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Kerry McCarthy (Bristol East) (Lab)
Wes Streeting (Ilford North) (Lab)
The Minister of State, Northern Ireland Office (Mr Shailesh Vara)
May I start by paying tribute to Lord Melchett who, when he was in the House of Commons, was Peter Melchett? He did outstanding service to the nation when he was here. Indeed, he was a Minister of State in the Northern Ireland Office in 1976.
May I also say, Mr Speaker, that in the past 36 hours or so in Northern Ireland there have been three car crashes, which have taken the lives of four people? I am sure the whole House sends our sympathies and condolences to the loved ones of all those who have died.
The UK Government are determined to deliver the best deal for the whole of our United Kingdom, including Northern Ireland. We are committed to avoiding a hard border, including any physical infrastructure or related checks and controls, while maintaining the constitutional and economic integrity of the United Kingdom. We have proposed a comprehensive future partnership between the UK and the EU that would meet these commitments.
Kerry McCarthy
I thank the Minister for that response and for his tribute to Peter Melchett who, as well as serving in the Northern Ireland Office, was a good friend of mine, a lovely man and a passionate environmentalist.
Is it not the case that the backstop proposal is now just dead in the water? The Government are not going to get anywhere with it. A poll this week said that people in Northern Ireland would vote for a united Ireland if a hard border was put in place. Are not the Government sacrificing the Union on this altar? Would not the best solution be to move forward with plans to stay in the single market, stay in the customs union, avoid a hard border, and protect the people of Northern Ireland from Brexit?
Mr Vara
I make it absolutely clear to the hon. Lady that it is our intention that there will be no hard border and no physical infrastructure. The people of this country voted in the referendum, and this Government’s intention is to make sure that we are not part of the single market or the customs union. The whole United Kingdom, including Northern Ireland, will be leaving those two institutions.
Wes Streeting
One of the reasons why a majority of people in Northern Ireland voted to remain was because they understood the consequences of leaving the European Union on jobs, livelihoods, communities and cross-border relationships—not simply economic relationships, but personal ones. Given the absence of a functioning Executive and Assembly in Northern Ireland, and given that the concerns of the people of Northern Ireland are evidently not understood by leading figures in the governing party in Westminster, what are the Government doing to ensure that the concerns and interests of the majority of the people in Northern Ireland are properly heard and represented at the negotiating table?
Mr Vara
As far as the referendum is concerned, it was not a regional referendum but a national referendum, and the people of the United Kingdom took a decision to leave. On the hon. Gentleman’s second point, let me make it absolutely clear that we are committed to ensuring that the devolved Administration is up and running again. We are working very hard to ensure that that happens. He should remember that the last time Northern Ireland went into direct rule, that lasted for five years, and the period before that lasted for 25 years. It is very easy to slip down the road to direct rule, but we want to avoid that because it is important that local people have local representation that can be accountable locally.
Dr Andrew Murrison (South West Wiltshire) (Con)
On 27 June, Mr George Hamilton, the Chief Constable of the Police Service of Northern Ireland, told the Northern Ireland Affairs Committee:
“We do not know who is leading the multiagency response to the land border”.
What has been done to give clarity in the weeks since he made that statement? In particular, what proportion of the uplift to Her Majesty’s Revenue and Customs and the UK Border Force, as announced by the Government, will be assigned to Northern Ireland?
Mr Mark Harper (Forest of Dean) (Con)
May I remind the Minister that in the December joint report on article 50, the EU agreed that the United Kingdom would make sure there was unfettered access for Northern Ireland’s businesses to the rest of the United Kingdom in all circumstances? Reports over the summer suggest that Mr Barnier appears to be devising creative solutions to try to get around the commitment that he made. May I ask the Minister and the Secretary of State to remind him that he signed up to those words and that we expect him to deliver on the commitments that he has made?
Mr Vara
I am grateful to my right hon. Friend for putting that point at the forefront of our proceedings following the recess. He is absolutely right: Michel Barnier made the commitment; and the European Union and Britain signed up to the joint report in December. We intend to hold him to it.
Nigel Dodds (Belfast North) (DUP)
May I bring the Minister back to the question asked by the Chairman of the Northern Ireland Affairs Committee, which he did not answer? The issue highlighted by the Chief Constable of the PSNI, which we have raised directly with the Prime Minister, is what extra resources are being given to prepare for Brexit. Those resources have been requested by the Chief Constable, since he has made it very, very clear that he has not had a fair allocation.
Nigel Dodds
With the greatest respect, we are not asking about issuing guidance; we are asking about the allocation of resources. I really want to press the Minister on this issue, since it will have a very big impact on the resourcing of policing in Northern Ireland more widely. What are he and the Government going to do—this has been on their table for many months now—to allocate to the Chief Constable the resources that he needs and that he fairly has asked for?
Mr Vara
I assure the right hon. Gentleman that my right hon. Friend the Secretary of State spoke to the Chief Constable this morning. We are in regular dialogue and we are considering the proposals that he has put forward. That is what I can say. We hope to come up with a solution in due course.
Mr Philip Hollobone (Kettering) (Con)
The Government are right to reject the EU’s proposals for a customs border in the Irish sea. Will the Minister remind the House of the balance of trade between Northern Ireland and the Republic of Ireland, and the Republic and Great Britain?
Gavin Newlands (Paisley and Renfrewshire North) (SNP)
Two weeks ago, the Government published advice for UK businesses on the potential impact of a Brexit no deal. Unbelievably, businesses in Northern Ireland were asked to
“consider whether you need advice from the Irish Government about preparations you need to make.”
That is a quite extraordinary abdication of responsibility. Will the Minister confirm what involvement his Department had in the preparation of the advice, and will he commit to giving further assistance to businesses in Northern Ireland?
Mr Vara
Clearly we have a responsibility as a Government to business people in respect of what we will do or what we intend to do, but we cannot speak for other countries. It therefore of course makes eminent sense for businesses in Northern Ireland that do deals across the border to consult so that they find out what is happening with other EU countries. The UK Government cannot speak for the Irish Government, so that dialogue is important.
Stephen Kerr (Stirling) (Con)
How do the Government plan to ensure that our departure from the European Union is used as an opportunity to strengthen the Union?
Mr Vara
My hon. Friend makes a very good point. We are leaving the European Union as four nations. It is absolutely clear that the economic and constitutional integrity of the United Kingdom will not in any way be compromised. In our negotiations with the European Union, we speak as the United Kingdom, not as any specific one of the four nations.
Karin Smyth (Bristol South) (Lab)
May I share the Minister’s sentiments about Peter Melchett and the recent loss of life due to the car crashes?
Tourism has been a success story in the years since the Belfast/Good Friday agreement, helping to transform the image of Northern Ireland throughout the world. It is therefore worrying that figures released in August show a 6% drop in visitors between January and March. The Prime Minister and most of her current and past Cabinets have barely set foot in Northern Ireland over the past two years, so may I suggest a group booking? Such a visit would help to end the drip of uninformed, unhelpful comments about Northern Ireland from the Government Benches that has become dispiritingly regular.
Mr Vara
First, I congratulate the hon. Lady on her appointment to the shadow Northern Ireland Office team. We look forward to working with her in a constructive way.
It is important that we speak up for Northern Ireland and the rest of the United Kingdom as we leave the European Union. The hon. Lady talks about tourism. More people visit Northern Ireland now than before. They are spending more money and staying longer. The “Lonely Planet” guide has recommended Belfast and the Causeway coast as the No. 1 region in the world to visit. It is important to recognise the strengths of Northern Ireland and to build on them.
Andrea Jenkyns (Morley and Outwood) (Con)
The Secretary of State for Northern Ireland (Karen Bradley)
The December joint report commits us to avoiding a hard border between Northern Ireland and Ireland, and to no new borders within the United Kingdom. The Prime Minister has been very clear that elements of the EU’s backstop proposal are unacceptable. It would, if implemented, undermine the UK common market and threaten the constitutional integrity of the UK.
Andrea Jenkyns
Will my right hon. Friend confirm that in her discussions with the Government of the Irish Republic she has emphasised that Irish insistence on a backstop that would force Northern Ireland, or indeed the whole of the UK, to remain in parts of the EU or its customs union are unacceptable and the surest way to deliver a no deal?
Karen Bradley
I can assure my hon. Friend that in my discussions with all parties and Governments in the European Union I am very clear that the constitutional and economic integrity of the United Kingdom must be respected, and that means no border down the Irish sea and that all businesses in Northern Ireland must have unfettered access to UK markets, as my right hon. Friend the Member for Forest of Dean (Mr Harper) indicated earlier.
David Simpson (Upper Bann) (DUP)
I appreciate what the Secretary of State has said, but does she fully understand the magnitude of the situation were there to be any move to impose a backstop, divergence or anything else that would separate us from the rest of the United Kingdom?
Karen Bradley
We have been absolutely clear—the Prime Minister has been clear; I have been clear—that we respect the fact that the backstop has to be put into legal text, but that legal text has to be clear that the economic and constitutional integrity of the United Kingdom is sacrosanct.
Bob Stewart (Beckenham) (Con)
For two years I operated a hard border between Northern Ireland and the Republic. I see no reason whatsoever why technology cannot make it very soft—indeed, invisible. Does the Secretary of State agree?
Karen Bradley
My hon. and gallant Friend has great experience from his time in Northern Ireland, and I am sure he knows how difficult it was to police that border. Some 30,000 military and police personnel were unable to close the border, so I do not think that anybody should expect us to see a hard border today. However, I would be very happy to have a conversation with him about technology so that we can really explore all that.
Stephen Pound (Ealing North) (Lab)
May I, from the bottom of my heart, congratulate the hon. Member for North West Cambridgeshire (Mr Vara) on his long-deserved and well-merited elevation to the dizzy heights of Minister of State? I look forward to working with him.
There is, however, a cloud on the horizon. The Counter-Terrorism and Border Security Bill contains a proposal unique in the United Kingdom for unfettered, unqualified stop-and-search along the border. We must never forget that there are those who have to police the border. Will the Secretary of State or Minister of State speak with their opposite numbers about the implications of this piece of ill-thought-out legislation, because I see trouble brewing on the border if it goes ahead?
Karen Bradley
Conservative Members are delighted that the hon. Gentleman is still in his place. When we saw the very welcome appointment of his colleague over the summer, we had concerns that that might have an impact on his position; we are grateful that it has not.
We are aware of concerns raised in Northern Ireland about that Bill, which deals specifically with the threat elsewhere, and we are having discussions and conversations to give assurances to those in Northern Ireland about the concerns that they have raised.
Mr Speaker
The hon. Member for Ealing North (Stephen Pound) is personal testimony to the survival of rare breeds. The whole House is grateful for that important fact.
Tom Pursglove (Corby) (Con)
The Minister of State, Northern Ireland Office (Mr Shailesh Vara)
Northern Ireland has proved itself to be a top destination for inward investment from companies from the rest of the UK and also from overseas. Over 900 companies worldwide have invested in Northern Ireland, and I welcome this week’s announcement that PA Consulting will be creating 400 new jobs in Belfast. I firmly believe, however, that Northern Ireland can do even better, and we continue to work to restore stable, devolved government so that Northern Ireland can maximise its potential as a place to invest and do business.
Tom Pursglove
I share the Minister’s enthusiasm. Northern Ireland is clearly a key driver of United Kingdom exports and will be even more important as we leave the European Union, so what steps is the Department taking to foster further investment and also to sell the opportunity of Northern Ireland as a top exporter around the world?
Mr Vara
One of the fastest routes to a strong economy is through a healthy, growing export economy. The Northern Ireland Office is working with Departments across Whitehall, including the Department for International Trade, to maximise UK Government initiatives such as the GREAT campaign and the recently launched export strategy to promote exporters and help them to realise their potential. My right hon. Friend the Secretary of State and I regularly champion new investment announcements in Northern Ireland and promote Northern Ireland as a great place in which to invest and do business. That is something that was referred to in the Budget as well.
Lady Hermon (North Down) (Ind)
How on earth does the Minister expect to attract inward investment into Northern Ireland when we have not had a functioning Assembly for 18 months? We have a Secretary of State who said some months ago that she was “minded” to cut the salaries of the MLAs, but she has done absolutely nothing about doing so, so can the Minister give us some very good news today and announce a cut in MLAs’ salaries?
Mr Vara
I am delighted to be able to give some very good news to the hon. Lady: in July US company Allstate, which is one of the many companies that are investing in Northern Ireland, opened Northern Ireland’s largest single office development for 15 years, investing £30 million. Allstate employs around 2,200 people in sites in Belfast, Derry and Strabane so, notwithstanding the present circumstances of not having a devolved Administration, the economy is looking up, business is coming in and we continue to try to get that devolved Administration up and running.
Fiona Bruce (Congleton) (Con)
Sarah Jones (Croydon Central) (Lab)
The Secretary of State for Northern Ireland (Karen Bradley)
I am acutely aware of the deep frustration and difficulties faced by the people of Northern Ireland and the urgent need to re-establish a locally elected, democratically accountable devolved Government. I remain in close contact with the five main political parties and the Irish Government where appropriate.
Fiona Bruce
The roles of the Northern Irish parties and their Assembly should be respected. Will the Minister confirm that the legality of taking Misoprostol, the second pill in medical abortions, at home in Northern Ireland is something for the people of Northern Ireland and their locally elected representatives to determine?
Karen Bradley
Yes, I can confirm that. Abortion is a devolved matter in Northern Ireland, and it is only right that questions of law and policy on abortion, including the legality of any medicines, are decided by a devolved Government in Northern Ireland.
Sarah Jones
Given that it is now more than 18 months since the Assembly was suspended, will the Prime Minister now become more involved in the process, along with the Taoiseach?
Karen Bradley
I can assure the hon. Lady that the Prime Minister is very involved in the conversations and discussions that we have with all the main political parties. On her visit to Northern Ireland at the beginning of the summer, she met all five main parties and had discussions with them about that. Again, I continue to hold discussions with the Irish Government, including with the Taoiseach, whom I saw on Sunday.
Theresa Villiers (Chipping Barnet) (Con)
With very important decisions on matters such as NHS pay and planning now held up by legal uncertainty, is it not time that this House considered legislating to give civil servants the powers that they need to take such decisions?
Karen Bradley
My right hon. Friend, who has considerable experience of this matter—experience beyond that of many people in this House—is quite right that there are very many decisions. I am looking carefully at the court judgments and determining the best course of action to ensure that we have the best chance of re-establishing devolved government in Stormont, and of making sure that there is good governance for the people of Northern Ireland.
Sir Jeffrey M. Donaldson (Lagan Valley) (DUP)
The Secretary of State will know that four out of the five political parties eligible to be in the Executive would join the Executive tomorrow. It is one party—Sinn Féin—that is holding the people of Northern Ireland to ransom. Is it not therefore time for the Secretary of State to start ensuring that decisions affecting my constituents and those of my right hon. and hon. Friends are made so that the people of Northern Ireland have some form of government?
Karen Bradley
The right hon. Gentleman has made many representations to me on this point, and I know how passionately he stands up for his constituents in Lagan Valley, many of whom I met yesterday at the Hillsborough garden party, when they were very complimentary about their Member of Parliament. I continue to have discussions with all five main parties, because the important point is that we get devolved government up and running as soon as possible, but we ensure that there is good governance in Northern Ireland.
Tony Lloyd (Rochdale) (Lab)
The Secretary of State will know that it is 600 days this weekend since Northern Ireland had a functioning Assembly or Executive. Will she tell the House very clearly what urgent steps she will take to bring the five parties together, to reconvene the British-Irish Intergovernmental Conference, to cut the pay of MLAs—as has been asked for already—and of course, importantly, to make sure that real urgency is now put into this? We will support legislation where appropriate, but that legislation has to be brought forward urgently now.
Karen Bradley
I am grateful for the hon. Gentleman’s offer of support for legislation, and I am looking at the options available to us. There are court cases that have hampered decision making and are making things more uncertain; we are acutely aware of that, and I want to make sure that we do something that is coherent, that works for the people of Northern Ireland and that does not prevent the politicians in Northern Ireland from going back into devolved government.
Ged Killen (Rutherglen and Hamilton West) (Lab/Co-op)
The Secretary of State for Northern Ireland (Karen Bradley)
This Government have a strong track record of promoting and supporting LGBT rights across the United Kingdom, including equal marriage. I was proud to demonstrate this support by having the rainbow flag flown from Stormont House last month to mark Belfast Pride.
Ged Killen
But flags are not enough. On everything from mental health to civil rights, LGBT people in Northern Ireland are worse off than those in the rest of the UK, but groups I met recently say they get no funding from the Assembly or from Westminster, and there was nothing in the Government’s LGBT action plan. Will the Secretary of State consider the creation of a discretionary fund to ensure these groups get the support they need, particularly while there is no functioning Assembly?
Karen Bradley
I will look at the hon. Gentleman’s point. I have met many groups representing LGBT interests in Northern Ireland, but many of these matters are devolved and they should quite rightly be resolved by the devolved Government in Stormont.
Luke Pollard (Plymouth, Sutton and Devonport) (Lab/Co-op)
Karen Bradley
We are all looking forward to the day, and I congratulate the hon. Gentleman. I voted for same-sex marriage to be legal in my own constituency, and I am very proud that I did that, but it is right that these matters are dealt with by the devolved Government. [Interruption.] That is why we need a devolved Government in Stormont—so that we can resolve these issues. [Interruption.]
Mr Speaker
Order. Members are making far too much noise in the Chamber. I am quite sure it is not something I would ever have done as a Back-Bench Member, and I am sure the House wishes to hear the hon. Member for Vauxhall (Kate Hoey)—and that is what it is going to do anyway.
Kate Hoey (Vauxhall) (Lab)
The Minister of State, Northern Ireland Office (Mr Shailesh Vara)
The people of Northern Ireland have a proud history of sporting achievements gained while representing both the United Kingdom and Ireland. It is for individual athletes, subject to the rules of their respective sport’s governing body, to decide which country they wish to represent. This Government are wholly supportive of this choice being maintained.
Kate Hoey
The Minister is, as he knows, quite wrong. A young Northern Ireland sportsperson who wishes to, for example, box for the United Kingdom has to move to Great Britain; otherwise, they have to box for Ireland. That is the case in other sports, too. The Belfast agreement said that everyone had the right to choose to be British or Irish. Surely this must apply to sport, and the Minister must do more about this because it is just not fair.
Mr Vara
First, I pay tribute to the hon. Lady, who I know has taken a passionate interest in this subject; we have talked about it before. She will of course be aware that Northern Ireland has won serious medals at the Commonwealth games for boxing. The issue itself is a devolved matter, and is also an issue for individual athletes and their governing sporting bodies to take up. As far as the boxing association of Northern Ireland is concerned, I suggest that it continues its dialogue with the Ministry of Housing, Communities and Local Government.
Andrew Bridgen (North West Leicestershire) (Con)
Does the Minister agree that all sportsmen and women should have the right to represent the country they choose to, as long as they meet the eligibility criteria for that country?
Peter Grant (Glenrothes) (SNP)
Alan Brown (Kilmarnock and Loudoun) (SNP)
The Secretary of State for Northern Ireland (Karen Bradley)
The Government’s commitments in respect of the border between Northern Ireland and Ireland have been consistently clear. There will be no physical infrastructure on the border or related checks and controls. This commitment is also reflected in the December joint report text, which we have committed to translate into legally binding text in the withdrawal agreement.
Peter Grant
In nine months, all that the Government have done by way of proposals for an open border in Ireland is to demand that 27 other sovereign states change their customs systems in order to collect customs duties on behalf of this Government. Why do the Government expect every other country in the European Union to sort out the mess that they have created?
Karen Bradley
With all due respect, I think the hon. Gentleman is confusing our proposals in the White Paper on the future relationship with our proposals for the legal, binding text for the protocols in paragraph 49 of the joint report, which we have committed to making into a legal text. We are working with the European Union on coming up with a text that we can all live with, but we will not accept the text that was put forward by the European Commission.
Alan Brown
The Secretary of State talks with no hint of irony about consistency from this Government. The reality is that their obsession with ending the free movement of people is going to require some form of border control. How does she square ending the free movement of people with her obligations under the Belfast agreement?
Karen Bradley
The people of the United Kingdom voted to leave the European Union, and that means that we will regain control of our laws, our borders and our money. We will also ensure that we will meet the commitments that we made in the joint report in December to ensuring that there is no hard border on the island of Ireland and no border in the Irish sea.
Sammy Wilson (East Antrim) (DUP)
Collecting duties on trade across the border between Northern Ireland and the Irish Republic currently happens and does not present any problems. The real damage to Northern Ireland and to the integrity of the United Kingdom would be to have regulatory alignment between Northern Ireland and the Republic, giving the EU, rather than London, control over our laws in Northern Ireland. Will the Secretary of State give an assurance that in no circumstances will she agree to the backstop arrangement demanded by the EU, which would split the United Kingdom by having laws—
Karen Bradley
I refer the right hon. Gentleman back to the comments made by my right hon. Friend the Prime Minister when she said that no Prime Minister of the United Kingdom could accept the text put forward by the European Commission.
Tulip Siddiq (Hampstead and Kilburn) (Lab)
The Prime Minister (Mrs Theresa May)
I am sure that Members from all sides of the House would like to join me in congratulating both the English and the Scottish women’s football teams on their excellent performance in qualifying for next year’s World Cup.
This morning, I had meetings with ministerial colleagues and others. In addition to my duties in this House, I shall have further such meetings later today.
Tulip Siddiq
My constituent Nazanin Zaghari-Ratcliffe was released temporarily for three days last month before being hauled back to prison in Iran. Worse still, when she was on furlough, she was contacted by the Iranian Revolutionary Guard and told that if she attempted to contact the British Embassy, her family would be harmed. I find it deeply troubling that a British citizen was threatened against contacting her own embassy. Does the Prime Minister share my concern, and will she raise this specific issue with President Rouhani when she next speaks to him, perhaps in New York later this month?
The Prime Minister
I share the concerns that the hon. Lady has expressed, and I know that during this difficult time the thoughts of everyone across the whole House remain with Nazanin Zaghari-Ratcliffe, and with her family and friends who have been campaigning tirelessly for release. The hon. Lady will know, as this is her constituent, that one of the difficulties is the question of whether the Iranian Government recognise dual nationality, which they do not. They are not obliged to do so under international law. She asks me to raise this matter with President Rouhani. I regularly do so whenever I speak to him. It is an issue that the Foreign Secretary, the Foreign Office and other Ministers also consistently raise with the Iranian Government, and we will continue to do so.
Maggie Throup (Erewash) (Con)
The Prime Minister
Jewish people living in this country should feel safe and secure, and should not have to worry about their future in their own country. There is no place for racial hatred in our society, and it is important that we take every step to tackle it. That is why we were the first country in the world to adopt the definition of antisemitism set out by the International Holocaust Remembrance Alliance; we have been taking steps to provide funding to ensure that security measures can be taken in Jewish faith schools and synagogues, and we have provided funding to the Holocaust Memorial Day Trust to run events for Holocaust Memorial Day. We should all be united in our determination to tackle antisemitism, so when the leader of the Labour party stands up he should apologise for saying that Jewish people who have lived in this country their whole lives do not understand English irony.
Jeremy Corbyn (Islington North) (Lab)
There is no place for racism in any form within our society—on that we are all agreed—and we should tackle it wherever it arises, in our parties as well, and that includes the Conservative party.
I join the Prime Minister in congratulating the English and Scottish women’s football teams on their qualification for the World cup, and I look forward to them doing extremely well.
The International Trade Secretary said that the likelihood of no deal is now 60:40, which in betting parlance means that there is a pretty good chance that there will not be a deal—it is more likely than not. Is he right?
The Prime Minister
We are continuing to do what we have always been doing, which is working to get a good deal with the European Union for our future relationship once we have left the EU, but it is entirely right and proper that we should prepare for all eventualities, because we have not yet come to the end of the negotiations. That means that it is right that we are preparing for no deal, as indeed the EU has been doing, sending out notices in relation to no deal. We have also been publishing technical notices, so that businesses and citizens would know where they stand and how to prepare in the event of no deal. We have published over 20 such notices so far, and the final total is likely to be around 70. We are making those preparations, but, crucially, this Government are working for a good deal, preparing for every eventuality and preparing to ensure that this country makes a success of leaving the EU, regardless of the outcome of the negotiations.
Jeremy Corbyn
The International Trade Secretary has said that he is unfazed by no deal; the new Foreign Secretary, who is here today, said over the summer that no deal would be a “huge geostrategic mistake”; and the Chancellor, who is sitting next to the Prime Minister, wrote to the Treasury Committee stating that a no deal Brexit would slash GDP by almost 8%, which is comparable with the global financial crash. Which assessment does she agree with?
The Prime Minister
The director of the World Trade Organisation said that no deal would not be a “walk in the park” but it would not be the “end of the world”. The Government are right to make the necessary preparations for no deal while working for a good deal to ensure that we deliver on the vote of the British people, that we come out of the European Union on 29 March 2019, and that we do so in a way that protects jobs and livelihoods, ensures no hard border between Northern Ireland and Ireland and maintains the precious Union of our United Kingdom. On one thing I am clear: we are working for that outcome and we will not have a second referendum. The right hon. Gentleman should stand up and rule out a second referendum.
Jeremy Corbyn
The Prime Minister says that no deal is better than a bad deal, the Chancellor says that no deal would cause a catastrophic collapse of our economy, and the Brexit Secretary waded in yesterday to say that there were “countervailing opportunities” to a no deal Brexit. Will the Prime Minister enlighten us as to what these “countervailing opportunities” actually are?
The Prime Minister
As I said to the right hon. Gentleman in answer to his first question, this Government are working to ensure that, whatever the outcome of the negotiations, this country makes a success of coming out of the European Union and that we see a global Britain and a brighter future for people here in this country.
Interestingly, I yet again suggested to the right hon. Gentleman that he stand up and categorically rule out a second referendum, and he refused to do so. I will give him another opportunity to do it now.
Jeremy Corbyn
A majority of people might have voted to leave but they expected the negotiations to be handled competently, and they certainly are not. I did not hear a single one of those countervailing opportunities. I simply say to the Prime Minister that she cannot keep dancing around all the issues. It seems that Panasonic has taken the cue and decided to dance off altogether—it is relocating out of this country. Could the Prime Minister tell the House how many other companies have been in touch with her or her ministerial team and told her privately that they intend to relocate in the absence of a serious, sensible deal with the European Union?
The Prime Minister
What we have seen is businesses showing confidence in our economy. In August, Dyson announced £200 million of investment in its electric vehicle testing facility in Wiltshire, and 2 Sisters Food Group—Bernard Matthews—has won major new contracts with supermarkets, underpinning 600 new jobs. The Hut Group has announced 200 new tech jobs in Salford. We welcomed £130 million of foreign direct investment in our automotive sector from four companies in July, generating around 500 new jobs.
What we are doing is negotiating a Brexit deal that will deliver for this country and deliver on the vote of the British people, and will ensure that we do so while protecting jobs, maintaining our Union and ensuring no hard border between Northern Ireland and Ireland. And what do we get from the right hon. Gentleman? He said that he wants to do new trade deals, and now he wants to be in the customs union. At one stage he was asked about his view on free movement, and he said:
“Labour is not wedded to freedom of movement for EU citizens as a point of principle, but…nor do we rule it out.”
So he cannot even agree with himself on his own position.
Jeremy Corbyn
I am not quite sure who the Prime Minister is listening to, but she may have heard from the National Farmers Union, which says it will be an “Armageddon scenario”. The TUC says that a no deal Brexit
“would be devastating for working people.”
The EU’s chief negotiator and President Macron both seem to have categorically ruled out the Prime Minister’s Chequers proposals. We are now at a critical point. Will the Prime Minister tell the House whether she believes a deal will be reached by the agreed deadline of October? That is October 2018, not any other one.
The Prime Minister
We are working for a good deal. We are still working, as are the European Union, to the timetable of October, because we are leaving the European Union on 29 March 2019. We will need to pass legislation in this House prior to our leaving the European Union. The right hon. Gentleman talks about no deal, and he talks about a deal. I will tell him what would be bad for this country: signing up to a deal at any price whatsoever, which is the position of the Labour party. That would destroy jobs and that would be bad for the British people.
Jeremy Corbyn
Yesterday the Brexit Secretary admitted there had been “some slippage”. Today Lord King condemned the “incompetence of the preparation”, saying that it “beggared belief” that the sixth biggest economy in the world should get itself into this position.
The Prime Minister has repeatedly said that no deal is better than a bad deal, but no deal is a bad deal, and everyone from the CBI to the TUC to her own Chancellor is telling her the same thing. The Chequers proposal is dead, already ripped apart by her own MPs. When will the Prime Minister publish a real plan that survives contact with her Cabinet and with reality? Those are, of course, two very separate concepts. When will we get proposals that put jobs and the economy ahead of her survival and that of her own Government?
The Prime Minister
We have published a plan, which we are discussing with the European Union, that ensures that we deliver on the vote of the British people; that we bring an end to free movement; that we come out of the common agricultural policy and the common fisheries policy; that we no longer send vast amounts of money to the EU every year; that we no longer have the jurisdiction of the European Court of Justice here in this country; and that we do not have a hard border between Northern Ireland and Ireland, and do not have a border between Northern Ireland and Great Britain. What I am doing is negotiating a Brexit deal for Britain. I am making sure that the economy works for everyone. I am building a stronger, fairer country. What is the right hon. Gentleman doing? He is trying to change his party so that antisemites can call the creation of Israel racist, and he should be ashamed of himself.
John Lamont (Berwickshire, Roxburgh and Selkirk) (Con)
The Prime Minister
I understand the importance to partners across the region of the campaign and proposal to which my hon. Friend refers. I am sure he understands that this is a devolved transport issue, but I encourage all parties involved to come to a workable solution and to ensure the best outcome for the entire region, because this can bring great benefits. On his point about the Borderlands growth deal, may I assure him that the UK and Scottish Governments will continue to work in partnership to deliver that deal?
Ian Blackford (Ross, Skye and Lochaber) (SNP)
I congratulate Scotland and England on qualifying for the World cup. All of us in Scotland are immensely proud of our Scottish women’s team.
When the Tories introduced Thatcher’s poll tax in the 1980s, Scotland was used as a guinea pig and the Scottish Tories paid the price for their folly—they were wiped off the political map of Scotland. The Prime Minister’s Chequers plan is even more unpopular than the poll tax. Why is the Prime Minister gambling with Scotland’s future by taking us out of the EU against our will with her disastrous Chequers plan?
The Prime Minister
The only people gambling with Scotland’s future are those in the Scottish National party, who want to take Scotland out of the United Kingdom.
Ian Blackford
That was no answer to the question—I should remind the Prime Minister that this is Prime Minister’s questions. Michel Barnier has said that the Chequers plan is “not acceptable”. Mervyn King has called the Government’s preparations “incompetent”. Prime Minister, your Chequers plan is as dead as a dodo. With the clock ticking down, will the Prime Minister finally concede that backing the single market and customs union is the only option to protect jobs, the economy and the Good Friday agreement?
The Prime Minister
We have put forward a proposal, under the Chequers plan, that protects jobs and livelihoods, that ensures that we deliver on the vote of the British people and that ensures that we deliver on no hard border between Northern Ireland and Ireland and maintain the Union of the United Kingdom. Michel Barnier has put forward another proposal, which keeps Northern Ireland in the customs union and the single market, is a free trade agreement only for Great Britain and creates a border down the Irish sea. I have said that it is unacceptable to me as Prime Minister. I believe that no British Prime Minister would find that deal acceptable. We are negotiating on the Chequers deal. It delivers for the United Kingdom—it delivers for the people of the whole United Kingdom.
Eddie Hughes (Walsall North) (Con)
The Prime Minister
We are committed to providing the local NHS with the funding it needs. As my hon. Friend knows, we have announced more than £3.9 billion of new additional capital funding for the NHS up to 2022-23. We announced that last year. The majority is to support the implementation of plans from local communities. I understand that the Walsall Healthcare NHS Trust has resubmitted an application for the £36.2 million of funding in July for the Walsall Manor Hospital emergency department. The Department of Health and Social Care expects the successful schemes to be announced in the autumn, but my right hon. Friend the Health and Social Care Secretary will be pleased to meet my hon. Friend to discuss his campaign.
Brendan O'Hara (Argyll and Bute) (SNP)
The Prime Minister
I welcome the hon. Gentleman asking a question at PMQs, but he has asked about a regional immigration policy, an issue that the Migration Advisory Committee looked at a while back. It made it very clear that that was not a situation that the Government should accept, partly because of the practical problems in implementing it. When we put forward our proposals for the immigration policy for people coming from the European Union, we will ensure that they are right for the whole United Kingdom.
Amber Rudd (Hastings and Rye) (Con)
SIS II, Prüm and PNR are all EU-wide databases, many of which the UK helped to shape and which keep us safe. While there is much debate here about the type of trading arrangement we will have with the EU, may I ask the Prime Minister for reassurance that there will still be the highest level of security arrangement with the EU as we leave the European Union, because any reduction would be completely unacceptable to the people of the UK?
The Prime Minister
My right hon. Friend is right to highlight the importance of our security relationship with the EU. I remember the discussions and debates that led to the establishment of the PNR directive. The White Paper provides a comprehensive and ambitious vision for that future security relationship, and that is why we propose that security partnership to protect our shared law enforcement and criminal justice capabilities, facilitate continued co-operation and support our joint working on security issues, such as counter-terrorism. Michel Barnier has recognised the progress made in our discussions on security, so our focus should be on trying to obtain and define that ambitious and unprecedented partnership that will help to keep people safe, not just here but across the whole EU.
Chris Law (Dundee West) (SNP)
The Prime Minister
The hon. Gentleman is right to bring to the attention of the House both that deal and the opening of the V&A in Dundee. These are important ways in which the UK Government are working to ensure support for Scotland and those opportunities for the Scottish economy. Another one of those is the fact that this Government have taken the decision to enable the third runway to go ahead at Heathrow, and we expect that when that happens we will see better connectivity within the United Kingdom.
Henry Smith (Crawley) (Con)
This September is blood cancer awareness month, and I am therefore delighted that it was announced yesterday that the NHS will provide innovative CAR-T cell immune therapy to under-25s—the first health system in Europe to do so. I seek assurances from my right hon. Friend the Prime Minister that a focus on blood cancer awareness, diagnosis and prevention will continue into the future.
The Prime Minister
I commend my hon. Friend for the work that he has done to champion the cause of blood cancer and raise a much greater awareness of the issue. I can assure him that we will continue to press on and raise awareness of the issue, and I, too, am pleased that the decision that was announced yesterday was able to be made. I congratulate him, because he has personally campaigned on this and championed this cause.
Dr Rupa Huq (Ealing Central and Acton) (Lab)
The Prime Minister
The hon. Lady makes an ingenious attempt to raise the Brexit issue. This Parliament overwhelmingly gave the British the decision on whether to remain in or leave the European Union. The British people voted. It is now up to this Government and politicians across the whole House to show our faith with the British people and deliver on their vote.
Damian Green (Ashford) (Con)
At a time when this House will inevitably be spending a lot of time discussing Brexit, it is important that we also concentrate on other issues. For many families, their children’s future is a very immediate concern. With that in mind, does the Prime Minister agree that ensuring that as many children as possible grow up in a household where someone is working is the best way not only to provide a secure economic background for children, but to ensure that future generations are prepared to play a full and productive role in society?
The Prime Minister
I absolutely agree with my right hon. Friend that work is the best route out of poverty. It is also important for the example that it gives to children in households when they see a parent or parents working. I am pleased to say that the number of children being brought up in workless households is at the lowest level that we have seen. This is very important. We know that three quarters of children move out of poverty when their parents go into full-time work. Being in work sets an example and brings benefits to children, families and our whole society, and it is important to ensure that jobs are provided so that people can be in work for the future of their children.
Mr Virendra Sharma (Ealing, Southall) (Lab)
The Prime Minister
I believe that the responsible Minister has made an announcement about the fact that the pensions dashboard will be going ahead, and I think that there will some piloting and consultations.
Mr John Hayes (South Holland and The Deepings) (Con)
The Prime Minister appreciates the plight of the poorest Britons, who, when they have loved and lost, struggle to afford to provide a dignified and decent funeral, as she established the children’s funeral fund. Nevertheless, the grant available to the poorest people for this purpose has been frozen at £700 since 2003 and 30% of people get nothing at all. The Select Committee on Work and Pensions, chaired by the right hon. Member for Birkenhead (Frank Field), recommended changes in 2016. Will the Prime Minister meet me, him and others to discuss this matter? It is not just our task or our duty; it is our mission to help to heal the broken-hearted.
The Prime Minister
My right hon. Friend raises an important and sensitive issue. None of us wants to see a situation where people are not able to afford to do what is a terrible task, given that they have seen a loved one die, and it is important to families and individuals to be able to give their loved one a proper funeral. As he will know, the funeral expenses payments do continue to cover the necessary costs involved with funerals and cremations and up to £700 for other funeral expenses. Some changes have been made to ensure that other contributions are not deducted from the funeral expenses payment so that there is no change to that. My right hon. Friend’s position sounds like a Budget submission, which I suggest he might wish to put forward to my right hon. Friend the Chancellor of the Exchequer.
Meg Hillier (Hackney South and Shoreditch) (Lab/Co-op)
The Prime Minister
First, I think we should all pay tribute to the work that our teachers and headteachers do across the country. I am pleased that 1.9 million more children are now in good or outstanding schools. We are backing schools with an extra £1.3 billion over the next two years. Per-pupil funding is being protected in real terms. But we are doing more than that. The Department for Education is working with schools to help reduce their non-staffing costs—that includes up to £1 billion through better procurement—so teachers will be able to do what they do best, which is carry on teaching.
Julian Knight (Solihull) (Con)
Last Monday in Solihull, the lives of a mother and daughter, Khaola Saleem and Raneem Oudeh, were brought to an end after a double stabbing outside their home. I have met Khaola and Raneem’s family and seen first-hand their quiet dignity, clear love for one another and desire to see something good come from their loss. Will the Prime Minister join me in sending our thoughts and prayers to Khaola and Raneem’s family and thanking our emergency services, police liaison officers and the wider community of Solihull, which has shown great stoicism and heartfelt concern as this tragedy has unfolded?
The Prime Minister
I think that the whole House will want to join me in sending our deepest sympathies to the families and loved ones of Khaola Saleem and Raneem Oudeh. This is a terrible tragedy. I am sure that my hon. Friend understands that I cannot comment on the ongoing investigation that is taking place, but he is right to draw attention to the work of the emergency services. Indeed, I join him in paying tribute not only to our emergency services but to the local community for the support that they have shown at this very difficult time.
Tonia Antoniazzi (Gower) (Lab)
The Prime Minister
First, I offer deepest sympathies to those who are suffering severe conditions where other treatments have not been effective and these cannabis-based medicinal products have the potential to help. That is why the Home Secretary has announced that the law will be changed so that specialist clinicians will be able to prescribe—legally prescribe—cannabis-based medicinal products to patients with an exceptional clinical need. While that change is taking place, an expert panel of clinicians has been established, as an interim, to ensure that treatment is safe and effective. So we are not just waiting for the legislation to change. We will change the law, but we have also put in place a procedure to ensure that those cases can be considered properly.
Robert Neill (Bromley and Chislehurst) (Con)
On Monday, right hon. and hon. Members from across the House will join the people of Gibraltar in celebrating their national day on 10 September. Will my right hon. Friend confirm that it is Her Majesty’s Government’s full resolve that Gibraltar and its people will be fully included in all aspects of the withdrawal negotiations and future arrangements and that no other party will have any veto on that?
The Prime Minister
I am very happy to give my hon. Friend that reassurance and that commitment on behalf of this Government. I send best wishes to the people of Gibraltar for their celebrations on 10 September.
Mohammad Yasin (Bedford) (Lab)
The Prime Minister
I simply point out to the hon. Gentleman that health funding in his area will be £1.5 billion this year, and thanks to our funding commitments, this is an increase of over £60 million on the previous year—a cash increase of 4.2%. The Bedfordshire clinical commissioning group will receive a cash increase of 4.34% on last year. We are putting extra money into the national health service. But more than that, we have committed future funding—a five-year funding programme —and a 10-year plan for the national health service to deliver the services that patients need.
Mr Steve Baker (Wycombe) (Con)
With exit day fast approaching, will my right hon. Friend now give instructions to the whole of Government that the first priority of every Department must be domestic preparedness, whether we leave the EU with a deal or without one?
The Prime Minister
First, I commend my hon. Friend for the work he did on this issue when he was a Minister. I assure him that the Department for Exiting the European Union has indeed stepped up the work on preparations. We have 6,400 civil servants working on EU exit. There are an additional 1,850 recruits in the pipeline so that we can accelerate preparations as necessary. We have passed necessary laws in this House such as the European Union (Withdrawal) Act 2018—an historic Act. Obviously, there are other pieces of legislation, like the sanctions Act and the Nuclear Safeguards Bill. We are publishing the technical notices on no deal preparations. We are ensuring that our preparations are being made, and they are being made for every eventuality. We are working for a good deal; we prepare for every eventuality.
Jeff Smith (Manchester, Withington) (Lab)
The Prime Minister
Obviously, we understand that the demand on policing is changing and becoming increasingly complex. That is why, after speaking to forces in England and Wales, we provided a comprehensive funding settlement that will increase total investment in the police system by over £460 million in this year, 2018-19. The hon. Gentleman might like to note that the force has a higher number of officers per head of population than the England and Wales average.
Alberto Costa (South Leicestershire) (Con)
Earlier this morning, my daughter Sophie—on her own merit, along with thousands of other schoolchildren—attended her first day at grammar school. What message does the Prime Minister have for my daughter Sophie and the thousands of other children who, on their own merit, secured a place at grammar school?
The Prime Minister
First, I would say well done to my hon. Friend’s daughter Sophie and those other children. Secondly, I would say to Sophie and others that this is a country where how far you get on in life should depend on how hard you work and your talents and abilities. A good education is crucial to that, so I would say: enjoy your time at school and make the best of it, because education is the key that unlocks the door to your future.
Mike Kane (Wythenshawe and Sale East) (Lab)
The Prime Minister
Not only are we of course making sure that the arrangements in relation to aviation will be what they should be when we leave the European Union, but we have been working with the aerospace sector generally and with aviation to ensure that as we put in place our modern industrial strategy, we see jobs being not just maintained but created across the country, with high-skilled and well-paid jobs for people in these important sectors. Aviation is an important sector for the UK.
Andrea Jenkyns (Morley and Outwood) (Con)
In this year’s local election, we elected the first Conservative councillor in my constituency—a wonderful lady called Nic—but since her election, she has been subjected to the most awful abuse by Labour and Momentum activists. Police have been called to her home several times. People have hung around her home late at night, and one has allegedly trolled her via his dead wife’s social media account. Her special needs son is now too scared to leave the house. Will the Prime Minister join me in condemning that abhorrent intimidation of elected officials? Is that supposed to be the kinder, gentler politics of the Labour party?
The Prime Minister
May I first say to my hon. Friend that I congratulate Nic, who fought the election, and that I am sorry she has been subjected to this appalling series of attacks of various sorts since that election? Across our democracy, we have different opinions about what we want to achieve and sometimes about how we achieve what we want to achieve, but it is right that we are able to put those opinions forward. The democratic process means we put our views to the public and the public choose, as they have chosen my hon. Friend’s constituent to represent them on the council. She should be able to get on with the job of representing her constituents free of hatred and free of the abuse that she appears to be getting, and I say that this should be condemned on all sides of this House.
Helen Hayes (Dulwich and West Norwood) (Lab)
The Prime Minister
We are keen to support tenants to access longer, more secure tenancies, while also obviously ensuring that landlords are able to recover their property when needed. The consultation on overcoming the barriers to longer tenancies in the private rented sector closed on 26 August. It considered the various barriers to longer tenancies and how to overcome them, and it did propose a new three-year tenancy model with a six-month break clause. We asked for views on the viability of that and how it could be implemented. We are now analysing those responses, and we will provide information on the next steps once we have done that.
Mr Ranil Jayawardena (North East Hampshire) (Con)
I know my right hon. Friend will be as concerned as me, and I am sure the whole House, to hear of and see the carcases of nearly 90 elephants near a wildlife sanctuary in Botswana. This coincides with Botswana’s anti-poaching unit being disarmed. Will she do more to tackle this scourge, including through our aid budget by funding more rangers and more training through the Ministry of Defence?
The Prime Minister
The whole issue of the illegal wildlife trade is a very important one. It was an issue that I touched on when I was in South Africa, in fact, and there was a Minister from Botswana there at the time. We are holding a major conference later this year on the illegal wildlife trade, because we see it as an important issue, and we are bringing people together across the international community to consider how we can further deal with this.
Chris Ruane (Vale of Clwyd) (Lab)
The Prime Minister
First, the hon. Gentleman says “should” the UK leave the EU. The UK is leaving the European Union, and that will happen on 29 March next year. What we will be doing—what we are doing—is reassessing and looking at the structural funds that have come from the European Union in the past. We are setting up the shared prosperity fund, which will ensure that we are looking at disparities within regions and within and between the nations of the United Kingdom. We are working to ensure that we have a system, and a deal with the European Union for the future, that works for the whole of the United Kingdom.
Gillian Keegan (Chichester) (Con)
Like my right hon. Friend, I have recently returned from Africa, where I visited a refugee camp in Tanzania with Plan, witnessing the transformative impact of UK aid in protecting women from sexual violence and giving children access to education. With the UN General Assembly fast approaching, will the Prime Minister outline what preparations she has made for the global compact on refugees?
The Prime Minister
Yes, we are looking at this. We are not just looking at what has been proposed for the global compact for refugees; we have actually been part of the discussions about what should be in that global compact. This partly reflects one of the speeches I gave when I was at UNGA in 2016, shortly after I became Prime Minister, about the need to look internationally at how we deal with migration and refugees. I want to see a better ability to differentiate between illegal economic migrants and refugees, because I think by doing that we will be able to ensure that we are providing the support necessary for refugees.
Sir Vince Cable (Twickenham) (LD)
Can the Prime Minister explain why the process by which European nationals acquire settled status requires 59 pages of guidance? Is not this simply providing 59 ways of saying no in a continued hostile environment?
The Prime Minister
As the right hon. Gentleman will know, the system was launched not that long ago. It is very clear; it is an online system, and it is a simple system. We guaranteed that that would be what we provided, and it is what we have delivered.
Stephen Kerr (Stirling) (Con)
Wilkies is a central Scotland department store. Over the years, it has become something of an institution in Stirling, and it recently announced that it was to close. While the Scottish Government continue to delay any changes to the business rate system in Scotland, which is killing our high streets, can the Prime Minister assure me that there will be some action to level the playing field between high street businesses and online sellers?
The Prime Minister
My hon. Friend is right to highlight the importance of using the tax system in a responsible way. It is right that businesses make a contribution to their local area through the business rates, but this should be as fair as possible. That is why we have improved the system and made changes worth over £10 billion to businesses, including taking 600,000 small businesses out of paying business rates altogether. Britain’s retailers, be they high street shops or independent traders, are a crucial part of our economy. They create jobs, and they inject billions into our economy. All those responsible for the tax system should deal with our retailers responsibly and recognise the impact of the decisions they make.
Several hon. Members rose—
Mr Speaker
I think we should wrap up with a new, young Member seeking to make an early mark—Mr Geoffrey Robinson.
Mr Geoffrey Robinson (Coventry North West) (Lab)
I am grateful, Mr Speaker.
Is the Prime Minister aware that next Wednesday, 12 September, we have the Committee stage of my private Member’s Bill, the Organ Donation (Deemed Consent) Bill? I wish to thank her personally for her tremendous support, and of course I thank my right hon. Friend the Leader of the Opposition. The Prime Minister’s support, the Government time and the Minister’s support have been vital. Can the Prime Minister assure us that she will sustain that support through Committee stage? If that is the case, we can get the Bill through the Commons procedures by the end of the year and have it on the statute book early in the new year. I think the whole House would be pleased to see the Bill become an Act, because its sole purpose is to save, preserve and enhance lives.
The Prime Minister
This is an important piece of legislation and, as the hon. Gentleman says, it will make a difference to people’s lives. We have, as he says, given this legislation our backing, and we will continue to give it our backing precisely because of its importance and the impact it will have on people.
Mr Speaker
Well, we are coming now to a statement by the Prime Minister. If the point of order relates to something that has happened during Prime Minister’s questions, I will hear it. But if it is simply that it is convenient for the hon. Lady, I am afraid that she will have to wait till later.
Hannah Bardell
The point of order is about an urgent matter that is happening and was developing during Prime Minister’s questions.
Mr Speaker
Very well. I will give the hon. Lady the benefit of the doubt while the Prime Minister consumes some water.
Hannah Bardell
Thank you, Mr. Speaker. I seek your guidance. My constituent Kweku Adoboli is facing imminent deportation to Ghana, where he has not lived since he was four years old. Despite my constituent’s rehabilitation and reform since his release from prison, and his work for a number of UK universities and the special forces, the Prime Minister has not responded directly to the letters I have written to her and the points I have made. What can I do to ensure that she responds directly and reviews this decision?
Mr Speaker
The short and honest answer is that the hon. Lady can wait patiently and in an egalitarian spirit, like every other Member, for the opportunity to put a question to the Prime Minister at the appropriate time, rather than using the bogus device of a contrived point of order inappropriately to try to put her point on the record. Being as I am a decent and charitable soul, I am happy to admire her ingenuity on this occasion, but I would not encourage her to use this ruse too frequently.
Salisbury Update
(6 years, 3 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Prime Minister (Mrs Theresa May)
With permission, Mr Speaker, I would like to update the House on the investigation into the attempted murder of Sergei and Yulia Skripal, and the subsequent poisoning of Dawn Sturgess and Charlie Rowley earlier this year. This was a sickening and despicable act in which a devastatingly toxic nerve agent, known as Novichok, was used to attack our country. It left four people fighting for their lives and one innocent woman dead. I know the thoughts of the whole House will be with the family of Dawn Sturgess in particular, following their tragic loss.
In March, I set out for the House why the Government concluded that the Russian state was culpable for the attempted murder of Mr Skripal and his daughter. I also said that, while we all share a sense of impatience to bring those responsible to justice, as a nation that believes in the rule of law, we would give the police the space and time to carry out their investigation properly. Since then, about 250 detectives have trawled through more than 11,000 hours of CCTV and taken more than 1,400 statements. Working around the clock, they have carried out painstaking and methodical work to ascertain exactly which individuals were responsible and the methods they used to carry out this attack.
This forensic investigation has now produced sufficient evidence for the independent Director of Public Prosecutions to bring charges against two Russian nationals for the conspiracy to murder Sergei Skripal; the attempted murder of Sergei and Yulia Skripal and Detective Sergeant Nick Bailey; the use and possession of Novichok; and causing grievous bodily harm with intent to Yulia Skripal and Nick Bailey. This morning, the police set out how the two Russian nationals travelled under the names of Alexander Petrov and Ruslan Boshirov, names the police believe to be aliases. They arrived at Gatwick airport at 3 pm on Friday 2 March, having flown from Moscow on flight SU2588. They travelled by train to London Victoria, then on to Waterloo before going to the City Stay Hotel in Bow Road, east London. They stayed there on both Friday and Saturday evenings, and traces of Novichok were found in their hotel room. On Saturday 3 March, they visited Salisbury, arriving at approximately 2.25 pm and leaving less than two hours later, at 4.10 pm. The police are confident this was for reconnaissance of the Salisbury area. On Sunday 4 March, they made the same journey, travelling by underground from Bow to Waterloo station at approximately 8.5 am, before continuing by train to Salisbury.
The police have today released CCTV footage of the two men which clearly places them in the immediate vicinity of the Skripals’ house at 11.58 am, which the police say was moments before the attack. They left Salisbury and returned to Waterloo, arriving at approximately 4.45 pm and boarded the underground at approximately 6.30 pm to Heathrow, from where they returned to Moscow on flight SU2585, departing at 10.30 pm.
This hard evidence has enabled the independent Crown Prosecution Service to conclude it has a sufficient basis on which to bring charges against these two men for the attack in Salisbury. The same two men are now also the prime suspects in the case of Dawn Sturgess and Charlie Rowley, too. There is no other line of inquiry beyond this. The police have today formally linked the attack on the Skripals and the events in Amesbury such that it now forms one investigation. There are good reasons for doing so.
Our own analysis, together with yesterday’s report from the Organisation for the Prohibition of Chemical Weapons, has confirmed that the exact same chemical nerve agent was used in both cases. There is no evidence to suggest that Dawn and Charlie may have been deliberately targeted, but rather they were victims of the reckless disposal of this agent. The police have today released further details of the small glass counterfeit perfume bottle and box discovered in Charlie Rowley’s house which was found to contain this nerve agent. The manner in which the bottle was modified leaves no doubt it was a cover for smuggling the weapon into the country and for the delivery method for the attack against the Skripals’ front door. The police investigation into the poisoning of Dawn and Charlie is ongoing, and the police are today appealing for further information. But were these two suspects within our jurisdiction there would be a clear basis in law for their arrest for murder.
We repeatedly asked Russia to account for what happened in Salisbury in March, and they have replied with obfuscation and lies. This has included trying to pass the blame for the attack on to terrorists, on to our international partners, and even on to the future mother-in-law of Yulia Skripal. They even claimed that I, myself, invented Novichok. Their attempts to hide the truth by pushing out a deluge of disinformation simply reinforces their culpability. As we made clear in March, only Russia had the technical means, operational experience and motive to carry out the attack.
Novichok nerve agents were developed by the Soviet Union in the 1980s under a programme codenamed Foliant. Within the past decade Russia has produced and stockpiled small quantities of these agents, long after it signed the chemical weapons convention. During the 2000s, Russia commenced a programme to test means of delivering nerve agents including by application to door handles. We were right to say in March that the Russian state was responsible. Now we have identified the individuals involved, we can go even further.
Just as the police investigation has enabled the CPS to bring charges against the two suspects, so the security and intelligence agencies have carried out their own investigations into the organisation behind this attack. Based on this work, I can today tell the House that, based on a body of intelligence, the Government have concluded that the two individuals named by the police and CPS are officers from the Russian military intelligence service, also known as the GRU. The GRU is a highly disciplined organisation with a well-established chain of command, so this was not a rogue operation. It was almost certainly also approved outside the GRU at a senior level of the Russian state.
The House will appreciate that I cannot go into details about the work of our security and intelligence agencies, but we will be briefing Opposition leaders and others on Privy Council terms, and also giving further detail to the Intelligence and Security Committee.
Let me turn to our response to this appalling attack and the further knowledge we now have about those responsible. First, with respect to the two individuals, as the Crown Prosecution Service and police announced earlier today, we have obtained a European arrest warrant and will shortly issue an Interpol red notice. Of course, Russia has repeatedly refused to allow its nationals to stand trial overseas, citing a bar on extradition in its constitution. So, as we found following the murder of Alexander Litvinenko, any formal extradition request in this case would be futile. But should either of these individuals ever again travel outside Russia, we will take every possible step to detain them, to extradite them and to bring them to face justice here in the United Kingdom.
This chemical weapons attack on our soil was part of a wider pattern of Russian behaviour that persistently seeks to undermine our security and that of our allies around the world. The Russian Government have fomented conflict in the Donbas, illegally annexed Crimea, repeatedly violated the national airspace of several European countries and mounted a sustained campaign of cyber espionage and election interference. They were behind a violent attempted coup in Montenegro, and a Russian-made missile, launched from territory held by Russian-backed separatists, brought down MH17.
We must step up our collective effort to protect ourselves in response to this threat and that is exactly what we have done since the attack in March, both domestically and collectively with our allies. We have introduced a new power to detain people at the UK border to determine whether they are engaged in hostile state activity. We have introduced the Magnitsky amendment to the Sanctions and Money Laundering Act 2018 in response to the violation of human rights. And we have radically stepped up our activity against illicit finance entering our country. We also expelled 23 Russian diplomats who had been identified as undeclared Russian intelligence officers, fundamentally degrading Russian intelligence capability in the UK for years to come. In collective solidarity, and in recognition of the shared threat posed to our allies, 28 other countries as well as NATO joined us in expelling over 150 Russian intelligence officers: the largest collective expulsion ever.
Since then, the EU has agreed a comprehensive package to tackle hybrid threats; the G7 has agreed a rapid response mechanism to share intelligence on hostile state activity; NATO has substantially strengthened its collective deterrence, including through a new cyber operations centre; and the US has announced additional sanctions against Russia for the Salisbury attack. Our allies acted in good faith, and the painstaking work of our police and intelligence agencies over the last six months further reinforces that they were right to do so.
Together, we will continue to show that those who attempt to undermine the international rules-based system cannot act with impunity. We will continue to press for all of the measures agreed so far to be fully implemented, including the creation of a new EU chemical weapons sanctions regime, but we will not stop there. We will also push for new EU sanctions regimes against those responsible for cyber-attacks and gross human rights violations, and for new listings under the existing regime against Russia. We will work with our partners to empower the OPCW to attribute chemical weapons attacks to other states beyond Syria.
Most significantly, what we have learnt from today’s announcement is the specific nature of the threat from the Russian GRU. We know that the GRU has played a key part in malign Russian activity in recent years. Today, we have exposed its role behind the despicable chemical weapons attack on the streets of Salisbury. The actions of the GRU are a threat to all our allies and to all our citizens. On the basis of what we have learnt in the Salisbury investigation and what we know about this organisation more broadly, we must now step up our collective efforts, specifically against the GRU. We are increasing our understanding of what the GRU is doing in our countries, shining a light on its activities, and exposing its methods and sharing them with our allies, just as we have done with Salisbury. While the House will appreciate that I cannot go into details, together with our allies we will deploy the full range of tools from across our national security apparatus to counter the threat posed by the GRU.
I have said before, and I say again now, that the UK has no quarrel with the Russian people. We continue to hold out hope that we will one day once again enjoy a strong partnership with the Government of this great nation. As a fellow permanent member of the United Nations Security Council, we will continue to engage Russia on topics of international peace and security, but we will also use those channels of communication to make it clear that there can be no place in any civilised international order for the kind of barbaric activity we saw in Salisbury in March.
I pay tribute to the fortitude of the people of Salisbury, Amesbury and the surrounding areas, who have faced such disruption to their daily lives over the past six months, and I again thank the emergency services and the national health service for their outstanding efforts in responding to these incidents. I also thank all those involved in the police and intelligence community for their tireless and painstaking work, which has led to today’s announcement.
In March, Russia sought to sow doubt and uncertainty about the evidence we presented to this House, and some were minded to believe it. Today’s announcement shows that we were right. We were right to act against the Russian state in the way we did, and we are right now to step up our efforts against the GRU. We will not tolerate such barbaric attacks against our country. Together with our allies, this Government will continue to do whatever is necessary to keep our people safe. I commend this statement to the House.
Jeremy Corbyn (Islington North) (Lab)
I thank the Prime Minister for advance sight of her statement and for the security briefings that we have received.
Our thoughts today are with the family of Dawn Sturgess and with Charlie Rowley, who is still recovering from his ordeal. We are obviously very sad at the death of Dawn and we send condolences to her partner and her family. We also send our best wishes to Sergei and Yulia Skripal for a full recovery.
The use of military nerve agents on the streets of Britain is an outrage and beyond reckless. Six months after the attack, Salisbury and its people are still suffering the after-effects, as I found when I visited the city earlier this summer. An eerie calm hung over the city on that summer’s evening. A large part of it is cordoned off for security purposes, so that the police can continue their investigations, creating a very strange and eerie atmosphere. We should show some sympathy for the people of Salisbury, given what they have gone through. I know that the Prime Minister did that in her statement.
I commend the police for their superhuman efforts in forensically trawling through hours and hours of information in helping to identify the suspects. Given today’s announcement on the decision to charge two Russian citizens with responsibility for this appalling attack, what steps is the Prime Minister taking to secure co-operation from the Russian Government in bringing them to trial? [Interruption.] This is a serious matter, Mr Speaker, and I think they should be brought to trial.
The OPCW’s finding that there is evidence that Novichok was used in Salisbury is a stark reminder that the international community must strengthen its resolve to take effective action against the possession, spread or use of chemical weapons in any circumstances. No Government anywhere can or should put itself above international law. The Prime Minister previously outlined that the type of nerve agent used was identified as having been manufactured in Russia. The use of this nerve agent is a clear violation of the chemical weapons convention and, therefore, a breach of international law.
Based on the OPCW’s findings, the Russian Government must give a full account of how this nerve agent came to be used in the UK. Will the Prime Minister continue to pursue a formal request for evidence from the Russian Government under article IX, paragraph 2? It is in the interests of the peace and security of all people and all countries that no Government play fast and loose with the international human rights rules-based system. Will the Prime Minister update the House on what contacts, if any, she has had with the Russian Government more recently to hold them to account?
Our response as a country must be guided by the rule of law, support for international agreements and respect for human rights, even—and perhaps especially—when other countries do not respect those agreements. I will say more on that in a moment, but I want to assure the Prime Minister and the House that we will back any further reasonable and effective actions, whether against Russia as a state or the GRU as an organisation. I encourage the Prime Minister to seek the widest possible European and international consensus for that to maximise its impact.
In 2015, the United Nations set up the OPCW-UN joint investigative mechanism, but due to there being no agreement in the UN Security Council, there is no international mechanism that is responsible for attributing chemical weapons attacks to specific perpetrators. Will the Prime Minister outline what efforts the UK has made at the UN Security Council to overcome this impasse, so that the OPCW will be allowed to provide clarity and attribution as to the violators of international chemical weapons law?
While we all hope that our country will never suffer such an attack again, can the Prime Minister outline what lessons have been learned by police and health service staff, and what training they have been given in dealing with a nerve agent attack? That is in no way a criticism of them—indeed, I congratulate them on the way they performed after the attack in Salisbury.
In conclusion, we utterly condemn the appalling attacks. We commend the police and security services for their diligence in investigating this appalling crime, and we will support any reasonable action to bring those responsible to justice and to take further action against Russia for its failure to co-operate with this investigation.
The Prime Minister
I say first to the right hon. Gentleman that, as I said in my statement, I am sure all Members of the House join both of us in saying to the people of Salisbury, Amesbury and the surrounding area that they have been through terrible disruption in recent months and that we commend the dignity and calm with which they have dealt with it.
The right hon. Gentleman asked what we have done to approach the Russian Government on the question of bringing the two individuals to justice.
As I said in my statement, we are issuing an Interpol red notice and have issued a European arrest warrant but, as we saw in the case of Alexander Litvinenko, Russia does not allow its citizens to be extradited to face justice in other countries. I think the phrase I used in my statement was that an extradition request would be “futile”.
What we have done is to repeatedly ask Russia to account for what happened in Salisbury in March, and it has responded with obfuscation and lies. We want Russia to act as a responsible member of the international community. That means that it must account for the reckless and outrageous actions of the GRU, which is part of the Russian state. This is a decision that would have been taken outside the GRU and at a high level in the Russian state. It must rein in the activities of the GRU and recognise that there can be no place in any civilised international order for the kind of barbaric activity that we saw in Salisbury in March.
The right hon. Gentleman asks me about the OPCW and the United Nations Security Council. We have been working through the OPCW. I am pleased to say that we had an overwhelming vote on the proposal that we and others put forward earlier in the summer on strengthening the OPCW’s ability to attribute responsibility for the use of chemical weapons. Further discussions are to take place within the OPCW on that issue, but I hope that the whole international community—and, I would hope, some of those who previously were cautious about accepting what we said in March about responsibility for the attack—will now see the clear responsibility that lies at Russia’s door and act accordingly.
It is right that the United Nations Security Council has not been able to come together to agree an arrangement for the attribution of responsibility for the use of chemical weapons. Why is that? It is because Russia vetoes any attempt to do so. We will work through the OPCW and continue to give the very clear message that states and people cannot use chemical weapons with impunity. We will maintain, and do all that we can to reinforce, the international rules-based order in relation to the use of chemical weapons. I and the Government—and, I am sure, other Members of the House—will be very clear about the culpability of the Russian state for the attack on Salisbury.
Boris Johnson (Uxbridge and South Ruislip) (Con)
I thank the Prime Minister for her statement. The whole House will have noted what I am afraid was the somewhat weasely language of the Leader of the Opposition in failing to condemn what is now incontrovertible in the eyes of all right-thinking people—the involvement of the Russian state at the highest level in the Salisbury poisonings. Will my right hon. Friend confirm that we will be asking that these two individuals be produced for justice by Russia? Will she be stepping up our diplomatic activity, our counter-measures and our targeted sanctions so that the whole international community can show its repugnance at what Russia has done in a way I am afraid that Leader of the Opposition signally failed to do today?
The Prime Minister
I thank my right hon. Friend for his comments. Obviously he was Foreign Secretary when the attack took place and worked, as I did, with the international community on its response.
The CPS does not have a policy of requesting extradition from states whose constitutions bar the possibility of extradition. That is why we have issued the notices available to us—the Interpol red notice and the European arrest warrant. As I said in my statement, if these two individuals step outside Russia, we will take every step possible to ensure that they are detained and brought to face justice here in the United Kingdom.
On the other points that my right hon. Friend makes, we will indeed be stepping up our activity across the broad range of our capabilities and what is available to us across our national security apparatus to ensure that we make every effort to deal with malign state activity and, in particular, as I said in my statement, the activity of the GRU.
Ian Blackford (Ross, Skye and Lochaber) (SNP)
Scottish National party Members welcome the Prime Minister’s statement and the news that we have now been able to identify the suspects in the Salisbury attack. The attack on Mr Skripal and his daughter was an unlawful use of force by the Russian state on the streets of Salisbury, and we now have evidence that absolutely and unequivocally confirms that. Of course, while our thoughts are with the Skripals in their recovery, we ought today to remember Dawn Sturgess, who sadly died, and Charlie Rowley, who is recovering from the attack he suffered.
The news of the arrest warrants today will send a clear message that all of us here will not tolerate the behaviour from the Russians that took place in Salisbury. While I agree with the Prime Minister’s remarks about the actions open to us and the fact that should these two individuals ever leave Russia they will face the threat of arrest, we ought to put the maximum pressure on Russia, working with our international partners, to turn those individuals over. They must face trial here in the United Kingdom.
There must always be a robust response to the use of terror on our streets. Let me reassure the Prime Minister that the Scottish National party is fully committed to working constructively with the Government to ensure that we do all that we can to protect the public. I am sure that others across the House will join me in extending our gratitude to the members of the security services and the police who worked to ensure that today’s announcements could be made. Their dedication and commitment to rooting out these criminals are critical to securing the safety of citizens and, on behalf of the Scottish National party, I send my sincerest thanks for all their efforts.
The threat from Russia must always be met by a united front from all of us together standing in solidarity against the abuse of power. Only together will we take on the abuse of state power by the Kremlin, and only then can we ensure that we work towards a peaceful future for citizens across the United Kingdom and beyond. It is right that the Prime Minister has made this statement, and I am grateful for that. I look forward to justice being done—it must be done.
Will the Prime Minister also provide us with an update on the Government’s actions to tackle Russia’s abuse of Scottish limited partnerships? SLPs have been used to move more than $80 billion from Russia in just four years, according to our own Government. All action must be taken to stand up to this abuse of power and to show that we are prepared to take on Russia over human rights abuses and money laundering. We will and we must take effective action together.
The Prime Minister
I thank the right hon. Gentleman for the tone of his response and his support for the Government’s work. He mentioned the emergency services. As I said, and he also said, we send our immense thanks to all those in the emergency services, the police, our security and intelligence agencies and the national health service who responded to these incidents, and for the work of the police and the intelligence agencies that has enabled us to identify these two individuals and to issue the Interpol red notice and the European arrest warrant. The armed forces were also present in the clean-up and made their expertise available. We are grateful to them, too.
The right hon. Gentleman asks about Scottish limited partnerships. The Home Office has been looking at this issue with the Department for Business, Energy and Industrial Strategy. We intend to introduce legislation to cover a range of abuses, and I am sure that the Security Minister would be happy to speak to him about that.
I thank the right hon. Gentleman for his understanding and acceptance of what I said in my statement about the role of the GRU and the culpability of the Russian state. I also thank him for his clear condemnation of the Russian state. I only wish that such a clear condemnation might be possible from the leaders of all parties in the House.
Mr Dominic Grieve (Beaconsfield) (Con)
My right hon. Friend is absolutely right in her identification of the Russian state. What we are is the victim of state terrorism by a state that is run as a gangster organisation, that threatens us all and has done so repeatedly on the international stage, and that is wholly outside the international rules-based system. I greatly agree with her in commending the work of our police and security services in elucidating the surrounding circumstances around this appalling act.
On behalf of the Intelligence and Security Committee, I look forward to further details relating to the background. In the meantime, does my right hon. Friend agree that we will have to look carefully at the ease with which Russian nationals on Russian passports can come in and out of this country? Obviously, as a free country, we wish to facilitate the exchange of people, but that will clearly become a pertinent issue when it becomes so apparent that the system is being abused by the Russian state for the purpose of sending hoods and murderers into our country to kill our citizens and those who are protected by us.
The Prime Minister
I thank my right hon. and learned Friend for his comments. As I said in my statement, we will indeed ensure that further detail is available for the Intelligence and Security Committee. As I understand it, the individuals came into the United Kingdom under valid passports that were issued by the Russian Government. We have already stepped up our powers by introducing an ability to stop people at ports to consider and investigate whether they are involved in hostile state activity. Of course, we look continually to ensure that we have all the powers necessary to deal with these issues, and my right hon. Friend the Home Secretary will continue to do that.
Sir Vince Cable (Twickenham) (LD)
I give strong support to the Prime Minister for her condemnation of the Russian state, but since our seriousness will be judged by actions rather than words, will she explain how many of the Russian oligarchs whom we know to be cronies of the Russian regime and who have wealth in the UK have had their assets seized under unexplained wealth orders following the powerful example of the United States?
The Prime Minister
I thank the right hon. Gentleman for his opening remarks on this issue and for his reference to the role of the Russian state in what happened in Salisbury. The National Crime Agency has stepped up its activity in relation to illicit finance. A considerable amount of work is being undertaken in relation to that. Of course these are operational matters for the NCA. As he will know, we do not comment on individual cases, but I can assure him that the work that is going on in relation to these matters has been stepped up considerably since what happened in March.
Amber Rudd (Hastings and Rye) (Con)
I join the Prime Minister in congratulating the security and police services on their brilliant work in arriving at these conclusions. Two named Russian intelligence officers—nothing could be more conclusive. The nature of the Russian propaganda machine is that it will always try to throw up smoke to confuse us, but does she share my hope that the evidence here will make it clear to all people who doubted what we said before—particularly Opposition Front Benchers—that when the security services lead us in this direction, they know what they are doing?
The Prime Minister
I thank my right hon. Friend for the role that she played as Home Secretary and for the visits that she made to Salisbury on this issue. She is absolutely right that when I first presented what had happened in Salisbury in March to this House, there were those who questioned my statement about the involvement of the Russian state. Now we have clearly seen what happened. The police have identified two individuals. The independent CPS has laid charges against those two individuals. We have clearly identified a link with the Russian military intelligence agency—the GRU—and it is clear that permission for an act of this sort would have been taken outside the GRU and at a senior level within the Russian state. It is incumbent on all those who were sceptical back in March to see the evidence that has been laid before this House and before the public, and to recognise the involvement of the Russian state and condemn it wholeheartedly.
Yvette Cooper (Normanton, Pontefract and Castleford) (Lab)
I thank the Prime Minister for her immensely serious statement and pay tribute to the impressive forensic work of our police and intelligence agencies. They and the Government have support from across the House for their work in the face of this vile chemical attack, this threat from the GRU and the operations of the Russian state, which we must unreservedly condemn not only for this chemical attack, but for the wider propaganda and for the online spread to undermine democracy and truth.
Alexander Litvinenko was murdered 12 years ago and the Prime Minister will know that there were then long delays in setting up an inquiry, and in taking action against the assets of suspects who were identified and those who were linked to them. Has she considered the lessons from the Litvinenko case, and what further measures is she ensuring are put in place now around those suspects and those who may be linked to them so that we learn those lessons, too?
The Prime Minister
I thank the right hon. Lady for her comments and for her support for the police, the intelligence agencies and the work that the Government have been doing in relation to this particular issue. Yes, we did look at the Alexander Litvinenko case and at the lessons that we as a Government needed to learn from the response to that and the action that was taken, and we acted accordingly. One key difference from the Litvinenko case that we saw in March was the very strong international response to what had happened here in Salisbury. As I have said, we saw the biggest single number of expulsions that has ever taken place of Russian personnel of this sort. Obviously we will continue to look at this matter. We will be looking at what further action can be taken. As I have said, we will be using all the tools in our national security apparatus to do that. It is not possible for me to go into detail on some of those matters, but I am sure that it will be possible to give the right hon. Lady a briefing on Privy Council terms.
Dr Julian Lewis (New Forest East) (Con)
May I urge the Prime Minister to make more of the passage of a law in July 2006 by the Russian Federation Parliament specifically enabling and empowering its President to order the assassination of Russia’s enemies abroad? As we know, this happened only weeks before the killing of Litvinenko. If she really wants to send a strong message to the Russian Government, will she have a quiet word with the Chancellor about enabling defence to get the uplift in its budget that it needs if further cuts in our ability to deter Russia are not to be inflicted by the Budget?
The Prime Minister
My right hon. Friend is of course right to highlight the law that was passed in Russia in 2006 that gives that ability to order assassinations outside the Russian state. He is right to point that out; it is an important fact for people to recognise. That is the background against which Russia is operating and we see that happening today. May I also say to him—I suspect that he will not be surprised by the response that I am giving him in relation to this matter—that, of course, we are looking at the modernising defence programme? As we look at the threat that is posed by Russia and at those that we also see from a whole variety of other sources, what is important is that we not only look at the conventional way in which we have dealt with those threats, but recognise the diverse and varied way in which malign state activity is undertaken today. As I referenced in my statement, we see a lot of propaganda and cyber-activity taking place by the Russian state. We need to make sure that we have all the tools at our disposal, and that will run across a number of parts of Government and not simply the Ministry of Defence.
Mr Pat McFadden (Wolverhampton South East) (Lab)
The first duty of anyone occupying the Prime Minister’s office is to protect the public and to be clear-eyed about the threats that the country faces. I thank her for her statement today and echo the praise that she and other Members have given to the police and intelligence services for the tremendous work that has been done to enable her to come to the conclusions that she has shared with the House today. Given her responsibilities, may I ask her why she thinks that the Russian state authorised such a barbaric operation—this state-sanctioned attempted murder—on the streets of the UK?
The Prime Minister
I thank the right hon. Gentleman for his opening comments and his praise for the police and intelligence agencies. As I have said, there were 250 detectives trawling through 11,000 hours of CCTV and over 1,400 statements; this was a very significant investigation, and there has also of course been the work of the intelligence agencies, which I referred to in my statement as well.
It is not for me to ascribe the motivation of the Russian state in relation to this issue. I suspect it wanted to give a message to Russians living elsewhere who had been involved in matters relating to the Russian state; that is the only reason that I can assume lay behind what it wanted to do. But it is up to the Russians to explain what happened in Salisbury. I have said consistently—I did so in March, we have done so since, and I have said it again this afternoon—that the Russian state needs to explain what happened in Salisbury; all we have had are obfuscation and lies.
Sir Roger Gale (North Thanet) (Con)
In the light of my right hon. Friend’s statement, does she agree that for the Parliamentary Assembly of the Council of Europe to change its rules at the behest of the secretary general in order to facilitate the readmission of the delegation of the Russian Federation would make an absolute nonsense of the convention on human rights? Does he also agree that it is incumbent on the Council of Europe and all other international bodies to send a clear message to the Russian Federation that human rights are not an à la carte menu?
The Prime Minister
I thank my hon. Friend for raising this very real issue. Of course the Government will be looking to raise it in the international forums where we are able to do so. My hon. Friend is of course absolutely right. This information will be provided to the Council of Europe, and I hope it will make it think again about the steps it is proposing. As my hon. Friend says, human rights are not an à la carte menu from which we can pick and choose.
Rushanara Ali (Bethnal Green and Bow) (Lab)
May I too commend the police and security services for all their work on this very serious issue? This morning my hon. Friend the Member for Poplar and Limehouse (Jim Fitzpatrick) and I were assured that local people do not face a threat and that the local hotel in Bow where the perpetrators stayed has been checked and is safe, but can the Prime Minister assure us that further reassurance will be provided, that lessons will be learned, and that local police who have to work in partnership with security and counter-terrorism officers will be supported in dealing with this new kind of threat that cuts across different boroughs and different parts of the country?
The Prime Minister
The hon. Lady raises an important issue and it is right that we are able to give that reassurance. On the hotel that the individuals stayed in, the situation is clear: the chief medical officer has also given a statement this morning about issues relating to public health and makes very clear in that statement the low risk that pertains there. Samples were taken from the hotel room as a precautionary measure; when that first happened, at the initial stage when that hotel room was identified, the contamination with Novichok was identified as being below the level to cause concern to public health; further samples were then taken and have come back negative. Following these tests, the experts deemed that the room was safe and posed no risk to the public. I believe the chief medical officer has indicated that anybody who stayed in the room between 4 March and 4 May would, had they been affected, have been affected by now, and there have been no reports of any health effect on anybody during that period. But reference has been made to this, and people may wish to get in touch with the investigatory team to be reassured on the matter.
The hon. Lady also mentioned other elements. The chief medical officer has made it clear that staff who operated, maintained and cleaned the transport systems are safe, and that there is no risk to members of the public who travelled alongside the individuals between 2 March and 4 March or those who used the transport system afterwards.
Mr Bob Seely (Isle of Wight) (Con)
My right hon. Friend has mentioned the 2006 Russian law, which would surely logically assume that the man who allowed this assassination attempt to happen was the head of the Russian state, Vladimir Putin. But the GRU is not a new organisation. Is the Prime Minister aware of its involvement as the lead agency in the Crimean annexation and as a critical agency, but not the only one, in the east Ukrainian war; of GRU General “Orion” who was the senior man at the time of the shooting down of the MH17; and of the very close and short command chain that allegedly exists between the GRU and the Russian presidency?
The Prime Minister
My hon. Friend has worked tirelessly on ensuring that we are all aware of the activities of the Russian state and the threat they pose. We have specifically identified these two individuals in relation to the GRU, but, as I have said and as my hon. Friend acknowledged, the GRU has had involvement elsewhere, and other parts of the Russian state have been involved in malign state activity elsewhere as well. As I said in my statement, it is almost certain that a decision of this sort will have been taken outside the GRU and at a senior level.
Mike Gapes (Ilford South) (Lab/Co-op)
The Prime Minister referred in her comprehensive and detailed statement to co-operation with our European Union partners and the EU chemical weapons sanction regime. Can she assure me and the whole country that we will continue to work closely with our EU partners, as the closest possible security and intelligence and sanctions co-operation will be necessary whatever happens in March next year?
The Prime Minister
I give the hon. Gentleman that reassurance. We recognise the importance of working with our European partners on these matters of security. It is why we have set out proposals for an ambitious and comprehensive security partnership in our future relationship, covering co-operation across a range of areas and continued access for the UK to certain instruments that can be helpful in dealing with these matters, such as the European arrest warrant; and, indeed, where we have taken our own powers such that after March next year we will be able to have our own individual sanctions regime, we would want to continue to co-operate with our European partners on those issues, too.
Mr Mark Francois (Rayleigh and Wickford) (Con)
The GRU is Russian military intelligence. Its operatives are recruited almost exclusively from the Russian military; it reports to the Russian general staff, via them to the Defence Ministry; and it is on a very short leash to the Kremlin. We should therefore understand the enormity of what has happened here: British citizens have been murdered or almost murdered on British soil by two highly trained Russian soldiers. May I suggest that in responding to this heinous attack we should now target the GRU both in our country and again among our allies, and seek specific expulsions of GRU officers from around NATO and our friends around the world in order to disrupt the networks of this vile organisation?
The Prime Minister
My right hon. Friend makes an important point. It is important that we now specifically look at the actions of the GRU and take action in relation to the GRU. That is about sharing our experience and understanding of the GRU with our allies, and it is about the threat potentially posed to other countries. It is not just about what happened here, heinous though that crime was, as my right hon. Friend has said; it is about ensuring a level of protection and security for everybody across Europe.
Alison Thewliss (Glasgow Central) (SNP)
Global Witness has found that 43% of Scottish limited partnerships are controlled by persons with either a correspondence address in or citizenship of a former Soviet state. However, there are still huge issues with compliance, and many SLPs have not even provided a person of significant control. Will the Prime Minister give more detail on future legislation to combat dirty money laundered through SLPs, and say whether resources and priority will be given to enforcing existing laws through Companies House, which remains a huge loophole in all of this?
The Prime Minister
As I said in response to the question this afternoon from the hon. Lady’s party leader, the right hon. Member for Ross, Skye and Lochaber (Ian Blackford), the Home Office and the Business Department have been working on this issue in relation to SLPs; they have been looking at some of these areas of abuse. We have as a general point stepped up our ability to deal with economic crime through the establishment within the National Crime Agency of the national economic crime centre, and we are continuing to build up that ability to deal with economic crime. I am sure the Minister for Security and Economic Crime will be happy to speak to the right hon. Gentleman as leader of the Scottish National party here about the action being taken and the work being done. There is an intention to legislate in this area, but obviously we need to ensure we get this right; SLPs are not the only issue raised in this regard and we need to look at a range of abuses.
Mr John Whittingdale (Maldon) (Con)
My right hon. Friend has set out very powerful evidence that a British citizen died on British soil as a direct result of a Russian assassination, but she will be aware that there have been a number of other deaths in Britain in the past few years of Russian citizens or of people with close connections with Russia. Can she say whether those cases are now being actively re-examined?
The Prime Minister
My right hon. Friend is absolutely right to raise that issue. There have been a number of cases—the number of 13 or 14 comes into my head—and they have indeed been reconsidered by the police, who have looked at all the evidence in relation to those matters. I understand that a letter will shortly be going to the Chairman of the Home Affairs Committee setting out the outcome of that, but I understand that there is no cause for further consideration of those cases.
Chris Bryant (Rhondda) (Lab)
I do not doubt for a single instant that the bloody trail goes all the way to the Kremlin and to President Putin himself personally. I do not think that anybody acting for the GRU would go it alone. I think that that is what the Prime Minister meant when she said that this was not rogue activity. The cynicism of the Russian state is phenomenal. It is not only that laws are being passed to allow impunity for murderers when they go overseas; it is also the fact that the Russian embassy’s response yesterday was to ask for access to the Skripals—presumably to finish the job. If we cannot bring these people into a court in this country, as seems likely, is it not important to ensure that we have a proper judicial process in this country, such as the judge-led inquiry that was able to come to proper legal conclusions after Litvinenko?
The Prime Minister
As I said in my statement, this was not a rogue operation. It was almost certainly approved outside the GRU at a senior level of the Russian state. The hon. Gentleman raises the possibility of an inquiry to look into this. Obviously, the police investigation into what happened at Amesbury is ongoing. As I said, this is now a single investigation, and there is no further line of inquiry beyond the two individuals who have been named in relation to the attack on the Skripals and on Detective Sergeant Nick Bailey, who was affected by that as well. Obviously, we will want to take steps to ensure that we learn appropriate lessons from this. In relation to bringing the individuals to justice, I repeat that if they do step outside Russia, we will strain every sinew and do everything we can to bring them to justice in this country.
Richard Benyon (Newbury) (Con)
The revolting regime of President Putin that has so impoverished and abused the Russian people has many fellow travellers and useful idiots in the Parliaments of those we assume to be our allies, including the European Parliament. Does my right hon. Friend agree that the very professional diplomatic efforts by her Government that took place after the attacks need to be continued with full vigour to ensure that our allies remain onside and understand what a terrible crime has been committed against one of their allies?
The Prime Minister
My right hon. Friend is absolutely right. I would also say that this confirms that those of our allies who stood by us and took action after March were right to do so. There were those who were sceptical, internationally as well as within this Chamber, about the role of the Russian state at the time, but the evidence that has now been produced shows absolutely the culpability of the Russian state. I hope that in the international arena we will now see countries that have exercised a degree of restraint in their approach recognising the role that Russia has played in this and acting accordingly.
Mr Chris Leslie (Nottingham East) (Lab/Co-op)
Given the extraordinary trail of evidence that the Prime Minister has shared with the House today, and the number of communities affected, is it not all the more important that everyone in all corners of the Chamber should express their total faith and confidence in the police and the security forces? We do not do that simply so that we can pay lip service to them or thank them; expressing that confidence is important so that communities or witnesses with evidence can come forward and feel that it is legitimate to provide that evidence to the security services. May I urge the Prime Minister to ignore the cranks and ideological extremists whose first instinct seems to be to sow mistrust in our security professionals?
The Prime Minister
I absolutely support what the hon. Gentleman has said. Our security professionals do an amazing job for us on a daily basis. We have seen the painstaking professionalism that they have shown in this particular investigation, which has led us to the position where we can make the statements that the Metropolitan police and I have made today in relation to these two individuals and to what happened in Salisbury. It is incumbent on all of us across the whole House unequivocally to give our support to the security services in the job that they do. We face a range of threats in this country, and the people of this country need the reassurance of knowing that their politicians are giving the necessary support to the security services.
Sir Desmond Swayne (New Forest West) (Con)
A decision outside the GRU by the Russian state at a senior level—she means President Putin, doesn’t she?
The Prime Minister
I mean a decision outside the GRU at a senior level in the Russian state.
John Woodcock (Barrow and Furness) (Ind)
The public need to see that their elected representatives accept the forensically reached conclusions of the police and the British security services over the lies and propaganda that will be pumped out by our enemies, so it is heartening that the overwhelming majority of speakers in this session have accepted that. The Prime Minister mentioned NATO. Does she agree that an attack by the Russian state on British soil using chemical weapons was sufficient to invoke article 5, had she wished to do so? Does she reserve the right to do that in future, if there is another act of aggression by the Russians?
The Prime Minister
The interpretation of matters in relation to article 5 obviously rests on matters of law, apart from anything else. The hon. Gentleman’s earlier point was important. It was about the ability of this House to show the public, the emergency services and our security services our support and to reassure them of our determination to get to the bottom of what happened in Salisbury. He is right to say that it has been forensic, painstaking work that has led to the police having the ability to identify these two individuals, and to making it possible for me to be clear that they were members of the GRU and linked to the Russian state. We should be eternally grateful to them for the service that they provide for us. We will continue to talk with NATO about the ways in which we can enhance NATO’s ability to deal with malign state activity of the variety of sorts that we now see today. When NATO was established, it was very much on the basis of what would now be seen as conventional warfare. Looking at the propaganda and the cyber-attacks that we see today—I understand that the propaganda has already started from the Russian state in relation to today’s statements—we need to ensure that NATO has the necessary capability to deal with them.
Mr John Hayes (South Holland and The Deepings) (Con)
The character of espionage is changing as the methods by which it is conducted alter, partly as a result of technology. At the Home Office, my right hon. Friend and I worked to ensure that the necessary legislation was in place, but given these events and others, will she look again at whether our excellent security and intelligence services need any further powers in order to do their work to keep us safe?
The Prime Minister
My right hon. Friend speaks from his experience as a Security Minister, and I am grateful to him for the point he makes. We have already taken steps such as enhancing the power to stop people at ports when there is a suspicion that they might be involved in hostile state activity. Legislation is also going through the House in relation to enhancing our powers in certain areas relating to counter-terrorism. As my right hon. Friend the Home Secretary has already said, we will look at the issue of espionage legislation to see whether there is anything further that we need to do.
Peter Kyle (Hove) (Lab)
After the attacks earlier in the year, our friends and partners abroad came together in a fantastic way to bring pressure to bear against Russia in response to what happened on our soil. In the light of today’s conclusions, that action should be seen as the start, not the end, of international pressure, because Vladimir Putin responds only to strength, and internationally co-ordinated strength works best. Where next for that partnership?
The Prime Minister
The hon. Gentleman is right that we saw an important international coalition come together. Since then, we have seen some further action being taken by individual countries, such as the United States, in relation to sanctions against Russia. We have also seen a coming together at the European Union level in relation to a sanctions regime for chemical weapons use, and we will continue to push that matter. We will also continue to push on sanctions in relation to Russia in several other areas. That activity will be continuing, and we will continue to step up pressure among our international allies. As I said earlier, I hope that the evidence that has been presented today will clearly show why this is so important.
Dr Andrew Murrison (South West Wiltshire) (Con)
I thank the Prime Minister for the Government support that has been given to Wiltshire in its recovery phase. It continues to be much needed. The apparent ease with which two GRU operatives were able to enter this country will fill people with alarm and suggests continued vulnerability. Accepting the difficulty of detecting agents such as Novichok at our ports and airports, what can be done to reduce the chances not just of individuals but of substances entering the country and permitting a repetition of what we have seen?
The Prime Minister
I reiterate that these individuals travelled on valid passports that were issued by the Russian Government. We have looked at what is necessary at the ports, which is why we have responded by giving the police the power, as they have had in other circumstances, to stop people and interview them at ports should there be a concern that they may be involved in hostile state activity.
Alan Brown (Kilmarnock and Loudoun) (SNP)
The Prime Minister highlighted the fact that the US has imposed additional sanctions on Russia. However, that has been partly counterbalanced by the fact that, just a few weeks ago, Steven Mnuchin spoke about lifting sanctions on a Russian company with links to Putin’s inner circle, and the reality is that Congress has actually forced President Trump’s hand a lot of the time. We saw in Helsinki that Putin clearly ran rings around President Trump, so what direct discussions has the Prime Minister had with the President to reinforce the importance of keeping sanctions on Russia? What is she going to do to gain support for additional sanctions going forward?
The Prime Minister
We have been talking to several allies and partners in relation to the information that we now have about what happened in Salisbury. As I have said, we will continue to talk, particularly in the forums where we have already generated activity in relation to a future sanctions regime, such as in the European Union in relation to the crucial chemical weapons sanctions regime. We will continue to press our allies on that.
Richard Graham (Gloucester) (Con)
Given that the Russian state will deny that Alexander Petrov and Ruslan Boshirov even exist, will my right hon. Friend confirm whether sufficient evidence from our excellent agencies will be shared with others who did not feel able to support the Government in March, so that they can now join the 28 nations who acted in solidarity with us against a state that uses military intelligence officers and nerve agents to murder abroad?
The Prime Minister
I can absolutely give my hon. Friend that reassurance. We will obviously share the information to ensure that those to whom he refers are now aware of the further evidence that has been made available. Of course, this is not just about the names, because the police have today released CCTV images of the two individuals.
Mr Paul Sweeney (Glasgow North East) (Lab/Co-op)
The Prime Minister’s comprehensive statement highlights that the Russian state effectively put hundreds of British citizens in mortal danger, not least those in our NHS who so expertly treated the victims. Will she therefore outline what measures she is putting in place to enhance the resilience of our chemical, biological, radiological and nuclear training, so that personnel across civilian and military services are able to deal with such threats? Will she also review the 2011 decision to disband the Joint Chemical, Biological, Radiological and Nuclear Regiment?
The Prime Minister
The hon. Gentleman makes an important point and gives me a further opportunity to commend the excellent work done by the national health service when faced with the attack in Salisbury. Many people would have found it difficult to deal with such a difficult case, so the fact that they did is a huge commendation for the professionalism of our national health service.
A decontamination review took place a couple of years ago. The Home Office will also be looking at a review of protective measures, as the hon. Gentleman would expect.
James Gray (North Wiltshire) (Con)
In joining the Prime Minister and the whole House in warmly congratulating and thanking our armed services, intelligence services and police on all they have done, I hope that she will understand if I pay particular tribute to the Wiltshire constabulary, which has played an extraordinarily important role in this operation, and the NHS staff at Salisbury hospital. She will also forgive me if I ask two rather local questions. First, will she confirm that the costs borne by the Wiltshire constabulary will be given to the Home Office rather than the people of Wiltshire? Secondly, will she reconfirm to my constituents and people across Wiltshire that there is now no risk of any kind whatsoever from any remnants of the Novichok poisoning?
The Prime Minister
I understand that the Home Office is indeed assisting the Wiltshire constabulary with the costs and that some payments have already been made. My hon. Friend is right to commend the actions of the police officers, ambulance personnel and fire service personnel who were early on the scenes and faced situations in which they did not know exactly what was happening, but they dealt with things professionally and we should commend them for their professionalism.
As for the situation in the surrounding area, the message continues to be that there is a low risk. The police have put out a public appeal today, which includes CCTV footage, so if anybody has any information about having seen the individuals in any particular place, they can bring that information forward. Of course, the police have conducted fingertip searches of all the areas of concern, and, as I say, the risk to the public is low.
Helen Goodman (Bishop Auckland) (Lab)
I add my congratulations to the police on their excellent detective work. The Opposition were pleased that the Government added Magnitsky provisions to the Sanctions and Anti-Money Laundering Act 2018. Section 31 of that Act provides for the appointment of an independent reviewer of counter-terrorism regulations. Has that appointment been made?
The Prime Minister
I will write to the hon. Lady about that particular question.
Mr Jonathan Djanogly (Huntingdon) (Con)
As my right hon. Friend pointed out earlier, during the summer the United States increased its sanctions against Russia specifically as a result of this heinous crime. To what extent are we intending to replicate the sanctions that the US has put in place? Are we are intending to get our EU allies to do the same?
The Prime Minister
Obviously, we have worked closely with our EU allies and others in relation to sanctions on Russia, for which there are various reasons at the moment due to the various aspects of malign state activity. I have referenced the chemical weapons sanctions regime that the EU has agreed in principle, and we will be working with our allies on that. Of course, after 29 March next year, we will have our own sanctions powers in place as an independent state, but we will want to continue to work with allies and others on that.
To clarify a point I made in response to other questions about the new power to stop at the border those concerned with hostile state activity, that matter is contained within the Counter-Terrorism and Border Security Bill, which is currently before the House. I may have given the impression that the measure had already been passed, but it is currently before the House.
Stewart Malcolm McDonald (Glasgow South) (SNP)
A regime that is intent on committing murder around the world will inevitably make mistakes, and the extraordinary work of the police and security services that the Prime Minister has outlined has only punctured the myth of Putin’s omnipotence. I have two specific questions. First, without having to go into the detail, will the Prime Minister assure the House that the Government are pulling out all the stops to provide security to UK assets, such as Mr Skripal, who is a former Russian intelligence agent? Secondly, will she provide an assurance that full co-ordination is also being undertaken with agencies such as Police Scotland?
The Prime Minister
I am happy to give reassurance on both those points that proper and full co-ordination is taking place with agencies such as Police Scotland. There is a very good working relationship between law enforcement across the United Kingdom, and that continues on this particular matter.
The protection of individuals here in the UK was, obviously, looked at with urgency after what happened in Salisbury. My right hon. Friend the Security Minister has chaired a number of meetings in relation to this matter and receives regular updates on it.
James Cleverly (Braintree) (Con)
The evidence is compelling: the Russian state was involved. Will my right hon. Friend condemn the Kremlin apologists and the false-flag conspiracy theorists who have argued with those facts? Further, will she make it clear that our response, in whatever form is necessary, will be robust, decisive and unwavering?
The Prime Minister
I am happy to give my hon. Friend the reassurance that our response will be robust, decisive and unwavering, and it will be ongoing, because this is a matter we need to continue working on. I condemn those who see fit to defend the Russian state where it is clear that it is culpable for this action, this heinous crime committed on UK soil against citizens here in the United Kingdom.
Chris Law (Dundee West) (SNP)
Given the sheer weight of evidence that has been disclosed today regarding the Salisbury attack, can we expect the UK Government, along with their allies, to ensure further sanctions, including deportations of Russian state actors?
The Prime Minister
As I have indicated, we will be looking at these issues on sanctioning, including some aspects of new sanctions regimes, such as I referred to on the EU chemical weapons use regime. Of course, the deportation of individuals relies on there being the required evidence to enable the Home Secretary to take such a decision.
Bill Wiggin (North Herefordshire) (Con)
I commend my right hon. Friend for the very cool way in which she has handled this bellicose threat. Particularly, does she agree that we should remind our constituents, and indeed the Russian people, that this state-sponsored GRU mission was a complete and abject failure, as the Skripals are still alive?
The Prime Minister
My hon. Friend is absolutely right. Obviously, the Skripals are still alive but, sadly, we have seen the death of Dawn Sturgess. There was an impact not just on the Skripals but on Detective Sergeant Nick Bailey and Charlie Rowley as well. Through what I have shown today, I think that we can reassure people across the UK on the excellent professionalism that our security services and our police service have shown in response to this, in bringing us to the point where we are able to identify two individuals.
Kevin Foster (Torbay) (Con)
I thank the Prime Minister for the way in which she has delivered this statement and for the work being done on this issue. I was a member of the Counter-Terrorism and Border Security Bill Committee, and this situation clearly shows exactly why we need these powers to be brought into law. Will she therefore confirm that the Government will quickly seek to bring the Bill to the Floor of the House for Report and Third Reading so it can continue its progress?
The Prime Minister
Yes. We fully recognise the importance of this legislation and of bringing it through. I thank my hon. Friend for his work on that Committee and for his recognition of the significance of this legislation. Of course, the timing of legislation depends on the business managers and on other legislation, but we understand the importance of this Bill and the need to get it on the statute book.
Nigel Huddleston (Mid Worcestershire) (Con)
A deadly chemical attack on a British cathedral city is a truly shocking event, yet the residents of Salisbury have shown great strength since the attack. What assurances can the Prime Minister give local residents and visitors to the Salisbury area that they can now carry out their activities safely? What further support can the Government give so that the local environment can recover from the attack?
The Prime Minister
The Government worked with the local authority and others in the Salisbury and Wiltshire area more generally to ensure that support was in place to help those communities through the disruption and difficulties they had as a result of these incidents. I was very pleased to visit Salisbury shortly after the attack. As I said, the then Home Secretary made two visits to Salisbury, and others have also visited. I want people to go to Salisbury, and I want people to enjoy Salisbury as a city and Wiltshire as a great part of the UK to visit.
I have thanked the police and security services, and I would like to thank the local authority and, indeed, my hon. Friend the Member for Salisbury (John Glen) for their work.
Ross Thomson (Aberdeen South) (Con)
I commend my right hon. Friend for her statement. She referred to Russia’s response of extraordinary obfuscation and lies. Will she update the House on the actions she will be taking to counter propaganda and the dissemination of disinformation from Russia?
The Prime Minister
I hope that my hon. Friend will take the reassurance that we will be acting on this. I cannot go into detail on everything we will be doing, but we will be ensuring that we bring the full panoply of the national security apparatus to deal with the issues we face in terms of this malign state activity.
Widowed Parent’s Allowance
(6 years, 3 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Parliamentary Under-Secretary of State for Work and Pensions (Justin Tomlinson)
With permission, Mr Speaker, I will make a statement on widowed parent’s allowance.
Widowed parent’s allowance is paid to families in receipt of child benefit where one parent’s husband, wife or civil partner died prior to 6 April 2017. It was replaced after that date by bereavement support payments, which are now paid by the Government to families who find themselves in the same unfortunate circumstances. New claimants have no eligibility for widowed parent’s allowance.
Last week the Supreme Court ruled that the primary legislation that governs widowed parent’s allowance is incompatible with the principles of European human rights law, as the benefit precludes any entitlement to widowed parent’s allowance for a surviving unmarried partner. We are in the very earliest stages of carefully considering the full implications of that ruling. Officials at the Department are working closely with their counterparts in Northern Ireland to examine the judgment and what our next steps should be.
However, as the House will be aware, only Parliament is able to change primary legislation. Lady Hale ruled:
“A declaration of incompatibility does not change the law: it is then for the relevant legislature to decide whether or how it should be changed.”
The Court’s ruling therefore does not change the current eligibility rules for receiving bereavement benefits.
I remind the House that the question of opening up bereavement benefits to cohabitees was debated and decided against in this place during the passage of the Pensions Act 2014, which introduced bereavement support payments, the successor to widowed parent’s allowance. It is worth noting that restricting bereavement payments to claimants who were in a legal union with the deceased has been a consistent feature of bereavement support in order to protect and clarify the entitlement. Other contributory benefits linked to national insurance contributions also contain special rules for claimants in a legal union.
A legal union gives the surviving spouse the right to claim state benefits derived from their deceased partner’s national insurance contributions. This principle provides a clear threshold for determining who can be provided for from a deceased person’s NI accumulation, and it serves to promote the institutions of marriage and civil partnership.
As I have stated, we are carefully considering the Court’s judgment and how the Department should proceed in light of it. When we have looked at all the options, I will come before the House to update Parliament further.
Margaret Greenwood (Wirral West) (Lab)
Last week the Supreme Court ruled that the denial of widowed parent’s allowance to surviving unmarried partners with children is incompatible with the law, in upholding the appeal of Siobhan McLaughlin, who lived with her partner, John Adams, and their four children for 23 years until John died in January 2014. I thank the Minister for advance sight of his statement, and I pay tribute to Siobhan McLaughlin and her family for their courage in pursuing this important case. Unmarried bereaved parents should not be subject to discrimination because of their marital status; to put it simply, their children’s needs are the same. The Supreme Court said:
“The financial loss caused to families with children by the death of a parent...is the same whether or not the parents are married or in a civil partnership.”
The financial support provided by the state can be vital to a family who are already grieving for their loss and who may also be facing financial hardship because of diminished income.
The judgment relates to legislation in Northern Ireland, but unmarried couples are ineligible for widowed parent’s allowance in the rest of the UK as well, so the principle established by the Supreme Court has wider implications. Bereaved parents are already contacting support organisations, such as the Childhood Bereavement Network, to ask for guidance in the light of the judgment.
The Minister said that the Government are considering the Court’s judgment and how the Department should proceed, but this judgment did not come out of the blue. In March 2016, the Work and Pensions Committee warned the Government that they could be forced to change their policy as a result of this specific case. The Select Committee’s “Support for the bereaved” report, published in March 2016, clearly expressed the view that excluding unmarried couples was wrong. It said:
“Penalising children on the grounds of the marital status of their parents is unjust.”
So what assessment has the Department made of the cost of bringing the legislation on eligibility for widowed parent’s allowance into line with the Supreme Court judgment in the whole of the UK? What assessment has the Department made of the number of families who made a claim for widowed parent’s allowance that was denied because the parents were not married?
The Minister said that restricting eligibility to those in a legal union has been a consistent feature of bereavement support in order to protect and clarify the entitlement. However, although unmarried couples were treated differently when it came to making a claim for widowed parent’s allowance, that does not apply when it comes to the Department ending their claim, because if the surviving partner cohabits with a new partner their claim is ended, just as it would be if they remarried or entered a civil partnership. The Minister said that it was for Parliament to change the law, and he referred to the vote in 2014. That led to the Government introducing the bereavement support payment in April 2017 to replace widowed parent’s allowance and two other bereavement benefits. Yet they decided to continue to exclude unmarried couples, even though both Members in this place and voluntary organisations working in the field called for eligibility to be extended to them. The Department for Work and Pensions itself estimated that 75% of bereaved families with children would receive less support under the new system.
The Government claimed that they were motivated not by the desire to save money but by the need to “modernise” financial support for bereaved families in order to better reflect society. According to the Office for National Statistics, cohabiting couples are the second largest family type and the fastest growing. The number of cohabiting couples has more than doubled, from 1.5 million in 1996 to 3.3 million in 2017, and the percentage of dependent children living in cohabiting couple families increased from 7% in 1996 to 15% by 2017. When the Government introduced the bereavement support payment to “modernise” support, why did they not extend eligibility to unmarried couples? What message does that send to those children about how they are valued by this Government?
Will the Government now act to bring bereavement support payment into line with the principle established by the Supreme Court that bereaved children should not be disadvantaged because of their parents’ marital status? The purpose of financial support by the state for bereaved families is to try to ensure that, as far as possible, families struggling with grief at the loss of a parent or partner should not have to face the additional worry of how they will manage financially. That should surely apply to families regardless of whether the parents were married or not, as the Supreme Court said last week.
Justin Tomlinson
I thank the hon. Lady for her response. As I said in my statement, the Court cannot change primary legislation, and many of the points she raises are the very ones we will be considering, including the potential impacts of any changes that could happen. I will happily update the House on those once we have had the chance to consider them fully.
Many of the other points raised were at the heart of the principles of why we brought forward the new bereavement payments process: it is far simpler and it is a quicker process. We did consider the point about cohabitation, but this is not straightforward, as was extensively debated during the discussions around the time of the Pensions Act 2014, particularly as the regulations were brought forward. That makes this a complex process, because it can be open to interpretation, leading to delays and additional burdens for claimants, particularly at a time of distress. Any extension could trigger multiple claims; a bereaved person may have been legally married to one person but living with a new partner, who would therefore become eligible.
The hon. Lady talked about the new proposals for families with children, but I will challenge her back on that, because the new system is easier and quicker, and the payment is in addition to other household income. It is not taxed or means-tested, and it is not applied to the benefit cap. These are all keys areas that help those with the lowest income, as the principle was based on fairness. We also widened support so that anyone of working age would qualify and younger spouses and civil partners without children would get support. Specifically for those bereaved with children, an additional £1,500 was paid as the first lump sum. In some cases, those families could be eligible for additional benefits, whether through universal credit, child benefit, tax credits or the funeral expenses payment.
Sir Desmond Swayne (New Forest West) (Con)
Whatever the decision of the Court, will the Minister give consideration in his deliberations to the fact that many on these Benches have a preference for our own law made in this House over the provisions of European human rights law?
Justin Tomlinson
I thank my right hon. Friend for his question. Let me reassure him that that has always been the founding principle of contributory benefits, and to our mind it should continue to be so.
Neil Gray (Airdrie and Shotts) (SNP)
I thank the Minister for advance sight of his statement. He said that the Department was only consulting Northern Ireland on the implications of this Court ruling, but this is a UK reserved benefit, so why is that consultation not extending further? He also said that the Supreme Court ruling does not change the law, but the ruling does say that the law as it stands is flawed, so not updating the eligibility rules has the potential to store up further challenge to the new as well as the legacy benefit, given the precedent that has now been set by Siobhan McLaughlin’s significant win. It would be grossly unfair, and surely open to further challenge, if the Minister did not come back to the House to explain how this decision was to be applied across the board, so can he confirm that the work he is now undertaking with the Department is with that end destination in mind, and is not seeking to limit this significant win to just one family?
Justin Tomlinson
I thank the hon. Gentleman for his comments. The Court ruling specifically applied to Northern Ireland, but I understand the point he has made and I would be happy to meet him to discuss wider implications across the UK. On the other points he raised, those are the very things we are considering, and I will update the House once we have the chance to assess them fully.
Sir Mike Penning (Hemel Hempstead) (Con)
I am no fan of the European courts and I am extremely pro-marriage, but we have to live in the modern world that we live in now, and when the Government consider how to respond to this Court ruling, will they look at something called fairness and natural justice? Many people who will have been able to go to work because their partner stayed at home with the children will have then lost their loved one when they were not married. We need to show compassion, while understanding the benefits system.
Justin Tomlinson
I thank my right hon. Friend for that and he raises a fair point. As with any of the benefits we provide for those in need, this is always underpinned by the principle of fairness.
Frank Field (Birkenhead) (Ind)
May I welcome the Minister back to the Treasury Bench, after a very short period with the Work and Pensions Committee? Might I say that there is some disappointment at the fact that more progress has not been made for him to report to the House today. In other areas of social security the cohabitation rule applies and evidence of cohabitation can be male slippers in the home, but in this case we are talking about evidence of children. There is no doubt that this was a stable union. As the right hon. Member for Hemel Hempstead (Sir Mike Penning) said, surely in such cases fairness is not operating.
Justin Tomlinson
I thank the right hon. Gentleman for that. I enjoyed my brief four or five weeks as part of his Select Committee, where he was a formidable, excellent and well-respected Chair. Fairness is the key. In my defence, this judgment was made only last week and it would have been churlish of me to make a rushed decision, as this has very serious implications and we need to consider it carefully. I will return to update the House as quickly but as sensibly as possible.
Richard Graham (Gloucester) (Con)
When I served on the Work and Pensions Committee, under the chairmanship of the excellent right hon. Member for Birkenhead (Frank Field), whose party no longer seems to find room for him, although he remains Chairman of the Committee, we looked at various issues to do with the widowed parent’s allowance. I hope the Minister will look carefully at the recommendations in that report, which tackled the issue of partners and of how income would be treated under universal credit, because there is a question of fairness to address in how widowed parent’s allowance is currently treated.
Justin Tomlinson
My hon. Friend raises an important point, and that is why under the new benefit payments any income that is gained is not means-tested and the benefit cap does not apply to it, to make sure that people are not given money on the one hand that is taken away on the other, and that the most vulnerable people get the support that they need.
Stella Creasy (Walthamstow) (Lab/Co-op)
I have to tell the Minister that I met his predecessors about this issue, because it is clear that legislation written in 1958 should not mean that children in 2018 live in poverty. We have cases of parents having to get married in intensive care units to avoid the humiliation that this legislation entails. Will he learn from Germany, where the money follows the child through orphan pensions and parenting is the requirement, not marriage? Telling parents that they have only 18 months to grieve is hurtful. Telling them that their family does not exist because they did not put a ring on it is unforgivable. I hope that he will take up my offer of a meeting with the campaigners from Walthamstow—women who have been directly affected by this—and I hope we will finally bring the legislation up to 2018.
Justin Tomlinson
I will be happy to meet the hon. Lady and her colleagues. I have worked with her before on several issues, and I am happy to extend that invitation. It is a balance: contributory benefits have always followed the principle that inheritable benefits are based on the concept of legal marriage or civil partnership because that provides legal certainty. I understand the points that have been raised, and we are considering them following the judgment.
Kevin Foster (Torbay) (Con)
I know that the Minister recognises that all such cases involve distressing circumstances as someone has lost a parent, and that legal niceties are therefore not their first thought. When the Government look at this, will they consider carefully a system that is compassionate but also brings clarity, so that people know exactly when they will qualify?
Justin Tomlinson
As I have said, fairness must underpin this. We do not want to have a complex benefit, because it is a very distressing time for people. We want it to be simple and quick and to provide support to those most in need.
Chris Stephens (Glasgow South West) (SNP)
It seems clear that the will of the House is that a child who has lost a parent should not be penalised because of the marital status of the parents. Does the Minister intend to carry out an equality impact assessment of this benefit?
Justin Tomlinson
Actually, as part of the commitment to bringing in the new bereavement payments, we will do a full impact assessment, which will be shared with the House. One of the key changes is the additional £1,500 in the initial payment for those in a marriage or civil partnership who had children. We understand the importance of making sure that those with children get additional support.[Official Report, 13 September 2018, Vol. 646, c. 6MC.]
Debbie Abrahams (Oldham East and Saddleworth) (Lab)
I echo the calls for compassion and fairness when dealing with children affected in this way. I also gently remind the Minister that this is the seventh ruling in the last 18 months against different aspects of the Government’s social security policy. It would be appropriate for the Government to show some humility and listen.
Justin Tomlinson
I thank the hon. Lady, but those are the principles that govern us. The new system that we have brought in provides immediate support; it prioritises help for those on the lowest incomes; and it recognises that those with children, regardless of age, need additional immediate support. We will continue to assess both the ruling of the Court in relation to Northern Ireland and the wider implications of the new benefit.
Stephen Lloyd (Eastbourne) (LD)
I urge the Government to accept the ruling by the Court. Several hon. Members have talked about fairness, and it is a basic issue of right or wrong. Why does the Department take account of cohabiting couples when determining eligibility for universal credit, but deny those same households bereavement support if one of them passes away?
Justin Tomlinson
I would gently remind the hon. Gentleman that it was his former colleague Steve Webb who steered through the Pensions Act 2014, when this issue was extensively debated. The principle of the new benefit is about fairness and delivering quick and immediate support for those most in need.
Liz Saville Roberts (Dwyfor Meirionnydd) (PC)
I too thank the Minister for advance sight of the statement.
My constituent Donna McClelland died on 20 May, leaving two sons, Cian and Danial, and her partner of 24 years, Arwel Pritchard. They were engaged, but they had prioritised buying a house over the cost of getting married. Arwel and Donna put their children’s home first. When will the Government bring forward a review that will console Mr Pritchard and admit that a legal contract is not a precondition for supporting a grieving family?
Justin Tomlinson
May I first express my personal condolences to the family at this distressing time? I understand the points that the hon. Lady makes, and they are being considered. In the short term, I urge hon. Members to look at the other potential benefits that could be offered to support families, including universal credit and tax credits. I will return to update the House fully as soon as I can following the ruling by the Court last week.
Patricia Gibson (North Ayrshire and Arran) (SNP)
In a debate on 2 March 2017 on bereavement support benefit, I pressed the then Minister on the issue of cohabiting couples. I pointed out that they are treated as couples for other benefits such as tax credits, but I was told that extending eligibility to cohabitees would “increase spend” and be “complex to administer”. Despite what the Minister has said about legal certainties, we know that many bereaved cohabitees and their children have lost out because of the UK Government’s reluctance to recognise them as families. In the light of the Court judgment and the hardship caused to bereaved cohabitees and their children, does he agree that the Government should apologise for their inaction and that, as soon as can possibly be arranged, this needs to be corrected retrospectively so that justice is obtained for the people affected?
Justin Tomlinson
This issue was considered at great length in debates on the Pensions Act 2014 and the subsequent regulations. It is not straightforward. How do the Government act as judge and jury in situations in which someone could be living with a different partner? At a time of great distress, the emphasis has to be on providing appropriate and quick support particularly targeted at those in the most need. Following the ruling in the Supreme Court, the points raised will be considered and I will come back as quickly as is appropriate to provide an update to the House.
Alison Thewliss (Glasgow Central) (SNP)
It is an important principle that social security should be a safety net for us all, because we cannot predict circumstances such as the death of a partner or parent, which could happen at any time. Children should not lose out regardless of the marital status of their parents. How much has the Department spent on fighting the decision in the courts, and can the Minister confirm that it has ruled out appealing the decision?
Justin Tomlinson
It is right to highlight that we should provide support, and that is why in the new benefit we have widened the support available to anyone of a working age and to younger spouses and civil partners without children. They will now get support, and it will not be lost when someone moves into a new relationship. We will continue to review the situation following the Court decision last week, and I will fully update the House.
Alan Brown (Kilmarnock and Loudoun) (SNP)
The Minister’s statement did not contain the word “sorry”. Following on the question asked by my hon. Friend the Member for North Ayrshire and Arran (Patricia Gibson), I will give the Minister an opportunity to say sorry to the individuals affected. Can he also tell us how many of the Government’s welfare and benefit policies have been found to be illegal since 2010?
Justin Tomlinson
As I have previously said, we are considering the Supreme Court ruling. As we have demonstrated, with the introduction of the new bereavement payments we have made it easier to claim, it is paid in addition to other household income, it is not taxed, it is not means-tested and is not included in the benefit cap. We have extended access to it and targeted those most in need. It is that principle of fairness that underlies not just these reforms but all our benefit reforms.
Marriage and Civil Partnership (Minimum Age)
Wednesday 5th September 2018
(6 years, 3 months ago)
Commons ChamberRead Full debate Marriage and Civil Partnership (Minimum Age) Bill 2017-19 View all Marriage and Civil Partnership (Minimum Age) Bill 2017-19 Debates Read Hansard Text
A Ten Minute Rule Bill is a First Reading of a Private Members Bill, but with the sponsor permitted to make a ten minute speech outlining the reasons for the proposed legislation.
There is little chance of the Bill proceeding further unless there is unanimous consent for the Bill or the Government elects to support the Bill directly.
For more information see: Ten Minute Bills
This information is provided by Parallel Parliament and does not comprise part of the offical record
Mrs Pauline Latham (Mid Derbyshire) (Con)
I beg to move,
That leave be given to bring in a Bill to raise the minimum age of consent to marriage or civil partnership to eighteen; and for connected purposes.
Young people in this country have to stay in education or training until they are 18, although they can marry before that, at the age of 16, but only with parental consent. UNICEF believes that marriage before the age of 18 is a fundamental violation of human rights. I agree, and believe that it should be banned in this country. Following the first Girl Summit in 2014, the Department for International Development allocated up to £39 million over five years to support global efforts in preventing child marriages. By its proactive contribution, the UK recognised that child marriages resulted in early pregnancy and girls facing social isolation, interrupted schooling, limited career and vocational opportunities, as well as the increased risk of domestic violence. So why are we not leading the way by increasing the legal age of marriage in this country from 16 to 18—the recognised age of adulthood?
Under the United Nations sustainable development goals, states around the world pledged to end by 2030 marriages in which one or both spouses are under 18, but many Commonwealth countries still follow the legal lead of the UK. In Bangladesh, for instance, the official minimum age of matrimony is 18 for women and 21 for men, but a new provision allows child marriage to take place under special circumstances—that is, with parental consent and with permission from the courts. Lobbyists for this provision cited the current UK law as an example of why the legal age of marriage in Bangladesh should be lowered. Changes to laws in the UK reverberate around the world but this is not the only reason that fresh impetus should be given to increasing the minimum age for marriage from 16 to 18. It should be our priority to protect children, and that may mean from themselves as well as from potential dangers from others.
As we celebrate the centenary of the suffragette movement this year, we should recall that it was pressure from magnificent campaigners that brought about the Age of Marriage Act 1929. Until then, there was no defined minimum age, and making it 16 was seen as protecting children. However, 90 years ago, most young people would have been wage earners, unlike now when, in England, they must stay in full-time education, training or start an apprenticeship. None of these is compatible with a married environment. In fact, my own mother—along with very many others—began her working life after leaving school at 14. Life was very different in those days.
In the United Kingdom, children of 16 and 17 need the consent of their parents to be married. Surely this shows that they are not mature enough to make the decision themselves. But this is not the safeguard that it may once have been because it opens the door for forced marriages, or at least for pressure to be exerted on young people to marry to fulfil family demands. We have outlawed forced marriages here, due to a campaign by Jasvinder Sanghera of Karma Nirvana, which started in Derby. I would like the Minister for Women and Equalities to meet her at some point.
Marriage is a major life decision for which children are not emotionally and physically ready. Setting the minimum age of marriage at 18 provides an objective, rather than subjective, standard of maturity, which safeguards a child from being married when they are not physically, mentally or emotionally ready. Many argue that there should be a minimum level of maturity, and free and full consent about whether, whom and when to marry.
The international human rights conventions on the rights of women and children say that countries should end the practice of enabling child marriage below 18; thus the UK is violating these same commitments. International law is very specific about who should be allowed to marry. If a country wants to permit exceptions to the minimum marriage age of 18, “mature, capable” children are allowed to marry only “in exceptional circumstances” at age 16 or older, when
“such decisions are made by a judge based on legitimate exceptional grounds defined by law…without deference to culture and tradition.”
By allowing 16-year-olds to marry without consent from a judge, the UK is breaking international law, but that has not stopped the UK from telling other countries to follow the same rules that it is flouting. It is important to realise that the UK has a duty to live by the very standards that it is keen to advocate for in the developing world. It is crucial that, as well as trying to eradicate child marriage around the world, the UK meets international human rights standards at home to end this harmful practice.
In 1951, Pugh v. Pugh set legal precedent in handling a case relating to the capacity for the young to be married. In his conclusion, Mr Justice Pearce said: “According to modern thought”—this is 1951, remember—
“it is considered socially and morally wrong that persons of an age, at which we now believe them to be immature and provide for their education, should have the stresses, responsibilities and sexual freedom of marriage and the physical strain of childbirth. Child marriages by common consent are bad for the participants and bad for the institution of marriage.”
His words are as relevant today as they were 70 years ago.
We have an outdated system that we need to change. There are all sorts of things that people can do at different ages, but I believe that we should be looking at moving all, or most, of those things to 18. In most people’s view, 16-year-olds are still children. We should be giving them the opportunity to get married when they are more mature, more sensible and more settled in their lives than they are when they are still at school. Can anybody imagine sustaining a married life while at school, with the strains of exams such as GCSEs and A-levels, and education in college? There are so many pressures at that age, and a marriage intruding on that will cause young people, who think they are mature, to face huge strains and will prevent them from fulfilling their potential. We should now show the world how seriously we take this issue, and increase the minimum age of marriage in England and Wales to 18.
Kevin Foster (Torbay) (Con)
To be clear, I do not propose to divide the House on this matter, but I thought that it would be right to offer my observations and concerns about the motion.
I recognise that getting married at 16 is not the right life choice for many people, particularly if there is any form of coercion, which there should never be in marriage. Marriage should be something that is unique and special, entered into by two loving people of their own free will and free choice. It should not be the case that either side feels a particular obligation to get married. However, the proposal to bring forward this Bill raised quite a number of questions in my mind. The obvious starting point is whether making the age for marriage 18 would mean that we should also make the age of sexual consent 18. Now, that could be a separate debate. Within the last 20 years—in the time of some Members sat in the Chamber this afternoon—there have been quite impassioned debates in this House about the equalisation of the age of consent at 16. Some of the arguments used against that seem rather odd now, even only 20 years later. This Bill raises the question: are we going to reopen the issue of whether the age of consent should be set at 18 or 16?
What would the implications be for those who are currently married? I presume that such a Bill would exempt those who had freely married at 16 or 17. It would be quite onerous suddenly to have a situation where someone who was 16 had legally married after the data law was introduced, yet someone aged 17 now had to wait until their 18th birthday.
I accept the points made, and it is obvious that there is a strong point around the idea that people cannot get married at 16 or 17 without an element of consent, but this is a very long-standing legal age. For me, there are all sorts of arguments about what should be allowed at 16 and what should be allowed at 18. We have just talked about the benefits of the widowed parent’s allowance and the impact of being married or not being married as parents. Under this proposal, someone who decided at 16—legally, if we did not change the age of consent—to make the life-changing decision to have children could not get married until they were 18. That would be a bit of an oddity in our law.
I appreciate the position with regard to the message that this might send internationally, but most countries have similar provisions to the United Kingdom on the age of consent. At the moment, the minimum age of 16 is shared between ourselves and Scotland. If the age in England and Wales were 18, what would be the position if there were a run to Gretna, as was very popular in previous generations when the laws of marriage in Scotland were different from those in the rest of the United Kingdom? What would be the position in terms of recognising marriage certificates? Likewise, Northern Ireland has a separate jurisdiction but is still part of the United Kingdom. How would we recognise that? [Interruption.] I know that it is disappointing for the Scottish National party that Scotland is still part of the United Kingdom, but we would miss the hon. Member for Glasgow East (David Linden) too much if it were not. It would a significant moment for me in the UK if there were different ages at which people could get married in the UK. Particularly at a time when some are arguing very powerfully in this Chamber that the situation in Northern Ireland, where those of the same sex cannot get married, should be brought to an end and that equal marriage should be spread across the UK, it would be strange to have a different age threshold for doing that.
Those concerns brought me on to whether it is right that this proposal is in a private Member’s Bill. I accept that private Members’ Bills can be good vehicles for looking at faults in the law, looking at changing things, and looking at areas that may not necessarily be significant but where there is a need to bring in a piece of primary legislation. I passed my own private Member’s Bill about small-scale digital radio through this House. I see one or two Members who participated in those debates sitting in the Chamber. The hon. Member for Bath (Wera Hobhouse), who is in her place, has brought up the issue of upskirting—a fault in the law that needed to be resolved to give the law its actual intention.
However, this is a much more significant change. If we were to do it, it should follow a more significant consultation process, and it should be debated in Government time, where we would have the time available to make proper and informed observations. As a regular attender on Fridays, I see this all too often, particularly at this stage of the Session. A ten-minute rule Bill would almost certainly not get any debate on Second Reading or on Report, given the number of remaining stages already listed for the remaining two Fridays of this Session. This Bill would make a significant change to our law and it could have wider implications, so it would be odd to go down that route.
There is clearly an argument around the ages at which we can do things. It is odd, as my hon. Friend the Member for Mid Derbyshire (Mrs Latham) said, that such a life-changing commitment can be made at 16, yet someone cannot drive a truck or a steam-powered road roller until they are 21. Certain products can be bought only at 18. Someone can drive a car at 17. There is a whole area to look at. That tempts me towards the view that this is something that should be looked at following a proper review of our law, perhaps through a Government Bill or a Law Commission examination of the knock-on effects if we decided to make such a significant change.
I do not disagree with some of the thrust of the arguments that have been advanced. I see the Under-Secretary of State for Justice, my hon. Friend the Member for Charnwood (Edward Argar), who is a very diligent listener, in his place. I am sure that he will look at how we make sure that provisions around parental consent are meaningful, in a way that they perhaps would have been in the past, but today may not be. In fact, the parents may be the source of the pressure rather than, as the law sees them, a safeguard. That provision is based on an old patriarchal view of society—it would not be the parents; it would be, in effect, the male head of the household who would give consent for the daughter to get married. That is clearly a view from the past that we would not look to codify into law today.
How can we make that more meaningful? Yes, we should look to target forced marriage. However, making such a significant change to a very long-standing provision of law that has a knock-on effect for many other aspects of our legislation should not be done via a ten-minute rule Bill that will potentially receive next to no debate when, in reality, these matters should be more properly considered. That could be done, first, via the Government looking into it—I am sure there will be constructive engagement—and secondly, via consultation. Following that, we could have a Bill via a process that would give us the time for appropriate discussion on the Floor of the House, with the ability to examine in more depth and to have, to be blunt, more than two speakers. Sadly, given the procedures under which we have debated private Members’ Bills for a long time, these are likely to be the only two speeches on this Bill and this issue in the current Session.
As I said, I do not intend to divide the House. I appreciate many of the sentiments that have been expressed. I have written articles myself about the debate about 16 and 17-year-olds and the law with regard to people much older than themselves who are relations. I take the view that once someone is 18 they are an adult and it is up to them who their partner should be, what sex they should be, and any other factors. The only determinant should be that it is a loving and consenting relationship. While it is right that this issue has been brought to the Floor of the House today, my concern is about doing this via a ten-minute rule Bill. Although I will not divide the House, I think it is right that some concerns were expressed about the motion.
Question put and agreed to.
Ordered,
That Mrs Pauline Latham, Priti Patel, Stephen Twigg, Jeremy Lefroy, Chris Philp, Sarah Champion, James Duddridge, Sir Graham Brady, Mr Virendra Sharma, Henry Smith, Philip Davies and Sir Roger Gale present the Bill.
Mrs Pauline Latham accordingly presented the Bill.
Bill read the First time; to be read a Second time on Friday 26 October and to be printed (Bill 261).
James Cartlidge (South Suffolk) (Con)
On a point of order, Madam Deputy Speaker. I seek your guidance and clarification on the business ahead of us today. We have two very important Bills—the Tenant Fees Bill and the Voyeurism (Offences) (No. 2) Bill. Will motion 6, which proposes that my hon. Friend the Member for Daventry (Chris Heaton-Harris) be discharged from the Selection Committee and my hon. Friend the Member for Calder Valley (Craig Whittaker) be added, still be reached even if we go past the moment of interruption?
Madam Deputy Speaker (Dame Eleanor Laing)
Yes, that item can still be reached and can still be moved. It is properly on the Order Paper and the time will come for the House properly to address it. I thank the hon. Gentleman for giving me the opportunity to clarify the matter.
Tenant Fees Bill (Programme) (No. 2)
Ordered,
That the Order of 21 May 2018 (Tenant Fees Bill: Programme) be varied as follows:
(1) Paragraphs (4) and (5) of the Order shall be omitted.
(2) Proceedings on Consideration and proceedings in legislative grand committee shall (so far as not previously concluded) be brought to a conclusion two hours after the commencement of proceedings on the Motion for this Order.
(3) Proceedings on Third Reading shall (so far as not previously concluded) be brought to a conclusion three hours after the commencement of proceedings on the Motion for this Order.—(Rishi Sunak.)
Tenant Fees Bill
Wednesday 5th September 2018
(6 years, 3 months ago)
Commons ChamberRead Full debate Tenant Fees Act 2019 View all Tenant Fees Act 2019 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Consideration of Bill Amendments as at 5 September 2018 - (5 Sep 2018)
16:49 - The House divided: - Ayes: 240 / Noes: 299 - Question accordingly negatived.
17:09 - The House divided: - Ayes: 241 / Noes: 302 - Question accordingly negatived.
The Parliamentary Under-Secretary of State for Housing, Communities and Local Government (Rishi Sunak)
I beg to move amendment 5, page 2, line 17, after “(c),” insert—
“() requires the person to do any of those things—
(i) as a result of an act or default of the person relating to such a tenancy or housing let under it, and
(ii) otherwise than pursuant to, or for the breach of, a provision of a tenancy agreement,”
This amendment means that Clause 1 prohibits a landlord from requiring a tenant or other relevant person to make a prohibited payment or take other action within the clause in the event of an act or default of the tenant where the requirement is imposed otherwise than by the tenancy agreement.
Madam Deputy Speaker (Dame Eleanor Laing)
With this it will be convenient to discuss the following:
Government amendments 6 and 7.
Amendment 1, in clause 8, page 5, line 13 leave out “£5,000” and insert “£30,000”.
Amendment 2, page 5, line 16, leave out from “exceed” to end of line 17 and insert “£30,000”.
Government amendments 8 to 23.
Amendment 4, in schedule 1, page 23, line 29, at end insert—
“Letting agent charges
3A (1) A payment to a letting agent or third party for the establishment or renewal of a tenancy is a permitted payment.
(2) In this section, a payment for the establishment or renewal of a tenancy may include, but is not limited to, fees for—
(a) administrative costs,
(b) credit checks,
(c) tenancy renewal fees, and
(d) inventory charges.
(3) The total payment under this section must not exceed £300.”
This amendment would allow letting agents to charge fees for various services connected with the establishment or renewal of a tenancy but would cap such fees at £300.
Amendment 3, page 23, line 30, leave out paragraph 4 and insert—
“Payment of Landlord or Agent expenses
4 (1) A payment that a tenant is required to make to cover a landlord’s or agent’s reasonable loss arising from a breach of a fair condition of the tenancy agreement by the tenant is a permitted payment.
(2) In this paragraph a “fair condition” is one that relates to—
(a) the replacement cost of a lost key or security device, or
(b) payment of the amount of late rent payments and interest relating to those payments
arising under or in connection with the tenancy.
(3) Paragraph 4(2)(a) does not apply if the payment required—
(a) pertains to rent that was paid within 14 days of the date due under the tenancy agreement, or
(b) exceeds the interest at Bank of England base rate on the rent from the day the rent was due to the day it was paid.
(4) Paragraph 4(2)(b) does not apply if the condition in the tenancy agreement prescribes a fixed fee to be paid for each breach of this term.”
This amendment would remove default fees as a permitted payment and permit the payment of landlord and agent expenses where there is a clear cost due to a tenant fault.
Government amendments 24 to 48.
Rishi Sunak
I will speak to all the Government amendments but, for ease, I will take them in a slightly different order from the one in which they have been set out.
I welcome the Under-Secretary of State for Housing, Communities and Local Government, my hon. Friend the Member for South Derbyshire (Mrs Wheeler), back to her place on the Front Bench. Everything we are discussing today is built on the foundations of her incredible diligence in preparing the Bill for us to consider in Committee, where I enjoyed constructive discussions with my opposite number, the hon. Member for Great Grimsby (Melanie Onn). I am delighted that my hon. Friend is back with us to help us to move the Bill through its final stages.
Amendments 5 and 6 will ensure that landlords and agents cannot charge any fees to tenants in the event of default, except under those circumstances set out in paragraph 4 of schedule 1. That now specifically includes prohibiting default fees that may have been set out in a separate agreement between the agent and the tenant, rather than in the tenancy agreement.
More generally, our provision on default fees in paragraph 4 of schedule 1 has been the source of much discussion and debate. Indeed, the hon. Member for Great Grimsby has tabled an amendment to the provision. Members from across the House, the Housing, Communities and Local Government Committee, and those who provided evidence to the Bill Committee have agreed with the principle that it is not fair for landlords to pay fees that arise due to the fault of the tenant. However, we have listened to concerns expressed by Members on Second Reading and in Committee, including the hon. Members for Great Grimsby and for Dulwich and West Norwood (Helen Hayes), and by tenant groups and the Chartered Trading Standards Institute that the default fees provisions as currently constructed may be open to abuse.
Frank Field (Birkenhead) (Ind)
May I mention a case involving my constituent, which is not uncommon in my constituency or in constituencies throughout the country? A young mother paid a deposit of £595 to her landlord for a wet, mildewed house in Rock Ferry in Birkenhead. When she was driven out by the mould, the landlord claimed that the bins were not emptied by the local authority, so she lost her £595 deposit. She wished to pay the rent for her new property on a day that coincided with her universal credit payments, but the landlord said, “Well, there’s no repayment of your previous deposit, and I want £900 up front if I’m changing the rent day.” In the meantime, during all that stress, my constituent lost her triplets. Will she be covered by the Bill, as amended?
Rishi Sunak
I thank the right hon. Gentleman for his intervention. Without going into the specific details or knowing the full facts, I can say that the example he gives is exactly the kind of bad practice that the Bill is designed to stamp out. It is not just this piece of legislation, which tackles the specific issue of tenant fees, that is relevant, because across the piece, the Government are examining the private rented sector to ensure that there is balance and fairness between tenants and landlords. He touched on the issue of health and whether properties are fit for habitation. The hon. Member for Westminster North (Ms Buck) has proposed a Bill to tackle that exact issue, and the Government are delighted to be supporting its passage through the House.
The issue of transferring deposits from one tenancy to another is out of this Bill’s scope, but the right hon. Gentleman will be pleased to know that the Government have convened a working group to examine deposit passporting. The group has already met, and the findings will be published in the spring of next year.
Frank Field
I am grateful to the Minister, and I will not intervene again, but there is no transporting of the deposit in my constituent’s case. She loses the deposit and then faces paying another deposit of £900 to get her rent payment day in line with her universal credit payments.
Rishi Sunak
The specific issue of one tenancy ending, and the process for recovering part or all of the deposit and starting a new tenancy, is out of scope for this piece of legislation, but it will be a subject for the working group set up by the Government with the sector. There are some interesting ideas about how to solve the problem that the right hon. Gentleman outlines.
Daniel Kawczynski (Shrewsbury and Atcham) (Con)
The right hon. Member for Birkenhead (Frank Field) has quite rightly raised a horror story on behalf of his constituent, but will the Minister acknowledge that there are many highly professional letting agents throughout the country who seek to provide the very best service for their customers under the difficult circumstances that they sometimes face?
Rishi Sunak
I thank my hon. Friend for his intervention, and I entirely agree. The Bill is not about driving letting agents out of business, but about levelling the playing field so that the small minority of bad actors in the industry are not able to continue to the disadvantage of the vast majority of agents who do a terrific and valuable job, which we want to see continue.
Mr Robert Goodwill (Scarborough and Whitby) (Con)
It is precisely the sort of case that the right hon. Member for Birkenhead (Frank Field) raises that gives all landlords a bad name. Most landlords are actually trying to do their best to provide a service to their tenants and hope to have long-standing tenants.
Under the current legislation, for a deposit to be retained by the landlord, there has to be agreement on both sides, otherwise there is an arbitration process. If it is just a case of someone not emptying the bins, there is no way that the landlord would be able to keep all the deposit.
Rishi Sunak
My right hon. Friend is absolutely right. The abuse that the right hon. Member for Birkenhead highlights is exactly why we are all here today to discuss this important subject.
I will return to the topic of default fees. The Bill as drafted already partly mitigates the risk of such abuse by limiting default fees to the landlord’s loss and permitting such fees only if they are expressly set out in the tenancy agreement, which the tenant will obviously have sight of before agreeing to the tenancy. But we acknowledge that more can be done, which is why the Government have tabled a series of amendments to tighten the default fee provision.
As I have said, amendments 5 and 6 will ensure that landlords and agents cannot charge fees to the tenant in the event of default, except under those circumstances set out under paragraph 4 of schedule 1. Secondly, amendment 27 will extend the limitation on what can be charged to incorporate the agent’s costs. We want to ensure that an agent cannot bill a landlord a significant amount only for that to be passed on to the tenant as the landlord’s incurred costs.
Thirdly—and similarly to amendment 3, which was tabled by the hon. Member for Great Grimsby—we introducing a provision to specify that any fees charged must be reasonable in respect of the works undertaken, rather than simply tied to actual loss or costs incurred. This will ensure that landlords and agents cannot make claims for charges that exceed the reasonable commercial value of goods or services.
James Cartlidge (South Suffolk) (Con)
Will my hon. Friend clarify how this would affect fees charged at the end of a tenancy, such as cleaning fees, which we know people will be expected to pay, although they may not have been aware of them at the start of the contract?
Rishi Sunak
I am happy to tell my hon. Friend that the fees he mentions are specifically banned under this piece of legislation. The Bill has been drafted tightly to ban all fees in connection with a tenancy. It is specifically drafted to capture fees such as the ones he raises, so those fees will no longer be in place once the Bill is enacted.
Debbie Abrahams (Oldham East and Saddleworth) (Lab)
Could the Minister expand on who will be monitoring what happens with default fees? Some charities, including Shelter and Citizens Advice, have concerns that this might be used as a loophole for additional costs. Who will monitor the Bill and the default fees arrangements after the Bill is passed?
Rishi Sunak
If you will indulge me, Madam Deputy Speaker, I will expand a little to answer that question. The great thing about the Bill and the simplicity of a ban is that tenants’ ability to self-enforce will be greatly enhanced, which is something that was recognised by various people in the industry who gave evidence to our Bill Committee. Attached to any tenancy agreement is a consumer guide on how to rent and how to let, which provides straightforward advice for a tenant on what is and is not permissible. That will enable them to know whether something they are being charged is not appropriate.
At that stage, there are several avenues for redress that the tenant can pursue. It is mandatory for letting agents to be a member of a redress scheme, and we are consulting on extending that to landlords, but in the first instance there are redress schemes that the tenant can go to. Obviously they can talk directly to the agent and the landlord themselves. If the tenant does not get satisfaction in those conversations, the next step would be to go to the first-tier tribunal. That was recommended by the Housing, Communities and Local Government Committee, and the Government were happy to introduce it into the Bill as an accessible place for our constituents to go and seek redress.
Debbie Abrahams
The Minister is being generous with his time. I absolutely understand what he is saying, and the arrangement seems very comprehensive. My concern, given the emaciated state of trading standards and other local authority enforcement agencies, is that this will not be an effective way of monitoring the situation. Tenants in such a position are still vulnerable, with potentially little legal redress other than by themselves. Is there no opportunity for the Government to monitor what is happening with default fees?
Rishi Sunak
I am sure that the hon. Lady knows that it would not be appropriate for the Government to monitor every single rental transaction that takes place, but the job of the lead enforcement agency is to have exactly that oversight for the industry. I would point out that the Government will fund the first year’s cost for trading standards and enforcement authorities to the tune of about £500,000. Thereafter, the fines under the legislation will enable enforcement authorities to recoup some of the costs, and indeed to invest some of that money in better enforcement. To go back to the heart of the hon. Lady’s question—
Dr David Drew (Stroud) (Lab/Co-op)
Before the Minister does so, will he give way?
Dr Drew
In my area, the good agents are beginning to say that those who are already exploiting the situation are trying to push up rent levels. Will the Government at least look at what has happened since the Bill was introduced to make sure that rents are not pushed up by landlords artificially to overcome this loss of money?
Rishi Sunak
On that relatively unrelated point, it is worth pointing out that when similar legislation was introduced in Scotland, we did not see any greater increase in rents than we would have anticipated.
On the specific question asked by the hon. Member for Oldham East and Saddleworth (Debbie Abrahams) about tenants’ ability to enforce and the ease of their doing so, it is worth bearing in mind that default fees are specifically required to be identified in the tenancy agreement. Up front, at the outset of a new tenancy agreement, the new tenant’s contract has to say exactly what default fees may be relevant under that contract—for example involving the loss of keys, late rent or the loss of an alarm fob. That has to be there in black and white; it is not as though the landlord can come up later on with something that they want to charge the tenant for. That will also be spelled out in the guidance, so it will be very easy for tenants to know whether the default fees they are being charged are appropriate.
Kevin Hollinrake
May I take this opportunity to draw the House’s attention to my entry in the Register of Members’ Financial Interests?
On the point the Minister was making about redress for a tenant, does he agree that the vast majority of these problems are very easily solved by contacting the redress schemes, which are very effective at resolving any disputes that may arise? Will he clarify the point about cleaning? The cleaning of a property that a tenant has left in an inferior condition should still be the responsibility of the tenant, and that is a reasonable requirement to put into any tenancy agreement.
Rishi Sunak
We are very lucky to have the insights today of my hon. Friend and constituency neighbour. He has been a successful business operator in this particular industry and I always listen to what he says with keen interest. I can tell him that he is absolutely right with regard to redress schemes. Our experience—we have heard this throughout the Bill process—is that they do work well and provide a very easy way to resolve most issues. Simply talking directly to the agent and the landlord in the first place is also a way to resolve the vast majority of issues without having to turn to a specific or formal redress scheme.
On the second point, of course a state of condition and an inventory may be attached to a tenancy, and such a cost would be recovered during the normal course of a deposit return. The tenant would obviously have obligations in that regard, and a breach of those terms would be considered damages in the normal way. However, there will not be a specific charging of fees at the outset of a tenancy; unless otherwise broadly agreed, that is covered by the damages provision in a contract.
I believe my hon. Friend the Member for Carlisle (John Stevenson) wanted to intervene.
John Stevenson
The Minister referred to certain clauses being in a tenancy agreement with which the tenant would be obliged to comply. Agricultural law lays down prescribed clauses that have to be incorporated into agricultural tenancies. Has any thought been given to the Government setting out prescribed clauses to be incorporated into a tenancy agreement for residential property?
Rishi Sunak
That is the crux of what we will come on to later. The Government’s approach has been not narrowly to specify the specific things that could qualify as default fees. There has indeed been discussion of this topic. The Government’s point of view, which I will explain later, will I hope provide some clarity on that point.
If I may return to the—
Bob Blackman
A lot of the Government proposals are formed around what is reasonable, and one of the key tests in law relates to what is reasonable. I gently ask him to set out for the House what he considers to be reasonable. To give an example, he has mentioned the loss of keys. The loss of a normal household door key may be relatively cheap, but security keys provided by only one manufacturer can be very expensive. Is it reasonable for a tenant to be charged should he or she lose such a key? If so, that would mean a default charge of quite a considerable sum of money, even if it was specified in the original contract—the lease or rental agreement. Would that need to be specified in that way, or would it be classified as a reasonable default charge if the key was lost?
Rishi Sunak
I again thank my hon. Friend for all his work on the Select Committee in helping us to improve this legislation. I know that he has given great thought to the matters we are discussing today, and we have just heard another example. I can tell him that the word “reasonable” has been chosen very deliberately, because it is a commonly accepted legal term that is widely used in various pieces of legislation and is open to interpretation in a consistent way by the courts. Indeed, the Opposition have chosen the same term in amendment 3.
Mr Jim Cunningham (Coventry South) (Lab)
To come back to the question asked by the hon. Member for Harrow East (Bob Blackman), some weeks ago I watched a documentary about this. It looked at the safety of a particular house, and it ended up with the enforcement officers directing the landlord to replace the sort of very expensive locks that he mentioned. I do not know whether that is common, but the Minister may know more than me.
Rishi Sunak
That ties in nicely with the point made by my hon. Friend the Member for Harrow East (Bob Blackman), but it would not be right for me to stand at the Dispatch Box and define what is reasonable in any particular case. There is a general test of reasonableness, which will vary from circumstance to circumstance. A simple key for a garden gate with no security attached to it will rightly cost very little—people can go down to Timpson or wherever to replace it—but a security identity fob for an alarm system may be much more expensive. The point is that the charges could not exceed the reasonable commercial or market value of such goods or services.
On that point, I reassure my hon. Friend that we want to go further than amendment 3, which was tabled by the hon. Member for Great Grimsby, would have us do. We have listened to concerns about the fact that tenants may find it difficult to challenge the reasonableness of default fees, and we believe that it would be easier for them to do so if they were offered up-front evidence of default charges. That is why amendment 28 introduces a requirement for landlords and agents to demonstrate their loss proactively by providing written evidence—for example, in the form of receipts or invoices—of the costs incurred before charging tenants. That will put the onus on landlords and agents to be clear about the charges that they want to levy, and it will give tenants additional assurance that they are paying a fair and reasonable amount.
To return to the intervention by my hon. Friend the Member for Carlisle (John Stevenson), the Government maintain that it would not be appropriate to list default charges in the Bill, given the risk that such a list will be incomplete or insufficient. We believe it is for the tenant and the landlord to determine what it is necessary and fair to include as default charges, on a case-by-case basis. There are other potential default charges besides those for late payment of rent and lost keys. Charges might also result from not parking in the space allotted to a property in a communal area, from the loss of a home automation smart remote and from the misuse of a common space—perhaps for a barbecue or other party event. Our amendments will increase transparency and fairness by ensuring that landlords and agents can recover their costs, while providing greater protection to tenants over the level of fees that they can be charged and further minimising the risk of abuse.
I turn to our other amendments regarding permitted payments. We want to ensure that the Bill delivers on the policy intention that the party who contracts a service should pay for the service. We have already been clear that where tenants procure their own third-party services—for example, a reference check or an inventory—they should be responsible for the cost. The legislation allows for that, although agents and landlords cannot, of course, require a tenant to use and pay for a third-party service.
Similarly, tenants should be able to make payments to agents whose services they contract for the purpose of finding accommodation, provided that the agent does not work on behalf of the landlord. That may be the case if a tenant lives overseas or otherwise requires assistance in relocating. We do not wish to prevent relocation agents from charging a fee for their services. Amendment 7 is designed to ensure that tenants are free to contract the services of a relocation or similar agent should they wish to do so, provided that the agent does not also act on behalf of the landlord with whom the tenancy is being agreed.
There are some further minor amendments to clause 28. Amendments 20 to 23 ensure that if a payment, such as a default charge, is required under a tenancy agreement that was entered into before the ban comes into force, that payment will be prohibited where it is paid to an agent after a period of 12 months. The Bill already prohibits that in relation to landlords, and we want to ensure that there is consistency with respect to agreements with agents.
Further to that, amendments 24, 25 and 29 to 42 make some minor drafting changes to clarify that a person acting on behalf of the tenant, or someone who has guaranteed the payment of rent—a relevant person—can also make a permitted payment. That will ensure that if somebody guarantees a tenant’s rent, they can make payments on the tenant’s behalf to a landlord or agent if required.
We have also tabled several amendments to clarify the enforcement and repayment provisions in the Bill. The amendments will ensure that the legislation can be effectively and fairly enforced, and that tenants have proper access to redress when things go wrong. First, amendments 13, 14 and 44 to 48 ensure that if a landlord or agent charges the tenant an unlawful payment, the landlord or agent must repay it as soon as is practically possible. Currently, when a tenant seeks repayment through the local authority or first-tier tribunal, a landlord or agent has 14 days or 28 days, respectively, to return the unlawfully charged payment once an enforcement order has been made.
We are talking about tenants’ money, and we want to ensure that tenants can recover it in good time. It is not fair for a tenant to be out of pocket because a landlord or an agent has charged a fee or unlawfully required a tenant to pay a third party. Our amendments will require a landlord or an agent to repay unlawful fees within seven to 14 days of the making of an order by the enforcement authority or the first-tier tribunal. The authority or tribunal will have discretion over when the payment is required, within that narrow period. We expect that most repayments will be made within seven days, but we have provided for a range because in certain circumstances it may not be possible for a landlord or agent to repay the money within seven days. I hope that this amendment addresses the concerns that we have heard about the speed of repayment when a landlord or agent is at fault, and we hope that it reassures tenants about the recovery of their money.
Mr Jim Cunningham
The last time we debated the Bill, I raised the issue of who would enforce it. The Minister has mentioned the enforcement authorities. Is it still his intention that trading standards officers should be enforcement officers, or has that changed?
Rishi Sunak
That has not changed. In Committee and during the evidence sessions, there was overwhelming support for the idea of trading standards authorities playing a key role in enforcement, given their complementary responsibilities in similar legislation. We have heard good evidence for that, and they will be supported up front by half a million pounds from the Government in the first year of the implementation of the legislation.
We want to ensure that the enforcement authorities are required to notify the lead enforcement authority in the circumstances that I have set out. At present, they are required to notify the lead enforcement authorities only when they impose a financial penalty. Extending the notification requirement to criminal offences will help the lead enforcement authority more effectively to monitor and report on the effectiveness and operation of the ban. This will also help to support local authorities better with their own enforcement actions.
Fourthly, on enforcement, when a tenant takes action to recover their fees, they should have confidence that their local authority can assist them through the process. The Bill already provides that local authorities can assist an individual in recovering a prohibited payment via the first-tier tribunal.
Maria Caulfield (Lewes) (Con)
One issue with current legislation on the requirement to publish letting agents’ fees has been the lack of enforcement. What confidence can the Minister give the House that enforcement will actually happen under this very welcome new legislation?
Rishi Sunak
My hon. Friend spoke passionately on Second Reading about renters in her constituency and the work she has done with them to ensure that they are treated fairly. I commend her for that, and for raising a very good point. I am pleased to tell her that the Government are funding enforcement activity with half a million pounds of fresh funding in the first year after the Bill is enacted. Subsequent to that, the fines that the legislation will enable local authorities to levy—potentially up to £30,000 for a repeat incidence—will help to fund ongoing activity. I am confident that we will be able to deal with the issue that she raises.
Mr Goodwill
Is the Minister confident that local authorities will have the resources and expertise to do what is set out in the Bill? We in the Bill Committee were concerned that 93% of local authorities had failed to issue even one penalty, and that the level of activity in this area was very poor.
Rishi Sunak
As the Minister with responsibility for local government, I am full of admiration for local authorities and their ability to do many things. The pace of the creation of new legislation over the past year or two means that many of the local authorities’ powers in this area are relatively new, so local authorities are getting to grips with them bit by bit. I am pleased to say that there are very positive examples on the ground of local authorities taking action to enforce housing legislation and reinvesting in enforcement the fines that they generate.
A brilliant example of that is Torbay Council, which has used the fines from civil penalties to employ an extra enforcement officer to help with exactly the activities that we are discussing.
Sir Christopher Chope (Christchurch) (Con)
Why are we not talking about a duty on local authorities to carry out enforcement? The Minister is saying that they have the powers, but the Public Bill Committee heard evidence that the London Borough of Newham prosecutes around 250 landlords and agents a year and that that represents half the total number of prosecutions in the whole sector. Why is there not a duty on local authorities to carry out enforcement?
Rishi Sunak
As I mentioned previously, Newham is obviously ahead of the curve, and the Committee did hear evidence about that, but many other local authorities are now following suit. Liverpool, Camden and Torbay are examples of local authorities that are getting to grips with the new legislation and putting it into effect in good order. I am pleased to say that, as these are relatively new powers, over the summer recess my Department conducted an extensive engagement activity across five different events throughout the country, involving almost 200 different local authorities, to talk specifically about the enforcement of regulations in the sector. Those conversations have sparked a lot of interesting collaboration across local authorities as they contemplate using the existing regulations and the new legislation in future. As we go forward together, with greater awareness and collaboration and, indeed, the greater funding that will come as a result of the legislation, I am confident that we will see enhanced enforcement activity from local authorities, where required.
Kevin Hollinrake
The Minister is doing an excellent job at the Dispatch Box, as always. Does he agree that another method of sanctioning landlords and agents who will not comply with reasonable regulations is through the redress process? The requirement for agents to be members of a redress scheme was introduced by our Administration in 2014. It was a seminal moment in the raising of standards in the industry. The requirement to be a member of a redress scheme, with an agreement going across the other two redress schemes, means that a practitioner can in effect be banned from the sector because they are not allowed to be a member of a redress scheme. If that idea is expanded to landlords, we will have another method of excluding from the sector people who will not do the right thing in the right way.
Rishi Sunak
I thank my hon. Friend for that clear example of an activity that is already happening that enables redress to be found. He is absolutely right to highlight the potential extension of membership of redress schemes from agents to landlords, which would further improve tenants’ ability to seek redress when they need it and would more generally act as an incentive for good behaviour in the first place. He will know that the Government are conducting a broader conversation about the regulation of estate agents, about ensuring that the industry is properly regulated and that standards are high and about ensuring that the actions of a small minority do not jeopardise the health of the great majority of the sector. That is an ongoing piece of work, and I am sure that we will discuss it in the House in due course.
As we discussed in Committee, when a tenant has paid an unlawful fee, it is only fair that they should be given a say in how those fees are reimbursed, and the hon. Members for Great Grimsby (Melanie Onn) and for Croydon Central (Sarah Jones), whom I am pleased to see the in their places on the Front Bench, tabled an amendment to that specific effect. As I said I would in Committee, I have considered their amendment and agree that such a provision would be a worthwhile addition to the legislation. As such, amendments 9, 10, 12, 18, 19 and 43 will place a requirement on landlords and agents to seek consent if they wish to offset such a fee against a tenancy deposit or rent payment. I hope that those hon. Members will be happy with that incorporation.
I am pleased to say that our amendments go slightly further than the one proposed by the Opposition Front-Bench team, by also requiring agents and landlords to seek the tenant’s consent if they wish to offset the holding deposit from the tenancy deposit or a future rent payment. If the landlord or agent does not seek consent from the tenant or relevant person about how the prohibited payment or holding deposit should be refunded, they will be judged not to have fulfilled their obligation to repay the fee. That will leave the landlord or agent liable for a financial penalty and give the tenant the right to recover their fee through the relevant enforcement authority. It will also restrict the landlord’s ability to serve a section 21 eviction notice.
I have already explained why we do not support the amendment tabled by the hon. Member for Great Grimsby on the default fee provision and why our proposed alternative is fairer and more workable. I wish briefly to address amendment 1, which she also tabled and which would increase the financial penalty for a breach of the ban from £5,000 to £30,000, and explain why we do not support it. We want the fine to act as a serious deterrent to non-compliance. We have listened to feedback from across the sector, and we firmly believe that financial penalties provided in the Bill are the right ones. I think that most people would agree that a £30,000 fine for an initial breach of the ban, as proposed in the amendment, would be excessive. We do not want unfairly to penalise landlords and agents who may inadvertently breach the ban on fees. In particular, that might seriously financially hurt individual landlords who, for context, collect on average rent of around £8,000 from a single properly. A £30,000 fine is almost four multiples of that.
Mr Goodwill
Does the Minister agree that a £30,000 fine might well precipitate the sale of the property and the eviction of the tenant—the very person whom the Bill is meant to protect?
Rishi Sunak
My right hon. Friend is right. He made the same points in Committee, and I appreciate his raising them again today.
The Government have listened to concerns that some agents and landlords see the £5,000 initial fines as a cost of business and thus repeatedly refuse to comply. That is why the legislation makes landlords and agents liable for a financial penalty for each individual breach of the ban that they commit. In addition, setting financial penalty at up to £30,000 for a second or further breach of the ban will act as a serious deterrent for prolific offenders. It is worth pointing out that further breaches will leave the landlord or agent liable to prosecution and an unlimited fine and, indeed, qualify as a banning-order offence. The Government believe that, taken together, this set of sanctions forms a serious deterrent to poor behaviour. To accept the Opposition amendment would be disproportionate and excessive in respect of the cases we are discussing.
Bob Blackman
There is a specific issue in relation to very corrupt landlords who exploit vulnerable people. The concern that I think many Members who have investigated the background to this issue will have had, particularly in parts of London, is that a fine of merely £5,000 will be seen as just the cost of doing business. These people are exploiting vulnerable people to the tune of hundreds of thousands of pounds, so for them even a fine of £30,000 would be nothing. I therefore urge my hon. Friend to consider this matter further as the Bill makes its way through the other place. Will he look at what can be done to take on these people? They are not landlords, but rogues and crooks. They need to be brought to account for the damage they are doing to the rental market and for the exploitation of very vulnerable people who have no choice in where they live.
Rishi Sunak
I thank my hon. Friend for that powerful intervention. He knows first hand, from the excellent work he does with his constituents to tackle this issue, the scale of the problem in particular cases. He will be reassured to know that, while existing legislation allows local authorities to levy a £30,000 fine for a second breach, if they choose not to do so, they can go down the prosecution route. For the cases he mentions, that would probably be more appropriate. The sanctions in that case are an unlimited fine and a banning order, which, for the specific landlords he mentions, would be appropriate. I think that he would agree that being banned from being able to rent any property for 12 months or longer, or an unlimited fine, would serve as a very significant sanction to the core behaviour in such cases. With that final assurance, I commend the Government’s amendments.
Melanie Onn (Great Grimsby) (Lab)
I welcome the Government’s amendments. They go some way towards making the Bill much more meaningful, and we will support them. I remain, however, disappointed at the lack of movement on the requirement for deposits, which will stay at up to six weeks. I believe that that remains a significant financial barrier into the private rented sector for many people. Deposits are currently in the region of four weeks at a natural level. Allowing deposits of up to six weeks is likely to encourage more landlords or agents to increase their length and make it even harder for people to access the private rented sector.
Kevin Hollinrake
The hon. Lady makes a point about the length of deposits. Does she not acknowledge that there can be different circumstances? For example, a tenant with pets may damage a property more than a tenant without pets. If we do not allow some flexibility, people in those circumstances might not be able to rent a property at all. Scotland provides a basis for many of the measures in the proposed legislation, and the length of a deposit in Scotland can be up to two months. Does she therefore not agree that six weeks is actually fair and covers more circumstances than simply keeping it at a month?
Melanie Onn
I respectfully disagree with the hon. Gentleman’s perspective. Four weeks is an acceptable deposit. Introducing the possibility of an increase to a maximum of six weeks is unnecessary, and I urge the Government to look at that again.
Before I move on to amendments 3, 1 and 2, I would like to return to a number of important issues raised in Committee that have not been addressed in the Government’s amendments. I hope that the Minister will provide more clarification on them. Perhaps they could be considered as the Bill goes through its next stages.
It is about 12 weeks since we last discussed the Bill, which is something like the timeframe that I and many of us had in mind when the Minister said in Committee that its main provisions would come into force in “a few months” after the Bill had passed. However, on her YouTube channel, “Agent Rainmaker—Letting Agent Growth”, Sally Lawson, the former president of ARLA Propertymark, tells us that the measures in the Bill will not come into force until April next year. That seemed to be a fairly definite date. Can the Minister advise the House on whether that is simply speculation, or whether it is the very earliest the Government can manage to bring forward these very important measures?
I would like further clarification regarding erroneous right to rent decisions by the Home Office and their impact on the return of a holding deposit. Will the Minister confirm that, if the Home Office makes a mistake with a right to rent check and misinforms the landlord that a tenant has failed the check, the landlord will not be liable for a financial penalty? Will he confirm that the landlord will simply be required to return the holding deposit to the tenant, as recommended by the Housing, Communities and Local Government Committee?
Despite the need for further clarification on those issues, I am pleased that the Government have acceded to common sense on a number of issues that we in the Opposition raised in Committee. First, I welcome the Government’s acceptance of the amendment we tabled in Committee to give tenants who are owed money following a prohibited payment a choice over how it is repaid. The original wording could have caused problems for tenants in certain circumstances. More widely, it would have contravened the principle that the money belongs to the tenant and that it is for the tenant to decide what to do with it.
Secondly, after a lot of persuasion from the Opposition, the Government are taking steps in a positive direction on their description of a default fee. It is right that it includes the definition of “reasonable” in association with costs and that there will now be a requirement to produce audits or invoices of any costs levied. Those changes will add substantial benefits to the Government’s definition of default fees and help to prevent the very worst offenders from defining unreasonable costs as a loss.
Similarly, requiring landlords or agents to provide invoices for their costs will provide greater transparency for tenants and represents a substantial shift from the Government’s position in Committee. Giving tenants an invoice allows them to account for what they are being charged and provides a platform for an appropriate challenge when the fee is considered unreasonable or prohibited. I am reassured by the Government amendments that the Minister has heard the point that simply relying on guidance, which was the initial proposal, would not be enough to prevent the continuation of tenants being overcharged. The only way to end punitive default fees, which unfortunately have turned into a cash cow for some unscrupulous landlords and letting agents, is to spell out firmly in the Bill what is and is not acceptable, rather than to rely on guidance.
Less than half of renters in this country see their deposit agreement before handing over their money, and a third have signed a tenancy agreement without fully understanding it. The Bill provides a loophole for unscrupulous landlords and agents to exploit that by placing unfair terms in their tenancy agreements. That is why I ask all Members to support amendment 3. It would provide a clear list of acceptable payments that cover a loss to the landlord. It would allow for fees to be charged only when there was a clear and indisputable cost, and it would prevent the use of tenancy agreements as a device through which to include additional charges. Although we set out a limited set of terms for permitted payments in the amendment, it would not stop landlords claiming damages or taking money out of a deposit where needed. The amendment relates only to situations where there is no dispute and there is a real, additional or exceptional cost to the landlord that falls outside usual expected business costs, such as sending a letter or email to a tenant.
Kevin Hollinrake
Are the fair conditions in amendment 3 examples of charges that may be levied or a definitive list? One thing the hon. Lady has neglected to put in the amendment, for example, is what happens if a tenant breaks the terms of the agreement and wants to leave early or change the sharer. That can result in significant costs to a landlord or agent. Is she excluding that possibility with the amendment?
Melanie Onn
I accept what the hon. Gentleman says. The amendment would serve as an example. I would be happy for it to be adopted and then to be taken on further by the Lords. It sets out examples, rather than being a full definition of the circumstances in which a tenant could be charged.
In principle, putting in place a simple paragraph such as that in amendment 3 would make it far clearer to tenants when a breach had taken place. As it stands, the Bill will still be extremely confusing for any tenant trying to tell whether a breach has taken place. That, in turn, will inhibit the right and opportunity of a tenant to properly challenge a landlord or letting agent at a tribunal. Providing clarity on the face of the Bill would remove the ambiguity. Under amendment 3, it would be easy for a tenant to tell if they had been charged an unfair fee, and they would be better able to self-enforce their rights.
Such self-enforcement may be necessary. The Minister talked about it in very positive terms, but I am not sure it is so positive. It reinforces the point that the Bill does not carry the weight of enforcement behind it to take landlords and letting agents to task properly when they continue to break the law. For the Bill to succeed, it must be backed by sufficient enforcement power.
That is why we propose amendments 1 and 2, the primary aim of which is to allow trading councils the freedom to apply higher fines to those who break the rules. That would improve the enforcement of the Bill twofold. First, it would deter landlords and letting agents from taking the chance of applying prohibited levels of fines towards tenants. Even with strong legislation, we know that tenants can often end up in illegal renting situations owing to a lack of knowledge, a lack of confidence to challenge an unfair decision or the fear that a complaint or relationship breakdown could leave them without a house and on the street. We can see this in the Citizens Advice report “Touch and go”, which highlighted the fact that 44% of tenants did not complain about a category 1 hazard in their house.
Secondly, the Opposition are worried that unscrupulous landlords and letting agents may still be tempted to charge prohibited fees in the belief that they will not be challenged until they have taken well over £5,000 in prohibited fees, and that as a result they will see those fines as a business cost. As the hon. Member for Harrow East (Bob Blackman) pointed out, it is just the cost of doing business, rather than the real deterrent it should be. I echo his point that some of the people who local authorities have been enforcing against are not genuine, upstanding, licensed and registered, above-board landlords and agents, but criminals and crooks, and the fine of £5,000 will simply not be enough to deter them.
The Minister had concerns about the £30,000 fine, but amendment 2 states only that it “must not exceed” £30,000. That need not necessarily be the first fine—that would be for the enforcement agency to determine, given the circumstances and an understanding of the situation. Still, to provide a full deterrent would certainly increase the odds against those who take the chance and charge prohibited fees.
Mr Goodwill
I do not for one second wish to defend the actions of some of these unscrupulous letting agents, but the fine will be £5,000 for each occurrence, so if they are serial offenders, they are likely to get serial penalties. At the same time, of course, some landlords may inadvertently fall foul of the law, and it would be unfair to impose on them fines as big as £30,000. As I said to the Minister, it might result in properties having to be sold and tenants losing their house.
Melanie Onn
I hear what the right hon. Gentleman says, and I thank him for his intervention, but I repeat the point that the fine “must not exceed” £30,000 but need not necessarily be £30,000 in the first instance.
Daniel Kawczynski
The hon. Lady is eloquently highlighting the importance of protecting tenants, but I am a little concerned that in all her points there is little reference to protecting landlords and letting agents. I hope she will come on to that. When ARLA Propertymark surveyed Members of Parliament, one newly elected Member informed it that there should be no private sector rentals, that they should be abolished and that we should have either owner-occupier homes or social housing. I hope she does not agree with that and that she will put on the record her support for the private sector in providing jobs.
Melanie Onn
There is absolutely no suggestion in my comments that we should do away with the private rented sector, but the balance to date has been too far in favour of a private rented sector that has grown exponentially over the last 10 to 15 years and left tenants in a tenuous situation when it comes to their properties. When properties are just being used as commercial entities, with no consideration for the fact that they are people’s homes, that is where the difficulty lies, and it is absolutely right that the Bill is primarily designed to shift the balance a little more in favour of tenants, who so far have had a very bad deal.
James Cartlidge
Further to the intervention by my hon. Friend the Member for Shrewsbury and Atcham (Daniel Kawczynski), while we all agree that the Bill is a positive measure to help tenants, is there not a danger that if we start ramping up fines and so on, instead of a positive measure to help tenants, the Bill will look like an attack on many small businesses, the vast majority of which conduct their businesses entirely in accordance with regulations?
Melanie Onn
I thank the hon. Gentleman for his contribution. If the Government were to adopt my amendment, I am absolutely sure that that is not the message that they would want to send out to the private landlord sector. This is not about people who are operating legitimately, who do a good job for their tenants, who are supportive of tenants and who are doing everything in their power to assist them when problems arise; it is about the minority of landlords who do not care about the standard of accommodation that they are providing or about the concerns that tenants may raise with them. If we are to have legislation that has some teeth and that does what it intends to do, which is to try to prevent those people from entering the market in the first place, we should have potential fines of significant figures. That would be a positive thing, and legitimate landlords and agents would welcome it.
Maria Caulfield
To go back to amendment 3, is the hon. Lady not reassured by schedule 1? It states that
“if the amount of the payment exceeds the loss suffered by the landlord as a result of the default, the amount of the excess is a prohibited payment.”
Does that not reassure her that the Bill will protect tenants from those who want to charge exorbitant default fees, as evidence will have to be provided and the amount will have to be justified by the cost that the landlord or the letting agent has had to pay out?
Melanie Onn
As I said at the outset, we support the Government amendments and will not oppose any of them, but I am not sufficiently reassured that my amendment is not still required. As I said, we will not oppose the relevant Government amendment, which has come about as a result of constructive conversations in Committee, where a lot of these issues were dealt with in great detail.
We have not touched in great detail so far on how we can ensure that landlords do not avoid their responsibilities, and that is by enabling local authorities to enforce more proactively. The increase in the fines will go towards assisting with that, and we know that the Government have also committed some funding towards that. The evidence that we heard was that trading standards across the country is a decimated sector within local government. It is already unable to do what is required of it in making checks on letting agents—for example, on the displaying of tenants’ fees. We should therefore allow the additional funding that comes in through these fines to go to local authorities and back into enforcement, which is exactly what the Minister has proposed with the £5,000 fine. That will give local authorities greater income and revenue to provide that enforcement.
I will leave it there, but I hope that Members on both sides of the House will consider voting for the amendments that we have put forward today.
Several hon. Members rose—
Madam Deputy Speaker (Dame Eleanor Laing)
Order. It will be obvious to the House that there is one hour and one minute left to debate this part of the proceedings and that a great many people wish to speak. I quite understand why those on the Front Benches had a lot to say and took a lot of interventions; this is a very large group of amendments. I appeal to hon. Members that if anybody speaks for much more than five minutes, they will be preventing many of their colleagues from speaking at all. It is not up to me to regulate that; it is up to the honour of each Member of the House to limit their remarks, not necessarily in scope but in time, because brevity is the soul of wit.
Mr Goodwill
I was very pleased to serve on the Bill Committee and to hear the very good reasons why the Bill came forward. I am pleased that the Minister has responded to some of the points made in Committee with the Government amendments, which I am very pleased to support.
The picture painted by colleagues from the south of England, particularly from London, does not represent the position in places such as Scarborough in the north of England, where there is a very vibrant rented sector, with adequate supply and demand and where the sort of fees that some have been talking about are not extracted from tenants. However, it is obvious from what we have heard that the current system is not working to protect tenants. Ninety-three per cent. of local authorities have failed to impose a penalty, and with many letting agents not publicising their fees it is difficult for prospective tenants to know what they would actually have to pay and almost impossible to make comparisons. I have also spoken to local estate agents, who have told me about some of the charges they have to take on board. A credit check, for example, can cost as little as £15, but a rogue agent could be charging as much as £625, which is taking advantage.
Daniel Kawczynski
Does my right hon. Friend agree that in places such as Shropshire and Yorkshire the market is in the main regulating itself rather well and these changes might be perceived to be slightly excessive?
Mr Goodwill
Yes. As a landlord myself I am aware of how that operates. We have talked about private landlords and social landlords. I like to see myself as a social landlord: I do not see what I provide to my tenants as being any different from what is provided by a housing association or a local authority—indeed, I like to think I give a better service. Still, it is right that this legislation has been introduced, particularly as double-charging could take place, with both tenant and landlord paying fees to the letting agent and the letting agent doing very well out of that.
I do not agree with the Labour shadow Minister, the hon. Member for Great Grimsby (Melanie Onn), about the fines in amendment 1 and 2. A £5,000 fine for a landlord is already equivalent to a year’s rent for many properties in my part of the world. As I said, having much larger fines could jeopardise the business of such landlords. I also do not support amendment 4, tabled by my hon. Friend the Member for Shrewsbury and Atcham (Daniel Kawczynski). We must do everything we can to help people to get into housing—I would prefer that they were able to buy their houses, but if not, we must help them to get into the rented market. A problem people often face when moving house is that the deposit put on the previous house is not made available at the same time as the new tenancy takes effect. Therefore, having to find, for example, six weeks’ rent at £100 a week plus another six weeks’ rent at £100 a week, plus maybe a £300 fee, as the amendment suggests, means a person looking to rent a two-bedroom flat in Scarborough or Whitby would need to find £1,500 of cash just to make that house move.
I was appalled to hear the nightmare stories mentioned by the right hon. Member for Birkenhead (Frank Field). As my hon. Friend the Member for Thirsk and Malton (Kevin Hollinrake) made clear, the tenants’ redress scheme introduced in 2014 means that the landlord can no longer see that money as their own money that they can snaffle when the tenant moves; instead, they need to demonstrate that real damage has been done or there are real problems that require that money to be used. In the past, I am afraid, I have heard horror stories where reasonable wear and tear was put down as damage or a slight scratch on the wall was taken to indicate that a whole room had to be decorated. I was pleased to hear from the Minister that he is looking at the possibility of a passporting scheme for these deposits. That is desperately needed because it is so frustrating for a tenant wishing to move that their deposit, which they will get in due course, is frozen and cannot be used to pay the next deposit.
To return to amendment 4, it is not reasonable to introduce these fees of £200 or £300. That would become the norm and, to be fair, it is the landlord who is getting this service: it is the landlord who is interested in the creditworthiness of the tenant and who wants to see the legalities and the administration done correctly, and therefore it is not unreasonable for the landlord to pick up the bill. Indeed, many landlords will do much of this work themselves, and tenancy agreements are available to download which makes doing that much easier.
In supporting the Government amendments, I hope that my hon. Friend the Member for Shrewsbury and Atcham will not press his amendment. We certainly would not want the Opposition amendments to be pressed.
Matt Rodda (Reading East) (Lab)
I am grateful for the opportunity to speak in this debate, having spoken on Second Reading in May. It is also a pleasure to follow my hon. Friend the Member for Great Grimsby (Melanie Onn) and other Members.
In Reading East we have seen increasing numbers of young people and families entering the rental market, and it is in the vital interests of these residents and all my constituents that the rental market in our area is affordable, transparent and accessible. However, as with many other constituencies, rising rents, large deposits and high letting fees are increasingly causing difficulties for those seeking to access rented accommodation.
Along with my Labour colleagues, I welcome the Bill as a first step towards establishing a fair and reliable rental market for tenants in my constituency and across the country. However, I remain concerned that the Bill does not go far enough in its protection for tenants. In particular, I am concerned that it does not go far enough to protect tenants against default fees. As we have heard, these are the fees that are chargeable if a letting agent or landlord incurs costs due to a tenant’s actions, such as replacing a lost key or making a late payment. These fees are set at the discretion of the landlord or the agent, and have been described by agents themselves as a back door to reclaiming income lost through this Bill. I share the concern expressed by the Housing, Communities and Local Government Committee and by other respected organisations such as Shelter and Citizens Advice that the lack of clarity regarding default fees creates a major loophole that could expose tenants to unreasonable fines from unscrupulous landlords or letting agents.
Dr Drew
In a survey that I conducted in Stroud, I found that the agents were making just that point. They want complete transparency and fairness in relation to tenants as well as landlords. Does my hon. Friend see the Opposition amendments as a way in which we could strengthen the Bill and deliver that?
Matt Rodda
My hon. Friend makes an interesting point, and I urge the Minister to take this opportunity to listen to him and to the points made by our Front Benchers.
Amendment 3 provides a clear definition of default fees and limits the amount that could be charged, while still allowing landlords and agents to charge for expenses where there is a clear cost. It would provide clarity for all parties and, crucially, it would provide tenants in my constituency and elsewhere with the protection from exploitation that they so desperately need. Surely colleagues across the whole House would agree that that is the right thing to do. I therefore urge the Minister to consider this amendment and to consider strengthening the Bill to provide limits on what can be charged for. I urge him to take this opportunity to protect tenants from exploitation. It is time for the Government to listen to tenants and to deliver a fair, accessible and accountable rental market for all.
Richard Graham (Gloucester) (Con)
I rise to support the Tenant Fees Bill, which has been so clearly presented today by the Minister. The abolition of most up-front fees, the capping of security deposits at six weeks’ rent, the reduction of costs to tenants in the private sector potentially by hundreds of pounds and the increasing of transparency in the housing market—surely we can all unite in saying that these characteristics of the Bill are a good thing. We have all met constituents who rent and whose fees have gone up by roughly 60% in the period between 2010 and 2014 and who have been charged fees for the most bizarre and sometimes unfair reasons—including, for example, checks being made by the same agency on the same tenant for a different property in a short space of time. As my right hon. Friend the Member for Scarborough and Whitby (Mr Goodwill) mentioned, those fees should be paid by the landlord if they are going to be paid by anyone. As rents and demand increase, the unfairness in the marketplace from a few—I stress a few—landlords and agents that is tolerated by law requires a response from the Government.
However, the Bill is not just about saving money and increasing transparency. The principle of fairness will also be boosted because all landlords will have to be members of a redress scheme, and because tenants should have easier access to dispute resolution. That is an issue that many of us will be familiar with through our own surgeries. Agents will have to be registered as members of a client money protection scheme, as many already are, and banning orders and a database of rogue landlords will be introduced. We all know about the frequent suspects whose properties consistently fail environmental health inspections, and I suspect that they will find their way on to that list unless they change their habits, which is the point of the Bill. At the same time, there will be a further consultation on benefits and barriers relating to longer-term tenancies, which I also welcome.
The ban on fees, the capping of security deposits and much else has already been welcomed by many organisations, such as Which? and Citizens Advice, and on the face of it there is no reason why anyone should object to the changes. However, there are of course some who have opposed some of the detail of the legislation, and at a time when trust is such a crucial element in the relationship between tenant, agent and landlord it is worth touching on those objections.
Matt Western (Warwick and Leamington) (Lab)
I rise not only to endorse the changes made by the Government, but to support the amendments tabled by my hon. Friend the Member for Great Grimsby (Melanie Onn) and to welcome the Bill. The Housing, Communities and Local Government Committee heard wise evidence and counsel from various groups, including landlords’ organisations and local authorities, and it is quite clear that there has been a bit of a wild west for many years in certain parts of country. I am proud to say that I have some excellent, responsible agents in my constituency, but there are the less scrupulous exceptions for whom greater regulation is really needed, so the Bill is timely. I have lived and rented in France, where it was evident just how much tighter and more balanced the legislation was.
To echo the point made by my hon. Friend the Member for Great Grimsby, this is really about rebalancing the relationship between landlord, agent and tenant to make it much more transparent and much fairer. For many years tenants have felt disempowered in that relationship, and over the past 20 years we have seen significant growth in the proportion of people renting privately. That proportion has doubled, and in some parts of the country, such as the north-east, it has increased by 200%. It is important that we get to grips with this, and the Bill moves us a long way in doing that.
In the past week I spoke to a student in my constituency who is facing tenant fees of £595 for one year. In some cases we are witnessing extortion, particularly in sectors with high churn, typically with one-year tenancies. We could have gone further, but I welcome the main part of the Bill.
As has been said in the Chamber, and also by organisations such as Shelter, Citizens Advice and Which?, the default fees could have been more clearly and more extensively defined. As the hon. Member for Harrow East (Bob Blackman) said, what is reasonable is open to interpretation. We have seen extreme cases involving replacement key costs, for example. I support amendment 3, which was tabled by my hon. Friend the Member for Great Grimsby, in those circumstances.
The level of the deposit cap was widely raised with the Select Committee by landlords and others. I would have preferred a four-week maximum, but I understand how we got to where we are. Deposit caps are a particular issue for high-churn tenancies. The idea of passporting, as proposed by the Minister, is a welcome move.
Tim Farron (Westmorland and Lonsdale) (LD)
The hon. Gentleman makes a good point. Does he agree with the observation, which has also been made by bodies such as Shelter, that an impact of high deposits is increased homelessness? Homelessness has tripled in my area of the south lakes in the past year, despite our building more council houses. A six-week limit would mean an average deposit of £1,100, which would make a rental property unaffordable for many people.
Matt Western
The hon. Gentleman makes a valid and pertinent point. High deposits are very much part of the cause of homelessness in many areas, because people feel financially and socially excluded from the private rented sector. As I alluded to at the beginning of my speech, high deposits have made renting privately much more difficult. In the same period we have seen a 20% reduction in social rented properties, which are critical.
I will move on because of time. On the issue of compliance, the Select Committee heard how few authorities, whether it be because of less appetite or because they just do not have the enforcement officers, follow through on enforcement. As we have heard, 93% of authorities have not taken enforcement action against rogue landlords. Of course the shining exception is Newham, which, as the Select Committee heard, accounts for half those enforcement cases.
I urge the Minister to reconsider Labour amendments 1 and 2. If £30,000 is seen as too high a maximum, there should be flexibility for authorities to introduce a more appropriate figure, as my hon. Friend the Member for Great Grimsby said—the hon. Member for Harrow East mentioned that £5,000 is a cost of doing business. That is how this was all done in the past, and we have to break that for the future because of the growth and importance of the private rental sector.
I support and welcome the Bill, but I would just ask for tighter regulation of default fees.
Daniel Kawczynski
In the few minutes available to me, I wish to raise a few issues on behalf of my constituents who are involved in this sector, particularly those working for letting agencies. I thank the Minister for seeing me in the Department yesterday, along with the Secretary of State; he has been unfailingly courteous and very well informed. I thank him for listening to me, as he has to others, about some of the concerns I have shared with him on behalf of my constituents.
I had wanted to propose an amendment to cap the fees that letting agents could charge to £300 rather than abolishing these fees entirely, because this proposal directly contradicts the Conservative party’s long-held ethos of being a pro-business, pro-free market party. If these are the measures we are supporting, are we truly a pro-business party? Mr Paul Wallace-Tarry from Belvoir, a letting agents in Shrewsbury, certainly believes we are letting him down by implementing the Bill.
As someone who has rented a property in London for the past 13 years, I am acutely aware of the job that estate agents and letting agents perform. They carry out things ranging from the right-to-rent checks to negotiating contract changes, and from safety checks to organising the tenant move-in. Many times as a tenant I have called upon the agent for help. I believe it is very important to keep the equilibrium correct between the tenant, the landlord and the letting agent, and this Bill may be slightly tipping the balance in favour of the tenant, rather than the landlord.
The Government’s own findings revealed that the mean fee paid by tenants upon moving into their accommodation was £223. However, a ban on tenant fees will lead to rents increasing by around £103 per annum, so industry experts say. For a three-year lease, the tenant would therefore end up paying £309 in total, which is £86 more than the tenant fee. It has also been found that rents could increase by around £82.9 million as a result of the Bill. Clearly the services that the letting agents put in place are being implemented by professionals, and they have to be paid for in some way. The fear is that this will just go on to rents, which are less transparent and accountable than a clear, specific fee.
ARLA Propertymark has found that 90% of letting agents believe that a ban will lead to a rise in rents. Some 60% think that it will lead to lower property quality, and 40% think it will lead to a fall in employment in the medium to long term. If estate agents have to choose between their working relationships with tenants or with landlords, they will side with the landlords, given that there is no financial responsibility or duty of care between them and the tenant. This is what I want to see protected; I want that relationship to be very evenly matched.
I end by simply saying that if the Conservative party understands anything, it is the need to support small business. I feel passionately about the role that small businesses play in our constituencies. I never had the courage to set up my own business. I always worked for large-scale, multinational corporations, knowing that my mortgage would be paid at the end of the month and not having the responsibility of employing people. Many of the people we are talking about today did have the courage to set up their own business. They are entrepreneurs and they are employing professional people, and this is very important. I hope that the Minister will acknowledge the extraordinary amount of care and professionalism that many of these letting agencies in Shrewsbury implement on behalf of their constituents. The Conservative party must understand the need to support small business, with less regulation, less red tape and less taxation in order to empower entrepreneurship and empower people to create the wealth we need to fund our public services. This ban is in direct opposition to that.
As I have said already to the shadow Minister, when ARLA Propertymark conducted a survey of all Members of Parliament, a newly elected Labour Member—I would get into a lot of trouble if I named him—told ARLA that he was not interested because he wanted the whole private sector banned, leaving only owner occupiers or social housing. That is the sort of prejudice that we have to deal with, and it is important that the private sector is respected and supported.
Anneliese Dodds (Oxford East) (Lab/Co-op)
I am pleased that the Government have finally accepted the need to ban tenant fees, for which my party has called for for no fewer than five years—I have personally campaigned for the ban for four years. I support the Labour Front-Bench amendments, because the Bill does not go far enough. We need further specification of the fee regime to make it more user-friendly, and we need to increase penalties for those landlords and letting agencies that flout the new legislation.
Few places in the country are in more need of this legislation than Oxford. Only 39% of people in the city own their own home or have shared ownership—that is well below the national average. Nearly half—49%—rent privately, and that figure has risen by more than a fifth since 2001. Private renting is not just a stopgap in the city; it is the only option for huge numbers of people.
The cost of setting up and maintaining a tenancy in the private rented sector is a huge problem in the city. The sharpest end of that is seen with the exponential growth in rough sleeping in Oxford. On some nights in the 2000s, nobody would be recorded as sleeping on the street, but nowadays having 60 people rough sleeping is the new normal. That is relevant to this debate because the core reason why people in Oxford become homeless has changed. It used to be relationship or family breakdown, but that is no longer the case. The key reason for homelessness now is landlords ceasing tenancies, often because of non-payment of fees.
There are many excellent landlords and letting agents in Oxford, and I find some of the mischaracterisations of the Opposition’s approach in this area bizarre. We all know excellent landlords and letting agents in our constituencies, but a small number bring the rest of the sector down and pollute its reputation, because they do not act in a responsible manner. A significant proportion of my postbag is taken up with tenants who have been asked for unreasonable fees, as well as people who are simply unable even to rent. In fact, I have a meeting in a couple of days with someone who is trying to move into Oxford but cannot afford the different costs associated with getting into a tenancy, and that is even with the private rented sector deposit guarantee scheme operated by the local authority. People are not able to move into Oxford’s private rented sector anymore.
Labour’s amendments would ensure that the new regime that the Bill will rightly introduce would be sufficiently watertight. I welcome some of the changes that the Minister specified, but we need the fee regime to be upfront in the manner specified by my hon. Friend the Member for Great Grimsby. We need a user-friendly regime that tenants can easily understand, and that is not presently the case under the Bill.
We also need to make sure that the fees are sufficient. Oxford has one of the strictest regulatory regimes for landlords, operated by the local authority. Many landlords support it because they see that it squeezes out the rogue operators, and that it has removed many of the most unsafe and unhealthy properties from the housing market in Oxford. The regime pays for itself, and it is important that the regime under the Bill pays for itself, too. That means that those fees have to be sufficient. We have already had a lot of discussion about the cuts that have been made to trading standards, but it might also be helpful to look at how those fees—the Minister asserted that they would be sufficiently deterrent—compare with some of the profits obtained by landlords in areas such as my own.
The average property rent in Oxford is currently £1,919 per calendar month, so £5,000 is very obviously less than three months’ rent—we can all do the maths. Now, I appreciate that not all that rent will be profit, because of course there are associated costs. However, estate agents encouraging people to come into the buy-to-let market in my city inform those people that they will have an average annual return on their investment of 18%. When we talk about whether a fee is deterrent and whether a £5,000 fine is sufficient, we should reflect on that figure.
Comments have been made about the role of central Government and local authorities. Yes, it is absolutely right, as the hon. Member for Christchurch (Sir Christopher Chope) said, that there are local authorities that do not fulfil their responsibilities. There are others that want to go further but have been able to do so only at the behest of central Government. Please can we get to a situation in which local authorities that want to have more stringent regimes do not have to wait to get the okay from central Government? We need more local control.
Bob Blackman
It is a pleasure to follow the hon. Member for Oxford East (Anneliese Dodds) and the passionate view of her constituents. May I draw the attention of the House to my entry in the Register of Members’ Financial Interests?
In the absence of the Chair of the Housing, Communities and Local Government Committee, I had the honour of chairing the Select Committee pre-inquiry into this legislation. We looked at a lot of the evidence that is now coming forward. I am delighted that the Minister has seen fit to make some changes during the passage of the Bill and to accept many of the Select Committee’s recommendations.
The hon. Member for Great Grimsby (Melanie Onn) raised the matter of how many weeks’ rent a deposit should be. It is a shame that she has not tabled an amendment to that issue on Report, because I think several Conservative Members would feel very sympathetic towards restoring what the Select Committee recommended, which was a compromise. There was an argument for four weeks and an argument for six weeks, and we took the view that five weeks was the appropriate compromise for two reasons. First, if the limit is four weeks’ rent, there is a risk that the tenant will just refuse to pay the last month’s rent at the end of a tenancy. Secondly, a deposit of six weeks’ rent would almost certainly become the norm for most landlords, and would therefore be inflationary on the amount of deposit that would be charged.
I gently remind the Minister that in the last Budget the Chancellor allocated some £20 million towards a national rental deposit scheme, following representations from me and several other colleagues to set one up. The Department has not yet set up that scheme, but by saying that the limit will now be six weeks, instead of four or five, the Minister is going to reduce straightaway the number of families that can be assisted under the national rental deposit scheme when the Department finally does bring it forward. I ask him to look at this figure again, because it will limit the number of people who could be assisted through this programme.
On the issue of enforcement, I welcome the changes proposed by the Minister. Many of the changes, which are very clear, go above and beyond those proposed by the Opposition. Having looked at the evidence in relation to this legislation, many of us will share concerns about the difference between what I would classify as true costs, and charges. In answer to my hon. Friend the Member for Shrewsbury and Atcham (Daniel Kawczynski), the key question is, who does the letting agent work for? The letting agent works for the landlord, not the tenant. It is the responsibility of the letting agent to acquire tenants on behalf of their employer—namely, the landlord—and therefore there should not be two charges incurred. The letting agent should charge the landlord for their fees, not charge the tenant for acquiring.
However, there are costs associated with acquiring a tenant—for example, when there is a requirement for a credit check. If a prospective tenant were to fail that test, there is a cost that someone has to collect. If an applicant makes a request through a letting agent and a credit check is then undertaken that is failed by the prospective tenant, it is reasonable that the cost should be passed on to that individual, particularly if they were going to knowingly fail the credit check in the first place. That is an example of a true cost as opposed to a fee charge. My hon. Friend has set out a set of areas and then a limit on the charges that a letting agent may charge a tenant. I trust that he will not press his amendment to a vote, because that goes completely against the spirit of this Bill and what we are proposing.
Kevin Hollinrake
My hon. Friend is making an important point on referencing. Does he agree that it might be beneficial if the Bill were clarified so that everybody was clear about circumstances in which some of the holding deposit might be retained by the landlord or the agent in the case of somebody failing a reference check? If that were not the case, people on low incomes, for example, could be discriminated against when they apply to rent a property.
Bob Blackman
I thank my hon. Friend for that intervention. We clearly need to be more specific. I accept the principle set out by my hon. Friend the Minister that we should not put this in the Bill, but it should be put in regulations, because we can change regulations rather more easily and add things to them at an appropriate time without having to go through primary legislation once again. This is a question of detail that I ask my hon. Friend the Minister to look at again.
The other issue is charges for, for example, lost keys, cleaning or damage that may be done to a property. Those are reasonable costs that a tenant should incur. If that has to be set out in the tenancy agreement, it must be made crystal clear in what we lay out in regulations and guidance to landlords what is allowed and what is not allowed. In particular, things that are not allowed must be specified as being completely outwith the potential of the Bill, as opposed to being in the Bill.
I thank the Minister and his team for looking at and reflecting many of the recommendations that the Select Committee made on the draft Bill. With a few more tweaks, this can be an excellent Bill that we can all be very proud of.
Bim Afolami (Hitchin and Harpenden) (Con)
I rise in support of this Bill and my hon. Friend the Minister. During the Bill’s passage, he has conducted himself, as I think everybody in all parts of this House has already recognised, with the utmost sincerity and courtesy to all parties, both inside and outside the House.
I served on the Bill Committee—entirely voluntarily, of course, Madam Deputy Speaker. Having listened to the exchanges in Committee and today, it strikes me that there are a couple of points where there is complete agreement in all parts of the House. There is agreement that the average letting agent fees have gone up by 60% over the past six or seven years, and that there is a growing problem of tenants feeling that they are less empowered in relation to their tenancies and letting in the private sector market.
Maria Caulfield
I want to touch on two issues to do with fees and enforcement. I want to put on record my thanks to the Lewes citizens advice bureau, which did extensive research for my Adjournment debate in May 2016. While the explanatory notes to the Bill say that letting agents’ fees are on average £200 to £300, in my constituency —probably because it is in the south-east—they are on average between £200 to £1,000. On top of a deposit of six weeks’ rent in advance, that means someone can have to find £2,000 to £3,000 in advance.
This legislation will make a huge difference to tenants in my constituency of Lewes. However, I have some concerns about default fees, which I raised on Second Reading and in Committee. I am pleased to see Government amendments 5 and 6, which tighten these provisions. As stated in my entry in the Register of Members’ Financial Interests, I am a patron of the charity Homelink, which provides more than £100,000 of support to tenants looking for deposits in the Lewes district. The charity is still slightly concerned about default payments, but amendments 5 and 6 are really welcome because they tighten the provisions and state that default payments have to be listed in advance in any tenancy agreement and that there has to be evidence that those fees exist.
Maria Caulfield
I will not give way, simply because of the time constraints on us.
If tenants are found to be in breach of those requirements, they will be liable to penalties and to prosecution, so I am more reassured than I was at the start of the debate. I welcome the fact that the Minister has listening ears, because he has really tried to listen to all Members on this matter.
On the enforcement issue, I am still concerned—not because of this legislation, but because of the failure to enforce the existing legislation requiring letting agents to publish their fees. I welcome the fact that, under clause 7, district councils will be able to keep the penalties charged, and I very much welcome the Minister’s announcement today that there will be £500,000 of up-front loading for councils to enable them to invest in staff and to start taking on enforcement. I want to pursue this, however, by asking what will happen if that still does not result in enforcement, because we will be no further forward with this brilliant legislation if enforcement does not happen. I also put on the record my interest as a vice-president of the Local Government Association, which asked for the up-front loading.
If we are giving councils the money in advance and they are able to keep the penalties, they really must step up to the mark and enforce the legislation. It will make such a difference to tenants’ lives if they know in advance what fees they will have to pay and that those fees are evidence-based, and if they know that if those fees are abused, there will be prosecutions and severe penalties. I cannot support the Opposition’s amendment 3, simply because schedule 1 sets out which fees will or will not be payable, while the Opposition have only given some examples of such fees. That is not really strong enough, and the amendment would severely weaken the legislation.
I congratulate the Minister, who has done a fantastic job in listening to everyone. I still have some slight concerns about enforcement and the default payments, but I am very happy to support the Bill.
Sir Christopher Chope
It is a pleasure to be able to speak in this debate. I am neither a landlord nor a tenant, but I am the chair of the all-party group on the private rented sector, and that sector is under substantial pressure on issues relating to regulation and interference by the Government.
The Residential Landlords Association has estimated that, in the past nine months alone, there have been over 25 consultations across Whitehall proposing changes that will have an impact on the private sector. More than 140 Acts of Parliament and more than 400 regulations affect landlords in the private sector already. That is why many of those landlords choose to get help from letting agents, and this Bill is a direct attack on the profession of letting agents. As my hon. Friend the Member for Shrewsbury and Atcham (Daniel Kawczynski) has said, this is not a Conservative measure at all, and I despair at the fact that so many people seem to want to support this exercise in socialism and control.
Why should a Conservative Government be engaged in preventing professionals from charging a fee for services rendered? Doctors in my constituency charge those aspiring to become social tenants £15 a time to get a medical certificate in support of a social housing transfer. That—in response to my hon. Friend the Member for Harrow East (Bob Blackman)—is not a cost, but a charge. It is a charge, and it is an arbitrary charge: it is imposed, but payable. As I understand it, the Government are not proposing to abolish the right of doctors to charge for writing letters, so why are we proposing to prevent letting agents from charging for the services that they provide?
Sir Christopher Chope
No, I will not give way, because I want to allow hon. Members who have not yet spoken to get in.
Why are we preventing letting agents from charging for credit reference searches, identity and passport checks, and all the rest? When one looks at the evidence in support of the Bill, it is quite clear that if the existing laws were properly enforced, the need for the Bill would not have arisen. I am extremely sceptical about the Government’s assertion that enforcement will be a lot more effective. If they really believe that, why do they not place a duty on local authorities to enforce the legislation, rather than leaving it as a mere power?
The legislation will have a lot of unintended consequences. It is already difficult enough for tenants to obtain rented accommodation if they have pets. It is very difficult for tenants on housing benefit to obtain accommodation. It is very difficult for tenants who do not have clear British citizenship to get rented accommodation. All those things will become a lot more difficult as a result of this additional burden on the private rented sector.
Some 30 years ago, I was a junior Housing Minister. I was much associated with deregulating the sector—introducing shortholds, getting rid of controlled tenancies and enabling the growth that has taken place in the private rented sector. I am disappointed to see my Government working in the opposite direction. I signed amendment 4, which was tabled by my hon. Friend the Member for Shrewsbury and Atcham. I understand that he has been bought off by the Government, so I will not press the matter to a vote. However, I think that there is too much crowd-pleasing on the part of the Government and not enough sensible regulation and recognition of the important work done by those in the private rented sector.
Kevin Hollinrake
This is the perfect opportunity for me to speak. I draw the House’s attention to my entry in the Register of Members’ Financial Interests, as a result of which I recused myself from the Select Committee’s pre-legislative scrutiny of the Bill. On the face of it, the Bill will cost my business more money than I wish to think about, and it is certainly keeping my finance director awake at night; we are talking about significant sums. Nevertheless, I disagree with my hon. Friend the Member for Christchurch (Sir Christopher Chope), because we do not have a free market here. I think that it is an entirely Conservative policy to make sure that we have free enterprise and a free market.
Tenants choose properties; they do not choose letting agents. Landlords choose letting agents. Despite the cost, we should be standing up for the values of free enterprise. The business I have mentioned, which I am still involved with today, could not have been built without the opportunities provided by free enterprise, so there is no way that I could not support the Bill. I appreciate the amendment tabled by my hon. Friend the Member for Shrewsbury and Atcham (Daniel Kawczynski), but I think that even a cap is the wrong approach. We need to abolish these fees completely, as I have consistently argued to the industry.
I want to make a couple of points about free enterprise and the private rented sector. The shadow Minister, the hon. Member for Great Grimsby (Melanie Onn), said that the private rented sector had increased exponentially over the past few years. When I started 30 years ago in this business, I operated in York, where the lack of supply meant that anyone who wanted to rent a home would probably get a shabby, damp, dark terraced house. It is because of private sector investment that we now have such tremendous supply in this marketplace, generally at fair rents.
I am not sure where the hon. Member for Oxford East (Anneliese Dodds)—she is not in her place—got the figure of an 18% yield from, but that seems incredible. On that basis, there is probably a march of investors heading down the road to Oxford East to buy property. Generally, yields in the sector are very tight—about 4%, not 18%—because of the competitive nature of the market.
I support the Government amendments to ensure that any charges are clearly defined in a tenancy agreement.
Kevin Hollinrake
I am sorry; I cannot, because of the time. Many people have been here for the whole debate and want to speak.
I cannot support amendment 3, because it is restricted to two elements: a lost key, or a late rent payment. Tenants create many other costs for landlords and agents, and it is only fair that landlords and agents should be reimbursed. As an example, one tenant recently rang one of our offices late at night on the out-of-hours phone number and said that they had forgotten where they lived and asked whether we could go and pick them up and take them back home, because they had had a little bit too much to drink. That is not a typical scenario, but there are lots of different situations in which landlords and agents may incur costs. I am thinking particularly about the chasing of rent and a change of sharer, which represent significant costs to landlords. I would support a limited and fair list—and most agents will be fair.
Mr Clive Betts (Sheffield South East) (Lab)
I apologise for not being present at the beginning of the debate; I had a meeting on the private rented sector, believe it or not.
I wish to say briefly that there is agreement in principle across the House on this Bill. It was improved by the consideration of the Housing, Communities and Local Government Committee, and I thank the hon. Member for Harrow East (Bob Blackman) for chairing the meetings in which the Committee looked at the draft Bill. I agree with him strongly that this is an issue of a contract between the landlord and the letting agent. That is the principle and that is why tenants should not be charged the fees. I see that one Government amendment clearly spells out that if a tenant goes to a letting agent and says, “Please find me a property,” that contract would be between the tenant and the letting agent and therefore a different arrangement.
I welcome the amendment that means that an enforcement authority will be able to help a tenant who wants to recover a charge awarded to them by the first-tier tribunal. That is a good amendment and I welcome the Government’s tabling it, but it surely shows the need to move to a housing court system, which the Government have promised.
Rishi Sunak
May I briefly thank all Members from all parties for their contributions today, in Committee and in the Select Committee hearings? All those contributions have helped to get the legislation into the fine shape that we find it in today. I appreciate all the insights from everyone. I welcome the broad support for the Bill. If Government or Opposition Members still want to engage on the details, I am very open to having those conversations.
Let me briefly answer the specific questions asked by the hon. Member for Great Grimsby (Melanie Onn). On timing, I am obviously not in control of the parliamentary timetable, but there will be a short period of time after Royal Assent—perhaps we should call it an implementation period rather than a transition period—after which the Act will come into force. Within 12 months of that point, any existing and legacy contracts will be subject to the Act’s provisions.
On the hon. Lady’s question about right-to-rent checks and incorrect Home Office information, I can confirm that under clause 8(5) the landlord would not be held liable.
Let me try one last time to persuade the hon. Lady not to press to a vote amendment 1, on fines. Perhaps she is not aware that the maximum fine is £1,000 under similar legislation in Scotland and that the maximum fine is just £500 in Wales. The Bill contains an initial fine of £5,000; the hon. Lady’s proposed maximum fine of £30,000 would be 60 times that of her party’s Government in Wales. I am sure she would agree that that sounds slightly disproportionate and that it gives her something to digest.
Finally, I thank my hon. Friend the Member for Shrewsbury and Atcham (Daniel Kawczynski) for his passionate defence of the free market economy in free enterprise and competition, with which I wholeheartedly agree and to which I wholeheartedly subscribe. It has been a pleasure to engage with him on the details of the Bill, and I assure him that as a fellow champion of small business, I continue to ensure that nothing we do will jeopardise the health of that free enterprise economy. I appreciate his advocacy on behalf of small business and look forward to future conversations with him.
Question put and agreed to.
Government amendment 5 agreed to.
Madam Deputy Speaker (Dame Rosie Winterton)
I will now suspend the House for no more than five minutes in order to make a decision about certification. The Division bells will be rung two minutes before the House resumes. Following my certification, the Government will table the appropriate consent motion, copies of which will be available shortly in the Vote Office and will be distributed by Doorkeepers.
Madam Deputy Speaker (Dame Rosie Winterton)
I can now inform the House that I have completed the certification of the Bill, as required by the Standing Order. I have confirmed the view expressed in the provisional certificate published with the selection list. Copies of the final certificate will be made available in the Vote Office and on the parliamentary website. Under Standing Order No. 83M a consent motion is therefore required for the Bill to proceed. Copies of the motion are available in the Vote Office and on the parliamentary website, and have been made available to Members in the Chamber. Does the Minister intend to move the consent motion?
Rishi Sunak
indicated assent.
The House forthwith resolved itself into the Legislative Grand Committee (England) (Standing Order No. 83M(4)).
[Dame Rosie Winterton in the Chair]
David Linden (Glasgow East) (SNP)
I beg to move, That the Committee do sit in private.
The Second Deputy Chairman of Ways and Means (Dame Rosie Winterton)
I regret that I have to inform the hon. Gentleman that I cannot put his motion to the Committee. That is because he is not a member of the Legislative Grand Committee, because he does not represent a qualifying constituency—in this case, a constituency in England. Under Standing Order No. 83W, a Member who is not a member of a Legislative Grand Committee may take part in its deliberations but may not vote, make any motion or move any amendment.
David Linden
Further to that point of order, Madam Deputy Speaker. Thank you for your ruling on that. Can you just clarify for me, as you have done, that because I am a Member from a Scottish constituency I am unable to take part in proceedings of this House, and indeed that that is contrary to what the people of Scotland were told in 2014, when they were told they were an equal part of the United Kingdom?
The Second Deputy Chairman
The hon. Gentleman may take in part in the deliberations but, as I have said, he may not vote, make any motion or move any amendment.
As the knife has fallen, there can be no debate. I call the Minister to move the consent motion.
Motion made, and Question put forthwith (Standing Order No. 83M(5)),
That the Committee consents to the Tenant Fees Bill.—(Rishi Sunak).
Question agreed to.
The occupant of the Chair left the Chair to report the decision of the Committee (Standing Order No. 83M(6)).
The Deputy Speaker resumed the Chair; decision reported.
Third Reading
Queen’s consent signified.
The Secretary of State for Housing, Communities and Local Government (James Brokenshire)
I beg to move, That the Bill be now read the Third time.
I thank Members on both sides of the House for their passionate and constructive contributions to the Bill’s passage through the House. We all agree that the Bill’s aim of making renting fairer, more transparent and more affordable for tenants is important. As such, it is a key part of the Government’s housing agenda. More people are renting, and they deserve help now, which is what the Bill is all about. We want to ensure that everyone, regardless of whether they own their home or rent, or whether they are in the social or private sector, has the security and dignity they need to build a better life.
The feedback and evidence we received recognised the challenges that tenants in the private sector face, especially regarding unfair fees and the need to rebalance the relationship between tenants, landlords and agents. Having listened, we introduced amendments on Report to ensure that the Bill better delivers on our commitment to create a system that works for everyone. I thank all those who have engaged with the process, from our initial consultation through to pre-legislative scrutiny and since the Bill’s introduction to the House. That includes members of the Housing, Communities and Local Government Committee, with their invaluable pre-legislative scrutiny of the Bill; those who provided written and oral evidence to the Committee; and the organisations that have engaged so constructively with my officials in drafting guidance for the Bill.
Mr Betts
I thank the Secretary of State for his kind words about the Select Committee. Does he think that there is a wider lesson to be learned—that it would be helpful if the Government more generally provided draft legislation for Select Committees to consider, rather than simply coming to the House with proposals that they have already determined without any consideration in Select Committee?
James Brokenshire
I recognise the important contribution that Select Committees, and Joint Committees of both Houses, make to pre-legislative scrutiny of draft Bills, and we can point to a number of examples. As I am sure the hon. Gentleman will appreciate, at other times the Government need to act quickly. The Bill has been a good example of the balance needed between ensuring consultation and engagement.
I also wish to pay special tribute to the Under-Secretary of State, my hon. Friend the Member for South Derbyshire (Mrs Wheeler), for all her efforts to develop the Bill and ensure its successful introduction. We all send her our heartfelt best wishes.
I also wish to thank the Under-Secretary of State, my hon. Friend the Member for Richmond (Yorks) (Rishi Sunak), who has been instrumental in leading the Bill through the Commons and has been careful and conscientious in listening to the views of Members on both sides of the House.
We can all agree that the Bill has benefited from everyone’s input and, as a result, will be more effective in delivering on its promise to protect tenants from unfair charges. As we have heard, those charges can impose a significant burden on tenants, who often have little choice but to pay excessive and unjustified fees time and again for each property let or even just to renew an existing agreement. The Bill will put a stop to such unacceptable practices by banning unfair and hidden charges, making it easier for tenants to find a property at a price they are willing to pay and saving renters an estimated £240 million within the first year alone. The Bill will also help to introduce a level playing field for landlords and agents by protecting reputable players in the market from having their reputations tarnished by rogues.
I know that the changes have raised concerns in some parts of the letting market, but agents who offer good value and high quality services to landlords will continue to be in demand and play an important role in the sector. In addition, the Bill introduces a cap on tenancy deposits of six weeks’ rent, and we are not stopping there. We want to ensure improvements to how deposits are protected in the interests of both tenants and landlords, to reduce up-front costs to tenants. That is why we recently established a working group to look at the merits of innovative approaches to tenancy deposits, such as deposit passporting.
I am confident that the measures in the Bill will help to deliver the fairer, clearer and more affordable private rented sector that we all want to see—for tenants, yes, but also for decent, professional landlords and agents who are providing a vital service. I am happy to commend the Bill to the House.
Melanie Onn
I thank the Secretary of State for his words and my colleagues who have taken part in the debates and assisted in Committee. The conversations that we have had have been very helpful, and were certainly heard to some degree by the Minister, and I thank him for that. I am pleased that the Bill is leaving the House in a better state than when it was introduced, after pressure from Labour to improve specific elements of it. But there is still more that the Bill needs to include to stop this being a missed opportunity for 4.7 million tenants in England. Those tenants often end up in the private rented sector not by choice but because of the lack of social housing, especially in high-demand areas.
The Government need to consider further the impact of their policy, which allows default fees to continue to be open to abuse. More than half of tenants do not see their tenancy agreement before putting money down for a tenancy. Much emphasis is still placed on the ability of a tenancy agreement to signify a mutually understood and fair relationship, but that is very often not the reality for tenants. The Bill continues to place reliance on guidance, so much so that the Chair of the Delegated Powers and Regulatory Reform Committee, Lord Blencathra, has said that, since the guidance will play such an important part in the functioning of this Bill, it should be subject to parliamentary scrutiny, but we are yet to see even a hint of a first draft. I hope that the Government reconsider the current provision regarding default fees and bring in regulations to tie down tenants’ rights. If they remain steadfast against that idea, will they at least follow the advice of Lord Blencathra?
Members on both sides of the House have raised continuing issues regarding deposits and enforcement. However, Labour fundamentally supports the Bill because it will tackle many of the unfair fees that tenants face when they rent a property, and will help to build a more professional, transparent and fairer private rented sector across England. I am pleased that years of Labour pressure have finally twisted the Government’s arm on this issue and brought forward a Bill that starts to do genuine good for tenants. But the battle to create a private rented sector that works for the 4.7 million renters in this country is far from complete.
The most recent English housing survey made for hard reading for many of England’s private renters. The rental marker is affecting more and more people from a wider variety of groups. The proportion of families in our rental market is going up, with 20% more families in the private rental sector since 2010. More and more children—not just young adults and students—are growing up in rental accommodation. Although the short-term nature of rental accommodation offers flexibility for some, it can have a devastating effect on others. Families in rental accommodation are nine times more likely to move than those who own a house, incurring repeated deposits and fees. Despite today’s efforts, rental regulation in this country still leaves a lot to be desired, and tenants need far more long-term security when they rent a house.
We had hoped that this Bill would be broadened to make longer tenancies a reality, and to ensure that families do not face yearly moves and get hit with repeat fees and costs. However, despite the Prime Minister’s protests at Prime Minister’s questions today, there were reports last night that suggested that the Government are afraid to take that measure to further help millions of renters around the country.
As this Bill moves to the other place, there remain issues that could be explored further to improve rights and access to rights for renters, and to ensure that suitable deterrents and enforcement are in place to improve the private rental sector in the UK. I trust that genuine issues raised by Members today will be given closer consideration to reflect the hopes of those in the private rented sector.
Wera Hobhouse (Bath) (LD)
May I first draw the attention of the House to my entry in the Register of Members’ Financial Interests?
One of the many effects of the housing crisis is the sheer amount of people now forced into the private rented sector. It is for this reason that I am adamant that we must improve conditions for renters. The Liberal Democrats have fought long for renters’ rights, so I welcome and support this Bill. It is vital that we in Westminster ensure that tenants’ fees are abolished because of the transient nature of the private rented sector, particularly for young people. However, the housing crisis has also pushed many families into renting and, as we heard earlier, the leading cause of homelessness is the ending of a private rented sector tenancy.
While rental costs continue to spiral, people are becoming trapped. They cannot afford their rent, but nor can they afford to move because of the myriad administrative fees. We must ensure that the Bill fully ends the practice of tenants’ fees. However, as the Bill is currently drafted, there are still loopholes around default fees. The Secretary of State’s amendments go some way towards closing the gap, and ensuring that letting agents and landlords do not introduce new fees under a different name. However, the text of the Bill is still too ambiguous, leaving what constitutes a reasonable cost to the discretion of landlords or letting agents. We must also provide local authorities with appropriate funding to enforce the ban. If local authorities have no resources to enforce it, landlords and letting agents will just continue with this unreasonable practice.
I urge the Secretary of State to listen to the concerns raised today. Otherwise he will undermine legislation that could really make a difference to people’s lives. There is little merit in introducing legislation with obvious loopholes that allow individuals to continue with a practice that we want to stop. There is also very little merit in introducing legislation that we cannot enforce due to the lack of resources.
We currently have about 5 million households in the private rented sector. Today we are beginning to tackle letting fees, but there must be more wholesale reform of the private rented sector. For example, my Liberal Democrat colleagues and I believe that there must be compulsory registration of landlords, that there must be public access to the Government’s database of rogue landlords, and that those landlords should not be able to obtain a licence for houses in multiple occupation.
This Bill is, in good measure, the result of the hard work put in by my Liberal Democrat colleagues in the other place. I look forward to further improvements as the Bill progresses.
Mr Betts
It is good to be here today supporting a Bill that has secured general agreement across the House and is a positive move to help tenants in particular circumstances. I hope that, as the Secretary of State said, the work of the Select Committee has assisted in that process. As I said, I think it would be better if more Bills went through such a process on a regular basis. It is good that the Government have been listening to the Select Committee and have reflected that in their amendments.
However, the Bill raises a number of issues about the need for wider reform in the private rented sector. While we were pleased with the Government’s response to this Bill, we are probably less pleased by their response to our report on the private rented sector in general, where we think they still have a way to go in delivering real change. We will be pushing them on that.
One of the issues across the sphere of issues in the private rented sector is housing courts. That issue applies to this Bill, as I said in the debate on the amendments. If we are properly to deal with the issue of enforcement and a place to go—not merely for tenants but for landlords—to sort out disputes in an easy way that all sides can afford, we need to reform the way in which that can be done through a new system of housing courts. The Select Committee is certainly going to press on that. I hope that the Government will be responsive. They have indicated their desire to do something in that regard, but we have not yet seen what they intend.
The Secretary of State rightly said that the Minister has been particularly assiduous in listening and responding to the Select Committee’s concerns, but the Bill began under the remit of the Under-Secretary of State, the hon. Member for South Derbyshire (Mrs Wheeler). I would like to put it on record that Labour Members recognise that the hon. Lady has been through an incredibly difficult personal time in the past few months. We offer her our best wishes and sympathy and say how good it is to see her back in her place in this House today.
Question put and agreed to.
Bill accordingly read the Third time and passed.
Voyeurism (Offences) (No. 2) Bill (Business of the house)
Ordered,
That, at this day’s sitting, the following provisions shall apply to proceedings on the Voyeurism (Offences) (No. 2) Bill:
Timetable
(1) (a) Proceedings on Consideration and proceedings up to Third Reading shall (so far as not previously concluded) be brought to a conclusion two hours after commencement of proceedings on the Motion for this Order.
(b) Proceedings on Third Reading shall (so far as not previously concluded) be brought to a conclusion three hours after the commencement of proceedings on the Motion for this Order.
Timing of proceedings and Questions to be put
(2) If, following proceedings on Consideration of the Bill, a Legislative Grand Committee withholds consent to the Bill or any Clause or Schedule of the Bill or any amendment made to the Bill, the House shall proceed to Reconsideration of the Bill without any Question being put.
(3) If, following Reconsideration of the Bill—
(a) a Legislative Grand Committee withholds consent to any Clause or Schedule of the Bill or any amendment made to the Bill (but does not withhold consent to the whole Bill),
(b) the Bill is amended to remove any provisions which are not agreed to by the House and the Legislative Grand Committee, and
(c) a Minister of the Crown indicates his or her intention to move a minor or technical amendment to the Bill as so amended, the House shall proceed to consequential Consideration of the Bill without any Question being put.
(4) For the purpose of bringing any proceedings to a conclusion in accordance with paragraph (1), the Speaker or Chairman shall forthwith put the following Questions (but no others) in the same order as they would fall to be put if this Order did not apply—
(a) any Question already proposed from the Chair;
(b) any Question necessary to bring to a decision a Question so proposed;
(c) any Question on any amendment, new Clause or new Schedule selected by the Speaker or Chairman for separate decision;
(d) the Question on any amendment moved or Motion made by a Minister of the Crown;
(e) any other Question necessary for the disposal of the business to be concluded.
(5) On a Motion so made for a new Clause or a new Schedule, the Speaker or Chairman shall put only the Question that the Clause or Schedule be added to the Bill.
(6) If two or more Questions would fall to be put under paragraph (4)(d) on successive amendments moved or Motions made by a Minister of the Crown, the Speaker or Chairman shall instead put a single Question in relation to those amendments or Motions.
(7) If two or more Questions would fall to be put under paragraph (4)(e) in relation to successive provisions of the Bill, the Speaker or Chairman shall instead put a single Question in relation to those provisions, except that the Question shall be put separately on any Clause of or Schedule to the Bill which a Minister of the Crown has signified an intention to leave out.
Miscellaneous
(8) Standing Order No. 15(1) (Exempted business) shall apply so far as necessary for the purposes of this Order.—(Lucy Frazer.)
Voyeurism (Offences) (No. 2) Bill
Wednesday 5th September 2018
(6 years, 3 months ago)
Commons ChamberRead Full debate Voyeurism (Offences) Act 2019 View all Voyeurism (Offences) Act 2019 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Consideration of Bill Amendments as at 5 September 2018 - (5 Sep 2018)
Stella Creasy (Walthamstow) (Lab/Co-op)
I beg to move, That the clause be read a Second time.
Mr Deputy Speaker (Sir Lindsay Hoyle)
With this it will be convenient to discuss the following:
Amendment 1, in clause 1, page 1, line 9, leave out
“for a purpose mentioned in subsection (3))”.
Amendment 2, page 2, line 1, leave out paragraph (c).
Amendment 3, page 2, line 6, leave out subsection (3).
As drafted the Bill potentially does not outlaw “upskirting” in certain cases such as for purely financial motives; or where the motivation is “group bonding” where the identity of the victim is irrelevant. This amendment makes all “upskirting” an offence.
Amendment 5, page 2, line 8, at end insert—
“(3A) It is an offence for a person (A) to disclose an image of another person (B) recorded during the commission of an offence under subsection (2) if the disclosure is made without B’s consent.
(3B) It is a defence for a person (A) charged with an offence under subsection (3A) to prove—
(a) that disclosure of the image was necessary for the purposes of preventing or detecting crime, or
(b) that A did not disclose the image with the intent of disclosing an image of another person’s genitals, buttocks or underwear.”
As the Bill is currently drafted it would be an offence to take an upskirting picture but not necessarily an offence for it to be distributed (existing “intimate image” legislation does not outlaw the distribution in all cases). This amendment makes it an offence to distribute non-consensual “upskirting” images.
Amendment 7, page 2, line 13, at end insert—
“(4A) Where a court is considering for the purposes of sentencing the seriousness of an offence under this section, and either or both of the facts in subsection (4B) are true, the court—
(a) must treat any fact mentioned in subsection (4B) as an aggravating factor (that is to say, a factor that increases the seriousness of an offence), and
(b) must state in open court that the offence is so aggravated.
(4B) The facts referred to in subsection (4A) are that—
(a) at the time of committing the offence, or immediately before or after doing so, the offender demonstrated towards the victim of the offence hostility based on the victim having (or being presumed to have) a particular sex characteristic, or
(b) the offence was motivated (wholly or partly) by hostility towards persons of who share a particular sex characteristic, based on them sharing that characteristic.
(4C) For the purposes of subsection (4B), “sex characteristic” means the protected characteristic of sex in section 11 of the Equality Act 2010.
(4D) The Secretary of State shall, within twelve months of Royal Assent being given to this Act, request that the Law Commission review the provisions of subsections (4A) to (4C).”
This amendment ensures that if the crime is motivated by misogyny then that will be considered by a court as an aggravating factor when considering the seriousness of the crime for the purposes of sentencing.
Amendment 4, page 2, line 27, leave out
“mentioned in section 67A(3)(a) (sexual gratification)” and insert “of obtaining sexual gratification”.
Amendment 6, page 2, line 29, leave out from “the” to end of line 40 and insert
“offender was aged 18 years or older at the time of the offence”.
This amendment makes the offence notifiable in all cases when the offence is committed by a person aged 18 or over and for sexual gratification.
Stella Creasy
I want to put on record my tremendous respect for the very hard work done by Gina Martin to get this legislation before Parliament and by the hon. Member for Bath (Wera Hobhouse). It is a testament to the power of a good argument whose time has come. All these women are right that we should not wait around for this legislation, but we should make sure that it works.
I also want to put on record my support for the work that the right hon. Member for Basingstoke (Mrs Miller) has done, and for her amendments and the case she is making. I will be voting for the Bill and supporting it wholeheartedly, but I will also be supporting all efforts to improve it, because I do not believe that those two things are incompatible. We should never let the perfect be the enemy of the good. We should recognise that legislation with holes in it will inevitably return to us. It is in that spirit that I have tabled my new clause and amendment, which are about the context in which this crime takes place, and I am proud to see the support for them from across the House.
Let me be very clear that treating misogyny as something we should tackle is not about flirting. It is not about banter. It is not about telling all men that they are rapists. It is not even about new crimes. We cannot apply a hate crime tariff to something that is not already a hate crime. It is about something that has become so widespread that we treat it as a fact of life—but only for 51% of our population.
Across the UK, a huge majority—85%—of young women and nearly half of all women report experiencing sexual harassment in public places. Only one in 10 of them have ever reported receiving help after such incidents. Without recognising the role of misogyny in the day-to-day experiences of women in our society, our legal and criminal justice system masks the true extent of the hostility that exists against gender. This is not about criminalising wolf-whistling or flirting. It is about recognising existing crimes that are motivated by hostility towards somebody because of their gender, as well as recognising what they are—hate crimes.
Although women have protection in their workplaces under equality legislation, as soon as they step out of the door on to our streets, they are not protected. If somebody targets people on the basis of their faith or religion, they can receive a tougher sentence for their behaviour under the Criminal Justice Act 2003. Somebody who repeatedly targets women in the same way faces no such comparable sanction.
I hope that we all agree that our young women deserve better. It is particularly our young women who are reporting this as part and parcel of everyday life. One thousand women aged 14 to 21 were asked by Plan International about their experiences in public settings, whether on transport, walking on the street, just going to school or even going to work, with 66% saying they experienced unwanted sexual attention or sexual or physical contact in a public place. Some 40% said that they experienced verbal harassment and 15% said they had been touched, groped or grabbed at least once a month.
What does that mean in practice? It means the experiences of my own constituents, whom I asked about this issue. One woman was followed down the road by a man in a car demanding that she get in. She was then told that he was pranking her when she complained and called a racist for refusing to go with him. A mother wrote to me about her young daughter. Only last week, somebody had come up to her in a tube station, put his face right up in hers and shouted, “Sexy bitch, ” very aggressively. She had been sitting on a bus as men played videos of men masturbating, showing the phones to her to make sure she had seen them. As the mother said:
“This is not about trying to chat someone up—it’s a power play, exerting control and making women feel frightened and unsafe in their own streets.”
Girls and women are nervous about retaliation and worried about what might happen if they fight back. Women say that it is not about whether they are attractive, because violence is never far behind if they reject these advances.
This is about what makes a hate crime. It is not pleasant and funny; it is a way of keeping women and girls feeling on edge all the time and unable to move freely in their own areas. As the mother said, her children walk around “heads down, headphones in”, tensely and purposely avoiding eye contact or hassle from men. That is harassment—it is legally harassment. The women have said no, yet these men still persist. All of us worry what a man who behaves like that might go on to do if his behaviour is not addressed.
It is really important for us to be very clear that we are not talking about all men. Most men in this country do not behave like that towards women, and would be horrified to see that kind of behaviour happening to their mothers, daughters, wives, sisters or friends. In proposing my amendments, I want to defend the reputation of the men of this country. This is not about their behaviour; it is about some men’s behaviour—enough men’s behaviour to make women’s lives difficult, and enough men’s behaviour to mean that women experience hatred.
Anna Soubry (Broxtowe) (Con)
I am listening with great care, as ever, to the case that the hon. Lady is making, and I have some sympathy with it. My problem—will she help me with this?—is that I will be really troubled if we see all this offending as offences of hate against women, because much of it is genuinely in the category of sexual offending, which is often a deeper problem that must absolutely be stopped, prosecuted and so on, and sometimes it is harassment. I do not support the hon. Lady’s amendments; I think that we need to know more about this. Although my own view is that this absolutely needs to go to the Law Commission, I do not care where it goes, but it needs proper and full exploration so that we get this right. I am sure that she is right that some of the behaviour is misogynistic, but not all of it is.
Stella Creasy
As ever, I agree with much of what the right hon. Lady says. I think we need to say that the bigger thing she is talking about is misogyny. There are men out there who are hostile towards women and act accordingly. As a result, 51% of our population experiences harassment and a particular type of crime. At the moment, we cannot name, recognise and differentiate it, and therefore say, as we do with racially or religiously targeted hatred, that there is a premium on it. That is what the amendments would achieve.
This is also about what drives police behaviour, because if something is a crime, the evidence about it of course needs to be gathered. I have to admit to my honest frustration, as the first female MP for Walthamstow, where a number of people have tried to report their experience. Let me give the Minister some examples of the things we are talking about—the responses the women I have mentioned got back when they reported these crimes. In particular, in response to the woman followed down the street by a man demanding that she get into his car and threatening her with his behaviour when she tried to say no, the police said that the
“behaviour is only threatening, abusive, or insulting if the person…intended it to be so, or if he was aware…that it was so. The comments about his believing it to be a prank and being blown out of proportion would make that difficult to achieve.”
Let us think about that for a moment: the experience of the victim of this behaviour—their fear, their terror—means nothing because the man just said, “I was kidding”. We would not allow that for any other form of crime, so why do we allow it when it comes to men who harass women?
Stella Creasy
I will happily give way to my colleague from the Bill Committee.
Alex Chalk
As always, the hon. Lady makes a powerful point, but just because a defendant or suspect alleges that that was in their mind and therefore has a defence, it does not mean a tribunal of fact—magistrates or a jury—will believe it. Very often they say, “What a load of old nonsense. We’re going to convict you.” Does she agree?
Stella Creasy
I hesitate to say that the hon. Gentleman was not listening to what I said, but this was what the police said. Such a case will never get to a point at which a jury or somebody looks at the evidence base because we do not have a commitment to recording and recognising misogyny. Such a commitment would mean that the police would record and recognise it in the same way as racial or religious hatred. Before this case got to the test that the hon. Gentleman is setting, the police said that they would not investigate it further. The challenge facing women across this country is that we do not take this seriously: 66% of women have changed their behaviour to try to avoid street harassment as the police are not taking it seriously.
Liz Saville Roberts (Dwyfor Meirionnydd) (PC)
I am sure that the hon. Lady shares my concern that many crimes with a gendered aspect have rates of reporting and of final prosecution that are so low. We need to look at all the reasons for that.
Stella Creasy
I completely agree. This is the point about changing the mindset. Let me reassure the hon. Member for Cheltenham (Alex Chalk) that where police forces, particularly in Nottingham, have started to record misogyny as a hate crime—this is not a new idea—it is transforming the experience of women not just when it comes to street harassment, but when it comes to violence against women in total.
Stella Creasy
I will happily give way to a Nottingham MP and then to the right hon. Gentleman, but then I really must make some progress, because I am conscious that other Members want to speak.
Anna Soubry
I rise purely to put on record that that has been done by Nottinghamshire police. I think it is the first force to do so, and we believe that the evidence is showing that it is having exactly the right effect on the police, in that they are taking this seriously and seeing it as an offence.
Stella Creasy
I desperately apologise to the people of Nottinghamshire for forgetting the “Shire”—I am not a fan of “The Lord of the Rings”. I hope the right hon. Lady will forgive me.
Sir Mike Penning
As a former Minister for Policing and Criminal Justice, I stress that just because the police were not willing to take the matter forward does not mean that an offence has not taken place. This will be driven forward by guidance to the police, particularly from the College of Policing, and by the evidence about what is happening in Nottinghamshire. The offence is there, whether or not we change the wording of the Bill today. Trying to force someone into a car is an offence, and the police should take it seriously.
Stella Creasy
I understand the point that my colleague is making, but women in this country have suffered from this chicken-and-egg syndrome for too long. The idea is that because the offence exists, somehow it will be taken seriously, but the bitter reality of women’s experience shows that that is not the case. New clause 1 is designed to amend the guidance that is given to the police in recognition of that fact. The existence of specific offences has driven change, as amendment 7 is designed to do. I do not disagree with my colleague, but unless we get the proposed measure in the legislation, the way in which the police deal with the problem will not change quickly enough to give the women of today the freedom to walk on the streets, as he does, without being frightened.
Sarah Champion (Rotherham) (Lab)
My hon. Friend will know that one reason why hate crime legislation is so powerful is that the emphasis is on the victim and how they perceive the crime. If misogyny was a hate crime, the police response to the examples that my hon. Friend has given would automatically not be permissible. Power is shifted to the victim.
Stella Creasy
As ever, my hon. Friend is on the money about the importance of a victim-centred approach. We know from Nottingham—[Interruption.] I do apologise; I meant Nottinghamshire—sorry, Frodo. We know from those examples that recognition of the multiple kinds of intersectional hostility that women may face has been a powerfully positive experience, particularly for women from black and ethnic minority backgrounds.
Internationally, this is not a new idea. Spain, Croatia, Sweden, Estonia, Italy, Belgium and France all recognise gender and misogyny as a basis for hate crime. We are talking about replicating our current model for racial and religious hatred, and saying that we should be able to recognise similar hostility in the sentencing of particular crimes. We should be able to recognise the hate as it is.
There is already a framework that Ministers can use. The Crown Prosecution Service and the police already define cases involving hostility as
“any…offence that is perceived by the victim or any other person to be motivated by hostility or prejudice.”
The CPS does not have a legal definition of hostility; it uses the everyday understanding of the word. We all understand and recognise misogyny when we talk about ill will, spite, contempt, prejudice, unfriendliness, antagonism, resentment and dislike. We seek to echo existing protections and to put the protections that we offer someone for their religious or ethnic background in a position of parity with those that we offer them for their sex background.
I accept that amendment 7 is not a perfect amendment because it covers only upskirting, but upskirting is a classic example of an offence that happens within the context of misogyny. It is motivated by misogyny.
Stella Creasy
I will happily give way to the hon. Gentleman because I know he feels very strongly about this.
Alex Chalk
The hon. Lady is making a powerful point, but she has identified something that she is right to concede is a weakness. It would be very odd, would it not, if misogyny could be applied to the offence of upskirting but not to rape, sexual assault or revenge porn. Does she therefore agree that a solution might be to get the Law Commission to look at the matter in a more holistic way?
Stella Creasy
It is almost as though the hon. Gentleman read my mind—he is right. The data shows us that 15% of young girls say that they are being groped, and there might be somebody behind that and we want to record where it is happening. Clearly, this is not just about how people use mobile phones in the modern world. It is about the hatred towards women that exists among a small group of men in our society, and the damage that that is doing to our society as a whole.
I have said clearly that we would not press the amendments if we could have a meaningful and properly funded Law Commission review into all hate crime, including misogyny, looking at both existing and new legislation. I do not think that that is a lot to ask. I know that the Law Commission is open to looking at the matter and that it recognises the importance of new legislation. We required new legislation to extend such protections to disability and transgender identity.
Victoria Prentis (Banbury) (Con)
In the interim, while we wait for a wider review of the law on hate crime generally, would it be helpful for police guidance to reflect the points that the hon. Lady is quite rightly raising, in the way that it does on sexting, for example?
Stella Creasy
Absolutely. I would love it if all police forces, including the Metropolitan police—I know that the Mayor of London is looking into this issue—could learn from Nottinghamshire police and the other four forces that are acting, but I also recognise that the police are asking Parliament to offer guidance on these issues, and that is what we can do today. If we change the law and offer women new protections from hatred, we will send a clear message to women that they can report these crimes, and a clear message to the police that they should not only record them, but do something about them.
I am pleased that the Law Commission is open to reviewing this issue, and I am pleased to hear from those who work with people who deal with hate crime on a daily basis. The proposal in the new clause has the support of Refuge; the Southall Black Sisters; Stonewall; Citizens UK, which has been doing fantastic work campaigning on this issue in Nottinghamshire; the Fawcett Society; Tell MAMA; Dimensions, which works with people with disabilities; Solace Women’s Aid; and Respond, which works with children and adults with learning disabilities. There is a whole panoply of people who recognise that hate is holding our society back and that it is right that we make sure that that does not happen.
Right now, we say that if a woman is targeted in her workplace, we know who is wrong, but as soon as she steps outside, we do not know what happens. New clause 1 is about that gap in our legislation.
I know that some people—not just on Twitter—are going to ask about men. The “What about the men?”—the misandry point. The Law Commission review could look into all that, but let us be clear that it is not men who are trying to report this crime on a regular basis. It is not men who are experiencing this regularly. It is not men who are being targeted in this way. It is not men who we say are worthy of protection at work, but not if they dare to go out at night. Let us engage in all the whataboutery that we want to, but do not tell me that women’s experiences do not matter. When people argue against these proposals, they are saying that, on that basis, the existing protected characteristics are not that important—that there is a limit to how far they want equality to go.
I have had that in some of the comments I have received about this issue. A gentleman wrote to me today to say:
“Obviously this is a law to prevent perverts’ fantasies. Yet as a society why is it we have allowed women and even our daughters and granddaughters to dress even more suggestively than was the case generations ago that must be giving rise to fantasies…out there?”
Under your eye, Sir, if you have been watching. May you be blessed.
Another man wrote to me to say that I am abusing my position
“to push for Misandry to be juxtaposed with her Misogyny.”
and to
“target the bloke-hating females of the species”
because I am a
“a nasty feminist ‘I’m Offended’ snowflake whinger hell bent on emasculating male society.”
The vast majority of men in this Chamber and in our society do not want to be associated with that bile, but they do want to make sure that people are safe, and that is what this is really all about. It is not about flirting or banter. I have yet to meet a couple who have said that they met because he followed her down the street demanding that she get in the car with him. It is about how we make this a country where everybody is free.
I am really done with all the whataboutery and all the opposition to this. It is not really a lot to ask for, is it? We would like to be able to walk around this country free from fear. We would like those who target women in a hostile way to be held to account. We would like the harassment to stop.
I am fed up with being told that there have been private briefings saying that somehow this issue is too controversial—too difficult—and that we are going to delay legislation. This is 2018. This is not Gilead. It is not about all men, but it is about some men. There is only one person who can stop this legislation, and that is the gentleman sitting opposite—the Secretary of State—but I know that he does not want to do that. I know that he can hear a reasonable request to review all hate crime, and to look at new and existing legislation to get it right for the 21st century so that we can protect everyone from being targeted just for being who they are. I will tell him, though, that we will not keep waiting. We will not keep being frightened. We will not keep being hassled for going about our daily lives. Please, do not tell women to put up with this because you find it difficult. Let us get on and make 21st century laws to stop it.
Mrs Maria Miller (Basingstoke) (Con)
My hon. Friend the Member for Christchurch (Sir Christopher Chope) was right. In objecting, he has given Parliament the proper opportunity to scrutinise the Bill. If he had not objected, the Bill would have gone through on the nod and the amendments we are debating today would not have been possible. The failings of the private Members’ Bill procedures are not for discussion on Report. No one, least of all me, is denying the need to address swiftly the wrongdoing of upskirting, but that should not be at the expense of proper scrutiny. We have to wake up to the need to jettison antiquated, opaque procedures in this place, procedures that in this instance I believe have left a respected and longstanding hon. Member, my friend and fellow Wessex Member of Parliament, open to hostile attack for acting to ensure that this new law is subject to appropriate levels of scrutiny.
As we have just heard from the hon. Member for Walthamstow (Stella Creasy), the issues we are discussing today on upskirting are a part of far broader issues to do with image-based abuse and sexual harassment in public places. It is right that we address upskirting, but it is also right that we reject the piecemeal approach for dealing with these issues. The Women and Equalities Committee is looking at the issue of sexual harassment in public places. The hon. Member for Rotherham (Sarah Champion) is in her place. We have taken copious amounts of evidence on this issue and we will be issuing a report in autumn dealing with many of the issues that the hon. Member for Walthamstow has raised today. The Government need a cohesive strategy in this area. I believe this piecemeal approach is not the right way forward. Indeed, if we had a cohesive strategy, we would not need this Bill.
In wanting to move so swiftly to change the law, the Government are right to use the existing Scottish legislation as its base. However, the Scottish Act was passed eight years ago, and in that time the Scottish Government have themselves recognised significant shortcomings in their own law and made changes, changes that are not reflected in the Bill before us today. The amendments tabled in my name and in the names of right hon. and hon. Members from across the Conservative party, the Liberal party, Plaid Cymru, the Scottish National party and Labour seek to rectify those shortcomings and tackle the emerging problems that we are seeing with the Scottish legislation: very, very low levels of prosecutions and convictions, with legislation that has now been in place for eight years.
Amendment 3 makes all upskirting a crime. At the moment, the Bill is very narrowly defined. There should never be an instance when it is acceptable to take a photo up anyone’s skirt without their consent. The issue should be the lack of consent, not the motivation of the perpetrator. The perpetrator’s intentions can be difficult for the police to prove. Is it to humiliate? Is it to alarm? Is it to distress the victim? They may never know or care who the victim is. The picture may be shared for a laugh, or taken and sold and then sold on again. How do the police track the buyers and sellers of these photographs? The Bill explicitly does not outlaw upskirting per se; it outlaws it in certain circumstances.
Sir Mike Penning
I completely agree with my right hon. Friend’s vitally important amendments. Looking at the evidence of what happened in Scotland, we see that the very low number of prosecutions—as low as three, I think—was partly because the intent of the upskirting could not be proved. Instead of the offence just being, “This is wrong, let’s prosecute”, the intent had to be proven. That was the problem with the Scottish legislation and why the number of prosecutions was so low. My right hon. Friend’s amendments will address that issue. If they are not accepted today, I hope this issue can be addressed in the other place once the Select Committee’s report comes out.
Mrs Miller
We have to make the law work in practice, as well as on paper. Like my right hon. Friend, I believe that because these things have been made so complex, the police are finding them difficult to implement. I am not sure that we have an investigation into that. The Minister may want to talk to us further about what she has found out from her Scottish colleagues, because I think they are looking at it in a lot of detail.
Sir Christopher Chope (Christchurch) (Con)
I am most grateful to my right hon. Friend, particularly for the generous comments with which she began her remarks.
As a consequence of this being a Government Bill rather than a private Member’s Bill, my right hon. Friend will have seen its financial implications. The financial implications set out in the explanatory notes are on the basis that there will be 29 prosecutions a year—that is all. Is she surprised at all the hoo-hah about this, and that the Government are expecting only 29 prosecutions a year?
Mrs Miller
My hon. Friend will hear my thoughts on that in a few moments when I talk about my experience of estimates of the levels of revenge pornography, which were equally low. In practice, there has been much more of it. I therefore wonder how accurate the projections are.
My concern is that drawing the Bill in this way will artificially depress the number of people who come forward. The courts might think that Parliament, in its specific omission of certain groups of people who perpetrate this crime—we know they are doing it already—is artificially narrowing the number of convictions that are brought forward. I do not think that is how Parliament wants the Bill to work. Amendment 3 would make sure that it worked far more broadly and called to account all the people who are committing this crime, not just a very small section of them.
The Minister was at pains in Committee to underline that the two purposes are based “word for word”, as she said, on the Scottish Act. As we have heard, only a handful of cases have been brought under that legislation—just three a year over the past eight years. That is an extraordinarily low level in the context of the statistics that the hon. Member for Walthamstow went through. Research tells us that about one in 10 young people in this country experiences upskirting. That would mean a far higher rate than just three in Scotland or just under 30 in the UK. We need to hear from the Minister what information she has received from Scotland on why there is such a low level of conviction, and what will be done to change that.
I was interested to read the evidence of Alison Saunders of the Crown Prosecution Service. While it said that the motivations in the Bill covered the overwhelming majority of cases, it admitted that:
“It is not inconceivable that suspects will advance the defence that…they had another purpose, such as ‘high jinks’.”
That is a direct quote from her. How confident is the Minister that the CPS has a true grasp of the nature of this offence, given the data we have that implies that there are far more than just a handful of cases every year? As I said, I recall being told that there were just a handful of cases of revenge pornography—fewer than 10 every year—by the same Crown Prosecution Service. With the right legislation, which was put in place by the coalition Government, we now see more than 500 convictions a year for revenge pornography.
Adopting the Scottish model might artificially limit the number of cases that are brought forward. What will the Government do to address that? Will the Minister undertake to have a review of the way the law is working in practice, so that we are not simply having a nice debate today that has very little impact on the lived reality of people who experience this appalling invasion of their privacy and this virtual sexual assault?
Rather than requiring the police to tease out the motivation of an offender and to prove that a victim was humiliated, alarmed or distressed, amendment 3 would make upskirting of any kind a crime. It would have absolutely no impact on the ability of a court to identify the most dangerous offenders and place them on the sex offenders register. Nor would it increase the number of people who are drawn into that.
Amendment 5 directly tackles the other shortcoming in the Scottish Act by making it an offence to distribute upskirting images. Given the Government’s stated objective of copying the Scottish Act word for word, it is unclear why they have chosen to omit the pivotal amendment made to the Scottish Act in 2016 outlawing the distribution, particularly online, of upskirting images. Our existing laws on this issue are patchy at best. I am aware of the Law Commission’s long overdue inquiry into laws in the online world, but to present the Bill with an essential element missing appears to me to be at best an oversight. Will the Minister explain why she felt she should omit this element of the Bill, when it was deemed an essential change required in Scotland?
We need a broader review of the law on image distribution—I have felt that strongly since I was first approached by a constituent about revenge pornography—and I am delighted that the Law Commission is now doing work in that area, but it will take a number of years to complete. In the meantime, outlawing distribution in this Bill specifically would be a stopgap solution, with the Scottish experience as a clear legal rationale. Will the Minister speak to her Scottish counterpart to understand why the amendment was made in Scotland and perhaps even revisit this in the Lords? I am sure their lordships will also be keen to take an interest in this aspect of the Bill.
There was much talk in Committee about not wanting to unintentionally criminalise people, particularly young people, and that is absolutely right—there can be few people who see that as helpful—but rather than dwelling on the perpetrators, we also need to think about the victims and the huge damage being done, particularly to young women, who are on the receiving end of this type of sexualised assault. What message is Parliament sending to young men who are taking pictures up the skirts of their school mates for a laugh if this place excludes that from the law? What are we saying to those young women about the value we put on their right to be protected in law if we see this sort of non-consensual virtual sexual assault as a price worth paying?
I commend the hon. Member for Walthamstow for raising the issue of misogynistic hate crime. It is under active consideration by the Women and Equalities Select Committee in its current inquiry, and I would not want to prejudge that inquiry, but I will say that the scale of sex-based and gender-based crime needs to be recorded, recognised and acted upon, and it needs to be tackled much more broadly, not just in terms of upskirting. I also fully endorse her sentiments about the Law Commission, although it could be said that including that element in the Bill could be problematic in other discussions.
The hon. Member for Bath (Wera Hobhouse) is a tenacious campaigner, and it is to her credit that we are here today discussing the Bill, which deserves the full support of the House. As today’s debate proves, swift change does not have to come at the expense of proper scrutiny.
Sarah Champion (Rotherham) (Lab)
I want briefly to share my experiences last week in Korea, in Seoul, where upskirting has not been addressed either by society or by the law. The situation there for women and girls is truly horrific. Girls are scared to go into any sort of public toilet, whether in their school or a shopping mall, and women, when they go into public toilets, take a device with them and scan the toilet to see whether they are going to be violated in this way. I do not want us to go down that route. I want us to look at what is motivating society. Why do men seem to feel entitled literally to expose women in this way, sharing the images and seeing them as objects they can control and do whatever they want with?
We have spoken a little bit about the potential of there being only a low number of prosecutions for this crime. I see that as a good thing. What making this illegal would do is send out the clearest message to people that this is a crime and an offence and that they will have action taken against them if they carry it out.
I am incredibly pleased that relationship education is now coming into primary school for all children. A key component of that is explaining to children what is and is not acceptable and that these gender assumptions are put upon them from the very youngest age and that it is their right to challenge them and to have society challenge them on their behalf, so that they can live a full life, making the choices that they believe in and that they are able to make.
I want to reflect briefly on our society and on how we have come to this point now where we have femicide—two murders a week of women—where violence against women is commonplace and where we have this complete objectification of women without any recourse. I go right back to the very beginning when little girls are effectively told what their expectations can and should be. They are given dolls and tea sets. They are told to be complicit and they are told to be quiet. Boys are told that they will be great crusaders. They have guns and they can become world leaders. We encourage children’s expectations at the age of two or three. That then becomes amplified through social media and, specifically, through online porn.
Porn is overwhelmingly made by men for men and overwhelmingly sees the woman as an object that a man can use and abuse however they choose with no repercussion. Until we get the relationship education that shows children that this is a fantasy—in many cases, a perverse fantasy—that is what children will believe that they have to be subjected to. I am talking about boys and girls. When Members go into secondary schools, I am sure that they have young boys and girls coming up to them and asking them, “Do I have to have anal sex? Do I have to strangle my girlfriend when I have sex? Do I have to have sex with other people there?” They are genuinely anxious about this, and we are letting our children down. This legislation on upskirting is about saying, “No, this is unacceptable. It is unacceptable for you to perpetrate and it is unacceptable for it to happen to you.” It sends out a really clear message. I am incredibly grateful that the Government have introduced this Bill.
I also wish to focus on the amendments that include the distribution and the profiting from upskirting. Much of this is being done for money. In Korea, that is what is happening. People are humiliating women not just for their personal gratification, but to make money, so it would be a grave omission if that were not included.
I turn now to the substantive point that I have been trying to make: this crime is a symptom of the misogyny that we are experiencing in this country and that we are seeing escalating in this country, and it needs to be tackled in this country. I urge the Minister to carry out the review that has been proposed by my hon. Friend the Member for “Walthamshire”—[Laughter]—and to incorporate the amendments in the Bill.
Sir Christopher Chope
May I say how much I welcome this debate? I am grateful to the Government for taking forward this measure as a Government Bill rather than relying on the private Members’ procedure. I am also very grateful to my right hon. Friend the Member for Basingstoke (Mrs Miller), the Chair of the Women and Equalities Committee, for her generous comments about the importance of being able properly to scrutinise in a sober fashion the very serious issues that are contained in this Bill and indeed the wider debate, which has been developed by the hon. Member for Walthamstow (Stella Creasy). In answer to her point on that, I say bring on the Law Commission. As a member of the Home Affairs Committee, I think that it is very important that we should try to keep abreast of new developments. Hate crime is one of those vile activities that we need to legislate against, but we need to do it in a really good way. The best way to do that is, as she suggests, by getting the Law Commission on board because it has the expertise to help us in this House.
Stella Creasy
I feel the need to stand up for the members of the Committee, having been a member of it myself, and to reflect that the discussions we had in Committee about treating misogyny as a hate crime did not receive Front-Bench support. That made me, as a Back-Bench Member scrutinising the Bill, reflect on what more could be done to win that argument. It is not always a good thing to be told no.
Sir Christopher Chope
I have nothing but praise for the hon. Lady. Fortunately, the Opposition Whips, who are represented on the Selection Committee, obviously did not think it was necessary to allow the Bill to proceed without any amendment. It is worth putting on record that, during that Committee debate, the official Opposition spokesman said:
“The Opposition support the Bill completely, and will not propose any amendments.”––[Official Report, Second Reading Committee, 2 July 2018; c. 17.]
At that stage, the Opposition were blindly supporting the Bill, rather than being prepared to examine exactly how it might be improved.
Mrs Miller
My hon. Friend has referred to the procedures, processes and membership of Committees. I should like to remind him that the Second Reading of this Bill was done in Committee, and I had to fight slightly to be a member of that Committee. Does he agree that using these kinds of techniques has not really speeded up the delivery of the Bill up to this point and that it has created an opaqueness about the methodology that Parliament uses?
Sir Christopher Chope
It has certainly done the latter. It is quite a long time since a Second Reading Committee was set up to consider a piece of legislation, but in terms of making faster progress, there is no doubt that we are much further on than we would have been if this had remained a private Member’s Bill. Some of the other Bills that had already had their Second Reading have yet to come out of Committee and reach their Report stage. So those are some of the advantages of having a Government Bill. Another advantage is that when the Bill goes into Committee, the Committee has the opportunity to take evidence. My right hon. Friend gave potent evidence to the Committee, as did other witnesses. That would not have been possible if the Bill had stayed a private Member’s Bill.
Wera Hobhouse (Bath) (LD)
Can the hon. Gentleman perhaps confirm that he said “Object” on 15 June in order to speed up the process of the Bill?
Sir Christopher Chope
My purpose in saying “Object” was that I wanted the Bill to be scrutinised, and full marks to the Government—I do not always give them full marks—for recognising that this was a Bill that could be properly scrutinised only if it became a Government Bill. So did I achieve my objective? Yes, I did. I am pleased that the Government have done this. I am sure that the hon. Lady, having seen the strength of some of the amendments and new clauses, will reflect on the fact that if the Bill had been left as a private Member’s Bill for her to steer through, she would have been under pressure from the Government throughout. They would have told her not to accept any amendments, and that if she did, the Government would prevent the Bill from making progress. The Bill would have been vulnerable as a private Member’s Bill—that is particularly true when a Bill reaches the other place.
Mr Speaker, I know that I am going to be told that I am straying from the amendments that I am seeking to address, and I apologise if I am doing that. I am hoping to establish support for amendment 1, tabled by my right hon. Friend the Member for Basingstoke, to ensure that the Bill delivers what it says on the tin. The Minister said that she was going to outlaw upskirting, and judging by the correspondence that I have had, most people assumed that that was what was going to be delivered. But then when one looks at the detail of the Bill’s financial implications, one works out that the Government are banking on it costing only £230,000 a year to a prosecute all these offences. When one divides that by £8,000, which is the cost of each case, one comes up with a figure of 29 prosecutions a year. If the hon. Member for Bath (Wera Hobhouse) had gone out into the street in her constituency and said, “I’m bringing forward this really important piece of legislation that will result in 29 prosecutions a year,” I am unsure whether people would have thought that it was as significant as it was being portrayed.
Sarah Champion
Does the hon. Gentleman accept that we are trying to prevent the crime from being carried out by making it clear in this Bill that upskirting is a crime? It should therefore be seen as a good thing if the Bill brings down the number of cases of upskirting.
Sir Christopher Chope
I agree with the potential deterrent role that legislation can have, but I would use a different analogy. There is a general law against driving without due care and attention, but due to the incidence of and public concern about people driving while using mobile phones, which was and is, strictly speaking, an offence under the law against driving without due care and attention, Parliament decided to introduce a specific offence, effectively replacing the previous one. The hon. Lady will know that, sadly, that specific offence has not actually had the deterrent effect for which many people had hoped, and that large numbers of people are still offending.
Taking that analogy and looking at the specific offence contained within the Bill, amendments to which we are seeking to discuss, if the general common law under which a lot of upskirting activity is prosecuted at the moment is replaced with a specific statutory law, prosecutions will come under the specific law, rather than under the general common law, which, as Lord Pannick has said, is vague and ambiguous in many respects. If the consequence of the Bill is that all offences of upskirting are then brought within its ambit and prosecuted on that basis, that will be great and I am all in favour of it.
However, if we are going to do that, we should not constrain those offences by saying that they can be proved only if a motive is also proved. As my right hon. Friend the Member for Basingstoke asked, why is not the mere fact that somebody takes a photograph without the consent of the “victim” an offence in itself? Why do we have to limit the offence in the way that this Bill does?
Mr Speaker
Order. I have been listening patiently and most attentively to the hon. Gentleman, who has offered the House a procedural disquisition and some remarks that touch on what might be called the theology of the Bill, which is of considerable interest to the House. He also animadverted to a number of the Bill’s explanatory notes, but if he felt able to proceed fairly promptly to the amendments, which relate specifically to guidance, purposes, aggravating factors, and notification under the Sexual Offences Act 2003, he would be beautifully in order.
Sir Christopher Chope
I am most grateful to you, as ever, Mr Speaker, for your guidance on such matters. Turning specifically to my right hon. Friend’s amendment 1, it would remove from the Bill any requirement to prove a motive. It seems to me that the activity itself should be criminal and should not need to have a motive ascribed to it. As soon as a motive has to be established, it makes it much more difficult for the prosecuting authorities. It makes it so easy for members of Her Majesty’s constabulary to say, “Well, there was no motive.” Why do we need a motive in respect of an offence that outrages public decency? No one has written to me saying that they think upskirting is a reasonable activity in which to participate. I very much hope the Government will accept amendment 1, tabled by my right hon. Friend.
Victoria Prentis
Whether or not these offenders should be on the sex offenders register is a difficult issue, because many of these offences will be committed by under-18s on under-18s; they will receive short sentences, but they will be committing offences on other children. Does my hon. Friend agree that it is right that we have this discussion now? Does he also agree that the police guidance on sexting may be very useful in working out a way forward on this difficult and sensitive matter?
Sir Christopher Chope
I absolutely agree with my hon. Friend that it is very important that we should have this discussion, as this issue is complicated, and I agree with her suggestion. That is another argument in favour of having a proper, sober debate on this issue, without getting too much emotional involvement in it.
Finally, if the Government are reluctant to accept the amendments put forward today and reluctant to extend the scope of the Bill so that it embraces more than 29 potential prosecutions every year, I hope that when the Bill reaches the other place their lordships will look at this legislation and say, “We want to make sure it actually delivers what it says it is going to deliver.” It certainly does not do that at the moment, and it will not unless it is amended. One final consequence of this being a Government Bill is that when it goes to their lordships’ place nobody will be deterred from tabling amendments on the basis that if they do so, there will not be time to consider those amendments in private Members’ Bill time in the House of Commons and therefore the Bill will be killed. That argument will not run in the House of Lords in relation to a Government Bill, which this is. That is another reason why it is a very good idea that it is a Government Bill. I am very enthusiastic about amendment 1, tabled by my right hon. Friend the Member for Basingstoke, and obviously equally enthusiastic about my own.
Wera Hobhouse
It is a pleasure of sorts to follow the hon. Member for Christchurch (Sir Christopher Chope). We have disagreed on things, but I am pleased to say that I agree with him that we want to make this Bill as good as possible and, in particular, to ensure that it acts as a good deterrent so that people do not consider this vile practice.
I am immensely grateful that the Government have taken the upskirting Bill through the House so quickly. Everyone involved can be very proud of what has been achieved so far. This Bill is testament to how we can all work together constructively. We all agree that upskirting is a vile practice and has to become a specific sexual offence. We all agree that either to gain sexual gratification from upskirting or to take an image for the purposes of distress, humiliation or alarm should not be tolerated and should now be prosecuted in law. We also agree, by and large, that the worst offenders should go on the sex offenders register.
This Bill is aimed at stopping a vile offence by either deterring upskirting in the first place or through the successful prosecution of offenders. We want to ensure that everybody is protected from this crime. We are not debating those common principles today; we are debating how to bring about effective prosecutions and not allow anyone to slip through the net. The wide-ranging discussion on this Bill over the summer has led me to put my name to amendments that explore how we make this upskirting Bill as watertight and effective as possible. I believe that we can strengthen it in two ways.
First, the Bill, as drafted, makes upskirting a sexual offence only if it is done for sexual gratification or if photos are taken to humiliate, distress or alarm the victim. That means that those taking upskirting images for other purposes, for example financial gain, non-sexual enjoyment or “having a bit of a laugh”, would not be committing an offence. However, I believe that whether an offence has taken place should be determined by whether the victim has consented and whether the images were taken intentionally. The harm caused to the victim is substantial, regardless of the motivation of the perpetrator. Upskirting should be an offence regardless of the motive.
Secondly, the Bill would make the taking of the image an offence, but not necessarily the distribution of the image. Amendment 5 would make it an offence to distribute an upskirting image without consent, to which two defences would be available—to prevent or detect crime, or that the person distributing the image did not know that it was an upskirting image.
The large increase in sexually offensive images online is a real problem. Only on Monday, the Home Secretary made a speech talking about his shock at the sexual exploitation of children online, and the responsibility of online platforms. I understand that the Government intend to conduct a wide-ranging review of this problem, but it will probably be years before we can successfully tackle the issue in law. I therefore see no harm in trying to prevent the distributing of upskirting images now, even if other legislation lags behind.
I want the Bill to stop the vile practice of upskirting. It should be a successful tool for prosecution, but it should also act as a deterrent—zero tolerance, no loopholes. Since I got involved in the upskirting campaign, I have understood how distressing upskirting is to victims. I want to make sure that anybody even considering taking an upskirting image should think twice. I would also like the Bill to have a wider purpose—to inform the wider discussion around consent, online distribution of sexual images, and outdated attitudes, especially towards women. We have heard about that subject today, and I very much welcome the contribution by the hon. Member for Walthamstow (Stella Creasy). The Bill marks an important stepping stone, and I am grateful for the largely consensual debate on how we can stop upskirting for good.
Sir Mike Penning
It is a privilege to follow the hon. Member for Bath (Wera Hobhouse) and I congratulate her on the tireless work she has done. I also congratulate Gina Martin, who is a brilliant campaigner: I wish she was with me campaigning on issues in my constituency.
I was not here on the Friday when the private Member’s Bill was objected to, but I was conscious of it when the hon. Member for Walthamstow (Stella Creasy) said that not all noes are bad. There was a no, and it means that we are here today. The Bill before us is not perfect, and I shall say more about that, but the reason the Bill has been expedited and we have the amendments is because of what happened then. While my hon. Friend the Member for Christchurch (Sir Christopher Chope) was vilified and attacked in some parts of the press, I think that in his heart of hearts what he wanted—he has objected to many Bills over the years—is scrutiny and for the Government to come forward with their arguments for and against, rather than being squeezed by the technical procedures of Friday sittings.
As a former Minister, I know that the Minister will be under pressure not to accept amendments. I have sat on the Treasury Bench on many occasions and read the notes and briefings. I often got in trouble because I would say, “No, common sense needs to prevail here, because some of these amendments are right.” In my opinion, some of the amendments to the Bill are right, and if Ministers do not accept them—or give a very good explanation of how they will address the points made—the House should divide on them. The country is looking to us to give a lead on this important legislation.
One reason we do not have very many prosecutions for the offences that already cover upskirting—the hon. Member for Walthamstow mentioned some of them in her contribution—is that the police and the CPS do not have the confidence that that is what this place intended. I know that because I was a Justice Minister with responsibility for policing and victims, and I have had that put to me. The judges in the appeal courts say all the time, “What is the intent? If Parliament had intended that, it would have put it on the face of the Bill.” There are things missing from the face of the Bill that I will now address.
I agree with the hon. Member for Walthamstow that new clause 1, to which she is the main signatory, further expands the provision, but the Law Commission is where this needs to be done. I hope that, when the Minister stands up, common sense will prevail, that we do not need to divide and that the Law Commission can look at the wider aspect of this hate crime, which is what this is.
Liz Saville Roberts
It is an honour to follow the right hon. Member for Hemel Hempstead (Sir Mike Penning) and his excellent speech, which summarised much of what I intend to say now; I hope he will forgive me.
I would also like to refer to new clause 1 and the need for a review by the Law Commission. With hate crime, we need to look at the rates of reports as compared with the rates of successful prosecutions. If those are low or if something appears difficult to explain, there should then be a consideration of why they are low. I suspect that in many cases we will find that we are trying to use common law or pieces of statute that are now dated and just not clear. Under the weight of criminal activity, it is sometimes very challenging for the police to know how they are going to deal with the matter if there is not a clear route ahead.
I want to speak in support of the amendments tabled in the name of the right hon. Member for Basingstoke (Mrs Miller). Amendment 3, along with amendments 1 and 2, make all upskirting an offence regardless of the motivation of the perpetrator. As I said, the legal clarity necessary to prosecute upskirting becomes blurred when the focus is directed towards establishing an answer to the question of why someone has taken an intimate photo of someone else without that person’s consent. Taking a private, intimate photo of someone else without their consent should always be illegal. The legislation as it currently stands ignores victims and their experiences and places its focus solely on the intentions of the perpetrators. It thus fails to capture all instances of upskirting, fails adequately to protect the victim, and fails to make all perpetrators liable for prosecution.
These amendments rightly take the issue of consent as the primary concern, although it is evident that the motivation of the perpetrator should not be completely disregarded; rather, it should be treated proportionately, as we do in other crimes. Serious sexual offenders, such as those who commit upskirting for the purpose of sexual gratification—rather than, say, for financial gain—should still be subject to notification requirements, and the amendment does not stop that from happening. The prosecution of an act of upskirting can examine whether consent was gained when the image was taken, and look at why the image was taken, in order to ensure that offenders are treated appropriately on conviction, with some being placed on the sex offenders registers as necessary, according to their motivation. The amendment does not seek to make all perpetrators of upskirting offences subject to notification requirements, but seeks to ensure that all perpetrators of upskirting offences are able to be prosecuted, regardless of the reasons behind their actions.
The Minister has justified the current drafting of this legislation on the grounds of existing legislation in Scotland, which it mirrors. It is entirely right that we legislate to ensure that upskirting is illegal, but simply copying the legislation as it stands in Scotland, which has recently been revealed to be in need of review, will not result in an effective or long-term solution. The CPS stated to us in Committee that, if the Scottish legislation were to be replicated in England and Wales, it would
“anticipate that most offending will fall comfortably within these categories”,
but the evidence from Scotland now shows that this is unlikely. Recent figures show that, in the first six years of the law being in operation in Scotland, just 21 prosecutions have taken place out of a total of 142 charges reported—only 15%. That is a clear example of the type of gendered legislation that is not resulting in effective prosecutions. It would be irresponsible for us as legislators to press ahead with this legislation when we have clear proof that many of the reports due to be brought to the police in its name would be unlikely to lead to successful prosecution.
Alex Chalk
The hon. Lady is making a powerful speech. I want to explore one thing, if I may. She is saying, I think, that someone should be guilty of an offence whatever the motivation. If a court were to find that the offence were committed for the purposes of obtaining sexual gratification, then the defendant should be put on to the register, but how, if clause 3 is deleted, will a court be able to establish what the motivation was? Is there not a danger that a jury would not be deciding it but instead a judge? Is there not some logic to ensuring that it will be the jury who will determine this matter, which has important consequences for the penalty that follows?
Liz Saville Roberts
I am grateful to the hon. Gentleman for his intervention. We need to have this debate in relation to these crimes. None the less, if we find ourselves in a situation where the motivation is the sole means by which we decide to move ahead or not, then we are providing a bolthole that will give people a defence. I hope that the Department will be discussing further with its counterparts in the Scottish Government exactly why the prosecution rates are so low there. If there are concerns that we are giving a line of defence on the grounds of motivation, we must be very careful. Are we prioritising the right issue, or is it, as I was trying to explain, rather a matter of proportionality when it comes to sentencing and knowing what the motivation is?
I will now speak in support of amendment 5, which seeks to close the biggest loophole in this legislation—namely, that it would be an offence to take an upskirting picture but not necessarily an offence to distribute it. When the amendment was introduced in Committee, the Minister explained that there were already statutes that might capture the distribution of such photos, such as section 127(1) of the Communications Act 2003 and section 1 of the Malicious Communications Act 1988. Just as the motivation clause of this legislation means that not all upskirting would be outlawed, nor does the present legislation outlaw distribution in all cases.
We should not be passing legislation that only works to a certain extent. I appreciate that the Department for Digital, Culture, Media and Sport and the Law Commission are working together to look into the onward sharing of images as part of their review in relation to online abuse, but failing to include anything in this legislation about distribution risks creating a giant loophole that would facilitate the further distress of victims. It is an entirely predictable outcome that we can see from where we stand.
We have the opportunity to address this issue now, and we should seize it, instead of holding back. When the original upskirting legislation was passed in Scotland, it had to be followed up with additional legislation to cover the distribution of these images. The UK Government unfortunately appear blithely to be following the process of the original legislation in Scotland. I propose that we take the opportunity to learn from the pitfalls experienced there, rather than run headlong into the same complexities. I urge the Minister to commit to work with Scottish legislators to strengthen the Bill.
I encourage the UK Government to join colleagues across the House, who have made some excellent speeches this evening, in supporting the amendments. Otherwise, they risk waving through legislation whose excessive complexity and obvious loopholes will hobble it from day one.
Ross Thomson (Aberdeen South) (Con)
I will keep my remarks very short, Mr Speaker.
I want to begin by acknowledging why we are here discussing this very important issue: the incredible work of Gina Martin and her lawyer, my fellow Aberdonian Ryan Whelan. They have worked so hard to campaign on this issue, raise awareness of it and take it forward. I remember meeting Ryan in my constituency office and talking about Gina’s experiences a victim of upskirting, and I just could not believe that this was happening across England and Wales. It felt wrong that it was happening, and that certainly motivated me to get involved in the campaign to give justice to women and victims, and to ensure protection for all young women.
I thank all Members of the House because the Bill has had genuine cross-party support from the Labour party, Plaid Cymru, the Liberal Democrats and the Scottish National party. Their real support for the Bill has helped it to progress so swiftly through the House. It is at moments like this that Parliament shows itself at its best, with cross-party co-operation to put something on the statute book that will do good for our constituents.
We all came into Parliament to make a difference. We want to be able to serve our constituents, to change the law, to right wrongs and to protect some of the most vulnerable. Together, we are doing that. So often people see on television the spats that we have—there will be many more—and the rowdy Prime Minister’s questions, but often moments like this, which I genuinely think are when our Parliament is at its best, do not get coverage.
The practice of upskirting—taking a photograph up a person’s skirt or clothes without their consent—is truly horrific, and those who have been the victims of such a crime have been clear about how it has personally affected them. Some have described their experiences of upskirting as “scarring”, “a real invasion”, “embarrassing” and “humiliating”. When the Minister talked to the Committee, she referenced the fact that one victim described the invasion of upskirting as making her want to “peel off her skin” and scrub herself clean.
There is a real gap in the law that needs to be filled, and we can do that. This is the moment to do it because upskirting is a terrible and horrific crime. It is a horrendous invasion of privacy, and it is right that offenders will be appropriately punished following the creation of a specific upskirting offence. The whole House will be able to send a clear message to potential perpetrators that this behaviour will not be tolerated.
Yasmin Qureshi (Bolton South East) (Lab)
I thank all the members of the Public Bill Committee, from both sides of the House, for their work and active participation. May I say that none of them were stooges? They all actively participated in Committee.
I want to congratulate the campaigner Gina Martin, who highlighted this very important issue and the lacuna in the law. I also acknowledge the work of the hon. Member for Bath (Wera Hobhouse), who introduced this measure as a private Member’s Bill. Mr Speaker, you could say that this is one of the lessons of the law of unintended consequences. When the hon. Member for Christchurch (Sir Christopher Chope) objected to giving that private Member’s Bill a Second Reading, that resulted in an outcry and criticism from every quarter, but it is fair to say that were it not for that, this Bill would not have seen the light of day.
In 2017, the shadow Justice Secretary, my hon. Friend the Member for Leeds East (Richard Burgon), wrote to the Lord Chancellor to ask the Government to enact such legislation in Government time, but they refused to do so. However, we are pleased that they have now been catapulted into bringing forward this Bill. We have supported the Bill at all stages and supported the Government because we recognise the urgency of a situation that needs to be addressed. The Bill was drafted by Ms Martin’s lawyers and we did not want in any way to cause difficulties or a delay in proceedings.
Let us be clear: upskirting is a depraved violation of privacy. It is shocking that in England and Wales at the moment there is no specific criminal offence to cover this, and that it is instead being prosecuted under more general offences such as outraging public decency, although we know it can be difficult to satisfy many of the requirements of such offences. The law as it stands means that the focus of the offence is often on protecting the public from potential exposure to lewd, obscene or disgusting acts, rather than on protecting the individual victim. Some people have been prosecuted for upskirting on the basis of outraging public decency, but that is not really what that specific provision in law was designed for.
The law should focus on individual victims and the crimes committed against them. A number of cases have highlighted the failings of the current law, and I start with the case in 2007 of Simon Hamilton, a barrister, who was convicted after secretly filming up the skirts of women in supermarkets. He was able to appeal on the basis that because none of the victims had been aware of the filming and no one had seen the film, public decency had not been outraged. Then there was the case of Guy Knight, a former chartered accountant, who took photographs up women’s skirts on trains over a period of five months while commuting to work. He was caught after suspicious passengers reported him to the police. More than 200 illicit images were found on his phone and laptop, and 10 of the women in the pictures were traced by the police. None of them was aware that they had been photographed.
This campaign came about because of Ms Gina Martin. About a year ago, she was at a festival in London with her sister when she noticed that the man behind her had taken photos up her skirt. Shocked and distressed, she sought help from the police, but the law was not sufficient to ensure that they could help her. That is why a change in the law is required, and it is why we have supported the Government throughout proceedings on this Bill.
We must remember that many women right across the UK are being affected. This can happen to any woman on public transport, in a park, at a concert, or even just on a walk along a busy street without the victim even realising that the photographs have been taken. It is impossible to judge how many women have been victims of upskirting, although a quick internet search will bring up hundreds of sites and thousands of images. On phones and laptops there may be millions more pictures that were taken on the streets, on escalators, in shopping centres, in supermarkets, in nightclubs and in other places. I think the hon. Member for Christchurch may be wrong to say that the Bill will cover only 29 cases per year.
There are endless web forums where amateur upskirters can exchange tips on how to get the best picture. One was posted by a man who had made a “cam-bag”—a holdall that had a specially made pocket with a hole for a digital video camera lens. The post says:
“Never forget to shoot their faces before or after to know which girls the ass belongs to…After the first…asses, they look very similar and you lose most of the fun. After upskirting them, either step back and wait for them to turn or step by them and shoot directly sidewise.”
Another poster on the forum said that he operates
“mostly at theme parks and tourist hotspots, or really anywhere that draws a large crowd of spectators and cameras”.
He finds
“an attractive young lady, preferably a teen for my tastes, and then I evaluate the situation.”
Mrs Miller
The hon. Lady mentioned that my hon. Friend the Member for Christchurch (Sir Christopher Chope) referred to 29 cases. It was the Government, not my hon. Friend, who said that there would be 29 cases a year. Does she not share the concern that that is a very small number, given the prevalence of the problem and the evidence that she is presenting about the number of websites on which this issue is so blatant?
Yasmin Qureshi
I thank the right hon. Lady for that intervention, and I stand corrected. The hon. Gentleman referred several times to the figure of 29 cases, and I sensed that he was trying to say that the estimate that 29 people a year would be affected made the Bill not very important. By referencing, as the right hon. Lady said, what is happening online, I was trying to emphasise that the Bill will potentially cover many, many more people.
Sir Christopher Chope
If the hon. Lady needs a reference for the figure—I am surprised if she does—it is contained in the explanatory notes. Paragraphs 29 to 31, which concern the financial implications of the Bill, make it clear that the cost per prosecution is £8,000, and that the total cost to the Exchequer of the legislation will be £230,000 a year. If we divide one into the other, we get the figure of 29.
Yasmin Qureshi
I thank the hon. Gentleman for that helpful lesson in arithmetic. I can do that arithmetic, but the point I was trying to make was that he kept repeating that figure, so it seemed to me that he was trying to suggest that the Bill might not cover as many people as it purported to do.
Another man posted:
“I’ve been upskirting chicks, mostly at clubs, for almost two years. The club I go to is a great spot, real crowded, strobe lights going, loud music, so no one notices me sitting near the edge of the dance floor and if a woman in a skirt ends up by me I stick the cam under and snap.”
Legislation is needed to deal with those types of cases.
Several Back Benchers tabled amendments. My hon. Friend the Member for Walthamstow (Stella Creasy) spoke with great passion about her new clause and street harassment, and we support her on that. The Government must urgently look into bringing forward a comprehensive Bill to deal with many issues, including anonymity for victims of revenge porn; the cross-examination of victims of abuse by defendants, as occurs in civil courts; and the distribution and sharing of images. We need a fundamental review of all hate crime and sexual legislation to ensure that victims are protected and have access to justice, so it would be very welcome if the Law Commission or another body could look into this issue, with its recommendations implemented in law as soon as possible.
I commend the right hon. Member for Basingstoke (Mrs Miller) for her tremendous work as the Chair of the Women and Equalities Committee, which itself does tremendous work. I hope that the Government will address the points in her cogent and pertinent amendments and take on board the matters that she raised and the issues of concern. Hopefully, as the Bill progresses through both Houses, the Government will consider those amendments.
Lastly, on the amendment tabled by the hon. Member for Christchurch, I believe that in all cases judges should have discretion in deciding who should be put on a sexual register and when. That should not be a blanket proposal; it should be left to the individual judge in an individual case to decide whether somebody should be put on a sexual register, because being on the sexual offenders register has clear implications and repercussions for people.
The Parliamentary Under-Secretary of State for Justice (Lucy Frazer)
Upskirting can be humiliating and degrading, and it is appropriate that that is recognised by the criminal law. As the hon. Member for Bolton South East (Yasmin Qureshi) rightly mentioned, although there is not currently a specific offence on our statute books, fortunately the law does already provide some protection. Prosecutions can be and have been brought under the common law offence of outraging public decency and the offence of voyeurism.
There is a gap in the law that needs to be filled, and it relates to where the offence takes place. Currently, if the offence takes place in a public place, such as a street, a person can be caught under the outraging public decency legislation, and if the offence takes place in a private place, they can be caught under the Sexual Offences Act 2003. However, there is a gap if the offence takes places somewhere that is neither public nor private. Worryingly, such places could include a school or a workplace. The Government have therefore introduced this Bill to seek to address this issue. As my hon. Friend the Member for Aberdeen South (Ross Thomson) said, it follows Gina Martin’s effective campaign.
Members have tabled a number of amendments that seek to expand the Bill’s scope. I shall address each in turn—and I assure my right hon. Friend the Member for Hemel Hempstead (Sir Mike Penning) that I will take the approach that he took when he was a Minister and consider each one in turn on its own merits, as a matter of policy and of principle.
First, I will deal with new clause 1 and amendment 7, tabled by the hon. Member for Walthamstow (Stella Creasy). They seek to ensure that when offenders of the crime of upskirting are motivated by misogyny or misandry this should be considered by the court as an aggravating factor when considering the seriousness of an upskirting offence for the purpose of sentencing. She also seeks to amend guidance to highlight this issue. As my hon. Friend the Member for Aberdeen South mentioned, it is very important to point out that the hon. Member’s amendments do not propose that misogyny becomes a hate crime, but is simply raised in the context of the upskirting offence. If the perpetrator of the offence was motivated by hostility against women, that should be taken into account on sentencing.
Liz Saville Roberts
I am grateful to the Minister for announcing a review by the Law Commission. Will she commit to considering in the review a wider range of protective characteristics that are recognised by some police forces, in particular my own in north Wales, which considers English and Welsh language as hate crime protected characteristics? Will she consider those in the review as well?
Lucy Frazer
I am happy to take that away and consider it. It is appropriate that when we look at protected characteristics we do not look exclusively at sex and gender characteristics, which as I said will be included. I am very happy to consider the point the hon. Lady makes and I will get back to her on that.
Secondly, I would like to deal with amendments 1 to 4, tabled by my right hon. Friend the Member for Basingstoke (Mrs Miller), in relation to purposes. Before turning to the substance of her amendments, I would like to pay credit to her for all her work in this area. For many years, as Chair of the Women and Equalities Committee and individually as a Member of Parliament, she has continually stood up for the rights of women. I am very grateful to her for highlighting important points to me on the Bill in Committee and more informally. The Department has considered very carefully the issues she raises and reflected on them. I will set out in due course how we propose to deal with the points she has very carefully and helpfully raised for consideration, but first I will deal with the substance of the Bill as drafted.
In the Bill as drafted, upskirting is criminalised if the perpetrator takes an image with the purpose of either sexual gratification or causing humiliation, distress or alarm to their victim. The reason those motivations are identified in the Bill is that they are used in other current legislation. Amendments 1 to 4 would remove those defined purposes, effectively taking away any mens rea to the offence and therefore criminalising the taking of all upskirting photographs whatever the circumstances. As I understand it from the explanatory statement and the speeches today, the intention behind amendment 3 is to ensure that those undertaking this sort of inappropriate behaviour for group bonding or financial gain are caught.
Mrs Miller
My hon. and learned Friend is making very clear when it is not acceptable to take an upskirting photograph. When is it acceptable to take an upskirting photograph, because by definition there must be some instances when she thinks it is acceptable?
Lucy Frazer
My right hon. Friend makes an important point. It is never acceptable to take a photograph up someone’s skirt without their consent, but we as legislators have a very important duty when we pass laws, particularly criminal laws. Criminal laws set out a criminal liability and give people a criminal record, which has significant consequences for their lives. We need to take that duty and that obligation extremely seriously, so not every act that is inappropriate becomes criminal.
Mrs Miller
I am speaking to a QC, so I am treading very carefully here. We have an obligation as Parliament to be crystal clear to the judiciary, as my right hon. Friend the Member for Hemel Hempstead (Sir Mike Penning) said eloquently in his speech. What the Minister just said is entirely confusing to me and possibly to the judiciary. If she is saying that there are examples where upskirting is allowable, she should be clearer. She cannot have her cake and eat it, if I may be so bold, and say that there are such instances, but there aren’t really.
Lucy Frazer
I am very grateful for what my right hon. Friend says. I have the highest regard for the work she has done and for the importance she places on this subject. When judges look at what people should and should not be criminally responsible for as a matter of law, they will look at the legislation we have passed. It is important that that is set out in the legislation and that the legislation is clear.
I will identify three reasons why accepting the amendments proposed by my right hon. Friend would make the law less clear, less certain and less advantageous. First, we believe it is likely that those who engage in upskirting for the purposes set out in the explanatory statement on amendment 3, which she outlined, will be caught in any event by the Bill as drafted. The hon. Member for Rotherham (Sarah Champion) said that we should think about a situation where someone takes an upskirting image to upload it to a website for financial advantage, and possibly catch it in the Bill. We think that it will be caught by the Bill as drafted, because in uploading the photograph to a website where people will pay for it, the person intends others to look at it to obtain sexual gratification. Equally, if someone took an upskirting image primarily for a laugh, they would likely be captured on the basis that the amusement was caused by the humiliation, alarm or distress that they intended the victim to feel.
Lucy Frazer
I will continue for the moment. If I have time, I will happily take further interventions.
The reason the Government do not favour widening the scope of the purposes is that a blanket liability risks criminalising those whom we do not want to criminalise. The amendments could bring in serious unintended consequences and risk bringing too many people within the scope of criminal law. As my right hon. Friend the Member for Basingstoke recognised, the amendments risk criminalising young children who are over the age of liability, which is 10, but who do not realise the impact of their actions and mean no harm when they carry out the act.
There is one further critical issue, which my hon. Friend the Member for Cheltenham (Alex Chalk) mentioned. If all the purposes were removed by amendments 1 to 4, there would be no need for the prosecution to bring forward evidence of the perpetrator’s motivation of sexual gratification. That could mean that those who posed a threat to the public were not put on the sexual offenders register, because the issue had not been determined in court.
My hon. Friend the Member for Christchurch and my right hon. Friend the Member for Basingstoke highlighted the small number of prosecutions that have been brought, and highlighted the fact that we anticipate only a few more in the impact assessment. The reason for that, as paragraph 29 of the explanatory memorandum makes clear, is that there are already laws that catch this activity. What the impact assessment identifies are the new offences that we think will be caught by filling this narrow gap.
The hon. Member for Rotherham rightly stated that we need to change the culture, not lock up more offenders, and education is an important part of that. We recognise, however, the value of the points that my right hon. Friend the Member for Basingstoke and others made, and therefore I am happy to confirm that the Government will review the operation of these offences after two years of their coming into force. This will include working with the police and the CPS and reviewing cases so far brought.
I will briefly deal with sharing. Amendment 5 would create a further offence of disclosing and sharing an upskirt image. We in the Department share the intention and desire to ensure that the sharing of images is robustly dealt with. The best way to do that, however, is not by way of an amendment to the Bill. Legislating in one area alone is not the right way forward. The Government are already looking at this wider issue. The Department for Digital, Culture, Media and Sport has already asked the Law Commission to look into online abuse.
The first stage of that review, which is an analysis of the existing law, will be completed in October, and I am pleased to confirm that following the completion of this first phase, the Ministry of Justice, working with DCMS, will ask the Law Commission to take forward a more detailed review of the law around the taking and sharing of non-consensual intimate images. This will build on the Law Commission’s review of online abuse and allow the Government to consider how to address this issue more widely, rather than just for upskirting images. As my right hon. Friend the Member for Basingstoke said, it is not appropriate to legislate in a piecemeal way.
My right hon. Friend also mentioned the Scottish changes in 2016. My understanding of them is that they were not specific to upskirting but created a separate offence in relation to the distribution of intimate images in the Abusive Behaviour and Sexual Harm (Scotland) Act 2016. This is the broader approach that we in government want to continue.
In his amendments, my hon. Friend the Member for Christchurch suggests that offenders under the age of 18 not be put on the sex offenders register at all. We are concerned that there will be offenders under the age of 18 who need to be on the register, and only if we put them on the register will we protect victims who need protection now and in the future. He also suggests that we need to toughen up and put everyone on it who is over 18. That will diminish the effect of the register and not allow police resources to be concentrated. For those reasons, and in the light of the fact that we are offering a review of legislation after two years and a review of offences more widely, I hope that hon. Members will not press their amendments.
Stella Creasy
I thank the Minister for listening. For the first time, we are now saying as a country that misogyny is not a part of life or something that should be tolerated but something we are going to tackle. Her commitment to the Law Commission review of all forms of hate crime, including misogyny, and the need for new and existing resources to fund it, is really welcome and a positive reflection of what this place can achieve. We have just sent a message to every young woman in this country that we are on their side. On that basis, I am very happy to withdraw the amendment. I look forward to working with the Minister and the Law Commission review in taking this forward.
Clause, by leave, withdrawn.
Mr Deputy Speaker (Sir Lindsay Hoyle)
I remind the House that before Second Reading, as required by the Standing Order, the entire Bill was certified as relating exclusively to England and Wales and within legislative competence. The Bill has not been amended since then. Copies of the certificate are available in the Vote Office and on the parliamentary website.
Under Standing Order No. 83M, a consent motion is required for the Bill to proceed. Copies of the motion are now available Does the Minister intend to move the consent motion?
Lucy Frazer
indicated assent.
The House forthwith resolved itself into the Legislative Grand Committee (England and Wales) (Standing Order No. 83M).
[Sir Lindsay Hoyle in the Chair]
The Chairman of Ways and Means (Sir Lindsay Hoyle)
I remind hon. Members that if there is a Division, only Members representing constituencies in England and Wales may vote.
Resolved,
That the Committee consents to the Voyeurism (Offences) No. 2 Bill.—(Lucy Frazer).
The occupant of the Chair left the Chair to report the decision of the Committee (Standing Order No. 83M(6)).
The Deputy Speaker resumed the Chair; decision reported.
Lucy Frazer
I beg to move, That the Bill be now read a Third time.
I am very pleased to have this opportunity to speak. I cut short some of my comments on Report to ensure that I covered all the points. I would like to mention something that I did not say when I addressed the amendments tabled by my hon. Friend the Member for Christchurch (Sir Christopher Chope). It was suggested at one stage that he had opposed the legislation that will criminalise upskirting. I know that he never opposed it as a matter of substance, but objected to it as a matter of procedure, as we have heard today. Like other Members, he has made it clear that he supports criminalising this inappropriate behaviour. I spoke to him about his amendments, and I am very pleased to be able to address them at this stage.
I wish to highlight the fact that this is a simple but important piece of legislation with a very clear purpose—to fill a gap in the law in the prosecution of those who upskirt. I am grateful to Members across the House who have engaged with this Bill as it has progressed, and I hope that that spirit will continue in the other place. We can all be rightly proud of this Bill, and I would like to take this opportunity to thank everybody who has contributed to it.
There has been much discussion about the sharing of upskirting images. This is an important issue and one that we need to tackle as a Government. However, the Bill is narrow, and is not the right place to solve the many issues that have been raised. We will work with the Law Commission to look at legislation in relation to the sharing of intimate images.
We have welcomed the opportunity to debate the purposes of the Bill and whether it will capture all those who commit this offence. The Bill should catch those who should be criminalised and ensure that the reach of the criminal law does not extend to where it should not extend to. The post-legislative review in two years’ time will help ensure that the offences that the Bill will introduce are as effective and as comprehensive as intended. I am grateful to the House for its support.
I want to touch on the notification requirements, which are an important aspect of the Bill. It is not an issue that we take lightly, which is why we have committed to place those who commit this offence for reasons of sexual gratification on the sex offenders’ register, subject to certain thresholds to ensure proportionality, focusing resource on those who pose a significant risk to the community. I am confident that the Bill strikes the right balance in this regard.
We have had an interesting debate on hate crime. Although these are important issues, this Bill focuses on a narrow issue and it is not the right place to bring forward small, narrow legislation. However, hate crime is an area that the Government intend to look at closely, and we will be asking the Law Commission to conduct a review of hate crime.
Let me conclude by thanking once again and paying tribute to the hon. Member for Bath (Wera Hobhouse) for introducing the Bill and Gina Martin who first raised awareness of this important issue. I also wish to mention the important work of my right hon. Friend the Member for Basingstoke (Mrs Miller) both in her work as Chair of the Women and Equalities Committee and more broadly to ensure that the important issues in this Bill have been debated in this House. It is also important to recognise the contribution of my hon. Friend the Member for Christchurch who put forward ideas in relation to the sex offenders’ register. I am grateful to the hon. Member for Bolton South East (Yasmin Qureshi) and the Opposition for their support in getting this important Bill through the House so quickly.
Helen Whately (Faversham and Mid Kent) (Con)
I agree with my hon. and learned Friend about the good work done by campaigners in this area. I want to make one specific point: so often women and girls have been told that it is their fault if they are harassed, because it is their fault for choosing to wear a short skirt, for example. Does she agree that the Bill puts into law the important point that the person at fault is not the woman or girl who chooses to wear the short skirt, but the person who chooses to harass them and makes the poor choice to take a photo up their skirt?
Lucy Frazer
That is a very important point, and such legislation sends a message about how people should act in relation to women.
I was mentioning those who have played a significant part in this Bill’s progress. My hon. Friend served on the Committee, and I also thank the other members of the Committee; we had an interesting debate on the provisions before the recess.
I thank, too, the other parties’ spokespeople on justice: the hon. and learned Member for Edinburgh South West (Joanna Cherry), and the hon. Members for Belfast South (Emma Little Pengelly) and for Dwyfor Meirionnydd (Liz Saville Roberts). I worked closely with them as this Bill went through the House. I also extend my thanks to our hard-working Bill team, our private offices, our parliamentary private secretaries and the Whips, who can get overlooked at times. I also thank the Clerks and the other parliamentary staff for their sterling work and support on this issue.
It has been an honour to take the Bill from Second Reading through to today, particularly given the strong support from all parties across the House. I wish the Bill a safe and speedy passage through its remaining stages.
Yasmin Qureshi
I, too, want to place on record my thanks and appreciation to all Members who served on the Bill Committee. They were genuinely and passionately involved; it was not one of those cases where the Whips had forced them on to the Committee; Members were engaging in the debate and on this legislation. It is a small piece of legislation, but it is also important and does need to get on to the statute book as soon as possible. I am heartened to hear the news that the Minister was able to give that the Law Commission will be looking at this whole area of the law and at the recommendations. I hope that will be done as soon as possible and that we can implement its recommendations as soon as possible, too.
I also thank the House authorities, the Clerks and the Public Bill Office for all their work in putting the amendments together and their other tremendous work. I thank, too, my colleagues for being here today; a number of them do not need to be present, but they are still here because they are interested in this Bill.
Like the Minister, this is the first Bill I have taken from the beginning to the end in this House, and I, too, wish it a speedy journey and hope it will be on the statute book soon. It addresses a particularly vile and disgusting practice that needs to be brought to an end.
Mrs Miller
“Courage calls to courage everywhere”: that is what we have been saying so much this year, and I welcome the courage of Gina Martin to take action, of the hon. Member for Bath (Wera Hobhouse) for following it through, of my hon. Friend the Member for Christchurch (Sir Christopher Chope) for saying no and of the Minister for listening, and I welcome her clear undertakings today. I was reflecting that when I joined this place some years ago now in 2005, I do not think we would have passed a Bill like this. I think Parliament now has the courage to deal with these sorts of issues as well.
I welcome my hon. and learned Friend the Minister’s undertaking to have a Law Commission review of hate crime. That is an enormous step forward, and she is to be applauded for making sure that happens, as well as for making sure that we have a review of this legislation after two years and that we have a long overdue Law Commission review of non-consensual intimate images, which would make the need for this sort of piecemeal legislation redundant.
This Bill is the start of a process of creating a more coherent strategy for tackling non-consensual abusive images and, potentially, misogynistic crimes that create such a negative and demeaning environment for women and girls in this country. I wish the Bill well in its passage to the other place, and I hope that their lordships will take a further look at the issues that we have debated here today, to ensure that all victims have recourse to justice and that the Scottish experience in relation to outlawing distribution in the context of upskirting is adequately dealt with in the short term as well. I am sure that there lordships will look in great detail at the discussions that we have had today before the Bill reaches the Floor of their House.
Wera Hobhouse
From the very beginning of its journey, the upskirting Bill has been the result of brave individuals —particularly women—speaking out. They chose to speak out about a vile crime that was going not only unpunished but largely unnoticed. They courageously spoke out about their experiences, to try to draw attention to the gap in the law. The Bill is the result of their hard work, and each and every individual who helped this campaign to materialise into the legislation before us should feel proud.
It was back in February that I drafted the Bill, in time for International Women’s Day. As a female Member of Parliament, I felt bound to try to honour the day with a real change that would improve the lives of women across the country. It shocked me that upskirting was not already a specific crime. There was a victim from near my constituency of Bath who was just 10 years old, and it was clearer than ever that something had to be done. I spoke to victims and campaigners, notably Gina Martin, and together with her lawyer, Ryan Whelan, we put together a Bill that would ensure that taking a photo up someone’s skirt without their consent would become a specific sexual offence.
I am incredibly grateful for the work of my colleagues across the House. In particular, I would like to thank the Minister for Women, the Under-Secretary of State for the Home Department, the hon. Member for Louth and Horncastle (Victoria Atkins), as well as the Under-Secretary of State for Justice, the hon. and learned Member for South East Cambridgeshire (Lucy Frazer) and the Prime Minister herself, all of whom have been supportive throughout the Bill’s passage, from agreeing to back my original Bill to tabling another version when mine was blocked in June. Equally, I am grateful to the many Members who have supported and worked on the Bill, particularly the right hon. Member for Basingstoke (Mrs Miller) and the hon. Member for Walthamstow (Stella Creasy). To have the Bill supported by five parties and the Government—as well as my own colleagues, of course—demonstrates not only how import this issue is but what can be achieved when we work together.
There are many unnamed and unsung heroes in this place. By this I mean our staff who support us, and I want to put on record my particular thanks to my parliamentary assistant, Jess Clayton. Without her passion, her enthusiasm, her thoroughness—at one point, she knew a lot more about upskirting than I did—and her help and support, we would not be here today. So I thank Jess Clayton, my parliamentary assistant. Primarily, though, the Bill is a credit to all those who are seen as everyday ordinary women who have achieved something extraordinary. By campaigning, by pressuring those in power and by protesting—with pants!—when the campaign faced adversity, they have ensured that upskirting will become what it deserves to be: a specific sexual offence.
Sir Mike Penning
It is an honour to speak in this Third Reading debate. I pay tribute to the new Secretary of State for Justice—my neighbour and my roommate for many years—who has been involved in this issue for many weeks. I also pay tribute to the Under-Secretary of State for Justice, my hon. and learned Friend the Member for South East Cambridgeshire (Lucy Frazer). We normally get a fair bit of notice when a Bill comes forward, and we argue our points in the pre-legislative scrutiny Committee. Instead of that, this has been a fast one. It is a real privilege to have taken part in this debate as a man, a father and husband, and to try to understand and get the public to understand what has been going on out there with this voyeurism and upskirting. I pay tribute to the Secretary of State and to the Minister and her colleagues for listening to the House, because the House is supposed to replicate what is going on out there in the country.
I am sure that the hon. Member for Walthamstow (Stella Creasy) is absolutely thrilled about the review of the general legal area. It will be a real move forward. The amendments were tabled in good faith. I am not legally trained—even though I was a Justice Minister—and I am still confused about when upskirting would be legitimate. I do not understand that, but perhaps their lordships will understand it better than I do.
At the end of the day, however, this Bill started as a private Member’s Bill that would have really struggled, no matter who was backing it. It would not have received the amendments or the debates, and we certainly would not have a Law Commission review. All that would never have happened without the time here this evening to debate the legislation and take it through.
Everybody has quite rightly paid tribute to individuals—those who have tabled amendments, served on Committees and so on—but we should be paying tribute to this House, because without the various roles in this pluralistic House the democratic process would not happen. It does not happen every day, and it is rare that we are in complete agreement. I agree with the Opposition spokeswoman on many things, but it is good that she is as happy as we are for this legislation to go to the other House. It is not yet finished and there will be quite rightly be a lot of scrutiny in the other House, which is there to scrutinise and improve, not to block, and I hope that the Bill receives Royal Assent soon. We can look at the reviews that come forward, and everyone is certainly looking forward to the Law Commission review. This is a good day for democracy and a good day for this House.
Sir Christopher Chope
I say “Hear, hear” to what my right hon. Friend has just said. This is a good day for democracy. I pay tribute to the Minister for the understanding that she has demonstrated throughout the course of this debate and for her kind personal remarks about my motivation, which has been so misunderstood—deliberately by some and in ignorance by others.
Owing to the shortage of time on Report, the Minister was unable to take my intervention when she was responding to my amendment 6. However, I know that on Third Reading we discuss the content of the Bill, rather than rejected amendments, so I want to look at the part of the Bill that my amendment was intended to address.
My hon. and learned Friend slightly misrepresented what I was proposing, because, far from wanting to weaken the Bill, I was suggesting that, as presently drafted, clause 1(4) will not ensure that sufficient numbers of people who are guilty of voyeurism with the motivation of sexual gratification actually reach the sex offenders register. The Bill is currently drafted in such a way that someone can be guilty of voyeurism for the purposes of sexual gratification, but they will not go on the sex offenders register if they are under 18 unless they have been sentenced to a term of at least 12 months’ imprisonment, which is extremely unlikely and de minimis.
The more important aspect is that the Bill as currently drafted means that someone will not go on the sex offenders register even if they have committed an offence of upskirting with the motivation of sexual gratification unless the victim was under 18 or the offender has been sentenced to a term of imprisonment or detained in a hospital or made the subject of a community sentence of at least 12 months. The offence of voyeurism with the intent of sexual gratification should be linked directly with the sex offenders register, and I do not understand why the Government have been unwilling to tighten that up in the way that some of us would have wished. I hope that that will be considered in the other place.
Like my right hon. Friend the Member for Basingstoke (Mrs Miller), I hope that the other place will also look carefully at the restrictions that are currently in proposed new section 67A(1)(b) of the Sexual Offences Act 2003, which is found in clause 1(2) and relates to the necessity of proving a purpose in order to establish guilt. My hon. and learned Friend the Minister talked about mens rea—I am not sure whether, in due course, we will get on to “womens rea”—and I would like her to explain how it is that, under the current common law offence of outraging public decency, for which she says this Bill is filling a geographical gap, there is no requirement for mens rea. That common law offence is on the statute book, so if there is no requirement for mens rea in relation to that offence, why are we saying that the geographical gap in the law can be filled only by legislation that includes a requirement of mens rea and a requirement to prove the motive of sexual gratification in particular, and other motives besides?
As my right hon. Friend the Member for Basingstoke asked, which instances of voyeurism that are currently subject to the common law, and that can be prosecuted under the common law offence, will not be covered by this Bill in the geographical location that is not covered by the offence of outraging public decency? It does not seem to me that my hon. and learned Friend the Minister has addressed that conundrum, and in the absence of its having been dealt with in this House, I hope it will be dealt with in the other place.
My hon. and learned Friend has offered a review of the legislation after two years, which is obviously better than nothing, but with the greatest of respect, the best thing for her and her Department to do is to review the Bill between now and when it is debated in the other place—that will hopefully be a lot sooner than two years—so that we can try to get some consistency. As a leading counsel, she will know that, where a statutory offence is introduced, it trumps a common law offence as a matter of principle. Surely the Government’s motivation is to simplify the law in this area and to ensure that all offences of upskirting are dealt with under the Bill, rather than under the common law. It would help to spell that out, not least for the benefit of police officers and the prosecuting authorities.
If that is the intention—I drew an analogy earlier with the offence of using a mobile phone while driving compared with the offence of driving without due care and attention—there is a lot to be said for having the specific offence in the Bill cover all instances of upskirting. If and when the Minister addresses the issue, perhaps she will come up with an answer to the question asked by my right hon. Friend the Member for Basingstoke of what offences of upskirting she believes should not be subject to any criminal sanction. That is our challenge to my hon. and learned Friend the Minister.
In all the correspondence I have received, people feel that all upskirting offences should be subject to the criminal law and criminal sanctions, irrespective of motive. If there are to be offences that are not subject to criminal sanctions, we need to spell them out squarely and fairly, which has not been done so far.
I welcome the scrutiny the Bill has received so far, the way in which the Minister has accepted the spirit of new clause 1 and her willingness to look again at other issues, and I am happy to support Third Reading. But I hope that when, eventually, the Bill returns to this House, the Government will accept amendments made in the other place that make it even better.
Question put and agreed to.
Bill accordingly read the Third time and passed.
Business without Debate
(6 years, 3 months ago)
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Nurse Training
(6 years, 3 months ago)
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Richard Drax (South Dorset) (Con)
It is a great privilege to be drawn for one of these end-of-day Adjournment debates, as they give Back Benchers such as me the opportunity to debate a subject dear to their heart. Tonight’s topic is fairly dry, but it is very important. I hope the House and those watching will forgive me if I plough into a lot of detail, because the detail is important on this issue. I welcome the Minister, for whom I have a high regard, to his place. Another advantage of these debates is that the poor Minister has to sit there and listen to me, and there is nothing he can do—he cannot escape. So I hope my words will fall on receptive ears.
This debate follows a recent public meeting on Portland hospital in my constituency; the beds at the island’s much-loved community hospital have been closed, but more on that shortly. We have heard it before, and it needs to be said again: we are facing a desperate shortage of nurses. Health Education England believes there are 36,000 nursing vacancies in England, whereas the Open University says it is 38,000 and the Royal College of Nursing gives a figure of 40,000. That last figure equates to an 11% vacancy rate, with learning disability and mental health nursing the most affected, followed by community nursing. These gaps may be filled by bank or agency staff on a temporary basis, but Health Education England estimates that 1% remain permanently unfilled. The knock-on effect places nurses under “relentless pressures”, according to a report this January by the Select Committee on Health. It added that
“nurses felt their professional registrations were at risk because they were struggling to cope with demand.”
Meanwhile, any increase in nurse numbers is swallowed up by the demand for more of them. For example, although the number of new nursing positions created between 2012 and 2015 rose by 8.1%, the number of those who actually joined the profession increased by only 3.2%. What is the consequence? Well, obviously, costs rise. Temporary nursing staff are expensive, with NHS trusts paying an average of 61% more for every extra hour they worked compared with that paid for a newly qualified, full-time, registered nurse. A Freedom of Information Act request by the Open University in January revealed that, if the hours worked by temporary staff were instead covered by regular nurses, the NHS could save as much as £560 million a year. The independent health think-tank, the King’s Fund, revealed that on average NHS trusts were spending nearly 7% of their salary budgets on agency staff, with the figure rising to more than 25% in some cases. Dorset HealthCare, which covers my constituency, forecasts an overall spend of £4 million this year on agency staff alone. That is down from a staggering £12 million three years ago but still represents a significant share of the healthcare budget.
As I mentioned at the start, 18 beds were closed at Portland Community Hospital last month due to a lack of nursing staff.
Jim Shannon (Strangford) (DUP)
I thank the hon. Gentleman for giving way: I sought his permission to intervene beforehand. He is outlining the shortage of nurses in his constituency, but there are nurse shortages in many other parts of the United Kingdom, including in Northern Ireland, which has a shortfall of some 1,800 in nurse numbers. Does he agree that the training of nurses must be a priority for trusts and the Department of Health and Social Care? Part of the way to attract new nurses is to show how we value our current nurses through decent pay and working conditions. It is important to ensure that nurses are regarded highly for the work that they do—and paid accordingly.
Richard Drax
I do not disagree with anything that the hon. Gentleman has just said, and I will come on to his points a little later in my speech. Of course all nursing staff should be appreciated and paid properly. One of the issues, as I shall describe in a minute, is the work environment, which is one of the factors leading to fewer nurses—or insufficient numbers—entering the profession.
Before the intervention, I was talking about my community hospital in Portland, where almost half of all nursing positions were unfilled this summer. Agency staff, costing as much as £58 per hour—and £135 per hour on bank holidays—were still hard to find. The trust’s chief executive, Ron Shields, for whom I have enormous respect, decided he could no longer safely keep the beds open. So, despite the understandable protestations from islanders who wish to keep their frail and elderly relatives close by, the beds were migrated to a hospital in Weymouth, where the nursing staff available can be consolidated. I suspect that that situation is not uncommon across the rest of the country.
The crux of the matter is the recruitment and retention of nurses. Recruitment depends mainly on training new nurses for the future. The numbers required are traditionally set by Health Education England, which then commissions the nursing places from further education and training establishments, including colleges, universities and the Open University. Standards are set and approved by the Nursing & Midwifery Council, ensuring uniformity across providers. Those establishments, in turn, invite applications, for registered nurses, nursing associates, nursing apprenticeships and Nurse First.
The first role requires a degree, the second a prior healthcare qualification, the third is a joint initiative between individual health trusts and further education establishments and the fourth is a new initiative for high-flying graduates and follows the lines of Teach First. The three-year degree option remains the main route into nursing. While many, including me, dispute the need for a degree, the Nursing & Midwifery Council says that that is to misunderstand modern nursing. Registered nurses are now an “officer class”, according to Geraldine Walters, the NMC’s director of educational standards, with much of the work for degree-level nursing now highly technical and demanding. In some cases, registered nurse prescribers replace doctors and indeed even run their own primary care clinics in London.
So far the nursing associates programme has been a success. In December 2017, 2,000 nursing associates were in training. This year, it is hoped that figure will be 5,000, rising to 7,500 in 2019. The Nursing & Midwifery Council is clear that more recruitment and widened access into nursing training are essential, as is the diversity of training provision. The Open University, for example, provides for those who, for a variety of reasons, would not gain access to the profession via the traditional, campus-based route.
Since 2002, the Open University has offered a four-year registered nurse degree apprenticeship in addition to the straightforward apprenticeship. This is aimed specifically at existing healthcare support workers who welcome the chance to earn while they learn. So far, it has trained more than 1,000 applicants as registered nurses, with 940 more currently on the programme in England. One huge benefit to the scheme is that participating trusts seem better able to retain the nurses they have trained. Compare this with the 24% drop-out rate for student nurses on the degree course. As the NHS is the nation’s biggest contributor to the 5% apprenticeship levy, it would be odd for it not to participate.
The loss of the bursary scheme has been keenly felt, with the Royal College of Nursing saying that it is a serious own goal. It was a support package including tuition fees, a non-means-tested maintenance grant, a means-tested bursary itself, and other elements designed to help students with placement, travel and childcare costs. It was overwhelmingly popular, attracting more applicants than there were places. It was replaced by the student loan scheme, requiring students to borrow money to pay for their training.
The problem is that nursing is a vocational training and does not cater for school leavers unsuited to the profession. Significantly, following the removal of the bursary, the number of applications for nursing through UCAS has fallen by a third since March 2016. Although the Department of Health and Social Care says that there are 52,000 nurses in training—more than ever before—the number of those accepted on to courses is still down by 9.3% in England. That threatens the pipeline of new nursing talent and, at the very least, should and could have been anticipated. Much-needed mature applicants, many with care experience, are also deterred by the burden of debt and loss of earnings, and Ms Walters told me that these are exactly the people the profession needs. Mature applicants also tend to choose careers in specialist areas worst hit by the staffing crisis, such as learning disability and mental health.
New figures from UCAS show that applications for nursing degrees and from mature students are down by 33% and 42% respectively since March 2016. As the latter group are the very people who would be grateful for any support given, and probably remain in the organisation until retirement, Mr Shields suggests that trusts should provide some form of financial support in the absence of bursaries. A recent survey by the Open University showed the effect of the loss of the bursary on recruitment. Only 30% of nurses asked said they would have been willing to self-fund or partially self-fund their initial nursing education. In addition, more than half of those surveyed believed that applications would continue to fall.
Attracting nurses back into the NHS after they have left is another crucial focus for recruitment. The return to practice campaign, run by the Nursing & Midwifery Council, which provides refresher training and a re-entry route back into the NHS, has already recruited almost 2,500 former nurses and is currently registering another 1,800. However, as the Health Committee report states,
“too little attention has been given to retaining the existing nursing workforce, and more nurses are now leaving their professional register than are joining it.”
The Committee cites many causes, including workload pressures, an inability to meet patient expectations, concerns about providing adequate care, poor access to continuing professional development, poor organisational culture, pay restraint and budget cuts. The impact of Brexit was another reason, although—interestingly—briefings from the Library show that overall EU staff numbers in the NHS have, in fact, fractionally risen since the referendum, with numbers of EU nurses falling by just 0.3%.
Another issue is the current pensions arrangements. Senior and experienced staff who might want to work beyond 55 are leaving because their pensions reduce in value if they stay on. Mr Shields has recently lost two senior and valued members of his team, and believes the Government must look at this urgently.
A partial solution to increase nurse numbers is to recruit from abroad, including Commonwealth countries. However, this was, until recently, severely limited by immigration rules, which were wisely relaxed in June after an intervention by the Home Secretary.
In December 2017, Health Education England published its draft health and care workforce strategy for England to 2027. “Facing the Facts, Shaping the Future” anticipates a significant shortfall in nursing numbers due to an increase in the number of posts needed. The Health Committee has emphasised that future projections of demand for nurses should be based on demographics rather than on affordability alone. A final workforce strategy is expected from Health Education England at any minute. Perhaps the Minister can enlighten us, as it was expected, as I understand it, at the end of July.
Finally, I thank all those who work in our NHS for the wonderful job they do, not least the fantastic teams in South Dorset.
The Minister for Health (Stephen Barclay)
I pay tribute to my hon. Friend the Member for South Dorset (Richard Drax) for his assiduous campaigning on behalf of his constituents and for securing the debate. Its importance is reflected by the fact that my hon. and learned Friend the Solicitor General and the Under-Secretary of State for Wales, my hon. Friend the Member for Eastleigh (Mims Davies), were in the Chamber to listen to the points that my hon. Friend the Member for South Dorset raised.
My hon. Friend spoke passionately about the training of nurses in England and the pivotal role of training in ensuring that we have a workforce to deliver first-class services in the NHS. With a budget in which two thirds of our spend goes, quite rightly, on our workforce, the importance of that workforce is absolutely critical. Indeed, that was reflected by my right hon. Friend the Secretary of State when he set out his three key priorities for the NHS after taking over that post. He particularly emphasised the importance of the workforce within those priorities.
Nick Thomas-Symonds (Torfaen) (Lab)
I apologise, Mr Deputy Speaker, for not being here at the start of the debate. A number of constituents who have contacted me are clearly concerned about the fact that the demand for nurses is not quite being matched by recruitment at the moment, particularly in the areas of learning disability and mental health. What specifically can the Government do, in addition to what they are doing, to really focus on those two specialist areas?
Stephen Barclay
The hon. Gentleman makes a valid point. I think that we all recognise that learning disability has traditionally been one of those areas in which it is harder to recruit, compared with, for example, midwifery, where the number of applicants to training places is a lot higher. I do recognise that there is an issue.
Let me give just one example of what we are doing. When we looked at the situation in postgraduate training, particularly for more mature applicants, one of the issues was the possible impact on the area of learning disability. That was why we put in place golden hellos, with a budget of up to £10 million, to provide an incentive for applicants taking the postgraduate route into nursing to go particularly into the areas of learning disability, mental health or district nursing. That is one of the measures that we put in place to address the hon. Gentleman’s very valid point, but I am not suggesting that that alone fully deals with the issues that we need to look at, and we are paying very close attention to the situation.
I now turn to some of the specifics in the very well-put speech made by my hon. Friend the Member for South Dorset. He quite rightly highlighted the cost of agency staff within the NHS, suggesting that there could be more than half a billion pounds of savings if those staff were permanent. It is fair to say that the cost of agency staff is a key issue, and he was very fair in putting on record that Dorset HealthCare has reduced its agency staff spend over the past three years from £12 million to £4 million. That has not happened by accident. This is something that the Government have been prioritising nationally, and I pay tribute to the NHS Improvement’s work in placing a cap on agency spend in 2015, which very much addresses his point. Indeed, we have seen agency costs come down nationally by £1.2 billion since 2015, which shows the progress made under this Government.
My hon. Friend also understandably put on record his concerns about local beds moving from Portland Community Hospital to Weymouth. He mentioned the chief executive, Ron Shields. As he will be aware, Ron Shields has pointed out that twice as many patients using those Portland Community Hospital beds come from Weymouth, 6 miles away in my hon. Friend’s constituency, than from Portland. Clearly there is a benefit for patients if twice as many of those using the hospital are from Weymouth and the beds move to Weymouth. On average, four beds are taken by islanders, so it is a relatively small number, but I appreciate that it is an issue for those on the island.
However, there is a wider patient benefit, particularly for those from Weymouth. There is a benefit for all patients who move to Weymouth, because they can access a wider suite of services, including the services of a consultant with specialist expertise in elderly medicine, as part of a wider range of professional support. It is also important to emphasise to my hon. Friend’s constituents that the site is not closing; services are being reconfigured to reflect changes in the way in which healthcare is delivered. Again, that is happening nationally. As patients present with more complex needs and multiple conditions, we need to look at how we address that and how we deliver care more in the community, which is what patients want and is better for them, as well as how we better embrace technology, which is a key priority of my right hon. Friend the Secretary of State.
Richard Drax
I am listening carefully to my hon. Friend’s reply. He is absolutely right: Mr Shields instinctively would like to keep community hospitals. In rural parts of the country, and certainly in South Dorset, with an ever-increasing number of elderly people moving there, there is very much a feeling of, “Where are they all going to be?” Experience in the past has shown that the best place for an elderly person to recover is near their home in a cosy community hospital. The system works. As the beds go for the reasons I have explained—Mr Shields rightly had no choice but to do it, and it is true that the hospital will remain open—those fears will not just disappear overnight.
Stephen Barclay
My hon. Friend is right that being cared for close to home is in patients’ interests. I would actually go a step further and say that most patients want to be cared for and supported at home, if possible, because they are more likely to be mobile and to get up to make a cup of tea in their familiar surroundings. If that is not possible, they want to be in a community setting, but in that community setting it is better that they have access to a wider suite of services, including a consultant specialist, so that we can avoid the 43% of patients on average who are currently being treated in probably the most expensive part of the NHS family, the acute setting, where they are, for example, at greater risk of infection, notwithstanding the fact that since 2010, under this Government, the rate of hospital infections has halved. Even so, there can be muscle deterioration, or what one clinician called “PJ paralysis”. Staying in acute hospitals is often not in the best interests of an elderly patient, so treating them at home or in a community setting with the right support to reduce their length of stay is in their interests.
The crux of my hon. Friend’s remarks was a challenge as to what the Government are doing to tackle the need to recruit more nurses as we face a growing demographic. I remind him, as he is well aware, that the Prime Minister has committed to more funding for the NHS—a £20 billion-a-year additional funding package. There is a commitment to staff in the NHS through “Agenda for Change”, and the Government are introducing an increase in pay for nurses.
We are looking at additional pathways such as the nursing associate programme, which my hon. Friend referenced. There are 5,000 places this year and 7,500 next year. The programme enables people who perhaps thought they would not have the opportunity to be a nurse and were trapped in a particular role to have a ladder of opportunity and to move from roles such as healthcare assistant into that of nursing associate, with the option of then progressing into a nurse role.
We need to look at the nursing degree apprenticeship, and we are using the apprenticeship levy that the Government have introduced through the tireless work of the Minister for Apprenticeships and Skills. Again, that provides a great opportunity for people to progress within the NHS. We should also look at the measures the Prime Minister has taken on tier 2 visas—removing the cap—and recognise that attracting talent from overseas is an important part of addressing the concerns about recruitment raised by my hon. Friend.
We are looking at measures to give giving staff greater flexibility, such as through e-rostering, and using technology to provide greater certainty. There are also measures in relation to returning to work. Since 2014, 4,800 nurses have started on the return to practice programme to bring that talent back into the NHS. The Government are taking a whole suite of measures, because we recognise that there is a need for more nurses, exactly as my hon. Friend said.
Richard Drax
The Minister is being most kind and generous in giving way. Will the bursary return? I would have thought that the bursary was more likely to attract home-grown talent. I am not saying that nurses from abroad are a bad thing, because they are not—they all do a wonderful job—but we are always trying to train our own. If the Minister brought back the bursary, I would have thought that was more likely to attract people from this country.
Stephen Barclay
The problem with the bursary scheme was that it involved a cap on the number of places, so a massive number of people who wanted to be nurses were rejected and denied the life chance of being a nurse. The removal of the cap has allowed us to increase the number by 25%—an additional 5,000 places. That is 5,000 people who will have the opportunity to train as a nurse who did not have such an opportunity under the bursary scheme. It is also means that while they are training as a nurse, they will have a higher maintenance grant through the Student Loans Company than they did previously under the bursary system. I appreciate the concerns raised about the bursary, but this Government are all for giving people the opportunity to progress, life chances and the opportunity to increase their skills. The removal of the bursary scheme has allowed us to offer more people the opportunity to become a nurse, rather than fewer, as was the case under the bursary.
I do not want to choke off the opportunity for someone who aspires to be a nurse, but we should recognise that people want to progress at different stages of their lives. That is why the right option for some is to be a nursing associate. Some people may want to stay as a nursing associate, some may want to progress to being a nurse, and some may want to do a nursing degree apprenticeship. It is important that we offer the flexibility that people increasingly want in society so that they can pursue their careers at different rates and at different times.
The Government have taken a whole range of measures. I mentioned the “Agenda for Change” pay award, under which the pay of a healthcare assistant will go up by 26%, or nearly £4,000, over the next three years. A nurse with between three and four years’ experience will receive a 25% increase, which is more than £6,000 over three years, and a band 6 paramedic with between three and four years’ experience will have a £4,000 rise over three years. Again, as my hon. Friend mentioned, that recognises the hugely valuable contribution that staff make to the NHS.
I touched on the fact that we are looking at specific areas in which we recognise that there are issues and referred to the postgraduate golden hellos as a way of targeting recruitment. I have also said that we have lifted the cap on tier 2 visas. Under the existing arrangement, 40% of tier 2 visas were actually going to the NHS, but we have none the less lifted the cap.
I pay tribute to my hon. Friend’s campaigning on behalf of South Dorset. He is always assiduous in speaking to Ministers and raising concerns on his constituents’ behalf. We are repurposing services, but we are moving beds to where there will be better support, and these are some of the changes that will deliver an NHS fit for the future. I am happy to continue discussions with him so that we ensure the NHS continues to serve his constituents with first-class care.
Question put and agreed to.
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Parliamentary Constituencies (Amendment) Bill (Twelfth sitting)
Wednesday 5th September 2018
(6 years, 3 months ago)
Public Bill CommitteesRead Full debate Parliamentary Constituencies (Amendment) Bill 2017-19 View all Parliamentary Constituencies (Amendment) Bill 2017-19 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Notices of Amendments as at 4 July 2018 - (5 Jul 2018)
The Chair
As usual before we begin, I remind hon. Members that electronic devices should be switched off or in silent mode during the sitting. I also note, with sadness, that the husband of the Labour Whip, Colleen Fletcher, passed away last week. I am sure that, as a Committee, we all want Colleen to know that she is in our thoughts at this very difficult time.
Afzal Khan (Manchester, Gorton) (Lab)
I beg to move, That the Committee do now adjourn.
I welcome everyone back to the Committee. I hope that we have all had a good recess. We are back to Parliament and back to our regular sitting every Wednesday. Over the summer and in a number of hearings before then, we talked about how we can make things move forward. Ultimately, the key issue coming from the Government side was that they were keen to get the boundary review in, and I believe that that has happened, so perhaps the Minister can tell us now what the Government’s plan is. In what way do they want to move forward? Do they wish to have an immediate vote on the Boundary Commission’s report or not, and if, as we expect, the Government lose, what is the way forward? Perhaps there can be more clarity.
Mr Mark Harper (Forest of Dean) (Con)
It is very good to see you in the Chair after the summer recess, Ms Dorries, and to see colleagues back to discuss the Bill. I have just been reflecting—just looking at the motion to adjourn—on what we were talking about when we broke up for the summer, and it might be helpful if I update the Committee, having had a look at the information from the Boundary Commission for England. The commission set out—I think I referred to this before Parliament rose for the summer—that it planned to present its report to the Government on or around 5 September, and it confirmed that that would indeed be done today. It has made it clear that, because of what the law says, it is the Government who must lay that report before Parliament, so assuming that it delivers its report today, which it has confirmed it will, and the other boundary commissions do so, the Government will then at least be in a position to lay those reports before Parliament and to lay out an indication of the timetable.
For today’s purposes, I think it is a bit unrealistic and a bit unreasonable, given that the reports will have been received only today—they may not yet have actually been received—to expect the Minister to say anything at all today about timing; I therefore have no criticism at all of the Minister. But, clearly, after today the Government will at least be in a position to reflect on the reports and consider when to bring them forward. Whether or not the Minister sets that out in a future sitting of the Committee, I am sure that colleagues will ask the Leader of the House—I understand that the reports will be sent to her—about the timetable. That will then give us the opportunity to reflect on whether this Committee can make any further progress other than just discussing a motion to adjourn. I hope that that is helpful to the Committee.
Alex Norris (Nottingham North) (Lab/Co-op)
The right hon. Gentleman said that the report would go to the Leader of the House. My understanding is that it now goes to the Cabinet Office—that was changed last week—so it might be helpful if the Minister, in her reply, says how quickly the Cabinet Office intends to publish it or whether it intends to sit on it.
Mr Harper
Of course, as the hon. Gentleman knows, the Government are indivisible and all Ministers speak for the Government, so wherever the report ends up in Government, the Government collectively will be in a position to reflect on the contents and then set out the next steps. As I said, it would be unreasonable to expect the Minister to be able to do that today, not having had the chance to reflect on the report. She may be in a position to do so next week; I do not know. But even if she does not, the Leader of the House will no doubt be asked about the report, even if it is not specifically the Leader of the House who reflects on it. I think that I am right in saying, if it is indeed going to the Cabinet Office, that the senior Cabinet Office Minister, the Chancellor of the Duchy of Lancaster, has questions in the House next week, so it will be open to him or one of his team, in which my hon. Friend is a Minister, to answer those questions if they are put before them in the House. Therefore, in the not too distant future, we may have at least a little clarity about timing, which will then enable us to not have to keep coming here every week just to talk about the reports having been laid. We will be in more of a substantive position to go forward. I hope that is helpful to the Committee.
Christian Matheson (City of Chester) (Lab)
It is a great pleasure to see you in the chair once again, Ms Dorries. I was going to make some comments about it being a great pleasure to see members of the Committee back here, but in the light of your comments about my hon. Friend the Member for Coventry North East I will keep my comments more sombre. I was not aware that she had suffered a bereavement; I am very sorry to hear that, and I am grateful for your opening comments.
The right hon. Member for Forest of Dean was reflecting on the handing over today, and the imminent publication, of the current set of boundary proposals, based on the guidance that was given by the House and by this Government in previous years. My response—I wonder whether the Minister might consider this—is that, irrespective of what happens to that set of proposals, this Bill remains on the Order Paper. Irrespective of the fact that the House will either accept or reject the proposals that are to be handed over to the Cabinet Office today and then presented to the House at some point in the imminent future, this Bill still needs to be dealt with; it cannot simply continue to be stonewalled through the Government’s failure to introduce the appropriate money resolutions.
Can the Minister indicate in her response, if she chooses to respond to the Committee this morning, what plans the Government have to deal with this Bill? If this Parliament goes the full term, will we still be meeting here on a Wednesday morning three years hence to consider the possibility of this Bill?
Mr Harper
Of course, I also associate myself with the remarks that you made about the hon. Member for Coventry North East and her recent bereavement, Ms Dorries. When the hon. Gentleman says that things will happen “irrespective” of what the House decides about the boundaries, of course it is not irrespective. If the House decided to go with the proposals the boundary commissions are going to bring forward, the House would effectively have made a decision to proceed on that basis. No doubt, therefore, the House would be asked not to proceed with this Bill. If, of course, the House chooses not to proceed with the boundary commission proposals, we are in a different space.
On a point of fact, we would not meet for the rest of this Parliament, because, of course, private Members’ Bills lapse at the end of the Session so, thankfully, we would meet and have the pleasure of each other’s company only until the end of this Session, not for the rest of the Parliament.
Christian Matheson
The right hon. Gentleman is right on the second point; the Bill would lapse at the end of this Session, so we would have to go for only another nine months. He answered his own question in the first part of his intervention, because he talked about the fact that if the imminent set of boundary proposals go through, the House would then be asked to withdraw this Bill. That is entirely my point: the Bill would continue to stand on the Order Paper and would still need some kind of cancellation.
That is where we should be heading with these proposals. The Bill of my hon. Friend the Member for Manchester, Gorton has been read a Second time, and my advice to the Government would be simply this: move the money resolution, continue consideration in this Committee, and then kill the Bill off with a majority on Third Reading.
That would seem to be the obvious solution. If Conservative Members are confident that they have the majority—they may well have the majority to take the imminent proposals forward—they should follow the correct and democratic procedure, undertake the Committee stage and then cancel the Bill by voting against it on Third Reading. That is surely the way forward, because it would stop us having to meet every Wednesday at 10 o’clock—much as that is a great pleasure, Ms Dorries—albeit that that would only be to the end of this Session, and I am grateful to the more experienced right hon. Member for Forest of Dean, who is a former Chief Whip and obviously knows about procedure, for reminding me of that.
I am an avid reader of the Daily Mail, and there is an article in it today about this very issue. The article, which I am sure we can trust, alleges that members of the Government have written to Conservative MPs urging them to back the imminent set of proposals. Since this is absolutely germane to the procedures under consideration by the Committee, may I ask the Minister whether such a letter has indeed gone out to Conservative Members, and whether she will place a copy of that letter in the Library for us all to see?
Another allegation in the Daily Mail, and I see no reason not to trust it, is that an undertaking has been given to Conservative Members that no man will be left behind. This being the 21st century, we might also say “no woman”, or “no hon. Member” shall be left behind. In other words, some kind of grubby deal has been done to persuade Conservative Members to vote in favour of the imminent boundaries, irrespective of whether they consider it right or wrong, on the basis of how it would affect them personally. That is why I use the phrase “grubby deal”.
We cannot allow introspection and self-interest when we are considering parliamentary boundaries that are the basis of the way in which the House is elected and, therefore, the basis of our democracy and democratic procedures for the next 10 or 15 years. If the boundary procedures take as long next time as they did this time, it might even be more than 15 years. Let us hope not, because there is a consensus that parliamentary boundaries need to be reviewed. Will the Minister confirm whether a deal has been done with Conservative Members that no man will be left behind, and that self-interest should be a consideration when they are considering the imminent set of boundaries?
If that is the case, that is yet more reason why my hon. Friend’s Bill, which takes into account not self-interest but the broader interests of the United Kingdom and the basis of our democratic representation, should proceed, as opposed to grubby deals and cajoling based on self-interest, which is the allegation in the newspaper article. If the Minister confirmed or denied whether such a deal has taken place, I would be most grateful.
David Linden (Glasgow East) (SNP)
As always, it is a great pleasure to serve under your chairmanship, Ms Dorries. I place on the record my condolences to the hon. Member for Coventry North East following her husband’s sad death.
We meet here again—I think this is the 12th sitting of the Committee. I will not go over some of the lines I have used in previous sittings—much, I suspect, to the relief of Committee members—but I was struck by something that the right hon. Member for Forest of Dean said. He said it was good to come here to discuss the Bill, but the problem is that we cannot discuss the Bill; we are here to discuss a motion to sit. I am sure he did not want to inadvertently mislead the Committee. We have not been able to consider the Bill line by line or clause by clause, because the Government have not granted a money resolution.
It is, however, good to be back here today. We were promised that we would be coming back. There I was on the train down from Glasgow on Monday night, looking forward to seeing the hon. Member for Torbay and all members of the Committee this morning, and hoping that we would be able to discuss matters of more substance. We know that the report is being handed over to the Government today. We expect that some sort of statement will be made next week.
I would not go as far as saying that I am a great reader of the Daily Mail—it is not really worth the paper it is written on, in my view—but, like the hon. Member for City of Chester, I took some interest this morning, in my LexisNexis alerts, in the comments by the hon. Member for Wellingborough, who is of course a member of the Committee, saying that he would lead the charge of Tory rebels against the Bill. In a Parliament that is very divided—in terms of not only parliamentary arithmetic, but the Conservative party—that will be one of the great problems for the Government over the next couple of months.
The right hon. Member for Great Yarmouth (Brandon Lewis) has apparently issued a letter to Government Members. You may well have received it, Ms Dorries; I have not. I want to follow up on the point made by the hon. Member for City of Chester about no hon. Member being left behind. We have seen on countless occasions in this Parliament people who have marched the Conservative party up to the top of the hill, leading a rebellion, only for them to come back down the hill rather quickly.
The Chair
Order. Mr Linden, the purpose of this Committee is not to discuss the internal machinations of any political party and how it operates. If you could keep your comments to the Bill, I would be very grateful.
David Linden
I am grateful for that guidance. I do not think the Committee has enough time to talk about the internal machinations of the Conservative party—we would have to sit five or six times a week to have time to do that.
I seek assurances from the Minister that nobody has been made promises along the lines of, “Okay, we are abolishing your seat, but you can go off to the House of Lords.” That would completely contradict the idea that the reason for reducing the number of seats is to cut the cost of politics.
The Parliamentary Secretary, Cabinet Office (Chloe Smith)
I begin by adding my voice to those who have expressed their condolences to the hon. Member for Coventry North East. It must be a very difficult time for her and we all send our great sympathy.
I will put a few points on the record about the factual position of where we are this morning. As hon. Members will know, the boundary commissions for England, Wales, Scotland and Northern Ireland are submitting their final proposals for revised constituencies to Ministers today. The Ministers involved are the Minister for the Cabinet Office, the Secretary of State for Northern Ireland and the Secretary of State for Scotland—that covers the plural reports. Hon. Members may be aware that the House passed an order that transferred the function from the Leader of the House to the Minister for the Cabinet Office. I confirm that that has taken place.
The boundary commissions have, of course, drawn up their proposals in accordance with the legislation passed in the 2010-15 Parliament, to which the Committee has previously referred. The law requires that the Government must lay the four boundary commission reports before Parliament. Each will be laid as an Act Paper and must be laid when both Houses are sitting. We expect therefore that the reports will be laid before Parliament on Monday 10 September. That accommodates both the Lords and the Commons sitting and, crucially, allows for the reports to be printed—these things do not happen instantaneously. That is the explanation for the laying date of Monday. I hope that is clear to the Committee.
After the reports have been laid before Parliament, the Government will bring forward a draft Order in Council to give effect to the recommendations contained in the reports. The order will, as a matter of fact, be a complex and lengthy statutory instrument. It will take months to prepare, because it needs to transcribe the entirety of those four boundary commission reports. Needless to say, we would all wish that work to be accurate.
We have said that we will keep the private Member’s Bill promoted by the hon. Member for Manchester, Gorton under review. I understand that hon. Members in Committee have asked for the Government’s view of that Bill. As we have said before, we believe that it is right that the boundary commissions have been allowed to complete their work. Parliament agreed in the 2010-15 Parliament to that process for the review of boundaries, so that stands. I add today that it is my view that the House of Commons, sitting in the main Chamber, will play an important role in making the decisions that flow from the boundary review. It is appropriate that those decisions are considered in the main Chamber rather than in Committee. Recently, there has also been debate in the Chamber on whether the Bill should be allowed to proceed in Committee without a money resolution, and the House decided that that should not be permitted.
I hope that that is sufficient to give a clear indication of the process ahead and an explanation of which Ministers are involved, and also accommodates the question as to the Government’s intention with regard to the Bill.
Christian Matheson
The Minister said something very interesting then. Could she clarify? Forgive me, Ms Dorries, if my grasp of procedure is not as great as that of other Committee members. The Minister said the Order in Council would be complicated and take months to prepare. Does that mean that she expects a vote on the order not to take place for several months? My understanding was that, once the order is laid, there is a strict timetable for how long it would take before both Houses were expected to vote on it and that that timetable is short. Is my interpretation right? When can the Committee expect those votes to take place, based on what the Minister has just said?
Chloe Smith
I confirm that I used the word “months” and I deliberately did so. I intend to be realistic with the Committee that those instruments are complex and need to be prepared fully and correctly. I wish to be quite straight about that with the Committee.
The more specific scheduling of a vote after that point is, of course, a matter for the Whips, which I am not in a position to confirm any more specifically today. I add something I think the hon. Member for City of Chester and other Committee members might already be aware of: the governing legislation says that the orders shall be laid “as soon as may be”. That is the technical guidance the hon. Gentleman is looking for in his question.
Mr Harper
I am grateful to the Minister for clarifying that last point. I referred to that in a previous sitting. Ministers cannot unduly delay matters but they clearly have to go through the proper process and ensure that the orders are correct.
I want to ask the Minister a question about what she said on process. In a previous sitting, I brought up the subject of where these issues are debated. There are two points I want her to reflect on: one is what the hon. Member for City of Chester said about whether the House should give us permission to debate the Bill before the House has taken a decision on the boundary reports. I do not think that is sensible because the debate on the order would need to be taken into account if there was a wish to change legislation.
The second point, to which I think the Minister referred, is that these matters affect all Members of Parliament. If we were to debate the substance of the Bill, it should not be done here in Committee. As with the original legislation, it should be debated on the Floor of House in a Committee of the whole House, so that every Member of Parliament had the opportunity to consider it. The Minister has set out a sensible way to proceed.
Chloe Smith
I am grateful for my right hon. Friend’s compelling points. The first, on time, is absolutely correct. I agree that there is little point in this Committee discussing matters that are also before the main Chamber before the main Chamber does so. Secondly, on scope, I also agree, as I said earlier, that it is correct for the main Chamber to look at these matters, first, because they affect all Members and, secondly, because they are constitutionally important. It is the convention of this House that such matters are dealt with in the main Chamber.
Christian Matheson
The Minister is being generous with her time. In that case, will she undertake to speak to the Clerks to establish a procedure whereby this Bill Committee might be moved to a Committee of the whole House, with an attendant money resolution, so that we can move it forward at the time that she chooses?
Chloe Smith
No doubt, Ms Dorries, if I did not say it, you would say that it is not for me to do that. It would be for the hon. Member for Manchester, Gorton to have such a conversation.
Following your guidance, Ms Dorries, I shall refrain from commenting on the internal machinations of parties, though, if I did, no doubt questions about the unity of both the Labour party and the Scottish National party would become very clear, given what we have seen in the press over the summer—in the Daily Mail or elsewhere.
Notwithstanding that, I can confirm that the party chairman of the Conservative party has written to Conservative colleagues, as is entirely reasonable and expected, but I do not think it is appropriate to lay that correspondence in the Library, as requested by the hon. Member for City of Chester, because those are party documents. The very important documents that we are discussing are of course the boundary commission reports. I hope I have used my comments to lay out the process that the Government intend to use for those documents, which will be before us very shortly.
Mr Harper
Before the Minister sits down, may I press her on one matter that I hope will be helpful to the hon. Member for Manchester, Gorton? Picking up the point that the hon. Member for City of Chester made, it would be sensible for the hon. Member for Manchester, Gorton to consider talking to the Government about a motion to discuss the substance of the Bill on the Floor of the House. That could save us coming here every week to talk about a motion to adjourn.
However, having listened to my hon. Friend the Minister, I anticipate the Government’s response to be—I am only a Back Bencher, so I do not know—that that makes sense, but that it does not make sense for that process to start before the House has had the opportunity to consider the Order in Council. As I have said before, if we are to debate the substance of the Bill, and therefore amend the current process laid down in law, we should want to do so after listening to Members’ concerns about the existing process. To start changing the law about the process before even allowing one process to conclude under the existing legislation is to put the cart before the horse.
To avoid our having an interesting but slightly null debate every week on whether to adjourn, it may be sensible for the hon. Member for Manchester, Gorton to have that conversation. I anticipate that the Government would perhaps agree to that, but to have the process start once the House has had the opportunity to consider the boundary commissions’ proposals. That might be a constructive and sensible way forward. The Minister will no doubt reflect on my contributions and those of the hon. Gentleman, and the hon. Gentleman may well also reflect on them with purpose.
Chloe Smith
My right hon. Friend is as forensic, logical and authoritative as ever, and I have nothing further to add.
Question put and agreed to.
Westminster Hall
(6 years, 3 months ago)
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Care Homes: CCTV
(6 years, 3 months ago)
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Mr Dominic Grieve (Beaconsfield) (Con)
I beg to move,
That this House has considered CCTV for communal areas of care homes.
It is a great pleasure to move this motion under your chairmanship, Sir David. I was pleased to be successful in the ballot, as the debate gives me an opportunity to raise with the House and the Minister my concerns about what more could be done to improve safety and security in our care homes. I hope it may also provide an opportunity to have in a more informal setting a sensible discussion about how we can take this forward.
There will be no Members of Parliament, I suspect, who do not have care homes for the elderly in their constituencies; in many cases, there will also be residential homes for vulnerable and disabled adults and children. The latest statistics available show that there are over 400,000 registered care home beds in the United Kingdom. With an ageing population, that number is growing, and those in care homes for the elderly are suffering from increasingly complex forms of physical and mental disability, particularly dementia. Some will exhibit challenging and distressing forms of behaviour. Looking after them properly is a demanding task—one that requires emotional skills that are not necessarily inherent in all of us. It is estimated that there will be 1 million people with dementia in the United Kingdom by 2021, unless medical science changes dramatically in its prevention or delay.
Care homes are not hospitals. The Minister and her Department will be aware that staffing in care homes ranges from highly medically qualified staff through to staff who are unqualified but have all the right life skills, and those who have little or no vocational interest in the work, which can involve long hours at relatively low pay. We should not be surprised, therefore, that the expansion in the number of care homes has been accompanied by a constant pattern of stories concerning instances of neglect and abuse. Such instances may represent a relatively small percentage of the overall population, but they are not insignificant. They also undermine public trust to an astonishing extent. One might argue that the public’s perception is too negative, but it cannot be ignored. A 2016 poll of a public sample group showed that 52% believed that abuse of residents was a regular event in care homes.
Although that level of anxiety may be excessive, I do not think it is entirely unreasonable given the evidence from the Care Quality Commission, which reported in October 2017 that every day more than 100 vulnerable and elderly people suffered serious injuries in care homes, and that reports of serious injuries had risen 40% over five years. That may be because there is more reporting—one has to factor that in—but it is a statistic that I am sure the Minister and anybody who looks at the report is concerned about. Serious injury notifications rose from 26,779 in 2012 to 38,676 in 2016. The CQC’s chief inspector of adult care said:
“People living in care homes and their families want to be reassured that those in charge are doing everything they can to support their health and wellbeing, including making sure their services are as safe as possible.”
In furtherance of that, the CQC requires notification of serious injuries, so that people may learn from and minimise the risk of such injuries and the quality of care can be constantly improved. In bad cases, it may also bring prosecutions, with the sanction of substantial fines if negligent actions are found to have occurred, and in some cases care homes have been closed down. The Minister and her Department need to ask themselves whether all that is sufficient to meet these problems.
I hope the Minister has seen the recent academic research conducted under the aegis of University College London’s department of old age psychiatry, led by Claudia Cooper, which consisted of an extensive survey of 1,544 staff in 92 care homes. The report made quite troubling reading: while most staff reported positive care behaviours, some, under the cloak of anonymity, were perfectly prepared to report practices that were not. Over 50% reported carrying out or observing potentially abusive or neglectful behaviours at least sometimes in the previous three months that they had been working in a care home. Some abuse of residents was reported as happening sometimes in 91 out of the 92 care homes that took part in the survey. Neglect was the most frequently reported instance. Making a resident wait for care was reported in 26% of homes; avoiding a resident with challenging behaviours was reported in 25% of homes; giving a resident insufficient time for food was reported in 19% of homes, and taking insufficient care when moving a resident was reported in 11% of homes. Perhaps most worrying, physical and verbal abuse was reported in 54% of homes.
Unsurprisingly, there was a clear correlation between abusive and neglectful behaviour and homes with higher rates of staff turnover and poor morale. A long series of studies have shown that carer stress, likely to lead to neglect or abuse of residents, is associated with low job satisfaction, long hours, low pay, physical demands, staff shortages, and minimal education and training—that will not be a surprise to any of us. Interestingly, contrary to the hypothesis the research started with, numbers or ratios of staff to residents, the environmental quality of the home and the severity of the neuropsychiatric symptoms in residents were not associated with a higher incidence of abuse. A common picture emerges: the risks are the product of poor management, low levels of training and low levels of staff motivation.
That brings me to what more might be done about this and whether the use of CCTV in the common parts of care homes, both as a deterrent to abuse and an aid to improving care performance might prove to be valuable. I was first approached about this issue several years ago by my constituent, Ms Jayne Connery. Ms Connery’s mother had been a resident as a dementia sufferer in a care home just outside my constituency—a care home that I know—where she suffered abuse through rough handling, which came to light only when a whistleblower among the staff informed Ms Connery of what had occurred. On being questioned by the police, the member of staff concerned stated that her behaviour was facilitated by the absence of any realistic safety monitoring of staff behaviour. Subsequent inquiry, before Ms Connery moved her mother elsewhere, also suggested that the lack of proper systems at the home led to, for example, unauthorised strangers being invited into the home late at night by staff. When Ms Connery raised that concern with the management, she was told that there was no proof of that having happened.
As the abuse and the illicit visits by strangers to the home took place in communal areas, Ms Connery was persuaded of the desirability of making the monitoring of common parts of care homes obligatory. She was also influenced by the fact that many cases of abuse had been proved—there are stories in the newspapers several days a week—as a result of relatives setting up hidden cameras when they had strong suspicions that abuse was taking place, and then being able to find the evidence of what was going on, even though the management denied that anything untoward was occurring. That has since led Ms Connery to set up an organisation—Care Campaign for the Vulnerable—with a mission to promote and introduce CCTV in the common parts of care homes.
When Ms Connery first contacted me, I was impressed by her determination and motivation, but I have to admit—perhaps it was the lawyer in me—to not being certain that her proposal was necessarily the best way to tackle the problem. I had a lawyer’s concern about the extent to which placing CCTV cameras in care homes might infringe privacy. Several rounds of correspondence between me and the Department and the Secretary of State followed, in which I gently pressed the Department to respond to the details of Ms Connery’s campaign, but while I am not suggesting that there was a lack of interest, it is right to say that the Department’s responses have been rather non-committal.
In July last year, the then Secretary of State, my right hon. Friend the Member for South West Surrey (Mr Hunt), wrote:
“I appreciate Ms Connery’s concerns… We agree that poor care, abuse and neglect are completely unacceptable. Everyone should receive high quality care, delivered by well trained, properly managed and compassionate staff. We are committed to making this a reality.
The Department believes that the use of CCTV and other forms of covert surveillance should not be routine, but should be considered on a case by case basis. The Department does not object to the use of CCTV in individual care homes, or by the families of residents, provided it is done in consultation with and with the permission of those residents and their families.”
Of course, I agree with that point. He continued:
“We want to make sure that people are held to account for the quality of care they provide, so we are introducing measures to ensure that company directors who consent or turn a blind eye to poor care will personally be liable for prosecution. In the future, they, and the provider organisations, could face unlimited fines if found guilty.
The Care Quality Commission is the independent regulator of all health and adult care providers in England. All providers of regulated activities, including the NHS and independent providers, must register with the CQC and meet a set of requirements governing the safety and quality of services. These requirements include areas such as cleanliness and infection control, the management of medicines, safety, the availability and suitability of equipment, respecting and involving service users and ensuring that there are sufficient numbers of suitably qualified skilled and experienced people employed by providers.”
The rest of the letter dealt with trying to raise staffing standards through the introduction of the care certificate for employees in the sector.
No one reading that letter could have any reason to disagree with its sentiments—I certainly do not—but it seems to miss the point that Ms Connery had been pressing, that CCTV in common parts could be a useful tool to achieve several important ends. First, it offers reassurance to residents and their families that any incidents that take place in communal areas can be recorded, and that if something occurs in that setting it will be possible to ascertain the facts. It is worth bearing in mind that in the last five years, the CQC has been coping with more than 100,000 allegations of abuse or instances of negligence leading to safeguarding referrals, at a significant cost in terms of manpower. In many cases, the inevitable outcome is that the causes of an incident remain unresolved, which is as unsatisfactory for the provision of care as it may be wholly unfair to the staff involved. Someone caring for an elderly and vulnerable person, who may have brittle bones, for example, cannot completely remove the risk of accidents if they are also trying to involve that person more generally in the life of the home. As I sometimes point out to people, there may well from time to time be accidents that are nobody’s fault, even if one wishes to try to learn from what happened.
Secondly, the presence of CCTV in common parts will act as a deterrent to people who might enter the care home for an unlawful and unauthorised purpose, which regrettably is not unknown. Some years ago in my constituency, I had an appalling case of a serious sexual assault on a disabled resident by a stranger who had gained access to a care home for the severely disabled as an apparent visitor. Nobody had challenged them.
Thirdly, the correct use of CCTV provides an opportunity for managers in care homes to keep problems under review and to help staff to learn from errors in delivering care that may have occurred in the course of their work. CCTV is sometimes seen as a spy, but that is not the intention here. The point is not just to catch people who may be doing something wrong, but to have systems in place that enable standards to be improved, which can facilitate the improvements that the CQC and the Secretary of State seek, as he set out in his letter.
Before being elected to the House, I was a lawyer practising mainly in the wide-ranging area of health and safety law. My experience was that people have to talk the talk and walk the walk, so I wanted examples, rather than just ideas, of the use of CCTV being beneficial and bringing about innovatory change. What swayed my opinion more than anything was the great deal of evidence that Ms Connery provided that responsible care homes are increasingly installing CCTV and are convinced of its usefulness. I have two examples that may be helpful.
Zest Care Homes, based at Yarm in Cleveland, is a long-established care home provider with several care homes. It was concerned that, despite best intentions and robust operational policies and auditing of services, it still had poor performance issues. It concluded that the principal problem was that, regardless of the training and induction of staff, there was a trend by staff to take shortcuts when carrying out their work and assisting residents. Accordingly, Zest Care Homes consulted all the relevant stakeholders and moved to an overt CCTV consent-based system that, interestingly, covered not only communal areas but, by agreement, bedrooms as well. I should add that it met the European convention on human rights standards of proportionality on privacy. Footage was viewed by professionally trained monitors from a separate company, which had been set up for that purpose and acted independently of the parent company providing the care, and which had a requirement to produce monthly reports based on two hours of sampling per day. The footage was not continuous but could be triggered by certain events, such as people going in and out of a room, moving around, or delivering certain sorts of care.
After installation, Zest Care Homes stated:
“We have noted very material culture changes such as how staff now position themselves when talking to residents, the practise of using mobile phones when talking to residents, the presentation of food etc, to more major issues such as the delivery of personal care, management of incontinence and manual handling consistency. Very significant events such as resident on resident violence, staff attempting to sleep overnight at times, drug near misses as staff are distracted when administering medications, staff rudeness, family abuse of residents etc. All have been noted because of the CP system and addressed immediately without any delay.
One real positive is the reduction of unexplained injury events and a reduction in unexplained safeguarded referrals. The CP system has assisted with preventing accidents as focussed training followed monitor notification of repetitive poor or casual practices. Families are very positive about system use...It is our view that whilst the regulator (CQC) operates under a very robust framework and has a challenging inspection regime, its findings are nevertheless a ‘snapshot’ in time. We believe that daily monitoring is much more effective and focus on care practises and the actual delivery of care should have priority over the presentation of care documentation as to whether care quality at any site is of good enough standard.
Providers have an interest in knowing that information. CP acts as a critical friend...shortcomings are no longer ‘perceived’ as images either confirm issues indeed are present, or they are not.”
Other reputable providers, such as the Priory Group, have adopted similar independent monitoring systems.
The second provider that I will use as an example is the Marbrook Centre in Cambridgeshire. It is slightly different, because it is a specialist provider of neurological care and rehabilitation. It stresses an awareness that CCTV can have drawbacks, as it can lead to staff watching screens rather than interacting with those for whom they care. Of course, if we go back to Zest for a moment, the whole point is that it is not the staff who are monitoring the screens; that is done somewhere else, so it is not such a distraction. However, the Marbrook Centre sees that drawback as wholly outweighed by the benefits that I have already cited. It says,
“the senior management team can access it randomly to watch snapshots of life at the home. This probably amounts to less than an hour of live footage a week being seen. As part of our audit and quality procedures we do randomly select perhaps three or four different shifts a month to look at retrospectively. We look at how our staff are interacting with residents and if staff at night are fully awake and attentive?...It is also used without hesitation when we have a suspected incident, accident or complaint which needs further investigation.”
I hope these examples will help the Minister understand why I think CCTV should be promoted in care homes.
Beyond that, the question arises whether, at some point in the future, CCTV should be made compulsory in the common parts of homes to which residents have access. From a legal point of view, this raises no privacy issues of any complexity, because many common parts of buildings have CCTV, including parts of the Houses of Parliament. As long as people are notified of the CCTV, there is not an issue, and it would provide a powerful tool for helping to prevent abuse and improve standards. It is clear that care homes with high standards are already adopting this form of technology widely.
I am aware that the Government will be concerned that any such change would impose a new cost burden on care homes, and I recognise that that is an important issue. As many of us know, care homes operate on very low profit margins, particularly in areas of high cost, and some are finding it increasingly difficult to provide the service—certainly at the rate that local authorities are able to pay, unless they can compensate for it by getting in privately paying and privately funded residents. I assure the Minister that I am mindful of the problems that she grapples with when she sits down at her desk in the morning. These are real issues that cannot be readily solved.
None the less, I believe that, in view of the likely cost of the technology and its widespread availability, providing an adequate lead-in time ought to enable the cost to be absorbed without a crisis. Even if the Government cannot move to that point, active encouragement and using Government systems to point out the widely evident benefits of using a CCTV system would be a powerful tool that would help the Government to improve good-quality care of the elderly and vulnerable, and ensure it is not inhibited by a failure to implement good practice. History shows that people may not be persuaded to move forward without being given a bit of a shove.
I am conscious that I have taken up the 25 minutes that I said I would speak for, Sir David, and I try to keep within my time limits, although I think I may be 11 seconds over. I look forward to hearing the Minister’s response in due course, having heard from other hon. Members present, and I very much hope that she will be in a position to provide a positive message to those who are taking an active interest in this matter.
Emma Hardy (Kingston upon Hull West and Hessle) (Lab)
I just want to add a few comments to the excellent speech given by the right hon. and learned Member for Beaconsfield (Mr Grieve) and to offer him my support. Similar to the story that he has just related, a constituent of mine, Tony Stowell, came to see me after having problems with his mother, who had fallen in a care home and broken her hip. Since then, he has been incredibly concerned.
We talk a lot about CCTV offering reassurance. At one point in my previous life, I worked in a children’s nursery. One thing the nursery offered was CCTV cameras in all of the different areas. Anyone who has ever dropped a small child off at nursery or on the first day back at school knows that their child is in floods of tears when they are about to leave them. They go home feeling dreadful that they have abandoned their child and feeling that their child is going to cry all day, only to ring the school or the nursery and hear them say, “Oh, your child had a wonderful time. They stopped crying the minute you left.” By offering CCTV, the nursery was able to say to parents, “Sit down and have a look at your child. The minute you walked out of the door, they wiped their eyes and were off playing and having a great time.” It gave people peace of mind and reassurance, which is what is missing from care homes.
As the right hon. and learned Gentleman said, it is not that we think everybody in care homes is going to be abusing the elderly or treating them badly, but if a person has an elderly relative with dementia who cannot clearly communicate how they are feeling or what is happening to them, having that reassurance—being able to look at footage and think, “Actually, they are okay. They are not really unhappy”—offers that desperately needed peace of mind.
I have written to the Minister and would like clarification on the reply I received. It said:
“As the majority of care homes are in the independent sector, the Department of Health and Social Care does not have powers to enforce the installation of CCTV. This would require a change in the law, which falls within the remit of the Ministry of Justice.”
I am a bit confused as to where this issue lies: does it lie with both Departments or with one of them? Clarity on that would be helpful.
More than 20,000 care homes care for more than 300,000 people. Two thirds of the people in our care homes are in their 80s and only 1% of our care homes are rated outstanding. Surely Members of Parliament and the Government should do everything possible to raise standards. I believe that offering CCTV would not only help to raise standards in care homes but offer reassurance, and I look forward to the Minister’s reply.
Glyn Davies (Montgomeryshire) (Con)
I apologise that I will not be able to stay for the winding-up speeches, much as I would like to. I will have to depend on tomorrow’s Hansard to read the Minister’s response, which I am very much looking forward to. I have another meeting that I simply cannot avoid.
In the past, I spent some time working with a care home in an advisory capacity, helping them to deliver the effective and safe service that we all want. I was particularly involved with the development of an advocacy service for residents of care homes, and also a lay visitor scheme, which is hugely important. We are all aiming for the same result, as is today’s debate. We all want compassionate and effective care in our residential care homes that develops confidence for the people in them as well as a safe environment.
I congratulate my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) not only on securing this debate but on his comprehensive speech. I unashamedly inform him that I shall take some of what he has said today and claim it as my own in future speeches. He put a very comprehensive case and I agree with all of it, so there is no point in my repeating any of it except to say how much I agree.
I have two issues in mind. One is CCTV in communal areas, for which the case is strong, particularly in terms of protection and the promotion of welfare for residents, and also for issues such as the identification of personal property, which is often helped by CCTV. It promotes a general air of confidence. However, everyone must sign up to it. That is key. Everybody operating under CCTV knows perfectly well that it is there, which in itself develops a much higher standard and awareness of the way in which everyone should operate. There is a danger of a loss of trust if everybody is not aware. An absence of trust and a feeling that there is surveillance that people do not know about can cause great damage.
Cost is a concern. In my constituency of Montgomeryshire, there is huge pressure on residential care homes, although the adoption of the minimum wage has made a big difference. Quite a few care homes will not survive because, although the local authority pays a certain rate, access to private care is not how it would be in a more affluent part of the country, so there is a big dependence on local authority provision. However, the fees simply do not cover the cost. We must be aware of that so that we do not impose anything on care homes that reduces the number of care places available.
The issue of surveillance in private rooms is much more complex and controversial, but the reality is that it will happen more and more. There have been high-profile cases in which individual families have undertaken their own surveillance. I think that will increase because there have been high-profile incidents that highlighted poor care—others will undertake their own surveillance. The issue is how we manage it and the circumstances in which we consider it appropriate in private rooms. My instinct has always been that there should never be surveillance unless everybody within its view knows about it. That would lead to confidence and not cause damage.
Everybody wants safe and effective care in our care homes. I share the view of my right hon. and learned Friend the Member for Beaconsfield that introducing CCTV as a compulsory measure in all care homes at some stage would be a positive step in helping to achieve that.
Patricia Gibson (North Ayrshire and Arran) (SNP)
I thank the right hon. and learned Member for Beaconsfield (Mr Grieve) for securing this debate and for the considered way in which he set out his powerful case. Increasingly in recent years allegations of abuse in care homes have been the subject of television documentaries and newspaper reports, as the right hon. and learned Gentleman pointed out. They have even given rise to parliamentary petitions.
We heard today the case for the installation of CCTV cameras in communal areas in care homes. It is easy to see how cameras could help to prevent the abuse of vulnerable and elderly people. We have certainly seen in the past how hidden surveillance has exposed disturbing and serious abuse of very vulnerable people, much of it long standing, such as in, to name one example, the Winterbourne View hospital, as the hon. Member for Montgomeryshire (Glyn Davies) pointed out. As the hon. Member for Kingston upon Hull West and Hessle (Emma Hardy) said, we do not want to let the shocking examples of poor care that have been publicised to allow us to forget that some care homes, perhaps the vast majority, provide excellent care to some of the most vulnerable members of our communities across the United Kingdom.
Some of the information set out for us today by the right hon. and learned Member for Beaconsfield is truly shocking, but we can all agree that there is a balance to be struck between protecting the vulnerable in care homes and protecting their privacy. There can be no doubt that CCTV can be helpful in some circumstances. The Mental Welfare Commission for Scotland stated:
“There are serious human rights considerations in relation to the use of hidden surveillance, but we do not argue that it should never happen.”
The right hon. and learned Gentleman pointed out that if CCTV is to be introduced purely in communal areas, the arguments about invasion of privacy become less urgent. If those receiving care have the capacity to consent to being filmed, they must also have the right to refuse, as suggested by the hon. Member for Montgomeryshire. No one should be placed under surveillance without their agreement, but if there is concern that a vulnerable person is being mistreated or abused in some way, the local authority can consider other adult protection measures.
Regardless of how well intentioned, there can be no denying that the use of CCTV inevitably intrudes upon a person’s privacy, even if it is restricted to communal areas. We also have to be mindful that care homes are people’s homes, and people need to feel safe, secure and supported in their home.
As for the suggestion that CCTV cameras in communal areas should become the norm, which might well be the case, I cannot help feeling that it is a sad indictment of our society when, across the board, staff as well as residents are subjected to monitoring. Some might say that that would afford additional protection to staff as they go about their duties as well as to residents, but it would be sad if such monitoring were to become the norm, although I accept the argument from the hon. Member for Kingston upon Hull West and Hessle about reassuring relatives who are concerned about their elderly loved one.
The reason we are debating this subject is the alarming cases of abuse of vulnerable and elderly people that have been exposed through secret filming. We must take those examples extremely seriously, but it is important that we do not allow ourselves to believe that they provide a template for what happens everywhere and for how all staff behave. My mother-in-law, a former Glasgow City councillor, has dementia and is cared for in an excellent care home—Haylie House in Largs. Its first-class staff are cheerful and good-natured, and the care provided is second to none. When we put our vulnerable and elderly relatives into care homes, often with great reluctance, we need to be able to trust the staff. That is an essential part of the care process. We cannot allow the reports of abuse to allow us to forget the good work in the vast majority of our care homes.
It would be wise at this juncture to take cognisance of the view of Age UK that we must take care that CCTV might provide false assurances in addition to potentially compromising the privacy of residents in care homes. The chief executive of Age UK, Caroline Abrahams, has warned:
“With all the media stories about abuse and neglect in care homes it can be tempting to see installing security cameras as ‘the answer’, but Age UK very much doubts this is the case.”
Mr Grieve
I entirely endorse that. CCTV cannot be a substitute for good quality care. The examples I gave showed that, in areas where there is an attempt at delivering really good quality care, CCTV has served to improve it, but clearly if a care home simply relied on CCTV as a failsafe, that might be even worse than the current position.
Patricia Gibson
I absolutely agree. I will move on to address the right hon. and learned Gentleman’s point about high-quality care, but will first finish the point I was making.
Cameras offer some protection to vulnerable and elderly people in care homes—I do not think anyone would dispute that—but they cannot be everywhere on the premises, so their impact will necessarily be limited. It is important that relatives of elderly residents and those who work in care homes and seek to improve them do not see CCTV as promising more protection than it can deliver in reality.
It is important to remember that abuse and neglect can be subtle and disguised. Cameras might pick up such subtlety and studied disguise but they might not. To go back to the point I made earlier about trust between residents, staff and the families of residents, if care homes do not operate on trust they are truly lost. It is essential that care homes command the trust of residents and their families, whether or not cameras are in place.
The hon. Member for Kingston upon Hull West and Hessle talked about raising the standards in care homes. We can all agree on that and it is why we are here. Returning to the point that the right hon. and learned Member for Beaconsfield made, we all understand that care homes find it increasingly difficult to recruit and retain suitable staff. We need more effort and more support for care homes, because that is the most positive way forward.
The sad fact is that our elderly relatives are in care homes because they need good-quality and very patient support in their senior years, but too often those providing that support are underpaid and undervalued by wider society. Those who do the extremely challenging job of looking after our elderly relatives need more recognition for the demanding and challenging work they do. I am sure we all agree on that. The right hon. and learned Gentleman set out the challenges in staff morale, which demand our attention.
We agree that caring for people with dementia every single day can be extremely challenging, and those who do it well deserve to be applauded. CCTV may well have a place, but it is not and cannot be—I do not think anybody is suggesting it is—the answer to the important question of how we better support and care for our older people in their twilight years, with the best possible and most highly motivated support staff, who are suitably and appropriately valued by society. If we can achieve that, we will have done a huge amount to improve our care homes and the care experience of older people.
Julie Cooper (Burnley) (Lab)
It is a pleasure to serve under your chairmanship, Sir David. I am grateful for the opportunity to respond to the debate, and to the right hon. and learned Member for Beaconsfield (Mr Grieve) for bringing this important subject before the House. I feel strongly about it, and I bring some personal experience over many years of sourcing care for grandparents and, most recently, for my own mother. I have seen examples of poor care in nursing homes and care homes, as well as examples of absolutely fantastic care in both. I pay tribute to the carers who have the skills, patience and dedication to do what must be one of the most important jobs, and probably the least valued by our society. We all should take note of that and value such people.
It should be a priority for any civilised nation to promote and ensure the safety and wellbeing of its citizens, and the provision of high-quality care in a safe environment for elderly and vulnerable people should be a given, and something that we can take for granted. Elderly people are the group I have the most experience with in this area, but I expect that it is pertinent to people in other groups who find that they need to move into a care home.
When someone is no longer able to live independently in their own home it is a big deal—for the person themselves and for their close family. Admitting that they, or a family member, cannot cope independently, giving up their home and moving away from familiar surroundings can be extremely traumatic and quite frightening. Having made the decision, everyone involved needs to be reassured that the care home is a safe and genuinely caring facility, adequately staffed by well-qualified, well-supported and well-supervised carers and nurses.
Sadly, that is not always the case, and there are well-publicised examples of poor care, neglect and, in some instances, wilful abuse. It is a shocking state of affairs that is totally unacceptable. There is, rightly and properly, a lot of agreement in today’s debate. We all agree that a single case of abuse or neglect is one too many, and I base all my comments on that point of view.
The combined findings of Care Quality Commission inspections and staff surveys seem to indicate that poor standards of care, delayed care and neglect are widespread, while instances of deliberate abuse are relatively rare. I have seen many cases of neglect and poor levels of care. I have not seen any outright, wilful abuse, but that is not to take away from the fact that it exists. The question for us today is whether the installation of CCTV in communal areas of care homes would eradicate such problems or lead to improvements. The right hon. and learned Member for Beaconsfield and other Members made a powerful case for the contribution that CCTV could make in some instances, but it is perhaps a bit of a search for a quick fix. This is a complex area with no quick fixes, and false reassurances, as has been mentioned, are a worry.
We are talking about introducing CCTV in communal areas, but the majority of care is delivered in private bedrooms, bathrooms and treatment rooms. Introducing overt surveillance into communal areas would only shift any poor practice to areas not covered by cameras. We therefore run the risk, as I said a moment ago, of providing false reassurances to family members.
More broadly, we all live in a world where CCTV is a part of everyday life. In every shop and on every high street, where we go and what we do is recorded—except, that is, in our homes. When we sit down in our lounge, family communal areas or dining room we have privacy. Is anyone suggesting that the routine recording of elderly residents while they sit in their lounge or eat in the dining room should be a requirement in every home in the land? Who among us would like to be filmed while we snooze in front of the TV or sit down to eat? If we are talking about the dignity of the residents in such homes, is that really what we want to see routinely?
Mr Grieve
I appreciate the hon. Lady’s point. Equally, perhaps one has to bear in mind that if we move out of the total privacy of a room in which we sit alone, we are observed by other people. That is part of our lives. There is a strange irony in the fact that we are perfectly happy to say, “This is wonderful—the meal time is so well supervised by staff,” but if it is supervised remotely through CCTV, or if there is CCTV available to check whether something has gone wrong, we are troubled by it.
Of course, so much depends on the absolute effectiveness of maintaining the necessary safeguard that material is kept within private circulation. However, provided we have that, I confess that I find it slightly difficult to differentiate between a camera providing some degree of assurance that everything is all right and a person physically sitting there, to which nobody would have any objection.
Julie Cooper
I hear what the right hon and learned Gentleman says. There are no right or wrong answers here; it is about creating a balance. I would point out that not all residents in care homes have dementia. Many of them do not and have a very strong awareness of their environment. They would see this as an infringement of their dignity—a dignity that they are fighting to hold on to for the remainder of their life. I take the point, but I do not think the issue is straightforward.
A point was made about CCTV in this building. We accept it, but we do not live here. We accept it in our lives, but if we are to make care homes a genuine substitute home for vulnerable people, we have to bear such points in mind. CCTV may have a role in specific circumstances, for example where a concern has been identified, but it ought to be a last resort, implemented only with the knowledge and full consent of residents, families, staff and professional representatives, because this affects everybody, and observing would definitely affect the relationships in the home.
Acknowledging that it is unlikely that incidents of abuse and poor standards of care would be prevented by installing CCTV cameras in communal areas does not mean that serious problems can be ignored. Abuse of people in care homes, and/or poor care, shames us all. ln many ways, the issue of CCTV is more of a red herring than a solution. I accept that it may have a role in some areas, and there may be justification for using it in some limited ways. However, there is widespread agreement from a range of well-respected organisations that the blanket imposition of CCTV is not the answer.
As the hon. Member for North Ayrshire and Arran (Patricia Gibson) has pointed out, Caroline Abrahams from Age UK said that it is more important
“to raise the quality of care in care homes across the board and ensure that all older people, their families and staff are involved...and are able to raise any concerns, confident that their feedback will be acted on.”
That is not always the case at the moment.
Dr Peter Carter, former chief executive of the Royal College of Nursing has said that the answer to better care is better recruitment, training and managerial supervision of staff; that would be a better way to deal with this. I agree.
The CQC said:
“We would be concerned by an over-reliance on surveillance to deliver key elements of care, and it can never be a substitute for trained and well supported staff.”
I agree with that too, and I know that other hon. Members do too—there is so much agreement in this place on this subject, which is quite unusual. I am sure that the right hon. and learned Member for Beaconsfield has initiated this debate in good faith, but if we are really serious about ensuring the highest standards of care in care homes, which I believe he and other Members here are, he will join me in urging the Minister to consider reversing some of the funding cuts to social care.
It is a sad fact, but a fact nevertheless, that in response to Government funding cuts local authorities have reduced spending on social care by £6.3 billion since 2010. The cuts are now having a huge impact on care quality—a quarter of all adult care services have the lowest safety ratings, 30% of nursing homes in England require improvement or are inadequate and a growing number of private care homes are handing back their contracts, citing insufficient funds. Many more are teetering on the brink of financial collapse, faced with no alternative but to reduce staff numbers and, inevitably, standards of care.
We have not talked much about the funding implications of CCTV. Given that the sector is short of funds to start with, I am not sure who exactly would pay for CCTV installation and the ongoing monitoring, if it were to become mandatory; if it were to have any value at all, that would be expensive.
Before this debate, the Department of Health and Social Care said:
“Closed circuit television should not be...a substitute for proper recruitment procedures, training, management and support of care staff, or for ensuring that numbers of staff on duty are sufficient”.
I agree, but proper recruitment, training and adequate numbers of care staff have an associated cost, which it appears the Government are not prepared to meet. Quality care for the elderly and vulnerable cannot be delivered on a shoestring by poorly paid and overstretched carers. Our old people, our parents and grandparents deserve better. I look to the Minister to bring forward the promised Green Paper, to embrace the points made in this debate and to ensure that we have the kind of social care and care for our elderly that we can all be proud of.
The Minister for Care (Caroline Dinenage)
It is a pleasure to serve under your chairmanship, Sir David. I congratulate my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) on securing the debate. I welcome his well-thought-out and measured contribution to this incredibly important agenda. At its heart is a focus on our shared interest in safety and quality of care for those in residential settings. I thank other hon. Members who have contributed. Consensus has broken out widely in the Chamber, which is not entirely usual and is to be warmly welcomed.
I begin as other hon. Members have by paying tribute to those who work in adult social care. They do a brilliant job often in quite difficult and demanding circumstances, and sometimes with very frail and vulnerable people. Social care professionals work with great compassion and resilience and the vast majority of them treat those they care for with enormous dignity and respect.
Central to the effectiveness of care and support services that enable living well is the quality of those services. Everybody wants the very best care for their loved ones, but we do not know for sure what takes place when we leave a residential care home, which is understandably a concern to many people.
I listened to my right hon. and learned Friend’s arguments with interest. He makes them in his customary reasonable, compelling and persuasive manner. I agree that there are cases in which CCTV could be seen to be of benefit. The question we need to answer today is whether, in the Government’s pursuit of quality care, mandatory CCTV cameras are the answer.
Currently, there is no obligation on care homes to install CCTV cameras, but are they able to provide reassurance that care assistants and other staff are looking after our relatives in the way that we would wish? I do not think there is a single answer to making sure that abuse is eliminated and care is delivered in the best way possible. Some providers may reap significant benefits from using surveillance. Certainly, campaigners such as my right hon. and learned Friend’s constituent, Ms Connery, have collected great examples of it working very well to safeguard vulnerable residents. I can see how surveillance systems can be used as part of the appropriate deprivation of an individual’s liberty. With appropriate safeguarding, CCTV could be used to monitor and identify whether a person living with dementia is attempting to leave a care home, for example.
Mr Grieve
I am grateful for the spirit in which the Minister is responding to the debate. As we have examples of what appears to be good practice—it is possible that one is being misled by the examples, which we have to bear in mind—I would be interested to know whether the Government, as well as the CQC, are assessing those companies that are voluntarily using CCTV in common parts and their results so that we can be better informed as to its success or otherwise.
Caroline Dinenage
We have not done that to date, but we would be very happy to see the valuable evidence that my right hon. and learned Friend says people have been collecting.
The hon. Members for Burnley (Julie Cooper) and for North Ayrshire and Arran (Patricia Gibson) raised the concern that CCTV has the potential to be intrusive in people’s lives, not only for those who live in such homes but for their friends and families, the staff and people who come to visit. As they both said probably more articulately than I can, we have to keep at the back of our mind at all times that these are people’s homes. Given the huge rise in the amount of care that is delivered in individual homes rather than in residential settings, there is also the concerning question of whether there would be pressure to install cameras in the homes of people who receive domiciliary care if CCTV is made compulsory for care homes, which would be a step into a whole new world.
I move on to this part of my speech with some trepidation, given that I am speaking to a former Attorney General. There are complications with the legal aspects of his proposal. I am not a learned Member of Parliament by any stretch of the imagination, but there could be an administrative and financial burden on care homes, many of which are small businesses with very few administrative staff. In 2014, the Care Quality Commission published “Using Surveillance: Information for providers of health and social care on using surveillance to monitor services”. It was aimed at the public, inspectors and providers who are considering or already using surveillance systems. That guidance will be refreshed later this year.
The legal framework requires that any use of surveillance in care services must be lawful, fair and proportionate, and for purposes that support the delivery of safe, effective, compassionate and high-quality care. Providers considering using surveillance, particularly covert surveillance, must bear in mind the potential impact on the bond of trust with people who use their service.
Mr Grieve
I have to make it absolutely clear that I was not suggesting covert surveillance. I have been quite plain about this. As I understand it, the homes that have introduced it have done so overtly; the common parts are covered by CCTV and anybody who comes into the home understands that. I am not recommending a form of covert surveillance. I can see how that could be open to considerable abuse and lots of difficulties, and I strongly urge the Minister and her Department to steer well clear of that legal minefield.
Caroline Dinenage
I thank my right hon. and learned Friend for that legal advice, which would probably have cost me a fortune in the outside world. I am grateful for that clarification. The provider should consult those affected on the use of surveillance wherever it is possible to do so. It would have to meet the cost not simply of the equipment and the monitoring of it if it is done by a third party, but of the training, staff time, legal advice and consultation activity. There is no point in having such a system unless it is monitored and routinely checked.
The hon. Member for Kingston upon Hull West and Hessle (Emma Hardy) spoke compellingly about early years settings. I have experience of that, not just as the former early years Minister but as a mother who has been in exactly the situation that she mentioned. It certainly rings bells with me—leaving children screaming their heads off, and five minutes later being told they are all perfectly fine. As she says, that can be very comforting for parents. CCTV is not compulsory in early years settings either, but there are many similarities between the two sectors: they are both predominantly run by private companies. I hope that early years and residential care businesses see the benefits.
I have an apology to make to the hon. Lady. She asked about the letter that we sent, which suggested it might have to be up to the Ministry of Justice to change the law. That was incorrect, and we have subsequently sent her a letter clarifying that. I apologise.
Ultimately, CCTV can have benefits, but it simply cannot be a substitute for well-supported, well-trained staff and excellent management. We have made it clear in statutory guidance to support the implementation of the Care Act 2014 that we expect local authorities to ensure
“the services they commission are safe, effective and of high quality”.
We also expect those providing the service, local authorities and the Care Quality Commission to take swift action where anyone alleges poor care, neglect or abuse. We have backed that up with more than £9 billion of investment in the sector in the past three years,[Official Report, 11 October 2018, Vol. 647, c. 4MC.] which equates to an 8% increase in funding. That incredible amount of money highlights the challenge we face in the sector.
Julie Cooper
Does the Minister not accept that, as a result of cuts to local authority funding, there has been a reduction equivalent to £6.3 billion of spending in the sector?
Caroline Dinenage
I accept that there were cuts to local government funding during the time of the recession that we all endured. That was incredibly regrettable, but was one of those very difficult decisions that Governments have to take.[Official Report, 11 October 2018, Vol. 647, c. 4MC.] In the last three years, we have increased funding by £9.4 billion, which equates to an 8% increase. It demonstrates the challenge of this ageing population—people are living longer with much more complex needs, and many vulnerable people need an enormous amount of support and care. It is an enormous amount of money, and yet we still see the sector facing great challenges and stress, which is why we have a Green Paper coming out later this year. We hope it will help address the sustainability of the adult social care sector. Successive Governments have wrestled with this incredibly challenging issue, and we need to find a long-term solution.
We expect serious allegations of abuse and neglect to be thoroughly investigated and prosecutions to be brought where that is warranted. The abuse of people who depend on care services is completely unacceptable and we are determined to stamp it out. That is why we introduced the new wilful neglect offence, which came into force in April 2015. The hon. Member for North Ayrshire and Arran said that we must get the very best quality of staff into this demanding and challenging profession. I could not agree with her more. We have made changes to help services recruit people with the right values and skills, and introduced a care certificate for frontline staff to ensure older and vulnerable people receive the high-quality care they deserve.
The Department for Health and Social Care has commissioned and funded Skills for Health, Skills for Care and Health Education England to develop a dementia core skills education and training framework, which is very important to me. There is also a fit-and-proper-person test to hold directors to account for care. Let us not forget that 82% of adult social care providers are rated as good or outstanding as of August 2018, according the Care Quality Commission. That is a testament to the many hundreds of thousands of hard-working and committed professionals working in care, to whom we owe a debt of gratitude. Surely the best way of building on that is not to say to them, “We’re watching you in case you do the job wrong,” but rather to say, “How can we support you to do the job better? How can we invest in skills training, continuous professional development, great management and more staff on better wages?”
Mr Grieve
I come back to my point: in the course of their life, a person might carry out a job under supervision—I used to as a pupil barrister—when somebody might watch what they are doing and tell them what they are doing wrong. One of the difficulties in some care homes is that that is not necessarily happening. I urge the Minister simply to factor in that the chain care homes that I cited were using CCTV not to pick up, punish and sack staff, but to improve the quality of the care. That is one of the things that impressed me the most about it.
Caroline Dinenage
My right. hon and learned Friend has made that point incredibly powerfully and I do not dispute for one second that there is value in that form of monitoring. Certain responsible employers might see that value and benefit from it. I still do not think that there is any substitute whatever for top-quality management carrying out that sort of monitoring and surveillance themselves, when done properly.
The Care Act 2014 places a duty on local authorities to promote their local market to ensure that all service users have a choice of high-quality services available. In 2015-16, nearly two thirds of service users reported that they were extremely or very satisfied with their care and support, which was consistent with the previous year and is testament to the work carried out at local level to deliver quality services. We cannot rest on our laurels: if two thirds of service users reported that they were extremely or very satisfied, a third did not. That is why the Department for Health and Social Care is working with the adult social care sector to implement Quality Matters, a shared commitment to take action to achieve high-quality adult social care for service users, families, carers and everyone working in the sector.
The compulsory use of CCTV cameras in the communal areas of care homes would require a change in the law, and it is not clear that that blanket approach would be proportionate or respect the needs and wishes of everyone who lives in a care home. There are undoubtedly cases in which better monitoring of staff would produce benefits, but without fuller evidence, the decision to install CCTV should remain one for the care home provider. I have been encouraged by the stories told by my right hon. and learned Friend about companies that found that installing CCTV brought tangible benefits. I encourage other providers to look at those kinds of examples if they are contemplating installing CCTV, and would certainly support them if they wished to do so.
The Government are absolutely committed to providing high-quality adult social care for service users, families, carers and everyone working in the sector, but at this stage we do not intend to make installing CCTV in care homes mandatory.
Mr Grieve
I am most grateful to the Minister for the time and trouble she has taken, and to other hon. Members who participated in the debate, my hon. Friend the Member for Montgomeryshire (Glyn Davies) in particular.
The points that have been made are all valid. I emphasise that I am not putting this proposal forward as a panacea—there are no panaceas. One of the things that we should have learnt a long time ago—I hope most hon. Members know this—is that perfecting humanity is impossible. All we can do is to strive to improve what we do. The point I would like to emphasise is that, despite the fact that many care homes strive to be good, systematic patterns of failings are clearly creeping into the area.
That happens in many other areas of human activity but, for the reasons I gave at the start of the debate, I do not think that the failings picked up in care homes should be in any way surprising.
Looking after people who have complex physical and in some cases mental health-related issues is a very difficult thing to do. It will stretch and test human beings, especially their tolerance levels. I know from past experience in other fields that any deterioration in how human beings behave towards each other, whether that is neglect or abuse, usually comes not as a one-off but as part of a pattern of inability to manage the stresses and strains that people are under and then to respond to them appropriately.
I have a younger son who has just come out of Sandhurst. When he left Sandhurst, during a lunch to celebrate his passing out, he said to me, “The funny thing is, I went into Sandhurst far more confident about my capacity to be an officer and a leader than when I came out,” to which one of the instructor officers replied, “That is exactly what we intended.” It was intended to point out the areas where they were going to be put under pressure and would have to find the right discipline to respond. That is the fundamental problem.
Ultimately, the Minister is right: it is about management. If there is good management, whether that be in prisons, hospitals or care homes, or political parties for that matter, those places are likely to work better than without good management. The question is, “What are the tools which we can use to try to enhance that?” Of course, CCTV is not a panacea—it could be misused and just become mechanical. Admittedly, the examples I have given are only examples. There may be others I do not know about in which CCTV has been used and is not working well—I have not come across any because I can only pick up the bits of evidence I am given, which is why I have suggested to the Minister that doing an evaluation might be quite useful. The Government are in a much better position, as is the CQC, to see whether the results are sufficiently positive. Even if CCTV is not made compulsory, it should be more positively encouraged because it is such a good tool. The best examples I have heard about suggest that it works rather well.
Far from CCTV leading to terrible stories about sacking inadequate or brutal staff, it simply means that staff end up happier and deliver a much better service to residents in care homes, relatives are much more reassured and, if there is a problem, it can be dealt with more effectively. That is what I am talking about. It is not a binary choice that I am putting forward—we have far too many of those in this place.
If this debate has served any useful purpose, I hope it has highlighted that in CCTV we have a positive tool that can be used effectively. I encourage the Minister and her Department, which has lots of problems to contend with, to look at this carefully. Despite the drawbacks that were rightly highlighted—I understand privacy, an issue which can trouble me very much as well—when we look at the nature of the sort of homes we are talking about, there is a place for CCTV. If it is encouraged, I think it might prove very useful in raising the standard, which is exactly what the Minister wants to do. I am here to encourage her in that direction in any way I can.
Question put and agreed to.
Resolved,
That this House has considered CCTV for communal areas of care homes.
Equalities Legislation: Guide Dogs
(6 years, 3 months ago)
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Alex Chalk (Cheltenham) (Con)
I beg to move,
That this House has considered the enforcement of equalities legislation relating to guide dogs.
It is a pleasure to serve under your chairmanship, Sir David. Enforcement of the laws we enact in this place matters. Without a robust and credible enforcement system, statutes risk becoming dead letters and the whole legislative process turns into a cosmetic exercise. There are practical steps we can take to support better enforcement of equalities legislation relating to guide dogs, and to improve the lives of people with disabilities.
I sought the debate because of the troubling experience of one of my constituents. The more I drilled into what he told me, the more I discovered that his experience was not isolated but symptomatic of a wider issue. My constituent, who prefers to remain nameless, is blind. In March, he tried to walk into a restaurant in Cheltenham with his guide dog, but the owner refused him entry, citing health and safety regulations. Those objections were entirely spurious. That was, prima facie, a clear breach of the Equality Act 2010.
A video of the incident was posted to the internet and carried on the GloucestershireLive website. The response was enormous, reflecting deep and proper concern about the injustice among people in my constituency and beyond. In fairness to the owner of the restaurant, I should say that the subsequent apology was suitably full and apparently sincere. It is important to note that neither I nor my constituent are calling for disproportionate retribution. In some ways, I am calling for quite the opposite: a system of process-driven enforcement, without the need for trial by social media.
My constituent’s story is not unusual. There are more than 5,000 active guide dog partnerships and approximately 2,000 assistance dogs of other varieties—dogs other than guide dogs—working in the UK. A survey of more than 1,000 assistance dog owners conducted by Guide Dogs in spring 2015 found that 75% had been refused access at some point because they had an assistance dog with them; 49%—nearly half—had been refused access in the past 12 months; and 37% had been refused access to a restaurant in the past year. Those are sobering statistics. It is hard to communicate the impact of that to the extent it deserves. People affected feel humiliated, dehumanised and rejected by society. One guide dog owner in Hove said he felt “useless and…inadequate”.
What is the law? The Equality Act 2010 makes it unlawful to discriminate against a person with a disability and requires service providers to make “reasonable adjustments” to accommodate people. Taxis and minicabs are often cited as the most frequent offenders for turning guide dog owners away, but such a breach by a taxi owner is a criminal offence, so police and local authorities are better able to take action. For non-criminal breaches of the Equality Act—where someone is refused entry to a café or restaurant, for example—the options are very different, and none of them is terribly attractive.
What are those options? The gov.uk website states:
“If you find it difficult to access a local service—for example, you cannot use a local takeaway or sandwich shop because the counter is too high—you should contact the organisation and let them know. It is in their interest to make sure everyone can use their service.”
In effect, the advice is, “Tell the perpetrator.” That is one option. The second is to issue proceedings in the county court. Not everyone will want to go through the hassle, expense and rigmarole of litigation in the county court. True, there is an equality advisory service, a legal advice helpline and help from the Equality and Human Rights Commission. None the less, given all the stress that comes with it, issuing legal proceedings is a daunting step, particularly where the breach is isolated. The third option is to report the breach on social media. However, in so doing, the victim loses control and may unleash a kind of digital vigilantism that they feel is disproportionate and inappropriate. The net result is that all too often justice is not done, and the options for the injured party are not palatable and not always appropriate.
Nick Thomas-Symonds (Torfaen) (Lab)
I congratulate the hon. Gentleman on securing this important debate. I concur with what he says about the expense of litigation and the other options available. Is not raising awareness about the Equality Act 2010 a far better option in trying to ensure that the law is enforced?
Alex Chalk
The hon. Gentleman is absolutely right. Raising awareness is crucial, but where efforts to raise awareness have been unsuccessful, we need a process that is proportionate, streamlined and victim centred to ensure that justice is done in a way that is not as hit-and-miss and patchy as it is now.
The other problem is that local authorities usually do not keep records. For example, in the case of an individual transgression on the door by an 18-year-old who has not been properly trained, one might understand that there are mitigating circumstances and that what is required is better training, but what if the same thing happens six months later? Surely, a record should be kept so that the excuses that were advanced first time around start to ring a little hollower.
The burden to enforce the Equality Act should pass to local authorities. They have the power to bring trading standards prosecutions for breach of copyright. If someone is selling dodgy DVDs on the Promenade in Cheltenham or perpetrating blue badge fraud, the local authority can intervene to take action, so why can it not bring proceedings for breach of the Equality Act as part of its licensing duties, thereby at least sharing the burden with the complainant? There should be a duty on local authorities to keep records of breaches so that those breaches can be put before the licensing committee when decisions are made about license grants or extensions. In that way, repeat offenders would be found out and such breaches could be taken into account when they applied for a new or extended licence.
The bottom line is that the Equality Act 2010 is a good piece of legislation, particularly in relation to disabled people, but it needs to be given more teeth if it is to fulfil its true potential.
Janet Daby (Lewisham East) (Lab)
I thank the hon. Gentleman for securing this important debate. I am here on behalf of all my constituents, but one particular constituent, who is visually impaired, contacted me to report that discrimination against guide dog owners when they try to access businesses and services is disturbingly common, despite being against the law. A Guide Dogs report showed that three-quarters of the assistance dog owners surveyed had been turned away because of their dog. As the hon. Gentleman rightly mentioned, taxis and minicabs are the most frequent offenders for rejecting guide dog owners. In one year, 42% of assistance dog owners were refused by a taxi or minicab driver because of their dog. The discrimination and confrontation that assistance dog owners face when trying to carry out everyday activities undermines the independence that those dogs bring them, leaving them feeling embarrassed and angry.
That evidence of the frequency of refusal of access shows that the law is still not well understood, which presents guide dog owners with significant challenges in enforcing their rights and making those rights a reality. Does the hon. Gentleman agree that taxi and minicab services and drivers should be required to undertake disability equality training as part of their registration process, so that they fully understand the rights of assistance dog owners?
Alex Chalk
I am grateful to the hon. Lady for that full intervention. I agree with everything she says. To pick up that point, which was also made by the hon. Member for Torfaen (Nick Thomas-Symonds), training and awareness are critical, but there is a disconnect with the enforcement regime in respect of taxi drivers, where the police and local authority can intervene to bring a prosecution and a conviction can lead to a fine of up to £1,000. If the breach relates to a bricks-and-mortar premises rather than a vehicular premises, the enforcement regime is completely different. It seems to me, and indeed to those people with disabilities whom I have spoken to, that that is a distinction without a difference. It is just as humiliating and dehumanising to be refused access to a restaurant or a café, and yet it is far more difficult to seek redress. An individual who has been wronged in that way must be supported to seek redress that is proportionate and streamlined. It should not require an individual potentially to get legal advice or issue proceedings, at considerable personal cost, or to get witness statements, an allocation to the fast-track, defences and all that sort of thing, which is a stressful and time-consuming process. The system needs to be more victim-centred and streamlined.
Stephen Lloyd (Eastbourne) (LD)
I thank the hon. Gentleman for securing this important debate. I have been involved in these issues for over 20 years. Equality legislation is crystal clear that disabled people and guide dog owners cannot be discriminated against in a range of areas; unfortunately, it is also clear that since the 2012 changes about applying for an adjudication against discrimination came into force, the number of cases has dropped by 60%. I am keen to hear from the hon. Gentleman and the Minister how they think that should be addressed, so that the clear rules on discrimination, which would stop discrimination against owners of guide dogs and assistance dogs, can be properly enforced and those discriminating against them can be properly charged.
Alex Chalk
The hon. Gentleman is right. There is a wider point here about access to justice—a point made by Lord Reed in a recent Supreme Court case in the context of employment tribunals. He said that unless there is proper access to justice, the whole process of election of MPs to pass laws risks becoming “a meaningless charade”.
There is an issue about whether people can get before courts, but my point is slightly different: should that be the only credible remedy and recourse for the wronged party? I do not think it should. The system as it relates to taxi drivers recognises the fact that it is wrong to place the entire burden on the individual. With taxi drivers, the police can get involved; they can go along and say to an individual, “Did you realise that it is a breach of the Equality Act not to allow that person into your taxi with a guide dog? I may or may not decide to press this and bring proceedings for a £1,000 fine.” However, the police and, indeed, councils do not have that discretion when it comes to bricks-and-mortar premises. That strikes me as inconsistent, and it means that the individual is faced with the dilemma of whether they want to spend a considerable amount of time, effort and stress, and head off to the county court to issues proceedings, when ultimately the remedy may be relatively modest from a financial point of view.
In my experience, individuals want to seek justice—that is to say, the breach being marked, a record being made and advice or training being given as required. Crucially, if the premises becomes a repeat offender, it must be possible to make that clear and for consequences to follow for the business’s livelihood. That is what justice is.
Kirstene Hair (Angus) (Con)
I thank my hon. Friend for bringing this important debate to the House. My local council, Angus, which incorporates my local guide dog training centre at Forfar, has been brilliant in adopting a street charter to ensure that streets are not obstructed and are accessible by all; it has also exempted local guide dog owners from parking restrictions. Does he agree that not only should we be making it easier for people to get justice, if they have been unfairly treated, but we should promote better practice in local authorities, to ensure that advice is readily available for local shop or restaurant owners?
Alex Chalk
I entirely agree with my hon. Friend and I commend her council for taking those enlightened steps. The problem is that geographically the approach taken is a bit hit and miss. It is patchy, so someone with disabilities might find that one year they live in a local authority that is proactive and in another year they live somewhere where the position is markedly different. I agree that better training and awareness is important, but with the carrot must come the stick. Premises that do not want to avail themselves of the guidance and teaching available must be aware that should they choose to ignore it, there could be consequences for them. Too many may take the view that it is part of the cost of doing business: they might get a bit of flak on social media, but from a commercial point of view, ultimately there will be no comeback. We need to redress the balance so that there can be a proportionate comeback.
We should not be living in a society where the individual who has been wronged is effectively left with the choice of opening the social media gates of hell. They may be uncomfortable with the kind of vigilante response that that could elicit. The last thing the responsible citizen who was wronged in Cheltenham wanted was someone putting a brick through the window. He did not want to see the business close down. He recognised that sometimes people fall into error. What stuck in his craw—and in mine—is that there does not seem to be a middle way where the breach can be marked in a proportionate, process-driven way.
Jim Shannon (Strangford) (DUP)
I apologise for not being here on time—I have visitors to the House today.
In Northern Ireland we have looked at opportunities for small businesses and start-ups to be given free training about the initiatives that are important in relation to guide dog legislation. Does the hon. Gentleman feel that should happen not just in Northern Ireland—where it happens across all councils—but across the whole of the United Kingdom of Great Britain and Northern Ireland?
Alex Chalk
Free training is an excellent idea, because it is not terribly onerous—the key tenets in the Equality Act could be summarised in about 10 minutes. If that were part of standard practice, that would be very positive, because in Equality Act matters, as in so much of public life, prevention is better than cure. The individuals I have spoken to want simply to be treated fairly and the problems not to happen in the first place. I entirely endorse that sensible call. This debate is about trying to pick up the pieces where, sadly, the message does not get through or the opportunities are not taken up.
We in the House are often encouraged—sometimes by social media or mainstream media pressure—to do something: to pass legislation, to show that we care, to show that issues are important to us. That is really only half the battle. Legislation without enforcement is a dead letter and risks bringing the legislative process into disrepute and tarnishing the reputation of this place. The good news is that there are steps that we can take to redress the balance where the Equality Act is concerned. It is within our grasp. There is an opportunity to make our society fairer and more decent for the people we should be seeking to serve—people of all abilities and disabilities.
The Parliamentary Under-Secretary of State for Work and Pensions (Justin Tomlinson)
It is a pleasure to serve under your chairmanship for this important debate, Sir David, and to respond to my hon. Friend the Member for Cheltenham (Alex Chalk), who is a tireless champion of his constituents and one of the best parliamentary speakers. Time and time again, he picks up incredibly important and relevant topics and champions them in Parliament, which genuinely makes a difference. This issue is predominantly covered by the Ministry of Housing, Communities and Local Government and the Home Office, but it is with great pleasure that I respond as a former Minister for Disabled People and someone who has been personally active in connected issues. It is great to see such a turnout of MPs from across the House who are determined to see improvements in this area despite this being only a 30-minute debate.
My hon. Friend has been active on this issue for a number of years, and it came across in his speech that he is aware of all the challenges and opportunities. He delivered his case in a measured way. He was proactive, and he recognised that such situations, which we all want to prevent, are sometimes complex and—more often than not—unintentional, coming from a lack of awareness and understanding, and there are ways in which we can look to make improvements.
During my time as the Minister responsible for disabled people I was asked to appear on “Watchdog”—I love it. I was very excited; I was star struck. I was not allowed to see the footage, but I was told it was to do with access to venues. I then saw the footage live on air, and I was shown examples of problems with access, such as when managers in restaurants had turned the disabled toilet into an office, with shelves of books and filing cabinets in the toilet that people were expected to use. There were also examples of issues with assistance dogs. I was horrified and pledged that we needed to do more.
I organised a roundtable with representatives of the hospitality industry, and the key message was about that lack of awareness, particularly when a company has a regular turnover of employees. There were some good organisations that did training, but their staff changed over very quickly and that awareness needed to be embedded in the culture. We were able to get senior representatives from many major chains to engage, partly because if they did not turn up I was going to name them—always a good way—but I was encouraged by their willingness to do that. I was also delighted to champion the campaign by Tourism for All, “Tourism is for Everybody”, which aimed to help tourism businesses ensure a positive experience for every individual. That is vital. Not only is it completely unacceptable in 2018 for disabled people with guide and assistance dogs to be turned away from shops and restaurants—unless there is a very good reason for doing so—but it is also unlawful and makes little economic sense.
One in six people in this country have some form of disability, and their combined spending power, referred to as the “purple pound”, is estimated at £249 billion per annum. Businesses need to start waking up to that and tailor their accessibility to the needs of disabled customers, not only because that is right and a legal obligation, but to maximise the business opportunities that that will bring. It is a win-win situation.
Stephen Lloyd
I entirely endorse every word the Minister says, and I have been saying such things probably for 20 years. Despite the fact that legislation has been in place for many years, I am genuinely shocked that the number of people with assistance or guide dogs who are turned away or discriminated against in restaurants or similar places has increased significantly over the past couple of years. There must be a reason for that, and I suggest it is because it is difficult for people to access legal remedies in such situations.
Justin Tomlinson
I thank the hon. Gentleman for that point, which goes to the heart of some of the points raised by my hon. Friend the Member for Cheltenham. The onus should not be on the individual to go through complex and difficult legal channels; perhaps that should be a given and should be enforced—I will cover that point later in my speech.
It is more than 20 years since Parliament first built on the Disability Discrimination Act 1995 by introducing a duty on employers and service providers to make reasonable adjustments for employees and service users. That duty is now enshrined in the Equality Act 2010, and includes a requirement to provide or allow for auxiliary aids, including animals, for disabled people, to avoid their being put at a substantial disadvantage compared with people without disabilities. I very much recognise, however, the concerns raised by my hon. Friend the Member for Cheltenham and in interventions, and we must consider this issue.
Part of the potential solution, and one suggestion that has been put forward, is that we could, in effect, replicate the enforcement that takes place in the taxi trade. Such enforcement includes criminal sanctions in which the police will get involved, and a licensing team that will take such issues into consideration. I understand why my hon. Friend would like a more hard-hitting approach, because without that we would not be having this debate. The Government are absolutely committed to reviewing access for disabled people and, if necessary, to amending regulations to improve disabled access to licensed premises, parking and housing. We are receptive to the points that have been raised today.
There have been calls for the licensing of venues and premises by local authorities to include certain conditions that relate to the satisfaction of reasonable adjustment requirements, or for repeat offenders who have refused entry to people with assistance dogs on more than one occasion to have to change their ways to renew their licence. I believe the Home Office considers that there may be some challenges to doing that, but it has committed to improving disabled people’s access to licensed premises as part of the alcohol strategy currently under review. That work will include understanding the scope of the challenges facing disabled people, and possible practical solutions. Everything that has been raised today will be fed into that, and I will ask my Home Office colleagues to meet my hon. Friend and talk through his proactive and very measured suggestions.
Janet Daby
On local authorities becoming more engaged and having more responsibilities, since 2010, Lewisham East has seen cuts to local government of £165 million, and we have halved the size of the council. Does the Minister agree that we need to invest in our local authorities and local government to fulfil duties such as the ones he mentions?
Justin Tomlinson
I strongly suggest that the hon. Lady’s local authority talks to that of my hon. Friend the Member for Angus (Kirstene Hair) about how it has been able to share best practice proactively. We can all learn lessons from that.
Part of the work of reviewing the alcohol strategy will involve engagement with the Office for Disability Issues, bringing in its expertise and network of support from various disability charities to scope out the work and understand how best to engage formally with disabled people’s organisations and other representative groups. I am very encouraged by the Government’s move on that important issue. We also welcome the current inquiry by the Women and Equalities Committee into enforcement of the Equality Act 2010. That is timely, as it links into our commitment to improve and strengthen the enforcement of equality laws, so that businesses that deny people a service are properly investigated and rightly held to account. In conclusion, this has been a constructive, helpful, timely and measured debate, and all suggestions made will be filtered through. It is a priority for this Government to improve the situation, and I thank all hon. Members for their support in this vital area.
Question put and agreed to.
Organised Crime: Young People’s Safety
(6 years, 3 months ago)
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Lyn Brown (West Ham) (Lab)
I beg to move,
That this House has considered the Government’s response to organised crime and young people’s safety.
It is an absolute pleasure to serve under your chairmanship, Mr Evans.
Nine young lives have been lost to violent crime in West Ham since 2017. Nine teenagers and young adults, with their whole life ahead of them, needlessly and tragically stolen from us. Nine lost children, who are mourned by their families every single day. Although there has been relative calm in West Ham this summer compared with last, the reason for this spike in violence still haunts our communities and our streets. County lines, as we know, is organised crime. It is adults grooming our children—mostly our young boys—and sending them off to deliver and sell drugs all over the country.
These people have created a cruelly efficient business model to distribute and sell drugs, using our children as expendable, cheap labour to enable large profits. It is a cycle of grooming. It is a cycle of abuse. It is a cycle of exploitation that has become an industry. The children live a terrifying existence, witnessing depravity and violence almost day to day. It is a modern-day version of sending children up chimneys. They are disposable children, making big profits for the criminals who control and exploit them.
I know that the Minister knows this. I have had several conversations with the Government about these issues over the past year. I am sure the Minister will tell me that losing 21,000 police officers, and the fact that the Metropolitan Police Service has lost more funding per person than any other force in the country, has nothing whatever to do with it. However, as I understand it, we have completely failed to identify, arrest, charge or prosecute those at the top of these organisations—those who are making a small fortune pimping our children as drug mules and reaping a good living from the destruction of our children’s lives.
The police are doing their best. I hope the County Lines Co-ordination Centre that opened this week will help. In the past year, there have been almost 100 arrests in Newham of those young drug dealers who laughingly call themselves “elders”. I know they do not consider themselves to be on the bottom rung of the gang hierarchy, but they are not the people who are in control of the organisation.
I, and the people I represent, want to know that we are making more headway in our fight against organised crime, that we are going to get those further up the food chain and that those who are controlling organisations, controlling children and reaping substantial economic benefits are going to be caught. I am happy to take a confidential briefing from the Minister on this, because I am not interested in party political points, but I want reassurance that those responsible for the creation and running of this sickening business are in our collective sights and will soon be serving very hefty prison sentences. I hold them accountable for the deaths in my community, the premature and heartless deaths of many of our young children, regardless of who finally pulled that trigger or wielded that knife.
This is my first ask. I want to know that we are putting money into locating, charging and throwing the book at those responsible at the very top of these organisations. I want assurances that we are closing in on them and that they will soon be languishing at Her Majesty’s pleasure, all assets seized.
My second ask is about providing our children with resilience against the grooming techniques of these criminals and their minions. Many of us talk about the value of youth clubs and supported play opportunities, using sport to divert children from crime. It is not that we believe that the provision of a table-tennis table per se will divert a child from the wrong path; it is the professional adult who accompanies the table tennis table, who our children can relate to and confide in, who can offer insights and strategies for dealing with the groomers and the gangs and help our children to navigate the minefield that is their lives.
Children need to know how to say no. They need to be given the skills and tools to resist the manipulation of the groomers. That takes resources; the Home Office cannot provide all the resources on its own, but crime prevention and victim support funding have a vital role to play in filling those gaps in the short term. We also need to develop a joined-up, strategic safeguarding response to the criminal exploitation of young people, with schools, social services, community groups and detached youth workers all playing their part. Teachers, parents, police officers and social workers need to understand the real threat of exploitation and grooming by organised criminals and what is in their power to do to stop it.
Alison Thewliss (Glasgow Central) (SNP)
The hon. Lady is making some excellent points. Is she aware of the work of Scotland’s violence reduction units, which take a multi-agency approach to young people who were offending and at are risk of offending, to divert them into more productive activities, and the success that has come from that, seen in the reduction in youth offending in Scotland?
Lyn Brown
I thank the hon. Lady for that. I certainly think the only way forward is a multi-agency approach. I hesitate to say that the co-ordinating role should be placed at local government’s door, given the swingeing cuts that it is absorbing, but there is already a legal wellbeing framework that this work could fall under. The Home Office has a responsibility to demand such strategies from local government and strategic partners, to ensure that they are in place and that there are resources to provide for them. That is my second ask: a strategy and the necessary investment in services that provide resilience for children. I humbly suggest that professional youth and play workers are essential to that activity.
My third ask is about training for those in the field, who may not understand the full malignancy of the beast we are dealing with and how it cleverly manipulates our stretched services and staff to keep a child within its clutches. My constituent—I will call her Deepa—was increasingly concerned about her son. He had fallen in with a bad crowd at school, although she did not know it, but she knew he was slipping away from her. His best friend had been excluded from school for drug-related activities, but she did not know.
Alarm bells should have started ringing at the school when Deepa told them that her son was starting to spend more time away from home without any explanation, simply going missing, sometimes for days at a time. He had clothes and a phone that she had not provided and that he had no resources to pay for. He was yet another child being groomed and drawn into criminal activity, vulnerable to violence; I am sorry to say that, two years on, that is still the case.
Deepa raised her concerns at school, but the groomers are very clever. They know how to manipulate the system. Her son told the school that parenting was the problem, that she was too strict; he hinted at abuse, and that was it. Not only could Deepa not get any information or help from the school or social services once the allegations had been made, but she was put under investigation. His absences were placed at her door. They were her fault. It is clear that the social workers and the school involved simply did not understand the nature of the crime or the criminals they were dealing with.
Deepa and her son have also, sadly, been let down by a charity paid for by public funds to provide mentoring for her boy, to do intensive work with him to help him exit the gang. He was up for it. Things had happened that terrified him, boys he knew were dead or injured, but this charity was only paid for three sessions and he needed more. Things escalated. He needed help. He phoned them, wanting to talk to his mentors, absolutely desperate, but they did not respond. They had done their three sessions and they had no more money to do others. Deepa wanted to pay for sessions herself, but she could not; they were way too expensive. Her window to exit her boy from a gang is likely to be closed because the services that she needed did not have access to funding.
How much more expensive will putting that child into custody—that is where it is going—and reccurring offending be over the years to come? The Minister must know that it is a false economy. It will be another life wasted. My third ask is for effective, up-to-date training for professionals who come face to face with the strategies that criminals employ, and to provide those professionals with the resources that they need to fund effective treatments and techniques to remove our children from the clutches of these criminal gangs.
As the Minister knows, in order to catch these criminals we need information. Those with the information in the midst or at the edge of the gangs live in absolute fear, convinced that we—the state—cannot or will not protect them. Our children have no trust whatsoever in the systems that we have created, so they do not engage. If we are to get the information that we need, we will need to find new ways for our children and our communities to report to us. Frankly, as the Minister probably knows, Crimestoppers is simply not trusted.
My young constituents absolutely believe that calls to Crimestoppers are traced by the police, and that callers are attacked for being snitches as a result. There is no doubt in their minds that Crimestoppers is not safe, and that the police will arrive at their doorstep should they phone it. It does not matter if that is real or not—that is what they believe. My fourth ask is for a trusted third-party reporting system that will pass information on with absolutely all identifiable details removed. Callers have to know that they cannot and will not be called or visited by officers, and that they will not be targeted as a result of providing us with information.
Information is not only about initial reports. We also need more people to feel safe when acting as witnesses. My fifth ask is for better protection and care for witnesses. Darren is one of those affected. His house was attacked by armed gang members because of rumours about snitching, and his neighbour’s door was shot through three times. It is a wonder that no one was hurt. Three months later, Darren still had nowhere to move, was afraid to leave his home, and was under the constant threat of another attack.
Maybe Darren was helping the police, or maybe it was just a vicious rumour, but the effect of the failure to protect and move him is the same. Stories like Darren’s are known in my community, and they erode trust. Constituents who have information—children who want to break out of their exploitative relationship with a gang—are afraid to do so, because that is what will happen to them.
As the Minister knows, witnesses are amazingly brave in coming forward, and they deserve our greatest respect, our protection and our help to give them a new, fresh start. However, far too many get the exact opposite. That is what happened to Ashley, who is 16, and his dad, Nathan. Ashley did an amazingly brave thing: he gave evidence against a criminal gang member in a murder trial. He has personally experienced serious violence and has been threatened with death many times because he provided the police with information and stood up and testified in court.
The continuing danger to Ashley’s life is clear, so he and his father were given new identities and were relocated. It is reassuring that this basic protection was offered, but I am sorry to say that it was not followed through. Ashley and Nathan have been badly let down. Before his son gave evidence, Nathan had a regular job and a regular tenancy in a housing association home, which they had to leave. It was a stable life of contribution to the community. However, in the months after the trial, their situation became the stuff of nightmares.
Nathan had to leave his job behind, along with his name. He is now unemployed. He was left without any income because he and Ashley were not given the documentation—simple things such as photo IDs—with their new names, leaving him unable to claim the benefits that he is entitled to and that he and Ashley need to support them through this awful, stressful time. Nathan has been repeatedly forced to reveal their situation to jobcentre counter staff to try to get help. Every single time he does so brings the clear possibility of their being exposed, as well as fear and anxiety that the information could lead to his son’s life being in danger once more.
Lyn Brown
I will get to the end of the story. Nathan has now accrued more than £4,000 of rent arrears through absolutely no fault of his own. The system did not work. It happened because he was stuck for months between landlords, agencies and a local authority—not Newham—that would not talk to other agencies, and because he was given appalling and incorrect advice. The housing association allocated him a new property, but it was not nearly fit for human habitation: it had no heating, no furniture and no cooker; on the other hand, it did contain asbestos. All the while, Nathan and Ashley were penniless, stressed and awfully anxious because Nathan still could not access his benefits.
It came to a head last year. At Christmas they had no money for food, let alone gifts, and no secure home. Nathan was on the brink of returning home to his family in the area that he and Ashley had fled. It would have put their lives at risk of revenge violence, but at least they would have had some food and comfort and some of the basic support, understanding and respect that they had had so little of.
Vernon Coaker
I am sorry to have interrupted my hon. Friend’s flow; I thought she had finished that story. She makes an incredibly important point. Does she agree that the Minister needs to respond fully to these points, particularly in the light of the Government’s policy now to use more children as covert human intelligence sources? The Minister needs to say something about that and to answer my hon. Friend’s points in full detail.
Lyn Brown
I absolutely agree. The system lets down young witnesses like Ashley and their families. It fails them at almost every turn, it puts them at risk and it erodes trust. That trust is necessary for us to get the information that we need, let alone anything else. Hearing these stories makes people in my community less likely to engage with the authorities when they have information that could help us. That has to change.
My fifth ask is for public bodies to have a duty of care placed on them to work together to understand and support families such as Ashley and Nathan’s, because without their help and co-operation, we will not get the information that we need to put an end to the blight of county lines exploitation. We need a national dedicated system of caseworkers trained to act as a single point of contact, working with statutory services; a named representative for those under threat because they have helped us, the police and the courts. They are trying to do the right thing. Nathan, Ashley and others like them deserve a genuine path to a secure future after the brave decisions that they have made.
Much of the violence is fuelled by social media, so my sixth ask is for stronger action against incitement online, whatever form it takes. In recent months, local people have been especially angry about one particular drill music video filmed in my constituency. It is effectively a celebration of gang murder. The rapper brags about killing with knives and guns and attacking people in broad daylight, and gloats about having killed one man by name and planning to kill his brother. He mocks other young men for just talking about murder and not acting. All of this was filmed by masked men in streets that my constituents recognise, because they live there, because they walk and work there every day and because their children play there.
The murders this video is about may be fictitious, but by looking at the online comments we quickly see many young people who believe it is real. They explain the murder references to each other and openly admire the rapper and his group for the supposed killings. The original copy of the video had more than 1 million views—that staggers me. It was taken down, but other copies have since been uploaded, and one has already had more than 120,000 views. The technology to remove those copies automatically exists, as the Select Committee on Home Affairs has repeatedly pointed out. We need to understand why that is not being done.
The law may be unclear about whether such videos illegally incite violence, but I believe they are dangerous. They make the grooming of children easier by glamorising drug dealing and murder as a lucrative and exciting alternative to the hard and unrewarding work they see demonstrated in the lives of their parents. Presented as an alternative economic model, it is offered to children and made to look exciting. The videos do not just glamorise crime; they taunt and humiliate rivals. These are young, impulsive teenagers; there is so much pressure pushing them to respond, and the music itself tells them what response is expected: more knife attacks and more children dead. The Home Affairs Committee called for a wholesale review of the legislation on hate speech, harassment and extremism online to bring the law up to date. I think that that is sorely needed, and a better approach to online incitement should be one of the goals, so that is my sixth ask.
My seventh and final ask brings me back where I started—the nine deaths and the trauma caused in my community and how we can help the healing. After the appalling murder of Sami Sidhom in April, there was an immediate and powerful surge of mutual aid and support in his community of Forest Gate. As I have told the House before, his neighbours rushed to help him and gave him some comfort as he died. They were traumatised, but they received so little support. The trauma is not felt just by the families, friends, schoolmates and neighbours, although of course they suffer the worst. In Forest Gate, there was a palpable feeling that the community was in crisis after Sami died. There was a cumulative effect, though, as it was not just because of Sami but because of all the other young people who had died in the year before, especially CJ, who was just 14 and was shot in a playground in Forest Gate.
We need to provide support for whole communities who are traumatised in the way that I have described. The strong response that I saw in Forest Gate can help local people to cope, recover and heal. Community leaders have a really important role, but often they are volunteers; they give their time and energy freely, and it is simply unfair to expect them to take on all this without training, resources or professional support. I think that we need a professional response to assist communities with the trauma and mental health issues that arise after traumatic incidents, especially those involving young people.
Having spoken to people about what they feel would help, I would like to see the development of peripatetic regional mental health teams, consisting of people who can provide rapid, accessible support for communities after tragic events. My seventh ask is that the Minister works with the Department of Health and Social Care and find a way to make that happen. I would be happy to sit down and think about that some more with him or any other Minister in the Home Office team. I know that Marie Gabriel, soon to be a CBE and chair of the East London NHS Foundation Trust, is keen to support it as well. This is not just about crime; I am sure that all of us can think of other tragic events—some of them not physically very far away from this building—after which mobile teams like that would have been very helpful.
The deaths over the past year have caused so much trauma and pain in my constituency, and they have exposed our failures in this place over many years to prevent the rise of county lines grooming and exploitation, and to give young people the hope and opportunities that would make them safer. The problems cannot all be solved by the Home Office acting alone, but children are dying in my constituency, across London and across the country, and all of us have an enormous responsibility to act. I believe that the Minister could play a very positive role in ensuring that the cross-departmental connections and strategies that we need are created, implemented and sustained. I would support him in that, and I hope to hear that he is committed to making those things happen.
Finally, I place on the record my enormous gratitude to a group of women in West Ham whose children have tragically been caught up in the county lines operation. I have learned so much from those women over the past year. They have been so honest and so generous with their time. I hope that today I have done them proud and represented them properly.
Several hon. Members rose—
Mr Nigel Evans (in the Chair)
Order. Five hon. Members are standing, and the winding-up speeches will start at 3.30 pm, so please do the maths and be fair to one another so that you can all speak.
Vernon Coaker (Gedling) (Lab)
My hon. Friend the Member for West Ham (Lyn Brown) finished her speech by saying that she hoped that she had represented her constituents well, particularly the women to whom she was referring. Anyone listening to what she has just said and the way she has said it—with the obvious depth of feeling on her part—will absolutely think that she has done her constituents proud, but more than that, she has done the country proud by bringing this issue to the attention of Parliament and bringing the Minister to this Chamber to answer on what is a national crisis.
This is not a few people in one part of the country experiencing a particular local difficulty. I am pleased that this Minister is here, because he will know from all his experience in his other roles that it is a huge problem that requires Government and ministerial action all the time. What I want to say to the Minister is this. He is a Minister of the Crown, a representative of the Government. He will be speaking for the people in response to my hon. Friend, who spoke for her constituents but also the country, I think. We have to do better. We come here as parliamentarians, and here we are in this beautiful building, but just half a mile or a few hundred metres away, young people have been stabbed. Go to any of our constituencies and that will be the case. The report I read that caused me to come here today—I will refer to it in a minute—shows that every single area of the country, across the United Kingdom, is impacted by slavery, trafficking, county lines and organised crime, which are an enemy within. I know that the Minister will take this point. He has the power to demand action from the system, whether that is the police, local authorities, the devolved Administrations or, indeed, all of us: yes, write reports, and yes, discuss what we are going to do, but let us get on top of this.
Dan Carden (Liverpool, Walton) (Lab)
Merseyside Police tell me that community intelligence from the ground is integral to fighting back on this, but we need to look at the cuts in the number of police officers—we have lost 1,000 police officers across Merseyside. Unless we tackle the problem of policing, we cannot solve this problem.
Vernon Coaker
I agree. I am a Labour politician, and the cuts in policing and to local authorities have consequences, which we all refer to. The Minister has to accept responsibility for that, but however many police we have, however many things are going on and however many resources are put into local authorities, there has to be a Government drive to push them into tackling this issue as a major priority.
What caused me to attend the debate secured by my hon. Friend the Member for West Ham was a National Crime Agency report published a few months ago. It talks about an intelligence gap—we do not know what we need to know. I asked a parliamentary question, and the Minister’s colleague, the Under-Secretary of State for the Home Department, said that the Government did not know. They thought there were many thousands of people involved, and there was an intelligence gap. That was just a few weeks ago. That report said nine or 10 months ago that there was an intelligence gap, and the parliamentary answer two or three weeks ago said that there was an intelligence gap. That is not good enough, and the system will not change unless the Minister gets civil servants and other people in, and demands that something be done. Otherwise, in the Minister’s constituency, my constituency and, indeed, all our constituencies, in Northern Ireland, Wales, Scotland and England and in all the regions, these incidents will continue and we will have to come to this Chamber again in a few months saying how appalling it is that young people have died on our streets as a result of their involvement in organised crime and their involvement in county lines. We do not even have the data, yet we see on our streets what is happening.
Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)
My hon. Friend is speaking with great passion. He strongly made the point that this is a phenomenon that is affecting the whole country. I completely agree with him. A young man was dragged out of his car, stabbed to death and left to die in a garden only a hundred metres away from my home in Cardiff, just a few weeks ago. That comes on top of many other attacks. This problem is happening across the country and we simply do not—as he says—have the intelligence needed.
Vernon Coaker
I quite agree. To be frank, that is what has driven me to come here. My hon. Friend the Member for West Ham described eloquently many of the challenges and the impact that has had on her constituency. I want to feel, as a Member of Parliament—in this democracy of ours—that the system somehow feels the emotion that she portrayed. I hope that the Minister, as a human being, will also feel it.
Why does the system not respond? People have different ideas. The hon. Member for Inverclyde (Ronnie Cowan) has particular views on drugs policy. That requires discussion. What is the most effective way of gathering intelligence? Why is it—as my hon. Friend the Member for West Ham says—that in all our constituencies young people cannot even get a basketball, a football, a kit or somewhere to go and play? We cannot even do that. We talk about diversion, we write a report and the next thing we know there is a 200-page document on the importance of children’s services and local authority provision to ensure that young people are not attracted to crime, because there are people working with them on the street. Goodness me! We don’t need a—I nearly swore there, Mr Evans. I will leave it at that. We do not need a report, do we? We must be able to do better on data and all of these things.
The Minister has a good briefing from the civil service. He has a speech prepared, and he will try to answer the questions as best he can. However, I want to know when we are going to be able to see, in each of our areas, that concerted and co-ordinated effort, in youth provision, diversion and dealing with these organised criminals. That is the main point I wanted to make.
Let me say this to the Minister, too. The Modern Slavery Act 2015 contains a provision that means that if children become involved in criminality as a result of coercion—through being duped, violence, threats or those sorts of things—they are seen as victims, not criminals. Many of these young people are victims—they are not criminals. I am not saying that we cannot hold people to account. I am not saying that saying sorry for murder is fine—do not misunderstand me. I am saying that many of these young people, who are very young, are exploited, frightened and terrified into doing some of the things that they do. It is about time that the people who are terrified are the organised criminals who are exploiting these young people. People are trying to help and work with the police, as my hon. Friend the Member for West Ham said, and I am sick and tired of criminals taking it upon themselves to terrify a community. It is not good enough.
I appeal to the Minister, when he goes back to his office, to call everybody in and say, “We have had one of the most serious debates that I have attended in recent years”—organised by my hon. Friend the Member for West Ham—“and as a personal mission, I will ensure that instead of writing a report, the system gets on with doing something about this national crisis.”
Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)
It is a pleasure to serve under your chairmanship, Mr Evans. I commend my hon. Friend the Member for West Ham (Lyn Brown), who set out a fantastic action plan and spoke with great passion about the challenges faced by her constituents. The horror stories we hear, particularly from London, shame the whole country, and, as my hon. Friend the Member for Gedling (Vernon Coaker) just pointed out, represent a national crisis.
This is indeed a national crisis, happening in cities and towns up and down this country. This is a new phenomenon: we have not previously seen this level of violence and involvement of young people. That is borne out in the Government’s serious violence strategy, in the NCA report, in what we have heard from the Home Affairs Committee and in what I hear weekly from my own police officers and community workers. There has been a dramatic and very unfortunate shift in the levels of violence, grooming and involvement of young people over the last six years, while I have been the Member of Parliament for Cardiff South and Penarth. Sadly, many of us warned that that would happen because of the trends that we saw and because of the cuts that we knew were coming in the police and community services. I will come on to the point raised about youth services.
I too have a litany of horrendous cases just from the last few months. I will not say that each of them has the same characteristics. They are often complex cases, some of them ongoing. I mentioned earlier the case from just a few weeks ago in Grangetown, Cardiff, where an individual was dragged out of his car and stabbed in the street, and left in a garden to die. Just a few months ago, another constituent of mine, Fatah Warsame, was stabbed to death in Liverpool, having been involved in some sort of engagement between Liverpool and Cardiff, showing that this is an issue that crosses between cities—not only London, but other cities in the UK. Tragically, just a few months before that, in Adamsdown and Splott, Sean Kelly was stabbed to death, also in a drug-related incident involving other individuals. Those are three of the most serious cases, but there are many more to report.
Those cases sit with the national trends. The number of police-recorded crimes involving knives or sharp instruments increased by 22% in the year ending December 2017 compared with the previous year, continuing an upward trend since 2014. A lot of that increase is in the Met police area, but other areas are affected. Possession of an article with a blade or a point is up by 33%. Hospital data confirms that, with admissions related to stabbing and other incidents up by 7%. Trends involving firearms are also up. Those statistics are confirmed and acknowledged by the Government’s strategy.
This is not all to do with county lines, but that is a significant part of it. We need to be clear about what we mean by county lines. I had community workers come to me the other day and say, “What do you actually mean by county lines?” so I will read for the record the definition the Government use:
“County lines is a term used to describe gangs and organised criminal networks involved in exporting illegal drugs into one or more importing areas…using dedicated mobile phone lines or other form of ‘deal line’. They are likely to exploit children and vulnerable adults to move (and store) the drugs and money and they will often use coercion, intimidation, violence (including sexual violence) and weapons.”
That phenomenon of grooming young people and the involvement of young people unfortunately has many of the characteristics—I have seen this in my own constituency—that we see in the grooming of young people to be involved in terrorism, extremism and other forms of criminal behaviour. It is often the same tactics, the same methods, and the same insidious exploitation of often young and vulnerable people.
I have been told about a phenomenon that goes on in my local area called “blessings”, where people are given small items—a pair of trainers or a bit of money—but not asked to do anything initially; later, people who are higher up in the system come back to them and say, “I gave you a pair of trainers. How about you keep an eye on that corner for me?” or, “How about you transfer this package to someone?” It is a slippery slope. People get involved in more and more dangerous activity.
The Government’s own strategy suggests that the drugs and county lines phenomenon is very much behind the rise in violent crime. They say:
“There is good evidence that these dynamics are a factor in the recent rise in serious violence.”
The Government’s report—again, this bears out what I have seen on the streets of Cardiff—talks about dealing in new psychoactive substances, such as spice, the increased involvement of young people, the rise in crack use since 2014, the surge in illegal cocaine production and the increase in the purity of cocaine imported to the UK from places such as Colombia since 2013. The changing nature of drug markets has led to what we see in the geography—the nationalisation—of the problem.
The Government’s report states that one of the most striking findings about the rise in serious violence since 2014 is that it has not been limited to the main metropolitan areas. We are seeing drug-selling gangs from major urban areas such as London, Birmingham, Liverpool and Manchester, perhaps driven by excess supply, by technology or by new opportunities, spreading their evil networks out to other cities and towns across the UK. The NCA report is clear that the majority of police forces are identifying that the involvement of vulnerable children and people is one of the key hallmarks of county lines activity. The trend has arisen in just the past few years. The problem is very new and politicians, the Government and agencies are struggling to catch up with the shifting trends and changes. As the evidence shows, a crucial feature, again acknowledged by the Government, is that drug-selling gangs are now generally much more violent than the local dealers who had previously controlled the markets.
My hon. Friend the Member for West Ham spoke passionately about the importance of multi-agency working. There are no easy answers. We often have to have localised and carefully calibrated responses to deal with local circumstances, but I want to put on the record my praise for the group of agencies in Cardiff and the Vale, particularly in Cardiff in Butetown and Grangetown. I praise our police commissioner, our local police officers and our local council. I particularly praise Councillor Lynda Thorne, a cabinet member on Cardiff Council, and Councillor Saeed Ebrahim, one of our local councillors in Butetown. He is a former youth worker who worked with many of the young people involved. Those councillors are really trying to get to grips with the problem and bring together all the relevant agencies. I look forward to meeting them again in the next couple of weeks to discuss the progress they have made on the various strategies in different areas that they are putting forward.
I am proud that the performance of South Wales police in dealing with violence with injury and other issues is strong, but like many other police forces, it is struggling to cope. I have spoken to individual police officers and senior officers who tell me about the strains that they face in crime demand and non-crime demand. We all know about the pressures from mental health and missing persons. The Government can argue about this all they like, but the reality is that the number of police officers on our streets has come down substantially in the past few years, as has the number of community police officers, PCSOs and others. In individual areas, we have been able to keep the numbers up. We have PCSOs funded by the Welsh Government who are doing a fantastic job in our communities, but unless we have police officers on the ground who have relationships with young people, with other agencies and with the families, and who have that crucial local intelligence that my hon. Friend the Member for Gedling talked about, we will not be able to deal with the problem, which has been magnified by particular challenges in Cardiff.
We in Cardiff do not get the capital city funding that Edinburgh, Belfast and London get, yet we host major events We put huge strains on our police force when we host events such as the UEFA Champions League and the Anthony Joshua fight. Those wonderful things come to our city. We all love them. They are all great, but they have a knock-on effect on day-to-day policing. Although additional money is sometimes provided, we see a knock-on effect on our shift patterns and holiday time and so on, which has a direct result in the communities facing problems. I look forward to meeting the Police Minister shortly with our chief constable, Matt Jukes, and our police commissioner, Alun Michael, to discuss Cardiff’s specific needs.
Alongside the challenge for police funding is the challenge of other services facing cuts. We have done a great job of trying to protect services in Cardiff. We have a Welsh Labour council doing a fantastic job, but we need statutory youth services. I know that my hon. Friend the Member for Brighton, Kemptown (Lloyd Russell-Moyle) has spoken out about this. We must have that resource going into community youth workers. My father was a youth worker and I have worked with young people. Unless we have youth workers outside schools, having relationships and knowing what is going on in the crucial communities, we know what will happen. We warned of this years ago, and unfortunately we are now seeing it on the streets of Butetown, Grangetown, Splott and other areas of Cardiff and the Vale of Glamorgan.
Lastly, I will re-emphasise what my hon. Friend the Member for West Ham said about social media companies. I have spoken a lot about such companies and their responsibilities this week in cases ranging from the Lucy McHugh case to terrorism and the abuse of public figures. The social media companies are simply not taking their responsibilities seriously when it comes to the dissemination and sharing of information online that leads to intimidation and grooming of young people. Young people have told me about the challenges of closed Instagram groups where music videos and threats to individuals are shared, and closed YouTube videos are shared, making threats back and forth. Language is used that perhaps we would not understand, but it is very clear to people of a certain age and disposition, and they see it as threatening or encouraging or dragging them in.
As a Government, as a Parliament, as local representatives, we must get a grip. Social media companies have a huge responsibility, and we need to provide the police with the training and resources to be able to treat the cyber world in the same way as the physical world, because there is a direct overlap. We heard yesterday in the Home Affairs Committee about a direct overlap between domestic violence, violence against women and girls and the cyber world and the physical world. Exactly the same thing goes on when it comes to young people, county lines and drug-related violence. We have to get a grip on this. I want to hear from the Minister what he is doing to bring in those social media companies and make sure they live up to their responsibilities. Again, I praise my hon. Friend the Member for West Ham for securing a debate on a national crisis. There should be more Members in the Chamber. I hope this will not be the last debate on this subject.
Mr Nigel Evans (in the Chair)
This is a powerful, strong debate, but if everybody keeps to about five minutes, everybody will get in with equal time.
Jim Shannon (Strangford) (DUP)
I congratulate the hon. Member for West Ham (Lyn Brown) on securing this debate. Her constituents in West Ham should be very proud of her. She has done exceptionally well, so well done to her.
We have had a form of organised crime for many years in Northern Ireland in the form of proscribed organisations such as the UVF and IRA, with people fighting for their beliefs in a terrorist manner that was dangerous and harmful to communities and will take years to get over. Thankfully, we have moved away from the troubles, but, worryingly, we have moved towards the form of organised crime that is prevalent in the mainland, which the hon. Lady and others have referred to. We have young people joining organisations and being used as drug mules and pushers, doing the dirty work of those who will not get their hands dirty and who keep their names off police registers by abusing the trust and loyalty of young people. I see it at work in my community and it breaks my heart, as it does the hearts of the hon. Ladys and the others who have spoken.
Illicit tobacco seizures have prevented the loss of £1.25 million in revenue in Northern Ireland and £50,000 worth of cash has been seized. We had a seizure of £100,000 of illegal drugs in Newtownards on Monday. Local paramilitaries, as they call themselves—really, they are criminals—were involved in that activity. Detective Superintendent Singleton from the paramilitary crime taskforce said:
“When we look at these paramilitary organisations as organised crime groups we see a lot of similarities. The number one commodity for organised crime in Northern Ireland is drugs. 75% of our organised crime groups are involved in drugs either directly or indirectly. When I say directly I mean dealing them, when I say indirectly I mean extorting and taxing people that are involved in the drugs trade. Some of the Republican groups, like INLA or Action Against Drugs, we believe are actively involved in taxing drug dealers. If people don’t pay they are the victims of paramilitary-style attacks, if not murder or attempted murder. You also have the violence that’s associated with drugs as well as different organised crime groups who compete for their share of the market. That’s why we see the likes of paramilitary style attacks, attempted murder, and in some cases very serious violence within our communities.”
Mr Gregory Campbell (East Londonderry) (DUP)
Does my hon. Friend agree that part of the problem, in addition to what we have heard very powerfully throughout the debate, is that in some communities these activities are glamorised and young people’s eyes are not opened to the reality of what happens to them after they get involved? Do we not need to tackle that in a co-ordinated way?
Jim Shannon
I thank my hon. Friend for that intervention. He is absolutely right. I was going to quickly touch on that.
I have seen too many broken mothers in my office who tell me the same story. Their child was given a freebie—a joint or a little tablet—and the next week they are told that they owe for it; either they can pay immediately or interest will be added. What was £10 can rocket to £50 in a matter of days. They are then given the option to work off their debt: just lift a packet from a drawer in this house and deliver it to that house; just collect a parcel from this person and leave it in this place. Before the young people know it, they are heavily embroiled in the crime gang. Their parents are worried sick and wondering how it has happened, often trying to pay extortionate sums to release their child from the chains, only to have to repeat it in six months’ time. It makes me sick to my stomach to know that crimes are being organised by certain people who use young people with no criminal convictions as their hands and feet, and when the PSNI catch up with them, those young people receive a sentence and those in charge walk away laughing.
Organised crime is not glamorous. It is not the stuff of “The Sopranos” or other TV shows. It is the mechanism whereby too many of our young people become hooked on drugs and involved in things they do not want to be involved in, but cannot escape. Some are lured with mottos such as “God and Ulster” and they are in too deep before they realise that it is nothing to do with God or Ulster, but is about lining the pockets of disgusting men who are too gutless to do their own business, but run an empire that targets children and vulnerable people and destroys our communities.
I met the local superintendent last week in my constituency office to discuss the issues. We can and must do more to share intelligence. For the mothers who come into my office pleading for help, for the young people who are too frightened even to make eye contact with me and who are stripped of their bravado and facing imprisonment, and for my community which is crying out for change, we in this place must do more to help our police, our community development officers and our schools to protect our children and to reach out.
I know that the Minister has no direct responsibility for Northern Ireland, but he will understand my frustration because we have no functioning Assembly, and these issues are as apparent in my constituency as they are in others. We have an epidemic of massive proportions, and the lives of many families are being destroyed. Some 98,301 crimes were recorded by the Police Service of Northern Ireland in 2017-18, which is a rise of 0.3% on the previous year. Crime is up, but the number of officers is down. We need better police co-operation, more funding for communities, and for schools and churches to do what they can within communities. As the hon. Member for West Ham said in her opening remarks, we must instil confidence in our young people that there are measures to protect them if they provide information. There are anonymous ways to provide the police with information that will get drugs and criminal gangs off our streets. We need to send a message, and it must be strong and effective and come from the highest level down in order to affect everyone.
Dr Rosena Allin-Khan (Tooting) (Lab)
It is a pleasure to serve under your chairmanship, Mr Evans, and I thank my hon. Friend the Member for West Ham (Lyn Brown) for securing this important debate. It is a shame that more Members are not in Westminster Hall to reflect the severity of this issue, but that should not detract from how important it is.
As my hon. Friend said earlier, local communities play a vital role in tackling violent crime through mental health support, the offer of opportunities, and work with authorities. Across the country, violent crime has risen by 16% while police numbers are at their lowest since records began. Our police and frontline emergency services do incredible work, but at times they are over-stretched and under-resourced. This is a national problem. Our Government can turn away from the truth as long as they like, but the stark reality is staring us in the face.
Over the past 12 months, there have been a number of violent incidents in Tooting and Earlsfield, including some tragic fatalities. Local residents come to my advice surgeries afraid for their children’s lives—afraid that county lines are robbing children of their lives and tearing families apart.
As an A&E doctor at St George’s Hospital, I have treated teenagers who were once full of bravado on the streets, but who lay there, dying in front of my eyes, with tattoos emblazoned “Born to die” on their chest—children who were crying out for their mothers in their final moments. I have been with grieving parents who have arrived at the resuscitation room only to see their child die before them. The scream and echo of that pain—that audible anguish—never, ever leaves you. Once heard, it is never forgotten. Unfortunately it is a sound that we are hearing over and over again on our own doorstep and on our own watch. This has to stop, and I implore the Minister to listen to the arguments presented today.
As a Member of Parliament, I have listened to parents who cannot comprehend what has led their children to die before them. I am a parent myself, as are many in this room—imagine holding your dying child in front of you, knowing that they are dying not from some incurable disease, but from something that could be entirely avoidable but is part of an epidemic sweeping our country. Those parents cannot understand why they had to hear that their children died alone, why they went to work and came home to hear that the children they were raising died alone in their own blood on the streets, why the authorities were not there to support them through their grief, and why there was no way to prevent such tragedy. Enough is enough.
Just three weeks ago, I held a violent crime summit in my constituency of Tooting, bringing together the Deputy Mayor of London for Policing and Crime, the head of south-west London Metropolitan police, the chief executive of Wandsworth Council, and local community groups. It is imperative for local organisations that support young people and their families day in, day out, to be able to speak directly to the authorities and discuss how they can be a force for good and shape the way forward for young people in London and across the country. Only together, along with our communities, can we discuss the root causes of this rise in violence, and only together can we get weapons off our streets. Only together can we decide that this is not just another debate held day in, day out, on a number of topics that are discussed in Westminster, because only if this debate is treated with the respect it deserves can we truly save lives.
Lloyd Russell-Moyle (Brighton, Kemptown) (Lab/Co-op)
I thank my hon. Friend the Member for West Ham (Lyn Brown), who spoke so movingly, as she has done many times. This is such an important issue.
In 2013, the coalition Government published their “Serious and organised crime strategy”. Prevention was cited as a key component of that plan to end gang and youth violence. As part of that strategy, the Government spoke about the utilisation of youth workers and youth services to identify high-risk individuals and help steer them away from crime. Despite the danger of sounding like a broken record, it will be no surprise to colleagues that I intend to speak about what has happened to youth services since then, and the problems that that has led to in our communities.
Despite the Government’s plan, a 2016 study—these are the latest figures we have—found that 600 youth centres in our country have closed, and that 3,500 youth workers, who were positive, adult influences on our young people, have lost their jobs. Some 140,000 places for the most vulnerable young people have been deleted. Those figures are two years old, but the cuts have got worse. That crippling effect has led to the collapse of youth services across our country, and there has been an increase in what we see as the exploitation of our young people.
To put a figure on this, in 2010 £1.2 billion was spent on youth services and youth prevention programmes, but last year just £358 million was spent. That is a 68% cash-terms cut: in today’s money, £1 billion has been ripped out from prevention—the very thing that the crime strategy said it needed to focus on. What has happened, unsurprisingly, is a jump in knife crime, which is up by 69%, and now the rise in county lines is affecting every corner of our country.
Councillor Richard Watts, chair of the Local Government Association’s children and young people’s board, recently said:
“Councils must be given the resources they need”
to stop just picking up the pieces and to start to tackle the problems. That highlights the current reactive approach as opposed to the positive approach that we have. In reality, if this issue was directly affecting your child, Mr Evans, or my child, or the children of people of influence, buttons would already have been pressed, strings would have been pulled, and rules would have been changed. However, the children and young people who are most affected often come from the poorest and most disadvantaged communities, and those with the least voice. We therefore see nice plaudits but—unfortunately—inaction, which is why we need a decent preventive strategy.
Last year, the Government slashed by half the budgets of youth offending teams. The principle was that a young person who got into trouble would have professionals to steer them away from that life. However, if the Ministry of Justice is cutting in half the amount of money that we are spending on that, we have to cut not only our preventive programmes but the programmes that pick up the pieces.
I ask the Minister to ask his colleagues at the Ministry of Justice to restore the youth offending budget, to speak to the Minister with responsibility for youth services and ensure that those services are invested in, and to make sure that those buttons are pressed and those strings are pulled. We must ensure that there are no more unnecessary deaths and ruined lives on this country’s streets.
Ronnie Cowan (Inverclyde) (SNP)
It is a pleasure to serve under your chairmanship, Mr Evans, and to speak on behalf of the Scottish National party. I thank the hon. Member for West Ham (Lyn Brown) for securing the debate. What we have heard about county lines is undoubtedly alarming—the sheer scale of the problem should give us pause for thought. According to one estimate, 46,000 children in England and 4,000 teenagers in London are being exploited. The National Crime Agency notes that the evidence gap means that the true scale of exploitation remains hidden.
Reports have highlighted the link between violent drug gangs and the exploitation of vulnerable people in the north-east of Scotland, particularly around Aberdeen, Fraserburgh and Peterhead. In line with what has been discussed in the debate, the experience there is of the threat or use of violence to exert power, particularly on vulnerable young people. In my constituency, drug deaths have more than doubled in the past decade.
The interconnected drug market that exists throughout the UK means that it is in all our interests to share best practice about how to combat this destructive force and to identify where Government policy is ineffective. That is a key point, because it is precisely our drug policies that have gifted a lucrative market to organised crime gangs who have the money, power and expertise to thrive in such an environment. The trafficking and exploitation of young people is simply an extension of their power.
Understandably, we seek vengeance. We want to see those responsible for the violence and abuse—those who exploit these vulnerable young kids—locked up, but experience tells us that whenever we incarcerate somebody for dealing, pushing or distributing, there is always somebody else in the background to step forward and fill their boots. Neil Woods was an undercover policeman for 14 years. In his book, “Good Cop, Bad War”, he outlines how he put his life at risk, day in, day out, with the aim of locking up drug dealers. Neil reckons that his actions locked people up for thousands of years, and disrupted the supply of class A drugs for a few hours.
Yesterday, there was a well attended meeting in Committee Room 10—better attended than this debate, unfortunately; where are all our fellow MPs? Most people there were serving cops or police and crime commissioners. A common phrase, repeated throughout that meeting, was, “We can’t arrest our way out of a drugs war.” That is from serving law enforcement agencies throughout the United Kingdom. We need solutions, not retribution. I understand it—if one of my kids was sold a tab at a music festival, and that tab could kill them, as we have seen time and again, I would want to hunt down the person responsible and nail them to a wall. That might make me feel good, but it would not stop the distribution, and it would not help the next parent going through the same agony that I had just been put through.
Anyone’s Child is an organisation set up by people who have lost loved ones to the drug war. Its stance is not retribution but that we need to change the legal framework and our drugs policy if we are ever going to make things better. I fully agree with Anyone’s Child and Transform that if we regulate the drug market, we will remove one of the financial incentives to enslave young people. That will also enable authorities to identify those children as victims of modern slavery, rather than criminalise them and drive them further into a criminal underworld.
In becoming involved in a life of crime, even unwillingly, those children are learning to become intimidating and violent. They have to, because the scariest dealers do not get informed on. We must be honest in recognising that that development is a direct result of the police pursuing those children. The more we try to clamp down on the drug problem, the more the violence will escalate. That is the reality on our streets. Indeed, the Home Office’s 2010 drug strategy recognised the unintended consequences of enforcement.
I completely agree with former undercover drugs detective Neil Woods, the chairman of Law Enforcement Action Partnership UK, who said:
“How do people think these kids get recruited? Do people imagine that they just get randomly approached by dealers or cold called asking them if they fancy a life of crime? They are recruited through the cannabis market with the most promising youths being recruited for a County Line, dealing heroin and crack. By regulating the market we separate the link between organised crime and teenage consumers.”
Neil Woods clearly understands that disrupting the supply chain is not enough. A drugs market in flux is a drugs markets of aggressive competition where violence and intimidation will become more common as competing interests try to maximise more lucrative profits. Expendable young people who are enslaved within the system will not benefit from even more violence and turbulence.
Neither are we helping children caught up in county lines by employing them as so-called child spies. That practice casts moral ambiguity on the UK Government at a time when they are criticising the exploitation carried out by others. I am at a loss to see how we can reconcile the UK Government’s responsibility to protect minors with simultaneously exposing them to abuse rings for the sake of intelligence gathering.
Do we fully understand the long-term physical and mental ramifications of using young people in that way? Is there a clear code of practice on how children’s welfare is protected while working with the police or security services? How does an authorising officer weigh the intelligence benefits against the potential impact on the juvenile source? A report published by the House of Lords Secondary Legislation Scrutiny Committee suggests that the UK Government do not have satisfactory answers to those questions.
I am encouraged that the Scottish Government take a different approach to combating violent crime. As was mentioned earlier, a peak of 137 murders in Scotland prompted the formation of the violence reduction unit. By taking a public health approach to violence, the VRU and the Scottish Government have made significant headway in preventing such crimes. Instead of driving young offenders into prisons, they offer them alternatives—training, mentoring and employment opportunities—thereby breaking the cycle of reoffending. Since 2007, violent crime has almost halved in Scotland and crimes involving a weapon are down by two thirds. That did not happen by accident.
Likewise, I would like our drugs problem to be reclassified as a public health issue and regulated, as I mentioned earlier. If we were to take that road, it would reduce the burden on law enforcement and the NHS, and the saved funding could be invested in treatment, rehabilitation and harm reduction instead. By taking the approach that I have highlighted on violent crime and drug addiction, we can make significant strides against county lines.
We should not be handing the market to violent criminals, and we should not allow the economic conditions to exist that incentivise gangs to exploit children. Legalising and regulating will put the Government in control and drastically reduce the illegal exploitation of children. Finally, I put on the record my appreciation for the work of Transform, LEAP UK, Release and Anyone’s Child, which continue to produce invaluable research.
Carolyn Harris (Swansea East) (Lab)
I congratulate my hon. Friend the Member for West Ham (Lyn Brown) on securing the debate. It is an absolute pleasure to serve under your chairmanship, Mr Evans. Over the summer, the Metropolitan police launched their 100th murder investigation, but it is not just a London problem. In towns and cities all over the UK, the dynamic of crime is changing, and the need to change attitudes to policing has never been greater.
County lines are a devastating crime tsunami, as I have seen first hand in my own city, where the excellent South Wales police are fighting what is, in many cases, an invisible enemy—faceless in appearance, but devastating in action. Last Thursday, I spent the evening on the streets of Swansea with the Safer Wales outreach bus, which works with victims of prostitution. I heard about two young ladies—their age is disputable—who had gone missing. It was assumed that they had been taken by drug gangs—county lines—because of debt. I heard that they were likely to be trafficked. It was explained to me what punishment they could expect, but it is too dreadful to repeat in this place. That is the reality of what we are facing.
We are losing cities and towns up and down the country to the devastating phenomenon of county lines. Drugs, trafficking, prostitution and community devastation are the dreadful consequences of this life-sucking social cancer. They are taking our children’s lives, both metaphorically and literally. We must stop thinking that current police numbers and the availability of social and community work are adequate.
The level of support, training and intervention that the Government are providing is far below what is needed. Serious crime is threatening to overwhelm our communities. I acknowledge that the Government are trying, but it is time to try harder. The number of children aged between 10 and 15 being treated for stab wounds has increased by 69% since 2013. More than half the crimes against children from that same age group are related to violence. At the centre of those rises are tragedies we should never forget. Far too many young lives are being senselessly lost.
The Children’s Commissioner has shown that a total of 70,000 youths aged up to 25 are feared to be part of a gang network. Too many lives are being wasted, too many families destroyed and too many communities devastated. The current surge in serious violence is a textbook definition of a whole-system failure, which Ministers must acknowledge. These children are the victims of austerity and rising poverty, and the figures tell their own story. Some 120,000 children are homeless. More than 70,000 are in care. Many thousands are excluded from school. The consequence for many hundreds of families is total devastation. Vital services are being pared back as a result of local authority cuts. Families arrive into the system when they are already at crisis point.
Violent crime has more than doubled in the past five years and is now at record levels. Last year, offences involving firearms increased by 11%, while those involving knives and sharp instruments increased by double that. I could regale the Chamber with examples from London, the midlands, Yorkshire or Wales—in fact, I could give examples from anywhere in the country. Despite the stories I could tell, the ending gang violence and exploitation fund, which is part of the serious violence strategy, will be just £300,000. That is hardly a commitment to tackling the reality of the serious crimewave engulfing our towns and cities.
I urge the Government to invest more in the battle fund and to meet this war—it is a war—head on. We cannot have any more families devastated. We cannot have any more lives lost. The time has passed for talking. We need to be fighting to protect our families, our communities and our children. It is time for the Government to invest the appropriate time and resources to tackle this demon head on.
The Minister for Security and Economic Crime (Mr Ben Wallace)
It is a pleasure to serve under your chairmanship, Mr Evans. I thank the hon. Member for West Ham (Lyn Brown) for securing this debate. I take the issue incredibly seriously, as do my colleagues. As the Minister for Security, my portfolio covers what we have just seen in the Chamber—the GRU, counter-espionage and counter-terrorism. However, the part of my portfolio that scares me the most, which I know I will see in my neighbourhood, my friends’ neighbourhoods and my child’s school, is serious organised crime.
One has to be very unlucky to be a victim of terrorism. One has to be even more unlucky to be a victim of an espionage event. The scale of organised crime and the empowerment of those networks in the past few years poses a threat not only to our young people of all classes through grooming, the growth in the use of drugs and the fuelling of that growth, but to all our communities. County lines have enabled crime to be exported into large parts of the United Kingdom that never had violent crime or serious organised crime. They might have had the local dealer or the local burglar, but they have never had the type of organised violence that is now wreaking havoc on their streets.
I heard the hon. Member for Gedling (Vernon Coaker), whom I have known over the years. He was a Home Office Minister in 2008, I think. What he said was incredibly pertinent. It was a well-crafted speech, if nothing else, and as ever I will horrify my officials by not reading my well-crafted speech or quoting endless facts about fund Y or fund B. I have been in this House long enough to know about listing funds—I have listened from the Opposition Benches to other Governments doing it. I am happy to write to Members with the list of funds for communities.
The hon. Gentleman is absolutely right that, to fix this problem, we will need to drive integration both horizontally and vertically. We need to integrate the community response, the local authority response, the healthcare response and the voluntary response with the vertical driving together of local policing, regional policing through the regional organised crime units, and national policing. We will need to do that to get some of the very serious gangsters at the top and bring to bear, where we can, the weight of the state to weaken them. That is not often going to be driven by the experts—the experts know what to do and are just all in different buildings in different parts of Government. It takes a ministerial drive.
One of the weaknesses in our system—I would be interested in whether the hon. Gentleman agrees—is the length of time we as Ministers have to drive the system. It might be one year in the Home Office. I have done this job for two years, and I happen to have a background in counter-terrorism. I went through all those lessons in counter-terrorism in the early 1990s in terms of sharing intelligence, ensuring we tackle permissive communities and supporting communities in distancing terrorists from that support base. I happened to start at a run, but I have been here for two years and who knows how much longer.
One of the strengths we have in our system is to drive through, to knock heads together and to box clever within Whitehall, but it is a challenge. How do I get the DCLG—I forget the new name; it is too long now they put an H in front of it—or the Cabinet Office to do something? How do I lobby the Chief Secretary to the Treasury that something needs to be done? We can sit here and talk about cuts and I can talk about debt, but it is also about priorities. If Opposition Members were on the Government side of the House, they too would be having discussions about priorities and where to spend money. We have to have stability.
The great thing about the work that the hon. Member for West Ham has done is that it is more collaborative. The way she has gone about tackling and highlighting the threat of county lines is an example to us all. We are all trying to find a solution collectively, both locally and nationally. If I may, I will address her points rather than those of other Members because of the short time available. She eloquently set out her asks.
First, there is an ask from me on social media and communication. What has accelerated county lines? What has gripped? Organised crime has existed for many years. Violence has existed in some pockets. What has accelerated county lines is social media and secure communication. There is à la carte drugs-buying from people who are posted. Sometimes they are groomed and abused, and sometimes they are willing. They go to other towns and boroughs and people order drugs à la carte through WhatsApp and Instagram. That is communicated safely to the drug barons and the drug buyers with end-to-end encryption. People can buy anything. There is an incredibly good documentary by a girl called Stacey Dooley on BBC—it is about kids buying drugs—that brings the issue home. She went to WhatsApp to show the research, and they would not even answer the door. The fuel on the fire has been that safe environment.
Mr Wallace
I do not have time. I remember Labour introduced the Regulation of Investigatory Powers Act 2000, which is where Labour brought in youth covert human intelligence sources. It was not a Conservative thing—it has been going on since 1999. When I was in the Scottish Parliament, the Scottish National party did not oppose it either. Using young people as CHIS has been around for many years.
When we introduce legislation to try to seek ways into encrypted technology there is often a knee-jerk reaction from the likes of Liberty, and too many people go along with it. Legislation is vital if we are to get into the top of those drug gangs and find out what is going on. The head of a cartel was arrested in Glasgow, I think last year. He had military-grade encryption to order directly from cartels in central America. He even distributed to the cartels and then distributed drugs back into Glasgow. We have to tackle that because that has been part of the fuel.
We also have to tackle education. What do we need to spot? It is the cuckooing and the vulnerable people. It is about educating local people, especially those in the leafy suburbs who have never seen it, and who do not know that a young person who has suddenly appeared in a flat is the victim of trafficking. Human trafficking leaks into the issue. There are nail bars up and down the country often manned by Vietnamese people who take only cash. Those people are trafficked 99% of the time, but in middle-class areas everyone still goes in to get their nails done. No one says, “There’s something odd here.” It is in plain sight, and we are working with our local authorities—the regional organised crime units are also working with them—to improve spotting the signs.
On reducing violent crime, I asked my officials to go and see an interesting project in Glasgow. I do not pretend that there have not been cuts to police, but in Glasgow, even in environments where there were falling police numbers, knife crime incidence has been massively reduced, which shows that working better together can sometimes make a significant difference. Some great work has been done in the Scottish Government on tackling that, which is important.
It leaks into the wider grooming piece. I see it in Prevent and in counter-terrorism. It is the same method whether it is sexual exploitation, crime or whatever. We have to take on the social media. That is why we are consulting, including on introducing regulations in this House. I went slightly freelance at one stage and said, “The polluter can pay.” If we have to spend hundreds of millions of pounds on police, I know where I would get that money from. They need to step up to the plate. There is the technology and we can do more. We have to tackle grooming and put people in the category of groomers. They are not glamorous. They are the same as paedophiles. They are dirty little rotten groomers who are sacrificing young people.
I saw a very successful Merseyside operation that was brilliantly done. It goes back to how we are pursuing the organised crime. As the hon. Member for West Ham said, I want to see the bad guys at the top get it. A brilliant operation was done in Merseyside where county lines were coming up into Lancashire. The police went top and bottom and worked with local authorities. Good police forces have something called local organised crime panels. Chief Constable Mike Barton in Durham has used local authorities on a regular basis. On such panels are the Environment Agency and representatives from local government. A whole load of government agencies are on the panel, saying, “If we can’t arrest them for X, we’re going to make their life a misery. We’re going to do them for fly-tipping, and then we’re going to publicly expose them and take the glamour off them.” That is happening, and with good results. Other areas could follow suit better. Some do and some do not.
I totally agree with what was said about witness protection and having a trusted system. I worked in intelligence. If no one picks up the phone, we are flying blind. No matter how many neighbourhood policemen and women we have, if people are doing it in their bedrooms on secure comms we need someone to pick up the phone and to trust the system. That is really important.
This year and next year we are going to move witness protection away from the regions. It will be administered in the regions but it will be nationally co-ordinated by the National Crime Agency. However, the Met police has not opted to do that. I urge the hon. Member for West Ham, as a London MP—this is about working with everyone—to have a word with the Mayor of London about whether that is the right way to tackle it. Some of the biggest exporters of county lines are London into the regions and Merseyside into the regions. I can say that because my home plain is Lancashire. Between the two, we need to think with our Mayors about how we can tackle some of that permissive society—some of it is permissive.
It is not just the raw victims—there is a hard edge, which is why we sometimes have to use youth as CHIS. I can write to the hon. Member for Inverclyde (Ronnie Cowan) with the many safeguards that we put in place around that risking. It is overseen by the Investigatory Powers Commissioner, Lord Justice Fulford. It has been in existence since 1999. Sometimes—very rarely—we do it. We have to do it if we are to penetrate where encryption is used, and some of the county lines where it is not. It is not something we want to do, but sometimes it is useful and we have to do it.
I would be delighted to take up the case of Ashley and Nathan if the hon. Member for West Ham and I could have a meeting. How they have been treated is outrageous. That is not the message we want to send, and I will do everything to ensure that they are given the support that they should be given. I had experience of settling people who were under threat of death if they were caught, and some of them tragically were killed.
Finally, the hon. Members for Gedling and for West Ham asked what we are doing on the organisation to tackle crime. Some 128 tonnes of class A drugs were snatched last year. Thousands of people were arrested by the NCA and 628 guns were seized. As with the Contest strategy, which started under Labour and has been refined with mistakes learnt from and driven into the fingertips of Britain, we have got to a place over the last few years where the policing response is in the right place. We have regional organised crime units, we have the National Crime Agency above that and we have local forces. If somebody goes to visit their local regional organised crime unit they will see that collaboratively such units are bringing to bear some very good resource. I am happy to facilitate that for whoever wants to go.
The Met are not in the ROCU—it chooses to do it separately. I have lots of faith that the Met has the resource—it has much more resource per head than we do in Lancashire and Merseyside—but there is a plus and a downside to that. It is well worth exploring with the Mayor of London whether he thinks that that is the right apparatus. The regional crime units can bring specialists and specialist surveillance. We often find that county lines cross county borders and constabulary borders. That is why the regional organised crime units work. My one in the north-west is based in Warrington. I will visit it again, and regularly. I have been around all of them in the country. Part of what they do is about gathering better intelligence, as the hon. Member for Gedling said, and mapping organised crime groups. Individual forces have been pretty weak at finding a common denominator. Cumbria claims to have more organised crime groups per head than Merseyside or some other parts of the country. That is a bit different, so we have to improve the intelligence.
I am happy to facilitate visits to the NCA where we can. With the upskilling and the changes that we implemented last year to conditions to make them compete better, we are getting much better capability. We are starting to deliver and bringing to bear purely intelligence-led collaborative working. I am not deaf to concerns about neighbourhood policing or cuts to the police. I know that there have been cuts to the police—I do not deny that. We can sit here and argue all day about why that had to happen and whether our priorities are right, but I recognise that we have to do something about it and we are going to try. Certainly it is about prevention as much as arrest. That is true of so many crimes, even this one—we cannot arrest our way out of it. I will not go down the long path of legalisation, but we have to keep empowering local authorities. I will send hon. Members the lists of what we do in local authorities.
One thing that I see from my desk at the Home Office—the hon. Member for Gedling will have seen this—is lots of people not bidding for funds. Colleagues understandably come and complain, and I say, “But your force or local authority didn’t actually bid into it.” I am very happy to share that with anyone if they come and say that they have seen the fund and no one has got it in their community. I can find out about it, and we will go together. We will go to Brighton and say, “Why didn’t you bid for it?” Not everybody can have the funds, but it is interesting that there are some who always bid and get them and some who never bid at all.
Mr Evans, I will sit down now and let the hon. Member for West Ham wind up the debate.
Lyn Brown
Thank you, Mr Evans, and thank you to the Minister for sitting down and giving me the opportunity to wind up quickly. It has been a superb debate. Every Member who has spoken today has brought something special and unique. They are passionate about their communities and about keeping them safe. All the contributions have been excellent.
I thank the Minister for his response. I do not often feel like doing something like that, but I thought his response was excellent and his tone was right. I am so grateful that he did not read out the speech he was given. I take him up on all the offers that he has made today, and I will be happy to provide him with information about Ashley and so on.
The problem with funding is short-termism. If people are asking for money it is for only 15 or five months’ work, which is a problem.
Motion lapsed (Standing Order No. 10(6)).
Suicide: Coroners’ Courts
(6 years, 3 months ago)
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Helen Jones (Warrington North) (Lab)
It is a pleasure to be here under your chairmanship, Sir David, for this short debate on the standard of proof for a conclusion of suicide in the coroners’ courts. To say that any suicide is a tragedy is to state the obvious. It is a tragedy for the person concerned, who could see no way out other than to take their own life; it is a tragedy for their family and friends, left with an intolerable burden to carry; but it is also a tragedy for us as a society, because we have failed to offer them another way out and failed to support them through their illness.
Suicide is an increasing problem for us. The rates are now highest among middle-aged men and have gone up by 40% in 10 years. It is also the biggest killer of young people between 15 and 34. It is a real public health emergency, yet we are often prevented from openly discussing suicide by the stigma that surrounds it. Nowhere is that stigma more obvious than in a coroner’s court. Suicide ceased to be a crime in 1961, yet until very recently the courts held consistently that the standard of proof for a conclusion of suicide had to be the criminal one of “beyond all reasonable doubt”. In effect, the state, having decided that suicide is not a crime, still treats people in a coroner’s court as if it were. That is something we should alter.
It is settled in English law that there are two standards of proof—the civil and the criminal—but a coroner’s court is not a criminal trial. It is not even litigation. It is, as Lord Chief Justice Lane said,
“a fact finding exercise and not a method of apportioning guilt.”
A coroner’s duty is to investigate someone’s death and to find out and record the facts in the public interest. That public interest duty is important, and I will return to it later.
An inquest can find that someone died in a number of ways or it can record an open verdict, but its decision is not conclusive in any subsequent litigation. The rules of procedure prohibit a coroner’s court from any finding of fact that may seem to determine criminal liability. The coroner’s court no longer has a connection with a criminal court. It used to have, and could name a person who was thought responsible for a homicide, which committed them to trial, but that power was abolished in 1977. Why, when suicide is no longer a crime and when the courts no longer have that power, do we still stick to the criminal standard of proof?
The Minister will probably be relieved to hear that I do not have time today to go through all the cases that have led us to the current position, but it is important to note that it has come about through case law; it is not in statute or in the coroner’s rules of procedure. Many of those cases were decided some time ago, when attitudes to suicide were very different from what they are today. Many of them resulted from people challenging a coroner’s verdict on suicide. That was understandable prior to 1961, when suicide was a crime and when a conclusion, or verdict as it was then, of suicide could have significant financial implications for those left behind. For instance, insurance companies often did not pay out when there was a suicide verdict. That is no longer the case, yet we continue on that road.
The situation was probably set out most clearly in the case of R v. Her Majesty’s Coroner for Dyfed, ex parte Evans, where Lord Justice Watkins held that a coroner’s jury could not return a verdict of suicide based on the balance of probabilities; it is only permissible for a coroner’s jury to return a verdict of suicide if they find, upon evidence proved to their satisfaction, that the deceased intended to, and in fact did, take their own life. That is a very high threshold to meet.
Other cases that have contributed were not in fact about suicide, but about unlawful killing. In the famous one, ex parte Gray, Lord Justice Watkins, again, referred to an earlier case, ex parte Barber, which he said had held that a verdict of suicide was only permissible if proved beyond all reasonable doubt. Other cases established that the presumption ought always to be against a conclusion of suicide, and that intent was crucial. That was understandable when suicide was a crime—every first year law student knows that to prove a crime, both the mens rea and the actus reas must be proven—but it is not understandable when it is not a crime, and many of the key cases on intent were decided many years ago, when attitudes were very different and suicide was a criminal office—for instance, the case of Southall v. Cheshire County News Company Ltd was decided in 1912, and that of ex parte Lockley was decided in 1944. None the less, they still haunt us today.
This is a real problem that still has an impact on many cases. In the case I referred to earlier, ex parte Evans, and in a similar one, R (Jenkins) v. Her Majesty’s Coroner for Bridgend and Glamorgan Valleys, the challenges to the coroner were all based on intent. Family and friends gave evidence that the deceased were in a positive frame of mind prior to their deaths. That puts us in a position where we are returning conclusions that go against the facts. What we know about suicide now is that when someone has decided to take their own life, they often seem in a calmer and better frame of mind because of that decision. In those two cases, where people tragically threw themselves in front of trains, the facts of the case were very clear—those individuals intended to end their own life. We end up with conclusions that go against the known facts.
It seems to me that the current position is also legally unsupportable. We are basing our approach on cases decided a long time ago, when suicide was a criminal offence, and on some cases that did not even involve suicide at all. Other cases in the coroner’s court are decided on the balance of probabilities. In civil litigation, a court can decide based on the balance of probabilities, even when criminal facts are involved—for instance where someone seeks compensation for a fraud, or where people sue for compensation, perhaps following a rape or the murder of a family member, we decide on the civil balance of probabilities measure.
Given this situation, it is not surprising that there are other common law jurisdictions that have refused to follow these precedents. In Canada, for example, where the coroners’ court system is closely modelled on our system, the Supreme Court decided that suicide should be decided in the coroner’s court on the balance of probabilities. Until recently, we have had all these decisions in English courts that have gone the other way. That only changed recently, in a case, R (Maughan) vs. Her Majesty’s Senior Coroner for Oxfordshire, that is now subject to appeal—I have therefore had to take advice from our omniscient and helpful Clerks about what I might say about it—concerning a narrative verdict and the instructions to a coroner’s jury. The judges held in that case—subject, of course, to appeal—that it is no longer tenable to use the criminal standard of proof given that there was no connection with the criminal courts, and that cases, whether they involve a narrative or a short-form verdict, should be decided on the balance of probabilities.
It remains to be seen what happens in that appeal. The judgment may, of course, be overturned, but I believe it is time for the Government to end this situation and legislate to make clear that the civil standard of proof should be used in a coroner’s court for cases involving suicide. I believe that for a number of reasons. First, by continuing to use the criminal standard of proof, we are in fact maintaining the stigma around suicide, which prevents us from discussing it openly and dealing with it effectively. In the past, Ministers have argued that that is not the case, but Professor Louis Appleby, who knows something about this issue, told the Health Committee during its inquiry in the previous Parliament:
“There is a principle here, which is that that standard of proof is a reflection of a system that is full of prejudice and stigma, which we ought to dismantle.”
The second reason is that, in the current system, we may be hugely underestimating the number of suicides we are dealing with. Academics who have looked at this matter, such as Professor Pritchard at Bournemouth, have concluded that we may be underestimating by between 30% and 50%. The first step in dealing with the problem is to know how widespread it is. Currently, we do not know that properly. In the past, some Ministers have been concerned about making changes that may offend faith groups. As a born and bred believing Catholic, I say gently to the Minister that that is not the duty of the state. The duty of the state is to find out the facts, as was said in the recent case, without fear or favour. The view that any faith group takes of suicide is a matter for them, not for the Government.
The third, and understandable, reason is that coroners are often reluctant to reach a conclusion of suicide because they fear the upset it would cause to the family. I understand that. I have nothing but sympathy for families left to deal with the after-effects of a suicide. In fact, I think we should offer them more support than we currently do, but again that is not the courts’ role. The public interest in knowing how many suicides we are dealing with and how they are occurring overrides that concern. In the end, if we are not able to discuss suicide openly and if people are prevented from being honest about their suicidal thoughts and seeking help because of the stigma that attaches to it, we cannot design services effectively and we may lose the chance to save lives. That, to me, is far more important.
This is not a party political matter—the current position has prevailed under Ministers of different political parties—but it is time to get hold of the anomaly and deal with it. If the Minister did that, he would have widespread support from the National Suicide Prevention Alliance, from PAPYRUS, which works to prevent young suicide and is based in Warrington—it gave me a great deal of help in preparing for this debate—and from the Health Committee, which recommended this change in its report on suicide prevention in the previous Parliament. He would also have the support of the former Chief Coroner, Peter Thornton, who wrote to the chair of PAPYRUS in 2013:
“I am supportive of the change which would reduce the standard of proof for suicide to the civil standard and have expressed that view to the Ministry of Justice.”
He would also have support across the House.
In the end, this matter is too important to leave to the lawyers and the courts. It is a major public health issue, which we need to tackle. Unless we get it right, we will not be tackling it effectively. We will lose the chance to prevent more deaths in the future, and we will be culpable for that. Some things in politics are not easy, but they are nevertheless right. I strongly urge the Minister, who has seen coroners’ courts operating and is concerned about this issue, to do the right thing and make this change for the benefit of many individuals and their families in the future.
The Parliamentary Under-Secretary of State for Justice (Edward Argar)
I congratulate the hon. Member for Warrington North (Helen Jones) on securing this debate on such an important, complex and sensitive issue. I am grateful for her passionate and thoughtful views. Her erudite speech highlighted, if my recollection is correct, not only her distinguished time as a parliamentarian but her previous career as a distinguished solicitor, as was evident from her careful and clever deployment of her legal knowledge.
Coroners’ courts are the oldest part of the judicial system in England and Wales, but they have not stood still; they have continued to evolve their processes. The Coroners and Justice Act 2009 set out a comprehensive suite of reforms to coroner law and practice, which was implemented in July 2013. The dedication and commitment of the Chief Coroner, His Honour Judge Mark Lucraft QC, and that of his predecessor, whom the hon. Lady mentioned, both in working towards continued improvement and in providing leadership, guidance and support to coroners, is second to none, and I am grateful to them both for their service.
In 2017, almost 230,000 registered deaths in England and Wales were reported to coroners—43% of the total number of deaths—and inquests were opened into 31,500 deaths by the 88 coroners’ areas across England and Wales. As the hon. Lady said, by definition bereaved families engage with coroners at an extremely difficult and stressful time in their lives. I believe that the coroner service does a wonderful job of working to ensure that its engagement is as respectful and caring as possible.
As the hon. Lady alluded to, I had first-hand experience of that when I recently had the privilege of visiting the Westminster coroner’s court to open a garden of remembrance—a personal initiative taken forward by the excellent Inner West London senior coroner, Dr Fiona Wilcox. I was also able to observe an inquest into a suicide, and I saw for myself how deftly and sensitively Dr Wilcox handled the legal process, alongside sensitively handling a bereaved family and their feelings. I pay tribute to her and all her coroner colleagues for their dedication and professionalism, often in very difficult circumstances. It is a service of which we can be proud.
As the hon. Lady said, put simply an inquest is a court hearing held by the coroner to establish who died and how, and when and where the death occurred, but it differs from other types of court hearing because it is inquisitorial, rather than adversarial, and does not establish criminal or civil responsibility, as she said, deploying her legal knowledge. At the end of the inquest the coroner—or jury, where there is one—reaches a conclusion. Historically, the standard of proof for a conclusion of suicide has been established by case law, as the hon. Lady said. Although suicide was decriminalised in 1961, case law continued to apply the criminal standard—that is, beyond reasonable doubt—as opposed to the lower civil standard.
To go to the crux of the debate, as the hon. Lady said, there have been calls for the Government to address that situation, not least by campaigning organisations such as PAPYRUS, which she mentioned and which campaigns energetically not only on this issue but on the broader one of preventing suicide among young people. As she said, the Health Committee recommended lowering the standard of proof for suicide in the reports of its suicide prevention inquiry, published in December 2016 and March 2017. The Government made it clear in their July 2017 response that they had been considering whether to make such a change. Recently, however, the matter has moved on as a result of evolving case law, with the judgment handed down by the High Court on 26 July in the case of R (Maughan) v. Her Majesty’s Senior Coroner for Oxfordshire. Before continuing, I put on record my sincere condolences to the family of James Maughan on the sad loss of their loved one in difficult circumstances.
In brief, the case, which has been alluded to, was a judicial review of the jury inquest held into Mr Maughan’s death. The senior coroner invited the jury to record a narrative conclusion, rather than a short-form conclusion of suicide, which he directed should be determined on the civil standard of proof. The judicial review claim was made by the bereaved family on the basis that the jury’s conclusion was unlawful because it amounted to a conclusion of suicide reached on the balance of probabilities, rather than on the criminal test of beyond reasonable doubt.
That judicial review claim was dismissed by the High Court on the basis that previous case law applying the criminal standard of proof was incorrect and that the correct position in the opinion of the court was the application of the civil standard. However, the High Court gave the bereaved family leave to appeal the judgment, which they have now done. A date has not yet been confirmed for the Court of Appeal hearing of the case. Pending that hearing, I hope that the House understands that it would not be appropriate for me to discuss the judgment of the High Court, other than the factual account that I have just put on the record, the forthcoming appeal, or any issues relating to or arising directly from either one, because that might impact on the case.
Helen Jones
I realise that the Minister cannot comment on the case, but may I ask whether he has had discussions with his colleagues in the Department of Health and Social Care about the impact of the existing situation on any assessment of the number of suicides and the design of services to meet them?
Edward Argar
Such issues of suicide prevention are discussed regularly with the Department of Health and Social Care. I am about to come on to suicide prevention and the broader point that the hon. Lady made, in particular about understanding the scale of the issue. If she allows me one more paragraph, I shall come on to exactly that.
I appreciate that the point I made about being slightly limited in what I can say given the legal context will disappoint the hon. Lady. I hasten to add that my intention is never to disappoint her—
Edward Argar
I hope not by me—yet. I can only assure the hon. Lady that I have of course noted the points that she and other hon. Members have made today and in the past. I will consider them very seriously, along with the Court of Appeal ruling when judgment is handed down in that case. I shall respond as appropriate at that point. Clearly, however, while the case is being heard I shall stray no further.
To come on to the hon. Lady’s wider point, I shall touch on the broader issues underlying the debate: the importance of preventing suicide, tackling potential contributing factors and understanding what it is that drives suicide in some cases. As she said, a verdict of suicide in a coroner’s court of course means that a tragedy has already occurred, and every death by suicide is a tragedy with a devastating effect on families and communities. That is why the Government updated the national suicide prevention strategy last year—to strengthen the delivery of its key areas for action, such as expanding the strategy’s scope to include addressing self-harm as an issue in its own right.
I am encouraged that data published by the Office for National Statistics this week show that in 2017 the suicide rate in England reduced for the third consecutive year. The rate is now at its lowest for seven years, which brings us closer to achieving the national ambition to reduce suicide by 10% by 2020.
Helen Jones
As the Minister knows, evidence given to the Health Committee stated that apparent reductions in suicide are often linked to changes of practice in the coroners’ courts. Will he therefore look seriously at what the Health Committee recommended on coroners being given more training in how to construct their narrative verdicts, and on giving the Chief Coroner more resources to ensure similar practice across all the courts?
Edward Argar
I am happy to look into both those matters. My understanding is that the suicide registration statistics, which are used to calculate the suicide rate, already include deaths by undetermined intent, where a suicide conclusion was not reached but where it is likely that the death was caused by suicide. There is a slight difference in the calculation of the rate, but I shall look into the points that the hon. Lady made.
I am encouraged that the suicide rate among men—the highest-risk group, as the hon. Lady said—reduced for the fourth consecutive year. That is of course a reason to do even more, because every suicide is a tragedy, and we must seek to do everything we can to prevent any suicide if at all possible.
To address suicide prevention in mental health settings, this year, the previous Health and Social Care Secretary launched a zero-suicide ambition across the NHS, starting with mental health in-patients but seeking to include all mental health patients. My opposite number in Health, the Under-Secretary of State for Health and Social Care, my hon. Friend the Member for Thurrock (Jackie Doyle-Price), has a personal commitment to that agenda. She is working extremely hard to ensure that the record levels of spending on mental health by the Government continue to drive improvement.
Clearly, suicide prevention must be a key Government priority. The hon. Member for Warrington North is absolutely right to highlight the fact that the issue is not a partisan or party political one; it is about doing what is right and improving the situation for everyone. I thank her for securing the opportunity to focus on such an important issue in the specific context of the operation of the coroners’ courts and system.
The recent High Court judgment has thrown a spotlight on a particular aspect of the national debate around the complex and sensitive network of issues involving suicide. I may not have been able to go into the level of detail that the hon. Lady might have wished, but I hope that I can offer some reassurance with my commitment: we await the decision by the Court of Appeal with keen interest, we will consider it carefully, and we will continue to reflect on the particular issue that she has highlighted so eloquently. Furthermore, should she so wish, I am happy to meet her to discuss it further.
Question put and agreed to.
Care Crisis Review
(6 years, 3 months ago)
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Sir David Amess (in the Chair)
Before we begin the debate, I alert colleagues to the fact that a Division is expected at 4.48 pm, at which point we shall adjourn for 15 minutes if there is one Division or 25 minutes if there is a second Division. We shall still have the full hour of the debate.
Lucy Allan (Telford) (Con)
I beg to move,
That this House has considered the findings of the Care Crisis Review.
It is a pleasure to serve under your chairmanship, Sir David.
I take the opportunity to put on record my thanks to the Minister for his recent announcement about the new exploitation unit. I know that he will continue to work closely with the Home Office on the exploitation of vulnerable children, and I am extremely pleased with how well he understands his brief. When he has appeared before the Select Committee on Education, he has been passionate about his commitment to children in care. He shares my passion, I know, to do everything possible to support and strengthen families. That is why he has engaged with the findings of the care crisis review. I would like to build on that and ask the Minister to acknowledge the scale of the problem, with alarming numbers of children being taken from their families and placed in state care. I would also like him to acknowledge the apparent lack of a long-term strategy to address the problem.
Although money is never the whole solution to any problem, I urge the Minister to commit to funding early support for struggling families and to ensure that the funding is ring-fenced so that it is not eaten up by statutory crisis interventions. The care crisis review was facilitated by the excellent Family Rights Group, which does so much important work in this area, and funded by the Nuffield Foundation. It was undertaken in response to the unprecedented increase in the number of children being taken into care, as a way of finding a series of solutions to bring about change. It has come up with 20 solutions—I will not go through all the findings because the Minister is familiar with them, but I will highlight one or two that I urge him to take on board.
Over the last 10 years, in the wake of the tragic case of Baby P, there has been a dramatic and consistent increase in the numbers of children being taken into state care. The figures show something like a 151% increase in 10 years of children in child protection investigations, and 73,000 young people in care in 2017—those figures are higher for 2018, although the numbers are not yet out. That translates into 90 children a day being taken into care. That is not sustainable and it is not necessary. Often, taking children into care helps councils and social workers to be protected from any accusations of failing to act, but sometimes it is not necessary.
Anna Turley (Redcar) (Lab/Co-op)
I congratulate the hon. Lady on securing this important debate. She makes a really important point about the number of children being taken into care, sometimes unnecessarily. Does she agree on the importance and value of kinship carers and wider family support networks? At the moment, there is patchy and inconsistent support for those families. Many do not get the financial support and counselling they need to take care of their children and to keep them out of the care system.
Lucy Allan
The hon. Lady has done wonderful work in Parliament promoting the role of kinship carers. She is absolutely right: the opportunity to explore other avenues before taking children into care is often overlooked. Too often, social workers say, “This person won’t be suitable,” but they have not actually done the due diligence to determine whether extended family can be supported to help keep a child connected with their identity, school, friends and network. All those things are so important to the stability of children. I hope that the hon. Lady will continue to do work on kinship carers. If I can assist her in any way, I would be more than delighted.
It used to be considered that increasing the number of children in child protection investigations or taking more children into care was a good thing. Thank goodness we no longer think that way. Clearly, it places intense pressure on children’s services and on the family court system. Too often, statutory intervention does nothing specific to help a family and is more punitive than supportive. Often, it is all that is available at the end of a long process. If all we can offer struggling families is care proceedings, of course they will not engage and work collaboratively with social workers.
Mr Jim Cunningham (Coventry South) (Lab)
I congratulate the hon. Lady on this timely debate, which in actual fact has been a long-running debate for a number of years. When we talk about problems that social workers have and criticisms of them, we tend to forget that a social worker probably has too many cases on their hands, which does not allow them to concentrate in the way that they should concentrate. Of course, there is a lack of resources.
Often, police are called to a house about an issue that has nothing to do with childcare, only to discover some appalling situation affecting children, and have to get on to the relevant authorities to try to sort it out. We have had one or two cases in Coventry like that. There is a need for a more joined-up approach. We can have as much legislation as we want, but if we do not have a proper joined-up approach, we will get nowhere fast.
Lucy Allan
The hon. Gentleman is absolutely right. One of the issues raised by the care crisis review was the intense pressure on social workers and the need to work in a problem-solving way rather than in the process-driven way that is so often their focus. They often find themselves in a blame culture where they are quite defensive, and therefore focus on getting the process right rather than finding the right solution for the child. The hon. Gentleman makes a very important point.
Placing children in care or triggering forcible state intervention is never a solution to a family’s problems. Too often, it is evidence of our failure to support children before problems escalate so they can stay safely at home or, as the hon. Member for Redcar (Anna Turley) said, with a wider family network. Time and again we hear that action is taken only at the point of crisis, and often only in the form of assessment, judgment, monitoring or scrutinising a parent’s ability to parent. The action taken is not practical support for the drugs, alcohol or mental health issues that are the cause of the crisis, but simply saying that the parents are not really good enough, and all the state can offer is removing the children from the family. Meanwhile, people often overlook the role that the extended family and the community can play in supporting families.
For all those reasons, I invite the Minister to take very seriously the solutions that the care crisis review has put forward. There is an emotionally damaging cost to children, families and to society, as well as a financial cost to the state. That is why we must have an overarching long-term view on the problem—a longer-term strategy, rather than sitting back and saying that this is a local issue for councils to decide locally what is right for them. They are on very tight budgets that often are taken up with statutory measures rather than being available for early intervention and preventive measures.
Mike Hill (Hartlepool) (Lab)
I congratulate the hon. Lady on securing this important debate. On funding, Hartlepool council’s children’s social care services have been rated by Ofsted as good, and outstanding in some areas such as children in care. Spending on that allocation has gone up by 27%, yet they face an overall council deficit of £6 million. Does she agree that there are long-term financial difficulties to resolve in local authorities’ funding?
Lucy Allan
The hon. Gentleman makes an excellent point that perfectly illustrates my argument about the duties of local authorities to spend on the statutory crisis intervention measures they are required to take by law. They have nothing left in the pot for the preventive measures that would reduce in the long term the need to spend on crisis funding. It is difficult for a local authority to have the flexibility to do what it knows would work in the long term, because it is a statutory requirement that it uses its budget primarily to meet the statutory needs of the most vulnerable children in the borough.
That is a big issue that we neglect. If there are tight budgets for children’s services, councils have to take an increasing number of children into care, which costs more, and there is less chance of reducing that number through early intervention and support. That is why we have to think and act for the long term. If we believe that families do a better job than the state, we must work with families to support them, not just judge them and find them wanting—that helps no one. The Minister will agree because, like me, he has a wonderful family. The greatest gift he could give to any child to secure their life chances is a strong family.
Anyone who works in the system will say that the short-termism that they are forced to work with is wrong, and that instead of being able to fund early help, most authorities have to proceed with the statutory interventions that so many families experience as oppressive and destabilising. My plea is to invest in early help to make long-term savings. I am thinking not just of the huge financial savings, but of the emotional cost to a child of being removed from their family and losing their home, their siblings, their friends and their school. We know that happens. The Education Committee hears too often about fostering breakdowns, which cause children to go through a whole series of placements. Time and again, children feel abandoned and isolated, and have to put their possessions in a black plastic bag to move from foster home to foster home. They never quite feel that they belong.
I know that every Member would want to prevent that from happening to any child if possible. That is why I believe that the Government could be doing so much more to set the direction and insist on a ring-fenced element of funding for early intervention and prevention. As a Conservative Government, we care about families. We care about people being able to help themselves. We believe in helping people to help themselves, but we are not doing that. We are simply saying, “The state will take care of this, because you have failed as a parent.” What message does that send about our vision of society? The number of children in care goes on increasing while everyone takes a back seat and says, “Well, it’s not really central Government’s problem, because local authorities have to make these decisions on a case-by-case basis. It just so happens the numbers are going up.” We have to look at why that is, and that is exactly what the care crisis review did.
Tim Loughton (East Worthing and Shoreham) (Con)
I declare an interest, which is detailed in the Register of Members’ Financial Interests. I agree with much of what my hon. Friend says, although I take issue with some of her analysis. Does she agree that the early help recommendation of the Munro review back in 2011 was crucial to allowing more preventive work to be done to keep families together? Alas, that recommendation never became reality. She will also be mindful of the worrying finding in the “Storing Up Trouble” report by the all-party parliamentary group on children, which came out at a similar time to the care crisis review and to which the Minister contributed, about the huge differences in intervention outcomes between authorities. A child in one local authority can be seven times more likely to be taken into care than one in another. That causes great concern.
Lucy Allan
I am grateful to my hon. Friend for that contribution. He has a long track record of expertise in this area, not least as an excellent Children’s Minister. His point about different treatment in different local authorities is vital, because it demonstrates that with the right support for families there is less need to take children into care. With the right support, children are more likely to be able to thrive safely at home. That illustrates my argument.
All Members would agree that taking children from their families must be a last resort. Indeed, the Prime Minister said exactly that when I raised the care crisis review at Prime Minister’s questions a few months ago. However, if nothing else is on offer to support a family in crisis, it suddenly is not a last resort—in some cases, it becomes the only tool a local authority can deploy. As I said, that will be of huge consequence to children, society and the state if we continue down the path of saying simply, “Let’s not invest in the long term and enabling children to stay safely at home with their families.”
Had I not seen it for myself, I would not have believed the cost of care proceedings where parents object, or the agonies they go through to keep their child with them. I have seen cases where the legal process has cost the state millions. Just think of the difference we could have made if only we had been able to support such families before they reached crisis—not only to the children’s lives, but with the millions of pounds we have spent on the court process, which is the most awful process for any family to have to go through.
I pay tribute to Edward Timpson, another excellent former Children’s Minister, for the work he did and for his knowledge and understanding of this area. He initiated fantastic projects such as Pause, which works with women who have repeatedly had children taken from them and put into the care system. To deal with their loss and grief, women continued to have children, which the state simply took away from them one after another without doing anything whatever to help them get out of the situation they were in. The futility of all that anguish seems senseless, so I am grateful to Edward Timpson for his legacy.
The only thing I would say about such projects is that, admirable as they are, they too often tinker at the edges rather than setting an overarching, long-term view of what could be done differently. That is why I welcome the suggestions in the care crisis review. Yes, some of them are about funding, which I have touched on, but the review contains all sorts of other suggestions. The Minister is very familiar with them, and I urge him to consider which ones could be implemented and which he could put his weight behind. It is important that we do not just have debates in which the Minister says, “I’m going to consider it,” and then the proposal dies a death. I have seen that happen many times. This is a real opportunity to use work that has been done for the Government by experts in the field to look carefully at what the Government can do to improve the system and make things better for children and families.
The cost to the state of a child being in care is enormous. We all know about the outcomes for care leavers and the huge challenges they face when they leave the care system. We know the statistics about the make-up of the prison population. Too often, people who have children taken from them are care leavers who did not have a parenting role model. The state deems that in itself to be a risk factor when assessing their suitability to parent. In too many cases, there is a self-perpetuating cycle of misery, and the Government do not intervene in the way they could to do amazing good. We have seen from the great projects I mentioned how much good can be done, but there does not seem to be an overarching, long-term Government strategy. Instead, understandably, the point is made that local authorities have to act on a case-by-case basis and the Government cannot intervene.
Mr Jim Cunningham
The hon. Lady is being generous in accepting interventions. She has worked hard on issues such as child abuse, which are related to this debate. One of the big problems is that successive Governments—not just Conservative Governments—have passed legislation but have not provided the funding to see it through. That is why we often get situations where things are botched, for want of a better term. We all know that local authorities have been starved of resources. Whether we accept the figures or not, that is a fact, and it puts another burden on local authorities. If we are going to have a proper strategy, it will have to be properly funded and we will need cross-party consensus to ensure that whichever party is in power sees it through.
Timpson was one of the very few Ministers I knew who actually understood the problem. I met him many times because of the problems we had in Coventry. I hope the present Minister, whom I do not know too well, has the same depth of commitment as Timpson. If he has, I am sure he will realise what the hon. Lady advocates. That will be the test for him.
Lucy Allan
I am very grateful to the hon. Gentleman for his comments and for echoing what I said about Edward Timpson’s contribution. He is correct about funding. I am not one who thinks the solution to a problem is just to throw money at it—never, never, never—but in this case, where local authorities do not have funding for early intervention, prevention and support for families, they will only be able to keep coming back to the Government and asking for more money for statutory services. There will be a cumulative effect. That will happen unless the Government step in and say, “Right, we’re going to ring-fence funding to ensure there is at least an attempt to provide adequate support, particularly where we can see a family is struggling.”
We know that if a crisis is not addressed it continues to escalate. We must be able to act. We must be able to say, “Okay, that’s no good.” People normally end up in court proceedings, where the judge says, “Ah yes, the mother needs to have therapy, she needs to go to counselling and there needs to be”—[Interruption.]
Sir David Amess (in the Chair)
Order. There is a Division in the House. The sitting is suspended for 15 minutes or, if there is a second Division, for 25 minutes.
Lucy Allan
Before the Divisions, I was talking about a situation where a family was in court proceedings and the judge told them to get counselling, but it was too late, because the timeline for the mother is not fitted to the timeline for the child and therefore the child is going into care. My point is that acting sooner is for the good of all, and particularly for the good of children, who need to be brought up in strong families.
Before I conclude, I want to say something about the role of social workers and the local authority. As we mentioned, the care crisis review refers to the risk-averse blame culture and the focus on correct processes rather than a collaborative problem-solving approach. We have to understand the difficult challenge social workers face. If a social worker has little else to offer a struggling family, of course they will be more likely to conclude that a child would be better off being removed, because they cannot take the risk of doing nothing.
As a Government, we cannot just sit back and say that these decisions must be made by the local authority, because that is a little bit too hands-off. I am not usually one to say that Government should do more, but we recognise that all social workers have a professional obligation to adhere to statutory requirements and guidelines and they simply do not have the flexibility that we imagine they do. They also have their own professional reputation to safeguard and that of their children’s services department. The local children’s services department has to fund statutory services, which speaks to the point about there being nothing left in the budget.
One important point, which I hope the Minister will take away, is that we cannot just say it is someone else’s problem. We need clarity from central Government. There are alternatives to care proceedings and some local authorities use them very effectively; we have to look at what works and encourage other local authorities to implement it. The care crisis review has come up with helpful options for change. It has specifically drawn attention to the need to tackle root causes and address the issues that children and families face on a cross-departmental basis. I am sure the Minister agrees that we should have a Children’s Minister in the Cabinet, because that cross-departmental approach is really important. The Minister has been working effectively with the Home Office on child sexual exploitation and I am grateful to see effective cross-departmental working on that issue; I know there is more of that to come under this Minister. I want to emphasise the point about ring-fencing funding for early help. We do not want to lose all the funding for children’s services to cover statutory interventions when other activities could support the families and help children to stay safely at home.
I know the Minister will have listened carefully and that he has already considered the conclusions of the care crisis review. What plans does he have to adopt any of the recommendations? Will he ask his officials to take a long-term, overarching, strategic approach to the problem? If we continue to take more children into care, the funding gap will increase. It is a sticking plaster, which will not solve anything in the long term. I know it is difficult for a Minister who is only in his post for a year or two—I hope this Minister will remain a great deal longer—to think long-term. If he implemented the strategic direction, which is currently lacking, that would be a tremendous legacy.
I believe Government have to be active in formulating direction, because there are too many legislative restrictions on local authorities. There is too much that they have to do, so they do not have the choice to operate in a more flexible manner. I know we all agree that no child should be in care if they can live safely at home, and if the Minister agrees with that, I know he will take action to make it an objective for Government. I thank everyone for taking part and the Minister for listening to me on this subject, which I have raised with him many times.
Sir David Amess (in the Chair)
I have to advise the House that the debate must finish at 6.1 pm.
Jim Shannon (Strangford) (DUP)
It is a pleasure to speak in this debate. I congratulate the hon. Member for Telford (Lucy Allan) on securing the debate and setting the scene. I know it is not the Minister’s responsibility to speak out on behalf of those in Northern Ireland, but I think it is important that we get a perspective from Northern Ireland. The figures I will refer to will show that we do not have the same extremes that there are in parts of the UK mainland, but that does not detract from my support for the hon. Lady and others who have contributed to this debate.
As I mentioned to the hon. Lady, I had the joy of being raised by both parents in a strict but loving home, and raising my own boys along with my wife—although I can take no credit for that, as my wife reared them and I was rarely there. I now have the joy of seeing my granddaughters also living in a happy and stable home. My heart aches very much, therefore, when I hear the case made by the hon. Lady, of which she has persuaded me. I think of the children in the UK and specifically in Northern Ireland, who through no fault of their own do not have the life that we have, but live in care. In the short discussion I had with the hon. Lady beforehand, we were saying how fortunate we both are to have had a loving family home, but we also recognise the responsibility we have as Members of Parliament to make the case on behalf of those who need help. I do not do it in a judgmental way. I seek solutions for the problems and try to find a way forward.
The Minister has not been in his position long, but we wish him well. The hon. Member for East Worthing and Shoreham (Tim Loughton), who is in the Chamber, was an excellent Children’s Minister. I also remember the right hon. Member for Scarborough and Whitby (Mr Goodwill), who was also Children’s Minister. We miss his contribution. He was really on the button with everything we were trying to put forward. The Minister has a hard act to follow, but we look forward to his response, which will hopefully be helpful.
In Northern Ireland, on 30 September 2017, some 2,325 children and young people had been in care continuously for 12 months or longer. The number of children in care was 5% higher than the previous year, but it represented a 57% increase from 2006. The increase over those 10 years was astronomical and put a lot of pressure on our system in Northern Ireland. Those 2,325 children represent a rate of 53 per 10,000 aged under 18, which is lower than the rest of the United Kingdom. Some 62 children per 10,000 had been in care for 12 months or more on the 31 March 2017. On 30 September 2017, 55% of those young people and children who had been in care for 12 months were male and 45% were female.
People say that there are “lies, damned lies and statistics,” but statistics prove a point. While they may not make good reading, they illustrate the issue. Similarly to 2015-16, 70% of children in care were pre-school age, some were primary school age, 26% were post-primary school age and 18% were 16 or older. There were minor differences in the breakdown between boys and girls. The rate of looked-after children in 2017 was slightly higher than that of 2016. The lowest rate occurred in 2006, when 34 children per 10,000 had been in care for 12 months or longer. We have had a consistent, long problem in Northern Ireland with children in need. We have tried to address that issue. Our health service has tried to address it fairly well within the confines of its responsibility financially, physically and emotionally.
Of those children, 18% experienced a placement change, which unfortunately can be particularly difficult. That has been the lowest number in recent years. If children whose placement move was for an adoption placement are excluded, the proportion of children with a placement change was 17%. As of 30 September 2017, more than 1,000 children in care for 12 months were placed in non-kinship foster care. The hon. Member for Redcar (Anna Turley) referred to kinship foster care, which I have a particular interest in as well. Some 5% were in residential care and some 2% were in other placement types. Of the 1,055 children in non-kinship foster care, 71 were placed for adoption.
I have always tried to support adoption over the years—it is so important to get the right home and the right availability. Today there was a meeting of the all-party parliamentary group on adoption and fostering that unfortunately I was unable to attend because of other commitments. I would have liked to have been there to give my support.
Of the 44 children in other placement types, 27 were living independently— sometimes that can happen—while the remaining 17 were in assessment centres, community placements, support accommodation, hospitals, juvenile justice centres and other placements not elsewhere described. Statements of special educational needs continue to be more prevalent among children of school age who are in care—some 24%—than the general school population.
I put to the Minister the importance of Health and Education Ministers working together, ever mindful that he is responsible for the mainland UK and that responsibility for care is devolved in Northern Ireland. When it comes to doing it better, we should be doing more in health and education together. Children in care for 12 months or longer do not perform as well as their peers in key stage assessments. Again, that tells us that the problems are not just about health and placements but about educational needs. While some of those children attain five or more As at GCSE, it is clear that many do not.
I was looking at how to describe this issue, and I wanted to give the stats and the figures in Northern Ireland to prove where the problem is. Now I want to ask everyone in the Chamber—I said this to the hon. Member for Telford beforehand—to do something different in illustrating the issue. For us, they are statistics—somebody that probably we do not know and may never know, but they may have come to our constituency office. However, we have read the pertinent statistics that highlight that our system is under immense pressure and we are failing these children. I believe we are, and the responsibility for that lies with elected representatives, with Government and with devolved Assemblies as well. We all agree that more needs to be done—the statistics speak for themselves.
I want everyone to take one of those people and think of them as their young son or daughter. Put a face, rather than just a number, to that statistic of 45%, 5% or 2%. In my case, my eldest grandchild is called Katie. How would I feel if Katie was one of the 25% who did not get their GCSEs? That is a statistic, but it is also a young person. What if Katie was one of the 17 children placed in a juvenile detainment facility? What if Katie was the child who slipped through the cracks and was one of the 127 children suspended from school in Northern Ireland last year? That is how we make statistics and figures real: we close our eyes and say, “What if that was my Katie, your John, your Jane or your Robert?” If it were my Katie, I would be doing more, so I ask myself, “Why, as an elected representative, am I not doing more now?”
I ask the Minister gently, cautiously and humbly to put his child’s face to one of those statistics, rather than see a figure. That makes it real and gives a perspective on what we are trying to say. We need to make changes to the system. Work must be done. We are not here to criticise or to point a finger; we are just here to make a heartfelt plea, as the hon. Lady did and as others did in their interventions. We urge the Minister to begin the work by making these changes, and not to simply accept or argue against the findings. The statistics are clear and they are not good reading. These children would not be abandoned if they were in our families—if they were our blood and kin—and they cannot be abandoned in our communities either. We must do more. I hope that today is the first day of acknowledging and working on that. I congratulate the hon. Lady on securing the debate, and all hon. Members who have contributed.
Mrs Emma Lewell-Buck (South Shields) (Lab)
It is a pleasure to serve under your chairmanship, Sir David. I thank the hon. Member for Telford (Lucy Allan) for securing this important debate on the findings of the care crisis review, which was expertly conducted by the Family Rights Group. She made some excellent and valuable points, as did other hon. Members who have contributed.
Sir James Munby, president of the family division, said:
“We are facing a crisis and, truth be told, we have no very clear strategy for meeting the crisis… What is to be done?”
The Minister and all of us should be alarmed that although those comments were made more than two years ago, the state of children’s social care has continued on that negative downward trajectory. The review notes
“the link between poverty and care”
and that
“local authority spending in England and Wales is failing to keep pace with the steadily rising demand for children’s services, linked to rising family poverty.”
Those comments should come as no surprise to the Minister, as his Department’s figures show that children are 10 times more likely to be on a child protection plan if they live in a deprived area.
Similarly, the Minister will know that local authorities’ early intervention grants—money that can keep children from entering care—have been slashed by his Government by up to £600 million, with almost £100 million more of cuts still to come. When the Minister was previously asked about early intervention, he said:
“early intervention is important and the Government take that very seriously.”—[Official Report, 25 June 2018; Vol. 643, c. 590.]
If that is the case, he should have no difficulty in committing today to the review’s request that he plug the estimated £2 billion gap in local authority budgets for children’s care by 2020. Services must be enabled to move on from an expensive crisis-led model to one of prevention, where there are enough resources for families to be supported and for children to remain with their family or return to their family’s care where it is safe to do so. In the prevention model, the focus on process and performance indicators changes to a focus on relationships and the absolute best way to meet a child’s needs.
As a practising social worker, I often saw the pain caused to children, their wider birth family and their new family when they were removed from their parents’ care, even when it was the safest thing to do. It is utterly heartbreaking. When opportunities to keep a family together have been missed, that heartbreak and enduring pain never leaves those involved. That is why it is vital to implement the recommendation to extend the problem-solving model of the family, drug and alcohol courts, which help to keep children out of the care system and save the taxpayer an average of £27,000 per family. I urge the Minister and his colleagues in the Ministry of Justice to halt their plans, which will lead to the closure of the family, drug and alcohol court national unit.
The Opposition very much welcome the report’s other recommendations to strengthen support for families, and its overall thrust. If implemented, it would result in a more child and family-centred social care system across the board. The recommendations are in stark contrast with the Government’s misguided efforts so far. The What Works centre has already cost taxpayers nearly £10 million and will not be in place until 2020. Partners in practice has had questionable results, with one council’s Ofsted rating falling from outstanding to requiring improvement under the Government’s scheme. The national assessment and accreditation system proved grossly unpopular, which forced a U-turn on roll-out, while gifting £23 million to private companies. The innovation programme has similarly bestowed £12 million on private consultancies, despite being time-limited and given only to certain local authorities, which exacerbates the postcode lottery. In total, £45 million has been spent on piecemeal measures that are not yielding long-term positive changes.
Three months ago, the Minister said about the very report we are debating:
“Across government we will consider its findings and recommendations carefully.”—[Official Report, 25 June 2018; Vol. 643, c. 589.]
He should be in a position today to say what he will implement from the report and detail the outcome of the discussions that have taken place so far. I look forward to hearing that in his response.
I would like to end where I began, with a recent comment from Sir James Munby’s successor, Sir Andrew McFarlane. He said:
“I, too, am clear that this is a crisis and I am extremely concerned to see that it is by no means abating.”
Coupled with recent reports in the press from members of the Minister’s own party that we are fast approaching a Baby P tragedy, it should be more than enough for him to act and put pressure where it is needed within government. I wait in anticipation and look forward to his response.
The Parliamentary Under-Secretary of State for Education (Nadhim Zahawi)
It is an honour and a pleasure to serve under your chairmanship, Sir David. I begin by congratulating my hon. Friend the Member for Telford (Lucy Allan) on securing this important debate. I know she is concerned about the number of children being taken into care and that she is a firm believer in early intervention and family support services as a vehicle for lowering care demand.
I acknowledge the increase in the number of care order applications and the number of children being taken into care in recent years. The Government are acutely aware of the impact that that has had and is having on local authorities and the courts. We are also very conscious of the implications for children and families. I am immensely grateful to all those who have worked in child protection and the family justice system, whether they are social workers, court staff, CAFCASS guardians, judges or those in other roles. We want every child to be in a loving, stable home that is right for them. In most cases, children are best looked after by their families. Children are only removed as a last resort, which is why my Department is continuing to deliver a comprehensive reform programme for children’s social care across England. I will say more about our reforms later.
I recognise the sector’s care crisis review and acknowledge the work that the Family Rights Group and others involved invested in it. The review is an important contribution to the work being done across the family justice system to address the pressures caused by rising public law volumes for local authorities and the family courts. I am pleased to say that tomorrow the Minister for family justice, my hon. and learned Friend the Member for South East Cambridgeshire (Lucy Frazer), who also has an interest in the report, and I are meeting members of the review team—Nigel Richardson, who chaired the review, and Cathy Ashley, who helped drive it—to discuss its findings.
In advance of that meeting, I can tell Members that officials in both our Departments have been carefully considering the options for change set out in the report, and we have taken action. The sector’s report sets out two specific options for change in relation to our “Working together to safeguard children” statutory guidance. First, it states that the guidance should be
“reviewed and amended so that the principles underpinning the legislation, including partnership and co-production with families, are clearly expressed and the processes for managing individual cases reflect the messages from research on the effectiveness of relationship-based practice.”
Secondly, it argued that the same guidance should be
“amended to place greater emphasis on the role to be played by key partner agencies, in addition to that played by children’s social care, in assessing and meeting the accommodation, health and educational needs of children and their families.”
I am pleased to say that we have addressed both those issues in the latest version of the statutory guidance, which we published in July. I hope Members and those who took part in the review welcome that. It is particularly important to recognise that the sector’s review stated that
“there are many overlapping factors contributing to the rise in care proceedings and the number of children in care. This complex picture means that there is no single solution.
That is in keeping with the Government’s own analysis and is why, in addition to the many reforms we are seeking to deliver, including those I will talk about shortly, we are working across Government to consider what more we can do. It includes the work that officials from my Department and the Ministry of Justice are doing with members of national and local family justice boards across England, through which we are seeking to understand the challenges in the family justice system better and consider with sector representatives what can be done to address them.
My hon. Friend the Member for Telford has an interest in early intervention. I assure her that, across Government, we are addressing the root causes of children’s needs early—be it by supporting children with alcohol-dependent parents or in families affected by domestic abuse, preventing young people from being drawn into serious violence, or investing in early years and children’s and young people’s mental health. Our “Working Together to Safeguard Children” statutory guidance is clear that local areas should have a comprehensive range of effective evidence-based services in place to address assessed needs early. The Government have also committed £920 million to the troubled families programme, which aims to achieve significant and sustained improvement for up to 400,000 families with multiple high-cost problems by 2020.
On the point that my hon. Friend made on funding for preventive support services, it is for local authorities to determine how to spend their non-ring-fenced income on the services they provide, including services for preventive support measures.
Tim Loughton
The Minister mentioned the troubled families programme, which has been a huge success in west Sussex. There is concern that the funding will not be renewed after 2020. Will he give a commitment now that that successful programme will be continued?
Nadhim Zahawi
My hon. Friend is one of my excellent predecessors—hon. Members mentioned Edward Timpson, but the work that my hon. Friend did in the Department has been a high bar for me to attempt to meet. I have seen first hand the effectiveness of the troubled families programme, and when it comes to the spending review, I will be a champion in ensuring that we continue to commit. In many of the cases that were highlighted to me by social workers in Islington and other parts of the country, a whole support system is required to help those families deliver stability for the family and the child.
Since 2016, we have been working to implement the reforms set out by my predecessor, Edward Timpson, in the “Putting children first” strategy. They centre on three key areas: people and leadership, practice and systems, and governance and accountability. I fully support the strategy and am committed to implementing it. “Putting children first” set out a five-year reform programme for children’s social care in Europe, which includes developing the social work profession, supporting innovation and improvement and establishing a new What Works centre. I will say something about them and the impact that our reforms will have.
On the social work profession, our successful Step Up to Social Work and Frontline programmes have brought new people into the profession and promoted social work as a desirable graduate career. Recently, I was pleased to be able to announce a further £25 million for Step Up to Social Work to bring a further 700 talented future social workers into children’s services. Through investment in professional development at key stages throughout their career, and the new national accreditation and assessment system, which the shadow Minister effectively dissed—[Interruption.] Not at all. The very good social workers who have been through it show very high satisfaction ratings. Hon. Members will hear more of that in the future. We are really helping to ensure that the quality of practice is consistently excellent.
Innovation and improvements are at the heart of the Government’s vision for children’s social care. The £200 million Children’s Social Care Innovation programme has deepened evidence about what good social work looks like and about the potential for innovation. It has generated a portfolio of promising successful innovations, which we are rolling out more widely to understand the potential wider impact. I am also pleased to note that the sector-led report points out that many projects are doing effective and innovative work with families who are at risk of breakdown, including helping to reduce the numbers of children being taken into care. Information from the programme will form the wider bank of evidence going into the new What Works centre, which is currently in a testing and development phase, to improve outcomes for young people and learning for the sector. The What Works centre is pressing ahead with its research programme, including examining what works on reducing the need for children to enter care. We hope it will support the uptake of quality evidence in frontline practice in children’s social care.
Mrs Lewell-Buck
I am conscious that the Minister is about to wrap up, and I am concerned that he has failed to mention anything about the links between deprivation and rising care numbers, which all the research says is a massive issue. I am interested to find out from him what exactly local authorities have done through innovation money that they would not have been able to do if they were funded properly. Would it not have been better if they were all funded properly so they could all innovate, instead of it being piecemeal?
Nadhim Zahawi
Local authorities are spending a record £9.2 billion on children’s services. The hon. Lady raises an important point and I do not want to politicise this. Yes, budgets are tight, but where I have seen good children’s services being delivered, it is very much dependent on the quality of leadership and support offered to frontline social workers.
Nadhim Zahawi
I was going to mention the point made by the hon. Member for Redcar (Anna Turley) on kinship carers. I acknowledge the work that they do. As the hon. Member for Strangford (Jim Shannon) mentioned, we should remember to turn the statistics into real children and real families. The work that kinship carers do is incredibly important in delivering stability for those children.
We have developed an improvement strategy to identify local authorities at risk of failing and put in place targeted support to help them improve, so that the services families and vulnerable children receive get better faster. We have done that by working in partnership with the Association of Directors of Children’s Services and the LGA to test the new regional improvement alliances. We believe that that will complement the new Ofsted framework, enabling a new phase of continuous sector-led improvement.
In March I announced that more than £15 million will go to eight new partners in practice, expanding our local authority peer support programme to improve children’s services. We know that some of our partners in practice are looking at what can be done to address the increased number of children entering care—this addresses the point made by the hon. Member for South Shields—and are working with them to understand what might work and how it might be used by other local authorities.
We are confident that this comprehensive reform programme will lead to better qualified and developed skilled social workers who are able to make difficult decisions, more confident local authorities and social workers that manage cases themselves including associated risks, and a children’s social care system that learns what works from evidence and applies it in practice. Ultimately, that should all lead to the right decisions being made for children and their families.
In addition, as I mentioned earlier, my Department is working with the Ministry of Justice, with which we share responsibility for public family law. We are committed to ensuring that local authorities and the courts have the resources that they need. For example, the MOJ has overseen a campaign to recruit more family court judges and to provide more court sitting days.
I thank my hon. Friend the Member for Telford for securing today’s important debate and express my gratitude for her ongoing interest. I want to address some of the points made by hon. Members. The hon. Member for Coventry South (Mr Cunningham) talked about social worker caseloads. Social workers have one of the hardest jobs in the world, and I am determined to do all I can to support them. We continue to attract high-quality recruits and we invest in fast-track and the frontline programmes. We are also establishing Social Work England as a new specialist regulator, which will set professional education training standards and provide assurances that those registered meet the standards.
The hon. Member for Coventry South made the point that the reforms came without additional funding. However, when new duties have been introduced, we have provided additional funding. For example, when the new “staying put” duty came into force in May 2014, we committed £40 million to help local authorities implement it.
It is important to address some of the questions asked by probably the most experienced Member of Parliament in the Chamber, my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton). He asked about early help being deprioritised after the Munro review in 2011 recommended an early help duty and the Government decided that such a duty was not necessary. Instead, as I am sure he knows, we strengthened the “Working together to safeguard children” requirement for early help assessment, as I mentioned. We made it clear that early help services should form part of a continuum of help in local areas.
My hon. Friend made a very good point about the postcode lottery. The Government are committed to making the reforms to improve decision making for children and their families throughout England. Alongside that, part of the joint work that my Department is undertaking with the Ministry of Justice is to understand better the basis of decision making in different areas so that we can consider what Government are able to do. For example, can we learn anything from how different local authorities use the space that precedes care proceedings and share that among all local authorities?
I shall end there, other than to say that, ultimately, in my book, everything we do and all the reforms that we deliver need to do two things: place the child at the heart of the process and deliver stability.
Lucy Allan
I thank all Members who have contributed to this extremely important debate. I value in particular the reminder from the hon. Member for Strangford (Jim Shannon) that these children are not statistics; these children are our children. I know that everyone present shares that view.
I am grateful and glad that the Minister will meet the Family Rights Group tomorrow. That is excellent news. The group will tell the Minister many of the things that I and others have said today.
The issue of funding is not one that can be so lightly skated over. I hesitate to say that, because I never think that funding is the solution to problems on its own, but the Minister may need to reconsider ring-fenced funding for early intervention. If nothing is left in the budget, there is no choice for local authorities to spend on early intervention. The LGA, Barnardo’s and Action for Children all say the same thing. He will listen to what I have said and to what others have said. Cathy Ashley will also put him right on that point tomorrow.
I am glad about the good news on children’s social care—there is lots of it, but I will continue to raise it with the Minister. There is a well of support for it on the Education Committee too, and he will be back before us to answer our questions. I am grateful to him, and I know that he has a passion for the sector, that he cares deeply about children and children in care, and that he will do everything possible to ensure that children have the opportunity to be brought up in a safe and strong family.
Question put and agreed to.
Resolved,
That this House has considered the findings of the Care Crisis Review.
Written Statements
(6 years, 3 months ago)
Written StatementsRead Full debate Read Hansard Text
Modern Slavery Act 2015: Independent Review
(6 years, 3 months ago)
Written StatementsRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Parliamentary Under-Secretary of State for the Home Department (Victoria Atkins)
On 30 July, the Home Office announced plans to launch an independent review of the Modern Slavery Act 2015. The review is being led by the right hon. Member for Birkenhead (Frank Field), my right hon. Friend the Member for Basingstoke (Mrs Miller) and the right hon. Baroness Butler-Sloss.
The introduction of the Modern Slavery Act 2015, the first legislation of its kind in the world, has helped to transform the UK’s response to modern slavery. More victims are being identified and supported; more offenders are being prosecuted; and thousands of companies have published statements setting out the steps they have taken to tackle modern slavery in their supply chains. The UK is determined to lead global efforts to tackle this barbaric crime and as the methods used by criminals to exploit vulnerable people evolve, and our understanding of this crime evolves, it is important to consider our legislative approach.
The aim of the review is to understand and report on how the 2015 Act is operating in practice, how effective it is, and whether the legal framework for tackling modern slavery is fit for purpose now and in the future. In doing so, the review will need to take into account any significant economic, social and technological changes since the 2015 Act was passed.
The following provisions of the Act will be considered in the review:
section 3 on the meaning of exploitation
sections 8 to 10 on reparation orders
sections 40 to 44 on the independent anti-slavery commissioner
section 45 on the statutory defence
section 48 on independent child trafficking advocates
section 54 on transparency in supply chains
The review will gather evidence and seek views from relevant stakeholders across a range of sectors and interest groups. The findings and recommendations of the review will represent the views of the reviewers, who will be supported by a secretariat seconded from the Home Office.
The review will aim to report to the Home Secretary before the end of March 2019. Following approval, the Home Secretary will lay the report in Parliament.
A copy of the review’s terms of reference will be placed in the Library of the House and is available on www.gov.uk.
[HCWS935]
Prevent Duty Toolkit
(6 years, 3 months ago)
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The Minister for Security and Economic Crime (Mr Ben Wallace)
The aim of the Prevent duty, commenced as part of the Counter Terrorism and Security Act 2015, is to reduce the threat to the UK from terrorism by stopping people being drawn into terrorism or supporting terrorism.
The statutory guidance which accompanied the Prevent duty was the starting point for the implementation of Prevent across sectors and places a duty on specified authorities to have “due regard to the need to prevent people from being drawn into terrorism”. A range of sector-specific advice to supplement the statutory guidance and further support duty implementation across sectors has since been issued.
The Prevent duty has made a significant positive impact in preventing people being drawn into terrorism. To further support the local government sector, the Office for Security and Counter-Terrorism has worked across government and with local partners to publish practical advice in the form of a toolkit. The toolkit supplements information provided in statutory guidance to ensure local authorities are effectively supported in implementing the Prevent duty. This toolkit does not replace the statutory guidance.
The publication of the Prevent toolkit is based on three years of productive engagement with the local government sector since the introduction of the duty, and illustrates examples of good practice to promote continuous improvement. It will support the practical delivery of Prevent by local authorities by providing information, implementation guidance, a self-assessment framework and case study examples to support local authorities and their partners in delivering the Prevent duty locally.
The toolkit has been published today and I will place a copy of it in the Library of the House. It has also been made available on Gov.uk at https://www.gov.uk/government/publications/prevent-duty-toolkit-for-local-authorities-and-partner-agencies
[HCWS934]
Rough Sleeping
(6 years, 3 months ago)
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The Secretary of State for Housing, Communities and Local Government (James Brokenshire)
I am today announcing a provisional allocation of the further funding for the rough sleeping initiative that I outlined in the recently published rough sleeping strategy.
I have already allocated a targeted £30 million rough sleeping initiative fund for 2018-19 to support those sleeping rough and those at risk in 83 local authorities with the highest need. Today’s announcement of provisional further funding for next year supports the good work that local authorities are already doing with the funding for this year.
Over the last few months our team of expert practitioners have worked closely with local authorities and the Greater London Authority (GLA) to identify service gaps and create tailored packages to tackle rough sleeping in their area this year. Together they have co-produced bespoke plans to tackle rough sleeping based on local government and third sector knowledge of what works. The new rough sleeping initiative team will work closely with local areas to implement the plans and to monitor their progress.
These provisional allocations represent another significant step in our plans to reduce and end rough sleeping following on from the publication of our rough sleeping strategy last month.
A full list of the individual amounts provisionally allocated to the 83 local authorities and the GLA has been published on gov.uk. Alongside the £34 million provisionally allocated today, the Government have set aside a further £11 million for spending on additional areas and projects to those currently supported by the rough sleeping initiative and will announce further details in due course.
This package will achieve substantial results in these areas of high need. It will also build upon the work we have already undertaken in order to meet our manifesto commitment. This work includes piloting the internationally proven Housing First approach in three areas of England, allocating over £1.2 billion in order to prevent homelessness and rough sleeping, including more up-front funding so local authorities can proactively tackle homelessness pressures in their areas, and also the recent changes made under the Homelessness Reduction Act which mean that more people will get the help they need and at an earlier stage.
[HCWS936]
Grand Committee
(6 years, 3 months ago)
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The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)
My Lords, I remind the Committee that if there is a Division in the Chamber while we are sitting, the Committee will adjourn for 10 minutes from the moment when the Division Bells are rung.
Crime (Overseas Production Orders) Bill [HL]
Wednesday 5th September 2018
(6 years, 3 months ago)
Grand CommitteeRead Full debate Crime (Overseas Production Orders) Act 2019 View all Crime (Overseas Production Orders) Act 2019 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 113-I Marshalled list for Grand Committee (PDF) - (3 Sep 2018)
Baroness Hamwee
“( ) A judge may order that notice of an application for an overseas production order be served on a controller or a data subject.”
Baroness Hamwee (LD)
My Lords, I am speaking for these well-populated Benches. It would be right to start by saying that the number of amendments that we have tabled does not indicate outright opposition to the Bill—the Minister is grinning. There are serious issues to be considered, particularly the human rights aspects of the proposals in the Bill, and we welcome in particular the judicial element which it provides. I anticipate that the response to many of our amendments will be that we are saying rather inelegantly what the Government in fact propose, or something very like it, and that we do not need to worry. We feel it important to have on the record, at the very least, how the Government will operate the Bill. Some things are not clear; I am not suggesting that what is in the Government’s mind is in any way malign, but things should be on the record at least and—better—in clear terms in legislation, whether primary or secondary. I wanted to make those points before speaking to the first of the amendments, which is Amendment 1, grouped with Amendments 2 and 40.
This grouping is about transparency. There is somebody else in the Grand Committee who can speak to this matter with far more experience than me, but I think it unusual for a court to be asked to make an order without hearing both sides of a case. We want to hear the reason for this procedure. I do not believe it can just be speed, because we can have procedures for urgent situations as an exception, as we have in other legislation; I do not believe that the requirements will be urgent in every case—we cannot know that, but it is unlikely. Amendment 1 therefore provides for a notice of application to be given to those affected: the data controller or the data subject.
Amendment 40 would import definitions from the Data Protection Act. I want to get my defence in first: the Data Protection Act cross-references other parts of the Bill, so the amendment is technically flawed, but we are only probing and it was the summer and I bottled out of substantial drafting. A data controller or subject can apply to vary or revoke an order, but that would be after the event. It is important that they be able to defend their interests initially. There is a discretion in respect of Clause 3. We will come to confidential personal records later in the Committee, which might add to the arguments for providing for a notice in Clause 1. We think that significant protections are required. We will come later to the issue of balance and how the court will weigh the interests.
We also propose in Amendment 2 the appointment—or the possibility of an appointment; it is discretionary—of an independent adviser in connection with assessing whether the requirements for the order have been met. I use this opportunity to ask the Minister to explain how this not very usual procedure will operate. I beg to move.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
I thank the noble Baroness for her introduction and I am very glad that the number of amendments does not reflect the level of controversy of the Bill. To address her first point, I say that the Bill does not preclude a judge from being able to require that notice be given to anyone affected by an order pursuant to court rules. Court rules will provide the judge with the ability to require that notice be served on anyone affected by the order, which is the case at the moment under court rules dealing with domestic production orders. This means that a data controller or a data subject may be given notice of an application, but while in principle any person affected by an order should be given notice, there will be cases where it is not appropriate because the giving of a notice to a particular person could prejudice the investigation to which the order pertains: for example, where a notice to a data subject might tip off a suspect where law enforcement agencies are seeking data for the prosecution or investigation of a serious crime.
I thank the noble Baroness for giving me the opportunity to set this out in greater detail. However, given that court rules provide a judge with the power to consider notice being given, I suggest that the amendment is unnecessary. She knew that I was going to say that.
With respect to Amendment 2, the court already has the applicant, who has a duty to assist the court, so it is an established principle that an applicant seeking an order without giving prior notice to the person on whom the order is to be served or to whom it relates is obliged to provide full and frank disclosure to the court. This includes disclosure of relevant legal principles and facts, even if they are not in the applicant’s favour. The principle therefore already ensures that the information put before the court must be balanced.
I stress that the Bill reflects the existing position in relation to production orders that can be served on a company based in the UK, and the court will be dealing with the same considerations where an existing production order is sought. Such domestic orders apply the same legal considerations without the need for an independent adviser, and I do not see why we should deviate from that existing practice simply because an order can be served on an entity based elsewhere.
The third amendment aims to define the terms “data controller” and “data subject” referenced in the amendments to Clause 1. Given that we do not believe that the Bill should be amended in the way suggested by the noble Baroness, it follows that there is no need to include definitions of data controller and data subject in Clause 17. I hope that in the light of those clarifications, the noble Baroness will feel free to withdraw her amendment.
Baroness Hamwee
I do not challenge the applicant’s duty to assist the court, but there is no opportunity for challenge at the initial stage, which is what I am concerned about. That feeds into my question: if a no-notice procedure will, as the Minister suggested, not be the norm and may be the exception, why does the Bill not provide that a judge may, in exceptional circumstances, make the order on a no-notice application? It seems to me that that would reflect what the Minister has said in explaining how this would operate. I do not imagine she will have a direct answer to that at this moment, but it might be helpful if we could discuss it further. The Minister has already invited us to discuss the Bill between today and the next day in Committee, so perhaps we can talk further about this issue. The Bill launches us straight into the no-notice procedure and, whatever the court rules may say, I suggest that people will look at the Act first. Having said that, I beg leave to withdraw Amendment 1.
Lord Paddick
“( ) The Secretary of State may not make regulations designating an international co-operation arrangement with a state which is a party to or participates in it which has not abolished the death penalty unless the agreement provides that it will apply only if the other party or participant has given assurances that the death penalty will not be imposed in any case in which or in whose preparation electronic data obtained under this Act has been used.”
Lord Paddick (LD)
My Lords, in moving Amendment 3 in my name and that of my noble friend Lady Hamwee, I will speak to Amendments 4 and 7 in our names. I will also mention very briefly Amendment 8 in the names of the noble Lords, Lord Rosser and Lord Kennedy of Southwark.
Before I launch into the meat of the amendment, I hope the noble Lord, Lord Anderson of Ipswich, does not mind me mentioning that, on the way into the Moses Room, he said that he enjoyed reading my amendments. I am extremely grateful for the extensive work carried out by my noble friend Lady Hamwee with regard to these amendments—if you know what I mean.
As we have heard, the purpose of the Bill is to allow UK law enforcement agencies to more easily obtain electronic evidence when it is sought outside the UK. Of course, evidence so secured would be subject to safeguards in the UK, but presumably the countries that enter into international co-operation agreements with the UK—a prerequisite for the operation of overseas production orders—will expect their own law enforcement agencies to be able to apply through their own domestic courts for equivalent orders that would allow them to seek stored electronic data directly from service providers based in the UK; the reciprocal agreement. Amendments 3 and 4 seek to probe how legal and human rights concerns over privacy and the security of personal data will be addressed and the issue of such evidence potentially resulting in the death penalty being passed on a subject. Amendment 3 requires that the Secretary of State may not make regulations entering into an international co-operation agreement in relation to states where the death penalty can be imposed unless the agreement restricts access to UK-held data to cases where an assurance has been given that the death penalty will not be imposed.
Article 2 of the European Convention on Human Rights—together with Protocol 13, of which the UK is a signatory—provides for the total abolition of the death penalty. My recollection of a meeting with the Minister on this very issue is that the UK would not hand over evidence in the knowledge that it would result in the possibility of the suspect being executed. However, since that meeting, noble Lords will recall the case of two former British citizens accused of being members of an ISIS cell. In a leaked letter, the Home Secretary apparently agreed to co-operate with the United States by sharing evidence but said that he would not seek a death penalty assurance. In an apparently totally inconsistent statement, he went on to say that,
“it is the long-held position of the UK to seek death penalty assurances, and our decision in this case does not reflect a change in our policy on assistance in US death penalty cases generally, nor the UK government’s stance on the global abolition of the death penalty”.
We now appear to be in a situation where government policy is to ensure that evidence does not lead to the suspect potentially facing the death penalty and to encourage the global abolition of the death penalty, except when the Home Secretary decides otherwise. How can the Government advocate the abolition of the death penalty globally on a case-by-case basis? Amendment 3 seeks to put into the Bill that an international co-operation agreement cannot be entered into with a state unless there is an agreement that the sharing of evidence would not lead to the imposition of the death penalty.
Lord Rosser (Lab)
My Lords, as the noble Lord, Lord Paddick, has said, we have tabled Amendment 8 and its objectives are obviously similar to those of the amendments that he has moved and spoken to. At Second Reading, we expressed our concerns over potential difficulties with the implications of the Bill and our amendment seeks to probe this point further.
The Explanatory Notes state that the electronic data in question may include the “content of private communications” being made “available to the state”, and that:
“These intrusions into ECHR rights can be justified as necessary in a democratic society for the prevention of disorder and crime and in the interests of national security and public safety, and are proportionate in light of the requirements that must be met before a judge can make an overseas production order, and the other safeguards set out in the Bill. To the extent that the electronic data made available may include journalistic material, the requirement that an order is made by a judge provides prior judicial oversight for the exercise of the power, and accordingly an Article 10 compliant safeguard”.
We said at Second Reading that those words might not be accepted without question by everyone.
Our amendment is intended to seek further detail and clarification from the Government about the extent of the safeguards on international human rights obligations, the similarity of interpretation of subjective wording in the Bill and the position in respect of the death penalty—not least in the light of the Home Secretary’s recent apparent change, which the noble Lord, Lord Paddick, referred to, in this Government’s previous position of principle on this issue.
Bilateral agreements with another country or countries will need to be concluded for the provisions of the Bill to be implemented. Presumably, we shall be required to provide the same access arrangements to electronic data in this country as we are seeking from those countries: namely, that an order made in their courts will be capable if necessary of being enforced or implemented here with apparently little or no judicial oversight in this country. What then will be the position if the overseas production order for the electronic data in question was being sought in respect of a case or investigation where the outcome for a defendant—if found guilty—could be the death penalty, as might apply for example in a number of states in the United States, as the noble Lord, Lord Paddick, has said? Will we allow the electronic data to be handed over or accessed in such circumstances, as we would apparently be required to do under the terms of the Bill in any bilateral agreement?
At Second Reading, the Government said:
“The agreements will recognise a shared acceptance of the laws in another country with which we are entering into an agreement. It will recognise the other’s rule of law, due process and judicial oversight for obtaining and dealing with information and evidence with regard to serious crime”.—[Official Report, 11/7/18; col. 929.]
What exactly do those words mean in relation to handing over electronic data to another country with which we have a bilateral agreement which could lead to a defendant being found guilty of a crime which carries the death penalty in that other country? Some clarification of those Government words at Second Reading will help.
The Minister wrote in a letter dated 20 July that:
“With regards to death penalty implications, it is the long-standing policy of the UK to oppose the death penalty as a matter of principle. We will ensure that the operation of any agreement, including with the US, is consistent with this position”.
One could argue that those two sentences are open to more than one interpretation. One might argue that you could oppose the death penalty in principle—tell the world that that was your position—but nevertheless still allow electronic data to be handed over under the terms of the bilateral agreement with the other country concerned, even though the crime being prosecuted or investigated was one that, in that other country, carried, or could carry, the death penalty.
Will the Government give an unequivocal statement that under no circumstances under the bilateral or other agreements enabled under the Bill will electronic data be handed over to another country or access to it given to another country if it could contribute to a defendant being found guilty for a crime which carried the death penalty? No such unequivocal assurances appear to have been given at Second Reading and no such unequivocal assurance appears to have been given in the Government’s letter following it.
Amendment 8 also states that:
“The Secretary of State may not make regulations designating an international co-operation agreement unless they have laid before both Houses of Parliament a statement certifying that—
(a) all parties to the agreement adhere to international human rights obligations”.
What is the difficulty in the Government agreeing to this amendment—or to its spirit—unless they envisage circumstances in which all parties to the agreement will not be able to signify their adherence to international human rights obligations?
The amendment refers to,
“freedom of opinion, expression and association”,
but how far does the Bill protect that in relation, for example, to journalistic data, about which certain representations have been made? A later clause provides that an application for an order must be made on notice if there are reasonable grounds for believing that the electronic data consists of or includes confidential journalistic data. However, who will draw the distinction when making the application between confidential journalistic data and other journalistic data? How will they know what is confidential and what is not? Why did not the Government decide that any journalistic material should require an order to be made on notice and illuminate this problem?
Clause 12, which concerns this, also excludes material as being created or acquired for the purposes of journalism. If it was created or acquired with the intention of furthering a criminal purpose, that must mean that if at any point in its history information was intended to be used for a criminal purpose, it will not be protected under the Bill as journalistic material. That appears to apply, even if the criminal purpose never transpired and had nothing to do with the material being held by the journalist or how the journalist acquired it. Could not the issue of criminal intent be taken into account by the judge when deciding whether to make an order rather than an issue which loses the material to journalistic classification and with it its procedural protection? Amendment 8 raises that issue.
Amendment 8 also refers to the terms “public interest”, “substantial value” and “terrorist investigation” being interpreted in substantially the same way in the courts in each of the parties to an international co-operation agreement. Once again, we raised the issue at Second Reading when we asked whether any arrangement or agreement with another country would incorporate the same standards and criteria and interpretation of those criteria that would apply in our country before making an order when a court in that other country makes an overseas production order for a British national or company based here to produce stored electronic data or give access to it. If that will be the case—and surely there is a strong possibility of different interpretations of the wording concerned in different countries, or perhaps even within states of America, for example, where we know we have advanced some way towards reaching an agreement—we also asked how we will be able to satisfy ourselves that the other country making such an order was interpreting the criteria in the same way as we would anticipate our courts would do. If we were not so satisfied, what means are available, and to whom, to step in and stop the order being enforced against the named person or company in this country? I do not intend to go into the issue of enforcement or rights of appeal, since this is addressed in later amendments.
The issues I have referred to are those on which we seek some clarification and further explanation from the Government as to exactly what is meant by the wording in the Bill: that is the purpose of Amendment 8, to which I have just referred.
Baroness Williams of Trafford
Both noble Lords rightly raised the point of the death penalty in relation to any designated international agreement, through Amendments 3 and 8. It may be useful if I make it clear at the outset that the Bill is about outgoing requests from the UK: it puts into legislation the ability for our law enforcement agencies and prosecuting authorities to request access to electronic data stored by companies based outside the UK. The Bill is a framework within which international agreements can operate but any such agreement will, of course, be subject to parliamentary scrutiny in the usual way, as both noble Lords alluded to, following the procedure set down in the Constitutional Reform and Governance Act 2010—otherwise known as CRaG. It usually involves laying the agreement in Parliament for 21 sitting days before it can be ratified by the Government.
The negotiation and operation of any international agreement must be compliant with the Government’s guidance on overseas security and justice assistance, which deals with the death penalty and human rights considerations. As part of that rigorous process, a detailed assessment of any human rights risks associated with a particular international agreement must be carried out. As part of reaching an agreement with any country, we can impose restrictions on how the other country can use information sought from a UK service provider. This would be considered as part of the process of developing and entering into a potential agreement and will depend on the risks that are identified during the OSJA assessment process. As I have said, these amendments focus on the extremely important issue of human rights, and the OSJA guidance and assessment process already exists to ensure that human rights considerations are taken into account.
In relation to the death penalty in particular, the Government do not believe that these amendments are the appropriate way to address concerns about it but I recognise the strength of these concerns. As the noble Baroness, Lady Hamwee, said, we are going to discuss this issue in more detail on Report.
Lord Rosser
Before the noble Lord, Lord Paddick, gives his answer, as I understand it this matter has been under formal discussion with the United States since at least 2016; I think that was indicated previously in Parliament. We seem to be dancing around a bit on the issue of the death penalty. If this matter has been in discussion with the United States since 2016, why has it not been ironed out in that period of two years? I do not think a clear answer has necessarily been given on the question—or at least if it has, I have not understood it—of what our approach will be. Under an overseas production order, are we going to ensure that the information would not be used against a defendant in a case where, if they were found guilty, the death penalty could apply?
Maybe I misinterpreted or misunderstood the wording but, since the Minister talked about enforcement on this, at Second Reading she said on behalf of the Government:
“The Bill is about requests from the UK rather than to the UK, but UK-based providers will not be compelled to comply with overseas orders”.—[Official Report, 11/7/18; col. 929.]
If that is the case—and perhaps the Minister could confirm that they will not be required to comply with overseas orders—presumably there is no issue over enforcement because they will just decide not to comply. Have I misunderstood the significance of what the Minister said at Second Reading in her response?
Baroness Williams of Trafford
To deal with the first point on the death penalty, I thought I had made it clear but clearly I have not. We have meetings scheduled and I would like to discuss it further before Report. I hoped that I had explained that the OSJA process was effectively a risk assessment process that sought protections and risk assessment on such things as the death penalty and other human rights issues, but I would be very grateful if we could discuss that before Report. On the other issue, that of compliance, UK companies are not compelled by UK law but they may be compelled by the other jurisdiction—that is the point that I made at Second Reading—depending on the country in question.
Lord Kennedy of Southwark
It is not only my noble friend Lord Rosser who is confused about the death penalty, as I am confused as well. It is not just that the Minister has not been clear with us; it also involves some of her right honourable friends in the department and the comments they have made. We need to address the problem there. Comments are made but then if we look at the policy on paper, they do not add up. That is the problem we have.
Baroness Williams of Trafford
I understand the point that the noble Lord is making. I, not least, look forward to the discussion that we are going to have.
Lord Paddick
My Lords, I am very grateful for the comments of all noble Lords on this group of amendments. I do not want to prolong the agony; I accept that the Bill is about outgoing requests but in order for outgoing requests to be complied with, there would be an expectation by the foreign state that a similar application to the UK would be met. We are potentially talking about UK service providers providing evidence to a foreign state that would enable that state to carry out the death penalty on a suspect. Having agreements based on trust and mutual respect, rather than a legally binding agreement, where if there are differences of opinion about what particular terms mean there would be some form of dispute resolution—no more reassurance than that—while the IP Act 2016 could impose restrictions, but might not, all seems rather vague and general. When we are talking about someone’s life potentially being ended, we would seek more concrete reassurances that evidence provided by the UK is not going to lead to that.
I understand that the intention is to have an agreement with the United States of America as a whole. However, bearing in mind that the death penalty is an issue in some states but not others, and that other agreements would be on a case-by-case basis—presumably on the basis of the human rights record of the states that the agreement was entered into with—it seems odd that a blanket agreement could be entered into with the USA when there is that crucial difference between states as to whether the death penalty could be carried out. Obviously, we are in Committee, which is about understanding concerns and the Government’s position. We need to further develop that in meetings and on Report. In the meantime, I beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
My Lords, our exchange on the previous group of amendments, when the Minister gave a lot of assurances, makes me even keener on Amendment 5, which would require writing into the Bill that a designated international co-operation agreement must be in the form of a treaty. I understand that that is what was intended, so I think it would be more than appropriate to say so. Taking only the discussion about the death penalty, it argues for the amendment, given that the procedures for dealing with the treaty under the Constitutional Reform and Governance Act 2010 include safeguards to be met before a treaty can be ratified which include transparency, debate in public, and so on.
The Minister gave a list of matters—I failed to write down all of them—to which the Government would have regard. I got down trust, mutual respect, judicial oversight and “must be compliant with HMG guidance”. The reference to guidance has my antennae twitching in this context. We do not want to rely on guidance; we want to rely on legislative certainty and the involvement of Parliament.
The Minister said either at Second Reading or in a meeting before Second Reading—we are always grateful for such discussion—that the Government would not enter into an agreement with North Korea. I could add to that nightmare not a treaty but a memorandum of understanding with North Korea, which would come nowhere near Parliament. Our laws have protection against a mad Executive and we should commit to using them.
We have had a long but inconclusive discussion about how human rights would be protected. A statement to Parliament under the 2010 Act procedure would deal with this. It might also set out standard clauses. I am unclear whether we should expect standard clauses in different co-operation agreements. They should be relatively straightforward in most cases.
For similar reasons, Amendment 38 would apply the affirmative procedure to regulations designating the co-operation arrangement. We all know about the problems with scrutinising secondary legislation.
Amendment 6 is to ask what is meant by participation in this context. Clause 1(5) refers to an arrangement,
“to which the United Kingdom is a party or in which the United Kingdom participates”.
What is participation in this context? I beg to move.
Lord Kennedy of Southwark
My Lords, the noble Baroness has done her usual forensic job of going through the Bill and done a service to the Grand Committee. It is important that we are clear about what we are agreeing. I look forward to hearing the Minister’s response. It is right that Amendment 5 makes it clear that we are talking about the treaties which are subject to the Constitutional Reform and Governance Act 2010. It is a sensible move.
Amendment 6 is a probing amendment at this stage. What is meant by participation? If you are a party to something, then there is what you are participating in, so clearly the Government think that there are two different things. It will be good to hear the Minister’s view on the difference between those two things and why they both need to be in the Bill. I am sure that “form of a treaty” needs to be in the Bill.
Finally, Amendment 8 ensures that whatever regulation is agreed will be subject to the affirmative resolution procedure in the House. Again, I think that is important. Will the Minister confirm that the Government would do that anyway and, if so, say why it is not in the Bill?
Baroness Williams of Trafford
I thank the noble Baroness, Lady Hamwee, and the noble Lord, Lord Kennedy, for their points. I turn first to Amendment 5. Clause 1 outlines the circumstances in which an overseas production order can be made. This includes that an application must specify a designated international co-operation arrangement. This is defined in Clause 1(5), to which the noble Baroness has proposed her amendment. The amendment would ensure that only treaties as defined by the Constitutional Reform and Governance Act 2010 would be capable of designation as an international co-operation arrangement under the Bill.
The definition of “designated international co-operation arrangement” in Clause 1(5) has been drafted to take into account that there may be circumstances in which a relationship with another country is established which would not attract the procedures set out in Part 2 of the Constitutional Reform and Governance Act. Those procedures require that, prior to ratification, a treaty is to be laid by a Minister of the Crown before Parliament for 21 sitting days without either House having resolved that it should not be ratified. The process does not apply to certain types of treaties including those covered by Section 5 of the European Union (Amendment) Act 2008, which include treaties that amend the founding EU treaties.
Also, some treaties can come into force on signature and do not require formal ratification and are therefore not subject to the Part 2 procedure. The definition of “treaty” in the Constitutional Reform and Governance Act also excludes instruments made under a treaty, so EU instruments would not be capable of being designated. Without necessarily knowing which countries the UK may choose to operate this arrangement with, the clause had been intentionally drafted to be wider than the definition of “treaty” under the Constitutional Reform and Governance Act to ensure that the UK can enter into arrangements with international partners where both have committed to remove any barriers to compliance for an overseas production order. In reality, it is unlikely for either the UK or another country to commit to complying with orders that have extraterritorial scope without acknowledging this through a formalised agreement or arrangement.
The noble Baroness also mentioned the point about standard clauses in all international agreements. This is a new approach to cross-border data access for law enforcement purposes. Actually, there are no templates to follow. If she means something different by “standard clauses”, perhaps we could have a further discussion. We are working with the US to develop an agreement as a matter of priority and we hope that this will act as the template for future arrangements with other appropriate countries.
On Amendment 6, the definition of an international co-operation arrangement is expansive to account for a situation where the UK itself is a contracting party to an arrangement, in the form of a bilateral treaty or multilateral convention, as well as a situation where the UK is a member of a supranational body and that body is a contracting party to such an arrangement in its own right, or has created its own internal rules which apply to its members. In the latter case, those rules would be the international arrangement in which the UK participates. Current membership of the EU is a good example whereby, in many cases, the EU—not the individual member states—is the party to an arrangement between it and a non-EU country. Further, the EU creates internal rules in the form of regulations and directives in which the UK participates as a member state. In both these scenarios, the UK participates by virtue of its membership of the EU. I hope that is as clear as mud to everyone.
I accept that with the UK’s imminent departure from the EU, a scenario in which the UK participates indirectly in an arrangement through its membership of a supranational organisation is less likely to happen. However, until that time and as long as the UK remains an EU member state, legislating along these lines recognises the status quo as now, which is that the UK can be a participant to an arrangement without necessarily being a party to it.
On Amendment 38, I refer noble Lords to the Delegated Powers and Regulatory Reform Committee memorandum, which sets out our justification for the approach that we have taken. In the memorandum, the Government state that:
“The Bill specifies in full what the implications of a designation are, and does not permit the implementation into UK law of any international arrangement in relation to the investigation or prosecution of offences, but only one that reflects the terms of the Bill. The provisions of the Bill will ensure that an order is only served where it meets the requirements of the designated international co-operation arrangement … Further, most international arrangements entered into will be subject to the procedure in Part 2 of the Constitutional Reform and Governance Act 2010, so Parliament will have had an opportunity to scrutinise the arrangement before it is ratified by the Government … Accordingly, since any exercise of the power is subject to the safeguards set out in the Bill and Parliament will already have had an opportunity to scrutinise the arrangements, the negative procedure is proposed”.
For the purposes of outgoing requests which the Bill is to be used for, any international co-operation arrangement would set out the terms of our UK law enforcement being able to make requests from another country. Although the terms will set out the reciprocal process, the arrangement will also be designated under regulations made under Section 52 of the IP Act 2016, which is how the UK will recognise any international arrangement for an incoming request. Regulations under Section 52 are also subject to the negative procedure, so the approach taken here is consistent. With those words, I hope that the noble Lord and the noble Baroness might feel happy to withdraw or not press their amendments.
Lord Kennedy of Southwark
I thank the Minister very much as I have learned something today about participants, which is useful and very good. I think the Minister was saying that Amendment 5, moved by the noble Baroness, Lady Hamwee, was too restrictive—that it would remove other treaties and arrangements. Can she maybe say a bit about what would then be the parameters if the Bill stays as it is? If I accept her point about it being too narrow, what parameters are the Government actually asking for? It is important that we are clear what we are passing.
Baroness Williams of Trafford
Put simply, I think the parameters we are discussing are that there might be circumstances in which a relationship with another country is established, which would not attract the procedures set out in Part 2 of the Constitutional Reform and Governance Act. In my view, that would therefore appear to be the scope of this. The noble Lord does not look entirely convinced.
Baroness Hamwee
The noble Lord, Lord Kennedy, may be thinking, as I am, that that begs another question. Clearly, the Minister’s reply will require and deserve reading. As she started, I thought that I should thank her for giving me some material for an amendment on Report; that may still apply. She talked about circumstances which depend on the relationship with international partners. It is the interface between politics and the law that needs resolving here. I am not sure that I can suggest anything now, but we will certainly think about it.
On standard clauses, a question was asked by the chair of the Joint Committee on Human Rights, of which I am a member—although the term there was “model clauses”. During the recess, she wrote to the Home Secretary raising a number of questions about the Bill and the Minister for Security responded, but I cannot immediately find a direct answer to that. This is linked with our earlier discussions about human rights. If there are model clauses which deal particularly with human rights, the reassurance given would be considerable.
The amendment regarding the affirmative procedure for regulations was to my mind an alternative to dealing with the arrangements by way of a treaty.
Baroness Williams of Trafford
I do not usually intervene, but the noble Baroness’s words are worthy of reflection before Report. Let us have another discussion. It sounds like we can have Committee stage in the form of a meeting shortly.
Baroness Hamwee
Of course, I am grateful for that. I was going to say that we have the delegated powers memorandum, but we do not yet have the report of the Delegated Powers and Regulatory Reform Committee, which may or may not have something to say on this. We will have another discussion when we have had an opportunity to digest the Minister’s comments on these amendments. I beg leave to withdraw Amendment 5.
Lord Paddick
Lord Paddick
My Lords, the amendment is in my name and that of my noble friend Lady Hamwee. I shall speak also to Amendment 10.
Clause 2 lists appropriate officers who can make an application for an overseas production order. The list clearly indicates what this legislation is about: securing evidence to present before a court. It is not, for example, a search for intelligence; intelligence officers are not listed. Clause 2 is a list of law enforcement officers and, as such, subsection (1)(a)(vii) and (b)(v), which allow the Secretary of State by regulation to specify others as appropriate officers, should be restricted to specified law enforcement officers and not simply be left open to any person of a description specified in regulations. Our amendments would place such a restriction on the regulating powers of the Secretary of State. I beg to move.
Lord Kennedy of Southwark
My Lords, the noble Lord raises an important point. In response, I am sure that the noble Baroness will explain to us why the Government deem it necessary to take this wider power and not restrict it, as the noble Lord, Lord Paddick, has sought to do, to officers from wherever who are actually enforcing law enforcement functions. On the face of it this seems a very sensible amendment, and I look forward to hearing why the Government think they need this wider power in this context.
Baroness Williams of Trafford
My Lords, I hope that this amendment will not require any further meetings or probing on Report. The Bill provides that an appropriate officer is able to apply for an overseas production order where an indictable offence has been committed, where proceedings in relation to that indictable offence have been instituted or investigated, or where the order is sought for the purpose of terrorist investigations. Therefore, the clause is already limited to officers who are exercising law enforcement functions. In fact, the clause already makes clear that where a listed appropriate officer has functions other than for law enforcement purposes, it is only where the appropriate officer is exercising functions in relation to the investigation or prosecution of criminal conduct that they may apply for an overseas production order. For example, a person appointed by the FCA can conduct both civil and criminal investigations and the clause ensures that they can apply for an overseas production order only in connection with criminal investigations or prosecutions. I hope that that provides reassurance.
Lord Paddick
My Lords, I am very grateful for that explanation provided by the Minister. The meeting of 20 minutes we have scheduled before Report will not be further extended as a result of this amendment and I beg leave to withdraw it.
Lord Paddick
Lord Paddick
My Lords, Amendment 11 is in my name and that of my noble friend Lady Hamwee. We debated long and hard in this House about when and how law enforcement agencies and the security services can secure authority to access bulk data. The Investigatory Powers Act 2016—not to be confused with the investigatory powers Act 2018, which exists only on BBC1 on Sunday evenings—contains some safeguards against state access to bulk data and it is essential that those safeguards are not circumvented by the Bill. The Government will no doubt say that accessing bulk data held overseas is not the purpose of the Bill, but what other reassurances can the Minister give that the powers under the Bill will not be used inappropriately by law enforcement agencies? Amendment 11 seeks to achieve this by amending Clause 3(2), changing the definition of “electronic data” to exclude bulk data. I beg to move.
Baroness Williams of Trafford
Again, I hope that I can provide clarity on the noble Lord’s amendment. When applying for an overseas production order an officer must specify or describe the electronic data sought under an order. In addition, the judge must be satisfied that a number of requirements are met before making an order under Clause 4. These include that the judge must be satisfied that the person against whom the order is sought has possession or control of all or part of the data specified in the application; that the data requested is likely to be of substantial value; and that it is in the public interest for all or part of the data to be produced. It is very difficult to see how a judge could be satisfied that these requirements are met if they were considering an application for an order seeking bulk data.
The reason is that bulk data requests are for sets of information, often about a large number of individuals who may or may not be known to law enforcement agencies. The Bill has been drafted to require appropriate officers to consider carefully what data they are targeting—which, of course, is not the case with bulk data—and where the information is stored, in order to help with the investigation and prosecution of serious crime, in addition to demonstrating that the data will be of substantial value to the investigation and in the public interest. It feels to me that there are sufficient safeguards in place, because of the processes I have outlined, and I hope that the noble Lord will feel happy to withdraw the amendment.
Lord Paddick
My Lords, I am grateful for the Minister’s explanation. I am not sure that it entirely satisfies us about the potential for misuse of the legislation, but we will reflect on what she said and perhaps discuss it with her before Report.
Lord Rosser
If there is any doubt in this matter, as I understand it from the briefing that we had from the House of Lords Library, the UK’s Deputy National Security Adviser, giving testimony to the US House of Representatives’ Judiciary Committee in June 2017, said that the UK Government were “in full agreement” with the US Department of Justice that a UK-US bilateral data sharing agreement should limit access to targeted orders for data and not bulk access to data.
Baroness Williams of Trafford
I thank the noble Lord because that underlines my point.
Lord Paddick
If that is the case, there is no reason why it should not be stated in the Bill.
Baroness Williams of Trafford
I am sorry, but I think I need to intervene. All sorts of things could be stated in the Bill, but given its purpose, I do not think it is necessary. I think that the noble Lord, Lord Rosser, pointed that out.
Lord Paddick
With the greatest respect to the noble Lord, Lord Rosser, he is talking about a bilateral agreement with United States of America and not a global reassurance given by every country with which we might enter into an agreement. Therefore, my concerns remain but, at this stage, I beg leave to withdraw the amendment.
Lord Rosser
Lord Rosser
This amendment is in my name, that of my noble friend Lord Kennedy, the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee. It would delete Clause 3(5), which states:
“Where an application for an overseas production order is made for the purposes of a terrorist investigation other than a terrorist financing investigation, this Act applies as if references to excepted electronic data did not include electronic data that is a personal record which is a confidential personal record”.
Confidential personal records are generally included as excepted data in the Bill, but this subsection provides an exception so that in terrorism cases, confidential personal records can be requested in an order.
A confidential personal record is defined in Clause 3 as a personal record,
“created in circumstances giving rise to an obligation of confidence owed to,”
an individual, whether living or dead,
“and the obligation continues to be owed”,
or the personal record,
“is held subject to a restriction on disclosure, or an obligation of secrecy, contained in an enactment (whenever passed or made)”.
I seek to find out why this subsection is in the Bill, why the Government seek to make this exception or distinction in respect of terrorism investigation and what substantial electronic data information the Government think could be secured in terrorist investigations through Clause 3(5) which would otherwise be impossible to secure.
I and indeed others have already raised the question in an earlier debate of how consistently the parties to a bilateral agreement will interpret the term “terrorist investigation”. If more electronic data can be obtained through determining that an investigation was a terrorism one, and that would be the case for other serious crimes, there could be a temptation to define an investigation as a terrorism one under an overseas production order, purely or largely for that objective. What safeguards will there be to prevent that happening? If the view is taken that the term “terrorist investigation” is being rather loosely interpreted by a party to an international agreement on overseas production orders, how can that decision be challenged? I beg to move.
Baroness Hamwee
My Lords, my noble friend and I put our names to the amendment from the noble Lord, Lord Rosser—strictly speaking, we put down the same amendment, but the noble Lord got there first. I shall add just this question to his comments: would it not be a different way of dealing with this to allow for specific application in the case of terrorism investigations? That might be more satisfactory from every angle.
Our Amendment 13 deals with Clause 3(7)(c), on the counselling or assistance, or a record of it, that is excepted. It is only when the counselling is given by the entities listed that it is excepted. Why does counselling given by someone who is not within paragraphs (i) to (iii) not come within the clause? To put it another way, who is the Home Office seeking to exclude? If the individual was “counselled” by a friend who was a person of interest to the security services, one could understand that just claiming that the record was of counselling would not be sufficient. However, Clause 3(8) defines a confidential personal record by reference to obligations of confidence and restrictions on disclosure, and I would have thought that adequate.
Amendment 20, to Clause 5, is about the contents of the order. Clause 5(2) provides that:
“The judge must not specify … data that the judge has reasonable grounds for believing … includes excepted electronic data”.
I wondered whether this meant that there would not be entirely objective approach to this issue—in other words, an objective approach to the order not specifying excepted data. How do you appeal against or apply to vary or revoke an order, given the wording of this clause? Would you not be appealing against the judge’s reasonableness when actually you should be addressing the character of the data? I do not know, but I am worried. Similar points would apply to Amendment 27 to Clause 7, which is about variation or revocation. There is a lot more to get our teeth into and, as my noble friend said, that half-hour meeting is not going to be adequate.
Baroness Williams of Trafford
It sounds as if the meeting could last more than a day. Amendment 12 would amend Clause 3(5) by excluding from scope any confidential personal records that may be in electronic form from terrorist investigations.
Police are currently able to apply for a domestic production order for confidential personal records for the purposes of a terrorist investigation under Schedule 5 to the Terrorism Act 2000. Paragraph 4 of the schedule provides that a production order can be made for material consisting of special procedure material or excluded material. These terms are defined in paragraph 3 of the schedule to have the same meaning as in the Police and Criminal Evidence Act 1984. Sections 11 and 12 of the 1984 Act define “excluded material” to include confidential personal records. The definition is essentially the same as that used in the Bill at Clause 3 (7) and (8).
The noble Lord asked about the value of confidential personal records for terrorist investigations. The value of such information is determined at operational level and obviously depends on the circumstances of each case. There may be clear operational value in having access to confidential records in the investigation, pursuit or prosecution of an offender accused of terrorist offences. However, in any event, the judge will grant such an order only if the conditions listed in Clause 4 are met. These include that the information is of substantial value to the proceedings or investigation and that it is in the public interest to seek this data.
The intention behind the provision was to ensure parity with production orders made at home and new production orders capable of being served overseas. The drafting is therefore intended to reflect the powers that currently exist for domestic production orders made under the Terrorism Act 2000. Our law enforcement in the UK should be able to access the same information from overseas as they would in the UK, and Clause 3(5) reflects this.
Parliament has long recognised that a power to require the production of confidential and personal records, subject to the important safeguard of judicial authorisation, is both necessary and proportionate in order to protect the public in the exceptional circumstances of terrorism investigations. The power in the 2000 Act replaced an equivalent one in the Prevention of Terrorism Act 1989. Given the high level of threat to public safety that can arise in a terrorism investigation and the need to be able to investigate quickly and to disrupt such threats, this is an important power in the police investigative toolkit and it is right that it should be available for international production orders. In the context of the current heightened terrorist threat, its omission would be irresponsible.
The Government resist Amendment 12 on the grounds that it causes disparity when gathering evidence here or abroad and would erode a well-established and operationally important power which is routinely used by the police in counter-terrorism investigations.
Amendment 13 relates to Clause 3(7) which defines “personal record” when providing counselling or assistance to an individual for their personal welfare. I reiterate the Government’s position in respect of the Bill: it has been drafted to ensure parity with domestic production orders. The intention is to avoid disparity between gathering evidence in this country compared with gaining evidence abroad. The same powers for law enforcement should exist for overseas production orders as for those in the UK.
The noble Baroness, Lady Hamwee, asked why—I cannot read the writing. Shall I send it back?
Baroness Williams of Trafford
She asked: why only professional counselling? The Government believe this to be an expansive definition drawing on professional counselling services rather than conversations between friends or family who can be deemed to be giving counselling advice or assistance. The definition leaves little doubt as to what is considered as counselling or support to a person’s welfare. Broadening the definition does not provide the certainty required when deciding whether or not to grant an order based on whether the material sought is excepted data.
Baroness Hamwee
My Lords, we have two definitions: “personal records” and “confidential personal records”. It is the latter that is important. Clause 3(8) makes it quite clear that there has to be some restriction or obligation of confidence, which you would certainly find in connection with professional “counselling”—and I am grateful for that way of describing it in one word. That criterion would be applied in the context of this clause overall. It may be unlikely that a non-professional counsellor would be able to meet the criteria in Clause 3(8), but it is not impossible. It seems to me that, as long as Clause 3(8) can be relied on, we should not attempt to narrow what is meant by “counselling” in Clause 3(7).
Baroness Williams of Trafford
The noble Baroness may now have confused me. Both Clauses 3(7) and (8) have been drafted to reflect existing protections in domestic production orders, which are intended to afford protection to legally enforceable relationships of trust and confidence, as well as to relationships between an individual and someone who holds a position of trust in a professional capacity—for example, a doctor—where such relationships may generate confidential information from an individual. This is different from a person who voluntarily shares information in confidence with a friend or family member who does not formally or professionally hold a position of trust and is not under a duty of confidentiality in respect of the person sharing the information.
Baroness Hamwee
My Lords, I think that was my argument. Might it be possible, between now and Report, for us to be given the references to the other legislation that this reflects?
Baroness Williams of Trafford
We can certainly do that—in fact, magically, we have it here. It reflects the definition in the PACE Act 1984, Section 12 of which defines “personal records”. As such, this material is excluded from the scope of a PACE production order.
The noble Baroness asked about safeguards. The Bill has been drafted to include multiple safeguards so that a person is not required to produce excepted electronic data. Clause 5(2) includes one of these safeguards: that a judge must not specify or describe data in an overseas production order where he or she has reasonable grounds for believing that the data sought includes or consists of excepted data. The wording “reasonable grounds for believing” is used in other parts of the Bill—for example, in Clauses 1 and 7, where further safeguards place a similar restriction on the applicant applying for an overseas production order and where an applicant is applying to vary an order.
At the time of considering an application for an order, there will be cases where neither the judge nor the applicant can be certain whether the data sought does in fact include excepted data. This is simply because the contents of the data cannot be known by the judge or the applicant until they are produced. In my view, it is therefore appropriate for the term “reasonable grounds for believing” to remain in the Bill to make clear that the judge has the ability to consider whether excepted data might be obtained, taking into account the other factors that might help them reach such a conclusion. With that explanation, I hope that the noble Lord feels happy to withdraw the amendment.
Baroness Hamwee
My Lords, I should just say that I accept that the terminology is used elsewhere: one of my amendments objects to its use elsewhere. I am still troubled by how it applies here, as I am not sure how one would apply for the revocation, but I will of course go back to look at it.
Lord Rosser
I thank the Minister for her response. I will reflect on what she said about Amendment 12. I was not entirely clear about her response to my question: if a view was taken that the term “terrorism investigation” was being rather loosely interpreted by a party to an international agreement on an overseas production order, how could that decision be challenged? I may have missed her response but, if so, could she repeat it?
Baroness Williams of Trafford
I am not sure that I answered that point, other than to say that we would not want to narrow the scope so that omission would lead to a terrorism investigation being curtailed. Perhaps I could come back to the noble Lord on the other point.
Lord Rosser
Yes, I am sure that we can discuss that on another occasion or at the intended meeting. However, I hope that the Minister will take my point that some countries may have a rather looser definition of who or what is a terrorist than we would in this country. Although I appreciate that the Bill is about orders made in this country, nevertheless, before we have that arrangement there has been an agreement the other way, so it is relevant to talk about what other countries might demand or seek from us.
Baroness Williams of Trafford
I am sorry to intervene on the noble Lord, but at the heart of the Bill lies the principle that we would not be dealing with countries with hugely differing levels of legal thresholds or judicial considerations, and all the other things that we have talked about. But yes, perhaps we can talk about that further.
Lord Rosser
I understand the point that the noble Baroness has made more than once: that we are unlikely to be signing a deal with North Korea. I fully accept and understand that, but I think that there may be one or two other countries with whom we might sign a deal who may have a slightly different definition of who or what is a terrorist than we might choose to apply. That is important under this, because it gives you access to information that you would not otherwise have.
Again thanking the Minister for her response, I beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
My Lords, I have been consulting my noble friend as to whether I should be moving an adjournment so that we can all get a cup of tea or possibly soup, but he thinks that that is a matter for the Government Whip. So I will instead move Amendment 14—I do not think it will be exciting enough to warm us up.
Clause 4(1) applies requirements for seeking an overseas production order set out in subsections (2) to (6), and such additional requirements as the Secretary of State adds through regulations. I acknowledge that the regulations will be subject to the affirmative procedure but, as I said earlier this afternoon, we all know the problems of scrutinising secondary legislation and the almost insurmountable problem of amending or stopping it. We also know about the importance of protecting against an overweening or out-of-control Executive.
My amendment refers to the characteristics of the additional requirements as being consistent with the provisions of what will be Section 4, because the very fact that no limiting factor is expressed raises the issue. I accept, before the Minister says it, that these are additional requirements, so, in any event, they should comply with subsections (2) to (6).
Amendment 15 would leave out “(so far as applicable)”, because I for one do not understand what,
“additional requirements … specified in regulations … (so far as applicable)”,
means. The words must mean something. If the additional requirements are not applicable, they will not apply, so what are we worried about? I beg to move.
The Deputy Chairman of Committees (The Countess of Mar) (CB)
I tend to sympathise with the noble Baroness. I was warned to bring my coat in before I came.
Baroness Williams of Trafford
My Lords, if I were Whip, I would allow a short break if for no reason other than to go and get a hot water bottle. I am still in summer clothes.
Subsections (2) to (6) of Clause 4 set out the substantive requirements for a judge to consider when making an overseas production order. These include the judge being satisfied that there are: reasonable grounds for believing that a person on whom an order is served operates or is based in a country outside the UK with which the UK has a designated international co-operation agreement; reasonable grounds for believing that an indictable offence has been committed and is being investigated—or proceedings have been instituted—or that the application relates to a terrorism investigation; reasonable grounds for believing that the data sought is likely to have substantial value to the proceedings or investigation; and reasonable grounds for believing that it is in the public interest for the electronic data to be produced.
The amendment would ensure that any additional requirements made by way of regulations under Clause 4(1)(b) are consistent with the requirements under Clause 4(2) to (6). Any further requirements made by way of regulations will be in addition to existing requirements already set out in Clause 4. It follows therefore that any additional requirements cannot contradict the provisions already set out, as these will have to be complied with. There will not be a scenario where only additional requirements as set out in regulations are complied with. In every case, the requirements under Clause 4 must be satisfied before granting an order.
In addition, unless there is express provision in the enabling Act, delegated legislation cannot amend or vary it. Therefore, an additional requirement as set out in regulations under this clause could not have the effect of contradicting or undermining the requirements of the Bill. For example, a regulation which sought to change the type of offence as already set out in Clause 4(3) from an indictable offence to a summary offence could not be adopted under the provisions of the Bill.
Furthermore, the scope of secondary legislation is limited by the scope of the enabling legislation. As the power is to provide for “additional” requirements, it follows that those requirements will be compatible with those already in Bill. The power to provide additional requirements and regulations is subject to the affirmative procedure. Should additional regulations be required, the House will have an opportunity to scrutinise the proposed requirements before they come into law.
The language in Clause 4(1), which the noble Baroness is seeking to amend, clarifies that the additional requirements set out in the regulations may not apply in all cases or in every application for an order. There may be international agreements the terms of which do not warrant additional requirements to be specified in regulations to be made by the Secretary of State. This could be because both the UK and the other country participating or party to the arrangement may choose a wide-ranging agreement that does not place any further restrictions on that which is already proposed in the Bill. The clause therefore reflects the reality that in some cases a judge need only be satisfied of the requirements met in Clause 4(2) to (6) without necessarily having regard to all additional requirements that may have been specified in regulations made by the Secretary of State. With those words, I ask the noble Baroness to withdraw her amendment.
Lord Rosser
Before the noble Baroness responds, I have a question for the Minister. I have listened hard to what the Minister said. Is the clause in there because the Government think it would be helpful as there might be a need to make additional requirements, or do they actually have a view at this stage on what kind of additional requirements those might be?
Baroness Williams of Trafford
In a sense, this is the same issue that the noble Lord referred to before. Because this is a framework Bill, as I said, a judge may be satisfied that the Bill itself provides enough but the additional requirements—as yet unknown—may be applicable in another agreement, as yet unspecified. It gives that scope where it might be required in future.
Baroness Hamwee
My Lords, I would like to think about the response to Amendment 15. I think I made clear that I anticipated the Minister’s response to Amendment 14 but she said it much more nicely and fully, and I am glad to have it on the record. I beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
My Lords, this is another amendment in my name and that of my noble friend. Under Clause 4(5) the data must be of “substantial value”. I read that as meaning that it must not be trivial. I wonder whether it should be “significant value”, which I think would make a difference to the proceedings or the investigation. I may be told that this repeats language in other legislation, and if that is the case then again I would be grateful for the reference. However, I wonder whether there is a distinction between something that adds weight to what you already know and something that, if it is not a game-changer, you would not get from elsewhere.
We are told that this legislation is likely to be used to enable access to data held by American companies so, as well as wondering whether the terminology reflects other legislation in this country, it occurred to me that maybe it reflects something in American legislation in the cloud. This is of course a probing amendment. I beg to move.
Baroness Williams of Trafford
I am very happy to tell the noble Baroness that this is purely British. “Substantial” is a well-established test laid out in PACE 1984. Under Section 8 of that Act a justice of the peace must be satisfied that the material on the premises is likely to be of substantial value before authorising a production order application. “Substantial” is a familiar term to appropriate officers, who will be making applications. They will have many powers at their disposal, and creating a consistent regime is clearly beneficial to quickly understand what will be required to apply for an overseas production order. Given that the term “substantial” is well-established, it is obvious that there exists a body of case law that helps further define and interpret the term, both for appropriate officers and, of course, for the judiciary.
The case law establishes that “substantial” is to be given its plain and ordinary meaning, which will please the noble Baroness, who likes the plain and ordinary in linguistic terms. For example, in the case of Malik v Manchester Crown Court, the High Court found that “substantial” was an ordinary English word and that “substantial value” was a value which is more than minimal: it must be significant. I hope that that provides great clarity to the noble Baroness and that she will feel happy to withdraw her amendment.
Baroness Hamwee
My Lords, I think I ought, after today, to consult my noble friend, who will know all about PACE, as I do not. Yes, of course, I beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
My Lords, these amendments are about public interest and the balance between public interests. Clause 4(6) requires the judge to consider the public interest and whether it is in the public interest for the data to be produced or accessed, having regard to the matters set out in Clause 4(6). There is a public interest as well in access to data and privacy and it seems to me that the various interests here cannot be judged in isolation. I should like to insert a reference to the public interest in privacy, but in any event to understand at this stage how that balance is dealt with, since the judge is required to have regard to one public interest only. There is a public as well as an individual interest in privacy rights, and I beg to move.
Baroness Williams of Trafford
My Lords, Amendments 17 and 18 do not add any protections for privacy rights to those already contained in the Bill and under the Human Rights Act 1998. Without these amendments, the judge would still be required to take into account the impact on an individual’s right to privacy when determining whether the public interest requires production of the data sought.
We understand the need to balance a citizen’s rights and interests against the public interest in law enforcement officers’ ability to investigate crimes and use powers to obtain evidence. This is why the existing requirements in Clause 4 consider not only whether data sought would be in the public interest but whether it would be of substantial value to the investigation or proceedings. A judge is under an obligation to balance the rights of an individual against the state’s need to investigate a crime and to reach a decision which is compliant with the individual’s rights under the ECHR.
I hope that, with those reassurances, the noble Baroness feels happy to withdraw her amendment.
Baroness Hamwee
My Lords, I am grateful for those helpful remarks. I beg leave to withdraw the amendment.
Lord Paddick
“( ) The judge must be satisfied that the electronic data specified or described in the application is not confidential journalistic data.”
Lord Paddick
My Lords, in moving Amendment 19 in my name and that of my noble friend Lady Hamwee, I will speak to our Amendments 33 and 34 in this group.
Journalistic data of any kind is not excepted electronic data as set out in Clause 3, despite representations made by media organisations that it should be. Instead, under Clause 12 the application for an overseas production order, if there are reasonable grounds for believing that the electronic data specified or described in the application consists of or includes journalistic data that is confidential journalistic data, must be made on notice. Confidential journalistic data consists of data created or acquired for the purposes of journalism and in circumstances that give rise to an obligation of confidence that continues or is held subject to a restriction on disclosure or an obligation of secrecy.
This begs the question: how does the judge make a judgment about whether there are reasonable grounds for believing that confidential journalistic material is involved? Does the judge take the word of the applicant? If the judge determines that confidential journalistic material is involved, how will notice be served on the parties concerned and how will those parties make representations? To probe these issues, Amendment 19 inserts the requirement that:
“The judge must be satisfied that the electronic data specified or described in the application is not confidential journalistic data”.
Clause 13 prohibits the overseas parties from concealing, destroying, altering or disposing of the data, or disclosing the application to anyone else, once they are given notice of the application. What sanction can be imposed for failing to comply? Can it be contempt of court, bearing in mind that at that stage the judge has made no order, only given notice that an application for an order has been made?
Amendment 33 provides that Clause 12(1) should specify that the notice should be served on the data controller and the data subject specifically, as well as anyone else the judge considers necessary. Amendment 34 amends Clause 12(4) to specify that notices should be served on a person R, referred to in Clause 12(3): that is, the person who receives electronic data from another person who intended it to be used for journalistic purposes. I beg to move Amendment 19.
Lord Rosser
I referred to the general issue that is the subject of the amendments spoken to by the noble Lord, Lord Paddick, when I spoke to Amendment 8. We share the concerns expressed by the noble Lord, subject to what the Minister may have to say in response, about the possible difficulties or issues that might arise.
Baroness Williams of Trafford
I thank the noble Lord, Lord Paddick, for his points and the noble Lord, Lord Rosser, for his intervention. The effect of Amendment 19 would be to exclude confidential journalistic material from the scope of an application and order. I should first point out that Clause 4 reflects the position in the PACE Act 1984. Journalistic material can already be sought under Schedule 1 to PACE through special procedure, and under Schedule 5 to the Terrorism Act 2000, when it is held by a company or person based in the UK. The Bill extends this to circumstances where the data is held by an entity based outside the UK and where a relevant international arrangement is in place.
I do not think that we should introduce in the Bill a difference between material that can be obtained—subject of course to appropriate requirements and safeguards—when it is held in the UK, as opposed to being held by an entity based on the country with which we have entered into an agreement. I should also stress that similar standards are set out in the Bill as already exist in domestic legislation, and that the term “reasonable grounds for believing” is readily used by our court system. Reasonable belief requires more than just a guess or a hunch. It will require the judge, marshalling all the facts before them, to come to an assessment on whether the information sought does or does not contain this type of data. It is not the first time that that standard has been used in legislation, and of course it will not be the last. Where confidential journalistic material is sought, the Bill requires that such applications can only be made on notice. That means that anyone put on notice, which can and may include the journalist whose data might be sought, has the opportunity to make representations to the court as to whether it is appropriate for the data to be obtained.
The effect of Amendment 33 as drafted would be that an application for an overseas production order that included confidential journalistic material had to be made on notice to a data controller and the data subject. I understand the sentiment behind the amendment but I do not agree that it is required, for two reasons. First, the rules of court will set out the process by which a judge can ensure that anyone affected by the order is notified of any given case. Consideration of notice by the judge relating to such a request is left to his or her discretion to allow for the circumstances where notice to a data controller, data subject or anyone else is deemed appropriate by the judge when granting an overseas production order. I think giving the judge discretion to determine which is appropriate in any given case is the right approach.
Secondly—this is a point that I have made before and will make again—we are providing in the Bill the means to serve an order on a company based outside the UK in a country with which we have a relevant agreement, in the same way as is currently the case with a company based in the UK. In those cases the respondent and any other person affected by the order would ordinarily be given notice and therefore the opportunity to make representations, unless under rules of court the judge is satisfied that there are good reasons for not doing so—for example, because of the risk of prejudice to the investigation. We are proposing that the same should apply to overseas production orders.
The intention of Clause 12 is to require an application for an overseas production order to be made on notice where there are reasonable grounds for believing that the electronic data sought consists of, or includes, confidential journalistic data. The effect of the clause as drafted is that notice should be served on the respondent—that is, the person who would be required to produce the data if the order is made. In most cases, this would be a service provider rather than the customer on whose behalf the data is stored. However, a requirement to give notice to the respondent under Clause 12(1) does not preclude the judge considering the application from exercising his or her own discretion under rules of court. Under rules of court they may require notice to be given to other persons who may be affected by an order requiring the production of confidential journalistic material, including a person who in his or her professional capacity has acquired that data. It will be a matter for the judge’s discretion, but he or she is likely to insist on notice being given unless the applicant can demonstrate that doing so would prejudice the investigation—for example, where the journalist himself or herself is the subject of the investigation or prosecution.
An example of where it might not be appropriate is where there is a hacking investigation and the journalist might actually be the subject of an inquiry. The judge may decide that putting someone on notice could potentially harm the investigation or risk the dissipation of the material. It is the Government’s intention, however, to ensure that where an application relates to confidential journalistic data, notice can and should be served on journalists and on whoever the judge deems appropriate given the circumstances of the application. The PACE Act 1984, for example, requires service to be made on the respondent only, otherwise notice requirements are set out in court rules.
The noble Lord, Lord Paddick, made an important point about sanctions to comply. It is difficult to construct a proportionate regime to ensure nondisclosure prior to an order being made and, in practice, law enforcement would not apply for an order where there was an unacceptable risk of damaging disclosure. I ask noble Lords not to press their amendments and I shall consider their comments before Report, if that is amenable to them.
Lord Paddick
I am very grateful to the Minister for her explanation and her offer to consider further the issues that the noble Lord, Lord Rosser, and I have raised in connection with these issues. Obviously, Amendment 19 is a probing amendment, a mechanism by which to debate these issues, but with the promise of further discussions to come before Report—perhaps the Minister could also establish whether the Government have consulted the National Union of Journalists on these issues—I beg leave to withdraw the amendment.
House of Lords
(6 years, 3 months ago)
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Visas: Forced Marriages
(6 years, 3 months ago)
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Lord McConnell of Glenscorrodale
To ask Her Majesty's Government on how many occasions in 2017 visas were granted to men whose wives or family members had raised concerns about forced marriage.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, forced marriage is a terrible form of abuse and this Government are committed to tackling it. Where a suspected victim is made to sponsor a visa application, UKVI works with the joint Home Office and Foreign and Commonwealth Office Forced Marriage Unit to ensure that it is investigated further and, if appropriate, refused. The Home Secretary will reply to the Home Affairs Select Committee on the cases reported in the Times. I will ensure that the noble Lord receives a copy and that a copy is placed in the Library.
Lord McConnell of Glenscorrodale (Lab)
My Lords, far too many young women are tricked into leaving this country, forced into marriage in a number of countries in the Middle East and south Asia, repeatedly raped until they are pregnant, brought back to the United Kingdom to have the baby, and are then involved in the corrupt practice of applying for a visa for their forced husband. Last year, 88 of those women or their representatives made representations to stop the husband they had been forced to marry from entering this country and in 42 of those cases, the Home Office granted a visa. Surely it is time to either use the laws that we have at the moment to ensure that these men do not receive visas and these women are granted anonymity, or we change those laws to make sure that these women are properly protected.
Baroness Williams of Trafford
I cannot disagree with much of what the noble Lord has said other than to say that a large majority of the 42 visas issued were referred to the Forced Marriage Unit by UKVI, rather than being the result of a reluctant sponsor. I thought that I should just correct that information which appeared in the Times. On the noble Lord’s other point about what more can be done to protect these women—it is so harrowing to see these cases; and I was very surprised to learn that half the cases involved men who have had to enter into a forced marriage—the Home Secretary is acutely aware of the issue and is looking at ways of exploring what more can be done to protect these very vulnerable people.
Baroness Warsi (Con)
My Lords, I am pleased to hear that my right honourable friend the Home Secretary is looking into this matter. Could he specifically look at this issue of where the rules effectively do not relate to the real-life circumstances that we are faced with? We have reluctant sponsors in this country who are not prepared to openly say that they are reluctant and, because they are not prepared to do so, the rules are not responsive enough to stop the husband coming in. Secondly, same-sex relationships and same-sex marriage are criminalised in many countries around the world. How are the rules responding to applications from same-sex individuals in same-sex relationships who apply to come to join their partners in the United Kingdom? The Government need to ensure that the rules are responsive to the real-life situations that these individuals face.
Baroness Williams of Trafford
My noble friend makes a very good point on same-sex relationships, particularly when the applicants come from certain countries. On her first point about reluctant sponsors, I think that some applicants are reluctant because they have been put in such a vulnerable position. Therefore, other reasons for the visa refusal will be given if they are available and “reluctant sponsor” will be given as a last resort. She has raised a really pertinent question on same-sex partnerships and I will raise it with my right honourable friend the Home Secretary.
Baroness Hussein-Ece (LD)
My Lords, we have heard about evidence of the Home Office failing to protect victims who say they are at risk of forced marriage, for fear of being accused of racism, as in some of the examples we have been hearing about. But at the same time the Home Office was very happy to deport the Windrush generation, who were legally here, singling them out in a racist way. It has devastated people’s lives on either side of the argument. I ask the Minister: when is the Home Office going to get a grip and ensure that it implements the proper lawful procedures to protect individuals?
Baroness Williams of Trafford
I hope that in my Answer to the noble Lord, Lord McConnell, I clarified the position on what appeared in the newspaper. In fact, it was the other way round: in the majority of cases it was proactive referral by UKVI to the Forced Marriage Unit, which looked at them as part of its safeguarding work, as opposed to visas being granted where there was a reluctant sponsor. To conflate the issue with Windrush is quite wrong because we are talking about two entirely different things. We discussed Windrush yesterday. Successive Governments have been to blame—if blame is the right word—for what went wrong with the Windrush generation. As the Home Secretary has repeatedly said, he wants to work with other parties to put right the wrongs that happened over decades.
Baroness Butler-Sloss (CB)
My Lords, is the Minister aware of the large number of girls involved who are under 18? Will the Government review the fact that parents can give consent when girls are aged 16 to 18 and therefore can be part of this situation? Will the Government look at this and see whether it ought to continue?
Baroness Williams of Trafford
I take what the noble and learned Baroness says. In cases where there has been an objection, I understand that both the applicant and the sponsor were over 18. The noble and learned Baroness may have seen in some of the articles just how the system is played to ensure that they are not acting contrary to the law when they try to ensure that a forced marriage takes place. But I will certainly bring that point back. The noble and learned Baroness is absolutely right to be concerned about it.
Baroness Corston (Lab)
Is the Minister aware that Jasvinder Sanghera, the founder of the forced marriage victim support charity, accused the Home Office of failing to act? She said:
“Even when officials know it’s a forced marriage, they see tradition, culture or religion and they’re reticent to deal with it. They are turning a blind eye”.
Baroness Williams of Trafford
My Lords, I take what the noble Baroness says but I dispute that the Home Office was actually turning a blind eye to something that the now Prime Minister, formerly the Home Secretary, has given such focus and effort to in her tenure in both posts—and, of course, legislation has come into place to back that up.
Universal Credit
(6 years, 3 months ago)
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Baroness Sherlock
To ask Her Majesty’s Government what assessment they have made of the impact on claimants of the timing of Universal Credit assessments and payments.
Baroness Stedman-Scott (Con)
One of the main building blocks of universal credit is the monthly payment cycle. It is important because we are trying to replicate the world of work where people receive their salary on a monthly basis. There are no issues for the majority of claimants. Universal credit has been designed to take earnings into account in a fair and transparent way. We do not want to prejudice the ongoing legal case, but I assure the House that we take any feedback very seriously. We welcome it. We care about our clients, and we want our system to work for them.
Baroness Sherlock (Lab)
I thank the Minister and I am happy to give her some feedback right now. The Child Poverty Action Group has done some work on real cases and has found low-paid workers who are losing hundreds of pounds a year because their payday clashes with the monthly assessment period for universal credit. If someone is paid fortnightly or every four weeks, they can end up being paid twice in one universal credit month and not at all in the next. The result is that they lose a lot of money in work allowances. In the double month they can lose things such as free prescriptions because they seem to earn too much and in the lean month they can be hit by the benefit cap because they look like they earn too little. CPAG has made some really obvious recommendations, such as flexing assessments dates and averaging income figures. Are the Government going to look at this and, if so, when? It surely cannot be right that some people lose out just because of when they get paid.
Baroness Stedman-Scott
I am always happy to rely on the noble Baroness to keep us on our toes and I am grateful to her for it. She raised valid points which are in the report. We are listening to stakeholders. We understand the concerns raised in the report, and we are going to come back and say what can or cannot be done, but we cannot prejudice the legal case and, annoying as it is, I ask the noble Baroness to be patient. We are doing our very best to consider the report.
Baroness Couttie (Con)
My Lords, will the Minister tell the House what support the Government are giving families who may have trouble budgeting when it comes to some of the variable payments when they transition to universal credit?
Baroness Stedman-Scott
There are many different supports that we give people. Personal budgeting support is offered to all universal credit claimants from the outset of their claim. It helps them as they transition to universal credit and adapt to the financial challenges that it gives them, some of which are significant. It can be online, telephone or face-to-face support. We are reviewing the universal support system and personal budgeting the whole time and we will do all we can to make sure that claimants are equipped to get the best from the system.
Lord Kirkwood of Kirkhope (LD)
Does the Minister agree that the timeliness of payments should be a key performance indicator in any respectable social security system? Would she consider contriving a set of statistics broken down to universal credit full service payment areas, comparing the timely payment or otherwise of universal credit against the local performance for payment of the legacy benefits that universal credit is designed to replace?
Baroness Stedman-Scott
I am pleased to tell the House that 80% of new claimants are paid on time and in full, and 90% of universal credit payments across the board are paid on time and in full. That is not 100%, and we need to get there. I would like to have a conservation with the noble Lord to understand exactly what he wants, and if it is possible, I will do it.
Lord McKenzie of Luton (Lab)
Where a claimant would be entitled to transitional protection under the migration management arrangements, what would be the effect of the rules that my noble friend outlined if a universal credit payment ceases, even if it is later revived? Would that transitional protection cease or would it continue?
Baroness Stedman-Scott
As I understand the transitional protection, there are ups and downs. I need to double check with officials before giving an answer that is not accurate; I have no desire to do that.
Baroness Watkins of Tavistock (CB)
Will the Minister explain why no additional allowance is made to people on universal credit in the long school holidays when their children are not receiving free school meals?
Baroness Stedman-Scott
I can say that when children are on holiday from school, their parents or whoever is looking after them are responsible for feeding them. I do understand that that causes a problem, as these youngsters get school meals when they are at school. I am unaware of any plans to change that, but rather than get it wrong, I shall find out exactly and come back to the noble Baroness. If she has any ideas, I shall be pleased to have them.
Lord Mackay of Clashfern (Con)
I wonder whether one of the difficulties is not still that when somebody is on another benefit and goes on to universal credit, that person gets no benefit for a period. During that period, it is possible to get a loan to cover expenses, but unfortunately the loan is then deducted from the benefit once that starts. The loan off the benefit means that the resulting net amount is extremely small. This has been a difficulty, and I understood that it would be looked at, but I am not sure that it has been satisfactorily resolved. Can my noble friend help me on that?
Baroness Stedman-Scott
When people are in financial difficulty, they can have 100% advance from day one. It has to be paid back but it can be done over six months and, in cases where there is real difficulty, over 12 months. Before this Question, I talked to people in Jobcentre Plus. Where the work coaches are in good relationships with their clients, which I hope is in the majority of cases, claimants can raise it with their work coach. I am assured by a district manager that solutions are being sought and people are not being left hanging, as it were.
Prudential Regulation Authority: Equity Release Sector
(6 years, 3 months ago)
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Lord Sharkey
To ask Her Majesty's Government what assessment they have made of the report by the Adam Smith Institute, Asleep at the Wheel: The Prudential Regulation Authority and the Equity Release Sector, published on 7 August.
The Minister of State, Department for International Development (Lord Bates)
My Lords, the Government take the issues raised in this report very seriously. Equity release offers an effective way for home owners to enhance their standard of living in later life, but must not threaten their financial stability or place consumers at risk. The Prudential Regulation Authority is alert to the issue. It is acting to set a clear and more precise prudential expectation for insurance companies’ risk management of equity release mortgages.
Lord Sharkey (LD)
The equity release mortgage market has trebled over the last five years and continues to grow strongly. Many of these mortgages have no negative equity guarantees—in other words, the loan value is capped at the price of the house when sold. The Adam Smith report says that insurance companies selling these mortgages have so misjudged the risk that another and bigger Equitable Life scandal is in prospect. Will the Minister say what action is being taken to prevent that?
Lord Bates
The responsibility for that lies directly with the PRA, the responsible regulator. It is in regular contact with the industry on setting new guidelines. That was already done in 2016. Just before the report, to which the noble Lord referred, was published, a new consultation was published by the PRA on this issue—the effective value test, which was used to calculate an appropriate amount that must be held in capital on the balance sheet to reflect the risks being entered into. That consultation is open until 30 September. There are some proposals, which, if they find support, will be implemented by the end of the year.
Baroness Kramer (LD)
Is the Minister sure that the PRA is genuinely on top of this issue? We would all agree that it is essential that sufficient capital is held to deal with the risk inherent in equity release guarantees. When evidence was given to the Treasury Select Committee, in the same Session, in February 2017, Sam Woods, speaking for the Bank of England said that the capital required to be held was in the range of £126 billion. David Belsham, speaking for the then PRC gave the figure as only £80 billion. They were presumably part of virtually the same organisation. Does this suggest that there is some coherent thinking within the regulator and that it fully understands the risks it is facing?
Lord Bates
What it reflects better is an issue of pricing, which is a fair debate. The no negative equity guarantee, which is very important to lots of consumers, because they do not want to leave their families with the potential liability, is a key part of the offer. The pricing of that, depending on which measure you take, says either that we assume there will be house price growth over the next 15 to 25 years, or that there will be no growth at all, or that interest rates will accrue at 5% to 6% or at 1% to 2%. The variance that the noble Baroness has identified lies in whether you apply the effective value test at a different point between those two extremes to come up with a different number. The purpose of the consultation paper is to get clarity so that all interests are protected.
Lord Davies of Oldham (Lab)
My Lords, the rate of increase in the market has been exceptional over the past five years, and there are clear indications that this will carry on at a rate not dissimilar for the immediate future, so I do not know the extent to which the regulators are being effective in this respect. It is obvious that home owners will be eager to borrow in circumstances where incomes can scarcely keep up with inflation, but we have to guard against things going badly wrong. What if house prices shudder to a halt or even fall? There are reasons to think that such issues could arise in the economy and we would be back to Equitable Life, which caused such tremendous damage to people 20 years ago.
Lord Bates
That is of course why within the industry itself—and indeed with the regulator—the normal level at which borrowing is taken from the home is between 30% and 40%, to allow for that cushion. We have to recognise also that this has two benefits: to individuals as, for most people, their home is their largest asset and being able to release some capital to enhance their quality of life in later life is good; and to the annuity holders on the other side of the balance sheet from the equity release, who have been suffering badly as a result of gilt yields being around 1.5%. The ability of life insurance companies to match these two needs and to offer a better deal to both is something to welcome. The noble Lord is absolutely spot on when he says that we need to watch it; we need to watch it very carefully and what I have outlined is what the regulator is doing already and the rules that it has applied, and also the consultation that is open at this moment to see whether more needs to be done.
Baroness Altmann (Con)
My Lords, I support wholeheartedly what my noble friend has said about the importance of the equity release market for certain families. Does he also agree with me that, as the Equity Release Council figures show, most equity release loans are only about 30% of loan to value—some may be around 50%? Even if house prices were to decline by 30% or more, the problems in the conventional mortgage market would be far greater than those in the equity release market. I was rather surprised to see such scary headlines on this particular segment of the market.
Lord Bates
My noble friend has great expertise in this area, which she brings to our consideration. Of course, the amount of capital at risk in the non-asset linked security on balance sheets amounts to some 3% of the total. It is, therefore, a relatively small amount but it is growing fast. We want to make sure that two things happen: first, that balance sheets correctly reflect the risks that are inherent in them and, secondly, that consumers get independent advice, take the right decisions and are aware of the risks that they face. Both are responsibilities that have to be shared between the PRA and the Financial Conduct Authority. We are watching this very carefully; we are not complacent and we want to make sure that that happens.
Northern Ireland: Misoprostol
(6 years, 3 months ago)
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Baroness Thornton
To ask Her Majesty’s Government what representations they are making to authorities in Northern Ireland to make the use of Misoprostol legal as is already the case in England, Scotland and Wales.
The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Duncan of Springbank) (Con)
Abortion law has been a devolved matter in Northern Ireland since devolution was established in 1999. The Government recognise that this is a sensitive issue and that views are strongly held by both sides. Any reform in Northern Ireland is rightly one for a restored Northern Ireland Assembly and Executive to debate and to discuss and ultimately to decide what policy and laws are right for the people of Northern Ireland.
In response to the specific question posed by the noble Baroness, she will be aware that my right honourable friend the Secretary of State for Northern Ireland is legally prohibited from making such representations under Sections 58 and 59 of the Offences Against the Person Act and the Criminal Justice Act (Northern Ireland).
Baroness Thornton (Lab)
I thank the noble Lord for that Answer, although it is not surprising and it is completely disappointing, particularly for the women of Northern Ireland. I congratulate the Government on the fact that after Christmas women in England will be able to take the abortion pill Misoprostol at home; I congratulate the Government on taking that decision. Meanwhile, however, in Northern Ireland women are forced online to purchase these pills. They risk prosecution, and indeed have been prosecuted when they have done so. This is a human rights and equalities issue, and that is not a devolved matter. What steps will the UK Government take to end this inequality and the criminalisation of women in Northern Ireland?
Lord Duncan of Springbank
The noble Baroness makes an important point. We in England are making significant progress with regard to Misoprostol, but the reality remains that Northern Ireland has a number of challenges, all of which require a full and sustainable Executive to be in place. The last time that wider questions on abortion were discussed, only a few years ago, the diversity of opinion within the Assembly was significant. It is right and proper that these matters be addressed by the elected representatives of Northern Ireland. That is why my right honourable friend the Secretary of State for Northern Ireland is working tirelessly to bring about a restored Executive.
Baroness Barker (LD)
Is the Minister aware that on Monday Belfast City Council, which has members from seven political parties, voted for the decriminalisation of abortion in Northern Ireland? Notwithstanding his remarks, does he understand that there is a growing desire to see abortion decriminalised in Northern Ireland, and that at the moment there is no way for that political will to be fulfilled?
Lord Duncan of Springbank
I am fully aware of the opinions that are being expressed in Northern Ireland, not just on abortion but on a range of issues. If only we could see such a unity of purpose and opinion across all the parties in Northern Ireland now, it would bring about a restored Executive and we could see significant progress on this matter made by the right group of individuals—namely, those democratically elected by the people of the Province. That is the ultimate sensible and sure way of bringing about policies that have the endorsement of the wider population.
Lord Morrow (DUP)
My Lords, as the Minister confirmed, this is a devolved matter—a matter for the Northern Ireland Assembly. Does he agree that, as recently as February 2016, the democratically elected Assembly decided not to change the abortion law in Northern Ireland? Does he also agree that, in this context, it would be wholly wrong for Her Majesty’s Government or this House or the other House to change Northern Ireland’s present legislation?
Lord Duncan of Springbank
The noble Lord brings to our attention a reality check, which is that in 2016 in the Assembly in Belfast there was not the unanimity of position that the noble Baroness on the opposite Benches alluded to in Belfast itself. That is a reminder of how sensitive the matter is, not least because it is a wider matter of conscience but also, again, as a fully devolved matter it should be taken forward by those elected to the Assembly in Northern Ireland.
Lord Winston (Lab)
My Lords, it may be a devolved matter of conscience, but does the Minister agree that this situation is ridiculous? While women in Northern Ireland can take contraceptives that destroy a human embryo, they cannot have access to a simple procedure that prevents them having a much more dangerous operation later on during a pregnancy.
Lord Duncan of Springbank
The noble Lord raises some of the underpinning challenges in this area. It is now very clear that the situation in Northern Ireland can be brought to a sensible way forward only when we have an Executive best able to deliver against those policies. It should not rest either on this House or the other place to do that. I hope that all the representations that can possibly be made by noble Lords today will strongly encourage the parties of Northern Ireland to come back to that table and to secure agreement to form an Executive, so that these decisions can be taken where they need to be taken.
Lord Cormack (Con)
My Lords, cannot my noble friend take steps to ensure that the Assembly, which has been elected, which exists and which could debate this issue, is called together to do so?
Lord Duncan of Springbank
My noble friend reiterates a point we need to stress, which is that the last time this matter was discussed in that Assembly, the consensus did not bring about the changes that I think a number of noble Lords wish to see. At present we need to have a fully functioning Executive to draw on the powers of the Assembly and take executive action in this area, should it be the will of the democratically elected MLAs in the Province.
Lord Morris of Aberavon (Lab)
My Lords, following my noble friend Lady Thornton’s Question, will the Minister clarify what is devolved and what is not devolved in this issue?
Lord Duncan of Springbank
The wider matter of abortion remains fully devolved. The evolution and introduction of new technologies and drugs that can bring about that abortion still rest under the overarching architecture of the legislation as it pertains to abortion. In these areas, to bring about appropriate legislation to address this, it must be developed and taken forward by the Assembly and the democratically elected individuals of Northern Ireland. That is very clearly the position that we must strive toward: to secure a sustainable Executive who can ultimately deliver their response to the very important questions raised by a number of your Lordships today.
Widowed Parent’s Allowance
(6 years, 3 months ago)
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Baroness Stedman-Scott (Con)
My Lords, with the leave of the House, I would like to repeat a Statement made earlier in the other place by my honourable friend. The Statement is as follows:
“Mr Speaker, with permission, I would like to make a Statement on widowed parent’s allowance. Widowed parent’s allowance is paid to those families in receipt of child benefit, where one parent’s husband, wife or civil partner died prior to 6 April 2017. It was replaced after this date by bereavement support payments, which are now paid by the Government to families who find themselves in the same unfortunate circumstances. New claimants have no eligibility to widowed parent’s allowance.
Last week the Supreme Court ruled that the primary legislation that governs widowed parent’s allowance is incompatible with the principles of European human rights law, as the benefit precludes any entitlement to widowed parent’s allowance by a surviving unmarried partner. We are in the very earliest stages of carefully considering the full implications of this ruling. Officials at the department are working closely with their counterparts in Northern Ireland to examine the judgment and decide what our next steps should be.
However, as the House will be aware, only Parliament is able to change primary legislation. Lady Hale ruled:
“A declaration of incompatibility does not change the law: it is then for the relevant legislature to decide whether or how it should be changed”.
Therefore, the court’s ruling does not change the current eligibility rules for receiving bereavement benefits.
I would like to remind the House that the question of opening up bereavement benefits to cohabitees was debated and decided against in this place during the passage of the Pensions Act 2014. It was this legislation that introduced bereavement support payments, the successor to widowed parent’s allowance.
It is worth noting that restricting bereavement benefits to claimants who were in a legal union with the deceased has been a consistent feature of bereavement support in order to protect and clarify this entitlement. Other contributory benefits linked to national insurance contributions also contain special rules for claimants in a legal union. A legal union gives the surviving spouse the right to claim state benefits derived from their deceased partner’s national insurance contributions. This principle provides a clear threshold for determining who can be provided for from a deceased person’s NI accumulation, and serves to promote the institutions of marriage and civil partnership.
As I have stated, we are carefully considering the court’s judgment and how the department should proceed in the light of this. When we have looked at all the options, I will come before the House to update Parliament further on this matter”.
Baroness Sherlock (Lab)
My Lords, I thank the Minister for repeating that Statement and for advance sight of it. Last week the Supreme Court ruled that the denial of widowed parent’s allowance to surviving partners of unmarried couples with children is incompatible with the law, in upholding the appeal of Siobhan McLaughlin, who lived with her partner John Adams and their four children for 23 years, until John died in January 2014. John’s national insurance contributions would have entitled Siobhan to WPA had they been married.
In the judgment, the Supreme Court said:
“The financial loss caused to families with children by the death of a parent ... is the same whether or not the parents are married or in a civil partnership”.
The judgment relates to legislation in Northern Ireland, but unmarried couples are not eligible for widowed parent’s allowance anywhere in the UK, so the principle established by the Supreme Court clearly has wider implications for the rest of the UK.
Today’s Statement says that Ministers will think about it and get back to us but would the Minister consider conveying back to the department a sense of urgency about this? She must, I am sure, be aware that bereaved parents are already getting in touch with charities such as the Child Bereavement Network in light of the judgment to ask what will happen to them and whether the situation has changed.
Ministers clearly knew this was coming. It was always a possible outcome of the case but, in any event, back in March 2016, the Work and Pensions Select Committee in another place warned the Government specifically that they could be forced to change their policy as a result of this case. The committee produced a report in 2016 called Support for the Bereaved, which clearly expressed the view that excluding unmarried couples was unjust on the children.
The Government were pressed on this point during the passage of the Pensions Act 2014, which reformed benefits for bereaved people. They abolished widowed parent’s allowance and replaced it with bereavement support payment. That is payable for only 18 months as opposed to widowed parent’s allowance, which was payable until either the children grew up, or the widowed parent remarried or cohabited. When this House debated the regulations that came from that primary legislation on 21 February last year, I asked the Minister to explain the Government’s rationale for excluding unmarried couples. The response was simply to say that they would not extend it to cohabitees. The then Minister, the noble Lord, Lord Henley, cited complexity and said people could always get married if they wished to regularise their position.
Complexity is regularly cited by Ministers, but the DWP routinely judges someone to be cohabiting for the purposes of means-tested benefits on rather less evidence than the presence of four children in the house with parents who have been together for 23 years. Reference is often made anecdotally to toothbrushes, slippers and other evidence of the presence of a relationship. Clearly the process of making a judgment over whether two people are cohabiting is one with which the DWP is familiar and must have the means to do it. Indeed, the right reverend Prelate the Bishop of St Albans, when we were discussing those regulations, on 21 February at col. 10 GC, pointed out that the Armed Forces Pension Scheme successfully uses a definition of “eligible partner” to determine who may receive a pension.
It is also noticeable that the way that people lose widowed parent’s allowance once they have got it is, as I said, because the children grow up, or they get remarried or cohabit—so cohabiting is not enough to get the benefit, but it is enough to lose it.
Those benefit reforms were generally quite controversial because they resulted in money being taken away from families with children. The DWP itself estimated that 75% of bereaved families with children would get less support under the new system than under the old. Ministers have told us repeatedly that the reforms were not about saving money, but the Government’s own impact assessment told us that, although it would cost more for the first two years, in steady state it would save the Treasury £100 million a year. The Select Committee argued that the Government should use those savings to extend the system of bereavement benefits to unmarried couples.
I have some questions for the Minister. I understand that she may not be able to answer them all today, so I would be grateful if she would, if necessary, be willing to write to me if it is easier for her to do that. First, what assessment has the DWP made of the cost of bringing the legislation on eligibility for widowed parent’s allowance in line with the Supreme Court judgment across the UK? Secondly, does the department believe that the primary or secondary legislation governing the new bereavement support payments is compatible with the principles of human rights law? Thirdly, what is the current estimate of how many of those savings scored against the bereavement reforms will in fact be realised? Finally, will the Government now review bereavement provision in the light of both this judgment and the concern expressed around the House repeatedly about the impact of the reforms of bereavement benefits, especially on parents of young children? To be a bereaved parent trying to support and raise your children while dealing with their grief and your own is about as tough as it gets. Therefore, I urge the Government to act quickly and to do something to give people in that position both comfort and certainty.
Lord Kirkwood of Kirkhope (LD)
My Lords, I whole- heartedly support the suggestion from the noble Baroness, Lady Sherlock, that we should take the opportunity that has been presented to us by this judgment to look again at bereavement benefits more generally, and I hope that the Minister will undertake to engage constructively in the way that the department has done on many issues in the past in this regard. Times have moved on. The introduction of universal credit changes things to the extent that the Government and the DWP accept that cohabiting couples are perfectly capable of making joint applications for that credit, and that is a change from the circumstances that applied under the national insurance contribution regime of previous years.
Can the Minister confirm that the Government will act urgently? I understand that the department cannot make payments to anyone until the law is changed and makes it possible to do so, but she must understand that there will be hundreds, if not thousands, of families waiting for a signal from the Government about how long it will take for them to decide how they are going to dispose of this legal judgment.
Baroness Stedman-Scott
First, I say to the noble Baroness, Lady Sherlock, that I will make sure that the department knows—as it already does—of the urgency of dealing with this issue properly. The questions that she has asked me in relation to estimates, assessments and so on will be covered comprehensively in our assessment of the ruling. I am sure that she and the noble Lord will understand that we are considering this carefully, and we will come back to the House as soon as we can. Rather than give quick responses, we want to deal with this matter properly. We understand that bereavement is traumatic and awful for people. In the early days of a bereavement, people’s emotions are all over the place and they wonder where their life is going. That is one reason that we are putting money into those early stages—to help people through that—and once they have made a bit of a journey, there are other benefits and other support and help that we can give them. I make no apology for saying that one thing that helps people is looking for work so that they can be financially independent, but we are supporting them in the process.
Noble Lords will know of my previous job at Tomorrow’s People, where we encountered people who had lost somebody very dear to them. They were despondent and depressed, and they did not know what would happen next. It took time and a lot of support but we were able to nurture them so that they could have a role in society and start to realise their destiny. That is what we want for everybody.
All the points that the noble Lord, Lord Kirkwood, has raised will be concluded in the assessment of the ruling. There is definitely a sense of urgency and, as ever, we will always engage where appropriate.
Baroness Altmann (Con)
My Lords, I commend my noble friend on the kindness and understanding she has shown in her responses so far. I echo the concerns expressed by the noble Baroness, Lady Sherlock, and the noble Lord, Lord Kirkwood. Might I suggest something that could be a compromise way forward? I know that my noble friend, and the Government, care deeply about bereaved families and the plight of bereaved children. There is clearly a difficulty felt across the House, first, that the bereavement allowance is not necessarily paid—or rather, not paid at all—to cohabiting couples, even if they are of long standing and have children together; and, secondly, that the payments will now be running out after just 18 months. Might we consider introducing a payment focused on the bereaved child rather than the bereaved parent, so that the national insurance status or marital status of the parent is not necessarily so relevant, and which might kick in after the bereavement payment has been extinguished? We could then continue the support beyond 18 months, which in many cases is not sufficient.
Baroness Stedman-Scott
I thank my noble friend for her thoughts on this and for trying to come up with solutions, which is always helpful. I will be happy to ensure that her suggestion is shown to Ministers. I cannot promise anything, though I wish I could. I am going to give the homework back to my noble friend and ask her to prepare a paper, to make it easier for me to do that.
Lord McKenzie of Luton (Lab)
My Lords, we understand that this is not altogether straightforward: there are complexities within it. However, we can be clear on one point, raised by my noble friend Lady Sherlock. Though the implications of the judgment must be carefully considered, do the Government at least accept that the current position is incompatible with human rights legislation? That seems a separate and distinct issue, which the Government should have a view on now.
Baroness Stedman-Scott
The noble Lord, Lord McKenzie, asks an understandable question. All I can promise him is that that is being considered in the consideration of the ruling. I am sorry that I cannot say more; I have no desire to annoy him or put him off, but that is the accurate position. I am sure he will understand that.
Salisbury Update
(6 years, 3 months ago)
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The Lord Privy Seal (Baroness Evans of Bowes Park) (Con)
My Lords, with the leave of the House, I will now repeat a Statement made by my right honourable friend the Prime Minister in another place. The Statement is as follows:
“With permission, Mr Speaker, I would like to update the House on the investigation into the attempted murder of Sergei and Yulia Skripal and the subsequent poisoning of Dawn Sturgess and Charlie Rowley earlier this year. This was a sickening and despicable act in which a devastatingly toxic nerve agent, known as Novichok, was used to attack our country. It left four people fighting for their lives and one innocent woman dead, and I know the thoughts of the whole House will be with the family of Dawn Sturgess in particular following their tragic loss.
In March, I set out for the House why the Government concluded that the Russian state was culpable for the attempted murder of Mr Skripal and his daughter. I also said that, while we all share a sense of impatience to bring those responsible to justice, as a nation that believes in the rule of law we would give the police the space and time to carry out their investigation properly. Since then, around 250 detectives have trawled through more than 11,000 hours of CCTV and taken more than 1,400 statements. Working around the clock, they have carried out painstaking and methodical work to ascertain exactly which individuals were responsible and the methods they used to carry out this attack.
This forensic investigation has now produced sufficient evidence for the independent Director of Public Prosecutions to bring charges against two Russian nationals for: the conspiracy to murder Sergei Skripal; the attempted murder of Sergei and Yulia Skripal and Detective Sergeant Nick Bailey; the use and possession of Novichok; and causing grievous bodily harm with intent to Yulia Skripal and Nick Bailey. This morning, the police have set out how the two Russian nationals travelled under the names of Alexander Petrov and Ruslan Boshirov, names the police believe to be aliases. They arrived at Gatwick Airport at 3 pm on Friday 2 March, having flown from Moscow on flight SU2588. They travelled by train to London Victoria, then on to Waterloo, before going to the City Stay Hotel in Bow Road, east London. They stayed there on both Friday and Saturday evenings, and traces of Novichok were found in their hotel room. On Saturday 3 March, they visited Salisbury, arriving at approximately 2.25 pm and leaving less than two hours later, at 4.10 pm. The police are confident that this was for reconnaissance of the Salisbury area. On Sunday 4 March, they made the same journey, travelling by Underground from Bow to Waterloo stations at approximately 8.05 am, before continuing by train to Salisbury.
The police have today released CCTV footage of the two men which clearly places them in the immediate vicinity of the Skripals’ house at 11.58 am, which the police say was moments before the attack. They left Salisbury and returned to Waterloo, arriving at approximately 4.45 pm, and boarded the Underground at approximately 6.30 pm to Heathrow, from where they returned to Moscow on flight SU2585, departing at 10.30 pm.
This hard evidence has enabled the independent Crown Prosecution Service to conclude it has a sufficient basis on which to bring charges against these two men for the attack in Salisbury. The same two men are now also the prime suspects in the case of Dawn Sturgess and Charlie Rowley. There is no other line of inquiry beyond this. The police have today formally linked the attack on the Skripals and the events in Amesbury such that it now forms one investigation. There are good reasons for doing so.
Our own analysis, together with yesterday’s report from the Organisation for the Prohibition of Chemical Weapons, has confirmed that the exact same chemical nerve agent was used in both cases. There is no evidence to suggest that Dawn and Charlie may have been deliberately targeted, but rather they were victims of the reckless disposal of this agent. The police have today released further details of the small glass counterfeit perfume bottle and box discovered in Charlie Rowley’s house which was found to contain this nerve agent. The manner in which the bottle was modified leaves no doubt that it was a cover for smuggling the weapon into the country and for the delivery method for the attack against the Skripals’ front door. The police investigation into the poisoning of Dawn and Charlie is ongoing, and the police are today appealing for further information. But were these two suspects within our jurisdiction, there would be a clear basis in law for their arrest for murder.
We repeatedly asked Russia to account for what happened in Salisbury in March, and they have replied with obfuscation and lies. This has included trying to pass the blame for this attack on to terrorists, on to our international partners, and even on to the future mother-in-law of Yulia Skripal. They even claimed that I, myself, invented Novichok. Their attempts to hide the truth by pushing out a deluge of disinformation simply reinforces their culpability.
As we made clear in March, only Russia has the technical means, operational experience and motive to carry out the attack. Novichok nerve agents were developed by the Soviet Union in the 1980s under a programme codenamed Foliant. Within the past decade, Russia has produced and stockpiled small quantities of these agents, long after it signed the Chemical Weapons Convention. During the 2000s, Russia commenced a programme to test means of delivering nerve agents, including by application to door handles.
We were right to say in March that the Russian state was responsible, and now that we have identified the individuals involved, we can go even further. Just as the police investigation has enabled the CPS to bring charges against the two suspects, so the security and intelligence agencies have carried out their own investigations into the organisation behind this attack. Based on this work, I can today tell the House that, based on a body of intelligence, the Government have concluded that the two individuals named by the police and the CPS are officers from the Russian military intelligence service known as the GRU. The GRU is a highly disciplined organisation with a well-established chain of command, so this was not a rogue operation. It was almost certainly also approved outside the GRU at a senior level of the Russian state. The House will appreciate that I cannot go into details about the work of our security and intelligence agencies, but we will be briefing opposition leaders and others on Privy Council terms and giving further detail to the Intelligence and Security Committee.
Let me turn to our response to this appalling attack and the further knowledge we now have about those responsible. First, with respect to the two individuals, as the Crown Prosecution Service and the police announced earlier today, we have obtained a European arrest warrant and will shortly issue an Interpol red notice. Of course, Russia has repeatedly refused to allow its nationals to stand trial overseas, citing a bar on extradition in its constitution. So, as we found following the murder of Alexander Litvinenko, any formal extradition request in this case would be futile. But should either of these individuals ever again travel outside Russia, we will take every possible step to detain them, to extradite them and to bring them to face justice here in the United Kingdom.
This chemical weapons attack on our soil was part of a wider pattern of Russian behaviour that persistently seeks to undermine our security and that of our allies around the world. They have fomented conflict in the Donbass, illegally annexed Crimea, repeatedly violated the national airspace of several European countries and mounted a sustained campaign of cyber espionage and election interference. They were behind a violent attempted coup in Montenegro, and a Russian-made missile, launched from territory held by Russian-backed separatists, brought down MH17.
We must step up our collective effort to protect ourselves in response to this threat and that is exactly what we have done since the attack in March, both domestically and collectively with our allies. We have introduced a new power to detain people at the UK border to determine whether they are engaged in hostile state activity. We have introduced the Magnitsky amendment to the Sanctions and Anti-Money Laundering Act in response to the violation of human rights. And we have radically stepped up our activity against illicit finance entering our country. We also expelled 23 Russian diplomats who had been identified as undeclared Russian intelligence officers, fundamentally degrading Russian intelligence capability in the UK for years to come.
In collective solidarity, and in recognition of the shared threat posed to our allies, 28 other countries as well as NATO joined us in expelling a total of over 150 Russian intelligence officers: the largest collective expulsion ever. Since then, the EU has agreed a comprehensive package to tackle hybrid threats; the G7 has agreed a rapid response mechanism to share intelligence on hostile state activity; NATO has substantially strengthened its collective deterrence, including through a new cyber operations centre; and the US has announced additional sanctions against Russia for the Salisbury attack. Our allies acted in good faith, and the painstaking work of our police and intelligence agencies over the last six months further reinforces that they were right to do so.
Together, we will continue to show that those who attempt to undermine the international rules-based system cannot act with impunity. We will continue to press for all of the measures agreed so far to be fully implemented, including the creation of a new EU chemical weapons sanctions regime, but we will not stop there. We will also push for new EU sanctions regimes against those responsible for cyberattacks and gross human rights violations, and for new listings under the existing regime against Russia. We will work with our partners to empower the OPCW to attribute chemical weapons attacks to other states beyond Syria.
Most significantly, what we have learnt from today’s announcement is the specific nature of the threat from the Russian GRU. We know that the GRU has played a key part in malign Russian activity in recent years, and today we have exposed its role behind the despicable chemical weapons attack on the streets of Salisbury. The actions of the GRU are a threat to all our allies and to all of our citizens. On the basis of what we have learnt in the Salisbury investigation and what we know about this organisation more broadly, we must now step up our collective efforts, specifically against the GRU. We are increasing our understanding of what the GRU is doing in our countries, shining a light on its activities, exposing its methods and sharing them with our allies, just as we have done with Salisbury. While the House will appreciate that I cannot go into details, together with our allies we will deploy the full range of tools from across our national security apparatus to counter the threat posed by the GRU.
I have said before, and I say again now, that the UK has no quarrel with the Russian people. We continue to hold out hope that we will one day once again enjoy a strong partnership with the Government of this great nation. As a fellow permanent member of the UN Security Council, we will continue to engage Russia on topics of international peace and security, but we will also use these channels of communication to make clear there can be no place in any civilised international order for the kind of barbaric activity which we saw in Salisbury in March.
Finally, let me pay tribute to the fortitude of the people of Salisbury, Amesbury and the surrounding areas, who have faced such disruption to their daily lives over the past six months. Let me thank once again the outstanding efforts of the emergency services and National Health Service in responding to these incidents. Let me thank all those involved in the police and intelligence community for their tireless and painstaking work, which has led to today’s announcement.
Back in March, Russia sought to sow doubt and uncertainty about the evidence we presented to this House, and some were minded to believe it. Today’s announcement shows that we were right. We were right to act against the Russian state in the way we did, and we are right now to step up our efforts against the GRU. We will not tolerate such barbaric acts against our country. Together with our allies, this Government will continue to do whatever is necessary to keep our people safe. I commend this Statement to the House”.
Baroness Smith of Basildon (Lab)
My Lords, I thank the noble Baroness for repeating what is a detailed Statement. The House is grateful for the information that she provided. This was undoubtedly a shocking and deplorable act. I am sure that the House will join me in sending our thoughts to those whose lives are in danger and our deepest condolences to the friends and family of Dawn Sturgess, who tragically died following exposure.
We must also pay tribute to the dedication of the staff at Salisbury District Hospital and their tireless work in responding to this appalling crime. Like the noble Baroness, I also want to praise the resilience of the residents of Salisbury, Amesbury and the surrounding area. They have lived with this from day to day while most of us were able to read about it then move on to something else in our lives. For example, nearly 100 Wiltshire Police officers and staff have sought psychological support following the attack. The chief constable said that the cuts to police increases the pressure on his officers. Given the impact that this has had on the local community, what support, including financial support, have the Government provided to Salisbury and in what form? We should also pay tribute to the extraordinary diligence of and forensic work undertaken by our police and security services to identify those responsible and establish both the identities of the two Russian suspects—who can now be charged—and on whose authority they were acting.
I congratulate the Prime Minister and I welcome the confirmation of a European arrest warrant being obtained and an Interpol red notice being issued shortly. We know from bitter experience that it is futile to seek an extradition warrant from Russia. What will happen to that specific warrant if we leave the European Union either without a deal or having been unable to negotiate the remaining part of the European arrest warrant? The noble Baroness will be aware that there are difficulties with us remaining. I appreciate that a pragmatic, common-sense decision has been taken, rather than an ideological one, but what will happen in future? What would happen to this warrant, had it not been executed and those two people detained, by the time we leave the EU?
Russia’s reticence to allow its citizens to stand trial in the UK is unsurprising. Both suspects have been identified as officers of the Russian military intelligence service, known as the GRU. As referred to by the noble Baroness, the GRU is highly disciplined with a well-established chain of command. This attack was almost certainly approved at a senior level of the Russian state. The use of a nerve agent is a clear breach of the Chemical Weapons Convention and international law; we condemn the attack and its perpetrators in the strongest terms.
Given the findings of the OPCW and Russia’s record of conducting state-sponsored assassinations, including against its own citizens and former intelligence officers whom it regards as legitimate targets, what action are the Government taking at an international level to ensure that state actors cannot act with impunity? What discussions have there been with the US and European countries about further sanctions against Russia? As we leave the EU, our relationships and partnerships with our European neighbours will undoubtedly change; additional effort from us will be required to maintain them. What action are the Government taking on this issue at both a European and international level? We need to ensure that we maintain those relationships for the future so that action can be taken.
How closely are the Government working with the UN to strengthen the international monitoring and prohibition of chemical weapons? I am sure the noble Baroness recognises that the first duty of any Government is the safety and security of their citizens. The noble Baroness may be aware from debates in this Chamber that the police and security services have been clear that in protecting our citizens, one of our greatest assets in the community is local knowledge provided by police officers on the ground, yet police officer numbers across the country are falling and police stations are closing. Some £3 billion has been lost from the policing budget over the past eight years and there are 21,000 fewer police officers today than there were eight years ago. What assessment is being made of the impact of falling police numbers on maintaining national security? Is this being kept under review, including with a commitment to any necessary funding? I know that funding for the security services will increase but I am talking particularly about the ability of police officers on the ground to get local intelligence.
On funding, I would like to ask about CBRN training and support. I have asked this question in your Lordships’ House before, having previously been a Minister with responsibility for CBRN. In how many of our public services is training provided, and is funding being provided for the equipment, given the previous cuts?
Finally, I emphasise our gratitude for the work of our public servants and recognise the pressures we have seen on our health service staff, emergency services, the police and the security service in their ongoing work. They are not just dealing with this incident and the fallout from it; they are looking at ongoing threats from many different sources and they need our support, not just our words—and our response to their need for resources.
Lord Newby (LD)
My Lords, I would like to thank the Leader of the House for repeating the Statement, which demonstrates what excellent work the police and security services can achieve when working together. They deserve our heartfelt congratulations for identifying the perpetrators of this terrible crime. Sadly, I suspect that identifying the perpetrators will prove to be the easy bit. The question is: what happens next? Central to the Government’s response is issuing a European arrest warrant. I would like to echo the questions of the noble Baroness, Lady Smith, about the future of this vital component of our crime-fighting armoury. The Government’s White Paper on the future relationship between the United Kingdom and the European Union recognised the importance of the European arrest warrant. On maintaining our ability to access the warrant, it says:
“The UK recognises that being a third country creates some challenges for the full operation of the EAW as it stands, particularly in terms of the constitutional barriers in some member states to the extradition of their own nationals. The withdrawal agreement will address this issue as part of the implementation period”.
Could the Leader of the House explain exactly how the Government plan to achieve this, and what progress has been made since the publication of the White Paper?
The Statement also contains two further proposals for EU co-operation. It says:
“We will continue to press for all of the measures agreed so far to be fully implemented, including the creation of a new EU chemical weapons sanctions regime”.
It goes on to say that,
“we will not stop there. We will also push for new EU sanctions regimes against those responsible for cyber-attacks and gross human rights violations”.
But how credible is it for the British Government, at this point, to go into a meeting in Brussels and say, “We actually think it’s crucially important that we have this new sanctions regime. Will you please do it? Oh, and by the way, we are then leaving you to it”? We have just passed legislation to set up our own sanctions and anti-money laundering regimes explicitly because we will not be part of these mechanisms, which the Government are here lauding as crucially important. How will the Government square that circle to make sure that we benefit from common European sanctions?
The response of our European partners to the Salisbury attacks, as the Government have said, has been truly extraordinary. I was in Estonia last week. It is a very small country which abuts Russia. Their Prime Minister, after literally years of delicate negotiations, had arranged to make a cultural visit to Estonian communities in Russia. Immediately after the Salisbury attack took place, he cancelled it. This is a big deal for them, but he did it in support of us. I think the question has to be raised about the extent to which we can expect members of the EU to show that kind of major solidarity, at a time when they feel sad, frustrated and neglected because of our actions in respect of Brexit.
The key question, however, concerning the European arrest warrant or anything else, is: how can we seek effectively to stop such attacks taking place in future? It is not credible to expect that we will get these two characters, whatever their real names are, in front of a British court. Obviously, there are no easy answers but I have two questions for the Leader of the House about specific action. First, is there any scope for the charge of conspiracy to be brought against individuals higher up in the GRU who must have given the orders, if intelligence suggests who those individuals might be?
Secondly, more generally and more likely to be effective—arguably, the most effective of all—is to look at attacking, if we can, those Russian oligarchs whom we know to be cronies of the Russian regime and who have put their money here in London. The Government talk of radically stepped-up activity in this area, but can the Leader of the House tell us what that radical stepping up means, how many unexplained wealth orders have so far been issued and how many she believes the Government could issue in the near future? If we are to be successful in stopping such attacks in future, we have to hit the Russian regime where it hurts: in the pockets of the people who benefit the most from it. This must be a key component of the Government’s strategy. How confident is the Leader of the House that the Government have got a grip on that?
Baroness Evans of Bowes Park
My Lords, I am grateful to the noble Baroness and the noble Lord for their comments. As the noble Baroness did, I again pay tribute to the people of Salisbury and Amesbury and send them our very best wishes.
I assure the noble Baroness that we are committed to working alongside the local authority and emergency services to help the local area meet any further exceptional costs arising from the incident. We have already announced more than £7.5 million of funding to support businesses, boost tourism and meet some of those costs. The Home Office has also provided £6.6 million of extra funding to Wiltshire Police to cover its extra costs.
Both the noble Baroness and the noble Lord rightly raised the issue of the European arrest warrant. We want, as we have continually said, to continue our close relationship with the EU once we leave, and a key part of our negotiations, which we are discussing now, is how that will continue. Obviously, involvement in the European arrest warrant is part of that but the negotiations are ongoing. They will continue. Again, today’s events reinforce the importance of maintaining the relationship with the EU.
The noble Baroness asked about America. The Prime Minister has spoken to President Trump and is contact with our other close allies. With regard to the United States’ additional sanctions, we are co-operating with it closely as it works towards a potential second round of sanctions later this year. Noble Lords will also be aware that in June we led the diplomatic efforts to strengthen the ban on chemical weapons through the OPCW, despite Russian resistance, and we intend to work further with partners to empower the OPCW to attribute chemical weapons attacks to other states beyond Syria. Those discussions are ongoing.
The noble Lord asked about sanctions. He is absolutely right that we currently implement sanctions through the EU. We will be looking to carry over all existing EU sanctions at the time of our departure. As he rightly says, we have put in place a legislative framework through the Sanctions and Anti-Money Laundering Act to give us full control of our sanctions policy once we leave the EU.
The noble Lord also asked about criminal financing. To date, the NCA has considered around 140 cases where the use of an unexplained wealth order may be the appropriate course of action. A significant number of these are against assets believed to be held by Russian individuals. It continues its casework to apply for further unexplained wealth orders, adding to those currently in place. We are also reviewing all tier 1 investor visas granted before 5 April 2015, many of which were issued to wealthy Russians. We have not ruled out making further changes to the tier 1 investor route in order to ensure that it continues to work in the national interest.
I will have to write to the noble Baroness about her questions on CBRN as I do not have the details with me. I will do that.
The Lord Bishop of Leeds
My Lords, will the Minister be able to comment on a question that hangs over all this—why the Skripals and why now? It is a matter of timing. Can a statement be made on that at some point because clearly there is a story behind it? My main concern is that we have heard this afternoon that a nerve agent—a chemical weapon—was brought through a civilian airport. I cannot even get a tube of toothpaste through, yet they managed to bring this through and then leave it behind rather indiscriminately, if that is what happened. What are the implications for airport security?
Baroness Evans of Bowes Park
I can assure the right reverend Prelate that the Home Office has increased checks on private flights and freight arriving in the UK under existing powers, but because of the national security dimensions I am afraid I cannot comment on specific cases. He is right that the two individuals held valid Russian passports under identities that we now know to be false, and they were able to obtain UK visas using official Russian documents. We have taken further measures in this area including, for instance, introducing a new power to detain people at the UK border to determine whether they are engaged in hostile state activity. Obviously this is an area where the Home Office will continue to be vigilant. We will take further steps if they prove necessary.
Lord Harris of Haringey (Lab)
The noble Baroness the Leader of the House, in answer to a question from my noble friend Lady Smith, listed about £14 million of additional support that has been given to the local police force and the local community. Is she able to tell us the estimated cost of the investigations carried out and the work done by the security agencies and the counterterrorist police? I suspect that is also a very substantial sum of money. When she is writing to my noble friend about CBRN, will she be able to tell us how many operatives in the emergency services across the country are now trained and equipped to deal with CBRN incidents compared with, say, five years ago and 10 years ago?
Baroness Evans of Bowes Park
If the information is available, I will certainly include it in the letter together with a breakdown of the funding. I have the overall figures, but I will add what information I can, if it is available, to the letter that I will place in the Library.
Lord Cashman (Lab)
I would like to press the Leader of the House again on a point raised by my noble friend Lady Smith. On the European arrest warrant, have there been any assurances been given to the Government about it in that we may have left before it is implemented, and particularly given that one of the Government’s red lines is that the Court of Justice of the European Union will no longer have any jurisdiction and equally the Charter of Fundamental Rights will no longer apply in this country?
Baroness Evans of Bowes Park
As the noble Lord will know, our future security relationship with the EU is something for the negotiations. That will continue. We have obviously been talking to our EU partners and allies about the new evidence we have found in the incident and they have shown great solidarity in supporting us with their actions. This will no doubt continue as this investigation continues. As the information we have today becomes clearer and can be shared, those discussions will no doubt inform the negotiations that are going on about our future relationship.
Lord Jopling (Con)
My Lords, one of the most interesting parts of the Minister’s Statement was the clear connection between the two individuals concerned and the nerve gas in the hotel bedroom. Is she able to give a little more detailed information? I realise she may not be, but if she could tell us a little more about that connection, it would be of great interest.
Baroness Evans of Bowes Park
What I can say is the evidence found has pointed to the fact that the same chemical nerve agent in Salisbury was found in the hotel and that the bottle found was modified to allow smuggling into the country. The analysis by experts at DSTL has confirmed that the same chemical nerve agent was used in both cases. Yesterday, the OPCW provided independent verification of this after its own analysis of samples taken following the Amesbury poisoning. I am afraid that is all I can say on that issue.
Lord Lexden (Con)
Reference has been made to the economic help that the Government are giving to the people and city of Salisbury. Is there any indication so far of the results of that assistance? Is the decline in the number of local businesses in the centre of Salisbury being arrested? Are there signs of revival in the number of visitors to Salisbury?
Baroness Evans of Bowes Park
Certainly we are working closely with the local authority and local businesses. A number of Ministers have visited, and I know the local MP is doing a lot of work to make sure that support is provided to the local area. With the Salisbury and Amesbury incidents—and this again today—I am afraid that I do not have the figures for visitor numbers to Salisbury. However, we remain committed to doing all that we can to help that area to revitalise and make sure the people enjoy the delights of Salisbury.
Baroness Smith of Basildon
As there is no other Back-Bench question, can I press the Minister on the issue of the European arrest warrant—a point made by me, my noble friend Lord Cashman and the noble Lord, Lord Newby? We understand that the Government now believe that we should maintain and remain a member of the European arrest warrant, or have access to it, and that they are negotiating for that. In the event of there being no deal, or the Government being unable to negotiate it as an outcome, what will happen to this particular arrest warrant? Will it fall, as no action has been taken? Have the Government given any consideration to that specific point?
Baroness Evans of Bowes Park
I am sure that the Home Office has. I am afraid that I do not have the information, so I will see what I can add to the letter that I have already committed to write.
Lord Hope of Craighead (CB)
The European arrest warrant can be executed effectively only if the individuals are present within one of the European states; if for the moment they are outside that jurisdiction, the arrest warrant is a precautionary measure. The other way of keeping an eye on this is through the activities of Europol and other institutions of that kind.
Can the noble Baroness assure us that steps are being taken to maintain that channel of communication? The European arrest warrant will fall, I suspect, when we are no longer part of the European Union simply because it is dependent on being part of the structure which allows it to be enforced. If we are kept informed by Europe and other similar institutions, there are other ways of proceeding, by means of a request for extradition. That is very slow, I am afraid, but at least it is a step that could be taken if we know where they are.
Baroness Evans of Bowes Park
I am certainly happy to give that reassurance to the noble and learned Lord.
Mental Capacity (Amendment) Bill [HL]
Wednesday 5th September 2018
(6 years, 3 months ago)
Lords ChamberRead Full debate Mental Capacity (Amendment) Act 2019 View all Mental Capacity (Amendment) Act 2019 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 117-I(b) Amendment for Committee, supplementary to the marshalled list (PDF) - (5 Sep 2018)
“( ) After section 4A, insert—“4AA Compatibility with other provisions in the Mental Capacity Act 2005Nothing under section 4B of, or Schedule AA1 to, this Act permits the authorisation of any arrangements for enabling care or treatment of a person that give rise to a deprivation of liberty which conflicts with sections 1 to 4 of this Act, or a valid decision to refuse care or treatment by the donee of a lasting power of attorney or a court-appointed deputy or contained in a valid advance decision to refuse treatment.””
Baroness Finlay of Llandaff (CB)
My Lords, I start by declaring my interest as chair of the National Mental Capacity Forum. It is in that role that I have been able to have meetings over the summer in Wales with several people from different professional groups across all sectors.
I hope that the House will bear with me as I try to explain why I have tabled the amendment right at the front of the Bill. The key word on which I want to focus is “conflicts” in the third line of the amendment. The reason is that the Bill adds to the Mental Capacity Act, and the principles of that Act must be paramount. In some of the meetings that I have had, I have been worried that there is a view almost that the Bill is free-standing rather than that it is completely connected to and falls out of the Mental Capacity Act.
So whatever we do, and whatever legislation goes forward, we must be aware that first of all the presumption of capacity is being overturned, and that it has to be overturned on evidence that it is for a specific decision at a specific time. People may need support to make their own decisions. Indeed, when somebody has impaired capacity they do need support, because it may be that their capacity can be maximised and they could take that decision. I have been concerned that speech and language therapists have not been a core part of best interests assessors because, when people have expressive and communication disorders, a speech and language therapist can be absolutely essential. It seems strange to have them acting almost as translators for other people who are then best interests assessors or for other clinicians when they have the skill set themselves and want to be trained. Of course, there are also people such as the independent mental capacity advocates.
People need time and a calm environment—but, for support to be provided, they also need somebody who knows them. That might be a parent, a friend, a relative or their child. But it takes time, and we need to recognise that the time taken in supporting somebody is not going to be given by a health professional or somebody perhaps running a care home who is under pressure of time and lots of other responsibilities. So we have to interpret what we are doing in that sense and maximise the ability of the person to be empowered.
Of course, the Mental Capacity Act also allows people to make unwise decisions. We need to think about how we manage harm to others under the Bill, when people may have very specific areas where they lack insight and capacity and are at particular risk. That applies particularly, I would suggest, to those likely to commit sexual offences in society because they do not have the ability to have control when they are in a situation of temptation. They may need to have some restrictions on their liberty to protect others.
When capacity is not there, we are left with best-interest decisions. That consultation must include P. There are amendments that we will come to later that stress that the cared-for person must be involved and at the top of the list, and I have my name on one of those amendments. That consultation must include everybody concerned with P’s well-being, which brings me on to the latter part of my amendment, on where there is conflict with a valid decision to refuse care or treatment, which is probably self-explanatory. I will just say, however, that in some care settings it can be very difficult for people—for example in an emergency department—when somebody is just brought in, to know whether a decision to refuse care or treatment is valid, how it was drawn up and what was considered in the process.
The others who must be consulted are those who hold lasting power of attorney or are a court-appointed deputy for somebody who did not have anybody, so the court appointed them. We must recognise that, when somebody chooses a person to donate a lasting power of attorney to, it is a very difficult choice; it is somebody whom they trust deeply. The court-appointed deputy also has a duty to know the person well. But the person with lasting power of attorney may well have known this person for years and may have seen them through deteriorating health up to the point when the lasting power of attorney needed to be activated. I am concerned that, if the lasting power of attorney or the court-appointed deputy are not really given appropriate prominence in our process, we could find that the careful choice of a trusted person becomes effectively downgraded in the system when we are trying to consider what is in P’s best interests. I hope that noble Lords will forgive me for using the term “P”. It is shorthand for the cared-for person.
The other part of that consultation—for which I hope we will give due credit to the noble Baroness, Lady Barker—is the concept of an advance statement of wishes. Those of us who took through the old Mental Capacity Act—I say “old” because it was some years ago now—will remember the debates when the noble Baroness suggested that we needed a balance between an advance decision to refuse treatment and an advance statement of wishes. The more that I have spoken to professionals across all parts of health and social care, the more I have been struck by how the concept of an advanced statement of wishes has not been used adequately. That becomes important because we are talking about the care plan that will be the basis of our process. The care plan must be the way that somebody who lacks capacity for decisions is to be cared for, and that care plan must be flexible and must meet their needs, so the advanced statement of wishes can become very important in shedding light on somebody’s wishes and feelings.
Baroness Thornton (Lab)
My Lords, I will speak to Amendment 20, which is in my name on the Marshalled List and has been grouped with the amendment in the name of the noble Baroness, Lady Finlay.
During the briefing we had with the Bill team and the Ministers, my notes tell me that the first clause is a key change to the new regime, and that it is concerned with the portability of deprivation of liberty. I understand that the noble Baroness’s amendment makes sure that Section 4B—on the deprivation of liberty necessary for life-sustaining treatment or vital act—and Schedule AA1 are compatible with the provisions set out in the rest of the Bill and that they do not conflict with a valid decision to refuse care or treatment. The noble Baroness raises some important and substantial issues right at the beginning of the Bill and raises issues of conflicts which will need to be resolved.
Amendment 20 in my name comes from paragraph 15 of proposed new Schedule AA1 in the Law Commission’s draft Bill, quoting it exactly. It prevents the responsible body authorising arrangements for the cared-for person to reside in, or receive care or treatment somewhere, if those arrangements conflict with a valid decision by a donee of a lasting power of attorney or of a deputy appointed by the Court of Protection. As I say, the wording is exactly the same as that in the Law Commission draft Bill.
Under deprivation of liberty, a deputy and attorney may object to any deprivation of liberty and effectively block it, pending an application to the Court of Protection. I can see no obvious reason for excluding this from the Bill. The Government claim that it is already in the main provisions under the original Act—in Section 6(6) —but this is only the case where the basis for the deprivation of liberty is in “best interests”. If the basis for DOL is risk to others, that would not necessarily be the case, and so for the avoidance of doubt it is important to include this clause. If we do not, the risk of litigation on this point is probably quite high.
Deputies and donees should be able to refuse a deprivation of liberty, so this amendment seeks to ensure that the views of those donees and deputies, who have been appointed by the cared-for person to make the decisions in their best interests—as was eloquently outlined by the noble Baroness, Lady Finlay—are given appropriate weight with regard to where the cared-for person resides for care and treatment.
I am pleased to say that this amendment and what the noble Baroness, Lady Finlay, said, enjoys widespread support from the organisations who have found the time, even under the pressure we have all been under, to say that they support this. They include Mencap, VoiceAbility, Mind, the National Autistic Society, Liberty, Age UK, Sense and many others. The amendment looks at the clash or overlap between the different regimes that govern this area of law. I must ask why the Government did not adopt the Law Commission formulation. The Minister should be aware that I will return to that theme throughout Committee, because the Government seem to have cherry picked the Law Commission report, and some of the most important safeguards of liberty seem to have been omitted or watered down by the Bill.
Baroness Browning (Con)
My Lords, I refer to my interests in the register. I will pick up on two points that have been raised in the amendments, particularly the amendment in the name of the noble Baroness, Lady Finlay.
At Second Reading, I too raised my concern about the status of attorneys with lasting power of attorney, particularly over wellness and health. These are some of the most personal decisions. In some ways, I am more concerned about that than about attorneys who have power over the money. Money always seems a rather black and white matter—it either is or is not a good idea. But there are many shades of grey over health and, in particular, well-being. I should like to link this with decision-making and the other point in the noble Baroness’s amendment, about the need for qualified speech and language support to interpret and make sure there is a clear understanding of what “P”’s interests really are.
When you look at certain people with certain disabilities, particularly those with communication disorders—such as autism, learning disabilities and, of course, dementia—it is not always the case that they cannot express a view. But getting to that view—unless it is a real, life-threatening medical emergency—takes quite a long time. First, particularly those with autism and a learning disability, the individual has to be comfortable and familiar with the person asking the questions, however experienced. It is no good sending a stranger in for a five-minute cup of tea and a quick chat and thinking that person will then disclose their innermost feelings. How many of us would?
The point is that getting to that view might often be about something known for many years by someone who has been appointed as an attorney with a lasting power of attorney. I believe the two things are linked in those cases. We know from the Alzheimer’s Society that such a lot can be achieved for the quality of life and well-being of people with dementia and Alzheimer’s by giving enough time, when asking a question, to allow the person to process the information before they give an answer. Brain function is very different in these people. They need time to process the question they are being asked and to process how they will communicate the answer; it can take quite a long time.
This point was picked up quickly by the Alzheimer’s Society which says, for example, on a very simple matter, that when people with Alzheimer’s in residential care homes are asked whether they would like tea or coffee and do not immediately reply, they are processing the question and that can take a long time. They might prefer coffee today, but because they had tea yesterday, the answer may be quickly assumed—“I expect you will have tea, you always have tea”—before they can even process the information and the way they will communicate the answer.
How much more complex it is, and how much more time is needed when people are being asked more complicated questions about potentially life-changing decisions. This cannot be left only to someone with speech and language experience, important as that is, and such people need to be experienced. But people with a lasting power of attorney, who might have held an LPA for many years, and who know the individual extremely well, are in a prime position to act as an interpreter when important decisions are being made.
I believe my noble friend is aware of my view on this already. Those of us who served on the original Bill and its pre-legislative scrutiny many years ago know that a lot of thought went into the existing Bill on LPAs. To have one part of a Bill give rights to an individual through their attorney but then to diminish that in another part of the Bill, through amendment, seems not only wrong but seriously, morally wrong. I hope my noble friend will address this point when he replies to this amendment.
Baroness Murphy (CB)
My Lords, I have added my name to Amendment 20, tabled by the noble Baroness, Lady Thornton, and I give my strong support to the amendment in the name of the noble Baroness, Lady Finlay. I pay tribute to the good sense that the noble Baroness, Lady Browning, has just brought to our debate.
A theme that will run through our discussions and will come up again when we come to advance decision-making is that we must have more respect for those who have been trusted by an individual to make decisions on their behalf. We must encourage people to make plans and to think about the future, and we must ensure that those who make the very wise decision to appoint a lasting power of attorney are respected. As we have already heard, we do so in other parts of the Bill, and we should not remove that when we come to the question of deprivation of liberty. We must incorporate it in the general scheme of things. It seems absolutely crucial that we respect decisions made by people who have power of attorney and by the court’s appointed deputies. I strongly support the amendment.
Lord Cashman (Lab)
My Lords, I start with an apology, as I have not spoken on the Bill before. I thank, in particular, POhWER, the organisation of which I am a patron, for alerting me to the Bill and to its concerns, as well as the concerns shared by a wide range of groups, including Liberty, Age UK, Mencap and so on.
As other speakers have outlined, it is essential that we get this absolutely right, because we are talking about potential deprivation of liberty. According to those organisations, people with dementia or a learning disability are at risk under the proposed changes. Therefore, I speak in support of Amendment 1, proposed by the noble Baroness, Lady Finlay, and Amendment 20 in the name of my noble friend Lady Thornton. I believe that this amendment would ensure that the views of the donees and deputies already appointed by cared-for persons to make decisions in their best interests were given appropriate weight with regard to where the cared-for person resides for care and treatment.
I will say no more than that because there are experts on this issue in the Chamber. I sit willing to support but more willing to listen and learn.
Baroness Barker (LD)
My Lords, I apologise for being slightly late. I was taken by surprise at the swiftness with which we concluded our previous business.
I thank the noble Baroness, Lady Finlay of Llandaff, for many of the points that she made in her speech. It took a lot of work to get the concept of an advance statement on wishes into this legislation, and I, like her, regret that it has not been more widely adopted or accepted, particularly by the medical profession. She will know that when the Select Committee reviewed the legislation, one of the biggest disappointments was the extent to which the Mental Capacity Act had not been understood by the medical profession. She will perhaps remember that when representatives of different parts of the medical profession come to talk to us, they began by saying that in an A&E department it is extremely difficult to work out somebody’s advance decision. We knew that when we passed the initial legislation, but that legislation was not meant solely to take its lead from that; it was meant to apply to a whole range of matters just within medicine. It is a shame that the medical profession still relies on a very conservative interpretation of the existing legislation and takes a read-out from emergency situations when it really should not, as there is plenty of time to discuss with the person what is happening and to understand their previously stated wishes and feelings.
I am glad that the noble Baroness has raised this issue. She is right that at the heart of the Bill is a fundamental change from the Mental Capacity Act. There will no longer be a whole series of decision-specific assessments of people who lack capacity, and that is not something that I object to. Over the last few years while this legislation has been in place, we have quite often found people being subjected to unnecessary assessments. It is quite clear that when somebody has a medical assessment for advanced dementia, say, they will not have the capacity to make the same decision, even though they go to live in a different place. I accept that it is possible to make a decision of a lack of capacity and to carry that forward throughout a person’s care. What I am not clear about, though—given that people will be subject to fewer assessments, and therefore be less likely to have changes in their conditions brought to light—is the extent to which that will interplay with somebody’s statement of advance wishes. I would rather like it if the Minister, in his response, could talk about how that will work.
I agree with the noble Baroness, Lady Finlay. The safeguards on liberty and safeguarding have been thoroughly confused by many people. That is fundamental. Whether we turn this around from safeguards against deprivation of liberty or safeguarding the liberty of somebody, I do not think that anything I have seen in the Bill has yet addressed that fundamental misunderstanding. In fact, in some cases, it probably compounds it. I want to put that on record as we discuss the many issues the noble Baroness, Lady Finlay, has introduced so well.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord O'Shaughnessy) (Con)
My Lords, I thank the noble Baroness, Lady Finlay, for her amendment and the noble Baronesses, Lady Thornton and Lady Murphy, for their amendments. I am delighted that the noble Baronesses were able to make it on time so that we could start on our deliberations of what are clearly very important issues.
The purpose of these amendments is to clarify that a liberty protection safeguard authorisation cannot override a valid decision to refuse care or treatment by the donee of lasting power of attorney or a court-appointed deputy or contained in a valid advance decision to refuse treatment. The comment that the noble Baroness, Lady Finlay, made at the start of the debate, about conflict and avoiding conflict by recognising valid decisions where they have been made, was very important. I hope that all noble Lords know that the intention of the Bill is to enhance the role and agency of those deprived of their liberty and those with an interest in the care and welfare of that cared-for person. That is why this debate on the first grouping of amendments is so important.
This debate gives me the opportunity to clarify and confirm that the Bill does not allow a decision to be made that conflicts with that made by a donee of a lasting power of attorney or a court-approved deputy’s valid, best interests decision. I am glad of the opportunity to do that. Section 6(6) of the Mental Capacity Act already provides for this, and the Bill does not change that. Therefore, an authorisation under the liberty protection safeguards could only be given if it was in accordance with a valid decision—namely, one that is authorised in the lasting power of attorney—by the attorney or deputy.
The Bill also does not change the current position regarding advance decisions to refuse treatment, and those will remain an important part of care planning. I absolutely recognise the important role that the noble Baroness, Lady Barker, and others in this House played in introducing that. I assure all noble Lords that there is neither the intention nor action in the Bill to water down the power and validity of those in any way. If a person has made a valid advance decision to refuse medical treatment, that treatment cannot be given and it would not therefore be possible to deprive someone of liberty in order to provide it. We intend to give further explanation of the legal position in the code of practice. I hope that that answers some of the key issues raised by the noble Baronesses, Lady Finlay, Lady Thornton and Lady Murphy, in their comments.
Those comments were echoed by my noble friend Lady Browning, and she is quite right to discuss the importance of support for those with communication difficulties so that they are able to enunciate the kinds of decisions and indications of future treatment that would adhere to their own wishes. We will return to this issue later in Committee, particularly when we get on to the issue of IMCAs—the advocates—but she is right to reiterate the point made in the proposed amendments that those acting on behalf of the cared-for person, whether they are the family, have an interest in care or have been formally appointed to do so, are, in the end, responsible for taking those decisions on behalf of that person, and their decisions should be respected, as the noble Lord, Lord Cashman, pointed out.
The fundamental question that underpins these amendments is: why is the Bill not explicit on these issues when, as the noble Baroness, Lady Thornton, pointed out, the Law Commission’s Bill is? Because there is no change in the current position, there is therefore no reason to outline what is already the case. Nothing is changed about what is already in the Act by what is being proposed through this Bill. Therefore, there is no need to reiterate what is already the case and will not be changed. I hope through the course of this debate that we have aired this issue. It is one that the Government agree with and, in the way that the Bill is structured, I can confirm to the Committee that there is no change in the status quo about the validity of those decisions.
With those reassurances, I hope that the noble Baroness is prepared to withdraw her amendment. I recognise that there is great concern, not least among many of the campaign groups, service providers, commissioners and others who are implementing these rules and laws every day, and they need to know that there is consistency. As we move between now and Report, I am more than happy to meet with noble Lords and others to discuss these issues and make sure that we can give every reassurance so that they can be sure that the law as it stands today has not changed and will not change as a consequence of this Bill.
Baroness Finlay of Llandaff
My Lords, I am most grateful to the Minister for his reassurance, which is quite clear. There can be no doubt that the views of the holder of the lasting power of attorney or the court-appointed deputy must be taken into account and respected. Given that the principle behind this Bill is the importance of good care planning, I am glad to have that assurance. Of course, it is the person who has lasting power of attorney who will be in a good position to oversee the ongoing care of the person to detect whether things have improved or got worse and whether some restrictions could be lifted and things changed.
I can provide a word of reassurance to the noble Baroness, Lady Barker, and I hope that it is not misplaced. I have challenged the deans of medical schools, with my forum chairmanship hat on, on two occasions now. I have also rather sneakily gone in to different clinical consultations semi-incognito—it is difficult to be completely incognito—and I have been impressed by the changes that I have seen in the last couple of years, particularly in care of the elderly settings where there was respect for the need to empower someone’s decision-making. I hope that, if things were revisited, they would now see a difference.
We talk a lot about liberty protection safeguards. With the confusion between safeguarding and deprivation of liberty, I wonder whether that is the right word and whether we should be talking about “liberty protection assessments” or something else. I worry when we look at the domestic setting that safeguarding where there is a problem and the role of a liberty protection safeguard—which is to enhance the living of the person to live as well as they can within the restrictions of whatever has happened to them—more than overlap. They will always overlap a little, but they are becoming a little muddled in the system.
Having said all that, I beg leave to withdraw the amendment.
Lord Hunt of Kings Heath (Lab)
My Lords, I was not able to be present at the Second Reading and I have recently been apprised of concerns by the Residents & Relatives Association about care home residents without mental capacity who, they believe, are at risk of being let down by some of the proposed changes in the Bill. At Second Reading, the noble Baroness, Lady Tyler, mentioned that the timing of the Bill had taken many by surprise and added to that the rather pick-and-mix approach of taking some aspects of the Law Commission proposals but not others, which means that extensive scrutiny is well deserved. Unfortunately, the scheduling of the first day of Committee so soon after we came back means that many of the briefings from key stakeholders have come too late and we have not been able to translate them into amendments. So I thought it might be useful if I used a debate on the first clause to discuss some of these issues.
In particular, let me make it clear that I do not disagree with the aim of the Bill. I support its general intent, and therefore the aims of Clause 1, but there are some real concerns, particularly with the Government’s decision to depart from the Law Commission proposals regarding the role of care home managers. There are some real concerns here: first, the conflation of care planning with significant deprivation-of-liberty decisions; secondly, the burden and risk being shifted to providers; thirdly, the inherent conflict of interest being placed on managers and providers in the design of the new system; and fourthly—this came up at Second Reading—the capacity and capability of the sector to implement the proposals.
These concerns emanate from the decision to move responsibility to form the new assessments from local authorities to the care provider. This means that, in effect, care managers will become responsible for organising and conducting the assessments necessary for the liberty protection safeguards, when they are responsible for that person’s care. The Department of Health’s argument is that all it is doing is taking the Law Commission’s proposition that care planning should be at the heart of the new model, but the Law Commission did not say that these assessments should be done by care managers. In any case, if we are talking about a preventative approach, and if the aim is for assessments to take place prior to admission, which I think it is, one has to ask how it can possibly be appropriate for the care home manager to do that job.
The reality is that care home managers will have the responsibility to make crucial decisions about restricting a resident’s freedom that were previously made by independent people. The assumption seems to be that the resident’s best interests will generally coalesce with that of the provider, but we know from experience that that is not necessarily so. The Relatives & Residents Association, which has a helpline that receives lots of calls from anxious relatives and friends, points out that currently, families can be in conflict with the care home when the resident and their next of kin or lasting power of attorney may wish to move elsewhere, about who may or may not visit, and about whom they may or may not wish to see. This sometimes results in relatives or friends being restricted or banned, or residents being given notice to quit by the care provider.
These examples alone ought to give rise to concerns about what could be described as draconian powers now being given to care home managers. The responsible body makes its decision having regard to the report by the care manager and supporting evidence, but there is no requirement that I can see to have regard to other evidence. Although the responsible body must be satisfied that the care manager has been through the process in the Bill, the impact assessment suggests that this will be merely a desktop exercise. I would be glad if the Minister could confirm that, or say just what it is that the local authority can undertake. At the moment, on the face of it there is a massive conflict of interest with no external checks if the manager reports that the person is not objecting. That would, for instance, open the door to collusive relationships between the home and relatives.
There is then the question of training, which was raised at Second Reading by a number of noble Lords. We have already heard that there were problems with people in the field understanding the requirements of the existing legislation. What is now being put forward is, in my view, in many ways a more demanding and wide-ranging process, certainly in the care sector. Despite the statement in the Government’s impact assessment that they have engaged with service providers, it is noticeable from the briefings we have received in the past two days from many care providers that they too are very concerned about the responsibilities being placed upon them. The consultation seems to have been selective, in that the people who were consulted do not appear to speak on behalf of the sector. Again, it would be useful to nail this one as we go through our debates.
The impact assessment assumes a zero cost to homes and that half a day’s training will suffice. Surely the Government cannot be serious about that. Are they really saying that these new responsibilities can simply be subsumed into the everyday business of care homes at the moment? That surely gives the lie—the concern is that the deprivation of liberty in relation to people covered by this amendment Bill is not being taken seriously enough.
Over the weekend I read a briefing from a national group of regional deprivation of liberty safeguard leads, who should know a thing or two about this. They point out that, as we know, the provisions relating to care homes were never part of the original consultation, and that at no point have local authorities had an opportunity to road test how taking on such a significant assessment role would work in care homes. They say that this is all the more important because the Bill leaves the detainer determining whether the conditions for detention are met, and again, this potentially creates a conflict of interest and risks a return to the state of arbitrary detention.
In summary, it is not appropriate to give care home managers these new and inappropriate responsibilities for vulnerable and often isolated residents for the following reasons. First, they clearly require the care home manager all too often to be judge and jury about decisions in which they were involved, and in which the viability of whose business may depend on income received from detained patients. Secondly, the state of the sector surely gives rise to concern. I know that there are some fantastic care homes, but one in five has no registered manager in post, despite this being a mandatory requirement, while turnover is estimated to be a massive 27%—and they need only half a day’s training. That is simply not believable.
I question whether care managers have the background, time or training to carry out this onerous role. I also question why care home residents, who are surely part of the community, are being treated differently from peers living in their own homes who may be equally vulnerable. This is worth a more general debate, although I recognise that there are amendments to come. However, the Government need to think again and at least explain in rather more coherent terms why they think it is reasonable for care home managers to carry responsibilities which have built into them clear conflicts of interest.
Baroness Jolly (LD)
My Lords, I will resist the temptation to rerun Second Reading, but I thank all the organisations which have provided us with informative briefings as well as all the individuals, academics and carers who have done so—you all know who you are.
This rather ugly Gorgon of a Bill matters. It matters to those who are vulnerable and will unknowingly place their future in its hands. It matters to diligent professionals from both the NHS and care services. They do not know it, but it matters to the general population, too—many will become carers one day.
I wish someone had had the courage to tear it up and write a Bill that was clear, compassionate and contemporary—but they did not. Because we care we will spend the next few days in Committee and beyond, trying to make it fit for purpose. The noble Lord, Lord Hunt of Kings Heath, has given us the briefing around which we shape this debate on Clause 1 stand part and for which I thank the Relatives & Residents Association. It covers the role of the care manager, the centrality of the cared-for person and their views, best interests and advanced wishes; an understanding of what deprivation of liberty is, access to information and, indeed, cost.
It is worth mentioning that there are amendments from all over the House that cover each of these areas. Like others, I am concerned about the role of the care manager as assessor. Over the last few years I have met many kind, efficient care managers, both professionally and in my role as a carer. As professionals, they run hotel services, ensure that care needs are met and rosters are filled and deal with people who lack capacity with compassion. But experts in mental capacity they are not and I am concerned that they are given such a key role in this Bill. As chair of a not-for-profit organisation that cares for people with learning disabilities in residential settings, I know how hard it is to do this on the money that local authorities give us.
An efficient home is a full home. The person who determines whether someone should enter that setting or go somewhere else should, under no circumstances, be the manager. The conflicts of interest, no matter what checks and balances are in place, will always be there and that is the same for the private sector, not-for-profit and even, where it still exists—and I believe it does in parts—the public sector. Training and awareness should minimise this but we must be on our guard.
Everyone accepts that the 2005 Act has become not really fit for purpose and that this is a patching exercise. Everyone accepts that DoLS has run its course. Many believe that what we are trying to amend is drafted to save costs and that goes back to the briefing that this debate is based on—people live longer, care costs increase and these processes are not cheap. Can the Minister confirm that these amendments are all drafted to be the most effective way to deliver a better service and not as a cost-cutting exercise?
The noble Lord, Lord Hunt of Kings Heath, mentioned consultation, which is something that we on these Benches are concerned about. My understanding is that consultation did go on but it was with individuals grouped together—they were like focus groups of care home managers, social workers and so on. There was no consultation of the organisations, the umbrella bodies. I phoned many organisations before putting my thoughts together and tabling my amendments. All of them came back to say that they are going to see the department this week or next week but that they have not spoken yet. I think that is disappointing.
Much as there might be a temptation to scupper this Bill by supporting Clause 1 stand part, I know that it is for now the only alternative. I will do that in the hope that the Minister tells his right honourable friend the Secretary of State for Health and Social Care that it is barely good enough and that future patching of legislation is not acceptable. The people we are discussing really deserve better.
Baroness Murphy
My Lords, I support the noble Lord, Lord Hunt, in his endeavour to raise this important issue about care homes. I know we will return to it. This is a very good example of where I had not really thought about the twin-track approach to raising the safeguarding issue. I understand completely how this came about as an attempt to try to improve on the monstrous bureaucracy of DoLS. This is a very good example of that, to which I think the noble Baroness, Lady Jolly, alluded. We have a monstrous Bill at the moment. I remember discussions at the Law Commission with the Royal College of Psychiatrists as to how we might make it more streamlined and reduce costs, which in my view is pretty crucial if we are to target the right people. That led to the production of a process to involve care home managers which, on the face of it, looked as though it would cut bureaucracy.
Lord Touhig (Lab)
My Lords, I thank the Minister and his team for their engagement with Members across the House, which has been very helpful. I strongly support the attempt, on the initiative of my noble friend Lord Hunt, to have this clause stand part debate.
In the past day or so, I have spent some time looking at advertisements for care home staff and managers. They vary greatly; there is no standard at all. One advert for the role of a care home manager said, “You will assume all aspects of responsibility for your care home and have exceptional man management skills”. A minimum of two years’ experience of managing a care home, with no other qualifications, was the only candidate requirement. Another advert said that there was an opportunity for someone seeking to develop their career who must have a solid residential care background on applying. It said that applicants should have a full working knowledge of CQC requirements, possess leadership and organisational skills, and be either qualified in or working towards an NVQ level 5 in social care management, a QCF 5 or equivalent. It took more of an interest in qualifications and was a bit hit-and-miss on whether the person should be fully trained. It said that candidates should have three years’ experience of social care and it would be preferable if they had some previous management experience.
A third advert offered an exciting opportunity for a care home manager with a view to becoming a registered manager if the applicant was not one already. The skills and qualifications needed were an NVQ level 5 in leadership and management, or to be working towards that. Again, that does not mean being qualified with all the necessary education and training. A fourth advertisement sought candidates with proven home management experience, strong marketing, commercial and business acumen and a clear and thorough knowledge of CQC standards. Your Lordships should note that possessing knowledge of CQC standards came third after marketing, commercial and business acumen.
My point is that this demonstrates that there is no agreed national standard for care home manager training. With this Bill, we are proposing to give them a huge new responsibility that will affect the quality of life of many vulnerable people in our society. This really needs to be revisited. We are taking a big risk with people who have no one else to defend them if we do not start defending them here.
Baroness Finlay of Llandaff
My Lords, to intervene fairly briefly, it is important that we remember that the current DoLS system has effectively fallen over. We have 108,000 people currently waiting to be assessed, so we have to do something. We cannot leave it running so there is an urgency to come up with some way forward. I remind the Committee that, whenever somebody is in a place of care such as a care home, the deprivation of liberty safeguards application—form 1—is a request for standard authorisation and has to be completed and sent in. That form asks about the purpose of the standard authorisation, and for a relevant care plan to be attached. It also asks why less restrictive options are not possible, and other things. So a degree of assessment is already going on at the care home and these forms are sent in. They are then sent to somebody to authorise them.
I worry that, in some of the briefings that we have had, it looks as though the care home manager will be able to authorise in totality, whereas, as I understand it—the Minister may correct me if I have this wrong—the care home manager will still be required to have the responsible body authorise. That responsible body will be able to look—and one would want them to look—at objections that may come forward from somebody. It is to be hoped they will go and visit if they feel there is a discrepancy between the care plan submitted and the original care and support plan that came from the local authority, which may have been involved in the pre-placement assessment that went on.
The idea behind these new approvals is that there is portability: the person may reside in one place, then be moved to hospital, go to outpatients, spend time in hospital and then come back to the care home. Within that portability, however, there is a requirement to review, if the circumstances change. We will come later to amendments that look at discrepancy between the care plan and the care and support plan as submitted. In other words, these are things that should trigger red flags in the mind of the authorising body, rather than the authorising body just being a rubber-stamping exercise, which is, I think, a misunderstanding that there may have been. If it is a rubber-stamping exercise, there are all kinds of dangers in that. Somehow, we have to filter out those people who really need an in-depth assessment and review from those people where the current processes are just burdensome, time-consuming and not contributing to improving their care. That filtering is really difficult. I offer that in the debate at this stage because it is worth looking at these forms, which I hope will be improved because there is not that much room to write on them.
Baroness Tyler of Enfield (LD)
My Lords, I make a brief intervention, primarily to underline the importance of two points that the noble Lord, Lord Hunt, made when introducing his amendment. Like my noble friend Lady Jolly, I fear we have no alternative other than to carry on and scrutinise this Bill. The reasons for doing something have just been set out very clearly by the noble Baroness, Lady Finlay, but I retain two really key concerns which I raised at Second Reading.
The first—referred to by the noble Lord, Lord Hunt—is that of timing and understanding the relationship with the review of the Mental Health Act. I understand that it is due in the autumn—I am not quite sure when—together with amendments to the Mental Capacity Act, given that both Acts relate to non-consensual care and treatment. It seems that the overlap between the two systems is one of the reasons why the current system is so complicated, and why so many staff struggle with it. Frankly, it is why I struggle with it so much. There must be real concerns that changes to address problems under one system will have unintended consequences for the other. Clarity is needed from the Government over when patients should be subject to one Act over the other, so that, in the words of Sir Simon Wessely, chair of the Mental Health Act review,
“arguing over the framework does not get in the way of delivering the care that the person needs”.
I could go on at length—I will not, your Lordships will be pleased to hear. I have just one more thought on this. In addition to the need for clarity on when the Mental Capacity Act or the Mental Health Act should be used, it is really important that patients do not find that they are deprived of their liberty by both Acts at the same time. There are examples of this happening, particularly when a patient has both a mental disorder and an unrelated physical disorder.
That is my first point. My second point, which was made very cogently by the noble Lord, Lord Hunt, is about the consultation that is taking place with the sector. Like everyone else, I have received a large number of briefings in the past few days. Frankly, it has been difficult to take them all on board. I have done my best. I was particularly concerned by a survey that was published only a couple of days ago by an organisation called Edge Training. I do not know it personally, I do not know exactly what else it does, but I do know that it was a survey of 900 people and nearly half the respondents were best-interests assessors, with the rest being primarily social workers, health professionals and independent mental capacity advocates. I will not go through what they said, other than to say that there were really very high levels of concern—80% this and 90% that—particularly in relation to the new roles being placed on care home managers, the potential conflicts of interest, plans to charge care home managers with deciding whether it is in a resident’s best interests to have an advocate if they lack capacity to request one, and the lack of a specific requirement to consult the person themselves about a proposed deprivation of their liberty.
My conclusion from all this is that the sort of consultation that should have gone on with the sector for a change such as this, which really has to work—this is not political, it is about something that has to work on the ground and people who do this have to understand it and feel that it does work—cannot have happened to the extent to which I think it should have happened, and that has real importance for the pace at which this can be taken forward and the consultation and implementation timescale.
Baroness Barker
My Lords, I just want to share the thoughts that I had over the summer, when we had a very long time to look at this proposal. I have been wrapping my head in wet towels looking at this legislation, trying to work out what it is all about, and to answer a key question: why this Bill now? I am still not happy that I have the right answer.
The noble Baroness, Lady Murphy, referred to the Mental Capacity Act as a “monstrous” Act—the DoLS part of it. But let us be fair, when the Select Committee did its review, we found that the Act was held in quite high regard; the problem with it was that it was not properly understood and that had caused problems with its implementation. It is true that we said in the Select Committee report that there needed to be an absolute root and branch review of DoLS, but we prefaced all our recommendations for the review of the Act on one other premise, which has been ignored by the Government. We said that one of the reasons that we saw for the failure of the Act to be properly implemented was that there was no central ownership of the Act and no single body responsible for its implementation. The Government have chosen to ignore that. Instead, they have shoved responsibility for the MCA on to the CQC, where it does not get specialist attention. There is nothing like the attention paid to the Mental Capacity Act that there is to the mental health legislation, and yet if it is not properly implemented, people can be deprived of their liberty.
Baroness Thornton
I am grateful to my noble friend for tabling this clause stand part. It was necessary for a number of reasons. I am also grateful for the contributions that have been made because they bear out the reason why it was important to put down this debate. The first reason has been alluded to by many noble Lords and is the very unsatisfactory scheduling of the Bill. It means that noble Lords and stakeholders have not had sufficient time to consider the Bill and all its amendments for today. The vast majority were put down last week, and the Marshalled List became available yesterday. It was difficult for anybody to see whether the tabled amendments probed the Bill sufficiently and made all the improvements that noble Lords deemed worthy of consideration.
There is a lesson here about scheduling: if you have the Second Reading immediately before a recess, a sufficient number of sitting days must be given to allow noble Lords to table amendments and have the necessary discussions with stakeholders and each other. Getting almost 100 amendments tabled from a standing start when the House rose is pretty good going, and I congratulate noble Lords across the House for that. Some of us were emailing each other and the Public Bill Office from the poolside or the middle of fields during the Recess. However, people are playing catch-up, which does not bode well for a thorough-going scrutiny.
I congratulate the Bill team for managing to talk to noble Lords during the Recess, but in some ways they must have had an unsatisfactory time as well because we did not have the full list of amendments until Friday evening. As many noble Lords have said—it is clear from my mailbox too—in the last two or three days stakeholders are also playing catch-up and are expressing great concern about some aspects of the Bill. In a way, the frustration that that has raised is why my noble friend has tabled his amendment to oppose the clause stand part. That allows us not only to mention things that are not covered in amendments but to raise these points.
From my point of view, and from these Benches, depending on what the Minister says in his reply, we might need to raise issues of scheduling and time to consider some of the serious implications of the Bill, and possibly table amendments at the next stage that address some of the concerns raised in this debate—particularly the issue of care home managers. Notwithstanding the issues raised by the noble Baroness, Lady Finlay—she may well be right about people understanding the processes in the Bill—that does not alter the fact that we do not know who will authorise or whether it will work.
This links to my second point, which is about consultation. I would like to know where the care home manager’s role in this came from. It happened between the Law Commission draft Bill and this Bill. Suddenly, the care home manager is it, and I think that that might probably have been a surprise for some people—certainly for the noble Baroness, who did not hold back in her views about care home managers. On the consultation issue, it is clear from the Law Commission report that it did extensive consultation, leading to the creation of its draft Bill. There were something like 83 nationwide events and 583 written responses from interested persons and organisations. Some of those events were very significant indeed, with many stakeholders. Where did the issue of the role of care home managers come from? I should like the Minister to share that with us, as he must be aware of the level of disquiet about the expectations and the responsibilities that would have to be assumed by care home managers for the assessment required to authorise the deprivation of a person’s liberty when the person lives in their care home.
I also want to know the view of the CQC on this proposal. What is the view of the care providers, the ADASS and the LGA? They are all key stakeholders in that decision. I should be grateful to have the Minister’s take on the view of those important organisations on this proposal. I could not find the issue among the material circulated by the Minister or, indeed, in the letter he sent, which I found useful and informative.
My noble friend has done the House a favour in raising these issues and allowing a large number of questions to be asked at this stage, which might inform the next day’s discussion in Committee, the next stage of the Bill and perhaps also the discussions that we will need to have in the coming weeks.
Lord O'Shaughnessy
I start by agreeing with the noble Lord, Lord Hunt of Kings Heath, that of course extensive scrutiny is deserved for legislation of this kind, which we have achieved both at Second Reading and, for those who could not be there, in the second Second Reading debate that we have just had. That scrutiny is obviously reflected in the 100 or so amendments that have been tabled. It is worth using this opportunity, as the noble Baroness, Lady Finlay, did to some extent, to remind ourselves why we are here pursuing this legislation.
The noble Baroness, Lady Barker, asked why now? Well, in 2014, the House identified that the DoLS system was not fit for purpose and the Government tasked the Law Commission with completing its report into DoLS. It recommended that the current system needed to be replaced as a matter of pressing urgency. I will come on to the point about the discrepancies between the two approaches but, nevertheless, that was its view. The Government stated that we would do this as soon as parliamentary time allowed—part of the issue around scheduling is indeed “when parliamentary time allows”. It is important to use opportunities when they arise to do important things, even if it means that people have to work during the summer or holidays. I realise that that is not always ideal, but the scheduling, for example, of Committee over a long period—and we will then need to think about Report—should give lots more time for these kinds of discussion. I reassure noble Lords that we want to have and are open to those discussions.
The model that we have created is based on that developed by the Law Commission and, like the Law Commission, we want to increase the protection of some of the most vulnerable people in society, to protect their rights, not just in theory but in practice, and to improve access to justice. I confirm to noble Lords that we have worked and continue to work with a range of stakeholders to build on the Law Commission’s model and to produce a streamlined system. “Streamlined” is an important way of describing this, because the noble Baronesses, Lady Jolly, Lady Barker and Lady Murphy, talked about cost-cutting. This is in fact about creating a system that has the effect that we want with the budget that it is given; that is the point. As we know from the backlog, lots of people are being denied access to justice because of a system that is disproportionate in its application. That is what we are trying to solve, so that those cases that really do deserve the highest level of scrutiny are able to receive it. That really is at the heart of what we are trying to do. I emphasise that Nicholas Paines, the Law Commissioner who led this review, said that this Bill,
“will go a long way towards addressing the flaws of the current system and better protect the most vulnerable in our society”.
I would not claim at this point in the proceedings that it is perfect. I am sure that we can improve it, but it is important that we are doing it, that we are doing it now and that it has support from the Law Commission itself.
More recently, the Independent Review of the Mental Health Act: Interim Report, which was referenced by the noble Baroness, Lady Barker, and led by Simon Wessely, stressed the need for an,
“appropriate calibration between resources spent on delivery of care and those spent on safeguards surrounding the delivery of that care”.
That is what we are trying to achieve through this process. I reassure the noble Baroness, Lady Tyler, who was quite right to talk about the interaction and interface between the two Acts and how they operate that, while we are taking this opportunity to act now while we can, if there are future recommendations that mean there have to be further changes, we would be open to those. This will not be the last opportunity to make sure that the interface between the two Acts, once the reviews have been completed, could be amended, if that is what is necessary. It is important that we have acted now and that those 108,000 people currently in the backlog will have swifter access to justice—that is the main argument. That is my Second Reading speech summarised and repeated.
From what the noble Lord, Lord Hunt, has said, I do not think that he wants to remove this clause, not least because it would remove the new system while not stopping the repeal of the current system, and nobody wants that. At the heart of what the noble Lord spoke about is this focus on care homes, which I think is worth dwelling on. The system has been carefully designed to ensure that there is independence and proper accountability. Care homes will not authorise any applications. That will fall to a wholly independent responsible body—the local authority.
Lord Hunt of Kings Heath
I am grateful to the Minister, although I am reeling from the shock that he thinks that I called for a second Second Reading debate to take place on a Clause 1 stand part discussion.
I of course agree that the current system is not fit for purpose. I agree with the Minister and with the noble Baroness, Lady Finlay, and other noble Lords. I agree with the need for a streamlined system, but it has to be the right system. I say to the noble Baroness that one of the briefings that I received was from 39 Essex Chambers, which is pretty expert in this area. It was a very interesting piece by Victoria Butler-Cole which sets out seven changes to the Mental Capacity (Amendment) Bill that the courts are likely to make unless Parliament gets there first.
We have to be very careful that in wishing to support the Government to get a streamlined process through we do not build in mistakes and errors that, rather like the Cheshire West decision, will lead to the court, and then to further legislation. In her piece, Victoria Butler-Cole says that the Court of Protection has a record of rejecting capacity assessments conducted by consultant psychiatrists with years of training in mental health and specifically in relation to the MCA. The Bill permits care home managers to assess capacity in this context. There is no way that will withstand scrutiny by the court, and there are likely to be even more cases in which assessments of incapacity are overturned as care home managers with little or no relevant training are required to carry out what can be a complex task. That seems to me to be the problem.
I know that this has to be signed off by the local authority. The impact assessment makes it clear that in the vast majority of cases that will be a desktop exercise. That does not fill me with confidence that these assessments will be scrutinised effectively by local authorities which themselves are very hard pressed. That is why I think that, when it comes to the detailed amendments, this is a very important part of this legislation. We need to be very careful to ensure that this is going to work effectively.
On training, the noble Lord has made some very welcome comments, but I refer to the fact that there is an annual turnover of 27% in this sector among the people who are going to have to do this work. I say to the noble Baroness, Lady Murphy, that I was trying to be polite. This is a very vulnerable sector, with low-paid people who have low qualifications being asked to deal with issues to do with the fundamental liberty of people in this country.
My gut feeling is that it will not do. This cannot be left to care managers. The Government will have to look again at the Law Commission’s assumption that local authorities would do the work. I of course do not wish to prevent Clause 1 standing part of the Bill.
Baroness Barker
My Lords, I hope that it is permissible for me to rise again. For the avoidance of doubt, will the Minister confirm that I understood him correctly? Is he saying that the role of the care home manager has not changed? I understand that, under the existing law, a care home manager may request that somebody’s capacity be assessed, but that assessment is not usually done by them. That assessment is done by somebody else. Is he saying that that is not going to change? I am sorry, but I think it very important that noble Lords understand what the Minister says.
Baroness Thornton
I understood that the Minister said “escalate”, which means that something changes. Perhaps when he is answering the question of the noble Baroness, Lady Barker, he could also explain the word “escalate”.
The Government may need to think about carrying out some form of assessment of the appropriateness and suitability of care home managers to undertake this task. If that has not been done, perhaps it needs to be done in the next month or so.
Lord O'Shaughnessy
In answer to the noble Baroness’s question, the point that I was making is not that the role of the care home manager will not change but that they are not being asked to do something of which they have absolutely no experience or responsibility for at the moment. As the noble Baroness, Lady Finlay, pointed out, care home managers are already required to make applications and to consider capacity and restrictions, so they already have a role. The distinction is that, as the Bill sets out, the assessments can be made within the care home itself—of course, not by a person with direct responsibility for care. That is one of the issues, of avoiding conflict of interest. In all cases, those will be authorised by the local authority. If there is any reason, through that authorisation, for concern—for example, of conflicting views between the person cared for and their family—then the AMCP, the mental capacity professional, will have the opportunity to decide on the right course of action. That is what I meant by escalate—not that there is a choice of whether to escalate authorisation to the responsible body, as that will happen in all cases, but that there is a further opportunity for consideration by an AMCP if there is any sense of this happening. We will explore in more detail in future groups whether there is a reason for further investigation, including, of course, speaking to the cared-for person, their family and others.
Lord Hunt of Kings Heath
With regard to what is going to be a desktop exercise, the question then arises as to how the local authority will know that there are concerns. On conflicts of interest, it seems that the job of the care home manager is to make sure that their home is filled. There is a fundamentally wrong issue here. The initial assessment will be done by someone with a financial interest in its outcome. It is wrong.
Lord O'Shaughnessy
Perhaps I may say that to some extent we are getting ahead of ourselves, because we will explore these issues in further amendments. There is clearly already a system in place, which will continue and will be enhanced, to make sure—whether it is through family members and others with an interest, or, as we have discussed before, through those with a lasting power of attorney—that those who have an advocate working for them are able to register their concerns, objections or whatever it is through the process. So it is not simply the case that the care home manager would be able to wrap up the entire discussion and not let any other point of view be heard—quite the opposite. And, as I said, we will discuss that in further detail.
On training issues, addressing the second point talked about by the noble Baroness, Lady Thornton, she is quite right. That is precisely why I said that it is important for us, the Government, to explain, on the basis of consultation with the sector, what will be required to make sure that those who will have these extra responsibilities will be able to exercise them properly. We will discuss that outside this Chamber. I know that noble Lords want to make sure that, where there is a proposed change, even if they still require some reassurance about the benefits of such a change, it will be implemented properly. Clearly, that has big implications for training, capacity and so on. So we will take that away and make sure that we are able to provide more detail on it.
Baroness Thornton
Baroness Thornton
My Lords, we are moving to the issue of changing “18” to “16” and applying the provisions of the Bill to 16 year-olds. I have four points to make.
First, this amendment is supported by the LGA and the ADASS. Secondly, the GMC is concerned that, given that the Mental Capacity Act applies to people aged 16-plus, excluding those below 18 from the liberty protection safeguards in the Bill may leave an important gap in the liberty safeguards. Thirdly, the Royal College of Psychiatrists has pointed out that case law has established that the parents of children under 16 may give consent to what would otherwise constitute a deprivation of a child’s liberty where the matter falls within the “zone of parental responsibility”, but it has been held that a parent cannot give equivalent consent for a 16 to 17 year-old. It therefore argues that the Bill should be extended to 16 to 17 year-olds to provide them with better safeguards, as they are not served well at present.
Finally, the Law Commission looked at this in some detail. It was part of its remit from the Government that it should consider,
“the position of young people aged 16 and 17 (but not children aged 15 or younger). Most of the Mental Capacity Act applies to people aged 16 and over. However, the DoLS only apply to adults aged 18 and over. There are several legal provisions that permit the deprivation of liberty of children … Under section 25 of the Children Act 1989, a child who is being looked after by a local authority can be placed or kept in secure accommodation in England, provided for the purpose of restricting liberty. The Mental Health Act can be used to detain a person of any age suffering from mental disorder for the provision of medical treatment. Beyond these cases, the deprivation of liberty of a young person can be authorised by the Family Court or Family Division of the High Court under their respective inherent jurisdictions or by the Court of Protection”.
There is of course a complicating factor: namely, that,
“the Strasbourg court has recognised the right of parents—in certain cases—to consent to restrictions placed on their child which would otherwise amount to a deprivation of liberty”.
That refers to the Birmingham case, which noble Lords may well be familiar with.
Baroness Murphy
My Lords, I support this amendment. As the noble Baroness, Lady Thornton, has already said, the Royal College of Psychiatrists feels strongly that this would clarify decision-making. There may be issues arising from the fact that when the Bill was being put together we had not yet had the Birmingham judgment, which is why we are not quite there yet. However, having the four regimes that we currently have to choose from for this age group makes it very difficult to make appropriate choices. This would clarify it. It was strongly supported by the Law Commission in its first recommendations, and I support it.
Lord Cashman
My Lords, I too support Amendment 2 in the name of my noble friend Lady Thornton, and the consequential amendments. I am grateful to her for bringing her personal experience to this and reminding us of the young individuals involved. This amendment and the subsequent amendments are to be welcomed. By including 16 and 17 year-olds, it offers better safeguards to those who are not served well at the moment. The amendment would see 16 and 17 year-olds protected by the LPS. It would simplify the system, would bring clarity and ensure that their rights under Article 5 of the European Convention on Human Rights were therefore protected. For those reasons and many more, I support this amendment and the subsequent amendments.
Baroness Tyler of Enfield
My Lords, I rise briefly to support this group of amendments. I strongly support bringing 16 and 17 year-olds within the scope of the Mental Capacity Act, and support the proposed amendments to the authorisation and safeguards scheme. I will raise a couple of points, and I would be grateful if the Minister were able to provide some answers or reassurance.
First, clarity will be needed on the role of those who currently have parental responsibility, and how that will fit in with the proposals that are being put forward. Secondly, we need to make sure that there is a fully co-ordinated and joined-up approach across a number of different pieces of legislation. I have already talked about the join-up between the Mental Capacity Act and the Mental Health Act, but I am conscious that, when we are looking at 16 and 17 year-olds, we need to look also at other legal mechanisms that authorise a deprivation of liberty, such as Section 25 of the Children Act 1989, and at how the model dovetails with legal frameworks for the provision of care and support, such as education, health and care plans under the Children and Families Act 2014. So I would ask for some reassurance that someone is looking at the join-up with other relevant bits of children’s legislation.
Lord Hunt of Kings Heath
My Lords, I would like to follow that up. Clearly, the Government accepted in principle that these provisions should extend to 16 and 17 year-olds but then entered the caveat that,
“changes will need to carefully consider wider rights”,
as the noble Baroness has said. The Government said then that they would consider these matters carefully before bringing forward legislation. The question I would like to ask is: how far has that work got, and is there a prospect of seeing legislation in the reasonable future in relation to it, or is this our opportunity? Other opportunities may not come for some time to come. I realise Ministers are reluctant to commit themselves to particular legislation, but it would be helpful to the House if the Minister could at least give some indication of the work that is now being undertaken and when it is likely to come to fruition.
Lord Touhig
My Lords, the Law Commission supports this and I certainly support the amendment as tabled by my noble friend Lady Thornton. Including 16 and 17 year-olds would offer some legal protection for organisations such as the National Autistic Society, of which I am a vice-president. We do a huge amount of work with young adults and strongly believe that this is important for them—for their work and for their future. This was raised during Second Reading by a number of people—I was one of those who raised the matter. The Minister indicated that he would look at it and, indeed, in a letter from him on 24 July, he said:
“During my speech I indicated that I would like to reflect on the matter of how the model could fit with 16 and 17 year old young people”.
Perhaps, when he gets up, he will have some good news for us.
Lord O'Shaughnessy
I would like to thank the noble Baronesses, Lady Thornton and Lady Murphy, for tabling these amendments, which seek to apply the liberty protection safeguards to 16 and 17 year-olds in the same way that they apply to adults. Noble Lords have been absolutely right to point out, as they did at Second Reading, that in the Government’s response to the Law Commission report, we accepted in principle that 16 and 17 year-olds would be included in the new liberty protection safeguard system. I know that noble Lords are motivated not just get to get this right in general but also, as the noble Baroness, Lady Thornton, said, in relation to specific cases that are known to them, sometimes very close to home. I understand and sympathise absolutely with the desire to do that.
The noble Lord, Lord Touhig, is also right to say that it is something I said I would consider and would seek to bring further news. We are still considering this very actively. What is clear even from this brief debate is that, as the noble Baroness, Lady Tyler, pointed out, there are some critical interactions that we need to get right with other bits of the system. These include the role of parents, how the safeguards would apply to looked-after children, and interaction with processes such as the education, health and care planning processes for those with special needs and disabilities. As the noble Baronesses, Lady Murphy and Lady Thornton, reminded us, we need also to be mindful of the current court case.
At this stage, I repeat and underline our commitment to make progress and to offer the best possible protection for this group of vulnerable young people. Proper scrutiny and detailed thought is required, and that thought is ongoing. I recognise the arguments for including this group. Like all noble Lords, I want to make sure we get this right and get the interactions right, so that they do not end up being fixed subsequently by the courts, as the noble Lord, Lord Hunt, pointed out in a different context.
Our intention is to use the time between now and Report to continue having those discussions, both with noble Lords and with stakeholders throughout the sector, to make sure we can get this right. On that basis, having given the commitment that we will work hard to do what we can between now and Report to get the right outcome, I hope the noble Baroness will be prepared to withdraw her amendment.
Baroness Thornton
I thank the Minister for that. What can I say but, “Thank you, and let us hope so”?
Baroness Tyler of Enfield
Baroness Tyler of Enfield
My Lords, the essence of this amendment is about language and use of language—in particular, the term “unsound mind”. I think we would all agree that language is important; it sends very important signals. Many noble Lords raised this point with passion at the Second Reading debate. I was pleased that the Minister’s helpful letter of 24 July referred to the debate about “unsound mind” and made clear that the Minister was sensitive to the points made and would welcome views. I guess this amendment is my way of putting forward my views.
The fact remains that, despite growing awareness and acceptance of mental illness, stigma and discrimination remain a regular experience of people with mental illnesses and their families and can put people off seeking help. We were given to understand that the use of the term “unsound mind” within the Bill was to ensure that it was in line with the ECHR—but this was written in the 1950s. Many people, both inside this Chamber and outside, have expressed serious concerns about the inclusion of this language in the Bill in 2018. Frankly, it perpetuates very unhelpful negative stereotypes. I would contend that the phrase “unsound mind” is out of place in today’s society; it is out of place in legislation being looked at in 2018; it is stigmatising and has no clear clinical meaning; indeed, I would say it is offensive to many.
Therefore, my amendment proposes that, in paragraph 2(2)(c) of Schedule 1 to the Bill, the term “is of unsound mind” is replaced by “has any disorder or disability of the mind”. This terminology is already a well-established term in the Mental Capacity Act and has proven to be compliant with the ECHR without, in my view, having anything like the same stigmatising connotations of “unsound mind”. A disorder or disability of the mind, I am informed by the Royal College of Psychiatrists, has a clear clinical meaning. It is well understood by clinicians and should be no more stigmatising than saying someone has a physical disability.
I am aware that the BMA, which supports not using the term “of unsound mind”, has put forward a proposition that this term should be reconsidered and experts and patient groups consulted to find an alternative to it. The BMA may be right, but I felt that, for my starter for 10, I wanted to put forward terminology that I thought was right. I am sure that others will be able to improve on it.
To conclude, above all this Bill must put the people most affected centre stage—that means some of the most vulnerable people in society, as we have already heard. In my view, it is simply not good enough to continue using terms that lawyers and drafters of legislation may find helpful—it might help them fit things in with other bits of legislation and other conventions—but which causes harm and distress to those we are all trying to help. I believe there is a real and welcome opportunity to change the narrative and discourse in a positive way, and this amendment is a way of taking that opportunity.
Lord Cashman
My Lords, it is a great pleasure to support this amendment. Language is crucial. Several times during the day I question whether I am of sound mind, and I think that the concept of unsound mind is extremely dubious. I welcome the amendment from the noble Baroness, Lady Tyler, because it seeks focus and clarity, substituting for “is of unsound mind” the words,
“has any disorder or disability of the mind”.
I believe that the Royal College of Psychiatrists has supported this approach. The BMA also suggests that there should be a different approach because the term “unsound mind” reinforces stigma and discrimination, and equally it is outdated. Its continued use merely perpetuates negative stereotypes of vulnerable people, particularly when we are trying to get over those stereotypes in order to get people to speak more openly at the beginning of their problems—our problems—with mental health issues. Therefore, it is a pleasure to support this amendment.
Baroness Murphy
My Lords, the noble Baroness, Lady Tyler, has produced a perfectly adequate descriptor which would substitute perfectly well for “unsound mind”. We always face this difficulty in discussing terms that relate to stigmatised disorders. We have to keep changing the language to keep it up to date and to refresh people’s thinking about what we are dealing with. “Unsound mind” went out in the 1960s and 1970s—I do not think that I have ever diagnosed anybody as being of unsound mind—and we must now have an alternative. We do not need the convenience of it remaining as it was back in the 1950s. Therefore, I support the descriptor given by the noble Baroness, Lady Tyler. It is a very good one. We have used it before and it would be perfectly adequate. Let us ditch “unsound mind”.
Baroness Barker
My Lords, I shall not detain the Committee for long but it is important to recap on a bit of history. The original legislation that came before your Lordships’ House on this issue—the Mental Incapacity Bill—was subject to the first ever pre-legislative scrutiny. In going through that then very innovative procedure, Members of this House and another place did a couple of things which at that time were game-changing. One was that we invited people who lacked capacity to come and give evidence to us. But we went further than that. When we produced our report, we invited them back to discuss with them what we had listened to and what we had changed. One of the first and most important things that we did was to change the title from the Mental Incapacity Bill to the Mental Capacity Bill. We also, for the first time ever, produced an easy-read version of a Bill.
I strongly support my noble friend Lady Tyler because this feels like a real regression in thinking. I understand that the term is there because somebody somewhere believes that it has a legal meaning. We came up against those same arguments all those years ago and this House led the way in getting lawyers and counsel to change their minds. I do not see a reason for us not to do the same again.
I wish to add one point. I vividly remember listening to the people whom we invited back to talk to us after we had produced our report. At this point, there were only Members of your Lordships’ House in the room—the Commons were busy and had not turned up. I remember one particular gentleman who said, “When I first saw this, I thought it was really rubbish, but actually you’ve done quite a good job”. I have to say that in all my years in your Lordships’ House I do not think that I have ever received a more sincere accolade. That is not to belittle anybody’s contribution to this, but I think that my noble friend has made a very strong point.
Baroness Thornton
These Benches support the amendment. As the noble Baroness, Lady Tyler, and others have said, the reference to unsoundness of mind is offensive to those with learning disabilities, dementia and brain injuries and their families. The noble Baroness, Lady Barker, has just demolished all the legal arguments for including the phrase in the Bill, and indeed a lot of organisations, including the Royal College of Psychiatrists, say that it out of place in today’s society. The GMC argues that it is not clear what added protection or benefit is achieved by using the term. VoiceAbility says that “unsound mind” is not used in modern psychiatry and that it could lead to debate in disputes. Therefore, I hope that the Minister will be as agreeable about this amendment as he was about the last one.
Lord O'Shaughnessy
I do hate to disappoint. I thank the noble Baronesses for introducing this point. We discussed it at Second Reading and I have huge sympathy with the concerns about this kind of language. Frankly, it is not the kind of language that we use. As the noble Baroness, Lady Murphy, pointed out, she has not diagnosed anyone as being of unsound mind for decades. It is a throwback and we are in the process of destigmatising mental health issues, as the noble Lord, Lord Cashman, pointed out. That is an endeavour that we are engaged in earnestly together. However, it is important to distinguish between the operational language used in care and the language used in the courts, and I want to discuss that.
This is not just about semantics; it is about terms that have established legal precedent and a jurisprudence based on their interpretation. It is worth discussing the consequences of deviating from a term that is in current use because of its role and the fact that the phrase is used in the European Convention on Human Rights. As the noble Baroness, Lady Tyler, pointed out, the term has not changed since the 1950s and the creation of the ECHR, and it has subsequently been used by the Strasbourg court. There is a risk, and it is worth recognising, even if it is one that noble Lords might be prepared to contemplate. The risk is that a different expression such as the one proposed by the noble Baroness, Lady Tyler—it is a perfectly reasonable starter for 10, as I think she called it—could create a gap for some people who need access to liberty protection safeguards but do not meet the criteria of having a disorder or disability of mind, although they would have met the criteria of unsound mind.
It is important to note that the Law Commission used this language. We have been accused of deviating from the Law Commission Bill but it used this language and we have copied it to ensure that the liberty protection safeguards are compliant with the ECHR and that there is no gap with people not being covered. This could include people with learning disabilities, brain disorders or disorders of consciousness. In essence, the problem here is not this Bill. In a way, the Bill has a problem because of the language that has not been changed since its creation in the ECHR.
Therefore, although I agree with the sentiment behind the amendment, new terminology would risk creating a gap for people between the ECHR and this proposed law, and we are all concerned to avoid such gaps. Any gap would require people to have recourse, instead, to the Court of Protection. Therefore, it is not the case that people would have no recourse; they would have recourse to the Court of Protection, but we know that the people being cared for and their families and carers can find that an intimidating and difficult process.
It is also important to note that the Court of Appeal has indicated that some people with certain forms of learning disability might not be considered mentally disordered under the definition put forward by the noble Baroness but would still be considered of unsound mind for the purposes of the convention. That is another reason why there is a risk of a gap. For example, there is a particular risk that some individuals with brain injuries, or certain disorders of consciousness, might fall within the gap.
At Second Reading I did say, earnestly, absolutely and honestly, that I wanted to take this away and consider it, because of the frankly unsatisfactory nature of the term when it comes to modern practice. We have also listened to the contributions of a range of stakeholders—a number of people are of course very interested in this, and not just in this House—and to the contributions of the Joint Committee on Human Rights to see whether it is possible to use better language. I know this is not something the House will welcome, but I have concluded that, although the term is regrettable, there is a risk in using alternative language of creating a gap. Between those who would be captured under the definition suggested by the noble Baroness, Lady Tyler—or, indeed, potentially any other definition—and those currently captured under the terminology “of unsound mind”—
Baroness Murphy
I really struggle to understand where these gaps might fall. For example, these people who have brain damage, which gives rise to a mental disorder, or people who have transient episodes of epilepsy, which might lead to some fugue state—would they not also be included in mental disorder, under the definition suggested by the noble Baroness, Lady Tyler? I cannot see where these gaps might arise. Have they been identified by psychiatrists? If we look through the Diagnostic and Statistical Manual of Mental Disorders, or the International Classification of Diseases, if you prefer, I cannot understand where these gaps might arise.
Lord Woolf (CB)
If the real purpose is to ensure protection under the Human Rights Act for those we are concerned about, has the Minister considered whether that might not be achieved merely by stating that the category of people we are looking at should have the benefit of the relevant section of the Human Rights Act? When I say the Human Rights Act, I mean the convention.
Baroness Barker
The Human Rights Act was in force when the Mental Capacity Act was being debated. During the passage of that Act we considered very carefully what language we should use. Is the Minister saying that we got that wrong, and have there been cases of people who have fallen into the gap? If so, how many are there, and can he give the evidence by which the Government arrived at the conclusion they have now?
Baroness Watkins of Tavistock (CB)
It might be complex to find the right nomenclature, but I heard the noble Baroness, Lady Tyler, say that this was a starter for 10. I cannot see why we have to regress to 1959 language in the Mental Health Act without further exploration of whether we could redefine the term about perhaps affecting the mind, to take in that very small minority of people with severe physical illness that occasionally affects the mind. We have worked so hard to destigmatise both learning disability and mental health that it seems very sad that we cannot work a bit harder at this point on this issue.
Lord Cashman
I want to reaffirm the point made by the noble and learned Lord, Lord Woolf. Surely it is not beyond the wit of drafters and our legal experts, when referring to the starter for 10 offered by the noble Baroness, Lady Tyler, to refer to the European Convention on Human Rights and the jurisprudence arising from the European Court of Human Rights? It seems to me that it is elegantly simple to take such an approach, reassuring the rights that relate to the “unsound mind” in relation to the new definition offered. I hope my intervention makes sense—it is not often best practice to speak on the hoof on such legal matters. I hope that noble Lords will forgive me if I have not made sense.
Lord O’Shaughnessy
I am glad that we have had a subsequent opportunity to discuss this. I would like once again to restate that I personally, and government Ministers, officials and others, do not find this comfortable language. I know that the noble Baroness, Lady Watkins, did not mean it this way, but this is absolutely not a case of trying to take us back to the 1950s. In proceeding with this legislation, we have to make sure that people who currently get protection do not lose it. I know that we all agree that we do not want that to happen. If you like, that is the goal; the law is the means, if I may say so to the noble and learned Lord, Lord Woolf. The key is making sure that we have the terminology that will reflect that we do not want people falling through the gap. It is perfectly reasonable to ask, “What is the nature of this gap?”
The Court of Appeal in G v E said that a gap would arise. Our understanding and advice from lawyers is that current case law indicates that there might be individuals—I do not have specific details of the kind of conditions from which those people might be suffering. It is worth pointing out that the Court of Protection also uses the term “unsound mind” at the moment. It is a term that is clearly operable in a legal context but which has become inoperable in a medical context. That is the challenge we face and which we have explored in this discussion and at Second Reading.
We have given this very careful consideration. We need to be incredibly conscious of not creating that gap. However, I also understand that noble Lords would like to see more evidence of two things. First, there is the reality of the gap: who, what kinds of people and what situations? That is a perfectly reasonable thing to ask. Secondly, has there been further exploration of alternatives to what we all agree is an outmoded and regrettable phrase? I am absolutely prepared to commit to do that between now and Report, because I share noble Lords’ intentions that we should make sure both that we move with the times and that we do not remove protections from people currently entitled to them, or who would have been entitled to them, in the future. On that basis, I hope the noble Baroness might be prepared to move on from her starter for 10 and withdraw the amendment.
Lord Woolf
In the list of people whose help the Minister is going to seek, may I suggest that parliamentary counsel be invited to consider whether it is possible, through the use of language in the Bill, to ensure that there is no gap?
Baroness Tyler of Enfield
I am grateful to the Minister for his response, particularly the last bit, which I found a tiny bit more reassuring. I thank everyone who has contributed. It has been an excellent short debate and we have benefited hugely from highly distinguished medical and legal expertise.
I understand that the Minister may have concerns around risks and gaps, but we need—and he has agreed to bring forward—examples and evidence of what these gaps and risks are and why they could not be dealt with by language that is perhaps slightly different from that which I proposed. There is a huge opportunity to be seized here. I have made it very clear that the wording I propose may well not be quite right. I am sure that others could come up with better wording that meets the Minister’s concerns, which I understand are legitimate. I am grateful that he said he will think further and come back with further evidence. I should like to put down a marker that I will wish to return to this on Report.
Baroness Murphy
(d) if living in a care home or supported accommodation, meets any one of the following conditions—(i) is under continuous supervision and is not permitted to leave the premises on their own, or(ii) is subject to the use of physical barriers to limit their access to particular areas, or(iii) is subject to the use of force, including physical, mechanical or chemical restraint, or(iv) is subject to constant close observation and surveillance.”
Baroness Murphy
My Lords, we have come to what I regard as the most important and possibly stickiest, most difficult issue that we face. It addresses the reason why we are all here today with a new Bill to try to solve the problem of the old one, which did not work. Why did the old DoLS not work? Because they were overbureaucratic, very expensive—we are talking about £2 billion a year and this is cheaper at £300 million, although someone said to me that this costing business is rather a science fiction at the moment—could not be implemented and were predicated on a judgment in Cheshire West that extended the previously accepted notion of deprivation of liberty. I wanted to have a first go at introducing a restricted definition of what constitutes deprivation of liberty for the purposes of this Bill.
I am primarily concerned not about the cost, but the risk. When tens of thousands of people are subjected to a procedure, those whose circumstances really need scrutiny and review—because they themselves or their families or professional carers are objecting to their care or placement—are not receiving the focus and energy of the safeguarding process because they are simply lost in the morass of processing so many cases. Already we know that the tick-box mentality has pervaded the existing procedures, and that is not because the people who are trying to implement them have not been doing their best. There are not enough of them. They are trying to rush around with a list as long as your arm and they cannot get through it.
I had heard that there are now 140,000 unassessed cases, although I think the noble Baroness, Lady Finlay, mentioned 106,000. Noble Lords should think how long that list would take to deal with. With a mean length of stay in residential care of two years from admission to death, many elderly people with dementia—who, after all, are being cared for because of a terminal illness—will never be assessed before the great final assessment. By the way, I only hope that when they encounter Saint Peter at the pearly gates they do not find that a specially approved angel has been designated to assess whether heaven is in their best interests or not—it is quite possible. To return to more serious matters, it is crucial that we reduce the numbers that will be scrutinised by this system so that those who are truly at risk of abuse or of receiving less than adequate care are better safeguarded.
Of course, we could wait for another case to come before the Supreme Court for the penny to drop, but Parliament should surely provide a statutory definition of what constitutes deprivation of liberty in the case of those who lack capacity, in order to clarify the application of the Supreme Court’s acid test and bring clarity for families and frontline professionals. There is a risk that the Law Commission’s proposals—the safeguard principles have much merit—will become unworkable both in the domestic sphere, where we have hardly started to take people into the system, and with the potential expansion of the scheme into domestic care settings, which will become exceedingly invasive and difficult to operate. And that is in the context of care homes and joint living arrangements that are not being adequately met.
Many legal experts, including Lord Carnwath and Lord Hodge, found the decision in the case of Cheshire West puzzling. They said,
“nobody using ordinary language would describe persons living happily in a domestic setting … as being deprived of their liberty”.
In their evidence to the Joint Committee on Human Rights, Sir Nicholas Mostyn and Sir William Charles, retired Family Court judges, submitted that the proposed liberty protection safeguards are based on an acid test in which the starting point is legally wrong, and should be revisited. Sir Nicholas noted that,
“no case from Strasbourg has come close to saying that the case of someone of ‘unsound mind’ (as Article 5 puts it) falls within the terms of that article if they are being looked after in their own home”.
Further, he argued that,
“it is surely vanishingly unlikely that Strasbourg would disagree with the narrower test”,
that used to be used. He said that,
“it is after all completely consistent with its jurisprudence, which mandates a fact sensitive approach and which looks at the range of factors such as the intensity of the restrictions in question”.
The Joint Committee on Human Rights agreed with that point and introduced in its report the case of Mark Neary. I will not go into that case now because of shortness of time, but a number of cases were described where people were clearly being deprived of their liberty and families could not understand why it was happening. The new definition from Cheshire West cast a very wide net, capturing people who were content and those who had expressed de facto consent, albeit not valid consent for the purpose of the law. That has led to incredible family distress—people felt that their loved ones were being deprived of their liberty as a result of care plans—as well as resource issues. It sits at odds with the UN Convention on the Rights of People with Disabilities, which emphasises respecting the autonomy and wishes of those with disabilities.
The question is whether an amendment could be introduced to solve this problem. The Scottish Government gave some thought to amending their own Act and suggested a number of principles that might be followed. First, if a regime looks like detention, it does not lose that characteristic just because the person does not display opposition. Secondly, if a regime does not look like detention but the adult displays opposition to staying there, that should be considered as placing significant restrictions on a person’s liberty. Thirdly, a person may be perfectly content to move to another place of residence, but may not agree with aspects of their care, which amounts to a significant restriction on their liberty. Fourthly, a person may remain in the same residential setting, but become subject to changes in aspects of their care that mean they become subject to significant restrictions on their liberty. We often see that in care homes where people are moved from a general unit to a specialist unit for dementia, or to an elderly mental care unit when they become “unmanageable”, with quite serious restrictions placed on them.
A person may be considered as having significant restrictions if: the adult is under continuous supervision and control and is not free to leave the premises; barriers are used to limit the adult to particular areas of premises; or the adult’s actions are controlled by physical force or the use of restraints, by the administering of medication for that purpose or by close observation and surveillance, which can be very intrusive. However, measures applicable to all residents in a given place that are intended to facilitate ordinary, proper management of the premises, such as security cameras at the front door and front door locks—the sort of things we might have in our own homes—should not necessarily be regarded as restricting liberty.
It is crucial that the first principle of the Mental Capacity Act be paramount in any decision. Whenever possible, a mentally incapacitated person should be listened to and their wishes respected. While short-term memory may be seriously diminished, the individual often still recognises the people around them and can express a wish. Where there is a clear agreement between an adult, their family and professional carers, I believe the state should keep its legislative nose out. This may not be the right amendment, and I look forward to listening to others whose ideas are also contained in amendments tabled in this group, but it seems we should concentrate our resources on those who are really at risk, where we are confident that we have the resources to concentrate training and interest on a smaller group.
Baroness Jolly
My Lords, there is always a risk in your Lordships’ House when an amateur follows a professional. I feel that I have a bit of a starter-for-10 moment as well, because both the noble Baroness, Lady Murphy, and I tabled similar amendments, Amendments 4 and 5, to achieve the same sort of aim. I could take noble Lords through my arguments, which again are similar to hers, but time is of the essence, so it might be worth putting both of them before the Minister to ask whether the Government would consider bringing back an amendment that would put a clear definition of deprivation of liberty in the Bill. There has been a lot of pressure from various parts of the sector for this to happen. At the moment, only case law gives an indication of deprivation of liberty, so to have something in the Bill would be helpful.
Baroness Finlay of Llandaff
My Lords, I have an amendment in this group that does not sit terribly well with the first two—but so be it. I will be brief. These attempts to define a deprivation of liberty are nobly submitted, but I worry about potential unintended consequences from the wording. I will not go through them in detail, but I hope that the Minister will assure us that this is something we can take away and look at. One difficulty is that one person’s imprisonment—a deprivation of liberty—might not be a deprivation of liberty to another, so this may be very personal in some aspects.
On Amendment 81 in relation to a “vital act”, I hope that the noble Baroness, Lady Murphy, will take reassurance from me—I do not know whether the Minister will agree with this or not—that anything done must be in a person’s best interest. Part of that is that it is a benefit and not a burden—or it may be a burden, but the benefits outweigh the burden. That has to be a fundamental principle in clinical decision-making.
The reason I tabled Amendment 82, which relates to an urgent authorisation, is that, looking through, I was concerned about unintended consequences from the way the legislation was written. I could see two, possibly—but they may be misplaced anxieties. First, in a true emergency situation, as a consultant in emergency medicine said to me, you just get on and do what you have to do. You do not go and look at paperwork. So, in an emergency situation, you may have to restrict somebody’s liberty to do what you have to do, which is in their best interest. You do not do something that is not in their best interest—and the last thing we want to do is impose any more bureaucracy or paperwork.
So I suggest that, possibly in the code of practice and not in the Bill, it should be clear that an urgent authorisation is an authorisation to begin longer-term care, but in an acute situation, in a clinical decision, nobody would expect people to even begin this process until we get to about 48 hours. I say that because a clinical decisions unit will normally have people staying in it for under 24 hours, as they may even on an acute medical ward, before being moved to a longer-term in-patient unit where their longer-term care may be assessed. Of course, we have people who have a transiently impaired capacity because of illness and the treatment of that will restore their capacity, such as the diabetic whose diabetes is out of control through either hyperglycaemia or hypoglycaemia, and things such as hypocalcaemia as well. None of those should be included.
The concern at the other end was that an urgent authorisation could be used for example to take a confused person with advanced dementia where care at home had completely collapsed. Possibly their main carer at home had suddenly been admitted to hospital. They would then have to be moved into a nursing home placement at great speed, but that may not be what they want and they cannot consent to it. They would have to be moved to that place, be in a placement and be assessed there. There needs to be some time limit so that this cannot linger on for months or years, with somebody saying, “Oh, well, they are here under an urgent authorisation”, rather than a longer-term authorisation. That is why I tabled the amendment. I accept that it is not perfect, but I hope it is something we can look at. It may be that the code of practice can clarify those issues.
Baroness Thornton
I have added my name to the amendment tabled by the noble Baroness, Lady Jolly, precisely because I thought we needed to have this discussion. That was exactly right. I would hate to choose between the two amendments, but this sets out when deprivation of liberty occurs:
“Arrangements that give rise to a deprivation of … liberty”,
are when the cared-for person is placed,
“under continuous supervision and control”,
they are “not free to leave” and the responsible body believes that it is in the cared-for person’s “best interests”. That is worth putting on the face of the Bill if at all possible.
The Joint Committee on Human Rights made a strong argument in favour of a statutory definition. I read its report and it seems absolutely right that that is what we should do. I would be interested to hear what one of the lawyers in our midst might have to say about this: whether they think that it would be a useful thing to do and whether the stabs we have made at it so far are helpful. We are interested in this discussion but we realise that this is the beginning of the discussion rather than something that may be appropriate right now.
When listening to the noble Baroness, Lady Finlay, talking about her amendment, it occurred to me that this is one of those occasions when technology is important. When you have an emergency admission, you need to be able to input the name of the person into a PalmPilot, which will tell you whether a DoLS is already in place and whether a do not resuscitate order has been made. Recently I have had experience of exactly this situation with a family member. Because the information was not readily available in an emergency, we ended up where we did not want to be. I just add that to the debate because I know that the Minister and his boss are very interested in technology and its uses in the health service. This is another of those occasions where it might be useful.
Lord Woolf
Perhaps I may respond by giving one lawyer’s view on the matter referred to by the noble Baroness, Lady Thornton. I should put on the record that I am a member of the Joint Committee on Human Rights and therefore was a party to the report, and of course I support it.
When the opportunity arises to deal with a situation where it is clear that a decision of the Supreme Court has had consequences which may never have been anticipated, it would sometimes be helpful if the judges had the opportunity to look at the matter again. If the sort of steps so ably advocated by the noble Baroness, Lady Murphy, were taken, I would suggest that serious consideration should be given to them as they could have a beneficial effect from the pragmatic point of view as well as on the point of principle.
I am sorry, but I ought to have added that I have a relative who could be affected by this legislation, and I declare that.
Lord O’Shaughnessy
I am grateful to all noble Lords who have spoken to their amendments, which have produced this discussion on the application of the liberty protection safeguards. Indeed, the noble Baroness, Lady Murphy, said that this goes to the heart of why we are here in the first place. I know that she has long-standing concerns about the DoLS system both in its application and the scenarios where it may or may not be appropriate, to whom it should best be applied and so on. I know that that is what has motivated her attempt in this amendment. She and others, including the noble Baroness, Lady Thornton, have said that this is the start of a process.
The first amendment in the name of the noble Baroness addresses the circumstances in which the authorisations could be given in a care home or supported accommodation environment, and people deprived of their liberty as interpreted in the Cheshire West case. As the noble and learned Lord, Lord Woolf, pointed out as a member of the committee, the Joint Committee on Human Rights has recommended introducing a statutory definition of the deprivation of liberty in its report The Right to Freedom and Safety: Reform of the Deprivation of Liberty Safeguards. I can tell him and all noble Lords that we are considering its findings closely. Many noble Lords have expressed a desire, whether in the form set out in the amendments in this group or otherwise, to explore the possibility of including a statutory definition in the Bill. Following this discussion, that is something I should like to consider further. It is worth stating, however, that there are risks in doing so because it means that to change a definition requires primary legislation. Noble Lords are much more knowledgeable about and aware of those risks than I am, but nevertheless it is something that warrants further consideration.
I am also sympathetic to the sentiment expressed by the noble Baroness, Lady Murphy, about the state involving itself unnecessarily in family and private life while also being mindful of making sure, as we all are, that individuals are not denied the safeguards they need and that we are complying with our obligations under Article 5 of the ECHR. The effect of her amendment would be to limit the circumstances in which arrangements giving rise to deprivation of liberty in a care home or in supported accommodation can be authorised under the liberty protection safeguards, but of course that would mean that such arrangements would still have to be authorised by the Court of Protection. We have already discussed how that can be burdensome and expensive for families. It is for that reason that domestic arrangements were included in the deprivation of liberty safeguards. Given that, while in general I would like to have a further discussion around definitions, there is a problem with the definition that the noble Baroness has provided because of its application in that case.
Baroness Murphy
Perhaps I may just say that the amendment is my first stab at the issue with no help in creating it or any legal consultation. My next will be a lot better.
Lord O’Shaughnessy
I am sure it will be and I look forward to seeing it.
As she pointed out, the noble Baroness has a second amendment which makes the point that the steps taken to deprive a person of liberty, life-sustaining treatment or a vital act should be of benefit to that person, and of course we all agree with that. But as the noble Baroness, Lady Finlay, pointed out, before any authorisation is made or arrangements take effect, a decision will first need to be taken that the care or treatment is in the person’s best interests in accordance with Section 4 of the Mental Capacity Act 2005. It is important to note that this amending Bill does not change it, so that will continue to be true if the Bill before us in this House is taken forward as it stands. The legislation is already clear that if actions are taken to deprive someone of their liberty in these situations, it must be to the benefit of the cared-for person. That was at the heart of the amendment spoken to by the noble Baronesses, Lady Jolly and Lady Thornton, so I want to take this opportunity to say that that provision continues to exist because the best interests test foreruns the subsequent necessary and proportionate test, which we will explore in a subsequent group.
On the point made by the noble Baroness, Lady Finlay, about limiting the time for the duration of authorisation of the steps necessary for life-sustaining treatment or vital acts, the intention, as she will know better than me, is to move consideration of the deprivation of liberty to earlier in the planning stage. Nevertheless, there will be cases where it needs to be applied in an emergency situation. I do not need to bring that to light because other noble Lords have done so. Her amendment, which I think is probing, would require authorisations to be renewed every seven days. She will know that there are limited periods at the moment, but unfortunately they are not always adhered to. If we are honest, they can become a target rather than a limit, and I think that is what is happening. We need to make sure that we have a system which gives providers greater clarity but does so in a way that is more sophisticated than could be achieved in legislation. I therefore agree with her that the code of practice is the right vehicle for that because it will be able to outline the different circumstances and scenarios and thus give a much richer picture of the kind of situations and principles that ought to be considered.
This has been a very useful debate and, as I have said, I should like to take some time between now and Report to consider the opinion expressed by noble Lords and in the report of the Joint Committee about the benefits of a statutory definition. Having started that discussion, which is obviously the phrase of the evening, I hope the noble Baroness will feel able to withdraw her amendment.
Baroness Murphy
My Lords, I am grateful to the Minister for his positive response to the ideas if not to the amendments themselves. We will return to this at the Report stage, as he has said, and I hope that we may have forthcoming from those associated with the Joint Committee on Human Rights some support at that point for the further debates in this area. With that, I beg leave to withdraw the amendment.
Baroness Barker
“(ba) the arrangements are in the best interests of the cared-for person, and”
Baroness Barker
My Lords, Amendments 7 and 8 in my name are yet another attempt to make some sense of this Bill. Perhaps they might not have been tabled had we been able to have more discussion over the Recess. As several noble Lords have already mentioned, there has been considerable disquiet about the non-appearance of best interest assessments in this Bill. Indeed, a number of noble Lords attempted to table amendments that, at the very least, like this amendment, were trying to probe where the best interests of the cared-for person would come into play.
This particular part of the Bill—Part 2 of Schedule 1 —is on “Authorisation of arrangements”. In putting down these probing amendments, I was particularly taken by the briefing given to us by the Law Society, which suggested:
“Remove the distinction between the ‘arrangements’ and ‘care and treatment’ as it will result in difficulties when applied in practice. For example, how would a person’s capacity to make medical treatment decisions or decisions about contact with others be distinguished from decisions about the ‘arrangements’ to provide that treatment or to prevent contact with others?”.
In light of that, at the very least we ought to be asking the Minister how this is going to work. I accept a number of the points made by the noble Baroness, Lady Murphy, about the clumsiness of the existing DoLS procedure, but the removal of best interest assessors is one that has caused a fair degree of disquiet among the different groups.
Amendments 7 and 8 are also meant to begin to probe a key provision in the Bill—the assertion that the arrangements need to be “necessary and proportionate”. There is no further explanation in the Bill about what the term “necessary and proportionate” might mean, who will make the decision and on what basis it will be judged and reviewed. This goes back to some of the points made by the noble Lord, Lord Hunt of Kings Heath, that, given the increased role— let us say that—of care home managers, they will be making the assessments of what is necessary and proportionate.
No doubt I am going to be told that these amendments are either deficient or unnecessary, but they are here to begin to probe some very unclear but key parts of the Bill about the authorisation of arrangements. In that vein, I beg to move.
Baroness Finlay of Llandaff
My Lords, I support the principle behind Amendment 8 in particular. Perhaps this is something the Minister will want to view as going in the code of practice, as I am not sure that putting this on the face of the Bill is necessarily the right place for it—although I completely understand the sentiment, which is to avoid serious risk. We live in a risk-averse system, and it is serious risk that we must be concerned with.
A case that I heard about in the last few days came to mind. An elderly lady with dementia became extremely agitated when it snowed. Because of her tendency to wander, she was not going outside unescorted. A conversation with her son revealed that she had been a meteorologist, so her view was that when it snowed she had to go outside and measure the depth of the snow and telephone the Meteorological Office. What they did was simply wrap her up really well, let her go out and measure the depth of the snow, give her a telephone and let her make a mock phone call to the Meteorological Office. She was very calm and happy. You do not want her to go wandering because she is near a main road and a railway line and all the other risks, but it was not a serious risk to let her out in the garden, well-wrapped up when it was snowing. That illustrates the granularity of the need to take appropriate decisions focused around the individual person.
Other cases that do concern me are those people who will become sexually disinhibited when exposed to great temptation. That struck me about a case I came across in a home for people with a history of sexual offences. There had been a DoLS in place for somebody not to go unescorted through woodland because, if he came across a young girl on her own in woodland, his sexual drive would overcome his rational behaviour—exposure to porn sites would also overcome his rational behaviour. However, the rest of the time, he could live well. Sadly, that DoLS was apparently overturned by the Court of Protection and, within weeks, he offended and ended up being imprisoned for his offence, but he had been living well with an enormous degree of freedom prior to that point. I think that the serious risk to the cared-for person has to be considered, because there the risk to him was that he would offend and, sadly, that came true.
I hope that the Minister will look sympathetically on the sentiment behind this.
Lord Hunt of Kings Heath
My Lords, my Amendments 27 and 28 follow the same lines of argument that we have heard from the noble Baronesses but relate to paragraph 16, “Determination that arrangements are necessary and proportionate”, on page 12 of the Bill.
I know the Minister will refer us back to Section 4 of the Mental Capacity Act, which is very comprehensive in defining what “best interests” are. Clearly, the intention is that, because it is stated there as a principle at the front of the Act, that permeates through all of the issues that we will be discussing in this amendment Bill. There is always an issue when you have an amendment Bill. It is not incorporated in the principal Act and is quite difficult to follow. It will be difficult to follow for the practitioners who are going to have to operate the new provisions. This must relate, too, to the code of practice. We seek certain reassurances that it will be made clear to the people at the front line who are going to operate it that the best interests provisions in this amendment Bill will apply equally.
What is confusing is the wording “necessary and proportionate”. In a sense, the Government are saying there is a qualification—that things have to be necessary and proportionate. I wonder whether that is helpful. It is confusing that we have a qualification of necessary and proportionate, but in the principal Act it is “best interests”. Clearly, these are probing amendments, seeking to tease this issue out, but I wonder whether the Government could give further consideration to how we can ensure that everyone involved is very clear that the best interests apply.
Lord Touhig
My Lords, at Second Reading I expressed the hope that the Government were in listening mood. They certainly needed to be. To be fair, the Minister and his team are to be congratulated on the level of engagement that they have been willing to participate in to help us perhaps make a better Bill at the end of the day. But—there is always a but—the Bill might have had a smoother passage if the Government had published an equality impact assessment. They are yet to do so; perhaps the Minister can tell us why. Many concerns have been expressed in debate on other amendments, which might have been assuaged—and we might have made more progress—had such an assessment been available to us.
Lord O’Shaughnessy
I am very grateful to all noble Lords who have contributed to the debate for their desire to be brief, which I know was shared by others who have not been part of the discussions on the Bill, but it is also important to be comprehensive in discussing these issues because, as pointed out by the noble Lord, Lord Touhig, the best interests of the people being cared for is what this is all about.
I know that this is an issue for noble Lords; it was raised at Second Reading and has been raised again in this debate. It is important to state that best interests decision-making for care and treatment remains fundamental to the Mental Capacity Act. In a way, it is the founding stone around which the rest is built. The liberty protection safeguards sit under the aegis of the Act. The Bill does not change that. One request made by noble Lords at Second Reading was for us to publish the Act as amended by the Bill. We have done that; I understand that it is in the Library. I can make sure that a digital copy is circulated, and I will make sure that it is sent to all concerned. Clearly, understanding the flow of how it is read in not just legislation but the code of practice is critical. I want to make that clear and I understand that important desire.
Under the current system, there are two different best interests tests: one exists under Section 4 of the Mental Capacity Act—the decision, usually made by a clinician, to provide care or treatment—and a second, separate, additional one falls within the tests required for the DoLS system. The Law Commission recommended that the DoLS tests be replaced with a necessary and proportionate test. In that sense, we are following where it led. Prior to a liberty protection safeguards authorisation being considered, the decision will need to be taken, normally by a clinician, that the care or treatment enabled by the arrangements is in the person’s best interests. As I said, that will apply under Section 4. Subsequently, it must be demonstrated that the arrangements to enable that care and treatment are necessary and proportionate. Of course, that is the single test applied by the liberty protection safeguards; it is a secondary test following a consideration of best interests.
The current requirement that the deprivation of liberty must be necessary, proportionate and in the person’s best interests is instead replaced by a single, primary best interests test in an attempt to avoid confusion and conflict—the word used by the noble Baroness, Lady Finlay, at the beginning of the debate—between two determinations. The focus of the second-stage test on what is necessary and proportionate is an attempt to remove this confusion. It is not an attempt to downgrade in any way the primary and prior importance of a person’s best interests being taken into consideration.
As well as giving that assurance, I want to pick up on the point made by the noble Baroness, Lady Finlay, that avoiding risk to the cared-for person will form part of the necessary and proportionate test. There is already a principle in the Mental Capacity Act to use less intrusive arrangements, which will continue to remain, unamended, an important principle in the new model. As was brought to light by the noble Baroness, Lady Finlay, and other noble Lords, the application of “necessary and proportionate” requires a degree of granularity that makes it difficult to overdetermine in legislation, and that is the reason why the code of practice is so important. That is why it will contain a range of scenarios, principles, circumstances and so on of what the application of a necessary and proportionate test should look like.
I hope that I have been able to assure noble Lords, whose considerations I take very seriously, that best interests are foremost in our minds and will remain so in the legislation, unamended by the changes brought in by the Bill. Clearly, I want to make sure that this sentiment and its legal power are understood by all concerned, particularly if there is concern in the wider sector. As I said, I do not believe that a second test is necessary; as said by the Law Commission, it could be counterproductive. It is important that we make sure of a clear understanding of the primacy of the best interests test. I would like to explore that with noble Lords to make sure that it is properly understood by all; we can do that between now and Report. On that basis, I hope that the noble Baroness will be prepared to withdraw her amendment.
Baroness Barker
I thank the Minister for his helpful response. As we begin to get to the heart of the debate, he will understand that he and the Bill team can perhaps see the Bill as a whole, but the rest of us are struggling to do so. Therefore, we have to test individual elements of it, perhaps to a greater degree than he may think is warranted. None the less, it was helpful of him to put those statements on record. With that, I beg leave to withdraw the amendment.
Northern Ireland: Legacy of the Troubles
(6 years, 3 months ago)
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Lord Dannatt
To ask Her Majesty’s Government how they propose to address the legacy of the Troubles in Northern Ireland, with particular regard to the role of the security forces.
Lord Dannatt (CB)
My Lords, I first thank the usual channels for making time for this short but important debate; I also thank the Minister in advance for answering it.
The most depressing aspect of the subject under discussion is that we have to have this debate at all. After the shameful investigations and allegations of misconduct by the military in Iraq and Afghanistan, one might have thought that the appetite for further investigations into the conduct of members of the Armed Forces in other conflicts might have diminished. Sadly, this is not so. Despite the Iraq Historic Allegations Team looking at over 3,500 allegations, the only case that has come to court has been that of a bent investigator. Yet attention has returned, this time to Northern Ireland.
Many noble Lords will have seen the powerful intervention in the media by Field Marshal the noble and gallant Lord, Lord Bramall. The noble and gallant Lord focused on the 2010 Saville report into Bloody Sunday and opined quite correctly that Saville should have been the end of Bloody Sunday. On publication of that report, the then Prime Minister, David Cameron, apologised for the actions of a very small number of soldiers and the residents of Londonderry seemed to accept that apology. But now the case of Sergeant “O”, one of those who gave evidence to the noble and learned Lord, Lord Saville, has become prominent eight years later—some 46 years after the incident itself. There is a horrible suspicion among veterans that the non-self-incriminatory basis on which they gave evidence to Saville has been broached, and that some soldiers now stand liable for further investigation and are in fear of a knock on the door. I would be grateful for a categorical assurance from the Minister that the confidential nature of the evidence given to the Saville Inquiry has not been used in subsequent investigations. There is considerable scepticism in the veteran community on this point.
The case of Sergeant “O” is not unique. The case of Corporal Major “H” is also worrying. He was questioned over the case of a young man with learning difficulties, who was shot dead on 15 June 1974. However, after a joint investigation by the civil and military police, within a year, the Ministry of Defence was informed that there would be no prosecution. I have seen a copy of that letter. Nevertheless, the Historical Enquiries Team, set up in September 2005 by the Blair Government, decided to look once more at the Corporal Major “H” case but concluded in 2013 that there was no basis to reopen it formally. After the Historical Enquiries Team was closed down in 2014, a new legacy investigation unit returned to the “H” case, leading the Police Service of Northern Ireland to arrest the corporal major on 21 April 2015 and deport him to Northern Ireland for interview. He was interviewed 26 times over the next four days—16 more times than Harold Shipman—and was charged with attempted murder on 24 April 2015. A complicated court case is still ongoing. The corporal major is now over 75 years old and a sick man.
That knock on the door is not confined to elderly retired paratroopers, riflemen and cavalrymen. On my last day as Chief of the General Staff on 28 August 2009, the final scheduled appointment in my diary, before I left the Ministry of Defence for the last time in uniform, was with two investigators from the Police Service of Northern Ireland’s Historical Enquiries Team. They had travelled from the Province to London to quiz me about the killing of a young man in Belfast some 36 years before. Having explained the circumstances of the day in question, I assumed that the matter was closed. This was not so, as one of my corporals—now 76 years old—was subsequently questioned, with the police finally accepting that events in our statements, nearly 40 years before, were an accurate account of a hostile attack which had been responded to professionally within the terms of the yellow card and within the law.
Time precludes description of other high-profile cases similar to those of Sergeant “O” and Corporal Major “H”, but there are troubling issues with them all. First, while the Army kept extremely good operational records, the terrorists did not. This makes a very uneven playing field on which to conduct these retrospective investigations.
Secondly, all allegations were investigated by service and civil police at the time and statements were taken. It therefore raises the question of why revisiting whatever evidence that may still exist 30 or 40 years later is likely to bring any greater clarity.
Thirdly, of the 2,547 cases referred to the PSNI Legacy Investigation Branch, 2,265 are deemed terrorist cases and only 282 to be British Army/Royal Ulster Constabulary cases—just 10%. But the reality is that 90% of cases that were killings by nationalist and loyalist terrorists were murder by any description of the word, while the 10% attributable to the security forces were deaths brought about by troops and policemen who, in the vast majority of cases, were doing their lawful duty. There is a very strong suspicion that, for the reasons I have just outlined, the low-hanging fruit of security forces cases are being plucked first and, on past evidence, are likely to be so by the proposed historical investigations unit.
Fourthly, while over 500 prisoners convicted of terrorist offences were released on licence as part of the Belfast agreement, another 365 royal pardons were handed down over the last 35 years and over 300 on-the- run letters were issued. In the same period, just four servicemen were convicted for murder, while another 10 were prosecuted and acquitted. Does this not speak volumes about the integrity of the Army?
To move to the present, the Secretary of State for Northern Ireland, Karen Bradley, has launched an open consultation entitled Addressing the Legacy of Northern Ireland’s Past. In the preamble to the consultation, she says that the legacy proposals should be,
“balanced, fair, equitable, and crucially proportionate”.
From what I have described so far, historical and current activity is demonstrably not,
“balanced, fair, equitable, and crucially proportionate”.
Furthermore, from a military veteran’s point of view, this consultation is already flawed in that it has precluded at the outset the introduction of a statute of limitations ending these historical investigations. However, I am aware that, in pursuit of the objective to be “equitable”, there is a concern that a statute of limitations to protect former members of the security forces would mean that terrorists would, in effect, be given an amnesty as well.
So the Army is caught in the crossfire between the Sinn Féin nationalist agenda to rewrite history and paint the IRA as having fought some form of just war against their self-styled oppressive state, and the Democratic Unionist Party and Ulster Unionist Party’s insistence on bringing predominantly nationalist terrorists to justice. It is also worth remembering that the proposed historical investigations unit will examine only fatalities, ignoring the 40,000 people—including 6,000 soldiers—injured during the Troubles, without investigating those responsible for over 15,000 explosions in the Province during that time. Is this “equitable”? What is to be done?
First, it should be recognised that the British Army is a national institution which should be regulated under the authority of the Westminster Parliament and not allowed to become victim to the intrigues of Stormont, whenever that Assembly might reconvene. The welfare and duty of care towards servicemen and military veterans should clearly be championed by the Secretary of State for Defence and not left to the outcome of a consultation by the Northern Ireland Secretary.
Secondly, it should be remembered that incidents in which members of the security forces fired their weapons were fully investigated by the military and, where appropriate, the civil police at the time. In the vast majority of cases, a decision was made that lethal force had been used within the prevailing rules of engagement and no further action was necessary or appropriate. I submit that those investigations should be confirmed now as legal, binding and final. Furthermore, I submit that any subsequent reinvestigation breaches the principle of double jeopardy.
Thirdly, if the principle of double jeopardy is accepted, it would be quite appropriate for a statute of limitations to apply to those cases and individuals that had already been investigated. This would protect policemen and soldiers who were doing their duty in pursuit of the sovereignty of the Crown’s right to rule over the whole of the United Kingdom and Northern Ireland but, crucially, it would leave exposed to the full rigours of the law those terrorists who have never been exposed to investigation. That, I submit, is,
“balanced, fair, equitable, and crucially proportionate”.
In conclusion, I add that to many soldiers fighting in the Province during the 1970s and 1980s in particular, it felt like a war zone, although the IRA insurgency was never branded as such. Indeed, we should not forget that in 1972 alone, 102 British soldiers lost their lives fighting in the Province. Of course, the peace process since the Good Friday agreement has brought better times but the continuation of that peace cannot—and must not—be at the expense of more soldiers’ lives ruined.
Soldiers fully understand von Clausewitz’s classic dictum:
“War is but a continuation of politics by other means”.
But to paraphrase Clausewitz, perhaps Miss Bradley in the Northern Ireland Office might reflect on the reverse: a peace process should not be a continuation of war by other means. The nationalist agenda to divorce Northern Ireland from the United Kingdom is as alive today as it was throughout the 38 years of the Troubles. The British Government must not sleepwalk into that agenda.
Viscount Younger of Leckie (Con)
My Lords, all speakers bar the Minister should heed the point on timings: as soon as two minutes appears on the clock, speeches should be concluded immediately. If not, the cumulative effect will undoubtedly squeeze the Minister’s remarks.
Lord Browne of Belmont (DUP)
My Lords, I congratulate the noble Lord, Lord Dannatt, on securing this very important debate. Our Armed Forces and security services served heroically and valiantly during the Troubles in Northern Ireland. These ex-servicemen put their lives on the line daily to defend us against the evils of terrorism and many hundreds of them paid the ultimate price for doing so. The courage they displayed in protecting us and upholding democracy and the rule of law must never be forgotten. We should not tolerate the rewriting of Northern Ireland’s history by those who wish to legitimise the actions of murderous terrorists; nor must we allow a campaign to take hold where veterans are continually persecuted in order to appease a narrow agenda. There can be no moral equivalence between unapologetic terrorists or those accused of terror offences and people accused of having committed offences when they were members of the Armed Forces, trying to protect us from the terrorists.
The April 2017 report by the House of Commons Defence Committee, Investigations into Fatalities in Northern Ireland Involving British Military Personnel, referred to a proposed statute of limitations. My party, the Democratic Unionist Party, is open to consideration of a UK-wide statute of limitations for soldiers and police officers who face the prospect of prosecution in cases—this is very important—that have previously been the subject of full police investigations. No one should be above the law. Let me be clear: we are talking about cases that were previously the subject of rigorous police investigations. It is wrong that our veterans are sitting at home wondering whether a third or fourth investigation will take place into their case simply because some “make a quick buck” human rights lawyer thinks it is a good idea to reopen their case. Any consideration regarding a statute of limitations should apply not to Northern Ireland alone but be part of broader reflection on other military deployments. This would not be an amnesty, as each case will have previously been the subject of a thorough investigation; rather, it is an appropriate and necessary measure.
Finally, I believe that such an issue will always be for Westminster to determine, rather than the Northern Ireland Government, on a UK-wide basis.
Lord Empey (UUP)
On 19 December 2013, two senior DUP representatives, Sir Jeffrey Donaldson and Emma Little-Pengelly, came to persuade my party to support their idea for investigating the legacy of the Troubles. The Historical Investigations Unit was the centrepiece of their plan. They expected that it would give victims a better experience. These proposals became part of the Stormont House agreement and, subsequently, on 28 September 2015, Sir Jeffrey said:
“The Stormont House Agreement provides a good deal for victims and survivors”.
As my colleague Mike Nesbitt pointed out recently:
“The fatal flaw with the HIU is that it excludes many more victims than it is designed to include. Specifically, it is proposed it will investigate only 1,700 of the 3,500-plus Troubles-related killings and none of the 47,000 injured”.
Sir Jeffrey was wrong to include survivors as no survivor will have access to the HIU. Imagine if the chief constable said that the PSNI will investigate only crashes in which someone was killed and ignore cases where six people suffered life-changing injuries—there would rightly be uproar.
The former Justice Minister, David Ford, made clear his assessment of the likely effectiveness of the HIU. On 7 October 2015, in answer to a question on the likely prosecution rate of the HIU, he said that,
“the HIU might at best produce one or two prosecutions”.
The Government seem to be driven by a false interpretation of how to be compliant with Article 2 of the European convention and have done nothing to challenge this.
Most victims see these proposals as another pay-off to Sinn Féin, to help it rewrite history and hound retired police and soldiers, using records from Kew, assisted by 300 investigators recruited to the HIU, which will become a parallel police force. Terrorists have no records and they will not tell the truth. The Government’s commitment to release records is not matched by the Irish Government, who reserve the right to redact documents.
I call upon the Democratic Unionist Party to withdraw its support for these proposals and not subject those who loyally served the state to a decade of anxiety and anguish as they wait for a knock on the door.
Lord King of Bridgwater (Con)
My Lords, I congratulate the noble Lord, Lord Dannatt, on introducing this very important debate. Even though I am allowed only two minutes in which to give my views, I want to make it absolutely clear that I think a completely fresh approach is now needed.
I lived through some pretty troubled times during my time in Northern Ireland. I certainly saw atrocities of all kinds, serious ones, which many of your Lordships will remember. There was a couplet that stuck in my mind:
“To hell with the future and long live the past
May God in his mercy look down on Belfast”.
I worry about this legacy and the idea of reliving it the whole time. I want to see reconciliation, rather than this endless regrinding of old grievances, going on and on. Some of your Lordships may have seen on “Channel 4 News” Cathy Newman interviewing somebody who has made a film called “The Ballymurphy Precedent”. He said, “I did it because I want the British Army to learn the lessons so that it does not happen again”. The lesson the Army is supposed to learn was 47 years ago and the idea of regrinding all this is a disaster. It is hugely expensive.
Of course I do not condone unlawful killing. We saw the idea established by the Bloody Sunday inquiry, costing £200 million—how much better could that have been spent on helping the cause of reconciliation and helping some of those who suffered from the Troubles in that time, rather than all the expensive lawyers at Central Hall discussing these issues in the Bloody Sunday inquiry.
This is not a very helpful comment to the Government but I think we have to change completely the processes we have been following, which are quite unsatisfactory. The Defence Select Committee said that they were quite unacceptable. We need to stop and say, “Is it really sensible to keep going back over all this old ground? Should we not instead concentrate on what is important, which is establishing reconciliation and spending on reconciliation the funds that would otherwise be wasted on these legacy issues?”
Lord Judd (Lab)
My Lords, it is incumbent upon the whole House to put on the record our admiration for and thanks to the service men and women who served in Northern Ireland with such effectiveness. Their role was to establish order, the rule of law and trust. That is why it is vital that we pursue transparently, openly and convincingly any issues which may raise doubts and anxieties about things that could have happened. But we must be careful how we do that because we cannot simply load all the responsibility on to service men and women who were serving in impossible conditions.
Northern Ireland is not in a good place. We still do not have a Stormont. We are hurtling towards March 2019 with no hard evidence of how we are going to reconcile the problems of the border.
I just make this point: what has led to reconciliation and peace in Northern Ireland owes a great deal to ordinary people in both communities who have worked tirelessly at building trust and confidence. The importance of the EU charter of rights cannot be overestimated. It was vital because it gave confidence to both communities that there was a setting of commitment to justice. In the current situation, the term “justice” becomes more important than ever, but let us remember that this has high significance for building a sense of shared responsibility between both communities.
Lord Craig of Radley (CB)
My Lords, I too commend the noble Lord, Lord Dannatt, for highlighting this disgraceful, dishonourable treatment of veterans. Yes, PSNI should seek to uphold the law, but the investigations are a travesty of justice, jumping from the failure of the Historical Enquiries Team to the failed Legacy Investigation Branch, both now superseded by the Historic Investigations Unit—HIU. It is odds on that HIU will fail and collapse. To be charitable, the failure is more to do with mission impossible than those who tackle it. It brings echoes of the equally discredited IHAT and its successors in Iraq. These protracted, expensive procedures fail. They are not fit for purpose and should not be perpetuated. They may claim to follow the law—piffle! They do not provide justice or fairness. There is weakness in leadership. What is needed is resolution. As Churchill might have noted, action this day. Will the Government act now?
For the future, the Armed Forces need a statutory limitation on investigations of combat operations. Invoking Section 10 of the Crown Proceedings (Armed Forces) Act 1987 has been mooted. Surely we can do better and have in the Armed Forces Act a clear statement of limitation with no requirement to legislate on this vital issue in haste or confusion at the time of conflict. Those on live operations must know where they stand, free from worry in the heat of battle that their decisions and actions then will become the domain of a section of lawyers seeking to adduce criminal conduct years, even decades, later. Promises have been made by this and previous Administrations. All have stalled or petered out. This Government must do better.
Lord Astor of Hever (Con)
My Lords, in an article in the Daily Telegraph last month, the Northern Ireland Secretary said:
“This Government wants to do the right thing by our brave veterans and ensure that they have all the support they deserve”,
so I hope she will do what she can, by whatever means, to prevent ex-servicemen being hauled through the court in their old age, having previously been investigated and cleared of any wrongdoing, particularly when there is a perception that terrorists are being treated more favourably than former soldiers.
When I served in Northern Ireland during the Troubles, the article of faith was that if we did the right thing and followed the rules of engagement, the system would always back us up. This was essential in inspiring confidence—often a soldier had only a split second to make a decision, as was faced by Corporal Major “H”, who was mentioned by the noble Lord, Lord Dannatt. The Government sent me and others to Northern Ireland to support the police in upholding the rule of law in mostly very difficult circumstances. In the interests of justice and even-handedness, I do not believe that the Government can now wash their hands of the responsibility for what is happening to those who were their soldiers. I very much support what my noble friend Lord King said about reconciliation.
Lord Evans of Weardale (CB)
My Lords, in view of the time pressures I will seek to make rapid progress, but regrettably I do not think the Government have been making rapid progress. It is new 20 years since the Good Friday agreement. I remember when I was in the Security Service I received a delegation of retired RUC officers who were very concerned about this issue. That was 12 years ago. I engaged with the Consultative Group on the Past 10 years ago, and we now have a consultation document from the Government which does not seem to move the story forward very far. My view is that we need to make rapid progress and that the current consultation fails to achieve that. It suggests that the Historical Investigations Unit might aim to complete its work in five years. I think the chance of it completing its work in five years is virtually zero. I would be very surprised if it completed its work in 10 years.
In view of this, the Government need to show leadership and to accept a degree of risk. They need to decide that there will be a statute of limitations. I would even accept one which covered both the security forces and the terrorists. Although that is a very unattractive idea, we need to draw a line under this. If we do not, we will be having a similar debate in 10 years’ time and it will be a disgrace.
Lord Hay of Ballyore (DUP)
My Lords, I very much welcome the debate in the House this evening. The legacy of the Troubles still haunts Northern Ireland. Failure to agree on how to deal with the past has left many victims angry and marginalised. Questions that are important to victims about why things were allowed to happen are left unanswered. For Northern Ireland to move forward, we need a balanced approach in how we deal with the legacy of the Troubles. The current arrangements for dealing with the past are totally unacceptable. There is a clear imbalance, with disproportionate focus on the activities of our Armed Forces and the police. This includes the work of the Legacy Investigation Branch of the PSNI, the various ongoing inquiries, the police ombudsman, the Public Prosecution Service and the so-called legacy inquests that are demanded on a daily basis by the republican movement.
There is a great push in Northern Ireland today in the republican movement to try to rewrite the past. It is something we must vigorously oppose. When you talk to former members of the security forces who served in Northern Ireland, they believe that they have borne the brunt of those investigations. A stream of negative stories has been devised and highlighted to undermine the credibility of the Armed Forces and the police. The truth is that our Armed Forces should be praised for their sacrifice and service in extremely difficult circumstances. Our party holds veterans of our Armed Forces and those who have served in the police not only in Northern Ireland but across the United Kingdom in the highest esteem. I believe that we will not move Northern Ireland forward until we find a way through to an agreement on the past.
Viscount Hailsham (Con)
My Lords, in the two minutes available to me, I can only summarise my conclusions rather than set out the detail of my reasons. I do not want to see members of the security services prosecuted or, indeed, sued in respect of any killing or wounding which they were involved in during the Troubles and prior to the Good Friday agreement. I do not think that it is possible politically or in law to make a distinction between the security services and former terrorists or, indeed, within those classes, and I therefore conclude that there should be a statutory bar on all Trouble-related killings or woundings committed prior to the Good Friday agreement. That should be statutory, not administrative, and could take the form of a statute of limitations, an Act of oblivion or a statutory amnesty and it should apply to both criminal and civil proceedings. I entirely agree with the noble Lord, Lord Dannatt, when he says that it is likely that members of the security forces would be targeted for legal proceedings to a disproportionate extent. I would find that deeply offensive.
I also find it unconscionable—indeed, an abuse of process—that members of the security forces could be prosecuted or sued, while former terrorists now either hold or have held prominent positions in the political life of Northern Ireland and have participated in the Administration of that Province. It is for those reasons that if a Bill is brought forward, I shall certainly vote for a statutory bar of the kind I have identified and, if necessary, I will trigger such a vote.
Lord Maginnis of Drumglass (Ind UU)
My Lords, I am grateful to the noble Lord, Lord Dannatt, for raising the legacy issue but somewhat frustrated by the time limit. This issue should long ago have been raised by the Government, who have recently lumbered us with a succession of Secretaries of State for Northern Ireland who have had one thing in common, in that they have consistently, systematically and actively ignored those of us who actually know what we are talking about.
I came to Parliament in 1983, having been a principal schoolmaster for 23 years and having served in the Ulster Defence Regiment for 12 years; and both prior and subsequent to coming here, I have survived 10 confirmed assassination attempts. From 1994 until 1998 I was part of the Belfast agreement team of the noble Lord, Lord Trimble. Noble Lords might believe that at almost 81 years of age, I would be enjoying some respite but, although it is too long to read, I have here a letter dated 1 July 2015 from an IRA lawyer, Kevin R Winters, giving notice that a brother of two of the three Ballygawley bus bombers who murdered eight soldiers 30 years ago has instructed him to claim damages from me. That was because I shared their names with Prime Minister Thatcher and, a few days later, they were ambushed as they sought to carry out yet another attack on a member of the security forces.
I seek only to set the scene as to what the people of Northern Ireland suffered at the hands of the provisional IRA between 1969 and 1994, so that our Government can be persuaded to look at the legacy catastrophe over which they actively preside and can perhaps reconsider a process that threatens 70 and 80 year-old ex-soldiers with ongoing prejudice and revenge for defeating the IRA.
Time forces me to conclude, but as one who could never take his children in his own car to church, Sunday school, youth organisations or music, I have paid the price, as many other soldiers have done. Finally, in my 12 years’ service, I never had a complaint made against me or any soldier under my command.
Lord Ramsbotham (CB)
My Lords, like my noble friend Lord Dannatt, whom I congratulate on obtaining this important debate, I had the privilege of commanding troops in Northern Ireland during the Troubles: first, my battalion in West Belfast for four months in 1974-5, and then the Belfast Brigade from 1978-80.
Internal security operations are the most difficult that an army can be asked to undertake because, rather than operating on a battlefield against other armed forces, individuals are required to make instant life or death decisions involving civilians. All ranks must be carefully trained in the circumstances in which they may open fire, confident that if they act in good faith and within the law, they will be supported by the authorities. In Northern Ireland these were listed on a yellow card and, on every occasion when a member of the security forces opened fire, the circumstances were investigated on the spot by what was called a “flying lawyer” service, with those found to have broken the law being immediately charged.
The Romans had two words for war: bellum, the justifiable use of force between states, and guerra, the unjustifiable use of force within a state. The then Government committed their security forces to guerra in Northern Ireland in 1969, but I well remember the confidence engendered by feeling that it was behind all efforts to restore law and order—a confidence that is so vital to the motivation and morale of members of the Armed Forces. Sadly, I am not confident that the Prime Minister fully understands the importance of this to members of the Armed Forces, whom she may commit to war. Of course, they must act within the law, but I call on her to stand up to those authorities in Northern Ireland who are threatening legal action against some former servicemen, particularly those who, after investigation, have been given to understand that such action would not follow.
Earl Attlee (Con)
My Lords, I too am grateful to the noble Lord, Lord Dannatt, for initiating this debate. I agree with everything that he said. The Corporal Major “H” case appears to be even more unfair than I thought hitherto.
Many noble Lords have talked about the statute of limitations, and I strongly support that. One proviso is that we need different provisions according to the circumstances. The most important consideration is: was the relevant incident reported and investigated properly?
There is a very serious risk attendant on these historical inquiries. The military needs prudent risk-takers and decision-makers. However, they may be deterred from joining the Armed Forces because neither Ministers nor the chain of command appear willing and/or able to protect service personnel and veterans from unfair treatment. Who wants to have imprudent risk-takers in the Armed Forces?
This is not divisible business, but the next quinquennial review of the Armed Forces Act is, I think, in 2020—not that far away. If any noble Lord tabled a suitable amendment on the statute of limitations, I would support it, no matter what my friends in the Government’s Whips’ Office said.
Lord Bew (CB)
My Lords, much has been said tonight that is critical of the Government. I think we have to accept one thing: they are in a difficult position. They are caught and linked in to the hard-won Stormont House agreement. At this difficult moment, the Government will not walk away from the only semblance of an agreement between the parties, the Irish Government, and so on. However, we will be where we are now for several months.
The Secretary of State, in talking about the legacy arrangements, has made the point that above all we must promote reconciliation. That is impossible in these particular arrangements. I note, by the way, that one of the key people in the Democratic Unionist Party has already moved away in public from the key paragraph 34 in the legacy section of the Stormont House agreement.
Some movement is now going on. I do not know where the chips will fall, but these arrangements will not bring about any form of reconciliation. I draw the attention of noble Lords to Dr Maguire, the police ombudsman, who is no stooge of the British state. He is causing a great deal of irritation to many people retired from the services. He said recently that we are stuck and are making no progress towards resolution. He makes the very important point that in two of his investigations, in which he decided that there was no collusion, the families would not accept that and could not come to terms with it. It made no difference, so he carried out an investigation. He is well known for being, to say the least, critical of the security forces at times. He says to the families, “Sorry, there is nothing there”, and they do not accept it. Why are we then considering a huge set of institutions to just reproduce this experiment into the future?
Lord Hain (Lab)
I agree with the noble Lord, Lord Dannatt, that dragging long-retired military police and security officers out of retirement to pursue prosecutions is unjust when it is much easier than discovering evidence against paramilitaries. Proposing a quasi-amnesty or statute of limitations must be done for all, or not at all—a point ably made by the noble Lord, Lord Evans. Currently, we are witnessing a massive diversion of resources into investigating old crimes with no prospect of a successful outcome, with many old citizens—notably retired soldiers and police officers—being stressed out by protracted inquiries.
Then we had the politically destabilising farce of one of the key architects of the peace process, Gerry Adams, being arrested in May 2014, detained for several days with media speculation on an intense scale and then predictably released. Where is all this getting us? Meanwhile, there is no proper compensation or recognition for the victims. As the noble Lord, Lord King, said, we have to draw a line and prioritise victims and reconciliation and allow the police to prioritise current crime, not history.
Baroness Suttie (LD)
My Lords, I, too, congratulate the noble Lord on securing this extremely important and timely debate and for his, if I may say, deeply moving speech. In the two minutes available, I shall limit myself to a few brief remarks on this highly complex subject. There is just too much hurt and too many demands for truth and justice to simply draw a line under the past in Northern Ireland. Northern Ireland must be able to deal with its past in a manner that promotes reconciliation and is consistent with the shared future.
The vast majority of those who served in the Armed Forces during the Troubles did so to uphold the law and operated entirely within the law. They acted with honour and integrity and we pay tribute to their courage and sacrifice. We would be doing a disservice to these soldiers if we introduced a procedure that is contrary to the rule of law and our human rights obligations. As such, we would have concerns that an amnesty could inadvertently undermine the contribution of the vast majority of those who served so honourably. But justice must be—and must be seen to be—even-handed. Can the Minister reassure the House that nothing in the consultation and proposed legislation will give rise to a fishing expedition among former members of the Armed Forces? Can he also say whether those in the security services against whom prosecution is being considered will be offered ongoing support and advice as well as effective legal representation, and how that assistance will be funded?
Lord Murphy of Torfaen (Lab)
My Lords, I of course pay tribute to the Armed Forces and all their work over 30 years. I also understand the feelings of victims across the board in this matter but, after spending seven years of my public life as either a Minister, shadow Minister or Secretary of State in Northern Ireland, I have now come to the conclusion, like the noble Lord, Lord Evans, and my noble friend Lord Hain, that we must draw a line. The issue is how we do it, when it is done, where it is done and, of course, whether it can be accepted right across the community in Northern Ireland—which it must be for it to be effective.
This debate has been important in highlighting this issue. The matter now rests with the Government. They have decided that they want a consultation process on the legacy of the past, and I hope that what has been said in this important debate will be taken into account by the Minister and Secretary of State in dealing with what now is the most difficult issue facing people and their political leaders in Northern Ireland.
The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Duncan of Springbank) (Con)
My Lords, this has been an important debate and I must begin by thanking the noble Lord, Lord Dannatt, for bringing it before us this evening. Let me stress that the Government are consulting and the consultation will be extended until 5 October. Let me also say that legacy is a constant companion to all those who have lived in Northern Ireland and indeed to all those who have served there. We can be under no illusion: they will carry that legacy until the day they die.
There are currently many organisations in the Province of Northern Ireland responsible for investigating historical legacy issues, each constituted under slightly different arrangements and each with slightly different approaches. The reality is that, as the noble Lord stressed, there appears to be a very clear skewing of those investigations towards those who have served inside the military and the police services. This widespread view has been echoed tonight. There is no doubt that it is a tragedy that those who served with honour in Northern Ireland, who sought to uphold the rule of law, have found themselves in their retirement years struggling with a legacy that they are unable to respond to and are unclear about when it will end. At the moment, inquests into the Troubles seem primarily focused on former soldiers and police officers. That is under the current arrangements.
The reason that we are consulting today and have brought forward an indication of how we might move this in a different direction is that the current arrangements do not work. It is the current arrangements that have brought us to the situation that we find ourselves in, and that is why we need to think afresh. There needs to be a different approach. We cannot have a situation in which the state, which necessarily records the actions of all those who perform a service for that state, is therefore more likely to be pursued than those who belonged to paramilitary organisations which—as many noble Lords have pointed out—simply did not keep records. We need to recognise that reality. We cannot have those who have served this nation being prosecuted simply because it is easier to prosecute them. Justice must be served, but justice must be blind.
I am also aware that in this consultation, as raised by a number of noble Lords, we have focused only on fatalities. It is of course right to strengthen the point that the number of those who were injured is an order of magnitude greater. I would welcome—in fact, I would strongly urge—those who hold that view to make it very clear to the Government that injuries also need to be considered in the wider approach as we seek to bring this consultation towards a conclusion.
It is important to remember certain aspects that we have not touched on as much this evening, such as that the police ombudsman, by its nature, will investigate only those who are former police officers and, by its nature, 100% of the investigations will necessarily affect only the police services. That is why, in looking at the new institutions that should emerge from this consultation, we need to see how we can address the very issues with which we are so familiar and have heard so much about this evening.
There is no easy answer. If reconciliation were achievable by simply asserting it, we would have made greater progress. But that cannot be done. The question then of a statute of limitations, or indeed of an amnesty, is a challenge that we must confront foursquare. The issue is: shall we now draw that line and say that, before a particular date, all shall therefore be left behind, whereas after that date we shall act? It is not the policy of the Government to move forward with an amnesty but, as has been pointed out, an amnesty could not apply only to one side; it must apply equally to all. Again, I would welcome from noble Lords strong representations to the Government on this, so that we may hear very clearly those points being made; we would therefore need to understand where the will of the House rests on this issue. Importantly, we cannot overlook the reality of what the Troubles meant for those who lived through them and experienced those tragic circumstances. As the noble Lord, Lord Bew, reminds us, to some extent, nothing that we can do could ever truly satisfy those who have been bereaved and those who have experienced the trauma and tragedy of events. I do not believe, if I am honest, that anything that can be achieved from this particular consultation could deliver that satisfaction.
I am aware from listening to a number of contributions this evening, not least from my noble friend Lord King, of the cost of these investigations, what that money represents as a loss, in truth, to the wider Province of Northern Ireland, and how that money could perhaps have been spent on other aspects. Again, as we look at the responses to the consultation, we must hear that, if indeed that is a view that is expressed very strongly.
It is necessary, as we begin to consider what will emerge from the consultation, to see whether we can secure what I hope will be a consensus in moving forward. I suspect the challenge will be that that consensus will be absent. It will call therefore on the Government to lead, to determine what that policy that we will move forward with needs to be. We have, as noble Lords will be aware, adopted the Stormont House agreement, which was hard-fought. It sought to draw on the knowledge and experience of a wide breadth of participants in public life in Northern Ireland. It also sought, again, to explore the views of a wider constituency beyond that. It is upon that Stormont House agreement that we seek to make progress through this consultation.
It has taken too long. Of that there is no doubt. We should have been making progress on this matter when the momentum was with us and the wind was in our sails, but that has not been the case. It would be too easy for me to say, as I have said on so many occasions, “If only we had a devolved Executive. They could just sort it all out”. Unfortunately, this is a bigger challenge than just saying, “We must wait for that Executive to be in formation”. That is why, in putting forward this consultation, and ultimately depending on what emerges from it, we seek to determine a course of action that can bring about each of the elements that we, I believe, all wish to see. Among them is the wish that justice be done; that those who serve with honour do not continue to be persecuted and prosecuted over a lengthy period, as a number of noble Lords have mentioned this evening; and that those who have served their country, be it in the police service or in the Armed Forces, are able to experience a retirement without threat or fear of continued persecution through this process.
The Stormont House agreement gives us a foundation on which we can work, but it will not solve all the problems. We must ensure that those institutions that are developed are able to deliver almost the impossible, which is to satisfy those who have lived through the Troubles, to address those who would seek justice, and to address those who believe that justice simply cannot be served. We must also make sure that those who serve in the military, those who have served in the military and those who might serve will not be victims of an ongoing persecution that will continue long after they have resigned their commission or retired from the services.
We are asked, as a Government, to do a great deal. In formulating a new Historical Investigations Unit and in seeking to recognise that thus far the previous incarnation of that entity has sought to gather the low-hanging fruit, we need to recognise that it is only fair and proper that the future activities of such an institution address each fairly, that justice be served blindly and that we do not simply cast our eyes to the horizon and say, “This will never end”. It will continue for as long as it must continue. In limiting it to five years, we recognise the challenge that that represents, but we also recognise the near impossibility of delivering within that. None the less, there must come that time when a line is drawn. The line will be drawn either by the Government or in due course by the passing on of all those who have experienced tragedy or have been in the Troubles.
I do not believe the Government can easily answer those questions, but they must try. They must do so irrespective of whether a new Executive are formed, because the time is slowly but surely trickling through the hourglass. As well as the Historical Investigations Unit, the Government have put forward three other institutions for consideration. One is a commission on information retrieval, which will be an independent institution established by agreement between the UK Government and the Irish Government to enable victims and survivors in the UK and Ireland to seek and privately receive information about the Troubles-related deaths of their relatives. That will be an important step forward. Another is an oral history archive—again, independent—enabling people from all backgrounds to share experiences and narratives related to the Troubles. The third is an implementation and reconciliation group, again an independent institution to promote reconciliation and to review and assess the implementation of the aforementioned institutions to deal with the past. Those are anticipated within the overall consultation. However, I stress again that the key, beating heart of this is the belief in the fairness and transparency of the actions, and that this too will come to an end—because it must. We do not wish to see hundreds of millions of pounds spent trying to achieve the impossible. None the less, we wish to see a move forward that gives satisfaction to those who have lived through the Troubles in whatever capacity they themselves did.
I therefore say to the noble Lord, Lord Dannatt, that the current system does not work. It has been a prosecutorial system which has sought to gather the low-hanging fruit, and that has been intrinsically unfair. There have been a number of difficulties in trying to prosecute and pursue those guilty of terrorist atrocities. Just because it is hard does not mean that it should not be pursued with the utmost rigour. Justice must be done and must be seen to be done. It would be patently unfair for the perception of skewing to manifest itself in any way as a reality.
I know noble Lords will be offered an opportunity to revisit this as the consultation itself concludes, but before we get to that stage it is critical that the views that noble Lords express, which represent a large constituency of various interests, are part of the consideration of that consultation. We must make sure that what emerges from that consultation works, because the current arrangements do not. We must make sure that there is confidence in those arrangements—that there is fairness, honesty and integrity and, ultimately, that justice is served by them. Perhaps hardest of all, we must also recognise that this consultation and the institutions it may yet deliver will not themselves salve the wounds of those who were harmed or hurt in the tragedies. None the less, they may serve as a final attempt to address the concerns expressed by those pursuing justice, as they have done over the years.
It will not be an easy outcome. The Government are fully aware of how difficult it will be to satisfy each of the constituent elements, some of whom have spoken this evening. However, two things must stand above all else. First, the British Armed Forces served with honour in Northern Ireland. There have been occasions, as inevitably there will be in any comparable situation, where difficulties will have arisen, and they need to be pursued to the fullness of justice. But equally, justice cannot focus only on the state actors, which is why we must move forward on both.
On the notion of an amnesty, which many of Lords have spoken of—again, I strongly urge noble Lords to make those points clearly in the consultation itself—it is not the policy of my party or of the Government to believe that we are in a situation where we can overlook those crimes of the past. We believe that they must be pursued to the fullness of justice: that is what we ultimately wish to do. We must also recognise, however, that old men forget and that, with the passage of time, it becomes ever more difficult to find the truth and gather the evidence, and ever more trying to bring yourself into a situation in which you can secure that which I believe all would wish to see: justice done and justice served.
A number of noble Lords have stressed how important it is that this be a sensible solution, and that we should not simply believe that by casting further hard-fought money into a procedure we can achieve the ultimate ambition of salving the wounds of all who grieve. We cannot do that. But we must be in a position where the Government have been seen to do their job, which is to recognise that those in Northern Ireland who seek justice are in a position to believe that justice has been done. We must also be in a situation in which those who have served the state in Northern Ireland do not find themselves enjoying, one would hope, their twilight years while always finding themselves pursued to the point of ill health.
It would be easy for me to simply say, “It’s a consultation—let’s wait and see”. But the reality remains that we must act and must do so on the basis of consensus, which we hope we shall draw ultimately from this consultation. This has been a worthy debate, which has made me think very carefully about many different aspects of it, so I thank your Lordships very much.
Mental Capacity (Amendment) Bill [HL]
Wednesday 5th September 2018
(6 years, 3 months ago)
Lords ChamberRead Full debate Mental Capacity (Amendment) Act 2019 View all Mental Capacity (Amendment) Act 2019 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 117-I(b) Amendment for Committee, supplementary to the marshalled list (PDF) - (5 Sep 2018)
Baroness Barker
Baroness Barker (LD)
My Lords, we return to the topic that we were discussing before the break: the conditions that have to be met for authorisation of deprivation of liberty arrangements. During the dinner break, I reflected on what the Minister said in response to the previous Amendments 7 and 8, which were in similar territory. I understand entirely what he said about the best interests test being in the Mental Capacity Act and that being the first stage of assessment. However, on the secondary assessment for arrangements for either care and treatment or deprivation of liberty, the Minister seemed to suggest that there was a possibility of conflict between those two things or a misunderstanding of them. I will go back over some of that territory again; that may irritate the Minister, but it has been clear all afternoon that one of the main purposes that these proceedings in your Lordships’ House may serve is to enable people outside in the lobby groups, who, like us, have not been able to see a clear read-across from this Bill back to the original legislation, now to do so.
Amendments 9, 10 and 30 seek to reiterate or reintroduce concepts which will be very familiar to all those who took part in the deliberations during the passage of the Mental Capacity Act. Under that legislation, it was always to be made clear to a person who was possibly going to be subject to a deprivation of liberty, and to anybody involved in that decision-making, that the well-being, wishes and feelings of that person had to be taken into account, that any decision would be the least intrusive as possible, and that the arrangements being made for the person were the least restrictive, particularly with regard to where somebody should reside. That is for many people, particularly older people, perhaps one of the most contentious decisions. It is often one of the subjects on which there can be conflicting views between families and individuals or between professionals and individuals.
I have said before and—given that the one thing that has stuck out in the Bill is the enhanced role for care commissioners and, particularly, home care managers—I do not think it is unreasonable to go back again and satisfy ourselves that, when the authorisation of arrangements happens, these key parts of the Mental Capacity Act will again form part of the assessment. I hope, when we come to further amendments down the line, that they will be part of the record of decision-making. I do not make any apology for raising these amendments. I am sure the Minister will bat them back, but if he will do so with a deal of explanation then I think we will have served a purpose. I beg to move.
Baroness Hollins (CB)
My Lords, Amendment 29 seeks to ensure that the views of those consulted are taken into account in determining whether the arrangements are necessary and proportionate and, importantly, that particular weight is placed on the wishes and feelings of the cared-for person. I declare an interest as I also have a family member who is directly affected by the matters we are debating today; indeed, much of my Recess was spent trying to sort out his care needs taking into account his views.
While the Bill includes a duty to consult, I and many in the sector are concerned that, as currently drafted, the Bill does not adequately weight things towards the cared-for person’s wishes—the person who, of course, should be at the centre of all this. This also reflects the Law Commission’s advice about giving more weight to an individual’s own wishes and preferences regardless of whether they have been judged to have decision-making capacity—this is quite important. In a fairly recent case, Wye Valley NHS Trust v Mr B, the judge concluded:
“that an incapacitated person’s wishes and feelings should be assumed to be determinative of his best interests unless there is good reason to depart from the assumption”.
Earlier, the noble Baroness, Lady Browning, spoke importantly about the difficulties sometimes of communicating with and listening properly to people who have communication disabilities. I accept entirely that conversation with people who lack, or may lack, capacity can be challenging and requires additional communication skills, training and understanding. It is crucial that we get this right, because the consequences are significant and will lead directly to improvements or deteriorations in people’s health and independence.
It is often the case that the family are the most skilled at communicating with their loved ones and are, therefore, the ones most likely to understand their feelings and wishes. This may in some circumstances be communicated with subtlety and nuance. I declare another interest here as I chair the charitable community interest company Beyond Words. The wordless health and social stories that we create facilitate discussions and support decisions, but the discussions they facilitate are about people’s wishes and understanding; they support decisions that at the outset might appear too difficult or challenging.
Anything that enhances the understanding of the person—and of the carer, social worker or health provider—about what the person is thinking and might want takes time and skill. Sometimes people need special tools to help them. Effective engagement by support workers and carers with each individual can improve their understanding about the type of support the person requires and I hope will lead to less restrictive interventions being provided.
On this whole issue of who sits with, communicates with and listens to the person, I think many working in the care sector assume it will be an expert who comes in, yet the experts do not see that as being part of their job either. So there is a gap, where often nobody is actually doing the listening or communicating, because everybody assumes that it is somebody else’s job.
Lord Hunt of Kings Heath (Lab)
My Lords, I have added my name to the amendment tabled by the noble Baroness, Lady Hollins. As she eloquently said, the puzzle relates to paragraph 17 of new Schedule AA1 on consultation, which references those who must be consulted. The aim of the consultation is,
“to try to ascertain the cared-for person’s wishes or feelings in relation to the arrangements”,
but the paragraph does not specify that the cared-for person must be consulted. The Minister might just refer me to Section 4 of the Mental Capacity Act and say that it is covered there, but so are the provisions in sub-paragraphs (a) to (e) in paragraph 17(2)—they are all listed in the best interests test. Therefore, the puzzle is why the Government have decided that there should be no attempt, at least in statute, to seek the cared-for person’s wishes and feelings. We are already concerned that these measures are not focused on the interests of the cared-for person; they are about streamlining bureaucracy and saving money, and this rather lends to that suspicion. I hope that the Minister will be able to agree to the noble Baroness’s amendment, because it is a very important symbol of what this is really all about.
Baroness Thornton (Lab)
My Lords, this group of amendments tests the proportionate nature of the decisions being taken. Amendment 29 would put the views of the cared-for person at the centre of the assessment and ensure that adequate weight was given to their wishes and feelings. I have not been able to find in the Bill where that is expressed, and that is shocking and surprising. We have to see a clear statutory duty to consult the cared-for person, and the scope of that consultation must include their past wishes, feelings, values and beliefs. I invite the Minister to tell me whether he believes that the Bill as it stands achieves that, because I cannot see that it does. If this amendment is not agreed to, the Minister and the Bill team must think about how they can best make sure that the Bill reflects the need for consultation with the cared-for person.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord O'Shaughnessy) (Con)
I thank noble Lords for tabling their amendments and for contributing to a debate that has continued the discussion that we had before dinner. It again gets to the heart of why we are here, which is to make sure that when people need to be deprived of their liberty, it is in their best interests to do so and that the restrictions are proportionate and necessary and so on.
I agree with the spirit of the amendments. It is important that we intend to, and do, safeguard the well-being, wishes and feelings of the cared-for person. Dealing with the first set of amendments, I take this opportunity to reassure noble Lords that the changes being sought are already required by law in several ways.
First, the European Court of Human Rights has made it clear that a decision on whether arrangements are necessary and proportionate must include consideration of the cared-for person’s wishes and feelings about the arrangements. It should also be noted that, as the noble Lord, Lord Hunt, pointed out, wishes and feelings are already a part of the first-stage best interests decision-making under Section 4 of the Mental Capacity Act and I can confirm, as I have done already, that the Bill does not change this. Furthermore, wishes and feelings will also be considered as part of the “necessary and proportionate” test, and the code of practice will provide further detail about how that will work in practice.
Going even further, as has been referenced by several noble Lords, we have created in this Bill a specific requirement to ascertain a person’s wishes and feelings in relation to the proposed arrangements through the duty to consult with anyone with an interest in the cared-for person’s welfare—first and foremost the person themselves, as well as their family, carers, friends, advocates, interlocutors or anybody with a substantive interest in their care. I believe that there is substantial legal protection, force and direction to make sure that the person’s wishes and feelings are considered first and foremost in any of these kinds of arrangements. As this debate has demonstrated, there are clearly lingering concerns that that is not the case, because of the existing framework, notwithstanding the enhancements through the duty to consult that we are introducing. However, I am eager to make sure that it is well understood, and to work with noble Lords so we can make clear that those responsibilities already exist, both in statute and—
Lord Hunt of Kings Heath
I understand the Minister’s argument, were it not for the fact that the amendment, in paragraph 17(2)(a) to (d), just copies what is already in the best interests clause. I would argue that, if we are going to copy four of those, why do we not copy the issue about the cared-for person being listened to? The Minister is arguing different points from amendment to amendment on this.
Lord O'Shaughnessy
We try to be consistent, but it is not always possible. The noble Lord makes a good point; it is something that I would like to explore further.
Turning to the matter of considering less intrusive arrangements, again this is incredibly important. Case law establishes that the test of whether the arrangements are necessary and proportionate must also include consideration of whether less intrusive arrangements are available and have been fully explored. As we discussed in the last debate, it is already a principle under the Mental Capacity Act. The code of practice will provide further detail about how that will work in practice.
This has been a useful debate, continuing, in some ways, the previous debate on best interests. As we have all agreed, it is important that the person’s wishes and feelings are at the centre of arrangements being proposed. That is certainly our intention through the liberty protection safeguards scheme that we seek to introduce. I want to continue working with noble Lords over the coming weeks to make sure that there is clarity that that is the case. I hope that on that basis, the noble Baroness will be prepared to withdraw her amendment.
Baroness Barker
I thank the Minister for that reply. We started with the mental capacity legislation, which is explicit in having the person at the centre of everything that happens. Yet we know from several reviews that have been conducted, including the review by the Select Committee, that the implementation of that legislation has been very patchy. To then be faced with a piece of legislation in which consultation with the person is not on the face of the Bill seems to be moving a long way from that original principle.
I have let the Minister talk about the code of practice repeatedly and I have not mentioned it so far, given that we have other amendments to debate. However, we found out with the Mental Capacity Act that reliance on the code of practice was one of the reasons why the Act was not implemented as well as it should have been. We will come on to that in far more detail, but there are some things that are so fundamental to the operation of this that we should know by now that leaving them to the code of practice is not acceptable. We can talk about implementation within the code of practice, but there are some things that need to be on the face of the Bill. For me, we really have hit that. If we are not even going to attempt to consult people, that for me is a red line, so I am pleased that the Minister has agreed to talk to us about that.
The points made by the noble Baroness, Lady Hollins, about the weighting of the wishes and feelings are also important. Those wishes do not sit on an equivalent level with the views of everybody else. They should be pre-eminent.
Lord O'Shaughnessy
I take the points that the noble Baroness is making. Obviously we will discuss this further. But it is important to reflect on the new duty to consult. It is not a duty to consult everybody but the person, so it is not fair to say that there has not been an earnest attempt in the Bill to make sure that the person is fully consulted in the necessary and proportionate test, even if the noble Baroness does not like the precise way that that has been done. It is important to set that out.
Baroness Thornton
It is a spectacular omission not to mention the very person whose liberty is being restricted. I ask the Minister and the Bill team to remind themselves of Articles 5 and 8 of the UNCRPD, which mandate such consultations.
Baroness Hollins
This needs emphasis because of the culture of care that we have in this country. There is still such a paternalistic attitude towards the person, that not to emphasise it is to miss the point.
Baroness Barker
I thank noble Lords for their support. We will need to return to this and I am glad that the Minister has taken that point.
Another reason for tabling the other amendments to ensure that arrangements are the least intrusive and least restrictive option is that, as we will debate on later amendments, the Bill is somewhat deficient in the extent to which it requires that people should be given information on which to base the consultation.
I make no apologies for raising this again at this time. It is something that I hope we will discuss between now and later stages of the Bill. I hope that the Minister can understand the reasons for the concerns that lay behind the amendment. Having said that, at this point, I beg leave to withdraw the amendment.
Baroness Hollins
Baroness Hollins
My Lords, Amendments 11, 12 and 13 deal with a perceived conflict of interest pointed out by numerous charities and care providers with regard to the role that care home managers are intended to play under the Bill. As drafted, the Bill places a new duty on care home managers to carry out the assessments and consultation prior to authorisation. My amendments would ensure that the duty for carrying out assessments resides with the responsible authority, with a retained duty to involve care home managers in carrying out those assessments.
I raise a puzzle that I have. I have been trying hard to get my head around some of the possible unintended consequences of the way in which we think about care homes and care home managers and the relationship between the different kinds of care and support that are provided. Some services, with great encouragement from local authorities, have been trying to convert their residential care homes into supported living houses. That has been the trend. Often, these new supported living houses are located on the same site as the remaining residential care homes or in the same area but with the same organisation running them and the same chief executive. Sometimes, the registered care home manager is not only the care home manager for the residential side but is also the manager for the supported living homes. They are located on the same site, close together and within the same organisation within the same management structure, but the organisation will have two different systems for authorising the provisions of the Act, which will be very confusing for it.
I wonder whether there might be a perverse incentive for adult social care to reverse its previously encouraged trend towards supported living, to reduce its administrative burden and to register more care homes. This seems to be a backwards step when, in times of personalisation, we want to move more people to settings that are not registered care homes, but are more supported and likely to take note of their personal wishes, if that is not too much of a conundrum. It is one of the real puzzles I have been struggling with over the Bill.
The whole ethos of DoLS was that those making the decisions about deprivation of liberty were independent of those providing care to the person, and that independent assessment is an important safeguard. More specifically, the new arrangements raise concerns that a number of stakeholders have pointed to. For example, it can be easier to care for someone by placing more restrictions on their freedom. It is harder to support them in the least restrictive way possible and to maximise their choice and freedom. We know that health and social care professionals are naturally risk-averse and, if there are some possible risks, they will often choose the perceived safer, albeit more restrictive, option over increasing liberty.
I believe the vision, which is great, is to integrate decisions about liberty protection safeguards and deprivation of liberty into care planning. This means that, at the point of making decisions about placement, decisions about restrictions are also considered, with a view to seeking the least restrictive option. This makes sense, but I do not see how this can happen if the care home is making the determination. It is already a done deal that the cared-for person is going to be in that care home. Their care manager will be looking at the arrangements within the care home. They are unlikely to say that the person would be better off and able to have more freedom in a different setting—for example, a supported living setting. There is a bit of a conflict of interest here.
Currently, the care provider feeds into the DoLS assessment, sharing their expertise as a provider. That is a different role and skill set from making decisions about necessity and proportionality. Consulting with relevant people is a different role from being one of those consulted. The assessments are complex and this new role is being placed on care managers who, by definition, have a different skill set. The sector is trying to deliver care for people who, in many cases, have complex needs and require intensive support to live as independently as possible. I am interested to know what conversations the Minister and officials have had with those upon whom this new duty would fall, as I suspect they will have raised many similar concerns.
Perhaps it is worth reflecting on the judgment by Lady Hale in the Cheshire West case. In speaking about the extreme vulnerability of the people concerned, she said:
“They need a periodic independent check on whether the arrangements made for them are in their best interests. Such checks need not be as elaborate as those currently provided for in the Court of Protection or in the deprivation-of-liberty safeguards (which could in due course be simplified and extended to placements outside hospitals and care homes). Nor should we regard the need for such checks as in any way stigmatising of them or of their carers. Rather, they are a recognition of their equal dignity and status as human beings like the rest of us”.
I wonder whether this paperwork exercise for non-objecting people is what she envisaged as an independent check. In his response, I would appreciate the Minister’s view on whether he sees a conflict of interest here and whether he agrees that the assessment should be carried out by someone independent of the care home, and who that should be. I wonder if we need to make more use of service brokers to do the care planning, listen to the person’s wishes and ensure that the decisions made lead to an effective care plan. I beg to move.
Lord Hunt of Kings Heath
My Lords, I have added my name to that of the noble Baroness. She has succinctly put forward the case for the removal of care home managers from this important position, and at this point, I am very supportive of that. While we debated this issue earlier, I want to come back to a point raised then. The argument was put that we ought not to worry because the local authority remains the body that approves authorisations; it will provide independent scrutiny and oversight. I have already referred to the fact that the impact assessment treats this essentially and mainly as a desktop exercise, but my advice from Professor Lucy Series of Cardiff University is that unless care home managers themselves indicate that an AMCP referral is required, all the responsible body will be able to make the decision on is the information supplied by those care home managers. She states that that is a very weak independent safeguard, and indeed it is when care managers have a financial interest in these decisions. That is why this arrangement simply cannot be allowed to stand.
The other thing I would point out to noble Lords is the evidence I received on Monday from ADASS, the association of Directors of Adult Social Services. Like everyone else, it supports the overall thrust of the Bill—there is no question about that—but it has some concerns relating chiefly to the expectation that care home managers will be responsible for the assessments required to authorise the deprivation of a person’s liberty. It says that it is in discussions with the Care Quality Commission and the Care Provider Alliance, which both have similar concerns. That answers the point raised by noble Lords about where the CQC stands in relation to this. I am not surprised that the CQC has concerns because of the very difficult challenges it faces in the care sector generally. One has to think carefully about whether adding to its responsibilities is the right course of action.
ADASS has stated:
“Whilst registered care providers have previously been required to assess individuals, to determine that they can meet the person’s needs and to undertake care planning, they have not been required to assess to protect people’s liberty. Planning Care and assessing whether deprivation of liberty is in a person’s best interest when they are unable to decide for themselves are very different things. ADASS therefore believe this to be a new activity, requiring new skills and resources. We have real concerns relating to a) care home capacity, b) care home staff competence, c) perverse incentives and potential conflicts of interest, d) additional cost (for training and additional capacity) and e) whether and how such costs will be resourced”.
Noble Lords who know those at ADASS will know that they do not make such statements without very good evidence. The noble Baroness is proposing in her amendment to take out the reference to care managers, and my assumption is that the role of assessing will be restored to the local authority, which of course was in the Law Commission’s original plan. From what I have heard, surely we have to stick to what the Law Commission proposed.
Baroness Finlay of Llandaff (CB)
My Lords, I have listened to the debate and have ended up feeling slightly puzzled. If we are looking at how we improve the quality of life of “P”, what they experience day to day in how they are looked after is what influences that quality of life—in other words, how well the care plan is planned and executed. It cannot be just about the planning phase but about how well it is executed and how that execution of the care plan is monitored, day to day and week by week. In a care home, the person ultimately responsible for care plans has to be the manager because you must have a vertical structure, even though the plans may well be written by staff at a different level. If a person is in supported living, someone will be responsible for overseeing the care and provision in that supported living arrangement by dint of it being supported. Therefore, that must also be planned for and it will not be a care home manager but somebody else overseeing their care.
I can see that there is enormous concern over care homes. We all know that there are some excellent care homes and we have all, sadly, encountered care homes that are not excellent, where one would have concerns about their ability. If we are trying to drive up a person’s experience and quality of life, and make sure that what is done is necessary—because there is no other way of managing them—there need to be restrictions proportionate to the problems that they pose. I add here that we must consult and make every effort to listen to the person. We have that in another set of amendments later.
It may be that our grouping of amendments at this stage is not right because there is so much that interweaves between them. The worry is that if we then say that the people on the ground and the care plan are not the main part of the assessment, we go back to somebody basically helicoptering in, doing an assessment, seeing how they are and going again and leaving approval—that may be for a year—without any pressure to constantly review. Later amendments seek to put pressure on to review whenever the situation changes—to make it a more dynamic situation that really reflects that people deteriorate. Fortunately, some sometimes improve but most of the time you are faced with deterioration.
The other problem is that local authorities are, we know, incredibly short of finance. We know that they already cannot cope with the burden of assessments that they are being asked to carry out. I cannot see how asking them to take back the role and possibly do three assessments rather than six will tackle the problem of the number of people needing to be assessed and thought about being far greater and not matching—I think it never will match—the resources available.
It is easy to say that we need more people to do this but realistically the number of trained and experienced people is just not there. We have to find another way forward. There is a tension because whoever does the assessment may have a conflict of interest, whether about funding the care or receiving the income from the care. Somehow we need a system that improves the quality of life of the person and is subject to scrutiny more often than just on the occasions that the assessment is done initially or when it is reviewed after a fixed time.
I wonder whether a group of us needs to go away, sit down and really try to work this through with worked examples. I should declare that at one of the meetings I had in Wales we used worked examples in different settings. When we started to work through it for supported living arrangements—that was the table I was on—it became easier to see how it could work and how the triggers could work. I am not saying it was a perfect solution. I think the intention of these amendments is superb but I worry that they might not solve the problem.
Baroness Tyler of Enfield (LD)
My Lords, I was not going to intervene on this group of amendments but I have listened carefully to all the points that have been put and they have all been absolutely excellent. There is a tension here, as the noble Baroness, Lady Finlay, just said. My main reaction, particularly when I read the letter from ADASS—I shall not read it out again; I have it in front of me—was of real concern. As the noble Lord, Lord Hunt, said, they are not the sort of people who say these things lightly. They do not scaremonger. They do not exaggerate. They make very carefully calculated judgments, as you would expect of people at that level. I read the letter with great concern.
I was equally concerned when I read the briefing, as mentioned earlier, from the Relatives & Residents Association. One phrase really resonated with me, about the association’s great concern that too often we were asking care managers to be judge and jury about decisions in which they were involved. That is how it was expressed. The noble Baroness, Lady Finlay, made some excellent points. We have to find a way through. It would be genuinely helpful if, as in her proposition, there was time to think about those who will be most involved, as they must be, in care planning for these very vulnerable people, and a sufficiently independent element in arrangements so that people feel that care home managers are no longer judge and jury. I do not think we are there yet. I cannot articulate it at the moment but we must work together to secure a slightly different way forward.
Baroness Barran (Con)
I echo the appreciation of the noble Baroness, Lady Tyler, of the explanation of the noble Baroness, Lady Finlay, of the choices we face between the care home manager, who in the best cases will know “P” well, and the local authority assessor, who, as was said, might be parachuted in. It underlines the need for the now-familiar new paragraph 17(2) to be well thought-through and implemented. It is clear that the Bill’s intention is for this to be one of the critical safeguards of how this all works in practice, along with the scrutiny role of the responsible authority, which we will no doubt cover in detail.
Amendment 11 in the name of the noble Baroness, Lady Hollins, raises an important point about supported housing and care homes. It raised in my mind a slightly different question, which may have occurred to other noble Lords: do we need more clarity in the Bill on how it applies in domestic settings? For example, when someone who is normally cared for at home is in a care home for a short stay, perhaps because their carer is in hospital, what is the position in the home once the protection of liberty safeguards have been authorised? I wonder whether my noble friend could consider whether there is a need to clarify exactly the role of the safeguards in domestic settings and how they interface with the Care Act and other bits of legislation that would apply in such cases.
Lord Touhig (Lab)
My Lords, I am very pleased to follow the noble Baroness. I think she made her maiden speech at Second Reading; it was an important contribution. She has sat through this debate and made a few important points. We certainly welcome her and look forward to further remarks from her as we proceed with our considerations.
I support the amendment in the name of the noble Baroness, Lady Hollins, addressing as it does concerns expressed by me and other noble Lords at Second Reading. The Bill provides a different route of authorisation for a deprivation of liberty when a cared-for person lives in a care home. In this circumstance, it places a new duty on care home managers to carry out the assessments and consultation prior to authorisation. I echo the noble Baroness’s concerns that this creates a conflict of interest. We have already considered some of these aspects earlier but none of us needs make any apology for coming back to it because it is so very important. Care home managers will have an important insight into an individual’s needs and they should be included as a source of information, but a responsibility to carry out the assessment requires more than simply providing information. It is a different skill set from their expertise as a provider.
Furthermore, care home managers are not independent and although they are not responsible for granting the overall authorisation, the contents of those assessments will be key to local authorities’ overall determination. This is particularly important where there are concerns about weaknesses in the pre-authorisation review outlined in Clause 18. That clause does not, as drafted, secure the independence of the person carrying out the review. It does not ensure that a rigorous review is carried out. As it stands, it risks the pre-authorisation review. The overwhelming majority of care home managers would undertake their duties honestly and assiduously.
However, we have to face facts. This Bill, as drafted, leaves the door open for a dishonest assessment, and we have to speak plainly about it. That should concern this Committee as we are debating the system of legally depriving some of the most vulnerable people of our society of their liberty—nothing can be important than that. Furthermore, it is unclear what assessment the Government have made of the burden this would place on the care home managers. This will account for more of their time, which is scarce in any event. It will also add new complexities to their role; perhaps the Minister might want to further tell us how the Government envisage a proper training programme and what resources will go alongside it to allow them to perform these new duties.
The concerns I have outlined are widely held. They have been expressed not just by me but also by a number of charities. It should be noted that the amendment before us has the support of the National Autistic Society, of which I am a vice-president, Age UK, the Alzheimer’s Society, the British Institute of Human Rights, Liberty, Mind, Rethink Mental Illness, the Royal Mencap Society, Sense, and VoiceAbility —we could go on. They have also been expressed by the Law Society. Those concerns are also held by professionals.
A survey carried out on the Government’s proposals by Community Care and Edge Training & Consultancy asked professionals whether they agree with the proposals that care home managers would carry out assessments. An overwhelming majority—86%—disagreed. My goodness, we could have those votes in some elections. It is certainly a very powerful message. That question also provoked the highest number of written comments and these are relevant to our debate. One said: “This is the most obvious concern with the new proposals: there is a direct conflict of interest with the provider”. Another said: “Where is the independent viewpoint?” A third said: “This process will be a waste of time at all levels if the initial process is not completed thoroughly”.
It is right that we subject this aspect of the Bill to thorough scrutiny. It was not part of the draft Bill produced by the Law Commission and therefore has not been spoken about and debated at length, as have other aspects. It has gathered significant criticism too, and we should be prepared to listen to that criticism. Therefore, the noble Baroness’s amendment strikes a very sensible balance. It ensures the independence of the assessment process, it alleviates some concerns about the independence of the pre-authorisation review, and it also secures the important role of care professionals in providing vital insight into the individual’s needs. I echo the noble Baroness’s requests for the Minister to give us his views on the conflict of interest that arises from this clause, and whether we may instead consider ensuring that any assessment is carried out by someone independent of the care home. This is a very important matter which we will be coming back to a lot, I am sure.
Lord O'Shaughnessy
My Lords, I am grateful to the noble Baroness, Lady Hollins, and the noble Lord, Lord Hunt, for tabling these amendments and to all noble Lords who have given us the opportunity to explore what is obviously emerging as a critical part of the proposals in the Bill. As noble Lords have said, the amendments would remove the inclusion of care home arrangements from the Bill—that is, the duty of care home managers to arrange the various assessments—and instead substitute a duty on the responsible body to carry out those assessments while involving the care home manager in such cases.
In 2014, this House found that the DoLS process was bureaucratic and overly complex and that is what we are trying to address. We are trying to create a streamlined system that does not—the noble Lord, Lord Touhig, is right to warn that it should not—open the door to dishonest assessment, but rather make sure that everybody gets an appropriate assessment of whether their deprivation of liberty safeguards is in their interests, necessary, proportionate and so on. That is what we are seeking to do. I want to spend a bit of time going into this issue because I think there is a misunderstanding about what is proposed by the Bill.
Under the arrangements in the Bill, in care home cases, the care home manager would be responsible for arranging the assessments for the responsible body—not necessarily carrying out, but arranging; I will come to who carries them out in a moment. This would ensure that existing assessments and assessors who know the person best can be used where appropriate. Noble Lords have asked who will be carrying out these assessments. I will explain that in a moment.
Baroness Hollins
I asked about the difference between care homes and supported living and just that conflict.
Lord O’Shaughnessy
I will briefly come to that. In supported living arrangements, the local authority, the CCG or the local health board would arrange the assessments. It would automatically be that body, as opposed to the supported living provider. I hope that will provide the reassurance the noble Baroness is looking for. It would be the commissioning body in that case.
Baroness Hollins
It may be that a lot of the thinking has been done around elderly people and people with dementia as opposed to people with learning disabilities. In the learning disability world, there has been such encouragement towards supported living that they are often within the same organisation, even within the same setting. It seems very strange that you would have a manager who ends up being responsible for a care home, where they have the responsibility, and for supported living, where somebody else has the responsibility.
Lord O’Shaughnessy
I am grateful to the noble Baroness for clarifying that. I will seek to understand the implications of the Bill for those cases, and I will make sure that I write to her and all noble Lords with an explanation of what is envisaged.
Baroness Finlay of Llandaff
I hope the Minister will forgive me because we are now on an incredibly important part of the Bill. If we can get together and work through it, I wonder whether we need to look at a way that a specific person from the local authority—I gather that it happens in some parts of England and Wales but not everywhere—has a link to different care settings and gets to know them well. We are talking about the people we know about, but the people who are most vulnerable are those we do not know about, who have not been notified into the system. If that person knows a place and the quality of the care there, they may be inclined to have a lighter touch there than on places where there has perhaps been a turnover of staff, a change of management, and so on. They may feel that they want to do some face-to-face assessments to verify the quality of the care being provided—not in the CQC role, but in terms of the care delivered to the person who has impaired capacity.
I put that out there now because I am sure that this debate is being watched and monitored. It might be interesting to see whether we get any feedback on some of the points we have raised during the debate, because so many people have expressed concern and want to know what we are saying.
Lord O’Shaughnessy
I shall give just a brief response to that. It is a good idea. The Government think that the proposals for care homes, how they will carry out commission-needs assessments and the process for reviewing and authorising where necessary are a critical part of creating a more proportionate system that does what it says it will do, rather than the current system, which says it will do a whole bunch of things and then does not actually do them. That is where we want to get to.
I am being robust, as it were, in defence of the model. I want to explain—I think noble Lords are enthusiastic about this—how this will work in practice with the kinds of people who are most likely to be in the most difficult situations, so there is a clear understanding of the safeguards that exist to prevent conflicts of interest, provide independent oversight, make sure there is advocacy to support, and so on. It is clearly the case that there is not yet that understanding, and we need it to proceed.
Baroness Barker
I thank the Minister for his explanation, which has been very helpful. Over the next few weeks, while he is seeking to give further clarification, I wonder whether it would be possible to explain this. One of the Government’s arguments is that the consideration of deprivation or the safeguarding of liberty should come much earlier in the care planning process. Most care is commissioned, most of it by local authorities. Can the Minister explain—perhaps not now at this late hour—how the commissioning of services will change to reflect the new system?
Lord O’Shaughnessy
There is a useful flowchart that exemplifies it and brings it to life. I will make sure that it is shared. I agree that we need to find ways of bringing it to life, and that is something we can do outside this Chamber.
Baroness Hollins
My Lords, I am most grateful to the Minister for his reassurance that the care home manager’s responsibility is only to arrange the assessments. The Mental Capacity Act is so important that we have to be sure that we do not make it worse. It is a good Act, and the main problem identified in the Post-legislative Scrutiny Committee was that it was not well understood. It is emerging that the stakeholders are not understanding what is intended. We should be trying to make it easier to understand and operate, not more complicated.
The noble Lord spoke of trying to legislate for a streamlined process. I am rather worried about legislating for some of these matters, and I am beginning to think that some aspects need to be in regulations rather than in the Bill, just to make things as simple as possible, but also amendable without having to come back to primary legislation. I beg leave to withdraw my amendment.
“(aa) the information provided by the care home appears to be consistent with either the assessments under paragraph 15 or the care and support plan held by the responsible body,”
Baroness Finlay of Llandaff
My Lords, this is really integrally linked. I have been trying to look at what would send a red flag, an alert, to an authorising body that this assessment needed to be looked into in detail and gone through with a degree of rigour—possibly with more time being able to be spent on it than can be spent currently—and that, in commissioning care, the local authority will have a care and support plan that defines what it is commissioning. It should have done a needs assessment and should commission against that and what it expects to be provided. What comes back on those assessments should mirror that care and support plan. What I have tried to do with this amendment is to highlight that, if there is not an almost identikit fit, that should not be given a margin of error but should trigger the need to visit that person and to look in detail at the care plan and its delivery. That might be the first sign that all is not well.
It may be that someone from the local authority visits and finds that the care and support plan, as commissioned, has been altered slightly because the person’s needs or ability to undertake activity have changed. It may be, in the best of circumstances, that something has been put in place that has enhanced the person’s ability to express themselves. I would use the example of music, where it has been found that by providing people’s favourite playlists, some people with really severe dementia are almost “unlocked” by the music—they are able to move in time to the music and their mobility and communication are better. Some people who have been unable to speak, even for years, recover some phrases and then, from that, begin to communicate verbally as well. And of course, we all know of people who appear to not be able to communicate but will then sing along to their favourite song, with all the words coming back again.
The purpose of the amendment is to say that, if there is not a close fit, that should be enough for the local authority to say that it is going to look at that in detail. That was the motivation behind my amendment. I beg to move.
Lord Touhig
This is a very small but very important amendment. Having spent 27 years in newspapers and publishing, I constantly came across issues and stories where people were having all sorts of difficulties, public services failed and systems failed because of lack of information. Certainly from my time as a councillor, as an MP and as a Minister, I passionately believe that we must be open and transparent and must share information. That is key to this part of the Bill, and we certainly strongly support the points made by the noble Baroness.
I do not intend to detain the House more than that, other than to say that the noble Baroness, Lady Finlay, may not be aware that, when I was a Wales Office Minister and she was a new Member of this House, she terrified my officials. They would come in and say, “Minister, it’s that Baroness Finlay again; she wants information on so and so”. She is pursuing her quest for information even today, which I think is very important and valuable. We strongly support her efforts in this area.
Lord O'Shaughnessy
I am grateful to the noble Baroness for tabling this amendment and to the noble Lord, Lord Touhig, for endorsing it. I will not detain the House other than to say that, clearly, the intention to make sure that there is not a discrepancy and, where there is, that there is a flag, is one that we share. We need to be alert to any issues of concern that would warrant further investigation, or indeed referral to an AMCP.
This is something that I think best sits within the code of practice, and I can confirm and commit that instructions along these lines will form part of the code of practice, as well as many other examples of where an authorising body should be seeing signs of concern. I am grateful for the opportunity to confirm that, and I hope that reassures everyone.
Baroness Finlay of Llandaff
I am grateful to the Minister and to the noble Lord, Lord Touhig, for his remarks in support—including his humorous ones. On the basis of that, I beg leave to withdraw the amendment.