Wednesday 9th November 2016
(7 years, 5 months ago)
Lords ChamberRead Hansard Text Amendment Paper: HL Bill 55-IV Fourth marshalled list for Committee (PDF, 263KB) - (7 Nov 2016)
“and for this purpose the conditions of the licence are modified if any of them is altered or omitted or any new condition is added.”
Baroness Chisholm of Owlpen (Con)
My Lords, these amendments relate to alcohol licensing. In particular, they introduce two new provisions into the Bill which reform the late-night levy and place cumulative impact policies on a statutory footing.
Amendments 209D and 214D relate to the late night levy, which was introduced in the Police Reform and Social Responsibility Act 2011 and under which licensing authorities are able to charge a levy to those who are licensed to sell alcohol late at night in their areas, as a means of raising a contribution towards the costs of policing the late-night economy. The licensed trade plays an important part in our economy, and the Government’s Modern Crime Prevention Strategy makes it clear that we want to create a night-time economy that people may enjoy safely, without the fear of becoming a victim of crime; that in turn will help businesses to thrive. It is right that businesses which benefit from the late-night economy should pay towards its management when it is creating an additional burden on policing in that area. However, to date, only seven licensing authorities have implemented a late-night levy; that is fewer than anticipated when the levy was introduced in 2012.
Licensing authorities, the police and the licensed trade feel that the levy in its current form is inflexible. Currently, licensing authorities must apply the levy to the whole licensing authority area, and businesses which are not in night-time economy areas feel they are being unfairly charged. These amendments will allow licensing authorities to specify the geographical area, or several separate areas, where they will charge a levy because the night-time economy places a burden on policing, and they will be able to decide whether to include premises licensed to sell late-night refreshment in their levy. The provision of late-night refreshment is defined in the Licensing Act 2003 as hot food and drink sold to the public between 11 pm and 5 am. Such premises are often linked to alcohol-fuelled crime and disorder; for example, fast-food shops are often premises at which late-night drinkers congregate.
PCCs have told us that they would like a formal role in relation to the levy, and we think this is appropriate as 70% of the revenue raised must go to them. The amendment will allow a PCC to request that a licensing authority formally propose a levy, thereby triggering a consultation on whether to implement one in its area. It will need to set out its reasons for doing so with reference to the cost of policing incurred as a result of the night-time economy.
Finally, Amendment 214D requires licensing authorities to publish information about how the revenue raised from the levy is spent. Some licensing authorities do this already, but one of the key concerns of the licensed trade is that there is a lack of transparency about this.
Lord Rosser (Lab)
The issue of the cumulative impact assessments was one that we pursued when the matter was discussed in the Commons. It is for the Government to say why they brought the amendments forward now. But, unless I am misreading the position, at least some of these amendments have some support. Unless I have misread the briefing from the Local Government Association, it supports Amendment 209C, which seeks to ensure that licensing authorities give regard to cumulative impact assessments, and Amendment 209D on late-night levy requirements.
Baroness Chisholm of Owlpen
My Lords, I thank all noble Lords who have taken part in this short debate. First, to answer my noble friend Lady McIntosh on whether there was any public consultation, in the summer of 2015 the Home Office held workshops with key partners. One workshop included the Local Government Association, the Institute of Licensing, licensing officers from several local authorities and representatives of the national policing lead on alcohol and the PCC lead on alcohol. The second workshop included industry partners such as the British Beer and Pub Association, the Association of Convenience Stores, the Wine and Spirit Trade Association and the Association of Licensed Multiple Retailers. A survey was sent to all licensing authorities. The Home Office received 32 responses, including one from the PCC working group on alcohol. There is no trade body that represents late-night refreshment providers.
We have heard today from many members of the committee. All I can do is reiterate what I said in my speech: we shall of course look carefully at the findings of the committee before coming to any final conclusions and before implementing the provisions. We will wait for the Select Committee’s report next March. As I said, these reforms were announced in the Government’s Modern Crime Prevention Strategy that was published this March, some two months before the Select Committee was established. The Government are keen to take the opportunity afforded by the Bill to legislate on these matters so that they can be enacted as soon as possible. But that does not change the fact that we shall wait for the findings of the Select Committee.
The 70:30 split was mentioned. This can be amended by secondary legislation, so there is no need to make provision in the Bill. As I have said, we will consider any recommendation the Select Committee may make on this issue.
The Government believe it is right to proceed with these amendments now, as alcohol provisions were included in the Bill on its introduction to the Commons in February—so this is an appropriate vehicle to legislate on the new measures. As the noble Lord, Lord Rosser, said, the Opposition tabled amendments on cumulative impact policies in the Commons and these government amendments respond, in part, to those Commons amendments.
Baroness McIntosh of Pickering
I am most grateful to the Minister for her reply, but can I just press her on the semantics? Could she give the House and the committee a commitment that the Government will look at our recommendations and consider revising the wording of the amendments that she has put before the Committee today if they conflict with the recommendations and conclusions that the committee reaches?
Baroness Chisholm of Owlpen
I cannot go further than I already have in saying that we will of course look very carefully at the findings of the committee before coming to any final conclusions. That is as far as I can go. Everything else is rather hypothetical at the moment.
Baroness Hamwee
My Lords, perhaps the noble Baroness can assist this Committee with the timing. I imagine that the Select Committee will probably be required to report in February, but this Bill is likely to have concluded its passage before then. As a result, I am unclear how recommendations from the committee can affect the content of the Bill, but she may have information about the relative timings that could help this Committee.
Baroness Chisholm of Owlpen
We will not pre-empt what the committee is going to say, so we have to wait until we hear from it.
Baroness Grender
The Minister has said we cannot deal in hypotheticals, and yet we are about to accept some amendments which may well, in the light of the conclusions of our committee, be hypothetical. It seems to me that the most sensible solution is to not currently have amendments in this area, because those very amendments may be hypothetical.
Baroness Chisholm of Owlpen
I think I explained that the reason we proceeded with the amendments was because the alcohol provisions were included in the Bill on the Commons introduction in February, so this is an appropriate vehicle to legislate on the new measures. That is why we have brought them forward now. This was discussed in the Commons, and these government amendments respond, in part, to the ones that were tabled in the Commons.
Baroness McIntosh of Pickering
Can my noble friend confirm that these amendments were not discussed in the Commons? I do not believe that their content was discussed. Just for the sake of greater clarity, all we are asking is that these amendments be stayed until such time as we have concluded our report. In the words of the noble Baroness, Lady Henig, we are trying to help the Government. We want to have good laws and legislation that works, but clearly, at the moment, late night levies appear not to be working.
Baroness Chisholm of Owlpen
We want good legislation as well of course and, as I think I said, we will look carefully at the findings of the committee before coming to any final conclusions. I think that is really as far as I can go.
“Cumulative impact assessments
(1) The Licensing Act 2003 is amended as follows.(2) In section 5 (statement of licensing policy), after subsection (6C) insert—“(6D) In determining or revising its policy, a licensing authority must have regard to any cumulative impact assessments published by it under section 5A.(6E) A licensing statement must—(a) summarise any cumulative impact assessments published by the licensing authority under section 5A, and(b) explain how the licensing authority has discharged its duty under subsection (6D).”(3) After section 5 of the Licensing Act 2003 (statement of licensing policy) insert—“5A Cumulative impact assessments(1) A licensing authority may publish a document (“a cumulative impact assessment”) stating that the licensing authority considers that the number of relevant authorisations in respect of premises in one or more parts of its area described in the assessment is such that it is likely that it would be inconsistent with the authority’s duty under section 4(1) to grant any further relevant authorisations in respect of premises in that part or those parts.(2) A cumulative impact assessment must set out the evidence for the authority’s opinion as set out in the assessment in accordance with subsection (1).(3) For the purposes of this section, “relevant authorisations” means—(a) premises licences;(b) club premises certificates.(4) A cumulative impact assessment may relate to all relevant authorisations or only to relevant authorisations of a kind described in the assessment.(5) Before publishing a cumulative impact assessment, the licensing authority must consult the persons mentioned in section 5(3).(6) For the purposes of the consultation, the licensing authority must provide the persons mentioned in section 5(3) with the following information—(a) the reasons why it is considering publishing a cumulative impact assessment;(b) a general indication of the part or parts of its area which it is considering describing in the assessment;(c) whether it considers that the assessment will relate to all relevant authorisations or only to relevant authorisations of a particular kind.(7) Where a licensing authority publishes a cumulative impact assessment, it must, before the end of each relevant period, consider whether it remains of the opinion stated in the assessment.(8) Before deciding whether it remains of that opinion, the licensing authority must consult the persons mentioned in section 5(3).(9) If the licensing authority is no longer of that opinion—(a) it must publish a statement to that effect, and (b) the duties in section 5(6D) and (6E) and subsection (7) of this section cease to apply in relation to the assessment.(10) If the licensing authority remains of that opinion, it must revise the cumulative impact assessment so that it—(a) includes a statement to that effect, and(b) sets out the evidence as to why the authority remains of that opinion.(11) A licensing authority must publish any revision of a cumulative impact assessment.(12) In subsection (7), “relevant period” means the period of three years beginning with the publication of the cumulative impact assessment or a revision of the cumulative impact assessment.””
Lord Kennedy of Southwark (Lab)
My Lords, we have moved on to another part of the Bill. I should declare that I am an elected councillor in the London Borough of Lewisham and a vice-president of the Local Government Association. I do not serve on the licensing committee of Lewisham Council; I have enough to do on the planning committee. However, many years ago, I was a member of the licensing committee of Southwark Council. In those days, we considered only music and dance licences. One still had to apply to the magistrates’ court for a late-night alcohol licence. That has all changed and these matters are now under the control of the licensing committee.
This has been an interesting debate on four important amendments, all of which I support. The noble Baroness, Lady Deech, and other noble Lords made very valid points in respect of licensing authorities’ compliance with the provisions of the Equality Act. This is an issue of enforcement, rather than advice and guidance. Being able to remind licence holders of their duty is not good enough because it has not worked as effectively as it should. We should force licensed premises to be able to be used by disabled people.
My noble friend Lord Brooke of Alverthorpe spoke about the need for a duty to promote health and well-being. Local authorities have such general duties but for there to be a specific requirement in respect of licensed premises is a new initiative. He made important points about the changes to availability of alcohol and consumption patterns. They have certainly changed. My noble friend was clear and we can all think back on how many pubs have closed while alcohol is more available in convenience stores and supermarkets. Things have changed in the past 20 years. He also made important points on the duty of authorities to look after young people and protect them from harm.
As regards the promotion of cultural activity and inclusion, the noble Lord, Lord Clement-Jones, has an impressive record in this House of standing up for live music and other cultural activities. He is right to stand up for grass-roots music venues, which have launched many a career in the entertainment industry. I agree with the noble Lord that music and other activities should be helped and supported where possible through the licensing system, rather than just regulated. I recall a debate on a different subject in the Moses Room, when we talked about a range of regulations that sometimes affect people going about their lawful business and allowing them to busk and so on. Decisions on this are being taken by officials of local authorities, rather than elected members, which is worrying. It is a slightly different but similar point. I also agree with what the noble Earl, Lord Clancarty, said about the industry.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, Amendments 210, 211 and 214A in this group seek to add to the list of licensing objectives under the Licensing Act 2003. In answer to my noble friend Lady McIntosh’s question, there are currently four such objectives. These are: the prevention of crime and disorder; public safety; the prevention of public nuisance; and the protection of children from harm. The promotion of the licensing objectives is of paramount importance when authorities make licensing decisions, and each one carries equal weight.
Amendment 210 seeks to add,
“compliance with the provisions of the Equality Act 2010”,
to the list of licensing objectives. As we have heard, the amendment flows from a recommendation made by the Equality Act 2010 and the Disability Committee, which reported in March. I was pleased to be able to respond in our debate on that. All four noble Baronesses who put their name to this amendment served on that committee.
The committee recommended that the Licensing Act 2003 be amended to make failure to comply with the Equality Act 2010 a ground for refusing a licence. In their response published in July, the Government argued that, as employers and businesses were already under a duty to comply with the statutory obligations imposed by the Equality Act not to discriminate against staff or customers, the Act offered sufficient protection. Accordingly, it would be inappropriate for the 2003 Act to duplicate the requirements of the 2010 Act, just as it would be inappropriate to make express reference to other legislation—such as the Health and Safety at Work Act 1974 or the Noise Act 1996—all of which places requirements and responsibilities on licensing authorities and licensees.
Moreover, if we were to apply the logic of Amendment 122 more broadly, we should also be amending the Gambling Act, and indeed many other statutes, to place analogous obligations on those undertaking other forms of regulated activity. To single out the operators of businesses licensed under the 2003 Act could be taken as downgrading the obligations on all other businesses to similarly comply with the requirements of the Equality Act. I am sure that noble Lords would not wish to give that impression.
This is not to say that those running licensed premises should not be doing more to facilitate access by disabled people. Earlier this year the Minister for Disabled People held a round table event with disabled people and the hospitality industry to lead to a better understanding by service providers and businesses and a commitment from them to improve access and attitudes. Organisations represented at the round table made pledges to improve accessibility to their premises and improve their customer service for disabled people. For example, the British Beer and Pub Association pledged to update and promote its guidance on accessibility in pubs. This gives pubs advice on easy changes they can make to improve their service to disabled customers. These are very practical steps which will help to improve the day-to-day experiences of disabled people.
Amendment 211, tabled by the noble Lord, Lord Brooke of Alverthorpe, seeks to add an additional licensing objective,
“to promote the health and wellbeing of the locality and local area”.
The Government are not unsympathetic to those who believe that there should be a greater role for public health within the licensing system, and we of course acknowledge the health harms attributable to alcohol. However, decisions under the Licensing Act have to be proportionate and made on a case-by-case basis. Unless it can be demonstrated that an application for a new licence is likely to undermine one or more of the licensing objectives, the licensing authority must grant the licence. The Government believe that any new licensing objective would need to be capable of standing alongside the existing objectives and function in the same way. Any new objective must therefore enable licensing authorities to determine whether it is appropriate to grant or refuse new applications, review licences and attach conditions or revoke licences.
Previous work has shown that it is difficult to establish direct causal links between alcohol-related health harms such as chronic liver disease and particular premises. Difficulties also remain with putting in place the necessary processes to enable the collection of such evidence—without which decisions based on health grounds would be unlikely to stand up to challenge. Work to date has established that the types of health data that are more readily accessible and most suited to use in a licensing context tend to relate to acute harms such as violent assaults and alcohol-related injuries. These harms, as well as most factors affecting well-being, such as crime levels and the welfare of children, can already be addressed through the existing licensing objectives, as demonstrated by the achievements of areas such as the Kensington area of Liverpool, Newcastle and Middlesbrough.
The Government will therefore continue working with Public Health England to facilitate access to local health data to inform decision-making within the current framework and to help public health teams play a role within licensing. Public Health England has also been testing a support package to assist with the development of local data collection and analysis based on lessons learned from the evidence-based work carried out in 2014-15. I assure the noble Lord that the Government continue to look at this matter seriously and will consider the findings of Public Health England.
Amendment 214A seeks to add,
“the promotion of cultural activity and inclusion”,
to the licensing objectives. This would require licensing authorities to consider the character of licensable activities, rather than purely protect against the potential harm caused by licensable activity. The existing licensing objectives seek to reduce harm that can be evidenced, and licence conditions which are intended to reduce the level of harm can be easily understood—for example, a requirement to restrict noise levels to prevent public nuisance.
It would be difficult to replicate this for “cultural activity and inclusion”, since this is quite a subjective matter and may be interpreted in different ways. For example, would a festival of Hindi films or Irish dance be considered good or bad in terms of cultural activity and inclusion? Making this a licensing objective could place licensing authorities in a censorious position, whereby licensees organising events might be obliged to explain what additional cultural value their entertainment might generate, and the licensing authorities would be required to evaluate that information.
The final amendment in this group, Amendment 212, seeks to add child protection bodies to the list of statutory consultees for statements of licensing policy. Each licensing authority is required to publish a statement of licensing policy and to revise it at least every five years. The statement sets out the general approach to making licensing decisions and managing the evening and night-time economy in the area.
Section 5(3) of the 2003 Act sets out a list of organisations and individuals who must be consulted when the statement is reviewed. The list includes the police, the fire and rescue authority and the public health body, but it is not intended to be exhaustive and therefore does not include all the responsible authorities. The 2003 Act does not prevent licensing authorities from consulting other bodies or persons as they see appropriate.
Lord Clement-Jones
My Lords, I am not quite sure that the Minister has answered anything to do with Amendment 214A.
Baroness Williams of Trafford
My Lords, I did. It may be that it was so dull a response that the noble Lord did not catch it. Shall I put it in writing and send it to him?
Lord Rosser
I thank the noble Lord, Lord James of Blackheath, for his contribution. I do not go into betting shops, but he has confirmed that I have only a marginally smaller chance of winning than those who do. My noble friend Lord Beecham and the right reverend Prelate the Bishop of Salisbury in particular have already set out the background to and concerns behind this group of amendments: concerns about the increase in reported criminal offences linked to betting shops, which has coincided with the proliferation of fixed-odds betting terminals. These criminal offences relate both to violence towards staff and to damage to property arising from losses incurred from gambling on these terminals.
There is a link between the use of fixed-odds betting terminals and their anonymity for user and money laundering, with one major firm fined some £800,000 by the Gambling Commission this summer over inadequate protection against money laundering. At present, licensing authorities can lay down a series of conditions on betting premises to help ensure that the licensing objectives of preventing crime and protecting the vulnerable are delivered and maintained. However, licensing authorities cannot limit the number of machines below the maximum of four per betting premise, and neither can they lay down requirements for the operation of gaming machines including fixed-odds betting terminals.
This group of amendments would, among other things, achieve these objectives by allowing licensing authorities to place conditions which could limit the number of fixed-odds betting terminals permitted under a gambling premises licence. Fixed-odds betting terminals now contribute, as I understand it, well over 50% of the profits of high street betting shops. These amendments would also allow licensing authorities to place conditions on gambling premises which would restrict the operation of gaming machines including fixed-odds betting terminals to people who have established their identity with the gambling premises concerned. This would assist in addressing money laundering and also help to reduce the incidence of violent disorders, including aggression towards staff, and the risk of under-age gambling. In both instances the licensing authority would have to show why these conditions were necessary to ensure that the licensing objectives to which I have already referred were delivered.
A further amendment in this group would also mean that licensing authorities did not have to determine each licence application in isolation. Instead, the amendment would make it clear that such authorities could take account of the cumulative impact on a range of local factors in making a decision—factors such as social deprivation and local crime rates, the creation of a betting shop cluster and the proximity of local schools or centres for other groups of vulnerable people. Such a provision in the relevant amendment in this group would better enable licensing authorities to protect areas that they considered at real risk of gambling harm.
The purpose of these amendments—as has already been said, Amendment 214, the main amendment, has the support of the Local Government Association—is to give local authorities a much-needed wider range of measures to enforce the existing licensing objectives. I hope that the Government will respond favourably. Surely local authorities are in the best position to know what is and is not needed in their own community. They should now have the necessary powers to deliver the existing licensing objectives.
Baroness Chisholm of Owlpen
My Lords, as the noble Lord, Lord Beecham, and the right reverend Prelate explained, these amendments would have the effect of devolving power over licence conditions for gaming premises and gaming machines to local authorities. The number of gaming machines authorised under a gambling premises licence is regulated by the Gambling Act 2005. Licensing authorities do not currently have the power to change this limit, and cannot impose licence conditions on gaming machines that relate to stakes or prizes. However, they do have licensing powers in respect of gambling premises. These include powers to reject an application for a licence and powers to impose other conditions, for example around opening hours. They can also review and revoke licences. The Department for Communities and Local Government also brought in new planning laws last year that ensure that applications to change, for example, a disused shop into a bookmaker’s office will need planning consent.
In looking to introduce this new clause, the right reverend Prelate is seeking to limit the number of fixed-odds betting terminals in bookmakers and casinos. The Government understand the concern that such gaming machines could fuel problem gambling and are committed to reducing the risks of potential harms associated with such machines. Indeed, last year, we introduced new regulations to ensure that players staking over £50 on these machines either had to open an account or had to interact with staff. Evaluation shows that there has been a significant decrease in players staking above £50. The Gambling Commission also introduced new social responsibility requirements last year, including measures that force customers to make an active choice on whether to set time and money limits while playing these machines.
In addition, the noble Lord, Lord Beecham, is seeking to enable licensing authorities to impose minimum staffing levels on premises with such machines. The noble Lord may have in mind a number of tragic incidents in high street bookmakers over the last few years. The Association of British Bookmakers’ Safe Bet Alliance provides specific guidance on staffing security in bookmakers, which was drafted with the input of the Metropolitan Police. Members of the Association of British Bookmakers operate single staffing only when a risk assessment has been undertaken.
Sections 167 and 168 of the Gambling Act 2005 empower the Secretary of State for Culture, Media and Sport to set mandatory and default conditions on premises licences via secondary legislation, which could include a condition setting staffing levels. This would be the preferred route to make such a change. In addition, I must emphasise that the Government believe that the appropriate mechanism for reviewing stakes and prizes, and gaming machine numbers, is the review announced on 24 October by the Minister responsible for gambling, which will consider these issues in a more holistic and comprehensive context.
My noble friend Lord James mentioned statistics about roulette wheels. I have to say that I got slightly lost in all the various numbers, which is not surprising considering that I was unable to add the 45 minutes when it came to the lunchtime break—but I certainly take his point and I listened with interest.
The noble Lord, Lord Beecham, talked about the Sustainable Communities Act. The Government are engaging with the LGA on this issue. The review announced on 24 October is the right mechanism to consider all these issues, and the Government invite Newham Council to take part in that review.
The Government are alive to the concerns about the dangers posed by fixed-odds betting terminals. As I have set out, we have already taken steps to tighten the controls on these machines and have set out our plans for the review of gaming machines, gambling advertising and social responsibility, which will include stakes on fixed-odds betting terminals. I am sure that the right reverend Prelate, the noble Lord, Lord Beecham, and other noble Lords will want to contribute to that review, and I encourage them to do so. The review will include a close look at the issue of B2 gaming machines—more commonly known as fixed-odds betting terminals—and specific concerns about the harm that they cause, be that to the player or the community in which they are located. The call for evidence period will close on 4 December, following which the Government will consider proposals based on robust evidence provided to assist in our decisions.
Given that this process is in train, I invite the noble Lord, Lord Beecham, to withdraw the amendment.
Lord Beecham
I thank the noble Baroness for her reply, so far as it goes, which I fear is not very far at all. If the Government are relying on the industry to come forward with proposals, many of us would be somewhat sceptical about a satisfactory result emerging.
I am not, as some of your Lordships will be aware, an enthusiast for secondary legislation but it seems to me that it would be sensible for the Government to take the power, at least, to regulate in some of the areas we have discussed, even if they do not want to incorporate the specific details of the amendments we have been discussing today in primary legislation. It would be a wasted opportunity, it seems to me, if, as I suspect, the gaming industry will not come up with satisfactory answers to the many questions which have been raised today, to then expect a further Bill to come forward. The legislative timetable, many of us will imagine, will be dominated by things of a rather more international flavour for the next few years, whereas, giving the power to regulate on issues of the kind we have identified here would be a much simpler parliamentary process and one which is quite appropriate.
I do not think that many of us in your Lordships’ House have any great confidence in the gaming industry’s willingness to address the problems that have been identified across the House this afternoon. While at this point I will obviously not be asking the House to divide, this is a matter that I hope the Government will consider in a constructive way before Report. I would be tempted, and will discuss this with other of your Lordships, to embody in resolutions on Report a power to deal with matters as I have suggested by way of secondary legislation, but it would be better if the Government took that step. No doubt the noble Baroness will be willing to discuss this with interested Members before Report, but as matters stand I beg leave to withdraw the amendment.
Baroness Chisholm of Owlpen
I am grateful to my noble friend Lord Moynihan for raising the important issue of tackling doping in sport.
This has been a difficult year for sport and those fighting doping—namely, the World Anti-Doping Agency, the International Olympic Committee and the International Paralympic Committee. We must recognise that these are global issues that cannot be solved by legislative action in any one country, although we must play our part. We are not complacent and continue to do all we can to protect the integrity of sport in this country, particularly where there is strong evidence that calls for government intervention.
As my noble friend mentioned, the Sunday Times allegations against UK Anti-Doping were disappointing to read. UK Anti-Doping immediately launched an independent investigation, the outcome of which recommended a number of actions to be implemented, all of which have been accepted by that organisation. Such action reflects the tough stance that the Government and UK Anti-Doping take on doping in the fight to provide a level playing field for our athletes to compete on.
My noble friend raises a valid point in saying that those athletes who dope are defrauding our clean athletes. We recognise that the desire to dope can be driven financially, and financial penalties are likely to be as damaging to those who cheat as a ban would be. However, the Government believe that rather than tackling this through legislation, it should be a matter for sports bodies. We recognise that a sanction in this regard could well act as a strong deterrent to doping cheats who represent the UK or compete in our events.
The UK Government and UK Anti-Doping have a reputation for taking a tough, measured stance on doping. To maintain that, we need to ensure that there is a strong evidence base before any consideration or commitment is given to taking forward any possible legislative options. In order to have that evidence base, the Department for Culture, Media and Sport is currently conducting a cross-government review of the existing anti-doping legislative framework and assessing whether stronger criminal sanctions are required. The relevant government departments and agencies, such as the Home Office, the Ministry of Justice, the National Crime Agency and the Serious Fraud Office, are contributing to the review. We expect the outcome of the review to be published before the end of the year.
In conclusion, I ask my noble friend to be patient for a little longer. The Government are very much alive to the issues he raised and are actively examining what more needs to be done. In fact, the Minister for Sport and Tourism, during a debate on 6 July on doping and the Olympics, said:
“The review is currently under way and, should it become clear that stronger criminal sanctions are needed, we will not hesitate to act”.—[Official Report, Commons, 6/7/16; col. 365WH.]
I hope, therefore, that my noble friend will be happy to withdraw his amendment.
Lord Moynihan
My Lords, I thank all those who have participated in the debate and shall comment briefly on the questions and points that have been raised.
First, the interpretation by the noble Lord, Lord Harris, of the reach of the amendment is correct and is set out in proposed new subsection (1). There is a real problem in the perception, for example among athletes and in the world of rugby, that the time to bulk out is when they are at university age or college age so that they can move on to the professional ranks. There are serious issues of doping in sport at that age, and I believe very strongly that when this is passed, as I hope it will be at some stage in the parliamentary process, it will be a very strong deterrent to those young people not to take performance-enhancing drugs.
The noble Lord, Lord Rosser, in a strong and comprehensive speech, focused on Rio. I would reflect on this one point about testing at the Olympic Games. If you test positive at the Olympic Games, you come into the category of the dopey dopers, because the chances are that if you are on drugs at that point, you will get caught. If you want to knowingly cheat fellow athletes out of selection, you take drugs now—in the winter months—and go to countries of the world were testing is non-existent and where you can be pretty sure you can spend four or six weeks enhancing your performance doing six circuits a day as opposed to a normal person’s three, and then retain the benefit of that muscle bank as you move into the summer season, having lost any trace of the drugs in your system. Indeed, you can take a range of drugs that act as a curtain in front of a play, reducing the chance that you will be caught as you move into the season. The huge amount of money that the World Anti-Doping Agency put into testing at the Olympic Games is effectively to catch the dopey dopers, not those who spend a lot of time and effort to enhance their performance during the winter months, and thus cheat fellow athletes out of selection.
I am very grateful to the noble Baroness, Lady Wheatcroft, for her overgenerous words. She was an outstanding member of the advisory board that helped to design and implement the work that the British Olympic Association did to ensure the success of London 2012—so she is being overmodest in saying that her knowledge of the world of sport is not as great as she might like. It is outstandingly good.
I am also grateful to the Minister. I absolutely agree with her starting point that the World Anti-Doping Agency needs to work in tandem with individual countries, working closely together to put in place an effective legislative framework to deal with this issue. However, it is not correct to say that leaving it completely to the World Anti-Doping Agency and to the sporting bodies will solve this problem. It patently is not solving the problem, which is the reason why so many countries are now legislating. Although they need to legislate in harmony, reflecting their own national interest, they have to legislate together, which is exactly what they are doing. In framing the legislation today, I have taken the example of the Germans, the Italians and the Dutch, who have focused on the fact that it is not just the athlete but the entourage who need to be criminalised. The deterrent effect in those countries of putting legislation on to the statute books has already been very effective.
Finally, on the end-of-year review, I said at the outset that I have been working on this since the Copenhagen declaration exactly 30 years ago, since when there have been so many reviews that it would take me a while to go through them all on Google. However, I always welcome further research and reflections from the Government. I note that they talk about the end of the year, which seems to be very close to our consideration of this legislation on Report. I therefore urge the Minister to see whether the review can be completed in time for Report so that we can take it into consideration. Even if it cannot, I would very much hope that, on Report, we can reflect on what my noble friend the Minister has said, as well as on the speeches made today from both sides of the House. We can then see whether we should send a legislative framework down to the Commons, so that in the new year, which is the likely date, Members can take into account the review to which the Minister alluded and, if necessary, amend the legislation at that point. We can consider any further amendments.
I believe there is widespread support for this provision both inside and outside the House and across parties. I very much hope this work will continue between now and Report, with further consideration on Report. In the light of that, and with my thanks to the Minister for her speech, I beg leave to withdraw the amendment.
Lord Kennedy of Southwark
My Lords, Amendment 214C, moved by the noble Baroness, Lady Berridge, and supported by the noble Baroness, Lady Jones of Moulsecoomb, and my noble friend Lord Brooke of Alverthorpe, reduces the legal alcohol limits in England and Wales to match the limits introduced by the Scottish Government on 5 December 2014.
My noble friend Lord Harris made a particularly powerful point in respect of deaths caused through drink-driving. I am very supportive of this amendment, as I think we need tough laws on drinking and driving that are effectively enforced.
I also think that it would be quite good to have the same limit across the whole of Great Britain, and ideally the whole of the United Kingdom. This would make it much easier to understand for everyone concerned. I am also not against having a lower limit for commercial drivers and novices.
There is clear evidence that a reduction in the drink-drive limits would save lives. No one has said that is not the case. We have the highest limits in Europe. Only Malta has the same drink-drive limit we have in this country. The limit introduced by the Scottish Government is the same one that is in force in Austria, Belgium, Croatia, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Latvia, Luxembourg, the Netherlands, Portugal, Slovenia and Switzerland. So the case is powerful. In none of these countries is there a problem with the limit being effective.
The second amendment in the group, again in the name of the noble Baroness, Lady Berridge, and my noble friend Lord Brooke, seeks to create a lower limit for novice and professional drivers. Again, I think that this is something we should consider. Many countries have this. That is certainly the case in many of the countries I read out, including Ireland and North Ireland. I think that it is important, if you are a professional or a novice driver, to have a lower limit.
I passed my driving test 36 years ago. I remember getting my first car—you are let loose and you are in there on your own. If you think about it, you are not very experienced at that point. Therefore it would be a good to enforce a lower limit. The fact is that our limits are comparatively high. I hope the Minister will respond to the amendment moved by the noble Baroness, Lady Berridge. It is very good, and I hope that we will get a positive response from the Government. If not, I hope that the noble Baroness will bring it back on Report. I assure her that if she wants to test the opinion of the House at that point, we will support her.
Baroness Williams of Trafford
My Lords, I know that these amendments relate to concerns around the Government’s approach to drink-driving limits, particularly in light of changes in the law in Scotland and Northern Ireland, and, more recently, with a proposed change in Malta to lower the drink-drive limit. First, I emphasise that tackling drink-driving is a priority for the Government and that, together with the police, we continue to take robust enforcement action against this reckless behaviour.
Other countries may have a lower alcohol limit, but they do not necessarily have a better record on reducing drink-drive casualties. While it is difficult to make direct comparisons, some stark contrasts clearly exist between ourselves and our European neighbours. Estonia, for example, with a population of 1.3 million, has a limit of 20 milligrams per 100 millilitres of blood and carries out 10 times more breath tests than we do in Great Britain. Yet 160 people died there in 2014 as a result of drink-driving. That rate is 30 times greater per head than in Britain. Closer to home, we can look at France. With a similar population to us, it suffers nearly four times the drink-drive fatalities that we do. Even taking into account those cases that fall between its limit and ours, we perform significantly better.
In many of these countries a first drink-drive offence gets you a fine and some penalty points. Indeed, in Northern Ireland they intend to bring in a fixed penalty notice regime. They will hand out penalty points to those offenders found to be over the new limit but under the old one. There is no appetite amongst the public or road safety groups in England and Wales to reduce the penalties and not disqualify offenders who flout the law. Nor would we wish to create in the minds of potential offenders the thought that they might get only a fine and penalty points and so encourage them to drink and drive.
In England and Wales, the success we have had in tackling drink-driving has been down to the severe penalties, rigorously enforced and backed up with hard-hitting campaigns, which now make this behaviour utterly socially unacceptable. Our roads continue to be amongst the safest in the world because we crack down on those who break the law. Last year we made it a requirement for those convicted of drink-driving offences to undertake medical tests to ensure they are not still dependent on alcohol before they are allowed to drive again.
The same legislation, the Deregulation Act 2015, also made an important change to drink-driving laws by removing the so-called “statutory option”, which allowed drivers who provided a breath test that was slightly in excess of the prescribed limit to demand a blood or urine test back at the station. By removing this provision, individuals have been denied the chance to sober up and so drop below the prescribed limit while waiting for a blood or urine sample to be taken.
Yes, there is always more to be done, but harmonisation with other countries with a poorer record of tackling drink-driving is not a reason in itself to lower the limit.
Lord Kennedy of Southwark
In this debate no one has said that we want to lower the penalties—just to lower the limits. We have a good record in this country, and I give credit to our police service for that. The noble Baroness’s amendment is asking only to reduce the limits. She did not talk about penalties or enforcement, and, of course, as my noble friend Lord Harris said, if we looked at the number of deaths caused under the limit enforced now and above the proposed limit, we could save more lives.
Earl Attlee
My Lords, I understand the argument but the difficulty is that those offences could just be caused by people making a stupid mistake and I am not sure that lowering the limit would solve the problem.
Baroness Williams of Trafford
My Lords, can I intervene on myself? I totally understand what noble Lords are saying. I am not trying to compare us to other countries but to demonstrate that where there is a combination of factors, such as enforcement and type of penalty regime, different results are thrown up. It is not just the drink-drive limit that has an effect, albeit that we have, of course, reduced ours—our enforcement is also very strong. I hope I have made it clear that it is not just the limit that is important but other factors, too. I am now going to provide a bit more detail, which noble Lords will be relieved to hear.
The Department for Transport collects coroners’ data. Of drivers killed on the road, over 72% have little or no alcohol in their systems—and I am talking here about 0 to 9 milligrams of alcohol, which must be less than a sip of a glass of red wine. So, the vast majority of drivers killed on the road have no or little alcohol in their system; I will leave noble Lords to conclude why. Just over 3% have a blood alcohol content between 20 and 50 milligrams per 100 millilitres of blood, while a similar proportion, just under 3%, were found to have between 50 and 80 milligrams. However, the proportion of drivers killed jumps significantly to 17% for those with above 80 milligrams in their systems. This is the evidence that shows us where the risk lies and therefore where we should target our efforts. But I emphasise that statistic about drivers killed on the road who have virtually no alcohol in their system—perhaps their deaths are a result of being elderly or less able to react to what is happening around them, but noble Lords will reach their own conclusions.
We do not, however, tolerate drug-impaired driving, which I think the noble Lord, Lord Paddick, asked about. That is why we introduced the new drug-driving offence in March 2015, setting specified limits for 17 drugs. The police are having success in taking these dangerous drivers off our roads and we are on target to convict over 7,000 drug drivers in 2016 compared to 879 in 2014. Indeed, 20% of drug-drivers convicted between 2009 and 2014 had previous drink-driving convictions. Our evaluation of the new drug-driving law has also highlighted just how dangerous these drivers are: 63% of those convicted in 2015 under the new Section 5A law had a previous conviction; 22% were serial offenders with more than 11 offences to their name. It means that we will be taking more than 1,500 drug- driving offenders who are also serial offenders off our roads this year.
Lord Kennedy of Southwark
The Minister said that the statistics on what is happening in Scotland will be available shortly. Is she telling the Committee that the UK Government will evaluate them when they become available?
Baroness Williams of Trafford
My Lords, the UK Government will look at them with great interest. There may be compelling evidence that comes out of them. Basically, the Government will look at them when they come out.
Earl Attlee
My Lords, it seems that we will have to wait a very long time for these statistics, until summer next year. It is possible that I am wrong in my position and that the statistics will tell us so. Is there nothing that can be done to speed up the production of the statistics? Perhaps the Minister would like to write to me on that point rather than answering straightaway.
Baroness Williams of Trafford
My Lords, we do not really have any jurisdiction to tell Scotland what to do about getting the statistics. I hope that they will be ready as soon as possible.
Baroness Berridge
My Lords, I am grateful to the noble Baroness, Lady Jones, and the noble Lord, Lord Brooke of Alverthorpe, for putting their names to the amendment—and for noble Lords making the most of the generous rules in Committee for debating this issue. I agree with my noble friend the Minister that changing the law will not change anything if we do not then support it with a campaign to make people aware. Clearly, we now have a cross-border issue anyway. We need to make people aware that there is a difference in the law as they drive over the border from Cumbria or Northumberland into Scotland.
I agree with my noble friend that it is clear from the statistics that risk increases exponentially over the 80 milligram limit. However, that is not to say that under that limit there is not a risk with which we need to deal. To say that we are just targeting the most dangerous individuals does not give any reassurance to an affected family member. We need to look at this again.
My noble friend outlined the figures from coroners about drivers killed on the roads. Because of the complex factors that I outlined on the law, enforcement and the safety of vehicles, 60% of the people who are now injured or killed are not the driver of the vehicle concerned. People should be able to walk or cycle down the street and not be concerned that there are people with an amount of alcohol in their blood that affects their safety. That is why we do not look at the limit over which risk rises exponentially for train drivers and airline pilots. We say that they cannot drink. Why, then, do we have a different attitude on the roads? That is not sustainable.
As a lawyer, I do take into account the argument of my noble friend Lord Attlee who asks whether we can prove beyond reasonable doubt that taking this limit down from 80 to 50 will definitely save lives. I cannot prove this to an absolute certainty, but on at least the balance of probabilities. Reducing the limit from 80 to 50 in Switzerland—and the Swiss are known for being compliant people—produced evidence of a reduction in injuries and deaths. There is evidence out there to say that if we reduced the limit along with maintaining compliance, telling people and promoting messages, we would, with very little effort, stand an incredibly good chance of reducing the number of deaths on our roads.
This is an amendment for which the Police Federation are asking. The police are our enforcement. I commend their enforcement as well as the amazing medical care that is all part of this picture. However, we now need to play our role. Therefore, I hope that my noble friend the Minster will go away and reflect. Although the Chamber is not well populated and we have not heard from the often influential Cross-Benchers on this matter, the feeling in this Committee is that this is something that we could do and that at this stage we have enough evidence to change the law. Now is the right time of year.
I thank my noble friend the Minister. I hope that we shall hear of a change of position but at this stage I beg leave to withdraw the amendment.
“SCHEDULE 15ALATE NIGHT LEVY REQUIREMENTS1 Chapter 2 of Part 2 of the Police Reform and Social Responsibility Act 2011 (late night levy) is amended as follows.2 (1) Section 126 (“relevant late night authorisation” and related definitions) is amended as follows.(2) In subsection (2)—(a) for ““Relevant late night authorisation”” substitute ““Relevant late night alcohol authorisation”;(b) after “licensing authority” insert “, a late night levy requirement”;(c) at the end of paragraph (b) insert “(whether or not it also authorises the provision of late night refreshment at a time or times during such a period)”.(3) After subsection (2) insert—“(2A) “Relevant late night refreshment authorisation”, in relation to a licensing authority, a late night levy requirement and a levy year, means a premises licence which— (a) is granted by the authority, (b) authorises the provision of late night refreshment at a time or times during the late night supply period on one or more days in the related payment year, and(c) does not also authorise the supply of alcohol at a time or times during any such period.”(4) After subsection (3) insert—“(3A) Where a licensing authority decides under section 125(2) to apply a late night levy requirement in respect of both relevant late night alcohol authorisations and relevant late night refreshment authorisations, the licensing authority may determine under section 132(1)—(a) a single late night levy period that is to apply in respect of both kinds of authorisations, or(b) two late night levy periods, one of which to is to apply in respect of relevant late night alcohol authorisations and the other of which is to apply in respect of relevant late night refreshment authorisations.”(5) In subsection (5), for “The late night supply period” substitute “A late night supply period”.(6) In subsection (8)—(a) for “the late night levy requirement” substitute “a late night levy requirement”;(b) omit “in its area”.3 (1) Section 127 (liability to pay late night levy) is amended as follows.(2) In subsection (1)—(a) for “the late night levy requirement” substitute “a late night levy requirement”;(b) after “the area” insert “or part of the area”;(c) for “a relevant late night authorisation” substitute “a late night authorisation to which the requirement relates”.(3) In subsection (2), for “a relevant late night authorisation” substitute “a late night authorisation to which the requirement relates”.(4) After subsection (2) insert—“(2A) In addition, if the requirement relates to a late night authorisation that is a relevant late night refreshment authorisation, the holder of the authorisation is not liable to pay the late night levy for a levy year if only hot drinks are supplied (or held out for supply) in reliance on the authorisation during the levy year.”(5) In subsection (3), for “in its area” substitute “in relation to the late night levy requirement”.4 (1) Section 128 (amount of late night levy) is amended as follows.(2) In subsection (1) after “For” insert “any levy requirement and”.(3) In subsection (2), for “a relevant late night authorisation” substitute “a late night authorisation to which a late night levy requirement relates”.(4) In subsection (3)—(a) after “in relation to” insert “a late night levy requirement and”;(b) for “in its area” substitute “in relation to the late night levy requirement”.(5) In subsection (4)—(a) for “the late night levy” substitute “a late night levy”;(b) after “the same” insert “, in respect of all late night levy requirements”; (c) for “the levy” substitute “a levy”;(d) omit “for the levy year”. 5 (1) Section 129 (payment and administration of the levy) is amended as follows.(2) In subsection (1), in the closing words, for “the late night levy” substitute “a late night levy”.(3) In subsection (2)—(a) for “the levy” substitute “a levy”;(b) for “relevant late night authorisations” substitute “a late night authorisation to which a late night levy requirement relates”.(4) In subsection (4)—(a) in paragraph (a), for “a relevant late night authorisation” substitute “a late night authorisation to which a late night levy requirement relates”;(b) in paragraph (b), for “a relevant late night authorisation” substitute “a late night authorisation to which a late night levy requirement relates”;(c) in paragraph (c), for “the relevant late night authorisation” substitute “a relevant late night alcohol authorisation to which a late night levy requirement relates”;(d) in the closing words, for “the levy year” substitute “the levy year in question”.(5) In subsection (5), for “the late night levy” substitute “a late night levy”.(6) In subsection (6), in the closing words, for “the late night levy” (in both places where it occurs) substitute “a late night levy”.6 (1) Section 130 (net amount of levy payments) is amended as follows.(2) In subsection (1), after “In this Chapter” insert “, in relation to a late night levy requirement,”.(3) In subsection (3), for “the late night levy requirement” substitute “a late night levy requirement”.(4) In subsection (5), in the opening words, at the beginning insert “In relation to a late night levy requirement,”.7 (1) Section 131 (application of net amount of levy payments) is amended as follows.(2) In subsection (1), at the beginning insert “In relation to a late night levy requirement,”.(3) After subsection (4) insert—“(4A) The licensing authority must publish information as to how it applies the remainder of the net amount mentioned in subsection (2)(b).(4B) The information must be published at least once in each calendar year during which any part of the remainder is applied.(4C) It is for the licensing authority to determine the manner in which the information is published.”(4) In subsection (6)(b), for “in respect of the levy” substitute “in respect of a levy”.8 (1) Section 132 (introduction of late night levy requirement) is amended as follows.(2) In subsection (1)—(a) in the opening words, for “the late night levy requirement” substitute “a late night levy requirement”;(b) in those words, omit “in its area”;(c) in paragraph (b)—(i) in sub-paragraph (i), after “period” insert “or periods (as to which see section 126(3A))”;(ii) in sub-paragraph (ii), omit “in its area”; (iii) in sub-paragraph (iii), omit “in its area”.9 (1) Section 133 (amendment of late night levy requirement) is amended as follows. (2) In subsection (1)— (a) in the opening words, for the words from the beginning to “section 125,” substitute “Where, in consequence of a decision by a licensing authority under section 125, a late night levy requirement applies,”(b) in paragraph (a), omit “in the area”;(c) in paragraph (c), for “in the area” substitute “in relation to the late night levy requirement”.(3) After subsection (1) insert—“(1A) Where the late night levy requirement is in respect of both relevant late night alcohol authorisations and relevant late night refreshment authorisations, the power conferred by subsection (1)(b) includes—(a) where a single late night levy period applies, power to decide that two late night levy periods are to apply instead;(b) where two late night levy periods apply, power to decide that a single late night levy period is to apply instead.”(4) In subsection (4)—(a) in paragraph (b), omit “in the area of a licensing authority”;(b) in that paragraph, after “relevant decision” insert “by a licensing authority”;(c) in the closing words, omit “in its area”.10 (1) Section 134 (introduction or variation of late night levy requirement: procedure) is amended as follows.(2) In subsection (1)—(a) in paragraph (a), for “the late night levy requirement” substitute “a late night levy requirement”;(b) in that paragraph, omit “in the area of the licensing authority”;(c) in paragraph (b), for “the late night levy requirement” substitute “a late night levy requirement”;(d) in that paragraph omit “in the area of the licensing authority”.(3) In subsection (2)—(a) in paragraph (a)(iii), for “relevant late night authorisations” substitute “late night authorisations to which the levy requirement in question relates or would relate”;(b) in paragraph (c)(i), for “so as to cease to be a relevant late night authorisation before the beginning of the first levy year” substitute “so that it is not a late night authorisation to which the levy requirement relates at the beginning of the first levy year”.(4) In subsection (3)—(a) for “the late night levy requirement” substitute “a late night levy requirement”;(b) omit “to the area of a licensing authority”.(5) In subsection (4)—(a) for “the late night levy requirement” substitute “a late night levy requirement”;(b) omit “in its area”.(6) Omit subsection (5).11 (1) Section 135 (permitted exemption and reduction categories) is amended as follows.(2) In subsection (1)— (a) in paragraph (a), for “relevant late night authorisations” substitute “relevant late night alcohol authorisations or relevant late night refreshment authorisations”;(b) in that paragraph, for “the requirement to pay the late night levy is not to apply” substitute “no requirement to pay a late night levy is to apply”; (c) in paragraph (b), for “relevant late night authorisations” substitute “relevant late night alcohol authorisations or relevant late night refreshment authorisations”;(d) in that paragraph, for “the levy” substitute “a levy”.(3) In subsection (2), omit “in its area”.(4) In subsection (4)—(a) in paragraph (a), for “the levy” substitute “a levy”;(b) in paragraph (b), for “the levy” substitute “a levy”;(c) in the closing words—(i) for “the late night levy” substitute “a late night levy”;(ii) after “the same” insert “, in respect of all late night levy requirements,”;(iii) for “relevant late night authorisations” substitute “relevant late night alcohol authorisations or relevant late night refreshment authorisations”;(iv) omit “for a levy year”.12 After section 136 insert—“136A Late night levy: requests by relevant local policing bodies(1) The relevant local policing body in relation to a licensing authority may request the licensing authority to make a proposal for a decision under section 125(2) that a late night levy requirement of a kind described in the request is to apply.(2) In deciding whether to make a request, the relevant local policing body must consider the matters mentioned in section 125(3).(3) A request must be accompanied by any evidence the relevant local policing body has in support of its request.(4) In deciding how to respond to the request, the licensing authority must consider the matters mentioned in section 125(3).(5) The licensing authority must publish—(a) the request, including the evidence accompanying it, and(b) its response to the request.(6) The response must include reasons, including an explanation of the outcome of the authority’s consideration of the matters mentioned in section 125(3).(7) It is for the licensing authority to determine the manner in which it publishes the request and its response under subsection (4).”13 (1) Section 137 (interpretation) is amended as follows.(2) For ““the late night levy requirement” substitute ““a late night levy requirement”.(3) At the appropriate place insert—““late night refreshment” has the same meaning as in the Licensing Act 2003 (see Schedule 2 to that Act);”.(4) In the definition of ““levy year”—(a) for “the late night levy requirement” substitute “a late night levy requirement”;(b) omit “in the area of the authority”.(5) In the definition of ““payment year”, for “a relevant late night authorisation” substitute “a late night authorisation to which a late night levy requirement relates”.”
Baroness Hamwee
My Lords, Clause 140 provides for a requirement to produce a nationality document in the case where,
“an individual has been arrested on suspicion of the commission of an offence”,
and,
“an immigration officer or constable”,
gives,
“the individual a notice requiring the production of a nationality document”.
This amendment comes from the Joint Committee on Human Rights, of which I am a member. The committee regarded Article 14—the anti-discrimination article—as being engaged. The organisation Liberty has argued that if these powers,
“are to operate in a similar fashion to powers in the Immigration Bill”,
which a number of us will recall,
“immigration checks would become a routine aspect of every police engagement with a suspect. It is difficult to think how suspicion”,
which is required,
“will be generated if this is not the intended model, short of the police making assumptions about an individual’s status on the basis of appearance or accent”.
The committee noted the risk in this provision that requirements to confirm nationality could have a differential impact on BAME UK citizens. As our report says:
“We also questioned whether a person asked to produce a passport or other nationality document should instead be entitled to supply documentation sufficient to demonstrate an entitlement to such a document”,
since not everyone has a passport. We contacted the then Minister for the subject, who told the committee in the summer:
“Before deciding to issue a notice requiring a nationality document to be produced, as a matter of operational best practice, officers should check whether or not there is an immigration interest with Home Office Immigration Enforcement. If, having undertaken these checks, it is confirmed that the individual is not a UK national (or it is suspected the person may not be), it is a proportionate response to require the production of a document in order to properly establish identity. Should a UK national not possess a passport but are able to produce evidence (documentary or otherwise) that they are entitled to one under the terms of published guidance, it is reasonable that officers should take that into account. We”—
the Government—
“do not consider it necessary that such eventualities are set out on the face of the Bill, but will instead issue guidance to officers in that regard”.
The Joint Committee made the following point:
“If the Government accepts that alternative documentation may be required in circumstances where an individual does not possess a passport or driving licence, it is not clear why this fact should not be stated on the face of the Bill”.
This is a safeguard, after all, and something more than operational guidance would be appropriate. I beg to move.
Baroness Chisholm of Owlpen
My Lords, I am grateful to the noble Baroness and the other members of the Joint Committee on Human Rights for their consideration of the Bill. It is accepted that there may be situations where a UK national does not possess a passport and should be able to produce other documentary evidence to satisfy an officer that they are entitled to one under the terms of published government guidance.
The Government’s view is that this matter can properly be addressed through guidance, but in the light of the Joint Committee’s recommendation, I am content to take this amendment away and consider it further in advance of Report. I trust that, on that basis, the noble Baroness would be content to withdraw her amendment.
Baroness Hamwee
My Lords, four minutes has achieved more than I might have expected. I realise that perhaps, in reading the content of the report fairly quickly, I might not have sufficiently stressed the risks of discrimination with which we were particularly concerned. Having said that, I beg leave to withdraw the amendment.
Lord Sharkey (LD)
My Lords, I shall also speak to Amendment 214F. Both amendments are in my name and those of the noble Baroness, Lady Williams of Trafford, and the noble Lords, Lord Lexden and Lord Black of Brentwood. These amendments each do one simple thing. Amendment 214E grants posthumous pardons to those men, now deceased, who were convicted under the dreadful Labouchere amendment and other homophobic legislation, for acts that would now not be crimes. Amendment 214F provides that a pardon is granted to those living who were similarly convicted and who have, or will have, obtained a disregard under the Protection of Freedoms Act. I am very glad to say that the Government have said they will support these amendments and I thank the Minister for her help and encouragement.
If these amendments pass, it will be the culmination of a long campaign to put right a historic injustice. Some 65,000 men were convicted under the Labouchere amendment and other anti-gay statutes. Of these, 16,000 are still alive and 49,000 are dead. When we passed the Protection of Freedoms Act in 2012 we made provisions for the living 16,000 to have their convictions disregarded. That is, for all practical purposes, the convictions would no longer have any effect. That was a great step forward. We recognised a terrible injustice and did something to make amends and to put things right. At the time it seemed to me that the 49,000 men convicted but now dead deserved exactly the same treatment. It seemed a straightforward argument. The disregard for the living acknowledged a wrong and offered a partial remedy. Simple justice suggested that we do the same for the dead. We should acknowledge the wrong done to them and should provide some comfort to their relatives, their friends and their memory.
I tried, with other noble Lords, notably the noble Lords, Lord Black of Brentwood, Lord Lexden and Lord Faulkner of Worcester, to amend the Protection of Freedoms Act to do exactly that—to extend the disregard posthumously. I tried via the LASPO Bill in March 2012 and via the Criminal Justice and Courts Bill once in July 2014 and again that October. During this process the Government’s position began to shift. The initial and rather blunt refusal to take action became a willingness to discuss and, eventually, a willingness to help. I was encouraged to persevere and to promote a posthumous pardon for Alan Turing. There was a feeling that, if Turing were pardoned, it would be morally impossible not to extend that pardon to all those others similarly convicted but now dead. So it would prove, if these amendments now pass. If they do, we will finally be putting right a cruel and unjust historic wrong—a wrong that has wrecked the lives of thousands of gay men. I urge your Lordships to support these amendments and I beg to move.
Baroness Williams of Trafford
I intervene on the noble Lord to say that not only do the Government support this amendment, we strongly support it. I thought that might be helpful to the debate in Committee.
Lord Lexden (Con)
My Lords, it is a pleasure and, indeed, an honour to support the amendments tabled by my noble friend Lord Sharkey. They represent the culmination of work done over several years by my noble friend to secure as much redress as is practicable for victims of grave injustice, including those who are no longer alive—gay men who suffered great wrong simply for giving expression to the love that for far too long dared not speak its name but has thankfully found its full and authentic voice in our times. My noble friend kept the issue before successive Ministers and their officials. It is in part due to the polite but enduring pressure that he applied that commitment to action was included in the Conservative Party manifesto at the last general election. As my noble friend Lady Williams of Trafford has already made clear, these amendments will be accepted by the Government. It is a day of great importance for gay people, a view shared by my noble friend Lord Black of Brentwood, who has also put his name to these amendments but has had to leave the Chamber.
I turn to Amendments 214H to 214L, 235A and 239C in my name. My amendments have two aims. The first is to extend the pardons for iniquitous former offences, now abolished, that will be available to living and deceased persons in England and Wales to their counterparts in Northern Ireland. The second aim is to extend the disregard scheme now in operation in England and Wales to Northern Ireland, where at present it does not exist. The first of the amendments relating to pardons, Amendment 214H, includes provision for legislation that is specific to Northern Ireland. Through this amendment and the two that follow, pardons could be granted in the same manner as in England and Wales.
Because there is no disregard scheme, the foundation on which pardons will rest in Northern Ireland, Amendment 214L, is vital. It will insert a new clause in the Bill that would make a number of amendments to the Protection of Freedoms Act 2012, changing the scope of Chapter 4 of Part 5. As a result, application could be made to the Secretary of State for Northern Ireland to have a conviction or caution in respect of an abolished offence in Northern Ireland disregarded. Since justice and policing are now transferred matters in Northern Ireland, the responsibility for designing and implementing a disregard scheme would in practice be expected to rest with the Northern Ireland Executive. Exactly how the system would work may need further consideration; it must clearly be fully acceptable in all its details to the Executive.
The impetus for the extension to Northern Ireland of the arrangements proposed in England and Wales has come from Northern Ireland itself. I am merely the spokesman and agent of courageous campaigners for full gay rights in the Province who are working to achieve complete equality with the rest of the UK. No one has done more to create support for the amendments I have put forward than Councillor Jeffrey Dudgeon MBE, who in 1981 paved the way for the decriminalisation of homosexuality in Northern Ireland through a successful case at the European Court of Human Rights.
The five main parties in the Northern Ireland Assembly have all pledged support for the principles embodied in the amendments. I am in the fortunate position of being able to tell your Lordships’ House that yesterday the Minister of Justice in Northern Ireland, Claire Sugden, announced that a legislative consent Motion would shortly be introduced in the Assembly enabling these amendments, after any revision that may be needed, to become law in Northern Ireland.
Lord Kennedy of Southwark
My Lords, this has been an important debate and I am pleased to be able to respond on behalf of the Opposition.
I can support all the amendments in this group as far as they go, although some go further than others. I was particularly pleased to see the amendments of the noble Lord, Lord Lexden, which extend posthumous pardons to Northern Ireland. However, further rights need to be won for LGBT people and women in Northern Ireland, as well as on the mainland. We must return to them at a later date.
I join my noble friend Lord Cashman in paying tribute to the noble Lords, Lord Lexden and Lord Sharkey, for their tireless campaigning. I also pay tribute to my noble friend Lord Cashman for his tireless campaigning to deliver equality for LGBT people. There has been tremendous progress in the past 20 years in particular, and my noble friend has been there, standing up, making the case and challenging prejudice, hate and injustice. We are all grateful to him. The most comprehensive amendments in the group are those in the name of my noble friend and they have my full support. I very much agree with him that granting a pardon to any person convicted of or cautioned for a now-abolished offence, providing they meet certain conditions, and regardless of whether they are living or dead, is the way to proceed. His amendments go further in that they extend pardons to those convicted or cautioned under Section 32 of the Sexual Offences Act 1956 or the Vagrancy Act.
My noble friend made it clear that nothing in his amendments would grant a pardon to any person convicted or cautioned for soliciting. Nor would the amendments grant a pardon to anyone convicted or cautioned in respect of conduct involving a person under the age of 16. My noble friend gave an important illustration of the effect of Section 32 of the Sexual Offences Act 1956, and I agree that it is important to right this wrong for both those who are living and those who are dead. Treat them equally. This is the right thing to do. No one would be pardoned for anything that is still an offence. I hope your Lordships’ House will accept my noble friend’s amendments.
Baroness Williams of Trafford
My Lords, I am pleased to be able, on behalf of the Government, to warmly welcome Amendments 214E, 214F, 214G, 239A and 246, and I congratulate the noble Lord, Lord Sharkey, on bringing them forward, as well as the noble Lord, Lord Cashman, who spoke so movingly.
As the noble Lord, Lord Sharkey, explained, these amendments broadly do two things. First, they confer an automatic pardon on deceased individuals convicted of certain consensual gay sexual offences that would not be offences today. Secondly, they confer a pardon on those persons still living who have a conviction for such an offence that has been disregarded under the terms of the Protection of Freedoms Act 2012. It is important to note that for the pardon to apply, the conduct in question must have been consensual and involved another person aged 16 or over, which is the current age of consent. The conduct must also not involve an offence of sexual activity in a public lavatory, which is still illegal today.
This historic step is momentous in righting wrongs suffered by thousands of gay and bisexual men. It is a tragedy that people were criminalised over a shamefully long time for something that society regards today as normal sexual activity. It is time to right the wrongs of the past and I am pleased to support the noble Lord, Lord Sharkey, in putting forward these amendments.
It is important that we link the pardons for the living to the disregard process so that the necessary checks can be carried out to identify whether the individual in question engaged in activity that constitutes an offence today. Since the disregard scheme under the Protection of Freedoms Act came into force, eight disregard applications that concerned non-consensual activity have been rejected. It is therefore crucial that a pardon for the living should only follow a successful disregard application. This mitigates the risk of individuals claiming to be cleared of offences that are still crimes today. It takes into account and protects the rights of victims and ensures that children and vulnerable people are safeguarded from potential risks. This is extremely important and an objective with which I am sure noble Lords would agree. It is for these reasons that the Government cannot commend to the Committee Amendment 214S in the name of the noble Lord, Lord Cashman.
The amendments in the name of my noble friend Lord Lexden seek to make corresponding provision for Northern Ireland. The Committee will be aware of the established convention that the UK Parliament legislates on devolved matters in Northern Ireland only with the consent of the Northern Ireland Assembly. Subject to observing that convention, the Government are ready to look favourably at amendments at a later stage of the Bill along the lines proposed by my noble friend.
I understand that on Monday of this week, the Ministry of Justice tabled an amendment to a legislative consent Motion before the Northern Ireland Assembly seeking its consent to the UK Parliament legislating on this matter. If the proposed legislative consent Motion can make sufficient progress over the next two to three weeks, I would anticipate that the Government will be able to work with my noble friend to come to an agreement before the Bill leaves this House. I should add that the Scottish Government have separately announced their intention to bring forward legislation in the Scottish Parliament.
I turn to Amendment 214R, which is again in the name of the noble Lord, Lord Cashman. The amendment seeks to extend the disregard scheme to include convictions for the soliciting offence in the now-repealed Section 32 of the Sexual Offences Act 1956. Under the current disregard scheme, for the now-repealed offences of buggery and gross indecency between men, it is a relatively straightforward matter to establish whether the relevant statutory conditions are met; namely that the other person involved in the conduct consented and was aged 16 or over, and the conduct would not now constitute the offence of sexual activity in a public lavatory. In contrast, the soliciting offence in Section 32 of the 1956 Act covered a broad range of behaviours and, as such, it is not a straightforward matter to formulate additional conditions to ensure that behaviour which would still constitute an offence today cannot be the subject of a disregard. It is likely that any such conditions would entail more than simply establishing facts—for example, whether the other person was aged 16 or over—and require a shift to making judgments as to whether an activity would be captured by a range of different offences today. This creates some practical challenges in accessing records in sufficient detail to make that judgment.
Lord Cashman
I have listened with great interest and have two points to make. First, a pardon does not remove a conviction from a record. The criminal activity remains on the record, so any employer making a heightened check can find what the conviction was for. I see no way in which, if we issued a pardon, it would put anyone at risk. Secondly, if there is a victim in any of these cases, and if we have managed to weed it out in the discharge process in relation to gross indecency and buggery, we should have the wit and wherewithal to approach this and find out how to apply exactly the same provisions and the same terms to the immoral purposes Section 32. Will the Minister commit at least to sitting down with me and the likes of Paul Johnson, from the University of York, and Stonewall, who have had great input into this, so that instead of protracting discussion of the problem, we can seek the solution?
Baroness Williams of Trafford
The noble Lord reminds me of a conversation that we had the other day. I quite happily undertake to meet him, Paul Johnson and other members of Stonewall to discuss this further. I was going on to say that, despite the challenges, I am ready to consider Amendment 214R further ahead of Report.
I conclude by congratulating the noble Lord, Lord Sharkey, but I also signal my happiness at finishing the work started by the coalition Government in recommending a pardon for Alan Turing. As a Mancunian, the situation he faced, and the fact that he ultimately took his own life, has saddened me for many years. Legislating in this Bill will speed up the delivery of a similar pardon for the thousands of gay and bisexual men convicted of now-abolished sexual offences. I look forward to the day—perhaps in a little over a month’s time—when this Bill is enacted and these provisions come into force. That will be a day we will all be able to celebrate. I commend the noble Lords’ amendments to the House.
“Other pardons for convictions etc of certain abolished offences
(1) This section applies to a person who has been convicted of, or cautioned for, an offence mentioned in section 92(1) of the Protection of Freedoms Act 2012 and who is living at the time this section comes into force.(2) If, at the time this section comes into force, the person’s conviction or caution has become a disregarded conviction or caution under Chapter 4 of Part 5 of the Protection of Freedoms Act 2012, the person is pardoned for the offence.(3) If, at any time after this section comes into force, the person’s conviction or caution becomes a disregarded conviction or caution under Chapter 4 of Part 5 of the Protection of Freedoms Act 2012, the person is also pardoned for the offence at that time.(4) Expressions used in this section or section (Sections (Posthumous pardons for convictions etc of certain abolished offences) and (Other pardons for convictions etc of certain abolished offences): supplementary))(1) (so far as relating to this section) and in Chapter 4 of Part 5 of the Protection of Freedoms Act 2012 have the same meaning in this section or (as the case may be) section (Sections (Posthumous pardons for convictions etc of certain abolished offences) and (Other pardons for convictions etc of certain abolished offences): supplementary))(1) as in that Chapter (see section 101 of that Act).”
Baroness Williams of Trafford
My Lords, as the noble Lord, Lord Paddick, has explained, Amendment 214Q seeks to confer a pardon on persons living and deceased who were convicted under Section 4 of the Vagrancy Act 1824. The noble Lord has explained that Section 4 was used to persecute young black men and this amendment deals with a separate matter to the one that we have just debated. It is, however, also the case that Section 4 was used to prosecute some gay and bisexual men, so there is a read-across to the earlier debate.
In relation to consensual activity between men over the age of consent, Section 101 of the Protection of Freedoms Act 2012 makes it clear that the disregard scheme covers not only the offences of buggery and gross indecency but attempts to commit such an offence, and an attempt to commit such an offence includes conduct covered by Section 4 of the Vagrancy Act 1824. Someone with such a conviction may also apply for that conviction to be disregarded and, if successful, will also receive a pardon under the terms of the new clauses in the name of the noble Lord, Lord Sharkey.
As to other conduct unrelated to homosexuality, the Government do not believe that it is appropriate to introduce a pardon for those convicted of an offence just because that offence has now been repealed and the behaviour in question is no longer regarded as criminal. Pardoning is exceptional by nature. The persecution of gay and bisexual men through the criminal law was a clear historical wrong that we should undoubtedly right through a pardon. There is a special and compelling moral case to try to redress wrongs done to gay and bisexual men in the context of the Government’s commitment to equality. The amendments from the noble Lord, Lord Sharkey, would, like the pardon for Alan Turing, remove a real and particular stigma that is suffered by the living and still attaches to the recently deceased.
The circumstances the noble Lord has described are quite different and, without looking at the facts of individual cases, it is impossible to know whether the conduct in question would still be an offence today.
In terms of the numbers, I was looking for inspiration but we have no data, I am afraid. On that note, I invite the noble Lord, Lord Paddick, to withdraw his amendment.
Lord Kennedy of Southwark
Does the Minister mean that she has no data here or no data at all?
(1) After Part 4 of the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015 (c.2 (N.I.)) insert—“Part 4APROTECTION OF VICTIMS OF FORCED MARRIAGE24A Anonymity of victims of forced marriageSchedule 3A (anonymity of victims of forces marriage) has effect.”(2) Insert, as Schedule 3A to that Act, the following Schedule—“SCHEDULE 3AANONYMITY OF VICTIMS OF FORCED MARRIAGEProhibition on the identification of victims in publications1_(1) This paragraph applies where an allegation has been made that an offence of forced marriage has been committed against a person._(2) No matter likely to lead members of the public to identify the person, as the person against whom the offence is alleged to have been committed, may be included in any publication during the person’s lifetime._(3) In any criminal proceedings before a court, the court may direct that the restriction imposed by sub-paragraph (2) is not to apply (whether at all or to the extent specified in the direction) if the court is satisfied that either of the following conditions is met._(4) The first condition is that the conduct of a person’s defence at a trial of an offence of forced marriage would be substantially prejudiced if the direction were not given._(5) The second condition is that—(a) the effect of sub-paragraph (2) is to impose a substantial and unreasonable restriction on the reporting of the proceedings, and(b) it is in the public interest to remove or relax the restriction._(6) A direction under sub-paragraph (3) does not affect the operation of sub-paragraph (2) at any time before the direction is given._(7) In this paragraph, “the court” means a magistrates’ court, a county court or the Crown Court.Penalty for breaching prohibition imposed by paragraph 1(2)2_(1) If anything is included in a publication in contravention of the prohibition imposed by paragraph 1(2), each of the persons responsible for the publication is guilty of an offence. _(2) A person guilty of an offence under this paragraph is liable, on summary conviction, to a fine not exceeding level 5 on the standard scale._(3) The persons responsible for a publication are as follows—
Type of publication | Persons responsible |
Newspaper or other periodical | Any person who is a proprietor, editor or publisher of the newspaper or periodical. |
Relevant programme | Any person who— (a) is a body corporate engaged in providing the programme service in which the programme is included, or (b) has functions in relation to the programme corresponding to those of an editor of a newspaper. |
Any other kind of publication | Any person who publishes the publication. |
Baroness Chisholm of Owlpen
My Lords, Clause 143 provides for lifelong anonymity for all alleged or proven victims of forced marriage in England and Wales, from the point of investigation onwards. At the request of the Minister of Justice in Northern Ireland, Amendments 215, 237 and 241 now extend this protection to cover victims in Northern Ireland.
We know that forced marriage can be hidden, and this measure will help to ensure that victims have the confidence to come forward so that they get the support they need and so that perpetrators are brought to justice. The protection mirrors the anonymity we introduced last year for victims of female genital mutilation. It will mean that the anonymity of victims of forced marriage can be protected from the time an allegation is made and that the publication or broadcast of any information likely to result in their being identified to the public is prohibited. Breach of the prohibition will be an offence punishable by a level 5—that is, £5,000—fine.
I will respond to Amendment 219CA once the Committee has had the opportunity to hear from my noble friend Lady Berridge. For now, I beg to move.
Baroness Berridge
My Lords, I rise to speak to Amendment 219CA. This lengthy amendment, which at the outset I accept will need recrafting on Report, seeks to deal with a simple problem that has cropped up in our law. It has done so accidentally, I think, but if not sorted out it will cause injustice. Although it is late, a short description of the law and the problem is necessary by way of background.
Successive Governments have sought to tackle forced marriage, beginning with the Forced Marriage (Civil Protection) Act 2007 and with further criminalisation in the Anti-social Behaviour, Crime and Policing Act 2014. To make these remedies effective, the law incorporated—for the first time, I believe—a definition of marriage that included marriages that were not at that time valid under UK law. I quote from the Crown Prosecution Service guidelines on the definition of “marriage”. It states that,
“‘marriage’ means any religious or civil ceremony … recognised by the customs of the parties to it, or the laws of any country in which it is carried out, as constituting a binding agreement, whether or not it would be legally binding according to the law of England and Wales”.
So a relationship that UK law does not currently define as marriage can now, for very good reason, count in our criminal courts and some of our civil courts, for forced marriage purposes, as a marriage. However, this leaves a gap.
A party to a forced marriage that is not valid under UK law cannot use that conviction as evidence of the marriage in the family courts to gain financial remedies. If you have entered into a marriage under duress—a forced marriage that is valid under UK law—that can be the subject of a crime or a civil protection order. You can then, because it is valid under UK law, go to the family courts and say, “I was forced into this marriage under duress”. It is then voidable and it can be annulled. This opens the door to financial relief and the distribution of the matrimonial property.
If under duress in our law you are forced into a religious marriage, it is valid for the purposes of our law in the criminal courts for a criminal offence under the civil protection forced marriage regime, but you are not then entitled to then take that conviction to the Family Court to obtain matrimonial remedy. This is a very different situation from the marriages valid under UK law, as I have outlined, for which you can get an annulment or, of course, a divorce. So if our law has accepted this small number of relationships as marriage for the purpose of the law on forced marriage, why can they not be used for other purposes, such as gaining financial remedy? Not allowing them to be used in this way is a real injustice to those victims of forced marriage who come forward to the Crown Courts but are left with the doors of the Family Courts shut to them in terms of matrimonial property.
I am not seeking for the law to see this small number of relationships as marriages for all purposes or to foist this on a person who, even after there is a conviction for forced marriage, wishes it to be viewed for all other purposes as the religious marriage it was but under duress. Surely, however, that person, in a forced marriage under duress that was a religious marriage, should have a choice—leave it as a religious marriage or take the conviction and be allowed to claim financial remedy under the Matrimonial Courts Act and other such remedies as he or she may on occasion need.
Many of those who have spoken to me on this issue are practising barristers and solicitors. There are many women who, some practitioners believe, do not come forward after years in a forced marriage that is valid only as a religious marriage under our law, as they know that our law leaves them without means to claim matrimonial property. They know they risk the only recourse being welfare benefits, particularly if their children are now adults and they have no claim for maintenance based on caring for the children. Their view is that many of these women would come forward to the Crown Court but are reluctant to do so because they do not want to leave themselves financially vulnerable and unable to access financial remedies. We have an anomaly created by the entry of a different definition of marriage into our law.
Surely it would be just for these people and for the taxpayer to allow someone who is the victim of a forced marriage of this nature to claim, if they wish, the matrimonial property as well. By analogy, we do not retry domestic violence convictions in our Family Courts after the Crown Courts convict a husband or wife. The conviction is accepted as evidence and used by the Family Courts. Why can a forced marriage conviction not also be used in such a simple procedural way to unlock the discretion to redistribute the property and bring justice and consistency in this regard across all our courts—civil, family and criminal?
I hope that my noble friend the Minister might have time to meet with the interested groups that are concerned about this problem in our law. I raised this matter at the time with the anti-social behaviour Bill, and it has come back because there are concerns around the gap we have left for victims of forced marriages that are religious marriages which are not fully accepted under our law. The amendment is a pre-emptive strike to try to avoid this injustice happening and potentially encourage a larger number of women to come forward because they will not risk their property rights, and they will be able to claim the matrimonial property as well as get a conviction in the Crown Court. I beg to move.
Baroness Hamwee
My Lords, we on these Benches very much support the noble Baroness’s amendment. She has obviously been working at this for some time—I see from her face that she has—and her explanation is clear and obviously based on the experiences of which she is aware. So we give her our support.
Baroness Chisholm of Owlpen
I am grateful to my noble friend Lady Berridge for explaining the purpose of her amendment. The Government are mindful that forced religious marriage may be a deliberate attempt to avoid financial consequences in the event of the break-up of the marriage. The existing position is that the financial orders provided for in the Matrimonial Causes Act 1973 are available only where a marriage is capable of legal recognition in England and Wales and where it is being brought to an end—or where judicial separation is ordered. However, where a marriage is not capable of legal recognition, parties have the same recourse to the court as unmarried cohabiting couples on the breakdown of the relationship. This applies to the division of any property and to financial provision for any children the couple have.
For those in a marriage that has no legal validity, the pressure from families and communities to stay together is no less strong because of the fact that the marriage has no legal consequences. It does not make it any easier for an individual to escape an abusive relationship, and we share my noble friend’s concern that it leaves women in particular vulnerable to hardship when the relationship breaks up, since there is no recourse to the court for the financial orders available to divorcing couples. The Government take this issue very seriously, and it is central to the independent sharia law review launched by the current Prime Minister in May this year. The Government will wish to consider the issue further in light of the findings from the review.
None the less, the law governing marriage, divorce and matrimonial property is complex, nuanced and finely balanced, reflecting as it does the wide range of personal circumstances in which people find themselves. The amendment would introduce a disparity with unmarried cohabitants and with those who are in unregistered marriages that are not forced. There is no evidence at this stage that the amendment—
Lord Harris of Haringey
I understand the point the Minister is making about consent, difficult precedents, cohabitation and so on. But we are talking about a specific circumstance here, which is about coercion. These are not proper arrangements, because somebody has been forced into marriage against their will. That is the context we are talking about. We are not talking about a sort of touchy-feely cohabitation relationship which then breaks down, but about somebody who has been forced into an arrangement of this sort, which is totally inappropriate and wrong in law.
Baroness Chisholm of Owlpen
I was not suggesting that, just that there are difficulties—other reasons why it could be more difficult to bring in. That is not to say that we are not keen to look further at this issue. However, because we want to consider the findings of the sharia law review, I ask my noble friend to withdraw her amendment so that we have a chance to do that.
Lord Kennedy of Southwark
What is the timescale for the review that the Minister mentioned?
Baroness Chisholm of Owlpen
That is up to the review and we do not know yet.
Baroness Berridge
I am grateful for the support from noble Lords. The first point I want to make is that the disparity has been created by the law. A different definition of marriage was introduced into the civil protection order in order to deal with a real problem. My complaint is not that that should not have happened but that it created the disparity of treatment that my noble friend outlined because it was introduced without all of the consequences being thought through.
The law is about forced marriage—we did not call it “forced cohabitation”. In addition, it does not cover every arrangement that people are forced into: the CPS definition that I outlined says that you have to fall into a religious arrangement that is a binding agreement. By calling the arrangement “forced marriage” we gave those people coming to the criminal courts—at great risk—the expectation that their arrangement would, for that purpose, be treated in our law as a marriage. But we did not go on and fulfil our obligations to ensure that they were safeguarded financially and received the anonymity that they need to come forward. I am grateful that my noble friend has said that we will consider this further and I hope that there will be a meeting with interested parties.
I also want to state that I am very disappointed with this debate. I specifically did not put this into the sharia review, because it is about religious marriages. The law does not say that coercion and force come under that umbrella but suddenly we have entered that realm. This is about religious marriages, and I have come across instances of these issues in all kinds of religious settings. We need to be incredibly careful, on a day like today when British Muslims are upset by the news, about putting something that is about legal rights, technicalities and procedure under that banner. I was so careful to ensure that this could not be badged like this and I am disappointed that that is what has happened and that it has not been considered along with other issues. This is much wider than that. I beg leave to withdraw the amendment.