Wednesday 9th November 2016
(8 years, 1 month ago)
Lords ChamberRead Hansard Text Read Debate Ministerial Extracts 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.
Baroness McIntosh of Pickering (Con)
My Lords, I welcome the Minister to her place and thank her for the manner in which she introduced the amendments. I rise to raise the concerns of the committee to which my noble friend referred—the ad hoc post-legislative scrutiny committee on the Licensing Act 2003.
I am still relatively new to your Lordships’ House and finding my way around its rules and procedures, and my question is simple: is it normal procedure for the House to constitute, in this case, an ad hoc post-legislative scrutiny committee of 12 very keen noble Lords for an Act passed over 12 years ago? They are performing their duty with great vigour and energy, and—apart from me—with a notable degree of expertise, which I am benefiting from hugely. I also place on the record how well served we are by the clerk and his team in our work in this regard.
Bearing in mind that the committee was constituted only in June, we began our work then with a view to conducting post-legislative scrutiny of the 2003 Act and to reporting within quite a challenging timeframe of some nine months. For clarification, why have the Government, as the Executive, undertaken a separate exercise of their own at this stage to review in the Bill the operation of some items with a view to revising them—in this case, the alcohol-related provisions of the 2003 Act? It is clearly a source of some concern to its members that the ad hoc committee has not had a chance to hear all the evidence, or to reach any conclusions on the recommendations that it would wish to report to the House in due course in March.
I do not intend to take up time this afternoon looking at the merits of the arguments that the Minister has rehearsed but I would like to ask a question on the consultation, as a number of concerns have been raised about Home Office consultations and the evidence that we have heard. Can the Minister explain how wide the consultation has been on the provisions in this little group of amendments and how many responses have been received? Is it possible for the House, and indeed the committee, to have access to those responses? At this stage, I would like to focus more on the procedures and processes being followed rather than the merits, with which we are occupying ourselves on a weekly basis between now and the end of March.
I would like to go further than the Minister has said in the letter that I received, and which was brought to the attention of the committee at 9 am today. In my noble friend’s words, the Government will take into consideration the recommendations and conclusions of the committee in due course, and they and the Home Office will consider carefully what additional changes, if any, should be made to the Act and through connected legislation. Perhaps I may press the Minister this afternoon. I would like to obtain a commitment from my noble friend not to implement any of what will become the Policing and Crime Act before the committee has reported to the House—and therefore not before the end of March. That commitment would be welcome and it would be a matter for the House to take note of. I am sure it is one on which the Government would wish to be held accountable.
I repeat that we are in the middle of what we take to be very important work. An important task has been set for us by the House to scrutinise the provisions of the 2003 Act. We are still receiving evidence and have not yet reached a position on which we will form a view. This is also the first occasion I have sat on such a committee, let alone had the honour and privilege to chair one, so I would like to be clear whether this is the normal procedure for a Government to follow in these circumstances.
I also alert the Government to the fact that while we do not wish to quote any of the evidence—it is there as a matter of record on the committee’s website—it is true that some of the evidence we have received, both written and oral, conflicts with the position that the Government have set out to the Committee this afternoon. I would certainly welcome a concession from the Minister that it would be sensible to wait until such time as the committee has had the chance to hear and consider all the oral and written evidence received, and that we will be able in due course to reach our conclusions and recommendations—and that only then will the Government, if necessary, proceed to implement this policy. A commitment from the Minister that the Government will keep an open mind and revise the policy as set out in these amendments would be most welcome.
Baroness Henig (Lab)
I rise to support the noble Baroness, Lady McIntosh of Pickering, and to put on record how excellently she is chairing this committee. I am possibly one of the “keen” members of this body, as she put it to the Committee. We are reviewing the Licensing Act and looking at a whole range of issues; clearly, it is not just the issues in this set of amendments. We are looking at how the whole Act has operated in the 11 or 12 years since it was brought in. Members of this House will remember the high hopes that people had of this Act and the things that were said about it. It is therefore obviously timely that the Act should be reviewed, which is what the members of the committee are presently engaged in.
As the noble Baroness said, the committee has taken a lot of evidence, written and oral, covering among other things the slow introduction of late-night levies, which the Minister mentioned, and the effect of cumulative impact assessment. I say to the Minister that not much of the evidence we have presently accumulated in fact supports what the Government are putting forward in these amendments. I find it rather unsettling that we are engaged in this exercise on behalf of the House of Lords and then the Government suddenly come forward with amendments which cut across the review. It has rather unsettled the committee because it introduces elements that we did not realise were ongoing.
The Minister said that there was evidence supporting these changes. I do not want to go into detail at this stage or to quote selectively, which could be misleading at this stage and could give a partial view of the issues at stake. It is right that the committee should be allowed to conclude its review, come to a considered decision and present its report and proposals for change—if any—to the Government. All that should happen before any of these changes are brought forward. I listened with great care to what the Minister said and appreciate that she said that these changes would not be brought in before we made our recommendations. However, I hope that this is not just the Government going through the motions of letting the committee do its work and then coming forward with the amendments that they have set their heart on anyway. I hope that the Government will look carefully at what we propose—perhaps even to the extent of modifying their approach if the evidence justifies it.
The evidence in these cases should be paramount. It might well suggest that these amendments will not achieve their objective. In fact, I would go so far as to suggest that that may well be the case. It might suggest that, despite the Government’s impatience to get on with these matters, what they are doing may not be as effective as some other way of proceeding. That surely is the job we have been asked to do—and which I hope we will in fact carry out. So my hope is that our review will help the Government in the longer term. That is what we are trying to do. In a way, by coming forward with these amendments the Government are pre-empting our efforts to get a good outcome from the review of the Act. That is why I seriously hope that the Government will not just stay these amendments but listen carefully to what the review comes forward with, before deciding how to move forward.
Baroness Grender (LD)
My Lords, I, too, back the words of our able chair on this Select Committee, the noble Baroness, Lady McIntosh of Pickering. I support what she has said and I note from the letter which we, as members of the committee, received only at 9 am today that the Leader of the House said:
“I am, however, pleased to hear that members of the committee are likely to be bringing their live insights into the policy to bear when the amendments are considered”—
so I would hate to let her down. I would therefore like to address in particular the issue of the late-night levy, which, as the Minister said, was introduced in 2011 and has had only seven local authorities take it up—seven, out of all the possibilities. There must be a reason for that. Of all of those, I shall examine Cheltenham, where the council withdrew the late-night levy. It did so because it raised less than 39% of the projected first-year income of £199,000.
Baroness Hamwee (LD)
My Lords, I had assumed when I saw these amendments that there must be quite a degree of urgency to the matter, given that they were being introduced at quite a late stage in the Bill. I had not appreciated that the House had set up a Select Committee to look at the issue. I can well understand that a lot of points will have been raised. I remember the debates about the 70:30 split. I remember debates about whether that was the correct split: whether it should be 50:50 between the police and the local authority or indeed 70:30 in favour of the local authority. I am pretty certain that I moved some of those amendments.
The noble Baroness, Lady McIntosh, is being mild in her request to the Government not to implement these changes before the committee reports. Any amendments must pre-empt the committee’s decisions. Given the degree of confusion to which my noble friend referred and which I well accept, to have further changes to the regime on the statute book but not commenced cannot make the matter any easier for any of those involved. The proper approach would be for the Government not at this stage to proceed with the amendments unless there is a degree of considerable urgency—and I have not picked up that that is the case.
Lord Brooke of Alverthorpe (Lab)
My Lords, briefly, I am also one of the members of the Select Committee under the great guidance and wisdom of our chairman. I share the views that have been expressed and I shall not repeat them. Why was this particular area selected from the document on modernising the police? Why have a host of other amendments not been tabled to pick up the other recommendations that the police want to see implemented? There is almost enough here for a package rather than picking out individual bits. Why were other recommendations not acted on?
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.””
“Late night levy requirements
(1) Section 125 of the Police Reform and Social Responsibility Act 2011 (late night levy requirement) is amended as follows.(2) For subsections (1) and (2) substitute—“(1) In this Chapter, “a late night levy requirement” means a requirement to pay a late night levy in accordance with this Chapter.(2) A licensing authority may decide that a late night levy requirement is to apply in its area or in a part of its area in respect of—(a) relevant late night alcohol authorisations relating to premises in the area or the part, or(b) relevant late night alcohol authorisations and relevant late night refreshment authorisations relating to premises in the area or the part.(2A) Accordingly, references in this Chapter to a late night authorisation to which a late night levy requirement relates are references to any relevant late night alcohol authorisation or relevant late night refreshment authorisation in respect of which the late night levy requirement applies.(2B) A licensing authority may decide under subsection (2) that different late night levy requirements are to apply in different parts of its area.”(3) In subsection (3)(a), after “supply of alcohol” insert “or late night refreshment”.(4) Omit subsection (4).(5) Schedule (Late night levy requirements) makes further amendments of Chapter 2 of Part 2 of the Police Reform and Social Responsibility Act 2011 (late night levy).”
Baroness Deech
“General duties of licensing authorities
(1) Section 4 of the Licensing Act 2003 (general duties of licensing authorities) is amended as follows.(2) After subsection (2)(d) insert—“(e) compliance with the provisions of the Equality Act 2010.””
Baroness Deech (CB)
Amendment 210 is in my name and the names of the noble Baronesses, Lady Thomas, Lady Pitkeathley and Lady Campbell—all former members of the Lords Select Committee on equality and disability, which reported in March this year. The report found many areas of transport, employment, education, communication and law enforcement failing in their impact on disabled people. We made recommendations that were carefully crafted to be cost neutral, or very inexpensive, and that would ensure a fair deal for the growing number of disabled people. Very few of our recommendations involved changing the law, but this is one of them. It is a simple, economic and transformative amendment, central to our recommendations, which would go a long way to adjusting our living environment to the needs of disabled and elderly people.
Licensing authorities have a duty, under Section 4 of the Licensing Act 2003, to promote, in their duties of inspection and licensing,
“the prevention of crime and disorder … public safety … the prevention of public nuisance; and … the protection of children from harm”.
Amendment 210 would add a fifth enforceable duty, namely compliance with the Equality Act. In taking evidence from disabled people and those involved with them, the Select Committee uncovered a weakness in enforcing existing duties, and at the same time found a way to improve life for disabled people and all of us as we get older. In their response to our report, the Government said that since the Equality Act already applied to businesses and employers, no more was needed, and that they were holding discussions with the hospitality industry to promote increased accessibility for disabled people. It is true that equality law applies across the board, but the issue is enforcement where equality is being denied. Sadly, it is clear that mere guidance and good will do not do the trick.
With this amendment, licensing authorities could require, for example, old and existing buildings to be made accessible. When they are out inspecting and find disabled facilities not being provided as they should be, they could review the licence. They could issue a warning or, in the last resort, remove a licence from an entertainment premises that refused customers because of their disability—or indeed sexuality or race—or charged extra to disabled visitors. At the moment, the licensing authority can only remind owners of premises of their duties under the Equality Act, and they have no teeth. Where the situation is not remedied, this amendment would shift the enforcement burden away from the individual disabled person or the person discriminated against—who, under existing law, have to take legal action on their own—to the local authority. It is self-financing. The functioning of this amendment would not depend on taxpayers’ money.
This extra condition in the Licensing Act would give local authorities in every sphere the power to say, “We are not going to licence you unless we see the premises are fit, or as fit as they can be, for disabled persons’ use”. The Select Committee learned that the National Association of Licensing and Enforcement officers would support this. Businesses that already comply would have nothing to fear from it. Indeed, some already behave as we would all wish. For example, Newham Council denied planning permission unless all new stations in Newham were step-free. By way of contrast, the committee heard evidence that new shared spaces and pedestrianised shopping areas were designed sometimes without regard to accessibility by disabled people. It is no answer to say, as Ministers tend to, that guidance to the authorities is all that is required. Guidance is no substitute for enforceability.
The United Nations Committee on the Rights of Persons with Disabilities carried out an inquiry into the condition of the UK’s disability programmes and reported on 6 October. The United Nations committee condemned the lack of cumulative assessments of the impact of cuts and other recent policies affecting disabled persons. It called on the UK to ensure that in the implementation of legislation, policies and programmes, special attention is paid to the most vulnerable disabled people and it requires the UK to report back on the steps taken to comply with the United Nations Convention on the Rights of Persons with Disabilities. That report is not out of date, it is bang up to date. Amendment 210 would not only go a long way to achieving the aims of the Lords Select Committee but would assist the Government in making a decent response to the United Nations committee and avoiding international opprobrium. I beg to move.
Baroness Thomas of Winchester (LD)
My Lords, my name is also on Amendment 210 which, as the noble Baroness, Lady Deech, has said, is one of the recommendations of our committee. I am particularly speaking about how the amendment would apply to existing, rather than new, premises. Before I go any further, I should say something about the Select Committee on the Licensing Act. I do understand what is being said but my mind goes back to the words of a pop song of the 1960s:
“Catch a falling star and put it in your pocket
Save it for a rainy day”.
This might be, “Catch a passing Bill and put it in your pocket”. That is an important point: maybe some Members do not quite appreciate how difficult it is to get Bills into the legislative programme.
The vague terms used by the then Secretary of State for Education and Minister for Women and Equalities in her evidence to the committee about spreading good practice rather than legislating in this area simply will not do, as it does not work. The licensing solicitor at Sheffield Council, Marie-Claire Frankie, was clear when she gave evidence to our committee:
“What could strengthen the licensing authority and give them the ability to enforce it is to make a fifth objective related to equality”.
She said specifically that a friendly word in somebody’s ear at the premises, even if followed up by a letter from the local authority, just did not work. She went on:
“For old and existing premises that transferred over before the Licensing Act, there is not anything that we can go back and revoke licences on or anything that we can add conditions on. Because of the licensing objectives, there is no way of getting it before a committee because they are not breaching crime and disorder; they are not committing public nuisance; they are not publicly unsafe; and they are not endangering children. If there was an additional objective relating to equality, there would be a mechanism to get it before a committee, to enable the local authority and the licensing authority to do something”.
We are talking only about reasonable adjustments, not a mandatory lift, say, if a small club, restaurant, pub or other entertainment venue is entirely upstairs. No one wants premises closed down, but what those of us who are disabled want is as much accessibility as possible, and we do not want to have to go to court to get such access. I hope the Government will accept the amendment.
Baroness Campbell of Surbiton (CB)
My Lords, I am also very pleased to add my name to Amendment 210 in the name of my noble friend Lady Deech, who I must say not only ably chaired the Select Committee on how disabled people are faring under the Equality Act but has become a passionate leader for access.
There is a recurring theme in responses to calls for statutory enforcement of disabled people’s access rights, which is that guidance and awareness is much better. This is clearly exemplified in the recent rejection of my amendment to the Bus Services Bill and the lacklustre response to the Select Committee’s report on how disabled people are doing under the Equality Act, as my noble friend Lady Deech has powerfully said. If guidance works so well, why, 21 years after the passing of disability discrimination legislation, are disabled people still denied access to so many pubs, clubs, restaurants and entertainment venues because they are inaccessible? Is it because we cannot enjoy ourselves? I do not think so. I believe there are two major reasons.
First, many service providers who operate from licensed premises are either unaware of their duties under the Equality Act or think they can ignore them with impunity—from the local publican to the London club owner. To most, it is a remote piece of legislation, and only a few understand its relevance. It does not touch the general day-to-day running of the business, so little thought is given to disabled people’s access needs unless these are brought to their attention, usually by a very frustrated and angry disabled person who cannot get in. However, if their licence to trade from those premises was in jeopardy of being withdrawn on the grounds of inaccessibility, the importance of the duty would be so much clearer and change would happen.
Secondly, disabled people, as has been said already, have borne the sole burden of enforcing their rights to social inclusion for years. These are the people least likely to have the resources to challenge a barrier-ridden society, especially when access to justice has become so difficult. So, venues and facilities are likely to remain inaccessible. Our Select Committee received a lot of evidence from witnesses illustrating this. In fact, while waiting to speak today I have received 21 tweets from disabled people telling me of pubs, restaurants and facilities in their area that they cannot get into— 21 tweets in just over an hour.
The Government need to back a more proactive enforcement stance. Compliance with the Equality Act should be added to the objectives of the Licensing Act to ensure that it is followed. When the Select Committee visited a local centre for independent living in Tower Hamlets, I was struck by the similarities of people’s experiences and frustrations with my own 25 years ago, when I was actively campaigning for the Disability Discrimination Act. They told me about the general reluctance to make reasonable adjustments, and the excuses are the same now as they were then: “no money”, “burden on business”, “more advice and guidance needed”. You name it, disabled people have heard it, year on year. Two weeks ago I was having a similar exchange with the Minister, the noble Lord, Lord Ahmad, over my amendment to require accessibility policies as a condition of granting a bus operator’s licence. Today is Groundhog Day, this time over empowering local authorities to withdraw a licence to trade or impose conditions if the Equality Act is ignored. This would not add duties—they are already in place—but it would help to enforce them. What is offered? More guidance. The status quo prevails.
No wonder disabled people are worn down and cynical. No wonder the UN Committee on the Rights of Persons with Disabilities believes the Government are failing in their duty to progress disability equality. This is not my idea of “a society that works for everyone”. I really hope the Government will break the mould today and seriously consider Amendment 210.
Lord Clement-Jones (LD)
My Lords, I shall speak to Amendment 214A, which I believe is in the same group. I had rather assumed that the noble Lord, Lord Brooke, was going to speak to his amendment, and I am quite happy to wait and let him do so now, as he is in the Chamber.
Lord Brooke of Alverthorpe (Lab)
My Lords, that is very kind of the noble Lord; I apologise for not being in my place. I shall speak to my Amendment 211. In doing so, I declare my interest as a patron of the British Liver Trust and several other charities related to health issues that arise from alcohol abuse. In particular, as I said earlier, I declare my membership of the House’s Select Committee on the Licensing Act 2003. One of the questions that we have posed in our call for evidence is:
“Are the existing four licensing objectives the right ones for licensing authorities to promote? Should the protection of health and wellbeing be an additional objective?”.
We have received a lot of evidence on this and continue to do so in the oral hearings that we are currently running, and I do not want to trespass much on the committee’s continuing review.
I know it could be argued in light of what happened in the debate relating to the previous amendments that maybe this should be left until the committee’s deliberations come out. Alternatively, the Government might argue that as Scotland already has a fifth objective relating to health and well-being, we might wait and see what develops with the Scottish position. However, given that I have seen the Government decide that they can put an amendment through and then stay their hand until such time as they receive the report from us, I think I am perfectly in order to move this amendment today and, I hope, persuade them that there is a case for it to be adopted. Maybe then we could wait until spring to see what comes out of the Select Committee’s review; and if the recommendation in its report is in accord with what I am putting before the House we could then implement it.
There are more pressing reasons why this needs addressing, even more than the earlier amendment about the conduct of affairs relating to alcohol at night. First, the noble Baroness, Lady Finlay, enumerated this morning a range of the problems that we continue to have with alcohol. However, the second and more pressing issue is that the topic on which this amendment has been brought forward is not a new one; I brought forward a Private Member’s Bill on it about two years ago, supported by the Local Government Association. We can go back quite some time to 2010, when the then Government were looking at the difficulties that had arisen then. They had recognised a problem with the 2003 Act. They then consulted on the addition of a specific prevention of health harm objective in the 2010 Rebalancing the Licensing Act consultation. Some 38% of the respondents were supportive, 37%—primarily the drinks industry—were against, and 25% were neutral. The Government decided not to legislate at the time but did not really explain why. They simply stated that they saw,
“merit in the proposal to make the prevention of health harm a material consideration in the Licensing Act 2003. We … will consider the best way to do so in the future”.
So we have been at this now since around 2010.
The reason why this is now becoming more imperative is that as time has gone by, while I concede that in many respects we are getting evidence that the 2003 Act has worked quite well in certain areas—we have seen less alcohol being drunk than was the case in 2003, though whether that is related directly to the Act is questionable, and there are fewer violent incidents and less crime associated with alcohol than perhaps was the case originally—on the other side of the coin we have seen a dramatic increase in the deleterious effects of alcohol on the health of the nation. We saw about 400,000 people being admitted to hospital in 2003 with health difficulties related to alcohol but the figure is now in the order of 1.2 million and is getting worse. The charity I am associated with, the British Liver Trust, is seeing an increasing number of people dying from liver disease, mostly associated with alcohol consumption and abuse, with increasingly a number of younger people being affected in that way. We now have 9 million adults drinking at levels that increase the risk of harm to their health, while 1.6 million adults show signs of full alcohol dependency. Alcohol is now the third biggest risk factor for illness and death.
I am speaking entirely personally here, not representing anything of the Select Committee’s view, but I believe that in many respects the 2003 Act is now out of date. It was designed in 2003 primarily to deal with the on trade, relating to pubs, clubs and fixed premises, where people in the 1990s and at the turn of the century drank. However, we have seen a complete shift over the last 10 or 12 years in the growth of the number of licences being granted—almost like confetti, in my view—to supermarkets, mini markets, small shops and even petrol stations. Almost everywhere you go now, you will find alcohol on sale. In a sense, alcohol has become an ordinary commodity. In supermarkets it is being sold no differently from soap powder or a tin of beans. It has become normalised in our community and has changed the culture. This needs to be examined to see whether it is moving in the right direction, in the same way as I argued earlier when noble Lords proceeded to pass the legislation regarding “will do” on introducing powdered alcohol into the community. Anything goes, we move towards liberalisation, and it gets worse in health terms.
In my opinion, the 2003 Act does not adequately deal with what is happening on the off side of the licensing trade. We now see big developments taking place online that were never envisaged when this legislation was laid before us. Amazon has a most amazing array of products. Noble Lords who like drinking a lot and cheaply should go on Amazon and see just what is on offer to them. It can be delivered in hours on any day of the week, any week of the year. It is available very cheaply right through the year. Before long, no doubt, we will have Uber doing similar deliveries as quickly as possible. In no way is that touched by the Licensing Act; it is a different world entirely.
People will argue that you cannot do anything with the existing Licensing Act because it relates solely to premises—“What does that have to do with health?”, “How do you prove it is damaging health?”, and so on. In my view, there are changes ahead. Most of the major supermarkets, apart I think from Morrisons, have plans to increase the number of convenience or metro mini markets around the country, moving away from big premises to smaller ones. They have plans to extend these around the country and I am certain, sure as night follows day, that they will all have a licence to sell alcohol. If we go in there and queue to pay at the till, we will find that alcohol is piled up to the ceiling all around us, not just in our full view but in the view of children. This is changing an attitude generally so that the commodity of alcohol is normalised and just becomes part of our way of life, but it is damaging health and we are doing nothing about it.
There is an opportunity, I believe, if we are prepared to consider what I am putting before us, to explore ways in which we could at least start to pull it back a little bit. That does not mean to say that we stop issuing licences, but we should attach conditions to those licences that would stop alcohol being sold at the front of the supermarket in everybody’s face. Asda managers have tried to do it voluntarily, but when they saw that their competitors were not doing it, they said, “Well, why the hell should we bother?”, and they went back to putting it at the front. The voluntary approach is not working.
We now have demands from the police, from the police commissioners, from the health authorities, from the BMA and from almost anybody you can mention who has an interest in the health side that a change is needed. It should not be attached solely to the way in which we have run the Act up to now based on the premise that we should look to do something on a cumulative basis. If there are far too many people selling alcohol in a particular area, there should not be further licences; or if further licences are given, there should be more stringent conditions that would be related to the changes in the health of the area affected. They are doing it in Scotland and they are making progress; it is high time that the UK should do the same.
Sarah Wollaston, the chair of the Health Select Committee in the Commons, is in full agreement on this, and wanted to table amendments herself for this change, so there is some good support in the Commons for it. If the wording is wrong, I offer the Minister my willingness to talk about a change in the wording to a form that would be more acceptable. If the noble Baroness, Lady Williams, is responding, I make a further suggestion, particularly because she comes from Manchester. That city will be the first test-bed area, where it will not only be responsible for health and care and well-being but have total control over its funding. I suggest we consider whether, in conjunction with Manchester, we might run an experiment in the north-west to see what we can do. Manchester would be up for it, and all the responsible bodies would welcome it. Accordingly, I would be happy to consider drafting an amendment to the Bill. We could then review the provision after, perhaps, two years.
I am open to a conversation on this, but we must do something. We cannot just leave it as it is, making all the excuses under the sun, saying that it is too difficult, and listening to the drinks industry—which, understandably, says, “We can’t do it; we shouldn’t do it; we don’t want to go near it”. For the sake of the health of the nation, and for the sake of the harmed, cash-strapped National Health Service, which has great problems ahead of it, alcohol is one of the major problems that we have to tackle. We should do it forthwith, without delay.
Lord Lester of Herne Hill
My Lords, during the Second World War, Archbishop William Temple once said:
“Whenever I travel on the underground I always intend to buy a ticket, but the fact that there is a ticket collector at the other end just clinches it”.
The reason why I strongly support Amendment 210, moved so powerfully already, is that it just clinches something that ought not to need an amendment of that kind. What it clinches is the need for licensing authorities to perform their duty by complying with the terms of the Equality Act 2010.
The noble Baroness, Lady Howe of Idlicote, when she was deputy chair of the Equal Opportunities Commission, and the noble Lord, Lord Low, with regard to the Disability Rights Commission, will both remember how those two commissions carried out strategic law enforcement functions effectively. The problem at present is that the Equality and Human Rights Commission, which has far too broad a mandate, especially in terms of human rights—it lacks needed resources and having priorities determined—is not carrying out the kind of duty in the way that was done by the previous equality bodies. It is not giving effective, strategic law enforcement. Therefore, there is no use relying on the admirable Equality Act 2010 by itself if it is not going to be translated into practical action.
Lord Wigley (PC)
My Lords, I apologise that I have not been able to take part in earlier discussions on this Bill. When you are a member of a party with one representative here, it is a little difficult at times. I am very keen to support Amendment 210, which relates to a matter very close to my heart. I declare my interest as a vice-president of Mencap.
In 1981, I was fortunate enough to introduce legislation—there are some Members in the Chamber now who were in the other place at that time—that became the Disabled Persons Act 1981. That provided for access to places for disabled people—buildings, places of entertainment, et cetera—that required a provision to be made. However, as the noble Baroness, Lady Deech, has said, the trouble is that there is no comeback. There were not enough teeth in that Act and there have not been enough teeth in successive pieces of legislation over the 35 years that have gone on since then. There needs to be the sort of provision built in here to ensure that what is agreed as public policy actually does take place. I press the Minister to seriously consider accepting this or bringing in equal provisions to ensure that this happens.
Lord Brooke of Alverthorpe
My Lords, I now speak to Amendment 212, which is on placing child protection as a statutory consultee for statements of licencing policy. The background is that, if we come back to the Licensing Act 2003, this is a modest attempt to add another objective. We have the protection of children from harm as one of the existing four.
Despite the existence of this objective, and the fact that Section 13(4)(f) of the Act recognises child protection as the body responsible for this objective, Section 5(3) does not include child protection as a statutory consultee in respect of statements of licensing policies—SLPs, as we know them. Every local authority is required to produce SLPs outlining how it aims to uphold the licensing objectives in its specific area. SLPs are important local documents and should be taken into account in all licensing decisions. As such, they are important in the way in which child protection issues relate to licensing, and should be highlighted and acted upon.
Under the present arrangements, statutory consultees are,
“(a) the chief officer of police for the licensing authority’s area, (b) the fire and rescue authority for that area, (c) such persons as the licensing authority considers to be representative of holders of premises licences issued by the authority, (d) such persons as the licensing authority considers to be representative holders of club premises certificates issued by that authority, (e) such persons as the licensing authority considers to be representative of holders of personal licences issued by that authority, and (f) such other persons as the licensing authority considers to be representative of businesses and residents in its area”.
The fact that no child protection body is included in that list of statutory consultees is a clear legislative gap, one that could easily be closed by this modest amendment. The greatly increased focus on safeguarding within licensing as a result of the Rotherham child sexual exploitation case suggests that there is now a pressing need for this.
Lord Clement-Jones
My Lords, this is a fascinating group of amendments, full of variety and suggestions of all kinds to the Minister. My amendment is no different: it adds yet another suggestion to her, which I am sure she will consider carefully.
I speak to Amendment 214A. The primary measurable success of reforms such as the Live Music Act 2012 and entertainment deregulation is that they have reduced costs and complexity for small-scale events, as well as tidying up primary legislation and how it interacts with guidance. I hope it is common ground that that is welcome.
However, despite these positive changes, the 2% dip in the music industry’s overall GVA performance in 2015, as reported in UK Music’s annual Measuring Music report, is attributable to a decline in concert revenue from grass-roots music venues. They provide an important mechanism for talent development and a means for artists to cultivate skills and access audiences. There are myriad examples of major stars who have had their beginnings in such grass-roots venues.
In 2015, there were 5.6 million visits to UK small venues, generating £231 million in spend in the process. More widely, the number of operating grass-roots music venues has declined by 35% in the past decade in London. However, the problem is not unique to the capital, with venues in Birmingham, Manchester, Edinburgh, Glasgow, Bristol, Plymouth, Newport and Swindon—to mention just a few—having either closed or had considerable threats of closure placed on their businesses in recent years.
Although not the sole cause of venue closures, restrictive licensing laws are often cited as a contributing factor. The existing licensing objectives under Section 4(2) of the Licensing Act 2003 reinforce perceptions that entertainment regulated under the Act is something to be controlled rather than enabled. The Act does nothing specifically to encourage cultural participation and enjoyment, for instance. This is a missed opportunity, given the importance of the Act in making events and activities happen. The lack of a positive licensing objective to support provision for entertainment can maintain prejudices between licensing authorities and licensees about their respective motivations. This is unhelpful in creating a licensing environment that works for live music. It is time for a change of approach.
As the noble Baroness, Lady McIntosh, and my noble friend Lady Grender reminded us, the House of Lords is currently conducting a post-legislative scrutiny inquiry into the operation of the Licensing Act 2003. UK Music, the umbrella body for the commercial music industry, argued during the inquiry that consideration should be given to the introduction of a new licensing objective,
“the promotion of cultural activity and inclusion”.
This would sit alongside the other licensing objectives and assist local authorities when discharging their functions.
The amendment would introduce a fifth licensing objective to address,
“the promotion of cultural activity and inclusion”.
It would sit alongside existing objectives and assist licensing authorities when discharging functions. Simple licensing conditions can lead to additional cost to the venue and result in less profit per event. Less profit means that a venue’s ability to attract quality acts will be reduced, and therefore fewer events will take place.
Research conducted by the Music Venue Trust, reported by the Mayor of London’s music venues task force, demonstrated that one London venue had more than 70 separate conditions on its licence. Another had its capacity set at the same level as before the smoking ban, despite the risk of fire now being reduced. We have been made aware that conditions related to music are still featuring on some small venue licences, despite the fact that they should be benefiting from the recent entertainment exemptions. There is clearly an argument to be had about the extent to which the spirit of the law and the decisions made by Parliament to deregulate are filtering down to licensing authorities.
Fundamentally,
“the promotion of cultural activity and inclusion”,
is necessary, as licensing authorities rely on the existing objectives, which are also supported by other pieces of legislation, when assessing complaints and applications. Despite music’s social, cultural and economic benefits, the Licensing Act’s existing objectives specifically make regulation of live music for larger venues a public order issue associated with nuisance, crime and disorder, public safety and protection from harm. That failure to have a licence for music could lead to criminal sanctions and penalties, such as large fines or terms of imprisonment, can reinforce negative perceptions in licensing authorities.
It is of course right that current licensing objectives relating to public safety, protecting children from harm, and the prevention of crime and disorder and public nuisance are given full consideration, but without a positive objective when responding to applications or complaints relating to entertainment, licensing authorities are not encouraged to acknowledge the economic, cultural and social benefits of these activities to local communities.
The recent revocation of iconic London nightclub Fabric’s premises licence has been well documented, with more than 150,000 people signing a petition seeking the intervention of the Mayor of London. I would not want to speculate that a fifth licensing objective along the lines for which I am arguing would have resulted in a different outcome in this instance, but I am certain that if it was in place, Islington Council would have had to be more mindful of the strength of feeling about Fabric and justify its decision in terms of the venue’s impact on public enjoyment as well.
Other countries and cities across the world are also looking at what they can do to preserve their venues by positive action. Put simply, a new licensing objective for,
“the promotion of cultural activity and inclusion”,
would not open the floodgates but provide a suitable test for licensing authorities to judge an application or appeal by assessing the wider public benefit that an event or venue may create, and help to prevent further unnecessary closure of our culturally important music venues.
At the very least, if the Minister cannot accept the amendment, I hope she will follow her previous practice in being prepared to speak to proponents of it and listen to the evidence that they put forward about the impact of licensing laws on grass-roots music venues. Her ministerial colleagues have been very helpful in amending planning guidance in this respect, which has helped somewhat in change of use for premises near live music venues. I hope that Ministers, having shown themselves sympathetic to grass-roots music venues, will continue in that vein and meet UK Music and the Music Venues Trust to discuss the issues further.
The Earl of Clancarty (CB)
My Lords, in particular, I support the amendment of the noble Lord, Lord Clement-Jones, Amendment 214A. He does not define cultural activity, but it would clearly include, at least in part, the night-time economy. There has in recent years been a perfect storm of circumstance for our night-time economy. Rising rents and business rates, property developments, noise complaints, complaints about anti-social behaviour and more have conspired to devastate our night-time cultural landscape. London alone has, in the past five years, lost 50% of its clubs and more than 40% of its music venues, but the same problems are afflicting towns and cities everywhere in the UK, and some cities abroad.
Having said that, closures often hinge on a single concern, which might have been avoided given a wider, more constructive approach. This problem has implications at many levels. As an economy, we will suffer in the long term, as the night-time economy is hugely important to the country. In 2014, it was worth up to £26.3 billion. It is part of what makes London, in particular, an international cultural city. Under the amendment, licensing authorities would see it as part of their remit to address head-on the problems facing their local communities in this provision. We risk parts of our towns and cities becoming night-time dead areas, which is not good for their safety or social fabric. We risk taking the heart out of many of our cities.
The closure of live music venues does not reflect decreasing demand from the public. Witness the protest against the closure of Passing Clouds, a live music and community venue in Dalston, earlier in the year. Events manager Gudrun Getz said that,
“property developers are seeking to cash in on the huge popularity of Dalston which we ourselves were instrumental in helping to establish”.
She also says that there is,
“a huge … fear in the community at the moment that we are going to lose all of our space and there will be nowhere for musicians to play”.
This would of course be a terrible loss for London and elsewhere in the country.
Baroness McIntosh of Pickering
My Lords, I congratulate noble Lords who have tabled and so eloquently moved and spoken to the amendments before the Committee.
Speaking in a personal capacity, I seek guidance from the Minister, who now has a wish list of an additional three or more objectives that could be included in the amendments. In her response, can she explain what original criteria were used to establish the original objectives, as set out in the Licensing Act 2003? More particularly, what is the distinction from what has been achieved by a piece of legislation from an earlier Conservative Administration, of which I am extremely proud, the Disability Discrimination Act? How is that different from Amendment 210?
I was struck by the words of the noble Baroness, Lady Thomas, about catching a falling star. I revert to the earlier theme of why this falling star has been snatched when we have a history over the past 10 or 15 years—possibly even 18 or 20—of every 18 months considering a police and crime or justice Bill that could have neatly included some of these amendments, certainly those that we looked at earlier. As well as “catch a falling star”, one could also say, “pick’n’mix” or “liquorice allsorts”. My favourite would be Mackintosh’s Quality Street but, sadly, there is no relation.
I conclude by paying tribute to the noble Baroness, Lady Deech, who chaired the earlier ad hoc committee with such distinction. I look forward to the Minister’s response.
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?
Baroness Deech
My Lords, I am grateful to the noble Lords who supported our Amendment 210, but clearly I am disappointed with the Government’s answer, which has not moved from the response issued several months ago, before the change of Administration. I thought that we were convinced: given that this Government have a target of halving the unemployment rate of disabled people and that the Prime Minister said in her first statement on taking office that this Government should work for everyone and allow everyone to reach their potential, surely they must move on this.
I have not heard a single argument to undermine the thrust of Amendment 210. The background is that disabled people gave evidence that the Disability Discrimination Act was a much better tool than the Equality Act, because the latter puts all the protective characteristics together and thus, although well-meaning, does not give sufficient weight to the needs of disabled people, who need a bit more than just equality.
Moreover, I take issue with the Minister’s saying that the amendment would simply duplicate the Equality Act. It does no such thing. First, it shifts the burden of enforcement away from the individual who is discriminated against to the local authority. That is the main aim. A pledge, I am sorry to say, is insufficient. If the entertainment industry gives a pledge, or if we all pledge to pay tax or obey immigration law, I do not think any Government would say, “A pledge, that’s just fine”. As has been proven, there are areas where one needs the teeth of the law. I appeal to the Minister: this Government should not appear hard-hearted. The Select Committee is offering them a way to respond to the United Nations’ inquiry which has so severely criticised this country’s approach to the needs of disabled people.
I have heard no reason why Amendment 210 should not pass. I cannot believe that the Licensing Act 2003 Committee, thorough though it is, will unearth any more than the Select Committee on equality and disability did. Once more, I appeal to the Government to accept the amendment and if they do not, I will emulate the advice given by the noble Baroness, Lady Thomas, and pursue this star all the way to the other end of the rainbow.
Lord Brooke of Alverthorpe
My Lords, when I was speaking, the Minister was nodding so much that I thought she was agreeing with everything. I now realise she was trying to fend off her cold, but I was pleased to hear that the Government are not unsympathetic to the health objective in Amendment 211, and I am aware of the difficulties of putting this in place; it is not easy. I am also aware of the work being done by Public Health England and others in association with the Home Office. I look forward to that materialising and hope it will be presented to the Select Committee.
I did not get an answer to my point about Manchester, to which I thought she was nodding. May I speak to her separately about that away from the Chamber, when we might try to explore using that new initiative for something quite different? I will look carefully at what she had to say on the children’s amendment and decide what further action, if any, I can take.
Lord Clement-Jones
My Lords, I may have blinked and missed the extended response I am sure the Minister gave. However, as I recall, it was simply that we do not need another licensing objective. Will she consider more carefully the question of whether other things could be done to encourage licensing authorities to take cultural matters into consideration in licensing, and in particular offer to meet those with an interest in this area, such as UK Music and the Music Venue Trust?
Lord Beecham
“Premises licence under Gambling Act 2005: gaming machines
(1) After section 172 of the Gambling Act 2005 insert—“172A Gaming machines: conditions on availability and use(1) The conditions which a licensing authority may attach to a premises licence under section 169 include a condition—(a) that no gaming machines for which the maximum charge for use is more than £10 may be made available for use on the premises, or(b) that the number of gaming machines of that description which may be made available on the premises must not exceed the number specified in the licence.(2) The conditions which a licensing authority may attach to a premises licence under section 169 also include conditions relating to the use of gaming machines; in particular, the conditions may include—(a) a condition that a person may not use a gaming machine unless he establishes his identity by the means and in the manner specified in the licence;(b) a condition that each payment for the use of a gaming machine must be made by the means specified in the licence and must be processed or approved by a person who, when the payment is made, is on the premises where the machine is situated and is acting in the course of the business carried on there. (3) The number of machines which may be specified for the purposes of subsection (1)(b) must be lower than the number of machines which is at that time authorised under section 172(8); but where the number of machines so authorised is subsequently varied—(a) the number of machines specified (or treated as specified) for the purposes of subsection (1)(b) is to be treated as varied by the same amount, and(b) the licence is to have effect accordingly.(4) A condition of the kind set out in subsection (2) may apply to gaming machines generally or only to gaming machines of a description specified in the condition.(5) In deciding whether to attach a condition of the kind set out in subsection (1) or (2), or whether to exercise the power under section 187 or 202 to add, remove or amend a condition of that kind, a licensing authority may give particular weight to the impact of the following on the promotion of the licensing objectives—(a) the number of other premises in the locality where the premises concerned are situated in which gaming machines are available for use,(b) the levels of crime and disorder in that locality,(c) the extent of social or economic deprivation in that locality, and(d) the proximity of the premises concerned to places habitually attended by children or other vulnerable persons.(6) In the case of a betting premises licence in respect of premises in Scotland other than a track, the licensing authority may add, remove or amend a condition of the kind set out in subsection (1) only if the licence was issued before 23 May 2016 (the day on which section 52 of the Scotland Act 2016 came into force).”(2) In section 172 of the Gambling Act 2005 (gaming machines), after subsection (11) insert—“(12) Subsections (8) and (10)(a) are subject to section 172A.”.”
Lord Beecham (Lab)
My Lords, this amendment stands in my name and that of the right reverend Prelate the Bishop of St Albans and the noble Lords, Lord Clement-Jones and Lord James of Blackheath. There are also two slightly different amendments in the group in my name and that of the right reverend Prelate.
Fixed-odds betting terminals are gambling machines housed up to four at a time in betting shops in high streets and other streets, especially in poorer areas. Here people have been able to wager up to £100 on a machine every 20 seconds. While this has now been reduced to £50, unless the gambler in question has opened an account with the gambling company, if different machines are used it is still possible to stake as much as that in such a short time. Moreover, Ladbrokes alone revealed in its last half-year report that it had given away £3.7 million in free plays on fixed-odds betting terminals in just six months, nearly twice as much as for over-the-counter betting, clearly using this device to promote this particularly addictive form of gambling.
These terminals were authorised, I regret to say, by the Labour Government in 2005 and, by 2013, there were more than 33,000 machines, generating profits to bookmakers of £1.5 billion a year. Ladbrokes alone declared a profit of more than £1,022 per machine per week. In January 2014, my right honourable friend Ed Miliband sought to promote legislation giving councils the power to reduce the number of machines in shops, and increase the time between bets. At this point I should refer to my interest as a councillor in Newcastle and an honorary vice-president of the Local Government Association. Despite expressions of sympathy and concern at the time by David Cameron, a Labour Motion on the issue was defeated by 314 votes to 282 in the Commons. During the debate, the then Minister, Helen Grant, said that the Government were waiting for the findings of a study into how the machines were used and the real impact on players before deciding whether action was needed. We are approaching the third anniversary of that statement.
There are now 35,000 machines, with a concentration in less well-off areas, to the extent that the 55 poorest boroughs have, in proportion to population, four times as many as the best-off 115. Newham, whose council is in the forefront of calling for action and is one of the most deprived boroughs in the country, has no fewer than 87 shops with these terminals. Together with 92 other councils, Newham applied two years ago to secure, under the Sustainable Communities Act, the power to license gaming premises of this kind. I understand that the Government are woefully behind schedule with a determination of that appeal, indicative perhaps of their failure to address problems occasioned by this form of gambling. Perhaps the Minister could inform us, if not today then in writing, when they will publish their decision on that application—these applications arise under legislation enacted by the coalition Government.
In addition to the economic impact on households that can least afford it, there are other troubling issues associated with this essentially exploitative industry. Betting shops take up prominent space in high streets and, even more troublingly, in addition to the impact on the finances, health and well-being of their customers and their families, they have led to a significant increase in crime. The number of times police were called to incidents in betting shops rose by 51% in 2014 from the previous year. In Newham, police are called out, on average, once every day in the year.
I raised the issue of crime in these shops in an Oral Question on 5 September, pointing out that betting shops accounted for 97% of all police calls to gambling establishments and, even more alarming, for 40% of serious crimes against all businesses. I pointed out that no fewer than 7,000 machines a year in these premises are destroyed by gamblers, and that violent assaults on staff are increasing.
In that context, it is telling that in some shops with fixed-odds terminals the staff member—it is usually only one person now in many of these shops—is not permitted to leave what is called his or her “cage” until 6.30 pm. They are confined to that space. That is supposed to enhance their security. Your Lordships may think it is a peculiar way of doing so, and an unsatisfactory one.
It is significant that, as I have been informed today, Ladbrokes is now purchasing chairs to go into these shops weighing 35 kilogrammes, making them too heavy to be used by customers to damage the premises or injure the staff. To some extent it is recognising in that particular and rather—one might have thought—peculiar way that there is a risk of violent crime on the premises.
The Lord Bishop of Salisbury
My Lords, I thank the noble Lord, Lord Beecham, for moving the amendment. I stand in place of my colleague the right reverend Prelate the Bishop of St Albans, who is unable to be here today, in support of Amendment 214, which would grant new powers to local licensing authorities in regulating gaming machines on gambling premises. As the noble Lord, Lord Beecham, has already made clear, there is a strong case for measures that will help local authorities tackle gambling-related crime to be included in the Policing and Crime Bill.
The figures on the rise of gambling-related crime are startling. From 2014 to 2015 there was a 50% increase in the number of incidents on gambling premises that required police assistance. The right reverend Prelate the Bishop of St Albans recently submitted a freedom of information request to the Metropolitan Police which found that there had been a 68% increase in the number of violent criminal offences at London betting shops between 2011-12 and 2015-16. It has recently been reported that around 40% of commercial robberies in London target betting shops.
There is likely to be a range of factors driving this increase in violence. Opportunism arising from the single staffing of betting shops is surely one of them. Another is the increasing reliance of high-street betting shops on fixed-odds betting terminals, or FOBTs. As a report from Landman Economics put it:
“It seems clear that violent behaviour in betting shops is on the increase and an increased proliferation of FOBTs—with increased numbers of players incurring losses from gambling on B2 machines—is a likely reason for this trend”.
There are countless recorded examples of so-called “FOBT rage”, in which customers destroy machines or assault staff after losing large sums of money. What is more, we know that a great number of these incidents go unreported by betting shops.
It is not just violent crime that is increasingly associated with FOBTs. In 2015, 633 instances of suspected money laundering were reported to the Gambling Commission by betting shop staff, and there is no way of knowing the full extent of the problem. Several local councils, including Hounslow, have also raised concerns that the anonymous nature of FOBTs lends itself to underage gambling. These concerns have led several local authorities to call on Her Majesty’s Government to grant them greater powers when it comes to imposing conditions on a gambling premises licence. This amendment therefore comes with the support of the Local Government Association, as well as with endorsements from the councils of Westminster, Brighton and Hove, Brent and Leeds.
The current licensing arrangements allow licensing authorities to impose a range of conditions on betting premises in order to ensure that the licensing objectives of preventing crime and protecting the vulnerable are upheld. However, licensing authorities are prevented from imposing conditions that affect the number or operational method of the gaming machines permitted under the licence.
Given that FOBTs now contribute well over 50% of the profits of high-street betting shops, that restriction seems like an outdated anomaly. Amendment 214 would either allow licensing authorities to limit the number of FOBTs permitted on a premises or allow them to impose conditions on the method of operation for gaming machines more generally—for example, by requiring account-based play or by requiring customers to confirm their identification with staff prior to play. By removing the possibility of anonymous play, not only would conditions such as these prevent money laundering and underage gambling but they would be likely to reduce the number of violent and aggressive incidents towards staff, while facilitating more effective implementation of self-exclusion.
Amendment 214 would also make it clear that licensing authorities do not have to assess licensing applications in isolation but can take into account the cumulative impact of a range of local factors in making a decision, whether they be social deprivation, local crime rates, the proximity of local schools or addiction treatment centres, or the presence of a betting shop cluster. Currently the legislation is not clear on this point, so the amendment would also provide licensing authorities with clarity and confidence about the options open to them. If Her Majesty’s Government are not willing to accept an amendment in primary legislation on this matter, I hope that they will issue clear guidance, particularly on the potential for licensing authorities to use cumulative impact assessments, through the Gambling Commission.
I should emphasise to the Committee that the amendment is not an attack on the gambling industry; it seeks only to give licensing authorities the tools they require to better enforce the existing licensing objectives. Licensing authorities would not be able to impose these conditions on a whim. They would have to show that conditions were proportionate and reasonable in protecting the licensing objectives. These new powers would make a real difference, not just in reducing crime but in protecting the vulnerable, and I hope that Her Majesty’s Government will consider them carefully.
Lord Clement-Jones
My Lords, having put my name to this amendment, I support Amendments 214—and 214CA in the name of the noble Lord, Lord Beecham—and endorse the argument so eloquently put forward both by the right reverend Prelate the Bishop of Salisbury and by the noble Lord, Lord Beecham.
We on these Benches have long advocated a reduction in the stakes of fixed-odds betting terminals—FOBTs—and the Government’s review is a welcome step, but it should not delay other forms of action to address the social harm caused by these machines. For years, local authorities of all political persuasions have implored the Government to allow them to tackle the blight on communities caused by FOBTs.
As we know, FOBTs can swallow £100 every 20 seconds, and bookmakers open multiple shops in deprived areas to facilitate as many machines as possible. There are double the number of betting shops in the 55 most deprived boroughs in England as in the 115 most affluent. This clustering of outlets significantly contributes to crime and anti-social behaviour, as both the right reverend Prelate and the noble Lord, Lord Beecham, mentioned.
That is why I and my colleagues back Newham and its 92 local authority supporters, representing 23 million people across the country, who have been calling for the dangerously high FOBT stakes to be reduced to £2, in line with other high street gaming machines. We hope that this will be the outcome of the belatedly announced triennial review.
FOBTs are highly addictive gaming machines, as we have heard, found in bookmakers across the country. The machines allow users to place bets of up to £100 every 20 seconds on electronic casino games. In 2015 gamblers lost £1.7 billion on FOBTs, and, as we heard from the right reverend Prelate, FOBTs now account for more than half of betting shop profits.
As we know from evidence from, for example, charities seeking to help people with gambling addiction, these machines are directly harming the young and vulnerable in our society, whom we have a duty to protect. Those who can least afford it are often losing vast sums of money. This is driving them towards mental health problems. We have even seen young men taking their own lives because of their addiction to these machines.
The impact of such losses—again, as we have heard—is leading to increased crime on Britain’s high streets. In a recent evidence session of the FOBT all-party group, Sir Robin Wales, the Mayor of Newham, noted that in Newham Borough there is one police call-out to a bookmaker per day, most commonly associated with a FOBT-related incident. In 2013 one of Newham’s 84 betting shops reported 112 incidents of anti-social behaviour to enforcement teams.
To date, the measures introduced to regulate these machines have been ineffective at best. Last year the Government introduced the Gaming Machine (Circumstances of Use) (Amendment) Regulations, which were implemented on 6 April. They require FOBT customers to authorise stakes of £50 or more via account-based play or over-the-counter staff authorisation. However, a study by Landman Economics in April 2016 demonstrated that the DCMS, in its evaluation of the impact of the regulations, was unable to determine whether the regulations on the £50 stake had in fact led to an increase in player control, let alone a reduction in the number of problem gamblers. Further, the bookmakers’ own industry code of conduct was found, in a report by the Responsible Gambling Trust, to be ineffective.
Calls for the regulation of these machines have been widespread, from parliamentarians, faith groups and mental health campaigners. Apart from the questions of lowering the stakes and reducing the spin rate, do the Government accept that local authorities have inadequate planning and licensing powers to address high-stake machine gambling on their high streets, to protect the most vulnerable, to tackle crime and to address the damage to local economies?
The Prime Minister, Theresa May, raised the issue back in 2005 of the harm caused by FOBTs. More than a decade later, she finally, as Prime Minister, has the power to take action. She has the opportunity now to protect the most vulnerable from exploitation by controlling high-stakes gambling on our high streets. These amendments would be extremely valuable additions to available regulation of FOBTs. I urge the Government to accept them.
Baroness Howe of Idlicote (CB)
My Lords, I support Amendment 214, in the name of the right reverend Prelate the Bishop of St Albans, who sadly, as we know, is not able to be with us today. Noble Lords will no doubt be aware that I have spoken in previous debates outlining my concerns about category B2 gaming machines—or FOBTs, as they are more commonly known. The right reverend Prelate’s amendment is a good step in the right direction and I hope the Government will feel moved to support it.
There are clear associations between problem gambling and FOBTs that cannot be ignored. A study conducted by Orford et al showed that 26% of the days spent playing on FOBTs were attributable to problem gamblers and 23% of all time spent on FOBT machines was attributable to problem gamblers. Likewise, according to GamCare’s 2014-15 statistics, 26% of the calls to GamCare in 2014-15 were made for help with issues associated with FOBTs. Problem gambling and FOBTs go together hand-in-hand, and we have a duty to do more to help those who are struggling and the communities blighted by to the proliferation of betting shops.
On top of this, betting shops with FOBTs have also been associated with anti-social and criminal activity on local high streets, which has also been mentioned. A 68% increase in violent criminal offences at betting shops between 2011-12 and 2015-16, identified in an FoI request made by the right reverend Prelate to the Metropolitan Police is simply not good enough. We must do more both to protect employees, as the noble Lord, Lord Beecham, seeks to do with Amendment 214CA, and to safeguard communities. Those stories which make national headlines—punters smashing up machines in betting shops after losing significant amounts of money—only scratch the surface of what is experienced by employees and communities on a daily basis.
In approaching this amendment, which is about the licensing regime for FOBTs, it is important to say a word about the history of the licensing of betting shops. In 2001, the then Government’s Gambling Review Report concluded that the system at the time—of considering likely demand for gambling provision when issuing premises licences—had the effect of stifling competition and allowing larger firms to monopolise control of the gambling market. The subsequent Gambling Act 2005, which came into effect on 1 September 2007, abolished the so-called demand test, replacing it with an “aim to permit” clause. This effectively placed local authorities in a situation where, on receipt of an application, their starting point had to be to look for a reason not to grant it, rather than to consider a reason to grant the application. The burden shifted to consideration of commercial interest first, rather than consideration of the impact on the consumer and the community.
Indeed, in evidence supplied to the Commons Culture, Media and Sport Select Committee for its 2012 report, The Gambling Act 2005: A Bet Worth Taking?, the London Borough of Haringey said there now seemed to be,
“almost no restriction on how many gambling premises”,
could operate in an area. Local authorities need help, therefore I particularly welcome Amendment 214, which would add a new Section 172A to the Gambling Act 2005. Proposed new subsection (5) would allow licensing authorities to take account of factors beyond simple commercial interest, such as proximity to schools, addiction centres or even existing betting shops.
With betting shops allowed four FOBT machines in one shop, there is clearly an advantage to opening several shops in an area to maximise revenue. Bookmakers made £1.7 billon on gaming machines between October 2014 and September 2015, of which category B2 machines —FOBTs—accounted for 99.7%. I reference page 1 of Ladbrokes’ own 2014 annual report, which has been mentioned. In Ladbrokes’ own words:
“Gaming machines and self service betting terminals drive growth”.
Proposed new Sections 172A(1) and 172A(2) provide sensible solutions by allowing licensing authorities to impose conditions on gambling premises, permitting them to have as few as zero FOBTs. They also allow licensing authorities to impose conditions requiring customer identification prior to play in an effort to address FOBT-related crime. The situation with FOBTs has been allowed to get out of hand and it is time the Government took a firmer grasp of it. Reducing the prevalence of harmful machines is a good thing and will make an important difference, but we can and should do even more, and I welcome the recent call for evidence issued by the Government on aspects of the gambling industry, including FOBTs.
I am also encouraged by the focus on reviewing stakes, which for B2 machines are far too high. Making machines less dangerous by reducing the B2 stake from £100 to £2, as the Bill of the noble Lord, Lord Clement-Jones, sought to do, should be our priority. I certainly will continue to advocate for such a change.
I strongly endorse Amendment 214, which represents a tangible opportunity for positive change which can be implemented now to help problem gamblers and their families, as well as communities and employees. I very much hope the Minister will support the amendment, as I, and clearly many Members in this Chamber, do.
Lord James of Blackheath (Con)
My Lords, in speaking to Amendment 214 I should declare two interests. First, I ran a chain of casinos in the Mediterranean at an earlier stage of my life, and I am therefore very familiar with the function of a roulette wheel. Secondly, I was chairman of the Jockey Club’s racing interests in the UK, so I was heavily dependent upon the profits coming from the bookmakers’ levy.
The Bill of the noble Lord, Lord Clement-Jones, was tabled several months ago and I am sorry that it has not gone further. In many ways, it is, as an entity, better than this amendment, and the Minister should give serious consideration to incorporating it into the Bill.
The points I need to make relate to the deep suspicions I raised at Second Reading about the honesty of the electronic roulette wheel in the FOBTs in reflecting the function of a roulette wheel, as I know it to be. I have probably done more analysis on this than anyone alive today, and I would like to do a lot more. I suspect two things are wrong with the wheels at present. First, they do not fulfil either of the two functions which I require as a standard for any honest roulette wheel. An honest wheel should result in 28 different numbers occurring in any sequence of 40 spins—that statistic is astonishingly accurate—and every number on the wheel should come up within a maximum of 121 spins. I have tested these theories over thousands and thousands of spins. For example, I tested the latter over sequences as high as 4,400 and found that there were 44 occasions on which each number came up a minimum of once, which confirms that theory.
As for the former theory, I cannot remember the name but I think it was the Gambling Commission that set up the original licensing arrangements for casinos years ago. It was an extraordinary commission because it went to the extent of installing a roulette wheel in its meeting room and having two croupiers spinning it all day long to observe what happened. As a result, it laid down very strict rules for roulette wheels. I can see no reason whatever why bookmakers should not accept the validity of the same rules for their electronic machines as for the metal and wood wheels in casinos. As things are, they produce very different results.
As a result of my criticisms, two days after our last debate I got a very angry letter from the bookmakers’ association. It said that I was a liar telling an untruth, was wholly wrong and was being offensive. I said, “I may be offensive but can you prove that I am wrong on the matters of fact? I want you to prove to me that you have a 28-number cycle in every 40 spins and that your whole wheel comes up in 121 spins. If you can’t prove that, then you are in fact dishonest in what you present as a functioning electronic roulette wheel”.
I do not believe they can do that but I would like the support of Parliament for this: I want them to give me a 5,000-number sequence for every electronic computer programme that they are running—and they have lots of them, as we have heard. They have so many different terminals that they cannot allow one programme to run so as to establish a pattern, because you could adapt the pattern from one and go and bet on it. You might be able to switch it down to your advantage and they will not do that. If they have six different betting shops, they will have six different programmes and I want those programmes to be subject to audit. I would like to audit them by matching with my own matrix, which I have developed. If they can give me 5,000-spin sequences certified by an accountant or a lawyer, it will take me six hours to say whether they have an honest wheel or not. I will do that for free for the whole industry, if it wants. If your Lordships think it sounds as though I need to get a life, you are probably right but I am obsessed with these numbers and I would love to do it.
In this case, I am so certain that it is wrong that after the previous debate I went on a betting shop crawl in Chichester, my nearest local town. I went round each of the main betting shops in it and sat down to watch what was happening on the electronic wheel. The first one that I watched was simply frightening. The man who had switched the machine on appeared to have £100 in folding money, well concealed in his pocket. He was pulling it out one £20 note at a time and feeding it in to charge it up. He had decided to bet on five numbers: 32, 15, 19, four and 21. These are the five numbers adjacent and to the immediate right of zero on the wheel. Effectively he should have had a six to one chance, as it is five numbers out of 37, but of course he was having to put a £1 chip on each of the five numbers. If he won, he got only £1 back for it and lost £4, so he was actually betting at 5.2 to one against in real odds. He would have had to have six successive win spins in a row just to break even on his £100—an impossible characteristic—yet the man was sitting down to give away £100, without any possible benefit coming to him.
The betting shop quickly moved in and asked me what I was doing. I said that I was doing social studies and I was told, “You don’t do them here—get out”. So I went off to the next betting shop and lasted about five minutes there as well. Eventually I went to six shops. What I found was a horrendous change that has occurred since the noble Lord, Lord Clement-Jones, brought his excellent Bill in. The spin cycle we were worrying about then was running at, I think, two minutes; it has now gone to 10 seconds. This is so fast that you cannot even think what your name is, let alone what you are betting on. At 10 seconds a spin, it is simply draining a man of money without any way of him knowing what he is doing. My great proposal to your Lordships today is: whatever we do with this clause or with the Bill of the noble Lord, Lord Clement-Jones, we should write in a demand to go back to a minimum of two or three minutes, or whatever it was to be. Any betting shop which does not do that should be summarily closed and will not be allowed to open until they have demonstrated the accuracy of their data in the form that I have dictated. They would be closed until further notice.
However, what I think is happening is that the bookmakers read our Hansard and decided to make a firm commitment to a betting cycle which would be better than the figure they were allowing. They have therefore decided to cut it to 10 seconds now, so that they will have more to negotiate and give away when the crunch comes. Let us put it in now and start closing them. We should get some authority in to stop this nonsense. Wherever there is a 10-second cycle going on in a betting shop, close it down now. We should do it urgently and make an example of them. I rest my case.
Lord Paddick (LD)
My Lords, I shall take a slightly different approach from that of the noble Lord, Lord Ashton of Hyde, and just say—I am sorry, I meant the noble Lord, Lord James of Blackheath; I am reading the wrong name on the annunciator. I do apologise. I do not know how the Minister can sit here hour after hour and hear the overwhelming evidence of the damage that these machines are causing and not do anything about it. This is an opportunity to do something about it. The Minister should grab it with both hands.
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.
Lord Moynihan
“National anti-doping provisions
(1) Subsections (2) and (3) apply to—(a) all persons participating in sport in the United Kingdom who are members of a governing body of sport or an affiliate organisation or licensee of a governing body of sport, including national governing bodies of sport, regional governing bodies, sports associations, clubs, teams, associations or leagues (a “relevant body”);(b) all persons participating in such capacity in sporting events, competitions or other activities in the United Kingdom which are organised, convened, authorised or recognised by a relevant body;(c) any other person participating in sport in the United Kingdom who, by virtue of a contractual arrangement or otherwise, is subject to the jurisdiction of a relevant body for the purposes of preventing doping; and(d) any other person in the United Kingdom whether or not such a person is a citizen of, or resident in, the United Kingdom.(2) An athlete is guilty of an offence if he or she—(a) knowingly takes anywhere in the world a prohibited substance with the intention of enhancing his or her performance in any sports competition where there is a reward on offer, whether monetary or in terms of prestige, promotion or protection from relegation; or where that is one of his or her intentions; or(b) has been banned or suspended from participation in any sporting activity, or has been or is a member of any organisation which has been banned or suspended from participation in any sporting activity anywhere in the world, at any time either before or after the day on which this Act is passed; and(i) participates in any sports competition in the United Kingdom where there is a reward on offer, whether monetary or in terms of prestige, promotion or protection from relegation; and(ii) does not have a prohibited substance certificate dated not more than 14 days earlier than the date of the sports competition at the commencement of the sports competition. (3) In subsection (2) “prohibited substance certificate” means a certificate from a medical practitioner in the United Kingdom appointed by the General Medical Council for the purpose of testing athletes for prohibited substances, confirming that in the practitioner's opinion—(a) the athlete does not have any prohibited substance in his or her body, and(b) the athlete’s body does not retain any advantage in sporting performance by reason of the athlete having taken a prohibited substance at any time either before or after the day on which this Act is passed.(4) A person in the United Kingdom is guilty of an offence if he or she, with the intention of enhancing the performance of an athlete, encourages, assists or hides awareness of an athlete taking a prohibited substance with the intention of enhancing the athlete’s performance, or with that being one of the athlete’s intentions.(5) A medical professional commits an offence if, in the United Kingdom, he or she prescribes a prohibited substance to an athlete and believes, or ought reasonably to believe, that the substance will be used by the athlete with the intention of enhancing his or her performance, or if the professional fails to report any approach for a prohibited substance by such an athlete to the General Medical Council.(6) A member of an organising committee is guilty of an offence if he or she has not taken all reasonable steps to ensure that all athletes permitted to compete in a World or European Championship which he or she is involved in organising, convening, or authorising—(a) have not taken a prohibited substance with the intention of enhancing their performance; and(b) have not been banned or suspended from participation in any sporting activity, or been a member of any organisation which has been banned or suspended from participation in any sporting activity anywhere in the world, during the two years prior to the World or European Championship.(7) In subsection (6), “organising committee” means a Committee established in the United Kingdom on behalf of any international federation of sport, which is recognised by the International Olympic Committee.(8) For the purposes of this section a “prohibited substance” is as defined by the World Anti-Doping Agency or such other agency as shall be designated by the Secretary of State for this purpose.(9) Any person guilty of an offence under subsection (2), (4) (5) or (6) or shall be liable—(a) on summary conviction, to a fine not exceeding the statutory maximum or imprisonment for a term not exceeding six months, or both; or(b) on conviction on indictment, to a fine not exceeding the statutory maximum or imprisonment for a term not exceeding two years, or both.(10) In order to assist with the prevention of offences under subsections (2), (4) (5) or (6), UK Anti-Doping shall discuss the following issues with the World Anti-Doping Agency annually—(a) the effectiveness of Annex I of the International Standard for Testing and Investigations (athlete whereabouts requirements) and its harmonisation with the European Convention on Human Rights;(b) the effectiveness of the international work of the World Anti-Doping Agency; and(c) progress on the development of a United Kingdom roll-out of athlete biological passports.(11) UK Anti-Doping shall submit the results of the annual discussions under subsection (7) to the Secretary of State, who shall— (a) lay before both Houses of Parliament an annual report documenting—(i) whether the athlete whereabouts requirements are effective in combating doping in the United Kingdom and are in compliance with the European Convention on Human Rights, and(ii) the performance of the World Anti-Doping Agency in general in relation to its effectiveness in preventing offences under subsections (2), (4) (5) or (6); and(b) determine whether the Government should remain a member of and continue to support the World Anti-Doping Agency, in the light of that effectiveness.”
Lord Moynihan (Con)
My Lords, Amendment 214B is the product of some 30 years of discussions I have had with successive Governments, numerous reviews and ministerial answers, during which time many countries have now overtaken us and introduced legislation to criminalise the worst effects of doping in sport. So at least I am confident that the Minister will not be seeking more time to consider this very important subject.
I thank Her Majesty’s Opposition for the work they did in another place. My amendment follows the amendments tabled by Christina Rees, the Labour MP for Neath, who was supported on 24 April this year by Shadow Home Secretary Andy Burnham who said:
“People need to be able to trust that what they are seeing on the pitch, on the track or in the pool is real endeavour and not artificially enhanced. If you are using performance-enhancing drugs, you are not just cheating the other athletes but you are perpetrating a fraud against the paying public. For that reason, there is a clear case for it to be a criminal offence. We must send the strongest possible message that it will not be tolerated in sport”.
The amendments tabled today have also been actively discussed in informal conversations with the noble Baroness, Lady Grey-Thompson, from the Cross Benches and the noble Lords, Lord Campbell of Pittenweem, Lord Addington, and others, who have campaigned for many years on this subject. I am grateful to them for the interest they have shown and to colleagues on my side of the House for their expressed support. The Government should be in no doubt of the depth of support for these measures, both in the press and the country as a whole, not least in the wake of the banning of the Russian athletics team from the Rio Olympic Games this year.
The effect of the amendment is set out in proposed subsection (2). It seeks to deal with nothing less than fraud in sport. Those athletes who knowingly take performance-enhancing drugs from the World Anti-Doping Agency’s prohibited list with the intention of enhancing his or her performance to the detriment of the clean athlete—thus potentially denying the clean athlete selection, the prestige of winning or financial gain for professional athletes—would, if the amendment is passed, be guilty of a crime under the legislation.
Lord Rosser
My Lords, the noble Lord, Lord Moynihan, has explained the purpose of this amendment and the extent of its provisions. It is a very timely amendment: the Olympic Games in Rio were overshadowed by doping scandals. Russia was banned from the Paralympics, but did not receive a blanket ban from the main Olympics, despite the state-sponsored doping that had been exposed.
Now, a recent report from the World Anti-Doping Agency independent observers has highlighted failings in the anti-doping checks and procedures at Rio, which the report indicates put an almost unmanageable strain on drug testing during the Olympics. The result was that on Sundays, up to half of all drug tests did not take place because athletes could not be found at the athletes’ village or competition venues due to lack of support, training and information given to chaperones, whose job it was to notify athletes of testing.
Apart from management failings, the report also blamed the failings on budget and operational cutbacks. About 500 fewer drug tests were carried out at Rio than were planned, albeit failing a drugs test at the Games themselves suggests a competitor or their aides who are not particularly conversant with the ways of covering up the taking of drugs. In addition, more than a third of athletes competing in Rio were not subject to drugs testing before the Games in 2016, and of these, nearly 200 were competing in one of the 10 high- risk sports. Despite this report, the International Olympic Committee stated a day later that the report showed that it had been a successful Olympic Games with a successful anti-doping programme.
Doping issues are not, of course, confined to the Olympic Games. The Tour de France has not exactly been immune from them, and neither has tennis or football in this country, to give just three other examples. I suspect that most of us, including, not least, myself, just do not appreciate the full extent and breadth of prohibited substance-taking across different sports.
Prohibited substances, as the noble Lord, Lord Moynihan, has said, are taken to gain an advantage in sport over fellow competitors. They are taken to produce a false result which is not determined purely and solely by the skill and unaided effort of each competitor. That false result will at the very least be influenced—and at the worst determined—by the taking of a substance that improves performance unrelated to the skill or effort of the competitor concerned. It is a form of fraud. It is cheating—cheating not just fellow competitors but the public who paid to come watch the sporting event in the belief that they would see a fair competition with competitors competing on a level playing field.
The purpose of the amendment is, through a series of measures—including the creation, as in some other countries, of a criminal offence carrying, in exceptional circumstances, a custodial sentence—to throttle the deliberate and intentional use of drugs in sport by any person in this country or by any person in this country who,
“knowingly takes anywhere in the world a prohibited substance with the intention of enhancing his or her performance”;
or by any person, deliberately and intentionally, among other things, providing or administering to an athlete prohibited substances with a view to enhancing the performance of that athlete. The amendment also lays a responsibility on an organising committee.
The amendment would also require the Secretary of State to submit an annual report to Parliament which would include documenting the performance of the World Anti-Doping Agency in general in its effectiveness in preventing the offences provided for in the amendment, together with a requirement on the Secretary of State to determine whether the Government should remain a member of and continue to support the World Anti-Doping Agency.
The events before and during the Rio Olympics and the ever-increasing range of sports apparently affected by the use of prohibited substances suggest that doping in sport, including state-sponsored doping, is still not being taken sufficiently seriously by those at the most senior level who are in a position to stamp it out. The amendment is intended to toughen up our approach in this country to the serious problem of doping, including by people from this country competing, or assisting those competing, elsewhere in the world. We most certainly support it and hope that it will find favour with the Government.
Baroness Wheatcroft (Con)
I support the amendment. I cannot claim to be an expert on sport, but my noble friend Lord Moynihan most certainly is. His sporting legacy to this country is extraordinary, not least the performance of our team in the London Olympics, which was engineered by his work as chairman of the British Olympic Association, but also the extraordinary performance of our team in Rio. At first glance, the amendment appeared to be radical but, having heard the argument, I understand that we are lagging behind on this important front. That is not the right position for this great sporting nation to be in.
Beyond that, I fear that by not taking strong action against the use of drugs in sport, we are sending the wrong message to our youngsters, who look on sport as a career opportunity and wonderful thing, and to those who play sport as their great heroes. If people are banned from sport for a year or two and then come back, that seems to be acceptable. A prison sentence would be in a different league. That would send a message to our youngsters that this is something that they should not tolerate, and certainly not toy with. That is a very important message for this House to send. I support the amendment.
Lord Harris of Haringey (Lab)
My Lords, I, too, support the amendment. Like the noble Baroness, Lady Wheatcroft, I do not claim to be an expert in or have anything much to do with sport under most circumstances, but the amendment moved by the noble Lord, Lord Moynihan, is extremely important. This is about the confidence of the public and the importance to them of feeling that the sporting events they watch or participate in are genuine and not distorted in the way described. It therefore sends a powerful signal and if it indeed brings us back into line with other countries around the world, it is an extremely important thing for us to be doing.
My question—the noble Lord may have answered it in his remarks but if so I did not catch it—is: how broad are the sporting activities which the amendment covers? He talked about international sporting events, and we all have memories of what happened in the recent Olympics, in particular with the Russian team. However, as I understand it, the amendment covers all competitive organised sporting events where they are subject to a governing body. I should be grateful for that clarification and the extent to which it extends right the way through, because the governing bodies of the sports of which I have some knowledge are increasingly seeking not only to arrange the high-profile events but to encourage more people to participate at a lower level in local, regional or county events. It may be less likely that performance-enhancing drugs are used in those environments. However, I assume that this legislation is intended to pick up on those issues as well. It would be helpful if we had that clarity because it is important for people to have confidence in all sporting activities in this country, not just those at the highest level.
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.
Baroness Berridge
“Prescribed limit of alcohol
(1) In section 11(2) of the Road Traffic Act 1988 (interpretation of sections 4 to 10), the definition of “the prescribed limit” is amended as follows.(2) For paragraph (a) substitute—“(a) 22 microgrammes of alcohol in 100 millilitres of breath,”.(3) For paragraph (b) substitute—“(b) 50 milligrammes of alcohol in 100 millilitres of blood, or”.(4) For paragraph (c) substitute—“(c) “67 milligrammes of alcohol in 100 millilitres of urine,”.”
Baroness Berridge (Con)
My Lords, in moving Amendment 214C, I shall speak also to Amendment 214CB, both of which relate to drink-driving law. Let us imagine a world where you can pop to your GP and get a prescription for cocaine. If you want to lose weight, you not only have the choice of the 5:2 or the Atkins diet, but amphetamines are also prescribed by your doctor. On television there are advertisements of the health benefits of smoking cigarettes. Welcome to the United Kingdom in 1956, the year in which we set the level of alcohol you can have in your body and still drive legally. The law in England and Wales has remained unchanged since then. I hope these brief examples show how the greater understanding of the effect of drugs in the human body has changed laws in these areas and that we are well overdue a change to the drink-drive law.
I note at the outset that our law applies to all drivers: HGVs, taxis and bus drivers. For everyone, it is 80 milligrams in 100 millilitres of blood. Although for many years deaths and injuries caused by drink-driving have fallen, this is due to strong enforcement and other factors. In 1956, most cars did not even have brake discs, let alone servo-assisted brakes. You did not have to wear a seatbelt and airbags were still the stuff of fantasies. Your Lordships just have to cast your mind back to the series “Heartbeat”, and think of what the emergency services looked like then—the arched top of the ambulance, the canvas stretchers, the siren. There were no air ambulances, no fire crews cutting open the roof of your car, no fluids at the scene, no heart surgery by cracking open the chest at the roadside and there were no breathalysers at the roadside either.
We have much to be thankful for today. The police do a great job of enforcement, but they want the limit changed and it is high time we listened to them. Changing human behaviour, which changes in the law can bring about, is much more effective and cheaper in terms of human lives—most importantly—as well as financially, than relying on enforcing the law.
All other European countries have the lower limit outlined in Amendment 214C of 50 milligrams or below. All other common-law jurisdictions that I can find have done so as well. England and Wales stands alone. Scotland has changed the law to 50 milligrams and, as of 1 January of next year, Northern Ireland will have as well.
I have not owned a car for 10 years. I am an occasional driver and I am thankful that I have no direct personal experience of drink-driving accidents affecting my family. I am looking at this evidence as a lawyer and I am concerned that deaths from drink-driving have been static since 2010. We need something to prompt a further decline.
I note briefly three pieces of evidence that illustrate that these amendments are part of the answer. First, on reviewing all the available evidence, NICE in 2010 concluded:
“There is sufficiently strong evidence to indicate that lowering the BAC limit changes the drink-driving behaviour of all drivers at all BAC levels”.
The arguments here do not only revolve around those drivers who would fall within the new limit—those between 50 milligrams and 80 milligrams. This change is about all drivers and reducing drink-driving at all levels.
I have to stop here to note that only last night two teenagers lost their lives in Aldershot and a serving soldier has been arrested on suspicion of drunk-driving. This is about affecting the behaviour of all drivers in relation to alcohol. On the specific limit that is outlined in the amendment of 50 milligrams, the NICE report quotes a scientific review that states:
“Lowering the BAC level from 0.8 to 0.5 is effective”.
Secondly, on that specific reduction to 50 milligrams, which is something that Switzerland did in 2005, there was then a reduction in the number of those injured in alcohol-related crashes, according to the Swiss Council on Accident Prevention.
Thirdly and finally, 13% of all those who were breathalysed in 2014 in the UK following any road traffic collision were between the 50 milligram limit in the amendment and the current 80 milligram limit. In 40% of fatal accidents, the driver has alcohol in their system below the current legal limit of 80 milligrams. Around 240 families each year lose someone due to drink-driving.
We know that alcohol affects people’s driving. We have to think of how many collisions would be avoided completely if we reduced the limit. There is a roll call of organisations that are supporting the lowering the limit. These include the RAC, the RAC Foundation, the AA, Brake, the Institute of Advanced Motorists, the Parliamentary Advisory Council for Transport Safety, the Police Federation, the Royal College of Emergency Medicine, the College of Paramedics, the Fire Brigades Union, the British Medical Association, the Royal College of General Practitioners, the Royal Society for Public Health, the Alcohol Health Alliance and the Institute of Alcohol Studies. In fact, I not aware of a single similar organisation that is against reducing the drink-driving limit after 60 years.
Baroness Jones of Moulsecoomb (GP)
My Lords, I congratulate the noble Baroness, Lady Berridge, on tabling such a moderate amendment. I would have pushed for a much stronger lower limit. It is absolutely irresponsible for anybody to get into a car once they have had a drink. Here in Britain we have one of the highest limits in Europe. Some EU nations have completely banned drinking alcohol before getting into a car. Personally, that is what I would like to see.
The new limit would be equivalent to a pint of beer or a large glass of wine for a man and half a pint of beer or a small glass of wine for a woman. I argue that even that relatively small amount of alcohol affects your ability to drive. It reduces one’s inhibitions and perhaps one’s ability to speak clearly. If you drink that amount and then get into a car, you are making that car a dangerous weapon. I do not understand why it is acceptable to get into a car and then be likely to, or have the possibility, to injure or even kill somebody. Drink-driving led to 240 fatalities and more than 1,000 serious injuries in 2014, the last year for which we have figures. It is unreasonable to accept this number of deaths and injuries in our society. We should aim for zero deaths. The reason that so many drivers do not get killed any more is simply because of better medical practices. Help is given to them sooner and so they are more likely to kill or injure people outside their vehicle—pedestrians and cyclists.
We accept road deaths far too easily. I talk to people who say, “It just happens”, but it should not happen. Every death costs society over £2 million. That means every taxpayer pays for you getting into your car and going off and killing somebody. The £2 million cost is for social services, emergency services and medical services. We allow this ridiculous sum to happen on a regular basis.
We have not had the results of the Scottish trial yet, but Police Scotland said that in the nine months after the drink-drive limit was reduced in December 2014, the number of offences fell by 12.5%. That means people have been saved—they have not died or been seriously injured. There is also evidence that it has changed social attitudes. A December 2015 survey suggested that 82% of Scots now believe that drinking any alcohol before driving is unacceptable. That is the sort of thing that we should expect here in England as well. It is time to update this ridiculous figure, which allows somebody who has drunk far too much to be competent to get into a vehicle and be dangerous on our roads.
Lord Brooke of Alverthorpe
My Lords, I am very grateful to the noble Baroness, Lady Berridge, for bringing this amendment. I have long form on this one. I first chaired an EU sub-committee in 2001 that recommended we should fall in line with what was happening in Europe and go down to 50. I moved a Private Member’s Bill—this year or last year, I forget—that ended up going through Committee stage and everything. It cleared the Lords so your Lordships, I hope, have not changed your minds and are still in favour of this—as on the previous occasion when an amendment was tabled. However, there was no shift from the Government.
The noble Baroness, Lady Berridge, raised a very interesting point about how we come here with evidence and everybody seeks the change, yet the change does not take place and the deaths continue. She mentioned that there has been a plateau in the number of deaths. There was a decline from 2000 to 2010 but there has been little shift, other than last year when it went marginally up. When I concluded my last contribution on this I forecast—I cannot remember the number—the number of deaths that would take place over 2015, 2016 and 2017. In fact, I think I probably underforecast because of the rise last year.
The simple reason for that is that the Government do not have any initiatives of any importance that are going to change the course of events. It is bits and tiny pieces here and there when we should be looking at the policy that has been proven to work in Scotland. We ended up with the Minister last time saying he would have conversations in Scotland. The Minister for Transport at the other end also said that he would have conversations in Scotland and look at the evidence there, but I have had no further reports from the people I know on the outturn of those conversations and I do not even know if they have been held.
Perhaps the Minister will be kind enough to advise us on what is coming out of Scotland. The initial evidence there was certainly compelling enough to indicate that the change was working and that it had effected a cultural change—people were not even driving the following day. One of the problems you get with drink-driving is that people still drive the following morning when they are intoxicated. That had changed in Scotland to a fair extent. I hope it is being maintained.
I hope the Government are taking this seriously and that at some stage we are going to get a lower limit—even Malta, the last remaining European country with a higher limit, is committed to fall in line down to 50; we alone remain. Ireland has changed. Northern Ireland is changing. Wales wants to change. Yet England alone holds out, wanting to be convinced. The evidence of the deaths is there and it is time we did something about it.
Earl Attlee (Con)
My Lords, I wonder whether the Committee will permit me to speak even though I did not hear the start of my noble friend’s speech—for which I sincerely apologise to the Committee.
I am disappointed that some time ago I tabled a Written Question, to be answered by my noble friend Lord Ahmad for the Department for Transport, asking when we expected to get useful statistics from the experience of Scotland. Although noble Lords have pointed to positive changes in compliance in Scotland, we really need to see from Scotland figures relating to the number of drivers who are far in excess of the legal limit. The statistics for England are very interesting—I found them compelling when I had to answer on this issue at the Dispatch Box. If the Minister cannot tell me now, perhaps she can write to the Committee, but I should like to know when we will get useful statistics from the Scottish experience. That will be very important in informing the Government’s decision on whether we should go to 50 or remain at 80. It is the persistent, unregulated drinkers who have very serious accidents—but without the statistics from Scotland I think we would be making a premature decision.
Baroness Jones of Moulsecoomb
What does the noble Earl mean by “serious accidents”? People are being killed and seriously injured by those who have had a drink. A lot of the time those accidents are caused by people who have had far too much to drink but sometimes they are caused by people who have had a small amount to drink—but their faculties and ability to drive are lessened. So it is not just a question of drinking a lot; it is a question of drinking at all.
Earl Attlee
My Lords, I absolutely agree with the noble Baroness. Any alcohol whatever will to some extent cause a reduction in driving capability and increase the risk of having an accident. I am saying that we need to be careful and take advantage of a full range of statistics from the Scottish experience. I was disappointed with the Department for Transport because it could not tell me at what point it thought it would get useful statistics from Scotland.
Lord Paddick
My Lords, I am generally supportive of the amendments put forward by the noble Baroness, Lady Berridge. From my recollection of what she said, there was evidence of people involved in accidents who were not above the current legal limit but were above the proposed limit, and therefore there was some evidence that reducing the drink-driving limit would be beneficial. Am I wrong?
Baroness Berridge
If I remember correctly from the statistics provided by the Minister at the meeting, 3% of the fatalities are occurring within the 50 to 80 milligram limit. So there will be fewer deaths and correspondingly fewer injuries if we reduce the limit. There is then the added effect—and thus, one hopes, an exponential benefit—of changing everybody’s behaviour in relation to alcohol.
Lord Paddick
I am very grateful to the noble Baroness for that explanation. To some extent, although it does not provide evidence of the Scottish experience, it shows that reducing the limit could have an effect by reducing the number of accidents that cause fatalities.
There are a couple of things that I am concerned about. One is the extent to which a change in the law would have a deterrent effect in the absence of increased enforcement by officers involved in roads policing. We know how much police forces have had to reduce their budgets and reduce the number of officers. My experience is certainly that roads policing is one of the first areas on the list when it comes to reductions. Does the Minister have any information about the deterrent effect of roads policing in relation to drink-driving that we need to consider in addition to the reduction in the drink-driving limit?
The other thing that I am concerned about is the increasing amount of drug-driving—that is, people who drive under the influence of illegal drugs—with a potentially even worse impact on their ability to drive than if they had taken a drink. I wonder whether a lower alcohol limit would cause people to move to taking drugs rather than alcohol for fear of being detected as being above the new alcohol limit, with such a change therefore having a negative impact or an unintended consequence. I would be very grateful if the Minister had any information on whether that has been the effect in Scotland.
Lord Harris of Haringey
I sometimes wonder about the priorities of this House and of government in considering these sorts of issues. I think most of those who know me recognise that I am fairly hawkish on counterterrorism, but the number of people in this country who have died as a consequence of terrorist acts since 2005 is less than the number of people who die in a single year because of drunk-driving between the limits that are currently against the law and those proposed by the noble Baroness.
Let us go back over all the legislation since the current limit was introduced—the noble Baroness, Lady Berridge, took us back to what it was like in those times when we were all much younger—and consider how many pieces of legislation, full Bills, have been brought forward by the Home Office to deal with the threat from terrorism. It is usually about one a year, sometimes more—full Bills containing lots of new offences. Yet there is clear evidence that these new limits would reduce the number of deaths, they are fairly straightforward to administer and yet we keep waiting and putting off the decision. That seems to me an issue that we should all address, and we should be conscious that sometimes we have double standards. I will continue to argue for stronger counterterrorism, but it is rather striking that we do not resolve something like this, which would make a real difference, and would stop the wrecking not only of the lives of the families of those who have died but also of the lives of those who cause the deaths.
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, the arguments proposed by noble Lords are ones we have heard for many years. The arguments have not changed. Why, therefore, did the party opposite not lower the limit when they were in government? The reason is that it is a tricky issue.
Baroness Jones of Moulsecoomb
My Lords, we are not talking about the past but about now. We have an opportunity to do something now: to save lives and prevent serious injuries. I do not understand this reluctance to face facts. As the noble Lord said—is he a friend?
Baroness Jones of Moulsecoomb
As my noble friend said, we are not talking about comparing ourselves with other countries, and nor are we arguing for any other changes. We are not talking about drug-driving but specifically about drink-driving and the damage it does to innocent lives.
Lord Harris of Haringey
Since we are having open season during this intervention in the Minister’s speech, could we also deal with why other countries’ records are worse although they have tighter limits? This debate is not about behaviour in France, or in Estonia, and I do not want to get into a pre-Brexit rant about the behaviour of foreigners, or anything like that. If those countries felt that the problem was so bad that they needed to take even tougher measures, that is a matter for them. We are talking about proposals that would save lives in this country at the present time. That is what these amendments are about.
Earl Attlee
I hope the Minister will finish by saying that when we get the statistics from Scotland she will study them carefully and possibly review the policy. But claiming that lowering the limit will reduce fatalities is an assertion, and it is not necessarily the case. We need to wait for the evidence, particularly relating to fatalities caused by those people who are far over the limit. I do hope the Minister will say something useful about how she will take full account of the statistics we will shortly get from Scotland.
Lord Harris of Haringey
My Lords, we are in Committee and we can do what we like. The noble Baroness, Lady Berridge, put the argument very clearly in relation to the number of deaths that occur as a result of people who have more drink in their blood than the limit she is proposing but less than the current limit. If those deaths could be prevented that would be a net gain.
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
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
“Posthumous pardons for convictions etc of certain abolished offences
(1) A person who has been convicted of, or cautioned for, an offence specified in subsection (3) and who has died before this section comes into force is pardoned for the offence if two conditions are met.(2) Those conditions are that—(a) the other person involved in the conduct constituting the offence consented to it and was aged 16 or over, and (b) any such conduct at the time this section comes into force would not be an offence under section 71 of the Sexual Offences Act 2003 (sexual activity in a public lavatory).(3) The offences to which subsection (1) applies are—(a) an offence under section 12 of the Sexual Offences Act 1956 (buggery) or under section 13 of that Act (gross indecency between men);(b) an offence under any of the following provisions (which made provision similar to section 12 of the Sexual Offences Act 1956)—(i) 25 Hen. 8 c. 6 (1533) (an Act for the punishment of the vice of buggery);(ii) 2 & 3 Edw. 6 c. 29 (1548) (an Act against sodomy);(iii) 5 Eliz. 1 c. 17 (1562) (an Act for the punishment of the vice of buggery);(iv) section 15 of 9 Geo. 4 c. 31 (1828) (an Act for consolidating and amending the law relating to offences against the person); (v) section 61 of the Offences against the Person Act 1861;(c) an offence under section 11 of the Criminal Law Amendment Act 1885 (which made provision similar to section 13 of the Sexual Offences Act 1956).(4) The references in subsection (3) to offences under particular provisions are to be read as including offences under—(a) section 45 of the Naval Discipline Act 1866,(b) section 41 of the Army Act 1881,(c) section 41 of the Air Force Act 1917,(d) section 70 of the Army Act 1955,(e) section 70 of the Air Force Act 1955, or(f) section 42 of the Naval Discipline Act 1957,which are such offences by virtue of the provisions mentioned in subsection (3).(5) The reference in subsection (2)(b) to an offence under section 71 of the Sexual Offences Act 2003 is to be read as including a reference to an offence under section 42 of the Armed Forces Act 2006 which is such an offence by virtue of section 71 of that Act of 2003.(6) The following provisions of section 101 of the Protection of Freedoms Act 2012 apply for the purposes of this section and 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) as they apply for the purposes of Chapter 4 of Part 5 of that Act—(a) in subsection (1), the definitions of “caution”, “conviction”, and “sentence” (and the related definition of “service disciplinary proceedings”);(b) subsections (2) and (5) to (7).”
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 Cashman (Lab)
My Lords, I support the amendments from the noble Lord, Lord Lexden, extending the provisions to Northern Ireland, and I shall speak to the amendments in my name. I congratulate the noble Lord on the success he has had with these amendments in relation to the announcement from the Justice Minister Claire Sugden. The noble Lord’s record on seeking to achieve equal rights in Northern Ireland, not least on equal access to marriage, is unblemished and should be celebrated because at its very heart is the concept that we should have equality and access to equal rights across the United Kingdom, not based on where we live.
I will quote from two organisations in Northern Ireland. A Northern Ireland-based LGBT organisation replied to the announcement that the measure would go before the Northern Ireland Assembly by saying:
“This is the first time that the Northern Ireland Assembly has made positive moves in respect of LGB&T legislation and we are hopeful that with cross-party support the pardons will be applicable to convictions made against … men living in Northern Ireland”.
I also join the noble Lord in celebrating the work and success of LGBT people and their allies and NGOs in Northern Ireland. Quite rightly, this is their success; and not the least of them is Councillor Jeff Dudgeon MBE, who has been a pioneer, affecting so positively the lives of so many across the United Kingdom and beyond.
Before I speak specifically to my two amendments—214S and 214R—I need to pay tribute to the noble Lord, Lord Sharkey, for his exemplary work over the years in pressing the case for equality, even when some have not wanted to listen to the arguments, noble and right though they are. My only difference with him on my amendments are on two major elements. My Amendment 214S differs from the amendment of the noble Lord, Lord Sharkey, and others in two key respects. First, it would grant a pardon to any person convicted of or cautioned for a now abolished offence, providing that they meet certain conditions, regardless of whether they are living or dead.
I disagree with the need to create two different systems for pardoning people in respect of these offences—one for the living and one for the dead. I cannot honestly see the logic of saying to a living person, “You must apply to have your conviction or caution disregarded to be eligible for a pardon,” while at the same time saying, “If you have died, you will get a pardon automatically”. That is not logical, and I am afraid that it appears to confuse the purpose of a pardon and the purpose of the disregard scheme. My amendment makes it abundantly clear that any person, subject to the specified conditions, who suffered a conviction or caution under these offences is pardoned. For those living with an historic conviction or caution, the disregard scheme is available to address any negative consequences caused by a police or other record.
The second way in which my amendment differs from that of the noble Lord, Lord Sharkey, and others, is that it would extend pardons to those convicted or cautioned under Section 32 of the Sexual Offences Act 1956 and its corresponding earlier provisions in the Vagrancy Act 1898. Let me be absolutely clear: this would not grant a pardon to any person convicted or cautioned for soliciting. My amendment makes it clear that anyone convicted or cautioned for any conduct that would now constitute the offence of soliciting under the Sexual Offences Act 2003 would not be pardoned; nor would a pardon extend to a person whose conviction or caution was the result of conduct involving any other person under 16. What my amendment would do is grant pardons for all those persons who were convicted or cautioned for what was once called “importuning for immoral purposes”. The immoral purposes, in many cases, amounted to nothing more, as the Home Office report Setting the Boundaries recognised in 2000, than one man chatting up another man. That report recommended the repeal of the offence, and that was carried through.
On a personal note, I lived through that campaign of hate and fear. I was a 16 year-old gay man when the age of consent was set at 21 and homosexual acts in private were decriminalised. I still had no protection as a young gay man who wanted to exercise his attraction and his love for others. I, too, suffered the threat of coming out of a bar or a pub in places such as Earl’s Court, where a lot of homosexual and bisexual men gathered. We felt safe together, but coming out of such a pub or a club and looking at another man and smiling at him could have possibly got me arrested for soliciting for an immoral purpose.
Earl Attlee
My Lords, I rise briefly to support the general thrust of these amendments because the underlying legislation and the policy behind it was so fatally flawed. I am just sad that it took me and many others so long to realise that the whole policy was 100% flawed and caused unnecessary problems.
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.
Lord Sharkey
My Lords, I thank all those noble Lords who have spoken in favour of Amendments 214E and 214F, and all noble Lords who have spoken in this brief debate. I also want to claim some fellowship as a Mancunian with the Minister. Wigan is only 17 miles from Manchester, and while I was at the University of Manchester as a mathematics undergraduate, I was taught by a man called Robin Gandy who was the only doctoral student that Alan Turing ever had. Robin Gandy was full of stories about Alan Turing and I knew these from a very early age.
In closing, I thank the noble Lords, Lord Lexden, Lord Black of Brentwood and Lord Faulkner of Worcester, who have been supporters of these amendments in their current form and in all their previous forms. It is also appropriate to thank my noble friend Lord McNally and the noble Lords, Lord Bates, Lord Faulks, and their officials for listening to the case we have made and for helping to arrive at a solution.
“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).”
“Sections (Posthumous pardons for convictions etc of certain abolished offences) and (Other pardons for convictions etc of certain abolished offences): supplementary
(1) A pardon under section (Posthumous pardons for convictions etc of certain abolished offences) or (Other pardons for convictions etc of certain abolished offences) does not—(a) affect any conviction, caution or sentence, or(b) give rise to any right, entitlement or liability.(2) Nothing in this section or in section (Posthumous pardons for convictions etc of certain abolished offences) or (Other pardons for convictions etc of certain abolished offences) affects the prerogative of mercy.”
Lord Lexden
“Posthumous pardons for convictions etc of certain abolished offences: Northern Ireland
(1) A person who has been convicted of, or cautioned for, an offence specified in subsection (3) and who has died before this section comes into force is pardoned for the offence if two conditions are met.(2) Those conditions are that—(a) the other person involved in the conduct constituting the offence consented to it and was aged 16 or over, and(b) any such conduct at the time this section comes into force would not be an offence under section 75 of the Sexual Offences (Northern Ireland) Order 2008 (sexual activity in a public lavatory).(3) The offences to which subsection (1) applies are—(a) an offence under section 11 of the Criminal Law Amendment Act 1885 (gross indecency between men),(b) an offence under section 61 of the Offences against the Person Act 1861 (buggery),(c) an offence under either of the following provisions (which made provision similar to section 61 of the Offences against the Person Act 1861—(i) 10 Cha.1 Sess.2 c.20 (1634) (An Act for the punishment of the vice of Buggery);(ii) section 18 of 10 Geo. 4 c.34 (1829) (An Act for consolidating and amending the Statutes in Ireland relating to Offences against the Person), or(d) an offence under Article 19 of the Criminal Justice (Northern Ireland) Order 2003 (buggery).(4) The references in subsection (3) to offences under particular provisions are to be read as including offences under—(a) section 45 of the Naval Discipline Act 1866,(b) section 41 of the Army Act 1881,(c) section 41 of the Air Force Act 1917,(d) section 70 of the Army Act 1955,(e) section 70 of the Air Force Act 1955, or(f) section 42 of the Naval Discipline Act 1957,which are such offences by virtue of the provisions mentioned in subsection (3).(5) The reference in subsection (2)(b) to an offence under section 75 of the Sexual Offences (Northern Ireland) Order 2008 is to be read as including a reference to an offence under section 42 of the Armed Forces Act 2006 which is such an offence by virtue of section 71 of the Sexual Offences Act 2003 (corresponding offence of “sexual activity in a public lavatory” in England and Wales).(6) The following provisions of section 101 of the Protection of Freedoms Act 2012 apply for the purposes of this section and section (Sections (Posthumous pardons for convictions etc of certain abolished offences: Northern Ireland)and (Other pardons for convictions etc of certain abolished offences: Northern Ireland): supplementary)(1) (so far as relating to this section) as they apply for the purposes of Chapter 4 of Part 5 of that Act—(a) in subsection (1), the definitions of “caution”, “conviction”, and “sentence” (and the related definition of “service disciplinary proceedings”);(b) subsections (2) and (5) to (7).”
Lord Lexden
My Lords, I am grateful for the support that has been expressed by—for this purpose—my noble friend Lord Cashman and my noble friend the Minister. I shall not press the amendments, with a view to returning to the matter on Report.
Lord Paddick
“Vagrancy Act 1824
In section 8 of the Criminal Attempts Act 1981 (abolition of offence of loitering etc with intent) at end insert—“(2) A person who has been convicted of, or cautioned for, an offence under those provisions is pardoned for the offence.(3) For the purposes of subsection (2) it is irrelevant whether the person has died before subsection (2) comes into force.(4) A pardon under this section does not give rise to any right, entitlement or liability.””
Lord Paddick
My Lords, with the leave of the House, I cannot let the opportunity go past without congratulating my noble friend Lord Sharkey on what is a phenomenal achievement. I am very grateful to the Government for the support that they have finally given to his amendment.
I turn to another contentious issue. Amendment 214Q stands in my name and that of my noble friend Lady Hamwee. As we have just discussed, with government support my noble friend Lord Sharkey has moved amendments—and we have just passed those amendments—to grant pardons to those convicted of offences that only gay men could commit and that are no longer on the statute book because they were considered discriminatory. These offences are symbolic to the gay community and it is striving to ensure equality in law and in society as a whole.
There is another offence that is symbolic to another minority, which is no longer an offence on the statute book and is considered by many to be another example of what amounts to an historic injustice. Parliament repealed the offence because it was accepted that it was being used in a discriminatory manner by the police; it is the offence of being a suspected person loitering with the intent to commit what was originally an indictable, and later, an arrestable offence. Although the term “sus” has recently been more widely used to describe the use of police “stop and search” powers, it was originally confined to the criminal offence of being a suspected person under Section 4 of the Vagrancy Act 1824. The offence required the evidence of two witnesses, usually two police officers patrolling together. The usual evidence was of a suspected person being seen to try three car door handles, in an attempt to steal the car or from it, or the suspect putting his shoulder to the doors of three homes, with the intention of committing burglary.
The difficulty with the offence was the absence in almost every case of any corroboration, either from witnesses other than police officers, or any physical or forensic evidence. Both the police officers and, usually, young black men, who were almost exclusively the target under sus, knew that it was the word of two police officers against a young black man with no other witnesses or evidence or any other corroboration. This allowed unscrupulous police officers to invent evidence against those who had, at least on that occasion, done nothing wrong.
Of course, some will say that a miscarriage of justice did not occur on every occasion of someone being convicted of being a suspected person and, of course, I cannot say that that was the case. However, I can say—I hope that Members of this House agree with this—that thousands of innocent young black men were convicted, which caused huge pain and distress, destroying the trust and confidence between the community and the police.
I was a police officer—a bobby on the beat, a patrol officer—at the height of the use of that aspect of Section 4 of the Vagrancy Act. In 1975 and 1976, the year I joined the Metropolitan Police, more than 40% of those arrested for sus were black people, when at the time black people accounted for only 2% of the population. It was because by the end of the 1970s you were 15 times more likely to be arrested for sus if you were black than if you were white, far more than the disproportionality in stop and search, that in 1980 the Home Affairs Select Committee recommended the repeal of the legislation. It also threatened to introduce a Private Member’s Bill if the Government did not take action, but the Government did.
There was a great deal of concern, even among police officers at the time—me included—over the use of the offence, in that we knew about the claims of the black community that it was used as a tool to oppress black people. If there was evidence of another offence—for example, attempted theft of or from a motor vehicle or attempted burglary—not only were these offences less likely to be open to question but the penalties were more severe. In other words, if there had been substantive evidence, physical or forensic evidence, which in those days would have been simply fingerprints, then the much safer, more acceptable and far less contentious route was to arrest and charge for the substantive offence rather than sus.
My second comment is anecdotal. I was at Highbury Corner Magistrates’ Court with someone I had arrested. The stipendiary magistrate, Toby Springer, would want to hear from the arresting officer in every case except for those of being drunk and incapable. The case just before me was an arrest made by a colleague for whom I had respect for his honesty and professionalism. He had arrested someone for sus, and the young black man who had been arrested pleaded guilty to the offence and was fined. Downstairs in the cells, where the young man had to pay his fine before being released, I spoke to my colleague, and I remember this very distinctly. I said to him that he had restored my faith in sus because here was a trusted colleague with someone who had pleaded guilty in court to the offence, so the criticisms made by the black community, at least in some cases of sus, were clearly unjustified. He told me what had happened. He and a colleague had turned a street corner and the person he had arrested looked at the police officers and ran away. The officers ran after the youth and caught him. The youth was given the ultimatum, “Do you want attempted burglary or sus?”. The youth said, “Sus”. Presumably realising that the odds were stacked against him, he then went through the whole process admitting to something that he had never done.
Sus is another example of an offence that should never have been on the statute book, or at least an offence that was designed to deal with soldiers coming home from the Napoleonic wars and making a nuisance of themselves should not still have been on the statute book 150 years later. Not every part of Section 4 of the Vagrancy Act 1824 was repealed by the Criminal Attempts Act 1981, but those other offences are, and should be, a debate for another time.
Bearing in mind how long it has taken my noble friend Lord Sharkey to achieve what he has achieved for the gay community through his long campaign for justice, and in the absence of the equivalent of an Alan Turing figure regularly to hand in the case of sus, I am not expecting instant agreement from the Government. However, I ask the Minister to think carefully about what has been a symbolic offence for the black community. It has created huge pain and distress for decades. To pardon those convicted under this legislation—repealed because of its acknowledged discriminatory application and potential for misuse—would be of immeasurable importance to the black community.
Not only did sus damage relations between the black community and the police, it damaged relationships between the generations in the black community. The first generation of migrants from the Caribbean had great faith in the police and when their sons were arrested they did not believe their tales of the police acting improperly in inventing evidence against them. It drove divisions between generations as well as between police and the subsequent generations. Granting pardons to those convicted of being suspected persons loitering with intent to commit an indictable or arrestable offence would be a huge step forward in healing the pain caused and the damage done to the trust and confidence the black community as a whole had in the police. It would also be a much-needed catalyst to dramatically improve those damaged relations as we work to create safer communities for all. I beg to move.
Lord Kennedy of Southwark
I have one question for the Minister when she responds to the noble Lord, Lord Paddick. Does she have any idea of the number of people affected by this?
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?
Lord Paddick
My Lords, from the Minister’s response I do not think she has quite grasped the essence of what this amendment is about or the misuse that has been made of this legislation. The Home Affairs Select Committee put pressure on the Government to repeal that particular part of Section 4 of the Vagrancy Act. It is a very wide piece of legislation, criminalising all sorts of activity, much of which is still on the statute book. This is specifically about being a person suspected of loitering with intent to commit an indictable offence, the evidence of which I described when I moved the amendment.
I will of course look very carefully at what the Minister has said but I do not believe that it will give me sufficient grounds not to return to this matter on Report. However, at this stage, I beg leave to withdraw the amendment.
(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.
Lord Kennedy of Southwark
My Lords, as the noble Baroness, Lady Chisholm, told the Committee, this clause confers lifelong anonymity on the victims of forced marriage in England and Wales. The first amendment, in the name of the noble Baroness, Lady Williams of Trafford, extends that provision to cover Northern Ireland as well. I understand that this is at the request of the Justice Department in Northern Ireland. That is welcome, and we on these Benches support these amendments. Amendment 215 is the main amendment, while Amendments 237 and 241 are consequential and would bring the provision into effect.
Amendment 219CA is in the name of the noble Baroness, Lady Berridge. She makes a powerful case to right an injustice that leaves the victim unable to seek redress. That is not right, and the Government should come forward to correct this. I will be interested to hear what the Minister will say in her response to this amendment. She made a persuasive argument; I hope that we will get a positive response from the noble Baroness, Lady Chisholm, and that the Government can deal with it, either now or on Report.
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.