a lot of the objections that anyone could make to this because this is not a free-for-all for ever. We are legislating to say that at the end of next year it goes and Parliament has to replace it.
The noble Lord makes a very good point about the sunset clause, which might reassure many of us in this House and perhaps in the Commons, but I do not think it would reassure the masses outside, who are concerned about the so-called snoopers’ charter coming back. If a sunset clause introduced all the flawed measures—and they were flawed in nearly every clause of the draft Communications Data Bill—some would be concerned that that sunset clause would be added to a year later, amended and put in again and again. Once those flawed measures were on the statute book, I would have little confidence that any Government would wish to remove them. After a huge battle, when they had got them on to the statute book, why would they go back and rewrite it? Perhaps I am being slightly too cynical there.
We would do enormous damage to the cause of getting a proper rewritten RIPA if we went ahead with these new clauses today. Of course my noble friend is right: I would be subject to enormous criticism if, by opposing these amendments today, there were some terrorist incident in the next 18 months that could have been prevented if the Security Service had access to some Facebook pages that my noble friends’ amendments would have facilitated. However, I am more concerned about the long-term damage. If we go off at half cock with these clauses today, we may create a climate whereby it may not be possible to bring in a proper, rewritten RIPA in a few years’ time. Everyone agrees that RIPA needs to be rewritten; it is long past its sell-by date. We need a really good new Bill, and these new clauses should not be part of it—with all due respect to my noble friend.
My Lords, it is a great pleasure to follow such a cogent and interesting speech by the noble Lord, Lord Blencathra, who has immense knowledge of this area of work as a result of his chairmanship of his committee, which produced an excellent report. I will return to what he said presently.
I do not know how many of your Lordships have had the opportunity to watch the remarkable German film, “The Lives of Others”, which depicted the dangers that the Stasi brought on its whole country of a society bedevilled by surveillance at every level. It is a lesson to us all. Surely we all start from the position that any unnecessary surveillance and invasion of privacy by surveillance, interception of communications or looking at metadata that illegitimately affects the rights of individuals must be avoided. That is certainly the position that I start from. I think that almost everybody in this House starts from that position, whether or not they agree with these amendments, which I support.
The fact is that there is a gap in the capacity of the relevant services at the moment, as the noble Lord, Lord Blair, with his great experience of the police, illustrated very clearly. That gap has not been filled. I am not sure why it has not been filled, or why the Government are so reluctant either to take on board these amendments or to produce an alternative. I hope that it is not party politics. My plea to your Lordships, whether they belong to a political party or not, is not to allow party political considerations to interfere in an issue about national security, which surely must be judged only on the merits and without political prejudices taking part. That is certainly my approach to this matter.
We heard during the course of the very helpful opening speech from the noble Lord, Lord King, that for the country to be safe, a very limited number of relevant authorities, for a limited purpose, should have these powers. The noble Lord, Lord Rooker, as he so often does, put his finger on an important aspect of the amendments: we are not asking that these amendments should endure for ever; we are simply filling a gap that exists until the sunset clause comes into effect. That gives plenty of time after the election in May for both Houses of Parliament to reconsider these matters and to produce what may be more enduring provisions.
There is one peculiarity about what has happened in recent months. In July in this House, both the noble Lord, Lord Blencathra, and the noble Lord, Lord Armstrong, referred to the fact that the Home Office—indeed, the noble Lord, Lord Blencathra, said this earlier—had been very co-operative in considering and dealing with his committee’s criticisms of existing proposed legislation. As he reminded us just now, and as he said in the House in July, it had accepted 95% of the changes recommended by his committee. The noble Lords, Lord Blencathra and Lord Armstrong, told us at that time that they had seen a draft Bill, and they put that on the record. Nobody else has seen that draft Bill, but the noble Lord, Lord Blencathra, said at that time that he had seen a draft Bill that by no stretch of the imagination could be called a snoopers’ charter. Those were his words. I see him nodding in agreement.
It is my view that the Government should now produce that draft, amended or replacement Bill so that we can see what was offered, and so that if they object to the provisions in these amendments we can come back next week and table amendments which the noble Lord, Lord Blencathra, and others have agreed are not a snoopers’ charter, meet requirements and fill the gap of which I have just spoken. Indeed, if that draft Bill was made available, and we were able to consider it, and possibly table amendments by next Monday, there may be no need to reconsider matters after the general election, although, speaking for myself, I would still prefer to see a sunset clause requiring an affirmative resolution of both Houses so that we could be sure that what had been enacted was fit for purpose and was safe.
I close by, I regret, repeating something which I said a few days ago in your Lordships’ House, because I think it merits being repeated. I absolutely congratulate whoever thought up the term “snoopers’ charter”. Rather like the term “poll tax”, it was a piece of branding genius. Unfortunately, unlike the term “poll tax”, it does not remotely accurately describe what was being suggested. It presupposes malignancy in that distinguished service that has served this country so well and that was recently headed by the noble Lord, Lord Evans, who I am glad to see in his place opposite. The term “snoopers’ charter” implies that the noble Lord would rub his hands in the morning and say, “Now let’s have a look at Alex Carlile’s shopping list and credit card purchases—oh, and who he’s been calling and what internet sites he has been on, because it would be fun to know what he’s been up to”. That is simply a caricature of what the Security Service and the police do.
Today, some figures have been published on the number of people who have gone to take part in violent jihad in Syria in recent months, country by country. I will not trouble the House with the full table, but it is alarming because it shows that there are other countries in the European Union and elsewhere from which violent jihadists have gone in greater proportionate numbers than even the United Kingdom—the Netherlands is one example—although the United Kingdom figures are alarming. When the successor to the noble Lord, Lord Evans, Mr Parker, who has given us his warning on these matters, gets up in the morning, they are the kinds of people he is concerned about. They are the kinds of people to whom attention is given in attempting to ascertain the metadata and, as a result, their movements.
Your Lordships will recall that as a result of the Paris incident, it was revealed, as the newspapers rather naively put it, that the wives of the two brothers involved had communicated about 50 times with one another on their mobile phones. I doubt very much that it was the wives who had been communicating, although certainly their mobile phones had been used for the purpose of communication. I venture to suggest that if that information, given the history of those two brothers, had come to the attention of the Security Service here and had been acted upon—and, of course, those are two important ifs; I do not mean to criticise the French services, which I think the noble Lord, Lord Evans, would confirm are generally very competent indeed—it is just the sort of information that could have prevented an attack in the United Kingdom. However, there is a gap and it needs to be filled.
I close by saying to the Minister that if he is not prepared to accept these actually rather restricted amendments, which have been offered in good will to try to protect the national security of this country and the safety of its citizens, let him now tell us what alternative the Government have agreed to so that we can now deal with this issue once and for all, without darning the sock.
My Lords, I thank the four noble Lords who have put their names to these amendments for renewing and re-energising the parliamentary debate about these issues. I will be relatively brief.
I think everyone agrees that there is a gap in the legislation that needs to be filled. I do not disagree with any of those who have spoken so far, not because I am vacillating but because they are all right in what they are trying to say and in their ambitions. We desperately need a clear legislative road map that leads to filling the gaps that are putting our country at risk. Ideally, that road map would lead to legislation before the general election, and that is the spirit of the amendments before us. However, I accept the reservations put forward by the noble Lord, Lord Blencathra, and his committee.
The fight against terrorism and serious crime is not a police and agency fight but a whole-country fight and an international fight, and in the context of our own country we need a critical mass of public and communications industry support for new legislation. The legislation cannot be too far ahead of the wide feeling of support and that they are the right measures at the right time for what we need. I hope that the Minister in his response will be able to give us a sense of how this road map might be laid out. As I say, that would ideally be before the general election, but I suspect that more realistically it will have to be after it. We will therefore be looking to the major parties to set out just what they are prepared to do in this field.
What is absolutely certain is that there is a horrendous gap that gets bigger each day and prevents the agencies that we task with keeping our country safe from doing their best in this field. So I thank again those who brought forward these amendments. This is a vital time for our country to get this matter right.
My Lords, I declare an interest as a non-executive director of the National Crime Agency. Unfortunately, I can neither confirm nor deny the contents of the shopping lists of the noble Lord, Lord Carlile, but he is quite right in saying that we are not here talking about what would amount to a snoopers’ charter.
I have some considerable sympathy for the purpose behind the amendment. It seems to me that there has been a failure in the system to provide the appropriate powers alongside the appropriate controls that will enable the agencies and the police to continue their jobs of keeping us safe from terrorism, as well as, importantly, from serious and organised crime. It was always my view as regards the draft Communications Data Bill that it was at least as important for law enforcement as it was for the intelligence agencies, because the evidence provided by communications data is enormously important and is used again and again in the courts. This is not just an intelligence issue; this is an evidential issue to ensure that justice is properly done in the courts.
It is important to note that it does fill part of the gap. I know, having been a Minister for three years, that in the security world the agencies always say we need so-and-so and then they say, actually we need this and we need that. Yes, we do need to do these things with the various servers and providers abroad, but this is also an important part.
I accept that this is a very important element, but it is not the answer to everything.
My second note of caution is that we need to maintain public confidence as we go down this route. That is as important for law enforcement as it is for counterterrorism. The noble Lord, Lord Blencathra, referred to the masses who are concerned about the snoopers’ charter. I have to say that the polling evidence I have seen does not necessarily demonstrate that the masses are enormously concerned about this issue. On the whole, the masses seem to be more concerned about their security than about the human rights issues that some people focus on. Nevertheless, there is an issue of public confidence and I do not wish to diminish that.
Despite those notes of caution, I support the amendment. I support it because it is, as the noble Lord, Lord Carlile, said, a restricted measure, not a blanket measure. I support it because it is drafted with a sunset clause, so that we are filling, as it were, a legislative gap until the totality of the issues can be properly considered in the light of the subsequent publication of various reviews that are under way. I think that it will fill a gap for that period. It seems to me to be a useful, rather than a hugely expansive measure, and one which has appropriate safeguards, so I support it.
My Lords, I am not speaking here on a party-political, but on a personal basis. I want to tell noble Lords, first, about my personal experience of terrorism. It is not first-hand, either in terms of being a member of Special Branch or the security services, or having seen the aftermath of what took place directly. However, part of my role in the Metropolitan Police following the 7 July bombings was to talk to officers who had had to go down on to the tracks where terrorists had exploded these bombs and bring out the victims of those terrible atrocities. I know what we are talking about here in terms of terrorism and I use the Underground system every day.
In our earlier discussion on Amendment 75 and internal exile, as some put it, noble and learned Lords, in particular, as well as other noble Lords, emphasised the need for legitimacy. The noble and learned Lord, Lord Hope of Craighead, talked about the European Convention on Human Rights and the right to a private and family life. My concern is that the introduction of these amendments in this way may not be seen as legitimate by many people outside this place. A process has been set in motion. There is a process for reviewing RIPA, for example, and the whole landscape of the intelligence services. That process is in place.
The other issue that noble Lords—and, indeed, two who tabled this amendment—talked about in relation to internal exile is the danger of alienation and resentment. This follows the comments by my noble friend Lady Warsi in yesterday’s Observer about how engagement is essential. We need to engage with communities, not create alienation and resentment. My fear is that the way in which these amendments are drafted is likely to cause exactly that negative effect. My noble friend Lord King, in his opening remarks, said that we are facing a very serious situation. That is common ground. As I have said, I know from personal experience the sorts of dangers that we are facing. However, there is no common ground, I suggest, about the best way to deal with that serious issue.
There has been a lot of talk this afternoon about events in Paris. My understanding is that the information and intelligence that security services got was through mobile telephone communication between the two groups of terrorists which co-ordinated their attacks by that means. There is nothing in these amendments that would give the security services or the police the powers to identify that sort of communication. It exists already. Every day, not only the police and the security services, but other agencies specified in the amendments also have the power, as we speak, to identify who called who on a mobile phone, where and when. So despite all this talk about Paris and how the attacks could have been prevented, these amendments would not appear, on the facts as I know them, to make any difference to the situation.
Terrorists may be adept at using technology, as my noble friend Lord King said, but my understanding is that a lot of terrorists, particular the sort responsible for recent attacks—whether we are talking about the tragic death of Lee Rigby or about Paris—are using very old technology. The problem, as my noble friend Lord King rightly said, is getting good intelligence. That is about developing links with the Muslim community and with communities where the extreme right wing operates, and gaining their trust and confidence in order to get that intelligence.
Does the noble Lord not agree that in, I think I am right in saying, 100% of all the cases where we have stopped a terrorist plot in this country, it has been intelligence via the web or by some SIGINT means that has enabled us to identify the group in order to then carry out action?
My understanding is that that is absolutely not the case. There were numerous cases—though it may be going back some years to Irish republican terrorism—where most of the plots were foiled because of intelligence from communities, not because of anything that was intercepted. I understand that the situation is changing, but the noble Lord was not correct when he said that in 100% of cases of terrorism that were thwarted in this country it was as a result of intelligence interception of that kind.
If I may say so, it was the case during my three years as a Minister. It was very different, of course, from the time of the IRA, which we had completely and thoroughly penetrated.
I am sorry, but I have not yet finished, noble Lords will be alarmed to hear.
Noble Lords have said that there is a gap in the capability of the security services and the police in terms of getting similar intelligence that they get from cell site analysis at the moment using mobile phones. My understanding is that the emergency legislation that this House passed towards the end of last year and the measures contained in this Bill, unamended, help to bridge that gap. Intelligence on who is communicating with whom at what time and where can be secured using the IP address provisions contained in the Bill, without the proposed amendments. I am not technically advanced enough to say whether that is the case; perhaps the Minister will be able to tell us whether, or to what extent, the gap that has been identified by other noble Lords will be filled by the Bill as it stands.
The noble Lord, Lord Blair of Boughton, talked about the significance of communications data. Again, my understanding is that the legislation, as put forward by the Government, is designed to fill that gap.
The noble Lord, Lord West of Spithead, then spoke about how the draft Communications Data Bill was kicked into touch for political reasons. If the noble Lord means a balance being achieved between human rights—the right to privacy and a private life—and the powers being given to the security services and the police, I would say that that is an absolutely legitimate political reason.
On mass surveillance, if we are talking about internet service providers retaining web logs and information about every website visited by every individual based in the UK, so that the information can subsequently be accessed in a targeted way by the police and the security services, are we saying, if we accept these amendments, that that can be done simply by the security services or the police providing some legitimate reason why they want to access that information—without any judicial intervention or a judge deciding that there is a legitimate reason to access that data? Are we saying that that is what we want and accept?
People have made fun of the fact that the security services are not going to access where people have done their online shopping. But who in this House believed, when they passed the Regulation of Investigatory Powers Act, that the police would use that power to establish the identity of confidential press sources? If we pass this very broad legislation, how can we say that there will not be some reason found in the future for the police or the security services to use the legislation in a way we never intended for it to be used?
If noble Lords think that I am being party political, that is a matter for them. I was a police officer for 30 years. I encountered terrorism on a second-hand, rather than first-hand, basis. Unless we have the right balance between rights to privacy and powers for the police and security services, large swathes of communities in this country will no longer co-operate with the police and the security services. That will be an even greater loss of intelligence than any gap that currently exists in the powers of the police and the security services.
My Lords, the House faces three choices. The first would be not to accept these amendments and not replace them with anything else—in other words, do nothing. I think that the “do nothing” option is the worst that we could possibly follow. In the current situation it is not possible to argue that we do not face growing danger as a result of declining capability against the background of a growing threat. It seems to me that we have a duty to respond to that. I think it a pity that the Government have not brought forward their own amendments on this, but they have not done so yet. I believe that doing something is what this House ought to do. I commend those who have brought forward these amendments.
The other two options are: follow these amendments and vote them into law—it would then be important to accompany them with a sunset clause—or wait for the Government to bring forward something else. That choice depends on the Government’s intentions. It would be preferable for us to be able to vote on something more refined and which incorporated more of the work done by the Joint Committee. I have not been privy to any of the legislation as redrafted. The draft data communications legislation has remained with its poor reputation as a result of the Government not having indicated what they might do to refine the powers therein.
My Lords, the issue raised by this group of amendments, long as it is, is straightforward enough. We rely on the police and the intelligence and security agencies to protect us and our liberties from the threats to our way of life presented by terrorism. Their ability to do so depends to a large extent on their ability to have access to the data derived from the use of communications by the would-be terrorists.
The regulation of the use of communications data was last reviewed 15 years ago. Since then there have been great changes, as many speakers have said, in the technology of communications, the significance of which, for the regulation of communications, needs urgently to be reviewed.
The threat from terrorism has unquestionably increased. The sophistication of those who use communications for malign purposes has also increased. As we have been told, the efficacy of the activities of the police and intelligence and security agencies in this area have been impaired by the activities of Mr Edward Snowden.
The Government published the draft of a new Communications Data Bill earlier in this Parliament, two or three years ago. That was scrutinised by a Joint Committee of the Houses of Parliament, chaired by my noble friend Lord Blencathra—since I was a member of that Committee, perhaps I may call him that. That committee made extensive criticisms of and recommendations for the draft Bill and the Government accepted almost all of them.
There is reason to believe—indeed, as my noble friend Lord Blencathra has already said, he and I have seen—that the Home Office produced a revised version of the draft Bill, to take full account of the Joint Committee’s recommendations. Unfortunately that revised Bill has not been allowed to see the light of day, let alone been submitted to Parliament for consideration. That will not now happen until there is a new Parliament. If a revised Bill is not introduced until after the election, it might be that it cannot be passed until well into 2016. That would be another year’s delay, which we can ill afford.
The present Counter-Terrorism and Security Bill provides an opportunity to put into effect, within the next few months, the measures proposed in the revised Communications Data Bill, insofar as they affect the response to the enhanced threats from terrorism and the agencies responsible for countering those threats. That is what the amendments seek to achieve. The amendments also provide for a sunset clause that would ensure that the whole matter is reviewed early in the new Parliament. Since we do not have the revised version of the draft Communications Data Bill, those responsible for these amendments have had to rely on the original Bill. No doubt the amendments are to that extent defective. But Parliament should not be denied the opportunity of considering whether and how to achieve the changes required immediately and without the delay consequent upon waiting until the next Parliament.
I expect—though I cannot commit them—that those who are putting forward these amendments would be prepared to withdraw them if the Government would undertake this evening to introduce on Report revised versions, taking account of the criticisms and recommendations of my noble friend Lord Blencathra’s pre-legislative scrutiny committee, but also adopting the proposals in the amendments for confining the changes to the police and intelligence and security agencies and providing a sunset clause ensuring that the issue has to be considered in the wider context of a review of the regulation of communications data by the new Parliament. With that qualification, I fully support the amendments proposed by the noble Lord, Lord King, and his colleagues.
These amendments provide an opportunity to address without delay acknowledged shortcomings in the effectiveness of the present regime. It is suggested that they would be an unacceptable intrusion on the liberty of the citizen. That can be much exaggerated. It is not government agencies that will store the data, and those agencies will be able to obtain access to the stored data only subject to demonstrable need and justification and subject to rigorous procedures and controls that were examined and found fit for purpose by the committee—as my noble friend Lord Blencathra has said.
Even so, they will of course represent some potential interference with the freedom of action of those whose data are extracted from the store. But those are or may be the people whose freedom of action we wish to limit or restrain, because their intentions are malign and, if realised, will compromise the life, liberty and happiness of the rest of us. The price of liberty is eternal vigilance, but if vigilance fails or is frustrated, it is life, liberty and the pursuit of happiness that pay the price.
My Lords, I confess that I do not really know where to start. I think it is true that all the previous speakers are former members of what I would call the security establishment: they are former policemen, former Home Office Ministers or former spies—I am not sure in which category I would put the noble Lord, Lord Armstrong. I think I am the first to speak more as an individual and a non-politician; my history before I came to this House was quite outside of politics, in business.
As we have heard, these amendments regurgitate large parts of the utterly discredited draft communications data Bill. They seek to slip into the Bill large parts of the highly controversial snoopers’ charter, word for word. With just one exception, the amendments fail to correct any of the many significant, fundamental and deal-stopping flaws identified by the Joint Select Committee on the draft Bill that reported at the end of 2012. I had the honour of being a member of that Select Committee under the very able chairmanship of my noble friend Lord Blencathra. The committee sat for five months; it met 20 times, including three times in the Recess; it interviewed 54 witnesses and received 19,000 e-mails from members of the public. As we have heard, its members included two former Cabinet members, Lady Thatcher’s Cabinet Secretary, one noble Lord who has since become a government Minister, an ultra-loyal Conservative MP and a former Conservative Home Office Minister. That was hardly a hotbed of lefty liberals. The committee reached a unanimous verdict that the draft Bill was badly written, far too broad in scope and badly costed, and noted that the security agencies would do better to make better use of the information they already had.
That last observation is made particularly pertinent by the revelations following the atrocities in Woolwich and Paris, in which all the terrorists were well known to the security agencies long before the events. In all, there were about 100 criticisms of the draft Bill in the Select Committee’s report and many of them were serious and fundamental. As far as I can see, these amendments deal with just one of those criticisms, which means that they are still infested with the remaining 99 flaws. I will not detain the House by going through each of them, but noble Lords may read about them at their leisure in the report, which I commend to the House.
When Edward Snowden released his revelations, about six months after the Select Committee reported, we learnt that GCHQ’s Project Tempora is the world’s first “full-take” data interception system, collecting 100% of internet traffic—content as well as metadata. Former committee members were surprised, and some were angered, by that revelation because during the committee’s proceedings Home Office officials had three times claimed that there was a 25% capability gap in what the agencies could collect—although those same officials were not able to justify that figure of 25%, even in private sessions. Snowden showed that the 25% so-called gap probably does not exist at all and that in fact the agencies are already, and have been for some time, acquiring far more data than the draft Bill would have delivered—and without the knowledge or consent of Parliament and the people.
My Lords, I apologise for not being able to speak at Second Reading. I was detained at a board meeting.
This House has given me many occasions to feel both alarmed and surprised. Today is no exception, first, in describing Tinder to my Back-Bench friends during an earlier part of the debate and, secondly, in rising to speak against four noble Lords for whom I have the greatest respect and who have offered me enormous friendship since I entered your Lordships’ House. I should like to cite three brief reasons why I oppose the amendment.
First, I wholeheartedly agree that we need a more detailed, complex and timely debate around this enormously complicated issue. The Government were slow to react compared to the quick review by America of the oversight and security services post-Snowden. This Government have looked lacklustre in their response. However, different processes are under way.
I declare an interest as being part of a panel set up by the Deputy Prime Minister and administered by the Royal United Services Institute. The Information Commissioner work is also continuing and we have the emergency legislation referred to as DRIP, which has already been talked about this afternoon. I believe it is very important that those pieces of work reach the next stage and that the debate in Parliament puts all of them into the mix.
Secondly, it is easy to underestimate the power of the public’s view on this subject. The noble Lord, Lord West, mentioned that he thinks that the public are fairly disinterested in this issue but I disagree wholeheartedly. A YouGov survey found that only 6% of people believe that the Government have a coherent data strategy but that it affects them directly. Another poll whose results I saw recently said that just 2% of people trust the Government when it comes to their data. That is immensely important for the reason that the noble Lord, Lord Paddick, most eloquently espoused earlier—to build trust and engagement among exactly the groups that this legislation is trying to reach.
More than that, perhaps I may give two technical examples that make me believe that such trust is so vital. There is now a move towards more and more use of the dark web—a place where it is very difficult to collect any data—and towards more and more encryption. At one end of the spectrum is a small start-up—actually it is not so small any more—called Wickr. This was started by a woman in the US and it enables communications to remain completely secure. Imagine sending a message that is never stored on any server anywhere. Not only does it disappear remotely in your hand but also it never stays on the network. She has had enormous success in building her app—quite understandably for many people, who believe that they should have a private mechanism for communication and that the Snowden revelations have shown that systems are not safe or secure. Then, more in the mainstream, we have Facebook, which has recently asserted that it is starting a sub-site on the dark web—the unregulatable and uncontrollable web—so that its customers can feel safe.
If we do not listen to what the world is doing and move and engage with it, allowing people to feel that their concerns around security are being addressed, there is a danger that we will take a retrograde step with communications Bills, such as with this amendment.
Finally, I believe that we need to engage much more deeply with both civil liberties groups and the industry itself. Here, I agree with a recent statement by President Obama, which I hope the Committee will forgive me for repeating. At the press conference in Washington which he shared with our own Prime Minister, he said in answer to a question about surveillance and about whether there was a swing to security from privacy:
“In six years I and the Prime Minister have seen a constant threat stream across our desks—the pendulum doesn’t need to swing but we need a consistent framework. There needs to be a debate about the laws and the discussion needs to involve the tech industry, who have responsibilities not only to security but also to the customers who use their products, and it also needs to involve the civil libertarians who are tapping us on the shoulder”.
I urge the Government to address the very real concerns of the general public on the one side and the security services on the other, particularly about the boundaries and framework for data collection, but I urge them not to do so by way of this amendment.
My Lords, there are objections of both process and substance to these amendments which make it inopportune and injudicious to cut and paste this amendment into the Bill—to “bounce” it into the Bill, in the words of my noble friend Lord Blencathra, whose speech I thoroughly commend. As the noble Baroness, Lady Lane-Fox, has just mentioned, there is an issue of trust. We all know—it is commented on with great regularity—that there is very little trust in politicians and parliamentarians. The noble Baroness, Lady Neville-Jones, even though she would like an updated communications data Bill, referred to the poor reputation of the existing model. However, it is the existing model, shorn of the safeguard of judicial authorisation and scrutiny and the safeguard of restrictions on the exercise of powers, that it is proposed should be inserted in the form of these amendments.
I have counted five current reviews of investigatory powers, which make it bad timing to proceed with the substance of these amendments. As I understand it, there is one by the Independent Reviewer of Terrorism Legislation, David Anderson, another by the Intelligence and Security Committee, another at the request of the Deputy Prime Minister by the Royal United Services Institute, another by Sir Nigel Sheinwald on the international aspects, and one by the Interception of Communications Commissioner, Sir Paul Kennedy, into the use of RIPA to identify journalists’ sources. With all those reviews going on, I think it is rather disrespectful to them to say, “Well, we won’t wait for those conclusions but we’ll stick into this Bill all this new capacity to collect communications data”.
Mention has been made of the capability gap. The 2012 committee report said that the Government failed to share with the committee the research findings behind their assertion of a then 25%, going on 35%, capability gap, and that such a figure was “unhelpful and potentially misleading”. Therefore, we simply do not know what the capability is. My noble friend Lord Strasburger mentioned the revelations of the Tempora programme. I am not sure why we bother to legislate half the time, as GCHQ seems to go a great deal beyond the scope of any Bill.
The report also said:
“Part of the gap is the lack of ability of law enforcement agencies to make effective use of the data that is available”.
That is not my assertion but the assertion of a very thorough and wise Joint Committee report. I agree with it that addressing that ability should be a priority.
There was also mention of the failure to consult communication service providers and internet service providers, and there have been recent complaints, which I mentioned earlier, by the Internet Services Providers’ Association about the lack of consultation. Before any redrafted legislation is introduced, the Joint Committee recommended extensive and meaningful consultation,
“once there is clarity as to the real aims of the Home Office”,
which would be quite useful.
While I understand what the noble Baroness is saying about the various studies, does she agree that over six years, which is how long it has taken us to address this starting to lose data, is rather a long time? It is slightly longer than it took us to defeat Hitler, and it is a long time to keep on looking at other things. Do we not have to take some action if we are to achieve something?
I thank the noble Lord for that remark, but I understand that the Independent Reviewer of Terrorism Legislation has a target date of May—four months away—to produce his report. I am sure that we can wait four months.
I would also mention the huge expense that these amendments would produce. One can also query the value of a sunset clause. If hundreds of millions of pounds had been spent on the project by December 2016, it is likely that Parliament would say, “We have spent so much already, so we might as well carry on”.
The noble Lord, Lord King, quoted me as preferring targeted to blanket surveillance. What I meant was not what he has put forward in his amendments. He has removed some of the organisations, but I understand that there is still no specification that it is the security services and the police; the reference is to “purposes”. Other agencies could be pursuing matters for the purpose of serious crime, so the provisions would not be limited to the police and security services. By targeting, I meant not limiting it to certain “purposes”; I meant it to limit the scope of Amendment 79, which replicates Clause 1 of the draft Bill.
As my noble friend Lord Blencathra said, it was the huge breadth of that Clause 1, which is now reflected in Amendment 79, which was so objectionable. The Joint Committee said:
“It is hardly surprising that a proposal for powers of this width has caused public anxiety”.
Even the Intelligence and Security Committee said that more detail was needed on the face of the Bill, but that detail is not in the amendments put forward today. The Joint Committee concluded:
“Clause 1 therefore should be re-drafted with a much narrower scope, so that the Secretary of State may make orders subject to Parliamentary approval enabling her to issue notices only to address specific data gaps as need arises … We do not think that Parliament should grant powers … on the precautionary principle”—
the idea was that new ways of communicating would come along. That was an extremely wise conclusion, yet the amendments consist of precisely the breadth of that Clause 1.
The Joint Committee was particularly exercised over the possible requirement to keep web logs and, as the noble Lord, Lord Blencathra, said, wanted,
“Parliament to address and determine this fundamental question”,
specifically. Amendment 79 does not allow us to address that specific and fundamental question. In the mean time we are legislating on IP addresses in this Bill. Neither I nor any of my colleagues have objected to that, although we wanted to tease out some of the detail.
The Joint Committee also said that there were huge technical and civil liberties concerns about the collection of third-party data and the lack of detail on that in the Bill. The report states:
“United Kingdom CSPs are rightly very nervous about these provisions”.
They simply could not understand the implications of having to collect data from third-party suppliers who happened to cross their networks.
My Lords, I rise to oppose the amendments for many of the reasons outlined here today. First, they are unnecessary. We have heard a lot about gaps, targeted and not blanket surveillance and bringing things up to date. This is, of course, absolute nonsense. As the noble Lord, Lord Paddick, said, the Met and presumably the other agencies already have the powers they need—powers that, I suggest, go far beyond what they need. We heard a lot today about Paris and Lee Rigby, but in fact all my information says that the shortcomings of the pre-investigation in Paris and in the Lee Rigby tragic murder were due not to a lack of surveillance but to a lack of good police work. That is what was fundamentally missing. It was not about not having enough recordings or surveillance. It was about a lack of information and a lack of talking to marginalised community groups. The cross-party committee which reported in November on the handling of the Lee Rigby killers exposed major internal failings in the way that agencies pursue leads. It found that both men had been known to the agencies for years—one had even been considered a priority—but basic issues such as delays, poor communication and bad record-keeping caused the problems, not the surveillance of the suspects.
Although these amendments are obviously within the letter of the law, they seem to me to be fundamentally undemocratic in the way that they are being brutally pushed into our parliamentary process. This seems to me a way of short-circuiting real scrutiny. It is great that they were looked at before, but they still need looking at again; if they are—I hope the Minister is listening—they absolutely must be looked at by the Joint Committee on Human Rights. It should look at these amendments before there is any more discussion in either of these Houses.
For me, this snoopers’ charter reduces our rights, and surely that is exactly what the terrorists are after. Terrorists want to impact on our society and on every single person who does not believe the way that they do. That is what we are letting happen here. It is absolutely mad. The Mayor of London recently referred to “this civil liberties stuff” in the most dismissive way, as if that is negotiable—that civil liberties are not terribly important when we compare them with the threat of terrorism. That is exactly when we need our civil liberties. That is what we in the West should be known for.
There is also the cost. My experience of the Met over the past 15 years is that it cannot deal with the data that it already has. I have asked many questions about its databases and the information that it gets from them. The Met does not know how many databases it has—it cannot tell me how many to the nearest hundred. Also, it often cannot search its databases. For example, I had the dubious pleasure of being on its domestic extremist database, I think under the regime of the noble Lord, Lord Blair, and I hope that I am not on the database anymore—the Met has changed its definition of what a domestic extremist is—but who knows because I cannot get the information. However, the Met cannot search that database for serious criminal activity. Because the definition was changed to relate to serious criminals, if you ask, “Can you look through the database and find out how many serious criminals you have?”, you will be told, “Oh, we haven’t logged that, so we can’t do that”.
Not only are we expecting the Met staff to deal with more data when they cannot sort and file the data that they already have, but, I would argue, they have enough powers. The noble Lord, Lord Blair, talked about some very tragic incidents where more surveillance might actually solve a crime or find a lost child. In fact, the police already have these powers. They have them under RIPA and, in my view, they are already misusing them. Under RIPA they do not have to go to a judge to ask if they can put surveillance on somebody; they just have to go to a chief inspector in a nearby unit and ask, “Could you sign this for me? It’s surveillance on somebody or other”.
We should not be thinking about giving more powers to our spies and to the police. We should be very careful about this. We should think about taking back some of those powers and making sure that we persist in keeping our civil liberties and human rights and do not let the terrorists take them away from us.
My Lords, I was surprised that at an early stage in his speech the noble Lord, Lord West, suggested—until he revised the figure—that communications data were employed in some 95% of criminal cases. My experience from the years when I was responsible for prosecuting serious crime and terrorism was that the figure was 100%. I cannot remember a serious criminal case, and I certainly cannot remember a terrorism case, in which communications data were not used. Of course, there is a difference between data which are employed to detect terrorism and data which are then used as part of a prosecution to convict terrorists. Certainly, so far as the latter is concerned, there was a vast amount in every case.
The noble Lord, Lord Evans, will remember some of those cases which occurred when he was director-general of the Security Service. The men who tried to commit mass murder on London’s Underground are serving long prison sentences. The men who wanted to detonate a bomb containing radioactive material in Oxford Street are serving long prison sentences. The men who wanted to put a bomb in Bluewater shopping centre at half-term when it would be particularly busy are serving long prison sentences. In the case of the men who wanted to put a bomb in a nightclub—the Ministry of Sound—two were recorded by members of the noble Lord’s service. The leader of the gang said to one of his colleagues, “No one will be able to criticise us for blowing up a nightclub; all those slags dancing around”. This is material which is of the utmost importance in criminal prosecutions.
It is also true, of course, that technology is changing and our capacity to monitor this sort of material must change with it. I accept that, but I do not believe that these amendments are the right vehicle for achieving that change. These amendments suffer from the deficiencies which the original Bill suffered from; in particular, they are insufficiently specific. I agree with everything that the noble Lord said in his compelling speech a few minutes ago. These amendments are deficient for the same reasons that the original Bill was deficient and I shall not support them. This is not, as my noble friend Lord Carlile said, a party political matter. It is a matter of analysing the material and determining whether it is fit for purpose. With respect, I do not agree with my noble friend Lady Neville-Jones that we must do something. We must do the right thing and I do not think that this is the right thing. In everything, we must maintain balance and proportionality. No one has argued in this debate that we should not have a mechanism whereby the security services can access material of this sort. The question is what sort of mechanism.
The security services in recent years, and perhaps in years long gone by, have been led by people who understand the tension between security and rights. When I was DPP and the noble Lord was the director-general of the Security Service, I enjoyed the discussions we had on this topic. Sometimes we disagreed about precisely where the line was drawn, but we agreed that there was a line. One of my fears about these amendments, as with the draft Communications Data Bill, is that they draw the line in the wrong place. One result of that would be an adverse impact on our great security institutions. There is no doubt that the security services in this country enjoy enormous public support, which is unfamiliar even in democracies such as France. It is clearly understood by people in this country that the security services are after “them and not us”. In other words, they are interested in targeting those individuals who are trying to do us wrong rather than the rest of us. The danger of breadth in legislation of this sort is that, if the idea gets about that the security services are interested in everybody’s communications, not just the material of those subject to investigation who are being targeted because it is believed that they are involved in crime, then the sense which the British people have of their security institutions will begin to alter in subtle ways, and not for the good. I would caution those who argue that legislation of this breadth is needed because it is future-proof. We must take great care with legislation that is enacted in the context of the sort of public confidence issues that the noble Baroness, Lady Lane-Fox, indicated.
People are interested in these issues. They express their interest in different ways, but there is a feeling abroad that the Government and the security services are becoming nosy. I do not believe that that is true, but if we enact legislation that appears to people to be unnaturally broad, we run the risk of feeding that monster. I shall oppose the amendment.
My Lords, I sense that the House probably wants to come to a conclusion, so I will not delay noble Lords long. Very powerful speeches have been made both in favour of the powers in these amendments and against them. But I note that the speeches that have been made against have been made against these particular amendments—the ones that were taken out of the draft communications data Bill. Something else has happened in the mean time. An admirable process was followed on this Bill. It was submitted to a Joint Committee and that committee reported on it and its defects. The Intelligence and Security Committee also considered the Bill with classified evidence and we similarly identified some defects. Since then, a revised Bill has been prepared. The noble Lords, Lord Blencathra and Lord Armstrong, have seen that Bill and they consider that it meets 95% of the criticisms that were in the original Bill. I think that the noble Lord, Lord Blencathra, went so far as to say that if those clauses had been presented he would not have objected to them.
There is therefore a Bill waiting. The urgency has increased. The threat is now much higher. If the Government consider that this is a serious threat—they say that they do—it is their duty to produce that Bill and take action on it quickly if that can be done before the election. The arguments that have gone against these amendments do not go against taking that course.
The noble Baroness, Lady Lane-Fox, made another powerful argument, which was that if legislation were hastened it would create resentment and possibly opposition among the people whom we need to carry with us. But I disagree with her in this respect. She said that that may accelerate the bad people going to the dark web, but I think they will go there anyway. We are dealing with very sophisticated people. The argument that she makes simply underlines the fact that we are running behind the development of technology. The fact that we cannot go all the way to dealing with it should not prevent us doing what we can. That is an urgent matter.
The House will not be surprised to hear that I could not find myself in agreement with a lot of the things said by the noble Baroness, Lady Jones, but in one respect I do agree with her. What worries me most is the cost of this legislation, which, if I recall rightly, is put at £1.6 billion. That is money that could be well used on other aspects of the Prevent process. I am torn about whether this is the best use of the money. But I take the view—the noble Lord, Lord West, argued about being hard-nosed with the providers—that it ought to be a duty of the providers to retain these records. It is not something that the taxpayer ought to pay for. The providers make a great deal of money out of these services. If they are required to keep these records at a cost, they may bid a little less for the licences, but I am prepared to take that risk. It should be a condition of the licences that records of this sort should be retained which can be consulted.
My final point underlines something said by the noble Lord, Lord Armstrong. We are not talking about the Government or the authorities holding these records. If people are writing to Alcoholics Anonymous, the Government will not have access to that information. They will access these records only when they are looking for people they have reason to believe are preparing terrorist acts or serious crimes. People who are going to Alcoholics Anonymous have no serious cause to be concerned.
My Lords, I am curious about two of the sources of opposition to what my noble friend Lord King and others have proposed. One is that we somehow have plenty of time and that we do not need to rush. Terrorism is time-related, but it is not time-limited. The terrorist threat was there yesterday and the day before. It is certainly there today and it will be there tomorrow, I am afraid, and I fear the day after tomorrow as well. We do not have the luxury of time that many have suggested.
The other point that surprised me so much is the one about public concern. Of course, it is very easy to say to the public that there is a danger of a snoopers’ charter, which will interfere with everything that you are communicating and is very much against your interests. We know that technically that is simply not true. It is a fear and concern that has been fanned by politicians, quite often for their own purposes.
The noble Lord, Lord Butler, was so right to draw attention to the fact that a draft Bill has been prepared. As far as I can make out, that has been deliberately suppressed by one party for presumably some sort of political reason. It has not been brought forward for discussion. If you ask the public to choose between reducing the risk of death from terrorism to themselves or others whom they do not know, or a possible invasion of their privacy or the privacy of others whom they know or do not know, I have little doubt as to what they would choose.
There are ways in which the security of this country is not being maintained when the Government would like to maintain it. I take one example. It is clearly in our interests in the world of terrorism that we should know who crosses our borders—out as well as in. We have been given an example of the people who go to do jihad and all the rest of it. The fact is that a big attempt was made with the e-Borders programme. A contract worth £750 million was given to Raytheon in 2007. It ran into tremendous difficulties and in 2010 the contract was cancelled. Since then there has been a great deal of judicial toing and froing and arbitration. The net result appears to be a debt to the taxpayer to be paid by the Home Office to Raytheon of £200 million. Something like that failed when it was tried. Let us at least do things that we think can be done. Do not let us say that we have until the day after tomorrow as things may happen tomorrow.
My Lords, like the noble Lord, Lord Butler, I appreciate that this debate has gone on for some time, so I will try to keep my intervention short. These extensive amendments have been proposed in many ways by people whom I consider to be institutions, so I am therefore hesitant to stand up and speak on them. They have been proposed by people for whom I have much admiration. But it concerns me that they are being bolted on to what is already a difficult and in many parts controversial Bill, at the end of a Parliament in what will be a toxic political year and in an expedited way. It is probably not the best way in which to bring these matters forward. I agree with the noble Lord, Lord Blencathra, that if there is a better version of this Bill out there in the ether of government it may have been better to have considered that version rather than the one before us today.
I am grateful to the noble Baroness, Lady Lane-Fox, for her expert understanding of the IT community and developments in that community. It always surprises me that just when we think that we will be able to deal with an issue the industry finds a way that leads us to think—after that legislation has been passed—that we probably will not. In those circumstances it is important that we ask whether what we are going to do is needed.
The noble Lord, Lord Macdonald, made some very important points about evidence gathered and the basis on which we secure prosecutions and convictions for people who are now serving sentences. Is it absolutely true that this kind of communication is the missing link, right now, in preventing terrorist actions being successful? The noble Lord, Lord Carlile, raised the issue of the two ladies who are married to the two men in France and were communicating with each other, how we did not have those data, and how, had we had that information, it might have provided the missing link that alerted the French security services. I, for one, am not convinced. Sisters-in-law spend hours gossiping to each other all the time. I am not sure that that would have been the moment when the bright light came on to say that a terrorist act was going to be committed—because two women married to two men are speaking to each other.
The gathering and retention of these data is for the purposes of national security. Again, noble Lords, or the Minister, may be able to clarify what this means. I was talking to the noble Lord, Lord King, earlier, about the definition of national security as it relates to this amendment, or part of the Bill, and we could not find such a definition. Perhaps somebody could bring one to my attention. However, for the purposes of national security something that could be interpreted as very wide and broad, and which could change depending on the political persuasions of Ministers at any time, is a very wide provision and so requires consideration.
I hear the point which has been made: “We do not have the time”, but I also think that our security services have, through the number of plots they have foiled up to now, shown that they are able to operate within current constraints and keep us safe. While we need to give them more power, over time, to make sure that they continue to keep us safe, it is important that those powers work and are needed by the people who are an essential element of our fight against extremism and terrorism.
I am grateful to the noble Lord, Lord Evans of Weardale, who, in many meetings, used to be the biggest voice of reason on these issues. He spoke of the amount of support and co-operation that was received from the British Muslim communities in the fight against terrorism, and how that was an essential element of ensuring that we were kept safe. I speak as somebody who has been on the receiving end of what could be described as profiling or as a general concern about keeping us safe. I probably get more random checks than many Members of this House and my husband is never going to catch an internal flight in the US. He never arranges a meeting on the day he arrives in the US, because he knows he is going to miss his first internal flight. It is, therefore, important that whatever powers come into play are effective, and that they do not send out a general sense of alienation among those communities which we need to keep on board. I made that point in my piece at the weekend, saying that we must seriously look at how the Government start to engage in a much broader and deeper way with the British Muslim communities, who are going to be part of the solution.
A recent radio phone-in asked whether, if your husband, wife, partner or “relevant other half” asked you to hand over your mobile phone to him or her right now so that they could look at absolutely everything on it, you would be prepared to hand it over immediately. Or would you think: “I probably need to delete a few things from this phone before I hand it to them”. Perhaps that is a question that we should all go away and think about. If we cannot just hand things over to those whom we consider to be our “relevant other halves”, knowing that our data are completely safe with them, although there may be consequences, then we should be much more careful about handing over that power to government—the different colours of government—who could, over time, go into realms that we would not want them to go into.
My Lords, this has been a long debate with some powerful and informed speeches. I take issue with one thing that the noble Lord, Lord King of Bridgwater, said at the beginning of his comments. I think he was referring to something that had been said to him about this being an unacceptable use of parliamentary time. I totally disagree. In fact, my criticism is that we do not spend enough parliamentary time discussing issues that are of primary importance to both our security and our liberty and to finding the balance between them. Your Lordships’ House has enormous expertise, interest and experience on these issues, which this debate has shown very clearly.
Whatever one’s views on specific amendments, it has become clear that the general view is that legislation is being outpaced by the speed of change in technology. We have had a serious and very thoughtful debate today about the balance between security and privacy in what our security services and police require, and how we can legislate most effectively from an informed position, with public understanding and consent. Technology changes rapidly. That means that we, as parliamentarians, have to respond to those changes and ensure that legislation meets the challenges that those changes bring.
Last July we brought in emergency legislation, the Data Retention and Investigatory Powers Act. My noble friend Lord West referred to a six-year delay. Some of the points he was concerned about were brought forward in that legislation, which was due to a European Court ruling that struck down something that we had put in secondary legislation rather than primary legislation. We were able to address that in DRIPA—as it is affectionately known—and we supported that Bill to ensure that the existing capability was maintained. However, we were then highly critical of the Government's use of the fast-track procedure, as they had ample opportunity to bring that legislation before the House sooner. We said then—and it was very evident—that an ad hoc, piecemeal approach to such serious and important issues using fast-track processes was unacceptable.
At our instigation all parties agreed on a thorough statutory review, to be undertaken by the Independent Reviewer of Terrorism Legislation, David Anderson, into the capabilities needed to meet changing technology, and on the oversight and the safeguards that are necessary to ensure that any legislation is both necessary and proportionate. In addition, the Intelligence and Security Committee is examining how we can properly balance both security and liberty in online communications.
However, a theme of this debate since we started it is the question of where the Government's plans to tackle this issue are. Over two years ago the Government withdrew their Data Communications Bill following serious criticisms from the Joint Committee of both Houses which had been set up, and was chaired, as we have heard, by the noble Lord, Lord Blencathra—a highly qualified committee of parliamentarians, including future and former Ministers. I reread this report over the weekend. The committee’s criticisms of the Government’s Bill were serious and far-reaching: the Bill’s provisions were too sweeping and too broad, it paid insufficient attention to privacy issues, and it went much further than it needed to. The report criticised the safeguards and the definition of communications data, and it was highly critical of the Government’s analysis of the costs and benefits, describing some of the figures as “fanciful” and “misleading”. It was also critical of the additional personal powers provided to the Home Secretary. That is very serious criticism.
At the same time, the committee was explicit about its necessity. The noble Lord, Lord Blencathra, in his powerful contribution, quoted it. It said that,
“legislation which will provide the law enforcement agencies with some further access to communications is needed”.
The committee suggested a more balanced proposal to be brought forward for consideration and recommended improvements to the Bill. As the noble Lord, Lord Blencathra, said, that information would be presented to Parliament and it would be for Parliament to decide that balance and where the line must be drawn. But that was over two years ago, and the Government have not brought forward any further proposals to give Parliament that opportunity to decide. Last week the Home Secretary told the other place that she had accepted the recommendations, but we have had no explanation as to why she has not come forward with revised provisions other than the limited measures in this Bill and those in the 2014 DRIP Act.
Now, as the general election looms and despite the excellent work of the Joint Committee, the Prime Minister and the Home Secretary have started to speak out about the need for new powers but have not produced any evidence to Parliament, have not initiated a serious debate on the detail, and in more than two years have not produced, so far as I am aware, a new draft Bill. But we have heard today that there is a draft Bill. The noble Lords, Lord Blencathra and Lord Armstrong, have seen it, but has anyone else? Has the Minister seen the draft Bill, which apparently the Government have sitting on the shelf?
I say to those who want to characterise this debate as being about either those who care about security or those who care about liberty that they are doing the public a serious disservice. I really do not like the term “snooper’s charter”; the issue is bigger and far more serious than that. The police and our agencies need the capacity to capture intelligence information that will foil terrorist attacks. They need to be able to respond quickly to identify, for example, the last known location of a missing child or a murder victim. They need to know who sends abusive images of children, and they need to monitor potential terrorists. They also need to build their capability to tackle online fraud and cyberattacks, which are escalating all the time.
Some of the tools, particularly in relation to the retention of communications data, are controversial and cause concern. If we want the public to support such powers, we need to provide more information about why they are needed, how they will be used and how privacy will be protected. That is why we have to be prepared to have an open and honest public debate about the framework, the principles and the safeguards to ensure that these powers cannot be abused. Obviously such a debate has to be sensitive to the necessity of not exposing intelligence capabilities and should recognise the fact that some details must remain secure so as not to endanger national security or criminal investigations. Any legislation has to be necessary and proportionate, and it has to strike the balance between security and liberty. It is not an either/or. The public are entitled to expect both, and they are entitled to expect us to determine that balance from an informed position.
It is widely accepted that there has been a technical revolution in how we communicate and that the law and the oversight framework are now out of date. We need to understand how far and how quickly new technologies are outstripping the legal framework. We also need to understand how the use of new technologies has blurred the distinction between communications and content, as well as between domestic and international communications using mobile phone and tablet apps. The last debate we had on this in your Lordships’ House showed that many noble Lords are still confused about the difference when communicating through web apps. The noble Baroness, Lady Lane-Fox, referred to the challenges posed by the dark web. How many of us here today, apart from the noble Baroness, can claim to have the expertise that is needed to consider all the details of these issues? We need to understand not only the legal implications but the privacy and technical implications.
David Anderson’s report examined the details of issues such as authorisation, access, storage, technical capabilities, checks and balances, safeguards and so on. We are clear that following both that report and the report of the Intelligence and Security Committee, the Government must take action. Indeed, there is a time imperative to do so before the DRIPA provisions expire in 2016, at which point new legislation must be in place and fully operational. The Counter-Terrorism and Security Bill introduces further measures to address the issue of identification of a device that is used for communications at an IP address, given that in many circumstances multiple users will be sharing the same IP address. We support those changes. We have been clear that we are willing to work with the Government to discuss capabilities and safeguards, the powers that are needed, and the checks and balances that are required to ensure that the detail between protecting our liberty and protecting our security is right, and we want to engage the public in that debate.
But the Government have not initiated that debate. They have had the opportunity to do so, and apparently the legislation for that is on the shelf in the Home Office, gathering dust. That is why noble Lords have tabled their amendments today. However, what they have been unable to do in the time available and without access to the resources and information of government is what the Home Secretary has promised, and that is to adapt the original proposals to take account of the concerns and criticisms of the original Bill. I appreciate that the noble Lords have made the judgment, which is justified in part, that people are more accepting of measures that deal with terrorism and serious crime. However, when we look at some of the detail and examine the report of the committee, we can see that there are a number of other issues to which the attention of the Committee should be drawn.
Interestingly, one of the criticisms in the report was not of the purposes of the Bill, although the noble Lord, Lord Blencathra, did say that the number of organisations that can have access should be limited, but of something that goes much deeper. The Government’s view was that wider powers may be needed in the future, but the committee rejected the notion that Parliament should grant powers on the precautionary principle and thus without a current and pressing need.
I will not go into the detail about the individual clauses before us today because other noble Lords have spoken about them, but it is clear that they have not been able to take into account the recommendations for changes made by the Joint Committee. Perhaps I may mention just one because it raises a serious issue. In the detail of the amendment before the Committee today, no provision is made for the recommendation of the Joint Committee that any legislation should provide for the wilful or reckless misuse of communications data to become a specific offence that is punishable, in appropriate cases, by imprisonment. That is a recommendation of both the Justice and the Home Affairs Select Committees of the other place. Although if passed these amendments would be returned to the Commons, they have not been properly discussed and debated. This is complex and detailed legislation that requires proper scrutiny and expert advice. To have such clauses in fast-tracked legislation whose Report stage will be taken next week makes that difficult.
I have already referred to the assessment being undertaken by the independent reviewer, David Anderson. His review needs to address the serious points that have been raised by the noble Lords, Lord King, Lord Blair and Lord Carlile, and my noble friend Lord West. He also needs to deal with the points raised by the Joint Committee more than two years ago. We insisted on that statutory review and all three parties supported it. It is extremely unfortunate that we are in a position today where the Home Secretary has made no proper public or parliamentary response to the Joint Committee on the independent review, which was started just last summer at our instigation and where currently we have no proper process for consultation or the detailed scrutiny of proposals. That was yet another complaint of the Joint Committee.
The noble Lord, Lord Condon, talked about a road map. The Government need to set out a proper process for this. We need to see detailed legislative proposals from the Government, along with a summary of the capabilities and the safeguards to take account of the issues raised last time. We need to ensure that the measures are sustainable and enjoy broad public consent, otherwise we will undermine confidence in the vital work that the agencies do, and companies whose co-operation is needed will find themselves under pressure from their customers to find ways around the legislation. So although we do not think that these amendments are the right ones—I think this was acknowledged by the noble Lord, Lord King, who spoke of the amendments that he would be prepared to incorporate for the Joint Committee report—because they do not fit into a wider government process, we do think that this is an extremely serious debate. I look forward very much to the Minister’s response.
My Lords, this has been an extremely good debate, and in that spirit the actual sequence of events here is worth considering for a moment.
The Government brought forward the Bill currently before the Committee seeking a broad, cross-party approach to these matters. I and the Home Secretary are grateful that the Opposition agreed to the semi-fast-tracked procedure and a shortening of the intervals between the various stages so that it could make its way on to the statute book and thus give the security services and the law enforcement agencies the extended powers which they have been seeking. These include the temporary seizure of passports, temporary exclusion orders, the right-to-carry schemes on the air side, the IP addresses that we have been talking about, as well as the Prevent strategy measures. Basically, in approaching this, we have tried to listen to the various bodies that have spoken to us. We have listened to the views of the Independent Reviewer of Terrorism Legislation, and we have brought forward the legislation which is now before your Lordships’ House.
Going further, we of course recognise that the Regulation of Investigatory Powers Act, as was mentioned by several noble Lords, is something that is desperately in need of review. People recognise that. The world has moved on since the year 2000. There is a real fear that the pace of technology, in the phrase of a number of noble Lords in this debate, is outstripping the legislative and security capabilities of our country to keep us safe. That is the context in which we find ourselves.
His seven years’ experience there, as the noble Lord tells me, and seven years as chairman of the Intelligence and Security Committee add additional weight to what the noble Lord says. We will listen very carefully to what has been said.
There does not seem to be much doubt about the threat that is faced. The threat that we face was very eloquently put in a number of contributions: the noble Lord, Lord Macdonald, talked about the evidence used in real convictions; cases of communications data were given by the noble Lord, Lord Evans; and some practical, real-life examples were given by the noble Lord, Lord Blair. There are some very strong arguments that show that there is a need for us to look again at communications data.
Then of course we heard from my noble friend Lord Blencathra and we heard from the committee which reviewed the original legislation. It is important to get on record that elements of the original draft Bill considered by the Joint Committee are contained in this Bill. The IP resolution element was something that was in the draft Bill. It is not something that has been shelved; we felt that we could bring it forward with the necessary safeguards and it was brought forward. The noble Lord’s hesitations and questions very much remain, and we are very much committed to working with him and will seek to address his particular concerns.
I want to come back to the point that the noble Baroness, Lady Smith, mentioned. I preface these remarks—context is all with this—by saying that, first, we have to get a message out to people that we are talking about, in all of these things, the actual communications data and not the content. The content of the data will rightly require, whether it is an e-mail or a telephone call or an envelope, a warrant in order to be looked into. What we are talking about is tracking the communications data.
In the Data Retention and Investigatory Powers Act, which went through last year on a fast-tracked basis, Section 7 of that relatively short Act provides that:
“The Secretary of State must appoint the independent reviewer of terrorism legislation to review the operation and regulation of investigatory powers. … The independent reviewer must, in particular, consider … (a) current and future threats to the United Kingdom … (b) the capabilities needed to combat those threats … (c) safeguards to protect privacy … (d) the challenges of changing technologies … (e) issues relating to transparency and oversight … (f) the effectiveness of existing legislation (including its proportionality) and the case for new or amending legislation. … The independent reviewer must, so far as reasonably practicable, complete the review before 1 May 2015”.
If we had such a review from David Anderson before your Lordships’ House at this point, that would be of immense benefit in reaching these judgments. Your Lordships have touched on all the areas on which the independent reviewer has been asked to undertake a review and report. Those are the pertinent issues which have concerned Members who have spoken in this debate.
In the view of the Home Secretary, in the view of the Prime Minister and certainly in my view, the case is made for a communications data Bill to come forward. The noble Lord, Lord Condon, asked us to set out the clear road map as to how we were actually going to proceed. The road map has already begun. It began with the data retention elements in the Data Retention and Investigatory Powers Act last year and it continues in the counterterrorism Bill which is before your Lordships’ House. As a result of that legislation, it will require action once the report from the Independent Reviewer of Terrorism Legislation is received. In reality, that will probably mean that, very early in the new Session of Parliament, the House will have to turn its mind to this. Certainly, it is the absolute intent of the Prime Minister and the Home Secretary that it should do so as a matter of urgency.
Some people have said that that will necessarily take a year, or a year and a half, to the period of the sunset clause, but we do not anticipate that it will be necessary to take that long at all. In fact, as far as this counterterrorism Bill is concerned, which is perhaps a wider measure as far as others are concerned, we have managed to move this through, albeit at pace, but it will still have gone through scrutiny in a period of, say, three to four months from its introduction in the other place to its receiving Royal Assent, should your Lordships choose to pass the Bill.
So our position would be one of being deeply appreciative to my noble friend for introducing these amendments and of being particularly grateful for the quality of the debate and the contributions—
I apologise for interrupting my noble friend, who is giving a most helpful speech, but can he confirm that David Anderson will be shown a copy of the draft Bill which met the approval of the noble Lord, Lord Blencathra, and can we please see a copy?
I can certainly say in response that a copy of the Bill will be, if it has not already been, made available to him. It would be unthinkable for him to undertake this review into this serious matter without actually having sight of it. So I will certainly put that on record as the government position. As to our ability to share it more widely at this stage, I would be grateful if I could come back to the noble Lord on that when I have an opportunity to check—
I am sorry to interrupt again, but can my noble friend confirm that, in coming back to us, he will do so in time for us to be able to consider tabling further amendments to this Bill?
That is a more difficult question, which I am sure is why the noble Lord has pressed me on it. That is not something I feel able to give a commitment on at this stage. However, he is certainly right to put his finger on the point that we have someone there in David Anderson, the Independent Reviewer of Terrorism Legislation, whom we have charged in statute with a particular responsibility. Of course he should have sight of all information which would be relevant and pertinent to the requirements that we asked him to undertake on our behalf last year.
I note the Minister’s response to the noble Lord, Lord Carlile. Can I ask for an assurance that the Official Opposition will also be given sight of the draft Bill? When we return after the election, whichever Government are in power, they will want to start work on this immediately. It would help if all sides of your Lordships’ House and the House of Commons had access to the detail of the draft Bill.
The noble Baroness will perhaps understand if I need to just check with people on a slightly higher pay grade whether that is a commitment which I can make. I will certainly look at the issue with regard to the independent reviewer. I will certainly give an answer by Report to the very reasonable question which has been put forward.
A number of questions have been addressed in this debate, but I am conscious that we have spent considerable time on it. I will give an undertaking and say that this is not something that we want in any way to be seen to be distancing ourselves from. We want to put it under active review, and it is under active review. The contributions which have been made in the debate this afternoon on these amendments have afforded us an opportunity to air these issues and to identify where the gaps in agreement are, as well as where the gaps in capability are. We will reflect on those. I may have more to say at Report on that, but in the interim—
I do not want to delay the Minister, but let us not beat about the bush. I do not speak for anybody other than myself, but I listened to every single speech, and those opposed to these amendments seem to be in favour of them being amended in line with the views of the committee that looked at the draft Bill. Will the Minister go back to the Home Secretary after this debate and make the request on behalf of this House for us to see, if not the draft Bill, the amendments to the amendments by Wednesday or Thursday this week, so that this House can make its mind up as to whether or not it wants to debate them and ask the other place? At the end of the day, Parliament has to decide but, as he knows, we are up against a time limit. Will he go back and say to the Home Secretary—these need not be his views, as he can just say he is the Minister with the message—that the House has asked whether it can see this information in time to do something with it?
My Lords, before my noble friend responds, and without making any comment about whether we should or should not be shown things, I do not think it is appropriate to characterise all the opposition to these amendments as solely being about the way in which they have been put. My noble friends have made points of principle which we should not ignore.
I also acknowledge the noble Lord’s experience as a former Minister—I am surrounded by former Home Office Ministers and Security Ministers in this debate. The specific point is whether there could be further provisions. The noble Lord says we should not beat around the bush. The issue here is that we are contemplating measures at a fairly late stage in a Bill which contains a number of measures which we desperately want to make sure get on to the statute book. We do not want to risk this Bill and all the provisions in it at present, as we think they are vital. In fact, we consider that they are more vital than the simple addition of these amendments—as desirable as we may see them individually—to the Bill. We do not want to do anything which would jeopardise the process. There has to be a recognition that the other place—I am sure the noble Lord, as a distinguished former Member, would recognise this—would feel that it was being required to look at 21 amendments, running to some 19 pages in a 53-page Bill, on a fast track and with ping-pong between the two Houses on consideration of Lords amendments. It might feel, rightly from a constitutional point of view, that that would be a difficult thing for it to agree to. I am simply airing the issues.
The noble Lord asked specifically whether the draft Bill which has been shown to the noble Lords, Lord Blencathra and Lord Armstrong, can be shared more widely. I have undertaken to the noble Baroness that I will go back to the department and discuss that, and I will certainly come back with an answer as to whether that is possible. However, for the reasons which I have articulated—while recognising and appreciating the spirit in which these amendments have been put forward, which we absolutely share—I ask the noble Lord to consider withdrawing his amendment at this stage.
My Lords, I thank the Minister for the way in which he has responded to the long and very important debate that we have had on these amendments. It was a model ministerial reply, for which I am extremely grateful, particularly at the last minute.
Nobody would accuse the noble Lord, Lord Rooker, of ever beating around the bush, and the directness of his approach to the Minister was extremely helpful in elucidating one point, as to whether this would possibly jeopardise the other Bill. A senior and distinguished former holder of the office that the noble Lord, Lord Evans, held said to me that she thought that this amendment was more important than all the measures in the Counter-Terrorism and Security Bill. The Minister has advanced the alternative view—so obviously views can differ on that—but I do not think that we should underestimate why we are doing this Bill at all on a fast track, which is down to the recognition by the Government of the seriousness of the threat that we face. There is no question but that the situation has changed very significantly indeed and we are suddenly aware, in a way that we were not perhaps even six months ago, of the gravity of the threat. Nobody in this House has any excuse for not knowing what “severe” means in the threat level that was introduced by the Government a little while back: an attack is likely, if not necessarily imminent. That is what we are facing up to today.
I thank all noble Lords who contributed to this very important and very difficult debate. I entirely endorse what the noble Baroness, Lady Hamwee, said. I respect entirely the views of other noble Lords, who are desperate to protect civil liberties, privacy and the ancient traditions of freedom in this country. All that is very important indeed. The Minister referred to my previous experience, and what I do know is that the moment you get a terrorist outrage is when all the wrong things are decided. The pressure comes on that something has to be done, and it is much better to have decided in advance what you are going to do, in a measured way. Otherwise, whatever people say about privacy, the rights of the individual, freedom of speech and all those things, if there is a serious outrage, the criticism then will be: “Where are the security services? Why has Parliament not done its job? Why have they not got what they need to meet the situation?”. It is common ground in the current situation we face, I think, that there is a serious threat, because two things have happened: the threat has increased very significantly and, at the same time, technology has galloped forward. We are very fortunate to have the noble Baroness, Lady Lane-Fox, in the House. She illustrated just how grave that threat is from the new technologies. I do not begin to understand the dark cloud, but those are the threats that we may now be facing.
The intervention by the noble Lord, Lord Butler, was extremely helpful. He said one thing which I would rather like to repeat: I think some people have criticised the criticisms of the amendments that we have tabled. I did that myself; I was the first to say that these are the only ones we could table because they are in the draft Bill, but we know that it is within the Government’s capability to actually insert improved amendments and clauses which would even pass the scrutiny of my noble friend Lord Blencathra and the members of his committee.
The challenge we all face in this very difficult situation, with this awful evil of terrorism that is imposed on us, is to strike a balance between liberty, security and privacy in a civilised, democratic society. It is not just me saying this; I quoted those distinguished Members of another place as well, Sir Malcolm Rifkind and Jack Straw, who have supported the position we are aiming for from the offices that they held. Of course some people say they are just all the securocrats, but what you will find about securocrats is that sometimes we know a little about it. Sometimes we know what some of the problems are when you try and improve security or some of the problems you get when you fail to improve security.
I think the discussion we have had today has been very helpful and worth while. We have Report coming in a week and we must think very carefully about where we go. One thing I say to the noble Baroness, Lady Ludford, who said we could have a report by May, is that of course in May we have the small matter of a general election. This House is rising late in March. I notice the Minister’s optimism that once we come back, depending on who is in government, this could be whistled through. Realistically, if the opportunity that this Bill gives us is missed—and it is completely within the scope of this Bill to make these provisions—we are going to have another year in which we put our nation at risk, when terrorist outrages could be prevented if the security forces and the security agencies had the support they need. There have been a lot of tributes to the security agencies here and in this instance, with the threats that they face, I believe that the balance comes in favour of ensuring these additional abilities to deal with the new technologies which the out-of-date RIPA arrangements do not provide; I believe we need to look at this very seriously. In the mean time I beg leave to withdraw the amendment.
To ask Her Majesty’s Government what assessment they have made of the future position of museums in regional areas, in the light of the withdrawal of national funding from 2015-16 onwards.
My Lords, I am grateful for this opportunity to bring to the attention of the House the plight of museums in general and the People’s History Museum in Manchester in particular. I need to declare an interest. I am chairman of trustees at the People’s History Museum.
These are difficult days for museums and for other arts and cultural organisations. One in 10 museums is considering selling parts of its collection and more than half have cut staff. Funding bodies, be they local authorities, national government or universities, are feeling the cold blasts of austerity. In 2010 the Department of Culture, Media and Sport announced that it would identify options for relinquishing control and sponsorship of certain museums which could in future be regarded as the responsibility of local communities. It was the wish of DCMS not to leave any museum on this list high and dry. The People’s History Museum in Manchester was on that list, and we have been feeling high and dry.
Today—quite by coincidence—the DCMS has notified the director of the museum that it will provide the museum with £100,000 for 2015-16. This is a welcome move by DCMS and the Government, and with our fundraising it secures our future for 2015-16—but it still leaves unresolved the following question which is high in our minds. Why is the People’s History Museum the only national museum without secure future income streams? What happens in 2016? Even this year, by the way, we have lost £50,000; currently we receive £150,000 from DCMS. The campaign to establish a proper recognition of the People’s History Museum as a national, not a regional, museum goes on. We have a breathing space but we do not have the answer.
Why is the People’s History Museum important and why should it be of central interest to this House and to Parliament in general? The museum tells the inspiring story of the struggle of working men and women to win the right to vote. Not, I think all noble Lords will agree, a local or a regional issue. Not a Manchester or north-west issue, but one which embraces the whole of the UK. Indeed the need, the duty, the privilege to vote is a vital contemporary message in this era of low turnouts and apathy about politics.
Judging by the number of hits he received on social media, Russell Brand’s statement on “Newsnight” that he does not intend to vote attracted an astonishing amount of support, especially among the young. To combat that cynicism, we should tell the story at every opportunity of how the universal franchise was won. The story—familiar to many in this Chamber—ranges from John Wilkes and Tom Paine, through the abolition of slavery and the Peterloo massacre, the Great Reform Act, the Chartists, the Corn Laws, the emergence of trade unions, Gladstone/Disraeli debates, Labour’s origins, the suffragettes, and the founding of the welfare state. The story is told with wit and flair and attracts increasing numbers of visitors—more than 100,000 last year.
Importantly, the museum also houses the rich archive of the Labour Party; the Conservative Party archive is at the Bodleian, by the way, and the Liberal Democrat one is at the LSE. The Labour archive rather reflects the fact that Labour did things in a more bureaucratic way than either the Conservatives or the Liberal Democrats by writing documents, taking minutes and having collective files rather than individual, personal ones. It was described by Matthew Parris in the Times as a “treasure trove”—and it is. It is all there and there is some terrific material.
The museum also incorporates the National Museum of Labour History, which started in London, and has a glorious collection of old union banners and memorabilia of all the great struggles of the Labour movement over 150 years. But now the PHM looks set to lose at least some of its national funding this year and all of it after 2016. It is not the only museum being threatened in some way or other because many, as I have mentioned, are having a hard time—but some have found ways to maintain DCMS funding. Some have allied with one of the great London museums; for example, the Museum of Science and Industry in Manchester has linked up with the Science Museum Group in Kensington. The Horniman Museum in south-east London—near where I live—has managed to keep a direct line to DCMS funding.
The PHM does not have obvious national partners. We have tried the British Museum and the British Library, but both have problems of their own. We would feel like orphans in the storm were it not for the solid support of the Association of Greater Manchester Authorities, which provides marvellous support—as do the TUC, trade unions and the Heritage Lottery Fund, which has given substantial help with our new and impressive buildings.
To be fair, Ministers have been reflecting on how to help and have now done so to a degree, but the hesitation and the absence of a longer-term settlement are feeding the view that there is an anti-northern bias within the Government when it comes to the arts—and an anti-Labour one, too. Why are we to be left in the cold when others, including the prestigious Bodleian and the LSE, receive regular national help with their funding?
The PHM focuses primarily on the right to vote and trade union history, but it is neither sectarian nor tribal. William Hague, Charles Kennedy and Matthew Parris have opened exhibitions. In the current, successful “Sponsor a Radical Hero” campaign, Margaret Thatcher, controversially, and Winston Churchill and Lloyd George, rather less so, have been sponsored—and they, and others, will be honoured with a plaque on the wall in the museum alongside the name of the sponsor. Other Conservative and Liberal Democrat leaders remain open for sponsorship, so roll up and see me afterwards, and I will fix a good price. I am very grateful to a number of my noble friends for sponsoring their own radical hero. If any other noble friends are interested, perhaps they could see me afterwards.
The right to vote is a precious privilege. As Jack Jones, my predecessor as chairman of the trustees, often said, the right did not fall off the Christmas tree. It had to be fought for, and people died for it. Indeed, when we consider the queues in polling stations in new democracies, such as in post-apartheid South Africa or more recently in Afghanistan and Iraq, there can be no place for cynicism about democracy. I hope that Ministers fully share this view and understand the role of the PHM as part of our country’s role in bringing democracy to the world.
I hope that Members of this House will reflect on the fact that in the march towards universal suffrage our predecessors were usually the bad guys huddled on the wrong side of the battle, defending privilege and unsatisfactory status quos. They fought long and hard against the abolition of slavery, for rotten boroughs and to exclude the rising middle classes of the new industrial cities. Then they were against democratic rights for working men and then women. Tonight there is a chance for some collective redemption, a chance to join the right side of history for a change, by sending a strong message that the story of the British road to democracy as told by the People’s History Museum—a national museum in Manchester, not a Manchester museum—its collections and its messages should be honoured and supported. I urge the House to send that message.
My Lords, I am very grateful to the noble Lord for introducing this debate. I have three minutes, and I will speak about the Bowes Museum, another museum in the north. It is among the two or three largest regional museums in the country. It is acknowledged in James Stourton’s definitive book as holding extensive collections of the finest quality. It is in Barnard Castle, County Durham. Its iconic mechanical swan is its mascot. I was for nine years chairman of the trustees. Now I am a fundraiser and donor, so these words are my personal views, not the museum’s.
Failing finances have caused changes in governance. The most recent was 17 years ago, when County Durham was trustee and manager. The county judged that it was unfair to expect it to finance so large a museum. As a result, the present private trust was set up, with County Durham as the core funder providing 25% of revenue expenditure. All went well for 10 years. The enormous building was repaired, much was done to the collections, and an excellent café and shop were established. The number of visitors rose from 65,000 to 120,000. We were looking forward to an exciting future. Unfortunately, things changed in 2010. County Durham, again judging that its commitment to the Bowes was too great a burden, began to lower its core grant year by year. It is now down from 25% to 15% of a reasonable budget. Anything less than £2.5 million will leave the Bowes operating far below its potential; 25% of £2.5 million is more than £600,000, whereas the museum expects less than £400,000 this year.
Meanwhile, the Bowes has increased its income and raised money from charitable trusts and from Arts Council-sponsored programmes. It is a Catalyst participant and has crowdfunded through Kickstarter and Art Happens. None of this has cured the shortage of curators. Nothing much can be done without curators. Unless there is positive action the Bowes will become becalmed, and the threat of a change in governance will re-emerge. The outcome is likely to be a return to the county. Nobody wants that. The DCMS could accept that the Bowes be nationally supported. A grant of £600,000 a year—which is very modest in relation to other DCMS obligations—would transform the position. It has always been difficult to see why the DCMS has not tackled the question, “Is it reasonable to expect County Durham to be the sole core funder of the Bowes?”. This question is urgent and needs an answer. I trust that my noble friend will agree that discussions and action are needed.
My Lords, I am exceedingly grateful to my noble friend Lord Monks for raising this issue. I rise for two reasons. First, I had the privilege of having a tour of the People’s History Museum and I was exceedingly impressed by the contribution that it makes. It made me reflect upon the situation that we find ourselves in in London. We are so privileged to live in London. We have access to some of the finest museums in the world, and we have free access to them. That is a great privilege. It certainly contributed to some of my autodidactic education, when I visited the British Museum on a regular basis and a number of the national galleries. The plea that is being made is very reasonable.
Secondly, my noble friend made the point that the People’s History Museum focuses on national issues: the right to vote, universal suffrage and the history of the Labour movement. The Government have said that they recognise the importance of strengthening the regions. In the other place, the Chancellor talked about extending rail networks in the north. In my view, this is just as important an issue in relation to the well-being of people who live in the north-west as in relation to its national contribution. I hope that the Minister will take that point into account when he replies. How do we recognise the cultural contribution that regional museums make and the importance of them engaging with local schools and colleges, which the People’s History Museum does? How important do we rate that in ensuring that the museum has a viable future?
My Lords, I thank the noble Lord, Lord Monks, for securing this important short debate. I come at it from two perspectives. My base and my home are in the north-east of England, the location of many of Britain’s finest museums, Bowes being just one among a number, all of which are in some difficulty or other due to the current funding position. Secondly, I am the former deputy general secretary of the Labour Party. As noble Lords heard from the noble Lord, Lord Monks, earlier, the party’s comprehensive archive is located there—and, if for no other reason, the People’s History Museum is definitely worth a visit from noble Lords.
The analysis of the current funding of museums leads to a number of common themes and threads. First, on all museums and galleries there is a significantly increased force of self-reliance on income generation. That is not necessarily a bad thing in itself; all manner and means of securing additional income are important. However, it is not in any way going to substitute from the core funding of such institutions. Secondly, there is a massive increase in dependence on benefactors. To follow up the point about the privileged position referred to earlier, London benefits—in proportion about 70% to 30% in terms of benefactor income to galleries and museums compared to the rest of the country. Thirdly, there is an erosion of lottery funding, which is seeping into core funding outside of its added value original concept, its purpose being not to substitute core funding but to supplement and add value in all aspects of cultural life across Britain. Fourthly, there is a widening gap between the imbalances of funding available to and in London and in the rest of the country.
Since the end of the 20th century, lottery funding has benefited Londoners by about £142 per head compared with about £45 outside London. Additionally, local authorities outside London have provided 32% additional income to arts funding grants, as opposed to the 6% added additionally within London. The overall figure per capita inside London is about £65 per head of arts funding, compared to £5 per head across the rest of the UK. Those imbalances grow year on year. Then, of course, there are additional hidden costs and subsidies to cultural life in London, such as the cost of travel to London, the use of hotels, restaurants and other facilities when people increasingly visit London as opposed to the rest of the country—and the imbalance is further compounded.
Austerity is biting and will continue to bite year on year, particularly outside London, which will have a worsening consequence for the regions of England year on year. The imbalance is evident and the Government need to examine it and come up with a plan for action as to how they will go about restoring the balance back to the rest of the country compared to London. As a last resort, museums and galleries have been forced to sell off precious items, which should be stopped through government action.
My Lords, the noble Lord, Lord Monks, surprised me in his opening remarks by describing the Liberal Democrats as not being bureaucratic. That is something that I have never heard them accused of before, although the Liberal Party may have been able to stand up for itself—but I thank him for that.
When the noble Lord talks of the importance of regional museums, or museums outside the centre of London—the first megacity, and the one that dominates our transport structure, which things go in and out of, making it easier than actually travelling across the country—he is, of course, right. There are good reasons for this historically, and we should be trying to change it where we can. However, we are where we are, and I for one am not going to suggest that the National History Museum is moved. I do not think that many other people would either. Indeed, if the noble Lord would care to try it, I would quite like to watch, because it would be a pretty good show. But the regional structure should be seen as underpinning the rest of the museum service—the creation of local history and local knowledge, no matter where that national museum is based. This is a very important resource, and we must try to make sure that it feeds in.
I am sure that in the People’s History Museum there is some very interesting stuff about agricultural workers and their attitude towards the vote, different from workers in earlier unionisation—and how that would tie into different practices in regional museums in my part of the world, Norfolk. There would be a different structure and dynamic there; all of them are required to make the whole work properly. So I suggest to my noble friend that it is vital that the Government take this on board and look at it as a whole.
Let us be perfectly honest. When I looked at funding, I was astounded at the number of potential sources. There are two lottery funds, five different ones from Europe that I found—I gave up after that. Then there is the National Trust and there are local authorities. I could go on for quite a while on this, but there are lots of them. How on earth can a smaller museum under a stressed bureaucracy and a stressed service, looking after curators, get the best out of these streams? It is not surprising that those at the centre with better resources will get more. What steps are being taken to make sure that all local museums have access to the national funding available for museums? That is something that goes across parties and Governments—that with these divergent streams, the best should get more.
I have talked about sport on many occasions. We discovered in the early stages of the lottery that tennis clubs did rather better than football clubs for resources. If you have the people there and the resources to fill out the forms, you will do well. Please can we bring this together and look to get the best out of it? The noble Lord has put his finger on a problem that has been there for a long time.
My Lords, I thank the noble Lord, Lord Monks, for initiating this debate. I have pleasure in supporting him.
The issue around the People’s History Museum is essentially a problem of definition, affecting the level of funding. Because it is said that it is not national, its funding is reduced. That seems a bizarre decision to me, quite frankly. How can a museum that portrays the history of the people of a nation not be a national museum? I would like to hear more on that from the Government Front Bench. Some say that the funding is affected because it is in the north. Again, I would like to see the Government deal with that; I cannot believe that it can be true.
This museum is rather special—it talks about the people’s past. It is a young museum, as the noble Lord, Lord Young, said, and a vigorous museum. It is an exciting museum because it tells the story of the people’s history—the struggles in the past of the Chartists and the Suffragettes, and the forming of the trade unions—in a vibrant and accessible way, which is how the story should be told. And it is also, believe it or not, a new story. The history is from the past, but the story is new, because in the past these stories of ordinary people had been hidden from history. Even in my days at school, they were pushed to the margins by kings and queens and other choices made by the ruling class. It is the story of those who have made, built, served, tilled and went to wars, and it is a story that must be told continuously through future generations.
Most interestingly, the story that the museum tells mirrors the story of the museum itself. As my noble friend Lord Monks, said, the museum has only just been born. It was only in the 1970s that I remember personally—as I know the noble Lord, Lord Monks, also can—trade union people in the East End of London going around collecting banners, leaflets and other artefacts to try to build a museum for a history that we had almost lost, because nobody thought that it was important enough to preserve. So those people did us a great service when they put that museum together, and it has gone from strength to strength.
The noble Lord, Lord Monks touched on another important theme—namely, that the history of the parties opposite have their histories safe and secure in Oxford and London. I have no problem with that. The party directly opposite opposed most of the advances that are celebrated in the People’s History Museum. I can forgive it for that. But with its past all nicely and warmly secured in Oxford and in London, would it not be nice, as my noble friend Lord Monks said, to show some generosity to the working classes and make sure that our museum that we want to celebrate and look forward to having a great future has the same kind of support?
My Lords, I join others in thanking and congratulating my noble friend Lord Monks on bringing this debate to the House. The People’s History Museum is a fantastic national and international museum—you can see that when you visit it. Having said that, as a fellow Mancunian, I am very pleased that it is located in Manchester and the north-west, and I think that my noble friend is probably also pleased about that.
At the time that the funding of the People’s History Museum changed, I was the chair of the National Coal Mining Museum for England, which was affected by the same regulations. I make this my first point as I think that it is the source of the difficulties experienced by the People’s History Museum. In 2010, the Government decided that some of national museums—those that were not covered by an original statute—would be funded in a different way. I think that my noble friend Lord Monks described it as the DCMS relinquishing control and sponsorship. If my memory serves me right, every single one of the affected museums was a national museum outside London. The national museums in London were not affected by this provision.
My museum was affected in the same way. It meant that an awful lot of time and effort had to be put into securing a partnership in order to survive. The Coal Mining Museum already had a partnership with the Science Museum. However, the People’s History Museum, which did not have that alignment, has experienced a lot of difficulty. Even in our case, the time, effort, resource and the legal work involved in making that new relationship work was not worth the effort. To tell the truth, the reason it was done was to reduce the number of quangos, because that was the government commitment at the time of the general election. That is not a great episode in the reputational history of the DCMS.
I will make two further brief points. Regional museums, or museums in the regions—whichever way you wish to look at it—are very important. We are very proud of our national museums, which are some of the best in the world, but we now worry about the gap between the north and the south and between the regions and the capital. This is one example of where we have not quite got that right. Regional museums are important not just because they tell a story but because they are part of the cultural fabric of their cities, towns and villages, which helps regeneration, promotes social and cultural cohesion and helps give us a better education service.
Although I applaud the work that the Arts Council has done since it took on responsibility for museums, if you look at the ways that museums now seek funding, for example through grants, you will see that the regions find it more difficult than London. Philanthropy is not as easy if you are a regional museum, and money from local authorities is not as available as it used to be. For all those reasons, regional museums are having a tough time. I am delighted to draw that to the House’s attention in this debate.
The noble Baroness is entirely right: local museums, as I prefer to call them, reinforce a sense of identity and community. I am very sorry that I have not been to the People’s History Museum, but doubtless I can put that right. Naturally, I thank the noble Lord for introducing the debate and wish him every success in maintaining what is clearly a very important national asset.
My love of history, and my inspiration for entering politics, came from visiting the Wilberforce House Museum in Hull as a very young boy—William Wilberforce is my parliamentary hero—and seeing what motivated him to begin his great campaign for the abolition of the slave trade and, later, of slavery. That gave me a sense of local pride, as well as knowledge and determination. Now I have the great pleasure of living in Lincoln—my native county is Lincolnshire—which has two very splendid museums: The Collection, which tells the story of Lincolnshire from the Romans and, indeed, before; and the Usher Gallery, which was given by a local benefactor in the first part of the last century. It was there that I first acquired my love of art when I saw the wonderful collection of watercolours by Peter De Wint, who did so much painting in Lincolnshire.
Now, as chairman of the Historic Lincoln Trust, I see another value of the local museum. Many people do not have the chance to come to London. I paid my first visit to a London museum when I was about 18. Local museums can often borrow items of great importance from national museums and galleries. This was seen to splendid effect last year when the Lindisfarne Gospels went to Durham.
This year in Lincoln, as part of our Magna Carta celebrations, we are amassing a wonderful collection from great national and local collections which will tell the story of some of the great figures in Lincolnshire’s history. It will contain marvellous topographical views and treasures from Lincolnshire houses and churches. If local museums did not exist, one could not stage that sort of exhibition.
I make a simple plea to my noble friend who will wind up the debate. No country can begin to call itself civilised if it does not maintain its great historic buildings and sustain its local museums and collections. That, I hope, is something on which we can all agree, wherever in the House we sit. I end by again wishing the noble Lord, Lord Monks, success with a museum which I still hope to visit.
My Lords, like other noble Lords, I am grateful to my friend Lord Monks for securing this debate on the future of regional museums. It gives me the opportunity to join him in making a plea to the Chancellor and the DCMS to revisit the coalition Government’s 2010 decision to “relinquish control and sponsorship”—or, in non-weasel words, “cut funding”—for non-national museums, as they see it.
Why? Because the policy has ended up directly impacting on just one institution—the Manchester-based People’s History Museum. The other six affected institutions continue to receive public funds, whether directly or indirectly. On the face of it, the change in “sponsorship” arrangements looks incredibly vindictive. What is it about the People’s History Museum that Ministers dislike? Is it because of the museum’s focus on working people’s campaigns for rights in the workplace, equal and fair pay and the right to vote? If that is the case, I cannot think of a worse time to do this, with 100 days to go until the general election—a time when issues such as zero-hours contracts, migrant worker exploitation and the non-registration of poorer voters are all stark reminders that stories of working people’s struggles are as relevant now as they ever were.
The People’s History Museum is not just culturally important, it is economically important and viable. It is an incredibly good value-for-money investment. It raises grants locally, generates commercial sponsorship and donations and gets support from Greater Manchester’s local authorities. Taking away 15% of its budget in one go, when interest and visitor numbers are rising by 10% plus a year, would be a travesty.
It is often said that all history, like politics, is local. We should also celebrate, when and where we can, the work of small local and regional museums. Therefore, I will spend a moment or two reminding colleagues of such institutions and the value they bring to learning and understanding, and regeneration. Back in 1990, as Labour’s leader in Brighton, I inherited a shambolic mess of a seafront, with little vision or idea of its place in what was then sometimes seen as a declining seaside town. That year, as leader of the council, I persuaded a socialist visionary, Andy Durr, to become a councillor once again. He had a plan to turn our seafront around with a mix of public and private money.
Central to this was a “people’s history” of the work and struggles of the local fishing community and its contribution to our city by the sea. That initiative, still developing 20 years on, was clever. Brighton now has a vibrant seafront cultural quarter populated by arts and artisans, quality seafood outlets, galleries, bars and 24-hour basketball. Our city was regenerated and part of its heritage restored—a people’s history rediscovered, reinvented and put to work.
History does not record whether the current Chancellor ever met Andy Durr when he was mayor, but if Mr Osborne had done so he would have learnt the value of investing in living heritage. Just like the People’s History Museum, Brighton’s Fishing Museum is one piece in a larger national jigsaw. Losing one part of that puzzle is not just frustrating; it means that the whole picture misses out and is never quite complete. Removing support from the People’s History Museum will be a loss not only to Manchester and the Labour movement but to our national story.
My Lords, I have a proposal: move the DCMS to Manchester. Some parts of the BBC are up there, it is not the end of the world and the quality of life for X amount of income is higher than it is for many people in London.
I should like to follow a remark of my noble friend Lord Sawyer. There is semantic confusion about the word “regional”, as if something cannot be national if it is in a region. People describe this debate as being about regional museums. I put a question to the Minister: apart from moving the DCMS to Manchester, does he agree that it is nonsense to say that a museum cannot be a national museum if it is in Manchester or anywhere other than London?
I labour this point because the funding criteria are dangerously close to being taken into this black hole of semantic confusion. Those criteria are to do with national museums. Does the Minister think that the criteria are being correctly applied by the DCMS, or is it because senior DCMS officialdom and Ministers are London-oriented and so cannot see that the criteria are being misapplied? The criteria are that if something is not national it receives a different funding flow, yet “national” can equal Manchester.
My noble friend Lord Monks is certainly not just pressing a special case, although I totally identify with it. I pick up a remark by the noble Lord, Lord Cormack, for whom I have the highest admiration; he was for many years chairman of the All-Party Parliamentary Arts and Heritage Group, of which I am proud to be vice-chairman. Now the noble Lord, Lord Crathorne, who lives in Yorkshire, is the chairman. We have the immense privilege of going on visits all around London. It can, of course, be said that the British Museum is not just a national museum but a world museum. London has a total quasi-monopoly of all the greatest national museums, yet even now the number of people living in London is not exactly 80% of the population of the United Kingdom.
I close by quoting Melvyn Bragg—the noble Lord, Lord Bragg—who noted in a broadcast that capital cities should irrigate rather than drain. This is the issue that we have reached in the broader context in this country at the moment: an imbalance in Britain. “Rebalancing our cultural capital” is not a play on words; it means moving the capital.
My Lords, I support my noble friend Lord Monks, and very much welcome his initiative in having this debate on the role of regional museums and his passionate support for the People’s History Museum.
However, I would like to focus on a slightly different issue—not on regional museums such as the People’s History Museum, which ought to be funded nationally, but on the plight of local museums and galleries. The one that is very close to my own heart is the Tullie House Museum and Art Gallery in Carlisle, where I was brought up.
When I was a young lad, the museum was a haven of peace and a window on a much wider world, and it played a very important part in my growing up. Since then, it has greatly expanded and become a wonderful modern museum of border history, Roman history and Carlisle’s history as a railway city. It also has a lot of very good 19th-century art, including some Pre-Raphaelites, and a very good natural history section.
But the financial situation that the museum faces is extremely serious. It is supported by Carlisle City Council, and in 2010 Carlisle was able to afford to give the museum £1.2 million. Under the current financial plan, that support will fall to £750,000 next year, and if the pressure on local authorities gets even more serious, it could fall further. I do not see any way in which a local museum and gallery like Tullie House can survive without municipal support; there simply is no alternative. Tullie House was built in the days when there were wealthy people in Carlisle such as mill owners and factory owners who were able to endow the museum. That is no longer the case in our hollowed-out regional economy, I am afraid. Public support is therefore absolutely essential.
Could I make three quick suggestions? First, the Arts Council must prioritise much more out-of-London galleries and museums. For the big national institutions in London, it is not as though the streets are paved with gold, but there is much more opportunity for obtaining sponsorship. Secondly, the national institutions should support local galleries much more in lending them artefacts and exhibits so that they can have popular exhibitions. Thirdly, the role of local culture and museums in economic development should be recognised in promoting tourism, and in the budgets that are available for economic development, priority should be given to promoting cultural activities in the regions.
My Lords, I, too, thank the noble Lord, Lord Monks, for securing this debate—and what an interesting debate it has been. I am sure that your Lordships will understand that I very much regret the indisposition of the noble Lord, Lord Stevenson, and we very much look forward to his early return.
There are an estimated 2,500 museums in the United Kingdom: independent museums owned by registered charities and other independent bodies; local authority museums, owned by town, parish, city, or county councils; university museums; regional museums; and national museums. The DCMS directly sponsors 16 museums and galleries, 13 of which are national museums—the presence of which spans the country. I know that the noble Baroness, Lady Morris of Yardley, and the noble Lords, Lord Lennie and Lord Lea of Crondall, took us all to task about the importance of museums outside London. I thought it was worth saying that National Museums Liverpool represents a wide range of cultural interest in the area. The Royal Armouries, the Tate, the Natural History Museum and the Science Museum all have sites outside London. The Royal Armouries has sites in Leeds and Portsmouth, the Tate has galleries in Cornwall and Liverpool, and the Natural History Museum has a collection in Tring. In total, DCMS has funded £2 billion for the 15 museums and the British Library over the life of this Parliament.
In addition, the Government also provide funding to museums in the regions through the Arts Council, which is the development organisation for English regional museums, responsible for helping to support museums across the country. The Arts Council directly funds 16 significant regional museums, which are considered to be major partners. These act as examples of best practice in management and curation of collections, and play an important leadership role through partnerships with other museums and galleries in their regions. In total, the Arts Council has funded £200 million in grant in aid towards support of its major partner museums over the life of this Parliament. Partners include the York Museums Trust, Manchester City Galleries and the Penlee House Gallery and Museum in Cornwall.
My noble friend Lord Eccles spoke of the Bowes Museum. I was interested to see that the two museums in County Durham, the Bowes Museum and the Beamish Museum, will jointly receive £2,180,748 over the period 2015-18, for instance. In addition to the major partners it funds, the Arts Council also administers a variety of other grants, including a museum resilience fund worth £10 million in 2015-16. This aims to support a step change for the sector by enabling regional museums to become more sustainable and resilient businesses, focusing on development opportunities across the sector and recognising that excellence and the potential for excellence can be found in museums of all sizes.
A number of noble Lords raised the hugely important issue of benefactors and philanthropy. I absolutely take the point that some London museums have been extremely successful; we want to ensure that this success is replicated across the country. The Arts Council takes its responsibility for supporting museums across the country extremely seriously and balances funding across the whole country. That is very important. A number of noble Lords talked about a lack of balance. All I am hearing at the briefings I get from the Arts Council is that it is absolutely clear about the need to ensure that the regions are well supported. We should also remember the huge contribution made by the Heritage Lottery Fund to support museums and galleries through capital projects and through their various funding streams, which support skills development and acquisitions.
The noble Lord, Lord Monks, rightly mentioned the museum that he has worked so tirelessly for. The fund recently awarded £95,000 of funding to the People’s History Museum, through its Collecting Cultures programme, to enable the museum to take forward its Voting for Change project, focusing on the movements and campaigns for the franchise. Last December, Museums Sheffield successfully applied to the Heritage Lottery Fund for £697,000 to support Weston Park museum’s A Bright Future project. The Government also provide support to small capital projects in many museums through their partnership with the Wolfson Foundation. Most of the funding from that partnership has been distributed outside London.
The Government’s review of non-departmental public bodies in 2010 examined a number of government-funded museums and their continued direct funding from government. As a result of this, it was decided that five museums would cease to be funded directly by DCMS. Of these, the funding responsibility for three was transferred; the Museum of Science and Industry was transferred to the Science Museum Group, and the noble Baroness, Lady Morris of Yardley, rightly mentioned what I think I can call her museum, the National Coal Mining Museum, which also now receives funding from the Science Museum Group. The Tyne and Wear Archives and Museum had its government funding channelled through the Arts Council, as it already received Arts Council funding as a major partner museum. All these museums have continued to thrive, bringing in increasing number of visitors.
It was decided, as a number of noble Lords have said, that DCMS should relinquish sponsorship of the Design Museum and the People’s History Museum. The Design Museum is now well advanced in its plans to relocate to the former Commonwealth Institute building in Kensington in order to expand its activities, a move that it will complete in 2016. Many noble Lords have spoken tonight about the People’s History Museum. The Government recognise the People’s History Museum and many other museums as important custodians in caring for their collections and encouraging access to, and awareness of, many aspects of our cultural and social history on which the objects, archives and artworks can help throw a light. I thought that the noble Lord, Lord Sawyer, spoke extremely powerfully about these issues.
The People’s History Museum has been identified by its designated status as an outstanding collection, as have around 130 other collections across the country. It has a great deal to offer both at national and local level, and this is recognised by its strong public support. I commend the museum for its proactive approach to managing its situation. I note that government funding has never been the primary source of funding for the People’s History Museum; indeed, it is a museum that it is very successful in its own right at working with other agencies to access funding sources. I noted what the noble Lord, Lord Bassam, said about political motivation. From the briefings I have seen I do not think that the museum’s director feels that that is the motivation. That ought to be put on record.
This debate is extraordinarily timely: the department has engaged with the People’s History Museum and the Arts Council over the museum’s future arrangements. I am pleased to confirm announcements that the department will make £100,000 available for the People’s History Museum for 2015-16. I am grateful to the noble Lord, Lord Monks, for expressing his welcome for that. It will be channelled through the Arts Council and is intended to help the museum as it moves towards a new and sustainable model of funding.
I would be the first to accept that difficult decisions have to be made. Indeed, many museum services will, of necessity, be considering how best to respond to these challenges through efficiencies and innovative and creative ideas. There is clearly an opportunity to encourage the development of philanthropic funding and to build a healthier and more diverse funding model for museums. My noble friend Lord Eccles referred to what the Bowes Museum has been doing. I think the noble Lord, Lord Lennie, referred to the need to ensure that this mix of funding can be replicated across the country, not just in London.
Our national collections do not operate in a vacuum from the rest of the sector. They lead and are partners in hundreds of collaborative projects with museums, heritage and community organisations and educational establishments across the country. The sector is committed to increasing the wealth of loans across the county. The noble Lord, Lord Liddle, and my noble friend Lord Cormack in particular referred to that. I was particularly struck by what the noble Lord, Lord Liddle, said about Carlisle and what my noble friend said about Hull and how important museums are to young people. The local museum is very often the beginning of a very long adventure and enjoyment. Many of these partnerships are based on the loan of objects, such as the Great Bed of Ware going from the V&A to Ware Museum. There was a huge increase in the numbers that visited Ware Museum because of that. There are many other examples.
There is also a focus on the sharing of skills, expertise, education and learning, and working with communities. Participation with museums can bring many benefits to individuals and communities, including as learning resources. The noble Lord, Lord Young of Norwood Green, referred to schools, but schools and health services can all benefit from their relationships with their local museum. National Museums Liverpool has recently been at the forefront of this with its House of Memories project, which provides training to carers of people living with dementia.
Museums and their contents are at the heart of our culture and heritage. They are extremely important to the nation. Not only our regional museums, which I mention specifically because that phrase was in the title of the debate, but all museums have such an important role to play. Regional museums provide a world-class cultural service to communities around the country, and, in partnership with national and Arts Council major partner museums, there is a great future for them. Much of the main thrust of the debate, which was so ably led by the noble Lord, Lord Monks, was about the People’s History Museum, but I wish all the museums well. These are challenging times, but, having met a number of people from the sector, I think they are extraordinarily creative and able. We are extremely lucky to have such capable people running our museums.
My Lords, Clause 18 enables the Secretary of State to make schemes requiring a carrier to seek authority from the Secretary of State to carry persons on aircraft, ships or trains that are arriving or expected to arrive in the United Kingdom or leaving or expected to leave the UK. The purpose of the amendment is to provide for an authority-to-carry scheme made by the Secretary of State to be set out in regulations, subject to annulment in pursuance of a resolution of either House of Parliament.
The Delegated Powers and Regulatory Reform Committee considered that Clause 18 constituted,
“a significant delegation of powers to the Secretary of State, since authority-to-carry schemes will have the effect of regulating the persons who may lawfully be transported by a carrier to and from the UK”.
The Home Office has stated that authority-to-carry schemes are not subject to parliamentary scrutiny because,
“there will be provision on the face of the Bill providing guidance as to the circumstances in which a class of passenger may be specified for the purpose of the scheme”.
No doubt the Minister will indicate in his response where this guidance appears on the face of the Bill and whether the Government feel that this represents sufficient guidance on how and in what circumstances the powers should be used. The Delegated Powers and Regulatory Reform Committee said that, unless the Home Office provided more compelling evidence on why the power to make schemes should not be scrutinised by Parliament, the Bill should be amended so that the powers are exercisable by statutory instrument.
This amendment gives the Government the opportunity to say rather more about the need for these powers and why they consider that they should not be scrutinised by Parliament. There are already similar statutory provisions in existence that apply only inbound to the United Kingdom, as I understand it. Will the Minister provide some information on how these existing powers have been used, how frequently they have been deployed, in respect of how many people, what nationalities and classes or categories have been affected and from which locations they have been travelling to the United Kingdom? Will the Minister also set out the extent to which the provisions in Clause 18 are an extension of the existing arrangements—in other words, exactly what are the additions in Clause 18 to what we have already?
I am sure that the Government will be more than aware of concerns that have been expressed that the provisions in the Bill could be used to exclude passengers or crew of particular nationalities or particular classes or categories, and that if these powers are not used in a sensible and proportionate manner they could enhance the likelihood of radicalisation, particularly among nationalities or classes or categories affected, who might come to the conclusion that they were being picked on and singled out, with a resultant potential increase in feelings of alienation and a potential decrease in the desire to provide crucial co-operation.
It would be helpful if the Minister could respond to that point and the others that I have made. This probing amendment gives the Government the opportunity to place on record how and when, and in respect of whom, they intend the powers in Clause 18 to be used and why they consider them necessary, as well as the opportunity to respond to the point on parliamentary scrutiny made by the Delegated Powers and Regulatory Reform Committee. I beg to move.
My Lords, to pick up the noble Lord’s penultimate point, Clause 18 says in terms that the scheme must specify various classes in subsection (2).
I have tabled Amendments 101 and 102 in this group. The first is narrower than the amendment tabled by the noble Lord, but would require regulations to encompass the requirements of a scheme whose breach may attract the imposition of a penalty. We are told that there will be regulations imposing penalties. It seems to me that the regulations for the underlying requirement, at the very least, ought to be within the regulations before one and that it is not appropriate for there to be regulations imposing penalties if the requirements themselves are not subject to the same sort of parliamentary process.
My second amendment would provide, not in detail, a more structured procedure than is suggested by subsection (4): the opportunity to object to a proposed penalty. It suggests that a reference to an appeal would be more appropriate. If there are to be penalties there should be arrangements for challenging them and possibly even for third party or perhaps judicial determination—but whatever there is, the rather loose terminology of “object to” is inadequate.
My Lords, I apologise to the House that I was unable to speak at Second Reading. I have a couple of points on Amendments 100, 101 and the rest of the group. Under the Nationality, Immigration and Asylum Act 2002 (Authority to Carry) Regulations 2012, the Government have the powers to refuse entry to an individual. It is not clear why classes of passengers are targeted in this Bill. Will a whole group of people be covered under the new legislation? I say that because I have some experience. When I was travelling from Birmingham Airport last year, the immigration officers were stopping, under the Immigration Rules, the entire PIA flight to Islamabad—including myself. I was questioned about where I was going and whether I was carrying any money while I was going to Pakistan.
I fear that, without scrutiny by Parliament, these extra powers could be used against a group of people of a certain ethnicity. I fear that the perception of the British Pakistani community, Pakistan International Airlines and other airline carriers which occasionally carry people who could be suspected under the Terrorism Act will mean that entire families travelling on these airlines could be affected. Will the powers be used proportionately and will they be targeted? The Government already have powers to impose penalties on airlines for carrying certain passengers or to stop passengers getting on to flights. Therefore, I support the amendment and seek more clarification.
My Lords, I am grateful for the opportunity to address the points raised in relation to Part 4 of the Bill, including the amendments in the names of my noble friends and that tabled by Her Majesty’s Opposition. Perhaps I may start with the questions asked by the noble Lord, Lord Rosser.
The noble Lord asked what new power this provision has that the current legislation does not. The Bill will make provision for a new authority-to-carry scheme or schemes for passengers arriving or expected to arrive in the UK or departing or expected to depart from the UK. The current statutory arrangements apply inbound to the UK only. The Bill will also extend the operation of authority-to-carry schemes to a broader range of individuals, including British nationals, who pose a terrorist or terrorism-related threat to the UK.
The noble Lord also asked how many people will be affected by this. We do not comment on specific numbers. However, since the introduction of the security and travel bans authority-to-carry scheme 2012, we have stopped the travel of a small number of people whom we have judged may pose a terrorist or terrorism-related threat to the UK.
I take the point made by the noble Lord, Lord Ahmed, about perception and the fact that these authority-to-carry schemes have to be used sensitively. I hope that it helps that so far they have been used only in relation to a small number of people, but I take his point. I hope that my answer later will go some way to reassure him.
The noble Lords, Lord Rosser and Lord Ahmed, asked about the classes of individuals whom carriers are liable to be refused authority to carry. I will take individuals travelling to the UK under the new scheme. They include individuals who are assessed by the Secretary of State as posing a direct threat to the security of aircraft; individuals who are subject to a temporary exclusion order, which we have talked about previously in our debates on the Bill; EEA nationals and accompanying/joining third-country national family members of EEA nationals who are the subject of an exclusion or deportation order under the immigration regulations; third-country nationals who have been, or are in the process of being, excluded from the UK under the Immigration Rules; nationals who are the subject of a deportation order; nationals who have been or would be refused a visa; and individuals otherwise inadmissible to the UK, including those seeking to travel using invalid travel documents. I hope that that goes some way to show that the powers are targeted specifically and that they are not intended to cover huge swathes of people.
Amendment 100 tabled by the noble Baroness, Lady Smith, and the noble Lord, Lord Rosser, and Amendment 101 tabled by my noble friends both seek to achieve the same effect: more direct parliamentary scrutiny of an authority-to-carry scheme made under Clause 18. Amendment 100 would require a scheme to be set out in regulations and approved by Parliament subject to a negative resolution but would make the scheme and the regulations to enforce it subject to a separate and different parliamentary process. Amendment 101 would require that draft affirmative regulations, laid before Parliament to impose penalties for breaching a scheme made under Clause 18, should include the requirements of that scheme.
The approach taken in the Bill mirrors that in Section 124 of the Nationality, Immigration and Asylum Act 2002 under which the current scheme and its regulations were made in 2012. The Government’s policy intention is that any new authority-to-carry scheme, or any amendment to an existing scheme, will be laid in Parliament with draft affirmative regulations which refer to the new or amended scheme. I recognise the concern noble Lords might have that, as drafted, there is only indirect scrutiny of an authority-to-carry scheme itself. The Delegated Powers and Regulatory Reform Committee expressed a similar concern in its report, as the noble Lord, Lord Rosser, mentioned. The Government are at present considering the report of the committee and we would like to reflect on the concerns of noble Lords so that we can return to this issue at Report. On that basis, I hope that the noble Lord will feel able to withdraw Amendment 100 and that my noble friend will not press Amendment 101.
Amendment 102, tabled by my noble friends, would require that regulations imposing penalties for breaching an authority-to-carry scheme must provide for a carrier to be able to appeal a penalty. The legislation already provides that the regulations may allow for an appeal, but the amendment would leave out the provision that the regulations must provide for a carrier first to be given an opportunity to object to the penalty. The approach we are proposing in the Bill mirrors that taken in the Nationality, Immigration and Asylum Act 2002 (Authority to Carry) Regulations 2012, under which any breach of the current authority-to-carry scheme would be penalised. Where a penalty is imposed, the carrier must have the opportunity to appeal. If the penalty is reduced, remains unaltered or is increased, the carrier has the right to proceed to appeal. However, our intention is that the carrier must object before they can appeal. There is no question that a carrier that objects to a proposed penalty for breaching an authority-to-carry scheme will have the right to a judicial appeal. That will be set out in the regulations, subject to affirmative resolution. In the light of those assurances, I invite my noble friend not to press the amendment.
Finally, government Amendments 120 and 121 amend Clause 42 of the Bill so as to bring the aviation security powers in Part 2 of Schedule 2 into force on Royal Assent rather than at a later date by commencement order. Those powers in paragraphs 9 to 11 of Schedule 2 strengthen and enhance the ability of the Secretary of State to issue security directions to airlines flying into the UK and to create, through regulations, a related civil penalty regime for airlines that fail to comply. In doing so, this amendment brings the implementation of these powers into line with those in Part 1 of Schedule 2, covering passenger, crew and service information, which would already come into force on Royal Assent. The threat to aviation from certain terrorist groups is well documented and continues to evolve. We already work closely with foreign Governments and airlines, as well as UK operators, to make sure that the necessary security measures are in place and are being effectively implemented, but these measures will enhance our ability to do that.
I hope your Lordships will therefore agree that it is right and sensible to have these strengthened and clarified powers available at the earliest opportunity. Accordingly, I invite your Lordships to support these amendments.
I am left a little puzzled as to why there should be an opportunity to object before an appeal. I can see that that would be to the benefit of the Secretary of State—the benefit of the authority implementing the scheme—but the way in which it is worded suggests that it is intended as some sort of benefit for the carrier. My noble friend may not have the information to explain that further at this stage, but he will understand why I went down that route. The presentation of the provision fits with the explanation, but it seems as though it is for the benefit of the carrier, yet the carrier has the right to appeal. I would be glad to have that confirmed.
I may be able to help. It is right that Clause 19(4) says that procedures for imposing a penalty,
“must provide for a carrier to be given an opportunity to object”.
We are keen that the carrier should be able to object first and, if necessary, move on to an appeal later. It is in the Bill because, I am told, this is the way that it is normally provided for. It may, in particular, make provision for allowing an appeal. We prefer that they object first and then are able to appeal. As I said, I can give an assurance that the method for appealing will be in the regulations.
I thank the Minister for his response. Given that he indicated that the Government would consider the views expressed by the Delegated Powers and Regulatory Reform Committee to which I referred, I will not seek to pursue Amendment 100.
I will make one point about why I hope the Government will consider carefully what the committee said, which I am sure they will. The Minister said that the existing powers had not been used to affect large numbers of people. I think he used the expression “huge swathes of people”. That is one of the concerns that needs to be properly allayed, and it was a concern referred to by the noble Lord, Lord Ahmed. Clause 18(2)(b) says,
“the classes of passengers or crew in respect of whom authority to carry must be sought (which may be all of them or may be defined by reference to nationality, the possession of specified documents or otherwise)”.
In noting that the categories are “by reference to nationality”, that gives the prospect of the “huge swathes of people” to which the Minister has referred. It is important that in looking at this matter in the light of the Delegated Powers and Regulatory Reform Committee’s views—as the Minister has said the Government will—the Government’s response firmly nails down that the reference in Clause 18(2)(b) should not be interpreted as meaning “huge swathes of people”. I beg leave to withdraw the amendment.
I declare an interest as a member of the All-Party Parliamentary Group on Drones. A number of factors made me feel it was necessary to introduce the amendment. The first is that there is no definition of unmanned aerial vehicles. They are commonly known as drones although it tends to upset people in the military if you call them that. I have found it difficult to consider anything of 20 grams or less carrying a man. That is so inconceivable that I think the term “drones” can be used. There is no definition in existing primary or secondary legislation. The closest to a definition is “small, unmanned aircraft”, which is in Article 253 of the Air Navigation Order 2009.
My Lords, I saw that report in the Independent, and, living quite near to Heathrow as I do, I felt it particularly vividly.
The noble Lord’s concerns are well founded. I wonder, however, whether it is not simply a matter of designating areas where the flight of drones is restricted, period, rather than dealing with the burden of proof—whoever carries it—regarding whether a drone is being flown for the purposes of terrorism. I suspect that the answer will be: “Thank you for raising it and a lot of people are looking at it”. I hope that that last bit is true. My comment is that it might be better to deal with it over the wider point and not to get into the confusion of whether it is terrorism related. The outcome could be pretty similar whatever the purpose.
My Lords, unmanned aerial vehicles, as has been said, are used in a military context and by public bodies in the UK, and for surveillance, among other uses. Surveillance UAVs are regulated, although, as my noble friend Lord West of Spithead has said, some people question how effective this regulation is.
I will comment in particular on the use of small non-surveillance unmanned aerial vehicles. UAVs weighing under 22 kilograms are entirely unregulated. They can be bought and sold freely. There is no tracking mechanism. Perhaps most importantly, they can easily be purchased for self-assembly, which makes them easy to modify, perhaps for the kind of purposes set out in my noble friend’s amendment. There is a big concern around airports. As has been said, a UAV got within a few feet of an Airbus jet leaving Heathrow. Even a small UAV could cause engine failure in a jet, in the same way as a bird strike, even if not being used for obviously hostile purposes. While airports have extensive protection from lasers, and even from surface-to-air missiles, there is no specific provision, as I understand it, for UAVs. Apparently, this is a concern of the British Airline Pilots Association and air traffic controllers, and suggestions have been made for UAV no-fly zones around airports.
I hope that, in their reply, the Government will be able to show that they have assessed the risks and are taking appropriate action because, subject to what the Minister says in response, it is not obvious that there is a coherent direction of policy, at least on smaller UAVs if not larger ones, with the light-touch regulation to which my noble friend Lord West has referred.
My Lords, I am grateful to the noble Lord, Lord West, for bringing his particular experience to bear on this important issue, which I certainly agree is a matter of growing public concern. The noble Lord particularly mentioned the effect on the public of something going wrong, and it is clear that people are taking an interest.
The growing use of unmanned aerial vehicles is being driven by their increasing versatility and affordability, as the noble Lord mentioned. Their use raises a number of issues, including those of safety, privacy and the potential security threat which they could pose. A good deal of work is going on with the Government at the moment. As I think the noble Lord mentioned, the Government have established a cross-Whitehall group co-chaired by the Department for Transport and the Ministry of Defence, and including the Civil Aviation Authority, which has responsibility for the regulation of UAVs, to look at the safety, privacy and security implications. If the group identifies any issues where new legislative powers are necessary, they will be addressed. However, I have noted the noble Lord’s comments about information being made available and I will take those back.
I can reassure the Committee that, from a legal standpoint, there are already air navigation rules in place to regulate the use of unmanned aerial vehicles. Existing restrictions include, for example, that an unmanned aircraft fitted with a camera must be flown at least 50 metres away from a person, vehicle, building or structure. It must not be flown without permission within 150 metres of congested areas or any large group of people, such as a sporting event or concert. Unmanned aerial vehicles are not permitted to fly in areas where they may cause danger to manned aircraft and it is prohibited to drop an article from a UAV so as to endanger persons or property.
My noble friend Lady Hamwee mentioned blanket bans on certain areas rather than making this specifically terrorist related. I agree with her. There are specific powers under the Air Navigation Order 2009 which enable the Secretary of State to impose restrictions on flying in particular areas, including for safety or reasons in the public interest, which could include security. That will take into account the example mentioned by the noble Lord, Lord West, of areas close to an ILS system at an airport. Crucially, the 2009 order makes it an offence to contravene any of the air navigation articles. A number of additional offences would currently apply to the arming of an unmanned aerial vehicle for the purposes of terrorism. These include offences related to the use and possession of firearms, weapons or explosives, or the preparation of terrorist attacks.
All that being said, the use and potential misuse of unmanned aerial vehicles is an area that the Government are monitoring closely. We will continue to consider whether it is necessary to introduce new offences related to the use of UAVs. I thank the noble Lord once again for raising the issue and thus allowing me to provide these reassurances. On the basis that the existing legislation is sufficient and that any potential gaps are being considered by the cross-government group, which I am sure will take account of this short debate, I hope that he will feel able to withdraw his amendment.
I thank the Minister for his response. Before I come to that—because I was a little disappointed—I will say that the noble Baroness, Lady Hamwee, is absolutely right. We have to be quite careful about how we go about this. Indeed, I have got no praise for the way I have put my amendments, but I believe that this needs to be looked at. The Minister makes the assumption that we are happy with current legislation, but current legislation is not adequate. Certainly the Civil Aviation Authority and the airline pilots association do not think it is. We need to think hard about this. Overall, the noble Lord was on side with my worries, but—
Again, I am sure that the cross-government group that is considering gaps in legislation will take account of this debate, including the noble Lord’s comments.
I thank the noble Lord for that. At the moment, some of these things are slightly opaque. That is the problem. It is very difficult to find out what is going on. It would be much better if we had a clearer view with a more open debate about it. It is interesting, for example, that the Military Aviation Authority has just published RA 1600, which is a reclassification of some drones and it is paving the way for much greater use of military drones in UK airspace. So when we have a lot of military drones operating there, again, the risk of these other drones becomes even greater. This is something we have to get our mind around.
Interestingly—I had not thought about this before—the noble Lord, Lord Rosser, mentioned tracking mechanisms, which of course are making huge leaps and bounds in technology. You can get ones that are really tiny. Maybe that would be a way, if the drones showed up on secondary radar, for example. I do not know whether that has been looked at—and the reason that I do not know whether it has been looked at is that there is no openness in terms of discussion, which worries me.
I will need to reconsider the Minister’s comments and think about them and look at Hansard. Until I have done that, I beg leave to withdraw the amendment.