Grand Committee
The Deputy Speaker (Baroness Henig) (Lab)
If a Division is called in the House, the Committee will adjourn for 10 minutes.
Bank Recovery and Resolution Order 2016
Lord Young of Cookham
That the Grand Committee do consider the Bank Recovery and Resolution Order 2016.
Lord Young of Cookham (Con)
My Lords, since the financial crisis, the Government have implemented a significant programme of reforms to address the problems of the past and make the financial sector safer and more stable. In addition, the Government have implemented significant reforms to address the problem of “too big to fail” and ensure that the failure of a bank can be managed in a way that protects the wider economy and financial sector without relying on taxpayer bailouts. These orders concern two key planks of the reforms: macroprudential regulation, and resolution, which is the regime for managing the failure of banks and other financial firms. I will begin with the Bank of England Act 1998 (Macro-prudential Measures) Order 2016.
The Government have reformed our financial regulation so that risks to the whole system are identified and addressed. This element of regulation was not present in the previous system of regulation. The Financial Policy Committee addresses macroprudential risks through its powers to issue recommendations and directions. As noble Lords are no doubt aware, the UK housing market has gone through many cycles of boom and bust, often leading to wider economic problems when the market experiences a downturn. Mortgages are the single largest asset class held by UK banks. This makes them sensitive to the performance of the housing market. It also exposes them to direct risks when borrowers struggle to pay back their loans. Work by the Bank of England suggests that buy-to-let mortgage lending can amplify the housing cycle. As house prices go up, buy-to-let investors are incentivised to enter the market by the prospect of capital gains, and this pushes up prices for all home buyers. The Bank of England has asserted that as prices fall, buy-to-let investors are incentivised to sell their properties, which can exacerbate the downturn in the market.
The lessons of the recent financial crisis are still fresh in our memory and we know that the costs of financial instability are huge. That is why, in his Mansion House speech on 12 June 2014, the then Chancellor committed to ensuring that the FPC has,
“all the weapons it needs to guard against risks in the housing market”.
Following that statement, the FPC recommended that its powers of direction be expanded so that it could tackle effectively the systemic risks in the UK housing market. The Government agree with those recommendations and have already legislated to grant the requested powers regarding owner-occupied mortgages. The instrument we are discussing today will provide the requested powers over buy-to-let mortgages similar to those already provided with respect to owner-occupied mortgages. It will also allow the FPC to direct the financial regulators, the Prudential Regulation Authority and the Financial Conduct Authority, to require regulated lenders to place limits on buy-to-let mortgage lending in relation to loan-to-value ratios and interest coverage ratios. Both are commonly used measures of affordability employed by lenders when considering whether to extend a buy-to-let mortgage. This instrument is another step taken by the Government to ensure that the FPC has the powers it needs to address systemic risks and that our financial system is resilient and supports the wider economy.
I turn now to the Bank Recovery and Resolution Order 2016. The financial crisis demonstrated the need for an effective resolution regime to manage the failure of financial sector firms without relying on taxpayer bailouts. The UK’s special resolution regime provides the Bank of England, the Prudential Regulation Authority, the Financial Conduct Authority and the Treasury with the tools to protect financial stability by effectively resolving banks. The EU Bank Recovery and Resolution Directive established a common approach across the EU to the recovery and resolution of failing banks. It drew on key aspects of the UK’s existing resolution regime for managing bank failure.
Since the transposition of the BRRD in January 2015, industry and the regulators have had time to digest the new rules. They have identified a small number of areas where the UK’s special resolution regime could be improved. As such, this order makes changes to strengthen the UK’s special resolution regime to make it work more smoothly and effectively.
The Government have consulted extensively on the draft legislation, both through public consultation and through close engagement with the Banking Liaison Panel. These changes have the support of industry. The Government will also update the special resolution regime code of practice, a guidance document which sits alongside the legislative framework, to further clarify the measures introduced by the order.
The Bank Recovery and Resolution Order 2016 makes changes in three key areas. First, it makes amendments to allow the Bank of England or the Treasury to activate contractual default event provisions where it would assist a resolution. This will be necessary only for a narrow range of contracts, where the activation of default event provisions supports the Bank of England’s efforts to resolve a failing firm and maintain financial stability.
Secondly, the order introduces new stand-alone early intervention powers for the PRA and FCA. These powers could be used when an institution’s position was deteriorating to try to prevent it failing and requiring resolution. The stand-alone powers, which include the power to require the removal of senior management, clarify the scope of existing powers.
Thirdly, the order provides new backstop powers for the Bank of England to resolve branches of third-country institutions operating in the UK, independently of the third-country resolution authority. The circumstances in which these independent powers would be used are exceptional. The preference of the UK authorities is for co-operation between authorities.
The order also addresses a couple of other issues. First, it introduces powers to enable the bridge bank tool to be applied through a share transfer for building societies. The bridge bank tool allows the Bank of England to transfer the critical assets and liabilities of an institution in resolution to a bridge bank until they can be safely returned to the private sector. This amendment will ensure that the tool can be applied to building societies flexibly. Secondly, it introduces powers for the Treasury and the Bank of England to recover bail-in expenses.
As I said at the beginning, these changes will strengthen the UK’s resolution regime. I beg to move.
Lord Tunnicliffe (Lab)
My Lords, I shall speak to the two orders in the order which they appear on the Order Paper. I welcome the noble Lord, Lord Sharkey, to our deliberations. His presence swells by 50% the number normally involved and it is good to have him with us. That puts in context the question whether this exercise is worth while, because if Her Majesty’s Opposition were to contemplate voting down the order, there would be a constitutional crisis as if a bomb had dropped on the place. Frankly, not approving the order is not a serious option. I can assure the Minister that I have no intention of opposing it; indeed, I support it—with one area of exception.
So what do we usefully do on these occasions? The orders are peculiarly complex, because one has to understand resolution and bail-in, which are not popular subjects at GCSE. I put it to the Committee that we do four things: we put the orders in a political context; we probe the meaning to reveal any weaknesses; we try to secure assurances; and we try to influence future development and guidance. Other than the fact that I shall go on constantly about the clarity and accessibility of the orders, I wish to make no political points. My efforts will focus on the last three concepts.
I count in this order four significant areas. The first I will touch on is Article 29, which gives back to the Bank of England stock powers in the case of a UK branch of a third-country institution. I have no comments on that part of the order and am content. Similarly, Articles 21 and 22 provide for a tool to create a situation in which a building society can use the bridge bank tool. That is perfectly sensible.
I move now to the two most significant areas. Articles 31 and 32 give the PRA and the FCA powers to remove and replace directors and senior managers, and to appoint temporary managers. It is difficult to overstate how significant this power is. It has been implied, or even expressed in legislation, but the lawmakers are obviously not confident that it is clear enough, and I entirely support it being clarified. However, it does effectively mean that the board, chief executive or chairman of a privately owned bank that is trading could be removed by the PRA. That is a pretty dramatic thing to do. I do not think those powers exist anywhere else in what I will call “company law”, to use a very general term. Therefore, my first question on this area is: given the serious nature of Article 31 and 32 intervention powers, what procedures has the PRA set up to ensure that they are exercised in a fair and proportionate manner? It seems to me that the powers and how they are exercised need to be clearly understood. It would be useful on this occasion if the powers, how they are exercised, how they are accountable and how they can be challenged were placed on the record.
We come now to Article 15—the centre of the order. Article 15 speaks to the whole issue of bail-in, which is about “too big to fail” but also the crucial question of who pays. In 2008, the Labour Government decided that the big banks were too big to fail. That was a perfectly proper and courageous decision. I call it courageous because it was not at all clear that anybody had the authority to do anything at the time. If you read the accounts of the chaos at the time, particularly over that weekend, you will see, as is my recollection of events, that the UK led the world in stepping in to make sure that the banks did not collapse. The US had already set a precedent, having allowed Lehman’s to fail. The downside of this courageous decision was that the public purse paid. The essence of the bail-in is to ensure that shareholders and creditors pay first. It is an elegant but complicated concept. The key issue in a bail-in is how assets are swapped for equity during the resolution process. It is sufficiently important that it is not in fact handled by the PRA at this point but is handed over to the Resolution Directorate. Article 15 is about that concept.
Lord Sharkey (LD)
My Lords, I will address myself to the order that is 56 pages long. I agree with the points made by the noble Lord, Lord Tunnicliffe—and I thank him for sharing with me the letter of 24 November from the Minister—but unlike him I am not convinced that the order should progress as it stands. It was discussed in the Commons a week ago and there was concern there about Article 15.4, which amends Section 48Z of the Banking Act 2009. In particular there was concern about the insertion of new subsection 6(b). This subsection, as Lord Tunnicliffe has pointed out, would give wide, apparently unlimited discretion to the Bank or HMT to decide which instruments were to be bailed-in.
The 24 November letter addresses the question but does not seem to provide certainty. It simply notes:
“The exceptions in the amendment of section 48(z) will only apply to a narrow range of contracts where doing so would add to the authorities’ efforts to meet the special resolution objectives”.
The Minister repeated that earlier this afternoon. The Minister went on to say the following in his letter:
“The government will provide further guidance in Chapter 7 of the Special Resolution Regime Code of Practice on which type of contracts could include clauses that are activated by the use of a crisis prevention or management measure”.
This inevitably raises the question of why we are being asked to approve this order, or at least consider it here, without seeing the guidelines. Would not it be much more sensible to wait until we have the guidelines in front of us? They are the substance of this issue, and Parliament should have the opportunity to discuss them. Perhaps in the absence of them, the Minister can help us by characterising the type of contracts that will be affected.
Then there is the question of timing. When will the guidelines be published? If it is to be soon, why not withdraw parts of this order and re-present them with the guidelines? If it is not to be soon, does this not unnecessarily prolong market uncertainty?
There is another area in which further guidance is promised. The order provides the power for the Bank to resolve branches of third-country institutions operating in the United Kingdom independently of the third-country resolution authority. The Explanatory Memorandum to the order notes that respondents to the consultation were “broadly supportive” of this power, but some were concerned about the broad definition of the “business of the branch”. It goes on to say that further guidelines—again, guidelines—will be provided in the code on how the bank will judge whether,
“conditions for the use of these powers are satisfied for branches”.
Without these guidelines, this part of the order can only generate considerable uncertainty. Again, surely it would have been more sensible to debate the order with the guidelines. As things stand, Parliament is being asked to give the bank powers without having a clear view of how they will be exercised. The same questions of timing arise. If the guidelines are to be published soon, would not it be better to postpone discussion on parts of this order until they are published? If they are not to be published soon, does this not create unsatisfactory uncertainty in the market?
On the whole, I feel that the uncertainties generated by the absence of these two sets of guidelines make this order significantly flawed. It would be much better to withdraw it now and re-present it when we have the guidelines before us, or to withdraw Article 15 and Part 3 and re-present when the guidelines are available. I suggest that course of action to the Minister.
I have one final point. The order is very long. It is also very technical, as the Government explicitly acknowledged in the Commons. Consolidation would help Parliament to debate it more efficiently and to understand future references and amendments. In his 24 November letter, the Minister said that the Government have no plans to consolidate the legislation and points out that consolidated versions can be bought from commercial providers. The Explanatory Memorandum repeats that consolidated versions are commercially available but adds that,
“given the limited amount of Parliamentary time available, there are currently no plans to consolidate the legislation amended by this Order”.
Is there, in fact, a limited amount of parliamentary time available, in any non-trivial sense? The current schedules suggest not, at least not up until the end of March. In the interest of the sanity of current and future parliamentarians, will the Minister reconsider consolidation?
Lord Young of Cookham
My Lords, I am grateful to both noble Lords who have spoken in this debate. It is a complex subject and I am grateful for what the noble Lord, Lord Tunnicliffe, said about the meetings that we arranged. I certainly found that the learning curve in understanding this had a fairly steep gradient. I am also grateful for what the noble Lord said about officials at the Treasury and the Bank of England. To put the measure in context, the heavy lifting was done back in 2015 when the BRRD was transposed into legislation. Today, we are looking at relatively minor improvements to that broad structure in the light of a review that has taken place over the last two years. As I think I said, there has been broad approval for the proposals that we have in mind. I will go through the particular issues that the noble Lord raised, starting with the powers to suspend the board of directors. The position at the moment, as set out in the Explanatory Memorandum, is as follows:
“The Order also gives stand-alone powers to the PRA and the FCA to require the removal and replacement of directors and senior managers in accordance with Article 28 of the BRRD, and to appoint temporary managers in accordance with Article 29”.
So the regulators already have the power to undertake these early intervention measures. The stand-alone powers we are discussing this afternoon provide greater clarity on the scope of those powers.
As the noble Lord said, these are serious powers of intervention. He raised a number of questions about whether they would be exercised in a fair and proportionate manner. The new stand-alone early intervention powers are proposed with procedural safeguards for the firms, banks and individuals affected, and the powers may be exercised only if the conditions set out in Section 71D are satisfied. The PRA is required to give notice of its intentions to the firm, the directors and the senior executives who would be affected by the proposed use of these powers, and to give them time to make representations to the PRA. If, having considered any representations made to it, the PRA still decides to exercise these powers, the firm and any directors or senior executives affected have a right to have the decision reviewed by the Upper Tribunal, which will be completely independent of the regulators. The PRA’s general governance procedures should also ensure that these powers are exercised in a fair and proportionate manner.
In non-urgent cases, which in practice means in the vast majority of circumstances, decisions will be taken by the appropriate PRA decision-making committee, made up of at least three people. In urgent cases, if it is necessary to take a decision before a recommendation can be made to the appropriate decision-making committee, the PRA will require decisions to be made by at least two persons. In that case, the decision will be taken only if the two decision-makers are unanimous. At least one of the two individuals will not have been directly involved in establishing the evidence on which that decision is based.
Both the noble Lords, Lord Tunnicliffe and Lord Sharkey, raised issues about Article 15 and asked to which categories of contracts the amendment in Article 15 would apply. As I said when I introduced this debate, the amendment in Article 15 would apply only to a narrow range of contracts. To date, the Bank of England has identified two categories of contracts for which the amendment would be likely to apply. One category, mentioned by the noble Lord, Lord Tunnicliffe, is contractual bail-in instruments: debt instruments that qualify for the minimum requirement for own funds and eligible liabilities where the contract specifies that the instrument may be written down or converted to the extent required on the occurrence of a specified event, for example, when the bail-in tool is applied. I think that the noble Lord, Lord Tunnicliffe, accepted that that was a reasonable provision. With foreign law-governed debt instruments, it is necessary, for example, to ensure that the bail-in will take effect on a contractual basis because the application of the statutory bail-in power may not be enforceable on a cross-border basis.
The other category is certain service contracts specifying the terms on which services will continue to be provided following a resolution. These contracts therefore support operational continuity in an institution following resolution. Service contracts would also include certain contracts with financial market infrastructure, such as payment and settlement systems, where it is important to ensure that they continue to offer access to a firm after it has entered resolution.
Both noble Lords asked why Article 15 was not more specific about the categories. The answer is that resolution planning is an iterative process and banks are complex. It is possible that additional types of contracts could be identified at the advanced planning stage, where the Bank of England is preparing for the failure of a particular bank, so a broad formulation of the new power that Article 15 inserts into Section 48Z is appropriate.
Lord Young of Cookham
No, but hopefully, I will be updated very shortly on the update.
Resolution planning is a technical and iterative process and, as I said a moment ago, this may uncover further categories of contracts where the activation of default event provisions could aid the Bank of England’s efforts to resolve a firm.
I was asked by the noble Lord, Lord Tunnicliffe, whether the Article 15 exemption could be used on a contract-by-contract or category-by-category basis. In order to have full flexibility in resolution, the Bank of England will have discretion to specify contracts or to describe categories of contracts in the resolution instrument.
I was also asked what procedures would be used and who would be responsible for the Article 15 exceptions. As the UK’s resolution authority, the Bank of England will be responsible for deciding to which contracts the exemption in Article 15 applies. Before exercising its resolution powers, the Bank is required to consult the PRA, the FCA and the Treasury. The deputy governor for financial stability and the executive director for resolution have day-to-day responsibility for resolution matters within the Bank, which has established a resolution committee and a resolution advisory committee for the purpose of decision-making in its role as the resolution authority. The most important resolution decisions are reserved for and may be escalated to the governor, who may be advised by the Bank’s deputy governors.
I was asked how those who take the decisions will be accountable. As I said, the Bank is obliged to consult the PRA, the FCA and HMT but noble Lords will know that the Bank demonstrates its accountability to Parliament through the House of Commons Treasury Committee. The Bank of England and Financial Services Act 2016 provides that the National Audit Office may carry out examinations of the economy, efficiency and effectiveness with which the Bank has used its resources in discharging its functions. Those are two important areas of accountability.
Issues were raised about whether the details of governance will be in the public domain. The Bank of England’s governance arrangements on resolution were published in the Bank of England’s memorandum of understanding with the National Audit Office. Details on its governance arrangements are likely to be covered in the Bank of England’s statement on the operational independence of its resolution function, which it is required to publish by the Bank of England and Financial Services Act 2016. I will endeavour to find out what dates there are for that.
Moving on to the issues raised by Jon Cunliffe’s speech—whether the market is fully informed of the products being bought and sold, and making sure that it is—the Government and the regulators have consulted extensively with stakeholders as they develop the UK’s resolution regime. For example, the Bank of England’s Approach to Resolution document sets out how it expects to carry out the resolution of a failing firm in practice, using the powers available to it as the UK resolution authority. The Treasury’s code of practice document, issued in accordance with Sections 5 and 6 of the Banking Act 2009, provides further guidance on the UK’s resolution regime. The Banking Act 2009 also establishes the Banking Liaison Panel. This panel of industry bodies, law firms and regulators advises the Government on the UK’s resolution regime.
Are we planning to bring all the relevant legislation into a single document? Here we move on to more disappointing news. There are no plans to bring the different documents together. Each document serves a clear purpose. The Bank of England’s Approach to Resolution document sets out how the Bank expects to carry out the resolution of a failing firm in practice, using the powers available to it as the UK resolution authority. The Treasury’s code of practice is a statutory requirement, which provides further guidance on the legislative framework.
Lord Tunnicliffe
The Bank of England’s Approach to Resolution, from October 2014, is indeed the most readable of all the documents, but it is now clearly out of date. Is the Bank of England expected to produce an update?
Lord Young of Cookham
The noble Lord raises an important point, which I will of course pass on to the Bank of England. It is an independent body, but I am sure that it would like to respond to his point about updating the guidance, which, as he said, is now a little old.
Will the legislation be consolidated? Again, I am afraid, there is disappointing news. As a former Leader of the House, I can say that there was always enormous pressure on parliamentary counsel to draft legislation—it is a scarce commodity. Given the limited amount of parliamentary time available, there are currently no plans to consolidate the legislation. Stakeholders who are directly affected by the legislation and will therefore need a more granular understanding will be able to purchase consolidated versions of the legislation from commercial providers. In addition, HM Treasury’s special resolution regime code of practice will be updated to reflect the changes made by the order.
On the issue of third countries and the independent resolution powers, the powers that we are taking are in line with the Financial Stability Board’s “Key Attributes of Effective Resolution Regimes for Financial Institutions”. These key attributes recognise the need for resolution authorities to have, as a fallback option, the ability to take independent action with respect to local operations of foreign banks in certain circumstances, although, as I said at the beginning, every effort will be made for resolution by co-operation.
The noble Lord, Lord Sharkey, asked about the code of conduct. It will be published in the new year. I think that I covered the contracts under Article 15 in my introductory remarks.
The noble Lord, Lord Tunnicliffe, talked about the macroprudential issues and said that he would be happy to have a response to those in a letter, an offer that I gratefully accept. Now that the in-flight refuelling has arrived, I can say, on the macroprudential measures, that the FPC has included all previous recommendations and directions in the statements that follow its meetings. Implementation will depend on the specific direction and the regulators must consult on any rules that would implement these powers. The FPC may make recommendations regarding the timing of implementation. As I said when I introduced these instruments, we have already put on the statute book a similar regime for owner-occupiers, with whom I imagine the same sorts of issues have already arisen. Broadly, the same regime will apply for buy-to-let.
The noble Lord, Lord Tunnicliffe, asked about the cost. The cost reflects enhanced data collection, which is necessary for the regulators to monitor compliance with these powers and other prudential requirements.
I hope that I have covered most of the issues raised.
Lord Sharkey
When the Minister says that the guidelines on the definitions of the business of branches will be available in the new year, does he mean January or sometime in 2017? Also, I do not think that I heard him give a date for the guidelines for Article 15.
Lord Young of Cookham
At this stage I am not sure that I can take it any further than I did in my earlier remarks. However, I would like to make further inquiries and, if it is acceptable to the noble Lord, I will write to him when I have definitive information on those timelines.
Bank of England Act 1998 (Macro-prudential Measures) Order 2016
Lord Young of Cookham
That the Grand Committee do consider the Bank of England Act 1998 (Macro-prudential Measures) Order 2016.
Relevant document: 16th Report from the Secondary Legislation Scrutiny Committee
Immigration Act 2014 (Current Accounts) (Excluded Accounts and Notification Requirements) Regulations 2016
Lord Young of Cookham
That the Grand Committee do consider the Immigration Act 2014 (Current Accounts) (Excluded Accounts and Notification Requirements) Regulations 2016.
Lord Young of Cookham (Con)
My Lords, the Immigration Act 2016 contains provisions to require banks and building societies—henceforth referred to as firms—to carry out immigration checks on certain accounts and prevent continued access to banking for known illegal migrants. The 2016 Act also delegated to the Treasury the power to make regulations that determine the details of how the regime will work in practice.
We need to deter people from attempting to enter the UK unlawfully and to ensure that those who are here illegally are encouraged to leave or to regularise their stay. Effective immigration controls require responsibility to be shared between the public and private sectors. Recognising this shared responsibility, the Immigration Act 2014 took a series of actions to limit the services available to known illegal migrants. These included prohibiting firms opening accounts for a disqualified person—an illegal migrant liable for removal or deportation whom the Home Secretary considers should be denied access to a current account.
Disqualified persons are those who have exhausted all appeal rights. They will have had the opportunity to attempt to regularise their status in the UK, including by raising any reason why they are exceptionally vulnerable or unable to return to their home country, but they will have either failed or not attempted to do so.
Details will not be shared with banks regarding individuals who still have outstanding applications or appeals for residency, leave to remain or asylum. Before opening a new current account, firms are able to check the applicant’s immigration status with CIFAS, a specified anti-fraud organisation. Where the check identifies that the applicant is a disqualified person, the firm must refuse to open the account.
The Immigration Act 2016 builds on these measures and targets accounts that are already open. This may be because the account was opened before the 2014 Act came into force or because the account was opened legally by a person who later became disqualified because of a change in their immigration status. Firms are required to check details of their personal current account holders against the details of disqualified persons provided to them via CIFAS. They are then required to report the results of those checks to the Home Office and, if instructed by the Home Office, to take action to close accounts or prevent continued access to accounts.
The Government recognise that this is a significant undertaking for firms. Treasury officials have informally consulted the industry on both the 2016 Act and the regulations that we are discussing today. That has informed the policy decisions made in the regulations. We have acted to try to minimise the burdens where possible, while ensuring that the regulations achieve the policy intention of preventing continued access to banking services. The Government have prepared an impact assessment for these regulations, which received a positive green opinion from the Regulatory Policy Committee.
The regulations should be read alongside the Immigration Act 2014 (Current Accounts) (Compliance &c) Regulations 2016, which were made on 7 November. This negative statutory instrument provides that banks must carry out immigration checks on a quarterly basis; it sets out the information which the Home Office must provide to a bank in response to notifications; and it sets out a requirement on banks to inform the Home Office of steps they have taken to comply with the duty to close accounts.
This statutory instrument covers three main areas: the types of accounts that firms must make immigration checks on; the requirement for firms to notify the Home Office of accounts they hold for disqualified persons; and provisions to enable the FCA to monitor and enforce compliance in respect of breaches of the regime. I will take each in turn.
Not all bank accounts are within scope of the requirement to make an immigration check under the 2016 Act. This instrument specifies that current accounts operated by or for individuals who are acting for the purposes of a trade, business or profession are excluded from the requirement to make an immigration check. In practice this means that firms are required to conduct checks on existing personal current accounts. Firms are not required to extend checks to all existing current accounts such as corporate or business accounts. This ensures that the checks undertaken by banks are appropriately targeted and proportionate. This reflects the Government’s ongoing view that current accounts are the gateway product to other financial services and a settled life in the UK. Such an account would be expected to provide functionality to hold deposits and make withdrawals without having to give notice. It would also typically enable the customer to receive and make payments through a number of different methods, including by cheque, direct debit, standing order, continuous payment authority or other electronic payments. Withdrawals, money transfers and other payment transactions can typically be conducted through various channels including ATMs, branch, online, mobile or telephone banking. Many current accounts also have overdraft facilities.
Lord Tunnicliffe (Lab)
I thank the Minister for introducing these regulations so thoroughly. We have no intention of opposing this instrument, but I would like to ask the Minister for some clarity around a number of points. In the interests of expedition, I will be content to receive a letter if that is helpful. I also have no intention of making this a broader debate about immigration policy. This is neither the time nor the place because that subject will be at the heart of our political discourse in the coming years and colleagues will have appropriate opportunities to air their views.
I recognise that business accounts can be easily identified and will therefore be easy to exclude from checks, but what procedures are in place when the situation is not as clear? Can the Minister also outline what is required of firms if there is a query over the bank account status; in other words, if there is some debate over the status of bank accounts, how much of the burden of responsibility will rest with the firms to investigate?
On consultation, why was an informal consultation thought to be sufficient, rather than a more substantive discussion between the relevant stakeholders? The information that firms are required to send the Home Office seems comprehensive but I would be interested to know what differences of opinion were expressed about which data were necessary between different firms and, indeed, between firms and the Government. Finally, to give us some feel of the mechanism, I ask the Minister to outline what will happen if regular payments of £200 are found to have taken place. How will this information be shared and how will the relevant authorities liaise?
Lord Young of Cookham
I am very grateful to the noble Lord for his welcoming of the measures before us. He generously said that he would accept a written reply to the issues he raised. It is an offer that I accept with open arms. A letter will be on its way as soon as practicable, and I am very happy to place a copy in the Library so that it is of broader interest. I beg to move.
Companies, Partnerships and Groups (Accounts and Non-Financial Reporting) Regulations 2016
Lord Henley
That the Grand Committee do consider the Companies, Partnerships and Groups (Accounts and Non-Financial Reporting) Regulations 2016.
Lord Henley (Con)
My Lords, the main purpose of these regulations is to fulfil our obligations to transpose the non-financial reporting directive. While we remain a full member of the EU, we will continue to implement EU legislation in a positive and cost-effective fashion. That is why we are here today.
The non-financial reporting directive builds on provisions in the earlier EU accounting directive which require certain business entities to disclose a range of non-financial information alongside their accounts. The accounting directive applies only to certain types of business undertaking, which have limited liability. For simplicity’s sake, I will generally refer in my remarks to companies, but the Committee should bear in mind that these remarks apply also to qualifying partnerships and groups.
I stress that the scope and requirements of the non-financial reporting directive are intended to capture companies that are likely to have the most impact on society and the environment. The requirements therefore apply to large companies that are defined as public interest entities and which have more than 500 employees. The requirements also apply to a company if it is a public interest entity and is the parent of a large group that has more than 500 employees within the group. Public interest entities are entities whose activities are of major interest to the public; they include banks, insurers and quoted companies. We estimate that the total number of UK companies that will be impacted by the regulations beyond familiarisation costs will be around 260 public interest entities. A further 15,000 subsidiaries of public interest entities will also be impacted by the need for reporting across the corporate group. The directive was strongly influenced by the United Kingdom’s existing regime for non-financial reporting. Consequently, the new framework broadly mirrors the requirements that currently apply to all the UK’s quoted companies, regardless of their size. However, the regulations cover all large public interest companies, not just those quoted on the Stock Exchange. Companies do not have to be quoted for their activities to have far-reaching consequences.
At present all companies, except those that are eligible for the small companies regime, must publish strategic reports. Within the strategic report, companies should provide an analysis of the company’s position and performance, and for large companies this includes using non-financial information. Quoted companies must also publish information about environmental, social, community and human rights issues, including information about any policies of the company in relation to those matters. The report must also include specific disclosure on gender diversity for directors, senior managers and employees. The strategic report is the narrative element of a company’s annual report. It provides colour and context for the accounts and should be forward looking to provide reassurance on the company’s direction of travel for investors and suppliers. Issues, such as cybersecurity and employee matters, can be as significant as the financial issues covered in company balance sheets.
The regulations we are discussing today require eligible companies to disclose, to the extent necessary for an understanding of the company’s position, information on environmental, employee, social and human rights. This is already required by the United Kingdom’s existing regime for some of these companies. However, the regulations also require disclosures on anti-corruption and anti-bribery matters. Companies must also describe any policies pursued by the company in relation to any of these matters and identify any principal risks. These disclosures will provide companies with an opportunity to bring discussions on these issues to the boardroom and demonstrate to shareholders and other parties that they are considering issues in their proper context and addressing potential risks.
The regulations will strengthen the current regime by requiring companies that do not have policies in these areas to provide an explanation for not doing so. I want to stress that companies are not required to make policies to have something on which to report, but they will need to consider whether they should have policies about these matters. Furthermore if they decide they should not, they will have to explain the reason for this omission. The requirements are sufficiently flexible to enable disclosures to be specific to the company. This balance, between specifying categories and allowing companies flexibility to provide relevant information, should ensure reporting is meaningful and cost effective.
A Green Paper, as noble Lords will know, has recently been published on corporate governance in the UK. I believe that the regulations will complement and support work to reform corporate governance by providing greater accountability and transparency on the position and wider impact of companies. Disclosure is important to ensure that shareholders have the information they need to hold directors to account. It is also a way of increasing investor and consumer trust in the business, providing broader confidence that it is being run well. By way of reassurance, I add that the regulations do not require the disclosure of information about impending developments if the disclosure would be seriously prejudicial to the commercial interests of the company.
The Government have worked closely with the accounting sector throughout this process, from the earliest negotiations to the implementation stage. In the consultation earlier this year, stakeholders recognised the need to transpose the directive. During the consultation, stakeholders raised concerns about how the requirements would interact with the United Kingdom’s existing regime. The requirements provide that a company which reports under the EU’s framework qualifies as having complied with overlapping elements of the United Kingdom’s domestic regime. The regulations also permit voluntary compliance with the non-financial reporting directive disclosure requirements. This means that companies can avoid the complexities of moving between reporting obligations during their lifecycle as their size, in financial terms or number of staff, increases or decreases year to year.
I must briefly mention another aspect to these regulations. Regulation 3 contains a minor correction to the transposition of the accounting directive. This ensures that the parent company of a small group cannot benefit from an exemption from the requirement to produce group accounts just because a member which is a public interest entity is established under the law of an EEA state and not in the UK. If a member of the group is a public interest entity in any EEA state, the exemption should not be available.
I am aware that some businesses can struggle with regulatory change to financial reporting. Many companies in scope of the regulations will have to adapt their reporting only slightly. Although the changes are not substantial, they will add value to company reporting in the United Kingdom. I could not discuss an EU directive without mentioning the implications of the result of the EU referendum. The Government have considered this carefully in our work and implemented the minimum requirements of the directive. There is no gold-plating.
The United Kingdom’s company reporting regime is well regarded. It is very important to maintain the United Kingdom’s reputation as a hub of global transparency. However, as our future relationship with the EU becomes clearer, this may lead the Government to examine whether certain aspects of company law are cost effective. In the meantime, building on the reputation of UK governance and the reliability of annual reports can contribute to making the UK an attractive place to invest. I commend these regulations to the Committee.
Lord Stevenson of Balmacara (Lab)
My Lords, I thank the Minister for introducing the order, which as he said catches public interest entities; that is, companies whose activities likely to have a significant impact on the economy and society, including companies such as banks and insurers and extending to partnerships and other groups. The issue at hand is how companies assess non-financial risks and opportunities and how they incorporate them into their business strategies and models. The areas of main concern are environmental policies, policies about employees, respect for human rights, anti-bribery and corruption policies and diversity policies.
The Explanatory Memorandum explains, and the Minister also mentioned, that the underlying problem is really one of information asymmetry between the users of non-financial information and the directors of the company—a matter that in some senses transcends any temporary concern one might have about EU legitimacy in this area. It highlights that while UK companies are pretty good at reporting on environmental, employer and diversity policies, they are pretty poor at dealing with human rights and bribery and corruption issues. If there are asymmetries, they can lead to sub-optimal investment and trading decisions as well as misalignment of managers’ incentives away from delivering best performance in the company.
While the primary policy is to increase the transparency of PIEs including increasing relevance, quantity, consistency and comparability of the non-financial information currently disclosed by strengthening and clarifying the existing requirements, there are two quite important secondary objectives. The first is to encourage companies to better assess the risks relating to such matters as bribery and corruption and the other matters listed, and to incorporate these into their business strategies and models. The second is to increase diversity in corporate boards and the staff of companies and to enhance transparency concerning their diversity policies in order to help facilitate more effective oversight of management and governance in the company. We support those aims.
I have a few questions for the Minister, but I hope he will understand that we are not objecting to the regulations as they stand. If it would be more convenient for him to write to me, I am happy for him to do so. However, first I will make one observation, which I tend to have to do when I am dealing with orders from the department from which the Minister has emerged. Regulations are supposed to come into force on the seventh day after the regulations are made. In other words, these do not comply with the long-standing convention, which I had thought informed much of the work done by the department, that regulations which affect business, and these clearly do, should be introduced on one of the common commencement dates, which are 1 October and 5 April. Why is that? Has the department sought special exemption which can exceptionally permit other commencement dates, and if so, will the Minister explain what arguments of necessity and urgency were used?
Secondly, the regulations implement aspects of directive 2014/95/EU on disclosure of non-financial and diversity information and also directive 2013/34/EU relating to an exceptional group account about which we have no comments. The main problem facing the Government is that the UK does not currently recognise the group of organisations known as public interest entities and a large proportion of the Explanatory Memorandum is taken up with trying to show how all public interest entities based and operating in the UK are in fact caught by the regulations. In particular, the directive sets out four limbs within which it characterises the PIEs it wants to be in scope. I enjoyed the tour d’horizon of our legislative framework in paragraphs 4.7 to 4.10 of the Explanatory Memorandum, which almost convinces the reader that all the right companies are due to be in scope of this SI—or are they? In practice, as paragraph 4.10 makes clear, without recourse to the European Communities Act 1972, there are no statutory mechanisms for designating a small but presumably important group of bodies. Can the Minister say whether any companies or organisations have slipped through the net, and if so, why no recourse to the ECA 1972 has been proposed?
Paragraph 8 of the Explanatory Memorandum discusses the outcome of the consultation. I noticed one rather interesting area of controversy, to the effect that some stakeholders were,
“in favour of applying the Directive to all listed companies as well as the small amount of private companies that are in scope”.
The argument is that this would remove the small differences between the EU and domestic regimes, which I think the Minister referred to. The Explanatory Memorandum says that the principal reason for not gold-plating on this occasion was that it,
“would go beyond the minimum requirements of the Directive”.
Given that there was support among the consultees for going further than the minimum and that only a very small number of extra companies would have been captured, can the Minister tell us why this opportunity was not taken? It would have made more sense for external users of the information. It is a matter of regret that the information is not there. I understand that there is a voluntary procedure, but that is not what the consultees were asking for.
Finally, in paragraph 12.2 the Explanatory Memorandum explains that it is not necessary to make arrangements for a formal review of these regulations on what I think are rather specious grounds—that the regulations are amending,
“provision that is contained in primary legislation”.
However, paragraph 12.3 goes on to say that,
“the Department will keep the effect of the non-financial reporting requirements under review”.
The reason we are making PIEs disclose anti-corruption and bribery measures, as well as the others, is partly because of the EU directive but also because the Government accept—and they are right to do so—that it is necessary to encourage transparency and that a requirement to make this information available is in the best interests of the country because it will encourage “responsible corporate behaviour” as well as assist,
“the interests of other stakeholders such as creditors, investors and regulators”.
The Minister made that point. Can he explain this apparent reluctance to build a formal review mechanism into these new regulations and confirm that, as the department will in fact be reviewing them as if the requirement was in place, the review will be published?
Lord Henley
My Lords, I am grateful to the noble Lord for his very kind offer to someone such as myself, who is new to these matters, to write to him. I will certainly take him up on that. He might want me to take him up on that even after I try to answer some of his questions.
The noble Lord’s first question was about whether it would be possible to have a common commencement date. He said that it might be easier for companies if we stuck to 1 October or 5 April. The directive means that we can implement as close to the date as possible so as to avoid gold-plating. I understand that that means that the common commencement date does not apply. However, I certainly take his question on board and will come back to him if there is a better answer.
The noble Lord also asked whether there was a mechanism for a formal review. I can assure him that we always keep all these matters under review. The review process will certainly look in due course at whether all EU and domestic non-financial reporting regimes have led to unnecessary complexity for business. Obviously, that is something which will have to be kept in mind by the department.
PIEs were not recognised in the United Kingdom designation, as I understand it from the noble Lord’s question. There is no designation under the European Communities Act. He asked whether any companies have slipped through the net through this implementation. I can say that there is a legal definition of a public interest entity. The accounting directive defines what it is and we have used PIEs in the Companies Act when transposing the audit directive and the audit regulation because there are certain duties which only PIEs have—mandatory rotation and retendering of auditors, for example. The regulations further provide a list of entities to which the requirements apply, which is drawn from the accounting directive’s definition of a PIE. We believe that no companies have slipped through the net because we do not have our own definition; we are requiring what the accounting directive sets out.
I thank the noble Lord for his valuable comments. I can probably give him an assurance that there will be a letter in due course. I hope that, with luck, it might even arrive before Christmas. If it does not, it will be something for him to look forward to in the new year. I believe that his comments have been valuable, and that it is important to remember that the annual report can be used to present a very fair and balanced impression of a company, which goes beyond items on the balance sheet. These regulations strike the right balance between offering flexibility for companies to report on these issues of risk as they relate to their activities and providing a structure that makes the disclosures meaningful. The regulations should help to increase the transparency of how our companies behave and better equip shareholders to be active stewards of the companies they own. I beg to move.
Coasting Schools (England) Regulations 2016
(8 years ago)
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The Parliamentary Under-Secretary of State, Department for Education (Lord Nash) (Con)
My Lords, earlier this year Parliament debated and approved what is now the Education and Adoption Act. This gave the Secretary of State the power to identify, support and take action in coasting schools for the first time. It also required the Secretary of State to set out in regulations what “coasting” means in relation to a school. These draft regulations, which were laid before both Houses on 20 October, fulfil this requirement.
The Government are dedicated to making Britain a country that works for everyone, not just the privileged few, and that means providing a good school place for every child—a place that offers them the opportunity to fulfil their potential and be taken as far as their talents will let them go. Over the past six years, thanks to our reforms and the hard work of school leaders and teachers, nearly 1.8 million more children are in schools rated good or outstanding than in 2010, but a good school place is still out of reach for too many children, so there is more to do.
Last month we announced a new £140 million strategic school improvement fund for academies and maintained schools, aimed at ensuring that resources are targeted at the schools most in need of support to drive up standards and deliver more good school places. Our coasting schools policy will help us to target some of this investment. It will identify those schools, whether maintained schools or academies, that are not doing enough to help pupils fulfil their potential. Where these schools need extra support, the strategic school improvement fund will ensure that this can be put in place, so that the school can improve and every child can have access to a good education.
We have developed a coasting definition set out in these draft regulations which is clear, transparent and data-based so that schools can be certain whether they have fallen within the definition. It puts focus on the progress that pupils make in a school, recognising differences in intake by looking at the starting point of pupils rather than just their attainment. It considers performance over three years, so that we can identify and support schools that have struggled to stretch their pupils sufficiently over a number of years. We believe that this definition will identify those schools that are not ensuring pupils reach their potential, and allow the right support to be put in place so that schools can improve and give pupils the excellent education they deserve.
These regulations mean a primary school will fall within the definition if, in 2014 and 2015, less than 85% of pupils achieved level 4 or above in reading, writing and maths, and less than the national median percentage of pupils achieved expected progress in reading, writing and maths, and, in 2016, less than 85% of pupils met the new expected standard in reading, writing and maths and the school’s progress scores were below minus 2.5 in reading, minus 3.5 in writing or minus 2.5 in maths. A secondary school will fall within the definition if, in 2014 and 2015, less than 60% of pupils achieved five A* to C grades at GCSE, including in English and mathematics, and less than the national median percentage of pupils achieved expected progress in English and maths, and, in 2016, the school’s Progress 8 score was below minus 0.25. A school must be below the coasting thresholds in all three years—2014, 2015 and 2016—to fall within the overall coasting definition.
Lord Lucas (Con)
My Lords I welcome these regulations; this is a very constructive approach to picking up on schools that are not doing as well as they should be. I am pretty happy with key stage 2. At the end of it, we have a criteria-referenced examination; we have set the bar at 85%, which is none too high and, as a result, I think we are going to pick up a number of schools that need help that we might otherwise have missed. I hope, though, that the Government will make some further progress on key stage 4.
First, we still have the problem that the GCSE has become a norm-referenced exam involving the use of comparable outcomes. It is assumed to be impossible for the secondary school system to produce improved outcomes year on year above the level of the increase, if any, in key stage 2 results. That really says that all we expect of secondary education is that it does just as well as it has ever done, and that there is no inherent improvement taking place. I know the Government are experimenting—or perhaps still thinking of experimenting—with national reference tests, but I would be very grateful if my noble friend told me where we are getting with those. Otherwise, we face a serious difficulty, because key stage 4 is still producing examinations that pupils need to carry on into life afterwards. If we are effectively limiting the percentage of pupils who can achieve a pass grade in these exams, we are doing our people a great disservice over the longer term; it may be all right for now, but it is certainly not all right for the future.
Secondly, I am disappointed that the Government have chosen to set the bar so low for selective schools. There are coasting selective schools, but at the level the bar is set, I really do not see that we are going to catch them. I very much hope that the Government will keep this matter under review, and that when enough time has passed and we have seen the first year of this system in operation, having looked at it and made judgments on it as a whole, the Government will find some way of reporting to us or to the public on how it has gone, enabling us to have a conversation about how it could go better.
Lord Watson of Invergowrie (Lab)
My Lords, I thank the Minister for introducing these regulations and talking us through some of the mechanics involved.
A year ago, during your Lordships’ consideration of what is now the Education and Adoption Act 2016, the Department for Education undertook public consultation on the proposed definition of coasting schools. It received more than 300 responses. The department claimed,
“wide support for the use of progress measures as the basis of the coasting definition”.
I noted what the Minister said about the consultation, and I understand why he said it, but it is a fact that only 25% agreed that the principles underlying the definition of coasting were correct. The Secondary Legislation Scrutiny Committee was fairly clear in its criticism of that spin, asserting that,
“the claim made in Explanatory Memorandum of ‘wide support’, does not accurately represent the views put to the Department”.
That, to some significant extent, highlights the rather flimsy foundations on which these regulations sit. I shall have more to say about the committee’s report in due course.
Identifying and supporting coasting schools was not an initiative of this Government, nor indeed of the previous one; it was of course a Labour government policy, introduced in 2007. At that time, it was based on a school’s performance in tests and examinations but it also involved a professional assessment by Ofsted and discussions with the identifying schools about improving performance. By contrast, the present Government’s “coasting school” concept is based solely on a calculating-machine approach to school improvement and does not use professional judgments.
Perhaps the major difficulty in identifying coasting schools using performance data alone is that not all pupils make the same rate of progress as judged against the former national curriculum levels. Those from lower starting points, who are often from disadvantaged backgrounds, tend to make slower progress than those from higher starting points, who are often from more advantaged backgrounds. Rates of progress in schools with a higher proportion of lower-achieving pupils tend to be lower for all pupils in that school, which can lead to a wrong designation of “coasting” for some schools, while those with highly advantaged intakes—including, as the noble Lord, Lord Lucas, has just mentioned, grammar schools—can escape the coasting designation.
Last month the department published Coasting Schools: Provisional Data, which includes a breakdown of where the schools are geographically and their type. Therefore, it is logical to assume that Ministers know precisely which schools have been identified from this exercise. The provisional estimate includes 479 schools at key stage 2 and 327 at key stage 4. Among primaries, a high proportion of academy schools meet the coasting criterion compared with local authority maintained schools, while at secondary level the proportion is the other way round. It appears that the schools most likely to fall within the scope of the coasting schools regulations are those already converted into academies as a result of government intervention.
No school will be formally identified as coasting until the 2016 key stage 2 results are finalised and published in three days’ time, although we will not receive the results for key stage 4 for a further month. For that reason, I ask the Minister why we are being asked to consider the draft regulations now. We believe that parliamentary scrutiny should have been delayed until both sets of results had been published with time allowed for them to be assessed. That would have permitted judgments to have been made, for example, as to whether this data-only approach to coasting schools, without professional Ofsted advice, was identifying good and outstanding schools in areas of significant deprivation.
On 15 December, nearly 400 local authority maintained primary schools will be labelled publicly as coasting. Can the Minister say whether regional schools commissioners have notified these schools, the relevant local authorities and Ofsted in advance? In how many of these schools is intervention already taking place? I say in passing to the Minister that I have quite a few questions to put to him and I shall be more than happy if he cares to write to me in due course, to use a familiar phrase.
Decisions about what happens to a school will be taken by regional schools commissioners assisted by their head teacher boards. There is some concern that those bodies are neither widely accepted nor operate with a great deal of transparency. This issue has been raised before and I do not intend to pursue it today, but it is an issue. That concern was stated unambiguously earlier this year by the Education Select Committee in another place in its report on regional schools commissioners, concluding that their role remained unclear. That point is now thrown into sharp focus by the fact that these regulations give extended powers to the commissioners to intervene when schools are designated as coasting. Yet one of the Government’s key performance indicators for the commissioners is not schools standards but how many schools they are able to convert into academies. There is a clear conflict of interest there and, as stated by the shadow Schools Minister, Mike Kane, when these regulations were considered last week in another place:
“That prompts the question whether the RSCs are independent arbiters in terms of judging whether our schools are failing, successful or coasting”.—[Official Report, Commons, 30/11/16; col. 7.]
It certainly does, and I hope that the Minister will seize this opportunity to answer that question.
That leads us to another question: what will happen to maintained schools once these regulations come into force? The ministerial Statement on primary education issued on 19 October stated that regional schools commissioners should work with local authorities to determine actions for coasting schools. However, additional information provided in the DfE memorandum of 26 October to the Secondary Legislation Scrutiny Committee states that even though the legislation allows local authorities to take action in a coasting school that they maintain, this is expected to have little impact on the public sector as the regional schools commissioners will predominantly take action when maintained schools are regarded as coasting. It goes on to say:
“We do not, therefore, expect the additional power to be burdensome for local authorities”.
Lord Nash
My Lords, first, I will take back the point made by my noble friend Lord Lucas about key stage 4 and discuss it with my colleague Nick Gibb MP, who is the Minister for this area. On the bar for selective schools, we will keep that under review. Of course, the coasting definition applies equally to all schools and we will certainly keep it under review.
I am afraid that I will not be able to answer all of the questions asked by the noble Lord, Lord Watson, but perhaps I may respond to some of them and write to him on the others. I take his point about different pupils making different levels of progress from the starting point, but I think we have come up with a definition that is generally acknowledged to be fair and easily understood. Obviously, trying to work out exactly which pupils make what progress is very complicated, but the general definition we have come up with, which is based on measures that are already understood by schools, is the fairest and simplest way to proceed.
As for the noble Lord’s point about regional schools commissioners taking into account the wider context, they will, as is clearly set out in our procedures. That wider context includes Ofsted and the particular circumstances of the school, such as whether it is in a location that has intergenerational unemployment. We all know that, sadly, that is an issue in certain areas with a heavily white working-class population, for example. All this will be taken into account. The regional schools commissioners will work closely with local authorities. It is acknowledged now—I think the noble Lord, Lord Watson, said it himself—that school-to-school support is the best way to improve schools. They will be working closely with local authorities to help identify the help available, whether from other schools nearby, which may be local authority maintained schools or academies, or NLEs that can help them. They will also be able to access the school improvement fund, which I mentioned earlier.
All schools will know exactly where they are in terms of the results of the past two years, and will now have an estimate of their figures for this year. These will be published shortly. Of course, the regional schools commissioners will be working with some of these schools anyway—they may have asked for help—but they will all know exactly where they stand.
As for the resources available to regional schools—
Lord Watson of Invergowrie
Although the Minister was not talking specifically about this, will he address my question on whether the schools that are going to be named publicly on Thursday have already been told by the regional schools commissioner that that is about to happen, and whether the local authorities have been told?
Lord Nash
They are not going to be named publicly but the schools will be able to work out from their results whether they are coasting.
As for the resources available to the regional schools commissioners, they started with very small offices of around six or eight people, but they have all now been substantially strengthened to an average of more than 40 people. We are satisfied that they have the resources in place. One thing that they are working on closely, as the noble Lord mentioned, is ensuring that we have enough capacity in the system and enough MATs to sponsor any failing schools where required.
I will write to the noble Lord in some detail on the other matters to which he referred. I am sure that all noble Lords support our ambition to ensure that all pupils, whatever their background and wherever they live, have the opportunity to go to a good school. I therefore hope that noble Lords will support our proposals and these regulations.
The Earl of Listowel
On the issue of the context of the schools, will the level of English spoken in families also be looked at? I imagine that that may have an impact on a child’s learning and it might be helpful when it comes to the read-across with Louise Casey’s work on integration.
Lord Nash
The noble Earl makes a very good point. That is something we are looking at, and certainly increasingly seeing in some schools. The definition of EAL is sometimes a little loose, because there are plenty of people who speak fluent English but would be defined as EAL because it is their second or third language. However, in parts of the country an increasing number of schools are having to cater for a sudden influx in different year groups of pupils who do not speak any English at all. Certainly, the regional schools commissioners will take this into account.
Childcare (Early Years Provision Free of Charge) (Extended Entitlement) Regulations 2016
(8 years ago)
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The Parliamentary Under-Secretary of State, Department for Education (Lord Nash) (Con)
My Lords, the Childcare Act 2016 delegates power to Ministers to create these regulations. It gives the Secretary of State a duty to secure 30 hours of childcare to three and four year-olds of working parents. The regulations provide for the additional 15 hours of childcare for children of working parents. I thank noble Lords who are members of the Secondary Legislation Scrutiny Committee for their views on and support for the regulations. I hope that my department has provided reassurance around the questions raised.
This Government are committed to giving working parents of three and four year-olds 30 hours of childcare from September next year. This policy provides significant support with the cost of childcare, worth around £5,000 per year, to working parents who take up the full 30 hours. We debated the eligibility criteria and the detail of the policy extensively during the passage of the Childcare Bill last year. These draft regulations provide more detail on the design and delivery of the additional 15 hours.
The draft regulations set out the eligibility criteria for the 30 hours entitlement. The main income-related requirement is that all parents within a household will need to be earning the equivalent of working 16 hours a week at the national minimum wage or national living wage, and less than £100,000 per year. We are also enabling certain “non-working” households to be eligible for the 30 hours; for example, where parents are not working because they are on maternity or paternity leave or where one parent is working and the other is not because they are disabled or have caring responsibilities.
The Secondary Legislation Scrutiny Committee asked how the application process would work. Parents will apply online via GOV.UK, providing some basic information which HMRC will verify against a range of government data. The system is being trialled with a variety of parents across the country, and I want to offer reassurance that a phone line will be provided for digitally excluded parents.
Over the summer, the department consulted on how the 30 hours would be delivered and published its response in November. On flexibility, we have carefully balanced the needs of working parents with the need to maintain quality for the child. As a result, and in the interests of the child, the maximum session length of 10 hours per day will remain. However, we are extending the hours in which providers can deliver the entitlement to allow parents who work shifts to use the offer as early as 6 am or until 8 pm where they need to do so. To support the market in delivering the entitlement flexibly, we set out in our response to the funding consultation that local authorities are permitted to include in their local funding formulae a supplement for “flexibility”.
To ensure simplicity and clarity for parents and providers, and fair, consistent arrangements for children and families, we have committed to a national grace period for children whose parents lose their jobs. Further informal consultation will be carried out with stakeholders on the length of the grace period before we set out final decisions in statutory guidance in the new year. My department continues to undertake extensive informal consultation with key stakeholders, including childcare providers, local authorities and national childcare provider organisations, and I am grateful for their constructive engagement.
I want to restate that children accessing the additional hours will benefit from the same stringent quality standards that we apply to the existing childcare entitlements. Providers delivering any part of the 30-hour entitlement will need to follow the requirements of the early years foundation stage and must be registered on the Ofsted early years register. We have also committed to developing a workforce strategy to help employers attract, retain and develop staff to deliver high-quality provision. The strategy is a priority and we will publish it as soon as possible.
The department has now responded to its consultation on introducing a new, fairer funding system. We have introduced a minimum funding rate so that no local authority is paid less than £4.30 an hour for the delivery of the entitlements for three and four year-olds, bringing the average total hourly rate up to £4.94 per child. This, along with the requirement that local authorities pass through 95% of the funding they receive from my department, means that the great majority of providers will see an increase in the level of funding they receive. Alongside this, we have also extended the £55 million per year supplementary funding for maintained nursery schools until the end of the Parliament. This reaffirms our commitment to high quality early education in disadvantaged areas and to social mobility. We are committed to consulting on longer term plans for maintained nursery schools.
The Earl of Listowel (CB)
My Lords, there is much to welcome in what the Minister has said. He may well recall the graph of disadvantage, where an intelligent boy or girl from a low income family will start high on the graph but over a period of time will decline and a less intelligent and less able middle-class child will rise past that child. As the Minister so eloquently put it, “High quality early years childcare and education can make a huge difference and promote the social mobility of such young people”. So I welcome the extension of the funding.
As the Minister is aware, I am concerned that future costs, such as the new cost of the minimum wage—a welcome addition, but challenging for childcare providers—is something that the Government need to take into account in future funding arrangements. I am grateful to the Minister for indicating that he and his colleagues will be monitoring this very closely and I recognise that this is the most that any Government have invested in high quality early years childcare.
I have two questions for the Minister. One relates to the penalties part of these regulations. I do not know how they will work in detail and there may not be grounds for concern, but I am thinking again of homeless families. I thank the Minister for ensuring that the piloting of these arrangements has ensured that homeless families are given attention and reached out to. I am concerned that with their movement, they can be hard to communicate with, that they might miss letters, and I would not wish to see them penalised because they missed some correspondence that they should have responded to—the Minister might like to write to me on that particular point.
The second point is in regard to foster children. I am sure that we discussed this at length during the course of the Bill, but I cannot recall why it is that foster children are excluded from this; perhaps the Minister could remind me of that. Since we discussed the Bill, we have had a report from the Family and Childcare Trust highlighting that 14% fewer looked-after children access high quality early years care than the general population. I think that emphasises how more needs to be done to ensure that they do access it. It may be that their access needs to be kept under review. I have nothing more to add and I look forward to the Minister’s response.
Lord Watson of Invergowrie (Lab)
My Lords, I thank the Minister for introducing these regulations. It goes without saying that we welcome the extension of free childcare to 30 weeks from next September and it is helpful to have these regulations as the route map to delivering that—or at least in theory. I suspect that the practice will be more challenging and that the Government will, I fear, face real difficulty in meeting the demand unless greater resources are committed to that end.
My fears on that score stem from the current difficulty in ensuring uniform delivery of 15 hours a week and from what we hear of the plans for the future. Indeed, the Government have been accused in some quarters of “raiding the budgets” set aside by local authorities to help disadvantaged children in order to fund the doubling of free childcare for working families, some of them relatively well-off families. Local authorities currently receive government funds for 15 hours of free childcare for three and four year-olds. Under the present system, local authorities have been able to pay extra cash to schools with nurseries from that budget because they employ qualified teachers and are used disproportionately by poorer families. They have also been able to set aside extra funds to ensure that children from the most disadvantaged families get more than 15 free hours. However, local authorities will now no longer be able to offer additional funding above a set hourly rate per child. Instead there will be a requirement to pass on 95% of centrally provided funds directly to childcare providers.
The new offer of 30 hours of free childcare is of course available only to working families, so any child from an unemployed family currently getting more than 15 hours will lose that extra support. About 80% of three year-olds from the most disadvantaged areas currently attend childcare with a qualified teacher or early years professional. By preventing local authorities from continuing to offer what are known as “quality supplements”, it is likely that schools will need either to reallocate funds from the main school budget, which is already stretched to breaking point in many council areas, or reduce the status of their school nursery. This policy threatens to take cash away from disadvantaged children to pay for the childcare costs of better-off families. I am confident that the Minister will use this opportunity to deny that that was the Government’s intention, and I am not suggesting it was, but if that is the outcome then will he commit to finding a way of ensuring that children from disadvantaged households do not become the victims of unintended consequences that could seriously hamper their development?
The significance of this issue cannot be overstated. We know that the Government are struggling to find the resources to finance 30 hours of free childcare, but targeting non-working families or those who are disadvantaged should be off the agenda. This is because investing in early years is not just about quality childcare for working parents. It is also critical to closing the education inequality gap, which can already be very wide before children arrive at school. I suspect that the Minister will respond by saying that local authorities are able to offer additional cash to childcare providers from their wider budget, but the reality is that few local authorities have the flexibility to do that, and even where they do, it may not be on a sustainable basis.
At the beginning of this month the Early Years Minister, Caroline Dinenage, announced that councils will receive a minimum rate of £4.30 an hour in the new early years funding formula. This came in response to the consultation which was carried out over the summer and the DfE has now found an extra £30 million in its budget to support the introduction of this rate. While any extension of the supplement is welcome, the Government’s funding plans still fall well short across the sector of what is needed to deliver on their promise of 30 hours of free childcare. It has to be said that their record is one of closed Sure Start centres, rising childcare costs and parents waiting for much-needed support. The Government have also announced an extra £50 million for councils to build nursery schools, which is of course an important part of the whole process, but last week the shadow Early Years Minister, Tulip Siddiq, released figures that show a huge black hole in the Government’s nursery building programme which is needed to provide for the new demand. With only one-third of councils having submitted their bids, the total asked for has already exceeded £55 million, which suggests that there could be a shortfall of around £100 million if all local authorities are to have their needs met.
It is all very well promising free childcare, but we need assurances on the infrastructure and resources to back it up. Even if the Government dispute the figure of the shortfall, there will be one, so where do they intend to make it up because surely they did not intend that local authorities which apply for this funding should be turned away empty handed? If they are unable to get the funding, that will underline the evidence that the Government’s funding plans fall short across the sector of what is needed to deliver on their promise of 30 hours free childcare a week from September next year. At the same time, the childcare profession faces a recruitment crisis, with the nursery sector struggling to pay staff even the national minimum wage.
Caroline Dinenage announced that the increased rate in the early years funding formula will be made up of a base rate, plus an uplift for additional needs, based on measures for free school meals, disability living allowance and, as the noble Earl, Lord Listowel, mentioned, English as an additional language. The Minister also said that the disability access fund would provide £615 a year for every eligible child. That, together with the recognition in paragraph 9.8 of the Explanatory Memorandum to these regulations, is welcome. Currently, children with special educational needs or a disability are not adequately supported, and it is hoped that this additional funding will, to some extent, address that.
The response from providers and sector organisations still suggests that the latest offer from the Government is unlikely to be sufficient to achieve the requirements set out in the regulations and to deliver the policy more broadly. When these regulations were considered in another place last week, my colleague Tulip Siddiq asked the Minister whether such concerns over the latest funding announcement were well founded. She did not receive a response, so perhaps the Minister will be able to oblige today. I heard his opening remarks but, given the concern in the sector, I think that that point needs to be reinforced.
The doubts about sufficient resources remain. Sir Michael Wilshaw’s annual report notes that the current increase in early years places has not kept pace with the increase in the early years population. So, again, I invite the Minister to assure us that he is confident that there is sufficient capacity to meet demand.
I thought that last week the Early Years Minister sounded somewhat complacent, saying that she did not expect the 30 hours of free childcare offer to double the demand for childcare places, because many parents already access more than the 15 hours a week and pay for the additional hours. That may well be the case but surely, human nature being what it is, these parents will now cease paying for it themselves as they will be entitled to have it covered by government—within earning limits, of course. Therefore, why the demand is unlikely to double is at best unclear.
I have one final point of clarification to put to the Minister. A new organisation called Childcare Works is to be established. It is intended to be a conduit between the DfE and local authorities to ensure that there will be sufficient 30-hours places from September next year. I wish it, and the local authorities involved, well, but the DfE website describes the new organisation as a consortium consisting of two companies of consultants and a charity. I am happy for this to be done in writing but can the Minister outline some details of the kind of assistance—I assume it will not be handing out cash—that Childcare Works will provide to local authorities to meet the demand for 30-hours places?
I hope that the Minister will accept that I have no interest in scoring points at his expense—at least, not on this issue. Naturally, I wholeheartedly welcome the introduction of 30 hours of free childcare, but I repeat that it will be meaningless for many parents if it is not fully funded.
Lord Nash
In relation to the noble Earl’s points about future costs, as he knows—we have discussed this—we have thought about this carefully through our review. In answer to that point and the question asked by the noble Lord, Lord Watson, about capacity, it is true that the system has responded remarkably well to the substantial increase in provision that we have brought in over the last six years, including the funding for disadvantaged two year-olds. I think it is fair to say that the childcare system is in very good shape, but we will monitor it closely.
I will look carefully at the issue of homeless families and the point that the noble Earl made about penalties. I am sure he will also be interested to hear that in Swindon 30 hours of free childcare is being piloted in a refuge for women who have suffered domestic violence. This includes providing childcare at the refuge and using the space to provide training for the women living there.
At the moment, foster children are excluded from these arrangements but we have been listening carefully to concerns raised on this point. As we all know, foster carers play a vital role in supporting some of our most vulnerable children, and we recognise the importance of effective support for their recruitment and retention. However, we also need to consider whether it is possible for children in foster care to take up the additional hours in a way that promotes their best interests. We will consider whether the blanket exclusion of all children in foster care from the 30-hours policy is the right way to balance this and will clarify our eligibility criteria in relation to this group in advance of September next year.
The Earl of Listowel
I thank the Minister for what he said about examining the case of looked-after children in early years provision. I have a couple of supplementary questions, on which he might write to me. The report, Starting Out Right: Early Education and Looked After Children, has four recommendations, and I mention two. One was improving national data on the attendance in pre-school of looked-after children. It would be helpful to have those data kept in future. Another recommendation was for a pupil premium plus for looked-after children in pre-school care just as there is in primary and secondary education. Perhaps the Minister will write to me about those two things.
Representation of the People (Electronic Communications and Amendment) (Northern Ireland) Regulations 2016
(8 years ago)
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Lord Dunlop
That the Grand Committee do consider the Representation of the People (Electronic Communications and Amendment) (Northern Ireland) Regulations 2016.
The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Dunlop) (Con)
My Lords, I beg to move that the draft regulations laid before the House on 2 November 2016 now be considered. This statutory instrument amends the existing legislative framework for elections in Northern Ireland to allow for people there to register online. The regulations make a number of other amendments to existing electoral law, but I will focus here on the most substantive provisions.
Increasingly, we are all used to banking, shopping and accessing a range of public services online. In Great Britain, people have been able to use the online Register to Vote system since 2014. The online digital service offers a quick and easy alternative to the more traditional option of paper application forms. It is clearly right that people in Northern Ireland should be offered that same choice, and I make it clear at the outset that it is a choice. There is no suggestion that the move to introduce online registration will replace the existing paper registration system. Applying to register on a paper application form will remain an option for any individual who does not want to register online. But for those individuals in Northern Ireland who want to take advantage of this new service, the draft regulations allow the extension of the already successful digital service operating in Great Britain to cover Northern Ireland.
We know that the online Register to Vote service has been very successful in the rest of the UK. Figures suggest that around 90% of those registering in Great Britain this year outside the canvass period did so using the online service. Customer satisfaction with the service consistently measures more than 90%. I am sure that we all want to see increased political participation in politics among young people, including in Northern Ireland. I am pleased to report that since the introduction of online registration in Great Britain, a record 4.2 million applications to register have been made by people aged 16 to 24.
The application pages developed for Northern Ireland have been user-tested throughout their development to ensure that the system provides an excellent standard of service. Under these draft provisions, a Northern Ireland online application will work in essentially the same way as for the rest of the UK. It will require the same personal data as for the existing paper form. I have had a demonstration of the system and can confirm that the service is excellent. Northern Ireland Members from the other place have also been offered a demonstration of the system; I am happy to extend that offer to noble Lords.
The system is quick and easy, taking no more than five minutes to complete. It will not allow anyone inadvertently to miss out information, which might delay their application at a later stage. This will mean more complete applications, less follow-up correspondence from the Electoral Office for Northern Ireland and more people being placed faster on the register. In designing this system, our primary concern has been to ensure that we retain the confidence of users that the electoral system remains secure. In Northern Ireland, the usual requirement for those applying to register is to provide a handwritten signature. In an online application through the digital service, the act of submitting the application form along with the declaration at the end of the application will constitute an electronic signature.
Your Lordships will also be aware that there are strict rules on absent voting in Northern Ireland, which will continue to be enforced. Every successful digital registrant in Northern Ireland will be issued with a digital registration number, which will fulfil the same function as a signature for digital registrants if they wish to apply for a postal or proxy vote. It will ensure that postal vote applications can continue to be scrutinised appropriately. The number will be unique to the individual, last for their lifetime and remain unaltered no matter how many times the individual moves or changes their name. We have consulted the Electoral Commission. It agrees that the provision of an identifier to replace the signature check in the postal vote process is necessary. It raised the possibility of some individuals losing their numbers. To address this possibility, we have put in place a system allowing for numbers to be reissued quickly where they have been lost.
Officials will work closely with the chief electoral officer to monitor the successful operation of the digital registration number procedures. We have also changed the wording of the declaration at the end of the registration form for all applicants, both digital and paper. Applicants will be required to declare that they are the person named in the application and that the information they have provided is true.
There will also be special provision for people with a disability. The declaration makes it clear that the application and declaration can be submitted on behalf of someone unable due to disability to do so themselves, as long as it is done in their presence. The draft regulations also make comprehensive provisions for the exchange of data. This exchange is necessary to facilitate digital registration and allow applications to be verified against the DWP database. I assure your Lordships that these data-sharing provisions are necessary and include all the appropriate safeguards. The provisions have been modelled on the existing provisions in place for Great Britain and have been scrutinised and approved by the Information Commissioner for Northern Ireland.
These regulations do not yet cover the digital registration of overseas electors wishing to register in Northern Ireland. The Government are committed to implementing votes for life, so it makes sense to await the implementation of this wider electoral provision for overseas electors before designing the online system for overseas electors registering in Northern Ireland.
In addition to digital registration provisions, the draft regulations make a number of other more minor or technical amendments. These make improvements and ensure, where appropriate, consistency of administrative approach with the rest of the UK. For example, the regulations bring Northern Ireland into line with the data protections in place in Great Britain for individuals on the list of applicants to be placed on the register. Those wishing to inspect an entry on the list will still be able to see the name, address and nationality of the applicant, but not the other personal details contained in the application. The regulations also provide for removal of overseas attestation to bring Northern Ireland requirements into line with the rest of the UK. Further, they remove the outdated requirement for Crown servants and British Council employees to have their forms submitted by their employer.
The implementation of digital registration is fully supported and welcomed by the Electoral Commission and the Chief Electoral Officer for Northern Ireland, and the regulations have been approved by the Information Commissioner’s Office for Northern Ireland. If your Lordships approve these regulations, the precise timing of the introduction of digital registration will be determined by the successful testing of the electoral office computer system. I hope that all the necessary checks will be passed by the end of February. The regulations will be signed when the digital platform is ready to be launched and will come into force the following day.
I hope your Lordships will agree that the introduction of digital electoral registration is a major step towards modernising the delivery of elections in Northern Ireland. It is an excellent service that will offer people in Northern Ireland the level of choice and service that we all expect in these modern times. We hope that this change will lead to an increase in political participation among a range of groups, particularly young people. I commend the regulations to the Committee.
Lord Empey (UUP)
My Lords, I thank the Minister for introducing the regulations and I for one hope to take up the offer of seeing a demonstration, which I understand will take place on Wednesday this week. First, I do not see this as a case of Northern Ireland catching up with the rest of the UK because our electoral registration participation rates are already very good. In fact, in respect of young people they are better than those in the rest of Great Britain. The last figures I saw showed that around 83% of young people were registered, but there is a reason for that.
There is a fundamental conflict in the Government’s position on this. If you were arguing that online registration is an attempt to encourage young people to register, which it might in some cases, another part of the Government’s policy with regard to electoral office matters is going in the opposite direction; namely, the closure of a number of electoral offices in Northern Ireland. That issue is in conflict with the Government’s stated policies. The local offices have a policy of direct engagement with schools, and that is why they have been able to raise the level of participation by young people. Simply making online registration available is no use unless people are motivated to participate. We already have a system that is working well and achieving very acceptable results.
Lord Tunnicliffe (Lab)
I thank the noble Lord for his speech and the clear explanation of the draft regulations. We are happy to support these changes. Voters in Great Britain have been able to access online registration since 2014 and the Electoral Commission recommended last year that this should be extended to Northern Ireland. Online registration is a quick, easy and, so far, popular alternative to the paper form. We welcome that this choice will now be open to voters across the whole of the UK. This is particularly welcome with regards to encouraging young people to vote, as we know that online registration in Great Britain has been widely taken up by younger voters.
The Minister is of course aware of the specific concerns relating to electoral fraud in Northern Ireland. We have been assured that the plans are brought forward with the support of the Electoral Commission and the Electoral Office for Northern Ireland. What kind of monitoring and evaluation will be done following these changes to ensure that the system works as intended? I ask that specifically with the provisions for the introduction of digital registration numbers in mind, to ensure that the absent voting system is not left vulnerable to electoral fraud. With assurance that the right safeguards are in place, we are content to support the regulations.
The Minister will be aware of concerns over the closure of electoral offices in Northern Ireland and the effect that this will have on jobs and on people’s ability to access local services where they do not have access to the internet. I know that the Government are consulting on the future of electoral services in Northern Ireland, and will not ask the Minister to pre-empt the consultation. But can he assure the Committee that for those voters who wish to use a traditional paper form to register to vote, that excellent service will still be available alongside the welcome access to online registration? I repeat that we are happy to lend our support to the regulations, and I look forward to the Minister’s reply.
Lord Dunlop
I am grateful to all noble Lords for their contributions and their support for the fundamental measure that we are proposing, which is extending digital registration to Northern Ireland. I will take the points raised by my noble friend Lord Empey in order. I note that these regulations are about digital registration, and many of his comments related to other aspects of policy.
First, on access to broadband, one can register online without having broadband. A standard internet connection will be enough and one can even register using a mobile phone or tablet if it is internet enabled. The reality is that there are rural areas across the UK that do not yet have the internet service that we would like and Northern Ireland is not unique in that regard, but that is not a reason to delay the introduction of this service.
My noble friend and the noble Lord, Lord Tunnicliffe, both asked about overall staffing of the Electoral Office for Northern Ireland. Staffing and the administrative implementation of digital registration are an operational matter for the Chief Electoral Officer for Northern Ireland. On wider matters, there is an ongoing consultation into the future structure of delivery of electoral services in Northern Ireland, and I hope that all interested parties will take the opportunity to contribute. In particular, the consultation seeks views on an enhanced role for district councils, which, as we indicate in the consultation paper, could pave the way for an increase in the provision of local services. However, we will consider very carefully consultation responses before reaching any final decision.
In terms of a digital system being more open to electoral fraud, clearly we believe that we have put in place a robust system. Details of an applicant’s name, date of birth and national insurance number will be checked against the national DWP database to ensure state-of-the-art identity verification. Once the identity check has been conducted, the electoral office will still run further data matching to verify addresses. That is not an automatic system. Once the computerised checks are completed, it will be for the Electoral Office for Northern Ireland’s staff to determine whether an individual is placed on the register. If there are concerns, they can contact the individual for more information. The other safeguard is that the certificate of registration will be sent by post to the registered address as a final identity check.
In answer to the noble Lord, Lord Tunnicliffe, the cost of extending the digital service to Northern Ireland is £250,000, which will be met by the Cabinet Office. Finally, I assure the noble Lord, as I did in my opening remarks, that this is to provide people in Northern Ireland with a choice, and the paper-based system will continue to be available for those who wish to use it.
To go back to another point that my noble friend Lord Empey made, engagement with schools is, again, an operational matter for the chief electoral officer, but no doubt this will continue to be of high importance in the future.
As I said, I am grateful for noble Lords’ contributions. I think that in this modern day it is right to give people the option of digital registration, and it brings Northern Ireland into line with Great Britain, while reflecting the differences in electoral law between Northern Ireland and Great Britain. We are designing the system in such a way as to retain voters’ confidence in its security. As I said at the outset, I hope that this will play an important part in increasing political participation in Northern Ireland.
Housing and Planning Act 2016 (Compulsory Purchase) (Corresponding Amendments) Regulations 2016
(8 years ago)
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Lord Bourne of Aberystwyth
That the Grand Committee do consider the Housing and Planning Act 2016 (Compulsory Purchase) (Corresponding Amendments) Regulations 2016.
The Parliamentary Under-Secretary of State, Department for Communities and Local Government and Wales Office (Lord Bourne of Aberystwyth) (Con)
My Lords, these regulations may look rather complex but I hope that the Committee will agree that the principle behind them is straightforward.
Before I launch into the detail, it may help noble Lords if I briefly describe the scenario that has led to these draft regulations being brought forward. Most compulsory purchase orders are made under the procedures in the Acquisition of Land Act 1981. Amendments were made to that Act in the Housing and Planning Act 2016. Corresponding amendments therefore need to be made to Acts which contain compulsory purchase powers that do not rely on the Acquisition of Land Act. That is the purpose of these regulations.
Now for the detail. Schedule 15 to the Housing and Planning Act 2016 amends the Acquisition of Land Act 1981 to require an acquiring authority to include additional information within the notice of confirmation of a compulsory purchase order. This notice is issued under that Act to those with an interest in the relevant land. The acquiring authority must provide information about the effects of the Compulsory Purchase (Vesting Declarations) Act 1981. They must also invite any person who would be entitled to claim compensation, if a general vesting declaration were executed, to give the authority information about the person’s name, address and interest in land.
These amendments were required because the preliminary notice to a general vesting declaration, which previously contained this information, will be abolished by the repeal of Section 3 of the vesting declarations Act by paragraph 5 of Schedule 15 to the 2016 Act. The reason for abolishing the preliminary notice is that it did not commit the acquiring authority to execute a general vesting declaration, so it was of little use as a warning. The notice period for entry has been increased to three months, as has the notice of entry, which follows a notice to treat—the other means of entry and taking possession.
The changes introduced by Schedule 15 will apply to the vast majority of compulsory purchase orders, as they are made using the procedure in the Acquisition of Land Act 1981. There are, however, a number of enabling Acts—the ones listed in the schedule to the draft regulations—where the procedure for obtaining compulsory purchase powers is not governed by the Acquisition of Land Act. This means that we must amend those Acts accordingly; otherwise owners and occupiers of land in orders made under those Acts will be denied the information about the Compulsory Purchase (Vesting Declarations) Act that others would receive. This is what these draft regulations do.
If any Member of the Committee is concerned that corresponding amendments regulations are a rather unusual way of proceeding, I hope that they will be reassured that this procedure is precedented. The Planning and Compulsory Purchase Act 2004 also amended the Acquisition of Land Act 1981, so corresponding amendments were then made in the Planning and Compulsory Purchase Act 2004 (Corresponding Amendments) Order 2007.
Members of the Committee may ask themselves why these amendments were not included in the Bill. These types of amendments take some time to research and prepare. They also could not be finalised until the lead changes in Schedule 15 had been definitely settled. Instead of rushing technical drafting late in the Bill’s stages, we decided that it would be better to draft the amendments separately with a view to bringing the regulations into force at the same time as the substantive provisions. I commend these regulations to the Committee.
Lord Tunnicliffe (Lab)
My Lords, I thank the noble Lord, Lord Bourne of Aberystwyth, for outlining the regulations before us. At the outset, I should say that we are supportive of the changes to the compulsory purchase brought in by the Housing and Planning Act 2016. We welcome the consolidation of notice periods for general vesting declarations. This is a complicated area of law and the simplification of regulations is very much welcomed. It would be helpful if the Minister explained carefully to the Grand Committee why these changes are being introduced through secondary legislation procedures rather than through primary legislation, when we considered the Housing and Planning Bill earlier this year. It appears to me that the department was very unprepared when we considered that legislation and that is the real reason for the changes being made in regulations rather than in primary legislation, where they should have been.
It would be helpful if the Minister could confirm whether I am correct that the regulations are concerned with the general vesting declaration procedure and, specifically, the preliminary notice period before making a general vesting declaration. They seek to ensure that Acts of Parliament that contain compulsory purchase powers are not subject to the Compulsory Purchase (Vesting Declarations) Act, but are still made subject to that Act. My understanding is that the regulations make provision for the amendments made by Schedule 15 to the 2016 Act as well, so that they also apply to the earlier Act.
Further, I welcome the standardising of the minimum notice period for entry to three months, rather than the confusing 14 or 28 days that existed before, and that the regulations state that clear information must be set out in the confirmation notice for a CPO issued under Section 15 of the Compulsory Purchase (Vesting Declarations) Act. These are fairly technical amendments and these changes will bring greater clarity, which is to be welcomed.
Lord Bourne of Aberystwyth
My Lords, I thank the noble Lord, Lord Tunnicliffe, for his general support for the regulations. I can confirm that they indeed consolidate notice periods and standardise entry periods. As he correctly said, they also relate to the general vesting declaration procedure.
I repeat that we have brought these technical amendments forward in secondary legislation at this stage because, first, although it is a technical issue, it is non-controversial, as the noble Lord has just indicated, and, secondly, we did not have the certainty of knowing what the provision would be in general terms in relation to the Acquisition of Land Act until the Housing and Planning Act had passed. They relate to things such as the Pipe-lines Act 1962, the Harbours Act 1964 and the Forestry Act 1967. It is not that they are not important but they are, as it were, minority provisions in relation to the great bulk of compulsory purchase legislation. That is why it has been done in this way and, as I said, there was a precedent for this under the previous Government in 2007. With that, I commend the regulations to the Committee.
House of Lords
Death of a Member: Lord Prior
The Lord Speaker (Lord Fowler)
My Lords, I regret to inform the House of the death of the noble Lord, Lord Prior, earlier today. On behalf of the House, I extend our condolences to the noble Lord’s family and friends.
European Union: Environmental Policy
(8 years ago)
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Baroness Quin
To ask Her Majesty’s Government what are their current priorities concerning United Kingdom participation in the development and implementation of European Union environmental policy.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Gardiner of Kimble) (Con)
My Lords, until exit negotiations are concluded, the UK remains a full member of the European Union and the Government will continue to negotiate, implement and apply EU environmental legislation. We aim to be the first generation to leave the natural environment in a better state than we found it. Whatever the new relationship, we will work closely with countries and institutions in the EU and beyond to achieve our shared environmental goals.
Baroness Quin (Lab)
My Lords, a European Union environment policy promoting improved air and water quality and higher standards generally has been a positive area of European action and one where the UK has often been proactive. Will the Minister give us more clues about whether the Government will continue with this action post Brexit? Will he tell us when his own department’s environment framework will be published as it is already overdue? How does he propose to ensure continued British influence and involvement in an area of policy so important to our citizens?
Lord Gardiner of Kimble
My Lords, the noble Baroness is right. This country has been at the forefront of global environmental initiatives—indeed, that was the case before we became members of the EU—and many of the challenges do not respect national borders, so co-operation with our friends within the EU and globally will remain of utmost importance. The UK is a party to about 30 multilateral environment agreements in its own right. The environment framework will, I hope, be published shortly, and will give an opportunity in the consultation process for everyone to play their part. Whether we are talking about invasive species, biosecurity, air quality or marine conservation, we want to work with our partners very closely.
Lord Howell of Guildford (Con)
My Lords, my noble friend will be aware that, in fact, our very costly carbon reduction targets are actually ahead of those of the rest of the EU, contrary to the requirements of the Climate Change Act 2008, which said we should take account of these things. Is it too much to hope that Brexit might provide an opportunity for us at least to be more in line with the European Union carbon targets rather than above them or, even better, that we should devise our own in a less costly way than the present very heavy burden on industry and poor families?
Lord Gardiner of Kimble
My Lords, there will be differing opinions on this. We have a very strong record on the carbon budgets, whatever one’s view. The issues of climate change are real, as my noble friend Lord Ridley said in the Times this morning. So it is very important that we take these matters seriously, and when we leave they will continue to be important for us.
Lord Teverson (LD)
My Lords, one of the key ways that we meet our European environmental standards is by investment from the European Investment Bank, which has already invested £50 billion in wastewater, clean technology for energy, flooding and waste. How are we going to replace that vital funding stream in two years’ time?
Lord Gardiner of Kimble
My Lords, it is right that the noble Lord mentioned flooding. That is why we have record sums of capital investment: £2.5 billion in flooding investment, as well as a record £1 billion investment in maintenance. That is an example of the UK Government investing strongly in our defences.
Lord Framlingham (Con)
My Lords, given that a number of rather nasty tree diseases in Europe are just awaiting their opportunity to get into this country, will the Minister use the opportunity that Brexit provides to strengthen our import controls to make sure those diseases do not get in?
Lord Gardiner of Kimble
My Lords, I should declare an interest: as Minister for Biosecurity I take these matters very seriously. Our preparations are much advanced. I have been working with the Chief Plant Health Officer and we are in a much better position. Of course we should use the opportunity to see what works in the national interest, and I shall be looking at this very carefully.
Lord Wigley (PC)
My Lords, will the Minister confirm that European environmental standards will all be transferred to UK law when the so-called great reform Act comes through; that none of them can then be disposed of without an order going through both this House and the other place; and that therefore we will have an opportunity to stop any unnecessary rollback?
Lord Gardiner of Kimble
My Lords, the great repeal Bill will provide an opportunity to ensure that there will be no gaps, to provide certainty for businesses, stakeholders and everyone. It is precisely the case that those standards will be coming back to this country and if there is any requirement for alteration, it would come before Parliament in the normal manner of scrutiny by both Houses.
Baroness Ludford (LD)
My Lords, health and flooding have been mentioned, but is it not true that without EU environmental laws on air pollution and clean water, we would have had an even worse situation on air pollution, particularly in London, and would not now be building a supersewer to stop the discharge of raw sewage into the Thames, which is still happening in 2016?
Lord Gardiner of Kimble
My Lords, what the noble Baroness said about the Thames Tideway project is extremely important: raw sewage is going into the Thames; we must reduce it and work on it. That is why it is a very important investment. However, when I looked into the matter, much of what the noble Baroness mentioned is domestic legislation which even predates our membership of the EU. We will be continuing with our environmental course so that we have a better environment.
Lord Grantchester (Lab)
My Lords, once the UK has left the EU, in the absence of the European Commission and the European Court of Justice, what bodies will be responsible for ensuring that the UK complies with present EU environmental standards, even taking legal action against the Government when it fails to do so?
Lord Gardiner of Kimble
As the Government intend that we will leave the environment in a better condition, I very much hope that will not be the case, but the point is that the Government are accountable to the UK Parliament and the electorate, and there are the domestic courts as well.
Lord Cormack (Con)
My Lords, if we are to leave our environment in a better condition, is it not essential that we maintain one of the things that the country can be most proud of: namely, our green belt policy?
Lord Gardiner of Kimble
My Lords, in my view, the green belt has been one of the great successes, ensuring that we do not get urban sprawl. It is very important that it remains. I think my notes will tell me, if I can find them, that a considerable proportion—it is 13%—of the land area in England is covered by green belt. It is very important to ensure that it remains.
Lord Watts (Lab)
My Lords, what action are the Government going to take to help the solar industry and the insulation industry, which have been so badly damaged by government policy?
Lord Gardiner of Kimble
My Lords, with reference to what my noble friend Lord Howell of Guildford said, it is important that we have a mix of energy, and that people do not pay more for their energy than is strictly necessary. Those things are an important feature, but we need to be mindful of costs. That is why the Government took the action that they did.
Brexit: Consumer Rights Policy
(8 years ago)
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Baroness Hayter of Kentish Town
To ask Her Majesty’s Government what discussions they have held with representatives of consumer bodies about the continued protection of consumer rights following the United Kingdom’s departure from the European Union.
The Minister of State, Department for Business, Energy and Industrial Strategy (Baroness Neville-Rolfe) (Con)
Ministers and officials frequently meet representatives from a range of consumer bodies to discuss issues of the day, including EU exit, and we will continue to do so. Details of ministerial meetings are published quarterly on the GOV.UK website. The Government see no reason why the UK’s departure from the EU should have significant adverse effects on consumer rights in this country.
Baroness Hayter of Kentish Town (Lab)
My Lords, we read at the weekend that consumers are already worried about what this will mean for their prices—but there are other rights at risk, such as consumer redress being possible in this country for goods made abroad, victims of accidents in another member state being able to use our courts to pursue insurance claims, air passengers getting compensation for delays and cancellations, and also the many others we have because we are part of a consumer alert system for faulty or dangerous goods. So may I ask the Minister to agree to undertake an audit of EU consumer protections that are at risk after Brexit, and also to meet relevant consumer organisations to see how to reduce the risk of losing those protections?
Baroness Neville-Rolfe
My Lords, next week the Secretary of State for BEIS is chairing a round table with representatives from a range of consumer bodies and charities, and academics, to discuss, among other things, the impact of EU exit on consumers. These are exactly the sorts of issues that he will want to look at. Of course, the great repeal Bill, which has already been mentioned, will convert EU consumer law into UK law wherever practical, and we will want to ensure that cross-border enforcement is effective, and that our ADR landscape is preserved. These are important aspects of a consumer framework which is very strong: we should be proud of it in this country.
Lord Clement-Jones (LD)
My Lords, if we leave the single market, will not some of the real problems for consumers be over online and mail order purchases? When consumers no longer have the right to bring actions here against EU suppliers post-Brexit, what is the Government’s cunning plan? Is it for consumers to run around with small claims in all the other EU member states?
Baroness Neville-Rolfe
We will want to work to ensure that enforcement is effective across borders. There is, of course, a mutuality of interest here, because online goes both ways, and there are issues online, such as cyber and counterfeits, which need to be addressed. We are continuing to develop the digital single market in our ongoing work in the Competitiveness Council, and our enforcement regimes are well respected. The noble Lord is right to highlight this area, but I am optimistic that we can find a way forward and that there will be opportunities to do things better, from the studies that we shall be doing and the work that we shall be taking forward.
Lord Wallace of Saltaire (LD)
My Lords, the Minister said that EU consumer law would be converted into domestic law where it is practical. Could she give the House an example of where the Government consider it will not be practical to do so?
Baroness Neville-Rolfe
That is a difficult question to answer—I am always straight. What I would say is that, as I mentioned earlier, we have planned a series of engagements with consumer bodies. That applies right across Whitehall, so that, for example, the Economic Secretary to the Treasury has been talking to consumer groups—because, of course, financial services are very important—and there have been talks between MoJ and the Legal Services Consumer Panel. It is clear to me that we will be able to highlight, well before March, the particular pinch points, so that in our negotiations we will know which are the important areas that we need to preserve. This is an important piece of work, and I am grateful to the noble Lord for his comments.
Lord Christopher (Lab)
My Lords, we do not need to wait for Europe to part company with us—there are already problems. Ryanair has already given an indication of its intention that claims against it by passengers should be made in Irish courts. If I may say so, there is a lot to be done now with consumer rights that is not happening. My personal recent experience was that the telegraph and postal system refused to give a cash refund for faulty goods that it supplied until I suggested that we went to court. It has now said that it will pay. This is happening on a wide scale to those who are making online purchases from companies which are doing rather less than they should.
Baroness Neville-Rolfe
In general, consumers enjoy strong protections in this country, and we want to seek to preserve those. But where markets fail—the noble Lord has given an example—and competition is not as strong as it needs to be, they may not get a good deal, and the Government will not hesitate to take steps where we need to. We are bringing forward a Green Paper in the spring of next year that will closely examine markets that are not working fairly for consumers. It will look at both specific markets and cross-cutting items, and I look forward to hearing more on those sorts of issues so we can ensure that they are properly looked at as part of that process.
Lord Teverson (LD)
My Lords, British holiday- makers have a history of being ripped off by mobile phone companies while on holiday abroad through communication and data charges. Europe has thankfully sorted this out over the past couple of years, and the charges will be the same. Will the Government insist that British communications and mobile telephone companies keep to that agreement in future so that the rip-off stops and the service remains equitable for British consumers?
Baroness Neville-Rolfe
I am glad that the noble Lord mentioned roaming, because it is one of the key advances that general EU effort has achieved in recent times. When you go to Europe now, depending on your provider, you can sometimes get your calls within your contract, which I have been fortunate enough to experience. In general, consumer regulations in the area of telecoms will not be affected by EU exit—and, of course, as I have said, the market is changing. However, I assure the noble Lord that roaming, and the benefits of that, will be an important ingredient in influencing our thinking in our exit negotiations.
Lord Faulks (Con)
My Lords, given that we have agreed to participate in the Unified Patent Court, does my noble friend agree that this is an indication of how we can participate in various European organisations, even post-Brexit, to the benefit of consumers?
Human Rights: Kashmir
Lord Hussain
To ask Her Majesty’s Government what steps they are taking to support the United Nations investigation into human rights abuses in Indian-administered Kashmir.
Baroness Goldie (Con)
My Lords, we are aware of reports of human rights abuses in Indian-administered Kashmir. Any allegation of human rights abuse in any country is a matter of concern and should be investigated thoroughly, promptly and transparently. As a United Nations member, we support all United Nations bodies and their ability to fulfil their mandates.
Lord Hussain (LD)
I thank the Minister for that Answer. In response to my recent Written Question, the Government confirmed that the Prime Minister discussed Kashmir with Prime Minister Modi when recently in India. Could the Minister tell the House whether human rights abuses in Indian-held Kashmir were raised, and will the Government ask the United Nations Security Council to expand the remit of the UN observers in Kashmir to include in their duties the monitoring and investigation of any human rights abuses?
Baroness Goldie
I thank the noble Lord. I have indicated that we are aware of human rights abuses—or reports, at least, of those abuses—in Kashmir, including in relation to the recent unrest. The UK abides by its commitments under international law, and expects all countries to comply with their international legal obligations. Any allegation of human rights abuse is a matter of concern, which, as I said, would have to be thoroughly, promptly and transparently investigated. In the recent visit to India in November, the Prime Minister discussed a variety of issues with Prime Minister Modi, including Kashmir.
Lord Naseby (Con)
Should the United Kingdom Government not be extremely cautious about getting too deeply involved in Kashmir? After all, it has been a challenge since 1948 and we do not now have a really active involvement there. Would it not be more sensible to concentrate on the areas where we can have considerably more influence?
Baroness Goldie
Both India and Pakistan are important international partners of the United Kingdom. Our long-standing position is that it is for those countries to find a lasting resolution to the situation in Kashmir, taking into account the wishes of the Kashmiri people. It is not for the United Kingdom to prescribe a solution or act as a mediator.
Lord Collins of Highbury (Lab)
Picking up the Minister’s last point, it is extremely worrying that free speech is being severely curtailed in Kashmir at the moment, so it will be extremely difficult to understand the wishes of the people there. What steps have the Government taken to raise with the Indian Government the suppression of free speech and a free press in Kashmir?
Baroness Goldie
I thank the noble Lord, Lord Collins, for his important question. Prime Minister Modi has underlined the importance of fundamental rights and these are enshrined in the Indian constitution. These include freedom of faith and speech and equality of all citizens. We will continue to work collaboratively with Prime Minister Modi’s Government on a range of issues, including the promotion and protection of fundamental human rights such as freedom of expression and freedom of religious expression.
Baroness Northover (LD)
In September, the UN High Commissioner for Human Rights stated that he believed:
“An independent, impartial and international mission is now needed … and that it should be given free and complete access to establish an objective assessment of the claims made by the two sides”.
Does the Minister agree? If so, what action will the UK Government take?
Baroness Goldie
I revert to my Answer to the noble Lord, Lord Hussain, in which I made clear that the United Kingdom Government believe that any allegation of human rights abuse is a matter of concern and should be investigated very robustly. As a member of the United Nations, we support all its bodies and their ability to fulfil their mandates.
Lord Loomba (Non-Afl)
My Lords, do the Government recognise that terrorism—and the support of terrorists—is the worst form of human rights abuse?
Baroness Goldie
We obviously deplore terrorism wherever it occurs. In so far as there has been terrorist activity in Kashmir, the UK has regularly highlighted, at the highest level, the importance of taking effective action against all terrorist groups. We will continue to advance that argument consistently and robustly.
Baroness Tonge (Non-Afl)
My Lords, the Minister will remember that we had a referendum in this country a few months ago. Could she tell us how much our Government are encouraging the Governments of India and Pakistan to uphold the promise to the people of Kashmir of a referendum to determine their own future? If that is not acceptable, why is it not being raised at the United Nations by our representatives?
Baroness Goldie
I respectfully observe that there is a distinction to be drawn between a referendum we choose to have in the United Kingdom and the affairs of two independent sovereign countries, in the form of Pakistan and India. The United Kingdom Government have made clear that we believe it is for these two countries and their Governments to determine how to resolve the situation in Kashmir. It must be left to them to take whatever decisions they think appropriate and to move at a pace they consider fitting.
Baroness Manzoor (Con)
My Lords, is there any merit, as part of our trade agreements with India and Pakistan, in putting human rights at the top of the agenda so that this can be part of negotiations?
Baroness Goldie
I reassure the noble Baroness that, in our diplomatic advocacy, we always insist that human rights are at the top of the agenda. We articulate that position regularly to both Pakistan and India.
Islam: Tenet of Abrogation
(8 years ago)
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Lord Pearson of Rannoch
To ask Her Majesty’s Government whether, as part of their strategy against Islamic terrorism, they will encourage United Kingdom Muslim leaders to re-examine the Muslim tenet of abrogation.
The Minister of State, Home Office (Baroness Williams of Trafford)
My Lords, freedom of speech and religion are core values that make our country great. Britain is home to diverse communities, which are free to practise their religion in accordance with the law. The Government’s strategy for tackling Islamist terrorism is firmly based on strengthening our partnership with communities, civil society groups and faith organisations across the United Kingdom.
Lord Pearson of Rannoch (UKIP)
My Lords, I thank the noble Baroness for that reply, which was helpful as far as it went. I should explain that Islamic abrogation holds that the Koran’s later, violent verses, of which there are many, take precedence over the earlier, peaceful verses, and so it lends support to the jihadists. Have the Government noticed that we can say what we like about any other religion, but we get into all manner of trouble if we try to discuss Islam? If they have noticed, what can they do to encourage civilised national debate about Islam, in the hope that that will encourage our peaceful Muslim friends—who are, of course, in the vast majority—to do more to stand up to their violent co-religionists?
Baroness Williams of Trafford
My Lords, I have to say that I think that the first part of the noble Lord’s statement is factually incorrect. We work with communities to make them resilient and we certainly support the discussion of religion, as we are doing now, as we speak. This is a country that prides itself on freedom of speech—unless people are actually inciting others to intolerance or hatred—and that is something of which I am very proud.
Lord Lamont of Lerwick (Con)
My Lords, is the Minister aware that a Muslim scholar, whom I consulted today, told me that there is no unanimity in the Islamic world about which verses of the Koran are abrogated by later verses? It is completely wrong of the noble Lord, Lord Pearson, to ascribe the views of some hard-line Wahhabis and Salafists as though they were the views of mainstream Sunni, Sufi and Shia Muslims. That is not the case, and all that the noble Lord does by repeating this—as he has done before—is to undermine the position of moderate Muslims in this country.
Baroness Williams of Trafford
I could not have put it better than my noble friend; that is absolutely right. The vast majority of Muslims in this country share our values and share most of the things that we would aspire to for our children and our communities. We should not make blanket statements about a very small minority.
Lord Singh of Wimbledon (CB)
My Lords, whenever the question of religion is raised in this House, there seems to be an air of embarrassment, as if it were something private that should not be discussed. The reality is that it is very much the concern of us all. The suffering in Syria and the weekend outrages in Cairo and Istanbul show that a force, religion, which has a potential for good, is being used these days as a force for evil. Does the Minister agree with the findings of the Louise Casey report that the interfaith industry has done very little to combat this, and we need an actual discussion of the concerns that people feel, rather than being superficially nice to each other?
Baroness Williams of Trafford
My Lords, the noble Lord is absolutely right that religion should be a force for good. It is a particularly pertinent point at Christmas time to consider what religion is a force for. Christmas is a time for giving and doing good to your fellow man or woman. Dame Louise Casey produced an independent report which the Government will consider in due course and comment on in the new year. She addressed what the noble Lord is talking about—namely, that we should not be frightened of saying things.
The Lord Bishop of St Albans
My Lords, does the Minister agree that the best way to tackle extremism in a religious setting is not for this Government, or any Government, to start identifying particular religious doctrines that they would like to see changed, but rather to concentrate on that building of partnerships? Would she agree with me in commending the approach taken by my colleague the most reverend Primate the Archbishop of Canterbury in building those sorts of relationships of trust and friendship, which are creating a platform on which these issues can be honestly faced and discussed as we try to find a way forward on them?
Baroness Williams of Trafford
I completely concur with the right reverend Prelate. I thought that he was going to talk about his noble friend the right reverend Prelate the Bishop of Birmingham, because he does similar work. It is in talking to people through the partnerships that we form that we can form a more cohesive society. I commend the work of the Church of England in this area.
Baroness Hussein-Ece (LD)
My Lords, while associating myself with the comments of the right reverend Prelate, can I ask the Minister whether she thinks it appropriate for a Question to be put down on the Order Paper of this House which refers to “Islamic terrorism”? She quite rightly referred to “Islamist terrorism”. It is inappropriate to lump in 2.5 million British Muslims in this country as somehow being associated with terrorism. Does she think that this Question being brought constantly to this House by a Member of this House is in fact helping those who want to see division in this society and who want to associate peace-loving Muslims in this country with terrorism? Will she answer that please, and will she also say—
Baroness Hussein-Ece
Will she also say whether she thinks that is appropriate?
Baroness Williams of Trafford
I did not hear the last bit of that question because there was a bit of a noise from the House. This House prides itself on the wide range of Questions that can be tabled. We do not police too heavily whether those Questions are always necessarily accurate or reflect the situation. I cannot remember the noble Baroness’s second point. I will leave it there.
Lord Watts (Lab)
Is there not a real danger of highlighting parts of the Koran, when you could equally make the same points about the Bible? Is it not important that we do not take either of those texts as literal?
Baroness Williams of Trafford
My Lords, we have seen with all religions how people can interpret parts of them to their own ends. I was talking just this morning about my own Church and how some things in the past have been interpreted not for evil ends but wrongly. It happens with all texts. It is a question of how we as a civilised society deal with that in the round.
Southern Rail
(8 years ago)
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Lord Stoneham of Droxford
To ask Her Majesty’s Government what discussions they have had with Southern Rail to try to avert the strike action due to start tomorrow.
Lord Stoneham of Droxford (LD)
My Lords, I beg leave to ask a Question of which I have given private notice.
The Parliamentary Under-Secretary of State, Department for Transport (Lord Ahmad of Wimbledon) (Con)
My Lords, my right honourable friend the Secretary of State and my honourable friend the Rail Minister are meeting frequently with GTR to be updated on the latest position and how the operator will provide services on days of industrial action. It is also important to note that this is a dispute between the operator and the unions. My right honourable friend the Secretary of State has also written to union leaders in an attempt to bring this dispute to an end.
Lord Stoneham of Droxford
Rather than taking sides, should not the Government be trying to put pressure on both sides in this dispute, given the six months of intolerable disruption for consumers in the southern region, and force the parties, through the media, to come to terms through ACAS in the next few days ahead of Christmas?
Lord Ahmad of Wimbledon
I agree with the noble Lord. That is exactly what my right honourable friend did: he wrote to both unions and asked them to meet with Southern at ACAS. That was supposed to take place yesterday. That meeting did not take place because the unions had not responded to the invitation from my right honourable friend the Secretary of State. This is not about taking sides—I agree with the noble on that—but about getting this long-standing dispute resolved.
Lord Rosser (Lab)
Under the terms of the franchise agreement, the Government receive the fare revenue from GTR, with GTR receiving a subsidy. The Government have accepted that poor performance by GTR has led to a loss of revenue and that, of the GTR estimate of £38 million lost this year from unofficial and official industrial action and poor performance, just £8.4 million has been lost to date due to official industrial action. How much will GTR have to pay back to the Government for fare revenue being less than expected due to its poor performance, which no doubt also reflects through to poor human relations performance?
Lord Ahmad of Wimbledon
The noble Lord is aware that there are certain aspects of that contract which are confidential. There is a letter in that respect coming through to the noble Lord, which I signed off this morning. The Government have also committed to extensive compensation and Delay Repay 15 has been launched for long-suffering commuters. But let us be absolutely clear: this is a long-standing dispute and, yes, it involves challenges with the contract itself and with Network Rail, but it also involves challenges with the continued action by the unions. The Secretary of State has been very clear. He has written to the trade unions inviting them to meet with Southern at ACAS and they have not taken up that offer. We need to ensure that we can head off further disputes of this kind and further interruptions to the service because, frankly speaking, over half a million people are going to suffer from further strike action.
Baroness O'Cathain (Con)
Can I ask my noble friend to be very persistent with the Secretary of State? This is just no good. Today, the first two trains this morning were delayed, but we heard no excuse, such as “Sorry, there are no guards” or “no drivers” or whatever. When people then get into the carriages and look at the tabloids that are available today, they see that most of the tabloids have full-page ads from Southern saying, “Oh, we are sorry”, but they hear nothing about it. Why can we not get the board of Southern to go and stand on the cold, wet platforms at 6.15 am and get into London at least an hour late?
Lord Ahmad of Wimbledon
I know that my noble friend has raised this issue both in your Lordships’ House and also with me bilaterally. Let me assure her that I do not miss an opportunity to ensure that the Secretary of State is fully aware of the strong sentiments in your Lordships’ House. However, let me also assure her that the Government have set up a scheme by which compensation will be guaranteed to those long-suffering commuters. Regarding her suggestion, I am sure that the board of Southern is listening very carefully. Equally, it did appear at ACAS yesterday and the unions did not. Let us also contextualise this: the dispute with the unions is over driver-only operation of trains, but 99% of the people impacted have signed the new contract. It is about time they got back to work so that the other issues, which are to do with Network Rail and GTR, can be resolved. The dispute is not helping to resolve the issues on the line and it is not helping long-suffering commuters.
Baroness Prosser (Lab)
My Lords, given that on non-strike days there is continuous disruption on this line—and those of us who travel on it daily have had to suffer the farce that has been going on for longer than six months—can the Minister tell the House what discussions the Government have had with the company regarding the management of its sickness and absence policy? It is precious little comfort to those of us who are trying to get on a train, or waiting for trains, to be told time and time again that there is “a temporary shortage of train crew”. What is the company doing about that? It is all very well to go on about how the union is not doing what you want it to do, but over the last nine to 12 months the company has been coming out of this argument looking shabby indeed.
Lord Ahmad of Wimbledon
As the noble Baroness knows, I have acknowledged the fact that the company’s communications have been ineffective and that it has to take responsibility. I have never stood at the Dispatch Box and said that this problem comes from the unions alone. It is a challenge; there are challenges between the company and Network Rail. In that regard, as the noble Baroness will know, my right honourable friend the Secretary of State has appointed Chris Gibb to look specifically at the continuing issues: not at strike days—which, as she rightly highlighted, arise—but at ensuring that the issues on the line can be resolved. A new alliance board has also been established, which includes passenger representatives, and its report will be with the Secretary of State by the end of this month.
Viscount Goschen (Con)
My Lords, I declare an interest as a resident of Sussex who attempts occasionally to use this line. I thank the noble Lord for his role in supporting Peers who are interested in this subject. How much worse will this transport crisis have to get in the south-east of England before the Government intervene directly to take control of the situation?
Lord Ahmad of Wimbledon
As my noble friend knows, the Government have been taking serious regard of all the concerns that have been raised. My honourable friend the Rail Minister meets with GTR weekly. My right honourable friend the Secretary of State has appointed Chris Gibb to look at the issues which arise between Network Rail and GTR, and his report will come through at the end of this year—at the end of this month. As I said, my right honourable friend the Secretary of State has now written directly to both RMT and ASLEF, asking them to meet with Southern at ACAS, where we hope this issue can be resolved. I agree with my noble friend and with all noble Lords; many in this House and beyond have rightly raised this issue because they are exasperated. That is probably a reflection of the sentiment the Government feel. We are taking major steps to resolve this issue, and I implore all parties, particularly those involved with the dispute, to come forward so that we can tackle the dispute and then the long-standing issues which impact negatively on this line and on many people in the south-east of England.
Lord Empey (UUP)
My Lords, will the Minister consider whether the operators of this service are still fit persons to operate it at all, and will that be taken into account when the franchise comes up for renewal?
Lord Ahmad of Wimbledon
The noble Lord raises the specific issue of the contract. I assure him that when we have directly raised issues about the failures of this line, as noble Lords will be aware, GTR has raised the issue of force majeure. We have now gone further and are looking at each case of force majeure, which impacts on 10,000 separate train lines, and which it raised between April and June of this year, to see whether they stack up. The DfT is currently looking at that report to ensure that, every time that is claimed on that contract, it is looked at extensively and we can respond accordingly. Until we have completed that exercise, we cannot hold GTR in breach, because we have to establish whether the basis for it claiming force majeure is valid.
Lord Bradshaw (LD)
My Lords, will the Minister consider that there is a case for people being summoned to ACAS, not asked whether they would care to come along? The unions are inflicting awful, personal damage on people. A decent industrial relations strategy would let ACAS issue a summons, not an invitation, and it would then have the power to act as an arbitrator in those cases and give a pendulum arbitration decision that would be binding on both sides.
Lord Ahmad of Wimbledon
My Lords, industrial relations in this country to a large extent have been dictated by the fact that many people—and rightly so—come willingly to ensure that disputes can be resolved. I hope that all parties concerned in this dispute reflect carefully on their position to ensure that they are acting in people’s true interests. What marks our country’s industrial relations is that, whether you are a union representative, a company representative or an arbiter like ACAS, we come together to resolve disputes amicably and in the best interests of commuters. I hope that that happens in this case.
Wales Bill
Baroness Mobarik
That the amendments for the Report stage be marshalled and considered in the following order:
Clauses 1 and 2, Clause 4, Schedule 3, Clauses 5 to 16, Clauses 18 and 19, Clauses 21 to 51, Schedule 5, Clauses 52 to 60, Clause 17, Clause 3, Schedules 1 and 2, Clause 20, Schedule 4, Schedule 6, Clause 61, Schedule 7, Clauses 62 and 63, Title.
Policing and Crime Bill
Monday 12th December 2016
(8 years ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 72-III(a) Amendment for Report, supplementary to the third marshalled list (PDF, 54KB) - (9 Dec 2016)
19:05 - Division on Amendment 187 - Ayes: 113 / Noes: 236 - Amendment 187 disagreed.
19:40 - Division on Amendment 187A - Ayes: 160 / Noes: 149 - Amendment 187A agreed.
20:25 - Division on Amendment 188 - Ayes: 136 / Noes: 130 - Amendment 188 agreed.
Baroness Hamwee
Baroness Hamwee (LD)
My Lords, I often feel when I have the first amendment after Questions that I should explain to Members of the House that it may not be the showstopper that they will be expecting later in the afternoon. Also in this group are government Amendments 180 and 181, which also relate to the requirement to state nationality. I thank the Government for their amendments. I will leave the Minister to decide whether I am insufficiently grateful or was simply asleep on the job when we debated this previously.
Amendment 179A deals with the new section to the UK Borders Act introduced by Clause 144. The requirement to state nationality is not a casual inquiry. It will be a criminal offence not to give nationality in the circumstances set out and it will carry sanctions of a fine and imprisonment. We propose in this amendment that the requirement should be made only if the immigration officer or police officer concerned reasonably suspects the individual not to be British. Amendment 179B contains a similar amendment to the requirement to produce a nationality document. We regard this as appropriate if one is to have these provisions at all and believe they should reflect the Immigration Act of earlier this year in which provisions about searching a person or premises for a driving licence require,
“reasonable grounds for believing that a person … is not lawfully resident in the United Kingdom”.
Inserting a requirement of reasonableness seems entirely appropriate.
Government Amendment 180, which responds to an amendment proposed by the Joint Committee on Human Rights, of which I am a member, seems a little narrower than that proposal, which referred to,
“alternative documents sufficient that such a document would normally be issued by the relevant authorities”.
Our Amendment 180A takes what amounts to documents that enable the establishment of nationality a little further than what would normally be sufficient to establish it. It occurred to us, for instance, that when a person’s country is in a state of conflict it may not be possible to follow through to the establishment in the way that the government amendment requires. In other words, it would not be possible to fulfil the requirement.
Amendment 181 with regard to pilot schemes is welcome. Can the Minister tell the House where the pilots will take place, how long they will last and, especially, what is “effectiveness”, which is referred to in the amendment? The Delegated Powers and Regulatory Reform Committee has commented on this amendment, which it calls “a sub-delegation of power”—which is one for the real aficionados of constitutional niceties—and said that it,
“would expect to be given a compelling justification for any such power of sub-delegation, why it is needed and how it is intended to be exercised”.
It very delicately made the point, about which I will not be so delicate:
“The scope … is potentially significant and could … allow the obligations … to be targeted on different classes of persons”.
As the Minister will be aware, we are concerned about the possibility of discrimination in the application of the provision.
The DPRRC went on to say that,
“‘piloting’ generally means that powers are being conferred to apply new statutory provisions unevenly and temporarily on an experimental basis. For this reason, we usually expect certain standards to be met in relation to pilot schemes”,
which it sets out as:
“the intended purpose of the pilot regulations”;
use of the affirmative procedure; a requirement on the Secretary of State to “consult interested parties”; to,
“provide on the face of the Bill for the maximum duration of any pilot regulations”;
and to require the Secretary of State to report on their “outcome and effectiveness” and lay the report before Parliament. The committee makes recommendations to that effect. The Minister will obviously be aware of the DPRRC’s report. I hope she will respond to each of those items.
Amendment 181A reflects our concern that it will be only too easy for the clauses to allow for racial and ethnic discrimination. It would not be the first time that assumptions have been made by law enforcement officers. The Home Office under the previous Home Secretary was particularly aware of the importance of stop-and-search powers not being applied in a discriminatory fashion and disproportionately. Our amendment would require an assessment in this regard. Amendment 181B would require a report on that assessment—not just on possible discrimination, but on effectiveness.
Amendment 181BA is on the same theme. We were concerned—I was going to say on these Benches, but it was not only on these Benches—during the passage of the Immigration Bill about what I have heard badged as the “offence of driving while black”: in other words, somebody subject to discrimination who is required to produce a driving licence or documents to prove he is entitled to drive. We suggest in this amendment, admittedly in deliberately quite short order, that the review should focus on the application of the provisions in the relevant clauses in this Bill and the sections in the Immigration Act, the effects of which focus in particular on ethnicity and nationality.
The Minister may regret putting the pilot scheme into the Bill rather than just announcing it, having all these questions asked of her, but we welcome the careful approach she has signified. We are keen to follow it through, as I hope our amendments and my remarks indicate. I beg to move.
Lord Kennedy of Southwark (Lab)
My Lords, on looking at Amendment 179A and Amendment 179B in the names of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, your Lordships might think that they are not necessary. They insert only the word “reasonably” in both cases. I would not agree with that. They are very important additions in the context of this part of the Bill, which concerns the circumstances whereby an individual may be required by an immigration officer or a police officer to state their nationality.
The words “reasonably” or “reasonable” are often used in a legal context. Your Lordships can find the word “reasonable” in this part of the Bill. I refer noble Lords to page 163, where at line 28 we have “without reasonable excuse”, at line 31 “not a reasonable excuse”, and at line 35 “reasonable cause”.
These uses of “reasonable” place obligations on the person being arrested for an offence. It is right that in the same part of the Bill the same obligation to act reasonably should be placed on the immigration officer or police officer when requiring someone who has been arrested to state their nationality. They must have some reasonable suspicion that the individual may not be a British citizen. Acting in the way that any prudent person in a similar situation would act is a proper duty to be placed on officers when in that situation.
Baroness Chisholm of Owlpen (Con)
My Lords, as we have heard, this group of amendments relates to the provisions in Clauses 144 and 145, which confer powers on police and immigration officers to require a suspected foreign national to state their nationality after arrest and to produce nationality documents where required. Following the debate in Committee, government Amendments 180, 181 and 194A seek to address concerns raised then by the noble Baroness, Lady Hamwee, and the Joint Committee on Human Rights. The noble Baroness has tabled a number of amendments of her own, designed to push the Government a little further, but before I respond to these I shall explain the government amendments.
Amendment 180 concerns the situation where a UK national does not possess a passport and is otherwise suspected to be a foreign national. As recommended by the JCHR, this amendment clarifies that officers are able to take into account alternative documentary evidence which would establish an arrested person’s entitlement to a British passport. Supplementary guidance will also be provided to make it clear to officers what specific evidence would normally be sufficient to establish nationality and can therefore be taken into account in that assessment. Given this, I do not believe that Amendment 180A, which seeks a similar end, is necessary.
Amendment 181 will enable us to pilot these provisions on a limited basis to ensure that police processes are robust and that there are no adverse consequences for black and ethnic minority British nationals. Following the pilot and in advance of the rollout of these provisions, we will lay a report before Parliament on the outcome and effectiveness of the pilot. Among other things, the report will include a full equality impact assessment. Given this undertaking, I hope that the noble Baroness will agree that Amendments 181A and 181B are also unnecessary. The noble Baroness wanted to know where the pilots will take place. Subject to agreement with the police, one pilot will take place in Hampshire and the other has yet to be agreed.
Amendments 179A and 179B seek to make it clear that an officer may impose the requirements in Clauses 144 and 145 only when it is reasonable to do so. However, it is already the case that officers may only ever act on reasonable grounds when exercising their powers. Accordingly, I put it to the noble Baroness that there is no need to write this into the Bill. Moreover, in respect of the offences in these clauses there is, in each case, a reasonable excuse defence.
Finally, Amendment 181BA seeks to provide for a post-legislative review of not just the provisions in Clauses 144 and 145 but also the powers conferred by the Immigration Act 2016 to search for and seize driving licences held by an illegal migrant. There is an established procedure for post-legislative review of all legislation, which takes place three to five years following Royal Assent. Consequently we do not need to make express statutory provision for this.
While this is not the occasion to reopen the debates on last Session’s Immigration Bill, I shall just make a couple of observations about the new powers in relation to driving licences. During the debates last Session on these powers, my noble friend Lord Bates made a number of commitments addressing the concerns then raised by the noble Lord, Lord Paddick, including a commitment to pilot the power to search for a driving licence in one or two police areas. The pilot will test the operational details so that any impacts can be identified by the pilot scheme and addressed. My noble friend also committed to issuing guidance to police and immigration officers on the operation of these powers and to a public consultation on that draft guidance before implementation. The consultation will raise awareness of these powers and provide an important gateway through which communities will be able to consider and comment on, among other things, appropriate safeguards.
It is also unnecessary to set up an ad hoc independent review every time we wish to scrutinise police forces’ use of specific powers; Her Majesty’s Inspectorate of Constabulary exists for this purpose. The inspectorate independently assesses police forces and policing activity in the public interest. The PEEL inspection programme —an annual, all-force inspection which assess forces’ efficiency, effectiveness and legitimacy—considers both the extent to which forces use their powers effectively and the extent to which forces treat the people they serve with fairness and respect. In addition, the Home Secretary has the power to commission HMIC to inspect and report on any particular issue if she feels that it requires greater scrutiny than it has received in the course of rolling inspection programmes.
HMIC has a strong track record in shining a light on police use of intrusive powers and has not pulled any punches in its reports on stop and search. It is largely due to HMIC’s findings that the previous Home Secretary announced increased scrutiny of road traffic stops through their incorporation into the best use of the stop and search scheme. We are therefore confident that the necessary systems to provide effective scrutiny of these powers are already in place. The clear statutory safeguards against the misuse of this power, the commitment to a pilot and a public consultation and the role of HMIC mean that this amendment is unnecessary.
The noble Baroness also asked about the Delegated Powers and Regulatory Reform Committee’s recommendation. As this is essentially a commencement power, we are not persuaded that the regulation should be subject to a parliamentary procedure. However, I assure the House that we will set out in the regulations the duration of any pilot, and I have already undertaken to lay a report before Parliament on the outcome and effectiveness of the pilot before we commence these provisions more widely.
I trust that this rather lengthy explanation of the government amendments will provide the necessary reassurance to the noble Baroness, Lady Hamwee, and that she will therefore be content to withdraw her amendment.
Lord Kennedy of Southwark
Before the Minister sits down, will she address the point I made earlier about page 163 where “reasonable” is used a number of times in respect of suspects but not of police officers. Why is that distinction there? If the Minister would like to write to me, that is fine, but I think it is odd that there is that distinction.
Baroness Chisholm of Owlpen
I will write to the noble Lord to clarify that point.
Baroness Hamwee
My Lords, I am grateful to the noble Lord, Lord Kennedy. When the noble Baroness writes, perhaps she can also explain this about what the Government did in the Immigration Act 2016. For this purpose, I simply refer to Section 43, which introduces a new paragraph in Schedule 2 to the 1971 Act providing for power to be exercised only if the authorised officer has “reasonable grounds” for believing that, in this case, the driving licence is on the premises. The very fact that that terminology is used in legislation which we passed a mere few months ago must raise the question of why it is not included in the comparable clause in this Bill. I know that the noble Baroness cannot answer this at the moment, but I hope that as well as writing, she might be able to discuss this with officials. It is an intrinsically important point, but also a technical one, as to why it should not be included in this Bill. Perhaps we can come back to this at Third Reading. I am not of course expecting her to do anything other than nod sympathetically, as she is doing.
The Delegated Powers and Regulatory Reform Committee will no doubt consider the Government’s response, but I note that on the question of the affirmative procedure, the Minister said that she did not think that these regulations should be subject to parliamentary procedure. The committee also suggested, or would require, that the Secretary of State should consult interested parties before making the regulations. I am not sure—I might have missed it—whether she referred to the maximum duration of pilots. I accept that there will be post-legislative reviews, and that everything has to be kept under review, but it is the importance of the subject matter which led us to raise the point about requiring an ad hoc review.
I do not know whether the Minister has any information as to whether the pilots and guidance under the Immigration Act are going to be introduced in tandem with, and in the same areas as and so on, the pilots under this Bill. Does she have any information about that?
Baroness Chisholm of Owlpen
I think that is still under discussion at the moment with various authorities.
Baroness Hamwee
My Lords, we will see, but I am glad to note the Home Office’s acceptance of the importance of the issue, which I never had in doubt. I beg leave to withdraw the amendment.
“Pilot schemes
(1) The Secretary of State may by regulations made by statutory instrument provide for any provision of sections 144 and 145 to come into force for a period of time to be specified in or under the regulations for the purpose of assessing the effectiveness of the provision.(2) Regulations under subsection (1) may make different provision for different purposes or different areas.(3) More than one set of regulations may be made under subsection (1).(4) Provision included in regulations under subsection (1) does not affect the provision that may be included in relation to sections 144 and 145 in regulations under section 160 (commencement).”
Lord Lexden
“( ) Except in relation to service disciplinary proceedings, this section applies only in relation to persons convicted or cautioned in England and Wales.”
Lord Lexden (Con)
My Lords, I will speak to the amendments in this group in my name and the names of my noble friend Lady Williams of Trafford and the noble Lord, Lord Cashman. The support of my noble friend the Minister signifies that these amendments have been accepted by the Government, and I thank her for all that she and her officials have done to bring about their acceptance. I am indebted to my noble friend for her constant understanding and kindness.
I am also delighted to have the support of the noble Lord, Lord Cashman, a strong and constant ally in helping to secure the benefits that gay people in Northern Ireland will obtain as a result of our amendments. His work has been widely noted and appreciated by those who campaigned tenaciously to achieve in the Province all the rights that gay people enjoy elsewhere in our country. The need for equality throughout the United Kingdom on this issue of human rights was strongly supported in Committee by the noble Lord, Lord Kennedy of Southwark, from the Opposition Front Bench, and I thank him most warmly.
This Bill now incorporates amendments proposed in Committee by the noble Lord, Lord Sharkey, and accepted by your Lordships’ House. They will have the effect of making available in England and Wales pardons to those who were cautioned or convicted under cruel and discriminatory laws, now repealed, that bore so heavily and so unfairly for so long on homosexual and bisexual men. They will make reparation, to the extent that it is possible and practicable, to those still living and remove a terrible stain from the reputations of those who are no longer alive, for the comfort of their families.
Naturally, gay people in Northern Ireland felt that their part of our country should not be excluded from such an important measure of belated justice. I was glad to act as their representative and spokesman in Committee by bringing forward amendments designed to extend to Northern Ireland what has now been agreed for England and Wales. I had the great good fortune to be able to draw on the wide legal knowledge and accomplished drafting skills of Professor Paul Johnson of York University, who produced the amendments discussed in Committee. It is his work, refined and extended by leading officials of the Home Office, that will now confer on gay people in Northern Ireland the equal rights arising from this major reform, which they want and deserve.
Laws are not now normally enacted at Westminster, in this and many other areas of policy that have been devolved to Northern Ireland, without the approval of its Assembly, expressed through the adoption of a legislative consent Motion. In Committee, I referred to the strong hope that such a Motion would be passed by the Assembly, and it was duly passed on 28 November. Its smooth passage, preceded by the rapid and successful completion of discussions in the Northern Ireland Executive, owes much to the new, young Minister of Justice in Northern Ireland, Claire Sugden.
My gay friends in Northern Ireland detect a more relaxed, modern and progressive mood among young people in particular. The Minister gave expression to it at Stormont last week when she said that,
“giving permission for Westminster to pass these provisions for Northern Ireland offers an immediate opportunity for the criminal justice system … to right the wrongs of the past”.
She went on to stress the need to,
“ensure that the criminal law in Northern Ireland offers equality of treatment for gay and bisexual men in Northern Ireland, as it would do in England and Wales”.
These are most encouraging and heartening words.
The noble Lord, Lord Sharkey, paved the way for the granting of pardons for offences that should never have defaced the statute book in England and Wales by securing the creation, in 2012, of what is known as a disregard scheme, under which application can be made to have such offences wiped from the record. These amendments will authorise the introduction of such a disregard scheme in Northern Ireland. Individuals will be able to apply to the Justice Department to have their convictions for discredited former offences disregarded on criminal records. All successful applications will be followed automatically by the granting of pardons. Automatic pardons will also be given in posthumous cases.
Very importantly, the amendments confer power on the Northern Ireland Justice Department to add further discredited offences to the disregard scheme by means of regulations. Similar provision is to be made for England and Wales under amendments in this group to be moved by my ally, the noble Lord, Lord Cashman.
The arrangements to be introduced in Northern Ireland under these amendments will differ from those in England and Wales, at least initially, in one respect: disregards and pardons will be available for past offences committed by those who were at the time at least 17 years of age, not 16 as in England and Wales. This is because until recently Northern Ireland had 17 as its age of consent. Claire Sugden made plain that she is very open to further discussion of this point in the Northern Ireland Assembly.
I have one further matter to raise relating to Clause 148(4), which provides that posthumous pardons will be made available to those convicted of certain abolished offences under service law. As it stands, however, Clause 148(4) makes posthumous pardons available only to those convicted as far back as the Naval Discipline Act 1866. This is inadequate because, like the equivalent civil law provisions that extend back nearly five centuries to the Henrician statute of 1533, service law criminalised consensual same-sex sexual acts between members of the Armed Forces long before 1866. Between now and Third Reading the Government may wish to consider incorporating these earlier provisions, and equivalent ones in respect of the Army, into Clause 148(4) to ensure that those convicted of service disciplinary offences prior to 1866 are eligible to receive a posthumous pardon in the same way as those convicted after that date. This point has been brought to our attention by the omniscient Professor Johnson.
I conclude with the words of Councillor Jeffrey Dudgeon, whose case at the European Court of Human Rights in 1981 led to the decriminalising of homosexuality in Northern Ireland. He has said that these amendments,
“will right a wrong for a small but very significant group of living people, and also bring satisfaction and comfort to a greater number of relatives and friends of those who died with their reputations scarred by cruel convictions”.
I beg to move.
Lord Cashman (Lab)
My Lords, I am extremely pleased to speak to the amendments by the noble Lord, Lord Lexden, to which I have proudly added my name, and to the other amendments in this group in my name and that of the noble Baroness, Lady Williams.
My ally, the noble Lord, Lord Lexden, has put the case eloquently and exhaustively for these measures of pardon and disregards to be extended to Northern Ireland, ensuring that the wrongs so often visited upon gay and bisexual men can now be righted, atoned for and, indeed, corrected. He is right to quote Councillor Jeffrey Dudgeon, who, along with so many others, has shown courage and leadership in fighting for LGBT equality in Northern Ireland and elsewhere, as indeed has the noble Lord. I congratulate him on the work that he has carried out exhaustively and with fortitude. I, too, record my thanks to Professor Paul Johnson of York University, who has been invaluable in shaping our approach, and who, with Paul Twocock at Stonewall, has guided me with patience and great wisdom.
I hope noble Lords will allow me a short moment of reflection. When I campaigned against Section 28 of the Local Government Act in 1988 and subsequently co-founded and chaired Stonewall from 1989, I never imagined that we would achieve equality for LGBT people in my lifetime, nor that I would be in your Lordships’ House to bring together arguably the last pieces of the legislative jigsaw of legal equality for lesbian, gay and bisexual people. I know that we still have much more to do for the trans community, and we will. Yet I remind myself that what we achieve now is not achieved by us but was made possible by a thousand generations of LGBT people and our heterosexual allies who stood up and fought for equality, often giving up their livelihoods, their freedom and, in some instances, their lives. Moments like these make me feel truly humbled as I recognise their sacrifices over hundreds of years.
In Committee, I moved an amendment to include an offence that was missed from the disregard scheme set up to allow gay and bisexual men who were unjustly convicted under old sexual offences laws to have that crime wiped from their criminal record. The offence, Section 32 of the Sexual Offences Act 1956, titled “Solicitation by men”, also referred to importuning for immoral purposes and was used right up until repeal in 2003 to arrest men for the simple act of chatting one another up in the street or suggesting that they should return to their home. Arrests were often made in police stings, where plain-clothes police officers encouraged gay or bisexual men to approach them. It was a key tool used by the police and the criminal justice system to create the climate of fear that hung over gay and bisexual men trying to meet each other right up to the early 1990s.
Currently, men convicted under this Section 32 offence cannot have their offence deleted, so they still face having it registered whenever they have a criminal records check made for employment, volunteering or other purposes. When I spoke to this in Committee, the Minister responded to my proposal in an open and positive way, and I am pleased to say that through discussion with her and officials we have developed an holistic approach that not only ensures that safeguarding can be watertight but gives us an opportunity to include other offences that may have been used imaginatively and perniciously in the past to unjustly prosecute gay and bisexual men.
My amendment gives the Home Secretary the ability to lay down regulations, subject to affirmative action, to amend the Protection of Freedoms Act 2012 to add in additional offences to the disregard scheme where it is shown that they were used in a persecutory way to regulate the lives and activities of gay and bisexual men in the past. We are taking this approach for two very good reasons.
First, Home Office officials will now need more time to do due diligence on the case law related to the Section 32 “Solicitation by men” offence to ensure that when it is included in the scheme convictions under the offence that would still be illegal today it cannot be open to being deleted from the record. Although there is plenty of evidence and case law demonstrating how Section 32 was used unjustly against gay men in particular, it had a wider scope and it is important that we ensure that anything that remains illegal today is excluded from the disregard scheme.
Secondly, there is also evidence that other more general offences were used to catch and prosecute gay and bisexual men, such as meeting up, kissing in public and other activities that would be totally legal today. The approach in the amendment will give Home Office officials the scope to investigate these other offences, and as evidence of unfair prosecutions arise the Home Secretary can extend the scope of the disregard scheme to ensure that every gay and bisexual man unjustly convicted in the past can have their criminal record deleted.
My amendment will also ensure that any regulation that provides for people still alive to have their offence deleted will also extend the pardon to people who are no longer alive. I am extremely pleased that the Minister is co-sponsoring this important amendment and consequential amendments. Although people who are still alive will still need to make an application to have their offence disregarded so that it can be checked against the conditions and then physically removed from the criminal record, the effect of a disregard is much more powerful than a pardon. In supporting the amendment I believe that the Government have the opportunity to send a message to the LGBT community in particular that the disregard scheme and the automatic pardon for people who have since died are all about atoning for the actions of past Governments. It is in effect an apology and a sincere attempt to right the wrongs of the past.
It also gives us the very important opportunity to raise awareness of the disregard scheme with people who could benefit from applying to have their old conviction or caution deleted from the record. I hope the Government will work with the LGBT media, Stonewall and other organisations to send the message out about who can benefit from applying and to make sure that the process is as straightforward as possible.
Taking the lead from the noble Lord, Lord Lexden, I wish to thank others who have contributed so valiantly to these amendments and to the cause of equality: the noble Lord, Lord Sharkey, other noble Lords, and my noble friend Lord Kennedy for his comments in Committee. More importantly, a lesson I learned at a very early age is the importance of saying thank you where it matters most. I want to close by thanking the noble Baroness, Lady Williams, personally for the work that she and her officials have put into the amendment. This is an opportunity to do that which is just, right and necessary; and I am proud that we are so doing.
Lord Paddick (LD)
My Lords, briefly, I thank the noble Lords, Lord Lexden and Lord Cashman, for introducing the amendments, and the noble Baroness for supporting them, and ask that she consider the matters still outstanding, to which the noble Lord, Lord Lexden, referred, concerning the Armed Forces. I am very grateful that the Government are also considering other offences mentioned by the noble Lord, Lord Cashman, as a consequence of his amendment.
Lord Kennedy of Southwark
My Lords, I very much support all the amendments in this group. We have made tremendous progress in recent years in seeking to redress the effects of homophobic legislation. Terrible injustices were suffered, and previous changes to the law and the amendments are intended to go some way to correct that and make amends. They have my full support and that of my party.
Of course, we need to go further in Northern Ireland, but this is an important step. I want to see the day when LGBT people living in Northern Ireland have exactly the same rights, protections and freedoms as LGBT people living in England, Scotland and Wales. We are a United Kingdom, albeit with devolved institutions, but LGBT people should have the right to get married in Northern Ireland; that must be urgently addressed by the Northern Ireland Assembly and the ministerial team led by the First Minister and Deputy First Minister in Stormont. It is wrong to keep using the petition of concern procedure to block progress in this matter. The UK Government must play their role in championing the rights of LGBT people in Northern Ireland by raising this issue at ministerial and official level. It is not enough for the Government to say that it is a matter for the devolved institution.
During Committee on the Bill on 9 November, I made clear my support for a range of amendments proposed by several Lords. I was clear that welcome progress was being made, but that the amendments proposed by my noble friend Lord Cashman were in my view the best ones before your Lordships’ House. They were not accepted by the Government, but discussions have taken place outside the Chamber, and the amendments proposed by my noble friend Lord Cashman and the noble Baroness, Lady Williams of Trafford, are very welcome. I thank the noble Baroness very much for listening and working with my noble friend on them.
I pay warm tribute to my noble friend Lord Cashman. We have been friends for many years. It is his tireless campaigning with others, including the noble Lord, Lord Lexden, that has got us to this point today, and we should be very grateful to them all.
Although it is not on the subject of the amendments, I will make one final point on equality in Northern Ireland in respect of women’s equality. The Northern Ireland Assembly, Ministers, led by the First Minister and Deputy First Minister, and the political parties must get together to deliver equality for women living in Northern Ireland, so that they enjoy the same rights as women living in England, Scotland and Wales. Again, the UK Government have to play their role by raising that at ministerial level. Although that is a matter for another day, it is an important issue to which we must return. In conclusion, I confirm my full support for the amendments.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I am so pleased to be able warmly to support the amendments proposed by the noble Lord, Lord Cashman, and my noble friend, Lord Lexden. I also acknowledge the spirit of very positive co-operation that has led to the amendments. I recognise that they will continue to strengthen the efforts made by this Government to tackle the historical wrongs suffered by gay and bisexual men in England and Wales—and now Northern Ireland—who were criminalised over a long period for something that something that society today regards as normal sexual activity.
I shall deal first with Amendments 181D, 181E and 181F, tabled by the noble Lord, Lord Cashman. As he explained, they will enable the Secretary of State to extend, by regulations, the list of offences eligible for a disregard under the provisions of the Protection of Freedoms Act 2012. The regulation-making power enables the necessary modifications to be made to Chapter 4 of Part 5 of the 2012 Act, and provides for corresponding provision for pardons to that contained in Clauses 148 and 149 of the Bill.
In Committee the noble Lord made the case for other offences being included in the disregard process, in particular the offence of solicitation by men which is in Section 32 of the Sexual Offences Act 1956. As I indicated at that time, the Government are broadly sympathetic to this, but we need more time to work through the implications of adding offences to the disregard scheme, and in particular the conditions that need to be satisfied before a conviction could be disregarded. In recognition of the fact that we should not rush that consideration, Amendment 181D enables the Home Secretary to add other abolished offences to the disregard scheme by regulations, subject to the affirmative procedure. It is important that, in taking this forward, we are able to distinguish between activities that are now no longer illegal and those that are still illegal. This amendment also gives us scope to consider what other offences may be appropriate for inclusion, so it is to be welcomed as a signal of our continued commitment to address these historical wrongs.
As my noble friend Lord Lexden explained, the amendments in his name introduce a comparable disregard scheme in Northern Ireland to match that already in operation in England and Wales. They also introduce the same approach to statutory pardons as that contained in Clauses 148 to 150 of the Bill.
As I indicated in Committee, as these provisions relate to transferred matters in Northern Ireland, it is right that this House should respect the usual convention that the UK Parliament legislates in respect of such matters only with the consent of the Northern Ireland Assembly. I am pleased to say that the Assembly adopted the necessary legislative consent Motion on 28 November.
My noble friend Lord Lexden pointed out the important difference in the Northern Ireland disregard scheme; I thank him for explaining it to the House so that I shall not have to go through it again. I am pleased that we have been able to work fruitfully with the noble Lord, Lord Cashman, and with my noble friend, and I commend their amendments to the House.
My noble friend Lord Lexden pointed out an apparent contrast in the approach taken in Clause 148 as between civilian and service offences. That clause confers posthumous pardons for convictions for buggery and certain other abolished offences tried in the civilian courts, which date back to the Henry VIII statute of 1533—whereas posthumous pardons for convictions for the equivalent offences under service law reach back only to 1866. My noble friend said that it was in fact the Navy Act 1661 which first criminalised buggery in the Armed Forces. While the intention behind Clause 148(4) is to capture only relevant service offences that could have been prosecuted in either civilian or service courts, my noble friend may have alighted on a very valid point. I therefore undertake to consider this matter further with a view to bringing back a suitable amendment at Third Reading.
Lord Lexden
My Lords, I must express most grateful thanks to all noble Lords who have taken part in the debate. Those who will benefit from these measures in Northern Ireland will derive great satisfaction from this part of our proceedings today. There is, as the noble Lord, Lord Kennedy of Southwark, emphasised, more to be done—but these measures will, I think, assist the new pattern of more tolerant, inclusive and peaceful life that is evolving in this important part of our country.
Lord Cashman
“Power to provide for disregards and pardons for additional abolished offences: England and Wales
(1) The Secretary of State may by regulations made by statutory instrument amend section 92 of the Protection of Freedoms Act 2012 (power of Secretary of State to disregard convictions or cautions) so as to add further offences to the list of offences specified in subsection (1) of that section.(2) An offence may be added to that list only if—(a) it was an offence under the law of England and Wales,(b) it has been repealed or, in the case of an offence at common law, abolished, and(c) either—(i) the offence expressly regulated homosexual activity, or(ii) although the offence did not expressly regulate homosexual activity, it appears to the Secretary of State that those responsible for investigating occurrences of the offence targeted occurrences involving, or connected with, homosexual activity.(3) Regulations under subsection (1) adding an offence may also amend section 92 so as to provide that, in relation to the offence, condition A is that it appears to the Secretary of State that matters specified in the amendment apply (in substitution for the matters specified in subsection (3)(a) and (b) of that section). (4) Regulations under subsection (1) may make consequential amendments of Chapter 4 of Part 5 of the 2012 Act.(5) Regulations under subsection (1) adding an offence must also provide for any person who has been convicted of, or cautioned for, the offence to be pardoned where—(a) the person has died before the regulations come into force or the person dies during the period of 6 months beginning with the day on which they come into force, and(b) the conditions specified in the regulations are met.(6) Those conditions must correspond to the matters that are specified in condition A in section 92 of the 2012 Act as it applies in relation to the offence (that is, the matters which must appear to the Secretary of State to apply in order for condition A to be met).(7) Subsection (5)(a) does not apply in relation to a person who dies during the period of 6 months if, before the person’s death, the person’s conviction of, or caution for, the offence becomes a disregarded conviction or caution under Chapter 4 of Part 5 of the 2012 Act (and, accordingly, the person is pardoned for the offence before death under section 149(3) of this Act).(8) The regulations must make provision which has a comparable effect in relation to the pardons provided for by the regulations and the offences to which those pardons relate as section 148(4) to (6) of this Act has in relation to the pardons provided for by section 148(1) to (3) and the offences to which they relate.(9) A statutory instrument containing regulations under this section may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.(10) In this section, “caution”, “conviction”, “disregarded caution” and “disregarded conviction” have the same meaning as in Chapter 4 of Part 5 of the 2012 Act (see section 101 of that Act).”
Lord Cashman
Lord Lexden
“Disregarding certain convictions etc for abolished offences: Northern Ireland
(1) After Chapter 4 of Part 5 of the Protection of Freedoms Act 2012 (disregarding certain convictions for buggery etc) insert—“CHAPTER 5DISREGARDING CERTAIN CONVICTIONS FOR BUGGERY ETC: NORTHERN IRELANDGeneral101A Power of Department of Justice to disregard certain convictions or cautions (1) A person who has in Northern Ireland been convicted of, or cautioned for, an offence under—(a) Article 19 of the Criminal Justice (Northern Ireland) Order 2003 (S.I. 2003/1247 (N.I. 13)) (buggery),(b) Article 7 of the Homosexual Offences (Northern Ireland) Order 1982 (S.I. 1982/1536 (N.I. 19)) (procuring others to commit homosexual acts),(c) section 61 of the Offences against the Person Act 1861 (buggery), or(d) section 11 of the Criminal Law Amendment Act 1885 (indecent acts between men),may apply to the Department of Justice in Northern Ireland for the conviction or caution to become a disregarded conviction or caution.(2) A conviction or caution becomes a disregarded conviction or caution when conditions A and B are met.(3) In relation to an offence under Article 7 of the Homosexual Offences (Northern Ireland) Order 1982, Condition A is that the Department of Justice in Northern Ireland decides that it appears that—(a) the conduct procured was conduct involving persons who consented to it and were aged 17 or over (whether or not that conduct occurred), and(b) the conduct procured would not now be an offence under Article 75 of the Sexual Offences (Northern Ireland) Order 2008 (S.I. 2008/1769 (N.I. 2)) (sexual activity in a public lavatory).(4) In relation to any other offence mentioned in subsection (1), Condition A is that the Department of Justice in Northern Ireland decides that it appears that—(a) the other person involved in the conduct constituting the offence consented to it and was aged 17 or over, and(b) any such conduct now would not be an offence under Article 75 of the Sexual Offences (Northern Ireland) Order 2008 (S.I. 2008/1769 (N.I. 2)).(5) Condition B is that—(a) the Department of Justice in Northern Ireland has given notice of the decision to the applicant under section 101C(4)(b), and(b) the period of 14 days beginning with the day on which the notice was given has ended.(6) Sections 101D to 101G explain the effect of a conviction or caution becoming a disregarded conviction or caution.101B Applications to the Department of Justice(1) An application under section 101A must be in writing.(2) It must state—(a) the name, address and date of birth of the applicant,(b) the name and address of the applicant at the time of the conviction or caution,(c) so far as known to the applicant, the time when and the place where the conviction was made or the caution given and, for a conviction, the case number, and(d) such other information as the Department of Justice in Northern Ireland may require.(3) It may include representations by the applicant or written evidence about the matters mentioned in condition A in section 101A.101C Procedure for decisions by the Department of Justice(1) In considering whether to make a decision of the kind mentioned in condition A in section 101A, the Department of Justice in Northern Ireland must, in particular, consider— (a) any representations or evidence included in the application, and(b) any available record of the investigation of the offence and of any proceedings relating to it that the Department of Justice in Northern Ireland considers to be relevant.(2) The Department of Justice in Northern Ireland may not hold an oral hearing for the purpose of deciding whether to make a decision of the kind mentioned in condition A in section 101A.(3) Subsection (4) applies if the Department of Justice in Northern Ireland—(a) decides that it appears as mentioned in condition A in section 101A, or(b) makes a different decision in relation to the matters mentioned in that condition.(4) The Department of Justice in Northern Ireland must—(a) record the decision in writing, and(b) give notice of it to the applicant.Effect of disregard101D Effect of disregard on police and other records(1) The Department of Justice in Northern Ireland must by notice direct the relevant data controller to delete details, contained in relevant official records, of a disregarded conviction or caution.(2) A notice under subsection (1) may be given at any time after condition A in section 101A is met but no deletion may have effect before condition B in that section is met.(3) Subject to that, the relevant data controller must delete the details as soon as reasonably practicable.(4) Having done so, the relevant data controller must give notice to the person who has the disregarded conviction or caution that the details of it have been deleted.(5) In this section—“delete”, in relation to such relevant official records as may be prescribed, means record with the details of the conviction or caution concerned—(a) the fact that it is a disregarded conviction or caution, and(b) the effect of it being such a conviction or caution,“the general names database” means the names database held by the Secretary of State for the use of constables,“the Northern Ireland names database” means the names database maintained by the Department of Justice in Northern Ireland for the purpose of recording convictions and cautions,“official records” means records containing information about persons convicted of, or cautioned for, offences and kept by any court, police force, government department or local or other public authority in Northern Ireland for the purposes of its functions,“prescribed” means prescribed by order of the Department of Justice in Northern Ireland,“relevant data controller” means—(a) in relation to the general names database or the Northern Ireland names database, the Chief Constable of the Police Service of Northern Ireland,(b) in relation to other relevant official records, such persons as may be prescribed,“relevant official records” means—(a) the general names database,(b) the Northern Ireland names database, and(c) such other official records as may be prescribed. (6) An order under this section may make different provision for different purposes.(7) Any power to make an order under this section is exercisable by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (S.I. 1979/1573 (N.I. 12)).(8) A statutory rule containing an order under this section is subject to negative resolution (within the meaning of section 41(6) of the Interpretation Act (Northern Ireland) 1954 (c. 33 (N.I))).101E Effect of disregard for disclosure and other purposes(1) A person who has a disregarded conviction or caution is to be treated for all purposes in law as if the person has not—(a) committed the offence,(b) been charged with, or prosecuted for, the offence,(c) been convicted of the offence,(d) been sentenced for the offence, or(e) been cautioned for the offence.(2) In particular—(a) no evidence is to be admissible in any proceedings before a judicial authority exercising its jurisdiction or functions in Northern Ireland to prove that the person has done, or undergone, anything within subsection (1)(a) to (e), and(b) the person is not, in any such proceedings, to be asked (and, if asked, is not to be required to answer) any question relating to the person’s past which cannot be answered without acknowledging or referring to the conviction or caution or any circumstances ancillary to it.(3) Where a question is put to a person, other than in such proceedings, seeking information with respect to the previous convictions, cautions, offences, conduct or circumstances of any person—(a) the question is to be treated as not relating to any disregarded conviction or caution, or any circumstances ancillary to it (and the answer to the question may be framed accordingly), and(b) the person questioned is not to be subjected to any liability or otherwise prejudiced in law by reason of any failure to acknowledge or disclose that conviction or caution or any circumstances ancillary to it in answering the question.(4) Any obligation imposed on any person by any enactment or rule of law or by the provisions of any agreement or arrangement to disclose any matters to any other person is not to extend to requiring the disclosure of a disregarded conviction or caution or any circumstances ancillary to it.(5) A disregarded conviction or caution, or any circumstances ancillary to it, is not a proper ground for—(a) dismissing or excluding a person from any office, profession, occupation or employment, or(b) prejudicing the person in any way in any office, profession, occupation or employment.(6) This section is subject to section 101F but otherwise applies despite any enactment or rule of law to the contrary.(7) See also section 101G (meaning of “proceedings before a judicial authority” and “circumstances ancillary to a conviction or caution”).101F Saving for Royal pardons etcNothing in section 101E affects any right of Her Majesty, by virtue of Her Royal prerogative or otherwise, to grant a free pardon, to quash any conviction or sentence, or to commute any sentence. 101G Section 101E: supplementary(1) In section 101E, “proceedings before a judicial authority” includes (in addition to proceedings before any of the ordinary courts of law) proceedings before any tribunal, body or person having power—(a) by virtue of any enactment, law, custom or practice,(b) under the rules governing any association, institution, profession, occupation or employment, or(c) under any provision of an agreement providing for arbitration with respect to questions arising under that agreement,to determine any question affecting the rights, privileges, obligations or liabilities of any person, or to receive evidence affecting the determination of any such question.(2) For the purposes of section 101E, circumstances ancillary to a conviction are any circumstances of—(a) the offence which was the subject of the conviction;(b) the conduct constituting the offence;(c) any process or proceedings preliminary to the conviction;(d) any sentence imposed in respect of the conviction;(e) any proceedings (whether by appeal or otherwise) for reviewing the conviction or any such sentence;(f) anything done in pursuance of, or undergone in compliance with, any such sentence.(3) For the purposes of section 101E, circumstances ancillary to a caution are any circumstances of—(a) the offence which was the subject of the caution;(b) the conduct constituting the offence;(c) any process preliminary to the caution (including consideration by any person of how to deal with the offence and the procedure for giving the caution);(d) any proceedings for the offence which take place before the caution is given;(e) anything which happens after the caution is given for the purposes of bringing any such proceedings to an end;(f) any judicial review proceedings relating to the caution.Appeals and other supplementary provision101H Appeal against refusal to disregard convictions or caution(1) The applicant may appeal to the High Court in Northern Ireland if—(a) the Department of Justice in Northern Ireland makes a decision of the kind mentioned in section 101C(3)(b), and(b) the High Court gives permission for an appeal against the decision.(2) On such an appeal, the High Court must make its decision only on the basis of the evidence that was available to the Department of Justice in Northern Ireland.(3) If the High Court decides that it appears as mentioned in condition A in section 101A, it must make an order to that effect.(4) Otherwise, it must dismiss the appeal.(5) A conviction or caution to which an order under subsection (3) relates becomes a disregarded conviction or caution when the period of 14 days beginning with the day on which the order was made has ended.(6) There is no appeal from a decision of the High Court under this section.101I Advisers(1) The Department of Justice in Northern Ireland may appoint persons to advise whether, in any case referred to them by the Department of Justice in Northern Ireland, the Department of Justice in Northern Ireland should decide as mentioned in condition A in section 101A.(2) The Department of Justice in Northern Ireland may disclose to a person so appointed such information (including anything within section 101C(1)(a) or (b)) as the Department of Justice considers relevant to the provision of such advice.(3) The Department of Justice in Northern Ireland may pay expenses and allowances to a person so appointed.101J Interpretation: Chapter 5(1) In this Chapter—“caution” means a caution or a warning given to a person in Northern Ireland in respect of an offence which, at the time the caution or warning is given, that person has admitted,“conviction” includes—(a) a conviction in respect of which an order has been made discharging the person concerned absolutely or conditionally, and(b) a finding in any criminal proceedings (including a finding linked with a finding of insanity) that a person has committed an offence or done the act or made the omission charged,“disregarded caution” is a caution which has become a disregarded caution by virtue of this Chapter,“disregarded conviction” is a conviction which has become a disregarded conviction by virtue of this Chapter,“document” includes information recorded in any form and, in relation to information recorded otherwise than in legible form, references to its provision or production include providing or producing a copy of the information in legible form,“information” includes documents,“notice” means notice in writing,“official records” has the meaning given by section 101D(5).(2) Paragraph (a) of the definition of “conviction” applies despite Article 6 of the Criminal Justice (Northern Ireland) Order 1996 (S.I. 1996/3160 (N.I. 24)) (which deems a conviction of a person discharged not to be a conviction).(3) In this Chapter, a reference to an offence includes—(a) a reference to an attempt, conspiracy or incitement to commit that offence, and(b) a reference to aiding, abetting, counselling or procuring the commission of that offence.(4) In the case of an attempt, conspiracy or incitement, the references in this Chapter to the conduct constituting the offence are references to the conduct to which the attempt, conspiracy or incitement related (whether or not that conduct occurred).(5) For the purposes of subsections (3) and (4) an attempt to commit an offence includes conduct which—(a) consisted of frequenting with intent to commit the offence any river, canal, street, highway, place of public resort or other location mentioned in section 4 of the Vagrancy Act 1824 (as it then had effect) in connection with frequenting by suspected persons or reputed thiefs, and(b) was itself an offence under that section.”(2) In Article 2 of the Rehabilitation of Offenders (Northern Ireland) Order 1978 (S.I. 1978/1908 (N.I. 27) (interpretation), after paragraph (3) insert— “(3A) This Order does not apply to any disregarded conviction or caution within the meaning of Chapter 5 of Part 5 of the Protection of Freedoms Act 2012.(3B) Accordingly, references in this Order to a conviction or caution do not include references to any such disregarded conviction or caution.”(3) In the heading of Chapter 4 of Part 5 of the Protection of Freedoms Act 2012, at the end insert “: England and Wales”.(4) In section 92 of that Act, after subsection (5) insert—“(6) Except in relation to service disciplinary proceedings, this section applies only in relation to persons convicted or cautioned in England and Wales.””
“Posthumous pardons for convictions etc of certain abolished offences: Northern Ireland
(1) A person who has in Northern Ireland been convicted of, or cautioned for, an offence specified in subsection (2) and who has died before this section comes into force is pardoned for the offence if the conditions that apply under this section in relation to the offence are met.(2) The offences to which subsection (1) applies are—(a) an offence under Article 19 of the Criminal Justice (Northern Ireland) Order 2003 (S.I. 2003/1247 (N.I. 13)) (buggery);(b) an offence under Article 7 of the Homosexual Offences (Northern Ireland) Order 1982 (S.I. 1982/ 1536 (N.I. 19)) (procuring others to commit homosexual acts);(c) an offence under any of the following earlier provisions—(i) 10 Chas. 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)(buggery);(iii) section 61 of the Offences against the Person Act 1861 (buggery);(iv) section 11 of the Criminal Law Amendment Act 1885 (gross indecency between men).(3) In relation to an offence under Article 7 of the Homosexual Offences (Northern Ireland) Order 1982, the conditions that apply are that—(a) the conduct procured was conduct involving persons who consented to it and were aged 17 or over (whether or not that conduct occurred), and(b) the conduct procured would not now be an offence under Article 75 of the Sexual Offences (Northern Ireland) Order 2008 (S.I. 2008/ 1769 (N.I. 2)) (sexual activity in a public lavatory).(4) In relation to any other offence mentioned in subsection (2), the conditions that apply are that—(a) the other person involved in the conduct constituting the offence consented to it and was aged 17 or over, and(b) any such conduct at the time this section comes into force would not be an offence under Article 75 of the Sexual Offences (Northern Ireland) Order 2008 (S.I. 2008/1769 (N.I. 2)) (sexual activity in a public lavatory).(5) The following provisions of section 101J 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) to (Power to provide for disregards and pardons for additional abolished offences: Northern Ireland): supplementary)(1) (so far as relating to this section) as they apply for the purposes of Chapter 5 of Part 5 of that Act— (a) in subsection (1), the definitions of “caution” and “conviction”;(b) subsections (2) to (5).”
“Other pardons for convictions etc of certain abolished offences: Northern Ireland
(1) This section applies to a person who has in Northern Ireland been convicted of, or cautioned for, an offence mentioned in section 101A(1) of the Protection of Freedoms Act 2012 and who is living at the time this section comes into force.(2) If, at any time after this section comes into force, the person’s conviction or caution becomes a disregarded conviction or caution under Chapter 5 of Part 5 of the Protection of Freedoms Act 2012, the person is also pardoned for the offence at that time.(3) Expressions used in this section or section (Sections (Posthumous pardons for convictions etc of certain abolished offences: Northern Ireland) to (Power to provide for disregards and pardons for additional abolished offences: Northern Ireland): supplementary)(1) (so far as relating to this section) and in Chapter 5 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: Northern Ireland) to (Power to provide for disregards and pardons for additional abolished offences: Northern Ireland): supplementary)(1) as in that Chapter (see section 101J of that Act).”
“Power to provide for disregards and pardons for additional abolished offences: Northern Ireland
(1) The Department of Justice in Northern Ireland may by regulations amend section 101A of the Protection of Freedoms Act 2012 (power of Department of Justice to disregard convictions or cautions) so as to add further offences to the list of offences specified in subsection (1) of that section.(2) An offence may be added to that list only if—(a) it was an offence under the law of Northern Ireland (or, in the case of an offence that applied before Northern Ireland became a separate legal jurisdiction, an offence under the law of Ireland),(b) it has been repealed or, in the case of an offence at common law, abolished, and(c) either—(i) the offence expressly regulated homosexual activity, or(ii) although the offence did not expressly regulate homosexual activity, it appears to the Department of Justice that those responsible for investigating occurrences of the offence targeted occurrences involving, or connected with, homosexual activity.(3) Regulations under subsection (1) adding an offence may also amend section 101A so as to provide that, in relation to the offence, condition A is that it appears to the Department of Justice that matters specified in the amendment apply (in substitution for the matters specified in subsection (4)(a) and (b) of that section).(4) Regulations under subsection (1) may make consequential amendments of Chapter 5 of Part 5 of the 2012 Act.(5) Regulations under subsection (1) adding an offence must also provide for any person who has been convicted of, or cautioned for, the offence to be pardoned where—(a) the person has died before the regulations come into force or the person dies during the period of 6 months beginning with the day on which they come into force, and (b) the conditions specified in the regulations are met.(6) Those conditions must correspond to the matters that are specified in condition A in section 101A of the 2012 Act as it applies in relation to the offence (that is, the matters which must appear to the Department of Justice to apply in order for condition A to be met).(7) Subsection (5)(a) does not apply in relation to a person who dies during the period of 6 months if, before the person’s death, the person’s conviction of, or caution for, the offence becomes a disregarded conviction or caution under Chapter 5 of Part 5 of the 2012 Act (and, accordingly, the person is pardoned for the offence before death under section (Other pardons for convictions etc of certain abolished offences: Northern Ireland)(2) of this Act).(8) The regulations must make provision which has a comparable effect in relation to the pardons provided for by the regulations and the offences to which those pardons relate as section (Pardons for convictions etc of certain abolished offences: Northern Ireland)(5) of this Act has in relation to the pardons provided for by section (Pardons for convictions etc of certain abolished offences: Northern Ireland)(1) to (4) and the offences to which they relate.(9) The power to make regulations under subsection (1) is exercisable by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (S.I. 1979/ 1573)(N.I. 12)).(10) Regulations under this section may not be made unless a draft of the regulations has been laid before, and approved by a resolution of, the Northern Ireland Assembly.(11) In this section, “caution”, “conviction”, “disregarded caution” and “disregarded conviction” have the same meaning as in Chapter 5 of Part 5 of the 2012 Act (see section 101J of that Act).”
“Sections (Posthumous pardons for convictions etc of certain abolished offences: Northern Ireland) to (Power to provide for disregards and pardons for additional abolished offences: Northern Ireland): supplementary
(1) A pardon under section (Posthumous pardons for convictions etc of certain abolished offences: Northern Ireland) or (Other pardons for convictions etc of certain abolished offences: Northern Ireland), or under regulations under section (Power to provide for disregards and pardons for additional abolished offences: Northern Ireland), 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 sections (Posthumous pardons for convictions etc of certain abolished offences: Northern Ireland) to (Power to provide for disregards and pardons for additional abolished offences: Northern Ireland) or regulations under section (Power to provide for disregards and pardons for additional abolished offences: Northern Ireland) affects the prerogative of mercy.”
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, Amendment 181M is in my name and that of my noble friend Lady Hamwee. I tried to make it clear in Committee that the specific offence of being a suspected person loitering with intent to commit an indictable and later an arrestable offence under that specific part of Section 4 of the Vagrancy Act 1824 and how it was used against the black community is seen by the black community—and by many others, myself included—as as much of a clear historical wrong as the offences that we have just debated.
In Committee, the Minister suggested that, 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 Committee, I described exactly how, in circumstances where a person behaved in a way that would have amounted to an offence today, they would have been charged with a substantive offence—for example, attempted theft of or from a motor vehicle, or attempted burglary. I suggested that it was only when behaviour did not amount to an offence under other legislation that individuals would have been charged with an offence of being a suspected person under Section 4.
These offences are important and symbolic to the black community and how they have in the past been, and continue to be, discriminated against in the criminal justice system. I beg to move.
Lord Kennedy of Southwark
My Lords, this amendment in the names of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, was debated in Committee. It is fair to say that it did not get a warm welcome from the Minister in responding to the debate. I was surprised to learn that the Government had no data at all on the number of people affected by the law before it was abolished. Clearly, the amendment is not going to be accepted by the Government tonight, but the noble Lord is right to keep raising the issue and I hope that it will keep being raised. It is only by doing so that we can explore what options are available to us, what happened in the past and whether it was right and whether, with hindsight, the offence should have been removed from the statute books many years before it actually was, as it was used in a way that discriminated against black people.
I hope that, when the Minister responds to this short debate, she can focus particularly on the amendment. In her response in Committee, the focus was as much on the previous debate, so I hope that it can focus particularly on the points voiced before us here today.
Baroness Williams of Trafford
My Lords, I thank both noble Lords for explaining the amendment, which was of course also tabled in Committee, seeking to confer a pardon on persons, living and deceased, who were convicted under that part of Section 4 of the Vagrancy Act 1824 which was repealed by Section 8 of the Criminal Attempts Act 1981.
Section 4 of the Vagrancy Act 1824 was originally a wide-ranging provision, and some of it is still in force today. The part with which the noble Lord’s amendment is concerned is the offence of being a suspected person, frequenting, in effect, any public place,
“with intent to commit felony”,
or, as it became, an arrestable offence. The noble Lord has illustrated from his own experience, and the Home Affairs Select Committee identified in 1980, that this so-called “sus” offence was used in a discriminatory and unfair way, particularly in relation to young black men. However, as the noble Lord has also acknowledged, not every conviction under this provision, certainly not going all the way back to 1824, was wrong or unfair. In fact, the Home Affairs Select Committee concluded:
“The most powerful argument against ‘sus’ is that it is a fundamentally unsatisfactory offence in principle”.
Lord Paddick
I am grateful to the Minister, who perhaps lulled me into a false sense of hope and optimism by saying that the Government are not “currently” minded to agree to this. We clearly do not want to go back more than 200 years—I think the law was aimed at dealing with soldiers returning from the Napoleonic wars and begging in the streets—but where it is a question of discrimination against the black community perhaps we can do some work and target any future consideration more accurately. I am grateful to the noble Lord, Lord Kennedy of Southwark, for his support, and I beg leave to withdraw the amendment.
Lord Marlesford
“Anonymity before charge
(1) Section 37 of the Police and Criminal Evidence Act 1984 (duties of custody officer before charge) is amended as follows.(2) After subsection (10) insert—“(11) Where a person is accused of an offence but has not yet been charged, or has been released without charge (with or without bail), no matter likely to lead members of the public to identify them as the person who has been arrested for an offence shall be published or otherwise disclosed in England and Wales, except where subsection (12) applies.(12) This subsection applies where a magistrates’ court is satisfied that it is in the public interest to publish or disclose information of the kind described in subsection (11), and the court makes an order to that effect.””
Lord Marlesford (Con)
My Lords, in moving Amendment 182 on anonymity before charge, I refer to an earlier amendment which I moved in Committee on 2 November. It proposed substituting “lack of evidence” for “insufficient evidence” when police communicate a decision not to charge. Eight noble Lords spoke in support and I have now had the Minister’s letter of 1 December saying that the Government agree to replace the phrase “insufficient evidence” with revised wording which will be incorporated in fresh guidance, to take effect by next spring. However I am afraid that their suggestion of the words,
“the case failed to reach the evidential test”,
does not quite hit the spot. Frankly, “no case to answer”, would be better but that is probably a discussion for another day.
I am glad that the Government listened to the Committee. I am grateful to the Minister for using her influence on the Home Office. I hope she will do so again, after this debate. The matter is really very simple. There have, particularly in recent years, been a number of instances when the police have released the names of suspects or publicly identified them at a very early stage in their investigations into allegations and complaints, particularly of sexual impropriety. A most notorious example was on 14 August 2014 when the Yorkshire police arranged for the BBC to film and broadcast their entry into the house of the pop star Sir Cliff Richard. Sir Cliff must have gone through hell before it was eventually accepted that he had no case to answer.
There are many other examples. We may remember the wholly inappropriate way in which, on 3 August 2015, a superintendent of the Wiltshire police posed for television cameras in front of Sir Edward Heath’s final residence in Salisbury, encouraging people to claim that the former Prime Minister had misbehaved with children. The superintendent was launching an investigation on which the Wiltshire police have now spent over £700,000 of taxpayers’ money, with the chief constable of Wiltshire apparently determined to continue his fishing expedition indefinitely.
The method of fishing adopted by Wiltshire police seems to vary between the utterly naive and the patently absurd. I have been told by a former member of the Downing Street staff that they were contacted by one of the investigating officers, who asked, first, whether they had noticed any untoward incidents at any time in the behaviour of the then Prime Minister and secondly, whether they had noticed any young men slipping in and out of No. 10 Downing Street. Surely the Wiltshire police and crime commissioner has a role in pointing out the opportunity-cost of this farce and guiding the chief constable on priorities in the use of limited police resources.
In Committee a number of noble Lords raised this issue of the police being free to name suspects and the Minister is on record as saying that,
“it is absolutely right and proper for the police to have operational independence in deciding whether to name a suspect”.—[Official Report, 16/11/16; col. 1466.]
My response to that is simple. Searching a house is an operational matter, on which the police must make a judgment. However, to search a house they have to obtain a magistrate’s warrant before they do so. Indeed, the centuries-old requirement for a search warrant forms part of the fundamental protection of our liberties, under both statute and convention, which has its roots in Magna Carta.
The impact of modern social media means that naming suspects is a powerful weapon; indeed, sometimes even a lethal one. I am not saying that it is never sensible for suspects to be named, sometimes even at a very early stage in an investigation. In sexual cases, or cases of fraud, for example, it may be necessary for there to be publicity that will encourage other victims of the alleged offenders to come forward. Indeed, the media have always had an important role in exposing allegations in the pursuit of justice. However, the media have to follow court directions restricting reporting—and they do so.
Hitherto it has been left to the police to make a judgment on whether to name a suspect. However, it has now been shown that all too often the police cannot be relied on to make the right judgment. In their recent decisions on naming suspects they have aroused much public resentment and indignation. This has resulted not only in often irreparable damage to the reputation of innocent persons but undermined confidence in, and therefore support for, the police.
History teaches us the need for vigilance in the defence of liberty. In September 1793, at the height of the reign of terror during the French Revolution, the so-called Committee of Public Safety passed the Law of Suspects, which meant that suspects, once named, could be put under the guillotine without any trial. This continued until July 1794, when Robespierre himself was guillotined. We are a million miles from that. But the road is the same and we must not take a single step along it. It is to halt and, indeed, remedy an unacceptable situation that I am advocating the urgent need for a check on the exercise of unsupervised police powers to publish the names of suspects. That is why in Amendment 182 I propose that the police should be required to obtain a magistrates’ warrant before publishing the name of a suspect who has not been charged. I realise that my amendment as drafted may not be the full answer, but I am anxious that the Government should address what has become a serious problem. I look forward to hearing the views of other noble Lords and, of course, of the Minister. I beg to move.
Lord Paddick
My Lords, we have Amendment 187 in this group but, before I address that amendment, I would like to speak briefly to Amendment 182. In Committee, some noble Lords asked why sexual offences should be a special case when it comes to pre-charge anonymity. Amendment 182 addresses that question by including all offences. However, there are three reasons why we cannot support this amendment. As I will set out shortly, not only do we believe that sexual offences are a special case, but the law acknowledges that they are a special case in which the normal principles of free speech and open justice are restricted. We believe that these are important principles that should be restricted only in those cases where there are specific reasons for doing so. In sexual offences cases alone, the identity of the complainant or victim is protected. For similar reasons, we believe that the identity of the accused should be protected up until the point of charge.
Secondly, in Committee, we also heard compelling reasons why the accused should be able to lift the ban on publicising his identity, if he wishes. The accused may wish to complain at the injustice of his case or appeal for alibi witnesses to come forward, for example. Amendment 182, as drafted, would not allow that.
The third reason is that we do not believe the magistrates’ court is the right place for such a decision to be made. We believe that such an important decision should be considered by a judge of a higher court.
Amendment 187 is substantially different from the amendment we moved in Committee in a number of respects. First, it is as close as possible to the wording of the legislation that currently protects complainants or victims in sexual offences cases. Secondly, it allows the accused to lift pre-charge anonymity at any stage if he wishes to do so. Thirdly, as well as specifying the minimum rank of police officer who can make an application, and the Crown Court as the appropriate court for hearing an initial application from the police for the ban to be lifted, it would specifically require the judge to have particular regard to the possibility that further witnesses might volunteer evidence relating to sexual offences committed by the accused. We believe that such cases will be rare and such applications will be exceptional, as I will explain.
We had a long debate on this issue in Committee, and I do not want to make my case again as it is a matter of record. However, I want to address the remarks made by other noble Lords in that debate, having had an opportunity to reflect on what they said. I will address head on, and at an early stage, the shocking picture that is emerging of allegations of historic child abuse at football clubs. Most of the initial allegations that attracted so much publicity, and gave rise to the unprecedented number of further allegations being made across the length and breadth of the country, involved the former football coach Barry Bennell. Bennell was convicted of sexual abuse offences in the United States in 1994, and convicted of further sexual offences in the United Kingdom in 1998, and again in 2015, for which he served terms of imprisonment. These are not cases where pre-charge anonymity would have had any adverse effect. Indeed, I suggest that these cases point to a change in culture where victims of sexual abuse are more willing to come forward. Therefore, they undermine to some extent an argument against pre-charge anonymity on the grounds that victims need to be given confidence to name people who have been accused but not yet charged.
The noble Lord, Lord Pannick, made this point in Committee—that publicity can lead others to come forward with supporting evidence that helps to make the case against a person who is rightly accused. But what if somebody is not rightly accused? What if somebody like Nick comes forward and makes highly damaging and groundless allegations against individuals? Is it right that these allegations and the identity of the accused are put into the public domain? How do we safeguard against others coming forward with similarly damaging and groundless allegations, particularly when the details of the allegations are made public? There is a view that the law on similar fact evidence has gone too far and that this can result in convictions based on multiple uncorroborated allegations, all of which could be false. I am not legally qualified to comment, but surely a balance needs to be struck between shoring up uncorroborated allegations by trawling for others and protecting the reputation of the accused.
Lord Lamont of Lerwick (Con)
My Lords, I shall speak to Amendment 187. I do so with very great hesitation. I apologise to the noble Lord, Lord Pannick, for speaking before him. I feel great reticence, speaking on this as a non-lawyer. That may be key: I have got in early to speak before I can be corrected by all the lawyers. I have not entirely made up my mind. I am speaking to the amendment; I will listen very carefully to what the Minister says.
The reason I am speaking in the debate at all is because I feel I owe it to the memory of my friend Lord Brittan. He was also the friend of my noble friends Lord Howard and Lord Deben. I saw a lot of Lord Brittan in the final weeks of his life. I saw the tremendous suffering caused to him by being wrongly accused of a rape offence. The Henriques report concluded that the proceedings against Lord Brittan should have been ended much earlier. It catalogued a whole series of mistakes, in this case and in others. There was a total of some 43 errors.
It is the case of Lord Brittan that prompted me to intervene, but the last thing that I would argue, or that he would have wanted argued, is that this is about important people or public people. This is about everybody who might find themselves in this sort of situation.
I acknowledge, too, the argument that the noble Lord, Lord Paddick, to some extent refuted about why there should be an exception only for cases of a sexual nature. Personally, I would toy with the idea of going much wider than just offences of a sexual nature, as I believe Commissioner Hogan-Howe would also argue.
I have seen the letter sent by the End Violence Against Women coalition to Cliff Richard and Paul Gambaccini. It talks about the amendment proposing defendant anonymity. It is not. A defendant is a person who has been charged. Up to that point they are accused. The noble Lord, Lord Paddick, referred to the ambiguity of the word “accused”. I was glad he did, because I wondered whether I was the only person who felt this as a lay man. It is not very clear to me but, as I understand it, “accused” might include interviewed under caution or arrested under bail. Is it really right that a person’s name should be released to the public and the press simply because they have been interviewed under caution when no further action is taken?
I remember particularly vividly a case which, while not a sexual case, made a big impact on me. It was the case of the teacher, Mr Jefferies, who lived in Bristol in a flat next to a poor girl who had been murdered. I do not know whether it was the police who released it or how his name came to be in the public domain, but I cannot imagine the suffering. I think Members of this House have had letters from Mr Jefferies about what he suffered and the damage to his reputation. People just assume that the damage to someone’s reputation will go away because charges do not follow but that is not reality. That is not what happens; there is always an element of the public who think, “No smoke without fire”, and there is permanent damage to an individual’s reputation, which can be absolutely life shattering.
Naming people before charging undermines the presumption of innocence at the heart of our system of justice. Usually, when people’s names are released it is seriously damaging to their reputation, even if they were not charged but just held for a period or their home was searched. The public are not always very rigorous in observing, in their own discussions or in what is written, the principle that one is innocent until proven guilty.
I also wonder, as a non-lawyer, about the effect on the trial itself. It is one thing to talk about the effect on the individual, but what about the effect on the trial of releasing someone’s name before it? How quickly will a jury be able to forget the evidence that has been put forward?
The argument that is made for pre-charge publicity is that it will bring forward further possible victims and allegations that can be followed up. Therefore, crimes can be pursued, but does that really have to be pre-charge? Such further evidence can also come forward after a person has been charged. We know that such situations can lead to false claims being made. I am not suggesting for one minute that false allegations of rape are common—they are not; I know that—but some of the evidence we have seen of historical sexual abuse has indicated that there have been cases where some people have come forward with allegation that are completely false. They may have seen the names of people on television and somehow convinced themselves. Sometimes it is people who are not very well who make these allegations.
It seems to me that the rights of the innocent are extremely important. I hope that, whatever arguments the Minister puts forward, she will not use the phrase “It is a question of finding the right balance” too much. The rights of the innocent are extremely important. The noble Lord, Lord Paddick, quoted the old maxim, which I was going to quote myself, “Better that 10 guilty men go free than that one innocent person be convicted”. I have the greatest possible sympathy with the amendment of the noble Lord, Lord Paddick. I will listen to the Minister and then make up my mind, but regardless of whether I vote or do not vote for the amendment, I absolutely want to be convinced that something will be done about this situation. Nothing has been done about it and I cannot imagine that we will be happy if the amendment is rejected and nothing further is done. I remain convinced that there has been a lot of suffering and a lot of injustice done in the present situation.
Lord Pannick (CB)
My Lords, this is a very difficult issue. The speeches that your Lordships have heard from the noble Lords, Lord Marlesford, Lord Paddick and Lord Lamont, make a very powerful case. I cannot agree with it and I shall briefly attempt to explain why. The starting point is that we must all, of course, have enormous sympathy for Sir Cliff Richard, Paul Gambaccini, Lord Bramall, Harvey Proctor, the late Lord Brittan—and, of course, Lady Brittan—and the many others who have been wrongly accused of sex offences. They have been subjected to what is, on any view, an outrageously unfair procedure. I agree with the noble Lord, Lord Lamont, that they have been caused irreparable harm by a combination of the absence of any credible evidence for the allegations, the length of time it has taken the police to investigate these matters and the contempt of the police and the public for the presumption of innocence, to which the noble Lord, Lord Lamont, averted. In a famous 1935 case, Lord Sankey, the Lord Chancellor, called the presumption of innocence the “golden thread” that runs through our criminal law. It is very regrettable that so many of us, and our newspapers, proceed on the opposite principle that there is no smoke without fire, even when the smoke is no more than the hot air blown out by deluded fantasists. On that, I entirely agree. There is simply no dispute about that.
The question is whether either of these amendments is a sensible way forward, and in my view they are not for three reasons. First, in the context of alleged sex offences, publicity can lead, and has led, to witnesses coming forward with supporting evidence that helps to convict a person who is rightly accused and—this is the way the world works—it may be that only on hearing that an allegation against a named person is being taken seriously by the authorities do potential witnesses who say that they suffered the same problems and attacks in the past have the confidence to come forward. The noble Lord, Lord Lamont, pointed out that these people can come forward after a charge is brought, but the problem is that if supporting witnesses do not come forward at an earlier stage, a charge may never be brought. The prosecution authorities may not proceed. Of course, as the noble Lord, Lord Paddick, rightly said, some of those who come forward will not be telling the truth. That is undoubtedly correct, but the legal process addresses that issue in a trial. It is not sufficient that these amendments would allow a judge to give permission to publicise the identity of the person who has been accused. I do not see how a judge will be able, in any particular case, to assess the likelihood of unknown witnesses coming forward.
The second reason why I am troubled by these amendments is that there is, sadly, still great reluctance by victims to report allegations of rape and sexual offences. There is no ban on publicising the names of persons suspected of other serious offences, such as murder or terrorism, and—the noble Lord, Lord Rosser, made this point in Committee—there is real concern that to give a special privilege to those accused of sexual offences could exacerbate the concern of many alleged victims that the law does not take sexual offences as seriously as it should, so making it even less likely that they will report the allegations. I do not think it is an answer for the noble Lord, Lord Paddick, to point out that the law grants anonymity to the alleged victim in sexual offences cases. The alleged victim is granted anonymity because of concern that publicity would deter complainants from bringing forward their allegations, which is an entirely distinct argument.
The third reason is the one given in Committee by the noble and learned Lord, Lord Judge, who I am pleased to see in his place. It is that under these amendments it would be unlawful to tell the public that a person suspected of a serious crime has been arrested and so has lost their liberty, albeit for a short period. I think the noble Lord, Lord Paddick, misunderstood this point, which was not that a person could be held incommunicado.
Prohibiting publication of who is accused and of what in this context would be wrong in principle. It would deflect attention away from the true mischief, which is the lack of respect for the presumption of innocence. Indeed, as the noble Baroness, Lady Williams of Trafford, said from the Front Bench in opposing a similar amendment in Committee, at col. 1466, to enact an amendment of this sort conferring anonymity would serve only to undermine the presumption of innocence of those who are accused of sexual offences.
Lord Morris of Aberavon (Lab)
My Lords, I support Amendment 182 and am grateful to the noble Lord, Lord Marlesford, for moving it. Having spent over 50 years as a criminal lawyer, interspersed with ministerial office, I hope I have some knowledge of how the criminal law operates and of how the police operate too. I fully understand the concern that my Front Bench may express that it is important to send a strong message to potential and current victims. Of course that is important, but it is also important that a strong message goes from this House that we are concerned that justice is seen to be done to all, which is equally important. That was always a guiding light when, as attorney, I had to take decisions of this kind. The presumption was that every person is innocent until he is proved guilty. I venture to suggest that my experience in this field may not be unhelpful, as a prosecuting and defending practitioner, as a Crown Court recorder for more than 20 years and as Attorney-General, when I had to take personal decisions to prosecute and to ensure the balance was right and give appropriate instructions to those who actually prosecuted.
We have heard the expression this afternoon, “No smoke without fire”. It is an old adage. Cases in recent years have been totally unacceptable. The picture of the police superintendent standing outside the house of Sir Edward Heath and inviting persons to come forward reminded me of what might have happened in Nazi Germany. Leon Brittan did not know at all, and his family did not know until he was dead, that he had been exonerated. Lord Bramall, in very difficult circumstances, had every part of his house searched; Sir Cliff Richard, likewise. I would like to know in detail exactly the operational reasons for disclosure. Should they not be spelled out and should they not be supervised by someone? Why should they be the decision of any police officer who would like to disclose a name rather than having this supervised by a court?
Frequently we hear reports in the press that a white or black, middle-aged man has been arrested in south London, and in the usual kind of case that is more than adequate. I remember when Denis Healey, my former boss, was breathalysed on the way out of this House after attending a dinner. It was in every newspaper the following morning. Why was that? Did any money change hands for the disclosure of that suspected offence? Of course it took two or three weeks for him to be fully exonerated. This is what happens in real life, and I have often wondered, as a practitioner, why it is the same kind of solicitors that turn up at a particular station when somebody important or in the public eye is arrested. I wonder why. It needs investigation, clarification and supervision. I have tried to get the Law Commission to consider this problem. We should have all the arguments on both sides looked at properly, and those of us who are anxious would know what is the better solution. Because there is controversy in this House, its attitude and the attitude of Her Majesty’s Government is that they will not investigate. The problem will not go away. It offends my sense of justice to have anyone in the public eye given all this publicity when eventually it turns out that there is nothing in it. Any one of us might be put in this position, and people would come out of the woodwork to make allegations, as they tend to do.
Of course, if it is of help that a name is published, let us have it supervised by a judge. That is the basic control that is required. As the noble Lord, Lord Lamont, indicated earlier, if people are to be encouraged to come forward, why do they not come forward after a charge has been made? After a charge, everyone would know that a particular person is going to go before a court. Why should it be at the moment of arrest, when the evidence is only one-10th complete at that stage in many cases? I support the amendment.
Lord Deben (Con)
My Lords, as a non-lawyer, I hesitate to disagree with the noble Lord, Lord Pannick, but it seemed to me that he undermined his case right at the beginning when he said that there were allegations that were ridiculous and had no basis at all, yet the police announced these allegations to the world. I happen to know about this because, as I was seen at the funeral of my late friend and colleague, Leon Brittan, I was for some time followed by certain people claiming that they had evidence of his wickedness. They were silly enough to state that evidence, which was total nonsense. It was without any foundation. It could not have been true.
However, I do not want to talk about my friend. I want to talk about somebody whom I do not know at all, although I have met him: Lord Bramall. The allegation against Lord Bramall could have been proved to have been entirely wrong merely by looking at the date on which it was claimed, because at that point he was in a public place, at which it could not have been as alleged. The issue is not that we wish to restrict the opportunities of giving to others the chance to come forward. It is simply, narrowly, to say that somebody other than the police has to be involved before such an announcement is made in public.
There are too many examples of the police giving information to others in all sorts of circumstances. A relation of mine was in precisely such circumstances. What the police told the press was entirely proper and complimentary, but she did not want that to be given out. But the police did—they were clearly paid for it—and it resulted in a long and extremely congratulatory article. The issue was that the police decided that they would make that decision, when there was no reason for it. That was a happy example, but there are some terrible examples. I say to the noble Lord, Lord Pannick, that we cannot live in a society in which there is no guard against those who give out such information before a charge has been laid.
All we are saying—the two amendments have different ways of doing this and it may be that neither is satisfactory—is that it should not be up to an individual policeman or an individual police force to make this kind of allegation before there is any charge. It should go to someone else. If I may say so to the noble Lord, Lord Pannick, this someone else may not be able to judge whether allowing this will bring forward more witnesses, but what he or she is able to judge is whether it is a load of old rubbish. At least he or she can assess whether what is proposed as the basis for investigation has some foundation. That is why it is perfectly proper to say that a judge or a magistrate might take this role.
I therefore beg my friend—I can call him that because the noble Lord and I are usually on the same side—to recognise that it is too dangerous an insult to the British legal system for people to be seen as guilty when they are innocent on the say-so of an individual policeman. All I am asking is that it should be on the say-so, in the quietness and care of a proper circumstance, of someone whose future does not depend on the publicity, who can look at the evidence and say, “Really, officer, I don’t think there looks like being anything in that because of x, y and z. Perhaps you might find out more about it before you move in this way”. That is what we ask.
Lord Pannick
Before the noble Lord sits down, does he think it is in the interests of the potential defendant for a judge to determine that there really is something in the allegations, and therefore to authorise that publicity is appropriate? Is that not seriously damaging to the presumption of innocence?
Lord Deben
Not at all. The fact is that what the judge would be deciding is whether that name should be put forward at that point, and in most cases he would probably say no. I can think of very few cases when publishing the name in connection with an allegation would reduce the number of people coming forward if that name were later published at the point of an actual charge. It would therefore affect a limited number; in fact I do not believe there are any in this group. But if there were, I would want someone to be able to say, “In this particular case, it is so important that I will allow it to be done”.
Lord Lester of Herne Hill (LD)
My Lords, like the noble Lord, Lord Pannick, I was not intending to take part in this debate. However, with his great skill as an advocate, he has persuaded me to support my noble friend Lord Paddick’s amendment. I want to try to explain why. The main reason is that the noble Lord, Lord Pannick, with his usual brilliant, destructive analytical skill, has explained objections to the amendments but has not answered the fundamental question from the noble Lord, Lord Lamont: what safeguards does he propose to put in place of either or both these amendments? I am sure we will hear that from the Minister in her reply.
As a lifelong friend of Leon Brittan and his wife, during that one year while he was dying I witnessed the destruction of both of them through the callous misconduct of the police service, to which there was and is no effective remedy. The United States, which takes due process very seriously under its written constitution, has not abolished the grand jury. When the grand jury is investigating a federal crime, the one thing that is absolutely clear is that there must be no publicity for any of the evidence that it is investigating before deciding whether to recommend that the prosecution should be brought. The reason for that is the same reason that noble Lords have expressed today about the unsatisfactory nature of our legal system at present—it is the need to protect the innocent before the presumption of innocence has been applied at a trial.
Whether either of these amendments is acceptable or not, I believe that some kind of safeguard is needed—not just through guidance or a code of practice, but a binding legal rule that will protect people in the position of Lord and Lady Brittan from the kind of scurrilous allegations that were made, and the misconduct of the police in failing even to tell them before he died that they were satisfied there was no evidence against him. They allowed him to die not knowing that. There needs to be a prophylactic rule. If the Minister is against these amendments, I ask her to indicate in answer to the noble Lord, Lord Lamont, what the Government propose instead.
Lord Campbell-Savours (Lab)
My Lords, I have spoken about this issue on a number of occasions over the years, most recently in Committee on this Bill. I start where I left off on the last occasion, when I quoted the case of a woman who rifles through the dustbin of a reputable consultant, finds a used condom, smears the contents on herself and makes a false allegation of rape. As the accused has no right to anonymity, he is suspended as a consultant psychiatrist, hauled before the GMC, shunned by his friends, attacked on the internet, loses £100,000 that was part of his income, and is totally discredited in his own community. A life destroyed as indeed was the case made by Cliff Richard when he recently attended a meeting in the House.
I do not want to do a rerun of the speech I gave on a previous occasion. Suffice to say that the noble Lord, Lord Paddick, on that occasion and on this occasion, as a former serving police officer, in my view—and I say to others to read what he said in Committee—made the case completely. My contribution on that occasion was a modest add-on, as indeed it will be today. It will be about the political background to this matter.
Over the years, the resistance has essentially been in the Commons, but the Commons membership has now changed. Anyone who knows procedure in the Commons will know the position there is very different from in here. One can table an amendment in here and have it heard; in the Commons that is not the case. It has to go through two obstacles. First, it might not be selected by Mr Speaker, because there is a selection of amendments in the Commons. Secondly, it might not be heard because of the procedural changes that were made at the beginning of this decade in the use of the guillotine and timetabling in the House of Commons. I am arguing tonight that we please give the Commons the opportunity to consider again this matter, which it has not been able to consider for some years.
What support do we have for the change? The fifth report of the Home Affairs Select Committee in 2003 unanimously said, in the Commons, that,
“we believe that sex crimes do fall ‘within an entirely different order’ to most other crimes. In our view, the stigma that attaches to sexual offences … is enormous and the accusation alone can be devastating. If the accused is never charged, there is no possibility of the individual being publicly vindicated by an acquittal”.
This all-party Select Committee in the House of Commons in 2003 went on to recommend unanimously,
“that the anonymity of the accused be protected only for a limited period between allegation and charge”.
Then in 2003 an amendment was moved by Lord Ackner, whom some Members may recall. I understand that he was a prominent Silk, much called on nationally for his services, and a judge. I want to read the wording of his amendment in 2003 on “Anonymity of defendant in rape etc. cases”:
“The defendant in rape etc. cases shall enjoy the same right to anonymity as is enjoyed by the complainant”.
In other words, he was arguing for anonymity not just at charge nor even to conviction but beyond, in the event that a person was not found guilty. I have the Division list here. When that matter was brought before this House, all those on the Conservative Benches—who I am told are being whipped today; I hope that is not the case—voted in favour of the Ackner amendment for anonymity through the whole process, which would mean that, if someone was not convicted, they would retain their anonymity and would be identified only in the event of a successful conviction.
My noble and learned friend Lord Falconer argued during the same Bill that pre-charge and accused persons should not be named. He supported ACPO guidance. That is one of the problems: the guidance does not work. That is why we are standing here today. If the current guidance worked, there would be no need for an amendment. It does not work. My noble friend Lady Kennedy of The Shaws, who is unfortunately—
Lord Campbell-Savours
Oh, she is here. What my noble friend said is very interesting, because she is one of the great lawyers on our side specialising in human rights. Perhaps I may draw attention to her view at the time on anonymity right through to conviction. She said:
“I strongly urge that this House does not consider allowing anonymity for anyone who is charged with rape. But the Government might look sensitively at the issue of whether someone should be covered with anonymity until the point of being charged … The reason that women will come forward when they see that a man has been charged with rape is because they are confident that they will not be so readily disbelieved if he is clearly doing it to other women”.—[Official Report, 2/6/03; col. 1085-6.]
It is quite clear that, at that time, my noble friend at least had some sympathy for the principle behind today’s amendment.
The former Prime Minister, David Cameron, told Parliament that he believed that,
“there was a case for saying that between arrest and charge there was a case for anonymity”.
“I think”, he went on to say,
“this does represent a good way forward”.—[Official Report, Commons, 2/6/10; col. 428.]
My right honourable friend Caroline Flint, speaking on behalf of the Labour Party in the House of Commons, said,
“the serial nature of the crime that we are talking about is important, because when a crime is reported and people hear the name of the person who has been charged, they feel confident to come forward and stand by the victims”.—[Official Report, Commons, 7/6/10; col. 150.]
Even there, from a spokesman from the Labour Front Bench in the Commons, is an admission that, post-charge, people do come forward. I am not claiming that she would support me on this amendment, but I ask the House to judge her view on the basis of the record to which I just referred.
The Home Affairs Select Committee report in 2014 stated:
“We recommend that the … right to anonymity should also apply to the person accused of the crime, unless and until they are charged with an offence”.
In other words, for the second time the Home Affairs Select Committee of the House of Commons, only two years ago, made the same recommendation—again unanimous.
We then have Sir Bernard Hogan-Howe, a practitioner in the field dealing with these matters. He too says he supports pre-charge anonymity.
Finally, there is the letter of 24 March last year from Theresa May, who is now the Prime Minister, to Keith Vaz, which says:
“The Government accepts the committee’s conclusion”—
that is, the report I just referred to, supporting pre-charge anonymity—
“that there should, in general, be a right to anonymity before the point of charge, but there will be circumstances in which the public interest means that an arrested suspect should be named”.
All these assurances are diluted by the guidance being given to police officers, because that guidance does not work. It is about time that we stood up in Parliament, recognised the deficiency in the way the law is operating and put on the statute book something that requires police officers to operate in a particular way. In this case, as the noble Lord, Lord Paddick, suggests in his amendment, they should at least be required to apply to a judge for permission to release a name.
The product of all this law as it currently exists, and the present arrangements, is that reputations are undermined, families are discredited—as I said in my contribution in Committee—there are suicides, public lives and reputations are destroyed, and individuals are sacked from their employment. I have a desk full of letters written over the last 15 years by men all over the country—many of them in prisons; we do not know what happened in those particular cases—objecting to the way the law works.
I implore the House: please give the House of Commons the opportunity to reconsider this matter. If I lose in the Commons, fair enough—but at least give the Commons the opportunity. It is in our hands. If we vote for the amendment tonight, the Commons will reconsider the matter.
Lord Carlile of Berriew (LD)
My Lords, I support what has just been said by the noble Lord, Lord Campbell-Savours, and the amendment tabled by my noble friend Lord Paddick. I apologise for not having been here right at the beginning of the debate. Reflecting something said by the noble Lord, Lord Campbell-Savours, I should state that although this issue affects a number of Members of your Lordships’ House, it affects multiples of ordinary people who are not Members of your Lordships’ House, who have been affected by regional publicity in such cases.
I am almost as dyed in the wool—indeed, dyed in the Welsh wool—a criminal lawyer as the noble and learned Lord, Lord Morris of Aberavon, and I recall two criminal trials in which I appeared that particularly disturb me. In one, which I prosecuted, the defendant was, to my enormous surprise, convicted and sentenced to 12 years’ imprisonment, and had to wait a number of months before the Court of Appeal overturned the conviction on very good grounds. In the second, a case in which I defended, my client was convicted of a number of offences and subsequently, after I had been sacked as his counsel, deservedly won his appeal. Those are just examples of the many cases up and down the country in which local and regional publicity has been a powerful driver.
I want to make two points—they are of quality—which were not covered by the noble Lord, Lord Pannick, either in his speech this afternoon or in the article he wrote on this subject, which I read a little time ago. The first relates to the quality of non-recent sexual offences. In relation to most offences on the criminal calendar, there is no doubt that a crime has been committed and the investigation is as to who committed that crime and whether that person interviewed was involved in that crime. In the case of non-recent sexual offences, it does not need me to persuade your Lordships’ House that there have been numerous allegations of offences which never occurred. The damage that can be done—wherein I move to my second point—when the police work on the assumption that the complainant, often called the victim, is telling the truth means that those cases are quite different. I am not making this up.
Viscount Hailsham (Con)
The noble Lord ended his remarks by saying that a grave injustice is caused to those when you have publicity of the kind identified, and I entirely agree. It has been very well illustrated by what my noble friends Lord Lamont and Lord Deben said about Lord Bramall and Lord Brittan. I was Lord Brittan’s PPS in the other place and I know how deeply distressing the allegations were. That also applies to Harvey Proctor; the allegations against him were wholly grotesque and must be immensely damaging. So there really is an underlying mischief of a very serious kind. My noble friend Lord Marlesford and the noble Lord, Lord Paddick, are much to be congratulated on bringing forward these amendments.
If I may say to the noble and learned Lord, Lord Morris of Aberavon, my former pair for a short period of time in the other place, he is absolutely right—the problem will not go away. That means that we have an opportunity to address it. It is a continuing problem for this reason: usually the information is disclosed by a police officer, usually for money. That is not going to go away unless we intervene by statute. The truth always is that, if you give power to officials or opportunities to officials, on occasion they will abuse it. The noble Lord, Lord Lester of Herne Hill, rightly asked about the safeguards. Although I look forward very much to my noble friend’s contribution from the Front Bench, I do not think for one moment that there are effective safeguards outside statute.
I turn briefly to the amendment proposed by my noble friend Lord Marlesford, Amendment 182. I agree with one part of it very robustly. His is much more far-reaching than is the amendment proposed by the noble Lord, Lord Paddick, because it applies to all offences—and I think that he is right about that. Allegations of fraud can achieve very high publicity and be immensely damaging, so I have a great deal of sympathy with the scope of Amendment 182. Where I have greater doubt is with two other parts of the amendment. With respect to the accused person, there is no provision for him or her to consent to publicity as there is in the amendment proposed by the noble Lord. Secondly, I am uncomfortable about the concept of the magistrates’ court being the court in which representations as to public interest are to be determined. I am in favour very much of what the noble Lord says with regard to the judge of the Crown Court.
The noble Lord, Lord Pannick, is a much more distinguished lawyer than I am ever going to be, but there are two points that I would make. First, he says that there may be occasions when an accused person will not be charged because witnesses will not come forward, absent publicity. There is truth in that, but then you have to look at the proportionality of the whole. Yes, there may be one or two such cases, but for an awful lot of cases great injustice will be done to people against whom allegations are made that are wholly unfounded. Finally, the noble Lord suggests that the judges in chambers will not be able to assess and determine the relevant arguments and whether there is a public interest in disclosure. There may be some force in that, but I think not much at the end of the day, because judges in chambers and Crown Court judges are pretty experienced about this sort of thing. They will have to consider quite frequently public interest immunity certificates which have very broad quality concerns attached to them. So in applying the principle of proportionality, the argument advanced by the noble Lord, Lord Pannick, is wrong in that respect. I make one rider: I hope that the rules of the court which will doubtless be introduced if the amendment is passed will make provision for the person against whom the allegations are made to have the opportunity to make representations to the Crown Court judge.
With respect to my noble friend Lord Marlesford, I shall not support his amendment, should he seek your Lordships’ opinion—but, unless my noble friend Lady Williams surprises me with her argumentation, I shall support the amendment proposed by the noble Lord, Lord Paddick.
Baroness Kennedy of The Shaws (Lab)
My Lords, I am glad I arrived in time to hear my noble friend Lord Campbell-Savours praying me in aid of this amendment, because I do indeed support it. That may surprise many people, because I am ardently an exponent of justice for women and keen to see that the system is alert to the ways in which women often are failed by it. I have written about this for all my professional life of 40 years in the courts. I take this position and I have not changed, my noble friend will be happy to know.
At the time, back in 2003, the point that I was making in opposing Lord Ackner’s amendment was that Lord Ackner was taking issue with the fact that women got anonymity so why should not poor men charged with rape get anonymity? He suggested having equality. It was an argument that was, I am afraid, familiar to me from old judges: “You want equality, Ms Kennedy, we will give you equality”. It did not take account of the fact that the lives of women in society are so often different from those of men. With rape, particularly, women often just could not face coming before the courts to testify against the person who had raped and violated them. I do not have to rehearse in this House the whole baggage around rape: we know why women have been handicapped in coming forward and why the statistics are so low. We know the difficulty of dealing with things that happen in private, but we also know the ways in which women’s whole lives would be affected by the sense of dishonour attached to rape, and for many women this is still the case. Many more women are becoming brave and saying they do not need anonymity but it was given to women in the 1970s to try to redress the balance of law’s historical failure. It recognised something that I want to say very slowly to this House: treating as equal those who are not equal does not create equality.
We do justice by looking beyond the courtroom doors and knowing what really goes on in society. For that reason, we introduced anonymity into the system when that flew in the face of principle. We do not want anonymity in our courts. We want people to stand there and accuse, to face their accuser and to hear what the evidence is. We want justice to be open and for the public to hear it. But the decision was made to give anonymity to women to encourage them to come forward when these terrible events had happened to them. Lord Ackner advocated—and he found some friends in the House—that we had equality in 2003 and should treat everybody equally. But if we had equality, we would not still be hearing women arguing for equal pay and about domestic violence and violence towards women.
You cannot give total anonymity to an accused all the way through a trial because we know that there are cases where people come forward at the right point and say, “This happened to me, too”. If the Savile case and others have taught us anything it is precisely that. However, you do not solve one injustice by visiting another injustice on people. That is why I feel very strongly that the police should not disclose names until the point of charging. We have here a rather unpleasant alchemy of the police and media coming together. I have worked on many cases where a tip-off was given by police to the press who were then standing outside the police station to photograph people as they exited. It never comes to a charge, but the accusation has already been made. Why does that happen, you may ask yourself? In the old days it used to be because the police officer had been promised a drink or a case of whisky would be sent round at Christmas from the local newspaper or a more major national one. I am afraid it could take even more unpleasant forms than the drink at Christmas.
I remind the House that not long ago a woman called Rebekah Brooks—then Rebekah Wade—gave evidence to a Select Committee about the amount of money paid by her newspaper to police officers for precisely the kind of information we have been talking about, which blights people’s lives. From Cliff Richard to Paul Gambaccini, a whole set of people have suffered the consequences of this kind of publicity. The strength of this amendment is that it is not saying that the door is closed. Many women are assisted by the fact that other women will ultimately come forward because they hear that a charge has at last been brought against somebody. They are not standing alone and then they have courage. However, you also have to prevent other injustices. That is why you protect people by giving them the cover of anonymity until the point of charging. Then, and only then, should a name be put into the public domain.
How do we deal with police misbehaviour? I know there are noble Lords who do not think the police ever misbehave: they do. Happily, it does not happen as often as many people think but it is too often and police misbehaviour is behind most of this kind of publicity. If the standing order is not working and the principles are not being adhered to, how can you give teeth to preventing police officers doing this? The only way is if they face sacking or prosecution if they are discovered to have interfered with due process. We must have stronger responses to police misbehaviour of this kind.
Lord Mackay of Clashfern (Con)
My Lords, the issues raised by these amendments are extremely difficult. First, in view of all that has been said, it is difficult to distinguish, from this aspect, between sexual offences and other offences. There is much to be said for the view that if pre-charge publicity is to be outlawed, it should be so for all offences.
My second point relates to the safeguard, embodied in the amendment tabled by my noble friend Lord Marlesford and the noble Lord, Lord Campbell-Savours, of application to a magistrates’ court for an order. I think I am right in saying that in respect of both Lord Bramall and Sir Cliff Richard there must have been a warrant to search their homes. A warrant of that kind must have been based on some sort of evidence that was accepted by, I assume, a magistrate. There is, therefore, a question about whether it is a sufficient safeguard for a magistrate to give the order. As the noble Lord, Lord Pannick, has said, if a judge has said that there is enough to go forward, there is a slight difficulty in the clear way to a trial because a judge has already come to some point of view. However, that point of view is not that the accused is guilty; it is that there is sufficient difficulty in the evidence that in that judge’s judgment it would be right, in the interest of justice to all parties, for publicity to be allowed. There is a lot to be said for the view that publicity, up to the moment of charge, should not generally be allowed for sexual offences or others.
I have not found it easy to come to a conclusion about this and I have thought about it a fair amount. I have come to the conclusion that Amendment 182 is better but I would like to see a possible modification, in the light of what I have said, of the responsibility for allowing the matter. As I said, I think there were magistrates’ warrants for search in the two cases I mentioned: they turned out not to be particularly satisfactory.
Lord Judge (CB)
My Lords, I have been quoted on both sides, so I want to say something for myself. The most shocking aspect, to me, of the issues we are discussing was the BBC helicopter flying overhead while Sir Cliff Richard’s home was searched. There are many different aspects. Many of your Lordships have spoken today of your concerns about individuals you have known or individuals about whom you have known, who have been, in effect, traduced and brought low by publicity in the way in which we have been discussing. I do not support any such publicity, but I respectfully wonder whether we are addressing the wrong remedy in the wrong Act. For example, what is there to prevent a simple Act of Parliament that makes it a criminal offence for a police officer to disclose the name of any individual who is suspected of a crime, before he has been arrested? It should not be too difficult.
I do not want to repeat what I said last time, but the problem I invite noble Lords to consider is this. An arrest has to be justified. An arrest that is not based on reasonable grounds for suspicion is unlawful. Notice that I pick the moment of arrest—I am not talking about the allegation or the police officer telephoning the local press to say, “We are about to arrest the local schoolmaster”, or whatever it may be; nor am I addressing the issue in the context of sexual offences. The same story should apply to all offences.
An arrest must be lawful. Please can we bear in mind what the consequences of a lawful arrest are? You are detained. You are removed from your home, if that is where you are on arrest, or the street, the town or the city, or your office, or even when you are out having a drink with your friends. You are removed and you are not a volunteer: you have to go. If you resist arrest, you are committing an offence, and down to the police station you go, if that is where they take you. But you are completely in the hands of the arresting officer, and you go through a process. You remain detained, either while further investigations are made or until such time as further evidence emerges or it is decided that, after all, you can be allowed to go, for now, on bail. This is a process that nobody goes into voluntarily. Please can we remember that it is the first stage in the operation of the criminal justice process—and often, of course, culminates in a trial, conviction and sentence.
My concern about both these amendments is that they fail to address the problem that arrest is part of the criminal justice process. If they are adopted or if either one is adopted, we end up not with a situation that is incommunicado, if I may say so to the noble Lord, Lord Paddick. We end up with a veil being drawn against any reporting of the fact that one of our fellow citizens has been arrested. I find that troublesome.
The idea of criminal justice being secret is abhorrent to all of us in this country; we do not want formal trials to be conducted in secret. This part of the process, I suggest, should not be seen as a private matter. The exercise of the power to arrest and the consequences of it are public matters. There are many hard cases we have heard about and there has been much abuse of the process, but these issues should be addressed in a different form of legislation.
Baroness Butler-Sloss (CB)
My Lords, I have been listening with a great deal of care to all that has been said. I have no doubt that Amendment 182 does not go quite far enough, in the sense that if there is to be the intervention of legal process before a court, it needs to be by a judge and not a magistrate. I am in the extremely unusual position of not knowing which way I am likely to vote. I find it very difficult. I am very attracted by what the noble and learned Lord, Lord Mackay of Clashfern, says: that prior to charge, no one who is being investigated should have the information disclosed. But I do think that one has to point out—as, indeed, the noble Lord, Lord Campbell-Savours, and other noble Lords pointed out—that sexual offences, particularly with celebrities, are a special case that sells newspapers. In one of the magistrates’ courts where I used to prosecute and defend as a very young barrister, the custody officer told me that it was £25 for the information to be provided. So one knows about it, and the police have, indeed, been criticised.
I happen to know someone prominent in a particular career—I will not say which—who is about to be charged with an offence committed at the age of 13 against a girl of seven. Everybody locally knows about it. For him, that is quite as awful as it would have been for Lord Bramall or Lord Brittan, save for the fact that this man is not likely to be dying. But this very personal thing—it may or may not be true—of someone in their forties or fifties accused of what he did at the age of 13, which has suddenly come out in relation to a girl of seven, is a shock.
The question that I pose to the Minister is this. If we do not do anything by way of legislation, what can we do to protect those who are innocent and have been vilified, and those who may be innocent, and the presumption of innocence, as the noble Lord, Lord Pannick, has rightly pointed out, is there but is totally ignored by the media, and consequently largely ignored by the public? The approach that “there is no smoke without fire” is attractive, and if the press say something—well, it may be true. If we do not do anything, how do we stop an injustice? With huge hesitation, therefore, I am likely to support the argument of the noble and learned Lord, Lord Mackay of Clashfern, rather than my very close friend, the noble and learned Lord, Lord Judge.
Lord Blunkett (Lab)
My Lords, I will not detain the House for long. I was the Home Secretary back in 2003 when, as has been referred to this afternoon, many of these issues were debated, and I was responsible for the justice system at that time. We struggled with it then and we struggle with it today. I commend the debate and the very substantial arguments that have been made on both sides. I am struggling to know which way to vote on Amendment 182. My instincts are to vote with the Government but to require an answer to the question that the noble Baroness has just put. It is made more difficult now, in 2016 and going into 2017, than it was 14 years ago. The reason for that is social media.
I take the point very strongly that the arrest is part of the process. Arrest prior to charge is extraordinarily difficult to deal with, if someone’s name is out on social media but they then cannot make statements that can be reported in the mainstream press, to actually indicate at least some side of the story that they are intent on putting. With the best intentions, we may take the wrong decision—as usual, for the right reasons—and end up with people who we seek to protect not being able, in the present era of social media, to protect themselves. I look forward to the Minister pulling together the very difficult arguments at the end of this debate.
Lord Faulks (Con)
My Lords, I will not delay the House long, either. We have rightly concentrated on the rights of the innocent; they are fundamental to our system. But I will address your Lordships very briefly on the position of victims. Victims’ groups complain, not without justification, that in the past they have not always been taken seriously by the police or prosecuting authorities. Victims need to be encouraged to come forward. We should not underestimate the courage it takes to report offences of the sort we are concerned with to the police. You may not be believed. You may have to face—so you think—the ordeal of being cross-examined by men in wigs who suggest that you have lied. You may feel very alone, particularly if you have been abused by someone in authority.
Noble Lords will have seen the footballers coming forward many years after the event, and the courage that it took and the incredible upset that it caused them in a macho culture to admit what had happened so many years ago. I take the example given by the noble Lord, Lord Carlile, of someone in a care home. They come to the police many years later. Their evidence is the first of any sort of being abused in a care home by somebody who runs the care home. After they have given their account, the man who is running the care home denies vociferously that he abused this character. There is a suggestion that he may have come forward for financial motive. But what if others come forward? The first complainant may feel that he cannot go through with the matter at all unless some of the other people, whom he knows very well have been abused, do so.
In Committee, I raised the point with the noble Lord, Lord Paddick, that I was concerned that his amendment might result in the police charging rather earlier than they would otherwise have done because they want to flush out potential corroborative witnesses; and that that might be inappropriate. I did not suggest there was any lack of bona fides on the part of the police; this is a very difficult decision to make. However, I suggest that there is that real risk, even with CPS involvement. It is most important that people are encouraged to come forward to give evidence in appropriate cases.
Of course, safeguards have been mentioned, whether in the magistrates’ court or the High Court, but this is a police operational matter. Despite judges’ ability to deal with many difficult things, it is not the right case for them to consider. I suggest that if there is a need for a tightening of the guidelines or for further offences that deal with police behaviour, so be it. But, focusing on the victim, I am for the moment not satisfied that there needs to be a change in the law.
Lord Marks of Henley-on-Thames (LD)
My Lords, I will address a couple of points briefly. First, I will address the difference between Amendments 182 and 187 on the central question of whether it is right to extend pre-charge anonymity to all offences or to sexual offences only. I completely appreciate the logic of the position adopted by the noble Lord, Lord Marlesford, and the noble and learned Lord, Lord Mackay of Clashfern. However, I believe that there is a distinction to be drawn between sexual offences on the one hand and other offences on the other.
I believe that the noble and learned Baroness, Lady Butler-Sloss, was right about this. It seems to me that a particular stigma attaches to accusations of sexual offences, which is generally more difficult to rebut where such accusations are made than where an accusation is made of another offence against the person or of offences against property. It is often far more difficult in sexual offence cases to clear conclusively and for ever the name of a suspect who is not charged than it is in the case of other offences. As the noble and learned Baroness pointed out, there is also the interest of the press in sexual offence cases. I suggest that that is why so much publicity has been given to sexual offences, particularly historical offences, in this debate and in your Lordships’ House generally.
A further point is that the nature of the evidence in sexual offences tends to be historical and tends to involve pitting the word of the claimant against the word of the victim. In those circumstances, the no smoke without fire rubric gains currency. I see this as a question of balance in which the balance in the all-offences case mentioned by the noble Lord, Lord Marlesford, comes down against pre-charge anonymity, whereas it comes down in favour of it in respect of sexual offences. It is a case of the robustness and security that we as a society allow to the presumption of innocence.
The second question I wish to address is that of the stage at which anonymity should cease. I entirely take the point made by the noble and learned Lord, Lord Judge, that the arrest is part of the criminal process and therefore that there is, generally speaking, a public right to know because the liberty of the subject is being taken away at that early stage. However, I cannot get away from the central point that arrest can be effected by a police officer on reasonable suspicion only. That reasonable suspicion frequently arises when the suspect has been given no chance to offer a full explanation which, if he were offered that opportunity, might dispel the suspicion altogether—whereas, to justify a charge, it has to be shown that there is evidence which would, if it were accepted at a trial, lead to a conviction by a court of law. I believe that that distinction is important, and that again the balance is against lifting anonymity at arrest and keeping it therefore at charge.
I then come to the question of witnesses coming forward. I completely appreciate the concern that exists around the House and outside it that witnesses should not be deterred from coming forward. But I also agree with the point made by the noble Lord, Lord Lamont, that in most cases, if evidence from further witnesses is available, it will come forward after charge, so that forbidding pre-charge publicity will delay further evidence rather than prevent it coming to light altogether. There is nevertheless a concern, raised by the noble Lords, Lord Faulks and Lord Pannick, about the possibility of pre-charge anonymity preventing genuine witnesses—notably other victims—coming forward with allegations that might lead to a suspect being charged when he would otherwise escape justice altogether. That is why the detail of the proviso inserted in the amendment of my noble friend Lord Paddick addresses this point precisely, and it is very different from the amendment that was presented in Committee.
Under this amendment a judge is entitled to say that he is,
“satisfied that it is in the interests of justice to remove or vary a restriction provided for”,
and to,
“direct that the restriction shall be lifted or shall be limited to such extent and on such terms as the judge considers the interests of justice require”.
The amendment further states:
“In considering an application … the judge shall have particular regard to the possibility that further witnesses might volunteer evidence relating to sexual offences allegedly committed by the person”.
I believe that that is the best we can do in striking a balance between encouraging witnesses to come forward and enabling them to know about allegations in appropriate cases, and protecting suspects from unjust publicity that causes the dreadful consequences of which we have all heard.
It is all a question of balance and I appreciate that it is a very difficult balance to strike. But I suggest to your Lordships’ House that the amendment proposed by my noble friend Lord Paddick strikes that balance accurately and should be supported.
Lord Rosser (Lab)
My Lords, I note that the noble Lord, Lord Marks of Henley-on-Thames, concluded his comments by saying that it is a matter of balance. I would concur with that view, but the balance concerned depends on which side of the fence you feel you might fall. I do not intend to detain the House for too long, since we have already had a number of Members expressing a desire to hear from the Minister. Nevertheless, I do intend to set out our position.
We do not support either of these amendments. Amendment 182 provides for pre-charge anonymity in all cases, including sexual offences, except where a magistrates’ court decides otherwise. Amendment 187 provides for pre-charge anonymity where a person has been accused of committing a sexual offence unless a judge decides otherwise. I am not a lawyer, and it may well be that my lack of knowledge of the law will be displayed in what I have got to say. But at present, as I understand it, there is an assumption of anonymity before the point of charge, except where the police decide to use their discretion in cases where they believe that disclosure of the identity of the person suspected but not charged is likely, for example, to lead to further evidence coming forward which will enable a stronger case to be made, which will enhance the likelihood of a successful prosecution.
We had a lengthy debate in Committee on the issue of pre-charge anonymity. We on this side acknowledged that a case could be made for going down this road. However, we also referred to the reality that there is evidence—for example, in sexual offence cases, where disclosing the name of the person alleged to have committed such offences has led to other victims coming forward and to a stronger case being able to be made against the accused to secure a successful prosecution. We have evidence that victims of sexual offences are often reluctant to come forward because of feelings that they will not be believed if it is their word alone against that of the alleged perpetrator. This is particularly so where that individual is a well-known and respected—at least, respected at that time—figure. We know too that there are sometimes feelings of shame about such offences, or feelings that such offences have to be tolerated, and a desire not to talk about it. These are feelings that are being expressed now with respect to the rapidly emerging scandal of sexual offences against young people in the football world—people are coming forward now that they know they are not alone.
We know too that the reporting of and convictions for sexual abuse cases are very low. Perhaps we should be spending some time considering why that is the case. We also need to take into account the fact that victims of sexual abuse—innocent people in spades—have had their lives darkened, including when the sexual offences were committed by well-known public figures. Of course, the victims themselves are rarely well-known public figures. During the passage of the Sexual Offences Act 2003, one reason we gave for not changing the law was precisely to avoid giving the impression that there is a presumption of doubt about the credibility of the complainant in sexual offence cases. I am afraid I do not wholeheartedly agree with what I think the noble Lord, Lord Paddick, was saying. Frankly, granting anonymity specifically for those suspected of sexual offences could imply that a person making a complaint in respect of such an offence was not to be believed in the same way as someone making a complaint involving another individual in relation to any other kind of serious offence, such as murder, fraud or, yes, child cruelty.
Baroness Williams of Trafford
My Lords, I am not a lawyer. When the noble Lord, Lord Pannick, and the noble and learned Baroness, Lady Butler-Sloss, say this is a very difficult issue, I know that this is a very difficult issue. I am grateful to the noble Lord, Lord Paddick, for retabling the amendment on pre-charge anonymity for those accused of sexual offences and to my noble friend Lord Marlesford for his amendment, which proposes pre-charge anonymity for a person accused of any crime. I know this is a subject which we have debated frequently and in which noble Lords have a great deal of interest, and we have the legal experts of the land here to assist us.
Like other noble Lords have said, I will not repeat all the points I gave in my responses to the amendment in Committee, save to say that the Government fully understand the anguish felt by those who have had their reputation questioned and tarnished following unfounded allegations made against them. My noble friend Lord Lamont very articulately outlined the names of some of them, although I will not go into individual cases. As the noble and learned Lord, Lord Judge, indicated in our earlier debate, such anguish will arise whether the unfounded allegation was in relation to allegations of sexual offences, which is the premise of the amendment in the name of the noble Lord, Lord Paddick, or with regard to other offences, which is the reasoning behind my noble friend’s amendment.
However, I reiterate that the notion that someone is innocent until proven guilty, as the noble Lord, Lord Pannick, says, is absolutely central to our justice system and the rule of law. There must never be an assumption that being charged or arrested for any offence indicates that a person is guilty of a crime, so the Government have every sympathy for the underlying aims behind both of these amendments. As noble Lords will know, the Government also start from the position that there should, in general, be a presumption of anonymity before the point of charge and believe that there is also a general acceptance that there will none the less be exceptional circumstances in which the public interest means a suspect should be named. The noble Lord, Lord Campbell-Savours, articulated that. The Government’s position remains that we are not persuaded that legislation is the right way forward at this time.
As with any offence, it is absolutely right and proper for the police to have operational independence in deciding whether to name a suspect, and the Government firmly believe that non-statutory guidance, rather than primary legislation, is the appropriate vehicle for guiding the police in these operational decisions. It is absolutely vital that the police are able to exercise their own judgment and act swiftly in circumstances where releasing the name of a suspect may, for example, prevent further harm. The introduction of a statutory scheme would hamper the police’s ability to act in this way. We know that such identification can help other victims to recognise that they are not the only ones who have suffered, as the noble Lord, Lord Rosser, said. This is particularly the case with regard to sexual abuse allegations, where the ability of the police to name an individual accused of such an offence might give encouragement to other victims to overcome their reluctance to come forward—and many of them are very reluctant. Victims must feel that they can report the abuse to the police as well as get the support they need.
We have seen recently the significant effect of increased willingness by victims to report what happened to them in the shocking scale and nature of allegations of non-recent child sexual abuse in football. I am sure the whole House will want to join me in paying tribute to the bravery that some ex-footballers have shown in coming forward publicly after so much time in what must have been terribly difficult personal circumstances. Their courage has clearly given confidence to many others to come forward. But had the legislation put forward by these amendments been in place today, the media in this country could have been prevented from reporting the claims of some of these alleged victims. Of course, as with any allegation, it is now for the police to take forward and investigate in order to establish the facts and, where appropriate, to bring prosecutions.
A question was asked—I cannot remember by which noble Lord—about whether the police should believe all victims. The police should always focus on the credibility of the allegation rather than on the credibility of the witness. As I have just outlined in the case of allegations in football, I cannot emphasise strongly enough that we must not undermine victims’—
Lord Carlile of Berriew
I do not quite understand how the shocking cohort of football cases relates to the issue in these amendments. These football cases have not followed a specific arrest or arrests. Indeed, the three convictions of Barry Bennell in 1994, 1998 and, I think, 2002, did not produce a cohort of reporting; media publicity of the issue, not of an arrest, produced it. So what does it have to do with this issue?
Baroness Williams of Trafford
I am trying to illustrate that alleged victims’ willingness to come forward is now more common because they feel that they can come forward and they are more likely to be believed. There are not huge numbers of convictions in sexual abuse trials, and to go back to the position where anonymity was granted would be a retrograde step.
Lord Paddick
Can the Minister clarify that? I think she just said that there is a low conviction rate in trials involving sexual offences. That is not accurate. In rape cases, for example, the conviction rate at trial is more or less over 50% and more or less in line with the conviction rate in other offences.
Baroness Williams of Trafford
Many cases do not come to trial. I was trying to illustrate the reluctance of people to come forward. People are still reluctant to do so, and the Government do not want to create an environment in which we go back to the practices of times gone by, which is why we have so many allegations of historic sex offences.
Noble Lords asked about safeguards, and of course, as my noble friend Lord Faulks said, we have the magistrates’ court and the High Court. We have College of Policing guidance, which states that the police should not routinely release information about suspects before charge. However, it also makes clear that there are limited circumstances in which the release of such information can be justified.
Lord Campbell-Savours
Will the Minister address the issue that was raised by most of the speakers, on the position of people who commit suicide, whose families break up, whose reputations are destroyed or whose careers end, or who are destroyed in their communities, only because the Government of the day—of both major parties—have insisted on pursuing this arrangement, which is clearly not in the public interest? Will the noble Baroness address the agony of the people involved? The fact that some of them are prominent is not so important. Hundreds—there may well be thousands; we do not know—of people out there suffer similarly.
Baroness Williams of Trafford
I think I addressed that right at the beginning of my speech, when I said that the Government completely acknowledge the pain that some people have gone through in the course of the last few years—and in the course of history—due to being wrongly accused of crimes which they did not commit. I absolutely acknowledge that point. The noble Lord, Lord Pannick, and the noble and learned Baroness, Lady Butler-Sloss, said that it is an incredibly difficult issue, and I recognise that.
I was going to say something else. The College of Policing is currently developing—
Lord Lester of Herne Hill
The Minister acknowledges that there is a problem and that there have been cases of monstrous injustice to individuals. Several of us have asked whether the Government will go forward, not backwards, with some alternative to either of these amendments. Can she tell us precisely what she proposes to do, with revised guidance, codes of practice or anything else, so that we can be satisfied that the Government will solve the problem?
Baroness Williams of Trafford
I was just about to say—I do not know whether the noble Lord will be satisfied by it—that the College of Policing is currently developing authorised professional practice on media relations, and its guidance makes it clear that decisions should be made only on a case-by-case basis when it comes to the releasing of names. I am not sure that I have satisfied noble Lords but I have tried to explain how we have tried to achieve balance in the protection of anonymity for persons who are accused pre-charge.
Lord Morris of Aberavon
I wonder whether the Minister is going to deal with this difficult issue with its complicated argument by referring it to the Law Commission so we can have an independent view that may not be forthcoming from the College of Policing.
Baroness Williams of Trafford
I think that I have explained that the Government feel that we currently have the balance right and that we should preserve that presumption of anonymity—so I will not be doing what the noble and learned Lord suggests. I hope that my noble friend will withdraw his amendment and that the noble Lord, Lord Paddick, will not press his.
Lord Marlesford
My Lords, there are two differences between my amendment and that of the noble Lord, Lord Paddick. The first is that the noble Lord, Lord Paddick, suggests that a judge should arbitrate on the question of anonymity. The second is that the noble Lord, Lord Paddick, restricts his anonymity to sexual offences of various sorts. I give way at once on the question of who should deal with the anonymity. It is probably too complicated and difficult to be done by a magistrate and the point made by my noble and learned friend Lord Mackay of Clashfern about warrants probably not being justified in two of the cases we mentioned is a good one. On that I would certainly be ready to change my amendment.
On the question of whether it should apply widely or merely narrowly to sexual offences, I will give three examples of why it should apply widely. First, I was struck by the recommendation of the noble and learned Lord, Lord Morris of Aberavon, on the benefit of it being wider. Secondly, my noble and learned friend Lord Mackay of Clashfern was attracted by that. So, too, were my noble friend Lord Hailsham and the noble and learned Baroness, Lady Butler-Sloss. I will just give three examples of why that should be the case.
My noble friend Lord Lamont mentioned the case of Mr Jefferies of Bristol, whose whole life was traduced and ruined. It was nothing to do with sex; it was to do with a case of murder. If ever there was an example of somebody who should not have been named in the way that he was, it would be him. The noble Lord, Lord Carlile, mentioned care homes. Abuse in care homes, even in children’s homes, can be of a non-sexual nature. It can be malicious or psychopathic. There have been many cases also of accusations of abuse of the elderly in care homes. So I do not see the justification for saying that anonymity—whether or not we have it—should be confined only to sexual offences. If there is to be anonymity, it should be for all offences—but clearly the procedures and rules are inadequate at present and should be modified and considered.
I am afraid that I would not regard the College of Policing as the obvious candidate to rewrite this book. I would have much preferred something more serious. But I would be happy to withdraw my amendment on the basis that the Minister will come back with something rather more substantial on the need for reform—something not to be put forward in detail but to be expressed as an intention at Third Reading. I would not vote for the amendment of the noble Lord, Lord Paddick, merely because I think it is quite wrong to limit it to only sexual affairs. I beg leave to withdraw my amendment.
“Disclosure of private sexual photographs and films without consent
(1) The Criminal Justice and Courts Act 2015 is amended as follows.(2) In section 33 (disclosing private sexual photographs and films with intent to cause distress)—(a) in subsection (1), after “disclose” insert “or threaten to disclose”;(b) in paragraph (b) of subsection (1), after “distress” insert “or recklessness as to such distress being caused”;(c) after subsection (1) insert—“(1A) It is also an offence to promote, solicit or profit from a private and sexual photograph or film that has been disclosed without the consent of an individual who appears in the photograph or film, knowing or believing that the same has been disclosed without such consent and with the intent to cause that individual distress, or recklessness as to such distress being caused.”;(d) omit subsection (8).(3) In section 35, omit subsections (4) and (5).”
Lord Marks of Henley-on-Thames
My Lords, I will speak also to Amendment 184 in this group. I will also mention the fact that my noble friend Lord Paddick will be dividing the House on Amendment 187—that would happen after the debate on Amendments 183 and 184.
Lord Marks of Henley-on-Thames
My Lords, I will not move Amendments 183 and 184.
Lord Wigley
“Victims and witnesses: disclosure
(1) A police force, police officer or Crown Prosecutor may not disclose the name of a victim or witness of a serious sexual assault or violent offence to the person accused of the offence if— (a) the parties are strangers to one another,(b) non-disclosure would not impact on the completion of a fair trial, and(c) it is reasonable to assume that such a disclosure would put the victim or witness at risk of further harm.(2) This section applies whether or not the person accused of the offence has been charged with the offence.”
Lord Wigley (PC)
My Lords, I realise that the House wants to move to a vote on the very important and significant debate we have just had. I do not know whether there is a mechanism whereby I could come back to Amendment 185 at Third Reading so that we do not lose this debate because this, also, is a very important question with regard to the anonymity or otherwise of people involved in rape cases. I would be grateful for some guidance on this matter.
Baroness Chisholm of Owlpen
I am afraid that if the noble Lord wants to press this amendment he has to press it now. We cannot go back to it again because we have to go in order.
Lord Wigley
I will speak as rapidly as I can and I am sorry that this is going to detain the House. Amendment 185 is in my name and those of the noble Baronesses, Lady Howe of Idlicote, Lady Brinton and Lady Cohen of Pimlico. I thank them for their support.
I do not apologise in the slightest for returning to a matter that I raised in Committee, since most of the countercase put by the Government in Committee triggered dismay and incredulity among those involved in cases such as those I highlighted then. To the extent that there was any validity in the Government’s countercase, I have adjusted the wording of the amendment to respond constructively. The impact of this new clause would be to prohibit the police in England and Wales from disclosing the name of the victim of rape or attempted rape to the alleged perpetrator—
The Deputy Speaker (The Countess of Mar) (CB)
My Lords, I would be grateful if noble Lords could be quiet because I cannot hear what the noble Lord, Lord Wigley, is saying. It is important for proceedings that I can hear and understand what he says.
Lord Wigley
I am grateful. I have rarely had that trouble in the past. As I was saying, it is the question of disclosing the name of a victim of rape or attempted rape to the alleged perpetrator where both are strangers to each other and where disclosure could potentially put the victim at further risk of harm from the accused. This is necessary because in this day and age any individual with basic IT skills, armed with the name and location of the victim, could easily obtain the full address. It is difficult to imagine circumstances where the victim would not be either at risk or feel, understandably, at risk. I remind the House that it is estimated that 10% of all rapes and attempted rapes are committed by strangers. This means that there are some 9,000 reported attacks each year. In other words, 9,000 women are being put at risk each year if their names are disclosed. There will be thousands more who never report it because of fear, shame or lack of confidence in the police and judicial system. The feelings of a victim were courageously described only last Thursday by Michelle Thomson MP in another place.
The amendment was tabled following the harrowing experiences of Victim M, to which I referred in Committee and shall now summarise briefly. I am grateful to Voice 4 Victims for providing this information. I pay tribute to them for the support they give such victims and for their determined campaigning on this and associated issues.
Victim M was followed by a stranger, attacked, suffered an attempted rape and was told to stop screaming or she would be killed. Two off-duty police officers heard her screams and arrested the man. Subsequently, M learned that the police had, in fact, given her full name to the man. This has had a devastating impact on M. She is terrified that he will find her and attack her again. He is expected to be released from serving half his seven-year sentence in July next year. M has changed her name, moved flat twice and removed herself from the electoral register to prevent him finding her.
The amendment moved in Committee was later withdrawn. Since then, Voice 4 Victims has consulted a range of experts. The clause has been redrafted to take on board those comments, especially those emanating from the police. The police have been very supportive. They themselves believe that clarification of the law is needed. From these comments it is generally agreed that a name should never be given if three conditions are met: the parties are strangers; disclosure might conceivably put the victim at risk; and non-disclosure would not undermine the completion of a fair trial, a point raised by the Minister in Committee.
After disclosure in her case, M contacted a number of police forces. Their policies on disclosure were totally inconsistent. The responses varied greatly, with no fewer than five distinct approaches followed by the police: the name being given during the interview on arrest; at the point of charge; if the case goes to court; disclosed in a statement given to the alleged perpetrator’s defence team; or not given until the case is in court, where it is a matter for the judge to decide.
M is to be commended for the comprehensive manner in which she followed up to discover such a wide and inconsistent pattern of behaviour by the police. She received a letter from Commander Jones of the Metropolitan Police, who said:
“There is no specific policy or legislation which covers the issue of providing the name of a victim of rape to the suspect. Instead it is an operational decision taken by the officer in the case on a case-by-case basis. In the case of a stranger rape, it would be very rare for the suspect to be informed at the point of arrest. For a domestic or acquaintance case, this would be more common”.
This view was reinforced by Neil Smith of the Metropolitan Police’s sexual offences, exploitation and child abuse command in the Guardian newspaper on 27 October this year.
M made contact with other victims. They have similar experiences. Victim A said, “Once he had my name he found me and messaged me on Facebook. He lives maybe a couple of hours away, so when I next moved and changed jobs I also changed my name by deed poll”. Victim B said, “I was 23. He was about 50. If he googled my name, I couldn’t think of every website it might bring up. I could kind of imagine what he might do”. Victim C said, “He was arrested a couple of days later and at that point would have been told my full name. I did not realise he was told my name then. The fact he knows my name and details is something I have always hated and part of what makes me regret ever going to the police”. I ask the House, in particular the Minister and her advisers, to note that last sentence and to ponder its far-reaching implications on whether this situation leads to people not going to the police when there has been a rape or an attempted rape. This theme is repeated by Victim D, who responded to M by saying, “Your message sums up the reasons I felt I didn’t want to go to the police. I didn’t want my life ruined by my name being released and people finding out. I suffered severe depression and was suicidal for years. Thank you for working to fix this problem”.
Baroness Howe of Idlicote (CB)
My Lords, I have added my name to Amendment 185 in the name of the noble Lord, Lord Wigley, for all the reasons he has explained so eloquently, even though pushed to deliver them very quickly. I shall be much briefer.
If someone has been sexually assaulted by a complete stranger and has then reported the details to the police, it is clearly important that when the police then interview potential suspects they do not under any circumstances, whether the potential offender has been charged or not, disclose the identity of the victim to such suspects. In the past, perhaps, this would not have been so vital, but today if the attack has been carried out by a sexual predator, the availability of the internet, Facebook and all the other many ways of identifying where a victim lives will inevitably mean that the attacker can continue to harass their victim via all or any of these means. Indeed, I am sure noble Lords will have read many harrowing stories of just such instances—we have heard one or two of them already—where the named victim has ultimately been forced to leave the area and resettle in a completely different, new part of the country, changing their names too.
The noble Lord’s amendment is vital. I very much hope that the Minister will be able to accept it in its entirety.
Viscount Hailsham
My Lords, I am conscious that your Lordships want to vote on Amendment 187, so I shall be brief, but I have to say that this proposal is, to my way of thinking, one of the most unjust that I have heard in your Lordships’ House for some time. It is worth identifying what it says. I shall come to the proviso in a moment, but what it says that somebody who is accused of rape is not to know the name of the accuser—the complainant. For that matter, somebody who is accused of actual bodily harm or grievous bodily harm is not to know the name of the accuser or of the witnesses. I ask rhetorically: how on earth can a defendant or his representatives prepare his case for trial without knowing the name of the accuser or the witnesses? After all, they may not have been there. They may be notorious liars. There may be lots of other reasons to distrust their integrity.
The substantive clause here precludes the police from giving the name of the victim or the witnesses to the accused person. That is curiously reminiscent of the procedure underlying lettres de cachet in pre-revolutionary France, as described in A Tale of Two Cities. Let us look at the proviso, because it needs a bit of probing. The proviso in subsection 1(b) of the proposed new clause is so far as,
“non-disclosure would not impact on … a new trial”.
Who is to judge whether it impacts on a fair trial? I can tell noble Lords from the language of the proposed new clause that it is to be the police or the Crown Prosecution Service. So the police or the Crown Prosecution Service, who are party to the procedure, who are making the allegations, will judge whether it is fair to disclose the identity of the victim or the witness. How can that possibly be fair? What procedure is there in the proposed new clause for the accused person to challenge that determination? There is none at all.
We are told, “Ah, the judge will let it in”, but the judge cannot when there is an absolute prohibition. There is no procedure here whereby the decision of the police officer or the Crown Prosecution Service can be challenged. Probing a little further, what about police statements? I am sure my noble friend knows full well that police statements have to be served on the defendant prior to trial so that they can prepare and understand their case. If the identity of the witness or the victim has to be redacted out of the statements, what possible purpose is there in serving the statements at all? One merely has to identify these things to see that this would be struck down, certainly by the courts. It is a clear contravention of the provisions in the convention now in domestic law in favour of a fair trial.
Incidentally, on proposed new subsection 1(c), regarding the protection of people, bail conditions can do that. There may be a case for strengthening bail conditions but there is absolutely no case for introducing a measure that will do a profound injustice in our courts. I hope my noble friend the Minister will give a robust response to this.
Lord Carlile of Berriew
Before the noble Viscount sits down, is the point not that the complainant may say that the person who allegedly assaulted him or her is a stranger but may have an oblique motive for so saying? How is the defendant therefore able to defend himself or herself without being able to know who the accuser is? It is a palpable injustice which was not covered, I regret, by the passionate speech by the noble Lord, Lord Wigley, which omitted that crucial point.
Viscount Hailsham
I could not agree more with the noble Lord. I agree with him as I agreed with him on the previous debate. We are dealing here with the possibility of profound injustice and we should guard against it.
Baroness Cohen of Pimlico (Lab)
My Lords, my name is also attached to this amendment, but I would not normally have spoken given that the noble Lord, Lord Wigley, and the noble Baroness, Lady Howe, were such distinguished proponents of it. At the moment there is a choice of injustices. Perhaps we should have provided—and I should be glad to provide at Third Reading—a clause saying that a judge may decide whether the name should be disclosed. This is, however, also a modern offence. In the old days it might not have mattered very much if you disclosed only the name of the accuser. These days, the perpetrator has no trouble at all, because of the spread of social media, and these cases are more frequent.
One reads of cases all the time and I want to disentangle this from the issue of rape. It is not entirely about rape. It is about being knifed in the street or pushed under a Tube train by a perfect stranger, as I am sure we have all read about, and being terrified thereafter in case he or she comes and does it again. Therefore, I would be very grateful if the Minister would understand the strength of feeling and the injustice being done. If we can put in a clause at Third Reading offering the possibility of review by a judge if necessary, I would be glad to do so.
Baroness Chisholm of Owlpen
My Lords, as the noble Lord, Lord Wigley, has explained, this amendment is designed to strengthen the protection for the victims and witnesses of a sexual or violent assault by a stranger. I sympathise with this objective but, as I indicated in Committee, there are difficulties. I am grateful to the noble Lord for taking on board the points I made in response to his earlier amendment on this issue. He has now come forward with a substantially revised amendment. I fear, however, that this serves only to highlight again the challenges of legislating in this area.
It is vital that the criminal justice system supports and protects victims and witnesses, particularly victims of sexual offences, who are especially vulnerable. As I stated in Committee, there are already a number of means whereby those at risk of further harm, or who are deemed to be intimidated, can be safeguarded. I shall not repeat these measures now, other than to say that there is a wide range of options available for their protection. To intimidate a witness is a very serious criminal offence.
Of course, the right to a fair trial is a cornerstone of our criminal justice system. The noble Lord, Lord Wigley, has rightly acknowledged this in the revised amendment before us today. However, to say that the identity of a victim or a witness may be withheld from the defendant except where to do so would compromise the defendant’s right to a fair trial is almost always a contradiction in terms. As my noble friend Lord Hailsham said, fundamental to a fair trial is the right of the accused to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him. The accused cannot be expected to prepare a proper defence if he does not know who is accusing him of the alleged crime, and without that there can be no fair trial.
In exceptional circumstances, there is already provision for anonymity of victims or witnesses from the accused, through a witness anonymity order. A number of conditions must be met for this to apply, including that it would protect the safety of the witness or another person, that it is in the interests of justice for the witness to testify and the witness would not testify if the order were not made, and that it would be consistent with the defendant receiving a fair trial. It is an exceptional measure of last resort. This means that in the minority of cases where those accused of violent or sexual assault are strangers, the court can decide to grant victim or witness anonymity, provided these other conditions are met.
Lord Wigley
On that very point, if the court determines at that stage whether or not to release information, surely there is every case to get consistency prior to that. I quoted five cases, I think it was, of different responses by the police in different parts of London. The absence of any consistent approach to this underlines that there is a serious problem. If the Government were willing to review how the mechanism of referring to the courts, which the Minister mentioned, can be brought in in a way that avoids the variety of ad hoc responses by the police, that might be one way forward. I would be very grateful if the Minister would consider that.
Baroness Chisholm of Owlpen
The problem is that, as I said earlier, it is an exceptional measure of last resort. This means that, in the minority of cases where those accused of violent or sexual assault are strangers, the court can decide to grant victims and witnesses anonymity, provided that the conditions are met.
While I cannot for these reasons support the noble Lord’s amendment, he has raised an important point about the consistency of practice both across and within police forces about the disclosure of the address and telephone number of a victim. Crown Prosecution Service policy on prosecuting cases of rape clearly states that addresses of victims and witnesses should not be disclosed to the defendant during court proceedings. The same is true of victims’ or witnesses’ telephone numbers or email addresses. However, we do not know how aware the police are of this policy, so we will explore with the College of Policing whether it would be appropriate for additional guidance to be given to police forces to ensure that this practice is universally followed.
Baroness Cohen of Pimlico
Before the Minister sits down, I say that in the case with which the noble Lord, Lord Wigley, and I are most familiar, the police disclosed the victim’s name quite automatically to the perpetrator about 20 minutes after they had arrested him on the evidence of two policemen. It is all very well to say that you can wait to have a court make a decision, but a policeman made a decision at the earliest possible stage, and that is the issue that the noble Lord, Lord Wigley, and I are attempting to address.
Baroness Chisholm of Owlpen
I am sure the noble Baroness will understand that I cannot go into individual cases. CPS policy on prosecuting cases of rape clearly states that witnesses’ addresses should not be disclosed to the defendant unless already known. The CPS does not disclose the addresses, email addresses or phone numbers of victims or witnesses in any case unless already known. That is why we are looking at ways to ensure that this approach is similarly applied by police forces.
While the amendment is well intentioned, for the reasons I have given, I do not consider that it will help advance the noble Lord’s cause. He has alighted upon an important issue regarding the consistency of practice adopted by criminal justice agencies in relation to the disclosure of a vulnerable victim’s address or other contact details, and I am ready to explore further how this might best be addressed. On that basis, I hope the noble Lord will feel able to withdraw his amendment.
Lord Wigley
My Lords, I am grateful. I realise that the House wants to move forward rapidly. I was grateful for the contributions made by the noble Viscount and the noble Lord, Lord Carlile, to the contra argument with regard to the rights of the defendant. Of course I recognise that they are important. The question seems to revolve around the inconsistency of the police response, which the Minister has accepted needs to be looked into, and whether, while it was reasonable to withhold addresses and telephone numbers in the past, it might now be necessary to withhold the name because of the ease of getting addresses from information available on computer-based systems these days. If the Government are prepared to review those aspects of the question, we will feel that we have made some progress on this issue. If the Minister can indicate that the Government are willing to look at those aspects, I will be prepared to withdraw the amendment.
Baroness Chisholm of Owlpen
We realise that certain aspects need to be addressed, which is why I said that I am ready to explore further how this might best be addressed.
Lord Wigley
I am grateful to the Minister. On the basis of that assurance that there will be an investigation into those aspects of the question, I beg leave to withdraw the amendment.
Baroness Berridge
“Forced marriage: financial protection for victims
In Part 10 of the Anti-social Behaviour, Crime and Policing Act 2014 (forced marriage), after section 122A (inserted by section 151 of this Act) insert—(1) Where subsection (4) applies to a person, that person shall be treated as if he or she has been married, or is married, for the purposes of any provision or enactment, whether in statute or common law, relating to—(a) immigration;(b) pensions; or(c) financial provision or remedies, including for the purposes of Part II of the Matrimonial Causes Act 1973 (financial relief for parties to marriage and children of family).(2) In circumstances where a person who has been married and a person who is married would be treated differently, the person to whom subsection (4) applies may decide which marital status applies to them.(3) For the purposes of subsection (2), the person to whom subsection (4) applies may decide that a different marital status applies to them in different circumstances.(4) This subsection applies where— (a) the court has granted a forced marriage protection order under Part IVA of the Family Law Act 1996 in respect of a person, or(b) an offence under section 120, 121 or 122 of the Anti-social Behaviour, Crime and Policing Act 2014 has been committed against a person.””
Baroness Berridge (Con)
My Lords, I am mindful that the House wishes to move on this evening, and I am grateful to the Minister for her assurances dealing with the matters that I raised in my speech. I previously indicated to the Clerk of the Parliaments that I would speak to the amendment, but I will not move it this evening.
Amendment 187
Lord Paddick
“Pre-charge anonymity
(1) The Sexual Offences (Amendment) Act 1992 is amended as follows.(2) After section 1 insert—“1A Anonymity of suspects prior to charge(1) Where an allegation has been made that an offence to which this Act applies has been committed by a person but the person has not been charged with that offence, neither the name nor address, and no still or moving picture of that person, nor any other matter shall (without that person's consent) during that person’s lifetime—(a) be published in England and Wales in a written publication available to the public; or(b) be included in a relevant programme for reception in England and Wales,if it is likely to lead members of the public to identify that person as the person by whom the offence is alleged to have been committed.(2) Subsection (1) is subject to any direction given under section 3.”(3) In section 3—(a) in subsection (1) for “to which this Act applies” substitute “to which section 1 of this Act applies”;(b) after subsection (4) insert—“(4A) A police officer of the rank of inspector or above may apply to a judge of the Crown Court for a direction under this subsection and if the judge is satified that it is in the interests of justice to remove or vary a restriction provided for in section 1A, the judge shall direct that the restriction shall be lifted or shall be limited to such extent and on such terms as the judge considers the interests of justice require.(4B) In considering an application under subsection (1), the judge shall have particular regard to the possibility that further witnesses might volunteer evidence relating to sexual offences allegedly committed by the person.”(4) In section 5—(a) in subsection (1) after “section 1” insert “or section 1A”;(b) in subsection (2) after “committed” insert “or the person by whom an offence is alleged to have been committed and to whom section 1A applies”.”
Lord Paddick
My Lords, in the absence of any credible alternative, I wish to test the opinion of the House.
“Sentencing for stalking offences
(1) In section 4A(5)(a) of the Protection from Harassment Act 1997 (stalking involving fear of violence or serious alarm or distress), for the words “five years” substitute “ten years”.(2) At the end of section 32(4)(b) of the Crime and Disorder Act 1998 (racially or religiously aggravated harassment etc) insert “save in the case of an offence under section 4A of the Protection from Harassment Act 1997, in which case the person shall be liable to imprisonment for a term not exceeding 14 years.””
Baroness Royall of Blaisdon (Lab)
My Lords, in moving Amendment 187A, I declare an interest as a trustee of Paladin, the National Stalking Advocacy Service. It is four years since a stalking law was introduced, following an amendment that I tabled in this House which was the culmination of terrific work by the independent parliamentary inquiry, whose adviser was the excellent Laura Richards and which included the noble Baronesses, Lady Brinton and Lady Howe of Idlicote. It was strongly supported by colleagues in the House of Commons, notably Yvette Cooper and Stella Creasy. I pay tribute to the Government for the progress made since 2012, the introduction of the offence of coercive control and last week’s announcement of stalking orders.
Stalking destroys lives. Some 40% of the victims of domestic homicide have been stalked, including Jane Clough and Holli Gazzard, and the punishment must fit the crime. When I tabled the original amendment, it was always the intention that the maximum sentence be 10 years. However, due to the two tiers in the Protection from Harassment Act, the higher test mirrored Section 4 harassment and became five years by default. Experience now tells us that this is not enough.
My amendment mirrors a 10-minute rule Bill introduced by Alex Chalk, the Conservative MP for Cheltenham, and supported by MPs from all parties, including Richard Graham, the MP for Gloucester, whose constituent, Dr Eleanor Aston, was stalked for eight years by a former patient, Raymond Knight. When he was sentenced to five years—the maximum sentence—the judge stated that he would like to have given Knight a longer sentence as he was a serious risk to Dr Aston. This case is not unique; I could cite numerous other examples, including Kristine Carlson and Katie Price. Extending the maximum penalty would set the tone, allow for greater flexibility and make it clear that stalking is a serious offence. An increased maximum sentence is necessary for the most serious cases, particularly where there is repeat offending. At present a defendant who pleads guilty to this most serious offence, even if it is a repeat offence against the same victim, will serve a maximum of 20 months. This is insufficient to protect the victim.
Sadly, too few cases still result in a stalking charge, and, when they do, the sentencing does not reflect the serious nature of the crime. This was highlighted as a cause for concern when we were meeting Home Office lawyers to discuss the drafting of the stalking legislation in 2012 and given the proposed maximum sentence of five years. Training is important. So, too, are sentencing guidelines. The maximum penalty should reflect the serious impact that this psychological crime has on the victim.
Stalking is a long-term pattern of behaviour. It is persistent and intrusive, and it engenders fear, alarm or distress. It results in long-term psychological harm and can escalate to violence and murder. Stalking is about fixation and obsession. It is clear that when people fixate and stalk, they are psychologically unstable. A significant minority are psychotic, and some may suffer from undiagnosed personality disorders. Currently, stalkers are not routinely assessed, and they should be. More robust sentences would allow for a robust mental health assessment which informs diagnosis, treatment and management.
The Minster may well say that the Sentencing Council is undertaking a review and that it would be precipitate to pre-empt that review. The Sentencing Council reviews sentences within the framework set by Parliament, so it is for us to act and then for the Sentencing Council to build its guideline around the maximum tariff.
Of course, it is true that, alongside the stalking, there may be other offences—for example, assault or arson—that can be charged. But in a significant number of cases, stalking is the only offence, a very grave offence, which can lead to the victim being a prisoner in their own home, developing post-traumatic stress disorder, losing their job, losing their relationship, losing their mental health and ultimately losing their life. It is a serious offence and must be treated as such.
Paladin’s research shows that victims feel unsafe due to short sentences. Preventive orders do not lead victims to feel safe because it is the very nature of the stalking offence that means such boundaries are prone to being breached. In the most serious cases, the only time a victim truly receives any respite is when his or her stalker is behind bars. Victims continue to live in fear and are terrorised and terrified when the stalker comes out. It is clear that short sentences do not allow for any form of diagnosis, treatment or management, so the behaviour continues in a revolving-door fashion. This is costly to victims and to the criminal justice system.
It is important to highlight the fact that stalking occurs over an extended period of time. Often, stalkers are prosecuted only for breaching restraining orders. The maximum sentence for criminal damage, burglary and offence against property is 10 years. These offences are acute and one-offs. Allowing judges greater flexibility on sentences will acknowledge the repetitive nature of stalking, which can span multiple years, offences and breaches.
Some victims have felt helpless due to the long-term, insidious and persistent nature of this crime—as in the case of Helen Pearson, who was almost killed by Joe Willis and attempted suicide twice. The escalation to murder should be clearly understood. These cases are called “murders in slow motion” for a reason, and we have an opportunity to intervene earlier and prevent them. It is one of the few crimes where early intervention can prevent serious psychological damage, violence and murder. That is precisely why we need to increase the maximum sentence.
My amendment would give judges the greater flexibility they require in sentencing to allow the sentence to fit the crime and thus better protect the victim whose life is being torn apart. I beg to move.
Viscount Hailsham
My Lords, I very much hope that your Lordships do not support this amendment. My reasons are both general and particular. As to my general reason, I am very cautious about any inflation in sentencing. Our prisons are already grossly overcrowded. When I was Prisons Minister at the back end of the 1980s, we had a prison population of some 44,000. We now have a prison population of just short of 85,000, and that makes for gross overcrowding. Until very recently, I was on the monitoring board of a local prison. As a member of the Bar, I go to prisons, and the facilities in prisons are overstretched almost beyond imagining. In this respect, the POA is right. I am very anxious that we should not do anything that tends to make courts increase the overall level of sentences. In the past five years, the average sentence has increased from 12.3 months to 16.4 months, and conditions in prisons are dire.
That takes me to the second point, and I shall be very brief. Five years—the existing maximum—is a long sentence, even when one takes into account the fact that the offender will not serve the whole of it. Being shut up in custodial circumstances in most of our prisons is a deeply unpleasant experience. If the offender is rational, then five years is a perfectly good deterrent. If the offender is not rational, then increasing the sentence will make no difference whatever to his conduct. All we are doing is to drive up the overall level of sentences, and that is thoroughly undesirable.
Lord Hope of Craighead (CB)
My Lords, I recognise the point that the noble Viscount has made about the general increase in the level of sentencing, which has caused me considerable concern for quite some time. However, there is force in the point that the noble Baroness made about repeat offences. The people who commit this kind of offence tend to be victims of an obsession. There must be a risk that a number of these perpetrators will do it again, and if the first sentence is ineffective as a deterrent a judge is really inhibited in visiting the appropriate penalty on a repeat offender, particularly if it is even a further repetition, if he is restricted to the levels that presently exist. For that reason, among the others that the noble Baroness mentioned, I would be inclined to support her amendment.
Lord Paddick
My Lords, I strongly support the amendment. While I accept what the noble Viscount, Lord Hailsham, said about overcrowding, we need to differentiate between many offences that do not deserve a custodial sentence, and in fact would be more effectively dealt with by a non-custodial sentence, and those that really need long custodial sentences, for the very reasons that the noble and learned Lord has just articulated. These are offences where, particularly in the case of repeat offences, a longer custodial sentence is needed. That is why we will support the noble Baroness should she decide to divide the House.
Lord Rosser
I will be brief. As the noble Lord, Lord Paddick, has indicated on behalf of the Liberal Democrats, if, having heard the Government’s reply, my noble friend Lady Royall decides to test the opinion of the House, we too shall be supporting her amendment in the Division Lobby.
I will not go through all her points but my noble friend has referred, as have others, to the issue of repeat offences. She referred to why the maximum sentence is five years at present. She referred to the level of cross-party support that there has been on this issue, and to the relationship of the maximum sentence for this offence with other offences that have a maximum of 10 years. She also made reference to the stalking orders and the Government’s announcement there, which was welcome, but of course it does not address the issue of what the appropriate maximum length of the sentence is. My noble friend also stressed that stalking costs lives in certain circumstances, and causes psychological harm. I think she has made an extremely powerful case. As I said, if she decides, having heard the Government’s response, to test the opinion of the House, we shall be with her in the Division Lobby.
Baroness Williams of Trafford
My Lords, I pay tribute to the work that the noble Baroness, Lady Royall, carries out as a trustee of Paladin to support and give a voice to victims of stalking.
Obviously it would be wrong of me as a Minister to comment on individual cases, particularly on sentences imposed in those cases. However, I want to express my sympathy for the victims of these crimes, which can have significant effects on their lives. It is important to consider the evidence of how sentencers are using the range of penalties available to them today. It is very rare that sentences are given that are near to the current maximum. In 2015 only three people received sentences of over three years for the Section 4A offence, and the average custodial sentence was 14.1 months. The evidence therefore suggests that judges are finding their current sentencing powers for this offence sufficient.
We must also bear in mind that, in addition to this specific stalking offence, this type of offending can be charged under other offences such as assault, criminal damage and grievous bodily harm with intent. When an offender is convicted for one of those offences, they will face a maximum penalty of 10 years for criminal damage or life imprisonment for GBH with intent.
I reassure noble Lords that the Government are taking steps to ensure that stalking is dealt with seriously. As the noble Baroness acknowledged, last Wednesday we announced plans to introduce a new stalking protection order aimed at ensuring that pre-charge options are available to the police to protect victims of stranger-stalking to the same level as victims of domestic violence and abuse. Breaches of these orders will be a criminal offence carrying a maximum penalty of five years’ imprisonment.
Alongside the work of government, the independent Sentencing Council is currently considering sentencing guidelines for intimidatory offences, including the stalking offence covered by the noble Baroness’s amendment. The council aims for its definitive guidelines to come into force in early 2018, following a consultation on the draft guidelines early next year. I encourage the noble Baroness and others to respond to the consultation.
We are also looking at the wider picture of how stalking offences are dealt with and prosecuted. Her Majesty’s Inspectorate of Constabulary and Her Majesty’s Crown Prosecution Service Inspectorate are currently carrying out a joint inspection on the effectiveness of the police and CPS response to cases involving stalking and harassment, and to examine the service received by victims.
In setting maximum penalties, we must also consider the penalties available for other, related offences. These include the other offences under Sections 2 and 4 of the Protection from Harassment Act, which can cover similar offending behaviour. We should consider carefully the potential impacts of creating such a large difference between the maximum penalties for the Section 4 and 4A offences, as the amendment proposes. Other relevant offences include assault occasioning actual bodily harm or grievous bodily harm, for which the statutory maximum penalty is five years’ imprisonment. To increase the maximum penalty for stalking offences causing fear of violence would mean that the penalty for causing fear of violence would be higher than that for causing the violence itself.
We recognise that it is often the case that raising the maximum penalty appears to be a straightforward solution to a problem. I do not think it is a straightforward solution in this case. It may be necessary in due course but, before moving to raise the maximum, we should give careful consideration to the implications for other related offences and avoid creating anomalies in the criminal law.
However, I recognise the strength of feeling about this issue and the harm that can be caused by the most serious stalking cases. The Government will therefore review the operation of the Section 4A stalking offence and related offences. We will consider the maximum custodial sentences available to the court and, in addition, consider mental health sentences to consider how best to identify and address the underlying issues that are present in the most serious cases. The review will supplement the work being done by the Home Office to prevent stalking by looking at the ultimate sanctions available for those who continue to commit offences. I hope this review will also provide further material for the Sentencing Council to draw on as it produces sentencing guidelines for stalking and related offences. Given this commitment to review the operation of Section 4A, I hope the noble Baroness will feel able to withdraw her amendment.
Baroness Royall of Blaisdon
My Lords, I am grateful for that response from the Minister and for the contributions from other noble Lords. Of course I hear what the noble Viscount, Lord Hailsham, says. I too loathe prisons; I recognise that they are overflowing and that the conditions inside many of them are abhorrent. However, I agree with the noble Lord, Lord Paddick, that many people who are sentenced to prison should not be there, but that does not mean to say that the people who in my view should be in prison should not be there. So I do not agree with the noble Viscount.
It is true that other crimes can be taken into account but I am referring to one specific crime, stalking, and I think we should take that specific crime seriously. It should not always have to be taken into account along with other crimes.
The Minister pointed out the potential differences between sentences; as she says, actual bodily harm has a maximum of five years. However, I believe that is because the harm that is caused does not have to be really serious; typically, it is bruising. What we are talking about here is something that blights people’s lives and those of their families year after year.
I am grateful for the offer from the Minister for a review but, as I mentioned in my speech, this is something that I and many others, including the noble Baroness, Lady Brinton, cared about four years ago when we argued that the maximum sentence should be 10 years. The last four years have shown us that a five-year maximum is not enough, and I therefore wish to test the opinion of the House.
“Evidence about complainant’s sexual history
(1) The Secretary of State shall within six months of the day on which this section comes into force, publish a report on the operation of section 41 of the Youth Justice and Criminal Evidence Act 1999 (restriction on evidence or questions about complainant’s sexual history).(2) The report shall, in particular, include information regarding—(a) the number of applications made for leave in accordance with subsection 41(2) of the Act;(b) the number of such applications granted;(c) the number of such applications refused;(d) the number of prosecutions not proceeded with because of the victim’s concerns as to an application for leave;and to the extent numerical information is not available, as full information as possible regarding such matters.(3) The report may include proposals for the amendment or repeal of section 41 of the Act.”
Lord Marks of Henley-on-Thames
My Lords, I move the amendment on behalf of my noble friends Lord Paddick and Lady Hamwee. We debated an exactly similar amendment in Committee. It arises from the Ched Evans case and concerns the restriction on the admission in cross-examination of evidence about a complainant’s sexual history in sexual offences cases. The amendment arose from our concern to ensure that the restriction on the admissibility of such evidence in cross-examination was as strong as we had always believed it to be under Section 41 of the Youth Justice and Criminal Evidence Act 1999.
At the end of that debate, the Minister said that the Government had carefully considered the concerns that had been raised about the provision; that they would determine how best to look at how it was working in practice before deciding whether any further action needed to be taken; and that they would do that as soon as possible. A trenchant question from the noble Lord, Lord Kennedy of Southwark, elicited the answer that that was indeed a promise of a review, which is what we had been seeking.
The reason for tabling the amendment again on Report is to ask the Minister to elaborate further on the review that she has in mind. We are interested to ask what timescale is proposed for the review; who will carry it out, and how; what the terms of reference will be; and how evidence for the review will be collated. I hope that she will be able to respond on those questions at this stage and I beg to move.
Viscount Hailsham
My Lords, I shall be very brief. I have no objection to my noble friend answering the questions posed by the noble Lord; it is obviously right that she should. My objection lies to proposed new subsection (3), because I do not think that the existing law needs any change. If one looks at the primary legislation, one sees that the ability of defence counsel to ask questions or call evidence is hedged about by judicial restriction and can be exercised only relatively rarely. I have been in court many times when this has happened, and there is no sense that the legislation is being abused, that evidence is being adduced unnecessarily or that cross-examination is being done wrongly.
At the end of the day, I believe that the law is right as it stands. Although I have no objection to a review and no objection to the questions put by the noble Lord, I do not think we need to change the law—and I am therefore bound to say that subsection (3) of the proposed new clause poses problems as far as I am concerned.
Lord Hope of Craighead
My Lords, I will add just a footnote to what the noble Viscount said. Some years ago, there was a challenge to Section 41 of the 1999 Act on the ground that it was incompatible with the convention right to a fair trial. I sat upstairs in a committee room as a Law Lord with the Appellate Committee. We were very careful to restrict the ability of counsel to explore these matters, as far as we possibly could consistent with the right to a fair trial. I am glad to hear that, from the noble Viscount’s experience, the system is working very well. On the other hand, when we were framing our restrictive view as to how the section should be applied, we were looking to the future; we did not have the benefit of experience. Like the noble Viscount, I have no objection to a review, which I suppose might serve some useful purpose by informing everyone as to whether the system is really working as the Law Lords expected it should.
Baroness Williams of Trafford
My Lords, the noble Lord, Lord Marks, raises the important issue of the protection of complainants of rape and sexual offences from being questioned about their sexual history. As I previously made clear, it is vital that victims have the confidence to report crimes as terrible as rape, and that they have confidence that the criminal justice process will bring offenders to justice. Our message to those who are willing but currently worried about reporting such offences is that they should feel confident about doing so.
When we first debated the issue, I assured noble Lords that we would look at how Section 41 of the Youth Justice and Criminal Evidence Act 1999 was working in practice. As the noble Lord asked, perhaps I may provide a bit more detail. The Justice Secretary and the Attorney-General have advised me that this will include examining the original policy intent of Section 41, its implementation and how it is operating in practice.
I can confirm that this work will be led by officials in the Ministry of Justice and the Attorney-General’s Office. They will consider carefully the concerns that have been raised and seek views from the judiciary, practitioners and victims’ groups. This work will be completed in the first half of next year.
We have already made clear our commitment to carry out this work and, in our view, there is no benefit in making it a statutory requirement. In the light of the detail that I have provided, I hope that the noble Lord will feel happy to withdraw his amendment.
Lord Marks of Henley-on-Thames
My Lords, I am very grateful to the Minister for the further detail that she has given on the review. I quite accept her position that there is no need for a statutory requirement for it, so I propose to withdraw my amendment. However, in response to the speeches of the noble Viscount, Lord Hailsham, and the noble and learned Lord, Lord Hope, I make clear to the House, for those who may not be familiar with it, that concerns have arisen in the light of the decision of the Court of Appeal in the Ched Evans case, in which the admission of such evidence in cross-examination was permitted in a case in which many thought that it would be excluded. It is for that reason that this has become a matter of additional concern, and for that reason that we are extremely grateful that the review is to be carried out. I beg leave to withdraw the amendment.
Baroness Hamwee
“( ) The Secretary of State shall, within twelve months of the passing of this Act, undertake a consultation with regard to senior coroners’ duties to conduct inquests into the death of persons deprived of liberty under section 4A(3) or (5) or 4B of the Mental Capacity Act 2005.”
Baroness Hamwee
My Lords, this amendment is in my name and that of my noble friend Lord Paddick. In Committee the noble Baroness, Lady Finlay, proposed an amendment which is now in the Bill as Clause 155. Our amendment is not to challenge the clause but to ask for clarification. I have two questions. It became clear after the clause was agreed that the issue is more contentious than I had appreciated. It is about ending the automatic requirement for an inquest for those detained in the circumstances that are the subject of the provision. It is not about there being no right to an inquest; the noble Baroness made that entirely clear.
However, there seems to be a wider issue about the application and impact of deprivation of liberty safeguards—DoLS is the acronym. I was asked, as other noble Lords no doubt were, by Liberty to table an amendment to remove the clause. I said: “No: that is not only inappropriate but our procedures would not allow it”—but it seems right to ask two questions.
The Government are aware of the first question. The Liberty briefing suggested that cost saving was at the heart of the amendment to the legislation. The noble Baroness, Lady Finlay, described the emotional stress for families, and I do not think she came anywhere close to cost savings. I would be grateful if the Government could tell us what cost saving is likely to be achieved by the change, or otherwise allay that fear. The second question, as is obvious from the amendment, is: what consultation did the Government undertake before the amendment that they supported on the previous occasion? I beg to move.
Baroness Finlay of Llandaff (CB)
My Lords, I am most grateful to the noble Baroness. Lady Hamwee, for speaking to me beforehand; we have had some discussion. I would like to go straight to answering both those questions, from my perspective, as I was the person who tabled the original amendment. I must declare my interest, as I now chair the National Mental Capacity Forum. I took over and started to do that in September of last year.
In terms of consultation, when I was listening to the voice of the person who had been on the receiving end of the Mental Capacity Act it was very evident very quickly that the automatic requirement for an inquest was causing an enormous amount of distress to families. It was also through that process that Ann Coffey MP consulted widely in her constituency and further afield—and coroners have been asked. So this was not brought forward lightly.
There was also consultation with the adviser to the Care Quality Commission, who feels strongly that DoLS are a useful process for safeguarding people who are particularly vulnerable. He was very supportive of the process following the judgment of the noble and learned Baroness, Lady Hale, which clearly laid out the acid tests under which DoLS should be applied.
As for cost savings, I see there being absolutely none. Actually, there is a possibility that costs might go up. Although unnecessary inquests will not, I hope, happen, so coroners will not be taken away from inquests that really do need to happen by the bureaucratic process of the unnecessary inquests, of which there were almost 7,000 last year, that find that death was due to natural causes, it is possible—indeed, I hope that this will happen—that more people will be inclined to make a deprivation of liberty safeguards application if there is a doubt about whether somebody is being deprived of liberty, because the deterrent of knowing how much distress would be caused to people, including families, will be removed.
Care home, clinical and hospital staff find it very distressing to say, “We’re going to go through this process of applying for a deprivation of liberty safeguards authorisation—and, secondarily, by the way, that means that there will automatically be a coroner’s inquest”. For those who culturally need a burial very rapidly after somebody has died, that causes profound upset—as it does to other families. As one coroner’s officer said, to me, “Sadly, sometimes the first time the families realise there has to be an inquest is when I have to pick up the phone to tell them, and they are deeply distressed”.
I suggest that by putting this measure in place we are removing a barrier to the deprivation of liberty safeguards, which are a way of protecting the rights of the most vulnerable person, because there is an inspection process. It must be necessary, proportionate and in the person’s best interests, and the person has a power to appeal to the Court of Protection against a deprivation of liberty safeguard. So people have far greater rights than somebody who ought to have a deprivation of liberty safeguard authorisation in place but where no application is being made. So I hope that this will increase the rights of the most vulnerable as well.
The process of scrutiny is that the Care Quality Commission has to be notified when a standard DoLS is in place. It will know whether a place has unusually many or unusually few DoLS applications, and will look in depth at the quality, the atmosphere and the culture around the way that care is given there. With all due respect to coroners, I think that the CQC is far more likely to detect where things are going wrong than a coroner’s inquest on a single case. But I reiterate that if a family have any concerns whatever, irrespective of whether there was a DoLS in place, they can ask for a coroner to look at a case when somebody has died. If they are suspicious, they can ask the question.
Baroness Chisholm of Owlpen
My Lords, I am grateful to the noble Baroness, Lady Hamwee, for raising this important issue. The Government take seriously their responsibilities to the very vulnerable group of people in society whom this amendment concerns. I also thank the noble Baroness, Lady Finlay, for her deep knowledge of this issue, and for the words that she has spoken this evening.
Coroners in England and Wales play a critical role in investigating the deaths of persons where there is a suspicion that death may have resulted from violence or unnatural causes, or indeed where the cause of death is unknown. Coroners will continue to have this duty with regard to persons who have been deprived of their liberty as authorised under the Mental Capacity Act 2005. There is no restriction on when or by whom deaths can be reported to a coroner. Indeed, the registrar of deaths has a duty to report deaths to the coroner where he or she considers that the coroner’s duty to investigate may apply.
The Government recognise that there is a need to improve the scrutiny of deaths that are not investigated by a coroner. The Coroners and Justice Act 2009 contains provisions to introduce medical examiners who will contact the deceased’s family and those involved in the deceased person’s care to identify any concerns as part of a reformed death certification process.
We consulted on our proposals earlier this year and aim to publish our response to the consultation in the new year. This will of course be particularly relevant to vulnerable people in hospitals and care homes, regardless of whether they are being deprived of their liberty. Medical examiners will not just be responsible for scrutinising individual deaths not investigated by the coroner but will have a role in analysing data on deaths across their area. They will identify patterns and contribute to lessons that will reduce avoidable deaths. They will also have a duty to report to coroners deaths for which a coroner’s investigation may be required.
The effect of Clause 155 will be that the death of anyone subject to a deprivation of liberty safeguards authorisation, or an appropriate Court of Protection order, will no longer trigger an automatic coroner’s investigation. We supported this change in the law in the light of views expressed by the then chief coroner, his honour Peter Thornton QC, in his 2015-16 annual report. He called for immediate action to remove deprivation of liberty safeguards cases from the definition of “in state detention”—a point that, just prior to his recent retirement, he reiterated to the Minister for Victims, Youth and Family Justice.
The issue here is not simply one of the resources needed to undertake these inquests. The then chief coroner had addressed this to some extent through his 2014 guidance, revised in 2016, which set out a streamlined process. But, as he has said, these inquests “serve no good purpose”. It cannot be right that more than 20% of inquests undertaken each year are unnecessary, with all that that implies in terms of added anguish for bereaved families.
I thank the noble Baroness for raising the profile of this important issue, but I hope that she will accept that the Government’s recently completed consultation on reforming the death certification process will, when its proposals are implemented, complement and support the work of our coroners who investigate suspicious deaths.
I think that the noble Baroness, Lady Hamwee, asked who we consulted in the consultation. The Ministry of Justice consulted the former and current chief coroner. Having said that, we consider that this removes any further need for further consultation on the coroner’s statutory duties, and I hope that the noble Baroness will therefore be content to withdraw her amendment.
Baroness Hamwee
I thank the Minister, but I cannot restrain myself from observing that her answer has been that there has been a consultation and that the Government will publish their response to it next year. I say that as nicely as I can, because clearly a lot of work has gone on with regard to this—and I am grateful to the noble Baroness, Lady Finlay of Llandaff, as well, for filling out the information that she gave pretty comprehensibly to the House on the last occasion. I beg leave to withdraw the amendment.
Baroness Brinton
“Police observance of the Victims’ Code: enforcement
(1) The Parliamentary Commissioner Act 1967 is amended as follows.(2) In section 5(1B) omit from “by” to “sections 35”.(3) After section 5(1B) insert—“(1BA) Subsection (1C) applies if a written complaint is made to the Commissioner by a member of the public who claims that—(a) a police officer;(b) a police service employee other than a police officer; or(c) another person determined under section (1BC);has failed to perform a Code duty owed by him to the member of the public. (1BB) For the purposes of subsection (1BA) a Code duty is a duty imposed by a code of practice issued under section 32 of the Domestic Violence, Crime and Victims Act 2004 (code of practice for victims).(1BC) The Secretary of State may by regulations made by statutory instrument amend the categories of person identified in subsection (1BA) as the Secretary of State thinks fit.”(4) In section 5(4A), after “(1A)” insert “or (1BA)”.(5) In section 6(3), at beginning insert “Except as provided in subsection (3A)”.(6) After section 6(3) insert—“(3A) Subsection (3) shall apply in relation to a complaint under section 5(1BA) as if for “a member of the House of Commons” there were substituted “the Commissioner”.”(7) In section 7(1A), after “5(1A)” insert “or 5(1BA)”.(8) In section 8(1A), after “5(1A)” insert “or 5(1BA)”.(9) After section 10(2A) insert—“(2B) In any case where the Commissioner conducts an investigation pursuant to a complaint under section 5(1BA) of this Act, he shall send a report of the results of the investigation to—(a) the person to whom the complaint relates,(b) the principal officer of the department or authority concerned and to any other person who is alleged in the relevant complaint to have taken or authorised the action complained of, and(c) the Commissioner for Victims and Witnesses appointed under section 48 of the Domestic Violence, Crime and Victims Act 2004 (commissioner for victims and witnesses).”(10) After section 10(3B) insert—“(3C) If, after conducting an investigation pursuant to a complaint under section 5(1BA) of this Act, it appears to the Commissioner that—(a) the person to whom the complaint relates has failed to perform a Code duty owed by him to the person aggrieved, and(b) the failure has not been, or will not be, remedied, the Commissioner shall lay before each House of Parliament a special report upon the case.(3D) If the Commissioner lays a special report before each House of Parliament pursuant to subsection (3C) the Commissioner may also send a copy of the report to any person as the Commissioner thinks appropriate.(3E) For the purposes of subsection (3C) “Code duty” has the meaning given by section 5(1BB) of this Act.”(11) In section 10(5)(d), for “or (2A)” substitute “, (2A) or (2B)”.(12) In section 12(1), after paragraph (b) of the definition of “person aggrieved”, insert—“(c) in relation to a complaint under section 5(1BA) of this Act, means the person to whom the duty referred to in section 5 (1BA) of this Act is or is alleged to be owed;”.”
Baroness Brinton (LD)
I thank the Minister for meeting me and others to discuss this group of amendments about support for victims. I was pleased that she said that the Government would bring proposals forward to strengthen victims’ rights; I was slightly less pleased that it was “in due course”. We have heard an awful lot tonight about an awful lot of reviews in future, and I am mindful of the amendment proposed by the noble Baroness, Lady Royall, after which we were also told that there would be future reviews on stalking law. Much of the difficulty that faces victims navigating the criminal justice system is because nobody is taking hold of the evidence that we have about what is and is not working.
There has been a substantial amount of legislation over the last few years, with the victim personal statement scheme in 2001, witness care units, the code of practice for victims of crime from April 2006, the victims’ fund, victim support, restorative justice, and of course the creation of the Victims’ Commissioner. In January 2015, the noble Baroness, Lady Newlove, said in her first Victims’ Commissioner report:
“I raised concerns about the process, the process was almost worse than the actual journey of being a victim”.
Her report noted that justice agencies failed to demonstrate “compassion, empathy and patience” when handling complaints from victims. She said that,
“victims feel ignored, unimportant and confused when raising concerns about their treatment”.
The report took into account the experiences of over 200 victims and assessed the performance of all criminal justice agencies listed in the victims’ code, and the review found that inadequate attention was paid to the “personal touch” that was needed.
The Government responded thereafter, and there has sadly been very little progress—and the Public Accounts Committee published earlier this year a report that noted that the,
“system is bedevilled by long standing poor performance including delays and inefficiencies, and costs are being shunted from one part of the system to another … The criminal justice system is not good enough at supporting victims and witnesses …Timely access to justice is too dependent on where victims and witnesses live … The Ministry has been too slow to recognise where the system is under stress, and to take action to deal with it … There is insufficient focus on victims, who face a postcode lottery in their access to justice due to the significant variations in performance in different areas of the country”.
So “due course” is just not good enough; we need to move forward and need it urgently. The core of the problem is that victims’ rights are currently not covered by entitlements in the victims’ code, originally designed in 2015 to make the system more responsive and easier to navigate. It is just not legally enforceable and places discretionary accountability on to the agencies, and victim feedback strongly suggests that agencies often fail to apply the code. Agencies that should be guided by the code are aware that a failure to provide the service does not make the service provider liable to any legal proceedings.
Lord Rosser
I will be brief, but my name is attached to most of the amendments which we are now addressing. A victims’ rights Bill was introduced in the other place last year by the then shadow Home Office Minister, Sir Keir Starmer, and it had all-party support. As the noble Baroness, Lady Brinton, has said, victims’ rights are largely covered by entitlements in the victims’ code and affected by various other initiatives in recent years. However, the key thing is that the code is not legally enforceable and feedback from victims suggests that it is not applied by the relevant agencies. Maybe that is because they are aware that a failure to provide the service does not make a service provider liable to any legal proceedings. Lack of information and support to victims are the major areas of concern, with victims prioritising the right to information, protection, treatment and support as the highest priorities. These amendments place victims’ rights in a statutory framework and place a statutory duty on the Secretary of State to publish and implement a strategy to provide training for all relevant professionals and agencies on the impact of crime on victims. In essence, these amendments lay down what support should be offered to victims, how that support is managed, what training is necessary to put it into place and how complaints can be pursued. These amendments have our support.
Baroness Hamwee
My Lords, I hope that my noble friend will understand that, given the further business to which the House has to attend tonight, I will confine myself to saying that we on these Benches enthusiastically support her amendments.
Baroness Chisholm of Owlpen
I thank the noble Baroness, Lady Brinton, for meeting with me, and for tabling these amendments again so that this House has a further opportunity to debate the important issue of victims’ rights.
Some of the amendments seek to place aspects of the Code of Practice for Victims of Crime on a statutory basis. This is a statutory code, provided for by the Domestic Violence, Crime and Victims Act 2004, and as such all criminal justice agencies are required to provide the services victims are entitled to under it. Many of the entitlements for victims included in the proposed amendments are already in the code. Some are for all victims of crime, while others are enhanced entitlements for the most vulnerable victims of crimes such as stalking and domestic and sexual abuse. Placing them on a statutory footing separately will not ensure compliance, nor guarantee that those entitlements are delivered effectively. The effect would merely be symbolic, and make amendment and updating of entitlements more difficult.
As I said before, we recognise the importance of training for professionals who work with victims. Under the police educational framework and national curriculum, police officers and staff receive training on the code throughout their careers. Officers and staff can receive training on the code at various stages of their careers. This training is supported by a new online package launched by the College of Policing. All Crown Prosecution Service staff who attend court have been given face-to-face training on the new Speaking to Witnesses at Court guidance and on how to interact with victims and witnesses at court without undermining the fairness of the trial. This is supported by a comprehensive package of e-learning, which barristers who appear for the CPS in court are expected to complete.
We also appreciate that more can be done in relation to certain categories of crime. That is why, for example, the College of Policing, as part of reviewing its guidance on stalking and harassment investigations, is looking at whether police officers fully understand the offences and are receiving appropriate training. It is also why Her Majesty’s Inspectorate of Constabulary and Her Majesty’s Crown Prosecution Service Inspectorate are carrying out a joint inspection to assess the effectiveness of police forces and the CPS in dealing with cases involving stalking and harassment, and to examine the service received by victims. The CPS is developing a training package for its prosecutors to improve the quality of charging and review decisions in stalking and harassment cases.
There has also been a concerted effort to improve the response of the police in domestic abuse cases. In its most recent national thematic inspection of the police response to domestic abuse, Her Majesty’s Inspectorate of Constabulary found improvements in police attitudes towards victims and front-line officers’ understanding of the importance of dealing with victims in a supportive way. Since 2014, every police force has published a domestic abuse improvement plan, new guidance has been published by the College of Policing, new training has been successfully piloted and for the first time, police are now collecting data against a national standard on all domestic abuse recorded crimes. A joint police and CPS witness care review is looking to identify clear performance measures which would include timeliness of communication of information to witnesses as set out in the code. In addition, Her Majesty’s Courts & Tribunals Service is undergoing an audit by the Government Internal Audit Agency on the effectiveness of arrangements in place for victims and witnesses, against requirements in the victims’ code and the witness charter. Results are expected in the first quarter of 2017.
In order to determine what is required to strengthen further the rights of victims of crime, we are looking at available information about compliance with the victims’ code, and considering how it might be improved and monitored. We are also looking carefully at the range of proposals that have been made by the Commissioner for Victims and Witnesses and others. We are focused on making sure we get this work right, and ensuring that any future reform proposals are evidence-based, and an effective and proportionate approach.
Finally, in relation to Amendment 188, which seeks to provide a direct route of complaint for victims to the Parliamentary Ombudsman, I should add that on 5 December the Cabinet Office published a draft public service ombudsman Bill. The Bill will improve access to the ombudsman’s services by allowing for all complaints to be made with or without the help of a representative and in a variety of formats to meet the digital age. When the Bill is brought before your Lordships’ House, it will provide a further opportunity for noble Lords to test whether the measures I have set out are delivering the improvements to the experience of victims in their interaction with the criminal justice system that we all want to see.
I hope that, having further debated these issues and received greater detail of the work that is being undertaken both by the Government and by the criminal justice agencies, the noble Baroness will be content to withdraw her amendment.
Baroness Brinton
I thank the Minister for her response, but sadly, many of the concerns I have raised were not particularly well articulated. There is no doubt that there is an entitlement to victims to have support. The fundamental problem is that there is no duty on the agencies to deliver it. The Minister said that police receive training when they first start their careers, and they can receive training later on. The problem is that, in practice, it does not happen consistently. The experience of victims, as outlined both tonight and at earlier stages of the Bill, demonstrates that it is still woefully inadequate in some parts of the country. The College of Policing clearly has an important role, but there are real concerns that there is a focus on the domestic abuse improvement plan without understanding that stalking and coercive control are key issues as well.
I accept the points the Minister has made about the draft public services ombudsman Bill, but there is more in Amendment 188 than is covered in that draft Bill. I believe that I have noble Lords’ support, and I would like to test the opinion of the House.
Baroness Brinton
“Police etc. provision for victims’ entitlement: framework
(1) The Victims’ Code provided for under section 32 of the Domestic Violence, Crime and Victims Act 2004 (code of practice for victims) shall include, but not be limited to, the entitlement of victims of crime to receive accurate and timely information from—(a) the police; and (b) such other agencies of the criminal justice system concerned with the detection and prosecution of the relevant crime and with the support of victims of crime as the Secretary of State deems fit.(2) The police must ensure provision to victims of—(a) adequate notice of all relevant court and other legal proceedings,(b) information about decisions by and discussions between the police and other agencies of the criminal justice system relating to the person convicted of the crime concerned (“the perpetrator”),(c) information about any prison sentence previously served by the perpetrator,(d) information about relevant changes to the perpetrator’s circumstances whilst on parole or in custody,(e) information about any crimes committed by the perpetrator outside the United Kingdom where the victim of the crime concerned is a British national,(f) access, where required, to adequate interpretation and translation services, and(g) information about the direct contact details of the criminal justice agencies and individuals involved in the court or other legal proceedings concerned.(3) During criminal justice proceedings, the police and other relevant agencies and authorities of the criminal justice system must ensure that victims of crime—(a) are not subjected to unnecessary delay by any other party to the proceedings;(b) are treated with dignity and respect by all parties involved; and(c) do not experience discriminatory behaviour from any other party to the proceedings.(4) Children and vulnerable adults must be able to give evidence to a court from a secure location away from that court or from behind a protective screen.(5) The investigating police force concerned must ensure the safety and protection of victims of crime during proceedings, including but not restricted to—(a) a presumption that victims of crime may remain domiciled at their home with adequate police protection if required; and(b) ensuring that the victim and those accompanying them are provided with access to a discrete waiting area during the relevant court proceedings.(6) All victims of crime shall have access to an appropriate person to liaise with relevant agencies on their behalf and to inform them about and explain the progress, outcomes and impact of their case.(7) Witnesses under the age of 18 shall have access to a trained communications expert, to be known as a Registered Intermediary, to help them understand as necessary what is happening in the criminal proceedings.(8) Victims of crime shall have access to transcripts of any relevant legal proceedings at no cost to themselves.(9) Victims of crime shall have the right to attend and make representations to a pre-court hearing to determine the nature of the court proceedings.(10) The Secretary of State must take steps to ensure that victims of crime—(a) have access to financial compensation from public funds for any detriment arising from the criminal case concerned;(b) are given the right to approve or refuse the payment of any compensation order made by a court against a person convicted of a crime against them; (c) have reimbursed to them, from public funds, any expenses incurred by them in attending in court and in any related legal process, whether in the United Kingdom or overseas;(d) have available to them legal advice where considered necessary by a judge in court proceedings; and(e) are not required to disclose personal data in legal proceedings which puts their safety at risk unless specifically ordered to do so by a judge.”
“Police etc. training on treatment of victims: strategy
(1) The Secretary of State shall publish and implement a strategy for providing training on the impact of crime on victims and victims’ rights for staff of the following organisations—(a) the police,(b) the Crown Prosecution Service, and(c) any other public agency or authority that the Secretary of State deems appropriate.(2) The Secretary of State shall also by regulations made by statutory instrument make provision for judges, barristers and solicitors involved in criminal cases involving stalking, coercive control or sexual and domestic violence to undertake specialist training.(3) The Secretary of State shall publish an agreed timetable for the delivery and completion of the training required by this section.”
“Training on treatment of victims: duty to report
(1) The Secretary of State shall have a duty to collect, codify and publish data in respect of—(a) the training of the police and Crown Prosecutors on the subjects of stalking, coercive control and the victims’ code, and(b) instances of non-compliance with the victims’ code by all statutory agencies, and the effectiveness of all complaints procedures involving allegations of a failure to comply with the victims’ code.(2) The Secretary of State shall publish the data in an annual report which shall be laid before both Houses of Parliament.(3) The first report under subsection (2) shall be laid before both Houses of Parliament within a year of the day on which this section comes into force.”
“Statutory duty on elected local policing bodies
(1) An elected local policing body must assess—(a) the needs of victims in each elected local policing body’s police area, and(b) the adequacy and effectiveness of the available victims’ services in that area.(2) An elected local policing body must—(a) prepare and consult upon an Area Victims’ Plan for its police area,(b) having taken account of any responses to its consultation and any Quality Standard, publish the plan in such a manner as sets out clearly how the identified victim needs will be met by the available victims’ services, and(c) submit its Area Victims’ Plan to the Commissioner for Victims and Witnesses on an annual basis.(3) In this section—“elected local policing body” and “police area” have the same meaning as in Part 1 of the Police Reform and Social Responsibility Act 2011, “Quality Standard” means the standard published under section 49(1)(f) of the Domestic Violence, Crime and Victims Act 2004.”
“Duties of the Commissioner for Victims and Witnesses
(1) Section 49 of the Domestic Violence, Crime and Victims Act 2004 (general functions of Commissioner) is amended as follows.(2) In subsection (1), after paragraph (c) insert—“(d) assess the adequacy of each elected local policing body’s Area Victims’ Plans submitted to the Commissioner under section (Statutory duty on elected local policing bodies) of the Policing and Crime Act 2016;(e) make to elected local policing bodies such recommendations about submitted Area Victims’ Plans as the Commissioner considers necessary and appropriate;(f) prepare a statement of standards (the “Quality Standard”) in relation to the provision of victims’ services;(g) publish the Quality Standard in such manner as the Commissioner considers appropriate;(h) review the Quality Standard at intervals of not more than five years;(i) in preparing or reviewing the Quality Standard, consult the public, and for that purpose, publish drafts of the standard if he deems it necessary to do so;(j) assess the steps taken to support victims and witnesses in giving evidence;(k) make such recommendations in relation to that assessment as he considers necessary and appropriate;(l) issue guidance and standards for the establishment and conduct of homicide reviews under section (establishment and conduct of homicide reviews) of the Policing and Crime Act 2016.”.”
“Establishment and conduct of homicide reviews
(1) In this section “homicide review” means a review of the circumstances in which a person aged 16 or over has, or appears to have, died as the result of a homicide where—(a) no one has been charged with the homicide, or(b) the person or persons charged have been acquitted.(2) The Secretary of State may in a particular case direct a police force or other specified person or body or a person or body within subsection (5) to establish, or to participate in, a homicide review.(3) It is the duty of any person or body within subsection (5) establishing or participating in a homicide review (whether or not held pursuant to a direction under subsection (2)) to have regard to any guidance and standards issued by the Commissioner for Victims and Witnesses as to the establishment and conduct of such reviews.(4) Any reference in subsection (2) to the Secretary of State shall, in relation to persons and bodies within subsection (5)(b), be construed as a reference to the Police Service of Northern Ireland or Department of Justice in Northern Ireland as may be appropriate.(5) The persons and bodies within this subsection are—(a) in relation to England and Wales—(i) chief officers of police for police areas in England and Wales;(ii) local authorities;(iii) the National Health Service Commissioning Board; (iv) clinical commissioning groups established under section 14D of the National Health Service Act 2006;(v) providers of probation services;(vi) Local Health Boards established under section 11 of the National Health Service (Wales) Act 2006;(vii) NHS trusts established under section 25 of the National Health Service Act 2006 or section 18 of the National Health Service (Wales) Act 2006;(b) in relation to Northern Ireland—(i) the Chief Constable of the Police Service of Northern Ireland;(ii) the Probation Board for Northern Ireland;(iii) Health and Social Services Boards established under Article 16 of the Health and Personal Social Services (Northern Ireland) Order 1972 (SI 1972/1265 (NI 14));(iv) Health and Social Services trusts established under Article 10 of the Health and Personal Social Services (Northern Ireland) Order 1991 (SI 1991/194 (NI 1)).(6) In subsection (5)(a) “local authority” means—(a) in relation to England, the council of a district, county or London borough, the Common Council of the City of London and the Council of the Isles of Scilly;(b) in relation to Wales, the council of a county or county borough.”
“( ) section (Deputy Mayor for Policing and Crime as member of local authority);”
“( ) sections 82(2) to (5), 84 to 90 and 93;( ) sections 94(2) to (7), 96 to 102 and 104;”
“(1A) Chapter 6A of Part 4 comes into force on such day as the Department of Justice in Northern Ireland appoints by order, and the power conferred by this subsection is exercisable by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (S.I. 1979/1573) (N.I.12)).”
“(2A) Sections (Disregarding convictions etc of certain abolished offences: Northern Ireland), (Posthumous pardons for convictions etc of certain abolished offences: Northern Ireland), (Other pardons for convictions etc of certain abolished offences: Northern Ireland), and (Sections (Posthumous pardons for convictions etc of certain abolished offences: Northern Ireland) to (Power to provide for disregards and pardons for additional abolished offences: Northern Ireland): supplementary) come into force on such day as the Department of Justice in Northern Ireland appoints by order, and the power conferred by this subsection is exercisable by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (S.I. 1979/1573)(N.I. 12)).”
Lord Paddick
“( ) section (Inquiry into complaints alleging corrupt relationships between police and newspaper organisations);”
“(7A) The Department of Justice in Northern Ireland may by order make such transitional, transitory or saving provision as it considers appropriate in connection with the coming into force of any provision of Chapter 6A of Part 4, and the power conferred by this subsection is exercisable by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (S.I. 1979/ 1573) (N.I.12)).”
“(8A) The Department of Justice in Northern Ireland may by order make such transitional, transitory or saving provision as the Department of Justice in Northern Ireland considers appropriate in connection with the coming into force of sections (Disregarding convictions etc of certain abolished offences: Northern Ireland), (Posthumous pardons for convictions etc of certain abolished offences: Northern Ireland), (Other pardons for convictions etc of certain abolished offences: Northern Ireland), and (Sections (Posthumous pardons for convictions etc of certain abolished offences: Northern Ireland) to (Power to provide for disregards and pardons for additional abolished offences: Northern Ireland): supplementary).”
21st Century Fox Takeover Bid for Sky
(8 years ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
With your Lordships’ leave, I will repeat as a Statement an Answer given in another place by my right honourable friend Matthew Hancock. The Statement is as follows:
“As honourable Members know, Sky plc announced on Friday 9 December that it had received an approach from 21st Century Fox to acquire the 61% share in Sky plc which it does not already own. The announcement made clear that the independent directors of Sky plc and 21st Century Fox have reached agreement on price. However, the offer is subject to further discussion, and Sky has advised that there is no certainty at this stage that an offer will be made. The terms of any deal will obviously need to be agreed by the non-21st Century Fox shareholders of Sky plc. The announcement also said that under the takeover code, 21st Century Fox is required to set out its intentions by 6 January 2017. The Government have had no prior information from either of the parties, and there has been no contact with either Sky plc or 21st Century Fox about the possibility of the bid.
The Secretary of State has power to intervene in certain media mergers on public interest grounds, as set out under the Enterprise Act 2002. Government guidance on the operation of the public interest merger provisions under that Act gives an indication of how the intervention regime will operate in practice and the approach the Secretary of State is likely to adopt in considering cases. However, the important point is that each transaction will be looked at on its merits, on a case-by-case basis. The guidance makes clear that the Secretary of State will aim to take an initial decision on whether to intervene on public interest grounds within 10 working days of notification of the merger to the relevant competition authority or the transaction being brought to her attention, whichever is later.
The role of the Secretary of State here is a quasi-judicial one, and it is important that she acts independently and is not subject to improper influence. It would be inappropriate for me or the Secretary of State to comment further on this proposed bid. In the light of Friday’s Statement, and given the role of the Secretary of State is a quasi-judicial one, the department is putting into place procedures to ensure that the Secretary of State’s decision-making process is scrupulously fair and impartial. These will include guidance for other Ministers, special advisers and officials on dealing with the parties to the bid or any other interested parties to ensure representations are made only through proper channels, the designation of named officials who will support the Secretary of State in her decision-making process and guidance on how they should conduct themselves, ensuring no one who has a potential conflict of interest is involved in the process.
We are, of course, aware of the wide interest from Parliament given the issues raised by the 2010 bid by News Corp for Sky and the advice DCMS received from Ofcom in December 2011. However, if a formal bid is made by 21st Century Fox and accepted by the Sky plc shareholders, then the bid will need to be considered on its merits and in accordance with the legislation. At this stage we cannot comment further”.
Lord Stevenson of Balmacara (Lab)
My Lords, I thank the noble and learned Lord for repeating the Statement made in response to an Urgent Question in another place. I think a lot of people were concerned to hear last Friday that 21st Century Fox had struck a deal for the total takeover of Sky. Five years ago, a similar bid was abandoned after the Murdoch family and their friends and News Corporation were engulfed in the eye of the phone-hacking storm.
The concerns of 2011 were not just about the serious wrongdoing that was being uncovered by the phone-hacking scandal. They were also about the concentration of media power in fewer and fewer hands. I note that the noble and learned Lord has confirmed that the Secretary of State has power to intervene in certain media mergers on public interest grounds, as set out in the Enterprise Act 2002, and we look forward to having further details about that. I further note that the guidance makes clear, as the noble and learned Lord said, that the Secretary of State will aim to take an initial decision on whether to intervene on public interest grounds within 10 working days of formal notification of a merger to the relevant authorities and such formal notification has yet to be received. We will see how this matter transpires.
There is also the question of whether James and Rupert Murdoch—if they are to acquire the balance of Sky—are fit and proper persons to be licence holders of a regulated television service such as Sky. This is a matter for Ofcom. Last time round, had the bid not been withdrawn, I am sure the noble and learned Lord would agree that it is highly unlikely James or Rupert Murdoch would have passed this test. A lot of water has passed under the proverbial bridge since then, including confirmation of illegal activity, illegal payments and phone hacking in organisations controlled by them. Will the Minster confirm that this fit and proper person test is urgent and that Ofcom needs to attend to it forthwith?
Lord Foster of Bath (LD)
My Lords, we too want to see public interest and fit and proper investigations before any merger is given the go-ahead. We certainly do not want to see an American-style Fox News in the UK. We also need to know what the Government are up to to ensure that they are—as the Minister said they intend to be—scrupulously fair. I have one simple question. Given the numerous meetings that have taken place between government Ministers and Murdoch executives and the recent meeting between the Prime Minister and Rupert Murdoch, do the Government now agree that they should implement Lord Justice Leveson’s recommendations 83 and 84 immediately so that minutes are kept of such meetings and the content of the matters discussed made public?
Lord Keen of Elie
My Lords, I will respond first to the noble Lord, Lord Stevenson of Balmacara, on the fit and proper person test. Under the Broadcasting Act 1990, Ofcom needs to be satisfied that a holder of a broadcasting licence is a fit and proper person. That is entirely a matter for Ofcom. On a change of control, Ofcom may consider the issue but will do so only once the transaction has been completed.
With respect to the points raised by the noble Lord, Lord Foster of Bath, of course the process of dealing with this transaction will be fair and will be carried out, as I indicated before, by the Secretary of State discharging a quasi-judicial function. There is no present intention to deal with the matters in Leveson that the noble Lord refers to. As regards his suggestion of a recent meeting between the Prime Minister and Rupert Murdoch, I point out that the only recent meeting was in September, when the Prime Minister was attending a meeting with certain journalists and correspondents from the Wall Street Journal and Mr Murdoch arrived unannounced, as it were, at that meeting. I can advise the noble Lord that there was no discussion at that time of the present transaction.
Lord Inglewood (Con)
On the Ofcom adjudication on the fit and proper person, will my noble and learned friend the Minister confirm that the Government will make no recommendation of their views either for or against?
Lord Keen of Elie
As I indicated before, the matter of determining fitness to hold a broadcasting licence is entirely a matter for Ofcom.
Small Charitable Donations and Childcare Payments Bill
Monday 12th December 2016
(8 years ago)
Lords ChamberRead Full debate Small Charitable Donations and Childcare Payments Act 2017 View all Small Charitable Donations and Childcare Payments Act 2017 Debates Read Hansard Text Amendment Paper: Consideration of Bill Amendments as at 14 November 2016 - (15 Nov 2016)
Lord Young of Cookham
Lord Young of Cookham (Con)
My Lords, the Small Charitable Donations and Childcare Payments Bill is a short Bill—just nine clauses—and a technical Bill, but it is not unimportant. Indeed, contained within it are positive and pragmatic changes intended to simplify and improve the operation of both the gift aid small donations scheme and the tax-free childcare scheme.
The charity sector is one of this nation’s great assets. Many noble Lords will have experience of working for charities or serving as trustees and patrons. They will therefore be familiar with the important work charities do, as well as the challenges and pressures they face. Of course, noble Lords serving on the Select Committee on Charities are currently gathering evidence on charity governance and the challenges of sustaining the charity sector.
The Government recognise the importance of the charity sector and it is for that reason that they provide support to charities and donors through a generous package of tax relief worth more than £5 billion last year. This is up from £4.7 billion in 2014-15 and £4.4 billion in 2013-14. One of the most valuable tax reliefs available to charities is gift aid, which was worth around £1.3 billion last year. Gift aid allows charities to reclaim from HMRC the basic rate of tax paid by individuals on their donations.
To claim gift aid, a charity must obtain a declaration from the donor confirming their status as a UK taxpayer. This process works well, particularly for large donations, and I am sure noble Lords will be pleased to hear that gift aid repayments to charities continue to grow. But the Government recognise that there are circumstances where it is just not practical or feasible for fundraisers to stop donors and obtain a gift aid declaration, leading to a gap in the amount of gift aid claimed. The gift aid small donations scheme is intended to help address this gap by allowing charities to claim a gift-aid-style top-up payment on small cash donations.
Noble Lords present may recall that, during the passage of the Small Charitable Donations Act 2012, the Government committed to a full review of the gift aid small donations scheme after three years of operation. The Bill is the result of that review and the Government have listened to the charity sector. Indeed, the vast majority of the provisions within the Bill were originally put forward by the charity sector itself.
The Bill will make the gift aid small donations scheme simpler and more flexible so that it can benefit a greater number of charities and donations. I pay tribute to the hundreds of charities, representative bodies and others that took the time to engage with HMRC during the course of the review. I am pleased to report that the reforms in the Bill are forecast to benefit charities by up to £15 million per year. The new rules will particularly benefit the up to 9,000 new charities that apply for recognition by HMRC each year.
The Bill is intended to make life easier for charities. It will therefore substantially simplify the eligibility criteria of the gift aid small donations scheme, making it much easier for smaller and newer charities to access top-up payments. Charities will no longer need to wait for two years before making their initial claim, nor will they need to have claimed gift aid in at least two out of the previous four tax years, as they do currently.
Removing these rules will leave just one remaining condition that charities must meet to access payments: the gift aid matching rule. This rule requires charities to claim gift aid of £1 for every £10 claimed under the gift aid small donations scheme. It is necessary to retain this rule to maintain a link between the small donations scheme and the full gift aid scheme. A link to the main scheme is important, both as a means of incentivising charities to engage with gift aid and to allow HMRC to ensure that charities comply with the rules. It is the Government’s view that these changes strike the right balance between simplifying the scheme—making life easier for charities—and maintaining an effective deterrent against the dishonest minority who would seek to exploit the rules.
The Bill also relaxes and clarifies the operation of the community buildings rules. These rules are intended to deliver fairness and broad parity of treatment for charities structured in different ways. Without these rules some charities would be able to claim vastly more than others for no reason other than differences in the way the charities are structured. For many charities, the community buildings rules work very well. For example, many local churches have been able to benefit from the rules. Indeed, the Archbishops’ Council recently commented:
“Parishes were able to claim record levels of Gift Aid, with a significant part of this increase arising from the use of the Gift Aid Small Donations scheme”.
This is to be welcomed and we of course want churches to continue to benefit from the valuable extra income provided by the gift aid small donations scheme.
However, it has also become clear that other charities have been less able to fully utilise their community buildings allowances, most notably Scouts and other uniformed groups which, although based in community buildings, undertake most of their collections outside the building. The Bill therefore relaxes the community buildings rules to allow charities to include donations collected outside the building but within the local area under their community buildings allowance. This change could benefit any local charity that regularly meets in a community building, such as a village hall or community centre. There is no requirement for the charity to own the building outright.
The Bill will also future-proof the gift aid small donations scheme. The scheme is intended to allow charities to claim a gift-aid-style payment on small, fleeting donations, such as those placed into a collection tin or church offering. However, noble Lords will be aware that cash transactions are declining as electronic payments become ever more prevalent. The Government have already worked with the charity sector to put processes in place for claiming gift aid on most forms of electronic donations, such as SMS and online.
During the review of the scheme, charity representatives demonstrated examples of the innovative new contactless collection technology being developed. The Government accept that in many ways these donations are analogous to the small cash donations made on the spur of the moment by passing individuals. The transactions are small, almost instant, and there is very little time to stop the donor to solicit a gift aid declaration. The Bill will therefore ensure that the gift aid small donations scheme remains relevant for years to come by opening it up to donations received using contactless collection terminals.
As I have explained, the Government are taking action to simplify the gift aid small donations scheme so that more charities are able to benefit. Last year 21,300 charities claimed a total of £26 million in top-up payments, a not insignificant amount, but we accept that it is lower than forecast. HMRC will therefore undertake a targeted communications exercise to promote greater awareness of the gift aid small donations scheme.
I shall now address the tax-free childcare provisions contained in one clause of the Bill. This clause is concise and technical but it nevertheless effects important changes and reflects the elements of the tax-free childcare scheme which make it innovative and cutting-edge. The Government brought the foundation stone of this ambitious scheme, the Childcare Payments Act, before noble Lords in 2014. Secondary legislation followed soon after and now, in 2016, the Government are testing tax-free childcare with parents and preparing to launch it in early 2017. Tax-free childcare will be rolled out gradually and responsibly, with parents of the youngest children being invited to join the scheme first until it is available to all eligible parents by the end of 2017.
Around 2 million families will be eligible for tax-free childcare in the first year and may access up to £2,000 of government support with childcare costs per child per year or £4,000 for disabled children. Parents will apply through a straightforward online process and open a childcare account for each child. They may then pay money into their accounts, and for every £8 a parent pays in, the Government will pay in an additional £2. The balance may then be spent on registered childcare needed to allow parents to work.
I now turn to the substance of the clause. The first change relates to the mechanism by which parents retain access to the scheme by reconfirming each quarter that they remain eligible to receive tax-free childcare. A successful reconfirmation ensures access to government support for the coming entitlement period. Entitlement periods standardly last for three months, but HMRC may vary them when new accounts are opened or to ensure alignment of dates—for instance, when a further child is added or when a new household is formed. The Bill will allow greater flexibility over how entitlement period dates can be amended. This will ensure that parents’ childcare account dates will align so that the number of times they need to reconfirm their eligibility for tax-free childcare can be minimised.
The other changes affect how parents who are dissatisfied with HMRC decisions can ask for them to be reviewed. They will establish standard, online forms that parents can use if they want to query a decision. This will make the process a lot more straightforward and convenient and makes for a truly digital scheme. However, we will still make sure that everyone is able to ask for a review. Those who, for any reason, are unable to use the online form will still be able to raise their queries using the non-digital channels that they used in applying for the scheme.
The Bill will make the gift aid small donations scheme more flexible and generous so that it can benefit a greater number of charities and donations. It will also make it easier for parents to interact with tax-free childcare. This Bill is good news for charities and for working parents, and I commend it to your Lordships.
Lord Hodgson of Astley Abbotts (Con)
My Lords, this is a money Bill, so the horse is off down the road before we even have sight of the stable door, let alone a chance to bolt it. Nevertheless, it is a good Bill and certainly has my support. I shall focus my remarks on the charitable section. It is a good Bill for the charitable sector for two reasons. First, it simplifies the 2012 Act. Those of us who had the pleasure of seeing that pass through your Lordships’ House—as I recall it, the noble Lord, Lord Newby, was the coalition Minister in charge of it—drew attention to some of the complexities, which the Government are now addressing. It is important to place on record one’s thanks to the Government for having honoured their commitment to have a three-year review and coming forward with the result we have before us tonight.
Sometimes calling it the gift aid small donations scheme can confuse people because it is not gift aid. Gift aid is related to the donor’s ability to pay tax; this is a pure top-up. You just get additional money from the Government for raising a certain amount of money. That is an important distinction which sometimes gets lost in translation.
There are a handful of points I would like to make. First, I congratulate my noble friend and the Government on the simplification of the means for being registered for this and on the fact that you no longer have to be in existence for two years or to have claimed gift aid in at least two of the previous four years. This is self-evidently of huge importance to new charities struggling to get going. It is a very welcome step forward. However, the 25% or thereabouts take-up remains disappointing. It is hard to know exactly why this is happening. Partially, it may be the complexity and partially it may be ignorance of the scheme among smaller charities; I will come back to that in a moment, but this is a welcome development.
Less welcome is the continuation of the 1:10 ratio—the need for £1 of gift aid to access £10 of top-up—which obviously involves a lower level of record-keeping or no record-keeping. One of the challenges to charities, particularly small charities, is the moving ratio. You have to keep your eye on how much you have in each of these two pots in order to be able to claim the top-up. One does wonder whether it would not have been simpler to have a fixed amount. Under the present regulations, the maximum you can claim I think is £8,000, so you have to find gift aid of £800 to justify it. Do we really need to keep that ratio constant throughout, or would it be easier to have a fixed amount, say £250 or £300—I do not know what number, but some smaller amount—that you have to reach and then you are free to claim the full amount or any amount up to the full amount without further ado, further inquiry and further record-keeping? I suspect that what the Revenue is really concerned about is being able to convince itself that the claimant—in this case the charity—is a proper operation. Therefore, so long as a reasonably substantial sum of gift aid is being claimed—one could discuss what that would be—the Revenue should not be concerned about the amount, particularly given that there is a cap on it in any case. It would be able to see that there was a bona fide charity making the claim.
Thirdly, also disappointingly, a matter much discussed in Committee in the other place was the type of donations that qualify. I am sure my noble friend will put me right if I am wrong, but as I understand it, cash and contactless payments qualify, while cheques and text donations do not. I find this quite a hard distinction to justify. Arguments that a cheque writer can be contacted to fill in a gift aid form show, in my view, a touching faith in our fellow human beings. People will just not bother, and perhaps I can give the House an example.
One of the reasons that charities do not merge is the problems with standing orders. When a charity disappears, the standing orders in its name have to be re-signed in the name of the new entity. The banks will not accept standing orders to the old charity, even though it can be proved that it had merged perfectly satisfactorily and that everything was above board, blessed by the Charity Commission and so on. It has to be re-signed and readdressed. The failure rate of re-signing is about 85%, since you write to people, they do not bother to write back and gradually the whole thing falls away. I strongly suspect that in this case, where you are having to write to people and say, “Thank you for your cheque; we are very grateful, can you please sign this additional gift aid form?”, nothing will happen at all, or it will happen only in a small minority of cases. If this is the case with cheques, for which there is a certain degree of effort in terms of finding a stamp, finding an envelope and writing the cheque, for a text donation, which you do on impulse—you are sitting watching a programme, you are moved by what you see and you think, “This is a terrible thing and I am going to text a donation”—the idea that you can be followed through to get the gift aid is slightly fanciful. In particular, there is an £8,000 limit, so the danger of this thing running away with the Revenue is quite small. I hope that the Government will think about that aspect and some of the weaknesses in the present approach.
My noble friend made an important point on the issue of low take-up. Clearly, ignorance and lack of knowledge and sophistication among smaller charities mean that quite a lot of them do not know about the availability of the scheme. Those of us here who are involved in the National Citizens Service Bill were mildly—I will put it no higher—surprised at the emergence of the Revenue as a recruiting sergeant for the National Citizen Service. There is nothing wrong with that, but as various Members of your Lordships’ House said, a brown paper envelope from the Revenue usually has bad news rather than something that is likely to encourage you to participate. But if we are going to use the NCS model again, and if the Revenue is going to be open-minded and even-handed about it and publicise the scheme through its network to those small charities that they are aware of, that is a very welcome development, and the Government ought to be congratulated on it.
To conclude, this is a good Bill, and the Government should be congratulated. Your Lordships’ House can do nothing about it anyway, but I hope that the Government will think carefully about the possible changes and improvements that I and no doubt other noble Lords will wish to suggest. Perhaps we can persuade my noble friend to follow the noble Lord, Lord Newby, and promise us a review three years from now, in which case I look forward to seeing Members of your Lordships’ House again in 2019.
Lord Shinkwin (Con)
My Lords, I also welcome this Bill, particularly its emphasis on flexibility and simplicity, as already outlined by my noble friend the Minister. I will confine my remarks to small charitable donations and, in particular, the ways in which the Bill could benefit smaller charities. I am acutely aware that many of the charities I had the privilege of working for before I entered your Lordships’ House—such as Cancer Research UK, Macmillan Cancer Support and the Royal British Legion—are household names. They have to work hard to raise funds, but perhaps not as hard as smaller, community-based charities. There are more than 163,000 charities in the UK, 92% of the public believe that charities play an essential or very important role in society, and two-thirds of us have donated to a charity in the past year—yet when it comes to donations received to fund the vital work of charities, the picture is mixed.
Overall, charitable donations have remained consistent over the past decade. This is proof that the public continue to be generous in their support for the causes that they care about. Indeed, Britain is ranked as the most generous country in Europe. That is the good news. But this also hides a worrying trend: smaller charities are receiving a lower proportion of charitable donations than they did only six years ago. According to the Lloyds Bank Foundation and NCVO’s Navigating Change report, donation income had fallen across the board for small charities by 10% for those with an income under £100,000. It is therefore very important that we look at ways in which smaller charities in particular might be helped in their fundraising efforts.
The gift aid small donations scheme, brought in by the coalition Government, is undoubtedly very welcome and very well intended—and, as noble Lords have already heard, it is making a difference. Indeed, it is the sort of scheme that should bring significant benefit to smaller charities—those that need it most. It has been widely praised and supported by charities, and I know that the sector commends the Government for introducing it. But the sector also believes that the scheme has yet to fulfil its potential.
The fact is that it is not working as well as it could. In particular, smaller charities are struggling to access the scheme. Only one-quarter—21,300—of the 84,000 charities that the Government originally forecast would be using the scheme by now are actually doing so. I appreciate that this is acknowledged in the intention behind the Bill being debated today, which looks to simplify and extend the scheme. I also know that it is welcomed by the sector, yet it would like the Bill to go further.
Those in the sector tell me that there remain significant obstacles to smaller charities accessing the scheme, particularly around what has already been mentioned as the matching rule or requirement. We know that the matching rule is a serious obstacle to smaller charities accessing the scheme because, when they were surveyed by charity bodies including the Institute of Fundraising, the NCVO, the Small Charities Coalition, the Association of Independent Museums and the Charities Finance Group, 50% of the smallest charities that responded wanted to see the matching requirement reduced or removed. These organisations make up the majority of the charity sector and should be the focus of our support. If the smallest charities are struggling to access the scheme because of this requirement, surely that runs counter to a key and welcome objective of the changes to the scheme that we are debating today: to ensure that the scheme operates as effectively and flexibly for the greatest number of charities.
I understand from the previous stages of the Bill that the main objection to removing the matching rule altogether is that it is considered a safeguard against the potential fraudulent use of the scheme because it provides an audit trail, and because the matching requirement is important to act as an incentive to induce charities that currently are not using gift aid to start doing so. However, removing the matching rule would still mean that charities go through the process of registering with HMRC to use the scheme and to register with gift aid. By this, I mean that a charity would still register with the Government’s Charities Online website; it would still register with the gift aid online registration process; and it would still make claims under the gift aid small donations scheme through the same government website. So why does HMRC appear to believe that such assurances are insufficient to monitor those claiming and to deter potential fraudulent activity? What evidence has been put forward by HMRC of the ineffectiveness of these measures from a fraud perspective? If the scheme is significantly undershooting its proposed targets, could we not be looking pragmatically at how to ensure that the scheme achieves its full potential?
This Friday marks the Government’s Local Charities Day initiative, when we all celebrate the wonderful contribution that smaller local charities play in our communities and our country. The Bill that we are discussing today is very welcome because it is intended partly to benefit those very organisations by simplifying the gift aid small donations scheme. What a wonderful further cause for celebration it would be if the Government could commit to considering new ways to improve this important scheme, including by amending the matching requirement.
Baroness Barker (LD)
My Lords, I declare a non-pecuniary interest, in that I am an unpaid adviser to a company called Charity Checkout, which exists to assist small charities in particular to increase their ability to accept digital donations.
It is a great pleasure to follow the noble Lord, Lord Hodgson. He was indeed here almost four years ago exactly when we discussed this measure in the original Bill. I also echo some of the points made by the noble Lord, Lord Shinkwin. Back in 2012, noble Lords welcomed that Bill—as we do with this Bill today—and the Government’s intention to assist small charities.
However, as we did then, we have to regret that when HMRC comes into contact with the charitable sector things seem to go horrible wrong. Tomorrow we are going to talk about the digital economy and all sorts of ways in which the country will move to a new, bright digital economic future. As a user of HMRC services, I am constantly being told that everything will move online, but somehow when the charitable sector and HMRC come together, we are back to something that is maybe not quite “The Flintstones” but is Heath Robinson-like in its complexity. And so it has proved to be. The projections for this scheme were that it would raise in excess of £100 million and that it would involve all the charities, as the noble Lord, Lord Shinkwin, said. But it has not, and that is principally because of the complexity of doing so. I just do not ever get the impression that people within HMRC understand how difficult it is for small charities to deal with some of the forms and so on that they put out.
That said, there is much in the Bill to welcome. There are a quite a number of important improvements. The change in the upper limit to £8,000 will definitely make a great difference to those charities that can handle the complexity of this. I am very glad that we have got rid of the bizarre rules about where activities take place and which buildings would be considered to be within the scheme and which would not.
I share the warm greetings of the noble Lord, Lord Hodgson, for the fact that organisations will no longer have to have claimed gift aid in the preceding two years. I know that the Government consulted on whether a charity should have to wait two years until it could register for the scheme. The Government listened to the sector and agreed that the charity did not need to wait at all. Actually, I would have made a different decision. I would have insisted that charities had to have existed for a year, because they should be able to provide an annual report and an annual account that proves that they are a bona fide organisation. I would have done that rather than some of the other things, and I would have perhaps taken a different view particularly on things like the linking scheme. Nevertheless, the Government have made that decision—wrongly in my view, as I think charities should be more accountable.
The main point I want to follow up on, as did the noble Lord, Lord Hodgson, is the extent to which this linking mechanism is really working. The Minister in another place, Rob Wilson, cited the main reason for keeping it as deterring fraud by creating an audit trail. He went on to cite examples of frauds perpetrated by charities over the past year. From the totals that he prayed in aid in evidence to the House of Commons, that must have been gift aid frauds—they seem to have been big and systematic frauds. They do not seem to be fraudulent use of the small donations scheme. I would like to hear what evidence there is that the linking of the two schemes has managed to limit fraud.
I end with two points. I asked the Minister some Written Questions about the cost of administering gift aid and the gift aid small donations scheme. They are not separated out, so it is impossible to give a breakdown. When we talk about a review—as we inevitably will; this machine breaks down and needs to be repaired every couple of years—could we have a full analysis of the cost and cost-effectiveness of doing it this way? We are the only country in the world that runs a scheme like this, and I rather suspect that it is not the most cost-effective way for the Treasury to support charities. I suspect that we may move to a system whereby the initial registration for gift aid changes, has to be digitised and can be one where a donor can give permission for multiple donations to be made, particularly if it is done via an intermediary.
We also need to look at whether we should have a standard rate for gift aid and some kind of cap. That could be much more simply administered and might well end up being a lot more beneficial for the charitable sector than this clunky, although well-meaning, scheme.
Lord Stevenson of Balmacara (Lab)
My Lords, I declare an interest as a trustee of two small charities, neither of which I think benefit from gift aid or the SDS. I thank the Minister for introducing the Bill and all the speakers. Like others who have spoken, we broadly support the Bill and want to move it through as quickly as we can within the circumstances of this money Bill arrangement.
The Bill is aimed at simplifying the small donation scheme so that it benefits the greatest number of charities and increases access for smaller and newer charities. However, I feel that the Bill as drafted will not meet that objective, and I do not think that the Government have been listening to the small charities which have been complaining about the current scheme, because they have certainly been talking to us, and they do not tell the same story.
We all agree that smaller charities are facing significant financial and capacity challenges, which makes schemes such as the SDS, which support development of new income sources, all the more important. As the noble Lord, Lord Shinkwin, said, these charities face the greatest challenges accessing the scheme due to its restrictive requirements. In support of that view, we have been told that uptake is much lower than forecast, with only a quarter of the 80,000 charities that the Government forecast would be using the scheme by now actually using it. Surely we all want to make that change for the benefit of smaller charities.
However, as we have been reminded, this is a money Bill, so there is nothing further we can do about it in this House. We can rant and rage, but it will not have much effect on the words in the Bill. That is a pity, because there are clear ways in which the scheme could be reformed further to improve its accessibility. I suggest that the Minister and his officials take careful note of these points, and we hope that there will be opportunities to address them in later Finance Bills, either piecemeal or as a whole, because I think they will make a difference.
The main evidence that we have received seems to be about changing the matching requirement. All noble Lords who have spoken have mentioned that the matching requirement requires charities to make a certain volume of gift aid claims through the traditional system in order to access the SDS. In practice, this is £1 of gift aid for £10 via the donation scheme. A priori, it is more difficult for small charities to comply with this, as in their earlier years they often raise small amounts of gift aid or lack the capacity, as they are operating with volunteer staff, to process the gift aid donations. The suggestion by the noble Lord, Lord Hodgson, of a fixed annual amount has some merit, and I would support that, if it were brought forward.
When the Minister introduced the Bill, he said it was vital that schemes such as the SDS have appropriate and effective measures in place to prevent fraud and ensure that taxpayers’ money is well spent. Obviously that is true. However, in order to use the SDS, charities have to register not only with the Charity Commission, their own effective and efficient regulator, but with HMRC, under the normal gift aid scheme. Like the noble Baroness, Lady Barker, I am sceptical about whether there is really any evidence to demonstrate the extent to which the matching requirement is a necessary mechanism to prevent fraud and error, how effective it is and whether the matching ratio of one to 10 is necessary to stop fraud. I would be grateful for any evidence that could be provided, perhaps by letter.
The Government have stated that the small proportion of organisations affected by the matching rule means it does not need to be changed. Surely this is disingenuous. It is also ironic: because the claims from the groups concerned are small, organisations affected by the rule are more likely to be the smaller organisations that the Government wish to help with the scheme.
I have two further points. We do not believe that restricting the scheme to cash or contactless payments does enough to help charities or encourages them to use gift aid. The noble Lord, Lord Hodgson, made some points about that, and I agree with him. The Government could significantly expand the support available to small charities by expanding the types of donations used in the scheme and ensuring that charities which rely on texts, cheques or one-off online donations are not penalised. Will the Minister give consideration to that?
Finally, despite the community buildings requirement, local civic groups—the scouts and girl guides have been mentioned—are restricted in their ability to use the main SDS allowance as it is currently designed, as they are treated as being one organisation, so they can have only one joint claim for gift aid. This is despite these groups having to fundraise for their own activities locally, and often not being financially dependent on each other. We recommend that HMRC end this interpretation when it can be demonstrated that local groups not only raise their own funds but are not financially dependent on each other. Again, will the Minister agree to take this idea back?
Having said that, we support the Bill, including its formulations about childcare, and we wish it well.
Lord Young of Cookham
My Lords, I am very grateful to all those who have taken part in this short debate for their contributions and for their broad support for the objectives of the Bill. I have noted, and will touch on, some of the very helpful suggestions that have been made.
One of the questions was when there would be an opportunity to have another look at the scheme. All tax policy remains under constant review, and the scheme we are discussing is no exception. In addition, HMRC publishes a national statistics package every year, providing a wealth of data, including the total amounts claimed under the gift aid and small donations schemes. This transparent approach allows interested parties to monitor the take-up and effectiveness of charitable tax reliefs constantly. But all suggestions made during the debate will of course be looked at by the Ministers and officials who have responsibility for taking this important policy forward.
Quite a lot of the comments were focused on the link between the small donations scheme and gift aid. There are a number of arguments for nudging people towards gift aid wherever possible. First, the gift aid scheme is not cash limited, whereas the small donations scheme is, so the more people can put on the gift aid side, the more people will be outside the cap. Also, with gift aid the charity gets a list of the donors who support it, which obviously does not happen with the small donations scheme. There is also the issue of safeguards against fraud, which I shall come to in a moment.
On the issue of publicity for the scheme, a number of noble Lords commented on the fact that the take-up has not been as high as we, or they, would have wished. As I said, we will publish the scheme, and I take note of the comment by my noble friend Lord Hodgson that publicity should not come in brown envelopes marked “HMRC”, which strike terror into the hearts of most citizens. We should find a more user-friendly way of publicising details of the scheme.
A number of noble Lords suggested that the matching requirement might be dropped. This was raised during the review that the Government undertook. The matching rule was not identified as an issue in the vast majority of responses. Even the charity finance groups and the NCVO’s own call for evidence response acknowledged that only 5% of the charities that they surveyed claimed no gift aid, which does not wholly support the assertion that the matching rule is a significant barrier for most charities. The argument was also put forward that it was excessive and that one way around this would be to have a fixed amount. HMRC requires a regular pattern of gift aid claims to be able to ensure that a charity is and continues to be compliant with the main gift aid scheme. It is a sort of proxy for compliance, having the link between the small donations scheme and gift aid. The organisations continuing compliance with gift aid and HMRC’s ability to check a number of claims is the closest proxy to help to assure compliance under the new scheme. Requiring a number of gift aid claims to be made, which includes the provision of donor declarations alongside claims for top-up payments, increases the protection against fraud and abuse, which I shall come on to in a moment.
The scheme is at risk from fraud. The Government believe that a matching requirement is an important anti-fraud element of the scheme. Even if a charity appears to be compliant for the first few years or with the first claim, changes in charity personnel can affect an organisation’s attitude to compliance, so HMRC will continue to need some evidence on which to base its assessment of the risk that the charity poses in relation to the scheme. There are some unfortunate examples of individuals exploiting charitable status for criminal purposes. In May this year three individuals were jailed for a total of 22 years for defrauding HMRC of £5 million in fictitious gift aid claims; in April three individuals were jailed for a total of 11 years for submitting fraudulent gift aid claims totalling £340,000; and in January two individuals were jailed for a total of five years for attempting to fraudulently claim £500,000 in gift aid from HMRC. This demonstrates that there is some risk of abuse in the scheme.
I was pressed by my noble friend Lord Hodgson to extend the gift aid small donations scheme to include other forms of payment—direct debits, cheques and credit card payments. The aim of the scheme is to allow charities and community amateur sports clubs to claim a gift aid-style payment on cash donations received in circumstances where it is difficult or impractical to collect donors’ details. Giving by cheque means that the donor is giving their details to the charity, and the extra amount of information needed to make a gift aid declaration is relatively small. If it is practical for a donor to write a cheque, it seems reasonable to assume that it is practical for the donor to make a gift aid declaration at the same time. When a charity has an ongoing relationship with a donor, you should use gift aid if at all possible.
Lord Hodgson of Astley Abbotts
My noble friend is doing a splendid job with a brief that is not entirely his. The Revenue always produces these stupendous figures—£5 million here and £5 million there—but we are talking about an £8,000 maximum per charity, so there is a limit to the extent to which bad boys can run away with the ball. I am not asking for a response—just to place on the record that the Revenue is being unfair to my noble friend by talking about £5 million being cheated out of charities when we are talking about a very limited scheme. It was an unfair speaking note that it gave my noble friend.
Lord Young of Cookham
I take full responsibility for any speaking notes that I deliver. If one looks at some possible structures, you can have a charity with a number of community buildings and each one could claim £8,000—so it is not necessarily capped at £8,000. Depending on the structure of the charity, it would be possible to claim a much larger figure. I take on board the point that my noble friend has made.
Progress is being made on making SMS slightly more user-friendly. SMS text giving is an easy way for donors to give to charity; donors simply send a short code to a six-digit number to donate a set amount via their phone bill. There is an established process for donors to gift aid SMS donations. Following the initial message, a reply is sent to the donor, thanking them for their donation and asking for their name, house number, post code and confirmation that they are a UK taxpayer. If the donor replies with this information, gift aid is added to the donation. HMRC is working closely with the sector and we are introducing new legislation in April 2017 to simplify the process for claiming gift aid on donations made through digital intermediaries.
Lord Stevenson of Balmacara
The Minister is saying that there will be a legislative initiative in the forthcoming year, reflecting on the text side of things. A number of noble Lords raised the question of whether that clause would be applied. I take the point that a text message contains some metadata which would be useful if you wanted to pursue gift aid. I still do not get the point made by the noble Lord, Lord Hodgson, about why, if you are going to accept that for gift aid, we cannot see it applied to the SDS scheme as well. It is a way of transferring cash but, unless you have very agile, slim and slender thumbs, it is not easy to do all the stuff that you are asking for. It would fit perfectly into the idea of being additional cash.
Lord Young of Cookham
None the less, there is an advantage in getting it scored as gift aid rather than as a small donation, because there is a cap on small donations but not on gift aid. It is in the charity’s interest to try and nudge donations, wherever possible, down the gift aid route rather than the small donations one. The noble Lord asked about the take-up of the scheme and said that it might be too restrictive and complex. Some 21,300 charities took advantage of the gift aid small donations scheme in 2015-16, claiming a total of £26 million. Take-up of the scheme continues to grow year on year, but I take the point that it has come in below the forecast. That is why we are removing a number of eligibility requirements and relaxing the community buildings rules, which will make it simpler and easier to claim, particularly for smaller charities, and make it possible to score donations that are not collected in community buildings but in the local area. I hope this will help a number of charities which do not claim at the moment to do so.
I turn to the point made by my noble friend Lord Hodgson about fraud. Although the headline maximum payment of £2,000 is modest, fraudsters can hijack or set up multiple charities and claim multiple amounts. The community buildings rule enables some charities to claim significant amounts of top-up payments in their own right, so it can potentially add up. In any event, we have a duty to ensure that public money is spent properly. Any amount of taxpayers’ money going to fraudsters is a significant issue. The noble Baroness, Lady Barker, suggested that we should abolish gift aid and—if I have understood her correctly—give charities a top-up on all donations received. This would be a radical reform, but it would not be welcomed by many in the charity sector. In fact, in 2010, charity representatives on HMRC’s gift aid forum considered whether gift aid should be reformed, including removing the link to individual tax contributions. However, they concluded that gift aid should remain as a tax relief. We are open to representations on how we can improve gift aid but are not currently considering reforms along those lines.
Finally, the Government are anxious to continue general support for charities. Some 73% of adults give money to charity in the average month. We are the most generous nation in Europe, so there is much to celebrate. We are offering incentives to encourage giving: we provide a generous package of tax reliefs for charities and donors which was worth £5 billion last year. The Government are proud to support the Grow Your Tenner fundraising campaign, which starts today. We have contributed £245,000 to match donations from the public through the campaign to local charities and community groups. We funded the small charities fundraising training programme to help small charities build the skills needed to fund-raise effectively and later this year we are going to hold a local charities day to celebrate and promote engagement with local charities and community groups.
If I have not touched on all the points made—and I am conscious that I have not—I will write to noble Lords dealing with the issues they raised. In the meantime, I thank them for their suggestions. Even if I was totally persuaded by their arguments, this is a money Bill so, as the noble Lord, Lord Stevenson, implied, there is nothing we can do about it. I hope, on that basis, we can make progress with the Bill. I beg to move.