Grand Committee

Wednesday 27th October 2021 Grand Committee

Wednesday 27 October 2021

Armed Forces Bill

Committee stage
Wednesday 27th October 2021 Grand Committee

Committee (1st Day)

16:15

[The Deputy Chairman of Committees (Baroness Watkins of Tavistock) (CB)]

My Lords, Members are encouraged to leave some distance between themselves and others and to wear a face covering when not speaking. If there is a Division in the Chamber while we are sitting, this Committee will adjourn as soon as the Division Bells are rung and resume after 10 minutes.

Clauses 1 and 2 agreed.

Schedule 1: Constitution of the Court Martial

Amendment 1

Moved by

[Baroness Goldie]

1: Schedule 1, page 40, line 9, at end insert—
“(3A) After subsection (2) insert—“(2A) In the case of proceedings where the number of lay members would (but for this subsection) be three, a judge advocate may, in accordance with Court Martial rules, direct that the number of lay members is to be four.””Member’s explanatory statement
This amendment would allow a judge advocate to direct that a Court Martial should comprise four rather than three lay members. Court Martial rules will set out the circumstances in which such a direction may be made.

[The Minister of State, Ministry of Defence (Baroness Goldie) (Con)]

My Lords, it is a great pleasure to join you in Committee this afternoon to discuss amendments to the Armed Forces Bill. Without further delay, I shall speak to group 1, which comprises government Amendments 1, 2 and 4 as well as Amendment 3, tabled by the noble Lord, Lord Thomas of Gresford, and the noble and learned Lord, Lord Thomas of Cwmgiedd, dealing with the constitution of the court martial.

Clause 2 will fix the number of lay members on a court martial board at either three or six. The amendment will give judge advocates the power to direct that a fourth lay member be sworn in to what would normally be a three-member court martial board. The court martial rules will set out the circumstances in which such directions can be made. If a four-member board loses a member, it will be able to carry on with the remaining three members and reach a verdict.

We are making this amendment because the Covid pandemic showed the need for greater flexibility in the service courts as board members were taken ill or had to self-isolate, particularly following the “pingdemic” earlier this year. This measure is a practical arrangement that seeks to future-proof the service justice system against this type of situation, or any other unforeseen circumstances that may arise in future. It will introduce flexibility to the system and ensure that more trials are effective and that victims and witnesses are not subjected to delays in the system. If we do not make the amendment, when a panel member is lost from a three-member board, the only options open to the judge advocate would be either to adjourn the proceedings until that lay member is available again or to halt the trial altogether. This would introduce an unwelcome delay to the administration of justice, which would especially affect victims and witnesses, and in some cases could actually mean that a retrial was required.

The approach that we have taken is based on the current legislation for the court martial. When a trial is likely to last more than 10 days in the UK, or five days when overseas, there is an existing arrangement whereby the judge advocate is able to direct that there should be one or two more members than the current minimum number of lay members for a trial. Where a four member-board remains in place until the end of the trial, at least three members of a board of four must agree on a finding. If it is reduced to three members, at least two out of three must agree.

We have consulted the Judge Advocate-General on this amendment, and he supports it as a means to improve service justice system efficiency and provide flexibility to deal with unexpected events in future. I hope that your Lordships agree that this is a sensible measure that will allow the court martial to continue to operate in difficult times and prevent unnecessary delay for victims and witnesses of crime.

I turn Amendment 3, which would create a statutory requirement for the judge advocate to determine the appropriate sentence alone, having consulted the military lay members of the board. This would reverse the current position whereby the military members of the board and the judge advocate together discuss and vote on an appropriate sentence.

Interestingly, the change sought by noble Lords is not something that His Honour Shaun Lyons recommended in the service justice review. The Armed Forces community is different from the civilian community and it is important that we recognise that. It is obviously the one with which we are familiar, but it is a very different environment within the Armed Forces community.

The board votes on sentence because it is best placed to fully appreciate the context of the offending, the background of the offender and the deterrent effect of any sentence on the wider service. Moreover, some sentences, such as demotion or detention for corrective training, are specific to life in the services. The board has the expertise to judge whether they might be appropriate or effective.

It is worth emphasising that members of the military are governed by a more stringent set of rules and restrictions than those of us in civilian life. These rules are designed to maintain discipline and promote operational effectiveness so that they can get the job done. Many of these additional rules and restrictions to which service personnel are subject apply regardless of whether they are on or off duty. An in-depth understanding of these rules and the context in which they apply form a key part of reaching an appropriate sentence.

To give a simple example, a civilian turning up late for work in a supermarket does not have the same impact on operational effectiveness as the same situation with a marine engineer on a nuclear deterrent submarine that is about to leave port. Members of the Armed Forces will have a broader and deeper understanding of the implications of this type of behaviour.

I reassure noble Lords that the sentencing process is already subject to stringent legal controls and oversight. The court martial is required by law to have regard to the Sentencing Council’s sentencing guidelines, which must be followed by the civilian courts. It can depart from these guidelines only if this is justified by the service context.

The Judge Advocate-General also issues guidance and sentencing for the service courts. The judge advocate makes the decision on sentence with the board, so everyone involved is fully aware of the relevant legislation and guidelines. Judge advocates also regularly sit in the Crown Court and bring that experience and expertise to the deliberations of the court martial. Further judicial oversight is provided by the Court Martial Appeal Court, made up of judges who sit in the Criminal Division of the Court of Appeal.

The current system is both legally sound and ensures that sentences take account of the service context. This amendment would not add any significant legal safeguards to those that already exist. It would move the emphasis away from the court martial being a part of a service justice system in which discipline is maintained by and for the Armed Forces and service personnel. It also diminishes the importance of the service context in sentencing and places a barrier between the service person being sentenced and those with whom they serve.

I hope I have managed to explain fully why the Government have a reservation about this amendment. I therefore urge the noble Lord to withdraw it, and I beg to move the amendment standing in my name.

[Lord Thomas of Gresford (LD)]

My Lords, I thank the Minister for seeing me and my noble friend Lady Smith yesterday, when we had a full and fruitful discussion of these issues. I very much support the thrust of this Bill, in particular, bringing the service justice system up to date and having majority verdicts at the heart of it.

Sentencing is a difficult and technical business. I suspect that I am the only person in this Room who has actually seen the judge in a case in which I was appearing put on a black cap and sentence my client to death. That was in Hong Kong. He was not actually executed but it is a solemn moment. Sentencing in the old days used to follow the verdict but not anymore. In any serious case there is an adjournment for sentencing to enable the judge to consider the sentencing guidelines, the pre-sentence reports, the technicalities which he or she must say in the sentencing remarks, the statements of relatives and the public interest in the whole matter. A balancing exercise is carried out.

Importantly, the guidelines may give the recommended range of the sentence, but the judge has to consider the aggravating and mitigating features of the case, which will increase or decrease the recommended sentence in the sentencing guidelines. If I can give an illustration, because it is apposite for next Saturday when Wales play the All Blacks, in rugby, a referee, with his touch judges or assistant referees and the television match official, will discuss something that might have happened. They talk together and they have the advantage of a replay of an incident from various angles so that they can actually see what happened, which does not happen in a court. But it is the referee who takes the decision, not the people who assist him in his decision.

In the court martial system, it is the panel that takes the decision on the sentence with the judge participating and advising. It is only if the board are equally divided that the judge has the casting vote. To take another example, in the magistrates’ court it is the decision of the magistrates, as advised by the clerk, who may or may not be legally qualified. The judge advocate is not a clerk advising; he is central to a trial. He controls the proceedings. He gives directions to the board and rulings, including dismissing the charges altogether, as happened in the 3 Para case in Colchester in 2005. There is an anomaly as well: if the defendant is a civilian subject to service discipline and thereby liable to court martial, the judge advocate sentences alone.

Of course, the panel could and should advise on any particular military facet of the case, but from my experience it should not be assumed that the members of the panel have any direct front-line operational experience comparable to that of the defendant before them. They might have, but there are many units and many roles in which modern British forces are involved. Very frequently, the officers on a court martial do not have anything like the same experience as the defendant and the pressures he has been under. On the other hand, the judge, who sits regularly as judge advocate in a military court, has considerable experience of the operational conditions from the cases that come before him.

Under the current system, an officer or warrant officer is summoned to be a member of the board, probably with no or limited experience of courts martial, save for the president. He might never have been near a court or a court martial, but he becomes a judge with very considerable powers. He will be given the responsibility of determining sentence in a difficult case. That is a power that has never been given to civilian juries in the history of the common law. But it can be only history which retains this unique power for the board in courts martial. Perhaps it is a throwback to when there were no civilian professional judges, but, as I said in opening in my remarks, we have advanced so far. The civilian judge advocate is so important to the system.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, in the light of the very full observations made by the noble Lord, Lord Thomas of Gresford, I want to add three observations. First, over the years the practice of sentencing has become much more complicated and difficult. From the early 1980s onward, the way in which you sentence in the criminal courts has been the subject of guidance from the Lord Chief Justice and the Court of Appeal Criminal Division. It was then followed by the Sentencing Advisory Panel and the Sentencing Guidelines Council. Now it is contained in very complicated and detailed documents drafted by the Sentencing Council.

16:30

Secondly, that means of determining sentence has meant that those who sit in the ordinary courts as lay magistrates have to undergo significant training, so that they are familiar with the detailed guidelines and know how to apply them.

My third point is simply that, in my experience of sitting on court martial appeals and knowing very well the Judge Advocates-General, I have always thought that they had an intimate knowledge of how the service system worked; that is the sole justification for keeping it separate. Therefore, you have a specialist judge familiar with the entirety of the operation of the Armed Forces, which makes things seem much fairer to all concerned—and these days one is concerned not merely with the defendant, but with the wider public perception that sentencing is carried out by a judge well capable of absorbing and dealing with the guidelines and who is intimately familiar with the service background to the case.

[Lord Lancaster of Kimbolton (Con)]

My Lords, I will contribute briefly. I will not say this every time, but of course I start by declaring my interests as a serving member of the Army Reserve. I support the government amendments; they seem a sensible measure, as my noble friend the Minister described them. While I understand the thrust of the intent of the noble Lord, Lord Thomas of Gresford, on Amendment 3, I want to air a brief concern about the potentially diminished role of the lay members.

With minor offences that come before the court martial, the intent is very much that we wish to keep service personnel in the service. Indeed, MCTC in Colchester is designed very much to do that. Only if you are sentenced to more than six months do you have to leave the service, I think. For many soldiers who have been through that centre, a common theme has been that they come out better soldiers; when I say soldiers, I also mean airmen and sailors.

What really worries me is that we used to have three single service Acts, which were merged under the Armed Forces Act some time ago, but the three single services remain very distinct. Under the Levene review, we have delegated responsibility, which was originally intended solely to be a financial delegation to the three single services but in reality has become a policy delegation. Despite an effort by the MoD to regain that under unified career management that means that, for members of the Armed Forces at the same point of their career, a certain sentence may have a disproportionate impact on them depending on which service they are in. Although any judge-advocate may well know the system well and be very experienced, I am not sure that they would necessarily have the detail of the single service to apply to their judgment.

I accept that it is quite possible, however unlikely at this time, that a senior warrant officer or officer on the court martial would not have front-line experience; I am willing to bet that almost all of them have, because of recent years in Iraq and Afghanistan. But I am willing to bet that there are not many judge-advocates who have front-line experience.

It is important that lay members continue to play an active role. I am concerned that, in what is proposed, we are moving away from the defendant being able to look lay members in the eye, knowing that their peers will play an active role—through first-hand experience and being able to compare their own careers with those before them—and be part of the sentencing process.

[Lord Tunnicliffe (Lab)]

My Lords, as we begin Committee on this important legislation, I stress to all sides that we must use this opportunity to improve the lives of, and protections and support for, personnel and their families through legislative change.

Her Majesty’s Opposition stand firmly behind our brave service personnel and their families, and we strongly believe that the law should be on their side. That is why we support the principles behind the Bill and welcome the steps to create a legal duty to implement the principles of the covenant and the key elements of the Lyons review. But we all know that there are many, both in and outside the House, who believe that the Government could and should go further. Therefore, I repeat that our main priority will be to work with other parties to improve the legislation.

Our forces communities are themselves determined that the Bill should not be a missed opportunity, so the amendments tabled by Her Majesty’s Opposition and those we are supporting, we believe, are designed in good faith to reflect the cause of personnel, their families and the organisations which represent them.

The first group of amendments, which focuses on Clause 2 and Schedule 1, concerns the constitution of the court martial and implements recommendations from the Lyons review. These include fixing the size of court martial boards at three or six, and a move to qualified majority verdicts instead of the simple majority systems currently used.

The Bill’s Select Committee stated that the

“use of the simple majority verdict had been criticised by some, including … Jeff Blackett, and Liberty, who proposed that unanimous verdicts be sought in the first instance.”

The Government have subsequently tabled Amendments 1, 2 and 4, which they say enable the court martial to remain validly constituted if a three-member board loses a lay member—for instance, due to illness or the need to isolate. The Minister has said that she is making a small adjustment to future-proof the system of three-member boards to allow for the appointment of a four-member board for longer cases.

Why are these amendments suddenly needed? How often does the Minister think that a four-member board will be appointed? What consultation process has there been for this change? Is there a large enough pool of board members to support this change? When she says that four-person boards are for longer cases, what type of cases does she mean? Will it be just about time, or some other characteristics of the case?

It was also helpful to hear the argument of the noble Lord, Lord Thomas of Gresford, behind Amendment 3; I look forward to hearing the Minister’s reply to these points. With that, and with a careful reading of Hansard, we will be considering our position on this amendment.

[Baroness Goldie (Con)]

First, I thank your Lordships for your contributions. I will start by responding to the noble Lord, Lord Tunnicliffe, who I think was principally concerned with the government amendments to which I spoke. Regarding the decision to introduce a flexibility to allow a three-member board to become a four-member board in order to keep operating, I cannot give him a list of statistics, but I can tell him that Covid brought into very sharp relief the potential fragility of the system if people sadly become infected with Covid or are required to isolate. That made it clear that we need to introduce some change to accommodate these extraordinary circumstances, which we may continue to encounter. None of us is clear when life as we once remember it may return, so I say to the noble Lord, Lord Tunnicliffe, that we regard this as a sensible introduction of a flexible measure to ensure, importantly, that justice continues to be done for victims and that they are not in the unenviable position of a case having to be dropped because the court martial is not properly constituted.

The noble Lord, Lord Tunnicliffe, inquires about what type of cases it is about and how often we expect a full-member board to sit. I suggest that the type of case is probably a matter for the court martial rules to determine. One would imagine that, in looking at the composition and constitution of a court martial, regard would be had to the type of offence being tried, the number of witnesses available and that an appropriate judgment would be made on that basis, but the court martial rules would be more specific about that aspect.

I turn to the amendment in the name of the noble Lord, Lord Thomas of Gresford, supported by the noble and learned Lord, Lord Thomas of Cwmgiedd—I hope he finds my pronunciation semi-acceptable; I was tutored by the noble Lord, Lord Thomas of Gresford, on how to deal with it. I think the points made are important. I detected a fundamental difference of opinion between me as a government Minister within the MoD and the noble and learned Lord and the noble Lord, Lord Thomas of Gresford, about the philosophical or essential character of what we are dealing with in the service justice system. I thought the noble Lord, Lord Lancaster, eloquently touched on that.

We have to remember that life for a service community and all those within it is very different from life for those of us in a civilian community. The noble Lord, Lord Thomas of Gresford, gave us an interesting analogy of the forthcoming rugby match between the All Blacks and Wales. The comparison that he attempted to draw was that the referee may consult the touch judges as to what has actually happened but the referee will ultimately make the decision. In response, I would say that the referee and the touch judges are not living in a close and mutually supportive community such as the Armed Forces community, where not only are they all living in close proximity to one another but in service they are mutually dependent on each other. The rugby players, the referee and the other officials are not dependent on each other for either disciplinary or operational effectiveness. There is a temptation to make that comparison but I do not find it completely analogous to what we are discussing within the Armed Forces.

The noble and learned Lord, Lord Thomas of Cwmgiedd, said that sentencing is complex, and I do not think anyone would dispute that. Training is needed, and in court martial appeals you have the expertise of the judges. I would respond by saying that we do have expertise; the judge advocate has expertise, and sentencing guidance is available to all on the panel. As I indicated in my preliminary remarks when addressing Amendment 3, there is a great body of expertise and information available. Where we differ is on a fundamental point, a point that noble Lord, Lord Lancaster, made well when he said that there has to be an understanding within the service community about how a punishment or a penalty is to be appropriate to what has happened. That is in the wider context of what the offence, transgression or omission actually meant to the broader community. As I pointed out in my speech, there is a world of difference between a supermarket worker turning up late and a marine engineer being late for a nuclear submarine that is just about to leave port.

The concern was raised by the noble Lord, Lord Thomas of Gresford, that in a civilian court you can adjourn for sentencing. The Judge Advocate General can also adjourn the court martial to consider sentencing if the panel needs time to get further information on the defendant, and pre-sentencing reports are used in the court martial system.

I have endeavoured to address the points raised. I have a note here saying that apparently the noble Lord, Lord Tunnicliffe, asked who we had consulted in the court martial. We consulted the Judge Advocate General, the Service Prosecuting Authority and the single services.

I submit that the government amendments proceed from a sensible and widely understood base and that Amendment 3, in the names of the noble Lord, Lord Thomas of Gresford, and the noble and learned Lord, Lord Thomas of Cwmgiedd, is well-intended but inappropriate for incorporation within the service justice system.

16:45

[Lord Thomas of Gresford (LD)]

My Lords, I admire the loyalty expressed by the noble Lord, Lord Lancaster, who is concerned about weakening the identity of the single service, and I understand it. It was an argument advanced in 2006, when the wholesale reform of the court martial system took place, bringing the three service justice systems together into one—something widely accepted at the time. I remember at that time proposing an amendment that the board should be drawn from the three services and not from one to deal with a particular defendant. After the rather heated debate, I met an air marshal, a field marshal and an admiral of the fleet in the corridor. I said that I hoped I had not upset them with the suggestion, whereupon one of them, who shall be nameless, said to me, “You should be shot”. So, at that time, the same sentiments were widely abroad and discussed.

The noble Lord, Lord Lancaster, said that the defendant should be able to look into the eyes of the jury and know that he is among people who understand him. There have been some very serious trials recently involving policemen. Should a policeman be looking into the eyes of a jury composed of senior policemen because they will understand the pressures that he is under? It is just not the British system to take particular people in the community, who may have loyalties one way or the other, and have them tried by their peers in that sense.

I welcome and understand what the noble Lord said, but I think we have gone beyond that. Indeed, the report by Sir Richard Henriques that we will be discussing later takes the matter even further, with the defence units that he proposes, and which the Government now propose, where any concept of different services is abandoned.

I return to my argument on the judge sentencing. I am very grateful to the noble and learned Lord, Lord Thomas of Cwmgiedd, for his support on that, and shall return to it when we get to Report, because it is an important matter of principle that should complete the considerable reform of the criminal justice service system that we are undertaking. I shall not move my amendment.

Amendment 1 agreed.

Amendment 2 agreed.

Amendment 3 not moved.

Amendment 4 agreed.

Schedule 1, as amended, agreed.

Clauses 3 to 6 agreed.

Clause 7: Concurrent jurisdiction

Amendment 5

Moved by

[Lord Thomas of Gresford]

5: Clause 7, page 4, line 27, at end insert—
“(4A) Guidance under subsection (3)(a) must provide that where offences of murder, manslaughter, domestic violence, child abuse, rape or sexual assault with penetration are alleged to have been committed in the United Kingdom, any charges brought against a person subject to service law shall normally be tried in a civil court unless, by reason of specific naval or military complexity involving the service, the Attorney General consents to trial by court martial.”Member’s explanatory statement
This amendment would ensure the most serious crimes – murder, manslaughter, domestic violence, child abuse, rape and sexual assault with penetration – are tried in civilian courts when committed in the UK unless the Attorney General has specifically consented for such crimes to be tried by court martial by reason of complexity involving the service.

[Lord Thomas of Gresford (LD)]

My Lords, prior to 2006, charges of murder, manslaughter and rape committed in the United Kingdom were tried in the ordinary courts, rather than by court martial, when a person subject to service discipline was involved. At that time, in 2006, the Labour Government gave concurrent jurisdiction to courts martial to try these matters. The Conservatives opposed the change, as did the Liberal Democrats. I suggested at the time that the purpose was merely to bolster the credibility of the new courts martial system, which was being totally reformed.

I am not aware of any murder or manslaughter case involving a person subject to service discipline that has been tried by court martial arising out of incidents in the United Kingdom, but rape and sexual offences are very different. A significant disparity in conviction rates in rape cases where courts martial have been employed was found by the statistics before Judge Lyons: 16% were convicted in a court martial, as opposed to 34% of defendants in the ordinary courts. That is an unacceptable disparity.

It was referred to in Sarah Atherton MP’s Defence Sub-Committee report published in July and entitled Protecting Those Who Protect Us. Paragraph 175 of that report, which is now only three or four months old, says:

“We do not believe that the problems highlighted by the Lyons Review in the handling of sexual offences in the Service Justice System have been fully resolved. While we accept there is a limited set of circumstances where it may be appropriate for the Service Justice System to be used for UK-based sexual offences (for example when there are offences both in the UK and overseas), this must require the Attorney General’s consent. There may be other compelling reasons, such as the young age and vulnerability of the victim, when it is more appropriate for the civilian justice system to hear these cases. In our view, the fact that a UK case may involve a victim and a perpetrator who are both Service personnel is not a sufficient reason for the Service Justice System to be used.”


Sarah Atherton’s report went on to call for the implementation of the very first recommendation of Judge Lyons’s review—he made a large number of recommendations—in which he said:

“It is … recommended that the Court Martial jurisdiction should no longer include murder, manslaughter and rape when these offences are committed in the UK, except when the consent of the Attorney General is given.”


The Atherton report also called for the implementation of the Lyons recommendations to place all domestic violence and child abuse cases in the civil jurisdiction when committed in the UK.

Why is that recommendation from Judge Lyons, repeated by the Defence Sub-Committee chaired by Sarah Atherton, a Conservative Member, resisted? The Government may now feel that reverting to the pre-2006 position may be seen as a vote of no confidence in the court martial system. I do not believe that to be so, and I do not think it a proper justification. In 2006 it was not seen by the Conservative Party to be a sufficient reason to support the Labour amendment of this historical common-law position that service personnel who commit offences in the United Kingdom will be tried in the ordinary courts.

It is a breach of the basic principles that a person subject to service law is still a citizen and that a British citizen has a right to be tried for serious offences by a randomly selected jury of 12 ordinary fellow citizens. That was a point strongly urged by the noble and learned Lord, Lord Thomas of Cwmgiedd, at Second Reading and in the extension of that in his amendment linked to this, which I fully support. I shall leave it to him to explain the purposes of that. I beg to move.

[Lord Thomas of Cwmgiedd (CB)]

I fully support the noble Lord, Lord Thomas of Gresford, on the first of these amendments but, before explaining my reasons, my primary purpose in tabling these amendments is to try to ensure the proper morale of Her Majesty’s Armed Forces and the standing in which they are held by the public. One has to bear in mind always that in the modern criminal justice system, where successive Governments have ensured that the victim or complainant —I will use the words interchangeably—is put at the heart of the system, that is taken fully into account. One can see this so often. For example, recently, the public look at the way in which the police investigate and they will look at the way in which people are tried. Are they being tried fairly and is there a proper balance?

It is important to realise that what I seek is, first, to achieve a much greater degree of certainty in relation to these matters and, secondly, to try to ensure that the Armed Forces are not subjected to yet more complaints about the nature of the justice system. It is evident from the report of Judge Shaun Lyons, a most distinguished Naval Judge Advocate—and a judge who is in charge of a major London criminal court—that there ought to be the change which the noble Lord, Lord Thomas of Gresford, has so carefully gone through. I fully support his amendment but, in view of the difficulties that arise, it is necessary to go a little further.

If I may explain, I want to deal with two issues, one of which, the position of crimes committed overseas, I regret to say the Minister was not happy about last time. However, there is a serious issue and I shall take a moment or two to refer in detail to the law on this subject. The other is in relation to crimes outside the ambit of the proposal to deal with sexual offences, murder and other serious offences.

It is right to begin by recording that, particularly in relation to the most terrible crimes that have occurred, one can go back a very long way. I have seen many of these crimes myself, although the first of them occurred one year after I was born. It concerned the involvement of a battalion of the Scots Guards in an event at a place called Batang Kali during the Malayan emergency. That case was not investigated properly at the time; it is now abundantly clear and there remained a residue, which went right down to the early 2000s, about the way in which it had been approached.

In more recent times, there were the cases involving Baha Mousa and others in Iraq. There was the Blackman case, to which I regret I will have to return, and there were the points raised by one newspaper last Sunday. From what I have seen in each case, regrettably, one has to be sanguine about the fact that such conduct may well occur again. We have to deal with it in a way that is fair and just, while maintaining the morale of the Armed Forces.

We shall turn to looking at investigation when we come to consider the report of Sir Richard Henriques but, on this amendment, we are concerned with jurisdiction. Who has jurisdiction to try a case? Jurisdiction is not like deciding whether you prosecute. It goes to the fundamental position of the court and, over the centuries, it has always been the position that Parliament controls the jurisdiction of the courts. As I mentioned at Second Reading, it is also a fundamental principle that for certain offences there is a right to trial by a jury of 12 people. It is very difficult to see any justification whatever for taking that right away from one of Her Majesty’s citizens. It is fundamental; one has only to read Lord Devlin’s classic work on the jury to realise how core this principle is to our justice system.

17:00

It is also important to bear in mind that in offences in the UK, which can be tried in either the magistrates’ court or the Crown Court, it is the right of a defendant to decide where he should be tried. Although successive Governments have tried, in the interests of efficiency, or this or that or whatever else, to take that fundamental right away, Parliament has always decided against it. Therefore, when we look at this question of jurisdiction, the rights of an individual and, equally importantly in this case, the reputation of Her Majesty’s Armed Forces, it is a matter that Parliament ought to decide. We should not leave it to a protocol that has no parliamentary supervision.

I have therefore put forward in the amendments in my name and signed by the noble Lord, Lord Thomas of Gresford, a series of factors that ought to be taken into account when one is dealing with cases other than those specified in the earlier amendment. I have specified some because I consider them of paramount importance. The first, obvious one is the right of the defendant, about which I have spoken. The second, these days, is the position of the victim and the third is the public interest. It seems to me very important that if, as must be the position, there is a choice of jurisdiction, this should not mean that for crimes committed in the UK it is left entirely to the prosecutors to draft their own protocol without parliamentary supervision and parliamentary accountability.

In the interests of the Armed Forces, it is essential to bear in mind that a decision made on this point, as it goes to the jurisdiction, will be susceptible to judicial review. If, in my view, the issues are left to be dealt with by a protocol not approved by Parliament, the considerations and factors that will be put forward by the two independent people who will draft this protocol with appropriate consultation will be much more susceptible to attack than they would be if Parliament had said, “These are the principles on which we must act”. It is quite inadvisable not to take every step by bearing in mind the right of judicial review.

I have therefore tried to set out a series of objective factors. It is a very first attempt and, if the Minister is interested, I would welcome discussing what we should have with those more familiar with the problems. But these all attempt to be objective factors. I fully agree with the noble Lord, Lord Lancaster, that there are areas where an understanding of the ethos or the technical complexities, or of the Armed Forces, is necessary. There is good reason in some cases to allow a member of the Armed Forces to be tried by a process denied to your Lordships before the First World War—being tried by their peers in the literal sense. We are all now tried by a jury of 12 randomly selected people. I see the force of the argument but these must be objective factors and they must, in my judgment, be approved by Parliament.

I turn now to the other point covered by the protocol: the position of serious crimes, particularly the crime of murder, committed overseas. There is no doubt whatever the ordinary civilian courts have jurisdiction over murder committed by a British citizen anywhere in the world.

The history of this interesting development of law is set out in the case of R v Page [1954] 1 QB 170, which traces the position from the reign of Henry VIII right through to the present time. It became clear in a decision in 1843 in Azzopardi, a case where a British subject had murdered a Dutch national in Smyrna, that that person could be tried in England. There must be a principled approach to this issue.

This point arose in Blackman. In that case, a decision was made by the DPP that Blackman would be tried by a court martial under a protocol made in September 2011. At the time he was indicted that was not challenged, but it was challenged in the first of the Blackman appeals—to give the Minister’s advisers the reference, that is [2014] EWCA Crim 1029. It is evident from that case, ex post facto, that trial before 12 ordinary British citizens was seen by the defendant—rightly or wrongly; that does not matter—as more advantageous to him. In the second Blackman case, the point did not arise. There was a real question whether Blackman should be tried, if there had been a retrial, by a jury of 12 people before an ordinary court.

This is therefore an open point. I simply fail to understand how it can conceivably be in anyone’s interests not to resolve this issue in Parliament. It might be right to sideline Parliament for certain things, but it is beyond my comprehension: why risk judicial review to a much greater extent? Why risk a dispute in relation to a member of the Armed Forces who killed someone overseas without having clear parliamentary scrutiny and approval of the principles?

If that has not persuaded the Minister, there is yet one further point, which relates to devolution. The Bill is carefully crafted—it obviously has to be—to allow for agreements to be made between the Director of Service Prosecutions and the chief prosecutors in the three criminal jurisdictions that make up the United Kingdom: England and Wales, Scotland, and Northern Ireland. I am greatly indebted to the noble and gallant Lord, Lord Craig of Radley, for this point: it cannot be right to see the risk that there might be inconsistencies in the way the prosecutor in one jurisdiction approaches the matter from the prosecutors of a different jurisdiction. The only way of solving this problem is for Parliament to approve the principles set out. That is why there is an elaborate proposed new clause—I am greatly indebted to parliamentary counsel for their advice as to how I should frame it—which provides for parliamentary approval.

I have taken those reasons at some length; they are issues that were of great concern over the past 10 years when I was a judge. A number of cases came before the courts in which the reputation of the Armed Forces was at stake. I do not think anyone present during the appeals in Blackman could have appreciated the very considerable public concern that had arisen. I do not for a moment have anything but the greatest admiration for the way the Judge Advocate-General, Judge Blackett, tried that case, but that is not the point. The point is the standing of the Armed Forces. I see no downside whatever to Parliament approving these matters to settle them. It will safeguard the Armed Forces and everyone.

[Lord Craig of Radley (CB)]

My Lords, I shall speak to my contention that Clause 7 should not stand part. It is a probing amendment. First, may I say that I agree wholeheartedly with the Minister’s opening remarks about the differences between members of the Armed Forces and others? This always needs to be foremost in our deliberations on disciplinary matters. Indeed, I stressed this point when the House was considering the Human Rights Bill in 1998.

At Second Reading, I expressed particular concern that the effect of this new clause would be to make a vital part of disciplinary procedures for the Armed Forces subject to devolved treatment, as the noble and learned Lord, Lord Thomas of Cwmgiedd, has mentioned. The Armed Forces are a national, United Kingdom force. Any devolution of their oversight or control from central government does not make sense.

I further expressed concern about the protocol which this clause alludes to but is silent on what it should say in detail. Other noble Lords have been suggesting what should be included. Clause 7 suggests that protocols are to be agreed in the three legal jurisdictions between the Director of Service Prosecutions and, as we have heard, the equivalent civilian prosecutors in England, Wales, Scotland and Northern Ireland. Will they be identical? Certainly, the Director of Service Prosecutions cannot ensure that. He is expected to deal with three separate individuals, all of whom have the right to the final word. One way to finesse these two points might be for the Director of Service Prosecutions, guided by an agreed protocol, to be given the final word.

New Section 320A(7) requires the Secretary of State and others to be consulted but it is not clear that even the Secretary of State could reject the proposed protocol. Surely the Bill should be much clearer than at present about these possibly different protocols. It may be argued that any divergence of view would, in practice, be unlikely to arise and “common sense” would prevail. However, this is far from ensuring no divergences. I pointed out at Second Reading that there is no guarantee of how the three civilian prosecutors would view handing serious criminal military cases about which there is already a wide divergence of view, as amendments before this Committee make clear.

Finally, while the pressures to move service justice under separate independent scrutiny and handling have steadily increased following the major disciplinary changes of the 2006 Act, the impact of excessive delays in civilian courts should not be overlooked. As the NAO recently reported:

“The backlog of cases in the criminal courts is likely to be a pervasive issue for several years”.


Surely, swifter justice in a court martial—there are only about 400 on average every year and very few are in the serious category—might be welcome to the accused and to any victim of the crime.

To quote Gladstone:

“Justice delayed is justice denied.”


What is fair about adding long, excessive delay to court proceedings for the accused service individual? The service interest may also be damaged if an accused is acquitted, having spent months or years away from their post awaiting trial. Is there not a case for the accused to be allowed to elect for court martial trial if that were significantly to speed up the process?

The integrity of the court martial system remains essential to the Armed Forces. It may at any time be deployed globally; it should not be diminished. I fear the judgment of noble and learned opinion favours more use of civilian courts.

17:15

[Lord Morris of Aberavon (Lab)]

My Lords, the two proposals before the Committee in this group have the same aim: so far as serious crime is concerned, to make the procedures similar to those in our criminal courts. The first amendment was moved by the noble Lord, Lord Thomas of Gresford, supported by two other members of the Committee. We are indebted to him for his historical analysis, and to the noble and learned Lord, Lord Thomas of Cwmgiedd, for his unrivalled experience, which will be of great assistance to the Committee. The second proposal is the new clause tabled under my name and that of the noble and learned Lord; I am grateful for the support I have received.

My proposed new clause does not go so far as Amendment 5, but imposes a duty on the Secretary of State to commission a panel to review the courts martial and, in particular, to consider bringing courts martial into line with specific Crown Court procedures. I would be content if either amendment or my proposed new clause were accepted. On reflection, I find the mandatory terms in Amendment 5 very attractive.

I first raised my concern about the court martial system for serious offences as far back as 2016. The Ministry of Defence moved with unaccustomed speed to set up an independent inquiry led by ex-Judge Advocate Shaun Lyons. We are indebted to it, and to Ministers, for their speedy action. It was the case of Sergeant Blackman, already mentioned by the noble and learned Lord, that aroused my interest; many in the Committee will recall the case. My experience of courts martial is limited. I was a young officer newly arrived in BAOR, and it became known to alleged wrongdoers that there was a barrister in their ranks. To my adjutant’s dismay, there were other priorities, with the South Wales Borderers preparing to go to Malaysia. Little did my potential clients know how wet behind the ears I was, not having yet done a pupillage. Apart from a few courts martial then, I had nothing to do with the system when I returned to a lifetime of criminal practice. Since then, I have kept an interest in well-published cases, both as a Defence Minister and as Attorney-General. When I put in place a protocol for various prosecuting authorities, including the military, involving the supervision of the Attorney-General, I was in fact not troubled by the military.

My proposals are not concerned with the courts martial that deal with minor offences; they concern only some of the most serious offences. However, a verdict of 2:1 in any case does not fit particularly well the standards and needs of the 21st century. I propose that serious consideration be given to bringing courts martial that are trying specified serious crimes into line with ordinary criminal procedures. I do so for the following reasons. First, our Armed Forces—I am proud to have served in them—are today much less separate from ordinary civilian life than in the past; indeed, some civilians are tried by court martial. Secondly, our forces are mostly based in the United Kingdom and live in, or close to, civic communities. They are not the press-ganged sailors and soldiers of bygone centuries.

Thirdly, trials of serious cases are comparatively rare. Perhaps the Minister can remind us how many murder, manslaughter or rape cases we had in the last year. I think we are all concerned with the rate of conviction in rape cases, as the noble Lord, Lord Thomas of Gresford, mentioned. Such trials should be presided over by experienced judges who try such cases day in, day out. Even then, only a minority of the circuit judges are licensed to try cases such as murder or rape. Although I was a Crown Court recorder for many years, with the powers of a circuit judge, I would not be given such responsibility. Those who are licensed to try such cases are very experienced. I know that sometimes, maybe fairly regularly, Judge Advocates sit in our criminal courts, but that does not mean they are licensed to try such cases.

Fourthly, there are now well-hallowed procedures in our criminal courts for trial and the taking of verdicts. I confess that I had my doubts when the proposal for majority verdicts was first put forward, but long experience at the criminal Bar has proved beyond doubt that the procedures are both just and efficient to render justice without undue delay. In such cases, the judge should be nominated by the Lord Chief Justice and the jury should comprise 12 jurors. Soldiers, sailors and airmen should have the same rights as ordinary citizens. The number 12 was hallowed by the eminent jurist Coke many centuries ago.

When a criminal jury now retires to consider its verdict, the judge gives a direction that it should seek unanimity. It is then given considerable time to achieve this. Only when sufficient time has elapsed and there appears to be no prospect of reaching such a verdict is the procedure put in place whereby a verdict by fewer than 12 of its number can be accepted. It is told again to try to achieve unanimity, and only then, when it fails, is a verdict by at least 10 of its number acceptable. The numbers required for a majority verdict speak for themselves; it is the overwhelming majority. When the verdict is delivered, the numbers are announced publicly in court—quite different from a court martial.

The Minister has sought to justify a 2:1 verdict as arising only in minor offences, but such a verdict can have serious consequences for the individual. I have my doubts about a practice in courts martial that I am told of, whereby the most junior member of a court martial is expected to announce his decision first, and so on in the military hierarchy. If I am right—I may be wrong—it could be quite intimidating, in particular for a junior member sitting for his first court martial.

If our proposals are not accepted today, I hope the ground has been laid for the inevitable reform next time the legalising of our Armed Forces by Act of Parliament is considered. Every soldier, sailor and airman should have the same right as an ordinary citizen of a trial by a jury numbering 12.

[Lord Coaker (Lab)]

My Lords, I start my first contribution in Committee by thanking the Minister and her officials for the courteous briefing and the informed and courteous way in which she has conducted the Committee and this work. It is extremely helpful to us all, so it is worth publicly thanking the Minister for that and for the way she has tried to engage with us.

I had a great speech written—well, I do not know if it was a great speech, but I had one written—in support of Amendment 5. However, one of the important things that the Minister does is to try to respond to the debate, and I want to pick up on what I think have been some brilliant contributions to this discussion. We all support a covenant. We all support the Armed Forces Bill and what is in it. We all believe that this is a step forward, we are all pleased that the Government are putting a legal duty on local authorities to do this, and so on. We all agree with the Bill so the discussions taking place here are about how we can make it even better, and to get the Government to clarify some of their thoughts and put their intentions on record for people to read.

I was particularly moved—I say this with trepidation because I am neither a lawyer nor a military person, but I think it is important in these debates to speak from where the public would come from—by what the noble and learned Lord, Lord Thomas of Cwmgiedd, said: this element of the Bill, on how the military deals with sexual offences and some of the most serious crimes, goes to the heart of the confidence that the public have, or do not have, in the Armed Forces. You can see that as an analogy with the police at present; I come from a police family so I understand that issue. Surely that is the point that the Bill is getting at.

I know the Minister will point to the reforms that are going to be made, the welcome introduction of the tri-service serious crimes unit and so on, but we all agree that some of the things that we read about—and I intend to quote some because it is important to put some of the statistics before the Committee—are truly shocking. We saw a particularly horrendous example in our papers at the weekend. I know that the vast majority of the military, whether they be privates, sergeants, officers, Royal Navy, airmen or soldiers, want this dealt with as well.

The challenge for us in the Committee is how the system that we set up will best reassure the public that these matters are being dealt with—how it will help with the reputation of the Armed Forces but also allow service men and women to get the justice that they too deserve. That is the purpose of Amendment 5, which I put my name to and was moved so ably by the noble Lord, Lord Thomas of Gresford.

If it is not to be done in the civilian courts, which is what the amendment is pushing for, how will we know—and how will the public be reassured—about some of the things that they are reading about, where terrible, unacceptable sexual crime, rape and murder take place and have no consequence, or where people do not believe that the system works and therefore do not come forward? That is the challenge. As noble Lords have said, the amendment is all about jurisdiction. What jurisdiction would best deal with these offences in the way that I have outlined?

It is not just me. Judge Shaun Lyons and Sir Jon Murphy recommended that the most serious crimes should be removed from the military justice system; the recent report by the Defence Select Committee recommended the same; and Johnny Mercer MP, who was a Defence Minister, has now said he believes that should happen. These are serious bodies of opinion supporting the amendment of the noble Lord, Lord Thomas, as well as other issues that have been raised.

I know much of this will come forward when we talk about the tri-service serious crimes unit, but I want to put on record the recent Times article that I was particularly struck by, which said:

“Complaints of rape and sexual assault made by girls under 18 in the military have risen tenfold since 2015, Ministry of Defence figures reveal.”


That is shocking—and it is from the MoD’s own figures, unless the Minister says that the Times has got it wrong. The article says that

“girls under 18 in the armed forces have made 41 complaints of rape and sexual assault to the military police since 2015 … equivalent to one report for every 40 girls. This makes girls in the armed forces more than twice as likely as their civilian counterparts to report a rape or sexual assault to police.”

The amendment is intended only to pose the question, given the statistics being reported, of whether a change to the jurisdiction would, first, give more confidence to people to come forward; and, secondly, give more confidence to the public, because such horrific incidents and cases, which we all abhor, are best dealt with by the civilian courts.

17:30

I completely changed what I was going to say because I was moved by what was said. In Committee, we go into the detail that at Second Reading, Third Reading and, sometimes, on Report we do not. That is the purpose of Committee: to scrutinise the Bill line by line, but also to respond to what noble Lords have said and think about how that relates to the Bill. We all want to ensure that justice works in the military, whether through the service justice system or through the civilian courts.

I finish with this point. The Henriques report, which we shall come to, suggested, unless I misrepresent it, that because prosecution rates for rape and some other serious crimes were poor in the civilian court system—the criminal justice system—that was a reason for keeping them in the military justice system. I think that is a very poor argument. Whether in the service justice system or the criminal justice system, we are all appalled by low levels of prosecution, but we are here debating a matter of principle: where best is justice served; where best is the public reputation kept or, in some circumstances, restored; and how do we ensure that confidence is there not only for the public but for service men and women to feel confident that if they come forward, they will be listened to and get a proper response to the accusations made? Amendment 5 suggests that, for serious crimes, that may well be in the civilian court, not within the service justice system.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I beg the Committee’s indulgence. This is my first time back in this Room, and I am afraid I got my body language wrong. I was hoping to come in before the noble Lord, Lord Coaker. Perhaps I may briefly speak in support of Amendment 5. The noble Lord, Lord Thomas, and the noble and learned Lord, Lord Thomas, as you would expect from legal people, were very carefully balanced, but I shall speak unashamedly in favour of the victims. The noble Lord, Lord Coaker, referred to the Times report about under-18s to which I was going to refer. I shall refer to another Times report from April, when 4,000 servicewomen and veterans came forward to speak about their concerns.

We know that there is a problem with prosecution of the crimes of rape, sexual assault and domestic violence in all areas, but it is obvious where we want to invest our effort. If we do so in the civilian courts, that is where the real speciality and ability will lie. I and others have framed this as an issue of violence against women and girls, but it is also worth thinking about male victims of domestic violence, rape and sexual assault, and how difficult it may be for them in that context.

This will be my only intervention in Committee. Your Lordships’ House is not taking recess for the COP 26 climate talks, although we recently took recess for the party conferences, which happen twice a year. I apologise that I will not be able to take a full part, but I hope to come back on Report.

Finally, there was a great deal of discussion of this at Second Reading, and I was expecting more discussion of Amendment 5 today, because this is something that we really need to see change and progress on.

[Baroness Goldie (Con)]

First, I want to thank your Lordships for what has been a profound and stimulating discussion. I am conscious that much of the debate has centred on fairly technical legal issues, not least in particular reference to the criminal legal system, both for civilian and service justice systems. I shall do my best to address the issues raised.

By way of preface, in response to points notably made by the noble Lord, Lord Coaker, and the noble Lord, Lord Thomas of Gresford, and echoed by the noble and learned Lord, Lord Thomas of Cwmgiedd, we all want a service justice system that is fit for purpose. I think we are all absolutely united in seeking that objective, and that is exactly what the Bill aims to achieve. That offers me the opportunity to say to your Lordships that much had to move at pace, involving a considerable volume of material. I apologise for that, as I know that you have all been deluged, first with the publication of the Henriques report and then the tabling of government amendments to create the defence serious crime unit.

While I think that these are regarded as very positive developments, I understand that it has put pressure on everybody to try properly to assimilate and understand the report and amendments. I took the view that the amendments did not make a lot of sense without the report, and I had to navigate my way through a fairly tangled jungle of clearances to make sure that we could get both things out into the public domain. I felt that it was important that we did that; it seemed to me that the amendments the Government were then able to table to the Bill in respect of the defence serious crime unit provided reassurance and perhaps answered some of the questions raised today. I think that gives a clear signal of intent about the desire to ensure, as a number of noble Lords have observed this afternoon, that the criminal justice system is absolutely fit for purpose and as good as it can be.

I will now address the amendments in this group. I shall do that beginning with Amendment 5 and then move on to Amendment 6—and then I shall speak to the intention expressed by the noble and gallant Lord, Lord Craig of Radley, to oppose Clause 7. Finally, I shall speak to Amendment 7 in the name of the noble and learned Lord, Lord Morris of Aberavon.

The noble Lord, Lord Coaker, said that there has to be confidence in the justice system, and I totally agree with that. He rightly referred to recent statistics, which are deeply troubling—and I make no pretence about that. As he probably knows, there has been ongoing work in the MoD over the last decade to try to address cultures and behaviour, to provide people who have been treated wrongly—whether it is the victims of unacceptable behaviour or of a criminal offence—with the confidence to come forward, and to try to reassure those within our Armed Forces, not least our women, that this is a good and safe place to be. That has been a Herculean struggle; it has been a huge challenge, and I am not going to pretend otherwise. What I can say is that there has been systematic progress of very good work.

The noble Lord, Lord Coaker, referred to the Commons Select Committee report, in which the MoD very readily engaged—and the Secretary of State took the courageous and absolutely correct decision to allow serving women to appear as witnesses before the committee. I thought he was absolutely right to do that, as it is the only way in which we can get evidence out into the open. Very troubling evidence was heard, and some of it was utterly appalling. What I drew comfort from was that, to the end, a very high percentage of the women who gave evidence said that they would recommend a career in the Armed Forces to other women. I felt encouraged by that. There was recognition that, while unacceptable practices and attitudes have existed in the past, there is a discernible recognition that the direction has changed.

In relation to the stats to which the noble Lord, Lord Coaker, referred, they are troubling, but they do tell us that people are now coming forward. One problem that we had was that people would not come forward; they did not have the confidence to do that—and that to me strikes at the very heart of the probity and integrity of, and the confidence that people should rightly have in, the system.

We have been and are reforming the service complaints system. A huge amount of work has been done among the single services to that end.

[Baroness Brinton (LD) [V]]

I seem to have lost the sound.

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

My Lords, it might help if everybody knew that the noble Baroness, Lady Brinton, who is intending to participate remotely in the next group, has just arrived. There is possibly a little technical adjustment to be made so that she does not find herself inadvertently speaking in the wrong debate.

[Baroness Goldie (Con)]

I shall leave that to those who are much more technically gifted than I am to resolve.

I say to the Committee that I absolutely hear the concerns expressed and am not giving some cosmetic response to them. These concerns are being addressed, and in many respects have been addressed. I hope that we are going to see that a much healthier climate exists within the Armed Forces.

I turn specifically to Amendment 5, which seeks to ensure that the most serious crimes as listed in the amendment are tried in the civilian courts when committed by a service person in the UK, unless, by reason of specific naval or military complexity involving the service, the Attorney-General has specifically consented for such crimes to be tried at court martial. I realise that there is much interest in the Government’s decision not to follow recommendation 1 in the Service Justice System Review. While we accept the need to improve the decision-making processes in relation to concurrent jurisdiction, we do not believe that the introduction of an Attorney-General consent function is the best way to achieve it.

By way of background, I would like to be clear that the primary reason the service justice system was established was, as we discussed earlier today, to support operational effectiveness and maintain the service discipline of our Armed Forces. The recently published review by Sir Richard Henriques and the service justice system review by His Honour Shaun Lyons were unanimous in accepting that premise; they strongly supported the continued existence of the service justice system. The noble and learned Lord, Lord Thomas of Cwmgiedd, referred to the importance of public confidence in that system. I entirely agree: it is vital that the public and victims, and service personnel, have confidence that this system can act adequately in respect of what it is asked to do.

Sir Richard Henriques stated in his review, published just last week, that he agreed with the Government’s decision to retain unqualified concurrent jurisdiction for murder, manslaughter and rape. Sir Richard, a retired High Court judge, found the service justice system to be fair, robust and capable of dealing with all offending. This endorsement of capability echoes the conclusion of the process audit conducted as part of the Lyons review, which previously found that the service police have the necessary training, skills and experience to investigate any crime. The service police, prosecutors and judiciary are trained, skilled and experienced, while independent prosecutors can be trusted to make appropriate decisions on jurisdiction.

I think it was the noble Lord, Lord Thomas of Gresford, who raised the issue of statistics on conviction rates. It is not possible to draw a meaningful statistical or data comparison between the service justice system and the civilian system, because the small database in the service justice system means that variances have a disproportionate effect, which I think everyone can understand. That can lead, frankly, to false conclusions.

We are confident that the service justice system provides an effective and fair system of justice for our Armed Forces. What we recognise, as in the very point raised by the noble and learned Lord, Lord Thomas of Cwmgiedd, is the public confidence issue and that it can be maintained only if the service justice system not only has but can be shown to have the capability to deal with all offending fairly, efficiently and in a manner which respects and upholds the needs of victims. That is why we continue to implement the recommendations of the Service Justice System Review, some of which are measures in the Bill. This will ensure that the service justice system is more effective and efficient and provides a better service to those who use it.

17:45

The independent review by Sir Richard Henriques also considered how processes can be strengthened going forward. The report contains a total of 64 recommendations, approximately a third of which are focused on taking forward the establishment of a defence serious crime unit, as originally recommended in the Lyons review. This will deliver better outcomes for service justice while maintaining operational effectiveness. We have prioritised a number of recommendations for inclusion in this Bill as government amendments, namely those concerned with the defence serious crime unit and the creation of a new provost marshal for serious crime.

To build on these developments, we have committed to publishing a defence-wide strategy for dealing with rape and serious sexual offences in the service justice system. The strategy will aim to reduce the prevalence and impact of rape and other serious sexual offending in the Armed Forces, and to improve the handling of those cases in the service justice system.

Aside from these steps to increase capability, at the heart of recommendation 1 is the desire to ensure that serious offences are dealt with in the most appropriate jurisdiction. It is about good decision-making as to where concurrent jurisdiction exists. Although the Government accept that decision-making can be improved, we do not agree that an Attorney-General consent function is the best way to achieve this. I will try to address this point.

Amendment 5 seeks to introduce what I might describe as a novel form of Attorney-General consent that focuses on where a case should be dealt with rather than whether it should be prosecuted at all. This difference is key, as the timing of the consent is critical to whether it would assist or hinder decision-making. It would be impractical to request such consent during the investigation process, as the facts of the case may not be immediately apparent; and requesting consent at this stage would not only interrupt the critical “golden hour” of evidence collection but ask the impossible of the Attorney-General.

To give a practical example, the Attorney-General is unlikely to be able to make an informed decision on the correct jurisdiction for an alleged rape case that took place in a barracks because he receives a telephone call in the early hours of the morning. It would be unreasonable to expect him to do that. For him to make an informed, meaningful and final decision, the request for consent must come at the point of charge on completion of the investigation. By that time, key decisions on jurisdiction will already have been taken by the service police and prosecutors, or civilian police and prosecutors, to progress the investigation as efficiently as possible.

These decisions are already guided by protocols agreed between the two systems. If they are well-designed, as proposed in the Bill, then Attorney-General consent adds little to the quality of decision-making. Conversely, if the Attorney-General were to disagree with the view of the service and civilian prosecutors that the case should be tried in the service justice system, that could lead to delay. It might even lead to the possibility of a case not being tried in either system. There is no simple way of transferring cases at a later stage from the service to the civilian system. The case would need to return to the civilian police to reinvestigate. The passage of time might even make prosecution non-viable. That cannot be the right outcome for anyone, not least the victims.

For these reasons, the Government have instead opted to take a more pragmatic approach. Clause 7 ensures that decisions on jurisdiction are left to the independent service justice and UK civilian prosecutors, using guidance they have agreed between themselves. Once in place, this new statutory guidance will be used to revise existing protocols between the service and civilian police to bring much-needed clarity, at all levels, on how decisions on jurisdiction are made.

In this way, decision-making on jurisdiction will be improved as service and civilian authorities will make key decisions together as early as possible, with the civilian authorities always having the final say. I know that that it is a matter of concern for the noble and gallant Lord, Lord Craig of Radley; I shall come to that when I address his contribution. This will provide a greater safeguard to ensure that cases are dealt with in the most appropriate jurisdiction than an Attorney-General consent function could achieve.

An important point to highlight about Clause 7 is that the protocol is agreed between service and civilian prosecutors. Both the Director of Service Prosecutions and the Director of Public Prosecutions in England and Wales are superintended by the Attorney-General. We can expect the Attorney-General to take an interest in both the drafting and operation of the protocol in a superintendence capacity. It is true that this will not involve the Attorney-General in day-to-day prosecution decision-making in the way a consent function would, but the Attorney-General will still have a role to play. This pragmatic approach will ensure that decision-making is taken at the right level by those with access to the most up-to-date information, and in a manner that respects and upholds the needs of victims. I hope that explanation provides your Lordships with an assurance that sufficient consultation will take place. I therefore urge the noble Lord to withdraw Amendment 5.

Moving on to Amendment 6, there may be something of an echo of what I have already said, and perhaps an introduction of some material that might be relevant to Amendment 5, but I hope noble Lords will bear with me. Amendment 6 sets out a number of factors that the Director of Public Prosecutions in England and Wales and the Director of Service Prosecutions must consider when they draft the guidance in the protocol on the general principles that will govern decisions on jurisdiction. These factors include what is described as “the ordinary right” of a person to trial by jury, the views of the complainant or victim and those of the defendant, the relevance to the trial of knowledge of specific naval or military complexity, and the intended location of the trial. The final factor in the amendment is the desirability of a uniform approach to the exercise of the jurisdiction as between prosecutions in the courts of England and Wales, Scotland and Northern Ireland.

The amendment has a fairly elaborate structure regarding laying a protocol before Parliament for approval, giving either House 40 days to pass a vote refusing to give that approval; if that does not happen, approval is deemed to have been given. If the protocol is agreed, the Secretary of State must publish it and lay it before Parliament. The noble and learned Lord, Lord Thomas of Cwmgiedd, spoke at length about the role of Parliament and why it should be involved. I just observe that there is no parliamentary process for civilian prosecutors to seek approval for the jurisdiction in which a case should be dealt with. There is also an argument to be posed about whether it is desirable that parliamentarians rightly get involved in the independent—and I think it has to be independent—discharge of their roles by prosecutors.

On the noble and learned Lord’s question about the rights of a defendant regarding where to be tried, defendants have a right concerning the venue of a trial but not the jurisdiction in which it should take place—for example, whether it should be dealt with in Scotland or Northern Ireland rather than in England and Wales.

Full jurisdictional concurrency for offences committed by service personnel in the UK has been a part of the service justice system since implementation of the Armed Forces Act 2006. Clause 7 of this Bill maintains that jurisdictional concurrency while bringing clarity on how decisions on jurisdiction are made. We believe that the creation of the guidance by way of a protocol is best left to the independent service justice and UK civilian prosecutors for England, Wales, Scotland and Northern Ireland. Clause 7 sets out that the protocols must all advance “fair and efficient justice” but does not seek to impose prescriptive conditions on how this can be achieved. It is, after all, the prosecutors who have the skills and experience in dealing with decisions on jurisdiction, and these should be taken based on guidance in the form of a protocol that they have agreed between them. Decisions in individual cases will then be based on the circumstances of each case, in accordance with the protocol.

If general principles for the guidance are put in the Bill, the protocol and subsequent decision-making process of prosecutors will obviously be fettered. There will also be a loss of flexibility in the long term should changes or updates be required to the guidance to reflect progress or developments such as changes to policy or operational deployments.

The amendment also sets out the desirability of a uniform approach to the exercise of the jurisdiction between prosecutions in the courts of England and Wales, Scotland and Northern Ireland. Again, we do not believe it necessary to set this out in statute, because the Director of Service Prosecutions will be very much aware of the need for a coherent approach across the UK. Obviously, there are significant differences between the criminal justice systems in each part of the UK, so a uniform approach will not always be either appropriate or realistic.

As I said earlier, the amendment states that the Secretary of State must lay a draft of the protocol before Parliament for agreement within a 40-day period and, if it is agreed, publish it and lay it before Parliament. I observe that the Delegated Powers and Regulatory Reform Committee published its report on the Bill on 18 October and did not recommend additional parliamentary scrutiny of the protocol. It has other observations to make, and we are of course listening with care to its concerns on these matters.

In addition to the statutory consultation set out in the Bill, I understand that there will also be a public consultation on the draft protocol, and our clause already requires the final version to be published. Although this is a matter for the prosecutors, the intention is to have the England and Wales protocol ready after Royal Assent of this Bill, with the other two protocols for Scotland and Northern Ireland to follow shortly thereafter.

I suggest that adding an additional step or stage of parliamentary scrutiny and approval to the proposed process is both burdensome and unnecessary. A public consultation will already have been carried out on the draft. It is the prosecutors who have the skills and experience in dealing with decisions on jurisdictions, which should be based on these skills and experiences using the protocol they have agreed. I hope your Lordships can see that the approach the Government are taking ensures that those with the right skills and experience are making the decisions within a framework that they have agreed. This will ensure that justice can be done fairly and efficiently in both civilian and service jurisdictions, and across the UK.

I move on to the notice of intention of the noble and gallant Lord, Lord Craig, to oppose Clause 7. As I said earlier, I detect that he is very supportive of the service justice system but apprehensive about what the practical impact of Clause 7 could be. I think he feels it could tip the balance, with more prosecutions going to the civilian system rather than staying within the service justice system. I wish to reassure him that there is no intention for a certain number of cases to be dealt with in one jurisdiction, or more in one than another. What matters is that cases are dealt with in the right jurisdiction, and that is what the protocol is all about achieving. Clause 7 tries to do that by enabling prosecutors to produce guidance on the best means to achieve this.

The noble and gallant Lord will also realise, from the recent government amendments tabled in my name with reference to the defence serious crime unit, that there really is a very concerted effort on the part of the MoD to ensure that the service justice system is absolutely standing on its own two feet, ready and able to cope with whatever it may be asked to deal with. With the earlier amendments suggesting that certain crimes might be dealt with in the civilian system, I felt an apprehension that the public’s perception might then be that the service justice system was not up to it or was a poor relation. I do not want that perception to arise, because I think it dangerous and completely misconceived, but I can see how it could arise.

The service justice system applies throughout the UK because defence is a reserved matter but, in contrast, criminal justice is devolved and there are three separate and different civilian criminal justice systems in the UK: in England and Wales, in Scotland and in Northern Ireland. Each system has its own different component parts; this includes the officeholders who have responsibility for prosecutions.

18:00

I hope that the noble and gallant Lord is reassured by what I am saying. We have every confidence in the service justice system. In organising a protocol about where a prosecution is to go—within the service justice system or the civilian system—we have provided for a really solid process of consultation that will result in meaningful protocols being published by the prosecuting authorities.

The principle of concurrent jurisdiction throughout the UK already exists; the Bill makes provision for the three separate protocols, each being clarified and put on a more formal basis, to maintain it. It is very likely that they will all be broadly along the same lines, but that is a decision for the prosecutors concerned. Progress is being made; we are developing them with the Director of Service Prosecutions, the Director of Public Prosecutions, the Director of Public Prosecutions for Northern Ireland and the Lord Advocate in Scotland. Due consideration has been given to ensuring consistency, while capturing the applicable differences between the civilian criminal system in England and Wales and that of Scotland and Northern Ireland.

The Bill includes matters that must be part of all three arrangements. As I said earlier, they must all advance fair and efficient justice and provide that, if there is disagreement between the service and civilian prosecutors, the civilian prosecutor will have the final say. Otherwise, the protocols must respect the differences in the systems across the United Kingdom. In view of the devolution of criminal justice, to me, speaking as a former lawyer from Scotland, it would be wholly wrong for a single protocol to be imposed on Scotland and Northern Ireland.

An important point to highlight is that the clause requires the independent prosecutors to consult extensively before agreeing to a protocol, so a breadth of views will be sought. The Government recognise that the current non-statutory protocols and agreements in relation to concurrent jurisdiction need improvement. I suggest to the noble and gallant Lord that removing Clause 7 would be a missed opportunity to provide greater certainty for victims on where their case will be handled, and to improve clarity for the police, prosecutors and others involved in the decision-making on concurrent jurisdiction of cases.

I have addressed this at some length because I wanted to reassure the noble and gallant Lord that I have heard his concerns. I hope that he understands that the intention behind Clause 7 is to do what we all want: to provide clarity for all relevant parties and support victims of crime when they need it most. I urge him to reconsider his intention to oppose Clause 7.

We now move to Amendment 7 in the name of the noble and learned Lord, Lord Morris of Aberavon, supported by the noble and learned Lord, Lord Thomas of Cwmgiedd. It seeks to place a duty on the Secretary of State for Defence to commission a panel to review the operation of the court martial. The panel would be required to consider whether court martial rules should be brought into line with those of the Crown Court for trials of murder, manslaughter, rape and other serious injury offences. That would include consideration of whether the judge in such cases should be nominated by the Lord Chief Justice of England and Wales. There is also a direction in the amendment about the panel considering whether cases should be heard by a jury of 12 persons, and whether that jury must deliver either a unanimous or a majority verdict.

The noble and learned Lord, Lord Morris of Aberavon, referred to the review of the service justice system by His Honour Shaun Lyons, who looked in detail at the constitution of the court martial and recommended changes, which we are implementing through measures in the Bill. I pay tribute to the noble and learned Lord for his efforts in producing that initial review from His Honour Shaun Lyons; that was a creditable achievement on his part. He will be aware that Shaun Lyons carefully considered the use of 12-member boards but determined that they would be burdensome administratively and disruptive to operational effectiveness; and that three and six-person boards would better enable the court martial to remain mobile, with the ability to function in widely disparate geographical areas where operations might be being conducted.

Shaun Lyons also recommended that if a unanimous decision could not be reached by the panel, the lay members should reach a verdict by qualified majority voting in the same way as civilian juries do in the Crown Court. That is a recommendation that we are implementing in the Bill.

The amendment sets out that there should be consideration of whether the judge in cases of murder, manslaughter, rape and other serious injury offences should be nominated by the Lord Chief Justice of England and Wales. The judiciary for the service courts are fully qualified to hear the most serious cases, and in fact support the civilian system by sitting as judges in the civilian Crown Court. The Judge Advocate-General, the senior judge responsible for the service courts, already has the power to ask the Lord Chief Justice for a High Court judge to be nominated to sit on a particular case. The judiciary for the service courts was considered by Shaun Lyons, who did not suggest any substantial changes. The one recommendation that he made regarding the judiciary was that the judge advocate be given the power to make a request for a circuit judge as well as a High Court judge, and we are implementing that recommendation in Clause 3.

The amendment also provides that the review carried out by the panel should consider that the number in a majority decision is made public, in a similar procedure to that of the Crown Court. Although His Honour Shaun Lyons recommended that we adopt six-member panels that would reach verdicts much like a civilian jury, he did not recommend that the number of votes in a majority decision be announced in public. The Court Martial Appeal Court has also ruled that in the current system the number of votes should not be announced. However, we will be considering what changes to procedure, if any, are appropriate when we amend the court martial rules to implement the Bill.

I hope that explains our approach and assures noble Lords that both the composition and the operation of the court martial system—

[Lord Morris of Aberavon (Lab)]

On the point about circuit judges being allowed to try these very serious offences, will they be of a similar calibre to those judges who are licensed to try rape and murder cases? Maybe the Minister will not be able to deal with this now, but perhaps she could later.

[Baroness Goldie (Con)]

The noble and learned Lord makes a good point. Obviously at the heart of this is making the service justice system as good as it can be. Clearly I cannot give a specific undertaking as to what criteria would be adopted in making such a selection, but I hear what he says and it will be given careful consideration. I cannot be more specific about that just now.

I was saying that I hope the noble and learned Lord is reassured that we have considered this matter in detail, having regard, as we have been discussing this afternoon, to the military and operational environment in which our armed services function. In these circumstances, I hope he will not press the amendment.

I omitted to answer a specific question posed by the noble and learned Lord about the most junior member of the court martial voting first. I am informed that the most junior member of the court martial does vote first.

[Lord Thomas of Cwmgiedd (CB)]

I want to ask about two matters. First, I raised the point about judicial review but I also raised the serious issue of concurrent jurisdiction relating to murder committed overseas, and I gave the references. I would be grateful if the Minister could reply. I would not expect her to do that now but I would be grateful if she could write and deal with these two rather important points.

[Baroness Goldie (Con)]

I certainly undertake to look at Hansard and endeavour to frame a response to the noble and learned Lord.

[Lord Thomas of Gresford (LD)]

I am grateful to the Minister for the very careful and thorough way she addressed these amendments. I feel that she slightly misrepresents the nature of Amendment 5. I am not suggesting that in every case the Attorney-General be woken up by the telephone in the middle of the night and come to a decision in her pyjamas. That is not quite what I have in mind, which is that serious offences such as murder, manslaughter and domestic violence should normally be tried in the civil court. There is no question of protocols: that is the normal way you go about it. But in the event that there is some very specific naval or military complexity involved—I had in mind, for example, the working of a gun in a tank that causes another person to be killed on Salisbury Plain—one could imagine that there might be a case for the authorities to say, “This has a bit of a military tang to it. Therefore, we will see whether the Attorney-General will agree, in this very unusual case, that a trial by court martial would be more appropriate, because the panel might be more used to that sort of thing.”

We are talking about murder, rape, manslaughter, domestic violence, and child abuse by serving soldiers or servicepeople in the United Kingdom. It is important that that should be realised. Normally they would be tried in the Crown Court by a jury in the ordinary way.

The noble Lord, Lord Coaker, the noble Baroness, Lady Bennett, and the noble and learned Lord, Lord Thomas of Cwmgiedd, raised the issue of confidence. That is what this is about: public confidence in the system of service courts. That is what is needed. I repeat what the noble Lord, Lord Coaker, said: people will not come forward. If you have a situation where servicepeople who complain of rape find that only 16% of the complaints result in convictions, that means that 84% of victims will have gone to the court, given their evidence and found that the defendant has been found not guilty of the offence against them. Does that give confidence, not just to the victim but to the family? They will leave the service; this is the sort of situation in which a person says, “I’m not going to stand for this. I’ve gone before a court martial; they don’t believe me.”

This is an extensive problem in the United States. Four or five years ago I gave evidence to a congressional committee in Washington on what the British system was because they were considering sexual assaults in the military over there. I was in the unlikely company of Senator Gillibrand of New York, a Democrat, and Senator Ted Cruz of Texas, who is known to have certain right-wing views. They were all on the same side. Nothing happened. President Biden has within the first six months of his Administration set up a commission to deal with sexual offences in the military. This is a very important point and it is very necessary that we deal with it properly.

The noble and learned Lord, Lord Thomas of Cwmgiedd, pointed out to the judicial review that took place in the Blackman case that our protocols for overseas jurisdiction have not worked. His proposal that parliamentary approval of any protocol should underpin that protocol is entirely correct, sensible, right and common sense, because it would prevent the bringing of judicial review against whoever is in charge—the Director of Service Prosecutions or the director of prosecutions in another jurisdiction—as the protocol would have parliamentary approval.

I support the noble and learned Lord in that. The fact that it does not exist at the moment is neither here nor there; what we are concerned about is having something that does not give rise to parades and demonstrations in Parliament Square, as happened in the Blackman case. That is an important point, and I am sure that the noble and learned Lord, Lord Thomas of Cwmgiedd, will pursue it.

18:15

I am grateful for the support from the noble and learned Lord, Lord Morris of Aberavon—I inform the Minister of another Welsh pronunciation. I was going to add that junior members speak first, as has always been known, and certain pressures are involved in that. He called for a jury of 12, although I strongly suspect that a Scotsman might say that juries of 15 are not so bad either. But with juries of 12 it has been shown—in the very little research that has been done into the question of how juries make their decisions, which was a long time ago—that issues are not overlooked and are thoroughly discussed. In that research, which tried the same case with juries of six, nine, 12 and 15, it was found that the jury of 12 was the best.

As I say, I am most grateful to the Minister for the care with which she has responded to these amendments. We shall return to them at a later stage. I beg leave to withdraw the amendment.

Amendment 5 withdrawn.

Amendment 6 not moved.

Clause 7 agreed.

Amendment 7 not moved.

Clause 8: Armed forces covenant

Amendment 8

Moved by

[Lord Coaker]

8: Clause 8, page 9, line 17, at end insert—
“(d) a relevant employment function,(e) a relevant pensions function,(f) a relevant compensation function,(g) a relevant social care function,(h) a relevant criminal justice function, or(i) a relevant immigration function.”

[Lord Coaker (Lab)]

We are getting used to various constituencies. I expect the Minister to come forward with Scottish towns for us to compare with Welsh ones.

This is another important group of amendments. I shall speak also to Amendments 10 to 13. I thank the noble Baroness, Lady Brinton, for signing up to the amendments in this group, which expand the definition of the covenant to include more policy areas. Oh, I think I can hear her speaking remotely. It is nice, because in the other place you get used to barracking, so it makes you feel a bit more at home.

We all believe that the Armed Forces covenant represents a binding moral commitment between government and service communities, guaranteeing them and their families the respect and fair treatment that their service has earned. Clause 8 places a duty on specified persons or bodies to have due regard to the principles of the covenant, if they are exercising a relevant housing, education or healthcare function. However, service charities are rightly concerned that the scope is too narrow, containing nothing specific on issues such as service accommodation, employment, pensions, compensation, social care, criminal justice and immigration. The service charities themselves have pointed out that this narrow focus could create a two-tier Armed Forces covenant.

The Government’s own press release announcing the Bill stated that it would

“ensure armed forces personnel, veterans and their families are not disadvantaged by their service when accessing key public services.”

It stated that it would

“embed the Armed Forces Covenant into law by introducing a legal duty for relevant UK public bodies to have due regard to the principles of the Covenant, a pledge to ensure the UK Armed Forces community is treated fairly.”

That is an excellent statement by the Government, but despite this promise there is a wide chorus of concern that Ministers have failed to follow that through. Help for Heroes said that

“by limiting the scope of the legislation to Healthcare, and some aspects of Housing and Education, rather than the full reach of the Covenant, many issues of vital concern to veterans … within the criminal justice system”

could be excluded. It added that:

“The absence of social care is a significant issue”.


The Army Families Federation said:

“This limited scope will address only a small proportion of the disadvantages that Army families face.”


The Royal British Legion called on the Government to extend the Bill to cover

“employment, pensions, compensation, social care, criminal justice, and immigration,”

and the Naval Families Federation said that it would

“welcome a widening of the scope to include all aspects of the Armed Forces Covenant.”

I have tabled the amendments in this group so that the Government are able to fulfil their own promises to service communities but also to take account of the very real concerns that so many military charities have raised. Amendments 8, 10, 11 and 12 do exactly what they say: they expand the scope of the covenant in the Bill to include employment, pensions, compensation, social care, criminal justice and immigration. It would be interesting to know why the Minister is opposed to that.

Amendment 13 is perhaps less explicit but has the same intention. It requires the Secretary of State to set out how powers in the Bill could be used to widen its scope to address all matters of potential disadvantage for service personnel under the Armed Forces covenant, again for employment, pensions, compensation, social care, criminal justice and immigration. I expect that the Minister will say that the Government have chosen the scope of the covenant duty carefully and in consultation with the Armed Forces community, and that they think that these issues will make the greatest improvements to family life. Indeed, they will make some difference. However, the Royal British Legion has said that the Government have not produced any statistical or other evidence for this position and that it is not aware of any specific consultation with the Armed Forces community which resulted in that conclusion. I would be interested in the Minister clarifying that point.

The near unanimous evidence submitted to the House of Commons Select Committee on the Bill showed that those working with the covenant on a day-to-day basis are clear that the policy scope is too limited and does not reflect the reality of the issues presented or their complexity and, indeed, interaction. Evidence from users of the Veterans’ Gateway, which is part funded by the MoD, shows that finance and pensions top the list of issues raised, and the Government themselves have publicly claimed employment to be the most critical issue affecting veterans’ life chances. The legislation must be wide enough to ensure that all areas of potential disadvantage are addressed and that the postcode lottery on veterans’ access to services is addressed. I will be interested in the Minister’s response.

I want to pick up on one other point related to Clause 8. The Delegated Powers Committee has called for regulations defining “relevant family member” to be subject to the affirmative resolution procedure. Can the Minister confirm or otherwise whether the Government intend to accept that recommendation? I beg to move.

[The Deputy Chairman of Committees (Lord Lexden) (Con)]

Does the noble Lord intend to move his amendment?

[Lord Coaker (Lab)]

I apologise—I thought I had. I beg to move.

[Baroness Brinton (LD) [V]]

My Lords, I first apologise for the technical glitch. This is the first week of new remote contributions to Grand Committee. It is such a shame that we always notice the problems rather than the vast majority of smooth remote contributions. I pay credit to all the staff involved in helping those of us who are disabled Peers and can attend only remotely at present.

I commend the Minister for the principles behind the Armed Forces covenant, which are an admirable start to providing that morally binding commitment to current and past service men and women. But frankly, as these amendments seek to point out, it is somewhat patchy at the moment on the services that current and former service men and women would be able to access. Why is one function included and another excluded, when the barriers to accessing services are exactly what the covenant is trying to resolve?

Amendments 8 and 10, to which I have added my name, would add a number of functions to the relevant functions listed under proposed new Sections 343AA and 343AB. Amendment 13, to which I have also added my name, addresses how the Bill can widen the scope to other forms of potential disadvantage for service personnel under the Armed Forces covenant, including employment, pensions, compensation, social care, criminal justice and immigration. The noble Lord, Lord Coaker, has addressed very ably why this is needed, so I want to focus briefly on access to social care as one illustration.

The covenant already recognises that health is a vital service, where serving personnel and veterans can face particular problems, but social care—whether for the serving person or veteran, or for a member of their immediate family—is not. While social care is commissioned by local authorities it can, due to the circumstances of the individual, often involve a number of bodies. Some are within central government, for example on disability benefits; some are public bodies, for example health and local authorities; but some are also private, such as for those who are given a personal budget and will purchase their personal care that way. It can be very difficult and messy to navigate if you are new to it or have had to move.

Let me give an example to illustrate this point. Serving families with a severely disabled child have found it extraordinarily difficult when moving from one posting to another to transfer their child’s essential social care support, without falling off the bureaucratic cliff and having to go through reassessments in their new area, then waiting for the reports from those assessments. No services were given at all, so all help was denied them until the end of this new process. The child’s needs had not changed; their serving parent had merely been posted elsewhere. To be clear, this is not just a bit of social support every now and then. Disabled children, like the one I am describing, may have severe epilepsy or be fed with a tube, or be on ventilators some or all of the time. The help of carers at home supports the unpaid parent carer, who is already on duty pretty well 24/7.

Shockingly, the consequences of not having that help mean that a child might even be taken into care and away from their parents, not because the parents cannot cope but because one of them has been posted elsewhere. Adding social care to the covenant would protect the family and prioritise the ways of continuing the help that they are getting, when the move has made the difficulties entirely apparent.

For service men and women, and veterans, the complexities about access to services if they have mental health problems can be just as acute. Too often, we think of mental health as solely the domain of the NHS and those specialist charities such as Combat Stress, which I have been working with. The reality is that severe mental health problems disproportionately affect access to every part of the individual’s life, including discrimination in employment, access to criminal justice and compensation, and even to pensions, as well as social care. If the principles of the Armed Forces covenant are to ensure the well-being and support for current and former Armed Forces personnel, surely it cannot be possible for certain parts of the public sector to ignore it.

18:30

Amendment 64 in my name is a probing amendment to ask the Secretary of State to commission a review of whether the Armed Forces covenant

“should be extended to cover civilians subject to service discipline who have been employed by the UK Armed Forces while on deployment.”

Over the last few months, we have seen the desperate scramble to get those civilians—mainly, but not only, interpreters—out of Afghanistan, as it became clear that anyone associated with our military would be at particular risk from the Taliban and other groups after we had left.

In discussions with members of our military past and present over the last few months, they are very clear that civilians who sat alongside them in their armoured vehicles and walked alongside them as they patrolled in villages and on roads were exposed to exactly the same duties, threats and consequences as the UK military they worked with and were paid by. Interpreters are a particular illustration of this point. Few of our Armed Forces spoke Pashto, let alone many of the other languages spoken in Afghanistan, and the ability to keep the peace and protect the lives of civilians, as well as our Armed Forces, was significantly enhanced by these people.

This has already been understood by the Government in their granting of leave to remain for those arriving under ARAP. This amendment seeks to ask the Minister whether this commitment can be recognised for those we have given leave to remain, in the same way as we have for their armed forces. Do we have a moral duty to provide that commitment to them under the Armed Forces covenant?

I add that I support my noble friend Lady Smith’s Amendment 65.

[Baroness Smith of Newnham (LD)]

My Lords, I will speak to my Amendment 65 and to Amendment 64. Like my noble friend Lady Brinton, I support the other amendments in this group brought by her and the noble Lord, Lord Coaker. They have given us clear arguments why those amendments are important, and I do not think they need to be rehearsed again.

On Amendment 64, my noble friend talked about people who have come here under ARAP. She and I raised this at Second Reading, and the Minister was kind enough to take some time to discuss it with me yesterday; I am grateful for that. There is clearly a question of scope in an Armed Forces Bill such as this. To suggest that we might extend the Armed Forces covenant to people who have not been service personnel with the British Army, Commonwealth or Gurkhas might raise some eyebrows. There were certainly some questions about that around tabling Amendment 64, which is why there is a specific bit of phrasing about extending the covenant

“to cover civilians subject to service discipline”.

My noble friend Lady Brinton asked whether we have a moral duty. The answer is surely that we have a moral duty to support in every possible way the people coming to the United Kingdom under ARAP. By definition, they are arriving here under ARAP because they worked as interpreters for our Armed Forces, with other allies or perhaps for the British Council. Those who worked for the British Council are vulnerable. It is easy to assume that it is simply interpreters putting their lives on the line, but those who were out teaching English now find that their lives are under threat. It is incredibly important that we look at them, not just at interpreters—although the situation with interpreters is very important. Why bring this amendment? Clearly, the ARAP scheme is in place and remains open, but those coming in under ARAP have worked closely with our Armed Forces and potentially put their lives on the line for the United Kingdom.

Surely we owe them a duty. Given that the Armed Forces covenant is supposed not to give advantage to service personnel and veterans but to ensure that they are not at a disadvantage, so there will be many issues facing people here under ARAP that are very similar to those faced by service personnel and veterans. I would like the Minister at least to explore what provisions we can make for people under ARAP, in particular to ensure that anybody arriving under ARAP can work from day one, because most people who come here under other Home Office arrangements seeking asylum are not permitted to work initially. That is very important.

My Amendment 65 is slightly different and perhaps should have been decoupled, because it relates to the duties put on local authorities and local health authorities. The Bill talks about having “due regard” and requesting local authorities to do certain things. At Second Reading, the Minister suggested that they have to have due regard, but there will not necessarily be financial provision for them to do so because they already have a duty to do certain things, so incorporating the Armed Forces covenant into law will not really make a difference. The way I phrased it may have sounded muddled, but I have been left muddled by the Government’s intention. If there is a purpose to putting the Armed Forces covenant into law, surely it is precisely to ensure that it makes a difference. If local authorities find that in paying “due regard”, now on a statutory basis, to the Armed Forces covenant they are required to engage in further expenditure, where will that money come from?

It is not possible within the scope of a Bill in the House of Lords to table a line saying, “Please give local authorities additional funds”, so we are not asking for that. We are asking for the Government to report on the financial implications of enshrining the Armed Forces covenant into law. If local authorities, housing associations and local health authorities incur financial consequences when engaging in their duties by supplying services such as social care, housing or health, we would then know that and it may at some suitable point be possible to bring forward relevant legislation. If no assessment is made, it is impossible to know the consequences.

The amendment is in a sense a probing amendment because we need to understand the real consequences of enshrining the Armed Forces covenant into law. If it is causing local authorities additional costs over which they have no say we should try to ensure that the finances are there to cover that.

[Lord Lancaster of Kimbolton (Con)]

My Lords, I shall speak briefly to this group. I have no fundamental objection in principle to extending the categories as proposed by the noble Lord, Lord Coaker. When I was the Minister responsible for this Bill five years ago there was great discussion of what the categories should be.

My concern—not an objection—is practical, which is perhaps the purpose of Committee. There has been some cynicism about the effectiveness of the Armed Forces covenant since we first created it, and its implementation has been patchy across the United Kingdom. Given how many local authorities are recovering from the pandemic and have been overwhelmed, I am slightly concerned that by adding all these categories now—the key word is “now”—we run the risk of overwhelming various bodies and simply adding to the cynicism that we have not managed to implement the Armed Forces covenant when they fail to implement it effectively.

My suggestion is a sensible one, though perhaps not for today, as to whether there should be an incremental addition to the categories that we put in the Armed Forces covenant. I am sure it cannot be beyond the ability of the Bill to attach dates for when categories are potentially added. I am not saying that we could necessarily sort that out today, but it may be a sensible compromise as we seek to slowly expand the Armed Forces covenant and make sure that we do not lose public consent to it being implemented effectively as we do so.

Equally, I have great sympathy with Amendment 64, having served in Afghanistan and worked closely with interpreters. There is no doubt that they were subjected to the same sorts of pressures and stresses that members of the Armed Forces were. Of course, having now crossed the line where we have rightly welcomed them into the UK, although it is a question of scope, and it may well be beyond the scope of the Armed Forces covenant to include them, I think the Government have a duty to explain how exactly, if they are not going to be included in the covenant, we will ensure their ongoing welfare.

[Viscount Brookeborough (CB)]

I must apologise for not being here at Second Reading when I was unable to come over from Northern Ireland. I declare an interest in that we are involved at my home with veterans and I am president of the Northern Ireland RFCA. Whereas it is different in England, we have not responsibility but more interaction with veterans themselves.

What worries us all is the “due regard” and how that is treated by our different and separate Administrations. I am not shining a light on Northern Ireland in particular nor asking the Minister to make any comments about Northern Ireland, where we have a special issue. However, this problem is seen as an issue by veterans. When we talk about the mental welfare of veterans, one of the biggest issues is who we are talking about. We have veterans who we know individually have mental welfare problems, but the big problem is the one that we do not know about: the vast number of veterans who have mental welfare issues but do not come forward. They do not do so for many reasons and we cannot go into them too much, but they include pride and the fact that they live with their families and do not want to admit the problem.

We know that the length of time between leaving service or being traumatised and presentation has gone down since Prince William and Prince Harry drew attention to it, from roughly 12 or 13 years to some six or seven, which is tremendous. However, the doubt as to how the covenant works and how it benefits our veterans inhibits a lot of them from coming forward. It is very difficult to admit that you have a problem and then be turned away due to a postcode lottery. Indeed, which Administration you live in can make it more difficult.

At the moment, I think the covenant is the beginning of a story and of a method by which we can support our veterans. It is not a done deal but a start. I therefore support the gist of the amendments because they would take us in the right direction, though I appreciate that some of the scope and the lack of teeth are only a start. We have to make sure that we can take it further and cover an increasing proportion of those people.

The statistics, which are roughly equivalent to American and Danish statistics and therefore correct, show that 6% or 7% of all service people—interestingly, this relates outside this business to police and other front-line services—suffer some form of mental illness, while 17% of those on operations do so. So there is a very large body of people out there, and we have to enable this commitment to the covenant and to our people to be extended.

18:45

We talk about central government not being committed—although this is not quite about that issue. I shall give noble Lords an example of something that really came home to me. As a Lord Lieutenant, I take citizenship ceremonies. Not long ago, a man took the oath and everything else, and I went to hand him his certificate, which is always a chance to have some words. I asked him what he did and what skills he brought to this country, just to have a nice chat, and he whispered—because he did not want other people to hear. I asked him where he came from and he said he came from the Caribbean. I said, “What do you do?” and he said, “I’m actually in the Army”. I said, “Oh, right—what have you done in the Army?” He said, “I’ve been to Afghanistan twice and I was in Iraq”. This man was being asked to go through the same hoop as somebody who comes to the country—and I am not being superior—who is running a Pizza Hut.

We do not have this general commitment, as individuals and administrators, let alone as it is in this Bill, which is open enough to give the commitment that the covenant promised to give. I plead with the Minister to ensure that, whatever comes with this, we allow it to be modified as we all learn more about how to be effective, especially in the mental welfare of our veterans.

[Baroness Goldie (Con)]

Once again, I thank noble Lords for a stimulating and interesting debate. I appreciate the contributions, to which I have listened with care.

To set a context for my response to the amendments, I would just observe that I clearly and firmly feel that the Bill, by including the reference to the covenant and imputing to it a statutory effect, is taking us a very significant step forward. I understand the frustration and impatience on the part of some that the pace is not moving more quickly and that the reach of the definition in Clause 8 is not being broadened. However, in that context, I shall try to address the points that have been raised, all of them very worthy; in no way would I wish to dismiss them.

The amendments tabled by the noble Lord, Lord Coaker, and the noble Baroness, Lady Brinton, would widen the scope of the new covenant duty to the areas of employment, pensions, compensation, social care, criminal justice and immigration. In considering how to take forward our commitment to further strengthen the covenant in law, which we have discharged in the Bill, we looked first at what the covenant has already achieved. The considerable number of successful initiatives across many different policy areas that we have seen through the Armed Forces covenant to date shows how the careful use of legislation could provide a firm basis and the flexibility for a much wider range of work to develop.

We bore this model in mind in the development of the new covenant duty to ensure it can provide a secure framework that allows scope for innovation, change and future growth. I agree with the noble Lord, Lord Coaker, that this is about our service personnel, our veterans and their families. In approaching this, we recognised that delivery of the functions relative to healthcare, education and housing in England, Scotland, Wales and Northern Ireland would benefit from what I might describe as a more uniform awareness of the covenant and perhaps a more universal application of the principles that underpin it.

This has been difficult to encompass, as I think your Lordships will understand, for obvious reasons. The first thing I want to do is to give thanks to the devolved Administrations. They have been co-operative and helpful. I simply explain to your Lordships that even progressing the statutory import with the three areas of healthcare, education and housing has not been straightforward. It has been complex. Your Lordships will understand why. We have a range of delivery mechanisms across the United Kingdom. We have different responsible elements. We have different responsible Governments. We are trying to increase awareness across the UK and achieve a more universal recognition of the principles of the covenant in delivering services.

The question was asked: why healthcare, education and housing? The new duty is designed initially to focus on these three core functions. That not only reflects those already in statute—where there has to be obligation —but also addresses the most commonly raised issues affecting the day-to-day lives of our Armed Forces community. I think it was the noble Lord, Lord Coaker, who asked how we know that. It is a perfectly legitimate question. There has not been a specific consultation on that but, as the noble Lord will be aware, the covenant now embraces the MoD and the Office for Veterans’ Affairs. There are our partnerships and discussions with charitable entities, not least the Royal British Legion. We also discuss regularly with families, federations, local government and devolved Administrations what the needs imposed by the covenant are. I can say to the noble Lord that there has been significant experience of dealing with issues coming through to the covenant team in the MoD and their subsequent discussions with the other parties to which I have referred.

The three entities, healthcare, housing and education, seemed to be the most prominent features in that work. That is why we have focused on them. Importantly, the Bill provides for further consideration of additional areas of concern and it grants the Government powers to make any changes as a consequence. In this way, the covenant duty can effectively adapt to the needs of the Armed Forces community in the future. Future areas of concern will be addressed as and when they arise through the powers in the Bill that allow the Government to widen the scope of the covenant duty, if needed, through secondary legislation. We are working with key stakeholders to establish an open and transparent process by which the scope of the legislation can successfully adapt to address the changing needs of the Armed Forces community.

We have to consider the practicalities of extending the covenant duty to further policy areas. My noble friend Lord Lancaster alluded to this. Indeed, to achieve the extension sought by this amendment would require the amendment to specify which functions would be relevant, in the way that we have defined a relevant health, housing and education function. The list of specified persons and bodies subject to the duty would also need to be amended to include the bodies which exercise the relevant functions envisaged by the amendment. That would require extensive consultation with stakeholders and the devolved Administrations to identify the appropriate bodies and functions to bring into scope.

I suggest that a perhaps wiser and better way forward at the moment lies in first working through and resolving any practical implications arising as the new covenant duty is implemented. That will give us a good indication of where amendments may be required to better meet the changing needs of our Armed Forces community in future.

The noble Baroness, Lady Brinton, and the noble Viscount, Lord Brookeborough, also raised the important issue of mental health, and were absolutely right to do so. I was asked for some detail. We are committed to enhancing health and well-being for veterans; I highlight the recent launch of Op Courage, which simplifies access to NHS England veteran services. That is among excellent work being done within the serving Armed Forces in relation to mental health, where there is far swifter and better recognition of persons who may need support and a much swifter reference point to direct those individuals to where they can get that support.

I return to the amendment. By retaining the flexible nature of the legislation, the Government hope to establish a firm legal foundation for the covenant while avoiding any unnecessary administrative burden. The new duty builds on the existing widespread commitment to the covenant, thereby contributing to a further strengthening of covenant delivery across the UK. I think that it was the noble Lord, Lord Coaker, who specifically asked about the Delegated Powers and Regulatory Reform Committee and its recommendations. I am seriously considering its report and will undertake to update the Committee on Report.

I have attempted to explain in relation to Amendments 8, 10 and 13 why the Government have a difficulty. I hope that my remarks have been received sympathetically and have not been regarded as obstructive, but I invite the noble Lord and the noble Baroness not to press their amendments.

Amendment 64 in the name of the noble Baroness, Lady Brinton, supported by the noble Baroness, Lady Smith, refers to civilians subject to service discipline; these are civilians who come within the jurisdiction of the service justice system and include groups such as families of service personnel living on bases overseas, Crown servants working with the Armed Forces overseas, or civilians on board military ships or aircraft. I understand that the amendment was actually intended to apply to locally employed staff in Afghanistan but I am required to address the amendment as scripted, although I will come to Afghanistan more specifically.

The Armed Forces covenant was designed with the Armed Forces past and present, and the families who support them, at its heart. That was in recognition of the unique obligations of and sacrifices that they make on behalf of the country in serving us. In practical terms, the covenant is focused on ensuring that the Armed Forces community gets a fair deal when accessing public goods and services in comparison with their civilian counterparts, with the aim of mitigating any disadvantage that they may face as a result of service life, and to allow special provision to be considered for those who have sacrificed the most.

The covenant is therefore directed primarily within the UK, and I do not think that it would be helpful or appropriate to include in its scope locally employed staff working for the United Kingdom Government, whether in Afghanistan or any other country. Those individuals are employed as civilians under their own bespoke terms and conditions of service within their own countries. However, importantly, the Government will take further action where necessary. In Afghanistan, we completed Operation Pitting, the biggest and fastest emergency evacuation in recent history, bringing around 15,000 people to safety in the UK and helping 36 other countries airlift their own nationals.

The whole UK Government are engaged, via Operation Warm Welcome, in ensuring that those Afghan nationals relocated to the UK are provided with the best possible support and start to life in the UK that we can give them. That comes from a variety of sources; it comes from across government departments and may involve the devolved Administrations or come from other public agencies. I say to the noble Baroness, Lady Smith, that it includes assisting these Afghan nationals into work. I am informed that some ARAP people are now working in the UK as we speak.

We have made it clear that our commitment to Afghanistan and those who supported our mission there continues. Our message to those people to whom we have made a commitment is clear: that commitment to you is enduring. However, the covenant is not the appropriate mechanism to accomplish that support and help.

19:00

I move to Amendment 65 in the name of the noble Baroness, Lady Smith, which would require the Government to report to Parliament on the impact of the new duty on the finances of local authorities and health providers. In the design of the covenant duty, the Government consulted extensively with devolved Administrations, local authorities and other local bodies in scope, including local government associations around the UK, to ensure proper consideration of the costs of the duty.

As I said earlier, the covenant duty is designed to raise awareness of the covenant principles and embed them into decision-making and policy-making processes, with the aim of improving the experience of the Armed Forces community at the delivery level. This new duty does not seek to compel or ordain the delivery agencies to do certain things; that would be inept and incompetent. It is about the serious matter of raising awareness, letting these important delivery agencies understand the circumstances of Armed Forces personnel and veterans, and making sure that they take these into account.

I say to the noble Baroness, Lady Smith, that as all local bodies in scope are already funded to deliver the relevant functions in housing, healthcare and education, we assess there to be no significant costs falling to those bodies in scope as a result of these proposals. They would still be responsible for delivering services to this cohort of individuals. We are saying that there is a new dimension through which they should look when they regard people in service or veterans. The key information about the Armed Forces covenant, which public bodies in the relevant policy areas will need to know to assist them to comply with their legal duties, will be set out in the statutory guidance that will be issued in support of the new duty and made freely available through training materials that we are currently working with stakeholders to produce.

The noble Baroness, Lady Smith, and the noble Viscount, Lord Brookeborough, raised the phrase “due regard”, which is in Clause 8 and has an extensive litany of obligations attached to it. “Due regard” means that an obligation falls on policymakers and deliverers of service. I argue that it is a legal obligation; in terms of law, it has an impact. The next question would be: how do you enforce that? I think the remedy would be a judicial review. My view is that a judicial review is never an attractive solution to anybody, for very obvious reasons—not least cost. The whole purpose of the Bill and how it has been phrased by the Government is to try to ensure that nobody gets anywhere near a judicial review. It is to try to ensure that, because of heightened awareness and a proactive approach, policymakers and deliverers right across the UK have before them what the covenant means and why we want to ensure that this unique cohort of people, our Armed Forces personnel and veterans, have that recognition.

The noble Baroness, Lady Brinton, used the example of someone with a child with special needs transferring to another area. I would very much hope that the covenant would ensure that the parents of that child, when moving to a new area, would be able to get exactly the support and help they need. Solutions and remedies would be available if either delivery agencies or policymakers were failing in that respect. There are ombudsmen and letters of complaint to chief executives. If I were chief executive of a local authority and someone wrote to me saying, “This is what the law says. This is the situation for me and my family. You have fallen down on the job”, I would jolly well want to do something about it. That is the significance of what is now in the Bill and will become legislation.

I gently suggest to the noble Baroness, Lady Smith, that the amendment is unnecessary, because we have already completed a new burdens assessment, which reflects the assessment of the financial impact of the new duty. A review will be completed 12 months after the duty comes into force to ensure that the local bodies in scope are not experiencing any undue financial pressures as a result of the covenant duty. I hope that, with that explanation and reassurance, I have encouraged the noble Baroness not to press her amendment.

[Lord Craig of Radley (CB)]

My Lords, before the Minister sits down, I refer her back to her earlier comments about the addition of functions, and her feeling that this would be an overload on the functioning of the covenant system. Perhaps these functions could still go into the Bill but be brought into force through statutory instrument at various stages in future. It seems to me that the opportunity to get them into the Bill is one that we should not miss.

[Baroness Goldie (Con)]

As the noble and gallant Lord knows, I have the greatest respect for him. I have no doubt whatever about his commitment to and interest in these issues. I have tried to indicate that even to get to where we have reached has been challenging and difficult. Notwithstanding all that, it has got us to a good place. It is far better to put our toe in the water, make progress in these three significant areas—and they are significant—and assess how that is working in practice. Then we can make an informed decision about whether expansion is needed and, if so, where. Is it proving a source of concern to our Armed Forces personnel and veterans? That further work will be important to establish, first, whether a need is there and, secondly, how to meet it. As I said earlier to him, that requires extensive consultation with a large variety of bodies, not least the devolved Administrations.

I should not want to give people boundless hope that we could deliver things that, although in an Act of Parliament, could prove problematic to deliver. That is my major concern. We should manage expectation. Quite honestly, we should allow this to unfold and see how it runs. We are under an obligation in the covenant to report every year on how matters are progressing, and we have the facility in the Bill to take forward expansion if that need is identified. I suggest to the noble and gallant Lord that this is a more prudent and sensible way in which to proceed.

[Viscount Brookeborough (CB)]

Before the Minister sits down, I thank her for everything she said and for being so open-minded. However, she said that a veteran—or a veteran’s family—who goes to get help and is refused will then go to an ombudsman or through a complaints system. I think she is a bit optimistic, because veterans who have given their hearts to the country in Afghanistan and who have fought for their lives should not have to fight for this. I would rather that she had suggested a way of monitoring from the other end the refusals of help and the circumstances. My experience is that, even without mental welfare problems, veterans have given their lives to this country fighting, and they are reluctant to go public or to drag others in. We are talking about initiatives from up the chain of authority, which is monitoring and picking them up, rather than relying on our veterans to fight once again.

[Baroness Goldie (Con)]

I can understand why the noble Viscount articulates that point. If we draw a distinction between active service personnel and veterans, I imagine that our active personnel in service at the moment are more likely to be interested in health and education. I think that our veterans are more likely to be interested in health and housing, for obvious reasons.

One of the difficulties with the noble Viscount’s suggestion is that we do not know, and we have no reason to know, whether anyone is encountering problems. To take the example from the noble Baroness, Lady Brinton, we do not know whether a parent has a problem with getting her child adequately placed in a suitable facility until that person comes and tells us that there is a problem. We are trying to ensure that they have a much simpler route to finding the solution they need because of what the Bill is doing. That is why the obligation is being placed on the delivery end. The individuals seeking the particular facility or the help actually want to go to the provider and say, “This is what I need, please can I have it?”

In the disappointing eventuality that help is not forthcoming, if that person is in service then there will certainly be help available within the armed services to support them. If the person is a veteran, there is a plentitude of help from charitable agencies, some of the Armed Forces charities and other support charities. If there were a delay or obstruction in the necessary service being received by the person who needs it, I hope that that would be very quickly picked up so that the person knows they could go to the provider and say, “You’re failing me. You’re falling down on the job. That is not good enough.” It is very difficult for anyone else to know whether that person, first, wants a service, and, secondly, has been disappointed or obstructed in trying to get it.

[Lord Coaker (Lab)]

I thank the Minister for a very constructive reply. While she was responding, I looked again at the power to add bodies and functions in the Bill. To take up the point from the noble Lord, Lord Lancaster, and some of what the Minister was saying, it seemed that she was not saying that there was never going to be a need for bodies that need to “have due regard to” to be added to the covenant, but the issue is the practicality of it. From looking at the Bill, I wonder whether an appropriate amendment could come forward on Report to put a bit of meat on the bones, rather than the Bill just saying that there is a power to add bodies and functions. If I have not mistaken what the noble Lord said, maybe there could be some kind of timeframe and greater certainty, but perhaps we will be able to look at that in response to what the Minister said and the suggestion that he made. I thought that was very helpful.

I thank the noble Viscount, Lord Brookeborough, for his contribution and the point he made about what “due regard” means. I hope we do not have a judicial review about that. Again, I am not a lawyer, but I know what “due regard” means. I am sure you can argue it, but I think we all know what it is supposed to mean. I will leave that to the lawyers.

I also apologise to the noble Baronesses, Lady Brinton and Lady Smith, and to the noble Lord, Lord Lancaster. As many of us will have done, I read lots of documents and Bills related to this over the weekend. I did not properly read Amendment 64, which raises a really important issue that the Minister, to be fair, sought to answer. I will read this out, because people read our affairs and they will not know what we are talking about when they read it; I apologise, but it is important. The noble Baronesses suggest that the covenant

“should be extended to cover civilians subject to service discipline who have been employed by the UK Armed Forces while on deployment.”

I think a lot of people would think that was probably already the case. The Minister, to be fair, said that of course the Government have due regard to people who had done that, because they have a duty of care, responsibility and so on, but the amendment seeks to put that into primary legislation. It is certainly something worthy of further thought and consideration. I appreciate that the Minister sought to answer this, but it is a particularly important amendment. I think that in bringing it forward, the noble Baronesses, Lady Brinton and Lady Smith, have done the Committee a service. That is what I have to say about the attention to detail.

With those brief comments on what I thought was, again, a helpful debate, I beg leave to withdraw my amendment.

Amendment 8 withdrawn.

19:15

Amendment 9

Moved by

[Lord Coaker]

9: Clause 8, page 9, line 18, at end insert—
“(za) the Secretary of State;”Member’s explanatory statement
This amendment would place the same legal responsibility to have ‘due regard’ to the Armed Forces Covenant on central government as the Bill currently requires of local authorities and other public bodies.

[Lord Coaker (Lab)]

This amendment again applies to the covenant. I thank the noble and learned Lord, Lord Mackay, and the noble Baronesses, Lady Brinton and Lady Smith, for their support on this amendment. It seeks to extend the application of the covenant to central government. Using the test that I always use, I think people would expect that to be the case, but no doubt we will hear from the Minister why the Government seem to be resistant to it.

We all believe that the Armed Forces covenant represents a binding moral commitment between government and service communities, guaranteeing them and their families the respect and fair treatment that their service has earned. The Bill creates new responsibilities for a wide range of public bodies, from school governors to local authorities, to deliver the covenant, yet central government is not included. Amendment 9 seeks to change that. In practice, without it, we would create a situation, which I think sounds farcical, in which a chair of school governors, for example—and you can make other examples up—has a legal responsibility to have due regard to the Armed Forces covenant, but government departments, including the Ministry of Defence, do not. I find that really strange, to be frank.

As the Royal British Legion has pointed out, many of the policy areas in which members of the Armed Forces community experience difficulty are the responsibility of national government or based on national guidance. As the noble and learned Lord, Lord Mackay, said at Second Reading, it is

“questionable whether it will be successful without incorporating central government, with its policy responsibilities,”—[Official Report, 7/9/2021; col. 742.]

into the Bill. The British Medical Association has called on the Government to

“expand the ‘specified persons and bodies’ section under clause 8 of the bill to include … Her Majesty’s Government and Secretaries of State with responsibility for the functions specified within the bill.”

Giving evidence to the Bill Select Committee, General Sir John McColl of Cobseo said:

“I do think that there is a strong argument for the inclusion of central Government functions … At the moment, the central Government traction that we have is that there is a moral requirement for Government to comply with the Covenant. That is fine as long as it works, but in some cases it absolutely does not work.”


It should be a part of this Bill, in primary legislation.

The MoD has said, in defence of not including central government in the Bill, that it was already in many ways subject to a duty of regard to the covenant. Personally, I do not think that is enough; it is insufficient. Central government should be included in the Bill. The Bill Select Committee report said:

“The Committee notes that by excluding central government as a responsible public body, Service accommodation is not covered by the duty of due regard. The Government may wish to consider adding this as an area where the duty applies in the future.”


Again, that is just one example of the Bill Select Committee looking at this and giving a practical example of what happens if central government is not included in the Bill. With those remarks, I will leave it there. I look forward to the Minister’s response, and I beg to move.

[Baroness Brinton (LD) [V]]

My Lords, I have added my name to Amendment 9. As the noble Lord, Lord Coaker, has already said, at Second Reading a number of noble Lords, including me, raised the fundamental problem with the Armed Forces covenant. While local authorities and other public bodies offering key services are listed, there is one glaring omission: central government is not required to have due regard to the covenant, and the noble Lord has just ably explained why that is such a contradiction.

The Government need to understand that in creating the covenant they have created demand and expectation. To use the closing comments by the noble Lord, Lord Coaker, from the previous group on my Amendment 64, if you asked anyone outside the Bill they would think that the Government were already included. That service accommodation is not included is a helpful pointer to why the Government need to reconsider.

Without the same responsibilities for central government and its services to provide the covenant, frankly it is nothing more than warm words. I am sure there are plenty of arguments to say that it should, and probably will, be covered by different parts of government services, but the point is that the amendment can remedy that. The amendment would go further than the Government want to at the moment, but if the Government do not accept that they need to have the same responsibilities as other bodies, frankly they are not truly committed to delivering the covenant.

The police covenant being proposed at the moment in the Police, Crime, Sentencing and Courts Bill has this same lack of responsibility for central government while imposing it on other bodies. I have to say that it is beginning to look a bit worrying.

[Lord Mackay of Clashfern (Con)]

My Lords, I have put my name to the amendment because I think it is extremely important. The covenant with the Armed Forces is an agreement putting obligations on our country in favour of people serving in the Armed Forces and those who have served in the Armed Forces. The covenant therefore contains specific obligations, which have been listed. It is true that in practical terms most of those will be local; if one wanted some health help, normally one would get that locally. It is therefore quite natural that the local authorities have a responsibility, but there seem to be quite serious possibilities that veterans and acting members of the Armed Forces will want government help.

One illustration that came to my mind when thinking about this before Second Reading was in relation to the first Iraq war. Noble Lords may remember that there was serious concern before and as the war started that our troops might be subject to a form of poison gas that would be very damaging to them. It was suspected that it was a gas of a particular kind. Exactly what the basis was for that I did not know, but it certainly resulted in protection being handed out to many of those in our services taking part in the first Iraq war.

When the war was over, it was discovered that some people who had served in the Armed Forces were beginning to suffer from a strange, rather neurological type of disease. There was a question about whether the disease had been caused by the protection that had been given to them against the gas. The gas, I may say, never emerged, so the protection turned out not to be necessary, but the protection had been given and could have had its own effect on those to whom it was administered.

That problem, of whether it was a consequence of the prescription, was a difficult and very deep question of medical research. It took quite a long time, as your Lordships may remember, and there was some dispute among the medics as to whether it was so. That is a special illustration of the necessity for the Secretary of State for Health, for example, to be involved because you could not expect the local authority or the local health trust to be responsible for looking into that national problem.

As one approaches this covenant, one also has to remember that it has obligations. That is not just a sort of wishful thinking; it has specific obligations. When the Bill says, as I hope the Act will, “have regard to the covenant”, it means looking to see what obligations in the covenant affect me. If I am a local authority, a local health authority or a local education authority, it will be the obligations in the covenant which have bearing on my responsibility. I therefore regard it as a close legal obligation that is created by the Bill to support those in the Armed Forces presently serving, and the veterans.

As the Minister has said, of course, the nature of the help that veterans require may be rather different from the help that service people require. For example, on moving between areas, if you have medical care in one area and have to move you may well have problems registering. There are quite a lot of problems nowadays in some places for somebody coming into a district in getting on to the medical register of a practice. That kind of thing can readily arise in relation to the local authority.

I have no doubt whatever that if the local authority has an obligation in a particular way, the finance for that is required under the local authority financial provision because this is one of the statutory provisions that are binding on the local authority. I regard the Bill as putting quite a fixed and rather balanced obligation on local authorities, but I see no reason whatever why it should not include central government. It will put obligations on them only in respect of an obligation in the covenant which applies to them at a particular time. In the example I have given, it would apply to the Government when a question was raised as to whether what they had done in the way of seeking to protect our people against a gas had in fact caused such a neurological condition. You would not expect the local health authority to be able to deal with that sort of problem; it would require the considerable resources of research that this country can command to see whether it was a cause and, if so, how it could be cured.

It is extremely important that the Government—the Secretary of State, as our amendment says—should be responsible. This provision would not put any responsibility on him or her that is not already in the covenant, so far as it affects him or her. I am not obliged to do anything under the covenant, except where an obligation encompasses me. The Secretary of State would not be put under any obligation which it was not a proper reading of the covenant to allot to him or her. I very much support this amendment. I mentioned it to my noble friend the Minister in general terms, based on my example of the first war in Iraq. I hope that the sensible effect of this amendment will be appreciated and that we can get it into the Bill.

19:30

[Lord Craig of Radley (CB)]

I endorse what the noble and learned Lord has been saying about what was known as Gulf War syndrome. Of course, I was involved in that Gulf War but after it I was also involved for many years in the investigations and the attempts to get investigations into what was known euphemistically as Gulf War syndrome. There was a great reluctance, perhaps understandably in government, to accept that there was something special here. It took a great deal of persuasion, study and effort before it became more recognised. It was that experience that makes me believe what noble and learned Lords have been talking about, and how important it is that the Secretary of State and central Government, in effect, have a responsibility which may need to be discharged in this type of situation. I hope it does not arise again but if it does, it can be dealt with at the central level.

[Baroness Smith of Newnham (LD)]

My Lords, I shall be extremely brief because we have had contributions from all parts of the House—Labour, Liberal Democrat, Conservative and Cross Bench—supporting this amendment. I should be very grateful if the Minister answered the question I asked at Second Reading, which was:

“What assessment have the Government made of creating a duty for themselves to pay due regard to the Armed Forces covenant?”—[Official Report, 7/9/21; col. 766.]


Has the Minister had a chance to think about that so far? If not, would the Government like to think about it ahead of Report?

[Baroness Goldie (Con)]

My Lords, again this has been a fascinating debate and I arise with trepidation when one of the contributors is my noble and learned friend Lord Mackay of Clashfern. A number of significant points have been made and I will try to address them as best I can.

Amendment 9, as has been discussed, centres on the desire to make central government departments subject to the duty of due regard. Again, to provide some context, we designed the new duty to initially focus on the three core functions of healthcare, education and housing because, as I indicated in debating a previous amendment, these are prominent among the concerns of both Armed Forces personnel in service and veterans. They not only reflect issues that are already in statute, but also address the most commonly raised issues affecting the day-to-day lives of our Armed Forces community.

As our Armed Forces are a very mobile population, frequently moving from local authority to local authority, it is often the variation of service delivery across local areas that can inadvertently cause disadvantage. Consequently, it is vital that those delivering these key public services are sufficiently aware of the challenges faced by the Armed Forces community when accessing these services. It is right that we look at this area first.

We also took into account that central Government are responsible for the overall strategic direction for national policy and for delivering on the manifesto on which they were elected. However, the responsibility for the delivery of these functions and their impact rests at more local level. I would argue that Governments are answerable, ultimately, to an electorate when a general election comes round and, before that point, they are most certainly accountable to Parliament, and that is an accountability no Government would ever take lightly.

Senior engagement regularly takes place between the MoD, the Cabinet Office, other government departments and the devolved Administrations to drive an increase in covenant awareness across national healthcare, and housing and education policy to improve the lives of the Armed Forces community. Additionally, the Government’s delivery of the covenant is, as we all know, subject to parliamentary scrutiny through the existing annual legal obligation to report progress delivering the covenant across the UK to Parliament. This is in addition to regular parliamentary scrutiny through other channels, such as Parliamentary Questions, reviews by the House of Commons Defence Select Committee and debates called by Members with a particular interest in certain aspects of defence.

My noble and learned friend Lord Mackay of Clashfern raised in support of his argument the certainly interesting event that occurred during the first Gulf War. As he explained, in anticipation that troops might be exposed to gas issues and had to be protected against that, protective equipment was handed out. As he indicated, people then suffered from a neurological type of disease on their return and tried to identify where it had come from. As my noble and learned friend said, they had not actually been exposed to any toxic gas, so the suspicion was that it was from the protective equipment. He adduced this instance in support of his argument that central government should be brought in.

I have two observations on that analogy. The emphasis on what the Government are doing in this Bill and what we have endeavoured to make possible is, first, to give the covenant a statutory impact, which is innovatory and very important; and secondly, to try to make it much clearer across the United Kingdom, for the whole panoply of services being delivered in respect of housing, education and health, how there needs to be greater awareness and understanding, and a much more universal approach to delivering these services to personnel who may be in service in the Armed Forces or veterans. That is about ensuring that, when they need services, they can access them.

The question that my noble and learned friend poses about the instance that he describes, with the reference to the first Gulf War and the particular situation that developed there, is a legitimate illustration to give the Committee. I accept that that was a serious situation, but the question running through my mind as he spoke was that surely the important thing there was remedy. This is not about people needing something, not being able to get it, and making sure that the providers of that service are much more alert to providing it; it is about a situation where, under orders of government, Armed Forces were sent abroad and then apparently—I do not know the facts myself—experienced neurological disorders when they returned, and considered that was attributable to protective equipment that was defective, with which they had been issued.

That is not a complete analogy with what the Bill is trying to do. If you ask what solution was needed, the answer, quite simply, is that those people who suffered in that way needed to be given advice and helped, and needed to find a legal solution, if that was what was available to them. I do not know what happened to that particular group of people, but I imagine that the first thing they needed was medical support, which I hope that they got. I imagine that, within the Armed Forces, there would be a concern about the manifestation of that situation and a desire to support, but the bottom line is that, if the culpable body were the Government and the MoD, if these individuals sought and obtained good legal advice the MoD would find itself, quite properly, the subject of litigation. That is how the solution would be sought. If the court was satisfied that the negligence alleged by those who had suffered was proved, remedies would follow.

I say with the greatest respect to my noble and learned friend Lord Mackay that I absolutely understand what he is driving at, but I still do not see a complete dovetail analogy with what we seek to deliver through the Bill. The situation that my noble and learned friend outlines is serious. It may very well happen in future, but the MoD is very vigilant and conscious that if it falls down on its duty to its own people it will expect to be sued—and it is. Not only is it sued and expected to provide redress but support is given to people who find themselves in that grouping. Including central government in the Bill is unnecessary. The Government are already subject to a legal obligation to report on the delivery of the covenant, and there are many and sufficient levels of public scrutiny.

Let us bear in mind that the Bill is about trying to improve the levels of awareness across the United Kingdom and a better and more universal provision of essential services for those members of our Armed Forces and veterans who need them. My problem with the amendment is that, were it accepted, we would create an obligation on central government. We cannot impose a comparable obligation on devolved Governments because that would be incompetent and not within the scope of the Bill. We would then once again create disparity rather than universality across the United Kingdom. We would have central government bound in one way but not devolved Administrations. That is not a desirable outcome.

I am not at all immune to the importance of the arguments advanced by my noble and learned friend. He makes an important point. The situation to which he refers was grave. I suggest that that can be addressed by existing means. It does not need the inclusion of central government in the covenant, which, indeed, would not necessarily have prevented the problem. The question is: how do we provide a remedy to people who have been affected by such an unfortunate development? My response would be: by providing support. Advice is available—legal advice if that is required—for people to follow through the remedies they seek. It is not necessary to bring central government into the legislation. It is much more important that we focus on what we are trying to do as a first step, make sure we get that working properly and then, as we have been discussing, consider whether there is a need to expand that provision of duty.

I am unable to agree that this amendment is either necessary or would help the situation; it could create a difficulty where one does not currently exist. In those circumstances, I ask the noble Lord to withdraw his amendment.

[Lord Mackay of Clashfern (Con)]

My Lords, I never mentioned negligence. I am not suggesting for a minute that there was necessarily any negligence. The Armed Forces put in requirements for the people who were taking part for protection against what they thought might come. That was a perfectly reasonable thing to do. Some of them took the treatment. The question was: what was the result of that? That was a question for the Secretary of State. It was him who had to look into that; it was a national question. It had nothing whatever to do with negligence or some other basis of claim. The claim was because the Government had approved a covenant, which I said should protect them in respect of their work in the Armed Forces and after they had left. That is what this was—nothing more, nothing less.

I am sorry to interrupt, but I have to make it clear that there is no suggestion in my argument that there was any negligence or any sort of enforcement available at the time. This is a new remedy, and it should be given.

19:45

[Baroness Goldie (Con)]

I am very grateful to my noble and learned friend for expanding that further. I understand the point he is trying to make. I was making a distinction between areas where, if the MoD was culpable, it could expect a claim of negligence. My noble and learned friend outlines a situation where something happens and maybe no negligence can be established but people suffer. In that event, we would want to do two things: we would want to find out what happened and provide help to those affected. But is it not the case that the covenant already provides a route for question and accountability of the Government to Parliament? The annual report could be presented and Parliament could say, “We absolutely dismiss that report”, and ask why it has made no reference to the situation of the type my noble and learned friend referred to. I argue that there is accountability and, separate issues flowing from that, our support and solutions for those affected, but these could be provided in other ways. They do not require a covenant to secure that.

[Baroness Smith of Newnham (LD)]

My Lords, the noble Baroness’s thinking has not necessary moved on very much from Second Reading, when she said

“I would say that government is held to account by Parliament and the purpose of the covenant duty is to raise awareness among providers of these public services”.—[Official Report, 7/9/21; col. 770.]

Parliament can and should hold the Government to account but, if the legal duty to have due regard is put only on local authorities and certain other providers and not on the Government, yes, we can ask questions but we cannot actually hold the Government legally accountable. The points the noble and learned Lord, Lord Mackay of Clashfern, made are surely right: if we want to think about aspects that go beyond the duties to local authorities, that duty needs to put on to central government, not just local government.

The Minister suggested there might be a problem that we as Parliament or Her Majesty’s Government cannot put duties on the devolved Administrations. Surely that is precisely because defence is a reserved matter so, if we are putting a duty on to anybody, apart from local authorities and local health authorities, it ought to be on to central government, not on to the Governments of Scotland, Wales and Northern Ireland.

[Baroness Goldie (Con)]

With the greatest respect, that might seem a tempting analysis of the situation, but the bottom line is that an inequity and disparity would be immediately introduced in the United Kingdom, because a Government would be bound and other devolved Governments would not be. That is profoundly undesirable.

[Lord Coaker (Lab)]

I thank the Minister for her reply. She is in a bit of trouble on this one. Logically, I do not think that some of what she said holds together. In her answer to the noble and learned Lord, Lord Mackay, she clearly talked about negligence, people being sued and things like that, whereas what the noble and learned Lord talked about, and the noble and gallant Lord, Lord Craig, talked about very movingly from his own experience, is that we are seeking to require central government to have due regard to the covenant. Placing that obligation on central government in the same way as we are placing it on local authorities and other bodies is consistent with the principle that we are seeking to drop adopt through this legislation. This is not about moving into an area where a Government are negligent.

All I would say to the Minister is that we will have to come back to this on Report. I wonder whether she could reflect again on the discussions that have taken place in Committee to see whether there might be a way forward for us all. With that, I seek the leave of the Committee to withdraw the amendment.

Amendment 9 withdrawn.

Amendments 10 to 13 not moved.

Amendment 14

Moved by

[Lord Lancaster of Kimbolton]

14: Clause 8, page 18, line 28, at end insert—
“343AG Regional committees(1) The Secretary of State may by regulations make provision to give committees established under section 25 of the Social Security Act 1989, known as Veterans Advisory and Pensions Committees, additional functions specified in the regulations relating to all former members of Her Majesty’s forces and their relevant family members, and a new name.(2) The regulations may in particular provide that it is a function of the committees—(a) to report and make recommendations to the Secretary of State on matters that are or may be relevant to—(i) their armed forces covenant report, and(ii) sections 343AA to 343AD and guidance issued under section 343AE;(b) to provide a distinct, identifiable, and independent point of reference in their region for both the veteran community and all those supporting it;(c) to raise awareness of, and support the implementation of—(i) services provided to the veteran community alone or with others,(ii) the Government’s strategy for veterans, and(iii) the terms of armed forces covenant;(d) to act as an advocate, promoter, facilitator, or communicator of services that are relevant to the veteran community;(e) to report and make representations and recommendations on existing or proposed services that are relevant to the veteran community.”Member’s explanatory statement
This amendment seeks to extend the statutory functions of Veterans Advisory and Pensions Committees (VAPCs), currently limited to functions relating to compensation schemes for veterans and their families (the War Pensions and the Armed Forces Compensation Schemes) to all aspects of veteran life.

[Lord Lancaster of Kimbolton (Con)]

My Lords, I first raised the subject of Amendments 14 and 15 in my name at Second Reading. I hope they will prove uncontroversial. Indeed, to pick up on the conversation we have had over the last few groupings, all these amendments seek to do is effectively to support the Government in what they are already doing and, equally, to try to embolden a committee to deliver the Armed Forces covenant. I shall be very brief.

Specifically, the amendment enables the Secretary of State to extend the statutory functions of the Veterans Advisory and Pensions Committees, VAPCs. They are regional statutory committees—nine in England, two in Scotland, one in Wales and one in Northern Ireland—established by a statutory instrument made under Section 25 of the Social Security Act 1989. Each committee has between 12 and 20 members, who are all volunteers. They are public appointees who act independently of their sponsoring department, the MoD, and so provide evidence and views from that independent standpoint. During my time as Minister for Veterans, I felt that as a body they played a valuable role, both as advocates on behalf of the MoD and as a source of candid advice to me as a Minister and to the wider veteran community.

However, the issue is that the enabling power limits the statutory functions that can be given to VAPCs solely to functions relating to the compensation schemes for veterans and their families, namely the war pensions and Armed Forces compensation schemes, and as such are mandated to engage with only a relatively small part of the veteran community and not the Armed Forces covenant in general.

As we seek to improve the implementation of the Armed Forces covenant, it strikes me that, through their independent approach and regional structure, the members of the VAPCs are well placed to make a useful contribution to the Government’s drive to make the UK the best place in the world to be a veteran. Indeed, just one aspect of this drive is the implementation of the duty introduced by Clause 8(3) of the Bill to have due regard to the principles of and relating to the Armed Forces covenant. In my view, at least, this is not only timely but long overdue.

Interestingly, we have in all honesty been talking about expanding VAPC powers for some time. As I recall, it was a proposed amendment put to me as a Minister when I was responsible for taking the last Armed Forces Bill through Parliament five years ago, but due to lack of preparation time was ultimately not included. We really have been talking about this for a very long time.

It is also an argument that has already in part been conceded by the Government, by their agreeing in principle that members of each regional VAPC be invited by terms of reference to join parallel informal regional groups to perform functions relating to all veterans. This is exactly what this amendment is trying to do, and they are proposing to do it. We even now have a position in which the Government are actively advertising the role of membership of VAPCs as extending beyond the original statutory functions. I have sent this to the Minister. I was rather surprised to discover that on the public appointments website, dating back over four years—the current appointments are equally advertised—the principal role for the chair of the south-east England VAPC, the first role it describes as being required, is to

“act as advocates for implementing the Armed Forces Covenant and associated measures at a local level”,

even though at this point it was not mandated within the statutory requirements. They have already been advertising it, so it seems logical that we should enshrine it in this legislation.

To be fair, this amendment is carefully crafted to ensure that it ties in with the Government’s intent to review the interim solution that they are proposing for the function of VAPCs after one year, after which it will enable the Secretary of State to give VAPCs functions relating to all veterans only if it should be concluded after that review that this is potentially the best way to maximise their contribution to helping support the Armed Forces community.

My plea to the Minister is simple. The Government have accepted in principle that the role of the VAPCs should be expanded by delivering this interim solution. The Government are even actively advertising it as an expanded role. All that these modest amendments would do is put in place the ability for the Secretary of State—if, and only if, he so wishes—to make that change after the review period rather than having to wait yet another five years for the next Armed Forces Bill.

[Lord Coaker (Lab)]

I am generally supportive of the amendment moved by the noble Lord, Lord Lancaster. He very ably made the point why the time to act is now rather than waiting a further five years before something is done. I very much hope the Minister can respond positively to what I think is a very sensible amendment.

[Baroness Smith of Newnham (LD)]

I have nothing to add.

[Baroness Goldie (Con)]

I thank my noble friend for tabling this amendment, and I understand his motivation for doing so. I want to develop this a little further because he has raised some interesting arguments. He has described how the amendment seeks to give the Secretary of State for Defence the power to amend the scope of the Veterans Advisory and Pensions Committees’ statutory functions by regulations in the future.

My noble friend has described extensively what the VAPCs do across the UK. They are established under the Social Security Act 1989, with their functions set out in the War Pensions Committees Regulations 2000. Indeed, they used to be known as War Pensions Committees and their original role was expressly to raise awareness of the War Pension Scheme and latterly, the Armed Forces Compensation Scheme, and to make representations to the MoD on behalf of recipients. For that reason, the enabling Act for the VAPCs, the Social Security Act, sets out that their statutory functions are limited to the cohort of veterans and their families who are claiming for or in receipt of one of the two compensation schemes. It is that limitation that my noble friend’s amendment seeks to remedy.

In practice, as my noble friend knows—he alluded to this—members of the VAPCs have for many years performed activities that go above and beyond that scope. For example, many members have taken on a role promoting the Armed Forces covenant locally to all those who might have an interest in it. They have done that on a non-statutory basis and there have been no substantive issues with them doing so. I therefore suggest that in this respect my noble friend’s amendment is not necessary to achieve the outcome that he seeks.

However, there is a desire on all sides for greater clarity on the role that VAPCs have. My honourable friend the Minister for Defence People and Veterans joined a conference with the VAPCs yesterday and confirmed that he had signed off on a new set of terms of reference agreed by both the VAPC chairs and officials in the MoD and the Office for Veterans’ Affairs. The terms set out two new specific principles: first, to set out the activities that members of VAPCs as individuals and as members of informal regional groups are asked to carry out relating to all veterans and their families and, secondly, to provide direction relating to their performance for an initial period of 12 months beginning from 26 October, in order that we give the chairs a sensible period of time to adopt the new terms of reference and show how they can deliver against them. Following that initial 12-month period, the Minister for Defence People and Veterans will review the terms of reference and performance against the activities set out and will then make a determination on the next steps.

I say to my noble friend that the Government have a clear way forward over the next 12 months that has been agreed with the VAPCs themselves. We want to give them the chance to perform under the new terms of reference before we take any decisions about their longer-term future. We want to use the next 12 months to gather the evidence that we need to take an informed decision.

That is why I feel that my noble friend’s amendment is premature at this stage. To pass it now would put the cart before the horse. It would give the Secretary of State a power that we do not yet know if he would need or use. It would pre-empt the outcome of our work over the next 12 months and would imply that a change to the VAPCs’ statutory role was required when we have not yet actually come to any decision about that. It would provide only for a specific and rather limited adjustment to their statutory role when we might instead wish to consider more fundamental changes.

20:00

I know that my noble friend argues that this amendment would give the Secretary of State the ability to make certain changes only if should he decide that these are needed at the end of the 12-month period, and that my noble friend feels it is better to have that power ready to use now rather than potentially having to wait another five years for the next Armed Forces Bill to roll round. I would make just two points about that approach. First, taking a power to achieve something through secondary legislation when the Government are still developing the policy is not considered good practice. Were the Government to have proposed this sort of thing, we would likely have faced criticism from the Delegated Powers and Regulatory Reform Committee. If the work in train reveals that change is needed in primary legislation, we should bring our proposals to Parliament then. Secondly, should it become apparent that legislation is needed, the Government will seek to legislate when parliamentary time allows.

My noble friend will clearly understand that there are limits on how much I can speculate about this, but it does not necessarily mean waiting five years for the next Armed Forces Bill. The Ministry of Defence can legislate, and has legislated, outside the five-yearly cycle when needed. I recognise my noble friend’s strength of feeling on this. The statutory position of the VAPCs has been subject to significant consideration within the MoD. We believe that the new terms of reference allow us to move substantially forward. I will certainly raise the wording of the advert that he referred to with officials.

I must apologise to my noble friend; I had hoped to discuss his amendment with him before consideration of it in Committee. I would certainly welcome an opportunity to have that discussion with him following today’s debate but, meanwhile, I invite him to withdraw his amendment at this time.

[Lord Lancaster of Kimbolton (Con)]

I am of course grateful for my noble friend’s courteous reply. Indeed, if nothing else, having waited for seven years, if coincidentally, yesterday, the terms of reference were finally signed, then perhaps we have achieved something through tabling this amendment. That is good news. However, I must say to my noble friend—and she is a dear friend—that I am slightly disappointed by the reply. The one aspect that she did not address is why it was deemed necessary to put some of the roles of the VAPCs on a statutory footing, yet now it does not seem necessary to put on a statutory footing the extended role. There seems to be an illogic in that argument, which was not addressed. That is something we can discuss, because it certainly was not my noble friend’s point and we did not have the opportunity to meet before Committee.

I reserve the right to look at this again, because there is a strong sense of feeling. I know that many people listening to this debate will be feeling that, yet again, the Government are kicking the can down the road. When the Government issue adverts luring people in to be members of these committees, because they would apparently be supporting the Armed Forces covenant even though they are not on a statutory footing, that sends a very poor message. For the time being, however, I withdraw the amendment.

Amendment 14 withdrawn.

Amendment 15 not moved.

Clause 8 agreed.

Clause 9: Reserve forces: flexibility of commitments

Amendment 16

Moved by

[Baroness Goldie]

16: Clause 9, page 19, line 6, leave out paragraph (a) and insert—
“(a) omit “(a “full-time service commitment”)”;”Member’s explanatory statement
This is one of several amendments in the name of Baroness Goldie which would clarify the effect of provision made by Clause 9 about commitments under section 24 of the Reserve Forces Act 1996.

[Baroness Goldie (Con)]

My Lords, group six comprises Amendments 16 to 37 inclusive. In total, these relate to a minor, technical amendment to Clause 9, which introduces important changes to Section 24 of the Reserve Forces Act 1996 to enable our reserve personnel to do more and for defence to offer them more. The changes we are making to Section 24 will in future enable reservists to undertake periods of full-time and part-time service, or a combination of both under one continuous commitment.

On reflection, we feel it more appropriate to refer to our new continuous service commitment using neutral terms, such as “a Section 24 commitment”. This will avoid any suggestion that reservists are in continuous service only in certain circumstances. Reservists are serving members of the Armed Forces during their entire term of service, not just when they are on duty or in training. It is a purely technical amendment and I can confirm that, importantly, it will have no impact on how the new measures we are introducing under Clause 9 will operate. It will allow our Reserve personnel to do more and enable the Ministry of Defence to make better use of their knowledge, skills and experience, but avoid any possible confusion as to nomenclature and meaning. I beg to move.

[Lord Tunnicliffe (Lab)]

I accept the Minister’s assurance that this is a wholly technical amendment. If my assistants find that not to be true, I shall return to it ferociously on Report. But assuming that is the case, I am content with the amendment. I make the point that the next group goes into a fundamental area, and I would greatly object to any attempt to move into that group tonight.

[Lord Lancaster of Kimbolton (Con)]

I am grateful to be able to contribute briefly on this group, which is an area of particular interest to me. I declare my interest as chairman of the Reserve Forces Review 2030, which is the 10-year review of the Reserve—the outcome of which is, I should like to think, partly responsible for some of the Bill’s provisions on the Reserve.

The headmark of that review was the integration of the Regular and Reserve Forces. Within that, we attempted to create a spectrum of service—right of arc, full-time regular service; left of arc, a civilian—and within that spectrum of services, enabling the principle of bringing civilian skillsets through Reserves into delivering against defence demand signals. We encountered two principal barriers to that spectrum of service. The first, frankly, was money. Unlike the Regular Forces, the Reserve Forces are always considered to be a marginal cost and therefore, as soon as there are pressures on costings, it is the Reserves’ budget that will be reduced.

The other, to which this technical amendment goes directly, was terms and conditions of service. Of course, we already have full-time Reserve service, but we do not have the ability for reservists to have not a contract, per se, but an assured Reserve capability. That could be on a part-time but enduring basis—for example, not being contracted to work five days a week and becoming a temporary regular, but to be able to do it as part of a portfolio career. That would enable you to come in and, perhaps, work one day a week but over an enduring period. It would make the Reserve much more effective in delivering almost as augmentees, working on a daily basis, and moving away from its traditional role as a contingent capability that trained at weekends and was always used as that traditional Reserve.

That is why this government amendment is so welcome, to my mind. It helps to deliver that traditional Reserve capability for a Reserve which will be very much suited for the 2030s.

[Baroness Smith of Newnham (LD)]

My Lords, I wanted to hear the noble Lord, Lord Lancaster, before I spoke because I thought that if there were any heffalump traps, he might have spotted them, given his expertise on reserves. I seem to recall that when we were looking at flexible working for the regulars it garnered some concern from certain Benches and perhaps from some noble and gallant Lords who were a little concerned that you could not be a part-time soldier. Actually, that was never what was being suggested.

Looking at these amendments one by one, a bit like the noble Lord, Lord Tunnicliffe, I could only assume that they were all doing what the Minister said they were doing because they look so technical. I think the statement given by the Minister and the comments from the noble Lord, Lord Lancaster, both suggest that this is helping to bring the reserves into an even more effective place. The reserves clearly play an important role, and if there can be a logical movement between full-time and part-time work and that counts as continuous service, that has to be all to the good. The only thing I would say, if anyone were looking at a complete guide to plain English, is that by the time anyone is looking at this Bill it will be totally unreadable because the language seems to be so arcane. I hope it will keep the government lawyers working for many years to come.

[Viscount Brookeborough (CB)]

My Lords, I want to make one comment. It is slightly out of context but what the noble Lord, Lord Lancaster, was talking about there, bringing the reserves in more and greater integration, also moves things. His report will take consideration of civilian contractors who come under military law. We are beginning to bring the whole thing together, and a previous amendment about making the covenant more available to those contractors who may be under military law becomes even more relevant.

Amendment 16 agreed.

Amendments 17 to 24

Moved by

[Baroness Goldie]

17: Clause 9, page 19, line 18, leave out “continuous service commitment” and insert “commitment under this section”
Member’s explanatory statement
This is one of several amendments in the name of Baroness Goldie which would clarify the effect of provision made by Clause 9 about commitments under section 24 of the Reserve Forces Act 1996.

18: Clause 9, page 19, line 25, leave out from “for” to end of line 26 and insert ““full-time service commitment” substitute “commitment under this section”;”
Member’s explanatory statement
This is one of several amendments in the name of Baroness Goldie which would clarify the effect of provision made by Clause 9 about commitments under section 24 of the Reserve Forces Act 1996.

19: Clause 9, page 19, line 34, leave out “continuous service commitment” and insert “commitment under this section”
Member’s explanatory statement
This is one of several amendments in the name of Baroness Goldie which would clarify the effect of provision made by Clause 9 about commitments under section 24 of the Reserve Forces Act 1996.

20: Clause 9, page 19, line 37, leave out from “for” to end of line 38 and insert ““full-time service commitment” substitute “commitment under this section”;”
Member’s explanatory statement
This is one of several amendments in the name of Baroness Goldie which would clarify the effect of provision made by Clause 9 about commitments under section 24 of the Reserve Forces Act 1996.

21: Clause 9, page 20, line 1, leave out “continuous service commitment” and insert “commitment under this section”
Member’s explanatory statement
This is one of several amendments in the name of Baroness Goldie which would clarify the effect of provision made by Clause 9 about commitments under section 24 of the Reserve Forces Act 1996.

22: Clause 9, page 20, line 5, leave out “continuous service commitment” and insert “commitment under this section”
Member’s explanatory statement
This is one of several amendments in the name of Baroness Goldie which would clarify the effect of provision made by Clause 9 about commitments under section 24 of the Reserve Forces Act 1996.

23: Clause 9, page 20, line 13, leave out “continuous service commitment” and insert “commitment under this section”
Member’s explanatory statement
This is one of several amendments in the name of Baroness Goldie which would clarify the effect of provision in Clause 9 about commitments under section 24 of the Reserve Forces Act 1996.

24: Clause 9, page 20, line 15, leave out “continuous service commitment” and insert “commitment under this section”
Member’s explanatory statement
This is one of several amendments in the name of Baroness Goldie which would clarify the effect of provision in Clause 9 about commitments under section 24 of the Reserve Forces Act 1996.

Amendments 17 to 24 agreed.

Clause 9 agreed.

Schedule 2: Reserve forces: flexibility of commitments

Amendments 25 to 37

Moved by

[Baroness Goldie]

25: Schedule 2, page 42, line 9, leave out “continuous service” and insert “section 24”
Member’s explanatory statement
This is one of several amendments in the name of Baroness Goldie which would clarify the effect of provision in Clause 9 about commitments under section 24 of the Reserve Forces Act 1996.

26: Schedule 2, page 42, line 11, leave out “continuous service” and insert “section 24”
Member’s explanatory statement
This is one of several amendments in the name of Baroness Goldie which would clarify the effect of provision in Clause 9 about commitments under section 24 of the Reserve Forces Act 1996.

27: Schedule 2, page 42, line 13, leave out “continuous service” and insert “section 24”
Member’s explanatory statement
This is one of several amendments in the name of Baroness Goldie which would clarify the effect of provision in Clause 9 about commitments under section 24 of the Reserve Forces Act 1996.

28: Schedule 2, page 42, line 15, leave out sub-paragraph (2) and insert—
“(2) For subsection (1)(a) substitute—“(a) in service under section 24 commitments; or”.”Member’s explanatory statement
This is one of several amendments in the name of Baroness Goldie which would clarify the effect of provision made by Clause 9 about commitments under section 24 of the Reserve Forces Act 1996.

29: Schedule 2, page 42, line 17, leave out “continuous service” and insert “section 24”
Member’s explanatory statement
This is one of several amendments in the name of Baroness Goldie which would clarify the effect of provision made by Clause 9 about commitments under section 24 of the Reserve Forces Act 1996.

30: Schedule 2, page 42, line 19, leave out “continuous service” and insert “section 24”
Member’s explanatory statement
This is one of several amendments in the name of Baroness Goldie which would clarify the effect of provision made by Clause 9 about commitments under section 24 of the Reserve Forces Act 1996.

31: Schedule 2, page 42, line 23, leave out from “for” to end of line 24 and insert ““full-time service” substitute “section 24”;”
Member’s explanatory statement
This is one of several amendments in the name of Baroness Goldie which would clarify the effect of provision made by Clause 9 about commitments under section 24 of the Reserve Forces Act 1996.

32: Schedule 2, page 42, line 25, leave out from “for” to “and” in line 26 and insert ““full-time service”, in the first place it occurs, substitute “section 24”,”
Member’s explanatory statement
This is one of several amendments in the name of Baroness Goldie which would clarify the effect of provision made by Clause 9 about commitments under section 24 of the Reserve Forces Act 1996.

33: Schedule 2, page 42, line 30, leave out “continuous service” and insert “section 24”
Member’s explanatory statement
This is one of several amendments in the name of Baroness Goldie which would clarify the effect of provision made by Clause 9 about commitments under section 24 of the Reserve Forces Act 1996.

34: Schedule 2, page 42, line 33, leave out from “for” to end of line 34 and insert ““full-time service commitment” substitute “commitment under that section””
Member’s explanatory statement
This is one of several amendments in the name of Baroness Goldie which would clarify the effect of provision made by Clause 9 about commitments under section 24 of the Reserve Forces Act 1996.

35: Schedule 2, page 43, line 3, leave out “continuous service commitment” and insert “commitment entered into under section 24 of the Reserve Forces Act 1996”
Member’s explanatory statement
This is one of several amendments in the name of Baroness Goldie which would clarify the effect of provision made by Clause 9 about commitments under section 24 of the Reserve Forces Act 1996.

36: Schedule 2, page 43, line 4, leave out paragraph (b) and insert—
“(b) omit subsection (3)(d).”Member’s explanatory statement
This is one of several amendments in the name of Baroness Goldie which would clarify the effect of provision made by Clause 9 about commitments under section 24 of the Reserve Forces Act 1996.

37: Schedule 2, page 43, line 11, leave out paragraph (b)
Member’s explanatory statement
This is one of several amendments in the name of Baroness Goldie which would clarify the effect of provision made by Clause 9 about commitments under section 24 of the Reserve Forces Act 1996.

Amendments 25 to 37 agreed.

Schedule 2 agreed.

Committee adjourned at 8.13 pm.

House of Lords

Wednesday 27th October 2021 Lords Chamber

Wednesday 27 October 2021

15:00

Prayers—read by the Lord Bishop of Bristol.

Retirement of a Member: Lord Puttnam

Wednesday 27th October 2021 Lords Chamber

Announcement

15:07

[The Lord Speaker (Lord McFall of Alcluith)]

My Lords, I notify the House of the retirement, with effect from today, of the noble Lord, Lord Puttnam, pursuant to Section 1 of the House of Lords Reform Act 2014. On behalf of the House, I thank the noble Lord for his much-valued service to the House.

Climate Change: Global Temperatures

Wednesday 27th October 2021 Lords Chamber

Question

15:08

Asked by

[Baroness Jones of Moulsecoomb]

To ask Her Majesty’s Government what assessment they have made of the report of the Intergovernmental Panel on Climate Change, published on 9 August; and what policy areas they intend to reassess in response to the finding that global temperatures are rising faster and will have worse consequences than previously predicted.

[The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (Lord Callanan) (Con)]

The IPCC report reaffirms the importance of net zero. On 19 October, we launched the net-zero strategy, supporting up to 440,000 jobs and leveraging up to £90 billion in private investment by 2030. Our strategy sets out clear policies and proposals for keeping us on track for our coming carbon budgets and our ambitious NDC.

[Baroness Jones of Moulsecoomb (GP)]

How on earth does that and the Government’s net-zero plan fit with the fact that the Chancellor has just given us a Budget that is so carbon intensive that we should all just give up everything that we are bothering to do? He has reduced the duty on domestic flights, which are the most carbon-intensive form of travel, and he has frozen the fuel-duty escalator for the 12th year. This Treasury does not understand the climate emergency, and the noble Lord, who hears us all here, has to take that back.

[Lord Callanan (Con)]

Of course I always take the noble Baroness’s comments back to the department for discussion, as she well knows. I think that she is being a little unfair with her comments and I know that she would not want to be. The Chancellor has also announced £3.8 billion-worth of funding for domestic low-carbon heat installation systems, social housing decarbonisation and public sector decarbonisation—we talked about that in our statement a few days ago. It is important to bear in mind that many communities in the UK—people who live on remote islands et cetera—rely on their air services. Domestic aviation accounts for less than 1% of UK emissions. I also remind the noble Baroness that the Chancellor recently announced considerable funding—something like £180 million—for sustainable aviation fuel.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, working with the devolved Administrations, could the Minister indicate what new policy proposals the Government will bring to COP 26 next week, in respect of financial innovation, green finance and technology, to ensure that a comprehensive scheme of carbon capture is in place to assist with climate change mitigation by the Government’s 2030 target, over and above the Budget today, which was rather limited in this respect?

[Lord Callanan (Con)]

Some noble Members opposite have obviously listened to a different Budget from the one that was actually announced. We have £1 billion-worth of funding for carbon capture, usage and storage proposals. The noble Baroness will be aware that, only the other day, we announced the first two clusters in north-west and north-east England. These are world-leading, exciting proposals; no one else in the world is being as ambitious as we are on CCUS.

[Lord Oates (LD)]

My Lords, returning to the issue of domestic air passenger duty, does the Minister recognise that short-haul flights are the most carbon-intensive form of travel? Ahead of COP 26, what signal does the Minister believe it sends to announce a cut to domestic air passenger duty while presiding over a record rise in rail fares—one of the least carbon-intensive forms of travel?

[Lord Callanan (Con)]

I refer the noble Lord to the answer that I just gave to the noble Baroness, Lady Jones. Many communities in the United Kingdom rely on air travel for international and internal connectivity. Some parts of our nation are islands, separated by water that trains do not go across. Therefore, it is important to retain connectivity. At the same time, the Chancellor also announced an increase in long-haul air passenger duty.

[Lord Lilley (Con)]

Is not the premise of the noble Baroness’s Question—namely, that global temperatures are rising faster than previously predicted—the reverse of the truth? When the IPCC was established, it forecast that over the ensuing 30 years, now complete, the global temperature would rise by 0.3 degrees per decade. In fact, it has risen by just 0.17 degrees per decade—barely half that amount—and all 39 models used by the IPCC produce estimates higher than reality. Reality is actually quite reassuring.

[Noble Lords]

Oh!

[Lord Callanan (Con)]

I can see that the noble Lord has the House with him on that one. Even putting aside his scepticism about the accuracy of the IPCC report, surely even he would agree that, given the current spike in gas prices, for instance, it is a good thing to reduce our usage of carbon-intensive fuels. If we can generate more electricity domestically in a renewable and green way, that has to be a good thing because it reduces our reliance on importation.

[Lord Campbell-Savours (Lab) [V]]

My Lords, can we park the constant sideline bickering over China’s CO₂ emissions? The discussion pre-COP 26 is unbalanced. We hear endless criticism of China for its 6.5 tonnes per capita emissions record, while there is a deafening silence over the record of the English-speaking world of Australia, Canada and America with their average emissions of 15 tonnes per capita—two and a half times those of China. The China bashing needs to stop. No wonder it may not attend COP 26.

[Lord Callanan (Con)]

I am sorry, but I just do not agree with the noble Lord. China is responsible for one of the largest emissions totals in the world. This is very much a global problem and, if we are to make any progress, every nation has to make its contribution, including not only the English-speaking world but also China.

[Lord Mackay of Clashfern (Con)]

Can my noble friend say whether any of the pumps that are being suggested to substitute for gas boilers in our homes are yet in a state to be widely used?

[Lord Callanan (Con)]

I can reassure my noble and learned friend on that basis. Heat pumps are a mature heating technology and currently the market-leading low-carbon option. I am also delighted to tell him that the largest UK manufacturer, Mitsubishi in Scotland, produces 10,000 of them a year.

[Baroness Sheehan (LD)]

My Lords, the unpredicted intensity of freak events such as the heat dome in the US and Canada has left scientists reeling. Oceanographers are monitoring with concern the anomaly in the Gulf Stream, which helps to regulate our world’s weather, and the cold spot south-east of Greenland is particularly worrying. Does the Minister accept that it is time to stop dicing with the future of our planet, to keep fossil fuels in the ground and therefore to ditch the abominable policy that places a legal duty on our Government to extract every last drop of oil from the North Sea?

[Lord Callanan (Con)]

The Committee on Climate Change has made it clear that we still need fossil fuels for the transition. I remind the noble Baroness that the UK is responsible for only 1% of worldwide emissions. Yes, we must do our bit, which we are—we are a world-leading power in that respect—but we also need to work on a worldwide basis with other nations, because just stopping emissions in the United Kingdom will not solve the problem.

[Lord McConnell of Glenscorrodale (Lab)]

My Lords, the Government had four key objectives for the summit next week in Glasgow. The third of those, and the one that was in many ways among the most important because of the failure to deliver it over the past decade, was the objective on finance and delivering $100 billion per annum of support for those developing countries that would miss out as a result of moving towards net zero. The Government have admitted this week, in advance of the summit, that that objective is not going to be met. Does the Minister agree that one reason for that might just be the fact that our Government—our country—withdrew on their commitments to the world’s poorest people this year and that that might just have affected the atmosphere around decision-making and the commitments that might then be made by others?

[Lord Callanan (Con)]

No, I do not accept that, because the UK, even after the recent reduction, still has one of the largest international climate finance facilities in the world. Again, on international finance, we are world-leading as well. It was an immense diplomatic effort to get many other nations on board—credit goes to the Prime Minister and to Alok Sharma for managing to do that. We have got the commitment, albeit maybe not as early as we would have hoped for, from 2023.

[Lord Mann (Non-Afl)]

What is the target date for the Minister’s own departmental buildings to be carbon neutral?

[Lord Callanan (Con)]

As the noble Lord is probably well aware, under the heat and buildings strategy, another of the Chancellor’s announcements last week, we have allocated hundreds of millions of pounds to the public sector decarbonisation scheme to go with the £1 billion that we have already spent in the past year on the PSDS. I could point the noble Lord to numerous examples across the country, both in London and elsewhere, of excellent schemes where the public sector is using these funds to deliver meaningful carbon reductions.

[Lord Foulkes of Cumnock (Lab Co-op)]

The Minister mentioned the carbon capture and storage facilities that have been approved. He will also be aware that the one that was most ready to go ahead is at St Fergus in Aberdeenshire, but that was not given approval. Why? Are the Government deliberately setting out to upset Scotland and the Scottish Executive?

[Lord Callanan (Con)]

I think that the noble Lord knows the answer to his own question. A rigorous process was gone through to determine which schemes should get the go-ahead. It is not true that the scheme to which he referred was the most advanced. An independent panel of experts studied all the bids. It is not the case that we are not going ahead with the scheme; it is on the reserve list. It will almost certainly proceed, but just not in the first wave.

Social Care

Wednesday 27th October 2021 Lords Chamber

Question

15:18

Asked by

[Lord Wood of Anfield]

To ask Her Majesty’s Government what proportion of the new Health and Social Care Levy will be allocated to the provision of social care.

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Kamall) (Con)]

On 7 September, we announced £5.4 billion of new funding for adult social care over the 2022 to 2025 period. We have also announced that this includes more than £3.6 billion to reform the adult social care charging system and to help local authorities better sustain their markets by moving towards paying providers a fair rate for care. It also includes more than £1.7 billion for much-needed wider system reform. Further details will be announced in a White Paper later this year.

[Lord Wood of Anfield (Lab)]

My Lords, the Health Foundation has calculated that, over the next three years, the funding required just to meet current social care demand is bigger than the extra money going into social care from the levy. So this levy will not even start to address issues such as the need for better pay and conditions for social care staff, local government’s lack of resources, and the need for community care, personalisation, et cetera. Could the Minister explain how he expects the country to believe the Government’s plan that, after three years of operation, the NHS portion of the levy, which is currently the majority, will be cut and transferred to social care? Can he confirm that the plan is really to cut NHS funding in 2025 in the face of ever rising demands on its services?

[Lord Kamall (Con)]

The Government have always been clear that the share of the levy going towards the NHS to tackle the backlog was temporary and that, in the longer term, we would move to funding social care. As I am sure the noble Lord is aware, for decades, Governments have kicked the can down the road and have not tackled this difficult issue. The Government have been quite firm in committing money and have been learning, in our constant discussion with stakeholders, how best to reform the social care sector.

[The Lord Bishop of Bristol]

Can the Minister give an assessment of whether the health and social care levy will enable more people with moderate care needs to become eligible for social care funding?

[Lord Kamall (Con)]

I thank the right reverend Prelate for that question. I am not able to answer it directly now, but I will send an answer.

[Lord Young of Cookham (Con)]

My Lords, further to the question from the right reverend Prelate, I understand the concern that the proceeds from the ring-fenced levy may not be enough to relieve all the pressure on social care. So will the Minister encourage the NHS trusts, which are receiving the bulk of the extra funds, to use Section 75 of the National Health Service Act 2006 to commission social care, thereby taking some of the pressure off local authorities?

[Lord Kamall (Con)]

I thank my noble friend for that suggestion, and I will take it back. What we have to remember about the way social care is funded is that, in reality, it is mostly private providers that provide social care, and these are funded by private and state-funded patients. Quite often, we find it is private patients who cross-subsidise state-funded patients. I will take the question from my noble friend back and send an answer.

[Lord Morse (CB)]

My Lords, the NHS hospital system is the carer of last resort. When the community’s needs are not being met as they ought to be by social care or primary healthcare, they go into hospital. This puts excessive demand on hospital resources, which should be devoted to dealing with the elective backlog and waiting lists. Does the Minister recognise that this distortion, with its damaging effects on the NHS, can be corrected only when the NHS is partnered by a well-funded and reformed social care system?

[Lord Kamall (Con)]

It is quite clear that, if we want to make sure that the social care system is fit for purpose, we have to make sure that, in the model, enough money is going in to reform the system. Part of the funding does go to helping local authorities push for reform, but, at the same time, it is true that some of the additional productivity as a result of digitisation will help make the NHS more efficient.

[Baroness Pitkeathley (Lab)]

My Lords, is it not an unfortunate fact that not a single penny from the levy will actually go to the front line of social care to relieve those overworked and underpaid staff making 15-minute visits, which is the real urgency? Even when the money does come to social care, some way down the line, will not much of it be taken up with bureaucracy, in making assessments and testing eligibility for the cap that the Government have put into the system? Surely that is something that we have to look at. How much of the money is actually going to go to the front line, not just now but in three or four years’ time.

[Lord Kamall (Con)]

The noble Baroness makes a very important point: we have to see reforms in the social care sector. The spending of £5.4 billion includes £1.7 billion for wider system reforms, including at least £500 million to support the adult social care workforce in professionalisation and well-being. We are also working closely with providers of care, local government charities, the unions, professional bodies, and users of care and their representatives, and will respond to their views in the forthcoming adult social care system reform White Paper, later this year.

[Baroness Brinton (LD) [V]]

My Lords, so far the Minister has responded only on the issue of adult social care. Freedom of information requests from every local authority in England by the Disabled Children’s Partnership reveal that 40% of authorities cut the respite care for parent carers during the pandemic. This comes as eight in 10 parent carers are experiencing some form of anxiety—a rate much higher than among the general population. Can the Minister outline specifically how the health and social care levy will help restore short breaks and respite care for families with disabled children?

[Lord Kamall (Con)]

The noble Baroness makes an important point that we should address. In looking at the wider picture, we recognise that unpaid carers play a vital role in our care system and make a considerable contribution to society, alongside the paid social care workforce. The Care Act encourages local authorities to support unpaid carers and provide preventive care to stop people’s early care needs escalating. The announcement of the £5.4 billion funding marks the next step in our transformational plans for the sector.

[Baroness Eaton (Con)]

My Lords, if the care system is to improve, a critical element is that of a suitably skilled workforce. Can my noble friend tell the House what plans there are to deliver a new deal for the care workforce?

[Lord Kamall (Con)]

I thank my noble friend for that important point. We have listened to the sector and prioritised the adult social care workforce. The investment of at least £500 million over three years will deliver new qualifications, progression pathways, and well-being and mental health support. This workforce package is unprecedented investment, which will support the development and well-being of the care workforce. It will enable a fivefold increase in public spending on the skills and training of our care workers and registered managers, as well as on their well-being.

[Baroness Wheeler (Lab)]

My Lords, the Secretary of State, Sajid Javid, has admitted that the Government cannot commit to clearing the NHS treatment backlog generated by Covid within three years. This is despite the fact that £12 billion a year raised from the levy will mostly go to fund this work and that he is also announcing another £6 billion in capital funding for the same purpose. Does this recognition of the scale of the NHS challenge mean that social care will have to wait even longer than three years for any levy funding? Can the Minister confirm, as he failed to do last week, that the £162.5 million announced for the social care workforce and recruitment fund was new money and not part of previous repackaging, as we have seen with the Chancellor’s pre-spending review announcements so far?

[Lord Kamall]

The funding commits us from 2022 to 2025—it is three years’ funding. The point that the noble Baroness makes is that, of course, we are hoping that we can clear as much of the elective backlog as possible. After that, the money will be moved and will focus on social care reforms. On her specific question, I will write to the noble Baroness.

[Baroness Watkins of Tavistock (CB)]

My Lords, my question builds on that of the noble Lord, Lord Young of Cookham. Can the Minister explain how social care is to cope now, when there is a crisis, without a larger allocation of the levy in addition to funds announced, and, in particular, how delayed transfers of care from acute hospitals may be reduced? Should there be central guidance to the NHS to commission social care services to assist in safe rapid discharge?

[Lord Kamall (Con)]

In looking at how we reform the adult social care workforce, we have consulted a wide range of stakeholders, not only on what we do from 2022 to 2025 but on what we do in the short term. Further details will be announced soon.

[Baroness Tyler of Enfield (LD)]

My Lords, £1 in every £12 spent by local authorities on social care goes towards funding mental health social care, supporting people of all ages who live with severe mental illness, and their carers. Can the Minister say what proportion of the planned levy will be used to fund mental health social care, which provides such a lifeline to all those affected?

[Lord Kamall (Con)]

The noble Baroness makes a valuable point about the need to look at mental health and social care. The issue is that, sometimes, for some of the patients who are being helped, it is not only mental health that we are looking at; there is a multiplicity of issues. I will try to get a specific answer and will write to the noble Baroness.

[The Lord Speaker (Lord McFall of Alcluith)]

My Lords, the time allowed for this Question has elapsed.

Covid-19: Vaccinations Administered Abroad

Wednesday 27th October 2021 Lords Chamber

Question

15:30

Asked by

[Lord Paddick]

To ask Her Majesty’s Government when COVID-19 vaccinations administered abroad will be recorded on the NHS app.

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Kamall) (Con)]

My Lords, a pilot was launched in England on 30 September for residents vaccinated abroad who request that their vaccines are uploaded to the national database. Vaccines equivalent to those that are UK-approved—those regulated by the FDA, EMA or Swissmedic—can generate an NHS Covid pass, currently AstraZeneca, Pfizer, Moderna or Janssen in the US, EU, EEA and Switzerland. So far, 53 individuals have had their records updated, covering 22 countries. Vaccination centres have been quick to adapt and users so far are happy with the resolution.

[Lord Paddick (LD)]

My Lords, the Government say how important it is for eligible people to have their Covid booster jab, but those vaccinated overseas are not being called forward for their boosters because their initial vaccinations are not recorded on NHS systems. When will the Government fulfil the promise made by the then Vaccines Minister in the other place in July that this problem would be fixed by August, and how can those vaccinated overseas get their booster jabs?

[Lord Kamall (Con)]

What we have done is look at a wide range of vaccines that are being administered worldwide and look into how we understand the vaccines that have not yet been approved by the MHRA. We are requesting trial data, for example. Only a couple of days ago, I was in a meeting with a Chilean Minister who was asking me about Sinovac, which was very important. It was very helpful that they were sharing data with the MHRA so that it could make a decision as quickly as possible.

[Baroness Quin (Lab)]

My Lords, on a recent visit to France, I found that it was very easy to transfer my English record of vaccinations to the French anti-Covid app, which I then used when going into restaurants and public buildings. This system worked well for residents and tourists alike. Yet, according to the Government’s own website, the English Covid app cannot generally even import the records from Scotland, never mind other countries. What discussions are the Government having across the UK and internationally to ensure that the pilot that he mentioned is rolled out properly and that we have a fully effective system in the future?

[Lord Kamall (Con)]

The noble Baroness raises a very important issue about the devolved Administrations. As the noble Baroness will know, health is a devolved matter; we are keeping the devolved Administrations informed of progress on the overseas vaccination solution and they are looking to set up similar processes within their own jurisdictions. A Northern Ireland service has just launched. Bidirectional data flows have also been set up by NHS Digital for those who have been vaccinated cross-border between England, Scotland, Wales and the Isle of Man. Bidirectional data flows between England and Northern Ireland will be live soon.

[Baroness Brinton (LD) [V]]

My Lords, in July, the Minister’s predecessor, the noble Lord, Lord Bethell, told your Lordships’ House that the problem with registering Covid vaccines—whether it was UK residents jabbed abroad or those who had taken part in clinical trials—would be resolved by August, in time for the holidays. A further problem is that the app still cannot tell the difference between a third dose and a booster dose. That is important because third-dose people need a further booster dose. To hear that only 53 people have now got their records on an app is appalling. What are the Government going to do about this mess?

[Lord Kamall (Con)]

One of the reasons for the delay has been the wide range of vaccinations that have been administered worldwide. MHRA is working to make sure that it is confident about recognising them in a Covid pass. There is also a range of issues relating to anti-fraud measures that have to be put in place to maintain the integrity of a Covid pass service. The multi-organisation approach that has been adopted has ensured a high-quality service. NHS England has engaged vaccination centres, provided training and enhanced the vaccine data resolution service capability. NHS Digital has updated the API to allow overseas vaccinations to flow from the vaccine database—the so-called national immunisation management system—to the Covid pass. Also, NHSX has built the certification rules to enable overseas vaccinations in the Covid pass.

[The Lord Speaker (Lord McFall of Alcluith)]

The noble Lord, Lord Flight, is not present, so I call the noble Baroness, Lady Walmsley.

[Baroness Walmsley (LD)]

My Lords, another group of people who are not having their jabs recognised are the public-spirited people who took part in the Novavax clinical trial. Novavax has said that it cannot guarantee that having a Pfizer booster is safe for those in their trial, because it has not trialled it. Yet, the Government are now saying that they can have the booster—or they can start all over again and have one of the other jabs. Why?

[Lord Kamall (Con)]

One of the difficult issues we face is pushing international partners to agree that the participants of well-regulated vaccine clinical trials should be treated as fully vaccinated. Only a couple of weeks ago I was on a call with G7 health and transport Ministers, trying to push them to ensure that they recognise those very brave people who came forward for vaccine trials. So far, sadly, we have not had much success. We continue to push them, but, in the meantime, we have found the solution of giving people another vaccine in order for them to be recognised. However, we would prefer international recognition.

[Baroness Thornton (Lab)]

I think the Minister needs to simplify this for the House—it is a very simple issue. If it is possible to register in France that you have been double vaccinated through its systems, why is it not possible to do that in the UK? While the JCVI may be working to fix the issue for UK residents who have been double jabbed abroad, British entry regulations have left foreign visitors in limbo. So, although two doses of Covid vaccine administered by a UK-approved regulator is enough to enter Britain without having to self-isolate, it does not seem to be enough to avoid being pinged by what has now been exposed as our expensive and not very effective test and trace system. Does the Minister agree that this does not make sense, and can he confirm that the JCVI review will also aim to resolve this?

[Lord Kamall (Con)]

As I said, we are looking to resolve as many of these issues as possible. There is no logical reason for this not to happen—it is just that we have to push international acceptance but also make sure that we have gone through the processes, especially for those vaccines not recognised by the MHRA.

[Baroness Hoey (Non-Afl)]

My Lords, further to the point made by the noble Baroness, Lady Quin, about Scotland, does the Minister realise that there has been a huge amount of buck passing between the Northern Ireland authorities and the English authorities about people who are temporarily working in England who have a vaccination and then try desperately to get the Covid pass when they go back? It is really not acceptable. Will he give an assurance now that anyone from any part of the United Kingdom who has been double vaccinated will be able to get a Covid pass, no matter where they got that original vaccination?

[Lord Kamall (Con)]

The Covid pass can be accessed via the NHS app, but, where that is not possible, patients are able to go to the NHS website or to call 119 to get a letter version.

[Lord Lancaster of Kimbolton (Con)]

I remind the House of my interest as a member of the Army Reserve. Many serving personnel and their families have been vaccinated overseas, either by defence medical services or local practitioners, and they too have had a challenge getting their vaccines on to the NHS app. Equally, in reverse, many serving reservists here in the United Kingdom have been unable to get their vaccinations on to JPA—the MoD administration system —meaning that there is a potential delay in their deployment. Since this is not an international problem but a national one between two government departments, can my noble friend simply use his good influences to sort it out?

[Lord Kamall (Con)]

I thank my noble friend for making me aware of that issue; I was not aware of it. On the availability of the Covid pass, I repeat that the NHS Covid pass is available online and via NHS.UK, provided that individuals already have an NHS login. Users can then access it from anywhere in the world and download a Covid pass PDF. Individuals need to be in the UK to download the NHS app, but, once it is downloaded, it can be accessed worldwide. In terms of the conversations between the Department of Health and Social Care and the Ministry of Defence, I will make sure that I do that, and I will write to my noble friend.

[Lord Jones of Cheltenham (LD) [V]]

Following on from the question from the noble Baroness, Lady Thornton, if you are double jabbed in England and test and trace tells you that you have been in contact with someone who has tested positive, you can get a test and, if it is negative, carry on regardless. If you have been double jabbed abroad, you cannot—you have to self-isolate for 10 days. So these people are restricting their social contact with others in case they have to self-isolate. Why can the two categories not be treated equally?

[Lord Kamall (Con)]

The noble Lord makes a very fair point. This is what we are trying to achieve, but we have to work through the trials and the data to make sure that we can do it as soon as possible.

[The Lord Speaker (Lord McFall of Alcluith)]

My Lords, the time allowed for this Question has elapsed.

Health Care and Adult Social Care

Wednesday 27th October 2021 Lords Chamber

Question

15:40

Asked by

[Baroness Wheeler]

To ask Her Majesty’s Government what assessment they have made of the report by the Care Quality Commission The state of health care and adult social care in England 2020/21, published on 21 October, and in particular the concerns about staff shortages this winter.

[A noble Lord]

Round three!

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Kamall) (Con)]

I am on a hat trick. The department welcomes the report by the CQC and recognises the challenges that providers and local authorities are currently experiencing in recruiting and retaining staff, especially social care staff. While local government has a key role to play in tackling staff shortages, the department has been monitoring the situation closely. We have already put in place a range of measures, including funding to help local authorities and care providers address workforce capacity pressures.

[Baroness Wheeler (Lab)]

My Lords, the CQC’s concern about the desperate social care staff shortages this winter and warning about a tsunami of unmet need unless urgent action is taken is very worrying. It is clear that the health and social care levy will not provide any real means of dealing with chronic staff shortages for at least two years. The recent £162.5 million for the workforce retention and recruitment fund gives less than £100 per social care worker, according to this week’s analysis from the Homecare Association of care providers. The CQC has echoed the Commons Health and Social Care Committee’s call in May for an urgent total overhaul of workforce planning in light of workforce burnout after dealing with Covid; a people plan for social care; and an annual independent report with workforce projections. Can the Minister tell the House what progress is being made on this and when we can expect a fully costed and funded workforce plan for this key sector?

[Lord Kamall (Con)]

I thank the noble Baroness for her reference to the £162.5 million of funding for social care through the workforce retention and recruitment fund to help boost staff numbers and support existing care workers through the winter. This is on top of the third infection control and testing fund, introduced in October 2021, which is providing a further £388.3 million of adult social care Covid-19 support until March 2022. This means that, during the pandemic, we have made available more than £2.5 billion in funding specifically for adult social care. We are also taking action to support adult social care providers through a national recruitment campaign.

[Lord Bethell (Con)]

My Lords, this important report is challenging reading for all those who worked on the front line of the pandemic. Its most challenging section is undoubtedly the part on the recovery of services; in particular, as the noble Baroness, Lady Wheeler, said, the importance of

“investment in workforce development and formal changes in service specifications.”

Can the Minister give us some more precise details on how that budget will be spent?

[Lord Kamall (Con)]

I thank my noble friend for his question and for the advice he has given me to date. Even though I have size 11 feet, I am finding it rather difficult to fill his large shoes. On the funding announced, local authorities have a key role in supporting recruitment and retention in their local areas. We are working with them to make sure that they support local providers by identifying workforce shortages, developing workforce plans and encouraging joined-up services. We also continue to work closely with providers, councils and our partners to assess the situation and consider what further action may be necessary.

[Baroness Warwick of Undercliffe (Lab)]

My Lords, the CQC’s annual report highlights the challenges faced by people with learning difficulties, their families and their informal carers. Does the Minister acknowledge this problem? The CQC accepts that its inspection procedures require more emphasis on the knowledge and experience of family and informal carers, following Professor Murphy’s report on the failures and abuse in Whorlton Hall. How can we hope that the CQC and other agencies in health and social care will give priority to the role of family and informal carers when the Government’s main policy statements and papers still virtually ignore their existence?

[Lord Kamall (Con)]

The Government recognise the valuable role that paid and unpaid carers play in social care. We are looking at how we can make sure that we recruit and retain staff. We understand the challenges that many care homes, quite often those in the private sector, face when trying to recruit and retain staff, given the competitive pressures around the jobs market. The Government certainly take seriously the role of unpaid and paid carers.

[Baroness Brinton (LD) [V]]

My Lords, in addition to the winter’s and next year’s workforce plan, the CQC reports that providers of residential care showed the vacancy rate rising month on month from 6% in April to 10.2% in September. Some care homes whose attempts at recruitment have failed are now having to cancel their registration to provide nursing care, leaving residents looking for new homes in local areas that already are at, or close to, capacity. In recent weeks, two homes in York have announced that they are closing. I appreciate the discussion about planning for the workforce but this is a current crisis. What is the Minister going to do as councils are overwhelmed trying to find beds for patients when there are none?

[Lord Kamall (Con)]

I am grateful to the noble Baroness for the specific examples that she gave. The department is constantly monitoring the workforce capacity pressures. We are continuing to gather a range of qualitative and quantitative intelligence in order to have a strong and live picture of how the risk is developing and emerging. In more detail, this includes drawing on evidence gathered by a regional assurance team and regular engagement with key stakeholders, including the Association of Directors of Adult Social Services in England, local authorities and care provider representatives. We are also monitoring data from the capacity tracker, Skills for Care’s monthly workforce reporting and wider market data. To ensure that we are aware of any emerging workforce capacity pressures, we are strongly encouraging providers to continue sharing available capacity and completing the capacity tracker.

[Baroness Donaghy (Lab)]

My Lords, I conveyed my commiserations to the Minister last week. As he said, he is on a hat trick today, but he is no Salah just yet. The noble Lord is obviously not a Liverpool fan. As the report says, over the past year the pandemic has further exposed and exacerbated health inequalities. Case rates and mortality rates were higher in deprived areas—2.4 times higher than in the least deprived areas for mortality. The report stated that

“strategies to identify and tackle health inequalities were not yet well established.”

What is the Government’s strategy for this, given that deprived areas, such as those in London, are often next to the wealthiest?

[Lord Kamall (Con)]

The noble Baroness raises an important point but before I answer that specifically, I reassure her that I am a Liverpool fan, as well as an Enfield Town fan. It so happens that my middle name is Salah. I think that I can wear that name on the back of my shirt with pride. I assure noble Lords that I did not line that question up. One reason why the Office for Health Improvement and Disparities was set up in the first place was to look at disparities across a wide range of issues, not only in social care but in relation to gender inequalities, ethnic minority inequalities and some of the other inequalities and disparities between various areas. As the noble Baroness rightly says, sometimes one can find some of the poorest communities right next to the some of the wealthiest. We are hoping to address those issues through the work of the Office for Health Improvement and Disparities, by first identifying where disparities are and then addressing them.

[Lord Scriven (LD)]

My Lords, with more than 105,000 vacancies in social care, we have a bit of a crisis. Which job would the Minister advise a low-paid worker to take when offered one of these three full-time jobs, all advertised today: a delivery driver at £11 an hour, a supermarket shelf stacker at £10 an hour or a senior care assistant at £9.25 an hour?

[Lord Kamall (Con)]

I do not see myself as someone who is able to offer jobs advice or careers advice. But the points made by the noble Lord help to explain in many ways some of the pressures that care home providers are facing when recruiting in a competitive market. The Government have looked at funding and how we can work with care providers, particularly as many are in the private sector, as I said earlier. They are not directly controlled by the Government and we can therefore work with local authorities and care providers on how to make sure that they pay a competitive salary to attract care workers to work in the social care system, as opposed to some of the more competitive sectors that the noble Lord mentioned.

[Lord Hunt of Kings Heath (Lab)]

My Lords, one of the areas where there is most pressure has been that of unpaid carers. Not only are they having to take on a much greater load but for a long period they could not even visit their loved ones in care homes. In all the programmes that the Government are taking on, can the Minister say explicitly what is going to be done to support carers in their invaluable role?

[Lord Kamall (Con)]

I think that all noble Lords will agree with the point made by the noble Lord about the importance of unpaid carers and also paid carers. In relation to unpaid carers, we hope that as the social care reforms, in particular, come through, patients will be able to take advantage of social care. That will remove some of the burden from unpaid carers and free up their time. We are, however, looking closely at the implications and consequences of some of the proposed reforms.

[The Lord Speaker (Lord McFall of Alcluith)]

My Lords, that concludes Oral Questions for today.

Critical Benchmarks (References and Administrators’ Liability) Bill [HL]

Order of Commitment discharged
Wednesday 27th October 2021 Lords Chamber

Order of Commitment Discharged

15:51

Moved by

[Lord Agnew of Oulton]

That the order of commitment be discharged.

[The Minister of State, Cabinet Office and the Treasury (Lord Agnew of Oulton) (Con)]

My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move an amendment or to speak in Committee. Unless, therefore, any noble Lord objects, I beg to move that the Order of Commitment be discharged.

Motion agreed.

Nazanin Zaghari-Ratcliffe

Wednesday 27th October 2021 Lords Chamber

Commons Urgent Question

The following Answer to an Urgent Question was given in the House of Commons on Monday 25 October.

“It is indefensible and unacceptable that Iran has rejected Nazanin Zaghari-Ratcliffe’s appeal against the new charges made against her. We continue to call on Iran to let her return home to the UK immediately. On 22 September, the Foreign Secretary spoke to the Iranian Foreign Minister to make clear our deep concern about the ongoing situation of Mrs Zaghari-Ratcliffe, alongside the continued detention of Anoosheh Ashoori and Morad Tahbaz. Iran must release British dual nationals who have been arbitrarily detained so that they can return home.

The Foreign Secretary spoke to Mrs Zaghari-Ratcliffe and Richard Ratcliffe on 16 and 17 October respectively. Earlier this month, I spoke to the families of arbitrarily detained dual British nationals and reiterated that the UK Government, from the Prime Minister down, remain fully committed to doing everything we can to help them to return home. We also called for humanitarian treatment of detained British dual nationals. Their welfare remains a top priority for us. We lobby on health concerns and mistreatment allegations whenever we have specific concerns or a family member brings issues to our attention. We call on the Iranian Government immediately to allow health professionals into Evin prison to assess the situation of dual British nationals incarcerated there. We continue to raise their cases at the most senior levels and discuss them at every opportunity with our Iranian counterparts. Our ambassador in Tehran regularly raises our dual national detainees with the Iranian Ministry of Foreign Affairs. The Foreign, Commonwealth and Development Office provides consular assistance to the families of British dual nationals detained in Iran wherever they seek our support.

The UK Government continue to engage with international partners and directly with the Government of Iran on a full range of issues of interest to the UK. Our priorities remain to prevent Iran from acquiring nuclear weapons capability, to promote stability and security in the region and to secure the full release of our dual national detainees. I can assure this House that the safety and welfare of all British dual nationals detained in Iran remains a top priority for the UK Government. We will continue to raise our concerns with our Iranian interlocutors at every level and we will not stop until those who have been detained unjustly are at home with their loved ones.”

15:51

[Lord Collins of Highbury (Lab)]

On Monday, Nazanin’s husband Richard began a hunger strike outside the FCDO. I hope that as many noble Lords as possible from across the House will visit him if they have not already done so. When I met him on Monday, he repeated his description of the Government’s policy on Nazanin as a policy of waiting. Does the noble Lord think that is correct? In 2019 the Government granted Nazanin diplomatic protection. Will the noble Lord explain what this has achieved? What precisely the United Kingdom is doing, with our international allies, to bring an end to state hostage-taking by Iran?

[The Minister of State, Foreign, Commonwealth and Development Office (Lord Ahmad of Wimbledon) (Con)]

My Lords, first, I think that I speak for all noble Lords in saying that we stand very much with all families experiencing the dreadful situation of their loved ones being detained in Iran. The Government will continue to do all we can to ensure that not only are representations made but that we seek their earliest release from Iran, so that they can be reunited with their families.

On the noble Lord’s specific point, we are very much aware of Richard Radcliffe and his situation. As the noble Lord said, he has begun a hunger strike. Tomorrow my right honourable friend the Foreign Secretary will meet Richard to discuss the issue, and I know that she has been very seized with the situation since her appointment.

With regard to the diplomatic protection, as the noble Lord will know, that move raised the issue to formal recognition in terms of state representation. Nevertheless, Iran still fails to recognise Nazanin’s dual nationality status.

[Lord Purvis of Tweed (LD)]

I agree with the noble Lord in encouraging noble Lords to meet Richard, as I have done in advance of this Question. In last week’s debate initiated by the noble Lord, Lord Dubs, I raised Iran’s contravention of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. A statement by the previous Foreign Secretary indicated that it was UK policy that Iran was in contravention of the convention. The concern is that with every new Foreign Secretary—and there have been five since Nazanin’s detention—officials wipe the slate clean. When the Foreign Secretary meets Richard, will she commit to press Iran to investigate this case formally, which is its duty under this convention?

[Lord Ahmad of Wimbledon (Con)]

My Lords, I hear what the noble Lord says. On my return from your Lordships’ House, I will make sure that this issue is raised specifically in the briefing that is prepared.

[Lord Trefgarne (Con)]

My Lords, is it not the case that the Iranian authorities maintain that we owe them a very large sum of money relating to a cancelled contract some years ago? What is the Government’s position on that matter, and does it play a part in these discussions?

[Lord Ahmad of Wimbledon (Con)]

My Lords, one thing that we have been clear on is that this situation—the debt referred to by my noble friend—is a live issue bilaterally between the United Kingdom and Iran. On the debt itself, as I said last week during the debate on a QSD asked by the noble Lord, Lord Dubs, there has been an adjournment on this case. I cannot go into the details, but the next hearing on this case and its details will be in April 2022. We have been clear what needs to happen is that Nazanin and others who are being held should be returned.

[Lord Dubs (Lab)]

My Lords, if the Iranians believe that we owe them £400 million, and believe that we have promised that that money will be paid, without excusing the Iranian Government for any of things they are doing to the hostages, surely the Iranians have a sense that we have not been straight with them. Can we look at this £400 million again? Never mind the legal action, which has just been delayed. The Urgent Question repeat uses fine language but does not add up to anything at all. I put this to the Minister: there is a belief that there is more going on than we know about and that there is some reason why the Government keep hedging their bets and not getting on with it. What is it?

[Lord Ahmad of Wimbledon (Con)]

My Lords, as I said, I cannot go into the case itself; notwithstanding his comments about the sensitivity of commenting on an ongoing legal hearing, I am sure that the noble Lord will appreciate that I have shared as much as I can on the details of the case.

On what we are doing to seek Nazanin’s release and that of others, I assure the noble Lord that we are working in diplomatic channels and with international partners. I mentioned the Human Rights Council last week. We are raising these issues consistently and directly with the Iranians as well.

[Lord Bruce of Bennachie (LD)]

My Lords, this sorry saga has been going on for more than five years. Each time, the Government’s involvement seems to have made matters worse, not better. Will they recognise that the dual nationality issue is an excuse by Iran? This woman is a British citizen and should expect to be supported by the British Government. How come we have a claim for a global Britain but are unable to find a solution to release this shamefully wronged British citizen?

[Lord Ahmad of Wimbledon (Con)]

My Lords, I do not agree with the noble Lord that the Government have not prioritised this case and others. We continue to do so. Of course, there is a relationship with Iran on wider issues as well where, again, the Government have taken what I believe to be the right line, particularly in connection with the JCPOA. On this case and others, we will do all we can to ensure an early release. As far as the wider issues are concerned, they play into the general narrative but we are very much focused on individual cases.

[Baroness Blackwood of North Oxford (Con)]

My Lords, can the Minister say whether it has been possible to make a reasoned assessment of Nazanin’s health and whether she has been able to access any medical care?

[Lord Ahmad of Wimbledon (Con)]

My Lords, my noble friend raises an important point. We are consistently in touch with Nazanin directly. Indeed, my right honourable friend the Foreign Secretary spoke to her on the 16th of this month. We are in direct contact with her, Richard Ratcliffe and other families to ensure that the issues my noble friend raises around health and general welfare are being addressed.

[Baroness Butler-Sloss (CB)]

My Lords, if it is true that the Government owe Iran some money, is it not possible to have some form of compromise and a discussion with government lawyers to see whether something can be paid to it? The detail of whether there should be interest and that sort of thing can go through the laborious process until next April. Give Iran some money and see whether it does any good.

[Lord Ahmad of Wimbledon (Con)]

My Lords, as ever, the noble and learned Baroness puts forward a practical solution. However, she will know better than me the specific issues around the legality and sensitivity of ongoing legal proceedings. For me to comment any further would not be appropriate.

[Lord Mackenzie of Framwellgate (Non-Afl)]

My Lords, having watched this cruel saga play out over the years, it is obvious that the Iranian regime—or the Iranian Revolutionary Guard, to be more accurate—is playing mind games with a British citizen who is being used as a political pawn. Does the Minister agree that this matter must be completely divorced from any financial debt that may or may not have been incurred by different Governments of the day? If the UK Government accept liability in principle, surely the matter can now be settled amicably without either side losing face and the torture of a mother and her family can be brought to an end.

[Lord Ahmad of Wimbledon (Con)]

The noble Lord articulates the position very clearly; we should not focus on seeking to join the two issues. We do not believe that there is any reason for Nazanin Zaghari-Ratcliffe to be detained in Iran, which is why we continue to implore the Iranians to ensure her early release and continue to campaign on that very principle.

[Lord Robathan (Con)]

My Lords, we cannot join these two things together, but this is about a hostage who has been taken. If she is released for some money, there will be another issue and the Iranians will take another hostage for another reason.

[Lord Ahmad of Wimbledon (Con)]

My noble friend articulates the position very well and I agree with him.

[Lord Cormack (Con)]

My Lords, while I accept what my noble friend has just said, there is a debt and there is a hostage. Following on from the point made by the noble and learned Baroness, Lady Butler-Sloss, can we not lodge this money with the United Nations, so that we acknowledge there is a debt and when she has been released, as she should be immediately on humanitarian grounds, we can go forward?

[Lord Ahmad of Wimbledon (Con)]

My Lords, again I hear what my noble friend has said but I cannot say any more than I have already on the case and legal proceedings.

[Baroness Wheatcroft (CB)]

My Lords, when he was Foreign Secretary, the man who is now our Prime Minister misspoke about the reason for Nazanin Zaghari-Ratcliffe being in Iran. Should he not now take personal responsibility for getting her out, as those words undoubtedly worsened her position?

[Lord Ahmad of Wimbledon (Con)]

My Lords, my right honourable friend the Prime Minister takes the issue of Nazanin Zaghari-Ratcliffe, and indeed all detainees in Iran, very seriously and is personally engaging on this issue.

Arrest of Sudanese Prime Minister

Wednesday 27th October 2021 Lords Chamber

Commons Urgent Question

The following Answer to an Urgent Question was given in the House of Commons on Monday 25 October.

“I am grateful for the opportunity to answer this Urgent Question. The UK most strongly condemns today’s arrest of civilian members of Sudan’s transitional Government by the military. We are also deeply concerned about reports of shooting at protesters, which must stop.

Over the past two years, Sudan has been on the delicate pathway from oppressive, autocratic rule towards freedom and democracy. The UK has been a consistent and firm advocate for the democratic transition since the 2019 revolution. The acts of the military today represent an unacceptable betrayal of the Sudanese people and their journey to democracy.

I was in Khartoum just last week, when I stressed the need for all parties to support the civilian-led Government’s work to deliver the democratic transition, the process agreed by all sides in the constitutional declaration of August 2019. The military leadership in Khartoum cannot claim to be committed to a democratic future while simultaneously acting unilaterally to dissolve the transitional institutions and to arrest leading civilian politicians.

The Sudanese military agreed to the power-sharing agreement, as outlined in the constitutional declaration. Having arrested the Prime Minister and others today, the military have undermined the trust placed in them by the people of Sudan to deliver democracy.

At this very moment, there is a communications blackout and, therefore, only intermittent contact with my officials in Khartoum, but they are working to establish the full details of the situation. We have updated travel advice to reflect the unrest and we will keep it under review to ensure the safety of British nationals and our staff, although I understand there are no flights at the moment. We are working with international partners and expect to make a public statement later today. I will also speak to my US counterpart later today.

As we know well in this place, disagreement and debate are essential features of democratic politics. Disagreement and debate are neither a threat to Sudan nor a threat to the Sudanese people and as such I urge Sudan’s military leadership to change its course, to release detained politicians, including Prime Minister Hamdok, and to ensure Sudanese people can protest without fear of violence. The actions of the Sudanese military today are wholly unacceptable.

Women were a major driver of the 2019 protests that fought so bravely for democracy. Last week in Khartoum I met inspiring women leaders, inspiring women social reformers, inspiring women entrepreneurs and inspiring women community leaders, including the truly awe-inspiring Mama Iqbal, who successfully eradicated female genital mutilation in her 200,000-strong community of Tutti Island. She has undertaken to roll out her work across the country with help from UK aid.

Women and girls have a vital role to play in Sudan’s future and the UK stands with them. The military’s actions today have betrayed all the people of Sudan, but especially the women and girls.”

16:02

[Lord Collins of Highbury (Lab)]

My Lords, on Monday Vicky Ford welcomed the United Nations Secretary-General’s condemnation of the military’s action, stating that the UK was actively calling for a briefing at the UN Security Council. She added that she would be speaking to her US counterpart later that day. Can the Minister update the House on the progress of these initiatives? The release of Prime Minister Abdalla Hamdok yesterday is welcome but the statement by his office said that other government officials remained in detention, their locations unknown. Can the Minister tell us what discussions in the last 24 hours Ministers in the department have had with the security and military forces in Sudan to urge the release of those who have been unlawfully detained?

[The Minister of State, Department for the Environment, Food and Rural Affairs and Foreign, Commonwealth and Development Office (Lord Goldsmith of Richmond Park) (Con)]

My Lords, the UK strongly condemns the arrest of civilian members of Sudan’s transitional Government by the military yesterday. We are also deeply concerned by reports of protesters having been shot. Over the past two years, Sudan has been on a delicate pathway from oppressive autocratic rule towards freedom and democracy. The Minister was in Khartoum last week, as she told the House of Commons, where she stressed the need for all parties to support the civilian-led Government’s work to deliver the democratic transition process that has been widely agreed.

In response to the noble Lord’s question, together with the US and Norway we have issued a troika statement condemning the suspension of the institutions of state, the declaration of the state of emergency and the detention of Prime Minister Hamdok and other members of the civilian leadership. The statement also calls for the immediate release of those unlawfully detained.

[Lord Purvis of Tweed (LD)]

My Lords, I declare an interest as outlined in the register. I was due to be in Khartoum next Friday, scheduled to meet Prime Minister Hamdok on my 13th visit to Sudan before, during and after the democratic revolution. It is an absolute tragedy that has afflicted the people of Sudan, especially the women and young people, who have been so active in the transition process. There is considerable concern that diplomatic access will be refused to officials, many of whom I have spoken to over the last few weeks leading up to the coup. Can the Minister update the House on ensuring that there is diplomatic access to Prime Minister Hamdok and other Cabinet Ministers who have been detained and are now under house arrest in their own properties?

Secondly, there is significant concern that certain countries allied to the UK may well be offering significant sums of money to the military, which has now taken power. Will the troika and the EU work together to ensure that allies of our countries will not financially support military dictatorships that overthrow democratic transitional administrations?

[Lord Goldsmith of Richmond Park (Con)]

The noble Lord makes an important point. It is clear, as everyone would agree, that the actions of the military are unacceptable. We are reassessing our commitment to restart a phased defence engagement in light of what has happened. The noble Lord also mentioned the impact particularly felt by women and girls. It is worth acknowledging, as the Minister for Africa said yesterday, that women were a major driver of the 2019 protest and fought so bravely for democracy. Last week in Khartoum, Minister Ford from the other place met a number of those inspiring individuals who have shown the vital role that women and girls have to play in the country’s future, and the UK solidly stands with them, both from over here in the United Kingdom and through our humanitarian assistance and overseas development programmes.

[Baroness Bertin (Con)]

My Lords, I beg leave to move the amendment in my name—

[A noble Lord]

We are not in Committee yet.

Northern Ireland (Ministers, Elections and Petitions of Concern) Bill

1st reading
Wednesday 27th October 2021 Lords Chamber

First Reading

16:06

The Bill was brought from the Commons, read a first time and ordered to be printed.

Police, Crime, Sentencing and Courts Bill

Lords Hansard - part one & Committee stage
Wednesday 27th October 2021 Lords Chamber

Committee (3rd Day)

16:06

Relevant documents: 1st, 2nd, 4th and 6th Reports from the Joint Committee on Human Rights, 6th Report from the Delegated Powers Committee, 7th Report from the Constitution Committee

Clause 8: Powers to collaborate and plan to prevent and reduce serious violence

Amendments 36 to 41 not moved.

Clause 8 agreed.

Clause 9: Power to authorise collaboration etc. with other persons

Amendments 42 to 48 not moved.

Clause 9 agreed.

Amendments 49 to 53 not moved.

Clauses 10 agreed.

Schedule 1: Specified authorities and local government areas

Amendment 54 not moved.

Schedule 1 agreed.

Clause 11 agreed.

Schedule 2 agreed.

Clause 12: Preventing and reducing serious violence

Amendment 55

Moved by

[Baroness Bertin]

55: Clause 12, page 13, line 4, at end insert “, and domestic abuse, domestic homicides and sexual offences”
Member’s explanatory statement
This amendment would clarify on the face of the legislation that the definition of serious violence, for the purpose of the proposed Serious Violence Prevention Duty, includes domestic abuse, domestic homicide and sexual offences.

[Baroness Bertin (Con)]

I apologise for being a bit quick off the mark earlier.

Amendment 55 would clarify in the legislation that the definition of serious violence, for the purpose of the serious violence prevention duty, would include

“domestic abuse, domestic homicides and sexual offences”.

While it is right to acknowledge the many male victims of domestic abuse and sexual violence—and this amendment would serve them also—the change we seek today is about stamping out a culture where violence against women and girls has been tolerated for too long. Zoë Billingham, the excellent outgoing inspector for Her Majesty’s Constabulary, described the level of violent and abusive offending against women and girls in this country as an “epidemic”. She is right: 1.6 million female victims of domestic abuse; 892,000 female victims of stalking; 618,000 female victims of sexual assault; 55,000 rapes, with less than a 2% charge rate; and, finally, 110 women murdered last year. Some names we know, but many more we do not. This grim tally should mark a watershed in our attitudes, and I heap praise on the domestic abuse commissioner and her team for their leadership in this regard.

I also thank my cosignatories—the noble Lords, Lord Polak, Lord Rosser and Lord Russell of Liverpool. This amendment is truly cross-party, as it should be. The strength of feeling on this issue bridges the political divide and, for once, I am absolutely delighted by the gender imbalance in this line-up of names. While of course it is men’s behaviour that is the problem, we must be careful not to pitch this as men versus women. This is about violent men versus the whole of society, but we need men—all men and all society—to engage in this and be part of the conversation and the solution.

The main justification for excluding sexual offences and domestic abuse from the Bill has been its focus on localism and flexibility, allowing local leaders to fit the strategy to local crime profiles. That is of course entirely reasonable when talking about gun and gang crime and such issues, where there are clear geographical hot spots, but this simply is not the case with domestic abuse and sexual offences; these crimes are happening everywhere. To my mind, localism is about where we put new housing estates and schools. It should never be about allowing individual areas to opt out of prioritising domestic abuse and sexual violence. This is the wrong issue on which to devolve decision-making, but it is already happening, which is why this amendment is more crucial and urgent than ever.

Of the 18 violence reduction units that have already been set up, only eight have included domestic abuse and sexual violence in their plans. Indeed, the Government’s own serious violence strategy makes no meaningful reference to sexual violence and domestic abuse, which is a problem, as often local boards refer back to it when making their policies. I am keen to stress that this amendment would not restrict flexibility at a granular level; of course a strategic needs assessment would still be carried out and specific interventions would differ from area to area.

I also say, on the record, that I absolutely do not doubt the Government’s commitment on this issue. I know they listen and I know they care. They listened to people on the front line a great deal during the passage of the Domestic Abuse Act, and look at the changes that have come in: the rough sex defence has been ended; revenge porn, coercive control and economic abuse offences have been extended; and upskirting is now a crime. Very importantly, they have extended the period of time in which you can put forward an assault charge based on domestic abuse; that was crucial. I will not list them all, as the list is long, but it is important to acknowledge that the Government have done a good deal. I hope they continue in that vein.

I strongly believe that explicitly including these offences in the duty would maximise the potential for a multiagency, public health preventive approach. We have talked about this a great deal in the House, and we all know that this is the only way to see real change on such a deep-seated societal issue. If we do not take this approach, we will be making these speeches again and again, for many years to come.

16:15

[Lord Carlile of Berriew (CB)]

I am grateful to the noble Baroness. Does she agree that the passing of her amendment, or something like it, would send out a clear message to the Crown Prosecution Service that its policy change-based failure to prosecute significant numbers of rape offences and other serious sexual offences should be reviewed as soon as possible?

[Baroness Bertin (Con)]

I thank the noble Lord for his intervention and absolutely agree. Of course, it would not solve the entire issue, but it would set us on the right path in sending that signal to the CPS, as well as to the police.

The multiagency, public health preventive approach is so important. Education plans, health plans and a more standardised perpetrator scheme would all be part of what this change could look like. It is important to note that the HMIC report that the Home Secretary commissioned warned that this duty, as it stands, would not go far enough in that regard.

The noble Lord, Lord Polak, mentioned in his speech at Second Reading that we need to make sure that such landmark legislation, the Domestic Abuse Act and this Bill, does not stand in isolation. We need to sustain the momentum of this ambition. Let us once and for all try to buck the trend of silo policy-making and bring together this work in a meaningful way.

As others have discussed in previous debates, it is right that the burden should not fall entirely on the police. I think we spoke about “broadening the base”, and that is why it is crucial that we get this duty right. Nevertheless, the specific policing response and the CPS response deserve a lot of attention. One-third of all violence reported to the police is domestic abuse related. This is not a small slice of their work. While their response to this crime has certainly improved over the past decade, and there are pockets of excellence and dedication, which we must acknowledge, there are still inconsistencies at every level in how the police respond to victims of domestic abuse and sexual offences, and shocking variations in how frequently—perhaps infrequently would be more appropriate—different forces use the protective powers available to them. I am sure that the noble Baroness, Lady Brinton, will speak at length on stalking; some forces around the country seem entirely unaware that stalking protection orders are available to them, and this has to change.

Another statistic that shocks me is that three-quarters of all domestic abuse cases are stamped with “no further action”. We know from the rape review that was launched this year, and as the noble Lord, Lord Carlile, has pointed out, that that happens with so many incidents of sexual offences. It cannot continue. The lottery of standards among the 43 police forces in this country, and within individual forces, means it very often boils down to who picks up the phone or who responds to the call as to how victims are dealt with.

I will make one further point before I finish. As with other high-harm crimes, such as terrorism and organised crime, I believe strongly that violence against women and girls should be marked with a clearer focus, better funding, minimum standards and far more national co-ordination. This amendment is only part of the answer—of course it is—but it could be instrumental in starting that journey to greater consistency. Small actions taken together can make a big difference. While this amendment is relatively simple, its effects could ripple out.

Finally, you do not wake up one morning and become a murderer or a rapist; you work up to it. The horrific chain of events leading to Sarah Everard’s terrible murder laid this bare in the starkest of terms. We have to act to do all we can to stop this kind of behaviour in its tracks before it escalates and takes lives. There is an opportunity in this Bill, and we must take it.

[Baroness Brinton (LD) [V]]

My Lords, before I speak to my Amendment 56, I will start by saying that I completely agree with everything that the noble Baroness, Lady Bertin, has just said. Amendment 56 adds to Amendment 55’s

“domestic abuse, domestic homicides and sexual offences”

the words “and stalking”, to be added to the definition of the serious violence prevention duty. As the noble Baroness identified, this is a keen interest of mine. I also support the noble Lord, Lord Carlile, pushing for a charging review for this range of crimes. Too often, they are either ignored or charged at a much lower crime rate.

The Minister will remember that, during the passage of the then Domestic Abuse Bill, many hours were spent looking at the typical progression of violence in obsessed perpetrators. Some of us asked the Ministers to look at the reverse structure of someone who had committed a crime of serious violence. All too often, the elements of behaviour were there from early on in their fixated behaviour. I understand that that is why the noble Baroness, Lady Bertin, and others have laid their amendment to ensure that this trajectory of behaviour starts to be monitored early; and it also recognises when domestic violence accelerates very quickly. Adding

“domestic abuse, domestic homicides and sexual offences”

is absolutely vital.

But I regret that stalking was not on the list in her amendment, and I will focus briefly on that. First, victims of stalking say that they often do not go to the police until around the 10th worrying event has happened. Shamefully, it often takes many more before stalking is taken seriously by the police. But many perpetrators of stalking, as I have said, progress in their fixated behaviour, and serious violence and homicide are too often evident.

The noble Baroness, Lady Bertin, referred to stalking protection orders. I was pleased when they were implemented, but they are far too sparingly used, and some victims are told, “That’s all you need. It’ll be fine now”. Yet injunctions still have to be taken out and cautions still have to be issued, and, all the while, their stalker’s behaviour is becoming worse and worse.

According to Dr Jane Monckton-Smith, stalking sits at point 5 of the eight points on the homicide timeline, due to the fact that risk to the victim escalates at the point of leaving an abusive relationship. Monckton-Smith’s 2017 study of 358 homicides, all of which involved a female victim and a male perpetrator, revealed stalking behaviour as an antecedent to femicide in 94% of the cases. These figures demonstrate how vital it is to work on prevention for stalking cases.

There is a misconception that stalking is almost exclusively perpetrated by people on former partners and, therefore, probably covered by domestic abuse. This is untrue. The real figure is closer to 50%. Too many victims of non-partner or former-partner perpetrators of stalking report that, the first time that they talk to the police, they are told that they are overreacting, and some, especially young women, are even told that they should be grateful for the attention.

So stalking victims are too often ignored, and that is worrying. There is no other word for it than “ignored”—I know. The man who stalked me and other colleagues—he stalked men, too—over a three-year period grew progressively more fixated. Among other very unpleasant acts, such as abusive anonymous letters and telephone calls, his violence was initially against property—breaking windows, pulling down signs and scratching cars—but, each time, it was a bit stronger, more aggressive and more distressing. It took well over a year and 130 incidents before the police started taking it seriously. But their attitude changed completely when, night after night, he started using a very large knife to slash tyres. Their forensic psychologist warned that they expected that he would start using that knife on his targets next. We all knew who the perpetrator was, and, finally, we saw that the police started to move. He was then arrested quickly, and he pleaded guilty.

More recently, in June this year, Gracie Spinks, who, like many stalking victims, was let down by police because they did not take any of the early reports and link them together, was murdered at the riding stables she worked at by a former colleague from a previous job. She had reported her concerns to police four months earlier. He had turned up unannounced at the stables. Separately, a bag containing knives, an axe, a hammer and a note saying “Don’t lie” was discovered very close to the stables six weeks before Gracie’s murder. That breadcrumb trail was all there, and it was typical of a serious stalker, too—the perpetrator profile is well known. Gracie’s father, Richard, has said that if only the police had connected the incidents, his daughter would not have died.

Neither Gracie’s nor my case would have been covered by Amendment 55. Stalking needs to be added to this section on the serious violence protection duty just as much as domestic abuse, domestic homicides and sexual offences.

[Lord Polak (Con)]

My Lords, I am very pleased to add my name to Amendment 55 and pay tribute to my noble friend Lady Bertin for her leadership on these matters. I was also pleased to have worked with my noble friend, together with the noble Lords, Lord Rosser and Lord Russell of Liverpool, during the passage of the Domestic Abuse Bill.

The amendment in our names is an extension of our previous work. I shall not repeat and rehearse the reasons why it is important that the definition of serious violence for the purpose of the proposed serious violence prevention duty must include domestic abuse, domestic homicides and sexual offences. For me, it is straightforward, and I make a simple appeal to my noble friend the Minister, who was so instrumental in piloting the Domestic Abuse Bill through Parliament with such professionalism, dedication and patience. There is an opportunity to cement and build on that historic and vital legislation, to build on what was achieved, so that it can be possible for the serious violence strategy to recognise domestic abuse and sexual violence. Can it be possible for a serious violence strategy not to recognise them as forms of serious violence? It would be difficult to understand.

The Domestic Abuse Commissioner, Nicole Jacobs, has said that the Government risk missing an opportunity to make a “historic shift” in the handling of this problem. She went on to suggest that this amendment could deliver a step change, ensuring a focus not only on crisis provision but on early intervention and prevention measures to stop abuse occurring. I totally agree with her.

The Home Office’s draft guidance says that local areas “could” consider violence against women and girls as part of the new duty if they choose to. I am still trying to get my head around “could”. How about “must”? This short and succinct amendment is so important, and I just do not understand who could not support it.

[Lord Russell of Liverpool (CB)]

My Lords, I also support the amendment in the name of the noble Baroness, Lady Bertin. I thank her for putting it so cogently and the noble Lord, Lord Polak, for following up.

The Minister has been nothing but consistent in advocating what the noble Baroness, Lady Bertin, described as localism, which is enabling local areas to decide for themselves what they include in their definitions of serious violence. Here I pay tribute—which may surprise some people—to our Home Secretary, because earlier this year, in the wake of the tragic murder of Sarah Everard, she commissioned a study by Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services, under the leadership of Zoë Billingham, referred to earlier, to look into the circumstances which had allowed the murder of Sarah Everard and so many other women to take place. That report was published three days after Second Reading of this Bill last month.

16:30

The report, which the Home Secretary asked to be done, says clearly, in black and white, that localism is not working. In fact, localism is serving to fuel what I can only describe as a wave of domestic terrorism, because essentially domestic violence is domestic terrorism. If you look at how many people are killed in this country on average each year through terrorism, it is, thankfully, a minuscule amount. If you look at how many women—primarily—are killed every year in this country through what I am calling domestic terrorism, it is approximately two and a bit every week, week in, week out. We know the figures. It does not stop. It is like an awful, ghastly Halloween metronome that will not stop. We have to do something to stop it.

Zoë Billingham’s report demonstrated graphically that, at national level, local level, force level and individual level, there are severe, endemic failings. That is primarily because, despite some good initiatives in some police forces, such as Nottinghamshire and the Met in London, they have been done in such a scattered and disaggregated way that they are as nothing compared with what is going on in the vast majority of police forces. You cannot develop proper, joined-up best practice unless you are doing it in a concerted, integrated and thoughtful way.

Essentially, Zoë Billingham’s report provides strong backing for what the Domestic Abuse Commissioner has asked the noble Baroness, Lady Bertin, the noble Lords, Lord Polak and Lord Rosser, and me to do, which is to articulate and to give voice to the profound and troubling but stark findings of that report. I appeal to the Government to build on the good work started by the Home Secretary. This report has provided the evidence that the Government need to take action and, I would argue, please, to accept this amendment.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I add my support for the noble Baroness, Lady Bertin, in Amendment 55, and I will speak in support of Amendment 56. I want to develop the theme that both she and the noble Lord, Lord Russell, have been talking about, which is of the inconsistencies in the local response to this huge challenge.

I go back to HM inspectorate’s report, because it laid this out. It started by paying tribute to dedicated professional police officers, which is absolutely right, but it found that, at individual level, victims reported very different responses, depending, as the noble Baroness said, on which officer they spoke to or which call handler took the call. It told us that some officers showed exceptional care and sensitivity, while others made the victims feel that they were not believed. We heard from the noble Baroness, Lady Brinton, about the specifics of her own case and the huge challenge that she had in getting the police to start to take it seriously.

The inspectorate goes on to say,

“at force level: there are unexplained variations in how frequently different forces are using the protective powers and orders at their disposal to protect women and girls; at local partnership level: roles and responsibilities for partners working together in multi-agency safeguarding arrangements vary considerably; and at national level: actions to improve the police response are split over multiple Government strategies. These structural, strategic and tactical inconsistencies must be addressed if the police and their partners are to make inroads in tackling the deep-rooted problem of VAWG offences.”

That is why we need some action at national level. If we leave it to local forces and the local safeguarding arrangements, I am afraid that nothing will happen to improve the situation.

I want to say a few words in support of our Amendment 56. We would like to add “stalking” to the noble Baroness’s amendment and perhaps persuade her to come back on Report with a more comprehensive amendment, if at all possible, because we are all batting off the same wicket. We know that stalking is a very serious crime, but it is underreported and underprosecuted. We debated this during the passage of the Domestic Abuse Bill. The case is as strong as ever. Stalkers are often mischarged with other crimes and it is common for the National Stalking Helpline to see high-level stalking cases managed as low-level nuisance behaviours. As a result, stalking behaviours are not being adequately identified. We believe that the noble Baroness’s amendment could be enhanced by the addition of stalking as a serious issue that is not being tackled effectively at the moment. I am sure that I speak for many noble Lords in hoping that we can pull all this together in a consensus amendment on Report.

[Baroness Newlove (Con)]

My Lords, I applaud my noble friend Lady Bertin’s eloquent speech about something so sensitive and dangerous.

During the passage of the Domestic Abuse Bill, we had lots of discussions about stalking. I rise to speak because my name is on Amendment 56. It saddens me that we are still battling in this area, which is so fragile and misunderstood by the agencies that are there to protect. I congratulate my noble friend the Minister, who listens to our speeches all the time and takes them on board, but I reiterate the seriousness of what my colleagues have said. We are talking about human lives. We are not talking about figures or money; we are talking about human lives that are being brutally lost.

This is where we need to gain some perspective on what we are doing in legislation. Legislation is important to legal people, politicians and your Lordships’ House but, on the outside, how does it protect an individual who is being stalked or is losing their life through domestic abuse? Where do we draw the line in saying, “Enough is enough, we’re going to protect you”? As we have heard, Dr Jane Monckton Smith’s report says that stalking sits at point five of eight on the homicide timeline due to the fact that risk to the victim escalates at the point of leaving an abusive relationship. We need to include stalking in my noble friend’s Amendment 55 because that is the only way in which the serious violence reduction duty will guarantee robust prevention work being rolled out consistently across the country. We talk about localism and centralism but, for everybody on the street, that is not language that they understand. This is about their safety and agencies understanding the issue.

In the dictionary, stalking is like a cat chasing a bird. Put simply, that is what is happening to these people. There is a delicate line in proving it when people are traumatised and are being brutalised in their home, in their workplace and wherever they travel. If we cannot get this right in the Bill, we simply are not listening to the figures on the human lives that are being lost every day. As we speak, somebody is being stalked and going through that. I ask my noble friends the Minister and Lady Bertin: please can we look at this? I would love to have this issue included at the end of Amendment 55.

[Baroness Hamwee (LD)]

My Lords, Amendments 57A and 59A have been grouped here. I am always hesitant to follow with a small, perhaps technical, point on important points such as have been made this afternoon.

My amendments are intended to inquire of the Minister the place of online activity in this issue. The clauses that we are looking at are very much place-based—this part of the Bill refers to “area” almost throughout—but what prompts the violence may not be place or area-based. Given the statutory requirements for the assessment of the criteria, my amendments probe whether the role of online activity has a place in that assessment. Grooming and other activities may be generated in one geographical or police force area but directed more widely.

There are examples, obviously, of violence online intended to prompt copying, which this amendment is not specifically directed at. I dare say that the answer to that will be the online harms Bill. But I would like to ask the question, perhaps in another way, of how this legislation is to work together and to be assured that we are not at risk of missing opportunities or leaving gaps.

[Baroness Altmann (Con)]

My Lords, I, too, support Amendment 55 in the name of my noble friend Lady Bertin, and I pay tribute to all the work she has done in this area. This is a relatively straightforward amendment which would send a very strong message to police forces, local statutory agencies and the public that domestic abuse and sexual violence are priorities to be both prevented and tackled.

Too often, our response to these types of crime comes too late for the victim. The benefits of this duty would be to ensure that we have a robust preventive approach that brings together a range of different partners and ensures that police forces are considering domestic abuse and sexual violence within the definition of serious violence for the proposed new statutory duty.

I, too, congratulate my right honourable friend the Home Secretary on calling for the HM inspectorate report following the tragic death of Sarah Everard. The report, whose authors I also congratulate, points to

“the co-ordinated and bespoke multi-agency response that is needed specifically for VAWG.”

It also says that the current drafting of the proposed serious violence prevention duty in the Bill does not go far enough.

The Government have already made significant progress on tackling domestic abuse through the Domestic Abuse Act, and I pay tribute to my noble friend the Minister and her team for all the dedication and hard work that have gone into that landmark piece of legislation. There is still more to be done. I think this amendment could be the missing piece of the puzzle to help maximise the approach in regard to domestic abuse, homicide and sexual offences.

I understand that the Government have some concerns that Amendment 55 could undermine the flexibility of the duty, but it simply clarifies the nature of the definition. It does not bind local areas to that definition, but it would require them to take this issue more seriously and would, I hope, prevent some of the dreadful acts we have heard about today and at Second Reading. This amendment is supported by the domestic abuse commissioner, and I join in the thoroughly deserved praise that the commissioner and her office have already received. I hope that my noble friend on the Front Bench, who I know cares passionately about these issues as well, will listen to the strength of the arguments on this amendment.

[Baroness Wyld (Con)]

My Lords, I start by apologising to the Committee for not speaking at Second Reading—I am afraid that I had a household full of Covid. I am finally here and delighted to support Amendment 55 in the name of my noble friend Lady Bertin, and congratulate her on her brilliant campaigning.

I am quite surprised that my noble friend still has to campaign. While I had Covid, I watched the debate from start to finish and listened to the Minister’s response. I think, first, that my noble friend’s amendment is clearly on the right side of the moral argument; there is no disagreement there. But because she is so persuasive, we have to test the counterarguments. I have done that, and I think that it is entirely properly thought-through and proportionate, so perhaps my noble friend the Minister could help me with some things I genuinely still do not understand about the Government’s hesitation.

I noted in particular the Minister’s reference to scope and her concern that other offences could, in effect, be pushed out should my noble friend Lady Bertin’s definition be added to the Bill. In other instances, however, where the Government believe that clarification is necessary, there are named forms of violence; for example, against property. This is a general question rather than a veiled assertion. Can the Minister clarify this for me?

16:45

Others, including the noble Lord, Lord Hunt, and my noble friend Lord Polak, have challenged the Government on local decision-making. I tested myself and wondered whether I was being hypocritical here, because I often tell the Government that they are too prescriptive and we cannot have a Whitehall-down approach. However, in this case, if I may say so, I think that the Government are misguided. My noble friend Lady Bertin always sets things out so powerfully. It is not as if there are areas living blissfully free from domestic abuse and sexual violence. If any areas believe that they are—and I very much doubt it—surely that is all the more reason for national leadership on this issue and definitive action through the Bill.

As my noble friend Lord Polak mentioned, the Home Office guidance states that local areas “could” consider violence against women and girls as part of the new duty if they choose to. The logical conclusion, then, is that the Government are—what?—neutral or relaxed if a local area chooses not to. I cannot believe this is the case, especially knowing my noble friend the Minister as I do, but she must see the effect of this equivocation.

I must remind myself to stick to the amendment, so I will wrap up simply by saying that I believe that the Government’s intentions are very good, but I do not think that their performance is always coherent when it comes to violence against women and girls. I will pay very close attention to the Minister’s response, and I assure my noble friend Lady Bertin of my support, whatever happens going forward.

[The Lord Bishop of Gloucester]

My Lords, I too add my support to the amendment moved by the noble Baroness, Lady Bertin. Many points have been covered, and I simply want to say that if the definition of serious violence is not expanded in this way, the concern is that many local areas will not consider it within their strategies.

Join-up on this is absolutely vital. Local strategies to prevent domestic and sexual violence through education, research and specialist violence reduction units are key, including primary prevention, which I have raised before in your Lordships’ House. We must do all that we can to enable work across services and through effective partnership.

As has been said, the Domestic Abuse Act is a very good thing, yet a lot of time was spent during the passage of that Bill in this House trying to highlight overlooked groups and issues. This amendment once again highlights these issues by creating the necessity of more joined-up thinking between key agencies and ensuring that they remain cognisant of the issues. This amendment is vital.

[Lord Brooke of Alverthorpe (Lab)]

My Lords, I support everything that has been said so far. I will speak to Amendments 57 and 58, in which I am endeavouring to specify the broad categories of serious violence, ensuring that any violence that is serious enough to result either in injury requiring emergency hospital treatment or harm constituting grievous bodily harm would meet the threshold for serious violence.

I am grateful for the general support I have had, especially from those noble Lords with long policing experience who see merit in what I present today. It might be that, as yet, we have not quite got the wording right. It is a bit like the debate that we have been having so far. There is a case for us coming together if in fact we can convince the Minister that, in principle, there is merit in what we are arguing; we could come together later, perhaps, to get the wording right, if the Government are to be so convinced.

My amendments are not solely about knife crime, but the intention is to ensure that the broad categories of serious violence are specified so that local partnerships must address such violence in their prevention plans and take full account of the information available on serious violence, which comes up in the A&E data. That is particularly important.

When the Home Secretary introduced the assessment of the public health duty—the public health measures—on 15 July 2019, he said that collaboration to reduce serious violence was particularly important. The Government have of course moved to introduce this legislation following that.

The violence that constitutes serious violence is not specified in this Bill. Good legislation depends on such specifications and definitions. It will rightly be for the local partnerships to decide how they will reduce serious violence, but it would be neglectful if this legislation does not state what serious violence includes.

The impact assessment signed by the Home Secretary relies heavily on the effectiveness and cost-effectiveness of the use by local partnerships of data collected in hospital accident and emergency departments for the prevention of serious violence. This approach, known as the Cardiff model for violence prevention, has been found in rigorous evaluations to reduce violence related to hospital admissions and serious violence recorded by the police by as much as 38%.

This approach has four principal advantages in the context of the Bill. First, it specifies a broad category of serious violence: violence serious enough to result in emergency hospital treatment. Secondly, it makes sense from a public health perspective, which is missing in what is, after all, a public health duty. Thirdly, following the implementation of the emergency care data set, the Cardiff model data on violence location, weapons and assailants, for example, can be recorded and shared for violence prevention by every NHS trust with an A&E. Fourthly, these NHS data are valid and reliable measures of serious violence, which would be available for joint inspections. Most importantly, even if just 5% of partnerships achieved the Cardiff-model benefits identified in the impact assessment, total benefits are estimated to be at least £858 million over 10 years and a reduction of around 20 homicides a year.

On Monday, the noble Lord, Lord Paddick, referred to the invaluable work of Professor John Shepherd at Cardiff University. Professor Shepherd has helped greatly in the scheme that has been running in Cardiff—he certainly helped me in preparing these amendments and for speaking today. He makes the point that, if the amendments are not adopted, the Bill when enacted is most unlikely to achieve the reductions in serious violence. There is nothing specific around which to achieve that objective. Violence that results in emergency hospital treatment, and which affects all age groups and both genders, in and outside the home, would not be considered serious. The Bill when enacted would not resonate or easily be owned by the NHS and by clinical commissioning groups; they would not be obliged to commission this approach.

We therefore have to make sure that the local authorities get the data, get an outline of what needs to be done, and then get a clear instruction, from within the Bill itself, that there must be action taken and that they must not ignore what has been produced in this very valuable information.

I therefore hope that we can move forward collectively in looking at the range of amendments and see if we can produce something that actually puts specifics in the Bill, that then can be acted on lower down the line.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I support Amendment 58 in the name of the noble Lord, Lord Brooke of Alverthorpe, but I think all of the amendments in this group are extremely worthwhile. The noble Baroness, Lady Bertin, gave a thoroughly well-argued pitch for her amendment, to which the Government have to listen. The noble Baroness, Lady Brinton, also argued very comprehensively for the inclusion of stalking, and I agree with that very strongly.

I wanted to sign every single amendment to this Bill, so I have ended up signing a sort of weird collection, and I apologise for that; I care about it all because I am so distressed about the Bill in general.

On Amendment 58, we need to know exactly what the Government intend with their duty to reduce serious violence. We talked earlier about intrusions, particularly relating to confidentiality, so it is quite important to have a redefined definition of serious violence. Because we have identified those intrusions, without safeguards, we must be sure that Parliament is clear and precise about the situations to which we intend this duty to apply; otherwise, we are left with a vague duty that interferes with people’s right to privacy in arbitrary and unfair ways. I very much hope that the Minister is listening and agreeing.

[Lord Hogan-Howe (CB)]

My Lords, I support Amendments 55 and 56, principally because, apart from their justice, it is naturally the right thing to do. As importantly, the amendments move the police into the preventive area more than they are now. I keep urging the Government and the Home Office in particular to make statutory the preventive duties. I am afraid that that is not yet taking shape, and this is a way in which it could do so.

There is a consequence of this. People have talked about the inconsistent approach around the country. That will generally tend to happen: with 43 organisations, we will always end up with an inconsistent approach. For me, 43 is at least 42 too many. That is my view; others will have different views but having so many organisations will lead to inconsistency.

More importantly, we are asking for officers to be more specialist in their investigative capacity. If it is left to the front-line officers, often they do not always have the time, or, frankly, the skills, to investigate these serious types of crime. The natural consequence of that is that more people will be moved out of uniform and into specialist areas. We all need to keep in mind that although part of the public will urge being able to see officers more often, officers are more effective when they are more specialist. How we get that balance right is difficult. This is not a plea for another 20,000 cops; it is about getting the balance right between the specialist who can be more effective and the uniformed officer who is more visible. That debate continues, and the amendments support that.

I rose to talk in particular about Amendments 57 and 58, which I support. Professor Shepherd has achieved some incredible things from his base in Cardiff. There are two big reasons why I support those amendments. The first is the constant bid for consistency. They provide a further test on the definition of serious violence, such as the requirement for hospital attendance, particularly at A&E. There is a danger, of course, that some people will attend A&E who do not really deserve to go there—they believe that they are seriously ill, when in fact they are not—but that risk is fairly low. Most importantly, as the noble Lord, Lord Brooke, said, the amendments will urge the health service to share the data it has to better inform the police and the Home Office on the strategies for the future. I am afraid that if the police can be inconsistent, so can the health service in sharing data that is vital to understanding the nature of serous violence around the country. Without that information, neither the Government nor the police, nor others, can take action.

For those reasons, I support these amendments, which are sensible conclusions.

[Lord Carlile of Berriew (CB)]

My Lords, I have already made a comment about serious sexual offences but there is something else that I want to raise, into which I have been provoked by my noble friend Lord Hogan-Howe. The point I want to make is about consistency. I do not agree with my noble friend that we should have a single national police force, but I do believe that 43 territorial police forces is a real recipe for inconsistency. I regret very much that successive Home Secretaries, from all political parties, have failed to take on this issue. What actually happens—Charles Clarke did it when he was Home Secretary—is this: when a Home Secretary has the courage to say they are going to reorganise police forces to bring policy consistency on issues such as this, immediately that Home Secretary is told by Members of another place that the world will fall apart if the Loamshire police force is abolished, because how could the world continue without it?

I was a Welsh MP for 14 years. There are still four police forces in Wales; there should not be. The Dyfed-Powys Police, the force in my constituency, operated generally well, but I could not possibly argue that more than one police force is needed, in Wales, at any rate. I therefore ask the Government to take consistency as a major theme in this matter and reflect—

[Lord Hunt of Kings Heath (Lab)]

We are going into a wider debate. My personal view is that we should never have abolished the Oxford City Police force in the 1960s, because we never recovered when it became part of Thames Valley Police, and we had our own watch committee. But there is an issue here, is there not, between what might be regarded as operational efficiency and overpoliticisation? Frankly, the experience in Scotland is not a good example of the risks of too direct a relationship between a national Government and a police force. That would surely be the risk in Wales.

17:00

[Lord Carlile of Berriew (CB)]

I realised when I started on this that there were one or two noble Lords around the House—I saw one agreeing with me, I think—who are, or have been, police and crime commissioners, who might disagree. I respect the noble Lord enormously, as he knows, but I say to him that the experience in Scotland was not good to begin with but is much, much better now.

I will cite just one piece of evidence. The small number of counterterrorism units operate very well as a group. They have a very good collegiate function and there is real consistency between their operations. In my view, the way that CTUs have developed is a paradigm for the reorganisation of the police. I do not want to prolong this part of the debate, but I urge the Minister to consider whether the best route towards consistency is to reorganise the police, reluctant though many will be.

[Lord Judge (CB)]

My Lords, perhaps we should leave the reorganisation of the police to another occasion. The first attraction of Amendment 55 is its utter simplicity and simple, clear language. You have no idea how anybody who has had to spend a lifetime looking at criminal justice legislation greets with acclaim a simple piece of legislation, which this is. There is no misunderstanding about it. It does what it says on the tin. Nobody can reconstruct it afterwards or say Parliament had a different intention—it is there.

More importantly, the argument is irrefutable. I had prepared quite a long speech to make today—long by my standards—but I will not make it. We have heard the arguments. This is a special, national problem—full stop. The best solution to a special, national problem is for it to be dealt with nationally. I therefore support this amendment.

[Lord Paddick (LD)]

My Lords, first, I have absolutely no doubt about the Minister’s commitment to dealing with the sorts of offences we are talking about today, particularly violence against women and girls. I also have absolutely no doubt about the Government’s commitment to tackling those issues. This makes the Bill even more puzzling. We support all the amendments in this group, but I want to look at this from a slightly different angle.

This group of amendments is intended to ensure that certain categories of crime are always included in the serious violence duty. It raises the wider issue of what this whole chapter of the Bill is about. Crime and disorder partnerships—noble Lords will know from previous debates that I am quite keen on these—have for many years been responsible for a multiagency approach to preventing and tackling crime and disorder in their areas, including serious violence. They have the advantage of being able to assess what local needs are and prioritise the crime and disorder that is a particular problem in their areas.

In light of these well-established existing partnerships, one must ask why there is a need for an additional serious violence duty. There has been much concern about knife crime in recent years and Scotland has demonstrated how successful a public health approach to the problem can be, where police enforcement is just part of a multiagency, multipronged approach to tackling knife crime. There may be characteristics of the knife crime problem in Scotland and solutions tailored to tackle them there that may not be completely transferrable to other parts of the UK, but the general principle is sound: law enforcement is only one of many approaches that need to be brought to bear on a problem.

If the Government were focusing solely on this type of serious violence, one could understand, in the face of the growing public concern, that a public health approach to knife crime might be mandated—but that is not what the Bill says. However, there are clues in other parts of the Bill that that is what the Government were initially thinking. For example, we will shortly come on to offensive weapon homicide reviews and serious violence prevention orders, which are all about knife crime.

The Bill talks about serious violence generally, including threats of serious violence but excluding terrorism. It goes on to talk—in Clause 12(4)—about a list of factors that must be taken into account, such as: the maximum penalty that a court could impose; the impact on the victim; the prevalence of the violence in the area, and the impact on the community. Presumably, other factors could be considered when the local area is considering its own serious violence. This effectively makes any violence serious—for example, hate crime. Hate crime should be considered serious violence because, by definition, it has a serious impact on the victim.

Amendment 55, from the noble Baroness, Lady Bertin, says that domestic abuse, domestic homicides and sexual offences should always be included in the serious violence duty. As the noble Lord, Lord Polak, said, how can any of these offences not be considered serious violence? If the Government do not accept this amendment, can the Minister say what types of domestic abuse, domestic murder or sexual offence are not serious, or in what areas they are not far too prevalent? Amendment 56 also includes stalking, for the reasons that my noble friend Lady Brinton so powerfully argued.

Amendment 57, from the noble Lord, Lord Brooke of Alverthorpe, includes all violence that results in emergency hospital treatment, or GBH—for very good reasons. As I mentioned in discussion on an earlier group, as the noble Lord did just now, the Cardiff model—that of sharing depersonalised accident and emergency information on knife and gun crime with the police—has proved invaluable. Furthermore, as the definition of serious violence includes threats of serious violence, my noble friend Lady Hamwee is quite right to point out that social media and other electronic communication—the impact of which may go beyond the geographic area for which the authorities that have a serious violence duty have responsibility—require a duty that goes beyond a single area.

In defining serious violence in such a wide way, the Government must either accept that all violence has the potential to be serious, or risk being accused of saying that violence associated with hate crime, violence against women and girls, domestic violence, and almost any other form of violence, is not serious, or should not be treated as serious in every police area.

What the Government should have done, and what they should do now, is go back and look at crime and disorder partnerships, which are already established and responsible for preventing and tackling all forms of crime and disorder—as their consultation on this issue said they should. They should look at where crime and disorder partnerships need to be strengthened —whether, perhaps, to include partners not currently involved—or where legislation needs to be changed to facilitate co-operation and the exchange of information, instead of mandating others to provide information to the police to enable a police-led enforcement approach to tackling serious violence—whatever that means. Of course, we will support all the amendments in this group for as long as the Government continue with such a broad definition of serious violence.

[Lord Rosser (Lab)]

My Lords, like other noble Lords I await with interest the Government’s response to all the amendments in this group. My name also appears on Amendment 55, which, at the beginning of this debate, was so ably and comprehensively moved, as we knew it would be, by the noble Baroness, Lady Bertin. This issue was raised by the shadow Minister for Policing in the House of Commons, and I only hope it receives a more enthusiastic hearing from the Government in this House, given that it is being presented with such strong cross-party support across the House.

The serious violence duty introduced by this Bill, as we know, requires local authorities, the police, fire and rescue authorities, specified criminal justice agencies and health authorities to work together to formulate an evidence-based analysis of the problems associated with serious violence in a local area and then produce and implement a strategy detailing how they will respond to those particular issues. Prison, youth custody and education authorities may also need to work with these core partners.

As more than one noble Lord has said, the amendment is clear and straightforward in its intention, which is to make clear in the Bill that the definition of serious violence for the purpose of the serious violence prevention duty includes domestic abuse, domestic homicide and sexual offences. That begs the question of why this amendment is necessary. As the noble Lord, Lord Polak, said, and he was not the only one, is it not obvious that domestic abuse, homicide and sexual offences must come within the definition of serious violence? Apparently it is not. Despite domestic abuse representing one-third of violent crime recorded by the police and despite 20% of all adult homicides and 50% of adult homicides where the victim is female being domestic homicides, the Government’s serious violence strategy does not recognise domestic abuse and sexual violence as forms of serious violence.

No doubt, that is one explanation why between April 2014 and March 2020 the annual number of domestic abuse-flagged cases referred to the Crown Prosecution Service by the police fell by 37%, with similar declines in prosecutions and convictions. No doubt, it is also one explanation why over the same period of time the annual number of prosecutions in rape-flagged cases fell by 55% and the annual number of convictions fell by 44%. No doubt, also, it is one explanation why in the year ended March 2020 only 9% of domestic abuse-related crimes and 1.4% of rape-flagged cases recorded by the police led to a charge or summons.

This Bill’s proposed serious violence prevention duty places a requirement on public authorities to collate and plan to prevent and reduce serious violence. While Clause 12 explicitly includes some named forms of violence, such as violence against property and threats of violence, to ensure that they are regarded as a form of violent crime across the board, violence against women and girls is not put in the same category, even though rates of domestic abuse and sexual violence, as so many other noble Lords have said, are consistent across England and Wales and do not vary greatly from one area to another.

Instead, intended Home Office guidance simply says that local areas can consider violence against women and girls as part of the new duty if they choose to and not that it is expected. Clearly, the Home Office is not too fussed one way or the other what areas decide on this very serious issue. There are attacks on statutes, and the Home Office gets very troubled. There are violent domestic attacks on human beings, particularly women, and the Home Office, however different the reality may be, appears so laid back that it wants to leave it to other people to make their own decisions on whether to regard these attacks as serious violence. It appears to want to leave it to other people to decide whether these dreadful attacks come within the scope of the serious violence prevention duty and the requirement on a range of public bodies, including local statutory agencies and the police, to work together to prevent and tackle serious violence with the aim of reducing the numbers of victims and perpetrators of such dreadful crimes.

Explicitly including domestic abuse, domestic homicide and sexual violence in the sexual violence reduction duty and its multi-agency approach would send a clear message to the police, prosecutors and a range of statutory agencies, including local agencies, that violence against women and girls is just not acceptable and that they all have to play a crucial role in tackling it.

At the moment there appears to be a distinction within the criminal justice system so that violence that takes place in the home or at the hands of an intimate partner is regarded as less serious than violence perpetrated in the public sphere. Only around one-half of police forces, as I understand it, have opted to take up Women’s Aid’s Domestic Abuse Matters specialised training on domestic abuse. As the noble Baroness, Lady Bertin, said, only eight of the 18 violence reduction units established in police force areas, which are funded by the Home Office and considered forerunners to the new violence prevention duty, name domestic abuse in their strategies.

17:15

Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services has recently published its report into policing and violence against women and girls, as the noble Lord, Lord Russell of Liverpool, and others have said. It specifically raised concerns that the current drafting of the proposed serious violence prevention duty

“will not go far enough to promote the co-ordinated and bespoke multi-agency response that is needed specifically for VAWG.”

It recommended

“the introduction of a new statutory duty on all appropriate partner agencies to collectively take action to prevent the harm caused by VAWG.”

No doubt, we will hear in the Government’s response what they intend to do in relation to that recommendation.

I would also like briefly to touch on the amendment tabled by the noble Baroness, Lady Brinton, and supported by my noble friend Lord Hunt of Kings Heath and the noble Baroness, Lady Newlove, which would add stalking to the list of specified offences to be prevented. My noble friend Lady Royall is unfortunately unable to be with us today to add her expertise to this debate, but I am sure the House recognises the years of work she and others have put into this issue. Stalking, as has been said, is representative of many VAWG offences in that it is high harm and it escalates. Despite the early warning signs in many of these cases, the risk is not properly recognised or responded to until it is too late.

The last time we debated this issue, during the passage of the Domestic Abuse Bill, the Opposition Benches and Members on all sides of this House pressed for more robust action on stalking, including a register of dangerous perpetrators. Since that debate, more women have been failed and killed, and the list of bereaved families has grown longer. The Government, as others have said, should seize this opportunity to tackle the epidemic of violence against women and girls because currently this Bill is missing that priority. Recognising violence against women and girls as serious violence is a vital place to start and one of the key changes so many of us in this House are calling on the Government to make to this Bill.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I assure noble Lords that I will not be getting into a debate about the number of police forces we should have, but I will say two things on that: first, consistency is key; secondly, good leadership is crucial. That said, I am grateful to my noble friend Lady Bertin, the noble Baronesses, Lady Brinton and Lady Hamwee, and the noble Lord, Lord Brooke, for setting out the case for these amendments, which have, quite rightly, attracted a wide-ranging debate about the scope of the serious violence duty. I am also pleased about the gender balance of the tablers of the amendments, and I join my noble friend Lady Bertin in paying tribute to the DA Commissioner and join the noble Lord, Lord Rosser, in paying tribute to the noble Baroness, Lady Royall, with whom I have worked on many occasions on stalking.

I will start by addressing Amendments 55 and 56. The Government remain absolutely focused on tackling violence against women and girls. There is no place in society for these abhorrent crimes. That is why in July we published a new cross-government Tackling Violence Against Women and Girls strategy, which includes a range of actions to help ensure that more perpetrators are brought to justice and face the full force of the law and that we improve support to victims and survivors and work ultimately to prevent these crimes, as the noble Lord, Lord Hogan-Howe, said, and send a message of clear expectation, as the noble Lords, Lord Carlile and Lord Rosser, pointed out.

The strategy builds on our existing work, as my noble friend Lady Bertin said, including the new legislation that we have brought forward, which includes specific offences of forced marriage, upskirting, and the disclosure of private sexual photographs. The Domestic Abuse Act, which secured Royal Assent in April and which I am very proud to have taken part in and led through your Lordships’ House, will strengthen our response to domestic abuse at all levels. The Act includes a new duty for local authorities in England to ensure the provision of support for victims of abuse, both adults and children, in refuges and other safe accommodation.

Amendment 55 seeks to make it clear on the face of the Bill that domestic abuse, domestic homicide and sexual violence are included within the meaning of “violence”. We recognise the importance of multiagency working to address these crimes, as my noble friend has stressed, and I assure noble Lords that the draft statutory guidance for the serious violence duty, published in May this year, does already make it clear that specified authorities will be permitted to include in their strategy those actions which focus on any form of serious violence which is of particular concern in a local area.

I note the point that noble Lords have made that domestic violence is prevalent in every area, but it could include domestic violence, alcohol-related violence, sexual exploitation, or modern slavery. Ultimately, the specified authorities are best placed to determine what the specific priorities are for that area based on the local evidence. However, all that said, I can see value in the intention of this amendment, to expressly provide on the face of the Bill—and avoid any doubt—that domestic abuse, including domestic homicide, and sexual offences, falls within the definition of “violence” that specified authorities should follow when considering what amounts to serious violence and making that evidence-based determination as to what the specific priorities should be for their area.

Regarding the specific addition of “stalking”, I thank the noble Baroness, Lady Brinton, for drawing attention to this important issue. I recognise that there are other forms of crime which disproportionately affect women and girls which local areas may want to consider for the purpose of the duty, and the draft statutory guidance highlights that they may wish to do this. However, we might risk creating confusion if we specified too many crime types under the meaning of “violence”, and we must consider carefully where to draw the line. I discussed this with the domestic abuse commissioner the other day and she agrees that the definition of “domestic abuse” should be broad enough to draw attention to this issue where it takes place in a domestic abuse context. In addition, while many stalking offences do take place in a domestic abuse context or ultimately involve violent behaviour, that cannot be said for all, and so I am not convinced that an express reference is appropriate.

In any event, we remain completely focused on our efforts to tackle these crimes. The Home Secretary will chair a new violence against women and girls task force to drive cross-government activity and help maintain public confidence in policing. We are funding the first full-time national policing lead in this area, Deputy Chief Constable Maggie Blyth, as I mentioned during the Urgent Question yesterday, and later this year we will publish a new domestic abuse strategy.

Having listened to the debate, I am in no doubt about where the whole Committee stands on this issue. We can all agree in this place that we need to do much more to tackle violence against women and girls. The multi-pronged strategy we published in the summer is directed to that end. We intend to build on that further, having listened to the views of the Committee. The Government agree that part of the response must include the police, local authorities, health bodies and the other agencies to whom the serious violence duty applies, working together to prevent and reduce domestic abuse and sexual violence in their area. Therefore, I agree with the aim of my noble friend’s amendment and will work with her ahead of Report to agree how we might best reflect this.

Amendments 57 and 58 would require violence to be defined as serious in a local area should it result either in injury requiring emergency hospital treatment or in harm constituting grievous bodily harm. I agree that such consequences are clear indicators of the seriousness of the violence in question, but we want to consider further any implications of adding such specific language to the definition of serious violence in the Bill.

The Bill already specifies certain factors that specified authorities must consider when determining what constitutes serious violence for their local area: the maximum penalty that could be imposed for any offence involved in the violence; the impact of the violence on any victim; the prevalence of the violence in the area; and the impact of the violence on the community in the area. We expect the specified authorities to use the evidence gathered from their strategic needs assessment to answer these questions and set the priority areas for their local strategies accordingly. We think that current drafting ensures that specified authorities consider the most harmful types of violence, including those resulting in acute physical injury, as part of their local strategies. However, we recognise the need to further consider the points made by the noble Lord, Lord Brooke of Alverthorpe.

Finally, Amendments 57A and 59A, in the name of the noble Baroness, Lady Hamwee, raise another important issue. It is true that serious violence is often not contained by local borders and, owing to electronic communication, perpetrators of violence are able to have an extended impact in areas far across the country and beyond. We fully recognise this, and it is why Clause 8 permits specified and relevant authorities to work across local government boundaries with other authorities and, in doing so, to collaborate on strategies that cover areas greater than those where they primarily provide services. This could include collaboration with authorities in neighbouring areas or further afield. We have also included advice within the draft statutory guidance to this effect. For this reason, we do not think these amendments are necessary.

The Government have been clear that internet companies must go further and faster to tackle illegal content online. It is already an offence to incite, assist or encourage violence online, and we will continue to work with the police to support proactive action against and to address illegal material posted and offences perpetrated online.

In conclusion, I assure noble Lords that I will reflect very carefully on this debate and, in particular, on the amendments in the name of my noble friend Lady Bertin and the noble Baroness, Lady Brinton. I will continue to work with them to find an agreed way forward ahead of the next stage. On that basis, I hope my noble friend will withdraw her amendment, on the clear understanding that we will return to these issues on Report.

[Baroness Bertin (Con)]

My Lords, first, I thank everyone for their powerful collection of persuasive speeches supporting the amendment in my name, for which I am hugely grateful. The House is at its best when it comes together on an issue that bridges the political divide and about which we all feel strongly. I am grateful to noble Lords for that. I thank the Minister for her support and what she just said in response, in particular to my amendment. She always gives a huge amount of time and she is such a diligent Minister. The Government are lucky to have her. I think I speak for the whole Committee when I say that she works incredibly hard and cares so much. I am grateful and I thank her.

I consider myself lobbied by my noble friend Lady Newlove, the noble Baronesses, Lady Brinton and Lady Royall—who is of course absent—and the noble Lord, Lord Hunt. My noble friend knows that I agree with every word she said on stalking. I cannot promise that I will change the amendment, but I promise that I will go to bat and lobby as hard as possible, because there is a huge problem here. Some 1.5 million people are being stalked a year, and less than 2,000 people are ever brought to justice. There is a massive problem here and, for too long, it has not been taken seriously enough. I want to work more on that, and I am grateful to my noble friend the Minister for saying that she will look at these amendments and that we can discuss this further before Report.

It is very difficult for me to respond to amendments that are not in my name, and I will probably not do justice to them, but I thank the noble Lord, Lord Brooke, for laying his amendments—he had hugely persuasive arguments—and the noble Baroness, Lady Hamwee, for the amount of work she does on these issues. She is absolutely right that social media companies need to be kept in check. I could not disagree with the points that she made.

That is where I will leave it, but I am grateful and look forward to Report. With that, I beg leave to withdraw my amendment.

Amendment 55 withdrawn.

Amendments 56 to 58 not moved.

Clause 12 agreed.

17:30

Clause 13: Involvement of local policing bodies

Amendment 59

Moved by

[Baroness Williams of Trafford]

59: Clause 13, page 13, line 25, after “body” insert “for a police area”
Member’s explanatory statement
This amendment clarifies that references in Clause 13(2) to “the police area” are to the police area of the local policing body mentioned at the beginning of that provision.

[Baroness Williams of Trafford (Con)]

My Lords, Amendment 59 to Clause 13 is a drafting amendment. Clause 13 concerns the involvement of local policing bodies in local serious violence strategies. This amendment simply clarifies that references in Clause 13(2) to “the police area” are to the police area of the local policing body mentioned at the beginning of that provision. The noble Lord, Lord Paddick, has given notice of a stand part debate on Clause 13 so, if it please the Committee, I will hear from him, but, for now, I beg to move.

[Lord Paddick (LD)]

My Lords, we on these Benches want to probe whether Clause 13 needs to stand part of the Bill. Can the Minister explain to the Committee why there is a need for legislation to allow a local policing body, presumably a directly elected mayor or a police and crime commissioner, to assist in preventing or tackling serious violence?

I could understand if the clause stated that local policing bodies must assist or monitor what specified responsible authorities were doing and must report their findings to the Home Secretary, but that is not what it says. It says that such assistance, monitoring and reporting are voluntary, in that these bodies “may” assist, “may” monitor and “may” report.

Subsection (4) states:

“The Secretary of State may by regulations make provision conferring functions on a local policing body”.


Does that mean that, although in primary legislation—the Bill—all this is voluntary, the Secretary of State can by regulation make it compulsory?

Subsection (5) states that the functions contained in regulations

“may include provision ... for a local policing body to arrange for meetings”.

Why does the Secretary of State need to pass regulations for a directly elected mayor to hold a meeting? Can the Minister explain why Clause 13 needs to be part of the Bill at all? We on these Benches are struggling to understand why.

[Lord Bach (Lab)]

My Lords, I am grateful to the noble Lord, Lord Paddick, for this stand part debate. If the Committee will forgive me, I will say, as quickly as I can, a word or two about how I perceive the role of police and crime commissioners up until now.

Clause 13 is clearly an important element in establishing, from the Government’s point of view, a serious violence reduction duty on a more statutory basis—if I can put it that way—than exists presently. This obviously involves police and crime commissioners in particular. It is important to remember—I think this is what the noble Lord, Lord Paddick, was getting at, in part—that police and crime commissioners have, in their nine-year existence, voluntarily worked hard to establish partnership working and commission partnership services. In many cases, they have taken a lead in those partnerships.

There is a fundamental misunderstanding—not, I am sure, in this Committee—that, somehow, the only real role for police and crime commissioners is to hold their police force, and the chief constable in particular, to account. That is a crucial part of their duties, but I point out—the Committee does not need this pointing out—that they are not just police commissioners but crime commissioners as well. At the very least, they should have a significant duty to find ways to prevent crime and its effects on victims and society, working alongside partners, of course.

This is not about dealing with crime that has taken place, whether it is antisocial behaviour or serious violence. It means dealing with what has become a hackneyed phrase but is crucial here: the causes of crime, going back to early childhood development and early intervention. It is always about poverty and its effect on crime. It is about bad and lousy living conditions, and it always involves looking after the vulnerable, whoever they may be—we are all vulnerable at some stage or other in our lives. Above all, it is about preventing lives being thrown away, whether they are those of victims or perpetrators. I have to confess—noble Lords may have already realised that this is what I am about to say—that this kind of work or duty, as I call it, gave me and many other police and crime commissioners the greatest buzz of all.

It was crucial to achieving anything that one worked with partners, local and national, very much including government. To their credit, the Government set up violence reduction units, changed their support—I do not mean that in any bad way—and became very keen on the public health approach to dealing with these matters. That was a huge and important change, and many of us were convinced by the work that we did and seeing what happened in Scotland that this was the right course to take.

Where I was police and crime commissioner, we have what we call a violence reduction network, rather than a unit. I argue that it has achieved quite a large amount already, with great projects. My predecessor as police and crime commissioner for Leicestershire ran and started an office of the police and crime commissioner-run strategic partnership board, or SPB, which, by the time I left office, included all—I mean all—of the main public services in the area covered by the force, from local government to health, education, the police, fire and ambulance services and more.

The other example I give is that I was the chairman of the East Midlands criminal justice board. Other police and crime commissioners were chairs of their local boards or whatever they chose to call it. Clearly, if Clause 13 and other parts of this chapter pass into law, there will be—I am guessing that this is how the Government will put it—more statutory backing for this way of approaching the serious violence reduction duty. I am not against that in principle, but my one concern is that, in my experience, police and crime commissioners are a little bit like elected mayors: if they are good, they are very good, and they can make a huge difference, but if they are not so good, they can make a huge difference the other way.

I was lucky in that I had a brilliant team working for me in my office. As it happens, it has been decimated by my successor, but that is for another day, certainly not for today. Also, when I was there, other police and crime commissioners, whatever their party politics or lack of it, seemed to me to be able people who wanted to do the right thing and were very committed. As the noble Baroness and the Committee will know, many new police and crime commissioners were elected in May this year, which is no doubt a good thing, and many more of them were women—it is about time, too. It is too early to say whether they will grab these extra opportunities, but I hope that they will.

There are two big issues as far as the future is concerned in the real world. One, of course, is data sharing, which the Bill is very concerned about, and so it should be. So often, people of good will get together on behalf of organisations that are not prepared to share data. That has to change in this area, otherwise there will be no achievement. The second issue—I hate to mention it but it is the usual one—is funding. If we are going to fund all these exciting proposals, it will require government to take a leading step in that.

I am grateful to the Committee for listening to my speech. I thought it might be useful in terms of this clause.

[Lord Rosser (Lab)]

I thank the Minister for her explanation of government Amendment 59. She said it makes a minor clarifying change, and we have no concerns to raise on it. However, I look forward to the Minister’s replies on the questions and issues raised by the noble Lord, Lord Paddick, and my noble friend Lord Bach. I am not sure whether I have fully understood this issue, and if what I am going to say now indicates that I have not, I apologise in advance.

The noble Lord, Lord Paddick, indicated in his explanatory statement, which he repeated, that he has tabled the Clause 13 stand part Motion so that he can

“probe how the provisions of this Bill and the Crime and Disorder Act 1998 will work in practice; and the relationship between Crime and Disorder Partnership and Police and Crime Commissioners.”

As I understand it, Clause 13 provides that local policing bodies, such as PCCs and the Mayor of London, may assist authorities in delivering the serious violence duty, monitor how authorities are exercising their duties, report back on their findings to the Secretary of State and be given authority by the Secretary of State to assist the duty in specific ways, such as providing funding or convening meetings on the duty. It also provides that authorities must co-operate with local policing bodies. The Crime and Disorder Act 1998 created community safety partnerships, and that raises the issue of how this duty will interact with the existing duties on CSPs.

The Government have published draft guidance on the serious violence duty. It says:

“In order to comply with the duty it is not necessary to create a new partnership, instead the specified authorities should use existing partnerships where possible and with appropriate modifications.”


It goes on to say:

“The Duty is an opportunity to simplify and add focus to existing partnership arrangements rather than add any additional complexity to the current multi-agency landscape.”

17:45

On community safety partnerships, the draft guidance says—it says quite a bit, actually—that the Bill

“amends the Crime and Disorder Act 1998 to include a requirement for CSPs to formulate and implement a strategy to prevent people from becoming involved in serious violence, both as victims and perpetrators, and reduce instances of serious violence in the area.

Should specified authorities consider the CSP to be the most appropriate local multi-agency structure through which they intend to fulfil the requirements of the duty, then the strategic needs assessment and strategy produced by the CSP may account for both the Serious Violence Duty and Crime and Disorder Act requirements.”

It goes on to say:

“In recognition of a CSP’s wider remit in relation to community safety, and that many issues concerning violent crime can be interrelated, a CSP may choose to incorporate their strategy for preventing and reducing serious violence into a wider plan which also encompasses their other priorities. This will also help to ensure that individual strategies are aligned without being duplicative.”

I simply raise a key question. Certainly I, and extend it and say surely we, understand how the Government envisage the serious violence duty working with existing structures. If I am not mistaken, Clause 19 directly amends the Crime and Disorder Act 1998 to require community safety partnerships to implement a strategy on preventing and reducing serious violence. However, the draft guidance says that there is flexibility for specified authorities to choose the most appropriate local multi-agency structure to deliver on the new duty. It would be helpful if the Government, in their response, could provide some clarity on what the Bill will mean for community safety partnerships on day one. Surely the key questions are simple, as far as any question is simple: how do we avoid duplication and how do we avoid adding complexity into existing structures?

I shall raise one final point. it was raised in the Commons but did not get an answer. It is about funding, to which my noble friend Lord Bach referred. The Local Government Association has raised the issue that CSPs have had their funding steadily withdrawn since 2010. As the Bill appears to create an additional duty, do the Government have plans to review the impact that funding reductions have had on the ability of councils to work with other partners to tackle crime?

[Baroness Chakrabarti (Lab)]

My Lords, with apologies for rising at this late stage, I lay my cards on the table and say that I have never been the greatest fan of legislating to require public officials to work together and creating byzantine edifices of legislative partnerships. However, I think that the noble Lord, Lord Paddick, has a point. If this is to stand, we need to understand whether “may” means “may” or “may” means “must” or whether “may” will become “must” because of regulations that will be made under what Clause 13(4), as it is now, will eventually become. That is just good law-making.

Unlike my wonderful noble friend Lord Bach, I have not been a great enthusiast for police and crime commissioners. I have to be clear about that. I always thought that it would lead to a politicisation of the police and, I am sorry to say that in many cases I feel that that has been the case. I will not dwell on the very crass remarks made by a particular commissioner in the wake of the Sarah Everard case. I am not a fan of that particular politicised mechanism for holding the police to account.

We will no doubt come to this in later clauses, but of course we must have a public health or more holistic approach to tackling—dare I say it—the causes of crime, as well as crime. But setting the policing bit and the Home Office above the other parts of the partnership, with the powers to mandate and the money and so on, is a journey we began with the Crime and Disorder Act, probably 23-odd years ago, when I had the privilege of sitting over there, in the Box. It is a journey that we still seem to be on. I am sorry to say that the poor old Home Office is often the dustbin department, picking up problems in society when it is almost too late. A lot of the deep-seated causes of crime come from other places and need to be tackled; yes, by preventive action—many noble Lords have made that point—but such preventive action belongs in education, in health and in tackling poverty and inequality. We all know this—I am preaching to the choir—but to set up an edifice whereby the senior partner, with all the powers to mandate and all the money to donate, is the policing bit, the security bit, the interior bit and the Home Office bit, is something we need to explore further, as I think the noble Lord, Lord Paddick, intends, during the scrutiny of these clauses.

[Baroness Williams of Trafford (Con)]

My Lords, I thank all noble Lords who have contributed to this debate. Clause 13 provides a power for a local policing body—namely, a PCC, the Mayor’s Office for Policing and Crime, or the Common Council of the City of London in its capacity as a police authority—to assist authorities in meeting the requirements of the serious violence duty. The noble Lord, Lord Rosser, was absolutely correct, as was the noble Lord, Lord Bach—as I always say, we are immensely lucky to have Parliament’s only PCC in our place; the benefit of his experience is incredibly useful.

Local policing bodies have an important part to play in convening partner agencies. PCCs and the Mayor’s Office for Policing and Crime, as elected local policing bodies, are the voice of the local community in relation to policing and crime. This is reflected in their current functions in relation to community safety partnerships. Local policing bodies are responsible for the totality of policing in their force area—the noble Lord, Lord Bach, pointed out some of the things that they get involved with—as well as for services for victims of crime. They will therefore have shared objectives in relation to the prevention and reduction of serious violence. That is why this clause provides local policing bodies with a discretionary role in supporting specified authorities with the preparation and implementation of their strategies, as well as monitoring their effectiveness and impact on local serious violence levels. I underline that the PCC role is discretionary and that it cannot be mandated through regulations.

The PCC, the Mayor’s Office for Policing and Crime, and the Common Council of the City of London will not be subject to the serious violence duty as specified authorities. However, as with the existing functions of these local policing bodies in relation to community safety partnerships, they may choose to collaborate with local partnerships. They may also take a convening role to support effective multiagency working.

Regulations made by the Secretary of State may provide further detail on the ways in which local policing bodies may assist specified authorities, including convening and chairing meetings, requiring certain persons to attend such meetings and providing funding to a specified authority to support the implementation of the local serious violence strategy. They will also have a power to require information for this purpose, as set out in Clause 16. In undertaking their monitoring functions, local policing bodies may report their findings to the Secretary of State to ensure compliance with the duty.

Specified authorities will have a duty to co-operate with local policing bodies when requested to do so. However, we have made clear in the draft support guidance the need for the relevant local policing body to consider the proportionality of additional requests and anticipated costs to specified authorities before making any such requests.

The overall objective is to provide additional support and leadership, if and when required, and not to place additional burdens on those authorities subject to the duty. The approach is very similar to arrangements in place for CSPs. There has been a mutual duty on PCCs and CSPs to reduce offending since the Police Reform and Social Responsibility Act 2011. I am sure noble Lords will agree that, to engender an effective multiagency approach to preventing and reducing serious violence, we must ensure that all relevant parts of the system play their part and have sufficient support in place to enable them to do so. We believe that local policing bodies, including PCCs, are best placed to provide that support. I take also the point made by the noble Lord, Lord Rosser, about funding.

[Lord Paddick (LD)]

I have just a couple of questions. First, what aspects of Clause 13 are local policing bodies currently not allowed to do that the clause allows them to do? Secondly—and I am grateful to the noble Lord, Lord Rosser, for articulating what is in the guidance—my understanding is that crime and disorder partnerships could be the mechanism chosen to deliver on the serious violence duties in a particular area, or it could be a different mechanism, and the police and crime commissioner might want to be part of that or might not. That does not appear to provide the clarity of leadership and accountability necessary to deliver a serious violence strategy. Perhaps the Minister can explain how this all works.

[Baroness Williams of Trafford (Con)]

My Lords, I shall try to. At the moment, PCCs and other local policing bodies have the powers to work with the specified authorities to support multiagency working. The serious violence duty is a new duty, and the legislation clarifies how it will fit together. PCCs are the elected bodies; they work with local forces. The multiagency working can be through the CSPs, or there is flexibility around how the local partnerships are constituted. Because it is a new duty, it is definitely worth clarifying in legislation how it might work out.

Amendment 59 agreed.

Clause 13, as amended, agreed.

Clause 14: Involvement of educational, prison and youth custody authorities

Amendments 59A and 60 not moved.

Clause 14 agreed.

Clause 15: Disclosure of information

Amendments 61 to 64 not moved.

Clause 15 agreed.

18:00

Clause 16: Supply of information to local policing bodies

Amendments 65 to 68 not moved.

Clause 16 agreed.

Clause 17: Directions

Amendments 69 to 71 not moved.

Amendment 72

Moved by

[Baroness Williams of Trafford]

72: Clause 17, page 17, line 5, leave out “consult” and insert “obtain the consent of”
Member’s explanatory statement
This amendment requires the Secretary of State to obtain the consent of the Welsh Ministers before giving a direction under Clause 17 to a devolved Welsh authority.

Amendment 72 agreed.

Debate on whether Clause 17 should stand part of the Bill.

[Baroness Meacher (CB)]

I rise to explore whether Clause 17 should in fact stand part of the Bill. I am grateful to the noble Lord, Lord Paddick, for his support. He knows a great deal more about all this than I do. I will focus my remarks on Clause 17(1)(a), which refers to Clause 16(4). That subsection makes clear that a person employed by any specified authority who is requested to supply information to a policing body must comply with the request. Of course, these bodies may include a health authority as well as an education authority, prison authority, youth custody authority or any other authority named by the Secretary of State.

My objections to Clause 17, if I have understood it correctly—and I am humble enough to know that I may not have—are rooted in my objections to the earlier clauses requiring disclosure of information by public servants to the police. Clause 17 seems to add insult to injury by giving the Secretary of State powers to issue directions to any public servant failing to provide information in order to secure compliance with the duty. Clause 17 goes on to say that a direction can be enforced by a mandatory order. Can the Minister assure the House that these clauses exclude the disclosure of information that could identify an individual? This is vital, as the Minister knows—and I have a great regard for our Minister, who understands these things.

A doctor or teacher, for example, may take the view that to pass information that risks identifying a patient, pupil or other individual to the police would be contrary to the interests of that person and would not contribute significantly to preventing or reducing serious violence. They may make a professional judgment not to disclose information that could identify a patient, pupil or other. I seriously question the Government’s proposals in Clause 17, unless this issue can be clarified.

For example, a patient may suffer from mental health problems and may be causing difficulties, but may still be making good progress in a therapeutic programme. It is likely to be utterly destructive to draw that person to the attention of the police. Likewise, if a child has severe behavioural problems at school, is vulnerable and is being targeted by a drug dealer but has agreed to co-operate with a cognitive behaviour programme and other support designed to deal with his or her problems, it would be incredibly damaging to involve the police at this point. That child could be driven into a life of drugs and crime instead of being carefully steered away from such a path.

Having worked as a social worker many decades ago—goodness knows how many—and worked with families with problems, and having also been on the Police Complaints Authority for nine years, I think I can look at these issues from both points of view. I have considerable regard for the police, despite being—indeed, perhaps because I was—involved in investigating complaints against the police for all those years. I understand that they do want information about young people who may be committing crimes. The noble Baroness, Lady Williams, knows well my view that a radical review of our Misuse of Drugs Act 1971 to focus on drug treatment, rather than criminalising sick addicts, would be a great deal more fruitful in reducing drug abuse and serious violence, including county lines, than this Bill, the serious violence prevention orders and these disclosure clauses.

I hope that the Minister will explain what penalties the Government have in mind if a public servant fails to provide information in accordance with a mandatory order. Are the Government at risk of criminalising public servants? I hope the Minister can reassure the House on these issues and that she will, if necessary, seek the agreement of her colleagues to reconsider the approach in Clause 17 before Report. I look forward to her reply.

[Baroness Chakrabarti (Lab)]

My Lords, I have to support what I have just heard from the noble Baroness, Lady Meacher, for reasons we began to articulate on Monday evening. Noble Lords will remember we began to have a discussion about what is to be shared and in what circumstances existing duties of confidence and existing professional duties need to be overtaken in the public interest. But who decides? The Minister kindly gave me a very specific answer at one point in our discussion, when she said that it will be decided by the person who holds the data, but, obviously, that can be subject to challenge. That of course is my traditional understanding of professional confidence.

Way before this, and way before the Crime and Disorder Act, that was the traditional position: if the doctor, the teacher or whoever is not minded to hand over to the police the data about a specific person, or more general data, the police will have to go to the courts and try to get a warrant. That is the place for those hopefully rare disputes between professionals and the police, who are coming at this from different positions, to be decided, rather than being decided by direction from the Secretary of State.

Of course, normally, we want the health professionals, the policing professionals and the educational professionals to be working in discussion and collaboration, but, where there is a rare dispute because of their different professional angles and ethics, it really is for a judge to decide and not for the Secretary of State to trump all those existing ethics and duties. I think the noble Baroness, Lady Meacher, is nodding at me. That is the concern I hope the Minister can address in her explanation and defence of Clause 17.

[Lord Paddick (LD)]

My Lords, I rise to support the noble Baroness, Lady Meacher, and I am very grateful to the noble Baroness, Lady Chakrabarti, taking us back to very late on Monday night, if the Minister remembers, when we were discussing Clause 15, on the disclosure of information. The Minister—I think, from memory, although it was late—implied that the disclosure of information was voluntary and that the clause was there simply to facilitate the disclosure of information. In challenging the Minister in that, I quoted from Clause 17.

I can be brief. Clause 17 enables the Secretary of State, if satisfied that a specified authority, educational authority or youth custody authority has failed to comply with the duties to collaborate or disclose information—including, presumably, sensitive personal information and information covered by a duty of confidentiality—to direct the authority to comply and enforce her direction through a mandatory order. That is what Clause 17 says.

I have already explained at length why professionals should use their professional judgment—as the noble Baroness, Lady Chakrabarti, just said—within existing policies, procedures, practices and protocols, rather than being forced to divulge sensitive personal information when it is not, on balance, in the public interest to do so. For example, there will often be a greater good to be derived from maintaining a relationship between, say, a youth worker and a young person at risk of becoming involved in serious violence than from divulging sensitive information to the police. All authorities dealing with these issues are committed to preventing and tackling serious violence. They may, from time to time, have a different perspective on the problem, or a different view on the best way to achieve what we all are desperately seeking to do.

This clause is one of the reasons why so many organisations believe that the Bill is really about a police-led enforcement approach, because it is the Home Secretary who can force them to comply, rather than the public health, multiagency, multifaceted approach that has been so successful in preventing and tackling knife crime in Scotland. Can the Minister give examples of where public authorities involved in preventing and tackling serious violence have obstructed efforts to achieve those objectives? If not, why is this clause necessary? We believe that Clause 17 should not stand part of the Bill.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, this group starts with government Amendment 72, which I will say a brief word about. The amendment requires the Secretary of State to obtain the consent of Welsh Ministers—not just consult them—before giving a direction under Clause 17 to a devolved Welsh authority. I understand that the change was requested by the Welsh Government, and we support it on this side of the House.

I turn to the debate on whether Clause 17 should stand part of the Bill, which was tabled by the noble Baroness, Lady Meacher, who introduced it, and the noble Lord, Lord Paddick. Their explanatory statement says that:

“The purpose of this amendment is to explore the extent of the Secretary of State’s powers to issue directions under this section and the consequences of failure to comply with such a direction.”


A number of very searching questions have been raised, and I have a few questions myself. It would be helpful if the Minister could give some more information on what a “direction” might be and what it might consist of under this clause. The central point made by both the noble Baroness, Lady Meacher, and the noble Lord, Lord Paddick, was about the context of police-led enforcement rather than a more equal arrangement between other agencies such as education and the National Health Service.

In the House of Commons, the Minister said that it is envisaged that this power will be used extremely rarely. Nevertheless, could the Minister give an example of when this power might be used and what checks might be in place when it is used? What would the prior steps be before a direction is considered? How would an authority’s progress in acting upon a direction be measured? Further, can the Minister say something about how the Government see this power working in practice?

I thought the noble Baroness, Lady Meacher, raised a particularly interesting question about what the sanction might be if a public servant fails to comply with an order to disclose information. My noble friend Lady Chakrabarti also spoke of the rare disputes between professionals and how these may be resolved by direction from the Secretary of State, rather than through the courts. She gave a historical context, if you like, to that status of professionals making their own judgments.

18:15

I look forward to the Minister’s answers to these questions, because, in a sense, they go to the heart of the recognition of the police’s authority and the status of professionals when they are asked to disclose sensitive information.

[Baroness Williams of Trafford (Con)]

My Lords, we expect that the duty will provide the right legal basis for improved multiagency working and draw in the correct set of partners to prevent and reduce serious violence effectively. We think it is right, however, to ensure that there are means of securing compliance should a specified authority refuse to play their part—in other words, in adherence of the duty. So we have included provision within Clause 17 for the Secretary of State to issue a direction to secure compliance, should a specific authority, educational institution, prison or youth custody authority fail to meet the requirements of the duty. For publicly managed probation service providers, prisons, young offender institutions, secure training centres or secure colleges, existing mechanisms can be utilised through the relevant Secretary of State to ensure compliance with the duty.

As a result of the amendment to this clause just agreed by the Committee, the Secretary of State must now obtain the consent of the Welsh Ministers before issuing a direction to a devolved Welsh authority, as the noble Lord, Lord Ponsonby, said.

I now take the opportunity to address concerns that were raised previously by the noble Lord, Lord Paddick —it was only on Monday night, but it seems quite a long time ago. Let me be clear: a direction can be issued only to certain specified or relevant authorities and not to individual front-line professionals or practitioners. In addition, directions can be issued only in respect of certain duties, as listed in Clause 17(1). On information sharing, no directions can be issued in relation to the exercise of the powers in Clause 15 or any regulations made under Clause 9, which enable but do not mandate information sharing. I hope that answers the question from the noble Lord, Lord Paddick.

Directions can be made by the Secretary of State in relation to a failure to discharge the mandatory duty in Clause 16 to share information with a local policing body. As I have said previously, the purpose of Clause 16 is to enable the local policing body—that is, the PCC and their equivalents—to request information in order to assist the specified authorities and monitor the effectiveness of local strategies. To reiterate—this may assist the noble Baroness, Lady Chakrabarti—this power would not enable the Secretary of State to directly compel an individual doctor, teacher or social worker to disclose personal information. Additionally, any direction given to an authority cannot require a disclosure which would be in breach of the data protection legislation. If an authority refused to comply with the direction due to concerns that doing so would breach the data protection legislation, the Secretary of State could apply for a mandatory order and the court would then determine the question. I hope that this clarification is helpful.

I assure the Committee that, in any case, we expect these powers to be seldom used and utilised only where all other means of securing compliance have been exhausted. I am sure noble Lords would agree that, in order for this duty to be effective, a system needs to be in place to ensure that authorities comply with the legal regulations we are proposing to help prevent and reduce serious violence.

A direction by the Secretary of State may require the authority in question to undertake specific actions in order to comply under the duty, and directions may be enforced by a mandatory order granted on application to the Administrative Court in England and Wales. Further detail on this process will be set out in statutory guidance, which will be subject to a public consultation following Royal Assent. I commend Clause 17 to the Committee.

[Lord Beith (LD)]

Can the Minister explain subsection (5), which sets out that

“the governor of a prison, young offender institution or secure training centre”

is not covered by these provisions?

[Baroness Williams of Trafford (Con)]

My Lords, the direction power is not available in relation to probation services provided by the Secretary of State or publicly run prisons, youth offender institutions, secure training centres or secure colleges. As I said earlier, existing mechanisms will be available to ensure that they are meeting the requirements of the duty. In addition, as I have already outlined, the Secretary of State must also obtain consent from Welsh Ministers before exercising the direction power in relation to a devolved Welsh authority.

[Baroness Chakrabarti (Lab)]

Before the Minister sits down, I have one further question about the protection on data protection. My understanding is that, essentially, it works by limiting the control and transfer of data to the purposes for which the data is held. However, if this legislation changes those purposes to include, for example, the serious violence duty, data protection will not help any more because there will be a purpose that overrides the existing primary purpose. Perhaps during the next few hours—or years—of this Committee, we could get some advice from our friends in the Box.

[Baroness Williams of Trafford (Con)]

The noble Baroness is absolutely right about data protection but there are exemptions. One is the detection, prevention and reduction of crime.

[Lord Paddick (LD)]

I am grateful to the Minister. I think I need to read what she said and compare it with what is in other clauses in the Bill because, although it is difficult to hold everything in one’s head, I am not sure that everything she said is consistent with what is in the Bill.

However, there are two specific questions that the Minister did not answer. The noble Baroness, Lady Meacher, asked what the sanction would be for failure to comply. Is it right that a mandatory order is an order of the Administrative Court to comply with a legal duty, and therefore failure to comply with a mandatory order would be in contempt of court? The second question, which I asked, was: can the Minister give examples of where public authorities involved in preventing and tackling serious violence have obstructed the efforts to achieve those objectives? If not, why is the clause necessary? I do not expect the Minister to have examples at her fingertips but perhaps she could write.

[Baroness Meacher (CB)]

I thank the Minister for her response on Clause 17. However, I wish to express a bit of concern. Although she assured the Committee that an individual doctor or youth worker would not be required to provide information, nevertheless an authority might well provide information, without consulting the individual doctor or youth worker, that would identify individuals who were receiving services in that authority. After the Minister’s response, I am not at all clear that we can be completely sure that this will not happen; I believe that there should be some wording in these clauses to specify that information from authorities about individuals would not be accepted if they provided it. This is an incredibly dangerous situation if individuals find that their authority has been divulging information to the police; it could destroy the efficacy of our public services—it is that serious.

I am not trying to be awkward; I just feel that we need some assurances in these clauses that individuals will not need to be concerned about the disclosure of information about them. Various subsections in Clauses 15 and 16 and so on indicate that, in looking at data protection, you must take account of the regulations in this Act. It is quite complex but it is not reassuring, if I may say so.

[Baroness Williams of Trafford (Con)]

My Lords, I am keen for this not to be left hanging in uncertainty. Perhaps a bit of further explanation will be helpful to the noble Baronesses, Lady Meacher and Lady Chakrabarti, and the noble Lord, Lord Paddick.

This is a backstop power that will be used rarely. However, if needed, it could be utilised; for example, where one of the specified authorities fails to participate in the preparation of the local strategy. If a direction was issued and the authority still refused to comply—that was the question asked by the noble Lord, Lord Paddick—on the basis that it believed that doing so would breach data protection legislation, the Secretary of State would need to apply for a mandatory order and the court would ultimately decide, but I do not think that there is any question of breaching data protection legislation.

[Earl Attlee (Con)]

My Lords, before the noble Baroness withdraws her objection to the clause standing part, I remind noble Lords that we are in Committee and can speak as many times as we like.

[Lord Paddick (LD)]

I have had enough.

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

My Lords, it might be helpful to the Committee if I clarify what may be a slight confusion. The group was led by Amendment 72 but noble Lords will recall that Amendment 72 was agreed to in its place. The question that the Committee now has before is that Clause 17, as amended, stand part of the Bill.

Clause 17, as amended, agreed.

Clause 18: Guidance

Amendment 73

Moved by

[Lord Paddick]

73: Clause 18, page 17, line 17, at end insert “and contained in regulations”
Member’s explanatory statement
The aim of this amendment is to ensure that the guidance under this Clause is able to be scrutinised by Parliament

[Lord Paddick (LD)]

My Lords, in moving Amendment 73, I will speak also to Amendment 74 in my name.

Clause 18 states that those authorities that are, under this chapter of the Bill, under a duty to prevent and tackle serious violence

“must have regard to guidance issued by the Secretary of State”.

However, in the Bill, the only people the Secretary of State must consult are Welsh Ministers. As we will see in a later group, when it comes to similar guidance in relation to offensive weapons homicide reviews, Clause 31 requires the Secretary of State to consult

“persons appearing to the Secretary of State to represent review partners”

and

“such other persons as the Secretary of State considers appropriate.”

That is in addition to Welsh Ministers.

We on these Benches believe that the Secretary of State should also consult representatives of the authorities that will be subject to the guidance, and such other persons as may be appropriate to consult. That is the intention of Amendment 74. We also believe that such guidance should be statutory—that is, contained in regulations—to enable Parliament to scrutinise the guidance before those involved become subject to it, as set out in Amendment 73. I beg to move.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we support the amendments put forward by the noble Lord, Lord Paddick. On Amendment 74, we believe it is vital that the Government should consult front-line organisations on the content of the guidance. They are the ones who know how this will, or will not, work in practice and their expertise is the driving force behind the duty. The Government have of course published draft guidance on this, and I ask the Minister whether this guidance is being consulted on.

18:30

Amendment 73, as explained by the noble Lord, Lord Paddick, is a recommendation of the DPRRC. The committee said it was unconvinced by the reasons given by the Government on why, throughout the Bill, guidance should not be subject to parliamentary procedure. It raised the potential power of this type of guidance, which authorities are told in statute to have regard to. The committee said:

“The guidance could … go much further than simply assisting those to whom it is directed: it would allow the Secretary of State to influence how statutory powers and duties are exercised”.

Will the Minister accept the committee’s recommendation?

[Baroness Williams of Trafford (Con)]

My Lords, that was quick for a Committee debate. I am grateful to the noble Lord, Lord Ponsonby, for setting out the case for these amendments, which relate to the power to issue guidance in relation to the serious violence duty. I am sure we all agree that legislation works far better, in practice, when it is implemented alongside clear guidance. In the case of the serious violence duty, we want to ensure that the guidance is clear on the expectations of all specified authorities, that it provides sufficient advice in meeting them and that it highlights best practice from across England and Wales. It is also crucial that such guidance is developed in collaboration with and with input from those who will be subject to the legislation and those who represent them to ensure that it is fit for purpose.

That is why, prior to the implementation of Chapter 1 of Part 2, we will publicly consult on the guidance to support the duty. As a first step, we have published the guidance in draft to assist the scrutiny of these provisions. I have a copy of it here. We welcome feedback on the draft and will take that into account when preparing an updated draft for consultation following Royal Assent to the Bill.

Clause 18 already expressly requires consultation with Welsh Ministers, as the noble Lord said, in so far as the guidance relates to the exercise of functions under this chapter by a devolved Welsh authority. But we are committed to going further and, as part of the public consultation on the statutory guidance, we intend to invite views from key representative bodies and other relevant persons, such as the Children’s Commissioner and the domestic abuse commissioner. Given this commitment, I do not think it would be appropriate, at this point, to include a broader duty to consult in the Bill.

The stated aim of Amendment 73 is to enable the guidance to be scrutinised by Parliament. In principle, I have no difficulty with that at all; it is open to Parliament to scrutinise guidance at any time. However, the effect of this amendment, when read with the provisions in Clause 21, would be to make the guidance subject to the affirmative procedure. I am not persuaded that this level of scrutiny is necessary—and nor, for that matter, was the DPRRC, which recommended that the negative procedure should apply in this case. We are carefully considering that committee’s report and will respond ahead of the next stage. In light of the commitments I have given, would the noble Lord be happy to withdraw his amendment?

[Lord Paddick (LD)]

My Lords, I am grateful to the Minister, but it was actually me who proposed these amendments.

[Baroness Williams of Trafford (Con)]

I do apologise to the noble Lord, Lord Paddick.

[Lord Paddick (LD)]

My ventriloquism skills are not so good that the Minister would think I was the noble Lord, Lord Ponsonby. But I am glad that the Minister is going to consider the regulations again. I am not sure that the intention of my amendment was to ensure that guidance would be approved through the affirmative procedure. Any procedure would be better than no procedure at all, and it does not look like there is any provision in the Bill for parliamentary scrutiny of guidance, so I am grateful for that undertaking. I will go back and look again at a later part of the Bill, which includes the need to consult on guidance. I may need to come back on Report and again challenge why, in that part of the Bill, guidance has to be consulted on, but not in this part. Having said that, I withdraw my amendment.

Amendment 73 withdrawn.

Amendment 74 not moved.

Clause 18 agreed.

Clauses 19 to 22 agreed.

Clause 23: Duty to arrange a review

Amendment 75

Moved by

[Lord Paddick]

75: Clause 23, page 22, line 7, at end insert—
“(c) no other mechanism is available to review or hold an investigation or inquiry into the death”Member’s explanatory statement
The purpose of this amendment is to ensure that the reviews conducted under Clause 23 do not duplicate any other review taking place into the same death, for example a Coroner's inquest.

[Lord Paddick (LD)]

My Lords, in moving Amendment 75 I will speak also to Amendments 76 and 77 in this group, all in my name. We now come to offensive weapons homicide reviews and there are two points I will make initially. The first is to point to the evidence that the provisions on this in the Bill were probably, quite rightly and properly, about knife crime. Chapter 2 is about offensive weapons homicide reviews and, predominantly if not almost exclusively, homicides involving offensive weapons are knife crime offences.

Secondly, as with Chapter 1, the primary motive of the Government is to produce the illusion of doing something when the changes in the Bill have little practical beneficial effect. As we argued in Chapter 1, the Government’s approach potentially does more harm than good. Amendment 75 is a probing amendment to ask the Government why, just as Chapter 1 should have strengthened existing crime and disorder partnerships, this chapter should not strengthen the already considerable and comprehensive powers of coroners, if this were necessary, rather than creating a new and separate legal duty to conduct offensive weapons reviews—other than the obvious explanation that the Government could point to it and say they had done something about knife crime.

For every death where the cause of death is still unknown, where the person might have died a violent or unnatural death or might have died in prison or police custody, a coroner must hold an inquest. Clearly every qualifying homicide, as identified by Clause 23, and every potential qualifying homicide, even if the Secretary of State changed the definition by regulations, as subsection (7) allows, would be subject to a coroner’s inquest. Paragraph 7 of Schedule 5 to the Coroners and Justice Act 2009 provides coroners with a duty to make reports to a person, organisation, local authority, or government department or agency, where the coroner believes that action should be taken to prevent future deaths. All reports, formerly known as rule 43 reports, and responses must be sent to the Chief Coroner. In most cases, the Chief Coroner will publish the reports and responses on the Courts and Tribunals Judiciary website. Coroners are very powerful members of the judiciary. Attendance at a coroner’s court takes precedence over an appearance at any other court, if a witness is required to attend more than one court at one time, for example.

Can the Minister tell the Committee what consultation took place with coroners before this chapter was drafted? What was their response? What additional benefit would an offensive weapons homicide review have over a coroner’s report? If benefits were identified, what consideration was given to the coroner, rather than a review partner, being given the power to order a homicide review? Can the Minister also explain what happens if one of the review partners considers that none of the conditions in Clause 23(1) is satisfied, but another review partner considers that the conditions are met? Does the review take place despite the review partner’s objection, and, if it does, does the review partner that objected have to participate if it does not believe the conditions are met? Is there a hierarchy of review partners? So, if the police believe the conditions are met, must the review go ahead? And if a clinical commissioning group believes that a review should go ahead, but the police do not believe the conditions are met, does the review take place and do the police have to participate?

The Government may say that all this will be set out in regulations, but the existing provisions in the Bill are a shell of an idea, where this Committee is left to guess what actually happens in practice; what a qualifying homicide is, because that can be changed by regulation; who the review partners will be, because that will be set out in regulations; and what happens if there is disagreement among review partners about whether the conditions are met.

We already have child death reviews, domestic homicide reviews—on which more in a subsequent group—safeguarding adult reviews, and, now, offensive weapons homicide reviews. With the Bill as drafted, how many of the sadly too many knife crime deaths a year will be subject to a review? According to the Bill, factors that decide whether a review is necessary may include, for example, the circumstances surrounding the death, the circumstances or the history of the person who died, or the circumstances or history of other persons with a connection with the death, or any other condition the Secretary of State sets out in regulations. How many reviews do the Government believe will have to be conducted each year by our overstretched police, local authority and health services? I ask the Minister to not give the answer: “It depends what conditions are contained in the regulations”.

Amendment 76 is intended to ensure, as with the serious violence duty, that professionals, including doctors and counsellors, are not forced to disclose sensitive personal information that is subject to a duty of confidentiality, unless, in exceptional circumstances, it is in the public interest to do so, and in accordance with existing policies and practices, although I accept that these may be less stringent in the case of information regarding the deceased.

As before, Clause 31 says that review partners must have regard to guidance issued by the Secretary of State, but there is no mention of parliamentary scrutiny of such guidance. My Amendment 77 requires the guidance to be laid before Parliament to ensure parliamentary scrutiny. I beg to move Amendment 75.

[Lord Beith (LD)]

My Lords, I am glad to support my noble friend in questioning whether the processes outlined in this clause should be altered so that they protect the procedures that we already have and have had for a thousand years, to use the system of coroners to investigate unexplained deaths of a wide variety of types. Instead, we have the offensive weapons homicide review added to the system. It is unclear how this will relate to the coroner’s duties in a situation where such a death has occurred, because the coroner’s duties do not disappear because we have legislated this system into existence. I hope the Minister will clarify this point.

There was a time when the Government might have felt that the system of coroners was not quite up to the job in some areas. We had problems over the years with inconsistencies in standards of coroner, but considerable attention has been given to that in recent years and I think the system now has much more consistency about it. We are not subject to some of the problems of particular localities which existed in the past. The creation of a Chief Coroner, although in a more limited way than originally envisaged, I think has helped in that process.

It seems to me that the Government are not saying that the coroner system cannot handle this, they are simply legislating for an additional mechanism, because that seems to be a good, visible response to a problem that we all acknowledge is a serious one. But serious problems are not solved by creating more structures and processes, particularly in the circumstance where what is a qualified homicide appears to be so uncertain that the Government have to keep to themselves powers to change the meaning of qualified homicide while the legislation remains in force.

I am very unpersuaded about this system and certainly would like to know what coroners are supposed to do when they find themselves presented with the likelihood of such an inquiry taking place and may have their own duties in respect of the death that has taken place.

18:45

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the noble Lord, Lord Paddick, has made it clear that these are probing amendments. The noble Lord, Lord Beith, has just expressed scepticism about the number of initiatives which the Government have put forward in this section of the Bill.

Having said that, we support this part of the Bill on offensive weapons homicide reviews. Amendment 75 raises the question of what happens if a death is already covered by an existing review mechanism, and not duplicating reviews. When this question was raised in the other place, the Minister said:

“To avoid duplication of work, the Bill provides that these new offensive weapons homicide reviews will be required only where there is not an existing statutory requirement to review the homicide”.—[Official Report, Commons Police, Crime, Sentencing and Courts Bill Committee, 27/5/21; col. 268.]


Clause 23(5) provides that a review is not required under this chapter if a review of the death is already taking place under different arrangements. If I understand it correctly, I think this meets one of the questions raised by the noble Lord, Lord Paddick, in his amendment.

Amendment 76 deals with data protection. It would prevent data being shared for these reviews if it breaches an obligation of confidence or any other restriction other than the Data Protection Act. These issues were debated in detail on Monday in relation to the serious violence reduction duty. Obviously, data sharing is absolutely key to a homicide review to allow us to identify and learn lessons from the death, and to decide on actions to take in response. However, as raised in the earlier debate, we must know how this is to be balanced with safeguards.

Clause 29 provides that a person may not be required to disclose information under this chapter that they could not be compelled to disclose in High Court proceedings. It would be helpful if the Minister could talk us through the specific provision of potential High Court proceedings.

Amendment 77 is based on a recommendation of the Delegated Powers and Regulatory Reform Committee. The DPRRC has said that guidance on this chapter of the Bill provided by Clause 31 should be subject to parliamentary scrutiny and done through a statutory instrument subject to the negative procedure. We support the committee’s suggestion and call on the Government to look carefully at all the committee’s recommendations.

[Lord Sharpe of Epsom (Con)]

I am grateful to the noble Lord, Lord Paddick, for explaining his amendments to the provisions in the Bill which establish offensive weapons homicide reviews. Before I turn to the specifics of the amendments, it may assist the Committee if I first set out the context and rationale for the introduction of these reviews. Noble Lords asked a lot of questions and I will do my best to get to all of them. If I have missed any, I will write to noble Lords.

Every homicide is a tragedy and the Government are committed to doing all they can to prevent the senseless loss of life and tackle serious violence. We are naturally disturbed by data showing that homicide has risen by about a third in England and Wales between 2014-15 and 2018-19. We have also seen that homicides involving offensive weapons now make up a large and growing proportion of all homicides—approximately 354 out of 732 in 2019. Homicide is now the fourth leading cause of death for men aged 20 to 34, behind suicide, drug overdoses and car accidents. Yet there is currently no legal requirement to formally review the circumstances around the majority of homicides involving an offensive weapon.

This provision will require local agencies to consider the circumstances of both the victims and perpetrators during an offensive weapons homicide review, and identify lessons that could help prevent future deaths. By deepening our local and national understanding of homicide and serious violence, together we can improve our response and ultimately save lives.

The amendment would change the definition of a “qualifying homicide” whereby, alongside the other requirements already set out in Clause 23, an offensive weapons homicide review would be applicable only if no other mechanism is available to review or hold an investigation or inquiry into the death. We agree with the sentiment of the amendment that it would not be necessary or proportionate to require the review partners to conduct an offensive weapons homicide review where the homicide already meets the conditions for an existing review—for example, a domestic homicide review—as this would involve duplication of work and create an unnecessary burden on the review partners, yet produce the same outcomes. However, we do not consider the amendment necessary as Clause 25 already provides for the relationship between offensive weapons homicide reviews and other review requirements to avoid duplication of effort, including disapplying the duty to conduct an offensive weapons review in certain cases.

The noble Lord, Lord Paddick, cited coroners’ inquests as an example of existing reviews that would preclude a homicide from qualifying for a review under Chapter 2 of Part 2 of the Bill. We should remember that inquests are designed for a different purpose. They are legal inquiries into the cause and circumstances of a death, and are limited to the four statutory questions of who, where, when and how or by what means a person came about their death. Further to this, in many homicides where an offensive weapon is used, there will not be an inquest because the criminal trial will answer the statutory questions and an inquest will not need to take place.

The noble Lord, Lord Paddick, also asked if consultation with coroners had taken place at an official level. It has and that will continue during the design phase.

[Lord Beith (LD)]

It is important that we get this matter clear. If the coroner has begun an inquest, does that inquest fall within the limitation that the Minister has described, which would preclude a homicide review being started while that inquest is going on?

[Lord Sharpe of Epsom (Con)]

I thank the noble Lord for that intervention. As I understand it, yes it does. I expect I will be corrected by my officials later.

[Lord Paddick (LD)]

I am grateful to the Minister for giving way. It cannot possibly be right that a coroner’s inquest is not held if a criminal trial answers the statutory questions. Why is a coroner’s inquest into the Manchester Arena bombing currently taking place after two people have been convicted in criminal trials? I cannot believe that what the Minister just said is true.

[Lord Sharpe of Epsom (Con)]

I am not in a position to answer that question, I am afraid. I shall have to write to the noble Lord.

I can now confirm that coroners’ inquests will not preclude an offensive weapons homicide review.

In homicide cases where there is an inquest, its purpose would not be to provide the same in-depth review as an offensive weapons homicide review, which will identify points of failure, lessons learned and opportunities to intervene, which will help partners tackle homicide locally and nationally. Due to this, we do not consider that the amendment is necessary. I may have already said that, in which case I apologise. In fact, I have said that; I shall move on to Amendment 76.

Amendment 76 relates to information sharing in relation to confidentiality obligations and data protection in Clause 29. To review the circumstances leading up to a homicide involving an offensive weapon, to identify lessons and produce recommendations that will have a meaningful impact and save lives, the review will undeniably need to be able to access and consider information and material relevant to the homicide. Such information may include information about the victim or the alleged perpetrators or perpetrator. It may relate to their interactions with police forces, social services, health practitioners, educational institutions, employers or third-sector organisations. It may relate to information about their known associates.

It is not for the Government to determine what information is relevant. That will be for the review partners. I was asked by the noble Lord, Lord Ponsonby, about the High Court proceedings. That issue is dealt with in Clause 29, which sets the terms on which disclosures of information required or authorised by Clauses 26 to 28 may be made. I do not have precise details on the High Court proceedings but I will come back to the noble Lord, if that is all right. Clause 28 includes a power enabling review partners to provide information to another review partner for the purpose of enabling or assisting the review partners to arrange and carry out an offensive weapons homicide review.

I have mentioned review partners a number of times and it is worth digressing briefly to attempt to answer the question of the noble Lord, Lord Paddick, about the backstop, effectively—what happens if there is no review partner? That is not possible because in cases where there is no relevant review partner, the regulations also allow for the Secretary of State to be given the power to direct which partners are the relevant ones. I hope that answers his specific question.

Clause 28 also includes a power for review partners to require information from other persons. However, review partners may request information under this power only for the purposes of enabling or assisting review partners to arrange and carry out an offensive weapons homicide review, and the request may be made only to a person whom the review partner considers likely to have such information. The scope of the information that might be requested, and who it might be requested from, is therefore limited.

This power does not, however, affect the availability of any other duties or powers to share information such as existing lawful routes for information to be shared for safeguarding purposes or for the purposes of the detection and prevention of crime. As currently drafted, the provisions in the Bill ensure that relevant information may be disclosed, and such disclosure would not breach existing obligations of confidence, but any disclosure must still abide by the data protection legislation—that is, the Data Protection Act 2018 and regulations made under that Act, the UK General Data Protection Regulation, regulations implementing the GDPR and the law enforcement directive—and must not be prohibited by specified provisions of the Investigatory Powers Act. For example, where personal data is subject to the UK General Data Protection Regulation, that regulation sets out the principles, rights and obligations that apply to the processing of personal data, including exemptions from particular provisions that can apply in certain circumstances, as set out in Schedules 2 to 4 to the Data Protection Act 2018—for example, in the prevention and detection of crime.

Additionally, Clause 29 provides that a person cannot be required by Clause 28 to disclose information that they could not be compelled to disclose in proceedings before the High Court, meaning that information that is subject to legal professional privilege cannot be required to be disclosed. Due to those safeguards, we do not feel that Amendment 76 is necessary.

I should also like to confirm that we have consulted the Information Commissioner’s Office throughout the development of these provisions and will continue to engage with it as we develop guidance and prepare to pilot these reviews. We consider the information-sharing provisions in Chapter 2 of Part 2 necessary to facilitate an effective multiagency approach to preventing and reducing homicide and serious violence.

Amendment 77 would ensure that guidance under Clause 31 is laid before Parliament. The statutory guidance provided for in Clause 31 will assist the review partners in understanding the statutory responsibilities placed on them, as well as providing best practice on how to fulfil those responsibilities. Among other things, the guidance will provide further information on the notification requirements, the conduct of reviews, the content of the final report and information sharing. We intend to publish an outline draft of the guidance document to allow time for further development before consulting on the guidance, as required by Clause 31. The guidance document will be finalised and published ahead of the pilot commencing.

19:00

As I have mentioned the pilot, I will take this opportunity to confirm that we have reached agreement with local leaders in London, the West Midlands and Wales that several authorities in these areas will take part in the pilot of offensive weapons homicide reviews. They were chosen to provide insight from places with differing levels of homicide and serious violence in both England and Wales. We are working with local leaders and partners in these areas on the design and pilot, and further details will be provided in due course.

Returning to the specific matter of the guidance, I can confirm that the guidance document will be published on GOV.UK and be available for everyone, so that families, friends, the public and organisations which have an interest in an offensive weapons homicide review can understand what to expect from such a review. As to whether the guidance should also be laid before Parliament and subject to parliamentary scrutiny, we note the recommendation made by the Delegated Powers and Regulatory Reform Committee in this regard. We are considering carefully that committee’s report and will respond ahead of the next stage of the Bill.

In conclusion, I am happy to consider Amendment 77 further, but I hope that I have persuaded the noble Lord that Amendments 75 and 76 are unnecessary and that, accordingly, he is content to withdraw Amendment 75.

[Lord Beith (LD)]

Before my noble friend does that, can the Minister clear up a mystery? I remain mystified. A person has been stabbed, but no charge has been laid against anyone because the police have not yet identified who might have carried out the stabbing. The coroner opens and adjourns an inquest in those circumstances. What happens then? Is the coroner told that he must close down this inquest? Does the coroner continue to co-operate with the police in the normal way, as they bring to him the information that they have gradually obtained about how this death might have taken place? In passing, I should say that it would be wrong to give the impression that coroners do not, as a matter of course, draw lessons from public bodies and others which arise from any death that they report on.

[Lord Sharpe of Epsom (Con)]

I thank the noble Lord. I thought that I had made it clear, and I apologise for obviously not having done so, but no, OWHRs are not precluded by a coroner’s inquest.

[Lord Paddick (LD)]

My Lords, I thank the Minister for attempting to answer my questions. I am very grateful for his undertaking to write to me on any questions that were not answered. I just add one question to that.

One of my big regrets in life is not taking shorthand, so I must paraphrase what the Minister said. It was something along the lines of there being no existing legal duty to review the circumstances surrounding an offensive weapon homicide to prevent future deaths. I appreciate that the Minister is behind the curve, as he relies on a brief that is given to him before the contents of what I say immediately beforehand are known. Paragraph 7 of Schedule 5 to the Coroners and Justice Act 2009 provides coroners with a duty to make reports where the coroner believes that action should be taken to prevent future deaths. How is that not a legal duty to review the circumstances surrounding an offensive weapon homicide to prevent future deaths? If the Minister can add that to the unanswered questions, then, in the meantime, I beg leave to withdraw Amendment 75.

Amendment 75 withdrawn.

Clause 23 agreed.

Clauses 24 to 28 agreed.

Clause 29: Information: supplementary

Amendment 76 not moved.

Clauses 29 and 30 agreed.

Clause 31: Guidance

Amendment 77 not moved.

Clauses 31 to 35 agreed.

Amendment 78

Moved by

[Lord Falconer of Thoroton]

78: After Clause 35, insert the following new Clause—
“Domestic homicide reviews
(1) Section 9 of the Domestic Violence, Crime and Victims Act 2004 is amended as follows.(2) For subsection (2) substitute—“(2) The Secretary of State must in all cases which meet the circumstances set out in subsection (1) direct a specified person or body within subsection (4) to establish, or to participate in, a domestic homicide review.”(3) After subsection (3) insert—“(3ZA) The Secretary of State must by regulations set out—(a) the type of data relating to domestic homicide reviews which must be recorded, including—(i) the number of domestic homicide reviews taking place across England and Wales annually; and(ii) the time taken to complete each individual domestic homicide review;(b) that the data must be recorded centrally in a Home Office database; and(c) that the data must be published annually.””Member’s explanatory statement
This new Clause seeks to modify the Domestic Violence, Crime and Victims Act 2004 to force the Secretary of State to automatically direct a domestic homicide review in circumstances as outlined in Section 9 of the Act. The new Clause also aims to improve data collection methodologies around domestic homicide reviews.

[Lord Falconer of Thoroton (Lab)]

This amendment deals with domestic homicide reviews, which are provided for in Section 9 of the Domestic Violence, Crime and Victims Act 2004. Domestic homicide reviews are concerned with where a domestic murder or manslaughter occurs, meaning where somebody over 16, living in the same household as somebody else, is murdered or is the victim of manslaughter, or some other crime, leading to death. The purpose of the domestic homicide review pursuant to Section 9(1) of the 2004 Act is to identify the lessons to be learned from the death. It is envisaged that it will be a multiagency review.

These domestic homicide reviews have proved to be of real value because they have identified the sorts of things which, if they were remedied, could help to prevent subsequent occurrence. The two big issues to emerge, time and again, in domestic homicide reviews are the proper recording of domestic violence complaints and whether the risk that the recording revealed has been properly dealt with, particularly by the police but also by other agencies. The Home Office published what lessons have been learned from a whole range of domestic homicide reviews in a 2016 document. I cannot find any subsequent document that brings together lessons learned.

We seek to do two things by this amendment, and there is a connected issue that I raised with the Minister before coming to this debate today. First, according to Section 9(2) of the 2004 Act, the Secretary of State has a discretion as to whether he orders a domestic homicide review in any case. On this side of the House, we consider that there should be a domestic homicide review in every case. Documents emanating from the Home Office suggest that it believes that there is such a position. Looking at Section 9 of the 2004 Act, it is quite difficult to ascertain whether or not there is an obligation in every case for there to be such a domestic homicide review. We think that there should be, and our proposed amendment to subsection (2) seeks to achieve that. I would very much welcome the Minister telling us what the position is in relation to it and what legal duty exists to ensure that there is a domestic homicide review. If there is any doubt about it, can he confirm that the Government’s position is that there should be a domestic homicide review in every case and that he would consider making the necessary legal changes to ensure that?

Secondly, we take the view that there should be proper recording of all that is learned from domestic homicide reviews, and, in particular, that the information is readily available in a centralised place to determine the sorts of things that lead to domestic homicides, so that it is available to everybody, in particular every police force that is dealing with it.

Thirdly, and separately—this is not specifically covered by the amendment, but I raised it with the Minister beforehand—a domestic homicide sentencing review was commissioned by, I think, the previous Lord Chancellor, on 9 September 2021. This has involved the instruction of Clare Wade of Her Majesty’s Counsel to look into the sentencing of people convicted of a domestic homicide. Will the Minister please say what the terms of reference of Clare Wade’s review are? When is it expected to report, and what will be done with its recommendations?

We start, on this side, from the premise that this Bill does not sufficiently address violence against women and girls in particular. In two-thirds of domestic homicides, of which there are about 150 a year, a woman is the victim. The pattern of sentencing by courts has evolved in such a way that in the case of victims of stabbing outside of a domestic context the courts are guided to give very heavy sentences, while for victims of stabbings in a domestic context the courts are not given such stringent guidance. We think that that needs to be looked at: a domestic killing should not be treated as less serious than one committed outside the home. I would be grateful to hear the Minister’s explanation of the position in relation to the review. I beg to move.

[Baroness Bennett of Manor Castle (GP)]

My Lords, it is a great pleasure to follow the noble and learned Lord, Lord Falconer of Thoroton. My noble friend Lady Jones of Moulsecoomb signed this amendment but is, unfortunately, unable to be in the House tonight and I speak in her place.

Essentially, I agree with everything the noble and learned Lord, Lord Falconer of Thoroton, said. I will add just a couple of points. It is worth noting that the National Police Chiefs’ Council and the College of Policing produced a report on domestic homicide in August, which described it as

“an entrenched and enduring problem.”

The report makes very disturbing reading. It records that just over half of suspects were previously known to police from domestic abuse cases, and another 10% were known for other offences, while 44% of households not covered by those categories were known to some other agency in some way. There is clearly an issue, therefore, with lessons learned.

It is good to have a report such as this: it is very useful and informative. But what is being proposed here is a register—something ongoing that can be a continual source of information and learning. We should make a couple of comparisons here. One is with air safety, where there is an assumption that whenever anything goes wrong every possible lesson will be learned and every piece of information will be extracted from it. We should be looking at domestic homicides in the same way.

Another parallel is with the Vision Zero approach to road crashes which many nations are increasingly adopting. We should be among them, and we should be looking to have zero serious injuries or deaths on the road. We know from the report that in nearly all cases of domestic homicide there has been an opportunity for someone to intervene. We should be looking towards a Vision Zero for domestic homicides.

[Lord Paddick (LD)]

My Lords, I listened very carefully to the arguments put forward by the noble and learned lord, Lord Falconer of Thoroton, supported by the noble Baroness, Lady Bennett of Manor Castle, but I am not sure that there needs to be a domestic homicide review in every case—or whether that is not already the situation.

In my experience, some cases of domestic homicide are very straightforward, and I remind the Committee of my remarks on the previous group: that coroners—rather than, for example, the Secretary of State—should perhaps have the power to order such a review if they believe it is in the public interest.

We support the need to ensure that lessons are learned from domestic homicide reviews, that they are regularly published, and that these offences are treated with utmost seriousness. Being attacked and killed in your own home, a place where everyone should feel safe, is far more serious than being attacked and killed on the street. That is why it is so important that any lesson that can be learned from any domestic homicide should be learned, and why the courts need to take these offences far more seriously than a random attack or a gang-related attack on the street.

19:15

[Lord Sharpe of Epsom (Con)]

I thank the noble and learned Lord, Lord Falconer, for his conversation this afternoon, which was very gracious of him.

As the noble and learned Lord has set out, this amendment seeks to amend the Domestic Violence, Crime and Victims Act 2004 to require the Secretary of State to direct a domestic homicide review to be carried out in circumstances outlined in Section 9 of that Act. The amendment also aims to improve data collection methodologies around domestic homicide reviews. I shall go into that now and, I hope, answer noble Lords’ questions in the course of my remarks.

As the noble Lord, Lord Paddick, noted, domestic homicides are an abhorrent crime. Every death is a tragedy. I will explain some of the measures we are taking to tackle the perpetrators of these crimes, because it is germane to this amendment. In 2020-21 £7 million was awarded to police and crime commissioners to fund 28 perpetrator programmes, including the Drive project, which works with high-harm and high-risk perpetrators. This year we have also allocated £11.3 million to further expand the geographic scale of perpetrator programmes.

I return to the amendment. Domestic homicide reviews are a valuable mechanism for understanding what lessons can be learned from these deaths to prevent further tragedies. We recognise that there is room for improvement in the way these reviews are conducted and the lessons applied.

Domestic homicide reviews should be considered where the death of a person appears to have been caused by someone to whom they are related or had an intimate relationship with, or by a member of their household, with a view to identifying lessons from the death. The statutory guidance dictates that these decisions are to be made by community safety partnerships at local level. The Home Office should be notified of these decisions by the CSP. CSPs comprise representatives from responsible authorities: police, local authorities, probation and health services.

The chair of the CSP holds responsibility for establishing whether a homicide is to be the subject of a DHR by giving consideration to the definition set out in Section 9(1) of the 2004 Act, as noted by the noble and learned Lord, Lord Falconer, and whether the statutory criteria in that section are satisfied. There will be occasions where a CSP may consider it inappropriate to conduct a DHR based on the information before it, either because the statutory criteria are not met, in its view, or for other reasons.

The Home Office expert quality assurance panel reviews all decisions not to proceed with a review. The decision is then ultimately escalated to the Secretary of State, who can exercise her reserve power in Section 9(2) of the 2004 Act to direct a community safety partnership to conduct a review. This was first utilised in the very tragic case of Ruth Williams. Since March 2021, the Home Secretary has made four such directions.

In a very small number of cases, it is possible that the criteria for a domestic homicide review are met, but it is agreed that a review is not the best way to ensure that lessons are learned from the tragic death, for example when there is inadequate information to proceed or when a different safeguarding review would be more appropriate. I reassure the noble and learned Lord that these decisions are taken very carefully by the quality assurance panel and the Home Secretary.

In short, domestic homicide reviews already take place in the great majority of cases where the criteria in the 2004 Act are met. Given this, and the existence of the Home Secretary’s reserve power to direct a review, we are not persuaded that the framework for triggering these reviews is wanting and in need of change.

Turning to the second aspect of the noble and learned Lord’s amendment, I accept that there are concerns about the collection of data relating to domestic homicide reviews. This is why the Home Office has undertaken to create a central repository to hold all domestic homicide reviews. Funding has been secured for this and it is expected to go live next year. Once introduced, all historical reports will be collected to ensure that there is a central database on domestic homicides.

Furthermore, I should add that Section 17 of the Domestic Abuse Act 2021, which comes into force on 1 November, will amend Section 9 of the 2004 Act to make it a requirement for CSPs to send all completed DHRs to the domestic abuse commissioner as soon as reasonably practicable after completion. This will be a useful source of information from which the commissioner can drive forward change.

To go on to the noble and learned Lord’s final question about the sentencing review, the Government recognise the legitimacy of the concerns around the sentencing of domestic homicide cases raised by the families of Poppy Devey Waterhouse and Ellie Gould and those highlighted by the Victims’ Commissioner and domestic abuse commissioner. That is why we are conducting a review into such cases. It will be a targeted review of how domestic homicide cases—specifically those involving fatal attacks on intimate partners or ex-partners—are dealt with by our justice system, and will take account of sentencing outcomes and available data. The first stage of this review, an analysis of data and relevant sentencing for cases of domestic homicide tried between 2018 and 2020, is now complete.

As the noble and learned Lord noted, Clare Wade QC has since been appointed as the independent expert to conduct the second and final stage of the review. This will involve the consideration of both internal findings and existing external analysis carried out by academics and campaigning organisations, followed by the identification of potential options for reform. The expectation is that Ms Wade will report back to the Secretary of State before the end of the year.

In conclusion, I hope that the ongoing work in the Home Office on domestic homicide reviews and the domestic homicide review repository that I have described reassure the noble and learned Lord that the objectives he seeks through this amendment are already in place or under way. On that basis, I hope that he will be content to withdraw his amendment.

[Lord Falconer of Thoroton (Lab)]

I am grateful to the noble Baroness, Lady Bennett, and the noble Lord, Lord Paddick, for speaking in the debate. I am also grateful to the noble Lord, Lord Sharpe, for his very comprehensive answer, though I find the answers that he gave quite concerning for three reasons.

First, he did not give a coherent basis for why there are domestic homicide reviews in some cases but not others. I completely accept that there might be cases where it was not appropriate, but the set-up of the statute gives no real indication in relation to that. He indicated that the Secretary of State had intervened on a few occasions, but did not give the basis. It would be helpful to know how many domestic homicides had a review and how many did not in the last two years and what was the basis for the selection. If he feels able to write, that would help me in considering what to do with this next.

Secondly, on the centralisation of information, he did not really come forward with a proposal for how one would improve the information in relation to that. I need to consider what he said on that. Thirdly, I may have missed it—I will need to read Hansard—but he did not say what the terms of reference are for Clare Wade’s review. Are they written down somewhere? Could somebody let us see them?

At this stage, of course, I withdraw my amendment.

Amendment 78 withdrawn.

House resumed.

19:24

Sitting suspended.

Overseas Development Aid: Budget

Wednesday 27th October 2021 Lords Chamber

Question for Short Debate

19:30

Asked by

[Baroness Ritchie of Downpatrick]

To ask Her Majesty’s Government what steps they will take to ensure the Overseas Development Aid budget is retained at 0.7 per cent of Gross National Income in (1) this financial year, and (2) future financial years.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, I thank the Minister, the noble Lord, Lord Collins, from the Labour Front Bench, the noble Lord, Lord Purvis, and other noble Lords who are here this evening for this very important debate. I, for one, having voted on the legislation in the other place back in 2014 and 2015, believe that the international development or overseas aid budget should be retained at 0.7% of GNI. I do note that today, the Chancellor committed to UK aid getting back to 0.7% of national income in 2024. However, I believe that that is simply kicking the can down the road, because there is absolutely no commitment with that given undertaking, and it is what matters now. What is the UK going to do today for the people and communities who have been worst affected by the Covid pandemic and climate change?

On the impact of the cuts on people and the planet, the FCDO’s annual report highlights the costs of dropping the commitment to 0.7% of GNI. Between the 2020-21 financial year and 2021-22, aid to Africa fell by 51%, and funding to the Middle East was cut by 74%, including 80%-plus cuts to Lebanon, Syria and Yemen. There were also cuts to Asia. The lowest-income countries were hit hardest, experiencing £1 billion in cuts, compared with £209 million in cuts to middle and upper-middle-income countries. The scale of the cuts was so deep that even funding for strategic priorities such as education, humanitarian responses and the FCDO’s climate funding were not immune.

We have to consider the impact of the cuts on the UK’s reputation. Aid is widely acknowledged as a central facet of how a country is perceived, and its influence around the world. Our international partners and allies are rightly concerned about this Government’s continued commitment to international development, but also to internationalism more generally. That point was made by the previous Minister, the noble Baroness, Lady Sugg, when there was a Department for International Development. It is worth noting that ICAI’s latest review of the UK’s pandemic response illustrates the damage done by the cuts to the UK’s response and therefore to the international response.

I remind your Lordships’ House that the 0.7% commitment is enshrined in law. I can well recall, when I was a Member in the other place back in 2014-15, that we implemented that Act. It came to this House, and the noble Lord, Lord Purvis, brought forward that piece of legislation in this House at that time. That Act placed a statutory legal duty to ensure that the United Kingdom hit the target of spending 0.7% of gross national income on official development assistance every year. If the 0.7% target were missed in any year, the Foreign Secretary was required retrospectively to explain why in a Statement to Parliament.

Until Parliament changes that law on the statutory duty to meet the 0.7% target, the Government must aim to hit it. They cannot deliberately aim to spend 0.5% and miss the target. The announcement in today’s Budget definitely does not explain it at all: it simply kicks the can down the road. The Government think that, by doing that, they will get off the hook. I am absolutely sure that those countries that rely on aid from the UK Government will not be letting them off the hook, and those many charitable organisations and aid agencies that do enormous work on our behalf in all the developing countries will not be letting us forget it. In fact, they have recently written to the Chancellor and the new Foreign Secretary to ask that the following are in addition to the 0.5% ODA budget.

The list includes rechannelled special drawing rights, excess vaccine donations and Sudan relief aid, because earlier this year, the International Monetary Fund agreed to a special issue of $650 billion in special drawing rights to help lower and middle-income countries respond to the coronavirus pandemic. The UK’s allocation of this is more than that of all low-income countries combined. Many rich countries, including the UK, are working out how to rechannel their SDR allocation to LMICs where they can do the most good. This is done at no cost to the donor, who simply lends their reserves. When the 0.5% budget was first announced one year ago, it was not known that the UK would receive this additional finance. Channelling SDRs carries minimal costs to the UK and supports the objective of promoting global economic recovery. Therefore, I believe it is critical that SDRs be channelled to support the poorest countries, and that that is additional to the 0.5% ODA budget. I would like the Minister to address that particular issue this evening.

It is welcome to see that the UK has committed to donate 100 million vaccine doses to the rest of the world, and that the Government promised that they would be additional to the financial year 2021-22 £10 billion aid budget. This recognises that vaccinating the world supports the UK’s ability to build back better from the pandemic and be protected from future variants. However, it is worth remembering that the UK and other wealthy countries have contributed to the global vaccine shortage by overordering and hoarding supplies. The UK has blocked a proposed TRIPS waiver at the World Trade Organization that would increase global vaccine production and address vaccine inequality faster. It is therefore critical that these vaccine doses are shared as quickly as possible to maximise their impact, and that any donated Covid-19 vaccine doses are additional to the 0.5% ODA budget in 2021-22 and in all future financial years.

Thirdly, Sudan has reached decision point under the Heavily Indebted Poor Countries initiative and received significant debt cancellation. While debt relief can be counted as ODA, it does not represent meaningful net benefit to Sudan and does not impose additional costs or effort on the UK. So it should have been written off years ago; its forgiveness comes at no real cost to the UK, so it is critical that debt relief for Sudan and other eligible countries be additional to the 0.5% ODA budget.

Finally, in the week before COP 26, it is important that the UK delivers on its wider international responsibilities by providing greater financial support to poorer countries already on the front line of climate breakdown. I urge the Minister to address these various aspects, whether climate change mitigation, debt relief for Sudan, excess vaccine donations or rechannelled special drawing rights. In this regard, I pay tribute to my noble friend Lord Collins on the Front Bench, who has led on this issue for the Opposition for several years. He has done a magnificent job in highlighting the plight of those who live in developing countries and pinpointing the need for the Government to do more and reinstate that budget to 0.7% of GNI.

19:41

[The Lord Bishop of Bristol]

My Lords, I am grateful to the noble Baroness, Lady Ritchie of Downpatrick, for initiating this short debate. Cuts to overseas aid continue to be of great concern to the Churches, which set the target of 0.7% at a meeting of the World Council of Churches in 1958. The target was then taken up by the United Nations in 1970.

The Government have now walked away from their own manifesto commitment to the 0.7% target and there are considerable concerns, as we have heard, that it may never be regained, despite the Chancellor’s announcement in today’s Budget. Meanwhile, as we have also heard, there are increasing needs for aid, not least because of Covid and climate change. As the most reverend Primate the Archbishop of Canterbury said in response to recent cuts:

“Reducing our overseas aid commitment at this critical time is morally wrong, politically foolish and an act of national self-harm.”


In my own diocese, there is considerable concern about the implication of cuts for our partner dioceses in Uganda, where Covid and climate change are threatening lives, livelihoods and lands. In recent months, the diocese raised £40,000, much of which came from the poorest communities in the diocese, knowing that, because of Covid, our friends were without food and aid-funded projects were at risk. It was a tiny commitment compared to lost aid funding, but it was received as a sign of hope.

I want to focus my remarks today, in the run-up to COP 26, on a recent initiative by the IMF to enable member countries to have finance available in a crisis. As the noble Baroness said, special drawing rights enable nations to boost global efforts in vaccinating their populations, tackling climate change and supporting global recovery by creating additional reserve assets. The vast majority of the rights issued, worth about $400 billion, has gone to richer countries. Poorer countries have gained just $21 billion.

The UK and other G7 countries have said they are exploring how they could use their SDRs to further support health needs, including vaccinations, and to enable greener and more robust recoveries in the most affected countries. However, at present, no G7 country has begun to redistribute its SDRs. It is likely that the US, France and the UK will lend some of their SDRs to the IMF’s Poverty Reduction and Growth Trust to support low or zero-interest loans and/or to the future IMF resilience and sustainability trust.

Some 250 civil society organisations from around the world have called for such SDRs to follow the principles of zero or close to zero interest rates, to avoid additional indebtedness; limited economic conditionality—for example, limiting austerity measures; and transparency. The need is great, particularly for COVAX, as we have heard, with its £12 billion estimated shortfall in funding for vaccinations, and for the Green Climate Fund, crucial to COP 26 implementation.

I have concerns about both the apparent lack of progress in the use of SDRs to boost vaccines and climate finance and it appearing that the Government are seeking to count any use of SDRs to reduce even further the aid budget—already shamefully reduced. As a professed global leader in overseas aid, the UK Government have this opportunity to use the £20 billion in special drawing rights that they have just received from the IMF, which really are windfall funds, to offer additional aid for the world’s poorest communities and regain at least some of the moral ground they have lost.

19:45

[Lord Londesborough (CB)]

My Lords, I thank the noble Baroness, Lady Ritchie of Downpatrick, for bringing this important debate to the House. This is the first time I have risen to speak since I made my maiden-cum-valedictory speech back in 1999, just days ahead of the Lords reforms that saw all but 90 hereditary Peers excluded.

I am told that this interlude may be some sort of record, so I must thank noble Lords across the House who voted for me in the whole House by-election in June, thereby limiting my enforced silence to just 22 years. So, while this is not my maiden speech, I would like to briefly thank all noble Lords, and indeed all the staff in this House, for welcoming me back so warmly.

My perspective on overseas aid has been shaped by founding and running for 30 years an information company that reported on the economies of the developing world, where the vast majority of our aid is destined. I strongly urge the Government to restore the 0.7% of GNI contribution at the earliest opportunity and to abandon the onerous fiscal conditions, notably that underlying government debt as a percentage of GDP is falling. This may result in overseas aid being cut by more than 30% in real terms for the next four or even five years. I note that the OBR forecasts that net debt may not fall in the UK until fiscal 2026 and some regard even that as optimistic.

We are contemplating a potential £20 billion total reduction in overseas aid over five years at a time when need is greatest, as the poorest nations struggle to face off the pandemic without the defences—notably vaccines—that we all benefit from here. This strikes me as grossly disproportionate when set against the Bank of England’s view that the long-term scarring of the UK economy may be no more than 1% of GDP. This leads me to ask the Minister: what level of real-world impact assessment has been undertaken to measure the consequences of these cuts? Beyond the financial numbers and percentages, I refer specifically to the number of livelihoods that will be impacted if the UK cuts aid by £4 billion to £5 billion each year. I appreciate the challenge in producing such estimates, but these numbers matter.

According to the recent Bond report, Britain’s aid efforts reach well over 100 million people across the world, through humanitarian aid, immunisation, nutrition, education, clean water and basic sanitation. It follows, therefore, that for every year we apply such cuts, we may damage the livelihoods of tens of millions of men, women and children. As the noble Baroness said, we should also consider the damage to the UK’s reputation, our “generous donor” status and, indeed, the Government’s much vaunted, post-Brexit ambition to become “global Britain”. I conclude by calling on the Government to swiftly restore the 0.7% mechanism and, above all, scrap the contentious fiscal conditions that threaten to so drastically depress our contribution for years to come.

19:49

[Baroness Hodgson of Abinger (Con)]

My Lords, I congratulate the noble Baroness, Lady Ritchie, on securing this important debate. I am delighted to follow the noble Lord, Lord Londesborough, and congratulate him on his return to the House. As usual, I draw attention to my entry in the register of interests.

The issues around the decrease in overseas development aid from 0.7% to 0.5% have already been eloquently raised. While there was always going to be a natural decrease in ODA, as the economy shrinks due to the pandemic, the decision to cut to 0.5% at a time of global emergency is a double blow to the poorest in the world. At this time of worldwide humanitarian stress from the pandemic, development aid needs to reach the grass roots, which is usually much more effectively delivered by smaller organisations, rather than through large multilateral programmes. So can my noble friend please tell us what assessments Her Majesty’s Government have made in this regard and reassure me that the cuts have been made to the larger programmes, where others contribute, rather than to the small independent organisations?

Time and time again, it has been demonstrated that if we get it right for women and girls, we get it right for all. Tragically, women are disproportionately affected by this pandemic. Plan International and other NGOs have highlighted that analysis estimates that women and girls will suffer disproportionately from reductions in funding to critical sectors, resulting in a cut to programming for an estimated 20 million women and girls.

I have long welcomed the Prime Minister’s personal support for girls’ education. Education programmes are vital because investing in girls has profound effects on their future well-being, delaying marriage, improving health and increasing women’s participation in society. However, it is hard to square how this commitment is being met when the overall budget for girls’ education is estimated to have been cut by at least 40%, with 700,000 fewer girls being supported between 2019 and 2022 compared to 2015 to 2018. It should be recognised that education cannot succeed without development input on women’s health, contraception, security, access to justice and women’s empowerment. Does the Minister agree that gender must remain central to our international development policy?

War zones create poverty. The UK has led the world with its work around women, peace and security and the Preventing Sexual Violence in Conflict Initiative. They were always going to be a marathon, not a sprint, and I hope that the Minister can reassure me that these areas will remain front and centre of security and conflict work and that resources for them will not be cut.

The situation in Afghanistan is catastrophic. The humanitarian crisis there is now spiralling out of control. While I welcome the announcement of extra funding, how will we get that to people starving on the ground and not into the pockets of the Taliban? If we give it to be delivered through the UN, can the Minister reassure me that it will not take a huge percentage for doing so? I very much hope that the UK, holding the pen for women, peace and security at the UN Security Council, will ensure that the Taliban will never get a seat at the UN without changing its stance on women because there can be no peace and security there with half the population denied their rights. Please can we ensure that in future there is always at least one woman present at any UK talks with the Taliban?

To conclude, this is the worst time to cut the percentage of aid, when the aid budget has already shrunk and when developing and conflict countries are feeling the strain of the pandemic. The pandemic has also rolled back women’s and girls’ rights. Surely, by supporting gender-focused programmes, instead of cutting them, we will enable women to help to contribute to their economies. So I hope that Her Majesty’s Government will restore overseas development aid budgets to 0.7% as soon as possible.

19:54

[Baroness D’Souza (CB)]

My Lords, I, too, thank the noble Baroness, Lady Ritchie, for introducing this important topic. The drop in the money available for ODA, together with the IMF special drawing rights windfall, raises questions again about a strategic approach to development programmes, as the right reverend Prelate the Bishop of Bristol has already pointed out. This is a useful moment to ask ourselves what are the most likely trends that will cause severe hardship to local communities and ourselves in the near future?

There are at least two major trends: first, the impact of climate change and its relation to food availability and, second, the massive outpouring of people from drought or flood-stricken regions to more temperate developed nations, including the UK. The emigration is already apparent, but it is likely to become unmanageable within the next few years. Surely this calls for a combined effort to use the moneys available to shore up programmes to deal with these two related crises. The temptation—already a rumour, as has been pointed out—is to use some of the 20 billion of these SDRs as additional ODA, thereby silencing, or hopefully silencing, critics of the reduction to 0.5% of GNI and juggling the continuation of many existing programmes.

However, there is much more at stake. The world is facing almost unimaginable catastrophes. I cite just one, which was mentioned by the noble Baroness, Lady Hodgson. How is the international community going to feed most of Afghanistan this winter, which begins next month—less than a week away? How is Europe going to cope humanely with the potential onslaught of environmental refugees? Are our current ODA theories and practice fit for purpose, or do we need radically to rethink what kind of assistance, for what, to whom and how will help to alleviate the disasters that we inevitably face?

If we accept that climate change and population movements are the key life-threatening events that we face, what kind of plans do we have to work with other donor nations in the leverage of significant sums of money for synergistic effect in order to make a real difference: massive, well thought-through and coherent programmes of strategic impact to limit the effects of climate change and limit the movement of people? Instead, we are still tinkering with funding fossil-fuel developments, such as the Mozambique liquid natural gas project, funded by the UK Government to the tune of £1.15 billion. Incidentally, this will increase Mozambique’s emissions by some 10%. Why are we not withdrawing from expensive projects such as these in favour of renewable energy sources? We urgently need much smarter ODA.

The time-honoured traditions of development and humanitarian aid, carried out bilaterally, multilaterally and by thousands of NGOs and INGOs, have to be rethought in a spirit of international co-operation to save our planet and millions of lives. There is no longer a choice, and I challenge the Government to set a pathway and take courageous decisions on how best to use SDRs for the international good.

19:58

[Lord Balfe (Con)]

My Lords, I join in thanking the noble Baroness, Lady Ritchie, for initiating this debate. The fact of the matter is that over the past half-century the state of the world has become successively better. More people are living longer and in better circumstances today than they were 50 years ago. Remembering that is a good starting point because, sometimes, if you listen to people, you imagine that things are going in the opposite direction.

Mention has been made of impact assessment, which I would like to see because in my travels around the world looking at aid projects, I have often come across them and walked away wondering, “Are they doing any good at all, other than to the people in the Land Rovers who are driving people like me to see what they are doing?” We need an impact assessment on quite a lot of the work that is being done.

We also need to rethink the word “aid”. It has become a rather grubby word, because people associate it with charity. Our overseas efforts should be to promote a better world and a better standard of society in it.

It is no achievement if we just move people from living in abject poverty to living in poverty. We have to help build up the countries. I remember talking to David Cameron about this and he said, “The big argument for the aid budget is to make the world worth living in so that all of its citizens don’t want to come and live in the West. We need to make their countries and their societies worth living in.” I totally support that.

We therefore need to look at our aid budget and consider whether an approach not the same as but not dissimilar to the Chinese belt and road initiative would not be a sensible way forward; in other words, we want to use the money that we disburse abroad in such a way that we build up the infrastructure of countries. Too much money disappears. We need to be in a situation where, like the Chinese, we say, “We will provide this”, and we provide it; we do not hand over large dollops of money which often disappear—or some of them disappear. Many years ago, I was the rapporteur in the European Parliament on aid to Bangladesh, which had been a particular difficulty for us. I remember being in an interview with the Minister in Bangladesh who was responsible for the aid budget. When I put it to him that money disappeared, he said to me, “But commission is paid on everything, isn’t it?” I said, “Well, that’s not exactly the idea. You don’t just skim off the money.” He said, “Well, this is the way we do it here.”

I say to the Minister in closing that we need to look at the structure of the aid budget, we need to help with money and expertise, but now is also a very good time to rethink the strategy of what we are spending the money on and how we could spend it to the betterment of both its recipients and the British taxpayer.

20:03

[Lord Purvis of Tweed (LD)]

My Lords, I too commend the noble Baroness, Lady Ritchie, for bringing this debate to us and introducing it so powerfully. She gave a perfect testament to the consensus that existed in Parliament during the passage of that Bill, a consensus which unfortunately has been dashed. This is not the only debate in which the only Member who speaks in favour of the unlawful ODA cut will be the Minister, so a degree of consensus remains, and we will still campaign for its restoration.

Bringing the target down to 0.5%, which has no basis in law, will see a further £15 billion of cuts before its potential or possible restoration in 2025. Can the Minister confirm whether what the Chancellor said today or whether the Written Ministerial Statement from the previous Minister is the basis on which 0.7% will be restored? That Statement said that the OBR forecast in the immediate previous year would be the trigger for restoration in the following year. The impression that we got from the Chancellor today is that he is using the long-term forecast. So which is it?

If it is the long-term forecast, are we able to start planning now for what could well be an extra £5 billion in one year towards the end of this Parliament? There is no reference, of course, to the weasel word in the Written Ministerial Statement—“sustainable”—because that means that there is a get-out clause for the Government when it comes to this.

The cuts of partnership and assistance from one of the richest countries in the world to the poorest is a scarring and shaming stain on this Government. As the noble Baroness, Lady Hodgson, said, the disproportionate impact on women and girls is perhaps the most scarring. The figure of 20 million women and girls affected by this struck me. Nine million of those are girls who will not have access to clean water and sanitation. In 2018, the UNICEF and World Health Organization report said that 620 million children lacked adequate or any toilet facilities at all. I think any parent who sends their children to school will see the relevance of the impact of this when they imagine the UK cutting 9 million opportunities for children to have proper sanitation in their school life.

In the debate we had on 24 June, the noble Baroness, Lady Sugg, I and others called for a public impact assessment on this. The Deputy Leader, the noble Earl, Lord Howe, said of the gender impact assessment:

“The Foreign Secretary is considering carefully whether to put the central overarching assessment into the public domain.”—[Official Report, 24/6/21; col. GC 156.]


That was a long time ago, so can the Minister clarify whether that assessment is being made public for us to see?

We have also debated the impact of Covid on the developing world. In that debate, a number of noble Lords asked the Minister—the noble Lord, Lord Parkinson of Whitley Bay—about the Government’s intentions on the draw-down rights they have from COVAX. The UK Government have draw-down rights of 27 million doses which would then not be available for developing countries. I asked whether the Government intended to use this draw-down, which would be shameful in the current situation when so many developing countries are struggling to vaccinate their populations. The noble Lord, Lord Parkinson, said to me in the debate in September that

“I will certainly take his questions and those from other noble Lords back to the Vaccine Taskforce and will ensure that all noble Lords who have taken part in the debate get the answer to that.”—[Official Report, 9/9/21; cols. 1049-50.]

We have not had the answer to that, so will the Minister provide the answer or, if not today, ensure that we do get a response? It is not just the case that we ask questions in these debates, which is their purpose; it is that we should get answers and, at the very least, receive the courtesy of ensuring that we get the relevant answers when those questions relate to the most deprived and poorest people in the world.

20:08

[Lord Collins of Highbury (Lab)]

My Lords, I too thank my noble friend for initiating this very timely debate, certainly as the Chancellor has spoken today. I also reflect on the consensus that the noble Lord, Lord Purvis, referred to, because there has been consensus across this Chamber on this issue. I would also like to praise David Cameron because he set the framework for our development support—the SDGs and the 2030 agenda—which this Prime Minister has completely ignored. We should reflect on that.

Days before COP 26 and when aid is needed most to recover from the pandemic, the announcements today reveal that the world’s poorest and most vulnerable face at least three years of vast and deadly cuts to life-saving aid. As the right reverend Prelate said, today is also confirmation that the Government are knowingly and willingly continuing to break a Conservative manifesto promise and continue to ignore the UK’s legal aid spending obligation of 0.7% of GNI. As noble Lords have pointed out, maintaining 0.7% would have resulted in substantial cuts, but to impose 0.5% without any plan, impact assessment or clear objectives is reckless.

As my noble friend Lady Ritchie highlighted, even funding for the strategic priorities was not immune: education was cut by 58%, humanitarian responses by 49% and the FCDO’s climate funding by 35%.

In March, Rishi Sunak praised the new IMF special drawing rights allocation for giving additional financing to low-income countries to help their pandemic response and recovery. Many rich countries, including the UK, have been working out how to rechannel their SDR allocations to low to middle-income countries, where they can do the most good. As my noble friend Lady Ritchie said, this can be done at no cost to the donor, who simply lends their reserves. However, the Treasury has confirmed that it will score some of this to the ODA budget. We are the only major donor to do so. Such a move will not leave low-income countries better off, as it will be matched by cuts to other parts of the aid budget. The only impact of UK commitments to recycle SDRs will be to reduce spending on other priority areas, such as health, education, water and nutrition—areas that have already been heavily cut as a result of the shift from 0.7% to 0.5%. I ask the Minister what assessment has been made of the impact of such further cuts.

On climate change, we heard today that the Government have committed £6.6 billion for the next three financial years. Given that this comes out of the ODA and makes up about a sixth of the budget for each year, what other priorities will suffer? Whatever priorities Liz Truss espouses, she will be held back if she must cut her department’s activity every time a Treasury accounting exercise reduces the real ODA budget. It is in this context that we have to see today’s announcement that the ODA fiscal tests are forecast to be met in 2024-25, which will see potentially a return to 0.7%.

Today, what we have heard from the Chancellor is that he gives with one hand and takes with the other.

20:12

[Viscount Younger of Leckie (Con)]

My Lords, I thank, first of all, the noble Baroness, Lady Ritchie, for introducing this important debate. We have heard many passionate and eloquently made arguments today on this subject, and I will do my best to address the many questions raised. However, we are united, I believe, on one fundamental point: the belief that the UK should dedicate 0.7% of our GNI to official development assistance. As the Prime Minister himself said in July:

“This is not an argument about principle. The only question is when we return to 0.7%.”—[Official Report, Commons, 13/7/21; col 173.]


I start by welcoming back the noble Lord, Lord Londesborough. As the House will know, he replaces the redoubtable noble Countess, Lady Mar, who has retired. How extraordinary it is that it has been 22 years since the noble Lord addressed this House last; even more so perhaps that, as he mentioned to me before this debate, he spent a mere 10 days here in this House before the exit of so many hereditary Peers in 1999—well before my time. I applaud his remarks in his—how shall I put it?—non-maiden speech, and we look forward to hearing from him a lot in the future, I am sure. I will address the question he has raised later in the debate.

Temporarily reducing the aid budget was not an easy path to take. But, as a Government, we do not have the luxury of avoiding difficult choices. In fact, the reverse is true; we face them head-on. Given the hugely difficult economic and fiscal situation, this was a decision that we were quite right to take. Coronavirus is an unprecedented crisis, and in turn it has required an unprecedented response. That is why decisions taken by this Government have provided around £400 billion of direct support to the economy this year and last year—considered one of the largest and most comprehensive packages globally. I am sure the House will acknowledge that.

Our strong recovery, combined with necessary tax rises, has strengthened our public finances. However, let me remind your Lordships that our national debt this year is set to pass £2.3 trillion or, to put it another way, 98.2% of gross domestic product—the highest level as a percentage of GDP since the early 1960s. Indeed, a sustained increase in interest rates and inflation of one percentage point would cost £22.8 billion by 2026-27.

High debt leaves us vulnerable to shocks and we need to rebuild a cushion, if you will, to safeguard the economy against future challenges. In just over a decade, the UK has faced two major economic shocks: the 2008 financial crisis and the 2020-21 pandemic. Developing fiscal buffers ensures that Governments will be able effectively to support the economy in future crises, and provides space to allow the Government to address long-term challenges.

It is fiscally responsible for us to bring debt under control and rebuild so-called fiscal space. We have already made the tough decisions needed to get debt under control through a small number of focused and progressive tax rises. As I mentioned earlier, this has meant some difficult but necessary decisions, including temporarily reducing ODA spending from 0.7% to 0.5% of GNI.

Let me address a question asked by the noble Baroness, Lady Ritchie, about our legal commitments—an area also touched on by the noble Lord, Lord Purvis. I reiterate that we are acting in line with the International Development (Official Development Assistance Target) Act 2015, which explicitly envisages that there may be circumstances where the 0.7% target is not met. The decisions we are taking and our approach to the spending review and annual reviews, based on clear fiscal tests, are all in line with that Act.

Section 2 of the 2015 Act envisages circumstances in which the 0.7% target is not met due to

“economic circumstances and, in particular, any substantial change in gross national income”

and

“fiscal circumstances and, in particular, the likely impact of meeting the target on taxation, public spending and public borrowing”.

The Act provides for accountability to Parliament in the form of a Statement in the event that the Government do not meet the 0.7% target.

I turn to the specific circumstances for the return to 0.7%; I would like to be more positive. We have always been clear in our commitment to international development, and that the UK would return, as I said earlier, to spending 0.7% of GNI when the fiscal circumstances allowed. As your Lordships will recall, earlier this year we said that this would happen when the independent Office for Budget Responsibility confirmed that, on a sustainable basis, we are not borrowing for day-to-day spending and underlying debt is falling. I remind noble Lords that the House of Commons voted in support of these fiscal tests for returning to 0.7%.

I hope to provide some reassurance to the noble Baroness, Lady Ritchie, and the noble Lord, Lord Purvis, on the return to 0.7%. Given the Government’s careful stewardship of the public finances and the strength of the recovery, as the Chancellor outlined today, the ODA fiscal tests are now forecast to be met in 2024-25, which is earlier than the OBR forecast in March. As such, the 2021 spending review provisionally sets aside additional unallocated ODA funding for 2024-25, on top of departmental ODA settlements, to the value of the difference between 0.5% and 0.7% of GNI. This delivers on the Government’s commitment, made to Parliament, to return to spending 0.7% of GNI on ODA when it can be on a sustainable basis.

Of course, the Government will continue to monitor future forecasts closely and, each year over this period, will review and confirm, in accordance with the 2015 Act, whether a return to spending 0.7% of GNI is possible against the latest fiscal forecast. Should future forecasts deteriorate, however, decisions on the provisional ODA funding for 2024-25 will be made through the annual review of the ODA budget.

[Lord Purvis of Tweed (LD)]

I am grateful to the Minister for giving way. No matter how many times Ministers assert, from the Dispatch Box, that they are acting in accordance with the legislation that I took through this House, it does not mean it is the case. Can the Minister refer to the other element of the Act which says that if, in the preceding year, the target had not been met, the statement has to indicate what measures will be taken to meet the target in the following year? That is still the law. That the Chancellor is now putting unallocated funds four years down the line is an absolute breach of the legislation.

[Viscount Younger of Leckie (Con)]

The noble Lord interprets it as he does, but I have been clear that we are acting within the law. I will write to the noble Lord with chapter and verse on why we are stating the position that we are.

As time is short, I will move on to the implications of the temporary reduction, because this was raised in particular by the noble Baroness, Lady Ritchie. I stress that we remain an open nation that is globally engaged. As the Chancellor outlined earlier today, departments have been provided with an ODA budget that rises to £12.3 billion in 2024-25, which is a 23% increase compared to the £10 billion allocated at the spending review last year.

I will address the point raised by the noble Lords, Lord Londesborough and Lord Collins, and my noble friend Lord Balfe about impact assessments. Officials considered any impacts on women and girls, the most marginalised and vulnerable, people with disabilities and people from other protected groups when developing advice to Ministers. We carried out an equalities impact assessment, which looked at our bilateral country spending. This central assessment showed no evidence that programmes targeting those with protected characteristics are more likely to be reduced or discontinued. I reassure the House that, as we move through this spending cycle, we will review the impact of projects and our spend to inform future spending decisions and policymakers.

The noble Baroness, Lady Ritchie, asked about the world’s poorest, and the right reverend Prelate the Bishop of Bristol indicated that we might be turning our backs on the poorest. We have a difficult balance to make, but I do not believe that that is what we are doing, because, by spending 0.5% of GNI, we will be spending over £10 billion this year, making us one of the largest ODA donors in the world and the second highest in the G7. We are committed to leading the global fight against poverty.

The noble Baroness, Lady Ritchie, and the right reverend Prelate also talked about vaccines, on which I have some brief comments. The spending review provides continued support for Covid and global health, in line with the UK’s ground-breaking role, providing equitable access to Covid-19 vaccines, therapeutics and diagnostics. It funds the donation of the remaining 70 million doses of Covid-19 vaccines to meet the Prime Minister’s commitment to donate 100 million doses by June 2022. These vaccines are being rolled out to countries beyond our borders on a non-profit basis.

I will answer the brief point raised by the noble Baroness, Lady Ritchie, about Sudan. The departmental ODA budget is already increasing significantly, from the £10 billion that was allocated to over £12 billion in 2024-25, but I acknowledge the point that she made about Sudan.

To answer the noble Baroness, Lady Hodgson, we are increasing funding for women and girls to help achieve the global target to get 40 million girls into school and have 20 million more girls reading by the age of 10. I will write to the noble Baroness, as there is more that I can say about this.

Time is running out and I know that I have a long letter to write, because I have not managed to address a number of questions. In winding up, I thank noble Lords for their important contributions to what is, I acknowledge, and as the noble Baroness said at the beginning of the debate, an important subject. I reiterate that the Government remain committed to international development and the return to spending 0.7% of GNI on ODA, but when the fiscal situation allows us to.

20:24

Sitting suspended.

Police, Crime, Sentencing and Courts Bill

Lords Hansard - part two & Committee stage
Wednesday 27th October 2021 Lords Chamber

Committee (3rd Day) (Continued)

20:30

Clause 36: Extraction of information from electronic devices: investigations of crime etc

Amendment 79

Moved by

[Lord Rosser]

79: Clause 36, page 29, line 9, at end insert—
“(c) the user who has given agreement under paragraph (b) was offered free independent legal advice on issues relating to their human rights before that agreement was given.”Member’s explanatory statement
This would require free independent legal advice to be offered to a person before they agree to extraction of data from a device.

[Lord Rosser (Lab)]

My Lords, I am associated with six amendments in this group: Amendments 79, 89, 92, 102, 106A and 107. Chapter 3 of the Bill deals with the extraction of information from electronic devices, which has increasingly become a routine part of criminal investigations.

In this group we are dealing with when victims are asked to hand over their phones as evidence and, more specifically, the issue of what have become known as “digital strip searches”. Rape victims, in particular, are normally asked to hand over digital devices and are subjected to having their privacy indiscriminately trawled through after they report a crime. Before I go any further, I pay tribute to the Victims’ Commissioner, Dame Vera Baird, for her leadership on this issue.

These matters were pursued in the Commons, and I shall just quote an extract from what my colleague, Sarah Jones MP, said during the Committee stage debates:

“Analysis of a rape crisis administrative dataset conducted by the office of the Victims’ Commissioner showed that one in five victims withdrew complaints at least in part because of disclosure and privacy concerns. Victims in 21% of cases had concerns about digital downloads, about disclosing GP, hospital, school and employment records, and about a combination of negative press coverage. Home Office data also shows an increase in pre-charge withdrawal of rape complaints. In the year ending December 2020, 42.8% of rape offences were closed as part of what is called the “evidential difficulties” category—where the victim did not support further police action against a suspect—compared with 25.6% in 2015. As we know, the charge rate for sexual offences is just 3.6%, and for rape it is 1.6%.”—[Official Report, Commons, Police, Crime, Sentencing and Courts Bill Committee, 27/5/21; col. 277.]


This issue of disclosure and privacy is a factor, too, in victims deciding whether even to report a rape or a crime in the first place. As I mentioned, these issues we are now debating were raised at every stage in the Commons by the Opposition, but we welcome the fact that the Government have listened to us and to the Victims’ Commissioner and have brought forward changes as reflected in government amendments to the Bill. I thank the Minister and the Bill team for their engagement on this part of the Bill.

The government amendments, to which the Minister will obviously refer, make much needed and welcome improvements to the Bill. There is more, though, that needs to be achieved, which various speakers in the debate this evening will no doubt cover, but we welcome the progress so far.

Government Amendment 81 deals with the key issue raised by the Victims’ Commissioner and our amendments: the power to extract information should not be used indiscriminately or to trawl through a victim’s life but should be used only where information is relevant to

“a reasonable line of enquiry”.

I particularly welcome that government Amendment 93 puts into the Bill that a victim can refuse to hand over a personal device and that they must be told that the investigation will not be ended just because they refused to consent to a download. Complainants being told that their cases will not continue unless they hand over the contents of their phone is exactly what independent sexual victims’ advisers and complainants have said has happened or happens on a daily basis. It is vital that the change not only legally limits what can be asked for but drives a culture change in how victims are treated. One hopes that this change to the Bill will provide a clear path forward.

However, I have a number of questions. The Government’s new clause says that a victim must not have “undue pressure” put on them to agree to data extraction. Surely being under any pressure in the context that we are talking about is undue. Do the Government not agree with that?

The new clause dictates that victims be provided with details in writing of what information is being sought and why and how it will be dealt with, explicitly stating that a victim can refuse to hand anything over, but what will be done to ensure that victims understand clearly and with confidence what is being asked for? A victim will often be in an extremely vulnerable state while they try to navigate and follow the system and what they are being asked for. Will the Victims’ Commissioner be involved in designing that written document, and will we have advance sight of it?

My Amendment 79, which is supported by the noble Baroness, Lady Jones of Moulsecoomb—for which I thank her—would answer the question of protecting victims as they go through this process. It would provide that a victim should be offered free, independent legal advice before they are asked to give consent to their device being accessed. There is precedent for this: the Home Office funded a pilot of independent legal advice dealing with digital download for rape complainants in Northumbria. The sexual violence complainants’ advocate scheme pilot engaged local solicitors to provide legal advice and support to rape complainants related to the complainant’s Article 8 rights to privacy. The pilot demonstrated what was happening in practice and found that about 50% of requests were not strictly necessary or proportionate. Some police officers who participated in the scheme expressed concern about this culture. The Home Office’s own pilot clearly demonstrated the need for and benefit of independent legal advice for victims in this area. I look forward to the Minister’s response on behalf of the Government.

There is a particular omission from the government amendments which we want to raise. Amendments in my name would require that the request for data be “strictly necessary and proportionate” to its purpose as part of a reasonable line of inquiry into a crime. Such a test, but which I think is worded as “reasonably necessary and proportionate”, is already a requirement of the data protection legislation for any such request for private material of this kind, but police practice has not always followed the Data Protection Act in this regard. We therefore seek this specific safeguard against too wide a search and too easy a rejection of other means of obtaining the information by including the “strict necessity” test in these clauses. I believe, although I will stand corrected if I am wrong, that the Victims’ Commissioner is of a similar view. I hope that the Minister will address this issue in the Government’s response.

I welcome Amendment 99, again tabled in response to issues that we have raised, which adds the Victims’ Commissioner, the domestic abuse commissioner and the Commissioner for Victims and Survivors for Northern Ireland to the list of people who must be consulted in preparing the code of practice. I also welcome the absolutely necessary amendments to the definition of adult to no longer include 16 and 17 year-olds.

Amendment 106A, a key amendment, would require the Government to extend the safeguards that we fought for in this section to third-party material. I am immensely grateful to the noble Lord, Lord Anderson of Ipswich, and the noble Baroness, Lady Newlove, for their support through adding their names to this amendment. Here we are talking about private material about a complainant that is held by a third party: medical records, school reports, social service records, or records of counselling or therapy that a person may have had, including pre-trial therapy.

It currently seems to be routine for excessive personal information to be requested from third parties. The results have a chilling effect on a victim’s confidence and are an immense invasion of privacy in contravention of the victim’s Article 8 rights to privacy. In one example case, a letter to school in which a rape complainant had, as a child, forged her mother’s signature to get out of a lesson she did not like was disclosed to the defence and used in cross-examination.

The Victims’ Commissioner reports on cases where a victim assaulted in their 30s is asked to consent to their child social services records being trawled. In cases of stranger rape, in which there has been no prior contact at all between the complainant and the accused, similar demands are made for a lifetime’s worth of information on the victim to be handed over. Independent sexual violence advisers report that these searches are demanded as standard and, of course, victims are regularly told that their cases will be dropped if they do not consent. The Victims’ Commissioner has said:

“It is my assertion that the only way to bring about a much-needed change in practice is to ensure that the framework in place to protect victims’ Article 8 rights is embedded in the legislation itself”.


Crucially, these protections, as I understand it, have the support of the National Police Chiefs’ Council lead for disclosure.

The police have offered their support, both on the grounds of reducing unnecessary infringements into a victim’s right to privacy and to reduce delays to investigations caused by the excessive and time-intensive pursuit of victims’ material that is not required by a reasonable line of inquiry. This, it is felt by the police, would reduce the likelihood of victim disengagement, which is one of the main challenges to overcome in order to improve performance in rape investigations. This is also an issue for organisations such as schools, NHS trusts and others that are approached for information and perhaps do not have the expertise on what is required of them. This issue has been raised with police and crime commissioners and investigated by the Information Commissioner.

A 2018 serious case review concerning sexual exploitation of children and adults with needs for care recommended a review of those practices. Referring to the spectacle he witnessed of vulnerable victims being cross-examined about their social services, school and medical records, senior barrister David Spicer stated:

“There is a strong argument that this is inhuman and degrading treatment prohibited by the European Convention on Human Rights and does not lead to fair administration of justice.”


The Victims’ Commissioner has also raised the recent issue that CPS guidance has been updated, apparently this month, to lower the threshold for disclosure of information. The update removes an existing narrow test for seeking to obtain third-party material based on previous case law, and instead lowers protections. This is a concerning development when, at the same time, the Government are agreeing to increased protections in other parts of the Bill.

The amendment on third-party material would require victims to be provided with details on what information is being sought and why, how it will be used, and for that information to pass a strict necessity test whereby requests would be permissible only as part of a reasonable line of inquiry. This amendment provides that victims must not be pressured or coerced into giving consent, and that other, less intrusive, options must be used where possible. Crucially, it provides that victims must be given access to free independent legal advice on their rights.

20:45

I am grateful to the Government for their engagement so far on this issue of disclosure. The problems with third-party material mirror those with digital devices. We hope the Government are still in listening mode on this issue and will agree to look at amendments to protect victims against excessive demands for third-party material, as they are already seeking to do on digital disclosure.

I am aware I have already taken quite a considerable amount of the Committee’s time, and very briefly I will deal with two final issues. I am particularly grateful for the support of the right reverend Prelate the Bishop of Bristol and the noble Baroness, Lady Jones of Moulsecoomb, for my Amendment 107 to Schedule 3. This would remove immigration officers from the list of people authorised to use these powers. This issue was raised by Sarah Champion MP in the Commons. It appears to be part of the process that as asylum seekers arrive in the country, they are having their phone—often their only link to home and loved ones—stripped from them and searched, with no information on how long it will be before it will be returned. If it is the case that a phone needs to be taken as part of an investigation into a criminal gang that is smuggling people, surely that power should be exercised by the police and not immigration officials. I think the Minister is also familiar with our concerns about the sharing of victims’ data with immigration officials and the chilling effect this has on victims of abuse and sexual crime in coming forward.

Finally, the Government’s Amendment 108 adds officers of the Department for Business, Energy and Industrial Strategy to this list. I understand this is to provide members of the Insolvency Service who are dealing with criminal civil cases with necessary powers. However, the wording is extremely poor. Will the Government consider adding qualifying language to narrow who is covered by that amendment?

I have expressed our welcome to the Government for the amendments they have tabled, and I have sought to identify further areas in which we are asking the Government to reflect further and agree with what we are seeking. We think those additions we still need to see are necessary, worth while and important. I hope the Government will reflect further on them and perhaps see their way either to agree to our amendments or to table amendments of their own on the issues to which I refer. I beg to move.

[Lord Anderson of Ipswich (CB)]

My Lords, I put my name to Amendment 106A, which the noble Lord, Lord Rosser, has just introduced thoroughly and persuasively. Although I have sat as a part-time judge in crime for many years now, I freely admit that I do not have the depth of background in this field of other noble Lords, not least the noble Lord, Lord Macdonald of River Glaven, who I see in his place. Nevertheless, I am inclined to support this amendment for three reasons, on which I hope the Minister might comment.

First, as I understand it, the amendment simply seeks to extend to third-party material the safeguards that have already been agreed by the Government in relation to data in the possession of the victim. Do the Government share that understanding? If they do not accept that the same protections are appropriate in those two situations, could the Minister explain why?

Secondly, the Victims’ Commissioner asserts in her detailed briefing that it has become “routine” for rape complainants to be asked to hand over excessive personal information, including third-party material. She cites, among other things, a CPS internal report reported in the Guardian in March 2020 to the effect that 65% of rape cases referred by police to the CPS for early investigation advice involved disproportionate and unnecessary requests for information. She quotes officers from Northumbria Police as saying that third-party material is a “real bone of contention” and:

“The CPS routinely ask us to obtain peoples 3rd party, medical, counselling and phone records regardless of whether a legitimate line of enquiry exists or not.”


Is that a picture the Government consider to be accurate?

Thirdly, it is said that this amendment has the full support of the National Police Chiefs’ Council lead for disclosure and of the Information Commissioner. That prompts me to wonder about the position of the Crown Prosecution Service, which seems equally relevant. Does the CPS take a different view from the policing lead and the Information Commissioner and, if so, how does it defend that view? I am sure that other noble Lords, like me, appreciate the difficulty of the task of the CPS and would give it a fair hearing. In summary, the Government seem to have a case to answer on Amendment 106A and I look forward to hearing from the Minister what that answer might be.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I will speak briefly on my own behalf and that of my noble friend Lady Jones of Moulsecoomb, who is unable to be with us this evening. My noble friend attached her name to Amendments 79, 89 and 107. The noble Lord, Lord Rosser, has given us a very clear and complete explanation, so I just want to reflect on the average age of noble Lords, as we sometimes do. We really have to work quite hard to understand the way in which people’s lives are entirely contained in their phones, particularly younger people, and what an invasion it is to have that taken away.

The noble Lord, Lord Rosser, referred in particular to Amendment 107 and the situation of immigration officers. I have heard a number of accounts of what has been happening to people arriving, particularly from Calais and surrounding areas, on boats in the most difficult and fearful situations. For people who wish to contact family and friends to say they are safe or wish to make some kind of plan for the future, to lose their phone in those situations or have it taken away is very difficult.

We have not had an introduction to Amendment 103, tabled by the noble Lord, Lord Beith, to which I have attached my name. We have had expressions of concern from the Delegated Powers and Regulatory Reform Committee, and we really would like to hear from the Minister the justification for that. By oversight, I failed to attach my name to Amendment 104. As a former newspaper editor, I think we really need to get a very clear explanation of how confidential journalistic material could be covered under these circumstances. We have grave concerns about freedom and the rule of law in our society, and this is a particularly disturbing clause.

[Lord Beith (LD)]

My Lords, this is an important part of the Bill and an important and large group of amendments. I want simply to concentrate on the two amendments to which the noble Baroness has just referred: Amendments 103 and 104, which are in my name.

Amendment 103 follows concern from the Delegated Powers and Regulatory Reform Committee and its recommendation to deal with what it describes as an inappropriate delegation of power. The Bill leaves to regulation all provision about the exercise of the powers in Clauses 36(1) and 39(1) to extract confidential information. Regulations are to implement a code of practice, which will itself be consulted on. The committee believes these powers should instead be in the Bill, and I agree. However, I part company with the committee in its view that these powers, once put in the Bill, should be amendable by affirmative instrument. That is the creation of a Henry VIII power to modify primary legislation by means of secondary legislation, so I do not think it is the best way to handle the matter. Of course, one of the problems is that, whereas the process of creating the original material, if it is in the Bill, is an amendable process, that does not apply to any subsequent regulations which would definitely alter the material on the face of the Bill.

The Government’s argument for their approach—leaving it all to regulations—is that this is an area of fairly rapid technological change. It might become possible, for example, to extract a relevant subset of information rather than having to extract everything. However, that could be covered in the drafting of the Bill. A major change in the future would justify parliamentary legislation. If the technology really does change the situation dramatically, both Houses could deal with the matter by primary legislation.

I am sure there is a potential compromise under which the Bill could state more extensively and clearly the general principles governing the extraction of confidential information. It already does so to some extent, but if it did so further, it would narrow the range covered by regulations, if they are necessary at all.

It would also be helpful if the Minister could explain why the process to revise the code of practice from time to time would be subject to the negative procedure only. If the regulations which embody the code of practice are going to be changed significantly, why should that be only by the limitations of negative procedure?

Amendment 104 is quite different. It probes the provision in Clause 41(2)(a) covering confidential journalistic material with the meaning given in the Investigatory Powers Act 2016. The regulations are intended to cover the extraction and use of such material. It would be helpful if the Minister could set out the Government’s position and intention on confidential journalistic material and to what extent it is to be treated differently from protected material, such as legal privilege. We need that to be spelled out more clearly. I look forward to the Minister’s response.

[Baroness Chakrabarti (Lab)]

My Lords, I rise to speak in support of the broad thrust of all these amendments and in particular to support the most important one of all, which is Amendment 80 from the noble Lord, Lord Paddick, to which I have added my name.

To begin by way of balance—both political and gender balance—I pay tribute to the noble Baroness, Lady Newlove, who could not be here this evening but who has been incredibly supportive of women’s groups and has been alive to this issue for some considerable time. She was sorry not to be able to be here.

A few years ago, when I was sitting where the noble and learned Lord, Lord Falconer of Thoroton, sits now, I had the privilege of questioning a former Justice Minister about the legal basis for the practice that women’s groups and victims of sex crime had called digital strip searching. Many in your Lordships’ House groaned as if I was using an inappropriate phrase. To be honest, I did not get a lot of support from many noble Lords on any side of the House, but it is better to be late to the party than not come at all.

I say that to the Minister because there is no competition for sainthood here. All sides of this House are a little late to this issue, but we now have this precious opportunity to grapple with it. I do not think any of these formulations are perfect yet. I am so grateful to the Minister for discussing this with me recently, among other issues, as even the progress that the Government have made so far in these amendments can be improved.

I think the noble Lord, Lord Paddick, in his very simple Amendment 80, has done something incredibly important. I questioned the previous Justice Minister about the legal basis for taking these phones at all. Imagine that you have been raped or assaulted and have been through this horrific experience, but you do what a lot of people find very difficult to do—we know about the attrition rates—and go with a friend to the police station, to be told that you now have to hand over your device. The Minister will forgive me, but we discussed this together recently. If I were to hand my phone over, I am not just handing over an old-fashioned telephone; I have so many dear friends and family members whose numbers I do not know, because I click their names to call them. I have just been raped, but I am now giving away my contact with these people, my diary, my shopping lists and my browser, which shows all the mental health and other websites I have visited. Let us be clear: this is probably more intrusive than searching my home. The Minister will forgive me, but we discussed this together.

21:00

Your Lordships’ House and the other place have been very late to this: women’s groups and victims’ groups that have been banging on locked doors. Successive DPPs and successive police chiefs have each been blaming the other service, by the way, because that is what happens, particularly in times of austerity: hard-pressed services blaming each other. I know that the noble Baroness, Lady Newlove, agrees with me on that.

That is what has been happening in recent years, and I do not believe that it has a sound legal basis at all. When I asked the previous Justice Minister what the legal basis was for demanding the phones of victims of sex crimes, he said “consent”. That was his answer. He is an excellent commercial lawyer, and I am just one of those humble activist human rights lawyers who drive the poor Home Secretary mad. It is not consent, though, is it? How can it be, when you are told that the rape or sex offence will not be investigated unless you hand over your phone? That is not consent, is it? Is that real consent? Of course it is not.

Furthermore, you cannot consent your way out of Article 8 of the Convention on Human Rights. If state agencies are going to hold this kind of intimate data, it has to be on a sound legal basis. I therefore commend the Minister and her team for trying to put this on a statutory basis.

First, however, I credit the noble Lord, Lord Paddick, for getting to the heart of this, by saying that the refusal to provide a device cannot lead to the refusal to investigate—because that is not consent. I also commend my noble friend Lord Rosser for looking into the importance of people having legal advice. Legal aid has been virtually obliterated in this country, and victims do not get legal advice.

We could probably do even better at reaching a consensus at Report if the Minister agreed to further discussions. We could look at, for example, time limits. We have custody time limits, and lots of other time limits, in the criminal justice system. It is a real hardship to have one’s phone taken for too much time. Friends and colleagues who are better at tech than me say that, with sufficient resourcing, good will, ingenuity and expertise, it is possible to avoid depriving these victims—mostly women—of their devices, with all their support and intimate information, for too long.

We could probably even tighten up on necessity and proportionality. Those sorts of tests are fine for high-level human rights treaties, but when we get into the granularity of things such as PACE, we could probably be tighter still.

I am sorry for taking time over this, but a lot of women in this country have been so upset and frustrated, and this particular injustice has probably exacerbated the attrition rates in the investigation and prosecution of rape, in particular, for too long.

[The Lord Bishop of Bristol]

My Lords, some common themes are emerging. I rise in support of Amendment 107, which was tabled by the noble Lord, Lord Rosser, and to which I have added my name, alongside that of the noble Baroness, Lady Jones.

The inclusion in this Bill of immigration officers among those authorised to undertake digital extractions strikes me as extremely troubling, particularly in the absence of significantly more detail on the safeguards, including the meaning of “agreement” and the specificity of the data sought, and the relevant training and expertise of these officers. Voluntary provision and agreement to extract data must surely rely on a level of informed consent. If it is not, then “voluntary” and “agreement” are just empty words.

For vulnerable asylum seekers and other migrants who come to the attention of immigration officers, it is not remotely clear how such informed consent is to be assured under what is currently proposed. Asylum seekers have, by their nature, often experienced negative reactions with agents of the state. In 2020, the top five most common countries from which people were seeking asylum in the UK were Iran, Iraq, Albania, Eritrea and Sudan. These are, to state the obvious, not countries where citizens, never mind those who flee as asylum seekers, tend to develop trusting or positive relationships with state officials, particularly those in uniform. To this experience in their countries of origin we have to add the fear and unfamiliarity of their situation on arrival in the UK. The hostile environment and its successor policies have been immensely successful in at least one regard: many migrants have come greatly to fear our immigration officers and the powers that they possess.

In outlining what I have said so far, I am trying to explain the extraordinary power imbalance, to say nothing of the language barriers, in place between an immigration officer and asylum seeker. It is hard to imagine how, under such a scenario, informed consent for voluntary provision and agreement could legitimately be established. It is particularly hard to imagine when we see no safeguards provided for assuring what is meant by such agreement or on what specific data it is deemed legitimate to extract. It is crucial to get this right. The data-extraction provisions of the Bill look to place current and future practice on a statutory footing. This is important, because the present practice of immigration officers is extremely concerning.

When the Bill was in Committee in the other place, as we have heard, the Member for Rotherham raised an all too common example of an asylum hostel containing some 50 to 100 men, all of whom had had their mobile devices seized as they entered the country. This was done without clear explanation or debate, and certainly without informed agreement or consent. The men in question did not know what, if anything, had been taken from their phones or accessed. This is proving to be a common story expressed by those working in the refugee and asylum sectors. It has simply become part of the process that mobile devices will be confiscated, without clear explanation or consent.

As we have heard, data extraction is a particularly serious privacy interference. It ought to require a high bar of necessity to be reached to justify any such intrusion, and strict parameters on what data is being secured and for what purpose. By contrast, the Home Office has proven consistently reluctant to explain current processes, and I hope we might engage with it on how to take this forward.

As the lead Bishop on modern slavery and one of the Lords spiritual who works on migration issues, I am all too aware of the insidious evil presented by human trafficking and people smuggling. I therefore sympathise hugely with the Home Office, as it tries to counter organised crime in these areas. I do not doubt that there are cases in which data extraction could prove useful in that ongoing battle. However, I suggest in concluding that we can achieve the benefits of such activities without such widely drawn and unchecked powers for immigration officers. I hope the Government will engage in a full process of exploring how any relevant data can be obtained in a way that is consensual, limited, targeted and carried out by professionals with sensitivity training and expertise. In particular, I hope to hear more about how the extreme power imbalance produced by an immigration officer doing this extraction can be better addressed than the Bill does at present.

[Lord Hayward (Con)]

My Lords, as my noble friend Lady Wyld did earlier, I apologise for not being present at Second Reading. Like my noble friend, I had been diagnosed as a Covid sufferer only a few days beforehand and was unable to participate in the debate. Therefore, if I go slightly wider than one or two amendments, I hope the Committee recognises why.

In making my comments, first, I emphasise that what I say in no way minimises the impact that the failure to tackle rape and sexual assault is having on society, particularly women and young females. There is no doubt that there is a major problem. I think that all Members of this House, including me, are only too closely aware of cases of rape and sexual assault that have had a dramatic effect on the individuals concerned.

I take this opportunity to emphasise that this is not solely a women’s issue. This issue affects men in society as well, particularly gay men. I noticed that as I started that sentence the noble Lord, Lord Paddick, was nodding; we are particularly conscious of the impact that sexual violence and rape have in the gay community as well as among females. To everybody, not just those in this House, I say this: the regularity with which I hear this issue being discussed as if it is a female-only issue causes me enormous concern and, I think, causes a lot of people hurt.

Reference has been made to rape cases and non-reporting and people being deterred from reporting. I know of one particular case, very close to me, in which somebody was subjected to an attempted rape. They chose not to report it, not because they would have had to disclose their mobile phone but because they took the view that the police’s response would be, “Well, you put yourself in that position in the first place”. We have all heard that phrase in relation to women, but in this case, it applied to a man. It had no less effect, but that man took that decision under those circumstances.

On comments in relation to the police, in these debates, we always tend to refer to their failures. There are failures—there is no question about that—but we should also pay credit to the thousands of police across the country who handle this difficult subject incredibly well. Many of them are family men; they know what is going on. It is an incredibly difficult set of circumstances for them as well as for the individual concerned.

More specifically on mobile communications, I made my maiden speech in the other place several decades ago on telecommunications. You can download everything off a phone, as long as it has not been specially hidden in some way or other, in a matter of minutes, certainly a matter of hours. You need to hold a phone for a long period of time only if you have serious criminals who know how to hide the contents of the entries on it. I implore people not to exaggerate the delays that one is talking about. We all use our phones as our livelihood, as the noble Baroness, Lady Chakrabarti, said, but downloading can be undertaken incredibly quickly.

In conclusion, I now want to take a different route in the conversation. In doing so, as I say, I do not underestimate the problems of society regarding sexual assault and rape victims. However, can the Minister clarify how this legislation or other legislation will deal with individuals who are falsely accused? There has been much discussion this evening about victims, but there are all too many such cases—not a substantial number, but there are many cases. For example, noble Lords can think of the number of people in this Palace who have been found not guilty when cases have gone to trial. What rights do those people who are falsely accused have in terms of seeking access to their accuser’s phone—or, rather, what rights do the police have in gaining access? It is all too easy for somebody to make a false accusation and then say they have lost their phone or delay handing it over. If you delay by 12 months, the records have disappeared in the vast majority of circumstances because the phone companies do not store them for more than that. There are a series of questions that need answering, and in the same way as we deal with genuine victims, we need to give consideration to those who are falsely accused and face many problems.

21:15

[Lord Paddick (LD)]

My Lords, I have Amendments 80, 90A, 94, 96, and 97 in this group. I was hoping that this group might be an example of this House at its best, where reasonable and reasoned amendments have been tabled, the Government have seen and responded positively to them and the Bill could be improved as a result. We clearly do not all agree on everything yet, but what all sides of the House—including the Government —appear to agree on is that the Bill as drafted and passed by the other place in respect of Chapter 3 on the extraction of information from electronic devices is not fit for purpose.

I shall take my amendments first. The House of Lords Constitution Committee raised concerns about victims of crime not coming forward or withdrawing from the criminal justice process because they may have to hand over personal and sensitive data, particularly victims and survivors of violence against women and girls, including rape. Although the draft code of practice published by the Government includes guidance that suggests refusal to provide a device or to agree to the extraction of information from it should not automatically result in the closure of any inquiry or complaint—particularly in light of the dramatic reduction in charges and prosecutions for rape over the past five years—the committee recommended that safeguards that protect victims’ rights to privacy and guard against digital extraction as a condition for continuing an investigation or prosecution should appear in the Bill rather than in a non-binding code of practice. Amendment 80 addresses the issue raised by the Constitution Committee. I am very grateful for the support of the noble Baroness, Lady Chakrabarti, in her powerful and compelling contribution.

This issue is partially addressed by government Amendment 93, which states that a person must not have been placed under undue pressure to provide the device or agree to the extraction of information from it and that a written notice must be provided which states that the person may refuse and that the investigation or inquiry will not be brought to an end merely because of that refusal. As well as being given the information in writing, the person should be told this orally and be reassured by the investigating officer. The government amendment does not go far enough.

I would go further and say that what people store on their electronic devices and share with each other has changed dramatically over the years. In particular, those from older generations may not be aware of the degree of openness with which explicit images, for example, are routinely shared using electronic devices, potentially leading prosecutors and jurors to draw unjustified conclusions about the behaviour of victims of rape or sexual assault in particular, whether they be male or female. Thankfully, most right-minded people no longer think a woman wearing a short skirt is “asking for it”, but there may be a way to go before the sharing of intimate photographs, for example, is dismissed in a similar way. That is why it is essential that victims are reassured in the way these amendments are intended to provide.

Amendment 90A makes a slightly different point and covers a similar area to that provided by Amendment 92 from the noble Lord, Lord Rosser, in relation to the extraction of information from devices used by children and adults without capacity. In relation to both groups of users, the noble Lord, Lord Rosser, suggests that a “registered social worker” give authority for the extraction of information, in the absence of a parent or guardian, whereas, in Clause 37(3)(b), the Government suggest that

“any responsible person who is aged 18 or over other than a relevant authorised person”

can give authority. Although police constables and members of staff appointed as authorised persons by chief constables would be excluded, police members of staff not authorised would not be excluded.

From my own professional experience, I know that it is often difficult to get hold of parents or guardians or to get them to co-operate, for example by attending a police station when their child is in custody. Equally, it is difficult to get hold of a social worker, particularly outside office hours, where there may be only one or a few social workers on call, dealing with the whole range of social work responsibilities—hence the “appropriate adults” scheme was established to look after the interests of children and vulnerable adults in custody. Appropriate adults are volunteers, recruited through local schemes, who are selected for their ability to act with independence from the police. Schemes take into account volunteers’ attitudes and motivations and any other roles that they may hold. They undergo training in the appropriate adults role and undergo a criminal record—DBS—check, although a criminal record will not necessarily act as an automatic bar.

Amendment 90A seeks to find a compromise between allowing any responsible person aged 18 or over, including potentially those employed by the police, to give authority for the handing over and extraction of data from a child’s or vulnerable adult’s electronic device and the registered social worker who is not always readily available, proposed by the noble Lord, Lord Rosser, in his Amendment 89.

I apologise—this is a long group. Amendment 96 seeks to increase the authority level for the extraction of information to a senior officer—at a rank where someone of that rank is normally on duty 24 hours a day, seven days a week, and readily available—who is independent of the investigation and can objectively assess whether the conditions that allow for the extraction of information have been met. There are precedents across policing: for example, custody officers or those authorising the deployment of covert surveillance, where someone independent of the investigation makes these kinds of decisions.

Amendment 97 is again intended to provide parliamentary scrutiny of guidance, as is Amendment 102, proposed by the noble Lord, Lord Rosser, to which I have added my name. I agree wholeheartedly with my noble friend Lord Beith’s Amendment 103 that the restrictions on the exercise of power to extract information in relation to confidential information must be in the Bill and not simply contained in regulations. I understand the reasons for wanting to exclude immigration officers from the list of authorised persons who can extract information from electronic devices, as proposed by the noble Lord, Lord Rosser, in his Amendment 107.

On immigration officers, we share the belief that there should be a firewall between criminal investigations and immigration enforcement, to the extent that details about the immigration status of victims should not be passed to the immigration authorities but should be dealt with elsewhere. I can envisage circumstances where immigration officers may need to download information from electronic devices—for example, to tackle people smuggling—although I accept what the noble Lord, Lord Rosser, said, which was that that should perhaps be a matter for the police rather than immigration officers.

I also accept the very important point made by the right reverend Prelate the Bishop of Bristol about the particular vulnerability of asylum seekers and their lack of knowledge of what the law allows and does not allow immigration officers to do, and how we need many more safeguards for asylum seekers in this provision. We also wholeheartedly agree with Amendment 106A regarding requests for third-party material. If I had not been overwhelmed by the volume of amendments added to the Bill every day, I would have added my name to that amendment.

We all in different ways have attempted to provide a more robust but workable regime around the extraction of information from mobile devices. The best way forward would be for all noble Lords, including the Minister, to withdraw their amendments, for the Minister and officials to meet with us before Report, and for officials to take the best from each of these amendments and those discussions, to produce a single set of amendments to which hopefully we can agree, rather than having to put down amendments on Report to the government amendments agreed in Committee. Taking the debate offline will save time on the Floor of the House on Report, when the agreed amendments could simply be nodded through. However, it appears that the Labour Opposition are content to allow the government amendments to be agreed at this stage, despite the clear differences between what they are proposing and the government amendments.

The noble Lord, Lord Hayward, made the important point, as we did on these Benches when this House debated the Domestic Abuse Bill, that these issues also affect men. The noble Lord also praised the police, who are in a very difficult position, which the noble Lord, Lord Anderson of Ipswich, alluded to, where they find themselves under pressure from the Crown Prosecution Service to go further than maybe even police officers may be comfortable going in terms of accessing personal information from victims’ phones. I repeat the question asked by the noble Lord: who speaks for the Crown Prosecution Service in this debate?

I studied politics at university, I was a very senior police officer for years, I ran for Mayor of London twice and I have been a member of your Lordships’ House for over eight years, but I still do not understand politics. Suffice it to say that, without Labour support, there is no point in dividing the Committee if the Government move their amendments formally at this stage.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I join the noble Lords, Lord Paddick and Lord Rosser, in apologising to the House for the length of my comments. It might assist the Committee if I begin with a brief overview of the provisions in Chapter 3 of Part 2 of the Bill. These provisions will establish, for the first time, a clear statutory basis for the extraction of information from digital devices with the agreement of the device user, and introduce safeguards to protect the privacy of victims, witnesses and others. I echo the comments of the noble Baroness, Lady Chakrabarti, that it is a vast intrusion. People’s lives are on their digital devices and I understand the sensitivity of that.

The current approach to the extraction of information from digital devices has been criticised as inconsistent and, as the noble Lord, Lord Rosser, says, as being tantamount to a digital strip search, where devices were taken as a matter of course and where, in many cases, all the sensitive personal data belonging to a device user was extracted and processed, even when it was not relevant to the offence under investigation. Clearly, that is unacceptable. This resulted in privacy and victims’ groups opposing this practice, particularly in cases where the device belongs to a victim or witness.

A consistent approach is clearly needed to ensure that requests for information are made with the victim’s right to privacy in mind and to ensure that all those agreeing to provide their sensitive personal data have all the information that they need to make that decision, including details on why their information is needed, how it will be used and their right to refuse to share that information without any negative consequences. This lack of consistency is of particular concern where the offences under investigation are those such as rape and serious sexual assault, where the victim is likely to be extremely distressed, as the noble Baroness, Lady Chakrabarti, said, and where rates of reporting and conviction are far too low.

21:30

In Committee in the House of Commons, we heard evidence from the Victims’ Commissioner, Dame Vera Baird, who argued that these provisions did not go far enough in protecting the privacy of victims and witnesses. We have considered very carefully the views of the Victims’ Commissioner and others and agree that these clauses can and should be strengthened to ensure the highest standards of protection for victims. We owe it to vulnerable victims and witnesses to get these provisions right and we agree that we can do much more to protect individuals during the exercise of these powers. As such, we have brought forward a number of amendments to strengthen the clauses even further by placing additional obligations on authorised persons that will result in further safeguards for individuals. I hope noble Lords will agree that many of the issues raised in other amendments in this group are addressed through the government amendments. I will explain each government amendment in turn.

Clause 36 confers a power on an authorised person to extract information stored on an electronic device where the user has volunteered the device and has agreed to the extraction of information from it. An authorised person may exercise these powers only where they reasonably believe that there is relevant information on the device and only for the exercise of one of the stated purposes.

Amendment 81 provides that the power to extract information under Clause 36 for the purpose of the prevention, detection, investigation or prosecution of crime may be exercised only in pursuit of a reasonable line of inquiry. This amendment ensures that the threshold for the use of the power is that there it is a reasonable line of inquiry that is being pursued. It also aligns that threshold for the exercise of the power with other practices and obligations followed during the course of an investigation, as set out in the code of practice under the Criminal Procedure and Investigations Act 1996, which provides that investigating agencies, such as the police, must follow all reasonable lines of inquiry whether they point towards or away from a suspect.

This amendment is made only in reference to the powers in Clause 36(2)(a), as these are the only cases where the code of practice under the 1996 Act applies. In other circumstances where the power under Clauses 36 or 39 may be exercised—namely, to locate a missing person, to protect a child or an at-risk adult from harm, or to investigate a death—there may not be a crime, so the code of practice under the 1996 Act does not apply. In all cases, an authorised person will still have to meet other requirements, such as reasonable belief that information on the device is relevant, as well as ensuring that use of the exercise of the power is necessary and proportionate to limit unnecessary intrusion on the privacy of individuals.

In the debate in the Commons, concerns were also raised that these provisions set the age of an adult at 16 rather than 18 and that this would result in some young people being asked to provide agreement when they were not sufficiently able to understand the implications of doing so. There was also concern that the power imbalance between the young person and the authorised person might mean that they were more likely to feel pressured to agree. We set the age at 16 to ensure that those older children were able to retain control and autonomy over their sensitive personal information, but we want to protect all children and ensure that their needs are recognised. As such, we have determined that it is appropriate to increase the age of an adult to 18 and Amendments 85 and 86 provide for this. This will mean that children aged 16 and 17 will no longer be able to agree to extraction of information from their devices.

I turn to Amendment 93, which I hope goes some distance to addressing the issues raised by Amendment 80, tabled by the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Paddick. Amendment 93 sets out in some detail the conditions that must be met in obtaining agreement from a device user. These conditions are that an authorised person must specify in writing the information sought from the device, the reason it is sought and how it will be dealt with once it has been extracted. The authorised person must inform the individuals that refusal to provide their device does not automatically result in the end of any inquiry or investigation. The authorised person must also obtain this agreement in writing and give the individual a copy of the agreement. This amendment will confirm the obligation on authorised persons to give individuals all the information that they need to make an informed decision. This will increase public confidence in the exercise of these powers and will ensure that victims’ rights are respected throughout investigations.

The noble Lord, Lord Rosser, raised the very valid question about undue pressure. The reason for using “undue” pressure is that we recognise that this will likely be a pressurised, stressful situation for victims, so we cannot just use “pressure”. We recognise that, in the circumstances, victims may frequently find such situations stressful, and the purpose of the amendment is to make it clear that the authorised person should not apply any additional pressure or any behaviour that could be considered coercion.

My noble friend Lord Hayward asked the very valid question about someone being falsely accused and what action can be taken where a false allegation of criminal conduct is made against someone. Where there is evidence of a false accusation, that in itself can be a crime—for example, the common-law offence of perverting the course of justice—and the police would be expected to investigate in the normal way.

[Lord Hayward (Con)]

I thank my noble friend for that answer, but I ask her to clarify her use of the words “where there is evidence”. In these circumstances, somebody who is accused will be making a counteraccusation, or a counterobservation, and therefore there may not be evidence. The evidence is likely to be on the phone in modern-day communications.

[Baroness Fox of Buckley (Non-Afl)]

To back that up, I point out that Oliver Mears, Samson Makele and Liam Allan were three young men who were nearly the victims of miscarriages of justice in those circumstances. If we say that a victim’s phone will be looked at, we are assuming that they are the victim, but it is an ambivalent point while somebody is innocent until proven guilty. We just have to be a little cautious about the language we use, because in one instance the police suppressed information—they had the phone details but did not put it forward—but in the others, it was on the phone that the proof was found. We just need balance. I do not want digital strip searches, but I do not want miscarriages of justice. People are squeamish about looking for evidence on people’s phones because they are presented as victims.

[Baroness Williams of Trafford (Con)]

Perhaps I should have said “alleged victim”; that goes to my noble friend’s point. Each case is different, but usually the remedy is through the court process and it is established where the perversion of justice might be taking place. But I thank my noble friend for his point about the alleged victim.

[Lord Beith (LD)]

I hope I am right, but surely there is nothing in the provisions being carried through now that would in any way relieve the prosecution of the obligation to disclose to the defence any material that came from this process and was potentially of assistance to the defence.

[Baroness Williams of Trafford (Con)]

The noble Lord is absolutely right, but I think my noble friend is making a point about where the tables are turned and the alleged victim is not the victim at all.

[Baroness Chakrabarti (Lab)]

In the sort of scenario being described, the suspect—not yet a defendant—will be able to say, “This was consensual and there is a text message that will demonstrate that.” Once that is asserted, that can be sought. It is not a justification for the kind of wholesale retention of mobile phones and trawling of data that people fear. I know that the hour is late and that the Minister wants to make progress, but I just want to put two questions before I sit down and let her finish her response.

First, I noticed while the Minister was speaking that the formulation used in my noble friend Lord Rosser’s Amendment 89 is “strict necessity”, whereas in the government amendments the test is of necessity—

[Baroness Williams of Trafford (Con)]

If the noble Baroness would bear with me, I am going to get on to that point about the read-across to other things. I hope that I have made it clear that I totally empathise with and get the point that my noble friend is making and that the remedy should be established through the court process.

Amendments 99 to 101 address a further point raised by the Victims’ Commissioner; namely, that she and other like commissioners have a statutory right to be consulted on the code of practice. This will give victims and witnesses further confidence that their concerns and priorities are represented in this code of practice.

Amendment 105 will ensure that the Scottish Ministers and the Northern Ireland Department of Justice are consulted before regulations are made to add, remove or amend an authority with devolved competence under Schedule 3.

Government Amendments 108 and 109 add to the list of authorised persons in Schedule 3. Amendment 108 will ensure that authorised persons in the Insolvency Service can exercise the Clause 36 power for the purposes of the prevention, detection or investigation of crime in pursuit of their functions, which include tackling financial wrongdoing. This was initially a mystery to me, but the Insolvency Service is an executive agency of the Department for Business, Energy and Industrial Strategy, hence the language used in the amendment, but it is important to note that the reference to an officer of BEIS is qualified because any individual falling within that description may exercise the powers only for the prevention, detection or investigation of crime. Schedule 3 already enables the Independent Office for Police Conduct to exercise the Clause 36 powers. Amendment 109 adds the equivalent bodies in Scotland and Northern Ireland.

As I have said, we believe that the government amendments address many of the points raised in amendments tabled by the noble Lords, Lord Rosser and Lord Paddick, but I will now turn to some of the other amendments in this group. Amendment 79 seeks to provide free independent legal advice to device users before they agree to the extraction of information from their device. Government Amendment 93 will ensure that device users are fully informed of the reasons that the information has been sought and how the information will be used. We do not think that provisions in this chapter are the right place to address what is a broader issue about the provision of legal advice to victims and witnesses given the wider impacts across the criminal justice system as a whole.

As regards Amendment 89, the noble Lord, Lord Rosser, highlighted the alternative drafting in respect of the test for the exercise of the Clause 36 powers. As the Bill is drafted, the authorised person must be satisfied that the exercise of the power is necessary and proportionate to achieve the relevant purpose. Under Amendment 89, this necessity test would become one of “strictly necessary”. The matter was also raised by the Victims’ Commissioner in briefings to noble Lords.

We understand that the reason for the concern is the strict necessity requirement in the Data Protection Act 2018. The powers in Clauses 36 and 39 must be read alongside existing obligations under the 2018 Act or the UK GDPR. In every case where authorised persons are extracting sensitive personal information from a device under these powers for a law enforcement purpose, such as preventing, detecting, investigating or prosecuting crime, they must continue to meet the strict necessity threshold in the Data Protection Act. It is therefore not necessary to duplicate that existing legal requirement in the Bill; it is there.

21:45

Amendment 92 seeks to replace Clause 37. That clause concerns the application of Clause 36 to children and adults without capacity. The clause already provides that where the user of a device is a child, their views must be sought and taken into account when someone else is deciding on their behalf regarding the extraction of information from their device. Amendment 92 seeks to extend this principle to cases where the device user is an adult without capacity.

We do not think that it is appropriate to include equivalent provision for adults without capacity because it is the capacity of the individual user that is relevant, and this is determined from a case-specific assessment. Only if the result of that assessment deems the person not capable of making the decision themselves will someone else be asked to make the decision on their behalf. The code of practice gives further detailed guidance on how to exercise these powers for adults without capacity, and signposts authorised persons to their existing responsibilities under the Mental Capacity Act 2005 and the associated code of practice, or the equivalent provision in Scotland and Northern Ireland.

Amendment 90A of the noble Lord, Lord Paddick, seeks to provide that a person providing agreement on behalf of the device user cannot be employed by the police or otherwise excluded by the code of practice published under Section 40. That is already the effect of Clause 37(8)(f). As such, I submit that this amendment is unnecessary. I should stress that the provision in Clause 37(8)(f), which I note is omitted from Amendment 92, is a backstop and would come into play only if none of the persons listed in paragraphs (a) to (e) was available. However, in such circumstances it is important that another responsible person can give agreement to the extraction of information from a device, as it may contain vital information to safeguard the device user. The draft code of practice provides further detail on who this other responsible person should be—namely, that they should be over 18, must not be a suspect or person of interest to the inquiry or an authorised person, and that they should ideally have an existing care-giving relationship with the child.

Amendments 94 and 96 seek to provide that the exercise of these powers in connection with the investigation of a death or a person at risk must be authorised by an officer of at least the rank of inspector who is independent of the investigation. We do not think that such a requirement is necessary. The draft code of practice contains detailed guidance on how the use of these powers should be sanctioned, including the grade or rank of the sanctioning officer, and provides that they must be at least one substantive rank or grade above the person who is requesting the use of the powers. We think that this provides adequate oversight of the exercise of these powers.

Amendments 97 and 103 seek to give effect to recommendations made by the Delegated Powers and Regulatory Reform Committee. That committee proposed that the code of practice provided for in Clause 40 should be subject to the negative procedure and that provision for the extraction of confidential information should be made in the Bill rather than in regulations, as Clause 41 currently provides. We are studying carefully all the recommendations of the committee and I will therefore take away these amendments and consider them further. We will respond fully to the Delegated Powers and Regulatory Reform Committee’s report ahead of the next stage.

The noble Lord, Lord Beith, also has Amendment 104, which seeks to probe why it is necessary to make provision for confidential journalistic material. This is simply because a device may contain confidential material, such as journalistic material, and as such an authorised person must consider the possibility that this information is on the device before deciding whether to exercise the power and extract information.

It is clear that safeguards are needed to ensure that confidential material is not extracted inappropriately and that authorised persons consider the likelihood of a device containing this material, and any relevance to the inquiry, before any exercise of these powers. As I said, in the light of the Delegated Powers Committee’s report, we are considering whether to make suitable provision in the Bill rather than in regulations.

[Lord Falconer of Thoroton (Lab)]

I apologise for intervening. The Minister has been very helpful with this comprehensive response, but she said that the Government were not going to respond to the Delegated Powers Committee’s report until “the next stage”. It would be wholly unsatisfactory if they did not respond to that detailed report, which was issued weeks ago, until just before Report, because we have submitted a range of amendments. The House trusts the Minister, so could she do a bit better than “the next stage” and respond before Committee is over?

[Baroness Williams of Trafford (Con)]

My Lords, I will do my damnedest. I will take back the noble and learned Lord’s comments and see what is in the art of the possible. I can do no more than promise that, if he is happy with that—or rather, if he will accept it.

I will move on swiftly to Amendment 107, which seeks to remove immigration officers from Schedule 3, so that they can no longer exercise the powers in this Bill. Immigration officers play a vital role in protecting vulnerable people, in particular those who may be victims of trafficking, and it is important that they are able to obtain information that may be vital to these and other investigations. I therefore do not accept that immigration officers should not have access to these powers, subject to the same safeguards that apply to other authorised persons.

Finally, Amendment 106A relates to third-party material, an issue highlighted not just by the noble Lords, Lord Rosser and Lord Anderson, this evening, but by the Victims’ Commissioner, Dame Vera Baird. The amendment highlights a very important issue around the proportionality of requests for third-party material relevant to a victim. This material can be highly sensitive—for example, medical records. We agree that such material should only ever be sought where there is a reasonable line of inquiry, but we are aware that this is not always the case. There are examples where such requests cannot be justified, and this has a detrimental impact on the confidence of victims.

The noble Lord, Lord Rosser, also talked about written information given to victims. The police forces will use the digital processing notices developed by the NPCC for this purpose. The DPN, in layman’s terms, explains how the police extract the information, which information might be extracted, for how long it might be retained—that question was raised by the noble Baroness, Lady Chakrabarti, and answered in part by my noble friend Lord Hayward—and what happens to irrelevant material found on the device. The DPN makes clear that investigators must respect individual rights to privacy and must not go beyond reasonable lines of inquiry.

The Government wholeheartedly agree that there needs to be a consistent approach to ensure that requests for third-party material are made with the victim’s right to privacy in mind and to ensure that the victim is fully informed. This principle is key to a number of actions in the Government’s end-to-end rape review, which we published in June.

Moving on to the points made by the noble Lord, Lord Anderson, on Amendment 106A, our understanding is that the NPCC agrees in principle to the need for legislation but has not taken a view on a particular legislative solution. As I have indicated, this issue requires further examination, so I thank the noble Lord. I understand that the CPS similarly accepts the need for appropriate controls on access to third-party material.

The police and the CPS are working on new guidance for the investigators and victims which can be finalised after the Information Commissioner’s Office publishes its report on data in rape cases, which is due imminently. We will also consider whether a change is required to the Attorney-General’s guidelines. This will give us an opportunity to consider the broader landscape with regards to proportionality in requests for evidence from victims and whether further steps should then be taken. In terms of DPNs and involvement of the Victims’ Commissioner: yes, she has been involved with the development of the digital processing notices.

I apologise again for the length of my remarks to the Committee. The Committee has raised important issues in respect of the privacy of victims and witnesses, and it is very important we get the framework in the Bill right. I hope noble Lords will agree that we have listened to the concerns that additional safeguards should be set out in the Bill and will be content to agree the government amendments in lieu of their own. I say to the noble Lords, Lord Paddick and Lord Beith, that we will consider further their Amendments 97 and 103, and to the noble Lord, Lord Rosser, that we are very alive to the issues around third-party material. For now, I ask the noble Lord, Lord Rosser, to withdraw Amendment 79.

[Lord Paddick (LD)]

My Lords, very briefly: I really am grateful to the Minister. It is a very big group, and it is difficult to take in everything she said. But we have to be very careful. People will be reading the record of this debate. I think I heard the Minister say that the authorised person must explain that the investigation or inquiry will not be brought to an end if they refuse to hand over their device. That is not what it says on the face of the Bill. It says the person must be given a written notice.

These might have been many decades ago, but I know of situations where police officers shoved a piece of paper in front of somebody who was either a victim or a suspect—even somebody who could not read—and said something different from what was on the piece of paper. So I think we have to make it absolutely clear in the Bill, not just in the guidance or the codes of practice, that this must be explained, which was the meaning of one of my amendments.

The other thing I think I heard the Minister say—it is late—is that the authorised person must explain to the victim that refusal would have no negative consequences. That cannot possibly be right. For example, in a rape case where consent is an issue—where, perhaps, the defence argued that there were exchanges of messages or some such things that go to the heart of whether consent is an issue—and the victim refuses to hand over their device, there could be negative consequences when it comes to trial. Again, I understand that the Minister wants to be helpful and reassuring to victims, but we have to be absolutely clear what we are promising here, if it is being said on the record in this Committee.

[Baroness Williams of Trafford (Con)]

The hour is late. Because these things are so important, I will reiterate them in a letter to the noble Lord.

[Lord Rosser (Lab)]

First, I thank all noble Lords who have spoken in this debate. I also thank the Minister for her detailed response. I do not think she need apologise in any way for the length of it, since I am sure noble Lords would rather have a full response to the points that have been made than a shortened response. Like other noble Lords, I will read carefully in Hansard everything she had to say in reply to my amendments, as I am sure other noble Lords will in relation to their amendments. This part of the Bill has certainly been improved by the government amendments, which we welcome. But, equally, it can and should be further strengthened and improved.

There are a number of outstanding issues of concern, which I and other noble Lords have raised this evening and which I know Minister is aware of. I hope that she will agree to further discussions between now and Report on those issues of concern that have been raised in this debate. I know that the Minister is usually very open to holding such discussions—I see she is nodding—and will agree to that, as I say, between now and Report.

22:00

In the meantime, bearing in mind the hour is exactly 10 pm, I beg leave to withdraw my amendment.

Amendment 79 withdrawn.

Amendment 80 not moved.

Amendments 81 to 88

Moved by

[Baroness Williams of Trafford]

81: Clause 36, page 29, line 26, at end insert—
“(za) in a case where the authorised person proposes to exercise the power for a purpose within subsection (2)(a), the authorised person reasonably believes that information stored on the electronic device is relevant to a reasonable line of enquiry which is being, or is to be, pursued by an authorised person,”Member’s explanatory statement
This amendment has the effect that, to exercise the power in Clause 36(1) for the purposes of preventing etc crime, an authorised person must reasonably believe that information stored on an electronic device is relevant to a reasonable line of enquiry.

82: Clause 36, page 29, line 27, leave out paragraph (a) and insert—
“(a) in a case where the authorised person proposes to exercise the power for a purpose within subsection (2)(b) or (c), the authorised person reasonably believes that information stored on the electronic device is relevant to that purpose,”Member’s explanatory statement
This amendment is consequential on the amendment in the name of Baroness Williams of Trafford at page 29, line 26.

83: Clause 36, page 29, line 30, at beginning insert “in any case,”
Member’s explanatory statement
This amendment is consequential on the amendment in the name of Baroness Williams of Trafford at page 29, line 26.

84: Clause 36, page 29, line 31, leave out “that purpose” and insert “the purpose within subsection (2) for which the person proposes to exercise the power”
Member’s explanatory statement
This amendment is consequential on the amendment in the name of Baroness Williams of Trafford at page 29, line 26.

85: Clause 36, page 30, line 8, leave out “16” and insert “18”
Member’s explanatory statement
This amendment changes the definition of “adult” for the purposes of Chapter 3 of Part 2 so that it covers a person aged 18 or over.

86: Clause 36, page 30, line 11, leave out “16” and insert “18”
Member’s explanatory statement
This amendment changes the definition of “child” for the purposes of Chapter 3 of Part 2 so that it covers a person aged under 18 rather than a person aged under 16.

87: Clause 36, page 30, line 11, at end insert—
““criminal offence” includes—(a) a service offence within the meaning of the Armed Forces Act 2006, and(b) an SDA offence within the meaning of the Armed Forces Act 2006 (Transitional Provisions etc) Order 2009 (S.I. 2009/ 1059);”Member’s explanatory statement
This amendment clarifies that the references in Clause 36(3) to a criminal offence include a service offence under the Armed Forces Act 2006 or under any of the Acts that it replaces.

88: Clause 36, page 30, line 29, after “capacity)” insert “, (Requirements for voluntary provision and agreement)(requirements for voluntary provision and agreement)”
Member’s explanatory statement
This amendment is consequential on the amendment in the name of Baroness Williams of Trafford which inserts a new Clause after Clause 37.

Amendments 81 to 88 agreed.

Amendment 89 not moved.

Clause 36, as amended, agreed.

Clause 37: Application of section 36 to children and adults without capacity

Amendment 90

Moved by

[Baroness Williams of Trafford]

90: Clause 37, page 32, line 7, after “adult” insert “(within the meaning of this Chapter)”
Member’s explanatory statement
This amendment is consequential on the amendment in the name of Baroness Williams of Trafford at page 30, line 8.

Amendment 90 agreed.

Amendment 90A not moved.

Amendment 91

Moved by

[Baroness Williams of Trafford]

91: Clause 37, page 32, line 45, at end insert—
“(12) This section is subject to section (Requirements for voluntary provision and agreement)(requirements for voluntary provision and agreement).”Member’s explanatory statement
This amendment is consequential on the amendment in the name of Baroness Williams of Trafford to insert a new Clause after Clause 37.

Amendment 91 agreed.

Amendment 92 not moved.

Clause 37, as amended, agreed.

Amendment 93

Moved by

[Baroness Williams of Trafford]

93: After Clause 37, insert the following new Clause—
“Requirements for voluntary provision and agreement
(1) A person (“P”) is to be treated for the purposes of section 36 or 37 as having—(a) voluntarily provided an electronic device to an authorised person, and(b) agreed to the extraction of information from the device by an authorised person,only if the requirements of this section have been met.(2) An authorised person must not have placed undue pressure on P to provide the device or agree to the extraction of information from it.(3) An authorised person must have given P notice in writing—(a) specifying or describing the information that is sought,(b) specifying the reason why the information is sought,(c) specifying how the information will be dealt with once it has been extracted,(d) stating that P may refuse to provide the device or agree to the extraction of information from it, and(e) stating that the investigation or enquiry for the purposes of which the information is sought will not be brought to an end merely because P refuses to provide the device or agree to the extraction of information from it.(4) Subject to subsection (5), P must have confirmed in writing that P has—(a) voluntarily provided the device to an authorised person, and(b) agreed to the extraction of information from the device by an authorised person.(5) If P was unable to provide that confirmation in writing as a result of P’s physical impairment or lack of literacy skills—(a) P must have given that confirmation orally, and(b) an authorised person must have recorded P’s confirmation in writing.(6) If P’s confirmation was given in writing and in hard copy form, the authorised person must have given P a copy of that confirmation (in hard copy or electronic form).(7) If P’s confirmation was given orally, the authorised person must have given P a copy of the record of that confirmation (in hard copy or electronic form).” Member’s explanatory statement
This amendment sets out the requirements which must be met before a person is treated as having voluntarily provided an electronic device, and having agreed to the extraction of information from the device, for the purposes of Clauses 36 or 37.

Amendment 93 agreed.

Clause 38: Application of section 36 where user has died etc

Amendments 94 and 95 not moved.

Clause 38 agreed.

Clause 39: Extraction of information from electronic devices: investigations of death

Amendment 96 not moved.

Clause 39 agreed.

Clause 40: Code of practice about the extraction of information

Amendment 97 not moved.

Amendments 98 to 101

Moved by

[Baroness Williams of Trafford]

98: Clause 40, page 34, line 19, at end insert—
“(1A) The code may make different provision for different purposes or areas.”Member’s explanatory statement
This amendment enables a code of practice under Clause 40 to make different provision for different purposes or areas.

99: Clause 40, page 34, line 23, after “Ireland,” insert—
“(ca) the Commissioner for Victims and Witnesses,(cb) the Domestic Abuse Commissioner,(cc) the Commission for Victims and Survivors for Northern Ireland,”Member’s explanatory statement
This amendment adds the persons and bodies mentioned to the list of persons who must be consulted in the preparation of a code of practice under Clause 40.

100: Clause 40, page 34, line 24, at end insert—
“(2A) Subsection (2)(cc) does not apply on or after the day appointed under Article 4(4) of the Victims and Survivors (Northern Ireland) Order 2006 (S.I. 2006/2953 (N.I. 17)) (power to revoke Article 4).”Member’s explanatory statement
This amendment provides for the duty to consult the Commission for Victims and Survivors for Northern Ireland to cease to apply if an order is made revoking the provision which creates that body.

101: Clause 40, page 34, line 38, leave out “(2)” and insert “(1A)”.
Member’s explanatory statement
This amendment is consequential on the amendment in the name of Baroness Williams of Trafford at page 34, line 19.

Amendments 98 to 101 agreed.

Amendment 102 not moved.

Clause 40, as amended, agreed.

Clause 41: Regulations about the extraction of confidential information

Amendments 103 and 104 not moved.

Clause 41 agreed.

Clause 42: Authorised persons

Amendment 105

Moved by

[Baroness Williams of Trafford]

105: Clause 42, page 36, line 17, at end insert—
“(5A) The Secretary of State must consult the Scottish Ministers before making regulations under subsection (4) if and so far as the regulations make provision that would be within the legislative competence of the Scottish Parliament if it were contained in an Act of that Parliament. (5B) The Secretary of State must consult the Department of Justice in Northern Ireland before making regulations under subsection (4) if and so far as the regulations make provision that, if it were contained in an Act of the Northern Ireland Assembly—(a) would be within the legislative competence of that Assembly, and(b) would not require the consent of the Secretary of State.”Member’s explanatory statement
This amendment requires the Secretary of State to consult the Scottish Ministers or the Department of Justice in Northern Ireland before making regulations under Clause 42(4) which would be within the legislative competence of the Scottish Parliament or the Northern Ireland Assembly.

Amendment 105 agreed.

Clause 42, as amended, agreed.

House resumed.

House adjourned at 10.04 pm.