Grand Committee
Arrangement of Business
The Deputy Chairman of Committees (Lord Brougham and Vaux) (Con)
My Lords, in the unlikely event of a Division in the Chamber, the Committee will adjourn for 10 minutes.
Domestic Animals: Welfare
(5 years, 11 months ago)
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Lord Black of Brentwood
To ask Her Majesty’s Government what action they are taking to promote and improve the welfare of domestic animals.
Lord Black of Brentwood (Con)
My Lords, I first sincerely apologise for addressing your Lordships from a sedentary position. I took a tumble down a slope on Monday and have broken my ankle, which is now strapped into a boot for the next six weeks. My consultant was not pleased when I told him that I had one appointment this week that I simply would not cancel, and that was our debate today on an issue dear to my heart. I was particularly anxious not to let down noble Lords who had signed up to speak, and I am most grateful to them all for taking part.
It was back in 2013 that I first had the privilege to lead a debate on the welfare of our domestic animals, and my noble friend Lord De Mauley responded, setting out the then coalition Government’s plans. I am delighted that he is speaking again today. That debate was the first time, so far as the House of Lords Library could tell, that our House had ever debated the topic. Back then it was perhaps rather an esoteric subject, and certainly on the fringes of public policy. What a difference five years can make. The welfare of our pets, and animal welfare more widely, is now a central political issue and one where there is commendable cross-party support, as indeed there should be on an issue such as this.
Defra—and, I have no doubt, my noble friend the Minister, who is such an energetic and eloquent champion of animal welfare—has been crucial in this: a dynamo of policy announcements and initiatives. I commend in particular the Secretary of State, Michael Gove, who has done so much to make this a mainstream issue and a big priority for the Government and Parliament. New animal activities licensing regulations will come into force in October; new welfare codes of practice for cats, dogs and horses have just been published; there has been a consultation on third-party sales of puppies and kittens, which is still a cause of considerable concern; and, at the end of last year, the Secretary of State announced the welcome publication of a draft animal welfare Bill, which will increase the maximum penalty for the most serious animal welfare offences under the Animal Welfare Act from six months’ imprisonment to five years’. Central to the Bill are the welfare needs of “animals as sentient beings”. That legislation will be enormously important in drawing together the threads of policy in this area and will make a real difference to domestic animals and the amazing charities that care for them. I hope legislative time will be found for it soon, although I know how difficult that is. I wonder whether my noble friend, who I know will be deploying his legendary and persuasive charm on the business managers, can give us any clues as to when it might be introduced.
In the cross-party spirit I just mentioned, I welcome the animal welfare plan that the Labour Party launched earlier this year and which is, I understand, still out for consultation. One of the issues it highlights is the compulsory microchipping of cats, which I strongly support because it is so important for owners and their animals. I would be grateful if my noble friend could give us his view of the case for the compulsory microchipping of cats as part of promoting responsible pet ownership.
A huge amount has been achieved and a great deal learned from a number of consultations, but challenges remain and it is right that we highlight and confront them. A primary issue is the prevention of both cruelty and poor welfare—different sides of the same coin. There should be no remorse for those who deliberately attack animals with a view to either killing them or causing them intolerable pain.
Increased penalties will help, of course, but there is more that we can do. In Oral Questions recently I highlighted the issue of air guns and the growing problem of people using these weapons to shoot animals, cats in particular. In 2017, the RSPCA received 884 calls to its 24-hour cruelty hotline, reporting air weapon attacks on animals, many of which resulted in either terrible pain for the animal concerned or often death. The public simply will not tolerate this. Just yesterday, a petition organised by Cats Protection with 110,000 signatures was delivered to Downing Street, calling for the licensing of air guns in England and Wales. The Government are consulting on this area and perhaps my noble friend could inform us when we might see a response and whether he would kindly specifically draw to the attention of the Home Office the urgent animal welfare issues that this raises.
The poor or inadequate welfare of animals is just another aspect of cruelty and neglect. Here again, we face real challenges in promoting the needs of animals. Last year, a PDSA report underlined the scale of the problem. It found that 93,000 dogs are never walked at all; almost 1.8 million dogs are left at home for five hours or more on a typical weekday; around 40% of cats are overweight or obese because of poor diet; and 3.6 million cats have not had a primary vaccination course when young. That is not acceptable and we clearly need a new approach to public education and awareness about the needs of animals. Part of that involves educating young people. Next time there is a review of the national curriculum, Defra should lead the way in ensuring that it covers animal welfare, as the EFRA Select Committee recommended. Perhaps my noble friend could store that one away at the back of his mind for when the time comes.
We also need a more strategic approach to educating the public about animal welfare needs. Crucially, the new statutory codes will be of real value only if people know about them. That means an approach which involves the animal welfare charities, pet industry representatives, local government—which bears so much of the brunt of this—the enforcement agencies, veterinary professionals, healthcare professionals, housing providers and teachers. Such an approach, drawing together so many of the very welcome public policy developments, which have happened under all parties in the 12 years since the Animal Welfare Act 2006, could really be the motor that makes these new policies, codes and regulations work in practice for the benefit of all our domestic animals.
Another aspect of cruelty that I should like to mention—again I have raised it at Oral Questions with an extremely helpful and positive response from my noble friend—is the growing problem of the breeding of cats and dogs with extreme characteristics, including flat-faced or brachycephalic animals, such as French bulldogs, Boston terriers or extreme flat-faced Persian cats, or those bred to have short limbs, such as munchkin cats, or curled or folded ears like the Scottish fold cats. The result of this grotesque genetic modification, which takes place in a wholly unregulated way in the absence of an effective cat breeding regime, is that many of these poor animals often spend a life in intolerable pain, suffering, for instance, from early-onset arthritis or unable to breathe properly. It is in effect torture breeding of animals that are literally born to suffer.
The proper regulation of cat breeding, in the first instance through a Government-backed code of practice on cat breeding welfare, would help in many ways, because many of those buying such benighted animals do so simply because they are a fashion accessory and they have no idea of the suffering that is involved. This is one of the issues on which International Cat Care, of which I am a patron, has campaigned and is part of its excellent international declaration of responsibilities to cats, which has to date attracted over 20,000 signatures from across the world. Sadly, we do not have time today to look at the international dimensions of animal welfare, but will my noble friend always bear in mind that our responsibilities should not stop at our borders and look in particular at the terms of the international declaration?
I hope I have been able to highlight in that quick canter some of the significant challenges all of us who love our domestic animals, which bring joy to millions of homes across the country—in fact, probably half the population—still face. I look forward to hearing about other issues from noble Lords this afternoon.
In closing, I pay a heartfelt tribute to all those charities and their armies of fantastic, selfless volunteers, who do so much extraordinary work in this area: the Dogs Trust, Battersea, Blue Cross, Cats Protection, International Cat Care, Wood Green and the RSPCA. Their work helps to improve the quality of life of so many animals and is vital to the education of children and the public. Those charities, the people who work in them and the volunteers who support them are right at the heart of a civilised society. I know all of us here today applaud their dedication, commitment and shining humanity.
The Earl of Caithness (Con)
I congratulate my noble friend on bringing forward this debate. I declare my interest as a former cat and dog owner. Promoting and improving the welfare of domestic animals has a simple solution—and the solution is us human beings. We class ourselves as a nation of animal lovers, but the evidence does not prove that. If one studies the PAW report of 2017—a very good document indeed—one will find that a significant minority of animal owners are thoughtless, irresponsible and inconsiderate.
People are thoughtless, in that 98% of cat owners have no idea of the costs of keeping a cat before they have one, which should be a primary consideration. Nearly one-fifth of dogs in the UK are left for five hours or more in a typical weekday; 93,000 dogs are never walked at all. They are irresponsible, in that animals are not receiving primary vaccination courses; 36% of cats are not receiving them, up from 28% in 2011. Some 25% of dogs are not receiving them, up from 18% in 2011, and 55% of rabbits are not receiving them.
People are inconsiderate to their animals—in their diet, as my noble friend mentioned, and in their lack of knowledge of animal laws. Some 15% of owners have not registered their pets with a vet. They are inconsiderate to their neighbours, because poor care of an animal leads to behaviour problems. Some 66% of dog owners would like to change their animal’s behaviour, but they had better change their behaviour first before they can change their animal’s behaviour. They are also inconsiderate to other animals: free-ranging and feral cats kill about 55 million wild birds and a further 220 million small mammals, reptiles and amphibians each year. Cat predation is a national problem. It is estimated that UK cats kill songbirds at 10 times the rate that illegal hunters in the Mediterranean kill migratory species. Researchers at the Universities of Reading and Exeter have reported on the widespread ignorance of that fact by many cat owners—and it is difficult for charities such as the RSPB, because they rely on legacies from cat owners. However, SongBird Survival is working with the University of Exeter and cat owners to get better information and to minimise the adverse effect of pet cats on native wildlife while enhancing cat welfare. What are Her Majesty’s Government doing to help that project—and if they are not helping, why not?
I have some quick questions for my noble friend. What steps are the Government taking to minimise the adverse effect of cat owners’ pets on native wildlife? Will they press the Ministry of Housing, Communities and Local Government to include provisions in planning policy so that, as urban areas grow, a buffer zone of 400 metres is imposed around any new development to help to mitigate the adverse ecological consequences of cat predation, where species of conservation concern nest? Will my noble friend give domestic cats the same legal status as dogs?
Lord Lexden (Con)
My Lords, my noble friend Lord Black, whose eloquence was in no way diminished by his sadly enforced sedentary position, has been a tireless champion of the interests of the nation’s pets throughout the 32 years that I have known him and observed his work admiringly. In a debate on these issues a few months ago, to which he was unable to contribute, I recalled a general election long ago when he devised, with some small help from me, a manifesto which set forth the commitments that our much-loved pets would require from political parties if they had the vote. I went on to suggest the kind of action for which they would be looking today.
Briefed by that excellent organisation, Cats Protection, feline electors would want, among other things, absolute guarantees that enhanced border checks for cats and kittens would be introduced, along with a central register of feline immigrants, and tick and tapeworm treatment to prevent the import of infections from abroad. Backed by the marvellous Dogs Trust, canine voters would insist on a major revision of the Pet Travel Scheme—now a very practical proposition with the approach of Brexit—to ensure more stringent tests for rabies. Dogs would be paw-to-paw with their feline colleagues on the need for swift and effective treatment for ticks and tapeworm.
I now think it very likely that the Tory cause has been significantly boosted by the recent introduction of regulations that provide for a new local authority licensing system. I am reliably informed that sounds of approval have emanated from dog baskets and hearth rugs throughout the land. The fine organisations that work on behalf of the nation’s cats and dogs—which include many mentioned by my noble friend, such as the much-admired Battersea Dogs & Cats Home—will be scrutinising the implementation of these regulations very carefully, noting their successes and highlighting any shortcomings.
The team running Cats Protection tell me that they attach great importance to ensuring that the ban on the sale of puppies and little kittens under eight weeks is effectively enforced. It is imperative that licences awarded to commercial operations make it absolutely clear that they are trading for profit, closing loopholes that were exploited under previous legislation. There is also a strong view that the regulations should be extended to cover, for example, rehoming organisations and sanctuaries.
Our pets think to themselves, “Will the new licensing system, with its star ratings and other features, be fully understood by fallible human beings”—the fallibility being underlined by my noble friend Lord Caithness—“and will they seek out pet sellers with good welfare standards, endorsed under the new system?”. If the Government give their full backing to the guidance that has been produced by a group of animal welfare charities and help promote it with vigour, they would move even further to winning the hearts of the nation’s pets as they ponder their votes.
Lord De Mauley (Con)
My Lords, there are a number of things to be welcomed in the Animal Welfare (Licensing of Activities Involving Animals) (England) Regulations 2018, including the licensing of breeding establishments, the risk-based approach to inspections, the prohibition of the sale of puppies under eight weeks old, and the requirements on advertisements of pets, although those may be tricky to enforce—I hope that the various websites are being helpful. It is vital that the regulations are applied consistently across local councils and I hope that the Government will keep their operation under review.
There remain a number of important issues that are difficult to deal with, including the breeding of domestic animals in poor conditions, and, as my noble friend Lord Black mentioned, the breeding of dogs and cats with congenital conditions such as severe breathing difficulties and eye problems, which breeds such as French bulldogs and pugs experience, due to extreme conformation. There is also the matter of the frequent import of dogs and cats bred and travelled in poor conditions, often leading to disease. My noble friend Lord Lexden spoke in detail about that.
Clearly, electronic collars should never be used for the routine training of dogs. There may, however, be occasions when, used properly and as a last resort, they can prevent serious problems, such as sheep worrying. In these cases the only viable alternative to their use could be euthanasia. The recent consultation document regrettably failed to consider options such as further regulation, a licensing system or statutory controls on the quality and specification of the devices available. If there is to be a ban, it should at least include an exemption for boundary fence systems. The use of these allows animals more freedom and greater safety, particularly near busy roads.
Turning to horse welfare, I declare an interest as a trustee of the Horse Trust. The creation of the British Horse Council is a major achievement. There have been a number of other successes along the way, from new protocols for dealing with contagious equine metritis to a tighter tripartite agreement and the Control of Horses Act. On the latter, I ask my noble friend the Minister to update us on progress, especially on enforcement.
I understand that a new statutory instrument is now planned to include both retrospective microchipping, which is essential for disease control, traceability, theft prevention and holding owners to account, and civil sanctions, as well as requirements such as the Central Equine Database. It would be helpful if the fine income could be returned to local authorities to act as an incentive to enforcement.
With EU exit ahead, there are many challenges for the equine world to help government work through, such as the movement of horses between the north and south of Ireland and, indeed, throughout the rest of the European Union. I have concerns about horses being exported for slaughter and I am frankly unconvinced by the lack of declarations thereof. Until there is full traceability within and outside the United Kingdom, it is impossible to know where exported horses end up. In the meantime, intelligence-led checks at the border and point of origin would help stop the non-compliant movement of horses out of the United Kingdom.
The Secretary of State announced plans last September to have the maximum prison term for an animal welfare offence raised from six months to five years, which I would welcome. In closing, I ask my noble friend the Minister to tell us when and how that will be implemented.
Lord Redesdale (LD)
My Lords, I, too, thank the noble Lord, Lord Black, for initiating this debate. I have had a number of briefings from Battersea Dogs & Cats Home, the Dogs Trust and the Kennel Club. Of course, if I read out the briefings it would take far longer than probably all the speeches combined.
I particularly thank the Dogs Trust because I found our family pet from it: a rehomed, extremely stupid cockapoo. Although he is much loved, the actual cost of keeping a dog and dealing with some of the things he has, such as anxiety issues, should not be taken lightly. One of the problems we face across the board is that many people buy dogs and cats on impulse. This is a particular issue: they see a cute kitten or puppy and see it as something that should be owned automatically. Of course, this leads to the problems of the industry: puppy farms, which I know regulation is needed for, and smuggling of puppies. I hope the Government will start thinking about age restrictions on puppies that can be imported. This would solve some of the problems, especially since some of the diseases that the puppies might carry, especially tick-borne ones, which can be imported to this country, might be an issue in future, as has happened with Alabama rot, whatever that is—I have not seen very much about it, although people on Hampstead Heath are getting very worried about it. I believe that it is mostly around Manchester.
We are a nation of animal lovers. Indeed, the trade body I work for calculated that the energy used for watching cat videos is the equivalent of running Ashford in Kent—67,000 houses—for a year. Obviously, they are terribly important. I went on Gumtree this morning to see how easy it is to acquire an animal. It was interesting that a lot of the owners on that website were talking about the fact that their dogs were registered with the Kennel Club, which showed best practice. You can also then happily google, “Where can I find a cheap, cute puppy?”, which obviously feeds into exactly the wrong attitude, which we are trying to look at.
I introduced two Private Members’ Bills, which I think the noble Lord, Lord De Mauley, remembers, to try to overturn some of the worst aspects of the Dangerous Dogs Act, which increased the problem by creating status dogs. People are owning Staffordshire bull terriers, which are excellent dogs and look like pit bull terriers. They make them aggressive, which is a very dangerous thing to do with a dog of that order. I ask the Minister: since there are new duties on local authorities—and I commend the work done by dog wardens around the country, and their dedication—are there adequate resources to undertake the work they have been given? Secondly, following the Home Office regulations, will there be a review of public space protection orders to make sure that they are not being implemented against animal welfare?
Viscount Astor (Con)
My Lords, I have decided to speak today as I am concerned about the Government’s possible plans to ban so-called shock collars. I am grateful to my noble friend for giving me the opportunity by initiating this debate.
I understand the Secretary of State has indicated that he might limit the ban to collars used for training devices, but exempt those used to contain animals. I declare an interest. I have five dogs—two spaniels and three terriers—none of whom has ever worn a collar of that type. They are used for two reasons and the second is the important one; that is, to contain pets from wandering. Where these collars are justified, and supported by many vets, is where the animals gets a buzz—if necessary, a mild shock—to keep them safe in gardens. It is an invisible fence supported by an electric collar that responds to signals from wire buried around a garden or home. There are 40,000 of these collars in use and many vets say they are in the animal’s best interest. In a recent letter to the Times, they said:
“The pet is in control and quickly learns not to go too close to the boundary”.
They went on:
“We are confident that sound science shows these garden systems do not harm pets. They instead stop them joining the 300,000 cats and dogs killed on roads every year”.
None of us has an escape-proof garden; I certainly do not. We do not want to lock our dogs up all day and all night while out at work. Many people who use these collars find that once their pet has gone near the fence they never go near it again. It does work.
I was concerned about some of the lobbying, particularly by the Kennel Club, whose stance I thought somewhat hypocritical. It lobbied against shock collars, but uses choke leads in its shows. These improve the dog’s posture but often result in ongoing health problems to the neck and disc problems for the dog.
There are many important issues in the animal world that need attention, including battery farming, puppy farming and general animal cruelty. It is animal cruelty that, paradoxically, will explode if collars used to prevent dogs escaping on to roads are banned. It is cruel to the dogs and cats and deeply upsetting for the owners. I hope my noble friend will meet all those who are concerned in this area, particularly vets, before making a final decision. I would indeed support the Government if they banned shock collars for training. They are unnecessary and can sometimes lead to cruelty and be detrimental to the dog. For containing pets in gardens, however, they are probably very important.
Lord Kirkham (Con)
My Lords, I am delighted that the Government are committed to ensuring that Brexit will be good for animal welfare in the UK. Far from looking to loosen regulations in this important area, as we leave the EU we will ensure that we do even more to protect animals.
I am confining my remarks principally to dogs, without intending any slight to other domestic animals. That is simply due to time pressure and because dogs are, after all, our most popular domestic animal, with over 10 million living with us in the UK. It is argued that we are a country that gives undue priority to the care of our domestic animals, but that is emphatically not a view that I share. That is not surprising, as I am a vice-president of the Kennel Club, founded in 1873, and deputy president of the Animal Health Trust, which is 75 years old. Both organisations are absolutely committed to improving the health and welfare of domestic animals, particularly dogs.
With that prompt, I trust that the Government are still minded to ban those horrible electric-shock collars that my noble friends Lord De Mauley and Lord Astor mentioned. I look forward to the Government’s considered consultation response. With the support of the Kennel Club, the Animal Health Trust is driving forward research that is delivering new treatments, vaccines, preventive measures and pioneering scientific developments. These will make life better for dogs and other companion animals worldwide. That is research that can yield read-across benefits to other domestic animals and to human beings.
As well as fulfilling the role of loving companions that help keep us fit and sane, dogs can be key workers, too. Every day they help to make our workplace, here in the House, safer as the sniffer dogs and their handlers diligently search around those red leather Benches for explosives. Lottie the calm canine guide leads my noble friend Lord Holmes of Richmond to his place and into the right Lobby. The noble Lord, Lord Blunkett, has a new Labrador, Barley, who skilfully guides him into a different Lobby. Police dogs help to protect us here and in many public places. Sniffer dogs guard our borders against smugglers of bombs, drugs, money, animals, plants, food and people. Dogs help us find the victims of natural disasters, living and dead; they serve with distinction in our Armed Forces; and play a vital role on every farm in the land. Whether it is as guide dogs for the blind, hearing dogs for the deaf, seizure alert dogs, other assistance dogs for the elderly and disabled, comforters for the sick and bereaved, or simply as much-loved and valued pets, it is hard to overstate the importance of the role dogs play in all our lives.
It is our duty as a civilised nation to ensure that we repay the devotion of our dogs, recognising them not merely as sentient beings but as our very best friends, and that they and all other domestic animals are afforded the fullest protection of the law as we move into the next phase of our proud history outside the EU.
The Earl of Shrewsbury (Con)
My Lords, I declare an interest as the owner of five dogs and president of the Dove Valley Working Gundog Club. I congratulate my noble friend Lord Black on securing this important debate. I shall briefly make two points.
The first is regarding the completely unacceptable practice of puppy farming. On 8 February this year my right honourable friend the Secretary of State announced:
“A ban on third party puppy sales is to be explored by the government as part of a package of reforms to drive up animal welfare standards”.
I believe that any such reform should be much stronger than simply a ban—it should be much more bite than just a bark. Will my noble friend the Minister provide an update on the progress of this, and on his plans in this area?
My second point concerns the theft of working dogs, predominantly gundogs, in rural areas. The number of missing or stolen gundogs has been on the rise since 2012. According to the Shooting Times, in that year around 3,500 dogs were reported stolen simply during the shooting season. Since then, gundog theft has continued in a big way: the figures are on the increase each year. These working dogs are highly valuable assets, with a typical trained Labrador costing upwards of £4,000. But it is not only gundogs which fall victim to the thief: terriers are fair game, too. I understand that criminals sell them into the unspeakably cruel and vile dogfighting world, as so-called bait dogs. That is quite simply disgusting. Does my noble friend agree that everything must be done to bear down on this aspect of rural crime, which causes considerable cruelty and great distress to dogs and their owners alike? Will he convey to his colleagues at the Home Office that funding for rural crime units must not be diminished but enhanced?
Baroness Redfern (Con)
My Lords, I, too, thank the noble Lord, Lord Black, for securing this debate. In agreeing with many speakers, I would like to voice my support for improving measures and raising standards for our domestic animals. These much-needed measures are long awaited and we need to see clear, strong guidelines embedded in a good, clear strategy. It is regrettable that little further has been done apart from the microchipping of dogs and the Welfare of Racing Greyhounds Regulations 2010, although both are welcome.
We need much-improved measures to include the licensing of all sellers, with better enforcement and strict new import rules to stamp out unregulated dealers. Anyone breeding or selling should and must be tightly regulated and licensed, with the local authority holding the register to inspect on a regular basis. People who are in this business, whether on a large or smaller scale, should have the added incentive to support raising animal welfare standards. It is being recommended that anyone breeding two litters or more per year should be licensed but I would like to see anyone breeding just one litter and selling puppies for a profit having to have a licence. A priority must be to see an end to third-party sales, including in pet shops.
Brexit heralds the opportunity, I hope, for stronger enforcement, particularly when puppies are found to have been imported underage and unvaccinated, with some having travelled in appalling conditions to then be sold on the internet with false data on their passports to evade contravening the PETS. We need to see full traceability at customs points.
Finally, the legislation has potential but progress has been limited on the commitment to promote good welfare, and we must stamp out cruelty. I would like to see the Government working with animal welfare organisations to have a public media campaign bringing all this to the fore.
A timetable for secondary legislation was set some 10 years ago in the Animal Welfare Act 2006. We need some real progress. I want particular attention paid to animal cruelty, for which the maximum sentence is just six months—in the UK it is among the lowest in Europe. I hope that the Government will quickly introduce a change to a five-year sentence. Let us hope that 2018 will be the year for real progress on all fronts in stamping out cruelty to animals.
Baroness Bakewell of Hardington Mandeville (LD)
My Lords, I, too, thank the noble Lord, Lord Black, for securing this important debate. I declare my entry in the register of interests. Britain is a nation of animal lovers. Animal welfare is also an important issue for councils, which in some areas have not received sufficient funding from central government to enforce the Animal Welfare Act. This has moved the responsibility to charities such as the RSPCA. Councils work in partnership with the RSPCA and in many areas are reliant on it for enforcement of the Act.
The other place produced a report in November 2016, Animal Welfare in England: Domestic Pets, which made several recommendations. Many of those were in included in the SI debated on 27 March in this Room, when the Government updated the animal welfare regulations. I have been lobbied, as have other noble Lords, by Battersea Dogs Home and the Dogs Trust about third-party sales. A consultation under way on this subject closed on 2 May. Despite it being early days, is the Minister able to indicate the preliminary outcomes from that consultation?
A recommendation from 2016 that the RSPCA should no longer be involved in acting as a prosecutor of first resort when there are statutory bodies with a duty to carry out that role has resulted in the Government giving the RSPCA two years to set its house in order over its prosecutions policy. How is the review of that policy progressing?
A further recommendation for the Government to set up a register of those convicted of animal cruelty offences who had also been disqualified from keeping animals was rejected in favour of public access to police prosecutions. I note that a petition was launched by the Daily Mail that year. I wonder how many people find it easy to access the police prosecutions lists and whether the Government are thinking of reviewing their decision.
The regulation and licensing of dog walkers has been raised previously. Dog walkers and grooming premises are not currently licensed. There is a National Dog Walking Register website, which gives advice about pet insurance and a list of dog walkers in one’s area, but there is no statutory licensing system. A second website on dog walking indicates that some local authorities may require a dog walker to have a business licence, but this is by no means widespread. Can the Minister say whether there have been complaints about dog walkers and whether licensing is necessary?
I support the comments of previous speakers on puppy farming and deliberate animal cruelty, and look forward to the Minister’s response.
Baroness Jones of Whitchurch (Lab)
My Lords, I am grateful to the noble Lord, Lord Black, for being a great champion of domestic animal welfare and to all noble Lords who have spoken. In the brief time I have to speak, I want to say something about Labour's animal welfare proposals. But before I do that, I want to ask the Minister whether a timetable of primary and secondary legislation will be produced. Despite the Secretary of State’s enthusiasm for animal welfare issues, the legislation does not seem to be keeping pace with his promises and his credibility is increasingly on the line. I agree with the noble Lord, Lord Black, that this would be rectified if we had more assurance on the future timeline of legislation.
In the meantime, noble Lords have mentioned important animal welfare issues, most of which are encapsulated in Labour’s animal welfare plan. It was, of course, Labour which brought in the landmark Animal Welfare Act 2006, but we recognise that it is now time to update the existing legislation so that we continue to have the best standards in the world.
We are angry that penalties for animal cruelty are now some of the lowest in Europe, which is why we supported the animal welfare Bill, which would increase maximum sentences. We have fought to enshrine the principle of animal sentience in UK law, preventing animals being exposed to cruel and degrading treatment—despite the Government’s prevarication.
We have consistently supported a ban on the third-party sale of puppies and the requirement for all puppies to be sold with their mother on site. We will take proactive measures to tackle the cruel and illegal acts of puppy smuggling, often carried out by organised gangs, and review the operation of the pet travel scheme. We would introduce a microchip database, recording microchip numbers upon entry to the UK and extending mandatory microchipping to cover cats. We are opposed to the use of animal shock collars and would ban their sale and importation. We would introduce new restrictions on people keeping primates and other exotic animals captured from the wild as pets. We would tackle the scandal of retired greyhounds being needlessly destroyed by introducing a centralised database to trace ownership. Recognising the companionship and comfort that animals bring to so many people, we are consulting with landlords and care home providers on allowing pets to be kept on their premises.
The humane treatment of all animals is the benchmark of a civilised society. Our proposals would make sure that we remain world leaders on this important issue.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Gardiner of Kimble) (Con)
My Lords, my noble friend Lord Black’s dedication to animal welfare is truly exceptional, and today we witness this given his recent accident. We are proud to have some of the highest animal welfare standards in the world, and I say to my noble friend Lord Kirkham that they will remain so under our new arrangements.
Animal welfare affects us all. The veterinary profession is at the front line, and I take this opportunity to pay tribute to the veterinary community and the contributions it makes. Together, we are working to create a veterinary profession equipped to deliver future requirements: to protect animal health and welfare, safeguard our food chain, maintain public health and services, and enable thriving trade. Work is ongoing between the Government, the British Veterinary Association, the Royal College of Veterinary Surgeons and other key partners on the hugely important veterinary capability and capacity project. The profession also has a key role in the fight against antimicrobial resistance and meeting our targets for the reduction in antibiotic usage.
My recent visit to the Animal Health Trust at Newmarket reminded me just how much we owe my noble friend Lord Kirkham for his generosity and commitment to that establishment. We are extremely fortunate to also have the Animal Health and Welfare Board for England and the Farm Animal Welfare Committee providing advice, and I acknowledge their work.
The UK equestrian sector plays a significant role in our national and rural economies. It sets a global standard with its exceptionally high level of expertise, which is recognised around the world and has encouraged a strong and successful export market. I value the work of the British Horse Council, to which my noble friend Lord De Mauley referred, and in particular its help in the creation of the Central Equine Database. This holds 1.2 million equine records and is being used by local authorities to help identify the owners of straying, abandoned or neglected horses which have previously been microchipped.
My noble friend Lord De Mauley asked about progress with the Control of Horses Act, and I pay tribute to him for his close involvement in bringing that forward. The Act has undoubtedly helped tackle this problem, which is one that he knows so well. However, there remains the issue of equine fly-grazing. We encourage partnership working between all partners—landowners and their representatives, local authorities and the equine charities—to deal with horse abandonment and fly-grazing. I know a number of equine charities that are absolutely instrumental in this, including the British Horse Society, of which I should declare membership, and in the castration of horses, which is hugely important.
My noble friend Lord De Mauley asked about fine income in connection with retrospective equine microchipping. We are finalising our new statutory instrument on equine identification to implement EU requirements, which will be laid as soon as practicable. Officials are in discussion with local authorities and other government departments to establish whether it is appropriate that any fine income could be returned to local authorities.
As a number of your Lordships have said, cats and dogs are surely our most numerous and hugely popular pets. So many of us have had them, and without them our lives would not be as full as they have been, from early childhood and thereafter. I had the privilege of speaking recently at the Big Tent event for the Canine & Feline Sector Group. I cannot overstate the importance of these connections and the constant communication and sharing of ideas with the sectors on animal welfare. My noble friend Lord Caithness and a number of your Lordships raised the issue of awareness. I am acutely aware of that in so far as the veterinary profession, as well as the animal charities, will be key to helping us raise awareness as we seek to persuade many owners who would not dream of even thinking of being cruel to their animals but who unfortunately are not caring for them in an enlightened way. We absolutely need to raise awareness.
My noble friend Lord Black made reference to the PDSA report and to the importance of education. These are all things on which we must beat the drum. The codes of practice for dogs, cats, horses, ponies and their hybrids have been updated, as a number of your Lordships mentioned, and they came in to force on 6 April. The whole purpose of these updated codes is to contain more detail about what owners and keepers need to do to ensure the welfare of their animals.
The noble Baroness, Lady Jones of Whitchurch, quite rightly asked about the timetable for primary and secondary legislation. Of course, I will have to reply with what is expected from the Government Benches, that we will bring forward legislation when parliamentary time permits, but we are clear about the priorities we set on bringing these matters forward. In particular, my noble friend Lord De Mauley asked about the legislation increasing the prison sentences for animal welfare offences. Our proposal is to increase the maximum penalty for animal cruelty from six months’ to five years’ imprisonment. As your Lordships know, we published a draft Bill in December, and the timing will be announced in the usual way. However, I am conscious that we all want to make progress on that. The Bill also seeks explicitly to recognise animals as sentient beings, which is an indication of the Government’s resolve not only to maintain current standards of animal welfare but to strengthen them.
As has been mentioned—this was part of our manifesto commitment—we have already achieved the passing of the new animal welfare licensing regulations. I point out specifically to your Lordships that we worked with charities, through the Canine & Feline Sector Group; we are working on guidance on these matters precisely because we want the regulations to be of practical benefit. That was raised by my noble friends Lord Lexden and Lord Black. These regulations update the licensing controls for five activities involving animals. I emphasise to my noble friend Lady Redfern that anyone in the business of breeding and selling, regardless of the number of litters, must have a licence. We are absolutely clear that this is about whether you are in the business of breeding and selling. One of the key points on which we are absolutely clear is that no puppy or kitten should be sold under the age of eight weeks, which is clear in the new arrangements.
A number of your Lordships, including the noble Baronesses, Lady Bakewell and Lady Jones of Whitchurch, raised the issue of commercial third-party sales of puppies and kittens in England. As has been said, this consultation closed recently; we need to analyse the responses and will come forward with our own response as soon as we possibly can.
A number of your Lordships, my noble friend Lord Black in particular, raised the issue of breeding pets with what I would describe as extreme characteristics. I have of course discussed the issue with the Kennel Club and the British Veterinary Association. For the first time we have placed legal requirements on licensed dog breeders in our licensing regulations. Surely the point is that we must breed defects out of pets—that point was also raised by my noble friend Lord De Mauley. We must prevent these extreme conformations for cats and dogs. It cannot be right to breed animals that will have all sorts of disabilities because of our self-indulgence. This is the strongest message that anyone, whether breed societies or the Kennel Club, must get across. It is simply not acceptable for animals to be knowingly bred in this way.
Further recent progress on domestic animal welfare arising from the compulsory microchipping of dogs has led to a significant decrease in the number of stray dogs—this is a really strong point. A number of your Lordships mentioned e-collars, including my noble friends Lord De Mauley and Lord Astor. The consultation has just closed. I have had a very large number of representations on a range of issues arising from it. Of course, we must consider the way forward extremely carefully and I am mindful of all the points that have been made by your Lordships and others on this matter. I would also like to recognise all the work that Defra officials do, some of whom are sitting behind me. They have worked tirelessly on these matters.
My noble friend Lord Shrewsbury mentioned pet theft. I know of a number of friends and relations who have suffered this over the years. It is a traumatic event and very often one never really gets over it. There are strict laws in place; in fact, someone can be in prison for up to seven years. The Sentencing Council has issued guidance to the courts underlining the significance of the theft of a pet or, as my noble friend said, a working dog, and the emotional distress that it can cause.
My noble friend Lord Shrewsbury and others are absolutely right to talk of puppy farming. It is at the root of what we need to do to ensure that that illegal trade is stamped out.
My noble friend Lord Black asked about cat microchipping. We definitely agree that microchipping is strongly recommended. However, we do not think at this time that cats present the same potential public nuisance as dogs.
My noble friend Lord Caithness mentioned cats and wildlife. I do not have enough time to go into the intricacies. All I can say at this stage is that we are not convinced that this is a matter for government intervention, but clearly many owners are fitting bells to collars and I encourage that.
My noble friend Lord Black asked about the licensing of air weapons. This is still being analysed and my officials are very strongly in communication with Home Office officials on the matter.
Clearly, we are working on new arrangements. My noble friend Lord Lexden mentioned the Pet Travel Scheme. We need to work on that to heighten biosecurity and to ensure that matters run smoothly.
On the illegal dog trade, the APHA has been working in partnership with the Dogs Trust. I want to record our appreciation of what has been done. It is disrupting the illegal trade in dogs and puppies, and as a result of the partnership more than 700 dogs have been seized and placed into quarantine.
The noble Lord, Lord Redesdale, and other noble Lords asked about local authorities’ resources. Our licensing regime is created with full cost recovery, including local authorities’ reasonable enforcement costs. We are also placing emphasis and importance on training, which often means that local authorities are collaborating.
I am about to go over time and am conscious that I have not been able to answer a number of questions. I will write to your Lordships. I express my gratitude to my noble friend for his long-term commitment and for giving me this opportunity to update your Lordships. Good progress has been made. The noble Baroness, Lady Jones of Whitchurch, is quite right to say that there is more to do. We have a lot more that we want to do and are seeking the legislative time to do it. I look forward to working with your Lordships and with all those at home or abroad who are advancing the cause of animal welfare.
Committee adjourned at 1.54 pm.
Scrap Metal Dealers Act 2013
(5 years, 11 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Faulkner of Worcester
To ask Her Majesty’s Government what was the outcome of their review of the Scrap Metal Dealers Act 2013.
Lord Faulkner of Worcester (Lab)
My Lords, I start by expressing my appreciation for all noble Lords and the right reverend Prelate who will be contributing to this short debate, particularly the noble Baroness, Lady Browning, for she was the sponsor of the Private Member’s Bill that became the Scrap Metal Dealers Act 2013. Almost exactly a year earlier the House was able to accept an amendment that I moved to the Legal Aid, Sentencing and Punishment of Offenders Bill that made it illegal for a scrap metal dealer to make payment in cash. That was the first step along this road of solving the problem of metal theft. The cash-free provisions, and a great many others, were incorporated in the 2013 Act.
Noble Lords may recall that at that time there were almost daily reports of lead being stolen from church roofs, metal plaques being stolen from war memorials, manhole covers disappearing, signalling cables being ripped from our railway lines, the theft of which led to trains being delayed for thousands of hours, and in one case in Dulwich, a complete metal sculpture being ripped off its plinth. The number of metal theft offences recorded by the police in England and Wales peaked at just under 63,000 in 2012-13. The Act came into force in October 2013. As well as making it illegal to pay cash for scrap metal, it set out ID check requirements and gave the enforcement authorities, such as the police and the Environment Agency in England and the Natural Resources Body for Wales, powers of inspection and access to premises. A scrap metal dealer was required to hold and display a licence issued by the relevant local authority. The lead for tackling metal theft was taken by the British Transport Police, who built on the success of Operation Tornado. That started as a pilot in January 2012 and required scrap metal dealers to request identification for every cash sale—such sales were, of course, legal until December 2012.
I pay tribute to the BTP for the effectiveness and dedication of its continued work in this field. I make the point in passing that its activities in combating scrap metal theft cover not just England and Wales but Scotland too—another powerful reason for the Edinburgh Government to abandon their attempt to remove the British Transport Police from Scotland. Its efforts were supported in the first year of the Act’s implementation by a dedicated and specially funded metal theft task force and there was a significant fall in the incidence of metal theft. This trend was assisted by a dramatic drop in world scrap metal prices. However, funding for the task force ended in October 2014 and since then there has been no funding for continued enforcement by a dedicated group. Enforcement interventions are now carried out on an ad hoc basis. For example, on 17 November last year I took part in two unannounced visits—I would not wish to use the word “raids”—by West Mercia Police and the Environment Agency to dealers in Malvern, Worcestershire.
A number of preventive measures have also been taken. A cast iron manhole cover in the street close to my home in London has been replaced by one made of plastic which carries the words “Non-metallic—no scrap value”. St Blaise Church in the Oxfordshire village of Milton had the lead on its roof stolen five times and has now replaced it with stainless steel. There are many similar examples.
The House was supposed to be adding a sunset clause to the 2013 Act but your Lordships decided not to pass that amendment to the Bill. A sunset clause was not applied but the Government were obliged, under Section 18 of the Act, to review its effectiveness within five years. At the request of the industry, that review was brought forward and the outcome was published last December. This is the first time, I think, that the review has been debated by your Lordships. The most important conclusion is on page 10:
“The overwhelming view of those who responded was that the Scrap Metal Dealers Act had improved regulation of the scrap metal industry and, by doing so, had helped to achieve reductions in the level of metal theft. The overwhelming view was that the Act should continue in force. The Government agrees with that view”.
I am sure we will have no difficulty in agreeing with that conclusion. However—and this is a significant “however”—I urge the Minister to look behind the headline figures and think seriously about a range of issues which, if they are not addressed, could fatally undermine the effectiveness of the Act in future.
Let us look first at the statistics. The Home Office review states that the number of metal theft offences recorded by the police in England and Wales in the year ending March 2017 was 12,970. That is a huge reduction compared to the 62,997 recorded in 2012-13. But the latest report from the National Police Chiefs’ Council, published by the BTP as recently as 2 May, says that there was an 11% increase in 2017-18 and notes a clear correlation between the price of copper and lead in particular and the number of incidents reported. A further indication of the seriousness of the problem is contained in figures obtained from Network Rail under a freedom of information request by the British Metals Recycling Association. These show that 62 cases of railway cable theft were recorded in 2017, which contributed to train delays amounting to 36,286 minutes.
A particular issue is the degree of enforcement. An article in the trade journal Materials Recycling World by Robin Edwards, who was the project leader for Operation Tornado and operational lead for the national metal theft task force, said:
“The future of metal theft sits on a precipice, and the recent increases in commodity prices and the lack of enforcement is all that is required to push it over the edge”.
That view is strongly supported by the British Metals Recycling Association, which represents the ethical and law-abiding part of the industry. The association has told me that for the ban on cash purchases to be effective, it needs to be enforced properly, and it is disappointed that its requests for the Act to be strengthened have so far been ignored by the Home Office. Examples of what it says are needed include the introduction of a new offence of receiving cash for scrap metal, strengthening the requirements to identify the sellers of scrap metal, expanding police enter-and-inspect powers to include stop-and-search provisions for mobile collectors, and the re-establishment of the metal theft task force.
The increase in severity has not been captured by the official figures, as the ONS data simply record the number of metal theft incidents and not their value or impact. The data do not show that the nature of metal theft has changed from predominantly a high number of small, opportunistic thefts to fewer but far larger, often gang-organised, crime-based thefts. The number of churches having lost half of their roof lead in a single night is evidence of this.
In addition, thieves are now targeting new sources of scrap metal, including foundries, with legitimate scrap metal dealers often stealing £30,000 to £40,000-worth of copper-based materials in a single night. I also hear that, while in the past thefts were seemingly opportunistic and involved small quantities, now, 50 cubic metres of lead or two kilometres of cable are being stolen at once. Worryingly, these larger crimes are more likely to be the work of organised crime gangs and may lead to the stolen items being sent overseas in secure containers. I believe that metal theft is again on the increase in part because the criminal element knows that there is no longer a dedicated metal theft task force and that metal theft is often seen as a victimless crime. But the impact of metal theft goes far beyond the cost of replacing the metal. In some cases, the theft of lead from churches is not noticed immediately, leading to far more damage to the church’s fabric.
The perception that there is little danger of detection has another consequence: we are seeing an increasing number of operators choosing openly to break the law and pay cash for scrap metal. Not only does this create an uneven playing field for the legal operators but, assuming that an operator who is willing to act illegally by paying cash is more likely to do so in other ways, it creates an easy means for thieves to dispose of stolen metal.
I conclude by reminding the Minister of the statement on page 5 of the review of the Act. It says:
“The Home Office will give further consideration to the case for strengthening the legislation in the future, in consultation with the industry, the police and interested parties, building on the representations received in response to this review”.
I hope she may be able to give us some encouragement in that respect this afternoon.
Lord Cope of Berkeley (Con)
My Lords, first, I thank the noble Lord, Lord Faulkner of Worcester, for launching this debate and for the expertise he displayed, once again, in doing so. My interest in these matters stems from my involvement with the War Memorials Trust. I was a trustee for 20 years and now I have been moved to be the president. As noble Lords will realise, we are concerned with all kinds of vandalism to war memorials. That certainly includes the theft of plaques and other features made of bronze and other materials. By their nature, war memorials are often in public places and therefore vulnerable in the dark hours of the night.
However, I am delighted to tell your Lordships that there has been a considerable decline in the theft of metal from war memorials in the years since the Scrap Metal Dealers Act and other measures in 2013. There had been a spike in 2011, corresponding to the figures that the noble Lord, Lord Faulkner, gave us, when 40 such cases of theft from war memorials were known to the War Memorials Trust. In 2010 and 2012, there were 14 and 16 cases respectively. By contrast, in the whole of 2017 only two cases in the UK were known to the War Memorials Trust. In Nottingham last September, lead was stolen from the roof of the Memorial Gardens colonnade, which is the centre of the remembrance celebrations in that city. In the same month, in the village of Bunbury in Cheshire, two bronze plaques on the church gates, listing the names of the fallen of the village, were stolen. Last week, the National Trust reported that the brass plaques listing the local dead had been prised off the war memorial in Clumber Park in Nottinghamshire and stolen.
These are tragic cases. There is something particularly sickening about stealing from war memorials. Of course, it is very distressing for the communities concerned when it happens. However, the fall in the number of cases is obviously welcome and coincides with the coming into force of the Act and the other measures. I believe that is one reason why there have been fewer cases. Another reason, we believe, is the scheme that the War Memorials Trust has had in place in recent years to protect war memorials by painting them with a special chemical known as SmartWater. I recommend it to anyone who has metal at risk of being stolen from church or house roofs, or wherever it may be. If the metal is stolen and later found in someone’s possession, it can be chemically identified and the police can prove—and have proved, in various cases in court—where the metal came from, even if it has been melted down in the meantime. That fact is well known, particularly to organised thieves—the sort of gangs the noble Lord was talking about. They are often deterred by seeing the little SmartWater sign that is put beside metal that is so protected. It also deters scrap metal merchants from accepting metal that might have been stolen, as they do not want to be prosecuted for handling stolen goods that can be traced through this technique. I am delighted to say that the trust has an arrangement with the SmartWater Foundation whereby any war memorial can be protected in this way free of charge—but that applies only to war memorials, of course. With the exceptions I have mentioned, therefore, the news overall is good on this front.
It has not often been my experience in my political life that I can say quite so clearly that the Act is working as intended. However, in this case it is so, and it should certainly be continued and enforced.
Lord Snape (Lab)
My Lords, like the noble Lord, Lord Cope, I am grateful to my noble friend Lord Faulkner of Worcester for the opportunity to say a few words on this matter, and I commend him for the diligence with which he has pursued this matter over some years. I do not want to sound as though I am prejudging the Minister’s response before she has made it, so I will not yet accuse her of any complacency. However, the Government do not take this problem as seriously as they should, and I hope that when she comes to reply, she can ease some of my fears. Given the time constraints, I shall confine my remarks to the impact of metal theft on the railway industry, in which I spent my working life.
Fifty years ago I was a passenger guard, as it was known in those days, at Manchester Victoria. One of my first duties after I took over at that station was to work a train on the old Lancashire and Yorkshire main line from Liverpool Exchange via Wigan to Leeds. On the first day the train was 35 to 45 minutes late, as it was the whole week, due to the theft of signalling cables between Liverpool and Wigan. I tell that story not, I hope, to bore the Committee unduly, but to show that this problem is far from new. Moving to the present day, anyone who watches that excellent Channel 5 programme “Paddington Station 24/7” will know that metal theft, particularly from alongside the railway, still has an enormous impact 50 years on. I watched an episode the other night which detailed the theft of some signalling cabling in the Bristol area, which again caused hundreds of hours to be lost by thousands of passengers. Although there is nothing inherently unsafe so far as the railways are concerned, you have to plan contingency arrangements for when metal thefts take place. Obviously, it means that trains are enormously delayed and passengers massively inconvenienced.
I fear that the Minister will say in her reply that the 2013 Act is working perfectly adequately and there is no particular need to strengthen it. That view is not shared by other people in the industry. The British Metals Recycling Association, to which my noble friend referred in his speech, said in a statement at the end of last year:
“If Government was to reinstate the Metal Theft Taskforce, and use it to tackle cash-paying operators, it would quickly reduce the number of disposal outlets for stolen material”.
I hope the Minister can reflect on that and decide to reinstate that task force, which, in the opinion of many people in the scrap metal industry, was responsible for the dramatic fall in thefts following the passage of the Act in 2013. Of course, some in the industry say that that dramatic fall was caused not only by the activities of that task force but by the fall in commodity prices. As we are seeing commodity prices increase at present, it is conceivable—more than conceivable; it is very likely—that these thefts will rise in future.
It is all very well for Governments or local authorities to say that cash payments for scrap metal have been banned. However, on the fringes of this industry—which extend quite a way—it is possible to receive a cheque for stolen metal in a scrapyard and then be told where to take the cheque to exchange it for cash. Any legislation, as all of us who have served in either House of Parliament know, is only as good as its enforcement. Given local authorities’ lack of resources, I would be interested to know from the Minister just how many inspections have led to prosecutions over the past year or so, and whether instructions can be sent to local authorities to strengthen the operation or implementation of the Act and ensure that, whatever happens in future, there is an improvement in the number of people prosecuted for the sort of behaviour I have just outlined.
It is of course not just the British Metals Recycling Association that has expressed concern. I shall not repeat anything my noble friend has said, but one of the recommendations from the Chartered Institute of Waste Management, to which he did not refer, talks about creating a more rigorous local authority licensing regime to ensure transparency and consistency by harmonising renewals procedure, improving the application process and strengthening the requirements for local authorities to provide data. All these matters would go a long way to tackling this problem; I hope the Minister will take them seriously.
I end on one quote, from someone to whom my noble friend referred—Robin Edwards, the project lead of Operation Tornado, which had such an enormous and beneficial impact on metal thefts. He says:
“There is no silver bullet and without effective licensing, enforcement and greater controls from the owners of metal the problem is only going to go one way”.
I hope the Minister will agree that more needs to be done and that she can offer some hope and consolation that the Government take this problem far more seriously than they appear to have done so far.
The Earl of Clancarty (CB)
My Lords, I am very grateful to the noble Lord, Lord Faulkner, for initiating this debate. I agree with everything he has said.
I will concentrate on heritage metal crime. You have only to think objectively for a few seconds and you realise that dealing in scrap metal is an extraordinarily important recycling initiative. It is a green project and therefore an activity that should be held in the highest regard by the public. It is a great shame that the old stereotype still to an extent prevails, although this has been admirably countered by organisations such as the BMRA.
It has to be stressed that we are talking about a small minority of criminals who have a significant effect. It is good that the Government are happy that the 2013 Act remains in place. There are, however, clearly reasons why the Act should be strengthened. If a number of firms are trying to get round the Act and are successfully doing so, for instance by providing cheque-cashing facilities on-site, it is essential that these loopholes be closed, most obviously because it is important that all companies should adhere to the spirit of the law, which is to stop theft. However, every company in this industry also has a responsibility to promote trust, whether or not it is breaking the law. This is not just in the country’s interests, but in the interests of the industry that there should be a better perception of it, not least because it will affect its own business. Another thing that can be done, and which the BMRA is in favour of, is a national licensing scheme, which could be administered by the Environment Agency rather than by local authorities.
I notice that the review lists the number of offences for particular years, but we do not get a detailed sense of the nature of the crimes committed, although there is a general sense that offences are individually of greater value than they used to be, with, for example, whole roofs of churches being taken, and even drones being used to locate them. There are a number of issues around this. Historic England is very keen that heritage crime is perceived as such. I understand that sentencing can now include a heritage element, which can increase the severity of the sentence—but there is not the accompanying consistent input through the system to that point, either in the charge made, or, going further back, in the way that crimes are currently recorded by the police, which does not specify heritage metal crime. Is this something the Minister could look at?
There needs to be a proper differentiation between heritage and infrastructure crime, such as the theft of railway copper cables. We need a better understanding of the kind of crime, its location and its prevalence to build up a more precise picture of what is going on, both geographically and historically. Scrap metal, of course, by definition a metal that can be further worked, is not a heritage asset—which scrap metal dealers should then not normally be in contact with.
This brings me to my second point, which is the need to involve dealers and work more closely with them. Again, Historic England’s team, led by Mark Harrison, head of heritage crime and policing advice, alongside others, very much favours this, as do the dealers themselves. Such an initiative involves dealers becoming heritage “watch yards” and becoming actively participatory, as we should all be in the protection of our shared cultural heritage. While good work is being done and progress is being made with these new initiatives around intelligence and awareness, better police resources would be extremely welcome. It is important that heritage crime is seen as just that. Thieves need to be made more aware that the crime they are committing is not just the stealing of an object, but has much greater ramifications in terms of cultural damage and destruction. Sometimes it is not only the theft of a church’s roof tiles, but the further damage that may be done inside the church, through exposure to the elements, as the noble Lord, Lord Faulkner, pointed out.
Taking a longer-term view, one reason why this is a modern crime is that our society has lost respect for establishment and authority. That contract has been broken. This has had some good effects on our society in that we are more questioning, but also bad ones, as shown by the concerns raised in this debate. What needs to replace that contract in part is one where respect is held throughout society for our shared culture and heritage, which means better education about our cultural environment in schools and improving maintenance of our shared public spaces—both things that, I am afraid to say, are going in the opposite direction to how they should. The recognition of heritage crime as a specific crime of which we are all victims, including heritage itself, would be a step in the right direction.
The Lord Bishop of Chester
My Lords, I echo the thanks to the noble Lord, Lord Faulkner, for initiating the debate, and to the whole process that led to the Act being enacted, which is a good example of legislation that makes a difference. I suspect that we will all be singing from the same song sheet this afternoon to some degree. Orchestras can, of course, have two people playing the same instrument, so I shall be second fiddle in my own heart to the noble and right reverend Lord, Lord Chartres, who had a big involvement in this when he was Bishop of London.
This is good legislation. It provided for a review within five years, but the review started rather earlier, after about three years. I question whether that was entirely wise. In some senses, the Act arrived at the right time. Metal prices were falling, but I am told that they are now 65% above their low point, so obviously the crime has become more attractive. Also, the Act had an initial impact on the police and local authorities, who know that they will have to do something about it because it has just happened. One of the key things is keeping up the sense of momentum and pressure.
Of course, crime and criminals mutate and evolve. We have heard a little about how there might be fewer offences, but it would be good to have some facts on the size of the crime. Indeed, things seem to be moving around the country. The Cathedral and Church Buildings Division tells me that there is more of an organised character to it, particularly in the south-east, and in Leicestershire and Northamptonshire. There is a bit less in my part of the world, although I share with the noble Lord, Lord Cope, the view that what happened in Bunbury was dreadful. It was not just a plaque that went. It was probably put there when there was a service of dedication. That bit of metal has a meaning. It is almost irreplaceable, even if you get a physical replacement.
One of the things we need more information on is what happens to the lead that is stolen. How is it getting to wherever it goes to? There is very little in the review about that. Is it going abroad? Is there some way around the SmartWater technique? It would be good to have more information on that in particular. We also need to recognise that police resources are under ever greater pressure. Particularly with the fall in the number of recorded crimes, this crime could easily slip down the order of priority for police forces. Renewed attention is needed to the whole process of enforcement and a further review at some point. To think that we have now reviewed and that is it would surely be wrong. There must be some ongoing process of review because, as I said, the underlying crime will mutate and evolve.
This crime is deeply anti-social. While I can speak especially from the point of view of lead from church roofs, there is also the impact on rail. I have come across this in the north-west, where I live. If it happens outside one of the main London stations it causes absolute havoc. One wonders what the cost of making good is in relation to the value of what is stolen. It makes the whole crime even more senseless.
Our churches are typically maintained by a small band of very dedicated volunteers. On Sunday, I celebrated the 50th anniversary—he was eventually retiring—of a churchwarden. He had worked as a churchwarden for 50 years, since I was still at school, which is the longest I have known. His wife said that whenever someone phoned the house she would always say, “He’s down at the church”. The churches are maintained by volunteers like him, and to find water coming through the roof because somebody has pinched relatively small amounts of lead flashing or whatever is utterly dispiriting. So not only is there a monetary cost, there is a social and personal cost that goes with everything. When the Minister replies, will she say whether sentencing takes into account some assessment of the aggravation in relation to heritage assets, or whatever? Half our listed buildings are churches, so it has a disproportionate impact. I do not want to make special pleading for the Church in this regard, but something about the impact of this particular type of theft should be taken into account in the judicial process.
At the same time, the efficient recycling of scrap metal is a very important part of our national life, and we should acknowledge that. I have recently built a house for retirement, and twice I went to the scrap merchant with bits of scrap lead that I had carefully assembled—and, indeed, disposed of other things. Let us acknowledge that there is an important process of recycling scrap metal, but we must not be at all complacent because there is more to do in enforcement. I hope very much that the Government recognise, too, that this review should not be the first and last but the first of a series.
Baroness Browning (Con)
My Lords, I, too, congratulate the noble Lord, Lord Faulkner of Worcester, on bringing this debate to the House today and on the vital role he played in bringing this Act on to the statute book. I remember it very well, and I was very grateful for his support and all the work he did towards it.
I spent a very short time, unfortunately, as a Home Office Minister, but in the list of my personal responsibilities in the department was “scrap metal theft”. I did not have a lot of knowledge about it at the time, but I was soon informed by many people of the problem. I was aware of the difficulties with things such as cabling on railway lines, but the noble and right reverend Lord, Lord Chartres, as Bishop of London, soon came knocking on the door and explained very clearly to me how important it was and how it went across many sectors.
My first question to my noble friend is whether there is still a Minister in the Home Office who has personal responsibility for this. I see from the beaming smile that I am receiving that I am talking to the right person. I am delighted to know that, as there is now an Act on the statute book, the Home Office has not just put it in with all the general stuff, but it is still regarded as important enough for a Minister to take responsibility. Moving on from that, as I think I have now established that we are talking to the right person, I appreciate that operational decisions and day-to-day policing must remain with the police and not with Ministers, but this is an area that needs some leadership to keep the momentum going, with all the things that have come out—not just in today’s debate but in the review and the responses to it.
On the question of lead on church roofs, the Government’s response in the review says:
“While the Government cannot commit to further legislation in this area at the present time, the Home Office is keen to work with those who advocate this, to identify whether there is more to be done within the existing legislation to address some or all of these issues”.
I noticed that one response to the review was about changing the smelting regulations for lead. I am not somebody with any particular technical knowledge on this, but changing regulations is not quite the same as asking the Government to find time for primary legislation. If my noble friend does not have the answer to that today, can she look at why that recommendation was made? It could be something to do with the SmartWater—I do not know—but, clearly, somebody who knows a lot more about the smelting of lead than I do can see that the Act would be enhanced, which would particularly bear down on church roofs and, possibly, on some of the appalling accounts that my noble friend Lord Cope has given us today. I find it quite appalling.
I am fortunate enough to live near a cliff top on the south coast, where very often people pass on having looked at the wonderful view. Their relatives then donate a bench for other people to sit on. I regularly sit on those benches myself as I get older. There is usually a little metal plaque on them that says, “Doris enjoyed this view”—all lovingly put there by relatives. There was a period when I noticed that people had unscrewed those tiny pieces of metal. It seemed so petty and so horrible that someone had gone to the lengths of bringing a screwdriver into the open air just to remove little dedications such as that. All that would possibly have been sold on.
I ask my noble friend to encourage leadership on this within the department. For example, we now have police and crime commissioners—who I hope are fully briefed about the importance of metal theft. The department could ensure that they have knowledge of such issues and understand the wonderful result of this legislation in terms of reduction in crime. I notice that the report said that, at the same time as the figures came forward, the Government were aware that an increase was coming. We are now seeing that increase in metal commodity prices. I hope my noble friend will see this as a time to start the ball rolling again and use her good offices to make sure the momentum is maintained.
Lord Chartres (CB)
My Lords, I am glad to support the noble Lord, Lord Faulkner, and the noble Baroness, Lady Browning, as I did in a previous incarnation as chairman of the church buildings division, first and foremost to celebrate the passage of an Act which has made a difference—which is hugely encouraging.
I remember during the debates on the Bill lead and metal theft being described as second only to terrorism as a major threat to the infrastructure of the country. So we were very clear about the size and significance of the crime when the Act was passed, and it has been illustrated powerfully, but perhaps a sense of quite how significant and serious it is has abated partly because of the success of the legislation.
We noticed in the church buildings division an initial reduction in the number of the crimes, but, as Robert Fell, the chief executive officer of the organisation, which has been mentioned by other noble Lords, has said—this is a telling and simple phrase: “The number of thefts has been reduced, but they have got much bigger”. He has called, as have noble Lords today, for the reinstatement of the metal theft task force. The right reverend Prelate the Bishop of Chester has already indicated the need to establish more clearly, which such a task force would be able to do, the disposal routes for various kinds of metal—lead smelting, mentioned by the noble Baroness, Lady Browning, would be part of that—to establish how the routes operate, because there is considerable suspicion up and down the country that victims of this crime find themselves buying back the metal and lead which have been stolen.
Coming at this point in the debate is rather like Ruth attempting to glean after a combine harvester, so I shall not delay noble Lords excessively by recapitulating all the points that we have already heard. But I have been asking around, and St Albans—for example, Hertfordshire and Bedfordshire—seems to be one of the worst affected areas. There have already been four major incidents this year. I refer to the experience of the parish of Eyeworth, a small parish that was kept going, as the noble and right reverend Prelate the Bishop of Chester says, by a handful of dedicated volunteers who were trying to maintain the community’s inheritance in terms of their parish church. The lead roof was entirely stripped 18 months ago and they decided to replace it with zinc. However, the little lead that remained was very recently stripped off and, as we have already heard, the damage done in removing it was such that the organ was damaged. There was a great deal of additional deterioration of the building and the costs for a very small parish look as if they are going to be considerable.
I modestly add my voice to that of the noble Lord, Lord Faulkner, and other noble Lords. We need to underline the need to enforce this excellent Act, to reinstate the metal theft task force and particularly to investigate and identify rather more clearly the disposal routes for the lead and metal that has been stolen.
I notice that we are also suffering from stone theft in the church. A lot of stone is being taken off—and perhaps this is an appropriate Room in which to meet to consider these matters.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, I congratulate my noble friend Lord Faulkner of Worcester on securing this debate on the review of the Scrap Metal Dealers Act. As noble Lords have said, it is a very good piece of legislation and we are all very grateful to the noble Baroness, Lady Browning, for getting it through Parliament.
The Act has made a significant difference and dramatically reduced the number of thefts of lead from roofs, as we have heard, as well as war memorials, manhole and drain covers, and other items from the public realm. As my noble friend Lord Faulkner of Worcester said, public art is also at risk. The noble Earl, Lord Clancarty, spoke about heritage metal crime. I agree with his comments—this cultural crime is much more than the theft of the metal.
In November 2011, the statue of a local GP, Dr Alfred Salter, was stolen in Bermondsey. He was a social reformer, a mayor of the borough, and elected the MP in 1922. The statue was stolen from Cherry Gardens in Bermondsey and replaced only in 2014, when local people raised £60,000 to replace it and the borough council matched the sum. It was a terrible thing to happen. I grew up in Walworth in the London Borough of Southwark. On the Brandon Estate, the old London County Council bought a Henry Moore for £8,000 in November 1962, the month and year that I was born. It is called, “Two Piece Reclining Figure No. 3”. There were several attempts to steal it in recent years before the Act came into force. Even today, the sculpture is only there because it is protected by the enormous bushes and cameras that the council has placed around it. When I was a child I used to sit on it and eat ice-cream and play there. No more—no kids can go anywhere near it today. Of course, Henry Moore would have been very happy for children to play on the statue without causing a loss to people.
The noble Lord, Lord Cope of Berkeley, reminded us of the threat to our war memorials. I know the memorials in Clumber Park and Nottingham to which he referred. I lived and worked in Nottinghamshire for many years. I pay tribute to noble Lord’s work for the War Memorials Trust, a fantastic organisation that does great work preserving and protecting our memorials. I often read its magazine, which is really worth reading, and I thank the noble Lord for the trust’s very worthwhile work.
My noble friend Lord Faulkner of Worcester raised the important issue of the effect of the Act in future. He made the important point about cable theft on our railways costing the industry vast sums of money, producing delays and adding to the misery of the travelling public. I use the railways, and it can be a struggle on some days. There were 62 cases of cable theft on the railways, as my noble friend said. There has been an 11% increase in metal theft in the last year, which has been brought about by a number of factors, including the rise in price of copper, lead and other commodities, but also by a lack of enforcement. It is important that we deal with that, too. My noble friend Lord Snape spoke about his experience with the railway industry and the problems with that lack of enforcement. People who are prepared to break the law, cut corners and pay cash for scrap metal will be encouraged to do so if they realise that the law is there but there is no effective enforcement. That is a very important point for us all to look at carefully.
I agree with the noble Baroness, Lady Browning, that it is important that the Home Office is clear that this is a priority for action. The role of PCCs is important, too, which they understand. Perhaps the Minister can speak about that and also about my point on regulations on smelting lead. Can the noble Baroness tell the Grand Committee why there is a reluctance in the Home Office to support calls to strengthen the Act? Perhaps I am wrong about that, but if it is the case she should let us know. This is something that the law-abiding, overwhelming majority of the industry want to happen. When the Government do not support these calls, in effect they make it more difficult for legal operators to operate fairly.
The noble and right reverend Lord, Lord Chartres, made reference to the number of thefts being smaller but the thefts being bigger, because the law-abiding scrap metal dealers are being targeted themselves for theft by organised gangs. That is a new offence and, again, the Government need to respond to it.
We have heard about lots of issues here today. This is a despicable crime. Although the Act has achieved many good things, more needs to be done. I hope that we can get a positive response from the Minister today. In conclusion, I thank my noble friend, Lord Faulkner of Worcester, for asking this important Question today.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I thank the noble Lord, Lord Faulkner of Worcester, for securing this debate. We have had a few debates on this matter over the last couple of years. The reason that I was smiling at my noble friend Lady Browning, when she mentioned a Minister responsible for scrap metal, is that in your Lordships’ House I am responsible for everything to do with the Home Office—hence, I have particular responsibility for scrap metal, among other things. I thank noble Lords for all the contributions they have made.
In answer to the noble Lord, Lord Snape, we do take metal theft seriously. That is why we have retained the Act and continue to work with police and industry through the metal theft working group.
The Question concerns the outcome of the Government’s review of the Scrap Metal Dealers Act 2013. I pay tribute to my noble friend Lady Browning for securing that Act through your Lordships’ House. The review was conducted during 2017 and the Government’s report on it was published on 11 December last year. I will speak to the conclusions that we reached following the review in a few moments. First, though, it might be helpful to set out a little of the background to this important legislation, and why we looked at it in some detail last year.
The Scrap Metal Dealers Act was introduced to help to tackle rising levels of metal theft, as noble Lords have pointed out. These are the thefts of items for the value of their constituent metals, rather than necessarily the item itself. The thefts affect tele- communications, transport services and power supplies, as well as cultural and heritage assets, as the noble Earl, Lord Clancarty, pointed out—and as my noble friend Lord Cope of Berkeley mentioned, in talking about war memorials. I join the noble Lord, Lord Kennedy, in paying tribute to all the work that my noble friend does as part of the War Memorials Trust. The noble Earl, Lord Clancarty, asked about our doing more to protect the country’s heritage assets—for example, the lead on church roofs. We recognise the impact that these crimes can have on our communities and heritage. In terms of sentencing, which one noble Lord asked about—I am desperately trying to find out which one, and will do so in a moment—the Sentencing Council has published guidelines relating to theft offences which specifically recognise that, when an offence involves the theft of historic objects or the loss of the nation’s heritage, that should be considered an aggravating factor when considering the sentence. That can include damage to heritage sites or thefts from the exterior or interior of listed churches.
The Act focused on tackling the trade in stolen metal. At the time, global metal prices were high, as noble Lords have pointed out, making metal an attractive commodity to thieves. The Act sought to change this, in particular by making it more difficult for thieves to dispose of stolen metal. It did so by strengthening the regulation of the metal recycling sector through the licensing of scrap metal dealers. It prohibited cash payments for scrap metal and introduced requirements relating to record keeping and the verification of the identity of those selling scrap metal to dealers. Alongside the improved regulation of the metal recycling sector, the Act included a specific requirement to review the legislation within five years, which is why we are discussing it today. This was to enable the Government to take a view on whether the Act had met its objectives and whether it should be retained or repealed, whether in full or in part.
The statistics on metal theft paint a compelling picture. The most recent statistics were published by the ONS last December and show that there were just under 13,000 metal theft offences recorded by police forces in England and Wales in the year ending March 2017, to answer in part the question from the right reverend Prelate the Bishop of Chester. That was a reduction of 22% compared with the previous year and a staggering fall of 79% since 2012-13, as my noble friend Lord Cope of Berkeley pointed out. To answer the noble Lord, Lord Snape, the Government do not collect data on numbers of inspections or prosecutions, but I shall ask the MoJ if it has any figures on prosecutions that might throw further light on this. There will be a number of factors that contributed to this fall, including falling global prices which will have reduced the attractiveness of metal to thieves. However, the Government are clear that the legislation made a contribution and that it provides a solid foundation for continuing action to tackle this form of criminality.
This is the context in which the review of the Scrap Metal Dealers Act took place. The review commenced in December 2016 and the Home Office wrote to interested parties and relevant representative bodies to seek their views on the Act. More than 50 individuals and organisations wrote to the Home Office with their views, and these informed the report that was published last December. The overwhelming majority said that the Act should be retained. Some wanted the legislation to be extended further—including some of your Lordships—which was beyond the remit of this review, while others made the point that neither the Act nor the effect of falling metal prices had eradicated metal theft altogether. We were told that crimes such as the theft of lead from church roofs suggested that there was a shift from opportunistic crimes to more serious and organised criminality where entire roofs were being stolen: fewer crimes but more serious criminality. The noble Lord, Lord Faulkner of Worcester, and the noble and right reverend Lord, Lord Chartres, mentioned this.
Against the background of significant reductions in numbers of metal thefts, and a strong body of support for the legislation, the Government took the decision that the Act was effective and should not be repealed. Since conducting the review, we have heard our partners’ concerns that rising global metal prices, as the noble Lord, Lord Snape mentioned, are now beginning to put upward pressure on metal thefts. We do, of course, take these warnings seriously.
So, where are we now? First, we recognise that having this important legislation in place is only half the story. The other part of the equation is effective enforcement, as the noble Lords, Lord Snape and Lord Faulkner, and the noble and right reverend Lord, Lord Chartres, mentioned, to keep up the pressure on those who would readily flout the law as metal prices make the theft of metal more attractive to criminals. Enforcement is, of course, a matter for individual police forces and police and crime commissioners, as my noble friend Lady Browning and the noble Lord, Lord Kennedy, pointed out, and it is the role of local authorities to issue or to revoke the licences that all scrap metal dealers need in order to conduct their business. We do, however, have to recognise that enforcement of this legislation is one of a number of pressures and priorities that the police and local authorities face, and they will prioritise according to need. That is not an apology for patchy or inconsistent enforcement; it is a recognition of the realities of the situation.
I mentioned earlier the concerns that were expressed to us about the potential shift to more serious and organised criminality that manifests itself in crimes such as the theft of church roofs, which the noble Lord, Lord Faulkner, mentioned. A number of recommendations were made to us about what more might be done to prevent these crimes happening, such as the use of permanent chemical markers, which make the stolen metal more identifiable, as my noble friend Lord Cope pointed out. We recognise the value of such markers, but there may be a question about how resilient they are—for example, when metal is melted down. Nevertheless, it is of course a good idea for dealers to check for them when they receive scrap metal, to ensure that they are not inadvertently handling stolen goods.
The right reverend Prelate the Bishop of Chester talked about sentencing, which I have already dealt with in my remarks. However, he asked also about a further review of the process. We will continue to measure the impact on metal theft, using the national statistics. That is why the national metal theft working group is so important.
The noble Lord, Lord Kennedy, and my noble friend Lady Browning talked about extending the legislation and, in particular, smelting regulations. It was not covered by the legislation, but we can discuss it with the industry through the national metal theft working group.
My time is about to run out, but my final point is on the reinstatement of the metal theft task force, as was mentioned by a number of your Lordships, including the noble Lords, Lord Faulkner of Worcester and Lord Snape, and the noble and right reverend Lord, Lord Chartres. It is important to note that the task force was set up when the number of metal thefts was rising; it was funded by the Government to allow sufficient time for the reform provided through the Scrap Metal Dealers Act to become well established and embedded within the normal business of police forces and local authorities, and it was never intended to be a long-term arrangement. However, as I hope I have explained to noble Lords this afternoon, the police-led national metal theft working group now brings together the police, government, industry, local authorities and others to ensure that collaborative working across these sectors continues. We do not have any plans to re-establish the task force at this time.
The final question from the noble Lord, Lord Kennedy of Southwark, was on the lack of enforcement of the Act, and enforcement has been mentioned several times. I reiterate that it is important that the police continue to support the Act, but, as I mentioned earlier, it is important that police chiefs and police and crime commissioners decide how best to deploy their resources to manage and respond to crime in their areas and what their local priorities are.
I conclude by thanking all noble Lords for their part in the debate.
Myanmar
(5 years, 11 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Anelay of St Johns
To ask Her Majesty’s Government what assessment they have made of recent developments in Myanmar.
Baroness Anelay of St Johns (Con)
My Lords, 30 March 2016 ushered in a new era for Myanmar. The first elected civilian president in more than half a century took office. Aung San Suu Kyi assumed the key role in the new Administration as State Counsellor. Although barred from the presidency, she said she would rule by proxy. The handover completed the transition that began after the NLD won a landslide victory in the November 2015 elections. Today we have the opportunity to consider what the reality of that new era has been so far and what the future may now hold.
UK parliamentarians of all parties and none have demonstrated a strong commitment to Burma’s successful transition from the military domination it suffered before to democracy, which should bring peace, human rights and economic progress to all the peoples in Myanmar and resolve the devastating crisis in Rakhine. The large number of Peers participating in our short debate today is proof of that parliamentary commitment, and I very much look forward to their contributions.
The key test of any democracy is how it treats its most vulnerable and marginalised populations, such as the ethnic Rohingya and other minority populations. Burma’s Government and security forces should respect the human rights of all persons within its borders, and hold accountable those who fail to do so.
I visited Myanmar back in November 2016 in my capacity then as a Foreign Office Minister and the Prime Minister’s special representative on the Preventing Sexual Violence Initiative—roles now carried out so ably by the Minister. I felt a cautious optimism. I was impressed by the dignity of the peoples who had survived so long in such difficult conditions and by their willingness to give the Government time to put things right. The Government had been in office for only seven months at that stage and had made some progress, including signing the national ceasefire agreement, which was vital for areas outside Rakhine.
But was my optimism misplaced? I shall focus today on the crisis for the Rohingya, but we should also note—I know we will hear about it today—the long-standing conflict between the Kachin Independence Organisation and government troops which escalated severely last month, despite the existence of the ceasefire agreement. Thousands have been displaced in Kachin and Karen states, and there are fears that many women, children and elderly people are trapped near the border with China. Can the Minister update the Committee on this crisis and say whether humanitarian aid organisations have now been allowed by the Government to gain access?
I turn to the crisis facing the Rohingya community. They have suffered decades of persecution, have been denied citizenship and been marginalised. They have been described by the United Nations as one of the most persecuted minorities in the world. The Myanmar Government continue to implement laws and policies that discriminate against the Rohingya and are designed to drive them out of the country, including by using starvation, harassment and intimidation.
In the summer of 2016 there was an outbreak of violence in Rakhine. Border police were attacked. The response by the military was swift and brutal. In November that same year, I met the Defence Minister in Naypyidaw, the seat of government. I was told that the military did not consider that the Tatmadaw had committed any offences, and that if evidence were produced that offences had taken place, action would be taken by the Burmese Government. I was not convinced then, and I am not convinced now. In August 2017, the Arakan Rohingya Salvation Army carried out attacks which we rightly condemned. Twelve soldiers were killed. Far from exercising courageous restraint, the military’s reprisals were swift and even more brutal than ever. Thousands were killed. Approximately 1 million Rohingya fled to Bangladesh to escape the systematic rape, gang rape, torture and murder of men, women and children carried out by the military. The Burmese army appeared to be trying to destroy an ethnicity, not end an insurgency.
The Rakhine advisory commission reported last autumn. It was established by Daw Suu and chaired by Kofi Annan, the former UN Secretary-General. The report analyses the underlying issues such as the entrenched poverty of all those in Rakhine. What has the UK done to press for implementation of its recommendations? What is the Government’s assessment of the current situation in Rakhine? What steps can and should be taken to hold the military to account?
This year, the UN Secretary-General has for the first time included Burma’s military, the Tatmadaw, in his annual list of parties that have committed sexual violence in conflict. A report presented to the UN Security Council finds:
“The widespread threat and use of sexual violence was integral to their strategy, humiliating, terrorizing and collectively punishing the Rohingya community”.
Will the Minister update the Committee on the work being funded or carried out by the UK to tackle sexual violence, improve human rights, and hold the perpetrators to account?
The Government of Bangladesh have sheltered up to 1 million refugees and should be thanked for that. Recently, they signed a memorandum of understanding with Myanmar about the return of the Rohingya. What are we doing to promote the citizenship rights of the Rohingya and facilitate their safe, voluntary and dignified return to their villages to rebuild their homes and livelihoods?
The UN reported just two days ago that 93 refugees who have been in Thailand for decades have now been returned to their place of origin in south-east Myanmar with the support of the UNHCR and its partners. But what about the Rohingya refugees in Bangladesh? Is there any progress on their safe return to Rakhine?
Last month, there were three potentially significant developments. The UK co-led a visit of the United Nations Security Council to Burma and Bangladesh and issued a brief statement yesterday. The principle of the statement is clear, but it is how that principle should be put into practice that I wonder about. What steps does the UK now expect to be taken by the Security Council as a consequence of that visit? As one of the P5, we continue to play an important part. Also last month, the Foreign Secretary co-chaired in London a meeting on the Rohingya crisis with fellow Commonwealth Ministers, a welcome development. What conclusions were reached at that meeting? Thirdly, the EU imposed further restrictive measures on Burma, strengthening the EU’s arms embargo and targeting the Burmese army and border guard officials. How confident is the Minister—who is also the Sanctions Minister—that these will have the right effect?
Over many years, even before I came here, I watched the way in which Parliament and the UK generally saluted the work of Aung San Suu Kyi, before and when she took office. Her championship of human rights was exemplary, but I now feel somewhat confused, to put it mildly, by her apparent inaction in this crisis. I appreciate the challenge of walking the tightrope between international condemnation and Burmese public opinion in her attempts to bring an end to the generals’ power and bring democracy to Myanmar. But we now see the worst kind of abuse of human rights under her custodianship. As my noble friend the Minister said in this House six months ago, it is time,
“for Aung San Suu Kyi to use her moral authority to challenge directly herself the military ruthlessness and ethnic prejudice that lies behind the suffering”.—[Official Report, 11/10/17; col. 223.]
It is also time for the UK and the international community to do so much more to hold her to her words.
Baroness Kinnock of Holyhead (Lab)
My Lords, I warmly thank the noble Baroness, Lady Anelay, for securing this debate and giving us such wonderful evidence of what she understands to be the case. The United Nations and respected organisations such as Human Rights Watch have, as we know, described the actions of the Burmese army against the Rohingya people of Burma as nothing more than ethnic cleansing and crimes against humanity, and have said that acts of genocide have taken place. Since last August, the military has devastated Rohingya communities with murder, rape and burning, driving 700,000 people out of Burma, and those atrocities continue. As assistant Secretary-General Gilmour recently reported, there has been,
“terror and forced starvation … to drive the remaining Rohingya from their homes and into Bangladesh”.
Clearly, the Government of Bangladesh are to be commended for their response to the mass inflow of Rohingya refugees. They endure terrible conditions, currently worsened by the flooding and landslides of the monsoon, and have no means of mitigating the danger and agony. Naturally, I welcome the resources committed by the British Government, and urge that they be increased.
Meanwhile, the visit to Burma by UN Security Council envoys has been useless. It is clear that repatriation could be justified only if there was rapid, transformative change in the policy, practice and citizenship law of Burma. For the Rohingya, anything else would mean a return to hell. The testimonies of countless survivors and satellite images give appallingly conclusive evidence of the guilt of the Burmese military, but only international action will make it accountable. That must mean referral of Burma to the International Criminal Court, and I urge our Government to seek such action through the United Nations. The crimes against humanity of the Burmese military will continue as long as its arrogant sense of impunity is unchallenged, which is why it is vital to subject it to international law.
The UN has long described the Rohingya as the world’s most persecuted ethnic minority. They have been subject to unimaginable horrors; they are stateless, utterly powerless and almost voiceless. We who have voices must provide mercy, security and some hope of justice for these wretched people. Prosecuting their oppressors would be a start.
Baroness Cox (CB)
My Lords, I too warmly thank the noble Baroness for promoting this important debate. I share the deep concerns over the suffering of the Rohingya people, but I shall focus on northern Shan and Kachin states as these have received less media coverage and desperately needed humanitarian aid. Renewed offensives by the Burmese military are causing mass displacement of civilians throughout north-east Burma. There has been sporadic fighting over several years, but recently this has intensified with daily attacks, displacing thousands and killing hundreds in the past few weeks. On 1 May, the UN expressed grave concerns over increased fighting in Kachin state. Many civilians are trapped in conflict zones, without access to humanitarian aid. UN Special Rapporteur Yanghee Lee has made repeated calls for the safety of civilians and provision of aid, but the Burmese Government have blocked access to all humanitarian aid international organisations and the UN in ways similar to their treatment of the Rohingya.
The latest wave of displacement adds to the over 100,000 already displaced from Kachin and Shan states. Many remain trapped by the military in conflict areas, forced to seek shelter in nearby forests, without access to food, water or medical supplies. More than 3,000 are confined in dangerous conflict areas in Kachin state.
The suffering inflicted by military offensives is exacerbated by frequent violations of human rights and crimes against humanity, with reports of extrajudicial killings, sexual violence and torture. Interviews with internally displaced peoples, or IDPs, in Shan camps tell of horrific stories of civilians beaten and used as forced labour by the military, farms taken from villagers and children recruited by the military. The Shan Human Rights Foundation reports arbitrary arrests and Amnesty International found treatment of ethnic minorities in Shan and Kachin states similar to that of the Rohingya. There are also reports of extortion, of villages being levelled to make space for hydro projects along the rivers, and land-grabbing for the expansion of mining and hydro projects.
The numbers of IDPs has grown alarmingly. On 14 March, over 800 people were displaced in three towns in northern Shan state; on 17 March, 200 civilians were displaced from the Namtu township in Shan state; on 28 April, following a month of intensified military attacks, 4,000 more were displaced from Kachin state; on 6 May, another 500 civilians were displaced from Shan state, seeking refuge in monasteries and churches; on 8 May, the figure increased to over 6,000 civilians displaced from Kachin state and a further 600 were displaced from the Namtu township. Around 2,800 villagers in Kachin state are seeking refuge in churches in the capital or nearby villages. Displacement continues and the chance of return, as is recommended by current policy, is prevented by continuing offensives, destroyed homes and landmines restricting access to villages. There is also restriction of access for essential aid supplies and the blocking of escape routes for civilians by the destruction of bridges and road closures.
The Rohingya crisis has shifted the provision of aid from the eastern border to Rakhine state, where it is much needed, but this has caused severe malnutrition for many living in camps on the eastern border. Humanitarian and local agencies have been refused access to townships in Kachin state. For example, on 23 April, a Red Cross food convoy was reportedly blocked from entering Man Wai village, where over 100 civilians are trapped.
My small NGO, HART, with which I work and with which I have visited these people, works in partnership with the Shan Women’s Action Network, or SWAN, which provides healthcare and education in camps in Burma and for Shan civilians forced to live in Thailand. In 2017, it lost its DfID funding. Could the Minister tell me what the UK position was regarding the policy change which led to the cessation of funding for local aid organisations along the eastern border in favour of working with government-approved organisations? Will a reversal of that policy be considered to allow direct funding to NGOs such as SWAN, which carry out vital work for local people? Finally, what representations have the UK Government made to the Government of Burma to cease military offensives in Shan and Kachin states, to ensure the protection of civilians and to allow for urgent humanitarian assistance?
The Lord Bishop of St Albans
My Lords, I too thank the noble Baroness, Lady Anelay of St Johns, for her championing of this issue and for the way she has kept it in front of us. Her Majesty’s Government are to be applauded for their leadership on many aspects of this issue and in particular for their commitment to supporting refugees in Bangladesh as monsoon season approaches. However, as has already been pointed out, the scope of the crisis is enormous. The International Organization for Migration estimates that around 688,000 refugees have fled to Bangladesh since August last year. Cox’s Bazar is now, in effect, the world’s largest refugee camp. The implications of this for the host community and for refugees, in the light of the forthcoming monsoon season, are huge, even before one considers the root causes behind why these refugees have had to flee and the appalling treatment that many have suffered.
The statistics are so enormous that it is easy to forget that, behind each one, is the individual story of a person. One such person is Rajuma, a young mother who was beaten by a group of soldiers with their rifles, her baby snatched from her and thrown into a fire in front of her, before she was gang-raped. As well as losing her baby son, she has also lost her mother, her two sisters and her younger brother. There is no easy way to respond to that sort of suffering. She is going to need long-term, practical help but also support and counselling to rebuild her life.
As the Government support vital, urgent work to improve conditions for Rajuma and many other people with similar, equally appalling stories, I hope that more work will also be done to move towards long-term plans to secure the rights of all in Burma, particularly these minority groups. There have been reports, as we have heard, of continuing and escalating armed conflicts in Kachin, Shan and Kayin states. A ceasefire and access for humanitarian aid are urgently needed in these states, as well as in the west in Rakhine. Can Her Majesty’s Government assure us that they will make representations about the treatment of these minorities and other internally displaced people in these other states as well? Will they work with partners, through the United Nations, to ensure that the rights of these minorities are upheld and protected? What is being done to get the appropriate levels of aid and medical relief into the more remote parts of the country, where people are in a desperate state?
In the long run, peaceful political solutions to these conflicts must be found. It is critical that the international community unites to engage with the Myanmar Government, to encourage, cajole and help this political compromise and discussion—to find a solution that can help, rather than have simply more armed conflict. I hope that as well as formulating long-term plans for this tragic situation Her Majesty’s Government will also consider how reconciliation work, particularly with young people, can be put in place to help foster a mutual commitment to peace and the cessation of violence.
The Earl of Sandwich (CB)
My Lords, I congratulate the noble Baroness on this debate and I am reminded of many other occasions when she spoke with feeling and authority at the Dispatch Box. I have not visited Burma since it became Myanmar but I have strong memories of the resilience of the Burmese people, whether soldiers or civilians. My host was a Karen war hero in charge of a church programme and a very precarious old Toyota jeep. That visit as Christian Aid’s representative taught me how the Burmese, having endured so much hardship, can combine physical strength with great sensitivity.
Refugees in the Middle East have taken almost all of our attention. Until recently I was ignorant of the details of the Rohingya crisis, though it is one of the worst and most complex the world has known. Close to a million have fled to Bangladesh, most escaping the violence in northern Rakhine state on 25 August only last year. An attack on the border guard police on 9 October 2016 had led to military operations involving serious human rights violations. Among many tragic scenes, the most depressing and distressing have been those affecting young children. Children arriving in camps have described the killing and maiming of other children, their parents and other adults, and attacks on their homes, schools and hospitals. Because of rising numbers, conditions in some camps are now appalling.
A critical question for us and for our Government is ethnicity and the extent to which the Rohingya will be accepted as citizens of Myanmar. They have no status either as refugees or as citizens; they are displaced in a foreign state. They have a “right to return”, but that phrase has a hollow ring this week when we remember what has not happened for 70 years in Palestine. I am among those who still believe in Aung San Suu Kyi’s good faith, in spite of the obvious political deadlock she is in. We must welcome her commitment to implement the recommendations of the Advisory Commission on Rakhine State, namely to ensure basic rights for all that state’s communities. Army training and discipline, proper investigation of human rights and the co-operation of Bangladesh through a joint commission seem to be crucial, but inevitably none of this works unless there is a genuine will on all sides to implement those recommendations.
Can the Minister say how close aid donors have come to the UN’s target of $434 million for Myanmar? I know that UK aid has been essential, but can we afford more, knowing that the world has to cope with the needs of some 60 million other refugees and internally displaced people? Many MPs and human rights agencies have spoken out about the barbarity of gender-based violence and rape by the army. Our Parliament and media should be congratulated on making us aware of these atrocities. It was a disgrace that the IDC was unable to visit, but does the Minister think it right to reduce our embassy staff at this time?
I understand that access to northern Rakhine is strictly prohibited, as the noble Baroness, Lady Cox, said, for non-governmental organisations. It seems that even our DfID has been unable to make an impact. Could the Minister confirm this and explain why our Government are apparently unable to work even with British NGOs in an area of such acute need?
There has also been intense fighting in Kachin for several months between the Tatmadaw and the Kachin Independence Army. Civilians have been victims of airstrikes and many more are trapped in conflict in situations reminiscent of Syria and Sudan. An appeal was sent out last week by humanitarian agencies calling for immediate cessation of hostilities there and in northern Shan. This is another desperate situation. Does the Minister hold out hope for both a ceasefire and greater access to those in need?
Baroness Nye (Lab)
My Lords, I thank the noble Baroness, Lady Anelay, for securing this timely debate and for her continuing commitment. I declare an interest as a trustee of the Burma Campaign UK. As has been so graphically described in the speeches before mine, and as I am sure will follow in the speeches to come, the Burmese military is ethnically cleansing the Rohingya from Burma with impunity. It is the fastest refugee displacement since Rwanda.
Because the military has paid no price for its actions against the Rohingya, it is now turning its attention to military action against the ethnic Kachin. It has broken the ceasefire in Kayin state, while continuing its policies of starvation, harassment and intimidation to drive the remaining Rohingya from Burma. The extra aid DfID is providing to the displaced Rohingya is to be welcomed, as is the generosity of the British public and the role of the Bangladesh Government in providing shelter to the refugees.
What is happening in Bangladesh would be a strain on any country, let alone an emerging economy with some of the highest poverty levels in the world, but I hope the Minister will take this opportunity to say what representations he has made to the Bangladesh Government about the proposed relocation of the Rohingya refugees to the island of Bhasan Char in the Bay of Bengal. Along with colleagues from all sides of the House, we have written to the Foreign Secretary and the Bangladesh high commissioner, expressing concern that this planned settlement is more like an exceptionally unsafe and inaccessible prison camp.
While concern is being expressed for the refugees who have fled to Bangladesh, we must not forget the ethnic groups in IDP camps in Burma, where access by humanitarian groups is very limited and the media spotlight cannot reach, as described by the noble Baroness, Lady Cox. The treatment of the ethnic groups who remain in Burma is not conducive to the,
“voluntary, safe, dignified and sustainable return of refugees”,
according to the UN high commissioner, but I agree with the other calls that have been made for more action on an international stage to stop the Burmese army continuing on its path of ethnic cleansing. Surely that must be a referral to the International Criminal Court by the UN Security Council. A Minister speaking in a Westminster Hall debate this week said that,
“calling on the Security Council to refer Burma to the ICC will remain an option”.—[Official Report, Commons, 8/5/18; col. 260WH.]
I therefore ask the Minister if he will explain to the Grand Committee what is needed to get the Government to move from referral being “an option” to declaring publicly their support for such an action and beginning the process of building the needed consensus. Everyone is aware of the possible veto from Russia and China, but the UK as penholder should take the first step. There is precedent for Ministers supporting other draft Security Council resolutions that had even less chance of success.
We know that the Burmese military responds to pressure and public exposure on the international stage, hence the ban of the proposed visit of the International Development Committee, so why are the UK Government not supporting a UN-mandated global arms embargo? Economic measures have in the past affected the behaviour of the generals, so I hope the Minister will also explain why the Government rejected calls for targeted sanctions preventing British and European companies doing business with military-owned companies.
It is eight months since the latest crisis with the Rohingya began. In a month’s time, thousands of women, young and old, will start to give birth to children conceived from the sexual violence of the Burmese military. They will give birth under the most dreadful circumstances in the most appalling conditions, with the monsoon and cyclone season upon them. We cannot stand by and let Burma’s military and civilian Government go unpunished for the genocide of ethnic groups in Burma, because the consequences have very grave implications for the whole world.
Baroness Flather (CB)
My Lords, I will also start by saying how grateful I am to the noble Baroness, Lady Anelay, for giving us an opportunity to say the things which are in our hearts.
I went to Burma some years ago. My visit was arranged by the Burmese ambassador at the time, who had been here for some years. When I arrived in Yangon, I was met by a captain, so I thought, “Ah! I will be put under close scrutiny—that’s why they’ve sent a captain to receive me”. It was very interesting, because when we got to the hotel, he said, “Here is my telephone number and my office number. If you need any help, just call me, but I will only come when you need me”. I thought, “My goodness! This bodes well”. I have to say that I had a wonderful visit. What I want to share with your Lordships is my feeling about Aung San Suu Kyi.
Even at that time, many people in Burma felt that she had polarised opinions against Burma, because everybody adored Aung San Suu Kyi so they hated everyone else. That is not entirely true. However, I know that at that time there was no trade with Burma—it had all stopped—and no airlines were coming in except for Biman from Bangladesh. It was isolated. My view was that if we wanted them to change, we should start making contacts, but nobody wanted to do that because Aung San Suu Kyi was under house arrest and, “Oh, she was the most wonderful person of all”.
Your Lordships may have got the feeling that I am not totally enamoured of Aung San Suu Kyi, nor have I ever been. She thought she was going to do good, and I am sure she intended to, but she has no opportunity. There is no possibility of doing things that the generals do not want, no matter what kind of position they accord you. In 1995, she was offered the prime ministership, but she refused because she said that they would not give her the power. No, they will not give her the power. Why would they ever part with the slightest amount of power? This is what we have to remember. We can say, “Oh, how wonderful—democracy and all that!” but there is no democracy. “How wonderful—human rights!” but there will be no human rights. I am fully convinced that the generals are in power and will stay in power unless something cataclysmic happens, and Aung San Suu Kyi is not a cataclysm.
In addition, all the people who used to support Aung San Suu Kyi in the early days, when she won the first election, have got too old or have died, so there is a new lot of people supporting her. It appeared that there was a chink of light, but I do not think she is up to it, because you have to be very strong to stand up to the sort of pressure she is under. It is not her fault entirely, but she is not a strong person. A lot has been made of the fact that she was not allowed to go and see her dying husband and so on. That may be so, but she lived in great luxury, in a beautiful house, with lots of people looking after her. I met a lot of people there, but one of the boys I met was her houseboy, who said that she took one to two hours to get dressed in the morning before she met the people who had come to see her in her home. I also met Professor Taylor, who said that she applied to do a doctorate at SOAS. He said that he looked at everything she had done and written, and that she was not up to a doctorate. So she is not a brilliant lady with a brilliant past, and possibly she will not have a brilliant future.
Lord Houghton of Richmond (CB)
My Lords, I declare a personal interest in Myanmar. I have visited three times over the past three years, once as Chief of the Defence Staff and twice in an advisory capacity, assisting in efforts to bring about a resolution of Myanmar’s multiple internal conflicts through reconciliation.
On my visits, my status has permitted me exceptional access to Aung San Suu Kyi, to wider government, to the leadership of the Tatmadaw and to representatives of several of the armed ethnic opposition groups. My visits have left me with a varied set of impressions about the complexity, scale and diversity of the challenges that Myanmar faces. They have left me, on balance, with as much sympathy for those who face those challenges on the ground as for those who sit in often emotional judgment from afar.
I would never be an apologist for those who perpetrate atrocity, utilise sexual violence as an instrument of policy or proclaim impotence as a defence against inactivity. But nor can I unreservedly join the ranks of those—not today’s speakers—whose condemnations lack informed judgment and whose aspirations for action are simply not anchored in reality.
The place is a dreadful mess. The Government lack professional capacity; they are in power but not in control. The armed forces lack sophistication and enlightened leadership—an understatement. The army is internally fractured between an old guard who retain power and an emerging generation who cannot navigate a path to a desired position of civilian control and societal support. Society is riven with deep ethnic enmity and suspicion, united only by a populist hatred of the Rohingya, whose persecution is the one residual thing that keeps the army remotely popular.
Is the situation hopeless? Yes, if your aspiration is for instant remedy, for a civilian Government in control, for a country unified, for a secular state, for a depoliticised army that enjoys the widespread support of society and for a resettled Rohingya living in peaceful harmony. But the country is not without hope if the international community offers structured, long-term assistance. There are enough enlightened people on whom to build a better future; there is a society that wishes to be led to a better place; and there is an army that wants to rid itself of the burden of politics and unpopularity. I hope that government policy reflects this view. I fear it is not widely shared, but it is one that I hold.
Viscount Waverley (CB)
My Lords, I rise in the gap and for only a short while, for which I apologise, but there is one aspect of this subject that could usefully be underlined as it has not hitherto been referred to in detail—also particularly remembering my jaunts to Naypyidaw and onwards. Does the Minister agree that the benefits of trade are twofold, and are as applicable to Myanmar as elsewhere, particularly given our past association?
First, trade plays into the objective of a global Britain, with equal emphasis on being a peace broker. Secondly, there is the undeniable benefit that, when all else fails, it often falls to trade to be the catalyst for a better world by keeping channels open and impacting on the process referred to by the right reverend Prelate and the noble Baroness, Lady Flather, particularly in respect of those who share ideals with the Commonwealth and well-versed red lines.
Baroness Sheehan (LD)
My Lords, I add my thanks to those expressed to the noble Baroness, Lady Anelay, for introducing this debate on such an important issue. Four minutes is barely time to do justice to the grave injustices that have been meted out to the Rohingya people. However, it is important that details, gross as they are, are recorded in Hansard, just as they are being meticulously documented by those who will hold to account the perpetrators of these heinous crimes, because held to account they must be.
We must suppose that the premeditated and systematic nature of the horrific abuse was calculated to inspire abject terror, and that must strengthen our resolve comprehensively to censure those who had the power to speak out but did not. Does the Minister agree that not only must the generals and their henchmen face the courts, but the lady with moral authority and a holder of the Nobel Peace Prize must answer questions also? Ignorance is something that Aung San Suu Kyi cannot plead.
One of the most sinister moves by the Myanmar authorities is to pull down the shutters: those who have spoken out, however gently, have been punished by being denied access. Ms Yanghee Lee, special rapporteur on the situation of human rights in Myanmar for the Human Rights Council has reported:
“Despite my efforts to remain impartial, I am now declared unwelcome in Myanmar”.
Members of the House of Commons International Development Committee were denied visas to Myanmar this February. One reason given was that individual members of the committee had signed a letter calling for the senior general of the Myanmar army to be held accountable for military behaviour in Rakhine—good on them.
The repatriation process that has started causes great concern. As I understand it—maybe the Minister could confirm whether this is the case—it is being carried out against a backdrop of secrecy. Independent observers, including UN agencies, are still barred from witnessing the treatment of the returnees. What are they returning to? Satellite evidence shows that whole areas that were Rohingya homes have been razed to the ground and replaced with military bases. Continuing reports of brutal violence against minorities in Kachin, Shan, Kayin and other states show that we are not dealing with forces seeking to appease their detractors. Will the Minister state the Government's position on repatriation?
I shall end with a few words about Cox’s Bazar, where the pre-monsoon rains are already throwing up challenges, some unforeseen, such as the conflict of sharing terrain with elephants, but others that were foreseen. In the debate brought by the noble Baroness, Lady Greengross, last month on anti-microbial resistance, I voiced concerns conveyed to me by the Malaria Consortium, of which I am a trustee. The monsoon rains, coupled with the combination of poor sanitation and substandard housing, will provide perfect breeding conditions for malaria-transmitting mosquitoes. The native population of Cox’s Bazar is highly vulnerable to malaria because the people have not been exposed to the disease recently. To compound the problem, the refugees from Myanmar are coming from areas where drug-resistant malaria has been detected. I know that the Minister responding is not a DfID Minister but I hope he will take these comments back to the relevant Minister. DfID is well placed to take action as a world leader in the fight against malaria, so can the Minister reassure me that DfID is alert to the dangers, and is working effectively with the Bangladeshi authorities, who must be commended for their response to this most tragic of man-made crises?
Lord Collins of Highbury (Lab)
My Lords, I, too, thank the noble Baroness for initiating this debate and for her excellent contribution, which reminded us of the optimism and hope that the dawning of democracy brought to Myanmar. We should not lose that sense of optimism, despite the horrific conditions. Today’s debate has focused on the Rohingya people and we must not forget that they have suffered over decades—denied citizenship and marginalised.
As we have heard, many of the women who fled last August were victims of brutal sexual violence used by Burmese soldiers as a weapon of genocide. Like the noble Baroness, Lady Anelay, I would like to hear from the Minister about the Government’s action to respond to the specific needs of women as part of their general response, particularly in Myanmar and Bangladesh, including supporting survivors of gender-based violence and protecting women from further attacks and abuse.
As my noble friend Lady Kinnock said in her excellent contribution, the Government of Bangladesh have rightly been praised for their initial response to the refugees, despite its limitations. I therefore welcome the Government’s additional £70 million helping to fund programmes for the most vulnerable refugees. However, as the noble Earl, Lord Sandwich, said, we also need to ensure that others step up to the mark. Can the Minister tell us what steps the Government have taken to encourage other countries to meet the overall funding shortfall? Access to the camps for the UN and other agencies is being hampered by red tape. Will the Minister assure the Committee that his department is doing all it can to ensure that NGO staff are able to apply for the appropriate visas to plan and implement their work?
Despite the humanitarian response, it is clear that the long-term persecution faced by the Rohingya in Myanmar can be addressed only by a political solution. I support the UK’s efforts in raising the issue at the UN General Assembly and Security Council, which have helped galvanise the international community around the five-point plan, particularly the Annan commission’s recommendations. The Government have said in the past that they are watching closely to ensure that Aung San Suu Kyi’s words translate into swift action. I hope the Minister will tell us the Government’s assessment of the Government of Myanmar’s action in respect of the plan and the commission.
Why is there no specific DfID investment in northern Rakhine, despite the information that Rohingya villages still exist there? Will the Minister give us a more detailed explanation of the Government’s position and plans? I have received concerns from NGOs about the in-country response, particularly of the embassy in Myanmar.
Political leadership on the rights of the Rohingya and action against Burma for its gross violations of international law must go hand in hand. As we have heard, it is important that Britain takes the lead. In February this year, 100 parliamentarians wrote to the Foreign Secretary supporting a referral to the International Criminal Court. We saw the response of the Burmese Government to ban individual members of the International Development Committee from visiting Burma. I know that the Minister will say, as he has said before in the Chamber, that a UN Security Council resolution on referral will be vetoed by the Russians and China. How we build support for a referral is key to this. I think that arguing for it is the means to overcome such opposition.
The Minister of State, Foreign and Commonwealth Office (Lord Ahmad of Wimbledon) (Con)
My Lords, I join all noble Lords in thanking my noble friend Lady Anelay for securing this debate. She is a well-known advocate for freedom, equality and human rights around the world. It is my pleasure to respond to her today and to welcome her pragmatic and expert advice and insight into this important issue. I also thank all noble Lords for their contributions.
I share the opinion of many noble Lords about the onset of democracy in Burma. To reiterate the important points made by the noble and gallant Lord, Lord Houghton, and the noble Viscount, Lord Waverley, about the importance of trade, I remember, as a Minister for Transport at that time, that Britain extended an invitation very early on—I think I was the first Minister to visit to look at what opportunities for infrastructure development could be put forward to support the Government of the day. As several noble Lords have said, there has been great disappointment in the civilian Government, but we should not forget that they are much under of the influence and heavy hand of the military.
I will set out to answer most, if not all, noble Lords’ questions. I shall write to noble Lords about any that I am unable to answer in the limited time. Noble Lords will know that when violence broke out in Rakhine state in August 2017, it was the latest episode in the decades-long persecution suffered by the Rohingya community. We have been urging the Burmese civilian Government to take action since they took office two years ago. Yet, since August, thousands have been killed and many more remain unaccounted for. Anyone who has visited Cox’s Bazar has seen the human suffering. Around 700,000 people have fled. Sexual violence, particularly against women and children, has taken place. The right reverend Prelate the Bishop of St Albans recounted the very personal story of Rajuma. When he spoke of her child being thrown into the fire, that is not an exceptional story; it is, regrettably and tragically, the human suffering of the Rohingya community.
I assure noble Lords that the UK has played a leading role in the robust international response. In November we secured the first UN Security Council presidential statement on Burma in almost a decade. It urged the Burmese authorities to stop the violence, to hold those responsible to account, and to create the conditions necessary for the safe return of refugees. My right honourable friend the Foreign Secretary, other ministerial colleagues and I have kept international attention focused on the plight of the Rohingya community. Since making high-profile visits—including one by my right honourable friend the Foreign Secretary —we have maintained dialogue with international counterparts to continue to press for progress, most recently, as my noble friend Lady Anelay pointed out, at the Commonwealth summit and also at the G7 Foreign Ministers’ meeting in April.
The right reverend Prelate asked whether the UK will continue to work with partners at the UN; the short answer is yes. I was present at the debate in the Human Rights Council that was tabled by Burma and we have ensured that we have kept this issue right to the fore—including the situation that exists not just in Rakhine but in Kachin and Shan states, as the noble Baroness, Lady Cox, mentioned. I assure noble Lords that we will continue to ensure that the Human Rights Council continues to hold its intention and focus on these important areas.
The UK continues to be a generous contributor to the UN-led Joint Response Plan, and we recently announced additional funding of £70 million to support Rohingya refugees in Bangladesh. I join the noble Baroness, Lady Kinnock, among others, in paying tribute to the Bangladeshi Government. Bangladesh is a poor nation, yet it has opened up its borders as best it can to ensure that it provides the facilities. It is right that countries such as the UK and others provide the support that is necessary. I assure the noble Earl, Lord Sandwich, and the noble Lord, Lord Collins, that following the UK’s announcement of a further £70 million, we are lobbying other countries to make further contributions of humanitarian aid. I also assure noble Lords that we have not reduced our embassy staff. The actual issue is that the Burmese authorities themselves are refusing to authorise embassy travel to Rakhine, which is the big challenge.
My noble friend Lady Anelay raised the recent visit by the UN Security Council and follow-up action in that regard. Last night the UK secured a UN Security Council statement, reiterating the council’s calls for Burmese action in ensuring a safe, voluntary and dignified return for refugees, and also stressing the importance of accountability. The UN Security Council is due to convene on Monday and the UK will use that meeting to ensure that the council again sends a clear message about the need for progress in Burma in the coming weeks.
We see the sight of refugee tents stretching to the horizon, in the knowledge that the cyclone season is fast approaching, which the noble Baroness, Lady Sheehan, talked about. She mentioned the spread of malaria. In all our conversations with the Bangladeshi authorities, including with the Prime Minister— most recently, my right honourable friends the Foreign Secretary and the Secretary of State for International Development wrote to the Prime Minister in March—we have emphasised the importance of ensuring expert input into this. Again, that issue was raised at the Commonwealth summit, working with the charity Malaria No More for the eradication of malaria across all countries, not just Bangladesh, and we will continue to work in that respect.
The scale and nature of the human rights violations and abuses, including sexual violence, perpetrated against the Rohingya in Rakhine state in particular have horrified and appalled all right-thinking people. The UK believes that it amounts to ethnic cleansing. The issue of the International Criminal Court was raised by several noble Lords, including the noble Baroness, Lady Nye. We await the International Criminal Court’s ruling on whether it has jurisdiction over the forced displacement of Rohingya from Burma to Bangladesh. If proven, this would constitute a crime against humanity and we will support the court, should it judge that it has jurisdiction. Of course, I will keep noble Lords informed of this.
The perpetrators of human rights violations must be held to account. The Burmese authorities have yet to begin a credible domestic investigation. I assure noble Lords that in all bilateral communication, and indeed at the last Human Rights Council, I met Burmese Ministers directly. We continue to raise important issues about access, international supervision and holding to account the perpetrators of these crimes. There should be no doubt that international attention will not cease until a credible mechanism is in place for accountability. Preserving and documenting evidence is vital for effective accountability. That is why we are leading efforts to ensure this evidence is documented appropriately and that this is done in a way that does not further traumatise victims.
Following on from my noble friend’s role as the Prime Minister’s special representative on PSVI, I assure noble Lords that UK-funded training in March by the PSVI team of experts identified just how much capacity building still needs to be done. We will continue to lead on this, ideally with UN and donor support, and we are working closely with the UN in this respect to ensure that Bangladeshi evidence-gatherers are given the skills they need. We have also funded a practical guide, specific to Burma, to help NGOs and other documenters of conflict related to sexual violence, and this was published earlier this month.
The noble Baroness, Lady Nye, also talked about sanctions. I assure the noble Baroness that the Government have pushed successfully in the EU to impose new sanctions that will restrict the finances and freedom of movement of senior military commanders who were directly involved in the atrocities in Rakhine last year. With our EU partners we are drawing up a list of named individuals and we hope to make an announcement very soon. We have also moved to strengthen the EU arms embargo, which the noble Baroness referred to and which now prohibits the export of dual-use goods and equipment that could be used for monitoring communications.
Ultimately, as all noble Lords have expressed, we want to see the voluntary, safe and dignified return of the Rohingya community to Rakhine—a point well made by the noble Lord, Lord Collins. For this to happen, it requires, as noble Lords have said, independent monitoring, ideally by the UN High Commission for Refugees.
Questions were asked about direct representations made by Her Majesty’s Government to the Burmese State Counsellor. The Foreign Secretary pressed State Counsellor Aung San Suu Kyi when he met her in February. The sentiments expressed by the noble Baroness, Lady Flather, in this respect, particularly about the hopes that were held out, were perhaps shared by many when the civilian Government was first formed—and we have since seen the disappointment of and tragic consequences for the Rohingya community. While we welcome moves by both Burma and Bangladesh to agree a memorandum of understanding to manage repatriations, much remains to be done. Returns can happen only when conditions in Rakhine improve and safety can be guaranteed. We will continue to demand that all the concerns of the UN High Commission for Refugees are met, and that the recommendations of the report of the Advisory Commission on Rakhine State, which were raised, are also implemented.
I also assure noble Lords that the British Government’s support for transition from conflict to peace will continue, not just in Rakhine but, as has been pointed out by noble Lords, in other states—Kayin, Kachin and Shan. Indeed, I assure the noble Baroness, Lady Cox, and the noble Earl, Lord Sandwich, that the British ambassador visited Kachin state in January and met political and religious leaders. I will write to them with the details of that meeting.
In the short time that I have left, I assure noble Lords that we continue to press in our project work to ensure that humanitarian support—which was worth over £4 million in the last financial year—continues to all regions. Our project work particularly emphasises the importance of inclusion of all communities in Burma and of working in areas of the country affected by conflict, including those that my noble friend pointed out near the border with China. However, as my noble friend and other noble Lords have pointed out, it is important that we continue to press the Burmese authorities to give urgent access to allow much-needed aid to be delivered across Burma. We are also continuing to support grass-roots peace-building projects, providing access to the peace-building process. The noble Baroness, Lady Cox, and others asked specifically about lead NGOs. I will write about our policy in that respect. I assure the right reverend prelate that we will continue to support agencies on the ground.
I am running very short of time. I assure noble Lords that the Government—politically, diplomatically and in terms of humanitarian and development support—will continue to work. Ultimately, we hold on to the hope of building a bright future for all Burmese communities, and the return of the Rohingya community to their homes, but only in a safe and responsible manner.
Equality and Human Rights Commission: Disability Commissioner
(5 years, 11 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Shinkwin
To ask Her Majesty’s Government what assessment they have made of the case for a disability commissioner on the Equality and Human Rights Commission.
Lord Shinkwin (Con)
My Lords, I begin by thanking the Prime Minister for her kind words in answer to a question asked by Philip Davies MP in the other place at Prime Minister’s Questions on 7 February. She described me as a champion of disability rights, and it is as a long-standing campaigner for disability equality that I have tabled this Question for Short Debate, because I believe it is crucial that we assess, on an ongoing basis, progress made towards that elusive goal.
I say “elusive” because 2020 will mark a quarter of a century since the introduction of the Conservatives’ Disability Discrimination Act. The sad fact is that we, as disabled people, are nowhere near attaining equality. By that, I do not simply mean equality with non-disabled people; I mean equality with the other protected characteristic groups covered by equality legislation.
We are so far behind as disabled people, not because we necessarily lack the determination or ability to catch up but because we are still too often denied the equality of opportunity to contribute and to succeed. Unlike other groups, we need reasonable adjustments to be made for us to be able to enjoy equal access to goods, facilities and services, whether commercial or statutory. The goal of equality might be the same, but the nature and extent of the disadvantage that goes with disability are so different that while mainstreaming disability might sound laudable in theory, in practice it means that disability, as the heaviest stone, falls to the bottom of the inequality pond. A prerequisite to it not being left at the bottom is a sharp focus on disability issues—the sharp focus provided by the DDA; the Disability Rights Commission, or DRC; and, following the DRC’s amalgamation within the Equality and Human Rights Commission, or EHRC, the focus provided by a disability commissioner. But now we do not have a disability commissioner because the post has been abolished, even if the need for such a position and the sharp focus it was meant to bring to disability issues has not.
Noble Lords will know from my previous contributions on this matter that I was not made aware of the agreement between the commission chair and the then Minister for Women and Equalities to abolish the position of disability commissioner until after I had been misled by that Minister of the Crown to believe that I was being appointed to that position, for which I had applied and been interviewed. Now it transpires that I was not the only one not to have been informed of the position’s intended abolition. I thank the Prime Minister for telling Philip Davies that she had not been made aware of the decision either, and I also acknowledge that the then Minister for Disabled People, Penny Mordaunt, who is now Minister for Women and Equalities, in addition to being Secretary of State for International Development, was not made aware either.
I know there is a Civil Service saying that, “We are where we are”—the implication being that one needs to accept a new reality and move on. I make it clear that I accept that the Government cannot insist that the EHRC reinstates the position, even if they wanted to, because the commission is independent. However, if the EHRC is independent, there is something that the Government can do—and, I believe, should do—both to extricate themselves and to move us on from where we are, which I am sorry to say is not a good place. They can express regret that a former Minister should have gone behind my back, the backs of disabled people and the backs of the Prime Minister and her ministerial colleagues and allowed the commission to do away with disabled people’s last distinctive, powerful voice. She did not have to do it. Indeed, I recently learned that one of her predecessors in the coalition Government blocked such a move and ensured that the position of disability commissioner was not abolished when the commission previously proposed that it should be. So there was a clear precedent, which she chose to break with, and in the process undermined disabled people and severely compromised the Government.
As I told Cathy Newman on “Channel 4 News” in November last year, this is not about me. When your disability has taken you to hell and back, it tends to put things in perspective. So, while serving as the disability commissioner would have been an honour, which I would have done to the best of my ability, what happens to me does not matter. I am not important; the position was. What concerns me far more is the message given by the involvement of the then Minister for Women and Equalities in the position’s abolition and the Government’s continued failure to dissociate themselves from her involvement, which it is clear that she did not inform—never mind consult—her ministerial colleagues about. It worries me that the Government seem not to appreciate the need for them to express a view, because the adoption of such a position amounts to a message in itself—a message that may be inadvertent but none the less is one of contempt, as if because it is only disabled people, they do not need or deserve the truth.
Speaking as a disabled person, disabled people deserve better than that. We deserve some respect and a clear answer. So I ask my noble friend the Minister if the Government are glad that the disability commissioner position has been abolished. Are the Government proud that a former Minister was involved in the position’s abolition, as I demonstrated she was with reference to two contradictory emails that I mentioned in the Chamber last November? If the Government are not proud, why do they not say so?
The Prime Minister, the Secretary of State for Work and Pensions, and the Secretary of State for International Development should not have to take the rap for a decision that I accept none of them was involved in making. Yet the Government’s silence on this matter means that that is exactly what is happening, because it has all the telltale signs of a cover-up, not necessarily by Ministers but by the Whitehall machine.
Some argue that because the commission is independent, the Government therefore cannot state that they regret a decision taken by a Minister without compromising its independence. I do not follow the logic of that argument. Surely to state one’s opinion of an independent body’s actions underlines and reinforces that independence rather than compromises it. The commission cannot have it both ways: either it is independent or it is not.
The fact is that your Lordships’ House was never meant to know what happened to downgrade disability by the taxpayer-funded body supposedly responsible for promoting and protecting our rights. As its chair told the Women and Equalities Select Committee:
“Lord Shinkwin has obviously chosen to make public some of this detail, which otherwise would be confidential”.
What an admission. If I am wrong—I would be happy to stand corrected—there is an easy way to prove it. If the Government and the commission have nothing to hide, let them put all records of contact about me and the disability commissioner position, whether between the commission, the commission chair, the Government Equalities Office, the then Minister for Women and Equalities, her private office, her special advisers, the Department for Education or any other external organisations, in the Library. All I am asking for, as a disabled person, is transparency. Surely that is fundamental to equality.
In conclusion, of course I think there is a strong case for a disability commissioner, otherwise I would not have applied for the position. But now it has been abolished, the case that the Government need to answer is why disabled people should trust them when they cannot even bring themselves to express regret for the involvement of a former Minister in the abolition of disabled people’s last powerful voice. As a Conservative, I believe we could have a much better story to tell, but we need to close this sorry chapter before we start the next one. I hope very much that my noble friend can help us do that and I look forward to her response.
Baroness Prosser (Lab)
My Lords, I thank the noble Lord, Lord Shinkwin, for tabling this Question for Short debate. I hope it will provide an opportunity to alleviate some of the noble Lord’s concerns regarding the way the debate on disabilities and equality is held. I have been involved in the equalities debate for a long number of years. As the national secretary for women in the very male-dominated Transport and General Workers’ Union, I learned pretty early on that issues of importance to women should be mainstreamed and must not be sidelined into a women-only debate. The same principle applies to questions of disability and equality.
As we know, the Equality and Human Rights Commission was established by the Equality Act 2006, starting its work in October 2007. At that point I was proud to be appointed as deputy chair of the commission, a position that I held until December 2013. The Act brought under one umbrella the responsibility for dealing with all the protected characteristics while at the same time terminating the remits of the Equal Opportunities Commission, the Commission for Racial Equality and the Disability Rights Commission.
Because the DRC had not been in operation for very long and it was believed that the disability lobby had not had the opportunity to set out its stall, it was agreed that the new commission should have a separate statutory committee to highlight disability issues. This, by the way, did not mean that questions of disability and agreement for special campaigns were not discussed at the main board. They were, because they were and are the responsibility of the whole board. It was never the intention that disability questions should be dealt with as a separate issue. Apart from anything else, people with disabilities often have more than one protected characteristic; they may be from an ethnic minority background, for example, or they may be female or gay. How could the EHRC consider the rights of a disabled person absent any consideration of other characteristics?
In March 2017, the sunset clause contained in the 2006 Act came into play, and the disability committee was abolished. In recognition of the fact that all other issues under the commission’s remit were dealt with in the mainstream debate, the board of the commission took the view that disability would best be dealt with in the same way and therefore it would no longer seek a commissioner with that narrow remit. Since taking that decision, a disability advisory committee has been established. Our own noble Lord, Lord Low of Dalston, is a member, together with a number of people with wide experience of a variety of disability issues. Of course members of the main board of the EHRC have a duty and a responsibility to deal with all equality issues. No member can nor should consider themselves as representing one strand or one subject. If a candidate is not interested in questions of, among others, race, sexuality or religious discrimination then that person should not consider themselves suitable to be a commissioner.
A brief look at the work of the commission on disability issues will show that it is not an area which is neglected. Reports and campaigns on legal rights, housing, health and accessibility at football clubs are but some of the areas covered. I hope the noble Lord feels more confident that the work of the EHRC is both comprehensive and inclusive. He should know, and I am sure he does, that the commission papers are all available to the public and to Ministers—there is no secrecy.
Baroness Thomas of Winchester (LD)
My Lords, I welcome this debate and thank the noble Lord, Lord Shinkwin, for the opportunity to say something about the EHRC’s approach to the disability agenda, even though his own experience with it is not a good one. The question before us, which is a valid and really rather difficult one, is whether the disability agenda is best served by those who have oversight of all the protected characteristics that concern the EHRC or whether it should be particularly promoted by one disabled commissioner with a dedicated committee. If the latter, should all the protected characteristics be treated in the same way?
As for disability, the practice in the recent past was a statutory disability committee chaired by a disabled commissioner, but there is now just an advisory committee with all the commissioners having a duty to oversee the disability agenda. If one were to ask a body of disabled people which model they would choose, I am pretty sure they would go for the former. The reason is simple: as we have heard, so much of life, public and private, is denied to disabled people even now and there are still so many battles to be fought, be that video relay services so that deaf people can take part in everyday life or wheelchair users wanting to travel independently on public transport without feeling that they are entering a lottery. They would want the strongest voice possible to get things changed. After all, there are so many different disabilities, all with their own particular problems.
The question of whether disabilities should ever have been bundled up with the other eight protected characteristics is at the heart of what the House of Lords equality and disability committee tackled in its March 2016 report. I am very pleased to say that our chairman will speak more about that. The committee made the point that the other protected characteristics need equality of treatment to bring about equality of opportunity but different treatment is required for disabled people. Although several of our committee’s witnesses wanted to go back to the old days of a separate commission, which we just heard about from the noble Baroness, Lady Prosser, our committee concluded that it was better to make improvements to the working of the Equality Act than to take disability out of it. The commission is quite open about its reasons for disbanding the Disability Committee, saying that it was often on a different page from the commission as a whole. It said that there should in future be a “managing of expectations”, which will inform its relationship with the new Disability Advisory Committee. I am afraid that I find that phrase rather chilling. Does that mean, “Be realistic, don’t ask for the moon” or, “We are not going to promote this issue at this time because we are concentrating on another non-disability matter altogether”?
The House of Lords equality and disability committee called for the statutory Disability Committee to be re-established as a “decision-making body” with ring-fenced resources to increase its visibility and influence, although the report acknowledged that this would have to be in the context of the EHRC as a whole. Contrary to the view, the 2013 independent review of the Disability Committee found that it was not as effective as it might have been and not “hard-wired” into the commission. I am not quite sure what that means in this context. Perhaps someone will enlighten me.
I am not persuaded that disability can be treated on the same footing as the other protected characteristics, particularly in view of the longer lives that both disabled and ordinary people are living now, meaning that ordinary people need services that disabled people need now. We need somebody shouting the odds from the rooftops on our behalf. Perhaps this is for a disability tsar, not the commission. Disabled people want a body that will not rest until it has brought about real change—not a body that has all the right words but not enough action.
Baroness Deech (CB)
My Lords, to my mind this is a debate not about persons but about the strategy of the EHRC and its handling of disability issues. It is good to note that my noble friend Lord Low is on the Disability Advisory Committee, so it is not without expertise, but the clue to understanding whether the EHRC is living up to expectations lies in the diffusion of that expertise.
I had the privilege of chairing the 2016 report of the Select Committee on the Equality Act 2010 and Disability. Our first and lasting impression, gained from our own work and strongly from witnesses, was that disabled people regretted the demise of the Disability Discrimination Act 1995 and the Disability Rights Commission. That Act introduced the notion of reasonable adjustments and favourable treatment. It was then rolled into the EHRC by the Equality Act 2010 and disability became just one of nine protected characteristics.
However, practice shows that it is not enough to treat disabled people equally with everyone else. There are situations where, to get to a level playing field, disabled people need favourable treatment, a concept with which employers struggle. Witnesses to our committee thought that the inclusion of disability within the EHRC had diluted the focus on disability that had existed and had given rise to a sense of a loss of rights by disabled people. We concluded that it was impracticable to turn the clock back, but that loss of focus and expertise concentrating on disabled people is at the heart of this Question asked by the noble Lord, Lord Shinkwin. He is asking, in my view, whether the EHRC is handling disability issues with the emphasis that it should. Mainstreaming is an ideal that has not worked, so far.
I fear that the answer is no, special disability commissioner or not. I say that not only because of the findings of the Select Committee report, which highlighted failings in ensuring disability rights, but because of the strictures in the report on the UK in 2017 by the United Nations Committee on the Rights of Persons with Disabilities. That report called for the incorporation of the UN Convention on the Rights of Persons with Disabilities into English law and drew attention to shortcomings in bringing into force relevant provisions of the Equality Act, especially about transport and leasehold premises, the accessibility of buildings and sports stadia, the availability of legal aid and the provision of health and education for disabled children. The Government’s response has been resistance.
As for the EHRC, it is not clear that having a Disability Advisory Committee which interacts with the board is as good as the previous arrangements. The Select Committee report recommended that the committee should be re-established as a decision-making body with ring-fenced resources. That does not seem to be the case. I give the EHRC credit for funding legal assistance for litigation by disabled persons, providing legal advice and starting judicial reviews. The recommendation it made for a disability action plan to be produced with input from disabled persons seems to have been rejected, as has the need to produce guidance on carers’ rights under the Equality Act, although the EHRC has taken some carers’ cases. Disability issues are swallowed up in the general rights issues that the commission is pursuing.
Also very seriously, it was clear from evidence given to the Select Committee that it was much regretted that the Equality Advisory and Support Service was no longer in-house. Indeed, it has gone to G4S, a result that has been much criticised and which was subjected to judicial review by human rights groups. Disabled people called for face-to-face legal advice, dispute resolution and the restoration of the conciliation service. None of those things has happened. They wanted enforcement functions more than strategy formation. They want a champion, not to be just one of nine protected characteristic groups, and that call has not been answered. The Government should respond to the noble Lord, Lord Shinkwin, with plans for a more proactive EHRC with a dedicated disability area and a timeline for carrying out all the recommendations of the Select Committee’s report.
Lord Parekh (Lab)
My Lords, it is a great pleasure to participate in this debate, not only because it deals with an important question but because the noble Lord, Lord Shinkwin, was once upon a time a student of mine and this is the first time that I have had the opportunity to participate in a debate led by an ex-student.
I shall follow on from what the noble Baroness, Lady Deech, was saying, but I want to talk about not the individuals involved but the principle at stake, which is whether the Equality and Human Rights Commission treats disability fairly and equitably. In this country, we started with dedicated commissions—the Commission for Racial Equality, of which I was privileged to be deputy chair, the Equal Opportunities Commission, and so on. Those dedicated commissions did a lot of valuable work, but as protected characteristics, as they are called, began to multiply—we now have nine—it was not possible to have separate commissions for each of them and we embarked on the path of a single Equality and Human Rights Commission. This raises an important question: is a single commission capable of doing the work of nine commissions? If so, is it able to do so with equal impartiality, justice and fairness? This is why what we are debating today is of great interest.
In the history of our country we have played with three different models for constituting a human rights commission. One would be to have each of the commissioners selected on merit—not for representing a particular disadvantaged group but simply because of their public eminence. Secondly, they might be nominated because of their capacity to represent particular groups, such as women, the disabled, or whatever. Thirdly, they might be appointed for general purposes and then be asked to concentrate on a particular area, such as women, the disabled or race.
In recent years, the Equality and Human Rights Commission seems to have opted for the first model, which seeks in the name of mainstreaming to abolish the commissioner in charge of the disabled. That is a mistaken approach because, as noble Baroness, Lady Deech, pointed out, the question is how do you mainstream something? Is the only way to mainstream through abolishing the commissioner in charge of a particular issue? Representatives of different groups ensure that their concerns and disadvantages are noticed and, therefore, recognising differences is not a way of avoiding mainstreaming. Expecting every commissioner to be concerned with all groups equally is inherently implausible and impracticable. The commission needs representatives of the diverse groups in our society for a variety of reasons.
Such a commission reflects society at large and has a great symbolic value. It also ensures that relevant groups have their own spokesmen and they feel reassured. It ensures necessary sensitivity and expertise and gives the concerns of particular groups a clear focus. This is why the absence of women or ethnic minorities, for example, on the Equality and Human Rights Commission seems extremely odd. The same applies to the disabled, whose presence on the commission is as vital as the presence of women or anyone else. Others can certainly speak for them—as, obviously, anyone could speak about race—but can they speak with the same authority, authenticity and intuitive grasp of the issues involved? They cannot. A commission in charge of human rights ought to include a diversity of groups and, therefore, a diversity of commissioners.
Baroness Flather (CB)
My Lords, I thank the noble Lord, Lord Shinkwin, for introducing the debate.
I have no disability, as far as I know, but I was married to someone who was very disabled. He was diagnosed in 1983 with MS and died last year at the age of 80. We were together with his disability for 34 years. I therefore learned a great deal about disability because you cannot avoid it. He was lucky to live to 80 because I am told that many people with MS do not live that long. I think he did so because he kept working and, as has been said, it is important to be useful and doing something. That is what he used to say: “I feel useful. I am doing something”. He sat as a part-time judge, mainly in Reading, and he worked until retirement age. The court in Reading then asked him to stay on for two more years and he was proud of that. It is a great comfort to someone who has to struggle most of the time to do the work they are doing. I am happy to say that his brain never deteriorated. On the day he died, he was reading a book I had given him for his birthday: a book of poems by Rupert Brooke. Very important factors were that we could talk to each other and have something to share.
I put it to the Committee that disabled people are not treated well, which is very sad. When you go out, a lot of restaurants and shops are very pleased to help you as much as they can, but not everyone is. In many places there is no way for a disabled person to get in. It might seem that that does not matter, but it is the law that there should be some way for them to get in. If you write to the company that owns the business, you will not hear from them. Those things are very important because, if you are disabled, going out to do something is a big event. You cannot just say, “I’m going out for a drink” or “I’m going out for dinner”. It is not like that. Everything must be planned down to the very last detail, including transport.
I think we do need a commissioner. To some extent, I agree with the noble Lord, Lord Parekh, that it should be a representative person. It is not, in my opinion, necessary for a race commissioner to be of a certain race, because there are so many races. But a disability commissioner should be a person with a disability.
Disability is so varied, and no two disabled people have the same issues or problems. A lot of people do not realise that. They think that if you are in a wheelchair, that is your disability. But no, you may be very stupid and unable to work at all or you may be very bright and work all the time: you cannot tell unless you talk to the person, get to know them and find out what is wrong with them. Usually, people do not even make the attempt to find out what a person can offer to the world.
We all know “Does He Take Sugar?”, and we have all experienced that. Even later in my husband’s life, people would ask me whether he needed a drink. I said, “Ask him, I don’t know”, or I would ask him. You have to constantly try to guard against the mistreatment of disabled people.
There has to be someone with proper responsibility for disability because it is complex and varied. Unless somebody really knows about it, they cannot do anything to help. I have learned a lot this afternoon. Everyone who has spoken has taught me something. I thank the noble Lord, Lord Shinkwin, and the noble Baroness, Lady Prosser—it is good to know what is going on. When I first joined the Commission for Racial Equality, it had no connection at all with the women’s commission. I suggested that we must at least meet that commission. It was daft that we were all dealing with equality issues but did not know each other. I was very moved by what was said by the noble Baroness, Lady Thomas, and I thank her for that.
My time has finished. I thank also my noble friend Lady Deech, who taught me something. I am not entirely in agreement with what the noble Lord, Lord Parekh, said, but I thank him.
Lord Addington (LD)
My Lords, this is an interesting debate and, as many people have already stated, it comes down to this question: is disability something that easily fits with the rest of the commission? Personally, I think it should be there but that it needs to be treated slightly differently.
I and my noble friend Lady Thomas are both disabled people under every term of the Act, but our problems in day-to-day life could not be more different. As the noble Baroness, Lady Flather, said, if you have a disability—in my case, dyslexia—you often have to plan to do the normal differently. I am in a total mess if the voice-operated system on my computer breaks down. I cannot function as a normal Member of this House because I do not have access to email. It does not happen very often, but it does happen. Suddenly everything changes.
The perceptions of disabilities always exist in certain contexts. For example: “everyone in a wheelchair is only affected by transport”. That is something I went through many a time on many a Bill. “Dyslexia”, my own disability, “affects you only in the education system”. Both perceptions are patently absurd under any examination.
I recently took part, in the company of Barry Sheerman MP, in a commission on the neuro-diverse community and recruitment. We discovered—I throw this in merely to explain the great diversity—that the neuro-diverse community has tremendous difficulty with big-firm recruitment. It uses a series of online tests that we are bad at. I suspect that nobody else in this Room knew that, although you should have read our commission’s report. The difference is there and although all the other sectors here will have a great degree of difference, it is greater still. Many of the disabilities in the two groups which are to be discussed in the next debate have a great diversity of influence.
I have given the Minister warning of this question, although not much because I probably sent it to the wrong email account. I ask her: is there any evidence that the new approach is working better? I ask because that approach is not one that is reassuring to the huge and diverse disability communities—not “community”. We need to know that there is something working better and that information is getting out there. That is the important bit. Unless the Government can give us that assurance, we are going to have problems because we do not know what is happening.
Also, if your Lordships are looking at this huge, diverse and multifaceted group of things, yes, every disabled person happens to belong to at least one of the other groups in the commission but they will have little turns and changes in emphasis as things are gone through. Everything will be that little bit more complicated and, as my noble friend already said, we need to take some positive action to adopt this. Most bits of that action are actually much easier than people think, certainly with modern technology, but it still has to be taken. Somebody still has to be told that it is their duty to take it and, most of the time, it is my experience that people have to be shown that they can deal with the problem fairly easily.
In my professional life—I have to declare an interest here as chairman of Microlink, which deals with disability adaptation—often merely the structural changes in how something is paid for make life easier. For instance, it is often cheaper to do it without referring to somebody else’s budget and putting a central core down, but that is for another day. We need that reassurance that the information is getting through and that there is a central point, which is going down. If we do not have this, we will come back to this subject. We need the reassurance that it works, so is it being tested and, if so, how? What are the results? Make those public and we can move on.
Baroness Gale (Lab)
My Lords, I first thank the noble Lord, Lord Shinkwin, for bringing this debate before us today. We know that he has a great record of campaigning for the rights of people with disabilities and he is well respected for the views he holds and the passion he holds them in, as we have seen today.
The UK has, through various pieces of legislation, always striven to promote equality in the workplace. Over the years, there have been different statutory bodies that deal with specific aspects of discrimination. It was a Labour Government who set up the Equal Opportunities Commission; its first chair was Baroness Lockwood, who has only recently retired from your Lordships’ House. This body was established under the Sex Discrimination Act 1975 and had statutory powers to help enforce Acts such as the Equal Pay Act and other gender equality legislation that existed in Britain at that time.
The Equal Opportunities Commission was established to tackle issues of sex discrimination. Then we had the Commission for Racial Equality, which was established in 1976 to address racial discrimination and promote racial equality. Then we had the Disability Rights Commission, again established by a Labour Government in 1999, which obviously focused on issues relating to disability discrimination. As my noble friend Lady Prosser pointed out, these commissions were merged into a new body, the Equality and Human Rights Commission, in 2007. In addition to taking on the responsibilities of the three existing commissions, they acquired new responsibilities to provide the same level of protection for all minority groups. The primary aim was and is to promote and protect everyone’s right to equal opportunities in the workplace, as laid down in the Equality Act 2010.
The legislation on equality and human rights has changed over the years and I believe it has improved: as we learn more about how many forms of discrimination there can be, Parliament will, we hope, bring forward legislation to deal with it. With all the legislation we have, and the protected characteristics, can a case be made for a separate disability commissioner? I am not so sure, since there are nine protected characteristics under the 2010 Act. There could be calls for there to be a separate commissioner for each of those, not just for disability. I know that when the legislation was brought in to set up the Equality and Human Rights Commission to bring everything together in one umbrella body, I was concerned about what would happen to the voice of women, for example. Other groups were very concerned about what would happen to their voice: would they all be lost in this bigger organisation?
I looked at the briefing that the EHRC sent out for this debate and it says that it believes its efforts should be embedded in all its work. Its strategic plan sets out the key issues to address all areas of life. It has a disabilities advisory committee with people with expertise in this field, and most people who sit on the committee have disabilities. This committee keeps strong links with the board of commissioners to keep informed of their activities and to input them as appropriate. The board maintains oversight of the work of this committee and is in regular contact with it. The Equality and Human Rights Commission believes that the changes it has made were designed to strengthen, rather than weaken, its approach to advancing the rights of people with disabilities. It has made a good case for the work it does on behalf of people with disabilities and it believes that that is the best way forward.
We can always improve on all levels of equality and discrimination and we are all looking at ways to make things better for people, to treat people equally and to ask what legislation we need to put in place to make sure that happens. There is still much work to be done to ensure that people with disabilities are treated with respect and given the support they need. I believe that our legislation can provide that, but we should look at other ways as well, if they are needed, as the noble Lord, Lord Shinkwin, strongly believes is the case. I look forward to what the Minister has to say on this.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I start by thanking my noble friend for securing this debate and all noble Lords who have made such interesting points on the subject. I echo the words of the Prime Minister in February about my noble friend and the role he has played in this area and I am sure will continue to play. Before I move on to deal with the issue of an equality and human rights disability commissioner and the particular points made, I want to take a moment to reflect on the Government’s position on disability.
The Government are absolutely committed to improving the lives of people with disabilities and making the UK a country where everyone can achieve their full potential. The Government take action, including through legislation where necessary, to address disability discrimination. For example, we recently announced our intention to commence Section 36 of the Equality Act 2010, and our manifesto commits to change the Act to better protect people with fluctuating mental health conditions from discrimination. We provide support to people with disabilities and related conditions to help them live fulfilling lives and move towards—and, where possible, into—employment. We have invested over £130 million to improve work and health outcomes for people with disabilities and long-term health conditions, and the long-term unemployed. We have also provided an additional £19.3 million for the Jobcentre Plus Flexible Support Fund to help claimants with limited capability for work with extra costs that can be involved in moving closer to the labour market and into work.
To further improve our ability to spot and respond to discriminatory practice, the Equality Advisory and Support Service—the equality and human rights helpline—refers cases which may have specific strategic significance to the EHRC for possible enforcement action. Disability inquiries constitute nearly 70% of the service’s work, so it is acutely conscious of and sensitive to disability issues. The service has strong links to the EHRC, which sits on its management board. To address the concerns of the noble Baroness, Lady Deech, the two organisations have a memorandum of understanding and a good working relationship. I know that the EASS would very much welcome the noble Baroness—or, for that matter, any noble Lords who are interested—to visit its site near Rotherham to see the approach it takes to deal with its many callers.
The EHRC has a crucial monitoring and enforcement role for the Equality Act 2010. It has enforcement powers to compel compliance with the Act’s provisions, including the disability discrimination provisions and specific accessibility provisions, and to challenge organisations where required. If the EHRC suspects an employer or service provider of committing a breach of the discrimination provisions, it can conduct an investigation and take action to ensure that the employer avoids a continuation or repetition of that breach.
The EHRC has always been conscious of the need to prioritise disabled people’s interests, but its arrangements for doing this have changed over time, as noble Lords have pointed out. The 2006 Act provided for a disability committee. I stress that this was seen as a temporary arrangement, intended to reflect the need to integrate the particular requirements of the Disability Discrimination Act into the EHRC’s work. The then Government’s White Paper outlining the EHRC said:
“In line with the … Board’s general power to establish Committees to assist with specific functions, there will be a provision in the CEHR’s legislation for the establishment of a disability committee for a period … This will be especially important in its first years of operation”.
This committee had delegated powers within the EHRC relating to disability, but it did not have any additional powers: it could not do anything that the commission itself could not do.
The Act required an independent review of the activities of the committee after five years. This was partly to review how well disability issues had been embedded within the commission, and partly to reduce the Government’s role in dictating the commission’s governance structures, which would strengthen its independence as a national human rights institution. This independent review was duly carried out, and reported in 2013. It is still available on the EHRC’s website, and noble Lords may find it helpful to read it if they are not already familiar with it. The review recommended that the statutory committee come to an end on or after March 2017, and the then Secretary of State, who was under a duty to dissolve the committee,
“as soon as reasonably practicable”,
after receiving such a recommendation, duly did so, with effect from 31 March 2017. This gave the EHRC adequate time to make new arrangements.
The noble Baroness, Lady Gale, has already given a good account of this but by spring 2017, the EHRC was already looking to change its disability arrangements to those which better reflected its independence. It was setting up a Disability Advisory Committee to replace the statutory committee. The purpose of this committee was to bring in disability expertise to inform and advise the commission’s decision-making across all its work. The board maintains oversight of the committee through receipt of the minutes of its meetings and advance sight of committee meeting agendas. It may invite reports from the committee on particular issues and request the attendance of committee members to observe or participate in discussions at board meetings where appropriate. Similar arrangements are in place for the statutory Scotland and Wales committees, ensuring that the expertise of the DAC, as we call it, can be applied across the full range of the commission’s activities. Individual committee members may also be invited by the commission to play a specific role in, or advise on, areas of work where their personal skills, expertise or networks are of particular value to a project.
The noble Baroness, Lady Thomas of Winchester, asked whether disability could be treated in the same way as other protected characteristics. The noble Baroness, Lady Deech, spoke very much to the point when she noted that the Equality Act provides particular rights and protections for disabled people, including more favourable treatment in certain circumstances. It seems to me that the EHRC recognises this through its disability advisory committee, which is not replicated in its structure for other protected characteristics.
It was as part of that set of changes that the EHRC decided last year not to continue with the term “disability commissioner”. This was not a statutory post but simply an EHRC-created role: a set of responsibilities connected to the former disability committee that the commission decided to change as part of its overhaul of its disability arrangements, which indeed meshed in with a wider restructuring of the commission as a whole.
My noble friend has set out today, with strong feeling and in some detail, the problems and frustrations that he has experienced in seeking an appropriate role for himself as the EHRC’s disability commissioner. I am aware of his view that the real reason the disability commissioner role ended on 31 March last year, along with the statutory committee, was that the EHRC did not want him to occupy that role. I hope my noble friend and other noble Lords who have contributed to this debate will accept that I was not involved in any of the events that he has mentioned, so I am not in a position to debate the details of those events and I think he recognises that. I can certainly say that the Government have taken his concerns very seriously and he has had opportunities to discuss them with a range of Ministers and advisers across a number of departments, including Downing Street. I stress that the Government deeply regret that my noble friend was not able to resolve his differences with the EHRC about his role and responsibilities, and that as a result he is no longer an EHRC commissioner and cannot lend his wealth of personal passion and experience to the EHRC board.
In answer to the question of why we took away my noble friend’s disability commissioner role, I understand that he was appointed as a commissioner, not specifically as a disability commissioner. Any decision to give EHRC commissioners specific roles and responsibilities is a direct matter for the EHRC. My noble friend also makes the point that HMG should express regret about the conduct of a former Minister, and there was a precedent for keeping the disability commissioner. I believe my noble friend is referring to the coalition Government’s decision to abolish the statutory disability committee after three years rather than sooner. The relevant order related to the committee; it had no direct bearing on the disability commissioner, which was and remains an EHRC role, not in the gift of the Government.
Baroness Williams of Trafford
I cannot allow my noble friend to intervene because I am right on the wire.
My noble friend talked about freedom of information in this regard. The decision to abolish the role was not taken by Ministers, and the redacted material that my noble friend refers to does not evidence that the Minister took this decision.
I am completely running out of time so I shall address just one more point, made by the noble Lord, Lord Addington. I assure him that the new EHRC arrangements work better for disabled people than the old ones. That is a really important point. I refer him to the remarks made by the noble Baronesses, Lady Prosser and Lady Gale, which are very helpful. The EHRC itself has noted that while its previous approach provided some focus on disability issues, it was found to have the effect of treating work on disability separately from other work programmes. It also led to work on disability being seen as the responsibility of specific individuals in the commission rather than the collective responsibility of the board and the organisation as a whole. It is believed that that led to some miscommunication as well as missed opportunities.
I am now over time. I thank all noble Lords for their contributions, and I will catch up in writing on any points I have missed.
Health Inequality: Autism and Learning Disabilities
(5 years, 11 months ago)
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Lord Touhig
To ask Her Majesty’s Government what steps they are taking to eradicate health inequalities for autistic people and people with learning disabilities.
Lord Touhig (Lab)
My Lords, more than 10 years ago, Mencap launched a report entitled Death by Indifference. It was part of a campaign made necessary by the ongoing poor treatment of people with learning difficulties in the health service. The report highlighted the serious consequences of poor healthcare through the tragic stories of six people: Emma, Mark, Martin, Ted, Tom and Warren. Mencap wanted the world to know that their deaths were senseless and could have been avoided.
Just last week, the Learning Disabilities Mortality Review Programme report, commissioned by NHS England, was published. It again highlighted the deeply concerning figures on the life expectancy of people with learning disabilities. It showed that women with a learning disability are dying 29 years before women in the general population, and for men it is 23 years. This is truly shocking and demands urgent action. This and previous research have shown that people with a learning disability are four times more likely to die from causes that were amenable to good-quality healthcare.
A YouGov survey of 500 healthcare professionals last year, commissioned by Mencap, found that almost a quarter had never attended any training specifically on learning disability, that two-thirds wanted more learning disability training, and that more than half thought that more on-the-job learning disability training would enable them to provide better support to people with learning disabilities. Almost two-thirds said a lack of practical resources for themselves and their colleagues might also be contributing to the problem. Most concerning was that more than a quarter thought that negative attitudes towards people with a learning disability might be a contributing factor in avoidable deaths.
On that point of negative attitudes towards people with disabilities, I highlight the case of Ann Grant. She says:
“I have been to hospital lots of times and had good and bad experiences … I had a good experience of going to hospital when having an operation on my knee. The learning disability nurse helped by giving me some easy-to-read information about what would happen. The doctor explained things in a way I could understand and the nurses looked after me. This was a good experience because all the staff communicated well and took the time to help me. But in 2016, I had to go to accident and emergency, and the receptionist did not understand my needs. I kept having to repeat myself which made me feel very anxious. I asked if I could go and wait in a quiet space but there wasn’t anywhere to go. They told me to wait outside if I wanted to have space. The doctors were not very good and gave me information which was different to what the nurses had told me. They changed my medication and did not clearly explain what I needed to do. It was very difficult to understand the words they used, especially the jargon. If they would just take some time to explain things better, I would know what to do”.
That is not an untypical case. Mencap recently launched the Treat me well campaign, which makes six suggestions. I have given the Minister a copy and I hope he will give the Government’s view when he responds.
I move on to the issue of eradicating health inequalities for people with autism. Autism, as we know, is not a mental health condition. It is perfectly possible to have autism and good mental health but more than 70% of autistic children develop mental health problems at some point in their lives. Problems such as anxiety and depression can be key drivers of the stark health inequality that autistic people face.
In its report, Personal Tragedies, Public Crisis, the autism charity, Autistica, highlights research from Sweden that suggests that suicide is a leading cause of premature mortality in autistic people in that country. It calls for action in the UK. These findings deserve close attention to ensure that autistic people are not subject to unacceptable health inequality.
In 2016, NHS England published The Five Year Forward View for Mental Health, which outlines how it plans to improve mental health services in England. It includes a number of proposals for new care pathways to help people access the right support. Importantly, it proposes a care pathway for autism. Work on designing the pathway is due to start in 2018, but we do not yet have any details of what it will include.
The National Autistic Society, of which I and the noble Baroness, Lady Browning, are vice-presidents, believes that the care pathway must cover the age range of children, young people and adults on the autism spectrum. It should include timely access to autism diagnosis and autism training for all mental health staff, and make reasonable adjustments to mental health treatments. It should also identify what works and share best practice. It needs to account for the fact that mental health needs may present differently in autistic people. It should be developed in partnership and co-operation with autistic people, their families and organisations that support people with autism. Can the Minister confirm that the autism care pathway will be developed? Will it cover the age ranges that I have mentioned? Will it cover diagnosis, access to tailored mental health support and autism training—three key points?
More needs to be done to improve GP recording of autism. The National Autistic Society has called on the Government and NHS England to improve the recording of autism in GP records, which was also reflected in the Government’s Think Autism adult strategy. This will have two key benefits. GPs will be better able to make reasonable adjustments for autistic people and be better equipped to support their autistic patients. Secondly, anonymised data from GP records will give a picture of the health—including mental health—needs of autistic people. This will be crucial in addressing health inequalities and help to make sure that the right support is put in place at the right time. Similar initiatives have been used to support people with a learning disability, asthma and diabetes.
NICE has recommended that this be put in place by creating an indicator in the Quality and Outcomes Framework. I hope the Government and NHS England will accept this. The Minister may have something to say about this when he responds.
I have one final point. I am not alone in encountering countless stories of problems getting a diagnosis for anyone with autism. People wait years for a diagnosis. It is a disgrace. Putting a stop to such delays should be a major priority of all of us in Parliament and government: 61% of people who responded to a National Autistic Society survey said that they felt relieved to get a diagnosis and 58% said that it led to them getting new or more support. That is important. It adds to the quality of their life. Will the Minister include autism diagnosis waiting times in the CCG improvement and assurance framework? It would be a very good step forward.
Our fellow citizens living with autism and learning disabilities face challenges to their lives that most of us in this Room never encounter, but they are truly amazing people. All they ask is to be treated as equals and to be given the same chances and opportunities that you and I take for granted and a chance of a full and happy life. Surely they deserve the care of a first-class NHS service. That is not too much to ask, is it?
Baroness Chisholm of Owlpen (Con)
My Lords, I thank the noble Lord, Lord Touhig, for initiating this debate. I shall speak on the importance of early diagnosis of children who are showing signs of HFA and Asperger’s syndrome. It is still hard to get a diagnosis, partly as there is no fixed set of behaviours common to all, but there are clear signs that healthcare professionals should be trained about when faced with a toddler or older child. There is also the problem of the invisibility of autism in the healthcare system, so it is vital for professionals to trust parental instincts and listen to their concerns to ensure that every individual with autism receives the correct care and support throughout their life.
It can make a difference if the condition is diagnosed early. Though frightening and bewildering, it is essential for parents and children to be able to move forward. With a diagnosis, they can understand why they are like they are. It can prevent distress as the child develops and can stop further physical illness. Many high-functioning children with autism are not diagnosed until they enter school and start struggling socially. By 24 months an autism diagnosis tends to become stable, but from 18 months onwards an intervention programme can be highly effective in improving IQ, language ability and social interaction. Research has shown that children are waiting more than three and a half years for an autism diagnosis. Parents who are involved with early diagnosis and treatment have found they are better equipped to give specific support at varying stages of the child’s development.
I welcome the fact that data collection within the NHS starts in April next year, but no decision has been made on data collection within GPs’ surgeries. A flag against a patient’s file could assist the GP and the person with autism, particularly those who have no outward physical signs. The noble Lord, Lord Touhig, mentioned the anxiety that this can cause. Decision-makers cannot plan services locally unless they know how many people need to use them. Without accurate information, autistic people can be left without the right support being available. Anonymised data from GP records would provide decision-makers with the data they need to plan effectively.
Around 70% of children on the autistic spectrum go to mainstream schools. Before a diagnosis is given, these children are often marked as disruptive. I welcome the Government’s strategy that, from September, every new teacher will have autistic training within their curriculum. What training is available for classroom assistants? Some of the most successful people in the country have an autism diagnosis, but we need to ensure that the collection of social and health data relating to autism becomes more co-ordinated and systematic; that local authorities’ and GPs’ information systems allow the collection of data from toddler-age upwards; and that provision of school nurses and health visitors who can identify those with autism is built into tendering arrangements for health service agreements with schools and colleges. If as a society we can follow through on the above, I hope that those with autism will feel that they have not been forgotten, do not have to struggle for their identity within their community and can reach their potential, and that those who care for them feel that they can get the support they require.
Baroness Scott of Needham Market (LD)
I too thank the noble Lord, Lord Touhig, for tabling today’s debate and pay tribute to him and other noble Lords around this House who champion the cause of people with learning disabilities and learning difficulties and those on the autistic spectrum. As we have heard, that group includes some of the most vulnerable people in our society, for whom our advocacy and that of others is essential in ensuring their basic safety, that their needs are met and that their quality of life is the very best it can be.
I wish to focus my brief remarks on this question of advocacy, and to do so from the perspective not of someone with clinical or personal experience, but as the patron of a Suffolk charity, Ace Anglia, which does wonderful work in this field. In this world of care pathways, detailed measurements and performance indicators, there is a danger of creating care by algorithm, which loses sight of the individual. I heard from a specialist nurse about the difficulties of defining learning difficulty and learning disability. The result of that nuance is that you can end up with your name not on the learning disability register, so you do not get called for a health check, and then the danger of undiagnosed health conditions can increase.
A learning disability adviser to the NHS told me that, as someone with a mild learning disability himself, he was convinced of the need for more people like him in paid NHS roles because, “They know how things should be like”. That is why it is crucial to have high-quality local advocates, such as Ace Anglia, which work with individuals on a one-to-one basis to improve their lives then, crucially, turn that experience into valuable learning, which can then be used to help others. I have been told by a number of people in health and social care in Suffolk that the work of Ace has been a real catalyst for cultural change and has created what they have described as “real-world understanding”.
Ace holds regular get-togethers around the county for its users, which are used to share experiences of services such as the NHS or public transport. It provides good qualitative evidence to local service providers. The organisation has become expert in facilitating that sort of event so that users can feel genuinely empowered in what can be a hostile system. Ace has been commissioned by its local clinical commissioning group to produce 20 easy-read resources to support people with learning disabilities in navigating their way through primary care services. These will give people more knowledge and control over their health and allow for better communications. So much depends on having a local group as effective as Ace and on the personal relationships that they can build with the key people locally in the NHS, or social services. Could the Minister reflect on how these local support networks can be helped to thrive right around the country?
Lord Crisp (CB)
My Lords, I too congratulate the noble Lord on securing this debate, on what he said and on the very powerful points that he made, as well as his final call for equality and whether it is too much to ask. This is a really important set of issues, not just for the people we are talking about but for the NHS as a whole, as it seeks to move towards a much more personalised approach to care—and what could need a personalised approach more than the sort of issues that we are talking about here?
As everyone here has, I have received very good evidence from the different charities involved in this field, which make an enormous number of very powerful points. Of the various questions that they ask, I select three to ask the Minister. The first has already been mentioned by the noble Lord, Lord Touhig. Will the Minister confirm that an autism care pathway will be established in the way the noble Lord talked about? Secondly, will the review of the Mental Health Act that is under way look at how it works in particular for people with autism? Thirdly, I am struck by how many other health issues people with autism and learning disabilities have. I was struck by the evidence that we received—I suspect that we all received it—from SeeAbility that there are GP health checks for people with learning disability and special dental care but nothing at all for access to specialised eye care, with which an awful lot of people in this area have problems.
I conclude by speaking briefly about a personal example about the importance of the personal focus here. I have a close relative, aged 56, who has Down’s syndrome, who lives with his 94 year-old father. I have three observations to make. First, as he ages, there is less and less evidence and research about what will happen to him as he moves on into his 60s and 70s, simply because people have not lived that long so far. There is a real need here for the continuation of the research and making sure that it is of a high quality. The second point is the obvious one that quite a lot of people are living with ageing parents in this way. It is important that there is support for them.
The third point comes from a recent occasion when my relative ended up having an operation on his knee and it is about the health service staff’s understanding of the condition and how to talk to people with these conditions. I was struck that my relative would tend to agree with you if you asked a question and would try to work out what you wanted him to say. If you asked, “Is the pain worse on this side?”, he would reply, “Yes”, but if you then asked, “Or is the pain worse on this side?”, he would say “Yes”. You need to understand how to work through those sorts of issues. I was struck that the GP found this difficult, but the orthopaedic surgeon did it brilliantly. There is a real personal aspect here and it is important to have people in the health service who understand how to do that.
I finish by congratulating the Government, because I understand from a recent press release that they have established a new “golden hello” for nurses coming in at postgraduate level who are working with people with learning disabilities, and for mental health and district nurses. This is a very positive step forward.
Lord Astor of Hever (Con)
My Lords, I declare an interest as the father of an autistic daughter. I agree 100% with the noble Baroness, Lady Scott, that those on the autistic spectrum are among the most vulnerable in our society. The Government’s mandate to NHS England requires them to tackle health inequality for autistic people, and ensuring access to good quality mental health support is one important way in which this can be achieved. I have to stress that, as the noble Lord, Lord Touhig, said, autism is not a mental health condition, but more than 70% of autistic people will develop mental health problems at some stage in their lives. This is why it is one of the key drivers of the stark health inequalities faced by people on the spectrum.
The noble Lord pointed out that, in 2016, NHS England published its mental health five-year forward view, which outlines how it plans to improve mental health services in England. It includes a number of proposals, as the noble Lord said, for care pathways to help people to access the right support and, importantly, it proposes a care pathway for autism. The Government have indicated that work on designing that pathway is due to start this year, but it is now May and we do not yet have any detail on what the pathway will include. Like other noble Lords, I would welcome some clarity today from the Minister on how the pathway is progressing and, in particular, the plans they have for developing the pathway in conjunction with autistic people and their families.
The new care pathway is a welcome building block that will, in time, help to reduce the stark health inequalities that autistic people face, but it is vital that the new pathway covers timely access to autism diagnosis; autism training for all mental health staff; and making reasonable adjustments to mental health treatments so that they work for autistic people. Finally, it should also contain the capacity to research what works and then use that research to share best practice with other agencies.
Lord Addington (LD)
My Lords, I put my name down for this debate because I am afraid I recognised the issue. The problem that the NHS has with groups who do not handle the basis of diagnosis—that is, the one-to-one interview—is one that is very well established. The idea that you will go to talk to your doctor and he will try to get from you what you think the problems are and to talk through them is a very good model for most people, but not for all. Two groups for which this model breaks down are talked about here. Somebody who is autistic, who may not relate to that person, is always going to have slightly more problems than somebody else. Of course, anybody who knows anything about autism—I do not know anywhere near as much as many people in this debate—knows that no two people with autism will relate in exactly the same way.
You are asking an incredible amount of a doctor or any other health professional to get that diagnosis correct, without giving them guidance and training—including, importantly, guidance and training on when to call in an expert. That is something that we need to hear about. When do you call in the person who really knows? How do you give the health professional the confidence of saying, “You will not be marked down as a professional by calling in someone who knows more”? The same will be true for those who have learning disabilities. It is a different set of skills, but still one that is required. Will you train those health professionals to call in the support of an expert and give them the room and flexibility to do it?
I finish on the need for early diagnosis in all hidden disabilities. Autism is something that is so well known that we only need to say “Me too” on it. Once the person knows it, you cut down on anxiety and stress, which are the fast track to mental illness. Let us make sure that we cut down at least that one shortcut.
Baroness Hollins (CB)
My Lords, I, too, have a family interest. My son has a learning disability and is on the autistic spectrum.
The Learning Disabilities Mortality Review report was discussed briefly following an Urgent Question last night, and the Minister made some very reassuring comments about training, on which I hope that he will expand today. The mortality review is an extremely important programme, but it cannot change entrenched discriminatory attitudes on its own. Equally important is what action Ministers, NHS England and NHS trusts take to prevent avoidable deaths, given this important evidence.
Interestingly, the recommendations in the recent report are almost identical to recommendations made in 2007 Mencap’s game-changing Death by Indifference report: make sure that hospital staff understand about people with learning difficulties. Make sure that hospital staff work together with other agencies, including families, and that they understand the law on capacity and consent. They are the same recommendations every time, but we do not seem to be able to do anything about it.
It is critical that tackling health inequalities faced by people with a learning disability and/or autism is a priority among Ministers. NHS England must continue the funding of the mortality review programme beyond its current one-year extension and continue the good work of its learning disability programme beyond next March. Other confidential inquiries are permanent. Why is this group being treated differently?
In addition, individual NHS trusts must take urgent action in line with the recommendations of the review, not least in improving learning disability awareness training and practice in relation to the Mental Capacity Act. Doctors and nurses probably need a lower threshold for admission and to understand that sending a person with a learning disability home and suggesting that they come back if they are worried is inadequate. That may be one reason for the episodes of sepsis which underlie 11% of the deaths reported by the learning disability review.
The third sector is campaigning effectively, but it needs the Government and the NHS to commit, too. Mencap launched the Treat Me Well campaign in February, an aim of which is to ensure that no health professional sets foot on a hospital ward without learning disability awareness training. Dimensions, another national learning disability provider, is launching an initiative to offer training within primary care, and we have heard about SeeAbility’s report.
In my time at St George’s at the University of London, the most effective training for medical students was co-delivered by people with learning disabilities. Sadly, it ended on my retirement, because it depends on having a learning disability expert on the staff. If it was mandated, it will be different.
We know that involving people helps health professionals to understand what it is like to have difficulties communicating or understanding complex information. I look forward to working with the noble Lord, Lord Touhig, who has raised this important subject today, and other noble Lords, including the Minister, on this agenda.
Baroness Browning (Con)
My Lords, I refer to my interests in the register, including family interests. I apologise to the noble Lord as I was a minute late. He was on his feet; he beat me to it. I apologise to the Committee.
This subject covers far more than we have time for today. This will be a quick canter. I shall refer first to the physical disabilities of people on the autistic spectrum. The Mencap report, Death by Indifference, which I feel I have been quoting in debate after debate for so many years in this House, fills me with despair. We are still talking about people on the autistic spectrum either in primary care or in hospital wards being disadvantaged, sometimes to the point of death. That in some cases is no exaggeration, purely because their autism was not understood by health professionals. In some cases, mothers have stood by hospital beds trying to explain to professionals how their adult child functions and how they are affected, yet they are still being ignored because the child is over 18—and why listen to somebody with a lifetime’s experience of that individual? People have made the point that they are individuals and they all function differently, albeit having the same diagnosis.
On mental health, this is not rocket science. The vast majority of people who grow up into adolescence and then into young adulthood, particularly, suffer mental illness on top of the autism, mainly because very simple, straightforward support services are denied them. That downward spiral of despair, when they are unable to access often very basic services, is hardly surprising. Most of us would suffer from mental health problems, if we were on the autistic spectrum, and if by the time we were 25 we had tried very hard to be part of society and the education system and to have relationships with other people but still could not get through that glass wall. Very often, it is through social services and others that these supports are forthcoming but, if they are not forthcoming, there is a serious mental health downward spiral. There is a paucity of support out there among clinicians. Very few psychiatrists, particularly in the provinces, have a working knowledge of autistic people. It can be fine in the big cities, but not so much out in the sticks. If they do not understand the condition, sometimes even the professionals do more harm than good.
I shall give a plug to the National Autistic Society. My noble friend Lord Touhig has worked very hard with the society, and there is an autism hospital passport on its website. It can be downloaded, and I know that people have used it, so that when they are admitted to hospital, the professionals have the information that they need about that individual. It is not the answer to everything, but I recommend those sorts of tools to make sure that people are given the support that is out there. There are now some apps that people can have on their phones, if they are on the autistic spectrum, which is very good.
I hope that the Autism Act, which I must finally mention, will be put into practice. If it were, things such as speedy or timely diagnosis, and some of the problems that have been mentioned today would not still be being raised by Members of the House.
Baroness Meacher (CB)
My Lords, I too congratulate the noble Lord, Lord Touhig, on tabling this debate, and it is a great pleasure to follow the noble Baroness, Lady Browning—a bit humbling, actually, because she knows far more about this than me.
I pay tribute in my short contribution to June Felton—not a name noble Lords will know—who pioneered an intensive educational approach to very young children with severe autism. They were non-verbal and very badly affected, but nevertheless had underlying abilities, as many severely autistic children do. June Felton successfully prepared those severely autistic children to go to their normal schools—quite an achievement if one saw the children at the start, as I did, and then a few years later. Anyone involved in the design of education for that group of children—the very autistic, but able—would do well to try to find the carefully kept records of June Felton’s small but extraordinary Family Tree school. Sadly she died rather young, and the school closed.
I fully support the Autistic Society’s call for an autism and education strategy. An appropriate educational environment for a child can really make the difference between ultimately leading a reasonably normal life on the one hand—even for some severely affected children—and lifelong institutional care on the other. For children with autism and a limited IQ, of course the goals will be different, but in every case education is the absolute key to maximising ability and reducing dependence as far as conceivably possible. For the NHS and social care, that is critical.
The impact on families of a severely autistic child cannot be overstated. Family life is likely to be disrupted every minute of every day, in my experience. The strain on the parents’ own relationship and the child’s siblings is immeasurable. The normal reward of parenthood—the display of love from one’s children—has a horrible tendency to be a little limited from these children; so it is a tough, tough world that these parents live in. Of course, the cost of a comprehensive autistic education programme to meet the needs of children across the whole autistic spectrum would be considerable. However, I urge the noble Lord, who I know understands these things, to make sure that a good cost-benefit analysis is incorporated into the strategy development. For instance, £200,000 spent on an intensive education for a child may save the NHS and social care millions over that child’s lifetime. It is never going to be a waste of money.
As others have done, I want to touch on the mental health of autistic people. If we put ourselves in the position of an autistic person—probably feeling rather cut off, perhaps having no friends, very likely unemployed or in a job in which they really do not belong or feel completely disconnected from—it is not at all surprising that 70% finish up with depression or anxiety, as a number of other noble Lords have mentioned. I think that I certainly would, were I in that position. Others have mentioned the NHS England mental health five- year forward view and the care pathway for autism that they are recommending. I ask the Minister, when is that work going to begin? Others have asked a range of questions, but I do not think that it has begun. It is absolutely crucial. I hope that the Minister can give some assurance to these children, families and adults—not only for themselves, though that is crucial, but for the sustainability of the NHS and our social care. This is a large group of people, and the potential savings from a really good strategy are immeasurable.
Lord Sterling of Plaistow (Con)
My Lords, we are very fortunate to have such a powerful advocate for the way in which to deal with this. On my own front, I have a young grandson who is on the autistic spectrum. We are also getting many more people with autism coming into the Motability scheme, so I am interested on two fronts. In advance of today’s gathering I spoke to the chair of the British Psychological Society’s Division of Educational and Child Psychology, Dr Vivian Hill. She also looks after our little boy. We have talked about the child, but it is the stress on the family that is immense. I see despair and sadness in my daughter—she says to me sometimes, “What is going to happen to him if I am not alive? Who’s going to look after him?” She brought up one issue on the health side, in particular. There is a lady—I will not give her name—who is now 35; she has a university degree, and works with Vivian at University College London interviewing people for the educational course. She has been in and out of hospital this year with various problems, to say the least. She said yesterday that she calculated that, for the first six months of the year, it has probably cost the health service £50,000—but they stopped the welfare attention that she used to have once a fortnight, which could have made a huge difference in understanding what the situation is. She was saying that there should be a way—in the same way that there is in collecting tax, for example—that a name flashes up immediately, in any ward anywhere throughout the country, if somebody is on the spectrum.
I also spoke yesterday to two fascinating headmasters in the Horsham area about money and so on. Many noble Lords have talked about how early it is possible to identify children on the spectrum. Everybody here feels that if you can get a child into a mainstream school, they have a chance of making it in life—a chance of acquiring self-esteem and of getting somewhere. We have not talked about money but really we are talking about money being made available to achieve that. If one looks at this from a taxpayer’s point of view, it is reckoned that if things were handled differently on the health service side, we would save a huge amount of money, although there is no point in my trying to guess the figures. Our little boy was diagnosed at the age of three. He was very fortunate and is getting through it very strongly. From the perspective of the taxpayer, the savings from early diagnosis—as a long-term investment—are immense.
In conclusion, as has been said, most of us in this Room are very fortunate. We must help these people, many of whom have brilliant minds and want to play their part in society. There has been enough talk.
Baroness Jolly (LD)
My Lords, I too thank the noble Lord, Lord Touhig, for introducing this debate. I declare my interest as listed in the register.
People who have never been involved with learning disabilities are unclear about what they really mean. People with a learning disability will have the emotions of an adult—they can fall in love, worry, get cross and be jealous—but it is the reduced intellectual ability that affects them for their whole life. They are subject to mental health problems and early-onset dementia.
Learning disability is subject to the Equality Act and the United Nations Convention on the Rights of Persons with Disabilities. Somebody with a learning disability should be able to expect good NHS treatment. They should also expect clinicians caring for them to make reasonable adjustments. In the questions after yesterday’s Statement, I raised the issues of funding, clinician training and the provision of suitable written material, and I will not revisit them now. However, I should like to raise the issue mentioned by the noble Lord, Lord Crisp—access to NHS sight tests.
People with a learning disability are at high risk of sight problems. Adults are 10 times more likely to be visually impaired and six in 10 will need glasses. Most people think that sight tests are easy to access, but for many people with more complex needs they are not. No targeted scheme is run by the NHS or NHS England, unlike GP health checks or special dental care. For years, the same tariff of around £20 has been paid by NHS England to deliver these sight tests. This covers about half the cost of a standard high-street test, let alone the service that someone with more complex needs requires.
The outcome is that many people with learning disabilities are instead sent to use the sight-testing services at hospital eye clinics. Without any national scheme, parents are at a loss as to where to go. Half of the children in special schools have a vision problem. Around 45% of children of the age of 11 in a special school will not have had a sight test. This makes for a poorer quality of life than would otherwise be the case. Therefore, will the Minister look at whether an NHS England scheme in the community and in special schools, which four in five children with more severe learning disabilities attend, is a possibility?
As I mentioned, people with learning disabilities have rights, and this lack of appropriate treatment is an unacceptable face of discrimination. Therefore, will the Minister please investigate this and get back to us? I might also suggest that perhaps a much longer debate than this one is required on this well-ignored group.
Baroness Thornton (Lab)
My Lords, I congratulate my noble friend on introducing this important debate, made particularly poignant by the learning disabilities mortality review, which we discussed yesterday. I also congratulate all noble Lords on sticking to the time limit, on being succinct and on being informative and moving in their remarks. I also thank the National Autistic Society, Mencap and SeeAbility for their briefings.
I was going to talk about eye care because I was so taken by the brief that we got on that. SeeAbility points to a gap and I hope that the Minister will be able to assist with that. The National Autistic Society quite rightly wanted to know when the autism pathway will be progressed. That has been mentioned by many noble Lords and I echo that. It is important also that the department looks at whether the Transforming Care programme meets the needs of autistic people and takes action to ensure that it does. Given that the Government are reviewing the Mental Health Act, will the Minister commit to look explicitly at how the Act works for autistic people?
I shall finish with something also to do with eyes. Desmond’s story, which came from the National Autistic Society or Mencap, is worth reading into the record:
“My learning disability means I grasp things more slowly and I need people to communicate clearly. Normally I go to my local hospital for my eye care—they are good with me. But in 20113 they referred me to another hospital to get an operation. That is where the problems began. I had a new doctor looking at my eye before the operation and he didn’t explain anything to me about what would happen. In the past, the hospital staff sedated me for operations on my eyes. I thought this would happen again. But instead, the doctor immediately started operating on me, while I was still awake. I was scared, and they were telling me not to close my eyes. It was a horrible feeling. I didn’t have a chance to explain what would make me feel more comfortable. There was no-one to talk it through and no time for the doctors to get to know me. I wish the doctors could have told me what was happening and why—it’s what anyone should expect. I hope staff get better training in the future to make sure they communicate better with people with a learning disability”.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord O'Shaughnessy) (Con)
My Lords, I congratulate the noble Lord, Lord Touhig, on calling for this debate and on his good grace in agreeing to meet ahead of it so that we were able to discuss some of the issues that have been raised today. I hope to answer as many questions as I possibly can. I also congratulate all noble Lords on their contributions, some of which were very personal. Whether it is a family experience or the experience of people we know, have met or have communicated with, it brings gravitas to a debate. I congratulate Mencap and the National Autistic Society on the quality of their briefings and, if nothing else, on making sure that government is kept honest in its attempts to address the needs of this group.
Noble Lords have set out the many challenges that people with learning disabilities and autism face in leading healthy and productive lives. We have talked about inequalities in health and well-being compared to those without learning disabilities or autism; comorbidities, and particularly mental health needs; great difficulties in accessing health and social care support, as the noble Lord, Lord Touhig, and the noble Baroness, Lady Thornton, and others brought to life through their experiences and the stories they told; difficulties in fulfilling educational potential; and difficulties in securing employment.
The sad fact is that people with a learning disability are more likely to experience major illnesses, to develop them younger and to die sooner. Those are the bald facts. Autistic people are also at increased risk of dying younger and have a higher risk of developing mental health problems and conditions such as epilepsy, diabetes and heart disease. They are less likely to get the screening, checks and treatment they need. They continue to face barriers to accessing services and information. My noble friend Lord Sterling talked about the impact on families: it affects not just the individual concerned but everyone around them. Such inequalities are deep rooted and we have not only a moral obligation to tackle them but, as the noble Baroness, Lady Meacher, pointed out, an economic rationale as well. I agree with the noble Baroness, Lady Jolly, that we need to start from the position of rights: the right of these individuals to enjoy the same standard of health and care as everyone else.
I will set out a few of the things that the Government are doing to try to improve outcomes for this group and then will address questions posed by noble Lords. My noble friend Lord Astor of Hever mentioned the NHS mandate, which is an important place to start. It sets out our ambition and expectation to reduce the health gap between people with mental health problems—who are not the direct focus of today’s debate—learning disabilities and autism and the population as a whole, and support them to live full, healthy and independent lives. The learning disability annual health check is a big part of meeting this aim, in looking for undiagnosed health conditions early and promoting the uptake of preventive care. As the noble Lord, Lord Addington, pointed out, as a group, they are not necessarily that good at coming forward to seek support or to express their needs. NHS England has increased the funding available for GPs for these health checks and there is an ambition to significantly raise the number of people benefiting from them.
We did unfortunately have cause yesterday to discuss the first annual report from the learning disabilities mortality review. I say unfortunately, because, as many noble Lords have pointed out, it sets out the scale of the challenge that still exists to reduce early deaths and health inequalities for this group. The fact of the programme is in itself progress, but the number of deaths reported, and indeed those which have been reviewed and are of concern, is still very high. This demonstrates how much more work there is to do. I did commit in the House yesterday to NHS England and the department working together to try to take forward all the recommendations in that report, as far as we can. It has been noted by the noble Baroness, Lady Hollins, that this is not the first time these recommendations have been made.
Some of the action taking place includes publishing data for the first time on avoidable deaths, including those of people with learning disabilities. Trusts will be inspected against their learning and the changes they have made from studying these avoidable deaths. In answer to the question from the noble Baroness, Lady Hollins, NHS England has provided additional funding for this year. I should say at this point that it has not ruled out funding for future years. The point here is that we need to get up to speed on the backlog of reviews that are taking place and make sure that that is fully embedded in the NHS.
NHS England and the RightCare programme are also producing guidance on pathways of care tailored to the needs of people with learning disabilities, including for diabetes. There are further pathways coming soon on epilepsy, sepsis and respiratory conditions.
The noble Lord, Lord Addington, and the noble Baronesses, Lady Hollins and Lady Meacher, all mentioned training. That is a critical point. There is a training and education framework for people with learning disabilities for use by health and care staff, and there is one to follow for autism training. That builds on the tiered approach that has proved successful in training all staff for dementia and is being rolled out at the moment.
I would like to address the particular issue raised by the noble Lords, Lord Touhig and Lord Crisp, the noble Baronesses, Lady Thornton and Lady Meacher, and my noble friends Lord Astor and Lady Browning—by pretty much everybody: the autism pathways that were mentioned in the five-year forward view for mental health. These pathways are being developed for both adults and children. Specifically, they are for those with a mental health diagnosis with neural developmental comorbidities such as autism. They are about the two things happening together, rather than simply for people with autism alone. That makes sense, because this is about access to mental health services. We have been pressing NHS England for a timeline in the run-up to this debate. I regret that I do not yet have that, but I will continue to press for it and will share news on our progress with noble Lords as soon as I get it.
Some of the other ways in which we are acting to try to reduce that health gap include the wonderfully named STOMP programme—stopping overmedication of people with a learning disability, autism, or both with psychotropic medicines. A pledge to stop overmedication has been signed by 24 professional royal colleges and societies, which have all developed clear plans to deliver on this, and by over 150 social care providers supporting 50,000 people with learning disabilities, autism or both. That is good progress. It is fair to say also that the Improving Access to Psychological Therapies programme has adapted its standard intervention for people with learning disabilities and autism. NHS England is working to update its framework for community mental health services for this particular group.
Many noble Lords have talked about the issues around delayed diagnosis. It was touched on by the noble Lord, Lord Touhig, and my noble friend Lady Chisholm. There is an ongoing review of the quality and outcomes framework by NHS England, which is looking at implementing the NICE recommendation about putting a flag effectively on the record. I do not have a publication date for that but I reassure noble Lords that I will write to them once I do. We also have for the first time autism indicators in the Mental Health Services Data Set, collected from 1 April this year, which is bringing more transparency to the process and helping us improve performance locally.
My noble friend Lady Browning mentioned the Autism Act, which remains the only condition-specific legislation in England. I hope that the consequent adult autism strategy represents to her a clear commitment by the Government to change the way that we support and provide services for adults on the autism spectrum to address those inequalities. I reassure her about the seriousness with which the Government undertake those actions.
While we are talking about schooling, it is worth touching on special educational needs, although it is not necessarily a topic for today. My noble friend Lord Sterling talked about getting the right support at an early age. The introduction of education, health and care plans as a consequence of the Children and Families Act 2014 was a major step forward. Ofsted and the Care Quality Commission are inspecting the arrangements that CCGs and local authorities have for those to make sure that we can improve performance and drive out variation. I am aware that there is huge variation across the country in both the availability and quality of such plans.
While we are talking about education, several noble Lords—the noble Baroness, Lady Scott of Needham Market, the noble Lords, Lord Crisp and Lord Addington, and my noble friend Lady Browning—talked about the issue of advocacy. I absolutely applaud the work that Ace Anglia is doing and the production of easy-read materials. The noble Baroness asked what government can do to support that process. Training, which we have touched on, is one thing, but there is also clearly a role for government funding—I know that the Government have supported the Autism Education Trust to support the development of training for school staff. I think that will provide some reassurance to my noble friend Lady Chisholm, who also asked about the training of school staff.
The noble Baroness, Lady Meacher, also talked about education. I do not know about the work of June Felton but it sounds interesting. My first ever role in education was as a governor of a special school in Wandsworth called Garratt Park School, which has an autism base, and I eventually became chair of governors there. The quality of a good intervention and what it can do for children’s lives is truly dramatic. Indeed, another school in that area is the former Rainbow School, which supports very autistic children with behavioural approaches and which has changed their lives. That school lodged with us for some time at one of the free schools I set up, so I had the opportunity to see that in action, and it does amazing stuff. The links between health and education are absolutely there, which is what the EHC plans are meant to be bringing together.
I will finish with a few more points that I have not touched on yet. On delayed diagnosis, which was raised by the noble Lord, Lord Touhig, from April NHS Digital has been collecting autism diagnosis waiting time data, so that that is now visible, and the autism strategy task and finish group is exploring how to use that data as part of a local accountability regime. So that is in progress, and I hope that we will see something positive emerge from that.
The noble Lord, Lord Crisp, and the noble Baroness, Lady Thornton, mentioned the Mental Health Act, which is an important issue. Professor Simon Wessely is chairing his independent review and has published an interim report—if noble Lords have not seen it, I encourage them to look at it; I will send them a copy of the report. It sets out some of the specific issues that need to be explored under that review for people with learning disabilities and autism, so I can reassure them that that is an explicit part of the work of that review.
The noble Lord, Lord Crisp, and the noble Baronesses, Lady Jolly and Lady Thornton, also mentioned eye care. If you think about the process of having your eyes tested and think about what that must be like for someone with sensory issues, with autism or learning disabilities, it is not a pleasant thought. An NHS working group is looking at this, and I am reassured to see that SeeAbility is part of that. They are looking at that, but if they feel that that is not going as it should, I would be grateful if they could write to me. The noble Lord, Lord Crisp, also mentioned the key issue of staffing, which is critical. We are trying to get more nurses into the NHS; having this golden hello for shortage areas, including learning disabilities, is a good step forward. There is a desire—my noble friend Lady Browning raised this—to increase the number of mental health staff so that we can start to meet some of the standards which we have set ourselves.
I hope that I have managed to answer all questions noble Lords have posed. Again I thank the noble Lord, Lord Touhig, for instigating this debate. The noble Baroness, Lady Jolly, said yesterday that we should judge ourselves as a society on how we look after some of the most vulnerable people. This debate has brought the needs, challenges but also the opportunities and rights of this group to the fore. I reassure noble Lords that it is a major part of the Government’s policy and attention. We know that there is more work to be done; there are some good signs of progress, but there is clearly a lot more work to do together to make sure that people with learning disabilities and autism have the opportunity to lead a healthy, productive and independent life.
House of Lords
Royal Assent
Thursday 10th May 2018
(5 years, 11 months ago)
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Children: Gangs
(5 years, 11 months ago)
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Baroness Kennedy of Cradley
To ask Her Majesty’s Government what action are they taking to stop children being recruited into gangs.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, the Government’s Serious Violence Strategy was launched on 9 April. The strategy sets out our response to serious violence, including gangs, and focuses in particular on the importance of early intervention to provide young people with the skills and resilience to lead productive lives, away from crime and violence.
Baroness Kennedy of Cradley (Lab)
My Lords, the Serious Violence Taskforce has had its first meeting, and I am pleased to see that it focused on county lines activity. However, many people are concerned that the strategy section on county lines is quite limited, with few new commitments and very little on safeguarding. As we know, thousands of children, some as young as 12, are trafficked and enslaved by county lines gangs. They need safeguarding; moreover, their evidence is critical in securing convictions. Why does the Serious Violence Taskforce have no representation from the anti-trafficking sector, and why is the Children’s Commissioner on the task force but not the Anti-Slavery Commissioner? Can this oversight in membership be corrected, and can the Minister give the House assurances that the new national county lines centre will focus as much on safeguarding as it plans to do on law enforcement?
Baroness Williams of Trafford
The noble Baroness asks several questions, but perhaps I can encompass them all into one answer and say that she gets to the nub of the problem: county lines are, as she rightly points out, all about exploiting vulnerability. We are undertaking a national awareness-raising communications exercise on the threat of county lines targeted at young and vulnerable people, and on how to avoid becoming involved in, and exploited by, gangs. We are also working closely with organisations such as Redthread and St Giles Trust, which work with children at the teachable moment—for example, if they arrive at A&E with violence-related injuries—to provide an alternative route out of a lifestyle of violence. Additionally, we are working across government departments, such as the Department for Education and the Department of Health and Social Care, to ensure that key partners in those professions are trained to spot and refer young people involved in county lines. The noble Baroness will appreciate that this is a multi-agency cross-government issue.
The Earl of Listowel (CB)
My Lords, are the Government looking at the status of youth work, and at a strategic plan to raise that status and ensure that in future there will be consistent funding for youth work, so that it is seen as a good career? Historically, youth work has suffered from booms and busts in funding, which, I would suggest, is very unhelpful.
Baroness Williams of Trafford
The noble Earl is right to point out that youth work is a crucial part of tackling this area. The Government continue to back the growth of the National Citizen Service, which is delivered through a network of 300 local partners, more than 80% of which are in the public or voluntary community and social enterprise sectors. The Government recently published guidance for local authorities on how they can maximise the benefits of the NCS within local strategies. In addition, the Department for Digital, Culture, Media and Sport, the Department for Education, the Department for Work and Pensions and the Big Lottery Fund will make available £90 million of dormant accounts money to support disadvantaged and disengaged young people with their transition to work.
Lord Nash (Con)
Central government is clearly not in control of the gang issue in this country. Ten years ago, the Centre for Social Justice produced an outstanding piece of work analysing in great detail the gang issue in this country, Dying to Belong, which I strongly recommend to any noble Lord interested in this field. It pointed up successful strategies such as call-ins, which are used in places such as Strathclyde. Why are we not rolling out these strategies across the country? The Centre for Social Justice is updating that work. It is probably the most comprehensive work ever done on gangs in this country. Will the Minister meet me and representatives of the CSJ to discuss this matter?
Baroness Williams of Trafford
I pay tribute to my noble friend’s work over the years involving young people. I am certainly happy to meet him to learn from his expertise in this area. I think it is true to say that the true scale of exploitation, including the number of victims, remains an intelligence gap. The National Crime Agency pointed this out. I would be happy to meet my noble friend to discuss it.
Lord Paddick (LD)
My Lords, many young people are unaware of the realities of gang membership: discipline enforced by stabbings, the rape of women and girls, and street dealers whose lives are put at risk while those who supply them with illegal drugs take most of the profit. Is the Minister aware of the work of Growing Against Violence—GAV, a charity of which I am patron—which works in schools to destroy the myths around gang membership in order to dissuade young people from getting involved with gangs, knives and drug dealing? Is this not exactly the sort of work that the Government should be supporting?
Baroness Williams of Trafford
The noble Lord is absolutely right that any work such as GAV’s is to be commended. We are not only developing some of the existing good practice but expanding our knowledge of the extent to which county lines are affecting our most vulnerable children. The noble Lord is right to point out that drugs market violence may be facilitated and spread by things such as social media—another area on which we need to clamp down.
Lord Mackenzie of Framwellgate (Non-Afl)
My Lords, is the Minister aware of the work done in Glasgow, where violence was dealt with as a disease? It was one of most violent cities in the world. The first thing to do was to stabilise the patient. Glasgow increased stop and search, and when knives and weapons were found the person carrying them was not simply released on bail but taken straight to the police station, detained and put before the court fairly quickly. The reduction in carrying weapons was quite dramatic. Can we learn something from the work done in Glasgow?
Baroness Williams of Trafford
My Lords, I am sure we can work on some of the initiatives in Glasgow. The noble Lord described it as a disease. These issues are multifactorial and include sociological and psychological factors depending on people’s experiences, particularly their early life experience. Tackling this preventively from a very young age is part of the answer.
Baroness Butler-Sloss (CB)
My Lords, first, I congratulate the Government on the work they are doing on county lines. Is the Minister aware that there is very patchy communication between the agencies and that all too many of the very young children—the 12 and 13 year-olds—are ending up in the local youth court instead of being treated as victims?
Baroness Williams of Trafford
The noble and learned Baroness points to a very serious issue. County lines, as the phrase suggests, crosses different local authorities and different police forces, and therefore some sort of continuity of effort is needed here.
Children’s Services: Funding
(5 years, 11 months ago)
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Lord Bassam of Brighton
To ask Her Majesty’s Government how they intend to ensure that there is sufficient funding for local government children’s services.
Lord Young of Cookham (Con)
My Lords, funding for children’s services is made available through the local government finance settlement. Local authorities are being given access to £45.1 billion in 2018-19 and £45.6 billion in 2019-20—an overall increase since 2017-18 of £1.3 billion. Core spending power is largely not ring-fenced, allowing local authorities to decide how best to direct their funding. Local authorities used this flexibility to increase spending on services for young people and children to around £9.2 billion in 2016-17.
Lord Bassam of Brighton (Lab)
My Lords, I thank the Minister for his reply, which sounds remarkably like the Written Answer I received over a month ago. He says that local government has all this money to spend, but he will be aware that this is the total funding available for 800 different services that local government delivers, of which children’s services is just one. The National Audit Office says that local government funding has been cut by 50% in real terms since 2010, and the Minister’s figures show that local authority spending on safeguarding and looked-after children continues to increase year on year. What assessment has the Minister made of local government’s capacity to remain at this level of spend on vulnerable children, particularly in the light of the LGA’s analysis that councils are facing a funding gap of around £5 billion by 2020, of which £2 billion is in children’s services? Does the Minister deny that councils, such as my own in Brighton and Hove, have had to close Sure Start centres and youth services and end play provision and supervised parental contact? A crisis is emerging in children’s services.
Lord Young of Cookham
I am glad that the figures are the same as the ones in the Written Answer given a few weeks ago. The noble Lord is right to say that, over the past eight or 10 years, local authorities have had to manage with fewer resources from the centre. I think that local authorities of all colours have done well to maintain good-quality services with access to reduced resources. They have done that by improving back-office services and front-line delivery. More recently, the Government have recognised that those constraints need to be relaxed: we have raised the cap on council tax increases to 3% before the referendum trigger is activated; we have put £2 billion into social care, taking some of the pressure off local authority services; and, as I said in my reply, we are putting more resources into the grant. On top on that, local authorities have access to £21 billion in reserves, up 47% since 2011. We believe that they now have the resources available to continue to provide good-quality services to children.
Lord Laming (CB)
My Lords, the noble Lord has very helpfully agreed that local authorities have been squeezed and are being squeezed. Does he agree that in many authorities this is resulting in a reduction in preventive and family support work, and therefore local authorities are not intervening until such time as a crisis occurs? Could that be one of the reasons why more children are being admitted into public care?
Lord Young of Cookham
The noble Lord has had a lifetime of distinguished career in social care. He may have been in the House yesterday, when my noble friend Lord Agnew referred to the troubled families programme, which indicated that the number of children defined as children in need declined by 14% after they had been involved in that programme. That, of course, reduced the demands that those children and families made on more expensive children’s care services. On top of that, last year the DfE invested nearly £5 million as part of an innovation programme to test the most effective ways to provide targeted support to reduce the need for most intensive forms of intervention—precisely the point the noble Lord has made—and thereby, it is hoped, reducing the pressure on children’s services departments.
Baroness Walmsley (LD)
My Lords, is the Minister aware that the All-Party Group for Children is doing a report on children’s social services? It has become very clear to us that thresholds for intervention are rising, leading to the situation that the noble Lord, Lord Laming, just mentioned. The Children’s Commissioner published a report yesterday that indicated that the general public’s expectations of intervention for children in need are much higher than what they actually receive. Is the Minister aware of that, and is he going to do anything about it?
Lord Young of Cookham
To some extent, children’s services are better placed within the local authority framework than other services because there are statutory protections for children that are not available for other services provided by local government. Spending on the most vulnerable children has increased by around £1 billion since 2010, and that includes safeguarding looked-after children and other children at risk. Since 2013, over 500,000 two year-olds have benefited from 15 hours of free early education a week. However, I am interested in the report that the noble Baroness has referred to, and I would like to write her with some more responses.
Lord Watts (Lab)
My Lords, did I hear the Minister correctly when he seemed to indicate that he wants to keep income tax down by pushing up council tax, pushing the problems that we are talking about away from the Government and on to local government?
Lord Young of Cookham
I was not aware that I had made any such commitment at all. The question was about resources for local government; the words “income tax” never passed my lips.
The Earl of Listowel (CB)
My Lords, I pay tribute to the Government for the troubled families programme. In the course of evidence to the All-Party Parliamentary Group for Children, we have heard from many local authorities that are very grateful for that funding. Unfortunately, the resources that have come out of this area have been greater than the resources that have gone in. A couple of weeks ago I was speaking to a virtual school head, a former Ofsted inspector who works with looked-after children, who was decrying the fact that so many services that support families to prevent them from rising to the higher level of need have had to be cut. I sense that the Government are looking at this area and I am grateful for that, but please may I get the sense from them that this is something that they are looking at very carefully?
Lord Young of Cookham
I hope I indicated in my earlier replies that this is a subject that the Government take very seriously. I indicated that resources have been made available in more recent years in order to reduce some of the pressures on local government. It is also worth making the point that outcomes for all children are improving, and the development gap is narrowing between high achievers and lower achievers. However, of course I take seriously the point that the noble Earl has made, and the Government will continue to see what more they can do to look after children who are at risk.
Children: Obesity
(5 years, 11 months ago)
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Lord Brooke of Alverthorpe
To ask Her Majesty’s Government what plans they have as part of their review of the Childhood Obesity Plan for Action to work with the BBC to ensure that efforts to reduce obesity involve schoolchildren nationwide.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord O’Shaughnessy) (Con)
My Lords, broadcasters have an important role in shaping the national conversation about reducing obesity and promoting healthier lifestyles, as has been demonstrated by recent programming. Officials from my department are in discussions with those in the Department for Digital, Culture, Media and Sport to explore how we can work together with broadcasters on this important issue.
Lord Brooke of Alverthorpe (Lab)
I am grateful to the Minister for that helpful and hopeful reply. Like the noble Lord, Lord McColl, I believe that we need a major overarching campaign that must be focused on children, and principally the BBC would be the organisation to lead it. I hope the discussions that are taking place will produce a positive programme so that we can see that the 8 million children, many of whom have a serious problem and face difficulties ahead, are given the assistance they need to get to better health in the future.
Lord O’Shaughnessy
I applaud the noble Lord for the work that he is doing. I know he has written to my noble friend Lord Hall about this topic. I think other broadcasters have a role to play as well; we know that broadcasters in the past have had a critical role to play. I remember the Just Say No campaign when I was growing up, as well as campaigns that focused on the prevention of HIV/AIDS. So there is an important role to play here. Broadcasters are not always polite about government actions, but nevertheless we want to support them in their important role in this position.
Baroness Jenkin of Kennington (Con)
My Lords, for noble Lords who may be confused, there are two different Questions in the name of the noble Lord, Lord Brooke, on the two different Order Papers—and I am delighted that the Minister has responded to the one in House of Lords Business. On a daily basis we seem to be getting reports that further prove that there is going to be a generation of children who die ahead of their parents because of the scourge of childhood obesity. The BBC is to be congratulated on commissioning Hugh Fearnley-Whittingstall’s latest campaigning series, which culminated last night in a rather uncomfortable episode for the Government. When the childhood obesity strategy was published, we were told it was the first part of a conversation. Is the Minister able to tell us when we might hear the second part?
Lord O’Shaughnessy
My Lords, for the avoidance of doubt, I thank my noble friend for pointing out that we are talking about obesity rather than the NHS constitution—which is just as well because I had not prepared for that. She has been steadfast in campaigning on this issue. We know that the problem presents some uncomfortable truths. The Government have taken some significant actions in this area, such as the soft drinks levy, but we have always said that we will not rest if we do not think they are having the impact that we want them to. There is emerging evidence that we need to go further. I cannot give my noble friend a date on further action but I can tell her that this is the subject of most serious consideration at the centre of government.
Baroness Watkins of Tavistock (CB)
I first congratulate the Government on last night’s announcement that there will now be golden hellos for postgraduate students into hard-to-recruit nursing posts in mental health, learning disability and district nursing—which, in the longer term, will help solve some of the problem of childhood obesity. The relationship between obesity and poor health is proven, yet our schools fail to fully embrace tackling this issue. Does the Minister agree that if pilot schools and their pupils were exposed to substantial public health interventions from community-based nursing teams, and their successes and challenges were part of a BBC series, it would be an experiment that might have significant benefits both in assisting a reduction in weight gain and promoting mental health and well-being in children and adolescents more widely?
Lord O’Shaughnessy
I am grateful to the noble Baroness for her acknowledgement of that important step forward in recruiting nurses to hard-to-recruit areas. That is important because we want more mental health, learning disability and district nurses in the future. They have an important role to play in schools. If I may say so, the noble Baroness is slightly underplaying the work that schools are already doing in this area. We have talked about the Daily Mile programme, which is going very well, with 900 schools in England adopting it. Learning about food, healthy eating and nutrition is a compulsory part of the curriculum in key stages 1, 2 and 3. However, I agree that there is always a need to do more.
Baroness Walmsley (LD)
My Lords, does the Minister agree that when you cook your meals from scratch, you know what is in them and are more likely to stay healthy? Can he assure me that children learn to cook in schools, not just the theory of nutrition? Will he also join me in encouraging the BBC to produce a cookery programme aimed at children?
Lord O'Shaughnessy
I am turning into the commissioner of children’s programming. I am trying to remember—I think that there is actually a CBBC programme that encourages children to cook. Its name has gone completely out of my mind but it was popular with my children. The noble Baroness raises an important point. Children learn to cook in primary schools, most of which have some sort of kit that allows them to do that. It is critical for them to understand that food does not just come from packets or shops but can be created by hand—and enjoyably, too.
Lord Turnberg (Lab)
My Lords, is the noble Lord aware that it has been shown that having a good breakfast, such as an egg or two in the morning, reduces one’s appetite for the rest of the day, and one’s weight? One of the problems for children is that many do not get a good breakfast. Can the Government do anything to encourage breakfast as a proper meal?
Lord O'Shaughnessy
It goes to show that public health campaigns can be effective. I remember the “Go to work on an egg” campaign—although I had a banana myself. The serious point is that too many children do not go to school after a proper breakfast, and one of the great advances with the sugar levy has been a commitment of around £26 million to support breakfast clubs in about 1,500 schools in areas that unfortunately have the worst outcomes for healthy children and obesity. That support will help those children go to school on a good breakfast and function properly.
Lord Blunkett (Lab)
Does the Minister agree that one of the tragedies of the demise of so many Sure Start programmes was that parents were engaged in not just nurturing but understanding what happened to their children, particularly in poor areas where junk food was bought as opposed to learning to cook? Will he put some emphasis on parents being taught how to cook nutritious food, and not just children?
Lord O'Shaughnessy
I could not agree with the noble Lord more about the importance of good parenting and parents setting an example in this area. I would focus on a major Public Health England initiative, Change4Life, which is about equipping parents with the knowledge and understanding of how to prepare good-quality, healthy meals that are affordable.
Grandparents: Legal Rights
(5 years, 11 months ago)
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Lord Farmer
To ask Her Majesty’s Government what plans they have to ensure grandparents have a more effective legal right to see their grandchildren after the parents’ divorce.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, in the first instance, it is for parents to decide what is in the best interests of their children. The Government recognise the important role that grandparents may play in children’s lives and the stability they can provide in families when parents separate. We are keeping the matter under review.
Lord Farmer (Con)
My Lords, I thank the Minister for his reply. The requirement for grandparents to apply for child arrangement orders is cumbersome, expensive and needs reforming. However, when grandparents need to go to court to maintain contact with their grandchildren, they typically have a relationship problem with one or both parents, rather than a legal problem. In Australia, where there is disharmony following divorce and separation, extended family members can access family relationship centres. Do the Government have plans to ensure that there is similar community-based help—sited, perhaps, in the family hubs slowly emerging across the country?
Lord Keen of Elie
My Lords, the requirement for non-parents first to seek leave of the court in order to apply for a child arrangement order is regarded as an important filter mechanism, and was the subject of review by an independent panel in 2011 which came to the same conclusion. With regard to means of alternative dispute resolution, we are of course anxious to see mediation employed in the situation to which the noble Lord refers. He may recollect that at a recent Westminster Hall debate, on 2 May, my honourable friend the Parliamentary Under-Secretary of State in the Ministry of Justice indicated that she was carefully considering the current position and provision. In doing so, we will of course be happy to look at international experience.
Lord Beecham (Lab)
Will the Government consider extending legal aid to grandparents, assuming that the law is changed to allow them to apply, because that would clearly be very helpful in many cases?
Lord Keen of Elie
The law does not require to be changed in order that grandparents can make an application in respect of an arrangement order for children. As regards legal aid, as the noble Lord is aware, that is currently the subject of a review within the Ministry of Justice.
Baroness Butler-Sloss (CB)
My Lords, with some family experience, I am concerned that a Minister of Her Majesty’s Government was talking about presumptions for grandparents to have contact with their grandchildren. I would hope that that would not go any further, because presumptions are highly undesirable in the law, but it would be useful to review whether grandparents are finding it unusually difficult to get access to the court when they wish to be in touch with their grandchildren.
Lord Keen of Elie
My Lords, with regard to access to the courts, the number of applications for child arrangement orders has generally been in the region of 2,000 over the period since 2011. They have varied slightly, and the number of applications has increased steadily from 2015 to the current year, where the figure is in excess of 2,000. I have certainly not referred to presumption, and various issues would of course arise if we were to consider such a move because, if you contemplate a presumption in favour of grandparents, you are in a sense intruding on the rights of the parent.
Lord Marks of Henley-on-Thames (LD)
My Lords, is there really a justification for the two-stage process whereby grandparents have to apply for the right to make an application for a contact order and there is then a filtering system? Would it not be much easier for there to be a single application for a contact order with a filter system for non-parents built into that application, thus saving grandparents a great deal of time and trouble—all, as the noble Lord, Lord Beecham, points out, without the benefit of legal aid under the current arrangements, which require there to have been domestic violence or abuse?
Lord Keen of Elie
My Lords, the matter of seeking permission, whether it be by grandparents or other non-parent applicants for an arrangement order in respect of children, was the subject of independent review by the Family Justice Review panel in 2011. In its final report, published in November 2011, it concluded that the matter of an application for permission should continue.
Lord Suri (Con)
My Lords, respect for grandparents’ rights to see their grandchildren should be always in place. In the case of divorced parents, what strong, lawful action can be taken to restore this great and loving tradition?
Lord Keen of Elie
My Lords, we respect the right of grandparents to make an application for an arrangement order for children. Indeed, in the context of public law cases, local authorities are directed to consider placing children with relatives where it is not possible for the parents to continue with their care. It is open for grandparents to be appointed as special guardians in such situations.
Baroness Altmann (Con)
My Lords, I am sure the Minister agrees with me that grandparents often have a very special relationship in the life of any child, and I congratulate the Government on the recognition of grandparents’ rights, for example, in the crediting of national insurance contributions for grandparents who look after their grandchildren. May I also urge my noble and learned friend to encourage our honourable friend in the other place to reinforce the concerns expressed that denying rights of access for grandparents can often be like a living bereavement? If there is an opportunity to amend the Children Act to give grandparents more rights, I would very much welcome it.
Lord Keen of Elie
My Lords, of course we understand the concern of grandparents with regard to child arrangements. But, as I indicated earlier, this is a difficult field. It is easy to talk of a presumption in favour of grandparents, but if you do that, you are, in effect, intruding on the rights of the parents with respect to the care of the children.
Modern Slavery (Victim Support) Bill [HL]
Thursday 10th May 2018
(5 years, 11 months ago)
Lords ChamberRead Full debate Modern Slavery (Victim Support) Bill [HL] 2017-19 View all Modern Slavery (Victim Support) Bill [HL] 2017-19 Debates Read Hansard Text
Lord McColl of Dulwich
Lord Kennedy of Southwark (Lab Co-op)
My Lords, I thank the noble Lord, Lord McColl of Dulwich, for his skill in steering this Bill through your Lordships’ House. We are all very grateful to him and for the campaigns and businesses that have supported him, including the Co-op and Co-operative Party, of which I have been a member for 40 years.
I wish this Bill every success in the Commons and hope that it will become law swiftly. It will improve the support that victims of this wicked crime will be able to receive and bring the law in England and Wales up to the same standard that already applies in Scotland and Northern Ireland.
Lord McColl of Dulwich (Con)
My Lords, I thank my personal friend, the noble Lord, Lord Kennedy, for all his support. He has been very effective in persuading people not to put down amendments. His technique was really quite effective—he simply threatened to lean on them until they stopped breathing. I also thank all noble Lords for all their support.
Civil Liability Bill [HL]
Thursday 10th May 2018
(5 years, 11 months ago)
Lords ChamberRead Full debate Civil Liability Act 2018 View all Civil Liability Act 2018 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 90-I(b) Amendments for Committee, supplementary to the marshalled list (PDF, 54KB) - (10 May 2018)
The Earl of Kinnoull
“(1) In this Part, “whiplash injury” means an injury or set of injuries resulting in soft tissue damage, usually of the neck, back or shoulder, arising out of a motor accident, which presents symptoms which may include pain and aches (including pain of the jaw, neck, back, and shooting pains in the neck, shoulder or arms), headaches, stiffness, fatigue, dizziness, swelling, bruising, tenderness or muscle spasms.”
The Earl of Kinnoull (CB)
My Lords, in moving Amendment 1, I declare my interests as set out in the register of the House, in particular those in the insurance industry. I am going to speak briefly to three propositions. First, a definition of “whiplash” should appear on the face of the Bill. Secondly, that definition should be wide. Thirdly, it should be amendable without having to resort to primary legislation, but with parliamentary oversight.
I turn to the first of those propositions. My work has been made much easier by the 22nd report of the excellent Delegated Powers and Regulatory Reform Committee. The committee is excellent as well as the report. It says at paragraph 9:
“We take the view that it would be an inappropriate delegation of power for ‘whiplash injury’, a concept central to a full understanding of the Bill, to be defined in regulations made by Ministers rather than being defined on the face of the Bill”.
I very much agree. It is particularly curious to me that there is no definition, because there are so many definitions of whiplash floating around, not least in the pre-action protocol for low-value personal injury claims for motor accidents and indeed in the draft regulations that appeared within the last 48 hours for this Bill. I therefore can see no reason why there should not be a definition on the face of the Bill. I am looking forward to hearing from the Minister whether he might see that one was, in fact, appropriate.
There are two problems with the width issue. The first is that, if the width is narrow—and a whiplash motor accident normally involves several minor injuries to the person involved—we are in the position where a tariff applies to a selection of injuries but maybe not all of them. That would be to the advantage of what I call the claims industry. Aviva, in its briefing to all Peers before the Second Reading, estimates out of whiplash alone to make £500 million a year. It is unbelievably inventive and supple. This morning, I was looking at one of the principal websites, and I will read a bit from it out as it will show just how much the meaning of the word “whiplash” has been stretched:
“Symptoms can include dizziness, blurred vision, disorientation, tiredness, poor concentration, memory loss, nausea, pins and needles in the arms and hands, muscle spasms and pain in the lower back”.
Later on, there is a rather curious sentence:
“Even if you don’t experience any symptoms straightaway, don’t rule out the possibility that you’ve suffered this type of injury”.
That is the sort of entity that, in fact, is doing great damage to the general population. It has increased motor insurance premiums. They are highly intelligent and well funded. I really feel width is important.
There is a second point on width. For the honest claimant, having clarity—so there is one tariff for one sum of money, and so they can fill in the online portals for a claim—is greatly to their advantage. If they have to fill in one online portal to sort out part of their heads of claims, and then no doubt head off to the one of the companies I was referring to, there would be greater chaos and we will not have tried, through legislation, to improve society.
I turn quickly to the point about the importance of it all being amendable. I regret that we will always be playing catch-up with the claims industry. This is not the first attempt to cope with the burgeoning whiplash problem. I remind the House that, even today, 1% of the population every year has a successful whiplash claim, on average—that is 30 times what happens in France. It is a problem that is out of control; we heard many examples of that at Second Reading. There is an enormous prize in having flexibility and, accordingly, I beg to move.
The Lord Speaker (Lord Fowler)
My Lords, I should inform the Committee that if Amendment 1 is agreed to, I will be unable to call Amendments 3 to 5 by reason of pre-emption.
Lord Hodgson of Astley Abbotts (Con)
My Lords, Amendment 2 in this group, which is in my name, tackles the same issue. The noble Earl, Lord Kinnoull, has laid out the background and reasons why this House and the country should be concerned about whiplash—false whiplash—and what are rather inelegantly called “cash for crash” events. I do not propose to weary the House by running over those issues again, which we discussed quite a lot at Second Reading.
Amendment 2 addresses the point made by the Delegated Powers and Regulatory Reform Committee about the lack of a definition in the Bill and does so in a slightly wider way than Amendment 1, moved by the noble Earl. It proposes a definition in proposed new subsection (1) but, at the same time, proposed new subsection (2) recognises the need for flexibility, in the sense that medical technology and medical sciences are always changing and there will need to be some flexibility in keeping the law up to date with those developments. Amendment 2 therefore aims to create an overarching definition, clarifying what is included within a soft tissue injury, but then provides room for flexibility, so that new ways of describing these injuries do not result in them falling outside the definition. At the same time, it allows the definition to be changed to reflect improvements in diagnosis and prognosis of these subjective injuries.
I should say that I was somewhat concerned that, having got a definition of whiplash in the Bill, a definition gap might have been left by not defining soft tissue. But the insurance industry tells me that this term is well understood and does not need a detailed definition here; the noble Earl referred to that. What I understand is called the pre-action protocol for low-value personal injury claims—I am reading this carefully because I am not entirely familiar with it myself—uses the term to define the scope of powers and has been in force since 1 October 2014, apparently so far without challenge or the need for a judicial ruling on its meaning. I hope that this amendment will be a useful contribution to the debate on this important topic.
Lord Sharkey (LD)
My Lords, Amendment 3 in this group is in my name and those of my noble friend Lord Marks and the noble Baroness, Lady Berridge, for whose support I am very grateful. Following the two preceding and eloquent speeches, I can be very brief. The point of the amendment is simply to put a definition of whiplash in the Bill. There are rival definitions in various other amendments, and there is now also a government definition contained in the draft SI published yesterday. At first glance, this government definition seems to provide a sound basis for discussion, but it is in the wrong place. It should be in the Bill.
As the noble Earl, Lord Kinnoull, has already said, our Delegated Powers Committee said clearly in its 22nd report that,
“it would be an inappropriate delegation of power for ‘whiplash injury’, a concept central to a full understanding of the Bill, to be defined in regulations made by Ministers rather than being defined on the face of the Bill”.
At Second Reading, many noble Lords strongly agreed with this conclusion and it is disappointing, now that they have a draft definition, not to see the Government bringing forward an amendment to put this in the Bill.
In his Second Reading reply and in his subsequent letter to us of 30 April, the Minister did not respond substantively to criticisms of using secondary legislation to define whiplash. He merely noted that he did not entirely agree with the DPRRC recommendations and that noble Lords were anxious about the definition of whiplash.
In fact, the Government had already set out elsewhere in correspondence with the Delegated Powers Committee their case for using secondary legislation. The DPRRC helpfully summarised this by saying that, first, whiplash must be defined accurately; secondly, there must be extensive consultation; and thirdly, the definition must remain accurate. The Delegated Powers Committee agreed with these propositions but said,
“it does not follow from them that the definition of ‘whiplash injury’ should be contained in regulations rather than the Bill. Neither the Lord Chancellor nor the Ministry of Justice is best placed to make this determination”.
We agree with the conclusions of the Delegated Powers Committee and invite the Minister to explain why the Government have rejected them and are still pursuing the statutory instrument route.
As to the Government’s definition itself, as I have said, it seems to provide a sound basis for discussion but we have not had enough time to make a proper assessment and to canvass the opinion of other stakeholders. We will want to return to this issue on Report.
Lord Blencathra (Con)
My Lords, as chairman of the Delegated Powers Committee, which published a report on this Bill, I would like to make a few comments. First, I have a purely personal comment. Colleagues may be interested to know that I have made a full recovery from the serious accident I had in the last few days—not that I recall having had a serious accident, but my mobile phone tells me that I did and that I should pursue a claim. I say to my noble friend the Minister that this racket is still happening again and again. I had thought, as a passionate supporter of the Government, that we had nailed this down and stopped the grabby racketeering lawyers pursuing these claims. I hope in future we will be able to put a stop to it.
Going back to the Bill and the amendments, the Delegated Powers Committee looked at this and said we were becoming rather familiar with skeletal Bills. By any standards, this Bill is skeletal. Then we went on to say, as the noble Lord, Lord Sharkey, so very kindly pointed out—the noble Earl, Lord Kinnoull, also paid tribute to our work—that:
“In this Part ‘whiplash injury’ means an injury, or set of injuries, of soft tissue in the neck, back or shoulder”,
and then the description stops to say that the rest of the definition will be,
“specified in regulations made by the Lord Chancellor”.
I am not revealing committee secrets but half of us on the committee thought that the parliamentary draftsman had been distracted—he was half way through writing the definition and stopped and forgot to complete it—because it seemed an elementary thing to complete.
I have not seen last night’s regulations—I shall look at them carefully—but I did a quick Google search last night on the definition of a whiplash injury. Even the NHS website states that:
“Whiplash injury is a type of neck injury caused by sudden movement of the head forwards, backwards or sideways”.
Wikipedia has a much more detailed definition, which I assume from some of the spelling is an American one. There is a fascinating point in it:
“Cadaver studies have shown that as an automobile occupant is hit from behind, the forces from the seat back compress the kyphosis of the thoracic spine, which provides an axial load on the lumbar spine and cervical spine. This forces the cervical spine to deform into an S-shape where the lower cervical spine is forced into a kyphosis while the upper cervical spine maintains its lordosis. As the injury progresses, the whole cervical spine is finally hyper-extended”.
That is not skeletal. It may be a bit too much fat on flesh on the bones but I quote it because I think it important that we have a technical medical definition, by physicians, relating to the distortion and flexing of the spine and not just a list of symptoms. If we merely make a list saying that people feel dizziness, nausea, headaches and so on, we could include everything. After a good night’s dinner one could feel those symptoms and not necessarily have been involved in an accident. If it is simply possible to get some definitions from Google and to look at the excellent definition from the noble Earl, Lord Kinnoull, and from my noble friend—who is not a lawyer—these definitions seem to me to be a very good starting point. If the Government’s definition in the regulations is even better, let us go with that. My committee was at an absolute loss to understand why it was not in the Bill. There is no justification for it not being there. Of course, there can be an order-making power for the Minister to tweak or amend it in due course as medical science changes.
We said that there should be extensive consultation. If I go outside the Chamber right now and phone the Royal College of Physicians, within 10 minutes it will give me a pretty good definition. The doctors who deal with this issue are the experts, not the Lord Chancellor or the lawyers in the Ministry of Justice. We must let the doctors come up with the definition and put it in the Bill so that we have complete certainty in the future.
Lord Ribeiro (Con)
My Lords, I agree entirely with that last point. I too searched on Google and Wikipedia and saw the rather extensive definition of the diagnosis. That makes the point that none of these claims should be accepted unless a medical opinion has been sought and a report given. It is for the physicians to make the diagnosis. This Bill is very clear about confining the list to motor vehicle accidents rather than all the other ways in which whiplash injuries can occur. In the context of a motor vehicle accident, the very injuries that have been described and the mechanisms and consequences relating to those injuries can be defined only through a proper medical assessment. As explained in the Minister’s letter to us all after Second Reading, it is essential that a medical report is provided before taking this matter further.
Baroness Berridge (Con)
My Lords, I have added my name to the amendment in the names of the noble Lords, Lord Sharkey and Lord Marks. I agree with the comments of the chairman of the Delegated Powers Committee, although obviously I cannot comment on the legal qualifications of the person who telephoned him. As I outlined at Second Reading, I have practised in this area and have dealt with these claims, and I know that it has become something of a fashion to be quite derogatory about the role of advocates and lawyers. When I joined the Bar, it was one of the proudest moments of my life. People becoming lawyers and acting as advocates so that someone is not a litigant in person is an incredibly valuable part of our system, and as we discuss further amendments we should all bear that in mind. Having an advocate when you are an ordinary person—potentially with three part-time jobs on the London living wage—so that you do not have to deal with such calls is valuable, and I implore us to look at our lawyers in a better light than is often the case in our culture.
Lord Judge (CB)
Perhaps I may add a few words. Of course the definition of whiplash has to be made by doctors—that is how the world works—but we are engaged in legislation. This word must have a legal meaning and it must be enshrined either in a statute or in regulations. The Bill approaches the problem by putting the legislative cart before the legislative horse. If we are being asked to enact legislation in which we do not know precisely what the word means, we are being asked to do something that we should not be asked to do.
Lord Marks of Henley-on-Thames (LD)
My Lords, perhaps I may add to what the noble Baroness, Lady Berridge, has just said. I agree with her and stress that this is not just a case of racketeering lawyers. One problem that we need to grapple with at this stage of the Bill is that the cold-calling racket and the encouragement of claims comes from claims management companies as well, often from abroad. They can also come from those who offer free hire cars to those who will pursue claims, and they can add a personal injury claim. The same applies to people who repair cars. There is all that potential for racketeering to jack up these claims, and we accept that there is a very serious problem.
I come back to the point about the definition. I agree with all those speakers who have said that the definition has to be in the Bill. The noble and learned Lord, Lord Judge, very concisely just explained why it has to go in the Bill and why it is insufficient for it simply to be in draft regulations at this stage.
Perhaps I may say a word or two more about the Delegated Powers and Regulatory Reform Committee, chaired by the noble Lord, Lord Blencathra. I served on it for three years when my noble friend Lady Thomas of Winchester chaired it. The general practice then was for the Government to accept the recommendations of that committee. We took the responsibility of considering the delegated powers in every Bill that came through this House extremely seriously and in an almost entirely non-partisan manner. We were guided and assisted by clerks who were astute to ensure that their advice was based on precedent and on principles, and the principles were published.
Baroness Butler-Sloss (CB)
My Lords, this is a good Bill but it is incomplete. As the Minister will have noticed, every single speaker has said that, to be completed, it requires a legal definition. Individuals who say that they have a whiplash will have to have a medical diagnosis, but in a Bill of this sort, which is intended to deal with fraud, there absolutely has to be a legal definition, for the reasons given by my noble and learned friend Lord Judge, which I entirely support.
Lord Faulks (Con)
My Lords, I declare an interest as a racketeering lawyer, as my noble friend Lord Blencathra would have it, although it has been some time since I was involved in whiplash claims.
I accept that there are genuine whiplash claims and that some whiplash problems last for a considerable time and can cause difficulties that continue well beyond six months, 12 months or even two years. The majority do not. However, the legislation we are concerned with here ought to be clear—I agree with all noble Lords who have said this—which would mean a definition in the Bill. This has been a problem for this Government and previous Governments and we have to accept that we are dealing with a slippery and powerful opposition in trying to pin down this racket.
Whiplash injuries have an attraction for fraudsters because, as no doubt my noble friend Lord Ribeiro will confirm, they are difficult to prove or disprove on medical analysis—they do not show up on scans of any sort—and doctors have to rely on the veracity of the patient to satisfy themselves that they may or may not have whiplash symptoms.
We do not want to pin down a definition of whiplash injuries and the nation’s necks appear to improve, only for its lower backs to deteriorate, and suddenly we are invited to consider claims in which, as a result of some movement of the thorax, lumbar or cervical regions in an accident, all the symptoms are referable to the lower back, which is outside the definition and would be equally difficult to prove or disprove. I therefore counsel the House to use caution in saying that we must pin down the definition. As legislators that is of course desirable but we want to help the Government to deal with this problem.
A similar issue arose during consideration of the Psychoactive Substances Bill, when everyone in the House said that we must be clear as to what the substances are and put them in the Bill. However, the conclusion was that we should not do this because of the infinite adaptability of those who produce such substances. While I sympathise as a matter of principle with those who have spoken—I will listen with interest to what my noble and learned friend says—we should be careful not to do anything which may assist those who have perpetuated this racket.
Lord Trevethin and Oaksey (CB)
My Lords, I support everything that has been said by every lawyer who has spoken this morning. Clearly, the Bill needs a definition. However, I also agree with what the noble Lord, Lord Faulks, has said about the difficulty that has arisen in constructing the definition.
The House will not be able to tell whether the Bill will work as a matter of practical justice until we see the definition. It will need to be a broad definition for the reasons given by the noble Lord, Lord Faulks. It is easy to foresee that when the Bill passes into law, as it probably will, there will then develop heavy tactical warfare between those acting on the claimant’s side and those acting on the defendant’s side, which will be focused on the precise wording of the definition. If there is undue looseness in the definition, that warfare will clog up the courts and be generally undesirable.
In short—I do not disagree with anything I have heard this morning—it is clearly necessary for the Bill to contain a definition and for this House to consider the proposed definition in minute detail and with great care to ensure that the Bill works when it passes into law.
Lord Hunt of Wirral (Con)
My Lords, I agree with the noble Lord, Lord Trevethin and Oaksey, and my noble friend Lord Faulks. In doing so, I declare my interests as set out in the register.
I too have sympathy for my noble and learned friend the Minister. This is a good opportunity to remind ourselves why we need this legislation. Late last night, at a most inconvenient time, I received a call urging me to bring a claim. I do not know how many noble Lords have had the same but there is an industry out there. That is why working out a definition will be quite a challenge.
This problem needs urgent attention. Noble Lords may know that I have been pursuing this line of argument for 15 years. I have watched this claims industry grow and make life intolerable for so many people. In the last 10 years, the number of reported road accidents has gone down by 30%, but in the same period the number of injury claims has gone up by at least 40%. We have a problem.
I received copious briefings from vested interests who are completely opposed to any whiplash reform on the basis that it threatens access to justice for injured people, but a lot of these briefings come from companies with a commercial interest in the presentation of these claims. I think that the threat is more to their income and profits than they are prepared to admit. I want to quote Sir Rupert Jackson, albeit from seven years ago:
“There is currently far too much money swilling around in the personal injuries system and the beneficiaries are not the claimants, but usually the referrers and (when no referral fee is paid) the lawyers”.
He made that point in a different context but it is a good reminder that we are dealing with a pretty serious problem. Governments have tried before to reduce the cost of whiplash claims but the measures used, including the banning of referral fees, have not succeeded in bringing the number of claims in check.
Some noble Lords will try to argue to the contrary although they have not participated so far in the debate, but any reported decrease in the number of whiplash claims is probably because they are being described as something else. A neck injury becomes an injury to the spine or the shoulder or the back. As my noble friend Lord Faulks pointed out, this is a moving target. I have a great deal of sympathy for my noble and learned friend the Minister.
I suppose that this set of reforms is different from what has gone before. It is targeted specifically at reducing the number of claims. In view of the reduction in accident numbers, this must surely be the right target. That is why we have provisions such as a tariff set by the Lord Chancellor. This is a socio-political problem, not a medical or even a truly legal one. It needs a political policy steer, not just to be handed back to judges to exercise controls. Indeed, the Judicial College has acknowledged that this is not its role:
“We stress again that we do not attempt to prescribe what levels of damages ought to be awarded”.
In truth, judges assess very few of these low-value claims; when they do, it is usually because there is an unusual factor involved.
The industry—it is a commercial industry—that brings these claims is highly adaptive. I welcome the opportunity given to us by the noble Earl, Lord Kinnoull, and my noble and learned friend to look at the definition. The reforms in 2013 led to an early move by road accident solicitors into industrial deafness claims and clinical negligence claims, and the call that I received last night urged me to bring a claim because of some alleged sickness I had suffered on a holiday I never took. Let us not avoid the fact that we need to confront these waves of claims. There is time for more drastic action. Of course, I agree with the Delegated Powers and Regulatory Reform Committee. Noble Lords are well-versed in arguments about Henry VIII powers but in this case, with due respect to the committee, the concerns may be misplaced.
The action that the Government need to take must be radical but also fleet of foot. That is the key to understanding why the majority of the measures are subject to regulations. It is also essential that this Bill does not stray into narrow, overly medical or overly legalistic terms that are easily circumvented. Having said all that, I can hardly wait to hear what my noble and learned friend the Minister has to say.
Lord Beecham (Lab)
I must apologise to the noble Lord for delaying his expectations slightly, and declare my interest as an unpaid consultant in my old firm of solicitors.
It is clear that we must have a proper definition. It is equally clear that the definition ought to be provided by a medical source. The groupings of this rather long day are such that the recommendation that I shall be making in the next group is relevant to this first group, in that the responsibility for defining a whiplash injury should be on the Chief Medical Officer and the definition incorporated into primary or secondary legislation. That takes the decision away from politicians. I disagree with the noble Lord—I do not think that the definition should be a political decision: it should emanate from the medical profession and be embodied in legislation. An amendment to that effect on Report would perhaps be helpful.
It is clear that there are problems; nobody denies that. There is an argument about the extent to which the current system is being abused, but any abuse is unacceptable and reflects on innocent people who have suffered genuine injury. Their cases need to be dealt with properly. So there has to be change. However, with due respect to those who tabled these amendments, who may well have drawn on medical advice, we should at some point incorporate a requirement for that medical advice to emanate from a medical source—I have suggested the Chief Medical Officer but it could be another source—rather than be determined by politicians.
Lord Faulks
The term “whiplash” is pretty loose. What is the noble Lord inviting medical experts to do to interpret a term that is not really medical?
Lord Beecham
There surely has to be a medical definition—and where better to get it from? The medical profession deals with injuries that are labelled “whiplash injuries”. There may be some argument about the definition, but surely it can be decided only on the basis of medical skills.
Lord Mackay of Clashfern (Con)
My Lords, I thoroughly agree with the proposition that is highly desirable for the definition used as the basis for later provisions in this part of the Bill to be on the face of the Bill. The difficulty I have had so far is in identifying what we want to do. It is the area of exaggerated claims, or something of that sort, that underlies the Government’s proposals. I agree that it must be, ultimately, a medical definition, because a medical report saying that you have this injury is an essential requirement for you to come under this part of the Bill.
The difficulty, however, is that the doctors have to know where these exaggerations take place. I have been instructed by people who suggest that if you go for the back, and the rest, you are extending the thing beyond the real position. I have, therefore, some sympathy with the amendment restricting that, which I think is to be moved or spoken to later. I do not, however, profess to know exactly what the problem is, in the sense of the area of medical expertise that is being used by the claimant industry to exaggerate claims. That is their idea: to exaggerate these claims and ask for more than they are worth. As I said at Second Reading, I have some experience long past of the difficulty of actually quantifying the correct amount for these injuries, particularly if they are serious—and they can be quite serious, I think. This is my problem and I would be glad of help when the Minister comes to speak.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, I am obliged for all the contributions that have been made so far this morning. I observe that it appears to be generally recognised that the Bill is addressing a very real issue about which policy decisions have to be made and implemented. I quite understand the question raised about where the definition of whiplash injury should appear. The definition in the Bill seeks to limit injuries to those soft tissue injuries that affect the neck, back or shoulder and arise from road traffic accidents. The vires in the Bill are tightly drawn to enable regulations to be made by the Lord Chancellor that would apply only to a discrete number and type of injury.
It is interesting to see the diversity of amendments that have come forward this morning. That may underline the particular challenge we face in arriving at a suitable definition, be it in the Bill or in regulation. We have sought to address an issue that involves reconciling a legal understanding of this matter with a medical definition—one which covers both injury and the symptoms of injury. That involves us engaging with not only medical expertise but a degree of legal expertise. In addition, while I am not going to go through the detail of every amendment, because I understand what lies behind them, I will note this much. The noble Earl, Lord Kinnoull, set out three points for consideration, and in doing so underlined the very real problem that we need to address here. It was emphasised by the suggestion that if you go to a particular claims management site you are encouraged to believe that even if you have no symptoms you may still have a claim.
I was reminded of an incident some years ago where I was acting for an American pharmaceutical company. The US attorneys showed me a photograph of a genuine roadside sign that had been erected in the state of Mississippi. It said, “If you’ve taken drug X and suffered a fatal heart attack, telephone this number”. The lengths to which we lawyers will go know no bounds, and our belief in the Almighty is always there. There is a very real industry out there. I do not use the term “racket”, but others have—and with some justification.
Looking to the current position, the noble Lord, Lord Sharkey, correctly observed that the regulations that we have produced in draft to elaborate the definition of whiplash injury have only just appeared. I quite understand the need for noble Lords to consider those regulations in more detail. In turn, I will consider in more detail whether we should incorporate a more precise definition in the Bill. But I stress that, even if we were to take that step, it would be necessary for us to bear in mind the ability of government to proceed by way of regulations to support any definition in the Bill. We are well aware that flexibility will be required with regard to any final definition so that we can meet the way in which claims development occurs—the way in which this sort of market develops—in order to put limitations on claims.
At the end of the day, the detailed definition of whiplash injury will need to reconcile the current legal understanding with an accurate medical definition covering both injury and symptoms. Our aim is to achieve that objective, but to what extent we achieve it by incorporating the definition in the Bill is not a matter on which I would take a final position. I quite understand the suggestion that we should consider further the extent to which the definition can appear on the face of the Bill, and also allow noble Lords the opportunity to consider the scope of the draft regulation that has only recently been made available. In the light of that, and understanding that these are essentially probing amendments, I invite noble Lords not to press them at this time.
The Earl of Kinnoull
My Lords, I am grateful for those last few sentences from the Minister, which were very helpful and reflect the strong mood of the House. I must say that if we had had a brief fee clock going, with the number of very expensive lawyers here, it would have been going round quite rapidly. I will make one point, following what the noble Baroness, Lady Berridge, said. I too am a non-practising barrister, but I would never do anything to suggest that advocacy was not valuable. Advocates are immensely valuable in our justice system.
I do, of course, have experience of sitting on the other side of the table from the “claims industry”, as I term it—and the last thing those people want is an advocate in the mix. Most of their companies do not employ that many lawyers: some companies have no lawyers at all, or just one on their writing paper. They want a paper-based or telephone-based operation, in order to process things as cheaply as possible. This would actually help advocacy, because it would try to push things back into the proper legal market and away from companies that have been commoditising the rather grubby process of grabbing money. But, on the basis of what the Minister has said, and knowing that we will be having discussions with a view to bringing forward some sort of amendment on the definition—no doubt several noble Lords who have spoken today will be involved—I beg leave to withdraw the amendment.
Lord Beecham
Lord Beecham
My Lords, I shall speak to the amendments in my name. I have already effectively, I hope, spoken to Amendment 5. Amendment 4 is a probing amendment that seeks to alter the definition of a whiplash injury to confine it to neck injuries. I accept the point that the noble and learned Lord, Lord Mackay, made about the precise definition, and also the fact that I am effectively in the position that I was questioning before, of not having the medical authority to give a prescription. That underlines the need for independent medical advice as to what constitutes the kind of injury that needs to be covered.
Amendment 5, to which I referred before, would require the definition to be provided by the Chief Medical Officer. There may be other professional sources that would be as effective, but the independence and status of the Chief Medical Officer strikes me as highly relevant.
The other amendments in this group to which I will refer are, particularly, Amendments 8 and 10, which suggest a new tariff for 12 months rather than the two years in the Bill. I understand that the vast majority of cases are within that one-year period, so to extend it to two years seems somewhat invidious, given that there has to be proof of the effect of the accident. Two years is a long time to be subjected to, for what would be a pretty minimal level of compensation provided for in the tariff. I hope that that would improve the Bill somewhat.
In relation to Amendment 9, sub-paragraph (ii) seems superfluous because it requires the claimant to have mitigated the damage suffered, but in common law the plaintiff has to demonstrate that he has done precisely that. Sub-paragraph (ii) does not seem to add anything to the current legal position and, for that reason, it should be removed.
Amendments 15 to 20 are in this group. They would remove references to psychological injury from Clauses 2 and 3. That is a matter which we feel should be dealt with in the ordinary way. I beg to move.
The Earl of Kinnoull
My Lords, I rise to speak to Amendments 15 to 20 and to explain why leaving out the word “psychological” benefits the Bill. As currently drafted, the Bill captures soft tissue injury and minor psychological injury only. If a claimant sustained a whiplash injury and, say, a bruise on their knee at the same time in an accident, the bruised knee would not be captured by the definition, which is limited to neck, back and shoulder in the current Clause 1. Damages for the bruised knee would therefore fall outside the tariff damages but would remain compensatable under common law. As I said earlier, there is a great prize for simplicity here, for being able, as an honest and genuine litigant, to go to a web portal to fill a claim and have predictability about what you are going to get. We will no doubt discuss the tariff a lot later on today. By removing the word “psychological” we bring minor injuries into the tariff so that if you have an accident and get a set of minor injuries, which we loosely call whiplash injuries, but which include bruised knees, you know what you are going to get and there would be a simple web way of doing it. We have tried to do that, and that is the sole reason for removing “psychological”. It would mean that injuries without the word “psychological” include psychological injuries. In fact, the definition I referred to earlier on the pre-action protocol for small bodily injury claims specifically includes psychological injuries. I think I have made the point.
Baroness Primarolo (Lab)
My Lords, I rise to speak briefly to Amendment 21, which is tabled in my name. I draw attention to my interests as set out in the register.
I shall follow the theme in the point made by the noble Earl, Lord Kinnoull, with regard to physiotherapy and psychological treatments in claims under this clause. The debate at the moment is with regard to probing amendments, and I hope very much that the Minister, in his reply, will be able to give us a little more explanation on how he sees this particular section of the Bill operating.
I should also say as a caveat that, while I accept the very strong point continually made in the Chamber, and rightly so, about the creativity of some claims management companies—the ones making the telephone calls—to find ways into this area and to cause considerable difficulties, I hope that we will not lose sight of the genuine claims of individuals and the hardships they suffer when they seek to make a claim but cannot represent themselves and whose access to finance for such a claim does not exist. In our rush to deal, quite rightly, with unwanted claims, I hope that we will not undermine and damage the very valuable claims that are necessary for individuals—not just adults but children as well.
With regard to my proposed amendment, Clause 2(6) states:
“Regulations… may provide”,
that a person has taken,
“reasonable steps to mitigate the effect of … whiplash injury or minor psychological injury”.
As I have said, I want to talk about physiotherapy as well.
The reason I ask the Minister to give us more information is in the background of the very public debate about, for example, the provision of mental health services and, in particular, where such services are provided and how the claimant would get access to them and therefore have taken reasonable steps not to undermine a subsequent claim. The King’s Fund, in its analysis of NHS trusts, clearly identifies, through their financial accounts, that approximately 40% of mental health trusts have received a reduction in their funding and therefore in their services.
The type of claims made that require psychological support may involve children who, having been with their parents in a car accident, have problems with nightmares, so they need access to proper support and therapy. Such a claim may involve, and has involved, parents travelling in a car where the mother is pregnant and therefore suffers stress as well as physical injuries. Again, where is the access to psychological injury and, reasonable steps having been taken to mitigate that, given the connection between pain and one’s mental health well-being?
I am not a lawyer, and if my comments are considered ill-informed I will not be embarrassed by being corrected by the very many experienced noble and learned Lords in this Chamber. At the heart of this, and the objective that the Government seek to achieve, is how to stop those who are using the system in a way that, frankly, undermines the rights of good, honest people who are not making fraudulent claims. How to correct that system without preventing worthy, correct and needy claims is a huge challenge. At the moment, while I understand why the ABI talks in its briefing about the need for it to have flexibility to adjust and evolve as the industry does, I see nothing in the Bill that puts that same flexibility into protecting the rights of legitimate claimants in this area of physical damage.
I very much look forward to hearing what the Minister has to say on this whole area, because I fear that otherwise we may need to return to this. There is not enough protection at the moment for the individual legitimate claimant.
Baroness Berridge
My Lords, I shall speak to Amendments 8, 10 and 49A in this group. I join with the comments made by the noble Baroness, Lady Primarolo, in relation to genuine claimants. As I understand it, even the insurance companies accept that the majority of claimants in this area are genuine. It is a high burden on your Lordships’ House to ensure that the Bill hits the target of fraudulent claims as accurately as it can without the shrapnel hitting genuine claimants. Fundamentally, someone with a bruised knee, as the noble Earl, Lord Kinnoull, mentioned, may find themselves with more compensation when assessed under Judicial College guidelines than someone who has genuinely incurred a potentially six-month whiplash injury.
Amendments 8 and 10 relate to reducing the length of the period of these symptoms from two years to one. It is important to remember that while, yes, there is a portal, which the noble Earl, Lord Kinnoull, referred to, and the small claims track, even today 35% of claims are outside the portal. These are the nuts and bolts of people’s access to justice through the small claims track, but that is without legal representation.
The important reason to reduce the scope of the Bill to a year is that the overwhelming majority of whiplash cases, even including those that the insurance companies maintain today are fraud or suspected fraud, are resolved within a year. However, a bulk of cases—15%—last longer than that, and of those there are about 5% where someone has a long-standing chronic condition as a result of the whiplash injury. They might have an early onset of osteoarthritis, a chronic pain condition or fibromyalgia—these are cases that I have seen—which are seriously long-term disabling conditions. It is very important for those people that there is representation, perhaps more in-depth medical reports looking at what has happened to their symptoms, and legal advice so that they are not pressurised into settling a claim too early and getting a sum of money within the first year when actually the prognosis is not definite. If we reduce the scope of the Bill—the Government’s stated intention relates to minor injuries and fraud—down to one year, it would give protection to those people who, hopefully, if they were advised properly, would wait to settle their claim to ensure that their symptoms had resolved.
I hope this is not going to be a complicated amendment. It would do a lot to protect genuine claimants. We do not seem to have evidence of people who are exaggerating and claiming to have fibromyalgia, chronic pain or early-onset osteoarthritis as the result of a fraudulent claim. At the moment the Bill does not do sufficient to protect claimants in those categories, and reducing the limit from two years to one would deal with the fraud problem but also give them some protection.
Amendment 49A is one that I was given advice on by USDAW. The policy reason that Her Majesty’s Government have given for creating this section of claims is that we are aiming at fraud where they will not be covered by the Judicial College guidelines. That will lead to ordinary people not necessarily understanding why claim X merited much more than their own claim. This is serious in people’s fundamental understanding of compensation and justice.
Lord Bassam of Brighton (Lab)
My Lords, I rise with some trepidation to enter into a debate that is so well populated by lawyers and people who know a lot better about these things than I. Perhaps I should declare a sort of interest or make an admission that while I am not a lawyer, I live with one—and her advice to me the other day was not to get into this debate. I have set that on one side for what I hope is a good reason.
I shall speak to Amendment 27A on the supplementary list. It pursues the same point that the noble Baroness, Lady Berridge, explored. I too am worried about what the Bill—a welcome, reforming Bill in many respects—will also capture and that it will put off, deny and deprive access to proper compensation to those who, in the course of their employment, drive for a living. I am thinking of public service workers, ambulance drivers, firefighters, police officers and those in the distribution sector. I am worried that the Government have it wrong and that the legislation will capture people they do not want to. I cannot see, and we have not yet seen, evidence that there is widespread fraud. I am also concerned that in cases involving people who drive as a product of seeking their living and who are injured in the course of their work, perhaps by someone else’s negligence or when they have been working for a supplier contractor, they end up being undercompensated.
Like the noble Baroness, Lady Berridge, I should like to probe the Minister’s intent. Can he assure us that such claims will not be affected in the way in which they potentially are? We are both seeking assurances, some evidence and a hope that damages suffered by those in the course of their work will continue to be assessed in the usual way. That is only fair, right and proper. I am sure that the Government would not want to unwittingly—perhaps inadvertently—damage such people’s interests. While a claim culture exists, stimulated by an industry that is very driven, we do not want to harm those who are rightly seeking compensation for an injury that they have suffered.
Lord Monks (Lab)
My Lords, I follow for a moment the line that previous speakers have addressed. I understand that the Scottish position is different from that proposed in the Bill and that people injured in the course of their employment are treated differently from others. It would be interesting if the Minister, with his extensive knowledge of the Scottish position, could outline what the different reasoning might be. I am not asking him to speak for the Scottish Government, but I am sure he understands how Scottish practice has developed in a different way.
A number of us are concerned that this is a Bill for the insurance industry, tackling problems that it should have addressed itself. If insurance companies were paying out claims without properly investigating, if they were making money available just because it was too much trouble for them to assess the honesty of those making the claim, they have spawned the industry that we are now grappling with and trying to make sense of. The insurance industry should put its own house in order, not come crying to the Government too often to say, “You should do this for us with legal changes”.
I am conscious that we could have a problem with drivers who get injured and are covered by the road traffic laws being treated differently from a driver of a forklift truck, say, who has an accident in the factory or depot, and is not covered by road traffic law. There are inconsistencies here which, I understand, the Scots have addressed differently from the position under the Bill. The Minister shakes his head, and I stand to be corrected, but I should be interested in his observations on that point.
Lord Faulks
My Lords, the noble Lord, Lord Monks, makes a good point: the insurance industry has its share of responsibility for what has occurred in its eagerness to settle claims which may not have been genuine to save the cost of going to court to argue the matter, but to describe this as an insurers’ Bill may be to overstate the case. In the Bill, we are all concerned to stamp out what has been a widespread fraud—not at the expense of genuine claimants, of course, but I do not think anyone looking at the statistics could deny that there has been a serious and long-standing problem that needs a solution.
The noble Lord, Lord Beecham, mentions the Chief Medical Officer in one of his amendments. Of course, the definition of whiplash and the approach to it should be informed by medical opinion, but I respectfully suggest that, ultimately, we as a legislative body have to grasp that definition and approach, bearing in mind medical evidence but nevertheless seeking to identify what is going on in the real world, rather than simply tying ourselves to a medical definition which may of itself be imprecise.
As to where the cut-off should come—whether it should be 12 months or two years—it will always be somewhat arbitrary. However, there seems to me a risk that if we reduce it to 12 months rather than two years, we can anticipate a number of medical reports suggesting that matters should resolve themselves in, say, 18 months—not the more reputable medical experts, but, I am sad to say, not all of them have in the past been in that category.
The point made by the noble Baroness, Lady Primarolo, about the availability of therapy in various contexts is good but, as I understand it—my noble and learned friend will correct me if I am wrong—we are concerned here with damages for pain, suffering and loss of amenity. That does not preclude damages for loss of earnings or for the cost of medical expenses, whether for therapy or otherwise, which can be recovered in addition to the tariff claim. I hope that that is some answer to the question of whether those matters can be attended to following an accident.
As to the argument about whether employment should be an accepted category, while that might have some initial attraction, I would counsel against that approach. I can imagine a revision to the standard message following any such amendment. It would be, “We understand you have recently been involved in an accident while you were driving in the course of your employment”. That would inevitably follow if we narrow or exclude incidents arising from employment. Whether you are driving in the course of your employment, recreation, or whatever the reason, you are equally likely to—
Baroness Berridge
I hate to interrupt my noble friend, but in principle, what is wrong with a call saying that? If someone is driving in the course of his employment, it is in a different category because the employer will have to give evidence that he was indeed driving in the course of his employment. There is a danger that we are saying all these calls are a bad thing, or that all claims management companies are a bad thing and all insurance is a good thing. What in principle is wrong with a call of that nature that can be substantiated by evidence, and would need to be from the person’s employer?
Lord Faulks
I am grateful for that intervention. My point is that if someone has been genuinely injured, whether in the course of employment or not in the course of employment, they are entitled to make a claim, and nothing should preclude that, regardless of whether they receive a message in the current form or in an amended form. It seems to me that it would be inappropriate to make a distinction between the circumstances in which you may or may not suffer a whiplash injury. My point was simply that if there is an amendment to the law, those seeking to encourage not the genuine claimants—of which there are certainly some—but those who are not genuine may revise their message to take into account the revision that we make in the law. Of course I am not against genuine claims. On the amendment tabled by the noble Earl, Lord Kinnoull, and my noble friend Lord Hodgson, although I understand the disaggregation that lies at the heart of their amendment, I am not for the moment persuaded that this is not a matter that is catered for under Clause 2(3) and (4). I shall listen with interest to what my noble and learned friend says.
Lord Beecham
Perhaps I may invite the noble Lord to refer to the provisions that refer to MedCo. He talked about doctors’ reports as if they could be made by rather unscrupulous doctors at the behest of a client. Would not use of the MedCo system pretty well ensure that the reports would be valid and authentic?
Lord Faulks
The MedCo system has contributed very considerably to the improvement in the standards of medical reporting. For those of your Lordships who are not familiar with it, it was a system to prevent what was undoubtedly an abuse of the system by some doctors, to allow the random allocation of medical experts to deal with whiplash injuries. It is certainly an improvement. My point is that there is still a risk in certain cases of there not being reliable medical evidence.
Lord Trevethin and Oaksey
Before the Minister responds perhaps I may, in the probing spirit of the amendments, mention one point that has occurred to me in light of the noble Earl’s proposed deletion of the word “psychological” from various provisions in Clause 2. I completely understand what the Government are hoping to achieve by using the term “minor psychological injury” in those provisions. I imagine they have in mind the fact that in cases of the type we are considering, it did become routine, and probably still is routine, for claimants to be advised to get a supportive report from a psychiatrist that uses the term “post-traumatic stress neurosis” or something similar as a way of enhancing the eventual award. I can see that that is a problem that the use of the term “psychological injury” is directed at.
The noble Earl makes a significant point when he refers to the bruised or gashed knee of the claimant in this type of case. I am not sure how that type of case, where there is a whiplash injury but also some other injury that is outside the definition of whiplash injuries, will be satisfactorily addressed. I imagine that the tariff award for whiplash injury will be fairly low. I do not have the answer to this problem, but I am contemplating the position that will arise when a claimant has suffered a whiplash injury and is entitled to the tariff award, which may be only a few hundred pounds, but has also suffered a probably rather less serious injury to, say, his or her knee. A gashed or bruised knee might stop them from playing football, skiing or whatever it may be, and would be worth, I guess, a few hundred pounds—it might edge into £1,000. You might get an anomalous outcome that would involve claimants recovering more for very trivial injuries to the lower part of the body than they are entitled to recover, pursuant to the Bill, for the relevant whiplash injury. I do not know what the answer is, but it is a potential problem.
Lord Berkeley (Lab)
My Lords, I return to the issue of employee exemption, which several noble Lords have mentioned in this debate. I have a lot of sympathy with it. In my Amendment 23, I shall be seeking some kind of exemption for vulnerable road users. My worry in these amendments is the definition of who is driving in the course of their employment. My understanding is that under the Health and Safety at Work etc. Act, you are covered if you are driving to work in your car and you are employed. The car does not have to be owned by your employer; it can be hired or your own. You are at work and, therefore, covered by the Health and Safety at Work etc. Act. I assume it is the same for Uber drivers, truck drivers and anyone in between.
It is difficult to accept an exemption that would cover all those things, whether you are self-employed or employed by a company or by somebody else. It would be fine if one could find a definition, but there are so many loopholes nowadays in driving and road safety law. I have had many discussions with Ministers over the years about whether road safety and driving legislation should be led by the rules of the Health and Safety at Work etc. Act. In other words, you are at work all the time. That applies to drivers’ hours, driving safety and everything else. I worry about the definition of driving when in the course of employment, and I have a lot of sympathy with anyone trying to find a definition.
Lord Hodgson of Astley Abbotts
My Lords, I intervene briefly, having put my name to the noble Earl’s amendments. I am not sure that the noble Lord, Lord Trevethin and Oaksey, quite followed the idea behind this, which is that psychological injuries are specifically identified at various places in this clause but minor injuries are not. The purpose of the amendments is therefore to remove psychological injuries as a specific category and reinsert them further down, through Amendment 22, with minor injuries, so that we sweep up everything concerned with a whiplash unless it is a serious injury, such as a fracture of a leg, which is clearly a different issue. However, the issue is picked up by the reinsertion by Amendment 22 of the words “minor injuries”, such as a bruised knee.
Lord Keen of Elie
I am obliged to noble Lords for their contributions to the Bill in Committee. I begin with Amendment 4, moved by the noble Lord, Lord Beecham, which would limit the definition of whiplash to soft tissue injuries of the neck. There is then a further amendment that would require the definition of whiplash to be set by the Chief Medical Officer of the Department of Health. The amendment to remove the back and shoulder from this definition would significantly reduce the number of claims subject to measures in the Bill, namely the tariff and the ban on settling claims without medical evidence. It would also encourage claims displacement into other areas to avoid them being subject to the tariff. That would be a serious issue.
The definition in the Bill has been adapted from that in the Prisons and Courts Bill following feedback from stakeholders that the definition in the latter Bill was not broad enough to capture the intended claims. The current definition, with the draft regulations that have now been produced, is intended to achieve that objective.
The amendment requiring the definition of whiplash to be set by the Chief Medical Officer of the Department of Health would provide an independent person who has responsibility for advising the Government on medical issues, but the definition of whiplash injury needs to reconcile the current legal understanding with an accurate medical definition that covers both injuries and their symptoms. This is why the Government have developed the definition of a whiplash injury with input not only from medical experts, but from other expert stakeholders, including claimant and defendant solicitors.
Amendments 8, 9 and 10 restrict the scope of the tariff provisions by reducing the injury duration of affected claims to 12 months from two years. As the noble Lord, Lord Faulks, observed, this would reduce the number of claims captured by these reforms, but have the negative effect of encouraging claims displacement or claims inflation. Having an injury duration of up to two years will ensure that genuinely injured claimants seek timely treatment for their injuries, as well as enabling the Government to reduce and control the level of compensation in whiplash claims and consequently—as is one of the objectives—reduce insurance premiums for consumers.
The noble Earl, Lord Kinnoull, spoke to Amendments 15 to 20 and 22, which would widen the types of injuries affected by both the tariff of damages and the ban on settling claims without medical evidence. It would remove the term “psychological” from the clause, so that the measures in the Bill would apply to all minor injuries related to road traffic accidents, regardless of whether they are psychological or physical in nature. Consequently, this would apply the single-figure tariff to all those injuries, irrespective of number and type, by reference to the duration of the whiplash injury alone. This would result in the reduction of damages for a substantial number of personal injury claims outside the scope of our proposed reforms. The proposed reforms are intended to reduce the number and cost of particular claims—“an industry”, some people have referred to; “a racket”, others have mentioned. We are committed to addressing the issues that arise with whiplash injury.
I understand the point made about the bruised knee. I respond to the noble Lord, Lord Trevethin and Oaksey, on the potential for discrepancies between awards made under the tariff for the whiplash injury itself and awards made for other minor injuries.
Clause 2(8) makes provision for the fact that the court will take into account other minor injuries and will make an award that is not related to the tariff itself. That is my understanding of the words in parentheses: that, in the context of the whiplash injury, regard will be had to the limits imposed by the tariff and the regulations but that, with respect to the other injuries, there will be no such limitation. That is why we do not consider it appropriate to delete the term “psychological” and extend these provisions to all minor injuries. Including minor psychological claims within the original tariff, as the noble Lord, Lord Trevethin and Oaksey, indicated, was done in order to meet the way in which claims develop in this area. Indeed, it is in line with the Judicial College guidelines for personal injury compensation, which indicate that minor psychological injuries such as travel anxiety are not in themselves separate injuries attracting compensation; they have to be linked to physical injury itself.
Turning to Amendment 21, moved by the noble Baroness, Lady Primarolo, if one considers Clause 2(6), persons who are unable to locate treatment for either their physical or psychological injuries are in fact only required to take appropriate steps to seek such treatment. There is no requirement for them to undertake it if it is not available for any number of practical reasons. I would therefore suggest that this amendment is unnecessary in the circumstances.
Baroness Primarolo
Can the Minister explain, then, what the point is of putting a subsection into a Bill that will have no effect, given that we know that psychological and physiotherapy services are under enormous strain and vary around the country? On the point he makes about people just adjusting how they make their claim, surely the answer would be, “We tried and it wasn’t available”. If it is to be a test, should it not be a test that is capable of being judged?
Lord Keen of Elie
With great respect, the relevant text can be judged, because the requirement is that a person should take reasonable steps to secure those services where they are required. If they are not available then that is an answer to the point.
May I move on to Amendments 27A and 49A, on the course of employment? I have to confess that, on this matter, I am inclined to side with the noble Lord, Lord Bassam. It appears to me, with due respect, that there is perhaps a misunderstanding here. If we look at Clause 1(3), we see that it is concerned with a situation in which a person suffers whiplash injury “because of driver negligence”. Whether a person is in the course of their employment or not, if they suffer a whiplash injury because of driver negligence, the third-party driver’s negligence will be responsible for the injury and, therefore, the insurer of the third-party driver will respond. If, on the other hand, the injury is the consequence of the driver himself, then he will have no claim, because you cannot claim in respect of your own negligence. In neither event would there be a legitimate basis for claim against the employer. It is for that reason that we do not consider it necessary to exclude a group to that extent.
Lord Marks of Henley-on-Thames
I am sorry to interrupt the Minister, but is that the point? The point of these amendments, as I understood them, was to exempt those who drive in the course of their employment from the rigour of the new provisions of this Bill when they are claimants, so that the claimant in the course of his employment has a legitimate claim. We may assume it is a legitimate claim because, as the noble Baroness, Lady Berridge, said, it would have to be backed up by the employer’s evidence saying, “This claimant, driving my lorry on a perfectly legitimate delivery, was injured”. It is the claimant who counts, not the defendant.
Lord Keen of Elie
With great respect, if the claimant is driving, his claim will be against the third-party driver whose negligence caused the claim. There is no reason why, in those circumstances, you should distinguish between a claimant who is in the course of his employment and a claimant who is not. They are both liable to suffer the same injury in the same circumstances as a result of the negligence of the same party. The distinction is one without a difference, with great respect. There is no justification for making such a distinction. I recollect discussing this with the noble Baroness, and she talked about the distinction between motor insurance and employers’ liability insurance, but there is no question of the claim being directed against the employer’s liability insurance in such circumstances.
Baroness Berridge
That is not the point that is being made here. I would be grateful if my noble and learned friend could address the question. We are all, I believe, in your Lordships’ House working on the assumption that the target of the Bill is fraud, not genuine claimants. So the specific question is, where is the evidence that people who are claimants when they drive in the course of their employment and are injured by a third party’s negligence—the claim is not against their employer but against the other driver—are fuelling any of the calls or the fraud that is the underlying principle of the Bill? Because that is an injustice.
Lord Keen of Elie
With the greatest respect to my noble friend, there is no basis for distinguishing between the cohort which is driving in the course of employment and the cohort which is not driving in the course of employment when an injury is suffered due to the negligence of a third-party driver. I am not aware of any examination, study or evidence that would seek to distinguish, or of any conceivable basis for distinguishing, between those two cohorts. So, with the greatest respect, I would suggest that it is a distinction without a difference.
Lord Brown of Eaton-under-Heywood (CB)
May I just try to assist—I hope—the noble and learned Lord? The fact that the employer can authenticate that the accident was caused while the driver, the claimant, was acting in the course of employment does not authenticate the fact that he suffered a whiplash injury, and that is the vice that this legislation is designed to attack. Why, in any event, exempt from these provisions that particular class of driver? Why not the man taking his wife to hospital to have a baby, or a whole host of perfectly legitimate drivers? I hope to have helped.
Lord Keen of Elie
I am grateful for the noble and learned Lord’s assistance. In the past his interventions have not always been of assistance, but they certainly are on this occasion. I would go further and suggest that it would make no more sense to exempt people who were driving red cars at the time of the accident. It is a distinction without a difference; it is as simple as that. That is why we do not consider this to be a helpful line of inquiry, and it is not one that we intend to pursue further.
With regard to the other amendments that were spoken to in this group, I have endeavoured to address the points made. I acknowledge the point made by the noble Earl, Lord Kinnoull, and indeed by the noble Lord, Lord Trevethin and Oaksey, about the potential for anomalies where someone suffers a whiplash injury and other forms of injury as a result of the same accident. That is there, and there is no obvious answer to that. Nevertheless, the Bill is structured with the intention of addressing the vice we are really concerned with here and which is generally acknowledged to exist. In these circumstances, I invite noble Lords not to press their amendments.
Belhaj and Boudchar: Litigation Update
(5 years, 11 months ago)
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The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, with the leave of the House I will repeat a Statement made in the other place by my right honourable friend the Attorney-General:
“Mr Speaker, I would like to make a Statement. In 2012, Mr Abdul Hakim Belhaj and his wife, Mrs Fatima Boudchar, brought a claim against the United Kingdom Government and two individuals, the former Foreign Secretary, the right honourable Jack Straw, and Sir Mark Allen, the former director at the Foreign Office. The claimants alleged that the United Kingdom Government were complicit in their abduction, detention and rendition to Libya in 2004 and for the treatment that they suffered at the hands of others. Mrs Boudchar was pregnant at the time.
The claimants’ case, in outline, is that in early 2004 they were detained and forcibly conveyed through a number of jurisdictions by others, ultimately to be handed over to the Libyan regime of which Mr Belhaj was an opponent. During this period, they were subjected to a harrowing ordeal which caused them significant distress. Mrs Boudchar was released from detention in Libya in June 2004, and gave birth shortly afterwards. Mr Belhaj was not released until March 2010.
On 3 May, the claims against Jack Straw and Sir Mark Allen were withdrawn. Today I can announce to this House that, following mediation, the United Kingdom Government have reached a full and final settlement of Mr Belhaj and Mrs Boudchar’s claims. I would like to pay tribute to the constructive way in which Mr Belhaj and Mrs Boudchar have approached the mediation. This has been a long-running and hugely complex piece of litigation which has been difficult for all the individuals involved as parties.
As we have seen in recent years, there remains a considerable international threat to the United Kingdom and our allies and it is important that the Government and the security and intelligence services are able to respond properly to that to keep our country safe, but it is also important that we should act in line with our values and in accordance with the rule of law. That means that, when we get things wrong, it is right and just that we should acknowledge it, compensate those affected and learn lessons. I believe this is such a case.
The settlement of this claim has been agreed out of court. The main elements of the agreement I can report to the House are as follows: first, no admissions of liability have been made by any of the defendants in settling these claims. Secondly, the claimants have now withdrawn their claims against all the defendants. Thirdly, the Government have agreed to pay Mrs Boudchar £500,000; Mr Belhaj did not seek, and has not been given, any compensation. Finally, I have met Mr Belhaj and Mrs Boudchar. Indeed, Mrs Boudchar was present in the Gallery to hear the Statement and the Prime Minister has now written to them both to apologise. I thought it right that I should set out to the House the terms of that apology in full. It reads as follows:
‘The Attorney-General and senior United Kingdom Government officials have heard directly from you both about your detention, rendition and the harrowing experiences you suffered. Your accounts were moving and what happened to you is deeply troubling. It is clear that you were both subjected to appalling treatment and that you suffered greatly, not least the affront to the dignity of Mrs Boudchar, who was pregnant at the time. The United Kingdom Government believe your accounts. Neither of you should have been treated in this way.
The United Kingdom Government’s actions contributed to your detention, rendition and suffering. The United Kingdom Government shared information about you with its international partners. We should have done more to reduce the risk that you would be mistreated. We accept this was a failing on our part.
Later, during your detention in Libya, we sought information about and from you. We wrongly missed opportunities to alleviate your plight: this should not have happened.
On behalf of Her Majesty’s Government, I apologise unreservedly. We are profoundly sorry for the ordeal that you both suffered and our role in it.
The United Kingdom Government has learned many lessons from this period. We should have understood much sooner the unacceptable practices of some of our international partners. And we sincerely regret our failures’.
I hope that the Government’s acknowledgment of these events in these unequivocal terms, and the apology they have each been given, will be of some comfort to Mr Belhaj and Mrs Boudchar. As the Prime Minister observed in her letter to Mr Belhaj and Mrs Boudchar, the Government have learned lessons from this period.
These events took place in the period after the 11 September 2001 attacks, which was one in which we and our international partners were suddenly adapting to a completely new scale and type of threat. It is clear with the benefit of hindsight that the Government, the agencies and their staff were, in some respects, not prepared for the extreme demands suddenly placed on them. The unacceptable practices of some of our international partners should have been understood much sooner.
The Government have enacted reforms to ensure that the problems of the past will not be repeated. We have made it clear that Ministers must be consulted whenever UK personnel involved in a planned operation believe a detainee is at serious risk of mistreatment by a foreign state. We have also improved Parliament’s ability to oversee the actions of the agencies through the Justice and Security Act 2013. The Intelligence and Security Committee is a committee of Parliament, fully independent of the Government. It has a statutory right to review past intelligence operations, and the committee and its staff have direct access to agency papers. These reforms mean that the framework within which the UK now operates is very different from that in the early 2000s.
I end by reiterating that vital work is done to keep us safe and we aspire to the highest ethical standards. When those standards are not met, it is right that we apologise, that we compensate those who have suffered as a result and that we make whatever changes we can to avoid the same thing happening again. This is the approach we have now taken in this case and, as such, I commend this Statement to the House”.
Baroness Chakrabarti (Lab)
My Lords, I am grateful to the Minister for repeating the Statement and am especially grateful to Jeremy Wright, the Attorney-General, for advance sight of it yesterday and, in particular, for his humane handling of this matter.
Mrs Boudchar has been in the Public Gallery of the other place today, and I am sure that the whole of both Houses of Parliament will sympathise with her and Mr Belhaj for having suffered such appalling treatment at the hands of others. What happened to them both is deeply disturbing, not least as Mrs Boudchar was pregnant at the time. I only hope that the settlement of the legal case allows some closure to a terrible set of events in their lives.
The Prime Minister has written to Mr Belhaj and Mrs Boudchar, who is in the Palace today, to apologise for this terrible treatment. She is entirely right to have done so, and to accept—unequivocally and unreservedly—the failings on the part of the UK Government at that time.
I of course agree with the Minister and with the Attorney-General that our security and intelligence services carry out vital work in helping to keep us all safe. But the rule of law must always be respected and must always be the guide of the actions of government. Our security and intelligence services must be properly overseen. When things do go wrong, it is right to acknowledge that in very clear terms, to do what can be done to make recompense, and to learn lessons for the future.
The Attorney-General rightly raised in his Statement problems regarding information sharing, more actions being required to reduce the risk of mistreatment and missed opportunities to alleviate human suffering. We must do all we can to stop this ever happening again.
The relationship between our intelligence and security services and government is now subject to a different framework. That is a welcome step in the right direction. The statutory right of the Intelligence and Security Committee, independent of government, to review past intelligence operations and its direct access to agency papers are important. That Ministers must be consulted whenever UK personnel are involved in a planned operation in which they believe a detainee is at serious risk of mistreatment by another state is absolutely crucial. I appreciate that the Minister is, understandably, limited in what he can say openly today, but I would ask for an assurance that such ministerial consultation will be detailed, considered and informed by as much information as can reasonably be made available to Ministers at the time.
In addition, might the Minister assure your Lordships’ House that we will always be vigilant in ensuring that the framework within which our intelligence and security services operate is robust and is always shaped by our core values: the rule of law, liberty and human rights? After all, it is only behaving to those standards ourselves that allows us to stand up for those values around the world.
Lord Thomas of Gresford (LD)
My Lords, I too am grateful to the Minister for repeating the Attorney-General’s Statement.
On 21 February 2008, this House was concerned with the use of UK facilities and UK airspace by the United States for the purposes of extraordinary rendition. In answer to a Written Question from my right honourable friend Menzies Campbell, now my noble friend Lord Campbell of Pittenweem, assurances had been given by Mr Jack Straw in 2005, and later assurances were given by Mr Blair, the Prime Minister, in 2007, that these events had never occurred—that there had been no extraordinary rendition. A Statement in February 2008 was made by the noble Lord, Lord Malloch-Brown, in this House to the effect that this was incorrect and that extraordinary rendition had taken place through the British territory of Diego Garcia. Perhaps I may crave the House’s indulgence for quoting myself. I said on that occasion:
“We look for a public inquiry, as we have called for several times, which will investigate what extraordinary renditions have taken place not just to European countries but to places where we know that torture takes place—places such as Syria, Egypt, Morocco and Jordan, where it is thought that there are secret holes where United States detainees are held. We cannot be satisfied by assurances given by the Government today on this matter”.—[Official Report, 21/02/08; col. 351.]
Nothing was said in 2008 about the events of 2004—the abduction, detention and rendition to Libya of Mr Belhaj and Mrs Boudchar, who were opponents of the Gaddafi regime and could expect torture and imprisonment.
Today, the Prime Minister’s apology, as we have heard, contains the following:
“The UK Government’s actions contributed to your detention, rendition and suffering”.
We are entitled to know in what specific way. Mr Belhaj’s claim was that MI6 provided information to the CIA which led to his capture in Kuala Lumpur in 2004 and rendition via Bangkok to a Libyan jail. He further claimed that he was interrogated by British intelligence officers during his six years’ imprisonment and during the period of torture that he endured. All this was denied at the time. The Prime Minister says in her letter:
“The UK Government believes your accounts”.
Therefore, I take it that what Mr Belhaj said in his statement of claim is admitted, despite the fact that liability in the case is not admitted.
Another phrase used by the Prime Minister was that she was,
“profoundly sorry for the ordeal”,
of Mr Belhaj and Mrs Boudchar. If that is so, why did this Government try to quash these proceedings and argue a defence of state immunity and “foreign act of state” immunity all the way up to the Supreme Court as recently as January of last year? Do the Government now recognise that these defences must be subject to exceptions where there are violations of fundamental norms of international law and basic human rights, such as the prohibition of torture, which has been recognised in this country since Felton’s case in 1628?
A further point is that the costs of such a series of applications and appeals, which were unsuccessful, have no doubt fallen upon the public purse. What were those costs?
Lord Keen of Elie
I thank the noble Baroness, Lady Chakrabarti, for her observations and the noble Lord, Lord Thomas. As the Statement made clear, more could have been done to prevent the suffering of Mr Belhaj and Mrs Boudchar when the Government shared information with their international partners. Although the Government believed assurances that they sought in good faith about the treatment, with the benefit of hindsight they feel that they could have done more. Furthermore, after the detention of Mr Belhaj and Mrs Boudchar in Libya, it is now clear that the United Kingdom Government missed opportunities to alleviate their plight.
As regards future ministerial scrutiny, of course that will be all that is required to ensure that these events do not repeat themselves. Our vigilance will be clear and robust, and will reflect our core values, as outlined by the noble Baroness.
With regard to the queries from the noble Lord, Lord Thomas of Gresford, I will not make any comment on operational matters, but it is not the case that the Government tried to quash any decision. The case which was raised and which has now been settled without admission of liability raised complex issues of law, and we of course respect the decision of the United Kingdom Supreme Court handed down in January 2017. The costs were incurred by the Government Legal Department and were approximately £3 million.
Lord Hodgson of Astley Abbotts (Con)
My Lords, I should like to draw the House’s attention to the fact that I am an officer of the All-Party Parliamentary Group on Extraordinary Rendition. I am extremely grateful to my noble and learned friend for repeating the Statement and to the Government for having taken the opportunity to draw a line under this very unhappy and unsatisfactory episode. They are to be congratulated on having grasped this particular nettle.
Perhaps I could ask my noble and learned friend to follow up on a couple of loose ends that are still lying around. The first relates to the press release put out by the Crown Prosecution Service on 9 June 2016 when it decided not to proceed with the case against Sir Mark Allen. The press release said that,
“there is sufficient evidence to support the contention that the suspect”—
that is, Sir Mark Allen—
“had … sought political authority for some of his actions albeit not within a formal written process nor in detail which covered all his communications and conduct”.
Will any further probing take place on what that political authority was and who gave it?
Secondly, there has been discussion in the Statement and elsewhere about the question of consolidated guidance and the review of consolidated guidance dealing with interviewing prisoners abroad when they are at risk of torture and ill treatment. There has been discussion about this being reviewed for some months, and tomorrow never seems to come for this. Will the Minister explain where we are with the review of consolidated guidance and when we might expect to see it published?
Lord Keen of Elie
I am obliged to the noble Lord. It is not for me to comment upon a press release from the Crown Prosecution Service, which is, of course, an independent body concerned with the consideration of criminal complaints and cases. Therefore, I cannot add to the comments that were made in that press release.
On the matter of guidance, the current consolidated guidance is from 2010. That sets out the principles consistent with both domestic and international law governing the interviewing of detainees overseas and the passing and receiving of intelligence-related matters and information. At the moment, I am not able to give any indication as to when a review of that guidance will be completed, but it might be informed—apart from anything else—by the work of Parliament’s Intelligence and Security Committee, which is due to publish its detainee report in the near future. In light of that, we will give attention to the 2010 guidance.
Lord Campbell of Pittenweem (LD)
My Lords, I had forgotten that it was a Question asked by me in the other place that initially produced the Answer that no such rendition had taken place. At the time, there was great speculation that airfields other than the principal airfields in the United Kingdom were being used for that purpose. It might help the House if I were to point out that I was subsequently given a public apology by the successor as Foreign Secretary, Mr David Miliband. Even by the standards of the time, what happened in this case was quite extraordinary and unacceptable. The strength of these new arrangements—some of which arose out of recommendations made by the Intelligence and Security Committee, of which I subsequently became a member—will be to ensure that nothing of this kind ever happens again in any circumstances.
On a technical note, I understood the Advocate-General to say—I may have misheard him—that there was no admission of liability when this settlement was made. Having listened very carefully to the terms of the letter written by the Prime Minister, it seems to me that on any view, that might not be a judicial admission of liability but it is most certainly, in the minds of any who hear it, an admission by the Prime Minister that a great wrongdoing was created in this case.
Lord Keen of Elie
As I indicated, the conclusion of the mediation was, among other things, that there was no admission of liability. However, the noble Lord will recognise the concern that the Prime Minister and the Government felt over the events that led to the detention of Mr Belhaj and Mrs Boudchar. I hope that the Prime Minister’s clear apology will speak for itself.
Lord Murphy of Torfaen (Lab)
My Lords, about a decade ago, I had the privilege of chairing the Intelligence and Security Committee, which produced a report on rendition. I assume, therefore, that all of the information that the Minister has given us today in this Chamber, and which the security services and the Government have given to the ISC, comes under a different regime. The committee now has more powers of greater strengths. Will the Minister tell us when the ISC is likely to report on this matter?
Lord Keen of Elie
Clearly, I am not in a position to determine the timing of the ISC report, but my understanding is—and the expectation is—that it will be published later this year.
Lord West of Spithead (Lab)
My Lords, I welcome this Statement: it is very clear in drawing a line under matters. Things have changed since these events happened. I was the Security Minister at the time and when I asked the question about rendition, I was told, as a Minister in the Government, that it was not going on. Does the Minister feel that this could not possibly happen again now because of the changes that have been put in place by a number of noble Lords, when they were in the other place, and by the committees that are in place or does he think that such a thing could happen again, where a tiny cabal of people is able to do something and there is no way of breaking this out?
Lord Keen of Elie
My Lords, I am confident that we have put in place such measures as will ensure that there will be no repetition of this.
Lord Fox (LD)
My Lords, the Statement mentions the unacceptable practices of other countries on several occasions. Can the Minister assure this House that we will not be bent in our moral judgment by the need to kowtow or suck up to other countries, which appears to be one of the reasons that has driven this behaviour in the past? Can he also undertake to make sure that these other countries have been told that we find these practices unacceptable?
Lord Keen of Elie
My Lords, our international partners are well aware of our standards, our belief in the rule of law and our desire to uphold the rights of the individual. They are therefore well aware of our concerns in that area.
Prompt Payment Code
(5 years, 11 months ago)
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Baroness Burt of Solihull
To ask Her Majesty’s Government what is their assessment of the effectiveness of the Prompt Payment Code.
Baroness Burt of Solihull (LD)
My Lords, I am very grateful for the opportunity to raise this issue, which is arguably the biggest threat to small and larger businesses’ ability to thrive in the UK today: late payment. I thank the SEC Group, the FSB and the AAT for their extremely useful briefings.
Much has been said about the demise of Carillion, but many noble Lords may not be aware that Carillion was signed up to the prompt payment code. The code is a voluntary code of practice run by the Chartered Institute of Credit Management with the backing of the Department for Business, Energy and Industrial Strategy. Members promise to pay their suppliers on time, give clear guidance to suppliers and encourage good practice in their supply chains. These members undertake to pay their suppliers within 60 days and work towards adopting 30 days as the norm. Nevertheless, Carillion, like many other companies, was using money belonging to its suppliers to shore up its own cash flow.
There are plenty of ways in which the big suppliers exploit their supply chain today. Long payment periods are, of course, the obvious one; there are others that I do not have time to include here. During 2017, Carillion’s average payment delay was 43 days, and 5% of its contracts took 120 days to be paid. Its collapse left 30,000 small firms unpaid, with creditors only expected to cover less than 7p of every pound that they spent. Most suppliers to Carillion were not insured against it collapsing, and insurers are expected to pay out only about 3% of the total losses.
Why has the prompt payment code not solved some of these issues? Because it is a voluntary code of practice, it has largely failed to protect supply chains from late payment; it needs to be given more teeth. The AAT comments that the code has been undermined by the fact that the signatories to the code basically fall into two categories: those who already took this issue seriously and those who believe that, as it is voluntary, it does not have to be taken seriously. Carillion falls into the second of those categories.
The situation with public sector contracts, through which suppliers are contractually obliged under the Public Contract Regulations 2015, is quite dire. Under these regulations public bodies have a statutory duty to ensure that all subcontracts and sub-subcontracts contain 30-day payment clauses. Needless to say, Carillion did not have these clauses in its contracts and, as far as I know, no one picked it up on it. Unfortunately there is no effective enforcement mechanism under which to complain, except for the anonymous mystery shopper scheme. Even anonymously, in construction most will not complain because of the climate of fear existing in the industry.
However, there is a ray of hope in the form of payment practice reporting. From this April, large businesses must provide details every six months of their standard payment terms, how they resolve payment disputes and the percentage of payments they make within 30 and 60 days. It is naming and shaming and shines the harsh light of reality on what has been going on below the surface for many years. Of those businesses that reported in December 2017, before the statutory requirement to report came into force, only 52% of invoices were paid within 30 days; and nine of the 10 largest companies that reported their practices paid fewer than 10% of their invoices on time. Reporting is beginning to reveal the scale of the problem but we wait to see whether businesses will change their practices as a result of being shamed.
Tangential to the code, but nevertheless crucial, is the issue of retentions. These can be withheld from construction companies for many years and can often get caught up in insolvencies further up the supply chain. It is estimated that Carillion owed about £800 million in retentions alone. The Government have held a consultation on retentions and we look forward to receiving their conclusions—soon, I hope. Perhaps the Minister could indicate how soon.
A practical and realistic option has been presented in Peter Aldous’s Private Member’s Bill, which receives its Second Reading on 15 June. It seeks that when a cash retention is used it should be ring-fenced within a deposit scheme. This will protect it from insolvencies and incorporate a standard payment process, ensuring no unnecessary delays or time-consuming chasing. The Construction (Retention Deposit Schemes) Bill is supported by 120 cross-party MPs and over 350,000 companies. Could the Minister indicate whether the Government are minded to support it?
I recommend to the Minister a number of options that can deter large companies from paying their subcontractors late and protect small businesses when large contractors fail. First, the Government must be prepared to enforce the Public Contract Regulations so that recipients of major government contracts pay their suppliers within 30 days. I welcome the news last month that the Government will exclude suppliers from major government contracts if they cannot demonstrate fair and effective payment practices with their suppliers. However, we have yet to see the detail and I would appreciate the Minister providing more detail on how this will work, either in his response or in writing.
Subcontractors need to have the confidence to speak out, so I welcome the Government’s announcement that they will have greater access to buying authorities to report poor payment performance.
My second recommendation is that the Government should either accept Peter Aldous’s Private Member’s Bill or introduce something similar on retentions.
Thirdly—and, for the construction industry, arguably most importantly—project bank accounts should be introduced for all public sector construction projects over, say, £2 million, which is already the case for Northern Ireland, Scotland and Wales. PBAs could be used to ensure that payments are made within 30 days by holding the funds in a central, ring-fenced bank account. Highways England uses them, and third-tier subcontractors are paid within 18 days of the evaluation of the work under the main contract. No more Carillions would then be able to exploit their supply chain, using their money and pushing them over the financial edge into liquidation.
Finally, the Government should consider how to give the prompt payment code more teeth. Perhaps all listed companies, or those with turnover over a certain amount, could be required to sign up to the prompt payment code. It could levy fines for poor compliance, which could be used to fund its administration and support subcontractors in distress.
Getting paid fairly and on time will always be an issue for some companies, but these four measures combined would make a significant impact on poor payment practices, which would provide a legacy of which this Government could be proud.
Lord Cope of Berkeley (Con)
My Lords, I apologise to the House that I am due to speak in a debate which starts at 2 pm in Grand Committee and I will therefore be unable to stay for the winding-up of this debate. Therefore, in accordance with the customs of the House, I shall withdraw from the debate after confirming my strong support for the actions the Government have taken in this matter and for their latest consultation document about public sector contracts.
Lord Mendelsohn (Lab)
My Lords, I thank the noble Baroness, Lady Burt, for her excellent speech and for securing this debate.
There are two questions at the heart of this issue: do the signatories to the Prompt Payment Code perform better on payment practices than non-signatories; and has the overall picture of late payments been shifted in a positive direction since the establishment of the code?
On the first question, it is hard to make an assessment. The code’s website provides no aggregate data and I can find no detailed reported data. On the website, companies are asked to supply data on how to get paid, and most do; their procurement policy, and some do; and their reported payment information, and I found none that did. Some have put in details under “payment terms comments” which are quite unbelievable. From the random—and undoubtedly totally unrepresentative—sample I looked at, 20% of the companies had written in payment terms of 90 days, which is against the code.
I welcome the new duty to report on payment practices but will the Minister give some indication of how both datasets will relate to each other? There is no evidence available to test the direct impact of the code on the companies that are signatories but public confidence is not evident. The last IoD survey from February this year showed that, as a means of addressing late payments, businesses felt that the Prompt Payment Code did not feature and that kitemarks for best practice as sector-specific codes carried the confidence of only 3% each. No doubt this relates to the performance of some individual signatories, and the example of Carillion is perhaps instructive.
Let me make a sobering point in an attempt to draw a conclusion on performance. In a survey on late payment by MarketInvoice, five of the worst offenders were shown to pay an average of 83% of their invoices late. Three of those—John Lewis, Marks & Spencer and Kingfisher—were and remain signatories of the code.
On the question of whether the bigger picture has improved, the evidence, unfortunately, suggests the opposite. The cost of late payments to SMEs is £40 billion to £50 billion and getting higher. However, I draw your Lordships’ attention to an excellent new index developed by Lloyds Bank called the working capital index. This was created to draw attention to the area of financial operational efficiency in the UK and is soon to publish its third report. It is an account of a variety of missed opportunities but reveals some important points about the problems of payment practices and late payments. It reveals that there is a £680 billion opportunity in the UK to release working capital and that, as a result of payment problems, working capital makes up 25% of net company debt.
The latest data shows that around a third of all invoices are reported as being paid later than agreed terms, and four times as many small firms reported longer payment times from customers compared to larger firms as part of the survey. Why has the code not had the intended impact? Put simply, there is no consequence for non-compliance. Transparency is low, enforcement is piecemeal, accountability is absent and trust in the system has eroded. Checks, investigations, improvements and the role and functioning of the code’s compliance board need to be addressed. Naming and shaming has not worked when you look at any company that has faced such a problem; the example of Debenhams and its terrible performance is instructive.
Companies need to take this seriously. When I first addressed the House on this matter in 2015, when the legislation establishing the Small Business Commissioner was passed, we contacted a number of companies to try to find out how they used the Prompt Payment Code. Not once were we directed to the finance department. Not once when we contacted the finance department did they know that they were members of the code. In every example of the companies we used—also probably unrepresentative—we were directed to either the PR department, the corporate affairs department or the social responsibility department. It was not tied to finance. As a voluntary code, it needs to be tied to the part of the business that pays the bills.
I want to make a few suggestions on how to improve this. First, the code needs to be enhanced operationally. Naming and shaming and expulsion from the code—as the Federation of Small Businesses suggested—should be an absolute minimum for the worst offenders, while we should always find ways to commend the good performers. Secondly, by far the most useful thing would be to link the Government’s initiatives more strategically. The Government should place the code in the office of the excellent Small Business Commissioner, Paul Uppal. He and his brilliant team are doing very well in establishing the right approach and are well placed to make best use of and help with not just the PPC but the payment reporting requirements. I recommend strongly that the Government look into this.
Finally, some strength could be given to the areas where there seems to be a consensus and the Government’s determination to pursue good practice is backed up by a determination to bear down on bad practice. I plan to introduce a Bill on these measures soon and I hope that the Minister can indicate the Government’s willingness to support: in relation to payment practices, outlawing retrospective drops and requiring companies to publicly provide details of charges made to suppliers for storage, marketing or any other deduction or contract term that helps them to change or vary the price of supplied goods; outlawing payment dates of 120 days; dealing with the increasing problem of companies avoiding being taken to account for late payments by reclassifying them as payment disputes, by ensuring that a 30-day limit for resolving payment disputes becomes a part of all relevant sector codes and public sector contracts; and, finally, outlawing the idea that suppliers should be forced to accept giving a company a discount on the agreed price for paying on time.
The current measures employed by the Government are insufficient because there is too strong an economic incentive for cultural change to work. All evidence and economic analysis indicates this. Practices have to change the culture, not the culture change the practices. At the heart of this problem are the asymmetries of power, information, scale and capacity, which work too strongly in favour of late payment, particularly against small businesses. Without a degree of enforcement or compulsion, we can never overcome the legitimate fear for a small business that challenging a larger company will have adverse consequences. If reporting remains a problem, it is unlikely that the Prompt Payment Code will ever be effective.
Lord Aberdare (CB)
My Lords, small businesses play a vital part in our national prosperity and well-being in terms of growth, employment, innovation, entrepreneurship, productivity, exports, apprenticeships and so many of the subjects that concern us in this House, not forgetting Brexit. However, they will not fulfil their potential if they have to spend a large part of their time and energy chasing payments they are owed. According to the Federation of Small Businesses, about a third of payments to SMEs are late and the UK has,
“the worst late payment culture in Europe”.
Having run small businesses myself, I know about the perennial challenge of managing cash flow and the difficulty of coping with late payments and ensuring that salaries get paid; sometimes it requires negotiation of emergency loans or overdrafts, or owners forgoing their salaries or having to make loans. In the worst cases, the business may have to close down, as some 50,000 SMEs do each year.
I congratulate the noble Baroness, Lady Burt, on obtaining this debate and introducing it so powerfully. I also thank the Specialist Engineering Contractors’ Group for the helpful briefing it provided. At the same time, adding some criticism to my congratulations, I apologise to the House for the fact that many of my points have already been made, if not by the noble Baroness then by the noble Lord, Lord Mendelsohn. I will briefly comment on three issues, trying to skate over points that have already been made.
First, the Prompt Payment Code is a laudable attempt to improve SMEs’ chances of being paid within a reasonable timescale, but it does not seem to be working, as we have heard. In 2017, the Government announced that 32 of their biggest suppliers had voluntarily committed to pay 95% of invoices within 60 days and work towards adopting 30 days as the norm. That fact that one of those companies was Carillion, which issued its first profit warning four days later and had payment periods always well over 60 days, rather undermines that commitment. Carillion is by no means the only example of a larger company using funds that in effect belong to its smaller suppliers to meet its own cash needs. Last year, the Government set up the Small Business Commissioner to tackle the problem of late payments. He has made a promising start, but has so far received only 42 complaints, relating to 14 companies, and has commenced full consideration of only two. The message is that a voluntary code will not work, as we have heard. Given the understandable reluctance of SMEs to complain about the larger clients on which they depend, will the Minister consider ways to enable the commissioner to be more proactive in seeking out poor practice and giving him more teeth to enforce his findings—for example, through fines, which I believe the Minister has indicated he would welcome?
Secondly, public sector bodies are covered by the Public Contracts Regulations 2015, under which they have a statutory duty to ensure that all sub-contracts contain 30-day payment clauses. Again, there is no effective enforcement mechanism and most suppliers will not use the mystery shopper scheme. Therefore, these regulations also need beefing up, by requiring monitoring of compliance, mandating the use of project bank accounts—as suggested by the noble Baroness, Lady Burt—or instituting rewards and penalties based on performance in payment practice.
My final issue relates specifically to small firms in the construction sector, which suffer the additional burden of retentions: cash held back from the sums due to them on completing a contract, ostensibly so that the client can ensure that the work has been done properly. There are no codes or regulations that stipulate time limits for the release of these retention moneys; the average time they are held is thought to be about two years but it can be much longer. If the client becomes insolvent, the SME supplier loses the money owed to it completely. Some £700 million of funds has been lost like this over the past three years and the collapse of Carillion alone may have resulted in a similar scale of losses. Because of the uncertainty about when or whether the funds will be paid, the business to which they rightfully belong cannot borrow against them or use them to fund new investment, training or extra employment, thereby contributing to the economy.
This is not just unfair but plain wrong. The Government seem to recognise this but their response so far has been shockingly slow, going back many years. The latest study of the issue, commissioned in 2015, eventually reported last year. A consultation process ended in January and last month’s deadline for a government response has now passed. I echo the noble Baroness’s request for the Minister to indicate when that response will come. Apparently, the Government are seeking an approach with broad support and wish to avoid any potential negative economic consequences, but there is never likely to be much consensus between businesses whose funds are being withheld and those that are withholding them. The actual negative consequences for businesses deprived of funds that they have earned are plain to see.
The long-term solution may be a complete ban on retentions, but that will involve a major change of long-standing culture and behaviour in the construction sector and will take time. Something much more immediate is needed to ensure that funds owed to small businesses are properly protected, and soon. There is no shortage of possible approaches. We have heard about the tenancy deposit scheme in the rental housing sector. Others include the insurance-backed scheme in the lift industry—which has worked well for 17 years—or a guarantee-based scheme. Potential providers have indicated their willingness to offer or run such schemes. I also echo the support for the Private Member’s Bill introduced in the other place, the Construction (Retention Deposit Schemes) Bill, which has its Second Reading next month. That would require all cash retentions to be ring-fenced. The Minister made mildly encouraging noises about possible government support for this when he answered an Oral Question from me about retentions in February.
I end, therefore, by asking the Minister some further questions. What plans does he have to protect from loss retention money owed to small firms? How soon does he aim to have this protection in place, given the urgency of the need? Finally, will the Minister consider using the Aldous Bill as a vehicle to bring about the changes needed in the timescale needed?
Denying small firms funds that they have earned is not just unfair: it is a disgrace that is damaging to the positive impact they can make for the UK. The Government seem to recognise the problem. Other countries have already tackled it. It is high time that we did the same.
Lord Palmer of Childs Hill (LD)
My Lords, forgive me for my hoarse voice. I thank the noble Baroness, Lady Burt, for introducing this debate and—I do not have to thank too many people—the noble Lords, Lord Mendelsohn and Lord Aberdare, for their incredibly detailed contributions. As the noble Lord, Lord Aberdare, rightly said, it is very difficult not to repeat, to some degree, what has already been said.
My noble friend Lady Burt quite rightly pointed to Carillion. The effectiveness of the Prompt Payment Code is clearly seen in its collapse. Carillion was an early signatory to the code but prior to collapse had been exposed as making creditors wait 120 days to be paid. It is often small businesses that suffer most. The Government should mandate that all FTSE 350 companies sign up to a stronger code with a new “three strikes and you’re out” rule—something that many bodies have mentioned. This would target repeat offenders. At least the penalty would strip them of the right to be awarded government contracts, and it could be even harsher than that. Will the Minister detail how the Government feel that the “three strikes and you’re out” rule could be implemented, and what the penalties and the enforcement procedure would be?
During my preparations for this debate, many helpful points have been made from within the industry. I am sure that these points have also been made to other speakers. Late means late—that is, paying after a previously agreed date between two or more parties. It does not mean extended—extended payment is also late. Bills ought to be settled promptly, in full, to agreed terms and free of unnecessary charges. Small firms cannot be expected to lend interest-free to big companies.
Many firms view the Prompt Payment Code as toothless. It cannot be right that firms whose default position is 60-plus days can sign the code. It is the Prompt Payment Code, not the extended payment code. There is no obligation on signatories to pass on favourable terms they receive to sub-contractors or merchants.
Moreover, too many invoices are disputed or overlooked: “Oh, we never received your invoice. I’m sorry but you’ll have to wait for the next round for it to be seen”. An invoice can be disputed because it has a typing error: “I’m afraid it has to go back to the end of the pile. And by the way, we only settle our bills on the 7th of the month. You’ll have to wait for the next 7th of the month”. This is normal practice, and completely wrong according to the code. The date of the invoice ought to start the clock, not the date received. What, furthermore, is a “disputed” invoice? Something has to be put into legislation to describe what would be a disputed invoice that could delay payment.
One-sided changes in payment terms and conditions, or the length of time taken to settle invoices, are often a sign of cash-flow or other financial problems. Delays by big companies can cause SMEs cash-flow problems and take too much time and effort on the part of the creditor to chase debtors.
Previous attempts to eradicate bad practice by voluntary approaches have floundered. The scourge of late or non-payment is a long-standing issue that cannot be tolerated. The trend by some businesses to move to 120 days as a default position has to be confronted. Until settlement of bills becomes elevated to a board-level responsibility, late payment will persist. Those noble Lords who have been in business, or, as I was, practising as a chartered accountant, know what happens in reality. The very large client, which you treasure, has built up a debt to you of many thousands of pounds—I talk from bitter experience. At a certain date in the month that valued client will make a payment on account—a round sum. “Here’s £1,000, £2,000, £10,000” or whatever it is, they will say, at the same time as initiating new work—and the debt to you goes up. This is the bullying practice of the large client towards the companies that service it.
The Small Business Commissioner should focus on poor payment practice issues, including the more subtle forms of bullying such as the one I have just described. The commissioner’s “name and shame” powers—they have briefly been referred to—should be used more obviously. If they are to be named and shamed, let us broadcast the fact and say that you should not be dealing with Carillion, or whichever firm it is, because they do not treat you properly. The powers should focus on serious instances of supply chain bullying. If you supply goods or services to a large organisation you do not want to risk losing the work, so the practice continues.
The word used in the heading of this debate is “code”—the Prompt Payment Code. I am afraid that codes are obeyed by ladies, gentlemen and boy scouts. They are not obeyed by anybody else. We must put some teeth into this legislation.
Lord Stevenson of Balmacara (Lab)
My Lords, I was never in the boy scouts so I lost that last metaphor, but I understand where it comes from. We owe a great debt of thanks to the noble Baroness, Lady Burt, for raising this issue again—it has been discussed before—and doing so in contemporary terms by bringing us up to date with some of the issues of recent years. We have had some very good speeches. We have lost the noble Lord, Lord Cope: in that respect we have lost the little group of aficionados that was here for the Enterprise Bill in 2016 and covered this and related topics a number of times. It was very good to hear some of those tropes repeated today.
The general theme of those noble Lords who have spoken today is that while there have been welcome improvements in what the Government have been doing to help the problem of late payments, the current approach is not going to work. The central thrust is to change the culture and to believe that that will lead to a significant and speedy change in what has become current business practice. Using a code is not really the way forward—it is not even statutory and is not operated by the Government but through a franchise by a non-statutory body.
We supported the measures in the Enterprise Act 2016 that required large unlisted companies to publish information about payment performance and practices—strengthening the Prompt Payment Code in that respect—but we do not think that the situation today is satisfactory and we want big changes. The model that we had in mind for the Small Business Commissioner was the system used in Australia, where that post can operate in a way that causes things to happen, including fines. We do not understand why the Government do not want to take that forward.
Is funding a major problem? We have heard from many speakers that there are significant problems. I am not sure of the figures but we reckon that between £50 billion and £60 billion is tied up by the way companies have to deal with late payments.
On top of that there are two problems. The code itself is pretty good in terms of what it says, but the behaviour by companies, whether or not they are signed up to the code, has been egregious. We have had examples in recent debates about Diageo, the owner of Guinness and Johnnie Walker, which simply informed its suppliers that it was extending its payment terms from 60 to 90 days. AB InBev, owner of Budweiser, Stella and Boddingtons, has extended its terms of payment to 120 days. Heinz has doubled its payment terms from 45 to 97 days. The list goes on: it includes Monsoon, GlaxoSmithKline and Debenhams, to name just a few. It is a common theme. It is of course a perfectly logical response to difficulties within the marketplace. These companies put a squeeze on their suppliers to accumulate as much cash as they can. They also do it because they can and, in some sense, that is bullying.
All this comes out in the wash when we look at Carillion. The Carillion crisis has exposed how absolutely toothless the Prompt Payment Code really is. Despite being a signatory to the PPC since 2013 Carillion, as we have heard, was notorious for being a late payer. According to the FSB, it regularly required its suppliers to wait 120 days to be paid. I do not think there is any doubt that there is a problem.
The question is: is the code robust enough in itself? First, it is not very extensively used. We may get warm words about the numbers of signatories—I think it is nearly 2,000, which sounds a lot—but we are talking about a totality of companies and organisations vastly in excess of that: 32,000 mid-sized companies and 200,000 smaller companies. If we add micro-businesses, which are also eligible to come under the code, we are probably talking about 5 million or 6 million companies. Out of that number—perhaps 6 million or 7 million companies—we have 1,700 signatures. The code is not a successful or effective way of trying to change the culture. Secondly, the objective of the code is to ensure that there is a gold standard for how people should behave but if it is just a gold standard to aspire to, it obviously means that others will not meet that standard and therefore be excluded, so the culture will not be transformed in the way we are talking about.
We do not have what is required in the marketplace, so what are the proposals? I would like to add a couple to those we have heard of today. First, the Prompt Payment Code should be put on a statutory basis and it should not be franchised out but operated by the department concerned. Secondly, we need to look again at the link between the Prompt Payment Code and the Public Contracts Regulations, which have been mentioned by other speakers, and make sure that it actually works. Since the regulations are quite appropriate in requiring payment within 30 days and enforcing that throughout the value chain of the contracts concerned, there are real penalties which follow from non-conformance with it. It should not be possible for people to be reappointed to government contracts if they are clearly not fulfilling the requirements under the Public Contracts Regulations.
Thirdly, the retention scheme has been mentioned. The noble Baroness, Lady Burt, suggested a model for setting up escrow accounts or public bank accounts to prevent the problem that happened with Carillion; money which should have been passed over ages ago to small contractors and others involved gets lost in a bankruptcy. This is already happening in Scotland, Wales and Northern Ireland—it is England that is behind. Surely the Government must now take action on this matter. We have heard about the consultation and the reporting cycle has now finished. Where is the action that will follow from that?
Fourthly, the sorts of powers we are thinking about for the Prompt Payment Code are already to be found in other areas of government activity. For instance, the groceries code gives powers to the Groceries Code Adjudicator to fine companies which are in breach of that code 1% of their turnover. Why is that power not given to the Small Business Commissioner, who I am sure would jump at the chance to level what he finds on the ground from the information flowing to him with the action that he needs to take? If we are not getting progress there, why are we not outlawing discounts by companies which attempt to take a cut when they make a payment within the normal rules? If there is a continuing problem, why does an automatic interest rate penalty not kick in at the Bank of England rate plus, say, 10%? I am sure that for any financier who is involved in trying to work out how to pay their bills, the prospect of having that bill increased by 10% if it is not paid within a certain time would focus their attention.
The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (Lord Henley) (Con)
My Lords, I am grateful to the noble Baroness, Lady Burt, for securing this debate and for all the expertise and advice that has come from all other noble Lords who have spoken in it. I think particularly of the noble Lord, Lord Palmer of Childs Hill, and his account of some of the bullying practices used by some of the larger clients. I heard his desire that we should be not just naming and shaming but actively broadcasting the behaviour of some payers. These matters can certainly all be taken into account in the various consultations and decisions that we have to make in the future. As I said, I am grateful to all noble Lords for speaking, but I am sorry that we have lost my noble friend Lord Cope, who felt that he must be dragged away for another debate. I well understand that it was right that he should not speak if he was speaking in another debate.
As I hope to set out, we are actively taking steps to make the United Kingdom’s payment culture fairer while simultaneously providing a base of support for all our small and medium-sized businesses, which are the backbone of our economy. It is right that I should start with remarks about the Prompt Payment Code, the voluntary attempt by which the Government started the process of trying to ensure that companies should lead by example in paying their suppliers promptly and fairly. I am a great believer, as the Government are, in always trying a voluntary approach as a first step. We should not make a point of rushing into legislation but there are occasions, and enough examples have been given to me by all noble Lords in this debate, where the behaviour of certain companies—that of Carillion has been highlighted—leads us to a view that further action possibly needs to be taken. That will be considered and I hope I can set out just how we are going to consider all that.
However, I certainly take on board, for example, everything that the noble Lord, Lord Mendelsohn, said about these matters and what we ought to do in this field. I will certainly look at his Bill when he introduces it in due course; I cannot comment on it in advance of that, just as I would not want to comment in advance on what our attitude is to my honourable friend Mr Peter Aldous’s Bill. But any measure that is introduced to address the unjustified late payment or non-payment of retentions needs to be simple, consistent and transparent. It is premature to commit on those things but we will consider them in due course, as we will consider all the points that noble Lords have made.
I am grateful to the noble Baroness, Lady Burt, for highlighting the fact that there was Carillion. I rather expected that she would raise it and that if she did not, the next speaker would—and if not the next, then another. In fact, I think that nearly every speaker raised it.
Baroness Burt of Solihull
I am conscious of the fact that I talked quite a lot about Carillion. I restrained myself from naming and shaming any companies that are currently working still but there are plenty more that could have come under the aegis of this debate.
Lord Henley
The noble Baroness knows that she has considerable freedoms in what she can say in this House because of the various protections that she has. Perhaps she ought to take advice from her noble friend Lord Palmer of Childs Hill about not necessarily naming and shaming but broadcasting these points. I merely make that offer to her. My point was that I was pretty sure that Carillion would be mentioned because when one has a code of this sort, it is rather embarrassing that a large company which the Government have made use of, even if it no longer exists, quite obviously signed up to that code without—I will be polite—thinking about the consequences of what it had signed up to.
The fact is that we have a code and it performs a function. We should think about that function and not necessarily completely dismiss it as it is. We know that signatories to that code must pay 95% of invoices within 60 days, in all but exceptional circumstances, and work towards 30-day payment terms as the norm.
In recent years we have strengthened that code and all the Government’s strategic suppliers have signed up to it, as well as some of the UK’s largest businesses. That represents the 2,000 signatories that the noble Lord mentioned; as I understand it, that includes most of those that the Government deal with. This is an important step in moving towards a gold standard across the largest businesses in the United Kingdom, and I hope it will assist us in getting into the position that the noble Lord, Lord Aberdare, talked about, in being in a better state than other countries. If a business believes a signatory is not complying with the code it can challenge its status, and the compliance board will take that into account. I think that I have dealt with the point that the noble Baroness made about Carillion.
The Chartered Institute of Credit Management, which administers the code on behalf of the department, works with all the signatories and challengers to recover payment debt and educate businesses of all sizes on the importance of good credit management and a positive payment culture. The principles of the code are effective only if taken seriously both by signatories and by the suppliers of signatories, which is why we are now exploring how the code can be strengthened and enforced. The noble Lord, Lord Stevenson, and others were looking for more teeth. That is why we will be inviting views on this, as well as on wider payment matters, within the forthcoming call for evidence on unfair payment practices. The code is an important tool for setting best practice, but it is just one of the measures that the Government are using to promote fair payment.
In April last year we introduced a statutory duty for the UK’s largest businesses to report on their payment practices, policies and performance so as to increase transparency and provide small business suppliers with better information about those they intend to trade with. So far some 1,500 reports have been submitted on GOV.UK, and can be accessed easily by the public. Small business suppliers, journalists, academics and others can use that data to compare and contrast, and to hold large businesses to account for their payment practices.
As the noble Baroness and the noble Lord, Lord Aberdare, will be aware, we launched the Small Business Commissioner in December last year, following the appointment of Paul Uppal in October. I realise that the noble Lord, Lord Mendelsohn, had a debate on this subject in January, and I think I am right in saying that he has visited Paul Uppal and discussed these matters. Mr Uppal has an important role in supporting small businesses to resolve payment disputes with larger businesses, providing advice, and helping to bring about a culture change in payment practices and how businesses deal with each other.
The commissioner considers complaints by small businesses against their larger clients, but we also encourage businesses to report poor payment practice and cases of late payment in public sector contracts, including late payment through the supply chain, to the Cabinet Office’s mystery shopper service to investigate. I think that it was the noble Lord, Lord Aberdare, who referred to that. That service provides a further route for suppliers to raise concerns about public sector procurement issues, including payments. It works closely with all public sector contracting authorities to broker a resolution to cases, and makes recommendations to improve procurement. I can assure the noble Lord that the mystery shopper service has handled some 1,300 cases since it was established in 2011, and is widely used by small businesses.
The Government are alert to the specific difficulties, particularly in certain sectors: construction has been named. In October last year my department published two consultations on payment practices within the construction sector. We are actively considering the responses and options for future policy. We are also consulting on how we should exclude suppliers from major government procurements if they cannot demonstrate fair and effective payment practices with their subcontractors. The consultation, to which I believe the noble Baroness, Lady Burt, referred, will close early next month, on 5 June. The noble Baroness asked in her usual optimistic manner when we would respond to it, and I will give the usual response: we will respond shortly. I want to make it clear that we will consider the responses very carefully, and will respond in due course.
We believe that the voluntary approach is a good one, but sometimes it does not work as it should. The recent collapse of Carillion has shown there is still more that needs to be done to protect small businesses. It is with this in mind that a call for evidence is being launched by my department on how we can eliminate the continuing problem of unfair payment. The call for evidence will build on the Government’s existing late payment policies to drive an end to all the unfair payment practices that the noble Lord, Lord Palmer, highlighted when he talked about invoices and cheques being “in the post”, or getting lost in the post, or whatever.
All the steps I am announcing amount to a package of measures that will ultimately strengthen, as we need to, support for small and medium-sized enterprises. It is important, as we all agree, to do what we can to enable them to grow and create jobs by providing an environment in which they can flourish. I am grateful, as are the Government, for all the suggestions from those who have taken part in this short debate. Those suggestions too will be fed into the process. I hope that I have answered all the questions—or at least, I cannot answer them all, because these are matters that need to be considered. What I can say is that we accept that the voluntary approach is the right one to pursue, but it does not always get quite as far as it might, and there may be occasions when we have to look into taking things further in the future. I hope that that deals with all the points that have been made, so I will end my speech.
Civil Liability Bill [HL]
Thursday 10th May 2018
(5 years, 11 months ago)
Lords ChamberRead Full debate Civil Liability Act 2018 View all Civil Liability Act 2018 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 90-I(b) Amendments for Committee, supplementary to the marshalled list (PDF, 54KB) - (10 May 2018)
Lord McKenzie of Luton
“( ) Regulations may be informed by a review from time to time of relevant changes in motor vehicle technology and driving techniques.”
Lord McKenzie of Luton (Lab)
My Lords, this is a step back from the legal intricacies of the Bill to reflect on a wider issue. The problem that the Government identify is the high number and cost of RTA whiplash claims. Their policy objective and intended effect are to disincentivise minor exaggerated and fraudulent claims—that is, to bear down on costs by reducing compensation levels for all, and requiring medical evidence before claims are settled. The impact assessment records that the volume of RTA-related PI claims has remained fairly static over the last three years, with rising volumes of traffic, meaning that there are proportionately fewer fatal or serious accidents. It attributes this in part to improvement in vehicle design—for example, integrated seats and headrests. Yet the Department for Transport recorded, for the year ended September 2017, 27,000 killed or seriously injured, with 174,000 casualties of all severities.
Although there was a decrease in settled claims, attributable in part to LASPO reforms, financially settled soft tissue claims for that year totalled some 520,000, whether they were from whiplash or as a result of other road traffic accidents. What seems to be missing in this debate is any form of focus on a wider prevention agenda. It should be about not only reducing costs but avoiding the pain and suffering and sometimes life-changing injuries in the first place. Why are we not raging against the scale of all this, as well as chipping away at monetary compensation levels?
I should point out at this juncture my interest, set out in the register, as president of RoSPA, the safety charity, and am grateful to it for the information it provided. I shall instance just two developments which have the potential to make a difference. In-vehicle monitoring—telematics—is increasingly available in the UK. As noble Lords may be aware, these systems essentially monitor how, when and where a vehicle is driven. The system can provide in-vehicle alerts if pre-set parameters are exceeded. There are obvious benefits for crash reduction circumstances. At present, it is understood that take-up of a variety of different systems is ad hoc and the catalyst, particularly for younger drivers, is reduced insurance premiums. Would not a comprehensive national take-up campaign have a beneficial effect on the real reduction of whiplash, reducing not only costs but the actual medical effects and suffering?
It is understood that next week the European Commission will propose new regulations that will focus on the mandatory fitting of autonomous emergency breaking systems. It has been estimated by the EU new car assessment programme that AEB can prevent up to 38% of rear-end crashes and avoid 1,100 fatalities and 120,000 casualties over the next 10 years. Currently, about 21% of new cars fit AEB as standard. I hesitate to move into issues of the European Commission, but will the Government support those regulations, both before and after Brexit, if that is where we end up?
I am aware that this amendment may be seen as a bit away from the mainstream before us today, but I hold to my point that concerns over levels of compensation for whiplash should be about prevention as much as about having a fair and robust system of compensation. I beg to move.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
I thank the noble Lord for his contribution to the debate and I acknowledge the importance of looking more widely at issues such as road safety in the context of addressing the very issue that this Bill is intended to deal with.
On the question of the European Union regulations, in so far as they have direct effect before exit day, they will form part of retained EU law, and in so far as they do not have direct effect by that date, they will not form part of retained EU law. Going forward, it will be for our domestic legislatures to consider the appropriate steps to take with regard to such measures, and of course they will be conscious of developments in other jurisdictions when addressing that point. I am sorry to revert to an earlier Bill and its progress through this House, but I thought that I ought to address that point directly.
We recognise that the definition of whiplash injury is complex and that there is a need to reconcile the current legal understanding with an accurate medical definition that covers both injuries and symptoms. That is why we developed the definition of a whiplash injury, and the wider reform proposals, with extensive input from expert stakeholders, including medical experts, in order that we could come to a view about the appropriate definition for these purposes. In developing the whiplash reforms, we have considered the impact of improvements in vehicle safety. Indeed, developments in vehicle safety have been one of the features of the analysis and impact assessment that have been carried out. As the Government have mentioned on several occasions, it is surprising that the number of whiplash claims continues to be so high despite the significant improvements in vehicle safety over recent years, including the development of safe seats and head restraints which have had such a material bearing on safety in road traffic cases.
The amendment would enable the Government to take account of advances in vehicle safety and driving techniques when revising the definition in regulations. The noble Lord did not go so far as to incorporate the possibility of increasing numbers of driverless vehicles—but, looking further ahead, that is an additional development that we may have to take into consideration. It is crucial that we retain the ability to continue to amend the definition of whiplash in order to reflect all these developments, some of which may come along far more rapidly than we presently anticipate. That is why in the first instance we propose that the definition should be set out in regulations that can be amended and, in any event, allowing for the suggestion that there should be a more extensive definition in the Bill, it would be essential that there should be the means to amend that definition rapidly in response to changing conditions, and to do so by way of regulations.
Lord McKenzie of Luton
My Lords, I am grateful to the Minister for a very comprehensive reply. I should say that looking to deal with the definition in the amendment was pretty much a peg on which to raise the issue that I did. The Minister prompted me on driverless vehicles. As it happens, I had half an ear to the television set in my office yesterday when I was drafting some of this, so I caught up on that debate. It certainly should feature in the future.
There is a broader issue here—I accept it is not for this Bill—about whether we could make a dramatic improvement to some of the casualty numbers by a comprehensive effort, particularly around some of the black box technologies. The insurance companies bear some of the costs of that at the moment. It may be that they should be asked to do more. What I am looking for here is a thorough, comprehensive focus. If we had the same intensity of focus on dealing with road traffic accidents that we have—dare I say?—on Europe, we might have made a real difference already. Having said that, I am grateful to the Minister for his response and beg leave to withdraw the amendment.
Lord Sharkey
Lord Sharkey (LD)
My Lords, the long string of amendments in my name and that of my noble friend Lord Marks has a very simple purpose: to enable us to debate the proposed tariff and, in particular, two different types of tariff. The first, essentially contained in Amendment 11, is a tariff based on the Judicial College Guidelines. The second is a fixed, specified and structured tariff. This is essentially contained in Amendment 96, where the amounts are place-holders based on the average of awards actually made. Before I discuss either of these variations, I should again mention the Delegated Powers Committee recommendation that,
“it would be an inappropriate delegation of power for damages for whiplash injury to be set in a tariff made by Ministerial regulations rather than on the face of the Bill”,
and that the tariff,
“should be set out on the face of the Bill, albeit amendable by affirmative statutory instrument”.
At Second Reading, the Minister noted this recommendation and responded by saying:
“We consider that being able to regulate the tariff by the affirmative procedure is a more flexible way of being able to respond to changes”.—[Official Report, 24/4/18; col. 1531.]
That is precisely what the DPRRC proposed should happen after first setting out the tariff in the Bill. I hope that when the Minister responds, he will give a fuller answer as to why he believes that the tariff should not be in the Bill but should be fixed by an unamendable statutory instrument.
I turn to the question of the tariff itself. Should damages remain determined by application of the Judicial College Guidelines, or should they be fixed amounts? If fixed amounts, what should those be? These questions go to the heart of the matter. If we stay with the Judicial College Guidelines, the system would be relatively unchanged, although we could reduce awards for injuries of less than three months’ duration if, for example, we thought that that was where fraudulent claims were concentrated. If we move away from the Judicial College Guidelines to the example tariff contained in the impact assessment or to the tariff published yesterday by the Government, there will be very profound changes. The tariff published yesterday is even lower—by about 4.7%—than the example tariff on page 26 of the impact assessment. It would be interesting to know how these tariff levels were arrived at and what objectives were used in deriving them. For example, was there a target reduction in the cost of total damages awarded? If so, on what basis was this target chosen? Can the Minister explain the basis of the construction of the tariff amounts and tell us whether there was indeed a target for overall damage reduction?
Whatever method was used to devise the Government’s proposed tariff levels, in either the example tariff or yesterday’s tariff, both would have a very large effect. These new tariffs would transfer £1 billion away from claimants, via insurers, wholly or partially to motorists in the form of reduced premiums. That is a very large transfer. It is made up of £240 million in claims that would no longer proceed under the new tariff—assumed to be around 133,000—£550 million because of the reduced awards for every successful claimant, and £190 million from insurers no longer picking up legal fees and VAT. On the way, and as a consequence of this transfer, the general taxpayer would be hit for £140 million by reduced revenue from IPT and some loss of revenue to the NHS. If the Government’s tariff levels are applied, there will be, they calculate, a lot fewer claimants and, it is to be hoped, fewer fraudulent claimants, deterred as they might be by the banning of no-med settlements and very low tariff awards. This means that those successful claimants remaining will carry the burden of this transfer. Claimants will be £1 billion worse off; motorists will be £1 billion better off. What is the Government’s justification for such a massive transfer of funds? There are two questions to answer. First, what is the evidence base that justifies any transfer? Secondly, why this amount? Why such a very large reduction in amounts awarded to claimants? Why not a smaller reduction—or, for that matter, a larger one? What is the justification for this level of transfer?
In the impact assessment and in the Minister’s speeches at Second Reading, it was clear that some care had been taken to avoid using fraudulent claims as the main reason for the proposed changes. However, I note that today the Minister seems clear that this is in fact the main driver. As we noted at Second Reading, claims about the incidence of fraud are highly contested. Is there in fact a reasonable and properly evidenced consensus about the extent or cost of fraudulent or exaggerated claims? I worry that there is not.
There are certainly competing claims from all the many vested interests involved, including the insurance industry, but no independent assessment to help us reach an evidenced view. The Government more or less recognised this when they set out in the impact assessment the principal justifications for the proposed changes. They were all economic and based on a need they saw to correct three alleged market failures. The first failure—if you can really call it that—was asymmetric information. Only a victim could really know the extent and duration of the pain and suffering caused by whiplash, and the Government see this as an incentive to fraudulent or exaggerated claims. So it may be, but we do not seem to know how many or to what extent. But punishing all genuine whiplash claimants by hugely reducing their awards is surely not a reasonable remedy. Why punish these people and reward motorists for an unquantifiable, or at least unquantified, number of fraudulent or exaggerated claims?
The second market failure is alleged to be that of perverse incentives. This refers to legal fees. The Government claim that if legal fees were not recoverable or were less recoverable, this would bring down the number of claims. So it might, but would this be reasonable? In any case, this alleged saving is by no means the major element in the transfer of funds away from claimants.
The third alleged market failure is that of insurance companies settling claims without proof of injury. Here, there is obviously a genuine market failure, and I am very glad to see the Bill banning this practice. However, nowhere in the impact assessment’s justifications for action is there any reference to the huge transfer—over £500 million—that is brought about simply by the introduction of much lower awards for all claimants. Again, what is the evidence base for such a reduction?
The Government’s proposed tariff is significantly lower than the current actual awards in every duration band. For injuries lasting up to three months, current awards average £1,800; the Government propose £225. For injuries lasting between three and six months, current awards average £2,250; the Government propose £450. That carries on all the way up the duration scale. This all looks like an arbitrary and huge transfer of money from claimants to motorists via insurance companies. The Government have given no justification for the scale of this transfer and no explanation why claimants should be so punished and motorists so rewarded. I imagine that we will hear such claims as, “It is generally accepted that claim levels are too high”. This is not a sound basis for policy decisions, certainly not involving huge transfers of funding on this scale, which also create very serious anomalies.
As we pointed out at Second Reading, an injury of 24 months’ duration identical in its effects, if suffered at work, would attract up to £6,500. For whiplash, the Government would restrict you to £3,725. If the Government want a fixed tariff, as they clearly do, then they should put this tariff in the Bill, so that we have the opportunity to amend it. As importantly, they must justify this £1 billion transfer from claimants to motorists. They must explain why all claimants for whiplash should suffer and all motorists benefit.
The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)
My Lords, if this amendment is agreed to, Amendments 12 to 22 inclusive cannot be called by reason of pre-emption.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, I understand that the clear purpose of Part 1 of the Bill is to discourage false claims for whiplash injuries in road traffic accidents. The proposed method, besides wisely insisting henceforth on medical reports, is essentially by substantially reducing the damages recoverable in such claims to, as the noble Lord, Lord Sharkey, has just explained in some detail, figures well below those that are suggested in the 14th edition of the Judicial College guidelines, based as they are on typical court awards for such injuries.
The real question raised here is whether it is right to create especially low awards and, if so, how much lower than the norm for this particular injury suffered in this particular way specifically because disproportionate numbers of this sort of claims are likely to be false, not least because it is highly subjective and very difficult to establish objectively the reliability of the complaints. These are essentially political questions. It may be addressing the next group of amendments to say that it would make no sense whatever to involve the judiciary in answering these political policy questions. We know what the courts regard as the appropriate levels; we have those from the Judicial College guidelines.
As to what the political answer is to the precise level of damages proposed and whether or not it should be on the face of the Bill, I am essentially agnostic—although if anything I would favour that it should be. What rather surprises me is that, as I understand it, none of the amendments to the Bill is designed to challenge the whole Part 1 approach, which inevitably involves discrimination against those genuinely claiming for whiplash injuries in this context. Is the problem, one may ask, despite a number of improvements in the overall legal landscape over recent years—and indeed, no doubt consequentially, some reduction in the level of these claims—really bad enough to justify that whole approach? That does not seem to be squarely addressed in any of the amendments.
That said, I would add that I am in broad agreement with the whole idea of tariffs for injuries, certainly for lesser injuries, and indeed even of reducing awards in respect of a number of these lesser injuries. When I used to practise in this area decades ago, I used to think even then that lesser injuries were altogether too generously compensated, certainly in comparison to the graver injuries, which were not. Tariffs promote certainty and predictability, although of course always at the cost of some flexibility. That very predictability and certainty cuts down the enormous expense, the worry, the concern, the delay and the hassle of litigating expensively—as it invariably is—in this field. Indeed, that is also the effect of raising the small claims tribunal limits. I therefore also tend to support that to some degree in respect of these lesser injuries.
Overall, one must recognise that this is par excellence a policy issue, and it is for the Crown to justify Part 1 in the way that I have indicated. Part 2 raises very different questions, and to that I give my total support.
Lord Faulks (Con)
The amendment tabled by the noble Lords, Lord Sharkey and Lord Marks, seems at least to question the underlying premise behind these reforms. I respectfully suggest that the Government have established the premise. The Minister set out the Government’s case, as it were, at Second Reading, and the statistics seem to lead ineluctably to the conclusion that there is widespread abuse of the whole whiplash claims system. The solution, though it is inevitably somewhat rough and ready, is that there should in effect be a reduction in what claimants might have been able to claim under the system that currently obtains, although that is in relation only to damages for pain, suffering and loss of amenity and excludes loss of earnings or any other consequential losses. It is a reduction but a fairly modest one and we are speaking of injuries at the lower end of the scale, although I do not downplay the discomfort that can follow from whiplash injuries. However, the purpose behind the reforms is surely, first, to provide certainty and, secondly, to make the awards reasonably modest so as to provide less of an incentive for those who would seek to make fraudulent claims. That, combined with the ban on medical officers, should fulfil what is, as the noble and learned Lord rightly says, essentially a policy decision.
In effect, the losers about whom we should be concerned are those genuine claimants, as opposed to the many who are not genuine, who I accept will get a lesser sum than they would otherwise have obtained. In the round, though, I suggest that this is a sensible policy decision. The House may have in mind that when these reforms were initially trailed by the then Chancellor of the Exchequer George Osborne—and it came from the Treasury rather than the Ministry of Justice—the suggestion was that there would be no damages at all for whiplash injuries. This is a modification of that change, and of course there is the right of the judges to have an uplift in circumstances that we may be exploring later. Still, I suggest that it would be a mistake to pass these matters back to the judges. The Judicial College guidelines are in fact an extrapolation from individual cases decided by judges. They then, as it were, create a form of certainty, although they are variable according to individual cases.
I think the Government have made a case. They have to grasp the nettle, and they have done so in this case.
The Earl of Kinnoull (CB)
My Lords, I congratulate the noble Lords, Lord Sharkey and Lord Marks, for framing a good debate in this important area, and I thank the noble Lord, Lord Sharkey, for his very clear opening remarks. There seem to be three issues here: first, who should set the tariff; secondly, where it should be set out; and, thirdly, how it should be amended.
I regard the tariff as being very much a political matter. The problem that we are trying to cope with is a widespread low-level fraud that is afflicting our country. It is easy money offered by the claims industry for people following what are probably genuine motor accidents. I read out earlier a quite shocking quote from one of the leading people in the claims industry:
“Even if you don’t experience any symptoms straightaway, don’t rule out the possibility that you’ve suffered this type of injury”.
I feel that as it is a political and social problem it must have a political solution, and it cannot really have a judicial solution.
I am grateful to the noble and learned Lord, Lord Brown, who has lent me his copy of the Judicial College guidelines. The introduction states:
“Assessing the appropriate level of any award remains the prerogative of the courts, which are not constrained by any range identified in this book, since the figures within any such range are persuasive, not obligatory, and merely represent what other judges have been awarding for similar injuries”.
Therefore, the whole basis on which the Judicial College has been gathering figures and making judgments is not the sort of basis on which in any event one would want to build a tariff construction. It is the wrong starting material, although it is an interesting book. Accordingly, I feel that the Lord Chancellor must be the person who takes a decision about what will be contained in the tariff.
In respect of my other two questions, I return to the 22nd Report of the Delegated Powers and Regulatory Reform Committee, which considered this issue at paragraph 13 and stated:
“In our view it would be an inappropriate delegation of power for damages for whiplash injury to be set in a tariff made by Ministerial regulations rather than on the face of the Bill. The tariff should be set out on the face of the Bill, albeit amendable by affirmative statutory instrument”.
I feel that answers both my questions. I urge the Minister to consider having a tariff on the face of the Bill and to ensure that it is amendable with suitable parliamentary oversight.
Lord Marks of Henley-on-Thames (LD)
My Lords, the amendments are, as has been said, in my name and that of my noble friend Lord Sharkey. I shall first add to the point made about the Delegated Powers and Regulatory Reform Committee by quoting what it said about placing the tariff in the Bill. It said that the second central question—the first being the question that I quoted earlier about what is meant by whiplash injury—is:
“By how much are awards of damages to be reduced?”
The committee said that the Government’s answer was that:
“The reduction in damages will be whatever the Lord Chancellor says it will be, in regulations to be made by him or her at some future date”.
The committee came to the conclusion, as the noble Earl pointed out, that that is an inappropriate delegation of power. I again make the point that it is appropriate for the Government to accept that recommendation. That has always been the way that that committee’s recommendations have been dealt with. Of course, amendment in the future can be made by statutory instrument.
I turn to the important point that was made in different ways by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, the noble Lord, Lord Faulks, and the noble Earl, Lord Kinnoull, which is that the cost paid by society for these reforms in this particular case—that is, the reduction in damages—is a reduction in awards for genuine claimants. It is genuine claimants who are made to suffer. I cannot see the justification for that in any of the evidence that the Government have produced. We accept entirely that there is a problem with fraud. We are fully behind attempts to tackle fraud by eliminating, or at least reducing, fraudulent claims. But to remove the right to fair damages for claimants in these particular types of cases does not seem to be an appropriate response to this problem in a civilised society.
We address this central problem by saying that the Judicial College Guidelines are an appropriate way of coming to a conclusion on appropriate damages. They are a fair and workable way in which to achieve comparability. They avoid the problem that fraud may be positively encouraged by a cliff-edge system that encourages exaggeration. Damages under this proposal double if the claimant can persuade the medic who is preparing his report that an injury will have a duration of three months-plus, rather than just short of three months—doubled from £225 to £450. In that context, I make two points. The first is that it is a little odd that the response—
Lord Hodgson of Astley Abbotts (Con)
Does the noble Lord accept the argument that the quantum of damages is essentially a political decision that should be taken and justified in Parliament, not taken by judges in courts? How do aggrieved people achieve change there? We know how they achieve change in a political situation: they can lobby their Member of Parliament and get change. Is the noble Lord saying that this must be left to the judges and that we have no way of obtaining redress for decisions that an individual might feel are unfair or inaccurate?
Lord Marks of Henley-on-Thames
Absolutely not. The Judicial College can respond, and be required to respond, to political guidance if Parliament chooses to legislate on the level of damages. I do not say that that is what is wrong. My concern is about the fairness and comparability of picking out whiplash injuries in an attack on fraud and reducing the compensation to genuine claimants accordingly. My point about the £225 and £450 figures—
Lord Faulks
Does the noble Lord accept that if you reduce the amount of damages, it provides something of a disincentive to those who are fraudulent?
Lord Marks of Henley-on-Thames
Of course I accept that. It is a question of whether the cost in unfairness is worth paying. It is a dilemma that the noble Lord himself correctly outlined in his speech. We are simply saying that we ought to try every other avenue before trying this drastic avenue of introducing an unfair system for genuine claimants. I will see if I can get beyond the next couple of sentences.
My point about the £225 and £450 figures is that they represent a cliff edge. They compare to £1,800, which is the expected award set out in the Government’s impact statement for such injuries of less than three months’ duration to date. The Government’s response to the outcry that these damages are so low has not been to meet the outcry at all but to reduce them from £235 to £225 and from £470 to £450.
One of our problems with the present proposals is that there is no evidence base for a recent increase in the number of fraudulent claims. We entirely accept the case that the noble and learned Lord, Lord Keen, made both at Second Reading and today that there is a wide prevalence of fraudulent claims that we have to tackle. However, there is not a wide base of evidence for an increase in such claims, nor is there sufficient evidence of how many claims are fraudulent or genuine. There is certainly no evidence that only the fraudulent claims would be deterred and that the genuine claims would continue. That worries me seriously, because the noble and learned Lord suggested earlier today that a genuine claimant might continue whereas a fraudulent one might be deterred. We simply do not accept that. It is just as likely—and I say this also without an evidence base—that genuine claimants would be deterred because the amount at stake had become so low, even though they had a fair claim.
We entirely agree with the Government that the proposal for compulsory medical reports discriminates between genuine and fraudulent claimants. I repeat my declaration at Second Reading that I have just concluded some litigation about compulsory medical reports and the operation of the pre-action protocol. However, there is no corresponding evidence of discrimination in the case of these drastic cuts in damages, which we say are unjust, unfair and fail to give fair compensation to genuine claimants. They discriminate unfairly between injuries sustained in road traffic accidents by drivers and passengers in motor vehicles and those sustained in such accidents by cyclists and pedestrians. Who would receive the traditional level of damages? Passengers and motorists would not, even in genuine cases. They discriminate unfairly between accidents which are covered by the Bill and accidents at work or accidents caused by, for instance, a council’s negligence. Those can also be a source of fraudulent claims.
If the Government are determined to have a tariff, we are worried about the cliff edge. I see no fundamental reason in principle against a tariff; it is a question of weighing the advantages of certainty outlined by the noble and learned Lord against the fact that you have a cliff edge where those cases that are very close to the three-month level produce very large discrepancies in damages. If we are to have a tariff, let it at least be one that does not penalise genuine claimants by allowing them an award that is far too low. That is the basis for our alternative Amendments 13 and 96. We do not put them forward as a preferred option, but they are more acceptable than the Government’s proposals.
Lord Beecham (Lab)
My Lords, I concur with the views expressed and proposals made by the noble Lords, Lord Sharkey and Lord Marks. They are absolutely on the right track, although I do not agree with the provision for the Judicial College guidelines to be taken into account. It will be seen that in the next group, we have an alternative proposal suggesting that the Civil Justice Council should be involved in making the decisions.
In this group, however, there is an amendment in my name and that of my noble friend Lord McKenzie which would restore a degree of discretion for the court to uplift the amount of damages payable where it deems it just to do so in all the circumstances of the case. That would revive the role of the judiciary in assessing damages, at least to some extent, where it felt that the scale proffered under the legislation was inadequate—as noble Lords have already made clear, that seems likely in many cases.
I broadly support the amendments of the noble Lord, Lord Sharkey and Lord Marks, and will revert to one aspect to which I referred in the next group.
Lord Keen of Elie
My Lords, I am grateful for the contributions that have been made. It respectfully appears to me that the points made by the noble Lords, Lord Sharkey and Lord Marks, materially bolstered the approach that the Government take in the Bill. Why do I say that? Because it is quite clear that we are addressing a matter of policy and have to do so as such. What ultimately has to be taken here is a political decision, not a judicial determination.
In fairness, I think it was a slip from the noble Lord, Lord Sharkey, but when he talked about the question of whether claims are genuine or not reasonable, he said that it was unquantifiable—and then corrected himself to unquantified. The former is more accurate than the latter.
Let us be clear. More than 80% of road traffic injuries are allegedly whiplash-induced injuries. The vast majority of all personal injury claims are whiplash claims. Over 10 years, the number of whiplash claims has rocketed—yes, it has stabilised a little in the past year or two, but it has still rocketed. At the same time, the number of road traffic accidents reported has dropped by 40%. At the same time, the number of vehicles classified by Thatcham as safe from the perspective of seating and headrests has increased from 18% to 80%.
As some people have said, an industry is going on. As others have suggested, there is a racket. We have a claims culture that has built up—I attribute no blame to any one party; all sides involved have contributed in one way or another to the ballooning of the claims culture. The time has come—indeed, the time may be almost past—when we need to address it as a political issue.
The noble Lord, Lord Sharkey, suggested that somehow we were making a transfer from claimants to motorists. With great respect, a very large proportion of claimants are motorists, so it is not as simple and straightforward as that. Secondly, he talked about the transfer requiring to be justified. The transfer is a consequence of the policy decision we are making to deal with the industry, the claims culture; it is not the purpose of it. It is, as I say, the consequence.
Lord Sharkey
In fact, I was asking the noble and learned Lord, with respect, to justify the quantum, but perhaps he is going to deal with that.
Lord Keen of Elie
With respect, as I say, the quantum is a consequence of the steps we are taking to address the claims culture. The way in which we are doing it is such that we are confident that the benefits will be passed to consumers in the form of motor insurance premiums.
Lord Sharkey
In that case, perhaps the noble and learned Lord could explain exactly how the tariff was constructed—on what basis?
Lord Keen of Elie
Yes, I shall come to that. We have had regard to the present level of damages awarded in these cases, we have had regard to expert input about how we can deal with the claims culture that has built up, and we have taken the view on the level of tariff required to implement the policy decision that we have made to deal with this emerging problem.
Lord Sharkey
Does the Minister accept that that is not really an explanation? It is simply a statement that the Government have done something. I was asking for the basis on which they arrived at these numbers. In fact, oddly, the numbers changed between the impact assessment and the SI published yesterday. There must be a reason for that; there must have been some discussion. There must be some basis on which these amounts were constructed, but it is not clear from his answer what they are.
Lord Keen of Elie
With respect, first, I understand that there was not intended to be a change between the impact assessment and the SI publication. That is why the rather odd difference of 4 point something per cent emerges. I acknowledge that that was not intended.
Lord Faulks
My Lords, I am very grateful to the Minister for giving way. Perhaps he will confirm to the House that even the Judicial College guidelines or awards of damages by judges for pain, suffering and loss of amenity are not mathematically calculated; they are figures arrived at doing the best that a judge can to represent the nature of the injury by such an award.
Lord Sharkey
I think this is a misunderstanding. I was not trying to imply that there was an element of certainty involved here. I simply wanted to know how the figures had been arrived at. Why not some other figure? Instead of 235, why not 200? Why not 400? How were these figures arrived at?
Lord Keen of Elie
With respect, a judgment had been made having regard to all the information available as to what level should be set for the tariff to address the very problem that we are attempting to deal with. It is not based on some mathematical formula or percentage.
Baroness Berridge (Con)
I refer my noble and learned friend to his previous comment which, fairly, recognises that all parties are to blame, which is something that I think he conceded at Second Reading—that the insurance industry shares part of the blame. May I clarify? When he says that all parties are to blame for this, may I clarify that he was not including the genuine claimants, who have become a focus in this House: that they are not to blame for an industry, a racket or whatever created by others?
Lord Keen of Elie
Everybody readily acknowledges that point but, with respect, you cannot take 650,000 claims and identify 300,000 that happen to be fraudulent, or 200,000 that happen to be exaggerated. A policy decision has to be made, acknowledging that there are within that very large body of claims perfectly genuine claims, perfectly fraudulent claims, exaggerated claims and minor claims that would never have been brought but for the encouragement of a claims industry that sees the financial benefit of ensuring that people take these claims forward. That is part of the culture that has developed. I noticed that when the noble Lord, Lord Beecham, suffered an unfortunate accident on the Tube and mentioned it in this House, he was asked if he intended to make a claim and said no. One was encouraged by that. People tend to consider that these events can happen; they may be able to point the finger of blame at someone, but they feel that life goes on and it is unnecessary to be distracted by such issues. We have a claims management culture that goes out of its way—many noble Lords have noted it—to encourage people who would otherwise think nothing of a minor injury to come forward and join the bandwagon. Let us emphasise: this is a matter of policy that we are addressing in these circumstances.
Baroness Primarolo (Lab)
On that point, the Minister will be aware that the business model for insurance companies is to assist those who they insure, and to make claims against others when it is appropriate. They are part of that industry, and some of them own claims management companies. Will the Minister explain to the House what he undertook in terms of research to make sure that the figures he is basing his assertions on are correct?
Lord Keen of Elie
I acknowledge the noble Baroness’s expertise in these areas as a non-executive director of Thompsons Solicitors, and her knowledge of the claims culture that has built up. With respect, in carrying out our work, we looked at the behaviour of the insurance industry in this context. Of course, the insurance industry can operate as an intermediary because, where the claims arise, it passes on the costs to the consumer by way of increased premiums. There have been instances in the past where insurance companies have passed on details of their own insurees’ claims to third parties and that has been exploited. I was quite open earlier in saying that we acknowledge the contribution of a number of different parties to what has developed into an unacceptable claims culture. That is what we are seeking to address in this Bill.
Can I continue just a little further in that context? The first group of amendments from the noble Lords, Lord Sharkey and Lord Marks, proposed that compensation for pain and suffering should be determined by reference to the Judicial College guidelines. Indeed, the second set of amendments proposed to place the tariff amounts into the Bill rather than in regulations made by the Lord Chancellor. All those figures would be significantly higher than those proposed by the Government—indeed, more in line with the amount currently paid out by claim.
I understand that noble Lords feel that the proposed tariff amounts are too low, but we continue to be concerned about the high number and the high cost of these claims in general, and the impact of that on the consumer. Therefore, we have to take a policy view as to how we can disincentivise not just fraudulent claims but what I would call unmeritorious claims—very minor and exaggerated claims. Our view is that it is right to set the tariff through regulations, which will help to control those costs and ensure greater certainty to both claimants and defendants when they come to deal with these claims, remembering that the vast majority of these claims never reach court anyway. They are dealt with before they ever arrive at the door of a court. In addition, we consider that a tariff will provide the flexibility required to change the tariff amounts, in reaction not just to inflation but to changes in the market, if I can gently call them that. We know that we are dealing with a marketplace; it is extremely inventive and can rise again phoenix-like from any statutory provision that we bring forward.
Therefore, we are going to have a tariff of predictable damages, albeit for those who suffer injury with a duration of up to 24 months. That is a relatively minor personal injury, but not one to be dismissed—and we do not seek to dismiss them. The relevant tariff will then be applied. It will be far simpler for someone to take their claim forward and, of course, we then have in place the requirement for an independent medical expert report, albeit in circumstances of dealing with subjective complaints of injury, as the noble Lord, Lord Sharkey, acknowledged. They can be very difficult to determine. If someone comes forward with symptoms, on the basis of a subjective assessment, a report can be made, but it can be very difficult to determine whether those subjective complaints are well based. Indeed, as the noble Earl, Lord Kinnoull, observed, there are claims management companies that would encourage someone to come forward even if he had not suffered any symptoms so far, in the belief that something might emerge in due course. That is why we have taken that approach, albeit we have allowed for the judiciary to have input so that it can, in appropriate or exceptional circumstances, increase the tariff award by up to 20%.
Lord Marks of Henley-on-Thames
I just wanted to make this point, but because of the noble and learned Lord’s plea I have perhaps left it a little late, as he has left the question of the figures. He made it clear that a political judgment was made in reaching these figures. The noble Lord, Lord Faulks, asked for clarification that the Judicial College guidelines, on which we rely, were merely an extrapolation from judges’ awards. However, as I expect the noble and learned Lord will accept, there is an element of circularity here because the judges reach their decision as to what is appropriate invariably after having the Judicial College guidelines cited to them, so they feed on themselves and are therefore a fairly carefully worked-out set of figures into which there could be political input.
Lord Keen of Elie
With respect, as the noble Lord outlined, they are self-perpetuating figures. Therefore, although we have regard to those guidelines when coming to a view as to where the tariff should be set, that was only one element in deciding the appropriate levels for the tariff itself.
I shall turn for a moment to the amendment proposed by the noble Lord, Lord Beecham, which would provide the court with complete discretion with regard to any percentage increase of exceptional circumstances. We do not consider that that is an appropriate way forward. It would simply lead to an increase in litigation and in the claims culture, so that is why we feel that there should be an appropriate limit on how any exceptional circumstances can be dealt with by the court.
In that context, I should point out that the tariff system is not entirely a novelty. Other European jurisdictions faced with the same claims culture and the same racket, as some people have called it, have introduced tariffs as well, or tables of predictive damages. That includes Italy, Spain and France. In due course both Houses will have the opportunity to debate the details of any regulations that are introduced to put forward the appropriate figures for the tariff, which at present we consider should be in the regulations, if only for the purposes of flexibility.
Again, I want to emphasise that this is essentially a matter of policy to deal with a very particular problem. It is a political decision; it is not one that we consider is for the judges; it is one that is ultimately for the Lord Chancellor to deal with in his capacity as a Minister. It is in these circumstances that I invite the noble Lord to withdraw the amendment.
Lord Sharkey
I thank the Minister for the long and comprehensive—and occasionally interrupted—answer. There is an issue here. I accept that it is a political decision, of course, and we are all operating on that basis, but I am still worried and puzzled about the way in which this table of tariffs has been devised. I have heard nothing from the Minister to suggest that it is not arbitrary. In particular, he did not answer my question so perhaps he can do it now. Were the figures devised on the basis of some target saving being set and then working backwards to say what the tariff would be to generate that saving? If that is the case, we ought to be told.
Lord Keen of Elie
Can I be clear to the noble Lord? I am not aware of there having been any target saving. As I sought to indicate earlier, this was rather an approach from the other direction: what policy is required? Effective policy is required to deal with the problem facing us.
Lord Sharkey
The Minister will forgive me if I say that that sounds a bit like the back of a political envelope. The question still remains. We are interested in what these figures are, and it would help our discussions if we had a clearer idea of how they were arrived at. I am sure that we will want to pursue that as the Bill makes progress. In the meantime, I beg leave to withdraw the amendment.
Lord Beecham
Lord Beecham
My Lords, this amendment and Amendment 29 set an alternative method for recommending a tariff, not via the Judicial College but via the Civil Justice Council, and it is suggested that this should be done on an annual basis. The Civil Justice Council is a body established by the Civil Procedure Act 1997, and it acts as an advisory body to the Lord Chancellor, who must then set out the recommended tariff under this amendment, in regulations. That is the substance of Amendment 12.
Amendment 29 makes the necessary changes to the Civil Procedure Act, which then empower the Civil Justice Council to include recommendations on the whiplash injuries damages tariff. In my submission, that is a better way of dealing with matters than either the Lord Chancellor doing it on a political basis or leaving it to the Judicial College. I understand the reservations about them. This is a better way of dealing with the situation, and I commend it to the House. I beg to move.
Lord Bassam of Brighton (Lab)
My Lords, I have Amendment 14 in this group. Much of this ground was covered in the earlier debate, and I anticipate the Minister’s response in that light. I take the point made by my noble friend Lord Beecham that we perhaps need to find another route on this issue, and in a sense that is what Amendment 14 does. It seeks to place a duty on the Lord Chancellor to consult the Lord Chief Justice and obtain the agreement of the Judicial College on the proposed amount for tariffs, before making regulations to set damages tariffs for whiplash.
The Delegated Powers and Regulatory Reform Committee of your Lordships’ House recommended that it is the judiciary, with its experience of personal injury claims, that should determine the provisions for damages or, failing that, the responsibility should be undertaken by independent medical experts. Noble Lords have referred to medical experts in earlier debates and recognise their value. I know that many would prefer the Government to abandon their plan to discard the use of the Judicial College guidelines for general damages claims, but there is value in the current guidance. This is a probing amendment, along with others, to find a way of enabling consultation and constraining the absolute power currently set out for the Lord Chancellor.
One of the worries that feeds this is that genuine cases may be dealt with in a way that leads to undercompensation. We do not know what the scale of the problem is, because the Government have not produced statistics on what they believe to be the level of genuine or, for that matter, fraudulent claiming. While that remains the case, we must surely protect those who have genuinely suffered and need to make a claim for good reasons.
It is worth reminding ourselves that the Bar Council recommended that the Lord Chancellor should be required to have regard to decided cases. That seems a reasonable approach. If the Lord Chancellor is required to consult the Lord Chief Justice before making regulations on the uplift in exceptional circumstances, what justification can there be for him not to consult the Lord Chief Justice on the tariff amounts generally? It may be that, with its experience, the Judicial College guidelines would be an appropriate starting point and basis for consultation.
We recognise the power of the Government’s argument generally to change and make reforms, but it is also important to recognise the value of the judiciary’s knowledge in this field and the importance of consulting it in setting tariffs. After all, it has the experience.
Lord Faulks
I just wanted to say one thing. First, I am not sure whether I have declared during Committee that I was a Minister in the Ministry of Justice when the subject of whiplash reform was frequently discussed, although the precise shape of that reform did not manifest in the same way that it does in this Bill. I made that clear at Second Reading, but would like to make it clear now.
Lord Keen of Elie
My Lords, I was rather hoping that my noble friend was going to explain the tariff, but that may be for another day.
If I respond shortly, it is not because I dismiss the importance of the amendments that have been moved but because I have already sought to set out the Government’s approach to the tariff, and I hope that will be appreciated. However, I understand the purpose of these probing amendments, in particular the amendment spoken to by the noble Lord, Lord Bassam, which reflects some recommendations from the Bar Council. I will add two short points.
First, as I mentioned before, we allow for the 20% uplift for exceptional circumstances to be placed in the hands of the judiciary. Secondly, in setting the tariff, the Lord Chancellor is going to consult widely and take into account the views of a wide spectrum of interested parties in order to arrive at what is considered, for policy purposes, to be the appropriate levels, both now and in the future. However, we do not consider that it is appropriate to formalise any part of that consultation, for example by reference to consulting the Lord Chief Justice.
I have heard what has been said; it is essentially a development of the previous group of amendments. I appreciate why these additional amendments have been moved, but invite noble Lords to withdraw.
“(7A) Regulations under subsection (7) may not increase amounts in relation to claims by vulnerable road users unless the increase is to reflect increases in the retail prices index or the consumer prices index.(7B) In subsection (7A), “vulnerable road user” means any person other than a person—(a) using a motor vehicle other than a motor cycle on a road or other public place in England or Wales, or(b) being carried in or on a motor vehicle other than a motor cycle while another uses the vehicle on a road or other public place in England or Wales.”
Lord Young of Norwood Green (Lab)
My Lords, with the leave of the House I will move this amendment on behalf of my noble friend Lord Berkeley, who is unable to attend this afternoon due to personal circumstances. This amendment addresses a slightly different issue from those that I have heard today. If the Bill is enacted, the Government also propose to increase the small claims track limit for personal injury cases from £1,000 to £5,000 for all road traffic accident claims and to £2,000 for all other personal injury claims. The Ministry of Justice’s impact assessment makes it clear that the small claims limit increase is part of a broader reform package, although the small claims limit proposals do not appear in the Bill, as they can be implemented through secondary legislation via an amendment to the Civil Procedure Rules.
When the Ministry of Justice published its consultation on reforming the soft tissue whiplash claims process, Cycling UK—to which I must pay tribute for providing the briefing—realised that the stated proposal to increase the small claims limit to £5,000 extended far beyond whiplash claims by car occupants. In partnership with RoadPeace, the national charity for road crash victims, and Living Streets, the national charity for everyday walking, Cycling UK launched its Road Victims are Real Victims campaign, the catalyst for which was the shared concern that the consultation ignored the interests of road crash victims, particularly pedestrians, cyclists and motorcyclists—generically vulnerable road users.
Within the consultation, no reference was made to vulnerable road users. The focus was on whiplash, fraudulent claims and motorists, without consideration of the complexity of vulnerable road user personal injury claims, the different nature of the injuries typically sustained and claimed for or their vulnerable status. More than 6,000 people responded to the Road Victims are Real Victims campaign, writing to the Ministry of Justice in support of Cycling UK’s submissions and outlining their opposition to the proposed small claims limit increase, which disproportionately affects vulnerable road users. The MoJ’s consultation response failed to address any of the arguments raised on behalf of vulnerable road users, including the complexity of their claims or the nature of their injuries, save for one sentence in paragraph 86 acknowledging that certain points had been made but not responding to them.
The Government’s proposal to increase the small claims limit to £5,000 for all road traffic accident-related claims will affect 70% of cyclist personal injury claims and a similar percentage of motorcyclist personal injury claims, where the general damages for pain, suffering and loss of amenity are under £5,000. Cycling UK met with officials at the MoJ following publication of the consultation response, and explained why vulnerable road user personal injury claims should be excluded from the small claims limit increase to £5,000 and how that could be achieved simply through adopting the same definition of a road traffic accident claim for the purposes of the small claims limit, as the Government propose to adopt in Clause 1 of the Bill, which defines whiplash injury and refers to whiplash injury suffered due to driver negligence when someone is,
“using a motor vehicle other than a motor cycle”.
The Bill excludes vulnerable road users from the definition of whiplash and the whiplash reforms in the Bill. The changes to the small claims limit catch all road traffic accident personal injury claims, including those by vulnerable road users.
The consultation document made it abundantly clear that the Government’s main aim was to tackle what they perceived to be the “compensation culture” and both fraudulent and exaggerated whiplash claims. Whatever the extent of these problems, the purpose of the amendment is to ensure that vulnerable road users should not be penalised as a consequence of measures the Government implement to address them. I do not think that we are trying to say that this is a perfect amendment. I hope the Minister will understand that this is a probing amendment; we are seeking an assurance from him that he would be open to a consultation process. Before I end my contribution I suppose that I should declare an interest as a regular cyclist and a member of the All-Party Parliamentary Cycling Group. I beg to move.
Lord Sharkey
Talking about vulnerable road users, I was reading Tuesday’s edition of Insurance Times, and the opening sentence was:
“Justice minister Lord Keen makes the first concession on Civil Liability Bill ahead of it entering the committee stage in the House of Lords”.
It went on to say:
“Lord Keen sent a letter to peers this morning, and in it, he made his first real concession regarding the Bill”—
and it then went on to quote the Minister at some length.
I looked on the Bills in progress website and could not find any letter. I searched through my emails and could not find any letter; I searched through my junk mail and still could not find any letter from the Minister. I wonder whether he will simply tell me that I should not believe everything I read in Insurance Times, or whether there is some letter that he would like to draw our attention to.
Lord Butler of Brockwell (CB)
My Lords, I support this amendment. I, too, declare an interest as a regular cyclist and a member of the APPG on cycling. As has been made clear at all stages, the Government’s main aim in this Bill is to tackle what they perceive as the compensation culture, and in particular fraudulent and exaggerated whiplash claims. It should not be a by-product of that that vehicle road users, including cyclists, are penalised by measures designed for a completely different purpose.
Whiplash claims are brought by motor vehicle occupants, not by people riding bicycles or motorcycles or crossing the road. Nobody makes a fraudulent claim by throwing themselves off a bicycle or a motorbike or by jumping in front of a car. The point has been made to the MoJ that there is no evidence to suggest that fraudulent claims by vulnerable road users are an issue of concern—and, as far as I am aware, no evidence to the contrary has been provided by the Ministry of Justice.
Whiplash claims from cycle and motorcycle collisions are almost entirely unheard of. The mechanism of the typical injury sustained is, of course, different. People on bicycles tend to be injured by hitting hard surfaces—car bonnets or the road. They sustain fractures and injuries from those impacts. It is not at all likely that they would be making a fraudulent claim. Indeed, I think it is impossible to imagine that they would.
I support this amendment. I think that a Bill designed for whiplash claims should not accidentally spread its effect to vulnerable road users whose injuries are likely to be of a completely different nature.
Lord McKenzie of Luton
My Lords, we have Amendment 26 in this group. I thank my noble friend Lord Young for stepping in to the breach in place of the noble Lord, Lord Berkeley, and for the other contributions that have been made.
Lord McKenzie of Luton
I am sorry. I will speak to Amendment 23 only to congratulate my noble friend for stepping into the breach. I thank him and the noble Lord, Lord Butler, for speaking in support of cyclists. We are very happy to support their proposition.
Lord Keen of Elie
I am obliged to the noble Lord for supporting their proposition rather than their amendment—which, I venture, is entirely appropriate in the circumstances. Clause 1 goes out of its way to ensure that vulnerable road users such as cyclists or motorcyclists are not encompassed within the ambit of the provisions in Part 1 of the Bill. That has to be made absolutely clear. I entirely endorse the views expressed by the noble Lord, Lord Butler, as to the types of injury normally suffered by cyclists or motorcyclists. It does not tend to be of the whiplash variety, which is why we have ensured that they are not included in the terms of the Bill. In particular, as I say, Clause 1 expressly serves to exclude vulnerable road users of that type.
However, the point that the noble Lord made was more to do with a matter outwith the present Bill, which is the proposal to increase the small claims limit to £5,000 for road traffic cases. That is being mooted. Indeed, that increase was a factor in our approach to the whole issue of whiplash injury—but it was not limited to that. The proposed increase in the small claims limit will apply to all road users, including cyclists and motorcyclists. The Government’s reasons for seeking that increase are not simply limited to whiplash claims and the claims culture that has developed there but reflect the fact that, in our view, low-value road traffic accident claims—whether whiplash or otherwise—are appropriate for the small claims track and are capable of being dealt with in that track, whether they be for whiplash or other forms of road traffic injury.
In that context, I also note that we are developing, with expert input, the claims portal for these small claims so that claimants will find the system far more accessible. I simply seek to emphasise that the Bill does not embrace vulnerable road users such as cyclists. However, our reason for increasing the small claims limit for road traffic accidents in general is not limited simply to the view that that is a means of dealing with the whiplash claims culture; it reflects a wider view that low-value road traffic accident claims can appropriately be dealt with in the small claims track. Of course, where those claims are perceived to be complex, they can be moved from that track into the next track of judicial determination. In these circumstances, I invite the noble Lord to withdraw the amendment—albeit he acknowledges that it was tabled for probing purposes.
Lord Young of Norwood Green
I welcome what the noble and learned Lord said—I have found it constructive and helpful. Nevertheless, I still think that there is some concern and, rather than having to return to this on Report, it would be useful if we could meet him for further consultation.
Lord Keen of Elie
I am perfectly content to meet the noble Lord. As I return to my feet, I am reminded of the regular reading material of the noble Lord, Lord Sharkey, which includes the Insurance Times. I circulated a letter to Peers following Second Reading and it may be referring to that, but I do not recollect having made the sort of concession reported in that material. Unless the noble Lord feels that he can correct me, I am certainly not aware of it. Our position has always been that the original draft of the Bill specifically excluded vulnerable road users. I suspect that it is a case not of journalistic licence but of journalistic error.
Lord Young of Norwood Green
My Lords, once again I thank the Minister for his contribution and will reflect on it when we pore over Hansard. I beg leave to withdraw the amendment.
Lord McKenzie of Luton
“( ) Nothing in this section, or in any amendments to the Civil Procedure Rules which increase the Small Claims Track Limit, prevents a court, in a case where a person suffers a whiplash injury, making an award of costs in respect of the provision of a medical report in support of that person’s claim.”
Lord McKenzie of Luton
My Lords, this is a very straightforward amendment. We know that legal costs are unrecoverable in the small claims court, and the increase in the small claims limit creates real problems. The amendment would at least provide for the courts to allow an award of costs in respect of the provision of a medical report. That is important, because whiplash claims cannot be processed until a medical report is available, and the amendment would facilitate that in circumstances where it would otherwise be difficult for claimants to obtain one.
Lord Marks of Henley-on-Thames
My Lords, I have three amendments in this group: Amendments 27, 47 and 52. Amendment 27 seeks a review of the small claims limit. We say that the provisions of the Bill cannot be satisfactorily considered unless at the same time the Government are prepared to discuss what will happen with the small claims limit.
The proposal is that the small claims limit will rise to £10,000 and to £5,000 in these cases, and that will effectively exclude all the whiplash claims on this tariff, with the claimants being unable to recover costs, apart from the very limited fixed costs. If that goes ahead, there will be no legal representation in respect of nearly all whiplash claims. Of course, that will not be limited to fraudulent claims; it will penalise genuine claimants as well.
The reason why there will be no legal representation is that, essentially, the vast majority of these claims are dealt with on conditional fee agreements whereby no fee is paid unless there is recovery. If there can be no costs recovery, even the fixed costs allowable under the protocol, there will be no legal representation. It looks very much, therefore, as if the purpose of the damages sections of this legislation is to wipe out these claims indiscriminately—fraudulent or genuine. There are two swipes. We dealt with the last swipe—cutting the damages to a level whereby, in many cases, it is simply not worth claiming—and changes in the small claims limit would effectively remove the chance of getting a lawyer to work on a conditional fee agreement. We believe that there should be a review of the small claims limit, and we said in our Amendment 27 that the provision may not be brought into force until the Civil Procedure Rule Committee has reviewed the limit of the small claims track for personal injury whiplash claims and published its decision.
Amendment 47 comes back to the question of recoverability of medical reports. It ought to be perfectly obvious that a successful claimant can recover the cost of securing a compulsory medical report or what is termed in the Bill,
“other appropriate evidence of an injury”,
even in the absence of a rule that the claimant can recover other fixed costs. When I raised this point at Second Reading, the Minister said that there would be such recovery. I quoted the impact statement showing that all successful claimants would have to pay the £216 for the medical report. The Minister said no, that was not right and the savings calculated that formed the basis of what I alleged were calculated on the basis of claims avoided, not of all claims. The Government were assuming that a successful claimant would recover the £216—which is £180 plus VAT—in respect of medical reports. At the moment, I can see no provision for that. The Civil Procedure Rules relating to small-claims track cases restrict awards of costs, but by exception they permit, at the discretion of the court, an award of limited costs for experts; but that does not make such costs payable as a matter of course, only as a matter of concession. We seek to have this matter made clear and Amendment 47 is a simple and secure way of ensuring that.
Amendment 52 is a further probing amendment: probing in the sense that, at Second Reading, the Minister expressed considerable sympathy with the idea of having a new protocol for small claims. The existing pre-action protocol for low-value personal injury claims in road traffic accidents came into force in 2010, and it has been kept up to date since. It introduced a simple low-cost way of pursuing claims, generally through lawyers acting on conditional fee agreements—often “CFA lite”, as they are called—whereby lawyers effectively guarantee that there will be no liability on their clients at all to pay fees, because under the existing protocol they will recover the fixed costs from the defendant’s insurers, which they are able to do. The protocol has its faults, not least—some would argue—that the protocol has of itself increased the number of whiplash claims, including the number of fraudulent claims. That is partly because it is very computer-based. It works on the basis of the portal: generally speaking, everyone has to use the portal; the claims are notified and the insurers respond through the portal. There is very little personal checking of what is in fact happening to such claims.
It is also suggested that, arguably, the number of claims settled by insurers without proper investigation has increased. That is for the simple commercial reason that insurers prefer to pay small claims and fixed costs rather than contest cases outside the protocol. That is a danger in relation to all of these proposals. The Government have not sufficiently considered that insurers will find it easier to settle smaller claims under the tariff than to settle larger claims under the Judicial College Guidelines, as they do now, a point made by the noble Baroness, Lady Berridge.
However, for all its faults, the protocol has increased access to justice for genuine claimants. The concern that this amendment is designed to address is that because the protocol does not apply below the small claims limit and the small claims limit is going to rise, there has to be a parallel protocol for unrepresented claimants that is easy to navigate. Our amendment describes that as having,
“the objective of ensuring that the procedures for claimants pursuing such claims are simple and readily understandable for claimants who are not in receipt of legal advice and representation”.
That is the purpose to which the amendment is directed.
Baroness Berridge
My Lords, I have added my name to Amendments 27, 47 and 52, to which the noble Lord, Lord Marks, has referred, which relate to some of the most fundamental points in the reforms. They involve the procedure which will exist for genuine claimants through the small claims track and/or the portal.
I am saddened but grateful to my noble and learned friend the Minister to learn that it is not an unintended consequence of the Bill that genuine claimants will be caught. It is an intended consequence of the Bill, so there is a high onus to ensure that access to justice is ensured for genuine claimants.
The noble Lord, Lord Marks, referred to no legal representation but, having worked in what was then called small claims arbitration I know that defendants are usually legally represented. In Scotland personal injury claims, which are generally more complex, are outside its equivalent of the small claims procedure because of the asymmetry of the relationship in the small claims track between the claimant and the defendant. Having represented defendants in those circumstances more times than I care to remember, I know that although district judges go out of their way to try to ensure that there is fair procedure, they cannot step outside the boundary of their judicial role. Invariably, therefore, as the legal representative of the defendant, you know that you are at an advantage.
It is important to remember that, on the figures I have been given, 40% of people who buy fully comprehensive insurance do not also buy legal expenses insurance. Therefore, in order to recover their personal injury losses, their uninsured losses, and their often considerable excess losses—which can be about £500—genuine claimants pursuing personal injury losses, more often than not, will be litigants in person using the small claims track or the portal.
On the claims portal which has been mentioned, I know that a working group at the Ministry of Justice is looking at the new portal which will ensure that litigants in person have access to a streamlined procedure.
At the moment, however, you are within the claims portal only if liability is admitted. Some 75% of insurers have apparently signed up to pass on premiums so, like claims management companies and lawyers, we have good, exemplary and not-so-good companies. Unfortunately, with unrepresented claimants, there is now an incentive for certain insurers to deny liability because once they do so, the case comes out of the portal. It is then for a defendant insurance company to deal with a claimant—precisely the asymmetry of the Scottish situation. We have talked a lot about cold calling. Imagine being in that situation as a claimant trying to recover personal injury losses and an excess. You are busy, you are working and nobody is there to advocate between you and the defendant insurance company. That is a worry in relation to how the current portal operates.
Lord Bassam of Brighton
My Lords, I am much heartened by what the noble Baroness, Lady Berridge, said because my Amendment 30 tries to take us to the same range of issues. It states:
“When making regulations under section 2(2), the Lord Chancellor must take account of the PI small claims limit”.
The rest of the amendment addresses the whiplash issue.
Why is the amendment here? It is here because there is no other way in which we can address the personal injury limit. It seems to us to bring in an element of manifest unfairness. This piece of legislation will impact on small claims made by employees. By raising the threshold to £2,000 for those personal injury cases the Government are creating a particular difficulty. Claimants in the small claims court, because they cannot reclaim the cost of legal support, will have to represent themselves as litigants in person—and that brings a number of difficulties.
These cases can be very complicated, and they impact adversely on those who have suffered an accident at work, or the early onset of an industrial disease. USDAW has produced a very good briefing on this, citing a vast array of cases in which it represented members and which would be caught by this uplift. Vulnerable employees can be quite seriously injured. They are often unable to work for weeks or months and suffer considerable financial detriment and loss. With no legal assistance available to them, they will be opposing an employer—who will invariably be represented at court—without the expert advice that their injury and its implications merit.
I do not understand, therefore, why the Government are so keen on this £2,000 limit. It seems both unfair and lacking in rationale. The Government have not set out any reasons for including employee injuries in what was billed as a reform of whiplash claims—which, as we have said, we have no argument with. There is no suggestion anywhere that there have been fraudulent claims by injured employees. Claimants in this process will be vulnerable. There should be, as the noble Baroness, Lady Berridge, said, an equality of arms. That principle, which is fairly fundamental to the way our system of justice works, is undermined by this change, and the uplift to £2,000, when employers will be able to rely on full legal advice and support.
Cases are complex, injuries can be significant and victims can suffer considerable financial loss. Furthermore—an important point—the increase is far in excess of inflation. In 2009 Lord Justice Jackson suggested that there should be no increase to £1,500 until inflation justified it. Well, the figure of £2,000, to which the Government are wedded, cannot be justified on an inflationary basis: in terms of Lord Justice Jackson’s proposals, no increase is currently justified.
Small claims courts are not suitable for personal injury claims. We invite the Government to seriously reconsider the way they have set about this. We have already heard that cyclists will be swept up in the whiplash issue. Whether or not the Government seriously thought that they would be involving quite badly injured claimants by raising the limit to £2,000, that would be the effect of the proposed change. I have tried to find a way to bring an amendment to the Bill that would capture this issue, but have not so far succeeded. That worries me, because the Government seem to have found a way around a problem to the benefit of employers. I hope that that is not the case.
The Minister has a gap between Committee and Report, and I hope that he will meet me and others—particularly those who represent trade union members and are involved day in and day out with small claims personal injury issues—to benefit from our experience and knowledge of this field. I hope that he will then reconsider what is a very unfortunate policy, and one that will not be welcome in the workplace.
There are two other points here that are of value to consider. There will be an increase in the undersettlement of claims as a product of this; and I suspect that there will also be an increase in the number of claimants with highly unrealistic expectations of the value of their claim, thus removing the possibility of early settlement and placing increased pressure on the courts system. I hope that the Minister has some reassurance for us on this, because it is a very serious issue. It undermines some of the other, perhaps gentler, words that the Government have used in trying to understand the problems and complexities that people confront in the workplace, which was one of the Government’s earlier ambitions. That is the purpose behind our Amendment 30 and I hope that the Committee will see the strength of the case that has been put.
Baroness Primarolo
When the Minister considers in the round the comments made by other noble Lords, will he undertake to go away and look specifically at the way in which Scotland has approached this important question of asymmetry in the process? Will he look at whether there is a way of incorporating or dealing with claims in a similar way, without clearly undermining what he has identified as the Government’s policy principles in simply reducing tariffs?
Lord Keen of Elie
My Lords, perhaps I may begin with Amendment 26, as put forward by the noble Lord, Lord Beecham, and Amendment 47, put forward by the noble Lords, Lord Marks and Lord Sharkey, and my noble friend Lady Berridge. These amendments seek to secure assurances as to the recoverable cost of a medical report in respect of whiplash injury claims, notwithstanding the increase in the small claims track limit.
The cost of medical reports is currently recoverable in personal injury claims where the defendant insurer has admitted any part of liability. It is intended that these costs will continue to be recoverable following these reforms, including the proposed reform in the small claims track, which is not part of the Bill. I seek to reassure the noble Lord, Lord Marks, in particular that it is intended that that cost will be a recoverable element in each and every case where liability is accepted. My understanding is that the civil procedure rules currently permit the recovery of such a cost; if there is any issue with that, I would be perfectly happy to look at it again to ensure that the rules reflect that position, because that is certainly our intention.
The effect of Amendment 27 would be to require the Civil Procedure Rule Committee to undertake both a review and a consultation in respect of the proposed increase to the small claims track limit for whiplash claims before publishing its decision. I appreciate that the noble Lord, Lord Bassam, is taking us beyond the realms of whiplash claims and I will comment upon his observations in a moment. The Government have already undertaken a consultation on this issue and our policy changed as a result of that consultation. Originally, we proposed raising the small claims track limit to £5,000 for all personal injury claims but, after consultation, we proposed that the track limit should be raised to £5,000 for road traffic accident-related personal injury claims but only to £2,000 for all other personal injury claims, including employer/employee claims. We do not believe that a further consultation on this issue is required, nor that such a requirement should be placed into the Bill.
I observe in passing that the small claims limit for non-personal injury claims is now, I believe, £10,000 and it operates adequately. In respect of the personal injury limit of £1,000, that was set about 10 years ago so even if we were to apply various inflation-linked multipliers, it would be in the region of £1,700 to £2,000, depending upon what index was taken in respect of inflation. As regards personal injury claims in general, it is not going much beyond that.
The proposal in the amendment tabled by the noble Lord, Lord Bassam, is that the increase should be to a maximum of £1,500, as opposed to the increase to £5,000 for road traffic accidents and £2,000 for personal injury claims. In that context, the noble Lord observed that these cases—I believe he was referring to non-road traffic accident cases in particular—can be very complicated. I acknowledge that, but if such a claim is complex, that is a ground for removing it from the small claims process to the fast track. There is already provision for that very situation, so we do not consider that further steps need to be taken.
Lord Bassam of Brighton
Can the Minister assure me that there will be consultation with the trades unions? Given the case he is making, it is important that that should take place. Their experience here is highly relevant.
Lord Keen of Elie
Trades unions’ experience is, essentially, filtered through claimant solicitors such as Thompsons, and those being consulted include representatives of both claimant and defendant groups—so that is being done. However, I would be perfectly happy to meet the noble Lord, and such representative groups as he may wish to bring to a meeting, to discuss the proposed increase in the limits on small claims. If he wishes to do that, I shall be perfectly content for him to contact my private office, and we can make suitable arrangements. At this time, however, I invite noble Lords not to press their amendments.
Lord Hodgson of Astley Abbotts
My Lords, at this stage in proceedings on the Bill most of the ground has been pretty extensively ploughed, and I shall endeavour not to till it longer than I have to. We had a long discussion about the setting of the rate on the group taken with Amendment 11, and the noble Lord, Lord Beecham, got even closer to the matters I have in mind with his Amendment 38. However, Amendment 35 is concerned with the provisions of Clause 3, which, as the title suggests, permits uplift in exceptional circumstances.
The question I wish to discuss is whether there should be any limit on the amount by which these exceptional awards can exceed the basic tariff, and if so, whether that limit should be in the Bill. I think there is a strong argument for limiting the exceptional awards, and for putting that into the Bill; the noble Lord, Lord Marks of Henley-on-Thames, was kind enough to take my intervention in an earlier debate. I wish to see judicial discretion limited because I think this is a political matter, not a matter for judicial discussion and discretion. Therefore the limit should appear in the Bill—as a percentage, not as an absolute amount, because if the tariff goes up, obviously the amount of an exceptional award should also eventually increase.
My noble and learned friend referred to this matter in the letter he sent to those of us who participated in the Second Reading debate about the need for a degree of judicial discretion. He suggested that the uplift should be capped at 20% and he has already referred to that this afternoon. I do not disagree with any aspect of his remarks, except that I think it is important that the percentage should appear in the Bill. This is in the interests of stability and clarity—stability because if the exceptional amount could be increased by the court without limit the temptation for claimants to game the system would be greatly increased, and clarity because such a limit would facilitate the setting of the rates of motor insurance and reduce the volatility in the amount of such rates year by year. That is an important distinction to remove absolute discretion from the courts, to bring it into the political arena and to set that percentage in the Bill so it is clearly a political, parliamentary decision. I beg to move.
Lord Beecham
My Lords, I am a little concerned at the degree to which political considerations are supposed override our system of justice. This is not the first time it has been mentioned. However, the latest case is perhaps the least acceptable of the recommendations of this kind. Why on earth should Parliament decide on the so-called exceptional circumstances—undefined, of course, for the purposes this debate—on what are already constrained sums to be awarded in damages? It is trespassing too much on the rights of the citizen and the role of the judiciary. I hope that the Minister will concur with that, given his enormous experience of these matters, and, I apprehend, a real interest in justice being effective and available. With all due respect, the amendment moved by the noble Lord undermines both.
Lord Keen of Elie
My Lords, I am obliged to my noble friend Lord Hodgson for his amendment. I understand the intent when we are seeking to address a very particular problem. However, I cannot concur with the proposal that we should set in the Bill some limit to the judicial discretion that will be exercised in exceptional circumstances. We have yet to see how exceptional circumstances will develop once the Bill comes into effect. We therefore consider it more appropriate that the percentage increase in tariff should be determined by regulation by the Lord Chancellor in order that he may, from time to time, have regard to developments once the Act is in force. We do not consider it appropriate to constrain that exercise by setting a ceiling in the Bill. For these reasons, I invite my noble friend to withdraw his amendment.
Lord Hodgson of Astley Abbotts
I thank my noble and learned friend for that reply. It was not entirely unexpected. I say to the noble Lord, Lord Beecham, that it is nothing to do with access to justice, it is merely limiting judicial discretion. Indeed, the noble Lord accepts that judicial discretion is going to be limited because he is quite happy to have this percentage in regulations which can subsequently be altered one way or another without much parliamentary scrutiny for all the reasons we know. I note the points my noble and learned friend has made, and I beg leave to withdraw the amendment.
Lord Beecham
Lord Beecham
My Lords, the amendments in this group pray in aid, as it were, for the work of MedCo, a body set up by the Government, I believe in 2015, to facilitate the sourcing of medical reports on injuries of the kind that we are debating under the terms of the Bill. The Ministry of Justice produced a pre-action protocol for what it calls low-value personal injury claims in road traffic accidents. Before that, there was no system at all to effectively source reports, and apparently a practice was developing of some claimant representatives—not necessarily solicitors—and insurers using what are described as “tame” doctors to produce medical reports for the purposes of securing compensation.
The Government set up the MedCo organisation to provide claimants with access to independent medical reporting facilities from reputable sources, which are themselves subject to regulation and control by the MedCo board. Apparently MedCo had a bit of an uneasy period in its early days and there have been a number of reviews, but the principle remains valid. I understand that it is now working better and that there is no channelling of medical reports to, as it were, sympathetic doctors who might be relied on to back up claims that are less than valid. To that extent, the Government’s original idea has proved right.
In relation to the Bill, it appears that there will be a necessity to reconstruct the portal so that litigants in person can access and use the portal themselves. Therefore, it is all the more necessary to ensure that the MedCo system is available and as user-friendly as possible. I hope that the Minister will acknowledge that I am taking the unusual stance of having supported a decision made by the Government some time ago and seeking that it should continue to flourish. I look forward to his acknowledging that this is a good way of serving justice for both sides in such cases, by having thoroughly professional, independent people providing the necessary political evidence, not being paid for a particular kind of evidence—which one suspects can happen and perhaps has happened hitherto, producing some decisions that were, frankly, unjustified. I hope that the noble and learned Lord will build on the position created originally in 2015 by the Government and ensure that it remains applicable and useful under the new regime being developed.
Lord Bassam of Brighton
There are other amendments in this group, are there not?
Lord Keen of Elie
There are indeed, and that was why I wondered at the noble Lord’s reticence. If the noble Lord wishes to speak to them, I am not the person to stand between him and the remainder of the Committee.
Lord Bassam of Brighton
I am extraordinarily grateful to the noble and learned Lord for his prompt rising, as it were, from a sedentary position. My Amendment 42A is in this group. On the Bill as a whole, in Clause 4 the Government seem to recognise the problem of what are called “pre-med offers”, yet fail to ensure that they are sufficiently discouraged. We are in the same territory here but perhaps not seeking to approach it in the same way. My understanding is that such offers are made to people sometimes at a point of vulnerability following injury and sometimes, it has to be said, in the most cynical of circumstances—when sick pay runs out and after putting in a denial, which, although clearly weak, sometimes worries people.
Lawyers for claimants have a professional duty to put an offer to their client. There are many circumstances in which desperate people ignore the advice to reject that comes with that offer and accept what is offered, however inappropriate the sum is to the injuries that they have suffered. Pre-med offers are not made to be fair or reasonable. The offers are often made by defending insurers to get rid of a case cheaply, and I quite accept that the Government are right to seek to prohibit them. The consequence of acceptance in the absence of a medical report is that if the injured person later develops conditions arising from the accident, they will of course fall back on the NHS to support them. They will have no compensation to get treatment and the cost will fall more widely on society and the taxpayer. Meanwhile, the insurer for the guilty party who caused the injury will have walked away having saved money.
Lord Keen of Elie
I am obliged to noble Lords. The amendments from the noble Lord, Lord Beecham, would place the requirements for medical reports to be provided by an accredited medical expert selected via the MedCo portal or other experts specified by the Lord Chancellor in regulations. Currently, the Civil Procedure Rules require any initial medical report in support of a whiplash claim to be sought through the MedCo IT portal, which is established and proves, as the noble Lord indicated, the independence and quality of these medical reports. The Civil Procedure Rules also require that all MedCo medical reports must be provided by an accredited medical expert. I am therefore uncertain what additional benefit the amendments would add to that process, because we already have in place the requirement that it should be a MedCo report that is obtained.
Indeed, the amendments could have a negative impact on the success of MedCo as, on one view, it would widen the pool of medical experts to any person with medical qualifications rather than someone who has been accredited specifically for these types of report by MedCo. I may have misunderstood Amendment 41, but that appears to be what its result would be, although that may be unintended. I emphasise that we consider that the creation of MedCo, as adjusted recently, has been a success and will continue to be so. We require that parties should have to go through the MedCo portal for an appropriate independent expert report before these claims are settled.
So I ask the noble Lord to reconsider the terms of the amendment because we do not feel that it adds anything to the Bill. I believe we have a common intention here and it may be that I have misunderstood what lies behind Amendment 41, but at present we believe the present structure of MedCo reports and the portal is appropriate as it stands, and at this stage we would not be prepared to contemplate the amendments that have been moved. If the noble Lord wishes to discuss this matter further with me, I will be content to do so because it may be that I have somehow misunderstood the intent of Amendment 41 in that regard.
I turn to the point raised by the noble Lord, Lord Bassam. We looked at the whole question of how it would be most appropriate to deal with claims that were settled without a MedCo report. That would place the insurer or relevant party settling the claim in breach of their own regulatory requirements, and appropriate steps would be taken. In due course, as we know under the financial regulation Bill that is currently going through, that would be the FCA in respect of claims management companies.
I draw attention to Clause 5(6), which states:
“A breach of section 4 does not make an agreement to settle the whiplash claim in question void or unenforceable”.
We adopted that approach to ensure that the claimant should not suffer at all in circumstances where the person making the settlement did so without the report. In other words, the claimant would be entitled to retain all sums paid in those circumstances. If we make the agreement void, the sector would potentially seek recovery of the sums passed in respect of a void transaction. I appreciate that the noble Lord seeks to qualify that, but it raises complex issues over contract liability. We believe that we have taken the correct approach by ensuring that the person making the settlement, who is a regulated party, will be in breach of their regulatory regime if they do so without a MedCo report, while equally ensuring that the claimant should not suffer because of that misfeasance, and should be able to retain the settlement sum.
We do not believe that there is a major issue in this context with regard to those who are persuaded to settle early but, if that is an issue, it is more widely encountered across personal injury claims as a whole, and we do not see any basis for taking an exceptional route in regard to whiplash injury claims. I hope that that reassures the noble Lord that there is a mechanism to protect the claimant and enforce the requirements of Clause 4 against those who are settling claims.
Lord Bassam of Brighton
I am grateful to the noble and learned Lord for his attempt at reassurance. I will reflect on his words, but I may come back with something on Report because I want to ensure that we have that protection there.
Lord Keen of Elie
I quite understand the noble Lord’s concern, and I would be willing to consider any further amendment that he puts forward on this in due course. At this stage, I invite the noble Lord to withdraw the amendment.
Lord Beecham
I am obliged to the Minister for his invitation, which I will certainly take up. The intention of the amendments is to fill out, as it were, the provisions in Clause 4 relating to regulations to be made by the Lord Chancellor about the appropriate evidence of an injury for the purposes of this clause. It may be that both of us are replicating something that already exists, but we can have a look at it and I am sure it is a matter on which we can reach agreement one way or another. I beg leave to withdraw the amendment.
Lord McKenzie of Luton
“( ) The Treasury must make regulations requiring the Financial Conduct Authority, where it is the relevant regulator, to prohibit a regulated person, in the course of providing any claims management services (within the meaning of section 419A of the Financial Services and Markets Act 2000), from doing, or arranging or advising the doing of, an act mentioned in section 4(2).”
Lord McKenzie of Luton
My Lords, I shall also speak to our other amendments in this group. Amendment 43 requires that regulation made by the Treasury must require the FCA, when it is the regulator, to prohibit regulated persons from providing claims management services in advising, doing or arranging any of the acts prohibited by Clause 4 as regards settlement of a claim before a medical report is available. Many have spoken on this Bill and elsewhere about the conduct of claims management companies and how fleet of foot they can be in exploiting opportunities. These activities have been constrained by recent legislation. The FCA is to become a tougher regulator, transitional arrangements have been put in place and a charge cap has been enabled. However, we use this opportunity to get a comprehensive update on where regulation is or what is yet to be put in place for CMCs.
Amendment 44 refers to cold calling. We know that cold calling is often a prelude to some scam or nefarious activity, and there has been a range of activity to restrict such operations. The Financial Guidance and Claims Bill provides for a ban on cold calling for pensions, enables the introduction of a ban on other financial products and makes provision in respect of certain CMC activity but, for the avoidance of doubt, can the Minister tell us where these things stand across the board?
In our debates on the financial guidance body, exchanges took place about no cold calling in respect of personal injury claims by virtue of the involvement of solicitors in that activity. However, it was further suggested that people were finding a way around that. This is by way of a probe. Is all cold calling in respect of personal injury claims—be it by CMCs or otherwise—now prohibited?
Amendment 44 is one of several in this group which require a review of the activities of Part 1: in particular to ensure that savings arising to insurers are passed on to consumers—motorists. We know that this is particularly difficult. The accounts and activities of general insurers can be complicated and it is very difficult to identify a fixed starting point from which to do the analysis. A whole host of questions arise about how the distribution of any savings made should accrue across the range of consumers that face insurers.
There are questions about who might be the person in a particular organisation to have to certify annually that savings have been secured. Experience shows that if you simply have a process whereby someone has to sign off for the company that savings have been passed on and the policy complied with, it could well be delegated to someone who does not necessarily know exactly what has gone on. In all the variations trying to substantiate that savings are made and that what is promised under the legislation is being delivered, we may seriously think about regulation which requires the chief executive of each of the insurers to be the person held to account for the statement about the extent to which compliance with the requirement has been made.
I may return in a moment to speak to some of the other amendments in the group, but for the time being, I beg to move.
The Earl of Kinnoull
My Lords, my own solution to the problem of the promise that the insurance industry has given is contained in Amendment 46. I am very grateful for the support and advice that the noble Lord, Lord Hodgson, has given me in considering this problem. The promise made by the insurers—percentages are a dangerous game, as there is a question of whether you are counting numbers, premium volume or whatever; but in premium volume terms—represent 90% of the market. The promise says that,
“the signatories to this letter today publicly commit to passing on to customers cost benefits arising from Government action to tackle the extent of exaggerated low value personal injury claims”.
In considering how one should attack that problem, I ask myself two simple questions. First, does the person who accepts the data understand it? Having spent a lifetime in the insurance industry, I can say that claims presentations are phenomenally complicated. I will not even start to use some of the jargon. It is extremely complicated to know whether you are talking about an accident year or the date year, as it were, and to understand certain things such as how the claims coding works, loss triangles, reinsurance effects and so on. But a regulator is someone who can do that.
The second question I ask myself is: will the person who has it have a mechanism for ensuring compliance? Are they good policemen? That is why I have centred on the FCA. I have criticised the FCA in the past but I have never criticised its competence. I have only ever said that it has been heavy handed. It will certainly have people who understand the approximately 250 returns that come in from the participant companies that have motor insurance licences in Britain. We can see who they are on the Bank of England website, and they certainly have the power, not least under the regime of treating customers fairly, but they also have plenty of other soft power. The chief executives of insurers have to be approved, as does the chief risk officer. I seem to recall that even the chairman of our audit committee ended up having to be approved. An insurer cannot afford not to have a good relationship with the regulator, because the insurance industry is much more scared of the regulator getting annoyed than of the court. The regulator can move overnight and do something to your business, whereas a court will take a period of time to do that.
Accordingly, I advance my structure for solving the problem, which I think is proportionate. It would be possible for the FCA to report on it in some way—I had not really considered that part. I am asking for the trigger to be fired twice because, by the end of 2020, this legislation will either have been a terrific success, and we will be absolved of this particular problem with the claims industry, or it will have not been a great success; they will have found a way around it, so we would not need to have the report rolling on for ever. On that basis, I ask for my amendment and that of the noble Lord, Lord Hodgson, to be considered.
Baroness Berridge
I rise briefly to speak to the amendments I have in this group, which refer to a report by the FCA as well as a report being laid before Parliament.
It is important in this context to look back at Second Reading and the Government’s confession that the insurance industry had not done all it could to get on top of the issue of fraud. In some respects, on Second Reading one could have been forgiven for thinking that the problem of fraud was so great for the insurance companies that they were teetering on the brink of bankruptcy as it was such an urgent issue. Nothing could be further from the truth. A report from Direct Line Group, which is the largest insurance group that we have, shows profits for financial year 2017 of £610.9 million—a leap of 51.4% on 2016. Dividends were up 40.2%. In its interim report in 2017, one of the reasons it gave for that was fewer than expected bodily injury claims. We might argue for a long time about CRU figures, but Direct Line attributes its increase in profits to a decline in personal injury claims.
It is disappointing to those of us who are saddened and troubled by the effect on genuine claimants that there is no proper mechanism in the Bill to ensure that the £1 billion of savings from claimant payments will actually go to the motorists. The Government are saying that that is the Bill’s overall intention. In light of the scale of the fraud that the insurance industry would like us to believe, it is disappointing that it has not invested more of its resources into controlling this fraud because it is a societal issue that affects culture, as opposed to the profits that I have just outlined.
There is a particular legal problem, though, on which I hope the Minister can help us. Many insurance companies are no longer mutuals; they are listed on the stock exchange, with all its reporting requirements and requirements for directors to take into account their shareholders in the payment of dividends. How is that circle going to be squared? You have directors with an obligation to shareholders. They make cost-benefit savings, but they are under pressure either to pay down debt, as some have with some of their profits, or to pay out dividends rather than decrease the premiums they are charging to motorists.
There is a further issue with insurance companies, which is that they have enjoyed bumper savings from the implementation of the Jackson fixed-cost reductions and the LASPO changes that were introduced in April 2013. I am grateful to a fee earner from the Vale of Catmose—and to Thompsons Solicitors—who pointed out to me that insurers have saved at least £8 billion in claims costs between 2010 and 2016; the figure to date is around £11 billion. In spite of this, premiums have continued to increase relentlessly. She said the average premium has gone up from around £385 in the second quarter of 2013 to £493 in the last quarter of last year, according to the ABI’s own premium tracker—an increase of 28% since the LASPO changes.
There have been inordinate savings before that insurers have not passed on as reduced premiums. It may be as a result of being legal entities, as I have described, that they are under pressure from their shareholders to pay out bumper dividends instead of reducing premiums. There needs to be something more effective in the Bill to ensure that, after the Government introduce these changes, insurance companies will be held strictly to account and will pass on the savings they will undoubtedly make.
There is a laissez-faire attitude that, as half the market uses price-comparison websites, these savings will be passed on, but it does not always come to pass. It is ironic that, after the Second Reading of this Bill, we received the message that the Commons had passed the Domestic Gas and Electricity (Tariff Cap) Bill for meters. That clearly shows that, in some circumstances, the market does not provide the savings to consumers that we envisage. The Government need to ensure that savings are passed on and there is a strict mechanism in the Bill to that effect.
Lord Marks of Henley-on-Thames
My Lords, I first speak to Amendment 53 in this group, which deals with passing savings to insurers on to the public. Our amendment seeks an annual review by the Lord Chancellor of the extent to which insurers are passing on those savings to their policyholders. It is common ground that the purpose of this part of the Bill is to reduce fraudulent claims and to reduce the cost of all claims. This has become particularly apparent here, for claims both fraudulent and genuine. Savings are to be passed on to insurers that will pass those savings to their policyholders. The Government rely on the letter written to the Lord Chancellor in March, in which the insurers said that they would,
“publicly commit to passing on to customers cost benefits arising from Government action to tackle the extent of exaggerated low value personal injury claims”.
At Second Reading, my noble friend Lord Sharkey pointed out that it did not define precisely what “cost benefits” were, nor did it commit to passing on all savings or even all cost benefits made.
We want to see that all savings are in fact passed on. Our amendment is intended to ensure that the Government do better than simply relying on that letter. Far be it from me generally to accuse the Government of naivety but, generally speaking, a letter of intent in that form would not convince many in commerce that the intent was in fact going to be carried out. I believe that a review by the Lord Chancellor and an obligation to report to Parliament would increase greatly our chances of having that stated intent carried out. The reason that we press for the involvement of the Lord Chancellor is that this is a political decision and political action and it seems to me that a political response is required. The purpose of this group of amendments—and ours is consonant with that purpose—is to encourage the insurance industry to stick to its promise, and indeed to do better, to make sure that all savings are passed on; and, because of the report to Parliament, to enable the Government and Parliament to consider reviewing the legislation and/or penalising the insurance industry by imposing some kind of levy, tax or other measures if it fails to keep up to the mark on this.
I will also speak to Amendment 54 in this group, which is directed at cold calling. If the real mischief at which this part of the Bill is directed is fraudulent and exaggerated claims, then cold calling is undoubtedly the chief instrument by which that mischief is done. Sometimes, in discussing this, we have not looked at the fact that these fraudulent and exaggerated claims in fact come at three levels. At its worst, perhaps, it involves faked or staged accidents. These calls that say, “We understand that you have had an accident that was not your fault”, when no such accident has ever happened, are an invitation to the practice that is most invidious, and which we know happens, of accidents being deliberately staged, sometimes by people who develop a real accident involving innocent motorists crashing with them in order to mount claims. The second is fake injuries, where there is a real accident but the injury is faked altogether and a claim is made. The third is exaggerated injuries. The practice of cold calling makes all three types of dishonesty worse and we really have to get on top of it.
The first part of our amendment would mandate the Lord Chancellor to carry out an annual assessment of the effect of cold calling on the prevalence of fraudulent whiplash claims. The second part would compel the Lord Chancellor, if he were satisfied that it would significantly reduce such claims, to ban cold calling and to ban the commercial use of any data obtained by cold calling. That second part is directed at the fact that it is very difficult to legislate against cold calling from abroad but that, if you legislate against the commercial use of data, you do catch UK corporations or individuals who are using such data to pursue these fraudulent claims. The amendment is not specific to claims management companies. I mentioned earlier the interest that car hire companies and car repair companies have in pursuing these claims. They can offer to pursue personal injury whiplash claims as an add-on to sell their other services.
This is a probing amendment in a sense in that the Financial Guidance and Claims Bill, as mentioned by the noble Lord, Lord McKenzie, covered claims managers and defined claims management services quite widely. However, we are not convinced that that would achieve our object of banning the use of cold calling for other purposes or by other outside companies or that it would cover the use of cold calling in its widest sense.
Lord Hodgson of Astley Abbotts
My Lords, my name is down to Amendment 46, moved by the noble Earl. I entirely support what was said by my noble friend Lady Berridge and the noble Lord, Lord Marks of Henley-on-Thames. It is not good enough just to say, “We are going to make sure it is competitive”. There will have to be some demonstration of returns and the improvement from this.
Therefore, who invigilates and who enforces? The noble Lord, Lord Marks, suggested a review by the Lord Chancellor. The noble Earl pointed out quite graphically the complexity of unpicking insurance claims and returns. I urge the Government, if they are minded to move in this direction, to think about the FCA as the invigilator and the enforcer. It has exceptionally wide powers.
The noble Earl referred to treating customers fairly but there is a thing called Section 166, which is an investigation by skilled persons. This puts the fear of God into people because the FCA can choose to have anything investigated and the cost is charged to the company being investigated. That sort of power is extremely valuable in unpicking the very detailed information that the noble Earl referred to. I fear that the Lord Chancellor’s Department would not be as well equipped to do it as the FCA. I hope the FCA will be uppermost in the Government’s mind if they are minded to have somebody keep an eye on and verify and show beyond peradventure what savings are being made and how they are being distributed.
Lord Keen of Elie
My Lords, clearly these amendments are directed primarily at two areas: first, the review or regulation of the effectiveness of these reforms and the supporting regulations and, secondly, the issue of cold calling. I will deal with each in turn. I am not going to go through the detail of each set because I understand that the force of the amendments is all in one direction on the first point. The amendments as drafted would require reports on these reforms to be published shortly after their implementation. Although I understand the reasoning behind them, I question how effective they would be in their current form. I appreciate, nevertheless, that these are essentially probing amendments and it is in that spirit that I address them.
As has been observed, the insurance sector has made it clear and very public that it has a commitment to pass on savings. Having made that commitment, insurers will be accountable for it in a highly competitive market. Insurers have pointed out how they have passed on to customers the benefits of previous government action to cut the cost of civil litigation without the need for regulation. The Government, of course, are intent on monitoring the reaction of the insurance sector to these reforms and will engage with it in that regard. If the industry as a whole sought to avoid passing on these savings, that would signal that the competitive nature of the market had changed. If that were to happen, I have no doubt that the Financial Conduct Authority and, indeed, the Competition and Markets Authority would wish to investigate.
Nevertheless, I hear the message from around the Committee about the need to put further discipline in place with regard to these savings, and that is a matter that we will consider. As I say, I appreciate what is intended here. The question is how we can effectively bring that about. We have to remember that the insurers are regulated by the FCA already. Oversight is in place with regard to their conduct. With all due respect, I take issue with my noble friend Lady Berridge about there being some conflict between shareholder interest and the interest of customers.
An insurance company requires to rely on its integrity in order to maintain its resilience as an insurer. Any board of directors that abandoned integrity in favour of a larger dividend would find itself not only in conflict with its regulator but, no doubt, in conflict with its own shareholders, who would not appreciate that sort of conduct either, given that it would simply undermine the capital value of their investment. Therefore, I do not believe that there is that conflict of interest at all.
The amendment put forward by the noble Lords, Lord Beecham and Lord McKenzie of Luton, would introduce a formal requirement for Her Majesty’s Treasury to keep under review the ban on cold calling, and the amendment in the names of the noble Lords, Lord Marks and Lord Sharkey, would introduce a formal requirement for the Lord Chancellor to review the effect of cold calling and the ability to introduce regulations for a ban on cold calling. Of course, a ban on cold calling in relation to claims management was introduced in the Financial Guidance and Claims Bill and was agreed by this House quite recently. As noble Lords will be aware, the Bill inserts a provision into the privacy and electronic communications regulations, which govern unsolicited direct marketing calls, to ban such calls in relation to claims management services unless prior consent has been given. The Government consider these to be robust proposals which will add to the package of measures in place for tackling unsolicited marketing calls.
With regard to the use of the material that is obtained, there is of course provision for regulation of the legal profession. The SRA has regulations in place for the acquisition and use of such data, so that matter is already regulated. However, I acknowledge the point made by the noble Lord, Lord Marks, about the difficulty of what I would term “regulating the unregulated”, where cold calling centres are based outside the United Kingdom. I am advised that it is possible to trace more than half the cold calls received in the United Kingdom to one place—essentially a factory—based in Pakistan. But it is fleet of foot: it changes its name and location on a regular basis. That is a formidable challenge and we are seeking to approach it by means of regulating, apart from anything else, the use of the material gleaned by those means.
The amendment put forward by the noble Lord, Lord Beecham, would introduce a formal requirement for the Treasury to make regulations requiring the FCA also to prohibit certain pre-medical offers—I think that that is also in the amendment. Again, we are of the opinion that the Bill deals sufficiently with that issue as well.
As I indicated, I have heard what has been said around the Chamber about the consideration of further measures to ensure that savings are passed on to consumers, and I will give that further consideration before Report. On that basis, I invite the noble Lord to withdraw the amendment.
Lord McKenzie of Luton
My Lords, I thank the Minister for that detailed reply. I am sure that these are matters to which we will need to return at a later stage. One of the things that we were seeking to be sure about—and this is, perhaps, an issue that we share with the Lib Dems—is how extensive and how robust across the board are the prohibitions around cold calling. The noble and learned Lord mentioned the SRA. As I recall, when we were debating the financial guidance Bill at Second Reading, the SRA and its activities were held out as being a reason to ban cold calling for personal injury claims. But then one noble Lord in the debate said, “No, there are people getting round that by a number of means”. It is those sorts of issues that we want to be sure about, so that we can look across the piece and see that cold calling—so far as it can possibly be legally achieved within the UK—is dealt with. Having said that, I beg leave to withdraw the amendment.