Grand Committee
Arrangement of Business
The Deputy Chairman of Committees (Baroness Fookes) (Con)
My Lords, before we turn to the main business, let me say that Members are encouraged to leave some distance between themselves and others and to wear a face covering when not speaking. As usual, 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 will resume after 10 minutes.
Advanced Research and Invention Agency Bill
Monday 22nd November 2021
(3 years, 1 month ago)
Grand CommitteeRead Full debate Advanced Research and Invention Agency Act 2022 View all Advanced Research and Invention Agency Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 24-II Marshalled list for Grand Committee - (18 Nov 2021)
“(d) support the UK Government’s obligations under the Climate Change Act 2008.”Member’s explanatory statement
This amendment would require ARIA to have regard to climate change by ensuring that ARIA had an obligation to support the Climate Change Act 2008 and the obligations flowing from that Act.
Lord Clement-Jones (LD)
My Lords, since nobody else is speaking and I had prepared a response to the noble Viscount, Lord Stansgate, I might as well briefly respond. I was going to say—indeed, I am saying—that this is a slightly random collection of amendments to say the least. As the noble Lord is not here, I can perhaps adopt a slightly more doubtful tone. As my noble friend Lord Oates made plain in the very good debate on Amendment 1:
“If the purpose of DARPA was to protect the national security of the United States by retaining its scientific edge against the threat of the Soviet Union, today, the threat from climate change, although very different, is some orders of magnitude greater.”—[Official Report, 17/11/21; col. GC 86.]
He went on to say that he agreed that it should be part of ARIA’s objectives. I very much agree with him.
On Amendment 26A, many of us asked this question at Second Reading; indeed, that is why we have tabled, and will be discussing, Amendment 47 regarding the framework for ARIA. It is extraordinary that we do not yet know what the arrangements will be with UKRI, research bodies and so forth, particularly in view of what the Minister said last week in Committee:
“UKRI has a broad portfolio of projects that it funds to tackle climate change across 12 different areas”.—[Official Report, 17/11/21; col. GC 96.]
He set out what all those areas are, but the risk of overlap seems considerable. Therefore, it seems important that we get to know what the relationships are between ARIA and other research bodies.
I am rather lukewarm about the renaming of ARIA. The noble Lord, Lord Ravensdale, quoted the Science and Technology Committee saying that ARIA was a
“brand in search of a product”.
The problem is not the brand; we want to look under the bonnet and see what it is actually going to do. The name is not what many of us are concerned about.
Baroness Chapman of Darlington (Lab)
My Lords, in the absence of my noble friend Lord Stansgate, I should say a couple of words about his amendments. We tackled the issue of climate in some depth when we met last week; I thought that it was a useful discussion. On the name, I think that he was trying to get at why the change had been proposed. Perhaps the Minister, when he responds, can talk us through the Government’s thinking. I do not think that it amounts to a hill of beans, but it was something that my noble friend wanted to explore, to find out what was behind the change of thinking.
Lord Willetts (Con)
My Lords, I will be brief and will refer particularly to Amendment 26A. I repeat that I am a member of the board of UKRI and so have a particular interest in this. The more the Minister can say about ARIA alongside UKRI, the better—it would be very helpful. I do not mind if there is overlap; I am not a purist on this. Indeed, some overlap may be an inevitable result of having ARIA and UKRI. In fact, I would prefer overlap to the alternatives, which are either that UKRI is seen to be unable to do high-risk, high-reward research or that it is somehow seen as second best to ARIA. I hope that the Minister will assure us that UKRI will be able to carry on doing the wide range of activities that it does—including through Innovate UK, in particular—with the application and successful commercialisation of technologies. I see ARIA as supplementing that rather than displacing it, so anything that the Minister can say about that relationship here or in answer to subsequent amendments would be very helpful.
Lord Broers (CB)
My Lords, my hope for ARIA was that it would look a bit like ARPA. ARPA is not a blue-sky, high-risk research operation; it is a project agency that takes challenges and builds systems to meet them. I think that this is essentially very different. It is not an invention agency and that is the reason behind this consideration. Whether it matters what the name is, I am not sure. ARIA has a nice sort of ring to it. After all, to call it ARPA would mean that we are copying the Americans, which is probably insufferable.
Lord Vaizey of Didcot (Con)
My Lords, I speak as an American citizen, although luckily I do not earn enough money for it to be a problem in terms of the dual-tax system, but I digress. I like the acronym ARIA. I think that it suits the operatic nature of this project. I apologise for not being present at the Second Reading of this important Bill and thank noble Lords for indulging me in allowing me to speak to this amendment, which I think goes to the heart of what the Government are thinking about how the ARIA experiment—if I can put it that way—will work.
ARIA is clearly modelled on ARPA and it is worth reminding ourselves that the ARPA model, which was created in 1958, has taken on a mythical status in terms of its success. It is a mistake to think that it is there simply to fund novel missiles or defence projects; it has a huge civilian impact. For example, it supervises a contest every year to take forward the ability of self-driving cars and, as I am sure many noble Lords are aware, it was a Marine colonel challenging pharmaceutical companies to take forward mRNA research into a practical project before Covid that meant that the world was better prepared when Covid struck. It is important to see what ARIA is capable of doing and I echo what the noble Lord said earlier: it is a project agency engaged, in theory—without wishing to sound contradictory—with projects that will have an impact in the real world, rather than basic research.
The reason I want to speak to this amendment is that I share what I think is an undercurrent of concern about how the ARIA model will fit in with the wider research landscape of the UK. I have to say that, when I was a Minister with my noble friend Lord Willetts, there was—it was certainly not our fault—a proliferation of different agencies that sprang up during our time in government. Many of them had extremely good intentions, such as the Turing Institute and so on. But I have lost count of how many organisations were created in the 2010s and, as I have said to the Minister before, I think that the time has come for the Government to have a proper review of all the agencies that they currently fund. For example, we still have the catapults merrily going about their business, but what is the role of the Satellite Applications Catapult as regards other organisations within the Government’s purview? As ARIA comes on stream, it would behove the Government to have a review of these agencies to see whether we can simplify the landscape and indeed perhaps even free up some budget that could effectively be used for ARIA purposes.
In speaking to the first amendment, I would point out that, while we love to talk about DARPA, in fact IARPA exists as well, and indeed ARPA-E. In the last five or six years, the Americans have created two new ARPAs. One is focused specifically on energy and one is involved with helping the intelligence services—so it is clear that the US Government believe that the ARPA model works. But the crucial point is this: they believe, clearly, that it works only when it has a specific sector as its focus. It is not for DARPA to start straying into climate change or intelligence capabilities: a new ARPA model has to be created.
I would meet the Government half way on this point by saying that the ARIA model is clearly an attempt —a welcome and interesting attempt—to break the mould, free up an institution and go wherever the science takes it, to coin a phrase. But, without a specific sector to focus on, I worry that ARIA may be distracted when trying to find its purpose.
Viscount Stansgate (Lab)
My Lords, first, I apologise for being late. I do not know whether amendments can be moved by Thameslink.
Baroness Noakes (Con)
Perhaps I might say to the noble Viscount that it is customary, if a noble Lord is not here for the commencement of a debate, for them to take no part in it at all. In the noble Viscount’s absence, the noble Baroness on his Front Bench formally moved his amendment so that a debate could take place—but that does not mean that he can take part in the debate.
Viscount Stansgate (Lab)
I found the noble Baroness’s comments in our last session very helpful and I learned a great deal—and now I have learned some more.
Baroness Bloomfield of Hinton Waldrist (Con)
We discussed this with the Table and it was agreed that, because they are the noble Viscount’s amendments, we would allow him to speak. That is acceptable, according to our clerk—but perhaps briefly, if he would not mind.
Viscount Stansgate (Lab)
I will be very brief. I take it that we are talking about the climate-change provision, on which I will say only this: on Thursday the House debated the impact of COP 26. The whole House knows that the future of planet earth is not unimportant, and I would have thought that, for a body such as ARIA, there is every reason to suggest, possibly in the Bill, that it should bear some serious regard to the Climate Change Act 2008, under which the Government of the time and succeeding Governments have been operating.
The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (Lord Callanan) (Con)
My Lords, I thank the noble Viscount, Lord Stansgate, for tabling these amendments and for the discussions so far. I will not comment at length, given the discussions that we had last week about ARIA’s research focus and relationship with other research organisations, but I will respond to noble Lords who have spoken today.
To take up the point of my noble friend Lord Willetts, ARIA needs to be as complementary as possible in its functions to other research and innovation organisations. This of course includes UKRI, which retains its system-wide responsibilities and also funds high-risk research. However, ARIA’s fit within this system goes beyond just having regard to the work of other players; it is about actively engaging and making the most of the system. We are currently looking to recruit a brilliant CEO who will form a collaborative and open network of partners right across the UK’s R&D landscape as part of embedding ARIA as a high-functioning organisation for years to come.
Amendment 49 is on a new subject, ARIA’s title. I agree that the focus should be on what the agency does, but let me say a few words about why we decided to call it the Advanced Research and Invention Agency. The noble Viscount, Lord Stansgate, will be aware that ARPA was the title of the US agency originally established in 1958; ARPA subsequently evolved into DARPA and the model was then developed, as my noble friend Lord Vaizey reminded us, in forming ARPA-E, IARPA and ARPA-H—somebody has been having great fun with the acronyms. It is also the inspiration for the agency that we are discussing today.
However, I stress that ARPA is only the inspiration. ARIA will learn many lessons from the original ARPA, but it is not a carbon copy. It takes into account what we think to be the distinct UK R&D landscape. As we have discussed, given the levers that the Government already have to gear R&D funding to national and strategic priorities, one key departure is that we are not mandating a specific area, such as defence, that ARIA must focus on. There may be other areas and ways in which ARIA’s incoming leadership wish to adapt the original ARPA model, given what we think is a fairly unique context. Calling this new agency ARPA could give a somewhat confusing message about its functions and easily result in it being mistaken for a purely defence-focused research funding agency. I strongly believe that ARIA must have its own brand and identity; that will be integral and crucial to its success.
I also believe that “invention” is a useful element of the agency’s title, which has been well received during the passage of the Bill in the other place and, so far, in our House, as well as by many in the research community. Together, “advanced”, “research” and “invention” signify that ARIA will be focused on high-risk research and clear, soluble challenges in the development and deployment of what we hope will be breakthrough technology. I completely recognise that the agency could be called many things—we could probably get 20 or 30 different examples in this Room alone—but I assure noble Lords that we have thought carefully about all the many options and come to the position, across government and with contributions from all departments, that the Advanced Research and Invention Agency is a clear, bold title, which clearly signifies what we want the agency to do and how we want its functions to evolve. With that explanation, I hope that the noble Viscount, Lord Stansgate, will not feel the need to press his amendments.
Baroness Chapman of Darlington (Lab)
I beg leave to withdraw the amendment.
“(7) ARIA is— (a) a public authority within the meaning of section 3 of the Freedom of Information Act 2000, and Schedule 1 to that Act is amended accordingly, and (b) a central government authority within the meaning of regulation 2(1) of the Public Contracts Regulations 2015, and Schedule 1 of those Regulations is amended accordingly.”Member’s explanatory statement
This amendment would subject ARIA to Freedom of Information requests.
Baroness Chapman of Darlington (Lab)
I want to talk about the issue of FoI. We all knew that this was coming in our discussions; it came up at Second Reading, and it has come up in much of the commentary about this Bill. As the Minister will know, there is serious concern about the Government’s decision not to include ARIA in the freedom of information legislation.
To put it bluntly, we think that ARIA should be subject to freedom of information, and we do not think that the Government have given any good reason or argument to justify the exemption. We think it is unlikely that ARIA would be overwhelmed with requests, as the Government seemed to indicate at Second Reading. As the Minister knows, that is not the situation with the equivalent agency in the United States. There is no reason that we can see why ARIA would be incapable of dealing with FoI requests that came its way.
At this stage, I know that we are all very familiar with the arguments about FoI, and I expect that we have all been in many debates not dissimilar to this, but it is helpful to remind ourselves why freedom of information was introduced 21 years ago. It gives us the right to know about the activities of public authorities, unless there is a good reason for them not to disclose them. This is called a presumption in favour of disclosure, and it is something that we very much support. It means that everybody has the right to access official information, and that disclosure of information should be the default—so information should be kept private only when there is a very good reason. As I say, the Government have not given a good reason to exempt ARIA.
At Second Reading, the Minister said that he was concerned about ARIA being overwhelmed. I do not know why that would be the case. Even if there were sufficient interest to make the burden of FoI substantial, I do not imagine that that will happen. The Minister has not given a reason why that would be a particular problem for ARIA and not for other agencies. It is just not a good enough reason to exempt ARIA from the scheme—the fact that you might get asked a lot of things is no reason to allow yourself not to answer them. If FoI was a burden for ARIA, I am sure that every local authority up and down the country would like to make the same argument for exempting itself. Why should ARIA be treated differently? That is something that the Minister so far has not explained.
I cannot remember who said this at Second Reading; it may have been the Minister who prayed in aid Tony Blair, which is usually not a bad thing to do. But I part company with Tony on this particular issue. As we all know, Tony Blair decided after leaving office that he regretted introducing FoI because, I think he said, it was a nuisance and it disrupts ease of communication between officials. I do not think there is a Prime Minister now or in the past who would not agree with him. I am sure it is a complete nuisance, but it is important; it is about the balance of power between Governments and their citizens. Tony Blair might feel that way, but that does not mean that the Government are right to keep agencies away from scrutiny. If the Government want to get rid of FoI or change the way in which it works, they should make the case, they should win the argument, and then they should change the law. They should not be attempting to undermine FoI slowly over time by excluding new agencies, which is what I think is happening here. They do not want to have the argument, so they are just leaving out new entities as they emerge.
I should have thought, after everything the Government have experienced in recent weeks, that they would be falling over themselves to show the country that they welcome scrutiny and want to be transparent. Last week, the Minister accused me of being opportunistic in making that argument. I stand by my assurance to him that that is not the case. This is done out of a will to see ARIA succeed. I could stand here and make a very long speech about all the problems the Government have had through lack of transparency, but I will not do that. I want ARIA to succeed, but I think that without some measure—whether it is FoI or some of the other measures that the Minister dismissed last week—there needs to be some measure by which that transparency, scrutiny, oversight or whatever you want to call it can take place, either via Parliament or via FoI.
I am sure that we will come back to this at Report. The Government have declined every suggestion that we have made on this issue so far. That is a shame, and I just hope that they reconsider their stance on this.
Viscount Stansgate (Lab)
My Lords, I support my noble friend Lady Chapman and shall speak also to Amendment 32A, which, ironically, was the first amendment that I drafted. If there is any benefit to a signal failure on Thameslink, it is that by accident I turn out to be speaking to the very first amendment that I drafted. I pay tribute to the noble Baroness, Lady Noakes, because it was her who pointed out last week that the former Prime Minister had said that he regretted the Freedom of Information Act. Next time I see him, I shall gladly discuss that subject, but I think it tells you more about Prime Ministers than it does about the principle of freedom of information.
There are two and a half arguments in favour of this amendment. The first is the principle. We live in a parliamentary democracy—we live, incidentally, in a world in which we learn less and less about the Government, who can know more and more about us—and it is a good principle of public life that any new body should be subject to freedom of information. The half argument is that, if it is suggested by the Government that this will cause practical difficulties for ARIA, I am perfectly happy for them to bring forward their own amendment saying that at a later stage they can review the operation of the Freedom of Information Act to see whether it has turned out to be very difficult.
The other argument in favour of making it subject to freedom of information is this. This is a new body. It will be given a not insubstantial sum of public money. It will be doing things the nature of which none of us around this Committee Room knows. If it is thought to be too secretive about what it is doing and in no shape or form accountable to Parliament, apart from the odd appearance by the chair or chief executive in front of the Select Committee in another place, there is a risk that ARIA’s work and reputation could be damaged. Freedom of information would protect ARIA against that risk. That is the other argument I put to the Committee in favour of the amendment.
Baroness Noakes (Con)
My Lords, I spoke on this at Second Reading and quoted Tony Blair. Just to remind the Committee, he said that the Freedom of Information Act was
“utterly undermining of sensible government.”
I do not think it is, but I think anybody in the public sector will attest that it is often very burdensome and extremely costly to operate. It was looked at relatively recently by a group, led I think by the noble Lord, Lord Burns, and the conclusion was that on balance the law should remain as it is. But that does not mean that for every new body we should automatically apply the Freedom of Information Act requirements. The noble Baroness, Lady Chapman, was clear that if there was a case, the Opposition would support it.
It is worth looking at why an organisation such as ARIA might well be worthy of special consideration. Let us look further at what Tony Blair said:
“If you are trying to take a difficult decision and you’re weighing up the pros and cons, you have frank conversations … And if those conversations then are put out in a published form that afterwards are liable to be highlighted in particular ways, you are going to be very cautious.”
We do not want an organisation that is dragged into caution and risk aversion. We want one that is fully open internally to grappling with some very difficult issues.
Lord Fox (LD)
My Lords, I speak to Amendment 39 in my name and that of my noble friend Lord Clement-Jones. It is on something also asserted in Amendment 24 by the noble Baroness, Lady Chapman, and, in the late runner, Amendment 32A, by the noble Viscount, Lord Stansgate. We all seek essentially the same outcome, targeting different parts of the Bill to avoid the avoidance of freedom of information.
It is always good to speak after the noble Baroness, Lady Noakes, and strangely my opening assertion very much follows on from hers. Without our amendments, ARIA would follow in the footsteps of a very small number of institutions that currently do not have Freedom of Information Act obligations: the Royal Family; security and intelligence bodies such as MI5, MI6 and GCHQ; Special Forces; and the National Crime Agency. I think that is the list. There may be others, but I am pretty sure that is it. It gives noble Lords an idea of the sort of organisations. They do not seem to be natural paradigms to ARIA.
The noble Lord, Lord Willetts, will correct me, but the obstacles to innovation for funding bodies are many and various. Nowhere have I seen obligations to freedom of information as one of the things listed by those bodies as a barrier to innovation, or indeed invention. Indeed, as far as I can see, most if not all of ARIA’s client organisations—those it will fund—will be subject to the Freedom of Information Act, so where is the point in excluding ARIA itself?
In refuting me and others on this at Second Reading, the Minister said that
“robust arrangements are in place that will provide a clear picture to Parliament and taxpayers about how ARIA’s activities are funded and where it spends its money.”—[Official Report, 2/11/21; col. 1202.]
That is indeed the point, because ARIA will be holding the brush painting that picture. We will get to see what ARIA chooses to tell and show us about what it is doing. FoIs look at things from the opposite direction.
The Minister also points to the need for ARIA to be lean, and I absolutely agree with him on that, but I remind him and those who speak against these amendments why we are seeing growing evidence of huge levels of very worrying financial mismanagement across government contracting. It is because of the crony-type issues which the noble Baroness, Lady Chapman, raised in her speech, which have a corrosive effect on institutions that need to be protected from any stain of impropriety. Transparency is very much that protection. By maintaining proper scrutiny, everybody can see that there are no problems and there is no favouritism going on. This will absolutely protect ARIA’s reputation.
ARIA will be substantially larger that many bodies already subject to freedom of information legislation. ARIA has no greater claim to avoiding complying with FoI legislation than any other public authority. Indeed, given its budget, there are compelling grounds for its inclusion. It is clear, through these three amendments, that we on this side find the current plan to exclude ARIA from the Freedom of Information Act’s provisions unacceptable. I feel sure that, between us, we can coalesce around a single amendment for Report. In the meantime, I look forward to the Minister’s response.
Lord Browne of Ladyton (Lab)
My Lords, I will make two points. The first is in response to a point made by the noble Baroness, Lady Noakes, and the other is in anticipation of a point that I think the Minister will make in his response to the debate.
The noble Baroness argued that the unique nature of this organisation should make it free from this burden. It will be unique here in the United Kingdom, but it is not a unique organisation. In fact, it is modelled on an organisation that has a history, and that is ARPA, which is now DARPA.
I will come shortly to the Minister’s rejection of that comparison at Second Reading, but I am moved to intervene because of data I have been given by the Campaign for Freedom of Information about the burden that freedom of information has been on ARPA and DARPA in the United States. Granted, the United States is a much more open society than ours, but ARPA and DARPA have been subject to the US Freedom of Information Act. It is incontrovertible that the need to answer FoI requests has not prevented them achieving successes that the Government here now wish to emulate. In fact, in the 11 years from 2009 to 2019, an average of 47 requests a year referring to DARPA were made to the US Department of Defense. It lived with that burden and has been the success that we all know and are seeking to emulate.
The Minister rejected this comparison, saying that there is a different freedom of information system in the United States of America. He referred to fees, and suggested that somehow the experience we have had of freedom of information thus far made it probable that ARIA would be prevented from being the lean machine focused on innovation that we all want to see if it was subjected to the burden of freedom of information.
Interestingly, 47 FoI requests per year is almost exactly the number of requests received by individual UK research councils before they were incorporated into UKRI. In 2017-18, the six research councils for which data was available to those who provided it to me received an average of 48 requests each. By comparison, in 2019 the Home Office and the Ministry of Justice each received nearly 5,000 requests. Maybe that is why the Government have this impression that everything they do is overburdened by FoI. It is not. Some things are, and there is a different politics about them than there will be about this.
I think that it is perfectly legitimate to make the comparison with the success of DARPA and ARPA, which have lived in an environment of openness and freedom of information. That is much more likely, on the data, to be the experience of ARIA, were it to be subject to the Freedom of Information Act, than the perception of any burden that a Minister may have from their own experience of FoI in another department.
Lord Broers (CB)
I would like to respond to that, which I find very interesting. I would like to know whether ARPA and DARPA have restraints on certain types of information. Having operated in industry in an R&D environment, I am familiar with the problems of what you have to keep secret and what you do not. In the American economy, by far the largest fraction of the vast amount of progress that is made is made in industry with private funds—and industry invests those private funds in R&D only if it can be assured that the products of that R&D will remain exclusive to it. I have been in situations where there has been industrial espionage and design manuals have been stolen for products that took billions to develop. Those thefts in the United States were of course prosecuted and those who obtained the information were fined large sums of money.
ARPA is going to be in that situation. It has to work with industry, using the results of its most advanced R&D, perhaps in new ways, to come up with new systems. It must be able to sign some memorandum of understanding, or in some way say to industry that it will protect from public knowledge that information. In an industry where you are relying primarily on novel processes, you do not tend to patent things, because patenting them puts them in the public domain. You rely on trade secrets and, to have a trade secret validated as a trade secret, you have to show that you have done enough due diligence to make sure that the information is not generally available to your competitors.
It has been a problem internationally for the past several decades that there has been international espionage on a large scale to obtain information from inside industries in the West. I ask the Minister whether that is being taken into account. Clearly, what the noble Lord, Lord Fox, and others have been saying is incontrovertible: we do not want the agency at risk because people are wasting vast sums of public money. On the other hand, you have to take into account that, if ARIA is to be successful and produce new capabilities that can be commercially exploited for the benefit of the UK, there must be adequate protection of what in industry is normally commercially sensitive and secret.
Lord Clement-Jones (LD)
My Lords, my noble friend Lord Fox, in his amendment, and other noble Lords in theirs have pointed to the anomaly of ARIA not being subject to the Freedom of Information Act, and it has been a great pleasure listening to the noble Baroness, Lady Noakes, quoting Tony Blair with approval—a rare delight.
The Government have put forward a number of weak reasons to justify ARIA not being subject to the FoIA, and the noble Baroness, Lady Chapman, raised the first of them, the burden of responding to FoI requests—an extraordinary argument for a body that is going to have a budget of £500 million over the first three years. Many bodies subject to the FoIA have tiny budgets and staff numbers compared with those that ARIA will enjoy.
The noble Baroness, Lady Noakes, called it costly, but will it be for ARIA? Interestingly, the noble Lord, Lord Browne, raised a number of questions prompted by the comparison or assertion that the Minister made at Second Reading that, because we do not have to pay for access to freedom of information requests, they will be pouring into ARIA, unlike in the United States. As the noble Lord, Lord Browne, pointed out, actually the requests to each of the research councils is pretty much on a par with those that are put to DARPA. I do not think that that argument is there either.
Lord Callanan (Con)
I start with Amendment 24 from the noble Baroness, Lady Chapman, Amendment 32A from the noble Viscount, Lord Stansgate, and Amendment 39 from the noble Lord, Lord Clement-Jones, which all deal with the Freedom of Information Act. As I said at Second Reading, our decision not to subject ARIA to FoI was made after much consideration. As on so many of these things, I find myself in full agreement with my noble friend Lady Noakes and I thank my noble friend Lord Patten for his support during the Second Reading debate.
I was hoping that some of my noble friends who have been in government would comment on how they found the Freedom of Information Act in government. From my point of view, it is a truly malign piece of legislation. At the risk of trashing his reputation even further in the Labour Party, I agree with Tony Blair on this matter. I agree with the noble Lord, Lord Fox, that all information on government contracts et cetera should be published, even if it is embarrassing for the Government. However, I think he will find that all the contracts to which he refers were not released under freedom of information but under normal government contract transparency.
In my experience, not much is ever released under freedom of information that causes any problems for government; it is normally stuff that is released in the normal transparency of contract negotiations and government transparency returns. I am fully in favour of decisions, and information about them, being released, but I fail to see how the processology of government benefits at all from FoI disclosures. I find that people just modify their behaviour and communication to take account of the fact that private conversations may be released in the future. I genuinely do not think that it achieves anything at all, but that is my personal perspective and not necessarily a matter for this debate. It was also new to me to discover at Second Reading that the US charges a fee for freedom of information disclosures. I think that is an excellent idea, even if it is only a nominal amount to get rid of some of the somewhat spurious fishing expeditions that many go people in for. Anyway, that is a separate matter for different discussions.
In contrast to UKRI, which comprises the seven research councils, ARIA is a new, unique organisation that we anticipate will attract a disproportionate number of FoI requests for its size. On the point made by the noble Lord, Lord Browne, I would reiterate, as I did at Second Reading, that comparisons between ARIA and DARPA do not hold, precisely because, as I said, DARPA adds a standard fee to the requester, which is not comparable to the situation in the UK, although we should certainly consider it.
Lord Clement-Jones (LD)
My Lords, if I may have the privilege of intervening—a wonderful feeling, having been under different rules for a period of time—does the Minister not accept what the noble Lord, Lord Browne, said: that the individual research councils receive no more than the number of requests that DARPA receive, something of the order of 47? It is quite coincidental that the average is 47. Why does the Minister think that ARIA will be inundated with freedom of information requests?
Lord Callanan (Con)
Because it is a fairly new and exciting agency doing new things. I suppose we will have to disagree on that. There is no point and nothing to be gained by doing otherwise. In designing ARIA, we are envisaging a lean agency that will employ people in the tens. I do not know how many people across government are currently employed to respond to the hundreds if not thousands of FoI requests that we get, but given the bundles of documentation that sometimes pass my desk, there must be many hundreds of civil servants engaged in doing nothing other than responding to these fishing expeditions. As I said, ARIA will be an agency employing people in the tens, with around 1% of the R&D budget.
Lord Browne of Ladyton (Lab)
My Lords, I am grateful to the Minister for giving way. I invite him to reread what he said at Second Reading. He virtually invited people who are being refused the opportunity to ask ARIA questions to ask them of his department. Then it will be a true comparison. I invited him to compare an organisation of the nature of a research council with one such as DARPA, not to compare DARPA with a government department. At Second Reading, he himself listed a whole number of organisations, including government departments, that are subject to FoI. It is an invitation to people who are refused the discipline of talking to a smaller organisation in a proportionate way to flood a department with requests and take up even more time. With respect to the Minister, I think this is verging on an irresponsible attitude towards this argument, even in his own interests.
Lord Callanan (Con)
I can assure the noble Lord that people need no invitation from me to table FoI requests to my department. They are well capable of doing it. I think some people already have forms set up on their word processors to submit some of these things with gay abandon.
Anyway, in designing ARIA we are envisaging an agency that will be lean and streamlined. It will employ people in the tens, and we strongly believe that it needs to be agile and efficient. “Lean”, “streamlined” and “efficient” are not always words that are used to describe nominal usual public bodies. However, as my noble friend Lady Noakes has attested to, this context has always been at the forefront of our minds in bringing forward this Bill.
We have carefully considered which procedures are conducive to ARIA’s success. I recognise here that part of ARIA’s success depends on it gaining public trust and being transparent and accountable for its activities, as the noble Lord, Lord Fox, called for. I believe that we have found the right balance in freeing this small agency to fund high-risk, critical research but to do it differently, with appropriate visibility to Parliament and taxpayers.
The noble Lord, Lord Broers, raised some concerns about the protection of technological gains in sensitive projects. I note at this point that there are, of course, existing commercial confidentiality exemptions to the FoI Act, as referenced by the noble Lord, Lord Clement-Jones. All requests still require processing and we are conscious of this in making the decisions to exclude ARIA.
Much has also been said on transparency today in the contributions from the noble Baroness, Lady Chapman, and the noble Viscount, Lord Stansgate. I maintain that the right provisions to hold ARIA to account are the ones that I outlined at Second Reading. They are the publishing of an annual report and statement of accounts, which will be laid before Parliament, as set out in the Bill; being subject to annual audits by the National Audit Office; and being accountable to Parliament through the CEO, who will be the agency’s accounting officer.
In addition, as the noble Lord, Lord Browne, has pointed out, ARIA will remain a BEIS arm’s-length body, and my department will work with ARIA’s leadership to agree the appropriate arrangements for its scrutiny and oversight in the interests of good governance.
We expect ARIA, as far as possible, to have a culture of transparency, and we hope that will be championed by its incoming leadership. Working across the R&D community, and indeed with Parliament and the public, to communicate ARIA’s activities will be critical to ARIA’s commercial and research success. Given that, I hope the Committee will understand that I cannot accept or agree with this amendment. I am sure the noble Lord, Lord Clement-Jones, has a different opinion.
I turn now to the exemption the Bill affords ARIA from the Public Contracts Regulations 2015, and to Amendments 24 and 42 in the name of the noble Baroness, Lady Chapman. I think she omitted to speak in favour of her amendment, but I will respond to it anyway.
Our decision to exempt ARIA from the contracting authority obligations in the Public Contracts Regulations hinges on two critical expectations: first, that ARIA will be commissioning and contracting others to do research for it; and, secondly, that ARIA’s programme managers should be acting and investing with agility and speed. When ARIA is commissioning and contracting others to do research for it, it will be operating in a fundamentally different way from traditional R&D grant-making where procurement rules do not apply.
In my view, it is therefore appropriate for ARIA to be given freedom from procurement rules to ensure that the agency has greater flexibility in its contractual arrangements. However, to counterbalance that and to provide the assurance that this freedom will be used properly, we have provided a non-legislative commitment for an independent auditor to report annually on ARIA’s procurement activity. This measure, alongside ARIA’s robust conflict of interest procedures, the wider accountability I just talked about, and governance provisions, are an appropriate set of arrangements. I hope that reassures the Committee that we have taken all these matters into consideration and that this exemption is both essential to ARIA’s effective function and proportionate to the tasks it faces. Therefore, I invite noble Lords not to press their amendments.
Baroness Chapman of Darlington (Lab)
I thank the Minister for responding to my amendment and speaking to Amendment 42, which I did not move; I am grateful to him for responding to something I did not say.
As he explained, the point of Amendment 42 was to include ARIA as subject to public contract regulations. I do not understand why it is not. These debates are all connected. We are constantly trying to push the Government to give us a bit more transparency and give ARIA more accountability, but they keep pushing us back. The Minister says that he wants a culture of transparency, but I do not see how that will come about as we are currently progressing.
As my noble friend Lord Browne said, ARIA is not unique and, as several noble Lords have said, it needs protecting from reputational damage. I make a plea to the Government not to allow ARIA to end up being called some sort of secret research agency, which is a real danger. When that kind of pressure starts, this agency will not stand a chance. Never mind the measures in the Bill about protecting it from being disbanded for 10 years; they will count for nothing. It would be very easy for a Secretary of State to get rid of this agency should the political pressure mount. That is what we are trying to avoid here.
The noble Lord, Lord Clement-Jones, talked about the exemptions from FoI, which I hope reassures other noble Lords who talked about commercial interests and national security. Of course we would not want FoI to be used in a way that would harm ARIA, but that is already taken care of by the exemptions from FoI that already exist.
The Minister tried to say, “I don’t know why you’re so fussy about FoI. It never really tells us anything we wouldn’t already know.” I just had a quick look at what has been out in the past few weeks thanks to FoI. FoI revealed that 52% of councils spent nothing on electric vehicle charging, and the scale of data breaches at local authorities. FoI told us about the funding drop in early years in different regions of the country over the past quarter and about the number of operations cancelled by trusts. These are all things that we would not have been able to discover, except perhaps by a Parliamentary Question, if FoI were not available. It is important. It provides something that is unavailable by any other mechanism. Given the failure of the Government to take us up on any of our other suggestions for transparency, I am pretty confident that, as the noble Lord, Lord Fox, said, we will return to this and push the Government hard on this issue at Report. I beg leave to withdraw the amendment.
Lord Browne of Ladyton
“(4) If ARIA gives a grant, or part of grant, made to it under this section to another entity, the giving of the grant must be subject to the condition that a person or entity may not gain control of that entity for 5 years after the date on which the grant is given.(5) If ARIA gives a grant, or part of grant, made to it under this section for the purposes of supporting a specific asset, the giving of the grant must be subject to the condition that a person or entity may not gain control of that asset for 5 years after the date on which the grant is given.(6) In this section, “entity” means any entity, whether or not a legal person, that is not an individual, and includes a company, a limited liability partnership, any other body corporate, a partnership, an unincorporated association and a trust.”Member’s explanatory statement
This amendment would ensure that any grant made by ARIA is subject to the condition that the entity or asset supported may not be subject to a takeover for 5 years.
Lord Browne of Ladyton (Lab)
My Lords, Amendment 30 seeks to ensure that any grant made by ARIA is subject to the condition that the entity or asset supported may not be subject to a takeover for five years. I confess that, on reflection, this may more felicitously have been an amendment to Clause 2, which deals with the conditions of grants made by ARIA. As its tabling is for exploratory purposes, at least today, I do not think that matters, but if it comes back it will probably come back in a different form and as an amendment to a different clause.
On the first day of Grand Committee, the debate on the group of amendments led by Amendment 18 in the name of and moved by the noble Lord, Lord Lansley, took about 20 minutes, and the phrase “intellectual property” was used 37 times. Introducing the debate, the noble Lord described the group as being
“about the way in which ARIA acquires, creates, disposes of, retains and shares intellectual property”,—[Official Report, 17/11/21; col. GC 127.]
so it is not really a surprise that the phrase was picked up.
In some senses, it is a pity that this amendment was not grouped with the noble Lord’s amendments, because the concerns that have given rise to the need for this amendment were to some extent aired in that debate. The noble Lord, Lord Lansley, shared with us the extent to which there was concern in the United States that
“some of the public funding which has led to”
DARPA
“research has led to private as opposed to public gain.”—[Official Report, 17/11/21; col. GC 128.]
I share his concern about the extent to which we are creating such an opportunity, but more so about the extent to which such publicly funded research may lead to foreign, mainly US, private as opposed to British private or public gain.
Refinitiv data shows that, in the first half of 2021, buyout groups spent $45 billion snapping up companies in Britain—more than double the next-best first six months on record and almost 10% of the total $547 billion spent across the world. Am I to understand that British stocks’ discount to global peers is the deepest in more than three decades and that Brexit is one reason? I do not want to divert us into another debate, but Brexit is for good, not just for Christmas, so that situation may persist for a period.
On 17 November, reporting the Culture Secretary’s decision to announce a competition and national security investigation into the planned takeover of the British chip business Arm Holdings by the American multinational tech giant Nvidia, and coupling this with the recent news that Kwasi Kwarteng is investigating the proposed sales of defence suppliers Ultra Electronics and Meggitt to American suppliers on similar grounds, Ben Marlow, the chief City commentator of the Telegraph, wrote:
“For too long Britain has adopted a naive and unquestioning ‘help yourself’ approach to foreign takeovers. For a while it looked as though the … government would take an even more extreme laissez-faire approach as it sought to live up to its ‘Global Britain’ credentials but perhaps the penny has dropped in Westminster … It is a welcome shift in tone. Ministers routinely greet the sale of British companies to overseas buyers as a vote of confidence in this country’s prospects when it is nothing of the sort. It simply means foreign firms see the UK as easy pickings and an opportunity to make a quick buck. Hoisting a giant ‘for sale’ sign over your best and brightest companies is not sound industrial policy, it is an act of … self-harm.”
It will not be a surprise to anybody in your Lordships’ Committee that I am not used to quoting the Telegraph in debates or in support of my arguments. I do so because, in a sense, it may be a bit of an instruction to the Minister as to the attitude he ought to adopt to this issue. I do it because it may have more impact on the Minister.
I have tried twice now, in supplementaries to Questions in your Lordships’ House on these issues, to engage the Minister on what is actually happening in the United Kingdom to some of our best and brightest businesses and the effect it is having. I even quoted on one occasion the concerns of the Bank of England about the way these businesses are funded and the damage that this leveraged debt potentially poses to the economy of the United Kingdom in the long term, but he did not respond.
On another occasion, in relation to both the companies referred to in addition to Arm—Ultra Electronics and Meggitt—I pointed out that 85% of R&D in the defence industries in the United Kingdom is public money, and that the intellectual property of these businesses was in danger of leaving the United Kingdom, having been paid for by public money. That is exactly the issue that the noble Lord, Lord Lansley, raised, although he did so in a slightly different context, and exactly the concern I have.
On none of these previous occasions did the Minister bite. With respect to him, he deployed a slightly less complacent version of the words the Telegraph’s city correspondent pointed out, but he deployed them nevertheless.
I close my remarks in support of this amendment by thanking the Minister for his gracious invitation to me over the last few days to indicate to him what lay behind it so that he could, if possible, give me the reassurance I sought. I responded with an even shorter version of what I have said to your Lordships’ Committee today. I hope he has the reassurance that I and others seek about how we will protect the product of this new initiative from being raided by the predators of venture capital funds in particular. I conclude with the words the Telegraph uses, that
“the Americans wouldn’t allow it to happen so why should we?”
Baroness Noakes (Con)
My Lords, I am not as opposed to foreign takeovers as the noble Lord, Lord Browne, but I accept that there are some instances where this country is not well served by the ability of organisations outside the UK to cherry pick some of our best assets. The broad thrust is that foreign investment in the UK has been good for our economy—indeed, large amounts of our productive economy are owned by foreign businesses and they are an important part of the success of the UK economy—but I concede that there is a potential issue, especially when we deal with the kind of things we expect ARIA to fund.
However, I do not think the amendment works. It says that if ARIA gives a grant to an entity, it has to be subject to the condition that that entity cannot be taken over. That entity cannot give an undertaking that it cannot be taken over, because the people who will control who takes over an entity are the people who own the entity, which is not the same as the entity itself. While in some cases it might be a private company with two or three shareholders, which would probably be quite easy to deal with, if the shareholdings were much more dispersed it would probably be impossible to operationalise that sort of requirement. If there is a case, it needs another solution.
I also note that this is a bit of a sledgehammer. There could be very good reasons for an entity having the control over it changed. It could need greater access to capital to scale up whatever it has been looking at; it could have liquidity issues in taking its research and development to the next stage, before it even gets to scale up, and need the involvement of other partners; or it could just be that it makes sense to continue with whatever it has been looking at only if it is part of a larger organisation and subject to a merger or joint venture, where control would be ceded. If there is a problem, I do not think it can be met by this amendment.
Lord Fox (LD)
My Lords, I thank the noble Lord, Lord Browne, for raising this very interesting issue. Without repeating verbatim what I said at Second Reading, one of the highlighted issues in delivering technology into the market in this country is not the invention phase but the scale-up—getting it beyond technology readiness level 7 and then getting it into the market and scaling up.
I discourage the noble Lord from using the phrase “predator” for venture capital. The money has to come from somewhere to deliver that scale-up, and I doubt that the Government will be the provider. The issue and challenge is that the VC industry in the United States is massive compared with what is available in UK-based funds, and thereby comes the lack of centricity about which the noble Baroness, Lady Noakes, spoke. We should very much consider looking for a way for businesses that have an invention to take it to market. To some extent, this amendment is looking at the other end of the problem; it stops stuff happening rather than allowing it to happen in a different way. I am not sure that it is the answer, but its spirit is very important.
There is another unintended consequence I would be concerned about. In the event that an entity could avoid a takeover, by taking money from ARIA it would in essence lock itself away from any commercial activity that could be beneficial to it as a company, the country and ARIA’s intentions. A one-size-fits-all approach—“We give you the money and you can’t do any commercial activity”—is not in the spirit of what this seeks to achieve. Looking at this again, we need to find a way to deliver that scale-up story. That is really the issue facing this country, not the invention bit that somehow this agency is focused on.
Lord Lansley (Con)
My Lords, I very much appreciate that the noble Lord, Lord Browne, has brought forward his Amendment 30 in particular. It is very helpful to our debate and rather complements the discussion we had about ARIA’s ability to exploit the intellectual property it gives rise to and to place the right kind of conditions. We will come back to that on Report; it is important that we do.
I hope the Government can, if not necessarily amend the Bill extensively, certainly make it clear that ARIA, in exercising its functions, should seek not only to promote economic growth and benefit in the United Kingdom but to make sure that—in so far as the public have subscribed through ARIA to the creation of intellectual property—the benefits of that will accrue to ARIA and, potentially, the Government. I would say that they should accrue to ARIA, with the ability to promote follow-on research activity as a result. I am sure the noble Lord is not planning to press his amendment and recognises the risk associated with its structure and the chilling effect it might have on the entities that might otherwise apply for grants, assets or activity.
I will just inject this thought. A number of noble Lords here in Grand Committee were contributors to our discussions on the National Security and Investment Act, and I hope my noble friend the Minister will be able to give us some specific assurances about how Ministers can use National Security and Investment Act powers to secure the protections that the noble Lord, Lord Browne of Ladyton, is looking for.
I worry that there may be gaps, because the National Security and Investment Act has its own criteria and thresholds, and this may relate to activities, projects and assets that do not fit within those criteria—but we none the less want the intellectual property created by ARIA to be protected in some way. So there may be a gap and we need to explore whether there is one and, if there is, how it might be secured: how ARIA, and Ministers through ARIA, can protect the value that might be derived from the intellectual property to which its projects give rise.
Lord Broers (CB)
My Lords, I rise to give the amendment moved by the noble Lord, Lord Browne, the very strongest support. We have talked around the issue of how we can solve the problem of losing our brilliant companies, because it is stunningly serious—and it is not just Arm and Nvidia. I am very pleased because I wrote to the Government about six months to a year ago to plead that the competitive agency should look at that, and it is at least looking at it now. The company Solexa was taken over by Illumina, having pioneered the successful way to decode DNA, and Illumina’s revenue flowed into the many billions—after the key technology had come entirely from the UK. These things should not have happened.
I ask whether we can add to the requirements on ARIA that incentives should somehow be given to our City, which has an appalling record of missing opportunities to invest in UK industries—creative industries in particular. It is all very well to talk about the scale of American venture capital: that is a very good point, but we can be very selective. Then perhaps we would not need a very big scale to look after companies such as Arm and Solexa—there was Verata before them, and several others that have left here almost with the certainty of being successful, and yet somehow we could not find our own funds to support them.
Baroness Chapman of Darlington (Lab)
My Lords, I will speak briefly to Amendment 31 in my name. It is a probing amendment to find whether the Minister would say a few words about how ARIA grants will interact with national security and our established defence industry. We have a very well-developed defence research capability in the UK. It is successful and world leading. I would like to understand how ARIA will relate to it.
I also fully support the amendment from my noble friend Lord Browne. I do not know anywhere near as much as he or many other noble Lords in this Committee do about the topic, but I was familiar with Cobham, which was based very close to Darlington: most people who worked there seemed to live in Darlington. Its substantial contribution in this field stretched over decades. I agree that we need to do whatever the Government think would work to deal with this problem. It seems to be a concern on all sides. If the amendment from my noble friend Lord Browne, is not the right one, or it this not the right clause, or perhaps not even the right Bill, there remains a concern that has been expressed that the Government would do well to respond to and let us know, if this is not the way they will deal with it, how they intend to tackle something that is clearly a concern of many noble Lords.
Viscount Stansgate (Lab)
My Lords, I rise briefly to support my noble friends Lady Chapman and Lord Browne. Amendment 31A is in my name. The Government saw fit to put Clause 5 in the Bill for a reason and I am sure the Minister, when he comes to reply, will refer to the reason why it is so important. Similarly, some of us on this side of the Committee feel that it is particularly important that, when those powers are exercised by the Secretary of State, Parliament knows about it at the time—not just in an annual report produced later. Also, with others, I think that there may be further scope to consider whether in this legislation or the National Security and Investment Act, which has already been referred to, there could be ways of furthering the arguments of my noble friend Lord Browne, if the Government are prepared to consider constructive ways forward.
Baroness Bloomfield of Hinton Waldrist (Con)
My Lords, I thank the noble Lord, Lord Browne, for his comments on Amendment 30. I recognise that this is an issue that he cares deeply about, as do other noble Lords, including the noble Lord, Lord Broers. As we heard, the amendment relates to ARIA’s ability to attach conditions to grants to prevent the takeover of an asset or entity, but this Bill is not about the general conditions or, indeed, climate for takeovers of UK private business by US entities; rather, in tabling this amendment, the noble Lord has raised important questions about the benefits derived from public investment in R&D. I appreciate his sentiments about the UK retaining the benefits of ARIA’s funding and, as we discussed on Wednesday, Clause 2(6) gears ARIA towards considering the UK benefits of its activities.
The UK is a world-renowned destination for foreign investment and the UK economy has thrived as a result. We are open to foreign investment; the Government would be very concerned that placing further restrictions in the Bill could deter foreign investment in instances where it would be beneficial and, in some cases, might sit at odds with the wider principles held by the scientific community about the free exchange of ideas and the benefits of international collaboration in research and innovation. Although many noble Lords will share the concerns of the noble Lords, Lord Broers and Lord Fox, that we seek to incentivise the City to invest more funds in fledgling British businesses, as there is indeed considerably more private equity available in the US, that is not an issue that this Bill can solve.
However, I reassure the noble Lord, Lord Browne, that, as set out in the R&D road map published last year, and the innovation strategy published this year, one of the Government’s key ambitions is to become world class at securing the economic and social benefits from research and to safeguard intellectual property. We are pursuing a range of activity to achieve this, and the Government are concerned that adding legislative constraints will impact our position as a free trade champion. ARIA will be expected to collaborate closely within the UK R&D landscape—with Innovate UK, the Catapult Network or private equity partners—to find clear onward paths to take the benefits of its programmes to the next level. This is indeed the challenge rightly identified by the noble Lord, Lord Fox.
Furthermore, the patent box tax incentive will support the retention of intellectual property in the UK by allowing businesses to pay a reduced rate of tax on profits arising from exploiting patents and other qualifying products. Its aim is to encourage the commercialisation of inventions by companies in the UK. I hope that the noble Lord will recognise that we are taking action on this issue outside of legislation. It might just come down to the ideological difference between protectionism and free trade.
On occasions where it is necessary, the National Security and Investment Act 2021 will give the UK Government robust powers to scrutinise and intervene in relevant acquisitions, such as takeovers, to protect national security. This Act will sit alongside the Secretary of State’s power in Clause 5 to give directions where it is necessary or expedient in the interests of national security. I hope that this will answer some of my noble friend Lord Lansley’s remarks.
Regarding Amendment 31 in the name of the noble Baroness, Lady Chapman, the Government’s position is that ARIA must be able to operate with strategic autonomy. This includes making its own decisions on funding research, without influence from government. Clause 5 was designed to ensure that ARIA’s activities could be limited only if they posed a threat to the UK’s national security; for example, ceasing a particular contract or activities with parties from a particular jurisdiction, or ceasing activities on a specific technology. These powers are necessary to ensure that the Government can intervene to protect national security.
I assure the noble Baroness that it is not our intention to use these powers to require ARIA to spend any grants in the interests of national security concerns. Given the autonomy that ARIA will have from Ministers, it would be more appropriate to expect the Government to use other structures if any such need arose. I therefore hope that the noble Baroness will understand the intention behind this clause and that there is no need for this amendment.
Finally, regarding Amendment 31A specifically, given the nature and sensitivity of national security directions, the Secretary of State may be required to respond urgently and privately and it would not be appropriate to publish all directions made under this section. ARIA’s annual report, which this amendment seeks to add to, will align with HMT’s financial reporting manual and the normal standards of reporting. I believe this will ensure the right level of information is provided to allow appropriate parliamentary and public scrutiny of ARIA’s activities, and I am therefore unable to accept this amendment.
Lord Browne of Ladyton (Lab)
My Lords, I thank the Minister for her response and particularly for engaging with the reasons behind the amendment more than its technical perfection, which I accept it lacks. However, I will have to read carefully what she has actually said to see whether it is the reassurance that a number of noble Lords are seeking—from listening carefully to their contributions—about protecting the jewel in the crown, as it were, which is at the heart of what the Government and everybody are trying to achieve in the current environment. I will come back to that in a moment.
I also correct the omission of not thanking the noble Lord, Lord Morse—who is a good supporter to have in these sorts of issues—for adding his name to my amendment. I also tender on his behalf his apologies that because of timing he could not be here to speak to the amendment. He may get another opportunity to speak to the issues that lie behind it at some other point in the consideration of this legislation.
I thank all noble Lords for their contributions. They all added something to my knowledge and understanding of the issues I am trying to raise before the Committee in the context of this Bill. I hope there will be a collective, maybe holistic, solution to the different elements of this problem that have been identified.
I thank the noble Baroness, Lady Noakes, for pointing out to me the complexity of the area that I am in because of the different forms of organisations that will be involved. I am familiar with some of this, but clearly not as familiar as she is. However, I encourage her not just to assume that every takeover is a foreign investment. It appears to me that the more I go into this, the more that I discover that it is a not a foreign investment. I go back to the article in the Telegraph, which I quoted liberally. Ben Marlow, the chief City commentator of the Telegraph—to whom I am deeply indebted—says:
“Moreover, ministers repeatedly conflate real investment with opportunistic takeovers when they couldn’t be more different.”
He then goes on to give examples of what he thinks are real investment, and Nissan is right up there, as you would imagine.
I am impressed by that and think I understand it. However, I understand it even better when I read the Financial Stability Report of the Bank of England in October 2021, when it points out that there is a developing danger to our economy in the leveraged loan markets with:
“the trend of increased prevalence of looser underwriting standards has continued, which increases risks to end-investors.”
It goes on to say:
“Recent UK leveraged lending flows have in part been driven by a surge in private equity investment in UK businesses: 2021 private equity investment is on track to exceed its 2019 level, which itself was a strong year.”
In a broader discussion of the indebtedness of this country, it highlights this in particular, which suggests to me that these takeovers have been funded by leveraged loans.
Because I have an interest in sport, I have followed carefully certain takeovers that got a lot of coverage in the sporting media, and I can see how that could work. I am not totally convinced that these are all properly foreign investment. I agree that they have to be looked at on a case-by-case basis, but if the Bank of England is worried, I am worried.
I thank the noble Lords, Lord Fox, Lord Lansley and Lord Broers, for their helpful and supportive contributions, and my noble friends Lord Stansgate and Lady Chapman for their support. All speakers came at this issue from a different perspective, as did the Minister. This issue is worth taking away to see whether there is a holistic way to deal with it in this complex context.
Before I withdraw my amendment, I conclude by apologising to the noble Baroness, Lady Bloomfield, for anticipating that her male colleague would answer. That is not because I am inclined to look for men before I look for women in any context; it was simply because he was the Minister who wrote to me about this and the one to whom I responded. I beg leave to withdraw the amendment.
Viscount Stansgate
“(4) If the Secretary of State issues directions under this section then those directions must be reported to each House of Parliament and subsequently listed in the annual report made by ARIA to the Secretary of State.”Member’s explanatory statement
This amendment would require the House to be notified if the Secretary of State issued directions to ARIA on national security grounds.
Viscount Stansgate (Lab)
I will move the amendment, but I am about to withdraw it. In withdrawing it, could I say to the Minister—
The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)
I think the noble Viscount is trying to say that he is not moving Amendment 31A. Am I correct?
“(2A) ARIA must provide the House of Commons Select Committee on Science and Technology with such information, in such form, as the Chair of that committee may request, including by sending representatives of ARIA to appear before the committee.This is subject to subsections (4) and (5).”Member’s explanatory statement
This amendment would allow the Chair of the House of Commons Science and Technology Committee to request information from ARIA on its operation.
Lord Fox (LD)
My Lords, this amendment is in my name and that of my noble friend Lord Clement-Jones. I will try to change gear and be very brief. The amendment would allow the chair of the House of Commons Science and Technology Committee to request information from ARIA on its operation. It would place a role for the committee in the Bill. In our view, it is another way to protect ARIA’s reputation.
I am sure the Minister will say that this is unnecessary, as the Science and Technology Committee can always have an inquiry, so we need not bother. This is true, and I agree that ARIA representatives can be questioned, but we should remember the culture of secrecy that the Government are unnecessarily cloaking this organisation with. There is no guarantee that ARIA will feel compelled to respond in full, and it might use this narrative that the Bill is creating around its specialness.
I recall the debate that many of us had when we discussed the National Security and Investment Bill. Several of us were there. There, too, we discussed the need for oversight of issues that might need to remain secret. At the time, the Minister—this Minister, the noble Lord, Lord Callanan—was adamant that the appropriate Select Committee, the BEIS Select Committee, could be empowered to receive secret and confidential information. There was much debate and the Minister was strident in his view that this committee could do that job. The National Security and Investment Bill envisaged the handling of vastly more secret secrets than we are talking about here.
So the idea of trusting the Science and Technology Select Committee to scrutinise ARIA and maintain genuine secrets is consistent with how the Government have already said they want to work elsewhere. For that reason, I expect the Minister to welcome this tidying amendment, which would bring the Bill into line with his thinking on other legislation. I beg to move.
Baroness Chapman of Darlington (Lab)
My Lords, I rise briefly to support the amendment from the noble Lord, Lord Fox. It seems entirely appropriate that this committee should involve itself in asking for information from ARIA. I am fairly confident, given the Minister’s responses so far, that he would not share that view. This is the same theme that we have been on throughout all our deliberations. Whether it is this specific proposal, or one of the others that we have been trying to tempt the Government with, I am sure that we will be back at this in a couple of weeks’ time.
Lord Clement-Jones (LD)
This has been such a short debate that it is barely worth winding up. I will just reinforce the point that this is a cultural issue, in the sense that we are trying to get over here. It was interesting that the Minister made the rather runic comment that ARIA will interact with Select Committees of this House and the other place in the normal way. I think what we are trying to do is underline the fact that we need rather more than that; we need disclosure as well—otherwise, we are worried that we will not get that. Good heavens, the committee might even look at the framework document when it eventually sees the light of day. How about that? That would be quite novel.
One has seen the benefit of committee reports. The Science and Technology Committee has made extremely constructive comments around ARIA and UKRI. It has demonstrated the benefit of parliamentary scrutiny. Why do the Government think that parliamentary oversight is such a bad thing?
Viscount Stansgate (Lab)
I rise briefly to emphasise the points made by both Front Benches and to say that the Government should welcome an amendment that enables ARIA to be subject to investigation by both Select Committees in both Houses. One of the strengths of Parliament is its Select Committee system, and the reputation of the Science and Technology Committee in another place is very high. I think that, when the Government look back on ARIA in 2031, they will rather wish to have put on record their support for amendments such as this, for the reasons given.
Lord Callanan (Con)
Well, it may surprise the noble Baroness, Lady Chapman, to know that I largely agree with what she had to say on this. I agree with the sentiments that Select Committees should continue to scrutinise the work of arm’s-length bodies. However, as the noble Lord, Lord Fox, said, interactions with Select Committees are governed by a different set of rules. They are governed by a long-standing convention set out in the Osmotherly rules, which indicate that members of arm’s-length bodies
“should be as helpful as possible in providing accurate, truthful and full information when giving evidence”
to Select Committees. Furthermore, under the House’s Standing Orders, Select Committees have the power to
“send for persons, papers and records”
relevant to their terms of reference, and for anyone to refuse such a request would be considered contempt of the House.
Finally, as I have said separately, ARIA’s CEO will be personally responsible to the Public Accounts Committee, as the accounting officer. So I do really believe that Select Committees do not need our help in legislation, and probably would not want it, to be able to do their job properly and efficiently. Such guidance is sufficient for ensuring a co-operative relationship between other public bodies and the relevant committees across both Houses. We have not set these things out in legislation before, and I do not believe it should be any different for ARIA.
I hope, therefore, that, with the assurances I have been able to set out—that ARIA will work with Select Committees in the normal way, as other arm’s-length bodies do—it will not be necessary to include any specific provisions in the Bill to enable it to happen.
Lord Fox (LD)
I thank the Minister for his response and noble Lords for their contributions. I shall read closely the exact words in Hansard but, once again, the Minister seems unaware of the culture of suspicion that the Bill will create around this organisation. That did not need to happen and, in the end, the organisation does not deserve to have that as it sets off on its already difficult task. That said, I beg leave to withdraw the amendment.
Lord Callanan
Member’s explanatory statement
This amendment removes the power to treat legislative references to the Advanced Research and Invention Agency as references to another body which will be unnecessary as a result of the power to modify, amend, repeal or revoke those references under the power introduced by the Minister’s amendment at page 4, line 4.
Lord Callanan (Con)
My Lords, the Government have brought forward Amendments 35, 36, 44, 45, 46 and 48 in response to your Lordships’ Delegated Powers and Regulatory Reform Committee’s report on the Bill. I take this opportunity to thank the committee very much for its careful consideration of the Bill and the important scrutiny it has provided. One of its recommendations was that the power to make consequential provision currently contained in Clause 10 is too broad and should be omitted. I have reflected on the committee’s position and consequently given notice of my intention to oppose the Question that Clause 10 stand part of the Bill. Amendment 36 would introduce a much narrower and more specific power to make consequential amendments into Clause 8—the only remaining place it would be required.
So I will start by saying that the power to dissolve ARIA through draft affirmative regulations made under Clause 8 is, I believe, an important part of the Bill. Although the DPRRC also raised concerns about this power, there is a strong policy rationale and a clear precedent for this particular delegation of power. As the power can be exercised only 10 years after the Bill receives Royal Assent, I hope that that will give your Lordships sufficient indication of our long-term commitment to ARIA. We have clearly heard that patience will be essential if ARIA is to successfully pursue its most ambitious research and innovation. It must therefore have the opportunity to prove itself before it is judged. I therefore welcome the Commons Science and Technology Committee’s recognition in its report into ARIA that
“these projects will take a long time, potentially 10-15 years, to ‘bear fruit’”.
In terms of precedent, under powers set out in the Public Bodies Act 2011, several bodies established by primary legislation have been dissolved using secondary legislation. The Administrative Justice and Tribunals Council, for example, was created by the Tribunals, Courts and Enforcement Act 2007 and abolished using powers in the Public Bodies Act in 2013. I of course recognise that the super-affirmative procedure was applied in such instances, but in that particular case this was appropriate in the context of much broader powers. The Public Bodies Act gave Ministers delegated powers not just to abolish bodies but to merge them or change their governance structure and functions. This was also in the context of widespread public body reform, and it was therefore appropriate that the use of the powers was subject to a higher level of scrutiny.
In contrast, the power in Clause 8 is narrow, such that ARIA can only be dissolved. It cannot be merged or have its functions or governance changed in any way, as set out in my response to the DPRRC last week. I hope I have therefore provided sufficient reassurances that this power is justified.
I turn to the revised power to make consequential provision that Amendment 36 introduces. The first thing to say is that consequential provision could now be made in consequence of regulations made only under Clause 8, rather than any provision of the Bill, which represents a substantial narrowing of the previous power contained in Clause 10, which I will oppose.
The second point to emphasise is that, as a result, the power could be exercised only on one occasion, obviously. ARIA can be dissolved only once, and there would be a single opportunity to make consequential amendments in this way. However, ARIA could not be dissolved for at least 10 years, so at least 10 years’ worth of legislation will be passed or made before the power to make consequential amendments could be exercised. It is likely that there will be references to ARIA in those 10 years of future legislation. This amendment extends the power to make consequential amendments to legislation whenever passed or made, so references to ARIA that might appear in future can be removed, leaving a tidy and orderly statute book. I hope that all noble Lords agree that this is a sensible approach.
The final point to make here is that, as a result of this change to the power to make consequential provision, minor and technical changes to other parts of the Bill are required. Amendments 35, 44, 45, 46 and 48 to Clauses 8(4)(e), 11, 12 and 14 fall into that category. These correct the Clause 8 provisions and those on regulations, interpretation and commencement to reflect the replacement of Clause 10. They are consequential on that substantive change and are therefore necessary.
I hope that noble Lords will take a similar view and recognise that, in bringing forward these amendments, we are both taking the right approach and demonstrating the Government’s commitment to engage with and act on the DPRRC’s recommendations. I therefore beg to move.
The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)
I draw your Lordships’ attention to the fact that, in this group, government Amendments 44, 45, 46 and 48 do not appear as government amendments on the printed list.
Lord Fox (LD)
My Lords, I am grateful for the Minister’s comments. Without sounding whiny, this would have benefited from a “Dear colleagues” letter in advance. It caused me a little head scratching over the weekend when I was trying to fathom the purpose of these amendments, which the Minister has now told us. I guess it kept me busy.
We are delighted that the Government have accepted one of the two recommendations of the Delegated Powers and Regulatory Reform Committee. I am speaking to oppose the Question that Clause 8 stand part of the Bill. As the Minister referred to, this is the other recommendation of the DPRRC. That committee was clear in its assessment of the Bill:
“Although ARIA is to be created by Act of Parliament, clause 8 allows Ministers to dissolve it by an affirmative statutory instrument. They cannot do so for another ten years and they must consult ARIA before doing so. They do not have to offer any reasons.”
The DPRRC continues:
“We object to this on principle. If Parliament creates a body, it should be for Parliament to dissolve the body. It should not be for Ministers to dissolve it by statutory instrument, even an affirmative instrument.”
The DPRRC could not be clearer. The Minister’s response to that was simply that he did not agree. We knew he would not agree, but this is a very influential committee and what it says matters.
Although I am calling for Clause 8 not to stand part of the Bill, there are parts of that clause that the Government might want to salvage. This gives the Government an opportunity to come back, perhaps with another lengthy set of amendments on Report. It is a chance for the Minister to accept the view of this influential committee, just as he has on Clause 10.
The Minister will point to the fact that this statutory instrument is affirmative, but he will do so knowing that this is a poor alternative. The dissolution of ARIA will throw up issues—not the sort of issues faced by the organisation that the Minister chose to use as an example of one which a statutory instrument has been used to dissolve in the past. For example, when and if ARIA comes to be dissolved, the fate of assets will be crucial. By then, the taxpayer will probably have poured billions of pounds into creating those assets. Parliament needs a say on how they will be allocated in future yet, as we know, statutory instruments are unamendable—take it or leave it. As I have often rehearsed on other Bills, your Lordships’ House virtually always takes them, sometimes with a touch of regret, but takes them none the less. Primary legislation, however, is amendable. It gives Parliament a role in deciding the fate of the organisation and these assets, which, I remind the Government, the taxpayers have created through their investment. That is just one of the recommendations of the DPRRC. It should be honoured. I beg to move.
Baroness Chapman of Darlington (Lab)
It is a pleasure to follow the noble Lord, Lord Fox. I have a lot of sympathy with what he has to say. We welcome the government amendments, which act on the concerns of the Delegated Powers and Regulatory Reform Committee and remove Clause 10 from the Bill. We can only hope that this is something of a sign of good habits to come and that the Government will prove attentive to the committee’s concerns about other legislation.
On Clause 8, where the Government have chosen not to act on the committee’s objection, rather than repeat everything that the noble Lord, Lord Fox, just said, I look forward to the Minister’s reply. I think the best way to sum up the DPRRC’s concern over the clause is that the Government were designing the law for convenience rather than necessity. It also made the point that, after 10 years or longer of ARIA’s operation, the agency would be well established and dissolving it might be a bit more complicated than Clause 8 suggests. Let us hope that ARIA makes it to 10 years.
We are content with the changes made by this group, but it would be helpful to the Committee for the Minister to respond in a bit more detail to some of the concerns. Can he outline how the Government envisage the winding down of ARIA would be managed? In particular, how would parliamentarians be kept informed and, aside from ARIA, who does he think it might be a good idea to consult before bringing forward regulations under Clause 8?
Lord Callanan (Con)
I can be very brief, because I do not have a lot to add to what I said earlier, beyond acknowledging to the noble Lord, Lord Fox, that it might have been helpful for me to write a “Dear colleagues” letter informing him and other Members that we had tabled these amendments. They did have the information in advance, but it may have been more helpful specifically to draw noble Lords’ attention to it.
In response to the noble Baroness, Lady Chapman, I have set out why we think the power is justified. In terms of asking us to set out further thoughts on how we might wind it down, we have not even established it yet. Beyond taking the power potentially to do this in 10 years’ time, on the specific circumstances in which this might arise and what might happen in consequence, Parliament will clearly be kept informed through the normal statutory instrument process—
Baroness Chapman of Darlington (Lab)
I have to respond because of the mocking tone of the Minister. He said I should not be asking how he would be winding this up—but it was he who put in the clause about winding up the agency that he is trying to create, so I do not think it is unreasonable to press him on exactly how that might be implemented.
Lord Callanan (Con)
Certainly I apologise to the noble Baroness if she interpreted my remarks as mocking: I was not at all implying that. I was just pointing out that we are still in the process of setting up the agency and recruiting the senior leadership team. I am justifying why the power is in the Bill. The noble Baroness asked me to set out further thoughts on how we might write down something that might happen in 10 years’ time. I will write to her if there is any further information, but I think I am correct in saying that not a great deal of thought has been given to how we might abolish something that we have not yet set up. I did not intend a mocking tone: it was just a point of fact.
I do not have anything to add to what I said earlier. We think the power is justified and there is a precedent for this—but I totally accept that this might be a point of difference between us.
Baroness Noakes
“Protection of ARIA’s independence
In exercising functions in respect of ARIA, the Secretary of State must have regard to the need to protect its independence.”Member’s explanatory statement
This new Clause would require the Secretary of State to have regard for the need to protect ARIA’s autonomy.
Baroness Noakes (Con)
My Lords, at the request of my noble friend Lady Neville-Rolfe and with the agreement of the Committee, I will move her amendment. My noble friend had hoped we would have a third Committee day and would go slowly today so that she could move it herself on Wednesday. However, she realised earlier this afternoon that that was not going to be the case, so I agreed to move it. I will be as brief as possible, because this is a relatively small point. The intention of the amendment is to underline the Government’s commitment to the independence of ARIA, and it requires the Secretary of State to protect the independence of ARIA.
My noble friend tabled the amendment because she heard the discussions on our first day in Committee about the purpose of ARIA and its mission, including whether it should be directed to act only in certain areas, particularly in relation to climate change. She was very concerned to ensure that the spirit of ARIA—that it should be unencumbered and able to think the unthinkable wherever it wants to pursue its issues—should be preserved.
Obviously, huge amounts of money are spent on research and development overall by the Government and by other organisations in the economy, all of which are subject to lots of different kinds of checks and balances, and controls and directions. But ARIA is supposed to be very different, and it would be easy to start altering the way in which it worked: for example, by attaching conditions to grants that are made to it, and by constraining or confining what it did, using the powers in the Bill. But ARIA is going to be a success only if it is genuinely independent of government, if it is not dancing to the Government’s tune in any sense, and if it is allowed to go wherever it wants in seeking new areas for research and innovation. I think the Committee understands that ARIA’s independence from government should be preserved.
So this very small amendment underlines the concepts that we believe underlie the creation of ARIA, and I hope that it will be helpful to the Government in enshrining its independence from government. I beg to move.
Baroness Chapman of Darlington (Lab)
I just want to make a quick observation about this. Obviously, we have argued to have climate as ARIA’s overriding priority, and we stand by that—but should that not be the case, this amendment would not cause any problems were it not for the fact that the Government were declining amendments on oversight and scrutiny. I do not think that the two are incompatible. You can have an independent agency, and we would not wish to have government interference, but there is no compromising of independence by allowing for freedom of information or some of the other measures that we have suggested.
Lord Fox (LD)
My Lords, I took the time to discuss this amendment with the noble Baroness, Lady Neville-Rolfe, and I congratulate the noble Baroness, Lady Noakes, on completely representing her views on it—but, strangely, we approach this from opposite directions and land in the same place, similarly to the noble Baroness, Lady Chapman. There is a false dichotomy here. Just because an organisation has a purpose does not mean to say that it cannot be independent. On that basis, it is important for it to be independent, and it is equally important for it to have a purpose—and that purpose should be climate change.
Lord Callanan (Con)
I thank the noble Baroness, Lady Noakes, for her comments and for stepping so ably into the breach to represent my noble friend Lady Neville-Rolfe in her amendment. It is perfectly right that we have returned once again to the central issue of ARIA’s independence, because it is a core part of equipping it for its unique funding approach and for the distinct contribution that we expect it to make to the UK’s R&D landscape.
I support the ambition for the Secretary of State to be mindful of protecting ARIA’s independence in all its interactions with the organisations, where such interactions are required by the Secretary of State’s very limited functions. However, I differ with my noble friend on how we protect its independence in a practical way. I submit that it would be the accumulation of many small things—perhaps creeping influence over strategy, new mechanisms of oversight, or ever-increasing reporting demands on issues of political priority—that would be the arena in which ARIA’s independence would be compromised or lost.
My noble friend Lord Willetts, who is not in his place, spoke eloquently on Wednesday about the challenges he has experienced in trying to carve out space for new approaches in the current R&D system. At that stage, we also had a fairly extensive debate on the accumulated obligations placed on ARIA. We considered how those obligations might be balanced with this vital principle of independence, in the context of amendments which, I believe, would have diminished ARIA’s autonomy in a way that would have been entirely counterproductive. If we truly wish to safeguard ARIA’s independence, it is on those issues that we must look to do it, and there is no easy alternative.
I do not suggest that this is a moment to reopen that debate, but I submit that we cannot have this conversation on independence in an abstract way, divorced from consideration of the practical and operational ways in which it will or will not be given to ARIA. I am sure that there will be plentiful opportunities to discuss this important issue in future. I hope, on the basis of the reassurances I have been able to provide, that my noble friend will, on behalf of my noble friend Lady Neville-Rolfe, feel able to withdraw the amendment today.
Baroness Noakes (Con)
My Lords, let me thank all noble Lords who have spoken. I agree with the noble Baroness, Lady Chapman, that independence is not incompatible with the Freedom of Information Act and other aspects that are included in the proposition for ARIA in this Bill. However, I do not think that independence is compatible with prescribing that it should focus only on climate change. We will have to agree to differ on that point.
The point of this amendment was that the Secretary of State had to respect the independence of ARIA, not that everybody else had to respect that independence, and I am not sure that I got the ringing endorsement of the Secretary of State not interfering in ARIA. However, we have had a good debate, and I am sure that my noble friend Lady Neville-Rolfe will enjoy reading it in Hansard. With that, I beg leave to withdraw the amendment.
Lord Callanan
Member’s explanatory statement
This amendment removes the amendments that would have treated the Advanced Research and Invention Agency as a reserved matter in relation to Scotland and Northern Ireland and funding provided to it through the Science and Technology Act 1965 as a reserved matter in Scotland.
Lord Callanan (Con)
My Lords, the Bill as introduced to the House added ARIA to the lists of reserved bodies within the three devolution Acts. That approach would have conferred on ARIA the same constitutional status as UKRI, which is the UK’s primary public R&D funder. More importantly, it would also have ensured ARIA’s independence by placing it outside the competence of the devolved legislatures.
Since then, my ministerial colleagues and officials have been in close discussions with all three devolved Administrations throughout the passage of the Bill, on the need for legislative consent Motions to be passed in the Scottish Parliament, the Senedd and the Northern Ireland Assembly. During those discussions, principled objections were raised to the creation of ARIA as a reserved body. As a result, we have worked—as I am sure the Committee would expect us to do—to develop an alternative way of guaranteeing ARIA’s independence, through something called the “agreement on the independence of ARIA”, which all four Administrations of the UK have said that they will abide by, and which will sit beneath the overarching memorandum of understanding on devolution.
I am delighted that the text of this document has now been agreed by all four Administrations of the UK and that we have been able to share it with noble Lords in advance of this discussion. I apologise for the fact that we were not able to provide the opportunity for noble Lords to consider this document at greater length before the Committee. However, I wanted to share it as soon as possible, albeit fairly shortly in advance, rather than not sharing it at all. I am confident that this agreement will allow ARIA’s important characteristics to be protected. On that basis, I am content to remove, through Amendments 37 and 40, the reservations that we originally placed in the Bill.
ARIA will remain a single UK-wide organisation able to find and fund the most exciting projects in all regions and nations of the UK. Through the agreement, all four Administrations of the UK have committed to upholding the important principles of ARIA’s strategic autonomy, operational autonomy and minimal bureaucracy.
Lord Lansley (Con)
My noble friend referred to the agreement having been shared with us, but I am not aware of having seen it or where it was shared with me.
Baroness Noakes (Con)
My noble friend also sent a letter to me following last week’s Committee; that was shared only with the noble Lord, Lord Browne of Ladyton. My noble friend’s department has form on not sharing widely with those in Committee when things are circulated. Can he go back to his department to ensure that all active members of the Committee get access to all the information circulated in response to its deliberations?
Lord Callanan (Con)
My apologies—we shared it with those who had contributed to the debate on the subject previously. In retrospect, we should perhaps have shared it more widely; we will now do so.
As my noble friend Lady Bloomfield set out last week, all four Administrations are equally committed to facilitating ARIA’s seamless operation throughout the UK. I hope that this will provide some comfort, in particular to the noble Baroness, Lady Randerson, who raised some important points on this issue at the time. My department will remain as ARIA’s sponsoring department to reflect the power of the UK Secretary of State, who alone has the power to fund ARIA through Clause 4 of the Bill. In our view, the accountability for that use of public money must therefore flow through the UK Government.
In addition to these protections for ARIA’s autonomy, the agreement provides an input mechanism from a new forum of science advisers to the four Administrations of the UK, directly to ARIA’s executive leadership. While there will be no obligation for ARIA specifically to respond to this input, the scientific challenges relevant to the policy priorities of all four Governments will be jointly communicated.
I appreciate that noble Lords have raised questions on how this will work in detail. At the moment this is necessarily a high-level document and clearly there is more work to do, at a working level, to flesh out this agreement between the UK Government and the devolved Administrations. This work is ongoing and will be the subject of further work in the months to come. However, as a result of it, Ministers in Scotland, Wales and Northern Ireland have all now given in-principle consent for the Bill on the basis of this approach. On that basis, I hope that noble Lords will similarly be able to support it. I beg to move.
Lord Lansley (Con)
It was my intention to contribute to this debate briefly. Since the Minister has referred to the agreement, I probably ought to read it and digest it before venturing any additional comments.
I just point out to the Minister that the timing of all this is very odd. As far as I could have seen, and as I understood it in preparing for this debate, as of 9 November the Scottish Minister was not in the position of thinking that there was any agreement with the Government. He wrote to the convener of the Scottish Parliament on 9 November, set out the sequence of events stretching back to March, said that the Scottish Government, like the Welsh Government, were not in a position to agree legislative consent and gave the reasons he would not do so.
These amendments went down on 12 November, I think, so somewhere between 9 and 12 November the Government decided to do this thing. During the course of last week, they must have immediately entered into discussions with the devolved Administrations on the basis that they would give legislative consent. They have made clear all the way through that if it was not reserved, they supported the principle of the Bill and would give legislative consent to it. Now we are presented with this agreement and the consequences.
My noble friend is absolutely right; there are consequences. We had a debate last Wednesday about the role of the Chief Scientific Adviser in relation to the board, and the devolved Administrations have been looking for their chief scientific advisers to have the same status as the United Kingdom Government’s Chief Scientific Adviser. I think that is not what they are looking for now; it clearly would be unhelpful were that to be the case. It would have been helpful to have told us about that in the course of that debate last Wednesday and to have prefigured the fact that we come on to this at a later stage.
At the end of the day, they get money. Unless I am missing something, if you shift something from a reserved matter to a devolved competence, Barnett consequentials flow from that. What are they? How is the budget to be divided? Is it to be divided or is it going to be added to by way of the Barnett consequentials? I think we should be told that. Will that therefore mean that we anticipate that the other devolved Administrations will make grants to ARIA? Does this agreement suggest that there will be a pooled budget with grants made by the Secretary of State but that because of the nature of ARIA’s independence the grants will be in a global sum with few, if any, conditions attached to them and the devolved Administrations are agreeing to that? It begs questions. At the moment, I for one cannot debate the consequences of this set of changes because we do not have the information on which to do it. Even if we maybe let it through on the grounds that it helps to get the legislative consents through, I think we may have to return to some of the consequentials on Report.
Baroness Randerson (LD)
My Lords, I am pleased to follow the noble Lord, because he shares some of my concerns. I thank the Minister for communicating the information earlier today. Obviously I will read the actual agreement with great interest, but of course one accepts the noble Lord’s assurance that this agreement stands and will operate effectively.
The noble Lord, Lord Lansley, raises a good point about the previous objections of the devolved Administrations, which now appear to have been withdrawn. At what date can we expect legislative consent Motions to come forward from the devolved Administrations?
I also have a detailed question. In an earlier debate, my noble friend Lord Fox made the point that having a purpose is not at war with the concept of independence for an organisation. I was thinking of that point as I read the paragraph in the Minister’s communication that says the agreement
“allows for the UK Government Chief Scientific Advisor, and scientific advisors or equivalent representatives on behalf of Scotland, Wales and Northern Ireland to jointly communicate to ARIA the scientific challenges relevant to the policy priorities of their respective administrations. In keeping with ARIA’S autonomy, there will be no obligation for it to direct funding towards these issues.”
That worries me slightly. I am not arguing that ARIA should follow the separate views of the four nations, but if all four nations, via their scientific advisers, were to say to ARIA that one of the most important government priorities should be the road to zero carbon—I very much hope they would say that—would the Government really be happy for ARIA to invest in and champion a technology that increases CO2 emissions? There are serious, fundamental points, rather than points of detail, that we still need to take into account on ARIA’s purpose and it working with the grain of government policy—not dotting every “i” and crossing every “t” but working with the grain of public policy.
Finally, I underline the concerns and questions about Barnett consequentials. I will not repeat the point; it is absolutely clear that this will have implications. I look forward to the expressed views of the devolved Administrations and the detail of the agreement when it becomes public. Given the information we have been given today, I am sure it will be possible for us to scrutinise it before Report.
Baroness Chapman of Darlington (Lab)
It was slightly surprising to get this agreement so late in the day. Although I have seen that it exists, I cannot pretend that I have properly digested it or discussed it with colleagues in, for example, the Welsh Assembly. I would have been very keen to do that. It is very clear that a legislative consent Motion was not going to be forthcoming as things stood and that if the Government wanted ARIA to embark with support from the devolved Administrations they had to do something. There is now this agreement.
I would accept the Minister’s assurance, but can he clearly confirm that this agreement is not just his but has been reached with the devolved Administrations and that they are all fully signed up to it, before we allow this to go through? My life will not be worth living if I go back to my office and find that we have agreed to something that has not secured the full support of—to pick one at random—the Welsh Assembly. I would really appreciate it if the Minister could confirm that. Can he also speak to this issue of Barnett consequentials, which I had not considered would be part of the debate? How do the Government think this would or would not have any consequentials for funding for the devolved Administrations?
Lord Browne of Ladyton (Lab)
My Lords, I rise to be genuinely helpful to the Minister. It appears that I am the most privileged Member of this Committee; everyone’s correspondence seems to be copied to me, although I am not sure if in this case it was a privilege, as I got it exactly one hour and five minutes before the Committee was due to sit. It has a draft agreement of 19 clauses, one of which refers to other agreements—too many for me to count in the small print I have on my phone—so I have not given it any serious consideration.
I think it was copied to me because I raised a question in an intervention to seek assurance that all aspects of this legislation that engaged with devolution issues had been agreed with the devolved Administrations. It turns out that there were at least aspects still under discussion. I understand that that can happen. I suggest that, because of the complexity of this, the Government arrange a meeting, between now and the next time most of us meet again at the next stage of this Bill, with interested parties to explain the situation with devolution. If the Government agree that there are Barnett consequentials—even if they do not, but can be persuaded that, in not agreeing, they are wrong—they can then say how they will deal with that significant complexity.
We must thank the noble Baroness, Lady Randerson, and the noble Lord, Lord Fox, for raising in some detail last time we met where we stand on all these issues. None of us was comfortable with any of this and none of us was as sited as the Government were of everything that is going on. At the very least, there should be the offer of some engagement with Members of this Committee who are interested in these issues and would raise them in some context on Report. This should happen in sufficient time before Report for it to be meaningful, so that some of these matters, which may lend themselves to simple enough explanations, can be put to bed.
Lord Fox (LD)
My Lords, this has obviously been an unsatisfactory semi-debate. That dissatisfaction has rung out in various corners of the Room. The advice of the noble Lord, Lord Browne, seems good; if we continue on our current trajectory, Wednesday afternoon will have some time in it. I will not repeat the questions which have been raised, but I add another which we would like to address on Wednesday afternoon when the Minister calls us together to explain. Is this outwith the framework agreement process? Is there a separate process going on? I add that to the list of unanswered questions.
Lord Callanan (Con)
I thank noble Lords for their comments. First, on the agreement, the text has been agreed by Ministers in Scotland, Wales and Northern Ireland. I thought it best to share it as soon as possible; I wanted to share it in advance—it was not far in advance but it was slightly in advance—rather than not share it at all. We originally committed to sharing it ahead of Report; I will ensure that all noble Lords have the opportunity properly to scrutinise it ahead of that and we can return to the issue then. Once noble Lords have had an opportunity to discuss it, I would be very happy to arrange a further briefing with officials for anyone interested in this subject.
Lord Callanan
“Income Tax (Earnings and Pensions) Act 2003
6A_ In section 61L(1) of the Income Tax (Earnings and Pensions) Act 2003 (meaning of “public authority”), after paragraph (b) insert—“(ba) the Advanced Research and Invention Agency,”.”Member’s explanatory statement
This amendment provides for the Advanced Research and Invention Agency to be a public authority for the purposes of Chapter 10 of Part 2 of the Income Tax (Earnings and Pensions) Act 2003 (workers’ services provided through intermediaries to public authorities or medium or large clients).
Lord Callanan (Con)
Amendments 38, 41 and 43 are consequential on the omission of Clause 10 from the Bill and the narrowing of the power we talked about earlier to make consequential amendments through regulations. The Delegated Powers and Regulatory Reform Committee suggested that any necessary consequential amendments should be added to Schedule 3, so we are responding to that recommendation here. The amendments apply to ARIA a set of relevant obligations that would usually apply to “public authorities”, which are sometimes defined in reference to Schedule 1 to the Freedom of Information Act 2000, which, of course, ARIA is not listed in. Bespoke provisions therefore are required.
I will briefly summarise the obligations that will apply to ARIA as a result of these amendments. The first relate to the Income Tax (Earnings and Pensions) Act 2003 and the Social Security Contributions (Intermediaries) Regulations 2000, with which I am sure all noble Lords are intimately familiar. This legislation includes the off-payroll working rules, which are designed to ensure that individuals working like employees but through their own company—usually a personal service company—pay broadly the same income tax and national insurance contributions as those who are directly employed. These rules have been reformed over the past five years to improve compliance by moving the responsibility for determining whether the off-payroll working rules apply from the individual’s personal service company to the client engaging them. That reform came into effect in the public sector in April 2017, and in the private and voluntary sectors on 6 April this year. I do not believe that there is a justification for ARIA to be treated differently from any other public bodies here.
The second element is the Data Protection Act 2018, which gives the GDPR effect in UK law. Through the Bill as it was introduced, ARIA would already be subject to the normal requirements of the GDPR, but the obligations on public authorities are different, in terms of the bases for data processing and governance and oversight arrangements. Similarly, in this case, I do not believe that there is a justification for ARIA to be treated differently from other comparable bodies in this important area.
Finally, the amendments to the Enterprise Act 2016 and Small Business, Enterprise and Employment Act 2015 allow us to avoid a situation where ARIA is considered part of the private sector for the purposes of business impact assessments of regulatory activities. Again, I do not believe that it is appropriate for impacts to ARIA, as a public sector body, to be included in any such considerations. I also do not believe that it would be appropriate for ARIA to avail itself of the support available through the office of the Small Business Commissioner, which is intended for private sector entities. So, while public authority obligations in other legislation have been considered, they were not assessed to be sufficiently relevant to ARIA to make further amendments here. I beg to move.
Lord Clement-Jones (LD)
My Lords, there is a splendid irony in what the Minister has just said as he trotted through the contortions of these amendments. I think he had a former life as a contortionist: it was quite extraordinary, really.
I do not think that these amendments are consequential; I think they are “Oops, we forgot something, actually”, as far as the Bill is concerned. Because of the way they treated the FoIA, suddenly everybody woke up to the fact that, for the purposes of that, ARIA was not a public body, because the Government had been so keen not to define it as a public body and therefore it had to be defined as a public body for the purposes of other legislation in a rather different way. So I do not think that this is consequential—except that it is something that probably should have been thought about when the original FoIA omission decision was made. No doubt everything will be clear after Report: the Minister will have his definition of a public body, everything will be logical and clear, and we will not have to have contortions such as this.
Baroness Chapman of Darlington (Lab)
I thank the noble Lord for his explanation, which I find rather more digestible than the Minister’s. It would be very inconsistent of me not to make this one point: we would not need to be going through all of this had the Government done what they ought and subjected ARIA to FoI. It shows what a strange decision it was that the Government have had to do all this. I just wanted to make that point, really. I do not think there is much more to say about all of this except that, should the Government change their mind, or have their mind changed, on Report, we might have to have this kind of carry-on again as a consequence. Let us hope that we do.
Lord Callanan
Member’s explanatory statement
This amendment removes the amendments that would have treated the Advanced Research and Invention Agency as a reserved matter in relation to Wales and funding provided to it through the Science and Technology Act 1965 as outside the functions of the Welsh Ministers.
“Small Business, Enterprise and Employment Act 2015
10A_ The Small Business, Enterprise and Employment Act 2015 is amended as follows.10B_ In section 7 (sections 4 to 6: interpretation), in subsection (2), for the definition of “public authority” substitute—““public authority” means—(a) a public authority within the meaning of the Freedom of Information Act 2000 (see section 3 of that Act), or(b) the Advanced Research and Invention Agency;”.10C_ In section 22 (sections 21 and 23 to 25: “qualifying regulatory provisions” etc), in subsection (8), for the definition of “public authority” (but not the “and” immediately after it) substitute—““public authority” means—(a) a public authority within the meaning of the Freedom of Information Act 2000 (see section 3 of that Act), or(b) the Advanced Research and Invention Agency;”.10D_ In section 27 (sections 21 to 25 etc: interpretation), in subsection (6), for the definition of “public authority” (but not the “and” immediately after it) substitute—““public authority” means— (a) a public authority within the meaning of the Freedom of Information Act 2000 (see section 3 of that Act), or(b) the Advanced Research and Invention Agency;”.10E_ In section 28 (duty to review regulatory provisions in secondary legislation), in subsection (4), for the words following ““public authority”” substitute “means—(a) a public authority within the meaning of the Freedom of Information Act 2000 (see section 3 of that Act), or(b) the Advanced Research and Invention Agency.”Enterprise Act 2016
10F_ In section 13 of the Enterprise Act 2016 (definitions used in Part 1), in the definition of “public authority”—(a) omit “or” at the end of paragraph (a);(b) after paragraph (b) insert “, or(c) the Advanced Research and Invention Agency.”Data Protection Act 2018
10G_ The Data Protection Act 2018 is amended as follows.10H_ In section 7 (meaning of “public authority” and “public body”)—(a) in subsection (1), after paragraph (b) (but before the “and” at the end of that paragraph) insert—“(ba) the Advanced Research and Invention Agency,”;(b) in subsection (4), for “described in subsection (1)(a) or (b)” substitute “described or mentioned in subsection (1)(a), (b) or (ba)”.10I_(1) Section 21 (definitions for purposes of Chapter 3 of Part 2) is amended as follows. (2) In subsection (5), in the definition of “FOI public authority”—(a) omit “or” at the end of paragraph (a);(b) after paragraph (b) insert “, or(c) the Advanced Research and Invention Agency.”(3) At the end insert—“(8) In relation to the Advanced Research and Invention Agency—(a) for the purposes of subsection (6)(a)—(i) section 3(2) of the Freedom of Information Act 2000 is to be read as if “public authority” included that Agency, and(ii) section 3(2) of the Freedom of Information (Scotland) Act 2002 (asp 13) is to be read as if “authority” included that Agency, and(b) subsection (7) does not apply.”Social Security Contributions (Intermediaries) Regulations
10J_(1) In regulation 3A of the Social Security Contributions (Intermediaries) Regulations 2000 (S.I. 2000/727) (meaning of “public authority”), after paragraph (b) insert—“(ba) the Advanced Research and Invention Agency,”.(2) In regulation 3A of the Social Security Contributions (Intermediaries) (Northern Ireland) Regulations 2000 (S.I. 2000/728) (meaning of “public authority”), after paragraph (b) insert—“(ba) the Advanced Research and Invention Agency,”.”Member’s explanatory statement
This amendment inserts amendments of the Small Business, Enterprise and Employment Act 2015, the Enterprise Act 2016, the Data Protection Act 2018 and certain regulations to treat the Advanced Research and Invention Agency in the same way as a body that is a public authority for the purposes of the Freedom of Information Act 2000.
Lord Callanan
“UK GDPR
12_(1) In Article 2 of the UK GDPR (material scope), in paragraph (5)(d), for “and (7)” substitute “to (8)”.(2) In sub-paragraph (1), “UK GDPR” has the same meaning as in the Data Protection Act 2018 (see sections 3(10) and 205(4) of that Act).”Member’s explanatory statement
This amendment is consequential on the Minister’s amendment at page 13, line 35, so far as it inserts section 21(8) of the Data Protection Act 2018.
Lord Callanan
Member’s explanatory statement
This amendment is consequential on leaving out Clause 10.
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment at page 4, line 29.
Lord Callanan
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment at Clause 8, page 4, line 4.
“(1A) Before regulations may be made under this section, the Secretary of State must lay before Parliament a copy of the framework agreement outlining—(a) the relationship between ARIA and the Department for Business, Energy and Industrial Strategy,(b) the relationship between ARIA and any other relevant government departments, (c) the interaction between ARIA and existing research and development, innovation, translation and funding institutions; and(d) any further relevant reporting requirements of ARIA.”Member’s explanatory statement
This amendment would require the Secretary of State to publish a copy of ARIA’s framework agreement before regulations can be made to commence the substantive parts of the bill.
Lord Fox (LD)
My Lords, this is the last group of amendments in Committee, and it is probably just as well, because if the Minister has any more jelly babies I suspect he will go into a coma. We have established through both our useful meetings with him and Second Reading that the framework agreement is a crucial document to point the way to how ARIA will operate and its future relationships. Without knowledge of that document, we are being asked to approve all manner of clauses, as we just have, that set ARIA in motion before we know how it will operate—actually, before we know what it is.
With Amendment 47, my noble friend Lord Clement-Jones and I are offering the Minister an alternative to the Government’s magical mystery tour approach. Remember that this tour comes with a ticket price of £800 million of taxpayers’ money—and that is just the start. The Minister is loading us on to his metaphorical charabanc, ready to go who knows where, flat cap in place. The amendment is intended to remove some of that mystery. Thanks to it, before the vehicle can be put in gear, we must at least be told where we are going.
I have perhaps laboured that image a little much but, as I said, it is the last group. More prosaically, the amendment would require the Secretary of State to publish a copy of ARIA’s framework agreement before regulations can be made to commence the substantive parts of the Bill. It continues our theme of ensuring that Parliament has sight of, and an appropriate say in, the progress of this important institute, and it would do so without impeding ARIA’s progress or meddling with its future. In this way, the Minister can remove the mystery without harming the magic, so I beg to move.
Baroness Noakes (Con)
If ARIA does not exist until the Act is commenced, how can there be a framework agreement that involves ARIA being a party to the agreement to be tabled before the commencement of the Act?
Lord Clement-Jones (LD)
My Lords, I do not need to do very much more. My noble friend is finishing this symphony of a Bill Committee con brio, with metaphorical charabancs, mystery and magic. What more do we need at the end of a Bill stage?
I point out that the equivalent UKRI document of 2018 runs to 60 pages and 16 chapters. It covers a huge range of information: the purpose of UK research and innovation, its powers and duties, its aims, the partnership principles, and the responsibilities of the CEO. It then goes on to deal with devolution and relationships with other bodies, public appointments to UKRI, reviews of boards and committees, and so on. There is some really important content in the UKRI framework document, and I am sure that the ARIA document will not be very different. I very much hope that the Minister will reconsider the decision. On the arrival of the CEO, the Minister said that it followed the Treasury’s standard template. Even something in draft, which does not have to be agreed by the CEO, would seem fundamental to our understanding of what ARIA is going to do.
Viscount Stansgate (Lab)
My Lords, I support Amendment 47, tabled by the noble Lords, Lord Fox and Lord Clement-Jones. I feel at a bit of a disadvantage, if I can say to my noble friend Lord Browne, that I have no Daily Telegraph article that I can quote in support of what I am about to say. Perhaps he has one in his pocket and he can pass it along.
The relationships between different parts of the scientific landscape do matter. One interesting thing about the period that we have lived through in the past year and a half has been the changing nature of the role and influence of the Government’s Chief Scientific Adviser. We had a brief mention of that in Committee last week. Amendment 47 refers to the types of relationships that ARIA might have with UKRI, but in particular I would be interested in anything that the Minister might have to say about the relationships between ARIA and the new science and technology council established by the Prime Minister, in which the Chief Scientific Adviser is of course a major figure. Then there is the existing Council for Science and Technology, in which the Chief Scientific Adviser is also involved, and the new Office for Science and Technology Strategy, which has been set up only recently, in which again the Chief Scientific Adviser is involved. Indeed, he is not only the Government’s Chief Scientific Adviser—he is now the Government’s Chief Technology Adviser.
We discussed last week why it had been put in the Bill that the Chief Scientific Adviser should be a member of the board of ARIA. I shall not rehash an old debate, but it is an important role. Undoubtedly, any Member of this Committee or anyone who chairs a Select Committee in this House or another place will want to examine the framework document in detail at a hearing, and I would welcome what the Minister has to say about how that document and how relationships between ARIA and others will focus on the Chief Scientific Adviser.
Baroness Chapman of Darlington (Lab)
Committees go in cycles: they can get very serious, but we are now getting towards the end, where consideration can descend into banter, if we are not careful. That is not something that I thought I would experience at this end of the building, but it is quite welcome.
I understand exactly where the noble Lords, Lord Fox and Lord Clement-Jones, are coming from with this, taking into account what the noble Baroness said. The framework document has been referred to so many times during our consideration; it has done a lot of heavy lifting, yet we have not been able to see a draft of it. That is something that I regret, because it would have been useful to know about it. We got lots of assurances about what it will and will not do, but we have not seen a draft that will enable us to test that or tease it out. That is a shame, and I think that is what is behind the amendment.
It is not great when the Government do this and ask a Committee to take these things on trust, or to take the intention. It is not how it is best for us to work. We take these things and our role in this process seriously, and we want to know how ARIA will operate in relation to the departments and bodies outlined in the amendment.
Lord Browne of Ladyton (Lab)
I remind the Minister that, not so long ago, he secured Amendments 37 and 40 on the basis of the sight, by a limited number of us, of a draft agreement. It is not unreasonable to ask him to at least consider reciprocating.
Lord Callanan (Con)
I thank Members who have contributed to this brief debate. I am disappointed that the noble Lord, Lord Browne, did not exercise us again with his Daily Telegraph subscription, which I was very impressed by. I congratulate the noble Lord, Lord Fox, on saving the best to last with his bravura amendment. He has obviously been searching his thesaurus over the weekend for appropriate analogies. It was well moved and I do understand the seriousness of the issue and the noble Lord’s intention, which relates to the desire, as we have heard, to understand more details of how ARIA will work in practice.
As I mentioned at Second Reading, ARIA’s framework document is a governance document. It is a standard requirement for public bodies—which, of course, ARIA will be. As suggested in the noble Lord’s amendment, it will set the parameters for ARIA’s relationship with BEIS, as its sponsoring department. That is indeed its very purpose.
The noble Lord, Lord Clement-Jones, referred to the guidance published by Her Majesty’s Treasury, and I reassure him that, by drawing on the Treasury’s guidance, ARIA’s framework document will ensure that the agency and BEIS work effectively together. It will outline ARIA’s accountability, its decision-making and its financial management structures, along with some broader reporting requirements. However, it is not the appropriate place to codify ARIA’s relationship with other government departments. Other departments have no accountability relationship with ARIA, so its terms of engagement with them are a question of strategy rather than governance. The framework document will not contain any information relating to ARIA’s strategy in terms of collaboration, its project portfolio or indeed, its areas of research interest, all of which, I know, are of great interest to noble Lords.
On the sequencing of publication and commencement, given that both ARIA and the department need to be in agreement on the framework document, I reiterate, as I said at Second Reading, that it is therefore not possible to finalise it before ARIA’s senior leadership is in place, as my noble friend Lady Noakes, pointed out. It is not possible for the framework document to be published in advance of ARIA coming into legal existence. Similarly, the framework document for UKRI, for example, was finalised and published after that body came into legal existence.
Finally, it is worth noting that framework documents are live publications and are amended regularly to reflect any changes in the sponsor department or indeed the arm’s-length body itself, and they are all thoroughly reviewed every three years.
On the point raised by the noble Viscount, Lord Stansgate, on whether the framework document will outline the role of the Government’s Chief Scientific Adviser on ARIA, it is likely to. I will be happy to write to the noble Viscount with any more detail that I can on that.
I hope therefore that noble Lords understand that, in our view, there is a logical process to follow in the establishment of a public body and therefore that they will accept my assurance that we will publish the finalised framework document as soon as practicably possible.
Lord Fox (LD)
I have a couple of questions before the Minister sits down—or rather, I will now respond. The Minister seeks to downplay why we should be interested in the framework agreement, but the noble Lord, Lord Willetts, when he was in his seat, specifically asked about the relationship between UKRI and ARIA. That is just one question; there is a lot of interest in this and a lot of need to know. So the Minister should acknowledge that this is important to people and to organisations that are, in turn, important to this country.
I have a second point on which I would like an answer. I assume from what the Minister said that the sequence is: first, appoint a chief executive and then appoint the person to whom the chief executive reports. I still find that an interesting sequence, but certainly both those people will be asking what our relationship is with, for example, UKRI—or with others, as set out by the noble Viscount, Lord Stansgate.
It seems to me that either the Government will have an answer to that question during the recruitment process, or they will say, “Well, please yourself”. I suspect they have an answer and, just as the noble Lord, Lord Browne, said, trusting us with the draft of how that question will be answered would be completely reasonable and something that we would appreciate. With that said, I beg leave to withdraw the amendment.
Lord Callanan
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment to leave out Clause 10.
House of Lords
Personal Independence Payments
Baroness Thomas of Winchester
To ask Her Majesty’s Government what steps they are taking in response to the First Tier Tribunal overturning 70 per cent of the decisions of the Department for Work and Pensions in respect of Personal Independence Payments assessments between April and June.
Baroness Thomas of Winchester (LD) [V]
My Lords, I beg leave to ask the Question standing in my name on the Order Paper and declare that I receive a disability benefit.
Baroness Scott of Bybrook (Con)
My Lords, in the majority of PIP cases, there is no appeal. From April 2013 to March 2021, 4.4 million initial decisions following a PIP assessment were made. By June 2021, 9% have been appealed and only 5% overturned at appeal. We have recently made improvements to our decision-making processes to ensure that more disabled people and people with health conditions get the support they are entitled to as quickly as possible.
Baroness Thomas of Winchester (LD) [V]
My Lords, I thank the Minister and welcome that reply—as far as it went. However, is it not high time that assessments right now are improved, which would make most of these PIP appeals unnecessary? If assessors need reports from GPs or other healthcare professionals, they should ask for them at the mandatory reconsideration stage. Does the Minister also agree that there is no point in reassessing those with a progressive condition?
Baroness Scott of Bybrook (Con)
I agree with the noble Baroness’s second point, and that is what we are doing. If a person has long-term health needs, they are not being reassessed as they were. We are changing the way we do things. Since 2019, we have had a holistic approach to decision-making, particularly in the mandatory reconsideration stage after the first assessment. That gives time for people to talk to the claimant and get further evidence to support their claim. This means that fewer people are now going to appeal.
Lord Young of Cookham (Con)
My Lords, I welcome the improvements my noble friend has referred to in getting the decision right first time. However, she will be aware that there have been delays in the hearing of appeals, which have of course been aggravated by the pandemic. What steps is my noble friend’s department taking to ensure that the appeal time is brought forward in view of the stress that delays can cause to some applicants?
Baroness Scott of Bybrook (Con)
My Lords, the timings for appeal are difficult, because everybody wants time to get evidence in, allow assessors to talk to people and build a case. We are doing everything we can to make sure that we are making the right decisions, and in a timely manner.
Lord Loomba (CB)
My Lords, personal independence payments provide essential support for those who cannot meet their most basic needs. For every case where the department has been overruled by the tribunal, there is a desperate story of the person in need not receiving the support Parliament judged necessary. That this happens in so many cases speaks of a system that seeks to avoid providing support wherever possible, not one intent on ensuring it reaches those for whom it is meant. Can the Minister assure us that every effort will be made to make such tribunal decisions the exception rather than the rule?
Baroness Scott of Bybrook (Con)
As I have said, we are doing everything we possibly can, first, by having mandatory reconsiderations in-house with a separate team, but also by providing holistic decision-making support so that we can make sure we are working with people and that as few as possible cases go to tribunal.
Lord Bach (Lab)
Why, according to the latest official statistics, were there 36,000 social security and child support cases outstanding at the end of June this year and why did it take, as has already been mentioned, a mean average of 39 weeks—a figure that is going up—to dispose of them at tribunal? Does the Minister understand that the removal of legal aid for welfare benefits advice has led to fewer cases being sorted out and resolved well before they reach tribunal? Will she advise her colleagues at the Ministry of Justice to do something immediately to restore some modest legal aid in this area?
Baroness Scott of Bybrook (Con)
My Lords, legal aid was not available for representation before the First-tier Tribunal ahead of its reform, anyway; it was only available for advice and preparation. Tribunal proceedings are designed to be straightforward and accessible to all. They are inquisitory, not adversarial and the tribunal panel is trained and experienced in dealing with a wide range of applicants with individual needs. The DWP is supporting people—there is no need for legal aid in these tribunals.
Lord Holmes of Richmond (Con)
My Lords, more generally, what are the Government doing to help disabled people coming out of the pandemic, and what steps are they taking to operationalise every element of the national disability strategy?
Baroness Scott of Bybrook (Con)
I thank my noble friend for that question. The national disability strategy, which was launched this year, is exactly intended to help the disabled, and the Government want to support completely everything that is in it. At the moment, it is a bit early for operational outcomes, but we are working across government to make sure that disability is well understood by all departments, which is important. The needs and experiences of disabled people are central to policy-making and always taken into account by frontline staff.
Baroness Sherlock (Lab)
My Lords, to return to the Question, before you are allowed to appeal, you have to undergo mandatory reconsideration by DWP. That takes two months, so the cases we are talking about were turned down by DWP, reviewed, turned down again by DWP and then went to tribunal, which upheld 70% of them. That is a long process, which is emotionally and financially stressful for sick and disabled claimants. In fact, more than 1,000 died while the process was still under way. Does the department accept that this process is still not working as it should?
Baroness Scott of Bybrook (Con)
The department accepts that there is more that it can do; there is always more it can do. The disability Green Paper means that we will talk to people—we have already gone out to consultation—particularly claimants and disabled people, and find out what more we can do. But the situation is not getting worse, it is getting better.
Baroness Fookes (Con)
My Lords, many people with mental health problems have a particular difficulty in negotiating the system and getting the benefits they need. Can my noble friend tell me what help the Government are giving this group of people?
Baroness Scott of Bybrook (Con)
I thank my noble friend for that question. The consultation period for the health and disability Green Paper, to which I referred, has now run out and we are looking at the results. Through that, the department conducted extensive stakeholder engagement and talked to people with mental health problems and their carers about how we could do more to help them when they were being assessed, particularly for PIP. Interestingly, people with mental health problems are the largest group of people who now receive PIP.
Lord Foulkes of Cumnock (Lab Co-op)
Does the Minister not find it embarrassing, treating some of the most disadvantaged people in society in such a penny-pinching, niggling way when consultants are paid over £1,000 a day for work on a test and trace scheme which is not even working?
Baroness Scott of Bybrook (Con)
No, my Lords, those are two separate things. What we should be doing is looking after disabled people in the best way we can. We are looking after more disabled people and getting more disabled people into work, which is where they would like to be, supported by the Government. We are doing the best we can, but we will never be complacent and will continue to do more.
Lord Flight (Con)
My Lords, what steps are the Government taking to ensure that terminally ill people get the support they so much need?
Baroness Scott of Bybrook (Con)
My Lords, under the special rules for terminal illness, people nearing the end of their lives—as I would rather call them—have their claims fast tracked. The average time from registration to decision for a claimant under this new scheme is three working days. I am sure noble Lords will think that is reasonable for this group of people.
Ethiopia: Tigray Region
(3 years, 1 month ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Collins of Highbury
To ask Her Majesty’s Government what representations they have made to the government of Ethiopia about (1) the conflict, and (2) the humanitarian situation, in the Tigray region.
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, we have consistently called on all parties, not just the Government of Ethiopia, to end fighting and protect civilians. On 5 November, the Foreign Secretary spoke to the Ethiopian Deputy Prime Minister, Demeke Mekonnen Hassen. She raised our strong concerns about the impact of continued fighting in Ethiopia and the appalling suffering of the civilian population. She set out the need for negotiations to avoid further bloodshed and deliver peace. All sides must agree a ceasefire and allow aid to reach starving people.
Lord Collins of Highbury (Lab)
My Lords, last week Liz Truss committed to prioritising and funding combating sexual violence in conflict, with the noble Lord, Lord Ahmad, leading. Tigray must rank as the worst example of the use of sexual violence in conflict, yet there has been no public word about the results of the scoping mission to Ethiopia by the UK preventing sexual violence team. There is a desperate need for services for survivors and to secure legal evidence, much of which is in camps in Sudan. Will the UK back the call from Helen Clark and others on the UN Security Council to set up a tribunal to investigate allegations of sexual violence?
Lord Goldsmith of Richmond Park (Con)
The noble Lord makes an extremely important point and he is right that sexual violence has been a grim feature of this conflict. The deployment by the Preventing Sexual Violence Initiative UK team of experts resulted in a review of the needs and gaps in the response, which we are taking forward, including through a specialist role based in the Embassy. We expect that that work to support accountability will begin in January. We are not planning at this stage, I am told, to make the review public, but I am assured, following our encounter just a few minutes ago, that there will be briefings specifically for parliamentarians.
The Lord Bishop of Leeds
My Lords, this is a very unstable region of Africa. Ethiopia has proved crucial to stability in UN peacekeeping as well. Can the Minister say, first, how any diminution in the Ethiopian contribution to UN peacekeeping is being mitigated or compensated for elsewhere? Secondly, what is his assessment of the refugee crisis caused despite the welcome restoration of the transitional Government in Sudan?
Lord Goldsmith of Richmond Park (Con)
My Lords, as we have just heard, the crisis has taken on an international character, with Eritrea effectively involved in fighting in Ethiopia against the TPLF, which fired rockets on the Eritrean capital, Asmara. Thankfully, recent clashes between Ethiopia and Sudan along their border have been limited. However, we believe that 80,000 refugees have fled northern Ethiopia into eastern Sudan. The stakes are obviously high as the risk of regional spillover escalates. As noble Lords would expect, we urge all parties to the conflict to recognise the dangers of a drawn-out, protracted conflict for the region.
Lord Lancaster of Kimbolton (Con)
My Lords, under Article 4 of the African Union’s constitution, the AU’s Peace and Security Council has the power to intervene on member states should acts of genocide or other war crimes be committed. To date, the AU has not intervened, other than to send envoys. Does my noble friend the Minister think that perhaps the time has come when it should do so?
Lord Goldsmith of Richmond Park (Con)
My Lords, the African Union chairperson appointed a high representative specifically tasked to engage all parties to the conflict on options for peace. The Peace and Security Council has recognised and supported the important of former President Obasanjo, who is now in Ethiopia, visiting regularly and having productive discussions with both sides of the conflict. Our priority is to support the diplomatic efforts, particularly his efforts, as the form of intervention most likely to bring about a ceasefire and allow humanitarian relief to reach those in urgent need.
Lord St John of Bletso (CB)
My Lords, does the Minister agree that it is in the interests of everyone in Ethiopia to get all parties to the negotiation table to try to reach some form of compromise? What lessons are the Government drawing from Tigray for the Oromia and Somali Regions? Does the Minister agree that there is a high risk of similar crises in the Horn of Africa? What action can be taken to avert them?
Lord Goldsmith of Richmond Park (Con)
My Lords, there certainly is a high risk of the sort identified by the noble Lord. We regularly discuss the situation in Ethiopia with our G7 counterparts, African leaders and allies in the Gulf. The Minister for Africa discussed the situation with Kenya’s Cabinet Secretary Omamo on 1 November and, on 12 October, joined a call of major donors chaired by the administrator of USAID, Samantha Power. On the same day, the Foreign Secretary joined a call on Ethiopia chaired by Secretary Blinken. We are in regular communication with the UN at senior levels and at the technical, working level.
Lord Browne of Ladyton (Lab)
My Lords, while these diplomatic efforts carry on, in Tigray, Amhara and Afar, 8 million people—5 million of them in Tigray— are in desperate need. Rates of severe malnutrition are extremely high. Healthcare facilities have been trashed. Supplies of essential medicines are at zero. Hundreds of thousands of people are cut off from supplies and at risk of starvation today. Every imaginable form of obstruction to humanitarian aid is present, but the main reason for the cut-off is the blockade imposed by the Addis Government. What steps are we supporting to ensure that Ethiopia opens the checkpoints today?
Lord Goldsmith of Richmond Park (Con)
My Lords, the humanitarian needs in Tigray are at catastrophic levels, as the noble Lord said, with 90% of the population requiring life-saving aid. An escalation in violence has huge implications for vulnerable populations right across Ethiopia, potentially impacting on an estimated 20 million people already reliant on humanitarian aid and the 31 million people assessed as living below the poverty line. The humanitarian response in Tigray is at a standstill because of the limited availability of fuel and the fact that relief items have been depleted. Stocks cannot be replenished due to the blockade imposed by the Government of Ethiopia; we are putting particular emphasis on that area.
Lord Purvis of Tweed (LD)
My Lords, as was referred to, the more encouraging news from neighbouring Sudan over the weekend was tempered by the even more disturbing news from Ethiopia. Are the Government aware of the reports of people being targeted in Addis purely on the basis of their ethnicity and the establishment of new concentration camps near the city, including in a primary school? What firm action are the Government taking, with their allies, to prevent ethnic-based conflict, which, as the Minister said, could be truly catastrophic for the region if it spreads across borders?
Lord Goldsmith of Richmond Park (Con)
My Lords, the UK is engaging with Ethiopia—in fact, with both sides of the dispute—at every level imaginable and at every possible opportunity. We have a frank but constructive relationship with the Government of Ethiopia, which enables UK Ministers and senior officials to raise our concerns and have forthright discussions about the conflict in Tigray with them. We will continue to do this and raise all credible allegations as they are put to us.
Baroness Sugg (Con)
My Lords, we have heard horrific allegations of sexual torture and rape in Tigray. Far too often, the perpetrators are just not held to account. I very much welcome last week’s announcement that the Government will host an international conference on preventing sexual violence in conflict. Can my noble friend the Minister say what the Government hope this conference will achieve?
Lord Goldsmith of Richmond Park (Con)
My Lords, in 2022, the UK plans to host an international conference to mark 10 years since the launch of the Preventing Sexual Violence in Conflict Initiative. The conference will bring together partners from all over the world to end violence against women and girls. This will be an important opportunity to review progress, identify challenges and agree further action on sexual violence in conflict, as well on wider gender equity issues. Further information on the conference will be made available shortly.
Lord Anderson of Swansea (Lab)
My Lords, is not part of the tragedy that, in one of the most malnourished and impoverished parts of Africa, both sides—the United Front, with the TPLF, and the Government—can find the resources to wage a bitter civil war? How can the aid community intervene? Is there any real danger that the country might descend into ethnic groupings, as in the Balkans, and destabilise the region?
Lord Goldsmith of Richmond Park (Con)
My Lords, the conflict has the capacity to spill even further out of control and expand beyond the northern region. We have struggled to deploy UK aid for the reasons I described in my answer two questions ago. UK aid was being delivered into and across Tigray before the Government of Ethiopia created a blockade. We are supporting partners so that they can quickly recommence aid delivery should that be possible, and we are putting pressure on the Ethiopian Government to address the blockade and remove it.
Lord Alton of Liverpool (CB)
My Lords, can the Minister confirm that he and the Foreign Office have received representations from the All-Party Parliamentary Group on Eritrea, which I co-chair, about torture, rape and starvation being used as weapons of war and the involuntary repatriation of Tigrayan refugees to Eritrea? Will the United Kingdom follow the United States in imposing targeted sanctions on the perpetrators of these crimes? What is being done to ensure that those responsible for what has rightly been described as a catastrophic, man-made disaster that is destabilising the whole of the Horn of Africa are brought to justice?
Lord Goldsmith of Richmond Park (Con)
My Lords, we are appalled by the reports that we have received on the systematic killing of civilians; widespread sexual violence, including rape and including that of children; indiscriminate shelling; and ethnic discrimination, including the forcible displacement of communities. I cannot answer the noble Lord’s question on the APPG report, I am afraid, but I will ask my colleague, who would have received it, to confirm that that is the case. On sanctions, the UK will consider the full range of policy tools at our disposal to protect human rights and deter violations of international humanitarian law.
The Lord Speaker (Lord McFall of Alcluith)
My Lords, the time allowed for this Question has elapsed.
Dementia: Art and Music-based Interventions
(3 years, 1 month ago)
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Baroness Greengross
To ask Her Majesty’s Government what steps they intend to take to increase the use of art or music-based interventions in the care of people living with dementia.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Kamall) (Con)
Music can play an important part in supporting people who are living with dementia. Last year, NHS England and NHS Improvement facilitated three webinars resulting in the publication of guidance for social prescribing link workers to expand music prescriptions. We will be setting out a new dementia strategy in 2022. As part of that development, we are working in collaboration with stakeholders, including people affected by dementia, and will explore the role of arts and music-based interventions.
Baroness Greengross (CB)
My Lords, I thank the Minister for his reply. What further steps will the Government take to support brain health through social prescribing? How will any measures taken be incorporated into the Health and Care Bill currently being debated in the other place?
Lord Kamall (Con)
I pay tribute to the noble Baroness for all her work raising awareness of dementia, in this House and outside of it. The Government understand the importance of non-medical and lifestyle factors in supporting people’s health and well-being, including brain health. This is why we are continuing to roll out social prescribing across the NHS, in line with the NHS Long Term Plan commitment to have at least 900,000 people referred to social prescribing by 2023-24. The Department of Health and Social Care is working closely with NHS England and NHS Improvement to incorporate social prescribing into the guidance to integrated care systems. Some of this guidance has already been included in the document implementation guidance on partnerships with the voluntary, community and social enterprise sector that was published in September 2021.
Baroness Wheeler (Lab)
Around 25,000 people with dementia are from BAME communities and this is expected to double by 2026. The Alzheimer’s Society report, The Fog of Support, found that people from these communities, and those with English as an additional language, were more likely to use BAME-led groups. The report also found that there is generally a need for interventions to be much more culturally sensitive. What action are the Government taking to ensure that people with dementia can access culturally appropriate care, including art and music-based interventions, which reflect a wide range of cultures and languages?
Lord Kamall (Con)
The Office for Health Improvement and Disparities is looking at areas where there are clear disparities. As part of developing the dementia strategy, the Government are consulting with a wide range of stakeholders and ensuring that a diverse range of views from different communities is heard and that it is not targeted just at one particularly community.
Baroness Bull (CB)
My Lords, social prescribing is a key aspect of the NHS Long Term Plan. It has been described by the president of the Royal College of General Practitioners as an essential part of the toolkit for tomorrow’s doctors. Therefore, why is social prescribing absent from the core undergraduate curriculum in UK medical schools? Some schools offer optional modules, but there is no national consensus on what teaching should cover or how it is best delivered. Does the Minister agree that, unless social prescribing is integrated into the education of the future healthcare workforce, its benefits for patients and the NHS will never be realised?
Lord Kamall (Con)
The NICE quality standard on dementia, published in June 2019, includes guidelines for offering activities and social prescribing. They are also included in the NHS long-term plan. Obviously, different components are modelled that are social prescribe-enabled—not only music but other art-based activities. The education question will be for my noble friend in the Department for Education, but if the noble Baroness can write to me, I am sure that we can get the answer.
Lord Bethell (Con)
My Lords, music therapy is also increasingly helping Covid patients hit by inflammation and fibrosis that causes shortness of breath—a horrible condition. The Breathe programme from the ENO and Imperial College has classical-singing coaches providing psychological and physiological therapy to great effect. Can the Minister endorse this kind of social prescribing, and can he commit to meeting Dr Harry Brünjes and the Breathe team, which is seeking to take this programme nationally?
Lord Kamall (Con)
I thank my noble friend for that question. As an amateur musician—I stress “amateur”—I know that there is no better feeling than when you connect with your audience as a live musician. Music tugs at your heartstrings. Music touches your soul. But it can also unlock the mind. This shows the importance of music in social prescribing.
Lord Hunt of Kings Heath (Lab)
My Lords, I hope that patients get the benefit of what I am sure is the Minister’s excellent playing. He has been very positive in his responses, but he will know that the arts sector has been very stretched financially during the Covid years in particular. Will he open discussions with organisations such as the Alzheimer’s Society, with an offer of some funding to develop some of the schemes that we have heard about today?
Lord Kamall (Con)
I thank the noble Lord for his invitation to perform live—I am not sure that he will feel the same way after hearing my blues band. Last year, NHS England and NHS Improvement, in collaboration with the National Academy for Social Prescribing, the Alzheimer’s Society and Music for Dementia, facilitated a series of webinars. We are working in consultation with them. In February 2021, Music for Dementia also published social prescribing guides for link workers to help expand music prescriptions. The important thing here is that we are consulting with stakeholders.
Lord Clement-Jones (LD)
My Lords, for more dementia patients to gain access to music therapy through social prescribing, there must be more training on the value of music for carers and healthcare practitioners and greater support for musicians to train as music therapists, and music education must be a much more mainstream part of primary and secondary school education. What assurance can the Minister give that the necessary government cross-departmental action is being taken to deliver on this?
Lord Kamall (Con)
The department itself is working closely with Music for Dementia and other organisations. Across government, we are looking at music, beyond just performance, to see how it can impact our lives and the role that it can have in levelling up and community cohesion, for example. Across government, I am sure that a number of departments are looking at this.
Lord Vaizey of Didcot (Con)
My Lords, the former Secretary of State, Matt Hancock, deserves an enormous amount of credit for setting up the National Academy for Social Prescribing. Before he came into the department, the Department of Health could not have been less interested in the power of the arts and music to have an impact on people’s health. The second anniversary of the academy has just passed. Can the Minister commit to issuing a report on its third anniversary—since I know that he will still be in the post—to suggest how to take it forward? Also, we still do not know what instrument he plays, but perhaps he could take it with him on his first visit to the academy, as soon as possible.
Lord Kamall (Con)
I am not sure which question to answer first. If noble Lords will excuse a second of self-promotion, I am an electric bass player and sing the blues as well.
Lord Kamall (Con)
I thank noble Lords. Can I stop there? I also am aware that my noble friend is himself a music fan. I remember once bumping into him on the Jubilee line on his way to the O2 arena to see Led Zeppelin. Noble Lords across the House recognise the power of music and how it affects our lives.
Lord Jones of Cheltenham (LD) [V]
My Lords, someone very close to me has Alzheimer’s disease. Music-based interventions such as the Alzheimer’s Society’s “Singing for the Brain” groups have been proven to have multiple health and well-being benefits. What support are the Government offering to charities such as the Alzheimer’s Society to ensure that they can keep delivering this kind of intervention? Will the Minister, with his musical ability, commit to attending a “Singing for the Brain” session?
Lord Kamall (Con)
I should warn all noble Lords that they have not heard me yet—their requests may be quite different after hearing my band play. In terms of the ability of music and, if you like, the instructions, we are working with a number of stakeholders as well as ensuring that, when it comes to training social workers and others, they understand the ability of music to make a difference to people’s lives.
Lord Wigley (PC)
My Lords, I declare an interest: my wife is a music teacher and my son runs a recording studio, at which I am sure the Minister would be very welcome. Does the Minister agree that one initiative which could help both dementia sufferers and young musicians and artists would be to sponsor of an internship scheme whereby such students could be working part-time in the care sector, thereby benefiting themselves and those in care?
Lord Kamall (Con)
I thank the noble Lord for that suggestion. We are looking, across the health sector, at how we can think outside the box and train students in other disciplines to help in healthcare. Clearly, music can potentially play a role. In terms of the music studio offer, can I just say “Wait until you’ve heard me”?
The Lord Speaker (Lord McFall of Alcluith)
My Lords, all supplementary questions have been asked. We now move to the next question.
Emergency Services: Ministers of Religion
(3 years, 1 month ago)
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Lord Moylan
To ask Her Majesty’s Government what plans they have to establish a multi-professional strategy for the emergency services concerning the attendance of ministers of religion at the scene of situations involving serious injury.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, today of all days, we remember Sir David Amess, who tragically died carrying out his duties as a public servant. Our thoughts and prayers are with his loved ones, as well as with all those involved in scenes of traumatic injury. Decisions regarding the management of such situations remain an operational issue for the emergency services involved. There are no plans to establish a multi-professional strategy on this issue.
Lord Moylan (Con)
My Lords, the tragic death of Sir David Amess brought to national attention a problem that experts and academics in the field of disaster and emergency response have recognised for some time—namely, the lack of a considered approach to the role of ministers of religion and their access to victims at end-of-life in disasters and emergencies. While I welcome the fact that the Archbishop of Westminster and the Metropolitan Police Commissioner have opened a dialogue on this topic, does my noble friend agree that a national standard is required? Will she undertake a study, preliminary to that, of other jurisdictions such as Israel, Italy and even Northern Ireland, where practice tends to be more nuanced and accommodating?
Baroness Williams of Trafford (Con)
There are certainly lessons to be learned from other jurisdictions, as my noble friend said. I totally empathise with the situation that both David Amess’s family and the police found themselves in during that dreadful incident. Given the people who are involved, I hope and expect a sensible and pragmatic conclusion to be arrived at through the discussions.
Lord Anderson of Swansea (Lab)
My Lords, the noble Lord has spoken with compassion, but is there not a danger that the attendance of ministers of religion at the scene of an accident could hamper the work of the emergency services? If there are serious injuries, the victim will be taken to hospital, where they can, if desired, call on the excellent chaplaincy service, which works 24 hours a day.
Baroness Williams of Trafford (Con)
The noble Lord is right that chaplains operate 24 hours a day in hospitals. My noble friend’s question, of course, was about Sir David Amess, who was at the point of death when his family wanted him to have the last rites from a Catholic priest. The noble Lord, Lord Anderson, is correct to point out that the criteria for the police to consider in such incidents are protection of life, the risks at the scene and the preservation of evidence at the scene.
The Lord Bishop of Coventry
My Lords, I greatly welcome the joint study group announced by the cardinal archbishop. Does the Minister agree that good outcomes from that study would include both further training and education to ensure that police officers understand the significance of spiritual comfort at the point of death, for the dying of whatever faith, and an increased role for police chaplaincy?
Baroness Williams of Trafford (Con)
I am sure that what will come out of that group are considerations of whether any changes are required to the guidance issued to police officers faced with such situations. I know that hospital chaplains are available around the clock to cater for a range of different needs and provide comfort, both during a period of illness and at the point of death.
Lord Moynihan (Con)
My Lords, the circumstances surrounding access for the local priest to be with Sir David in his final hours put everyone concerned in an exceptionally difficult position. Will my noble friend the Minister look at the US model, where emergency managers can identify and engage with faith-based groups in emergency preparedness activities, building partnerships with them to establish protocols for use at the scene of serious injuries and integrating faith leaders into emergency situations involving serious injury?
Baroness Williams of Trafford (Con)
I will certainly take my noble friend’s point back. I know the College of Policing welcomes engagement with faith community leaders and others who have concerns about the current authorised professional practice to understand views and consider possible next steps for this issue.
Lord Paddick (LD)
My Lords, surely there is a difference between the perpetrator sitting at the scene of a stabbing waiting to be arrested and an explosion where forensic recovery is essential. Can the Minister not bring together faith and police leaders nationally to discuss the potential use of discretion, in appropriate cases?
Baroness Williams of Trafford (Con)
The noble Lord is right, in the sense that it sounds like the perpetrator was standing there, waiting to be arrested, but there has to be a framework around these things. Of course, forensic preservation is crucial at such scenes, even where it is apparent what has gone on. I am sure that the group will consider the noble Lord’s proposals.
Lord Cormack (Con)
My Lords, I know this is incredibly difficult but, as we can carry donor cards and things, would it not be possible to consider compiling a register of those of us who would wish to receive the last rites at the point of death? I am sure that would bring great comfort to many families.
Baroness Williams of Trafford (Con)
We are talking here about the point of death of someone who was killed in very unusual circumstances. My family know what I would want, and I am sure noble Lords in this House have let their families know what they would want. But there is a point there about pragmatism and considering someone’s last wishes at the scene of crime.
Baroness Masham of Ilton (CB)
My Lords, in these difficult times, is it not possible that people’s spiritual needs, as well as their physical needs, could be supported, and if possible adhered to, during serious injury and illness? Could the Home Office and the Department of Health and Social Care work together to send out a directive advising on these matters?
Baroness Williams of Trafford (Con)
The group led by the National Police Chiefs’ Council, joined by the Catholic Church and the College of Policing, will determine what such a framework looks like. It was a surprise to me that this had not come up before, and therefore it needs some thinking about, including on whether changes are required to the guidance issued to police faced with such situations.
Lord Rosser (Lab)
Our thoughts too are very much with the family and friends of Sir David Amess, particularly today. As has been said, Cardinal Vincent Nichols and the Metropolitan Police Commissioner have agreed to create a group reviewing last rites access for priests at crime scenes. Presumably, there is a need to ensure that a crime scene remains protected and not disturbed, and that the person seeking access is who they say they are. First, has this matter of access or lack of it for ministers of religion been a concern before and, if so, with representatives of which faiths? Secondly, is the question of such access presently covered by College of Policing or other guidelines?
Baroness Williams of Trafford (Con)
It does not seem to have come up as an issue before, and that is precisely why this group is meeting to see if there are any gaps in the guidance issued to police to deal with such incidents.
Baroness Fox of Buckley (Non-Afl)
My Lords, one of the cruellest aspects of the lockdown was the denial of visits from priests to give last rites to those dying in care homes. For Catholics, at least, that was as awful as not seeing beloved family. The official advice was to say prayers by Zoom. Would the noble Baroness note that, while there is an Amess amendment as part of the Police, Crime, Sentencing and Courts Bill, this is less a regulatory or legislative matter and more a deficit of cultural capital when it comes to Christian practices? Would she also note that the overtechnocratic approach illustrated by some of the replies today misses what really matters in society?
Baroness Williams of Trafford (Con)
Not only do I empathise with what really matters to some people at the point of death—it made me think that, if I was in such a situation, I would want a priest there—but I am very glad that Cardinal Nichols is meeting with the NPCC. That group will consider a more nuanced approach that can be reflected in police guidance about facing such a situation.
The Deputy Speaker (Lord Haskel) (Lab)
My Lords, the time allowed for this Question has elapsed. That concludes Oral Questions for today.
Police, Crime, Sentencing and Courts Bill
Monday 22nd November 2021
(3 years, 1 month ago)
Lords ChamberRead Full debate Police, Crime, Sentencing and Courts Act 2022 View all Police, Crime, Sentencing and Courts Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 40-XI Eleventh marshalled list for Committee - (22 Nov 2021)
Lord Falconer of Thoroton
“Video recorded cross-examination or re-examination of complainants in respect of sexual offences and modern slavery offences
(1) Section 28 of the Youth Justice and Criminal Evidence Act 1999 comes into force in relation to proceedings to which subsection (2) applies on the day on which this Act is passed.(2) This subsection applies where a witness is eligible for assistance by virtue of section 17(4) of the Youth Justice and Criminal Evidence Act 1999 (complainants in respect of a sexual offence or modern slavery offence who are witnesses in proceedings relating to that offence, or that offence and any other offences).(3) This section has effect notwithstanding section 68(3) of the Youth Justice and Criminal Evidence Act 1999.”Member’s explanatory statement
This new clause would bring section 28 of the Youth Justice and Criminal Evidence Act 1999, which provides for the cross-examination of vulnerable witnesses to be recorded rather than undertaken in court, fully into force for victims of sexual offences and modern slavery offences.
Lord Falconer of Thoroton (Lab)
My Lords, Section 28 of the Youth Justice and Criminal Evidence Act 1999 allows for the cross-examination of vulnerable witnesses and victims of adult sexual assault to take place separately from the trial. The purpose of this provision—following Section 27, which allows evidence in chief to be given before the trial—is to allow a victim of adult sexual assault to give their evidence in chief and be cross-examined in a period quite shortly after the incident. It means that they do not have to wait a very long time for what will be a terrible ordeal. It means that they give evidence at a point when the events are only recent, rather than after a long period has gone by.
There is nobody, I think, who does not regard these provisions as beneficial. The purpose of this amendment is to ensure that they are as available as possible throughout the Crown Court estate in England and Wales. My understanding of the position is that they are available in respect of the victims of adult sexual assault only in certain specified Crown Courts in England and Wales. This amendment seeks to ensure they are available everywhere and as soon as possible, by saying they would be, in effect, available on the day this Bill becomes law.
It has been said that one of the reasons for not making the provisions available is that they require judicial resource—you need a Crown Court judge in order to hear the evidence, even though it is separate from a trial. It strikes me as very odd that adult sexual violence is not a priority of the Crown Courts. If judicial resources are the problem, my suggestion would be that making resources available to hear the victims of serious adult sexual assault should come sufficiently high up the priorities so that there is a judge available to deal with it. On that basis, I beg to move.
Lord Thomas of Gresford (LD)
My Lords, I very much understand the impatience of the noble and learned Lord, Lord Falconer, for the introduction of video recordings of cross-examination in cases involving sexual offences and modern slavery. It is important that evidence in such cases is given early and without pressure. However, I have some queries about the amendment.
The Government have introduced by stages these provisions under Section 16 of the Youth Justice and Criminal Evidence Act 1999 for witnesses
“under the age of 18 at the time of the hearing”
and witnesses suffering “from mental disorder” or
“a significant impairment of intelligence and social functioning.”
The section also provides for witnesses with a physical disability. Various courts have been permitted to hear evidence in these circumstances, culminating in March of this year, when the provisions were extended to Preston Crown Court. But it was only on 30 September—six weeks ago—that the provisions were extended under Section 17(4) for complaints in respect of a sexual offence or a modern slavery offence. Only four courts were involved—Durham, Harrow, Isleworth and Wood Green. I have not seen any evaluation of the use of these procedures under Section 16, although they were piloted as early as December 2013 in Kingston, Leeds and Liverpool. I would be grateful if the Minister could tell me whether such an evaluation exists and, if so, whether it could be made available.
As for the proposal in this amendment to extend the provisions wholesale under Section 17, it is obviously too soon to evaluate limited pilots from the end of September. There can surely not have been time yet for any direction to be made by any judge of the three courts for such special measures for sexual offences and modern slavery.
Since I have no personal experience of these measures, I would be grateful if the Minister could inform me how they take place. As I read the legislation, the witness gives evidence to the court in the presence of the judge and counsel on both sides but in the absence of the accused. The accused is, however, entitled to watch the proceedings and communicate with his legal representatives. How exactly would this be organised? Is the accused in another part of the building, watching from prison, or what? In what way is this less intimidating to the witness than, for example, giving evidence down the line at the time of trial—a proceeding with which we have been familiar for some years?
My concern is that the distancing of the witnesses from the jury is artificial enough when it takes place at the time of the trial. But in my view it is even greater when the jury know they are watching a recording of examination and cross-examination which happened months, possibly even a year, before. While I appreciate that the best evidence is that which is given shortly after the events, the answer, really, is not to delay trials to get rid of the backlog. I heard on Saturday at my chambers dinner that the problem of delay is not the Nightingale courts but the number of judges and counsel needed to cover the trials taking place there and in the ordinary Crown Courts.
Originally, this amendment was grouped with Amendments 286 to 291. Are the others to be spoken to later?
Lord Falconer of Thoroton (Lab)
In this group, according to my listing, Amendment 268 is grouped with Amendments 286, 287, 288, 289, 290 and 291.
Lord Thomas of Gresford (LD)
That introduces the question about the complainant’s sexual history; I do not think the noble and learned Lord addressed that when he opened the case. The basic position in relation to that issue is stated in Section 41(1) of the 1999 Act, which says that
“no evidence may be adduced, and … no question may be asked in cross-examination,”
where
“a person is charged with a sexual offence … except with the leave of the court”.
Amendments 286 to 291 are concerned with tightening up the circumstances in which leave may be given. The noble and learned Lord, Lord Falconer, would not allow by these amendments such evidence whenever the issue of consent arises, whether at the same time or same event as the subject matter of the charge or where there is such similarity in the sexual behaviour of the complainant to the charge that the similarity cannot reasonably be explained as a coincidence.
Baroness Jones of Moulsecoomb (GP)
My Lords, I support these improved safeguards because although I have not been in court very often, and when I have been there, it has been mostly as the complainant or a witness, I do think that we need better support for victims—or the plaintiff—who at the moment are treated very much as bit players in the whole theatre. It seems that they are almost forgettable because the two protagonists are the defence and the prosecution, and they take centre stage. It was obvious when we debated the Domestic Abuse Bill, when we discussed anonymity and other techniques for helping witnesses give evidence in court, so clearly that is needed.
The witness is often treated as a sort of emotionless void, with the legal test focusing on whether the proposed measures will improve their ability to give evidence, rather than, say, protect them from the trauma, embarrassment and hurt of facing up against the accused. This is no more apparent than in the way we treat victims of sexual violence and rape. The Section 41 rules were a major step forward but still fall far short of what is necessary, and so the amendments in this group would help recognise victims as humans and not just incidental characters in the whole story. Most importantly, they would allow the complainant to have their own independent legal representation in Section 41 applications, rather than relying on prosecution counsel, who, in their role as administrators of justice, have many competing obligations to juggle.
I hope that the Minister will agree that there are still many unsolved challenges in the treatment of complainants, and they are in desperate need of solutions.
Lord Falconer of Thoroton (Lab)
My Lords, I should have opened those other amendments, and it is an error on my part that I did not. I am very grateful to the noble Lord, Lord Thomas of Gresford, because he has done a bit of the work that I should have done.
Lord Judge (CB)
If the noble and learned Lord decides to open them, which I would welcome, I would like to respond generally. So far, this debate has rushed along, and we were rather waiting for the noble and learned Lord, Lord Falconer, to tell us why he strongly supported all these amendments, and then we will answer them.
Lord Falconer of Thoroton (Lab)
The reason I did not tell noble Lords why I strongly supported all these amendments was because I made a mistake and did not realise that they were in the same group until the noble Lord, Lord Thomas, mentioned it. I apologise to the Committee for that error.
May I just go through them? I have done Amendment 268, which concerns Section 28 of the Youth Justice and Criminal Evidence Act. The next is Amendment 286, which proposes to insert a new clause into the Youth Justice and Criminal Evidence Act 1999 and would exclude the admission in evidence, whether by the prosecution or the defence, of any sexual behaviour of the complainant with a third party, for the purpose of showing consent or lack of consent, while leaving evidence of sexual behaviour with a third party admissible if it is relevant to any other issue in the case.
In addition, it sets out a further requirement that, where such evidence is sought to be introduced in relation to an issue other than consent, that material must be more probative than prejudicial, and it sets out the considerations the judge must have regard to in considering that extra requirement. The purpose of this amendment is to give the clearest possible signal that evidence of any sexual behaviour of the complainant with a third party—that is, not the defendant—should be regarded as completely inadmissible on the issue of consent. This is important because it is intended to mark a change from the past, where all too often such evidence is admissible in circumstances where it is of very limited probative value, and the ability of that evidence to be admitted makes people—complainants—incredibly wary of coming forward and making complaints. This is the legislature giving a clear signal that it wants a change in relation to that. That is why it is there.
Lord Pannick (CB)
I am sorry to interrupt the noble and learned Lord, but would his amendment mean that if the complainant says, “I would never, ever consent to sexual behaviour” of a particular description, it would not be open to the defence to adduce evidence that that was precisely what the complainant had done with a third party?
Lord Falconer of Thoroton (Lab)
It would exclude such evidence; there is no doubt about that, and rightly so, because what the noble Lord is referring to is evidence where the defence says, “Well, you say this in relation to this case, but what about this?” and then refers to another instance of sexual connection and says, “Look what you did there.” The purpose of the provision is to do exactly what the noble Lord, Lord Pannick, says.
Lord Pannick (CB)
I would like to test this proposition, because it strikes me as rather surprising. If a complainant says to the court, “Not in relation to this particular person, but I would never ever contemplate” doing something, and there is evidence, otherwise admissible, that she has done so in the past, that seems to be highly relevant to the jury’s assessment.
Lord Falconer of Thoroton (Lab)
What I am saying in putting forward this provision is that you want to send a clear signal that a certain sort of evidence is not admissible. In order to make it easier for people to come forward, you need to have much clearer lines than we have had previously. There has been a whole variety of evidence that English law has said is not admissible, even though many people would think it was probative, because it is the safest way overall to deal with trials—it is the safest way to ensure that an appropriate balance is struck between complainant and defendant.
Lord Brown of Eaton-under-Heywood (CB)
Surely the noble Lord and the noble and learned Lord must be at cross purposes. The noble Lord, Lord Pannick, put it on the basis that the witness is saying, “I wouldn’t do this, not only with this man but I wouldn’t do it with anybody, ever”, and the evidence is that she has. Is that perjury simply to go unresponded to in any shape or form?
Lord Falconer of Thoroton (Lab)
I am afraid I did understand what the noble Lord, Lord Pannick, said. It is exactly as the noble and learned Lord, Lord Brown, has put it. The noble Lord, Lord Pannick, is right in the way that he analysed this amendment: it would exclude that evidence. I understand that that is the consequence, and I am saying it is a good thing.
Baroness Jones of Moulsecoomb (GP)
From a woman’s point of view, I would just like to say that there are things I would have done at 20 that I absolutely would not do now, at 70. We can all learn and adapt our behaviour, so the past may not be relevant.
Baroness Fox of Buckley (Non-Afl)
As a woman, I say that the past might not be relevant but the truth might be, if you have just said, “I would never have done this” or “I have never done this”. I do not understand why the purpose of this amendment is to send a message; the point of the law is not just to send a message. Of course, we want women to get a fair shot at seeing people they are accusing of rape found guilty, but I do not want the state to be in a position where it can find people guilty based on the fact that you cannot probe the truth of what has been said. That is condescending to women, by the way. Women do not need to be so protected; they need people to do their jobs. But we do not need to alter the law to hide the truth in order to give women a fair shot.
Baroness Bennett of Manor Castle
I point out to all noble Lords who have spoken that victims can be of all genders. It is unfortunate that this debate has been specifically gendered.
Lord Falconer of Thoroton (Lab)
The noble Baroness, Lady Bennett, is right. This is about sexual assault on anybody, whatever gender they are.
Does the right reverend Prelate want to intervene? Oh, I am sorry; they are leaving, for fear that it will never end.
Amendment 287 defines consent so that there is clarity about what is meant by consent in the new section of the Youth, Justice and Criminal Evidence Act 1999.
Amendment 288 is a procedural requirement. This proposed new clause would have the effect that no Section 41 evidence or questions—that is, about sexual conduct with a third party—could be admitted by a judge at trial unless there had been an application before trial in accordance with practice directions, and would ban applications being made immediately before or during the trial. It is an important procedural safeguard to ensure that the complainant will know before the trial starts what he, she or they may face.
Amendment 289 would insert a new clause to give the complainant a right of representation with legal aid, if they are financially eligible, to oppose any application to admit Section 41 material about them—that is, material about sexual conduct with a third party. This new clause would also give complainants a right of appeal to the Court of Appeal if the application is allowed in whole or in part. The new clause provides that the complainant is not compellable as a witness at the application. The purpose of these provisions is to recognise that the complainant should be treated as a party, rather than as an outsider, to the proceedings on issues of the extent to which his, her or their past is to be gone through in the trial, and it is perfectly legitimate.
Lord Judge (CB)
My Lords, I once tried a case where the most compelling evidence was given by a black woman who alleged that a white dentist had raped her. His case was that, as she sat in the dentist’s chair, she undid his fly and started sucking his penis. Her answer to the question put to her was, “I would never do that with a white man”, and it was compelling. If there had been evidence that in fact she had, that very compelling piece of evidence would have lost some of its compulsion. We have to be very careful not to send messages through legislation—messages we all share—because that is not the point of legislation.
I should add that there are plenty of times when evidence is inadmissible in law which may be probative, but there are, as far as I am aware—I cannot think of any; perhaps I will be corrected if I am wrong—few times where evidence which may assist the defendant is deemed inadmissible. That is an important step.
My other intervention is that, deep down in all this, there is a rather alarming—strange, really—new idea, which is that the Secretary of State should involve himself or herself in some of these important decisions. Let us look at the arrival of a friend, or an advocate’s friend—it does not matter what we call it; I personally wonder why that is necessary, when the prosecutor is supposed to be there as a minister of justice. I am looking at paragraph (e) of proposed new Clause 43A which would be inserted by Amendment 289. Why on earth should the Secretary of State be making regulations setting out procedure relating to hearings or appeals under this section? There is a perfectly good Criminal Procedure Rule Committee which produces Criminal Procedure Rules and is referred to in paragraph (b). With great respect, this has nothing whatever to do with the Executive. This is about the way cases are being conducted in court. Therefore, if there are going to be regulations, they should be produced either by primary legislation here or by the Criminal Procedure Rule Committee addressing the issues.
On Amendment 291, I am even more alarmed. Subsection (2) of the proposed new clause gives the Secretary of State the power to decide which judges may hear which cases. We do not allow that. It is an essential division that there is an Executive and that cases are tried by judges; the Executive have no say whatever in which judge will try which case. It would be very strange: “I think I would like Mr Justice So-and-so, or Mrs Justice So-and-so, to try this case”. It is unheard of.
More importantly in relation to the judiciary and to the whole of Amendment 291, I can confirm as a matter of certainty—I suspect this has been true since the noble and learned Lord, Lord Woolf, was Lord Chief Justice—that judges are not allowed to try cases involving rape or serious sexual offences unless they have attended Judicial College training and continue to be refreshed in the various ways in which the law, the principles, the understandings and insights have been developing. As I say, though, my real concern is that if this is going to be statute, then for heaven’s sake, it should not be in the hands of the Secretary of State.
Lord Pannick (CB)
My Lords, I intervened earlier on Amendment 286 because of my concern about an absolute rule in this area. My concern is increased by the practical experience of the noble and learned Lord, Lord Judge, in this matter. I am also concerned about Amendment 289 regarding the complainant’s right of representation in relation to an application and whether there should be evidence concerning sexual conduct, not merely for the reason the noble and learned Lord gave, with which I agree: that the prosecution are ministers of justice and are there to deal with such matters. I am also concerned that this is a recipe for delay. If it is really to be said that the victim is to be separately represented and able to make an application, presumably after notice has been given, and there is to be a right of appeal to the Court of Appeal, that is inevitably going to delay further trials that are already far too long delayed.
Lord Falconer of Thoroton (Lab)
On the points made by the noble and learned Lord, Lord Judge, about the criminal procedure rules, I agree with him. There is no need for the Secretary of State to intervene, and I accept that completely. Secondly, I also completely accept his point that the Secretary of State should not be making that determination; that is my drafting error.
I utterly repudiate the point made by the noble Lord, Lord Pannick, about delay and non-representation, a position which the noble and learned Lord, Lord Judge, also adopted to some extent. It is really important that the complainant have, and feel that they have, a voice in the process of what is going to happen to them at the trial. The point about delay could be dealt with by ensuring that these applications are all dealt with before the trial. If there is to be an appeal and the complainant says, “It is unfair that my past is being raked over in this way, I want to appeal”, then there may be occasional cases where there are delays, but their rights should be recognised. The fact that they have a voice is really important.
The noble and learned Lord, Lord Judge, said that the prosecution is there to look after them. My experience is that the prosecution will try as much as possible to look after them but that they should have a separate voice. They will frequently feel—not because the prosecution is in any sense not doing his or her duty, but because they feel their voice is not adequately represented—that they should have a separate voice because they have separate concerns from those of the prosecution, which has to look at the situation not just from the point of view of the complainant but in a wider context. So I accept two out of the three points made by the noble and learned Lord, Lord Judge, but none of those made by the noble Lord, Lord Pannick.
On the first point made by the noble and learned Lord, Lord Judge, regarding cases where it is vital to know what the position is—he gave the example of a trial he had heard—I am keen to draw a line so that people know where they stand, just as, in relation to the rules of evidence over many centuries, English law has said that some evidence is admissible and some is not, even though from time to time, it has been obvious that the inadmissible evidence might have been very compelling, but for reasons of bigger policy it was inadmissible.
Baroness Chakrabarti (Lab)
My Lords, I am sorry to find myself intervening at this point but there is no bigger policy than the right to a fair trial. Of course that goes for complainants—and I agree with much of the thrust of what my noble and learned friend says—but there must also be justice for someone accused of any matter, but particularly such a serious one as a sexual offence. The example given by the noble and learned Lord, Lord Judge, warranted more of an answer, and one could conceive of others.
I say that while acknowledging that for decades, too much sexual history has been admitted; there is no doubt in my mind about that. That was why Section 41 had to be enacted in the first place. Scholars in this area will be able to look back at the Hansard of the passage of Section 41 and its various iterations at the time. The section was actually more tightly drafted to begin with but noble Lords in this place, including on the Benches behind me, came up with compelling exceptional circumstances where it would do a grave injustice to a defendant for startling similar fact-type evidence not to be admitted.
I understand that even since the passage and enactment of Section 41, a lot of complainants—and, with all respect to the noble Baroness, Lady Bennett, quite possibly women in particular—have felt that there has still not been enough sensitivity on the part of certain judges. However, it cannot be right that if I as a complainant, of whatever sex, assert that a particular type of sexual activity is something I would never and could never consent to and have never consented to, and yet I did the day before—how can it be anything but an injustice to the defendant for that not to be admitted? If I am a man and I say I have been raped by another man because I would never have consented to sex with a man, and yet there is ample evidence of a third party saying that there has been consensual sex —that cannot be fair to the man in the dock who says, “Yes, we had consensual sex” and then the complainant, because he is embarrassed due to his family, his faith or whatever reason, now says that it was non-consensual. That cannot be right.
I agree that we must do more so that juries, judges and indeed society do not assume that past sexual history is determinative of consent, but in my view to say that it is always absolutely irrelevant would not comply with Article 6 of the convention and therefore the Human Rights Act. I do not mean to be difficult but I could not possibly have potential injustices of that magnitude on my conscience, and I do not think this Committee could either.
The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)
My Lords, in replying, I preface my remarks by commenting on points made by noble Lords. The first was made by the noble Lord, Lord Thomas of Gresford, at the outset, while the Benches opposite were still thrashing out the batting order. If I may summarise the noble Lord’s position, I think it emphasised the importance of judicial discretion. A judge seized fully of the law and of the particular facts and circumstances applying to any case will most often be best placed to decide what should be done. I know that the noble Lord will recognise that my remarks cut both ways, and that he will hold me to them in the course of today’s debate. However, I fully accept what he had to say about the importance of judicial discretion.
Lord Falconer of Thoroton (Lab)
I am grateful to everybody for taking part in the debate and very grateful for the care with which the Minister answered the issues. I am disappointed with his response on Section 28 and making sure that it is available in all courts in England and Wales. He said that he wanted to test the technology first, but there have been three pilots going for some time. I found that answer not altogether convincing so may come back to that matter on Report.
Lord Falconer of Thoroton
“Assistance for bereaved persons and core participants at inquests and public inquiries
(1) With respect to inquests, and public inquiries relating to deaths or serious injuries, and where one or more public authority, or private entity whose relevant activity falls within subsection (2), are designated as “interested persons” (IPs) or “core participants” (CPs), bereaved IPs and CPs shall be entitled to publicly-funded legal assistance and representation at the same level or in proportion to the resources provided to the public authority or private entity, as set out in Schedule (Assistance for bereaved persons and core participants at inquests and public inquiries: amendment of the Legal Aid, Sentencing and Punishment of Offenders Act 2012).(2) Relevant activity of a private entity falls within this subsection where it—(a) is delegated or contracted from a public authority, or(b) is one where the private entity or individual owes a health and safety responsibility to the public or a section of it, including but not limited to sporting, leisure and entertainment events and premises, public transport systems and the provision of utilities and retail facilities.”Member’s explanatory statement
Combined with the proposed new schedule to follow Schedule 20, this amendment would ensure that bereaved persons and core participants at inquests and public inquiries received legal aid proportionate to the legal expenditure by any public authorities involved in the inquest or inquiry (so-called “equality of arms”).
Lord Falconer of Thoroton (Lab)
My Lords, this is a completely different topic. Amendment 269 would
“ensure that bereaved persons and core participants at inquests and public inquiries received legal aid proportionate to the legal expenditure by any public authorities involved in the inquest or inquiry”.
It is, in effect, the equality of arms measure.
In the Hillsborough situation, people suffered an incredibly grievous wrong in respect of their loved ones, then found themselves ranged against lawyers and QCs. As a QC myself, I make it clear that there is nothing intrinsically wrong with QCs, but imagine finding yourself ranged against seven public authorities, all of which have an interest in trying to ensure that their public authority is exonerated, while the individual victims have no right to legal representation at all. They may get the benefit of discretionary funding from the Lord Chancellor, who can give that funding for inquests, but it is entirely at the discretion of a Government Minister. That is inappropriate. In relation to these sorts of cases, the right course is that where there is a big disaster, the people who are most affected should be able to appear at the inquest, which is going to affect what may happen in the future, while having equality of arms with the person or bodies against whom they will be ranged.
Amendments 270 to 274 intend to establish
“a public advocate to provide advice to representatives of the deceased after major incidents.”
So many families affected by a major incident have nowhere to go because there is no lawyer experienced in these sorts of matters. They have nobody to speak on their behalf and find, all too often, the public sector unwilling to give them help—for fear that individual members of the public sector may be making their own section of it liable to some sort of damages in court subsequently. The public advocate scheme is a means of providing support for the victims in those tragedies. I very much hope that the Government will listen, look at these amendments favourably and recognise the injustices that have occurred over the years as a result of there not being proper representation at inquests nor a public advocate to speak for the victims of these disasters. I beg to move.
Baroness Bennett of Manor Castle (GP)
My Lords, I rise to offer Green support for Amendment 269 in the name of the noble and learned Lord, Lord Falconer, to which I have attached my name. I offer support for all the amendments here. The noble and learned Lord spoke about a big group case affecting many people. I shall to a single case.
In 2014, a seven-year-old boy, Zane Gbangbola, went to sleep in his bed. He never woke up, and his father, sleeping nearby, has been forced to use a wheelchair ever since. The Fire Brigades Union, the PCS Union and many other people—including his father Kye’s doctors—were convinced that Zane was poisoned by hydrogen cyanide gas that came from a landfill site nearby, carried by floodwaters. Before this tragic event, the Environment Agency had actually protected its own staff in a nearby building with a special membrane in the foundations to ensure there was no risk of an event like this.
There was, of course, an inquest. At that inquest no fewer than six public bodies, whose actions might have been called into question, were represented by the best legal counsel money can buy—with public money. The Gbangbola family was denied legal aid, so the grieving parents, sitting in a court room and hearing the most awful possible details about their son’s death, were forced to operate with only limited legal support, with funds raised by a public appeal. As the noble and learned Lord said, the European Convention on Human Rights calls for an equality of arms in trials. There was no such equality at Zane’s inquest.
We also need to stress the public interest concern here. As was the case, tragically, in Zane’s death, we know that the world is facing new dangers. The country is facing new dangers. We need honesty and transparency about what those are. The weather that led to that flooding was linked to the climate emergency. Several years after this, Kye Gbangbola said
“we need to unlock the doors for the truth to come out”.
This is about the death of one child, but it is also about the safety of everybody. The lack of legal aid at that inquest was a factor in the truth not coming out. The family is continuing to campaign. Indeed, I was in Glasgow with them at a side event to the COP 26 climate talks. They are calling for a Zane’s Law to address weaknesses in our law that were deliberately introduced a decade ago, putting profits before human lives. This is why the seven amendments about a public advocate are terribly important. We cannot rely on families—indeed, sometimes there will not be a family—in a case where someone has died, to ensure that the courts are helping us to uncover what actually happened in the case of tragedies.
Had there been equality of arms at Zane’s inquest, we might be much further down the road to getting a change in the law that we all need to keep us safe. I strongly urge the Government to act on all of these amendments, but particularly Amendment 269 and the related amendment, not just for Zane or the Hillsborough families but for everybody.
Baroness Newlove (Con)
My Lords, I support this amendment. As a former Victims Commissioner, I have met too many victims who had asked for representation or legal aid and felt that their voice was not heard. They were, in their words, “bullied” by the heavies on the other side, who were rich and could pay for QCs or whatever. Again, they felt that their voice was not going to be heard.
I am talking about high-end cases here; I am talking about terrorism, bombers, women hearing their husband exploded at the other end of the phone, and still have no help from the Government. I support this amendment because now, with all the high-risk terrorism we are seeing—even with the Tunisian support that was very poor, I have to say, because there was a third party involved—we are going to lose the public coming with us and understanding what is going on. An inquest is not a courtroom as such: everybody is there, and all the families are trying to listen about their loved ones and their lives. I know from personal experience about when somebody is talking about our loved ones and yet nobody can stand up from our side to present the same quality, the same questioning.
In this day and age, I ask the Minister and the Government to have a round-table talk about how we can fix this. The inquest is such an irritant to the families, and it does not help them get past the trauma. If we cannot help them, they will not be confident to go through the system. These are high-end cases we are talking about. I know the families of Hillsborough as well, and they have gone through the mill over all these years. Did they get any justice? They have had to fight hard, tooth and nail.
I heard one woman—I will not name her—whose son heard that bomb go off on an oil rig, and the Government were still redacting and did not give the legal aid. The time has come to have an open and transparent discussion about giving the support that they quite rightly deserve.
Lord Mackay of Clashfern (Con)
My Lords, some time ago when the Hillsborough matter was before this House, the noble Lord, Lord Rooker, I think, and I put forward a suggestion that the coroner in an inquest should have power to allow a public authority, or an authority with resources, to put forward a defence using lawyers for that purpose, and that a condition of granting such permission should be that the authority is responsible for providing the necessary funding for the relatives of the deceased to be represented. The choice of who they would use, of course, would be for the relatives, but the provision of the necessary money would be a matter for the authority—at the level at which the authority wanted to do it—so that there would be obvious equality of arms.
I think it is a much better solution than legal aid. Needless to say, I have had, some time ago, some experience of dealing with legal aid. I had the authority as Lord Chancellor to grant legal aid in specific cases that I thought required it, but I think it is much better, fairer and less burdensome to the public, that this should be the rule. It seems to me this is quite easy to systematise when you have more than one of these authorities. Hillsborough is a good example of what happened when there was no proper representation for some of the relatives. This is a suggestion that goes along with the spirit of the first amendment the noble and learned Lord has put forward, and I venture to think that it is an effective point of view.
I am glad to see that the noble Lord, I referred to has returned because I think he will probably remember that he and I were pretty well agreed about what should be done. Needless to say, the Home Office said it would be reviewed when the details of Hillsborough, the prosecutions and so on, were finished. Of course, that happened some time ago, but I see no sign of any kind of innovation from the Home Office, until it agrees with this amendment in spirit.
Lord Beith (LD)
We have always been able to rely on the noble and learned Lord, Lord Mackay, for ingenuity when difficult problems have to be resolved. This one seems to have got lost in the Home Office somewhere. That is a pity because the problem that these amendments raise is long-running and serious. It is open to discussion, whether the amendments are the best way of dealing it, but I do not think we can go on ignoring it or failing to deal with it in any adequate way.
Lord Pannick (CB)
My Lords, I too support the principle behind Amendment 269. We regularly see the disturbing prospect of bereaved families being unrepresented when public bodies have very competent representation. This undermines public confidence in justice, and it sometimes impedes the ability of the coroner or the public inquiry to get to the truth of matters of enormous public importance.
However, I am not persuaded that the mechanism contained in Amendment 269, in proposed new subsection (1), is the correct one. It provides that the representation for bereaved families must be
“at the same level or in proportion to the resources provided to the public authority or private entity”.
I would be content if competent representation were provided.
I draw to the attention of the Committee that there are cases in the Court of Appeal where it has been argued, under the Human Rights Act, that a defendant in a criminal case was entitled to representation under legal aid by Queen’s Counsel because the prosecution was represented by Queen’s Counsel. The Court of Appeal said no, and that what they are entitled to—and rightly so—is competent representation. So I think this is going too far.
The noble and Learned Lord, Lord Mackay of Clashfern, suggested one way forward: that the public body should make provision. Another way of dealing with it would be for the chairman of the inquiry, or the coroner, to have a statutory discretion to order that specific persons be provided with public funding, whether by legal aid or otherwise. There are a variety of mechanisms, but I entirely agree with the noble and learned Lord, Lord Falconer of Thoroton, that the principle now needs to be enacted.
Lord Sandhurst (Con)
My Lords, I shall speak shortly. I have always had a long interest in legal aid and its proper provision. My concern is that this amendment is aimed at the right target but goes too far. Look, for example, at the wording; as I understand it, it would apply every time there is an inquest involving someone who has died in a hospital. If that has been the result of possible negligence on the part of the hospital—I am talking about an NHS hospital here—then there is a potential claim against the hospital. If that potential claim has any reasonable merit, it is likely that solicitors experienced in medical and legal work will undertake the inquest because, in due course, if the claim is brought and damages are recovered and costs awarded, the cost of representation at the inquest will be recoverable in the personal injury action. That has been the case ever since the “Marchioness” disaster and the costs thereafter.
All I say is this: there should be representation in appropriate cases involving state institutions. We can all think of examples—not just Hillsborough; it could be a hospital or something else—where the state and a public authority are involved, and it is unfair to the family to have to scrabble around to get funds if they can. I would like to see careful consideration given by the Government to how this can be properly designed to find a balance. There is a strain on public resources; there are many other areas where legal aid is not provided, particularly in the family courts, and we know that funds are short. Equally, they should consider whether, in appropriate cases, it should be at the coroner’s discretion to direct the Legal Aid Agency to look at this. I argue that the Government should think very carefully about this and about what would be a fair balance, given the strain on public resources, to ensure that people who need and deserve it get resources provided to them.
Baroness Chakrabarti (Lab)
My Lords, I support this whole group of amendments from my noble and learned friend and others. The reasons given by noble Lords are hugely compelling and, if anything, I think some noble Lords opposite are not enthusiastic enough. I hear the arguments about the public purse, but we would not be here if civil legal aid, in particular, had not been altogether obliterated and if there was not such a continuing injustice to bereaved families.
Frankly, I am not persuaded that there is something so awful about a greater equality of arms between hospital trusts and families who feel they have been sorely let down, or indeed between those families and a range of public authorities who can afford not competence but brilliance—they can afford the noble Lord, Lord Pannick, over there. I am not sure that “near competent” would be enough if you were faced with my friend the noble Lord, Lord Pannick. We need to have something like the intention behind this amendment; there should be some kind of equality of arms for these desperate people.
My heart broke when the noble Baroness, Lady Newlove, said that she has spoken to bereaved families who think of an inquest as an irritant. We should all be ashamed of that. Inquests, which are supposed to get to the bottom of things and be at least some kind of comfort to those families, should be the absolute opposite of an irritant.
I want to encourage my noble and learned friend not to let this go into the long grass, or to become an interesting probe that does not get anywhere because we are worried about the precise mechanism, because I am very concerned—we are still in the pandemic—about the coronavirus inquiry or inquiries that must come soon. There may not be another vehicle for amendments such as these, or legislation such as this, in time. It is incredibly important that, in a year or two, or whenever those inquiries happen, we have resolved this to some extent.
I fear we will not have resolved the general, dismal picture when it comes to civil legal aid, but at least we can come up with some kind of fix, however imperfect, to redress the balance of advice and representation for bereaved families. There will be a lot of very impoverished, vulnerable, bereaved families who will have nowhere near the access to private or public money. To be honest, whatever your ideological position, even the inequality between private corporations and bereaved families is bad enough, but surely, with public authorities and public money, there can be no excuse for such an imbalance in the use of that public money if we are really interested in the pursuit of justice.
Lord Bach (Lab)
My Lords, I also agree absolutely with the principles behind these amendments. It seems as though the Committee has been unanimously supportive up till now.
My question to the Minister is: why have we waited so long for something to happen in the area of inquests? I had hoped that there might be something in what has been rightly described as a Christmas tree Bill to help us along the way, but there is not. It has needed the amendments from my noble and learned friend Lord Falconer and others, including the noble Baroness, Lady Bennett, to raise this issue. I was privileged enough to chair a Fabian commission on legal aid, which reported more than four years ago. We considered this urgent—as I think the world did—then and for many years before. At one stage, Hillsborough was a classic example which aroused public interest in this issue.
Is there work being done at the moment within the Minister’s department to look urgently at this issue to see whether some solution cannot be found? Never mind the rest of civil legal aid—though my noble friend Lady Chakrabarti knows I agree with her absolutely on that—is there not something that can be done in this area as a matter of some urgency?
Lord Stewart of Dirleton (Con)
My Lords, I hope that the Committee will accept my words when I say that the Government are sympathetic to the difficulties facing all bereaved families. At an earlier stage in the consideration of this Bill, my colleague, my noble friend Lord Wolfson of Tredegar who has ministerial responsibility for this matter, referred to the powerful feelings he had, as a resident of Liverpool, as the Hillsborough tragedy unfolded. For my part, I speak as one who has acted for a relative of someone killed in an accident which was sufficient to warrant the convening of a fatal accident inquiry in relation to the helicopter crash at the Clutha Vaults public house in Glasgow. I was funded by legal aid, and I hope that means I was at least competent, while at all times striving towards the excellence of the noble Lord, Lord Pannick. The Government believe that bereaved and otherwise affected families should be at the heart of any inquest and inquiry process that follows a disaster.
Amendments 269 to 274 seek to establish an independent public advocate. This is a call to which the Government have been sympathetic, but I echo the reservations expressed, I think by the noble Lord, Lord Pannick, as to whether the superstructure envisaged by the noble and learned Lord’s amendment is the appropriate way forward.
Lord Paddick (LD)
My Lords, I have given evidence at numerous criminal trials, in the magistrates’ court and the Crown Court, but the most vicious, adversarial cross-examination was at the inquest into the death of Jean Charles de Menezes, an innocent Brazilian shot and killed by the police following the 7 July 2005 bombings. There is no way that process could have been described as inquisitorial. Indeed, part way through that proceeding, the coroner had to advise the barrister representing the police not to proceed in the way that he had up until that point. While in some cases it may be simply a neutral, inquisitorial search for the truth, that is not how a lot of inquests turn out.
Lord Stewart of Dirleton (Con)
I am grateful to the noble Lord for giving the Committee the benefit of his experience. Perhaps it is that experience which informed, or helped to inform, the remarks of the Chief Coroner, his honour Justice Thomas Teague, who has said publicly that one of his key objectives in his role is to ensure that the inquisitorial ethos of the inquest process is maintained. I hope that demonstrates a resolve within the system to address the failings or, at best, the over-eagerness, of counsel whose conduct the noble Lord described.
The amendment to increase the scope of legal aid at inquests would run counter to the approach of retaining their inquisitorial character. There is a risk that additional lawyers present at an inquest would not provide an overall improvement for the bereaved, that being something which ought to be a primary consideration, for the reasons expressed by my noble friend Lady Newlove. It is foreseeable—I think this is the point raised by my noble friend Lord Sandhurst—that the presence of additional lawyers could have the unintended consequence of turning an inquisitorial process into a complex exercise—
Baroness Chakrabarti (Lab)
I am grateful to the Minister for giving way. I do not doubt the sincerity of his concerns about trying to maintain informality in inquisitorial process. However, can it ever be conscionable for an inquest to involve a totally unrepresented core participant or bereaved family in circumstances where those whom the bereaved family suspect of being responsible for their loved one’s death are represented by professional lawyers, counsel and QCs? Can that basic inequality ever be conscionable, not least when we are dealing with lay people, with public concern and with public money that is all going to some parties and not to the bereaved?
Lord Stewart of Dirleton (Con)
I am grateful to the noble Baroness for her intervention.
I was going on to say that, for bereaved families who need legal help, advice and assistance are always available under the legal aid scheme, subject to the means and merits test. This can help preparation—
Baroness Newlove (Con)
I take on board what my noble and learned friend says. I come from a victim’s perspective in all this. While it is all rule of law and whatever, victims’ families do not feel any of what my noble and learned friend is saying, because it feels like the professionals are dealing with all the processes. Victims’ families see all these high-end QCs and whether the other person is competent—I think that also gives a two-tier process for the victims’ families. Why should competency be at one end? I take on board what the noble Lord, Lord Pannick, said. The whole point is that they do not get that advice because there is nobody there to advise them.
I have worked with the Chief Coroner. He has no powers to control coroners across the country. Inquests are so poorly funded that there is no advice for victims in all this. We are missing all the pieces of the jigsaw. I say it with no disrespect, but it does not happen on the ground. Families want respect and dignity. All they see is the other side building all the towers, but not for them. They feel irritated, upset and disrespected. Most importantly, they feel that it is all political window-dressing. Once again, the law does not represent the families, who are the ones who are hurt and traumatised.
Lord Stewart of Dirleton (Con)
My Lords, my noble friend’s personal experience and her service as Victims’ Commissioner lend force to her eloquence.
I shall go on to address the funding available for attendance at inquests, but in answer to the points just raised and to reiterate, in the vast majority of inquests the simplicity of the four questions which the coroner is obliged to seek to answer is such that legal representation and legal aid will not be necessary. In circumstances such as those my noble friend described, where there is complexity or where the competing interests are such that lawyers are briefed on behalf of agencies perhaps seeking to lay down defensive positions in the face of future litigation, it is right that there is a mechanism whereby bereaved families or bereaved individuals might be represented.
Baroness Bennett of Manor Castle (GP)
I thank the Minister for giving way. He said that it is right that families should be represented, but surely he would acknowledge that that has not been the case, as in the case I cited, as well as in many others where families have not been able to be represented.
The noble Baronesses, Lady Chakrabarti and Lady Newlove, focused on the families being represented and having a voice, but would not the inquisitorial process, which is supposed to arrive at the truth, be improved and more likely to get to the correct conclusion if there was a balance of arms—a balance of forces—as we have been talking about?
I apologise to the Committee: I probably should have declared my position as vice-chair on the All-Party Parliamentary Group on Legal Aid.
Lord Stewart of Dirleton (Con)
Ultimately, my Lords, arrival at the truth is the objective of all legal process in this area, but the inquest convened under the coroner is but a part of that overall inquiry. That the truth is the ultimate objective does not, with respect to the noble Baroness’s point, confirm that in every case there must be legal representation. I maintain that for the vast majority of inquests the questions posed—the circumstances—are not such as to oblige in the interests of justice that there be representation for all parties. The amendment to increase the scope of legal aid at inquests would run counter to that approach.
Lord Mackay of Clashfern (Con)
Before the noble and learned Lord sits down, I made a mistake earlier in not referring to the noble Lord, Lord Rosser, properly. That was my error; I am sorry for it, and I am sure he will forgive me.
Lord Stewart of Dirleton (Con)
Before the noble and learned Lord, Lord Falconer of Thoroton, replies, I should say that I did not make reference specifically to the point raised by my noble friend Lord Mackay of Clashfern, in relation to the proposal that he and the noble Lord, Lord Rosser, advanced for the funding of representation in these areas. I will undertake to have the department of my noble friend Lord Wolfson of Tredegar look into the response that was made to the proposal which my noble and learned friend and the noble Lord put forward at that time and see if an answer can be given to the Committee at some appropriate stage as to how that was considered and what conclusions were reached.
Lord Falconer of Thoroton (Lab)
I am very grateful to everybody who has spoken in the debate. Everybody apart from the Minister supported the principle. There were various specific suggestions as to how the proposal could be improved, which I certainly take on board. As ever, the noble and learned Lord, Lord Mackay of Clashfern, put forward an incredibly sensible proposal. Amendment 269 says that if a public authority is designated an “interested person” or a “core participant”, then legal aid should provide funding proportionate to that to the families. I think the noble and learned Lord, Lord Mackay, is saying, “Let the relevant interested party or core participant from the public sector pay for it”, and I would not have any objection to that.
I have to say that the Minister’s response was awful—and this is not in any way intended to be an attack on the noble and learned Lord, Lord Stewart of Dirleton, who delivered, as ever, a very careful answer. It was awful because it indicated that the Government are going backwards. It represented a degree of complacency about the problem that was entirely unwarranted. The noble Baroness, Lady Newlove, very effectively expressed what the problem was. The noble Lord, Lord Beith, indicated, quite rightly, that this problem has existed for a very long time.
The problem was exemplified by the Hillsborough case. The families, having had a very fair hearing from Lord Justice Taylor in the public inquiry, then attended an inquest, day after day, having to cross the Pennines to get there, where they saw the findings of Lord Justice Taylor, as he then was, eroded by representatives of public authorities able to take advantage of their total inequality of arms, aided and abetted by some elements in the press—not all the press, but some elements—which used the process to denigrate those who had died. It was absolutely appalling.
The issue is not just the suffering of the individuals but the disrepute into which it brings our legal system. If our legal system is unable to come to an appropriate answer because of the inequality of arms—all the public authorities are represented by all the lawyers in the world and the families, who have a cause and are right, cannot get their position across—then what good is our legal system? That is the point that everybody in the debate has been talking about, and the Minister’s answer showed absolutely no appreciation whatever that that is the problem.
We will not have another opportunity to come back with something. Amendment 269 and the schedule to be put in after Schedule 20 deals with it by ensuring that where there is a public authority in the firing line, the families should be represented. I note what the noble Lord, Lord Sandhurst, says, but all too often long-running problems with particular health bodies never get properly recognised because ultimately the health body is properly represented and the families are not. We will be back. In the meantime, I beg leave to withdraw the amendment.
“Section 6 of the Sexual Offences Act 1956: removal of time limitation
Proceedings for the offence under section 6 of the Sexual Offences Act 1956 (intercourse with a girl between thirteen and sixteen) are not to be barred only by virtue of the passage of time since the date of the alleged offence.”
Baroness Kennedy of Cradley (Non-Afl)
My Lords, I shall speak to Amendment 277 in my name and I fully support Amendment 292C in the names of the noble Baroness, Lady Newlove, and others.
In 2004, when this House also acted in its judicial capacity, it considered an appeal by a Mr J, who had been convicted of three counts of indecent assault and one count of gross indecency with a child. Mr J, 35 years, had seduced the 13 year-old daughter of a friend. The charges of indecent assault actually related to full sexual intercourse. There was no doubt that he did those acts, for which he was originally sentenced to three years’ imprisonment, but this House quashed the convictions for indecent assault. The reasons why are still relevant today. Men who seduced girls between the ages of 13 and 16 before 1 May 2004 are now immune from prosecution on account of this case. It is still possible to do something about this, but legislation is needed, hence my amendment.
The problem is that sexual offences committed before 1 May 2004 must be prosecuted under the Sexual Offences Act 1956. Under that Act, the applicable offence is unlawful sexual intercourse, as outlined in Section 6. In the 1956 Act, there is a time limit of one year from the alleged commission of the offence under Section 6. Proceedings must therefore be instituted within a year from then. This time limit is clear and unambiguous and can be found in paragraph 10 of Schedule 2 to the Act.
The problem had been going on for some time, since before May 2004, but prosecutors were for a long time able to evade the time limit. Instead of charging for underage sexual intercourse, which could not be done if the offence was discovered or prosecuted too late, they would charge for indecent assault in relation to the same underage sexual intercourse.
That is where the J case comes in. Mr J argued that this was impermissible and the House accepted that argument. Since that time in 2004, men who procured sexual intercourse from vulnerable and impressionable girls before 1 May 2004, perhaps introducing them to like-minded friends, have been practically immune from prosecution. The only applicable offences in the 1956 Act were time-barred as a result of the time limit relating to underage sexual intercourse.
To avoid confusion, I should say that the time limit problem does not apply where the offence has been committed since 1 May 2004. If a man had sexual intercourse with a girl aged between 13 and 16 after 1 May 2004, he can be prosecuted for the new offence of sexual activity with a child. That was created by the Sexual Offences Act 2003 and no equivalent time limit is applied to it.
Many cases, however, are historical in nature and precede 1 May 2004. The 1956 Act must then still be applied, with all its anomalies—including this time limit. In theory, if two women came forward today and woman 1 reported abuse that took place on 30 April 2004 while woman 2 reported abuse that took place the next day, on 1 May 2004, only woman 2’s case would proceed, because the modern law of the 2003 Act applies to only her case.
Some may read this speech and question why I am assuming female victims and not children of any gender. Here, the story gets worse still. This time limit applies only to offences committed against underage girls; if the victim were a boy, it would be different, as historical cases of sexual intercourse between men and boys under 16 can still be prosecuted. The time limit applies only to girls. How can the law deny justice and discriminate in this way and this House not seek to put it right?
In fact, we can find anomaly after anomaly in this area. In my research, I read the work of Dr Jonathan Rogers, assistant professor in criminal justice at Cambridge University, who gives a full account of them. For example, Mr J was in fact still punished for the act of gross indecency with a child which related to oral sex with the same consenting child. It is incomprehensible that oral sex with the abused girl could be prosecuted at any time while the sexual intercourse had to be prosecuted within one year.
Some may say this is a past problem, but it is a present one, because we are still uncovering abuses that happened before 1 May 2004. Historical sexual abuse is, sadly, coming to light too frequently in the news. We know that girls are regularly threatened into silence for long periods. Many girls are victimised in this way and recognise themselves as victims or have the confidence to go to the police only much more than one year later. That is well known.
Baroness Brinton (LD) [V]
My Lords, I wish to support both amendments, and echo the very strong points made by the noble Baroness, Lady Kennedy of Cradley, regarding Amendment 277, which relates to Section 6 of the Sexual Offences Act 1956 and removing the time limitation on proceedings for the offence of intercourse with a girl aged between 13 and 16.
This appears to be a loophole left over from the Sexual Offences Act 2003, as ably argued by Jonathan Rogers of Cambridge University in his chapter in a book analysing the law on historic offences. He referred to the case of J, outlined by the noble Baroness, Lady Kennedy, earlier, affecting cases where the offence occurred before 2004. In that chapter he says that a workaround regarding the time limit on reporting offences was:
“In the years leading up to the SOA 2003, this unusual time limit proved to be tolerable only because it used to be evaded (!), namely by charging instead indecent assault under section 14 of the SOA 1956, for which the underage girl could also not give effective consent, but for which no time limit was provided in the statute. So ‘rough justice’ could still be done, and it frequently was.”
His chapter goes on to explain that much of the law, including subsequent judgments, is grounded in
“a toxic mixture of misogyny, prejudice and ignorance.”
Reading evidence from the Independent Inquiry into Child Sexual Abuse and its various specific reports on child sexual abuse in certain areas of society, it is absolutely clear that victims—especially child victims—of sexual abuse often find it difficult to come forward at the time. It is worrying, therefore, that there has to be a workaround to deal with a law that reflects late Victorian society’s attitudes to girls aged 13 to 16 being abused.
Amendment 292C asks for an extension of time limits for prosecutions for common assault in domestic abuse cases. I look forward to hearing the noble Baroness, Lady Newlove, speaking to her amendment, and propose to speak briefly only on one common theme that links these two amendments.
In 2017, the Ministry of Justice responded to a petition to Parliament that sought to remove time limits on the victims of domestic abuse getting legal aid, saying:
“Respondents to the survey in particular felt that the time limit is arbitrary—respondents felt that a victim does not stop being a victim after the passage of time. Similarly, they felt that the risk of experiencing violence does not necessarily dissipate over time.”
There is substantial evidence to show that many women—it usually is women—do not report the first, second or even 10th incident of domestic violence. The reasons for this are many, but fear of the behaviour of their partner is key. They may also still be in a relationship with the abuser, and there is the worry—too often well founded, sadly—that they will not be taken seriously when they report the behaviour. The current six-month time limit means that many common assault charges time out and the women cannot access justice, and the protection and support that the justice process can offer them is denied.
Both amendments seek to change the time limits. First, there is a loophole that needs to be sorted out in a 21st century world that understands child sex abuse better than seven decades ago, let alone in the late 19th century. Secondly, they seek to extend the time limit to up to two years for domestic abuse victims to be able to report their abuse to the police. I shall be glad to support both amendments. The courts and prosecutors should not have to rely on workarounds.
Baroness Newlove (Con)
My Lords, as the former Victims’ Commissioner, I am amazed by these time limits. To find our domestic abuse victims were being constantly told they were timed out beggars belief in the 21st century, considering we can buy an item in our homes that has a 10-year guarantee, a two-year guarantee, or whatever, yet common assault has six months. What does that say about how we look at human lives?
Under current rules on common assault, any instances of common assault, regardless of context, must be reported within six months of the incident occurring. If a report is made outside this six-month period, there is no option, as has been said, for the police or the CPS to bring charges and, unless there are other charges to be brought, the alleged perpetrator faces no further action.
The CPS definition of common assault is
“any act by which a person intentionally or recklessly causes another to suffer or apprehend immediate unlawful violence.”
It does not necessarily have to include literal physical violence; it can include raising a fist, spitting or using threatening words.
The reason for the rule is that we need cases to travel through the system quickly—especially considering recent court backlogs and long delays across the system. However, the rules on common assault are built on the assumption that crimes can be reported quickly and easily. This might be the case for a fight in the street with a stranger, but it cannot and should not be applied to domestic abuse contexts.
Regarding the impact on victims, most will not even know that this law exists until they come forward and find that it is too late. They will make the hugely brave decision to come forward and make a report to the police, only to be told that time has run out and there is nothing to be done. Victims are being left completely in the dark.
Perpetrators, however, will often have the support and guidance of a legal representative, especially if they have offended in the past. It is highly likely that perpetrators are much more aware of this time limit than the victims—some perpetrators may even use this loophole in the law to their advantage.
The time limit not only allows perpetrators to carry on abusing, it emboldens them to do so. There are sure to be cases where a victim has come forward with their report; it has failed due to the time limit, and they have faced further abuse and violence as punishment or retribution for telling the police. The time limit in its current form is putting victims in harm’s way.
The offences covered by common assault—threatening words, raising a fist and spitting—are the types of crime that can easily escalate if perpetrators are not stopped. The time limit is preventing any kind of intervention. The message being sent to victims by the current law is that common assault is not important enough to prosecute, and that victims will be listened to only if they have been more seriously hurt.
Common assault is often the only charge left to lay. Police officers have spoken to me about their frustration in trying to reach the higher evidence threshold for actual bodily harm or coercive control and being told by the CPS that it should be downgraded to common assault instead. However, because of this rule, it is often too late. A dangerous perpetrator is allowed to go free and will probably go on to offend again, against the same victim or someone new.
Police forces have also spoken about the complexity of investigating domestic abuse. It can often require extensive digital investigation and the need to gather medical and forensic evidence. All this takes time and often cannot be done in a six-month window, even if the victims report straightaway.
There are examples of victims coming forward with reports a month or two after an incident occurs—so within the time limit—but cases still failing because they cannot be adequately investigated in the time left. So, it is not just about victims coming forward, it is about the complex nature of domestic abuse, which is not currently reflected in the law.
BBC figures obtained through freedom of information requests show that nearly 13,000 cases of common assault in the domestic abuse context were closed due to the time limit between 2016-17 and 2020-21. Only 30 of the 43 police forces in England and Wales responded to the freedom of information request, so the real figure is likely to be much higher. In the same period, the number of common assaults flagged as domestic abuse increased by 71%. Meanwhile, the number of these common assaults that resulted in charges being brought fell by 23%.
Baroness Chakrabarti (Lab)
My Lords, I support both noble Baronesses’ amendments and urge the Minister to accept them with alacrity or, if that is not possible, to work with the noble Baronesses and parliamentary counsel to achieve the compelling intentions behind both amendments.
The last thing my noble friend Lady Kennedy of Cradley needs to do is apologise to the Committee for not being a lawyer because, if I may say so, her speech in support of her amendment combined every ounce of detailed legal reasoning with a humanity of which any lawyer would be proud. The anomaly to which she refers goes back to the 1956 Act, which sat around on the statute book before the 1997 Labour Government conducted a sex offences review. Clearly, this anomaly has not been corrected.
This particular offence is very grave, and it should never have had a time limit. In criminal law, we understand why certain lesser offences should be time-limited. We would not want every ordinary common assault or minor act of shoplifting not to be subject to a time limit, with this sword of Damocles potentially hanging over young people for the rest of their lives. We understand the public policy reasons to have time limits, but I suggest that to have them for such grave offences is contrary to the rule of law and fundamental human rights. The anomaly to which my noble friend Lady Kennedy of Cradley spoke so well clearly puts this jurisdiction in violation of Article 3 of the European Convention on Human Rights, and probably Article 14, on account of the various types of discrimination that are also involved—between not just boys and girls at the time, but children and adults who did not consent. We rightly assume that young children do not have the capacity to consent.
My noble friend Lady Kennedy is so right that the rule against retrospectivity is a presumption against changing the substance of a criminal offence. She put the point well: it is not there to prevent us from dealing with procedural obstacles that are unconscionable, as she is attempting here. So I see no problem at all with retrospectivity, because it would be contrary to any notion of human rights or justice for a defendant charged today, tomorrow or as soon as this is enacted, to argue that he thought he was in the clear because enough years had passed since this terrible crime. Even with substantive changes to criminal law, there have been exceptions to the presumption against retroactivity, as we saw in the higher courts some years ago when the position on marital rape was changed. In one case, the defendant said, “This is not fair; I raped my wife when I thought I was allowed to.” In any event, this is a procedural matter that is standing in the way of dealing with a terrible anomaly and human rights violation that will be ongoing unless we deal with it.
As to Amendment 292C in the name of the noble Baroness, Lady Newlove, and her supporters, common assault can be a minor enough offence in certain contexts, such as the two young people who have a fight. It is fine to leave a short time limit for that, but domestic abuse is a very particular context in which the victim, whoever in the family they are, may well still be in the abusive situation within those two years. Rather than create a separate specific offence of common assault domestically, why not deal with it in the fairly neat way that the noble Baroness, Lady Newlove, has?
If the Minister or his colleagues disagree with me, no doubt they, with the aid of parliamentary counsel, can come up with the right fix. However, I say to this Committee that both of these matters need to be dealt with not in future but with this vehicle. Frankly, there are lots of things in this very large Bill that I do not agree with, but the Bill would do something good if these two matters were tackled immediately.
Lord Russell of Liverpool (CB)
My Lords, I was very happy to put my name to the amendment in the name of the noble Baroness, Lady Newlove, but first I will refer briefly to Amendment 277. The first thing I have to say is that, as any inhabitant of the West Midlands will know, the noble Baroness who moved the amendment is the noble Baroness, Lady Kennedy of Cradley. It is pronounced “Cradely”, not “Cradley”—it is a bit like “Chumley” instead of “Cholmondeley”.
My second point is this: the point made by the noble Baroness about the amount of time that sometimes elapses before individuals feel able to come forward is a moot one. Yesterday evening, I watched a new programme with my daughter. It was a documentary on a well-publicised streaming platform that begins with the letter “N”; I will not advertise it here. The programme is called “Procession” and deals with the way in which five men, all of whom were the victims of predatory Catholic clergy 30 to 40 years ago, have finally started being able to talk about what happened to them and come to terms with it. When something like that happens to one at that age—in this particular instance, these young men were even younger than the people we are talking about, aged between 13 and 16—it does not take a brilliant imagination to work out the sort of trauma that it must instil in people and how difficult it can be even to recognise it oneself, let alone bring oneself to talk to others about it. The noble Baroness’s point was well put; it will be hard to disagree with her.
On Amendment 292C, first, I put on record my thanks—indeed, our thanks—to Yvette Cooper, who has been pursuing this forensically in another place. Her latest attempt was made today when she asked the Home Secretary directly what her view on this is and whether anything will happen. I am not clear why we are debating this amendment at all because, on 5 July, Victoria Atkins, now in the Ministry of Justice but the then Home Office Minister, said this in the House of Commons when talking specifically about this same amendment:
“We take this issue very seriously, and I can assure the House that we will return with a proposal at a later stage. I certainly do not rule out an amendment, if appropriate, in the Lords. This must be looked into”.—[Official Report, Commons, 5/7/21; col. 572.]
There it is on the record.
As the noble Baroness said, the Home Office seems to have developed a sort of hotline with certain reporters in the BBC, where certain potential developments are briefed to the BBC, which puts them out fairly prominently. There is then complete radio silence; there is no acknowledgement by the Government or Home Office in any way, shape or form that a briefing took place, so we are left in a slight quandary as to whether it did or not. Unlike some noble Lords, those of us on the Cross Benches have a high enough regard for the BBC that we tend to believe it when it comes out with something like this, so I find this practice of putting these things out into the public domain then saying nothing about them somewhat unhelpful. Frankly, it is a sort of legislator abuse since many of us are trying to do our best in talking on behalf of others and it is confusing when the Government apparently say one thing to the media and then stand at the Dispatch Box and say something similar to what they have been saying, sometimes for many years. My noble friend Lady Newlove put the case clearly.
Lord Hunt of Kings Heath (Lab)
My Lords, I have added my name to the amendment in the name of the noble Baroness, Lady Newlove; I also support my noble friend in her powerful advocacy for her own amendment.
I want to emphasise a couple of points made by the noble Baroness. She referred to HMIC report, Police Response to Violence Against Women and Girls. I must say it makes for very sober reading about the inadequate response of many police forces to these issues. We know from the report and from the statistics referred to by the noble Lord, Lord Russell, that many cases do not proceed through the criminal justice system and, of the offences that do come to the attention of the police, many do not proceed any further. I would not argue that time limits are the sole reason, but they are a factor. I am indebted to Refuge, which does fantastic work in this area, for setting out some of the challenges that particularly women experiencing domestic abuse face and why they delay reporting incidents of common assault. They may feel understandably traumatised or physically unsafe immediately after the incident. They may still be in a relationship with the perpetrator. They may be dealing with the traumatic and logistical challenges of fleeing the scene.
Due to the six-month time limit on charging summary common assault offences, by the time many women are ready to speak to the police, they are told that the charging time limit has passed and there are no further opportunities for them to seek justice against their perpetrator or access protection through criminal restraining orders. There are so many reasons why, quite legitimately, women in particular are not able to come forward and meet the time limit. I appeal to the Minister not to respond with a typical ministerial response but to say that he will take this away and look at it. I echo the point made by the noble Lord, Lord Russell. I have noticed the practice of announcements being made in the media about what the Home Secretary is going to do but then often dying a death. We realise that sometimes they are flying a kite to see how it lands, but this is not the way to do business on such sensitive and important issues. I hope that the Minister will bring us comfort.
Lord Pannick (CB)
My Lords, I, too, support these amendments. I shall add two very brief points in relation to Amendment 277, which was moved by the noble Baroness, Lady Kennedy. First, the noble Baroness referred in her speech to the Appellate Committee decision in R v J. The Committee may be interested to know that in that decision Lord Bingham of Cornhill, the senior Law Lord, said at paragraph 15 that the history of the 1956 Act
“has been shown to result in much internal inconsistency and lack of coherence”.
His Lordship added that the fact that an unambiguous statutory provision—and it is unambiguous—is
“anachronistic, or discredited, or unconvincing”
does not enable a court to do anything about it. This Committee and Parliament are, of course, under no such inhibition, and for the reasons that have been given, I hope we will do something about it.
The only other point I want to make is that any defendant in any criminal case who believes that the passage of time results in unfairness to them is perfectly entitled to submit to the court that it would be an abuse of process for the trial to continue. They are perfectly entitled so to argue, but that is not a reason why we should not amend the law in the way suggested.
Lord Thomas of Gresford (LD)
My Lords, I am disappointed that the noble Lord, Lord Pannick, did not refer to the opinion of the noble and learned Baroness, Lady Hale, in the case of J. She dissented—notwithstanding Lord Bingham’s inability to change the law—in these words:
“In short, the 1956 Act was a mess when it was enacted and became an ever greater mess with later amendments. It is not possible to discern within it such a coherent Parliamentary intention as to require it to be construed so as to forbid prosecution for a “mere” act of sexual intercourse after 12 months where that act properly falls within the definition of an indecent assault. Although we do have to try to make sense of the words Parliament has used, we do not have to supply Parliament with the thinking that it never did and words that it never used.”
I think we can see which side the noble and learned Baroness, Lady Hale, was on in that case.
The restriction has had an interesting history. Non-consensual sex was, and is, of course, rape, but consensual sex was a different matter. A girl was protected until the age of 10 under Queen Elizabeth I, to the age of 12 under George IV, 13 in 1875 and finally 16 in 1885. The time limit for bringing proceedings was at first within three months in 1885, which was increased to six months in 1904 and to nine months in 1922, and a provision of the Criminal Law Amendment Act 1928 increased the time limit to 12 months. It was anomalous then, and it is anomalous now, and I fully support the amendment in the name of the noble Baroness, Lady Kennedy of Cradley.
Amendment 292C in the name of the noble Baroness, Lady Newlove, seeks to extend normal time limits imposed on summary proceedings in the magistrates’ court and suggests that an offence of common assault may be brought within a period of six months from the date of reporting, rather than the date of the incident, with an outside limit of two years where it comes within the ambit of domestic abuse. This is an issue that might well have been discussed in the recent passage of the Domestic Abuse Bill. Summary proceedings are really intended to be summary. Assault and battery are attacks or threats of attack on the person. If significant injuries are caused, they should be tried on indictment in the Crown Court as ABH—assault occasioning actual bodily harm. So where is the dividing line between common assault and ABH?
The noble Baroness, Lady Newlove, referred to the CPS guidance Offences Against the Person, Incorporating the Charging Standard, dated 6 January 2020, which states that common assault is charged
“where injuries amount to no more than … Grazes; Scratches; Abrasions; Minor bruising; Swellings; Reddening of the skin; Superficial cuts.”
By contrast, ABH includes
“damaged teeth or bones, extensive and severe bruising, cuts requiring suturing”
and injuries
“that result in loss of consciousness.”
ABH is appropriate where
“the victim is vulnerable or intimidated”,
including
“a pattern of similar offending against the victim”,
and if a person suffers mental stress, that can also be seen as ABH. Your Lordships will appreciate that if the case is brought for ABH on indictment, this procedural limitation of the magistrates’ court does not apply.
Therefore, it is arguable that injuries of the nature that require interfering with the customary time limit applied in summary proceedings may not demand a change. I think the protections which are contained in the Domestic Abuse Act 2021 should deal with the problems in the area referred to by the noble Baroness, Lady Newlove. If a domestic abuse protection order is issued, breach of it is a criminal offence, which can be triable either way. A summary conviction may lead to a sentence of 12 months’ imprisonment, while conviction on indictment may lead to a term of imprisonment not exceeding five years.
This is the important point: a protection order can be made where the court is satisfied on the balance of probabilities. The prosecution does not have to prove beyond reasonable doubt that the victim has suffered. It is on the balance of probabilities for a protection order: simply that the person concerned has been abusive towards a person aged 16 or over to whom he or she is personally connected, where it is necessary and proportionate to protect that person from domestic abuse or the risk of domestic abuse. No time limits are set. I think we have moved on from common assault at common law in this field, and it may well be that this amendment is unnecessary.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I support both these amendments. My noble friend Lady Kennedy of Cradley is seeking to get rid of time limits relating to having sex with girls aged between 13 and 16 before 1 May 2004. As she said in her comprehensive introduction to the amendment, it is not known whether this anomaly, which a number of noble Lords have described, affects thousands of girls or fewer. It is simply not known. Nevertheless, from my understanding of the way she presented the case and the other comments on the amendment, it clearly seems to be a loophole which could be closed.
The noble Baroness, Lady Newlove, explained why common assault is different in domestic abuse cases from general common assault. As I think I have said in other Committees, I fairly regularly sit in domestic abuse courts in magistrates’ courts, and I have to say that I disagree with the concluding comments of the noble Lord, Lord Thomas of Gresford, that we seem to have moved on from common assault with domestic violence protection orders. Certainly, the way I view them, and I do those courts as well, they are very different because they are dealing with the civil standard. You can have cases where people have simply been abusive to each other and you are dealing with a very different type of case, in my experience, from common assault cases which you see in a more standard domestic abuse court.
Lord Stewart of Dirleton (Con)
My Lords, I thank the noble Baroness, Lady Kennedy of Cradley, for her amendment.
For the victim of a crime to be told that the culprit cannot be prosecuted because a time limit has elapsed would doubtless be the cause of, at the very least, dissatisfaction and, at the very worst, anguish, and may very well lead to a loss of confidence in the criminal justice system. That is why, in respect of offences that are serious enough to be capable of being tried in the Crown Court, such time limits are virtually unknown in our system of criminal law in England and Wales. That differentiates England and Wales from many other jurisdictions, where time limits apply even to the most serious offences.
In England and Wales, the only exceptions are certain customs offences and offences of unlawful but consensual sexual intercourse, which I shall refer to as USI, with a girl aged 13 to 15 years committed before 1 May 2004, when the Sexual Offences Act 2003 came into force. The statute which that Act replaced, the 1956 Act—I extend apologies to the noble Lord, Lord Ponsonby of Shulbrede, for yet further legal history here—included a requirement that a prosecution for USI with a girl aged between 13 and 15 must be commenced within 12 months of the offence. That requirement was highly unusual even when it was enacted, and it was duly removed by the 2003 Act. I am sure that members of the Committee will echo the words of the noble and learned Baroness, Lady Hale, quoted by the noble Lord, Lord Thomas of Gresford, in relation to the 1956 Act.
That was an anomaly, as the noble Baroness, Lady Chakrabarti, and other noble Lords have described it in our discussion today. However, when it was removed in 2003 it was done so only prospectively, from the point when the Act came into force; in relation to offences that would fall to be charged under the 1956 Act, the time limit remained.
As your Lordships are aware and have heard again today, Parliament usually acts on the principle of non-retroactivity. Removing the time limit in circumstances where a prosecution was already time-barred, while it would not have amounted to substantive retroactivity in the sense of criminalising conduct that was not previously unlawful, would have exposed a person to criminal liability where there had been none before. Thus, Parliament’s aversion to retroactive legislation also applies to fundamental procedural preconditions for the bringing of charges against an individual. In relation to that—the point was canvassed by the noble Baroness, Lady Chakrabarti—I make reference to the case before the European Court of Human Rights called Antia and Khupenia v Georgia. Oh, for a Lord Russell of Georgia, that I might be corrected for any mispronunciation of the names of any plaintiffs in that matter.
For that reason, we do not consider it would be right to disregard the time limit in the increasingly rare cases in which it would apply. Since the changes in the 2003 Act were not made retrospective at that time, I submit that it would be difficult to justify now extending them to cases in which prosecution has been time-barred for at least the intervening 17 years—even allowing for the development in our understanding of sexual crime, as referred to by Members of this Committee who contributed to the debate.
I join the noble Baroness, Lady Chakrabarti, the noble Lord, Lord Russell of Liverpool, and others in acknowledging the skill and humanity with which the noble Baroness, Lady Kennedy of Cradley, presented her amendment to the Committee. I am grateful to the noble Baroness for expressing a willingness to meet. I would be delighted to meet her at any time, but I think it would be more convenient for her, for the purposes purely of this amendment, to meet with my noble friend Lord Wolfson of Tredegar, the Minister in charge. I have taken steps by electronic means during the discussion in the Committee to arrange that my noble friend is made aware of her desire to meet, and an appointment will be fixed.
Baroness Chakrabarti (Lab)
Obviously I will go and read the Georgian case—I will call it “the Georgian case” so as not to repeat my earlier offence in relation to my noble friend—but, before any meeting, I will just say one thing. The Georgian case is now being cited as the reason why the Government will not move in my noble friend’s direction. I repeat my concern that we are currently in breach of the convention on human rights, not in relation to an Article 7 point but in relation to an Article 3 violation in relation to any woman, of whatever age, who now says “My statutory rapist will not be dealt with”. The Georgian case is up against cases such as X in the Netherlands and all the other cases where people were barred from getting redress in the criminal courts. That needs to be considered by the Minister as a senior law officer in Her Majesty’s Government.
If our positions were reversed and I had to face these two potential challenges in the European Court of Human Rights—a man who says “I had the opportunity to run Lord Pannick’s arguments about delay but none the less I was convicted of a historic statutory rape and I say that is a violation of my Article 7 rights” versus a woman who says “My rapist was not dealt with because of this time limitation”—I know which of those challenges I would rather defend as Her Majesty’s Government.
Lord Stewart of Dirleton (Con)
My Lords, I acknowledge the long-standing interest and expertise of the noble Baroness, Lady Chakrabarti, in this field. Her words will have been noted by the Bill team listening in on this, and I assure her and the Committee that that matter will be examined.
My intention was to turn now to the terms of Amendment 292C. Again, I am grateful to my noble friend Lady Newlove and the noble Lord, Lord Russell of Liverpool, for raising this issue in the Committee and, in so doing, raising a matter that, as your Lordships have heard, the Government have acknowledged in the other place to be an important one. The amendment would have the same effect as one tabled during the passage of the Bill through the other place, both in Committee and on Report—that is, to alter the period of six months allowed for bringing
“summary proceedings for an offence of common assault or battery involving domestic abuse”,
as defined by the Domestic Abuse Act 2021, so that it ran not from the commission of the alleged offence but from its being reported to the police within two years. I sense that the Committee will be as one in agreeing that it is essential that victims have confidence in the justice system—confidence that it is a fair, impartial system that will support them when they come forward.
A number of noble Lords who have given their views on this amendment have spoken of the context of domestic violence, in which these matters take place. We know it may take many attempts before victims of domestic abuse finally leave the abusive relationship, and that this may cause delay in reporting crimes to the police. When the Bill was in the other place, we acknowledged the concerns about the possible effect of the six-month time limit for prosecuting summary-only offences—common assault in particular—in domestic abuse cases. Again, there is no disagreement between us about the importance of domestic abuse victims being able, practically, to seek justice. They should not be frustrated in so doing by the standard time limits set by Section 127 of the Magistrates’ Courts Act 1980, should the evidence indicate that this time limit is too short in this context.
We were clear in the other place that this is an issue that must be looked into. The Home Office has been working to obtain data on cases that appear to have been brought to an end through the operation of the current time limit. I am also aware of the media coverage, to which the noble Lords, Lord Russell of Liverpool and Lord Hunt, referred. I note the concern expressed that, for whatever reason, it would appear that matters are being submitted to the press in advance of proper scrutiny by Parliament. Being aware of those concerns, I will relay them to the appropriate quarters.
I can confirm to the Committee today that we agree that there is a problem here and that domestic abuse-related crimes are disproportionately likely to be timed out. The Domestic Abuse Act demonstrated clearly this Government’s determination to address domestic abuse, and throughout its passage we showed our willingness to listen and take additional steps to address this abhorrent crime. It is important that we develop a proportionate response to this issue, so I ask for the patience of the Committee while we complete consideration of the matter and finalise our proposals. As the previous Minister for Safeguarding at the Home Office—now Minister of State at the Ministry of Justice—the Member of Parliament for Louth and Horncastle, Victoria Atkins, has stated, that might include an amendment. We will complete our consideration shortly, and I assure the Committee that we will return with a proposed course of action on Report.
I hope all Members of the House with an interest in this subject, including the noble Baroness, Lady Greengross, who spoke on it on Second Reading, will be reassured by what I have been able to say. Therefore, on the clear understanding that we agree there is a problem to resolve and that we will be able to return to the issue with our conclusions on Report, I urge the noble Baroness to withdraw her amendment at this stage.
Baroness Kennedy of Cradley (Non-Afl)
My Lords, I am grateful to all noble Lords and noble and learned Lords who have spoken in today’s debate and supported my Amendment 277 and Amendment 292C in the name of the noble Baroness, Lady Newlove, and others. I am heartened by the debate. I thank the Minister for his reply; however, I am disappointed that the retrospective argument is the main one being given for not moving ahead to change this legislation. But I am hopeful and grateful for the agreement to meet the noble Lord, Lord Wolfson, to discuss this issue further before Report. I thank my noble friend Lady Chakrabarti for potentially giving me another reason—Article 3—for this legislative change. I will go and read the case cited around the article and discuss this directly with her to add the argument to my armour.
“Referendums on abolition of Police and Crime Commissioners
(1) A referendum is to be held for each police area listed in Schedule 1 to the Police Act 1996. (2) Each referendum is to be held on the same day as the next Police and Crime Commissioner election.(3) The question that is to appear on the ballot papers is—“Do you think that your local police force should be overseen by an individual Police and Crime Commissioner, or by a Police Authority made up of a committee of local councillors.”(4) The alternative answers to that question that are to appear on the ballot papers are—“My police force should be overseen by an individual Police and Crime Commissioner”, and“My police force should be overseen by a Police Authority made up of a committee of local councillors”(5) Those entitled to vote in the referendum are the persons who, on the date of the referendum, are allowed to vote as electors in the Police and Crime Commissioner election.(6) Where the referendum results in a majority for a police area being overseen by a Police Authority made up of a committee of local councillors, the Secretary of State must by regulations made by statutory instrument make provision for the purposes of implementing the result within one year of the passing of this Act.”Member’s explanatory statement
This amendment is intended to establish referendums to determine how each local police force should be governed.
Baroness Jones of Moulsecoomb (GP)
The two amendments I have tabled in this group are not on such a weighty issue as the sexual crimes we have been discussing. But they are on an issue of democracy, and I thank the Government on this occasion for making the Bill so gigantic that these two amendments come within scope. There are two distinct issues in my amendments. Amendment 278 focuses on the abolition of police and crime commissioners, and Amendment 279 is about abolishing the £5,000 deposit needed to stand as a candidate in police and crime commissioner elections.
Under the referendum idea, each police area would have its own referendum held on the same day as the next police and crime commissioner election. The question would be whether to keep police and crime commissioners or return to police authorities made up of a committee of local councillors. Importantly, for a referendum, my amendment also includes provision that the Secretary of State must then implement the result by statutory instrument, because this is intended to be a binding referendum, not an advisory one with no legal consequence.
The Green Party does not believe that police and crime commissioners have been a success. They have replaced a democratic, committee-based system with a directly elected position subject to very little scrutiny. Most normal people do not pay much attention to politics, and that is true across the board, but when you get as far down the pecking order as police and crime commissioners, even many political boffins probably could not name their local PCC. It was an unnecessary political experiment, and local people should be given the option to return to the old system of committee governance.
We have one former Met commissioner here, and he might be able to agree with me that the Metropolitan Police Authority and the assembly committee charged with holding the police to account worked extremely well. I am not suggesting something that has not been proved to work in the past.
Amendment 279 is about deposits and is limited to PCC elections due to the scope of the Bill, but election deposits should be abolished completely for all elections. Supposedly, they exist to deter joke candidates, allowing only serious candidates to stand for election, but it is obvious that this does not work. There are plenty of joke candidates who are not deterred by the deposit. One only has to think back to the Prime Minister’s election battle against Lord Buckethead, Count Binface, and a person dressed as Elmo. All three lost their deposits and seemed thoroughly to enjoy doing so. The 2019 general election saw 1,273 parliamentary candidates each lose their £500 deposit, totalling £636,500. The figure included 465 Green Party candidates, 136 Liberal Democrats, 165 Brexit Party candidates and 190 independent candidates.
Therefore, joke candidates were not deterred, and neither were very committed candidates who wished to stand for election to help improve their local area. However, the outcome was that the established parties—the Conservative Party and the Labour Party—kept most of their deposits, with anything that they did lose a drop in the ocean of their overall party budgets, while the smaller parties and independent candidates suffered a huge financial disadvantage. Election deposits are nothing more than an election tax on people who want to participate in the democratic process, and they should be abolished. I beg to move.
Baroness Harris of Richmond (LD) [V]
My Lords, I have added my name to these amendments, which are indeed timely. Back in May 2011, during the passage of the Police Reform and Social Responsibility Bill, I tabled an amendment which effectively scuppered the then Government’s wish to bring in police and crime commissioners. It was a pyrrhic victory, of course, because when the Bill went back to the other place, almost everything that the Government wanted was reinstated. They got their police and crime commissioners. However, it was very much a cross-party effort to bring forward hundreds of amendments, as the noble Lord, Lord Hunt of Kings Heath, will recall.
Looking back on those amendments, it is quite clear that we were right in our condemnation of moving from police authorities, which had 17 or 19 members, to a stand-alone police and crime commissioner. I declare my interest as a former chair of a police authority and as a vice-chair of the former Association of Police Authorities. Much of what we warned has come to pass. Commissioners are political creatures. Hardly any have been independent, which was the wish of the former Prime Minister, David Cameron. We said that this would happen, and it did. We also said that there would be some good commissioners, which there have been, and others varying from not so good to downright terrible.
This has been borne out in my own area of North Yorkshire. Allegations of bullying brought against our first PCC, among other strange decisions that she made, lost her the support of her political allies, so they got rid of her. We had another expensive by-election, which was of course won by the Conservative candidate. Within a very short time, public opinion hounded him out of office because he made incredibly damaging and insensitive remarks following the murder of Sarah Everard. We are shortly to find out who will succeed him, as we have yet another election, the third in 10 years. Up and down the country, PCCs have been found wanting, which I simply do not recall happening in the days of the old police authorities, when checks and balances were shared by having local councillors—elected representatives from different parties—magistrates and lay people to help in the governance of their local police force.
Most Members of your Lordships’ House recognise the dangers inherent in politicising the police. Amendment 278, which proposes a referendum on the abolition of PCCs, or having local councillors to hold the police to account, as was the case for many years before the PRSR Bill came into being, will allow for the governance of policing to be brought back into greater local accountability, as the noble Baroness, Lady Jones of Moulsecoomb, has said. Amendment 279 would remove the need for an election deposit of £5,000 for PCCs, thus enabling a wider selection of people to apply to become commissioners. Amendment 292D is also timely, as we have at present at least one PCC who has been convicted of a crime.
This experiment has not been the success that it was promised to be. As we have heard, most people still have no idea who their police and crime commissioner is, or what the cost is of running a dedicated office. Certainly, I managed with an office of three personnel. Different PCCs run many more than this, although I am happy that the former Association of Police Authorities has come through the changes with relative ease and just a slight change of name. The work that it did for us was phenomenal and I am sure that its successor organisation is equally excellent, but it has its work cut out with some of its members. This is the first time in 10 years that we have had the opportunity to return to a better system of police governance. I hope that we will take it.
Lord Bach (Lab)
My Lords, Amendment 292D is in my name. I hope that noble Lords will indulge me if I respond with a few remarks on Amendments 278 and 279. I will do it all in one go and be as brief as I can. I do not intend to take up very much of the Committee’s time with these issues.
Amendment 292D perhaps should not be part of this group but it is, so I will move ahead with it. It is because of the scope of this Bill that I have been able to table this amendment. I will start with two case histories. The first is about a 19 year-old, who, a long time ago, during the Italia 90 World Cup—which noble Lords in the Committee will remember—was in a public house with a friend, watching the football. An incident in which the friend was involved meant that the police were called. The first individual tried to stop his friend from making an even greater idiot of himself by assaulting the police and, for his pains, he was charged, no doubt properly, with obstructing the police. He was not charged with assault, but he was fined £20. Since then, he has never been in trouble again. He has been a councillor for many years and, ironically, he chaired the community services team—that part of the council which works closely with the police to reduce crime. He also happens to be the regional secretary of a very important organisation covering the whole of the Midlands and, to add irony upon irony, he is just celebrating his 20th year as a magistrate. Public-spirited, he applied to be a candidate for the position of police and crime commissioner in his area some years ago, only to be told that his conviction banned him from doing so.
Lord Bach (Lab)
I am sorry that it has taken so long. I have waited a long time for this opportunity in the Committee and I am sorry if I have abused it.
A good police and crime commissioner should be a combination of a diplomat and an innovator, with a sense of responsibility while doing the job. I am glad to say that the vast majority of them, if not all, see the position in that light. They deserve some support and not always denigration.
Lord Hunt of Kings Heath (Lab)
My Lords, I have added my name to these two amendments and I hope the Minister will agree to take them away. I did so, first, to support my noble friend Lord Bach, and, secondly, not so much to agree with the noble Baroness, Lady Jones, on her actual amendment but to try to develop a debate on the role of police and crime commissioners. As my noble friend has said, unfortunately we have had little opportunity to do so since the Bill in 2011 and the Act that was subsequently passed came in.
As the noble Baroness, Lady Harris, said, I led for the Opposition at that time. We were very glad to work with her and opposed the concept. It was defeated in the Lords and the Bill went back to the Commons without a reference to police commissioners, which was subsequently put back in. The fear at the time was always that it would risk undermining tolerant policing in this country by bringing political partisanship too close to police operational matters. I suggest that there is still that fear around the way in which PCCs have operated. There have of course been notable successes—I mention my noble friend Lord Bach, Dame Vera Baird and David Jamieson in the West Midlands as examples—but there have been failures too. A number of police and crime commissioners have had to resign prematurely under what one might call somewhat unfortunate circumstances.
During the passage of this Bill we have debated policing quite extensively, particularly in relation to lamentable performances on domestic violence. My noble friend Lord Bach, whom I rarely disagree with, thinks that nine years is too short a period on which to make a judgment. However, I think I am entitled to point out that on the cultural issues which are very much at the heart of police failures in relation to domestic violence, I cannot see much evidence that this new leadership has been able to tackle those effectively.
A two-part review of PCCs is going on at the moment. The first part reported in October last year and there is a second review. It is interesting that this review is not getting anywhere near the heart of the issues around PCCs. It is also interesting that, in the first review, a lot of reference was made to the dismissal process for chief constables, which reflects the fact that there has been a fallout in many areas between the PCC seeking to exert his or her power and the chief constable. There has been instability. Because of this, there is a shortage of candidates for chief constable roles—not surprisingly.
Of course, the tension between chief constables and police and crime commissioners was built into the legislation. PCCs were there to provide political leadership for policing in their area, but they were not responsible for leading their force. Police chiefs retained operational independence, making independent decisions supposedly free from political interference on operational matters. Of course, there is no definitive list of operational matters, nor an expectation that operational decisions should be free from political scrutiny altogether. Inevitably, a grey area was built in between policing matters that PCCs can influence and those that are at the operational discretion of chief constables.
Going back to our debate on the Bill, where policing culture and failures in domestic abuse have been so evident, it is interesting that Ministers and noble Lords who have debated this extensively have laid responsibility clearly at the hands of chief constables. PCCs have hardly had a mention. Why not? If PCCs cannot get a handle on crucial issues such as this, what on earth is the point of them in the first place?
Obviously, the model that the Government started with was a US model. The logic, when they first brought in the Bill, was for PCCs to be given much more power than they have been given because of their democratic accountability. However, the Government backed off, partly through fears of politicisation, but also because of the usual Whitehall paranoia about letting go. One of the stated aims of PCCs was for police forces to stop looking up to Whitehall and be more accountable locally. If anything, in the last 10 years, we have seen more and more interventions by Home Secretaries into the work of chief constables and pronouncements on strategic policing requirements. Home Secretary interventions have become the order of the day. The end result is utter confusion as to where accountability lies, ambiguities and tensions between the role of the PCC and the chief constable and a sense that policing lacks effective direction.
I look forward with interest to part two of the review that the Government are undertaking but, when one looks at the areas that they are inquiring into, it seems that none of them goes to the heart of the issue of what PCCs are really for and whether they are going to be given the powers to carry that out. That is a matter of regret.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, I briefly but strongly support Amendment 292D, but not the other two—I say that without needing much elaboration. I have two main reasons for supporting Amendment 292D. First, it is promoted by the noble Lord, Lord Bach, for whom I always have the greatest regard. He now has the expertise and experience of this job, so his judgment on it, as he knows what he is talking about, is surely worth listening to. We should take advantage of the expertise that he now has in this field and his appreciation of the crunch issues that are involved.
The second main reason is this: I am generally against these absolutist or purist positions such as those adopted uniquely—it appears—in this legislation. Once you have sinned, you are out for life. It is ridiculous. Some small measure of discretion or flexibility is generally an advantage. Of course, it is unlikely to happen that often, but we have surely heard two wholly compelling instances where it is a flagrant injustice to say to these people, now in maturity, having served the public, that because of one slight error in their youth and having strayed once they are never eligible again. This is a point of genuine principle: we ought not to pass this opportunity of putting it right.
Lord Hogan-Howe (CB)
My Lords, I support the noble Lord, Lord Bach, in his amendment. He could have added police officers to his list of occupations that would not have been barred. He chose not to, but it seems rather odd that only police and crime commissioners can be excluded entirely by a previous conviction.
I do not agree with the amendments proposed by the noble Baronesses, Lady Jones and Lady Harris, and the noble Lord, Lord Hunt. I do not know whether I have unique experience, but certainly I have experienced both police authorities and PCCs as a chief constable and then as a commissioner. Having been the person held to account, I am probably the person to whom you would least listen—I may have the most prejudice. I find both roles to be about equally effective and, frankly, equally ineffective.
Police authorities had the great benefit that they were a broadly based group of people, rather than one person. They were not directly elected, but they tended to create an awful lot of committees. The consequence of creating committees is that things take an awfully long time: that may not be understood here, but people take a lot of time to make decisions. That was my experience. Police and crime commissioners, where you could get a good relationship, tended to make quicker decisions, but, frankly, in somewhere like London, they struggled to be representative of the nearly 9 million people or to hold all the views—particularly of minorities —through one person. That was a challenge, but it could be overcome at times. Certainly in London, which was my latest experience, there has been a plethora of accountability regimes, whether it be a police and crime commissioner selected by the mayor, the Home Secretary, 32 local authorities, the police and crime scrutiny committee and a number of committees of Parliament. I am not sure that that made it better accountability; it just made more of it.
We ought to think carefully about how we govern the police. I am not sure that this is the best way to address that problem. It could be improved, but I am not sure that this is the best way. There are three reasons for this. On the point made by the noble Lord, Lord Hunt, is the fact that you are only getting one applicant for the role of chief constable good evidence that this is because of PCCs? It may be, but I think that it is more to do with the fact that the officers who are applying believe that the solutions have already been determined. They believe that the police and crime commissioners, usually with the sitting deputy, are going to select that person, whereas in the past, with police authorities, at least there was a broad spectrum of people and it was far harder to arrange a conspiracy. I think that it is good evidence, but perhaps for the wrong reason. It is a problem that needs to be addressed and it is not helping the police leadership to develop in the future.
My objections to the amendment are around logistics. If we end up having a referendum at every PCC election, the danger is that we will end up around the country with a mixed tapestry of governance. In some places it would be PCCs and in some places it would be police authorities. We might even flip them at the succeeding election, although I guess that you would not get one if you had a police authority—there would not be another opportunity to have a referendum and then reselect a PCC.
In our current police tapestry, we have 46 forces, 43 of which have local accountability. This has to happen nationally, whether it be the police authorities or PCCs; we need to make national arrangements to govern these things. We already have a complicated arrangement: with 46 governance sets—with different governance sets as well—that is a tapestry too far.
If these things are to be changed, we should look at it properly, and in the round. We should see what has worked and what has not to make improvements. What we should not do is decide it locally. This is a role for government; the governance of the police should be set centrally. There may be local affiliations, but the Government have responsibility to set the governance of the police. As I have said before, I would have far fewer police forces, which might make this a little easier. Whether one agrees with that or not, I would not have a referendum every time a PCC is elected.
Lord Carlile of Berriew (CB)
My Lords, I also rise to speak particularly about Amendment 292D. I support the noble Lord, Lord Bach, with all his experience of being an excellent police and crime commissioner.
There are many other examples. The noble Lord gave two. I shall just give one. A 59 year-old senior civil servant who worked for the Ministry of Justice in a responsible position connected with the criminal justice system, wished to retire and stand to be a police and crime commissioner. He was disqualified because, at the age of 13, he had been fined £5 for each of two minor juvenile offences. It is completely disproportionate and absurd that such people should be disqualified.
I seek to compare those disqualification rules with the rules applying to Members of another place. The last figures I saw produced by IPSA, the standards authority for Members of the other place, revealed that, in recent years, 43% of the Members of the other place had convictions of one kind or another. Maybe that tells you a lot about the other place. Nevertheless, this distinction makes its own point.
In passing on to the other issues, I agree very much with my noble friend Lord Hogan-Howe. Fundamental to this problem is the fact that we have 43 territorial police forces. This number ought to be at least quartered. If so, the structure—including police and crime commissioners—would be much more coherent. There would be far greater consistency and police forces which currently struggle to deal with very complex inquiries would be able to deal with them because they would have the critical mass of staff.
I turn next to police authorities. I hesitate to disagree with those noble Lords who tabled the first amendment in this group because I respect them all. Part of my experience as a Queen’s Counsel has been to advise police authorities when they have got into difficulties. I recall one case from the north of England in which the police authority concerned was institutionally corrupt and in the pockets of a small group of senior police officers. It had got itself into a hopeless mess and at least one criminal prosecution ensued. To describe it as an example of democratic effectiveness was an insult to both democracy and effectiveness.
I accept, of course, that some police commissioners are better than others. So are some Cabinet Ministers. So are some head teachers. So are some doctors. So are some Members of Parliament. This is inevitable. Some of the commissioners are very good, such as the noble Lord, Lord Bach, and Dame Vera Baird, who was referred to earlier. Where police and crime commissioners are effective, they are very effective indeed.
Just think about it territorially. If one of these referendums took place and there was a police and crime commissioner in Cheshire but not in Lancashire, or one in north Wales but not in Dyfed-Powys, people in the areas that did not have a police and crime commissioner would be unlikely to say, “Oh, how wonderful; this is going to be run by our local council.” In the modern world, they will say, “Our democratic rights have been diluted.”
Other noble Lords remember, as I do, when the Welsh Assembly was created. In many parts of Wales, people said, “Nobody will know who their Assembly Members are. It’s all a waste of time. It will be completely ineffective.” It is true that, for a time, people tended not to know who their Welsh Assembly Members were. Today, however, if you look at the evolution of the Welsh Government during the last 20 years or so, it has become remarkably effective. It has brought people much closer to government.
I believe that police and crime commissioners are still evolving. They have a valuable role to play, particularly, as I said earlier, if the Government have the courage to reform the territorial policing services in this country.
As to the deposits, I agree with the noble Baroness, Lady Jones of Moulsecoomb. The £5,000 deposit is not reasonable. I would not oppose a much lower deposit of the kind that has to be put down by somebody standing to be elected as a Member of Parliament. The election process is expensive. Some kind of gatekeeping requirement of this kind is helpful.
Lord Paddick (LD)
My Lords, with the greatest respect to the noble Lord, Lord Carlile of Berriew, when he started talking about amalgamating police forces again and the Welsh Assembly, I wondered whether this was turning into a filibuster. However, we move on.
The issue raised by Amendment 292D that we all agree on is that it is ridiculous that somebody convicted of a very minor offence at a very young age should be disqualified. The other side of the coin is that there is no process for the recall of a police and crime commissioner who commits an offence in office or is guilty of misconduct. Because they are democratically elected, the only way to get rid of them is by another election. Compare this to MPs, for whom there is now a process by which a by-election can be triggered. I agree with Amendment 292D, but there is another side to the same coin which also needs to be addressed.
We on these Benches have always been opposed to police and crime commissioners, notwithstanding, as everybody has said, that there are some outstanding ones, as the noble Lord, Lord Bach, was. Not just because he used to be my boss—this is the House of Peers now—I agree with almost everything the noble Lord, Lord Hogan-Howe has said.
Lord Bach (Lab)
Would the noble Lord forgive me for a moment? I know his view has always been consistent on this, but the truth of the matter is that the Bill got through only because of the support of both parties in the coalition; one of those parties was the Liberal Democrats. It is very easy to say now that you are not in favour of it as a party, but you clearly were in favour of it because you passed it into legislation. I am sorry if it is a crude point, but it happens to be true.
Lord Paddick (LD)
Yes, and, as the noble Lord will very well know, in a coalition there have to be compromises on both sides. You cannot get through the things you think are absolutely important unless you give way on others. However, the policy of this party now is to oppose police and crime commissioners. I am very grateful to the noble Lord for allowing me to clarify the position of the party on that.
It is very difficult for one person to represent both rural and urban areas in policing, or perhaps an area where there is a large African or Caribbean community and another where there is a large south Asian or Chinese community, or even an LGBT community. These could and do exist within the same police area—as in London, for example. Therefore, with one police and crime commissioner for that whole area, it is difficult for that one person to represent all those communities. It is important to be represented when it comes to accountability around policing, particularly for minority communities, where trust and confidence in the police are not as strong as they are with others.
As others have said, the majority of police and crime commissioners are party political. Therefore, there is a danger that a small “p” political difference between a police and crime commissioner and a chief constable, or even a commissioner—without pointing at any particular examples of that—could result in a good chief constable or commissioner having to resign over that small “p” political difference, or even a personality difference with the police and crime commissioner
As the noble Lord, Lord Hogan-Howe, has said, we are in a position where, because it is one person hiring and firing the chief constable, we are not getting a range of candidates applying for the chief constable post. The assumption is that the incumbent deputy will have a good relationship with that police and crime commissioner and have a natural advantage over any outside candidate, and therefore it is not worth applying. For all these reasons, we feel that having a range of people holding the police to account—particularly if they are democratically elected councillors —as opposed to one person, would be preferable. But I agree with other noble Lords that the suggested way to replace the system is probably not through a series of referenda that could result in different mechanisms in different parts of the country.
As far as the abolition of deposits in elections is concerned, that is perhaps slightly wider than this Bill should be considering. Of course, as Liberal Democrats, we would have to declare an interest as far as that is concerned. I absolutely agree with the noble Lord, Lord Carlile of Berriew, about potentially reducing the size of the deposit, rather than getting rid of it completely.
Were police authorities better? In some places, I think they were. As the noble Baroness, Lady Jones of Moulsecoomb, has said, the Metropolitan Police Authority was certainly very effective. The noble Lord, Lord Hogan-Howe, who experienced both, said there was not much to choose between the two on accountability.
For the reasons that I have explained, we agree that there should certainly be an examination of how effective police and crime commissioners are.
Lord Rosser (Lab)
My Lords, I agree with the comments of my noble friend Lord Hunt of Kings Heath, and other noble Lords, that we have had mixed experiences of police and crime commissioners—some have been very good, and some not so good. I will not go further than that, though, in relation to Amendment 278.
I wish to talk in particular about the amendment in the names of my noble friends Lord Bach and Lord Hunt of Kings Heath. They have drawn attention to the consequences we have witnessed as result of potential candidates for police and crime commissioner being debarred if they have been convicted of any offence, however many years ago, for which they could have received a custodial sentence, irrespective of whether they did actually receive such a sentence. I do not wish to pursue any individual cases but rather the general point, as others have done, of whether there should be another look at the reasons, in respect of previous convictions, for which a potential candidate for the office of police and crime commissioner can be disqualified.
When the issue has been raised previously, the Government have argued that it should not be reviewed because there was cross-party support for this requirement to be included in the Police Reform and Social Responsibility Act 2011. If that argument was followed through to its logical conclusion, there could never be any change to any legislation that originally had cross-party support, which is a bit of a nonsense.
The other argument advanced was that people must have complete confidence in the probity and integrity of whoever it is they elect as a police and crime commissioner because of their responsibilities and powers in relation to their police force, including the chief constable. Clearly, that is true, but whether an offence committed decades ago that could have resulted in a custodial sentence but did not—because it was not considered of a sufficiently serious nature to justify such a sentence—should automatically still be regarded as calling into question the probity and integrity of a potential candidate for police and crime commissioner, and thus disqualify them from holding such an office, is questionable, to say the least. It is certainly questionable when one looks at other positions that have powers and responsibilities in relation to the police and the criminal justice system but have no such similar restrictions on being able to stand for office or be appointed to an office.
Lord Sharpe of Epsom (Con)
My Lords, I thank the noble Baroness, Lady Jones of Moulsecoomb, and the noble Lord, Lord Bach, for giving us this opportunity to discuss police and crime commissioners and matters relating to their election. I also thank all noble Lords who have participated in this debate.
PCCs, as directly elected individuals responsible for the totality of policing in their area, are a far more transparent and visible model of police governance than the predecessor model of police authorities. As the Home Affairs Select Committee found in its 2016 report, the introduction of PCCs has had a beneficial effect on public accountability and the clarity of leadership in policing. It concluded that the PCC model is here to stay.
The Government are committed to strengthening and expanding the role of PCCs—indeed, it was a manifesto commitment—and, earlier this year, the Home Secretary announced the recommendations from part 1 of a review into the role of PCCs to do just that. That announcement was repeated in your Lordships’ House by my noble friend Lord Greenhalgh on the same day, 16 March. These recommendations will further strengthen the transparency and accountability of PCCs, as well as make it easier for the public to make an informed decision at the ballot box about the record of their PCC. Part 2 is currently under way, and the Government will report on those recommendations in due course. I note in response to the noble Lord, Lord Paddick, that this review will also assess the benefits and demerits of a trigger mechanism for the recall of PCCs; it is being debated.
Amendment 278 would provide for force-wide referendums to abolish PCCs. As I have said, PCCs are here to stay. The PCC model provides a clearer form of democratic accountability for police forces. The Government see no benefit in returning to a system of invisible and unaccountable police authorities. Under the old system, the public had no direct powers to elect a police authority chair or its members. Moreover, this amendment would provide for costly local referendums, siphoning funding away from front-line policing, and potentially leading—as many noble Lords, including the noble Lord, Lord Hogan-Howe, have noted—to a confused patchwork of police governance arrangements across the country. Therefore, the effect of the amendment could well be to damage public confidence in police governance at a time when it is crucial that we do everything in our power to strengthen it.
While Amendment 278 seeks to abolish PCCs, Amendment 279 seeks to make it easier for anyone to stand as a candidate for election by removing the £5,000 election deposit for candidates. I shall stick to PCCs and not expand to cover other elections, for obvious reasons.
The requirement for candidates to pay a £5,000 deposit was introduced to ensure that a high calibre of candidates put themselves forward for the role of PCC. These should be people committed to being the voice of the public and to holding their police force to account. Candidates who poll more than 5% of the total number of valid first preference votes cast in that police area will have their deposit returned, ensuring that serious candidates are not out of pocket.
I am sure that noble Lords would agree that we must protect our electoral system from abuse. The £5,000 deposit is designed to ensure that individuals who have no intention of seriously contesting the seat do not use the election process as an opportunity for free publicity.
Amendment 292D, put forward by the noble Lord, Lord Bach, concerns the disqualification criteria for PCCs, and I fear that my ice thins a little here. I understand the noble Lord’s motivation and respect his powerful and perfectly valid examples, but the Government do not agree that we should lower the bar on the standard we expect of elected PCCs. As a PCC previously himself, I am sure the noble Lord will recognise the need for the highest levels of integrity, given the nature of the role.
Under the current disqualification criteria, a person is unable to stand for or hold the office of PCC if they have previously been convicted of an imprisonable offence. There is no bar on people standing for election who may have a previous conviction for a low-level offence punishable by a fine only. Neither is a caution, whether for an imprisonable offence or otherwise, a bar to election. These rules governing who can stand as a PCC are, as the noble Lord noted, the strictest of all rules for elected roles in England and Wales and, we believe, are necessary to ensure the highest levels of integrity on the part of the person holding office and to protect the public’s trust in policing.
This high standard was set with cross-party agreement and with the support of senior police officers There is a serious risk of damage to public confidence and the integrity of the model if PCCs are able to take office with a history of serious criminal offence. I would also suggest that were a PCC to hold office with a previous conviction for an imprisonable offence, both the PCC and the chief constable might find it untenable to maintain a professional and respectful relationship, given the role the PCC plays in holding the chief constable to account. Having said all that, I have heard everything that has been said around the Chamber this evening, across party, and I will make sure that those arguments are reflected back to the Home Office.
In conclusion, this Government are firmly of the view that, far from seeking to abolish PCCs or weaken their standing, we should further strengthen their role. On that basis, I invite the noble Baroness to withdraw her amendment.
Baroness Jones of Moulsecoomb (GP)
Is the Minister advising me to withdraw my amendment or asking me to withdraw it?
I made my opening remarks quite short, because I did not think that the amendment would be very contentious. I thought that people would not like it, but I had no idea that it would generate so much interest. I thank all noble Lords who have contributed, especially the noble Baroness, Lady Harris of Richmond, for her personal recollections of disastrous commissioners. I, too, have some personal recollections of disastrous commissioners, starting with Boris Johnson, who as Mayor of London was completely useless and had to pull in people to do it for him, some of whom did not know what they were doing either.
I more or less thank the noble Lord, Lord Hunt of Kings Heath, for his partial support. I was interested in the comments made by the noble Lord, Lord Bach, because he has five years’ experience as a PCC. I have 16 years’ experience on police committees and of PCCs, so the noble and learned Lord, Lord Brown of Eaton-under-Heywood, should perhaps have accepted that I might have a valid point of view on PCCs as well.
I ask all noble Lords: can you actually name your PCC? There is a shake of the head beside me. If you live in London, it is easy: it is Sadiq Khan. If you live anywhere else, it is much harder. Could the Minister name his PCC? He says yes.
I thank noble Lords very much for this debate. I find this issue endlessly interesting. I will think about the offer made by the noble Lord, Lord Bach. He said, for example, that there are better ways of getting rid of police commissioners. I would be happy to put forward an amendment with a quicker way to do that rather than having a referendum; I am not wedded to referendums. Having said all that, I beg leave to withdraw the amendment.
Baroness Scott of Bybrook (Con)
My Lords, we will do one more group before the dinner break. I remind noble Lords that we have to get through 14 groups today. That means that we have nine more. Can we try to be a little briefer so that we can get on? We have only one more day on this Bill, so we need to get as far as possible tonight.
Amendment 280
Baroness Coussins
“Spoken word interpreters: minimum standards
Spoken word interpreters appointed to a court or tribunal must—(a) be registered on the National Register of Public Service Interpreters (“NRPSI”),(b) possess a Level 6 Diploma in Public Service Interpreting, or comply with NRPSI Rare Language Status protocols, and(c) have completed the requisite number of hours’ experience of court interpreting commensurate with the category of case complexity, as agreed by the Secretary of State in conjunction with relevant professional bodies.”Member’s explanatory statement
This amendment would establish minimum standards for qualifications and experience for interpreters in courts and tribunals, along the lines of the Police Approved Interpreters Scheme.
Baroness Coussins (CB)
My Lords, I am grateful to the right reverend Prelate the Bishop of Leeds, the noble Lord, Lord Marks of Henley-on-Thames, and my noble friend Lord Pannick for adding their names to my amendment. I am sorry that my noble friend has had to leave for another commitment, but he wanted me to confirm that he planned to speak in support of this amendment. I declare my interests as a co-chair of the All-Party Parliamentary Group on Modern Languages and the vice-president of the Chartered Institute of Linguists.
The purpose of this amendment is to establish in law
“minimum standards for qualifications and experience”
of those appointed to act as interpreters in Her Majesty’s Courts & Tribunals Service. For the avoidance of doubt, let me clarify that, for the purposes of this amendment, I am referring only to spoken word interpreters, not sign language interpreters.
I am grateful to the noble Lord, Lord Wolfson, for meeting me earlier in the year to discuss this and related issues. I very much hope that the Minister replying tonight will be able to facilitate another meeting between me, other interested parties and the noble Lord, Lord Wolfson, between now and Report to look at my proposals more precisely. Obviously, my best-case scenario is the Government accepting my amendment or coming back on Report with a better-worded version to achieve the same, or a closely similar, end.
I will not repeat the detailed case that I set out at Second Reading. I will simply summarise the way in which the appointment of court interpreters as it is currently organised, using the Ministry of Justice’s register and delivered via outsourced private companies, is inadequate—often seriously so, leading at best to mistakes and, at worst, to miscarriages of justice. It is an easy way for fake interpreters to present themselves. Too often, hearings need to be abandoned and expensively rescheduled, sometimes with defendants on remand for longer—all at public expense.
My objective is to strengthen the MoJ register for interpreters, thereby improving the quality and administration of justice. I will explain each of the three elements of my proposed minimum standards in a little more detail, starting with the second, which relates to the qualifications that a court interpreter should have. I am sure all noble Lords would agree that, if they were having heart surgery or even having their tonsils out, they would expect the surgeon to have more than a GCSE in biology. If they were passengers in an aeroplane, they would not expect the pilot just to have a geography degree and know roughly which way was south. They would not expect their car to be serviced by a mechanic whose only proven competence was in the use of a tin opener. Yet you can get on to the MoJ’s register of approved interpreters simply by having a GCSE pass or a low-level two-week foundation course, or just by being bilingual, even if you have never set foot in a court before.
Lord Falconer of Thoroton (Lab)
Before the noble Baroness sits down, may I ask a question? Her amendment refers to every court or tribunal. Knowing how the courts are operating, for example, in family law, the urgent need for an interpreter happens every single day when urgent decisions have to be made about children. How long would it take to find an interpreter in such a case if her provisions, which I see as having great strength in criminal trials, were in force?
Baroness Coussins (CB)
I can answer that only by saying I would have to consult the national register and chartered institute to find out how quickly they respond now and how that compares to the MoJ system. I agree it is an important element. Part of the problem will be the supply chain, but I think these issues can be overcome. I beg to move.
The Lord Bishop of Leeds
My Lords, I endorse every word of what the noble Baroness just said. In a previous incarnation—that is probably the wrong phrase to use; I am mixing my religions—I was a professional linguist in Russian, German and French, working in government service. One of the things you learn as a professional linguist is that language goes deep. This is not simply a matter of picking someone off the street who can order a pint in a Spanish bar; you are dealing with the stuff of people’s lives. Surely accuracy is vital, for the sake of not only clarity of understanding but justice itself.
I could give many examples of how this works. There is the difference between translation and interpreting. Interpreting goes deep, because you have to understand that some things cannot be translated. That is how language works.
I will not trespass on eternity here, but will simply say that justice, whatever the logistical problems highlighted a moment ago, demands that people have clarity of understanding and expression in courts of law. I endorse every word that was said in the last speech.
Lord Hogan-Howe (CB)
I too support this amendment. I was really surprised that there is not already a standard and that this is not consistent across the criminal justice system. When the noble Baroness, Lady Coussins, explained that the Metropolitan Police had already taken the lead on this, I was hoping that that was during my time, but it was not. However, I think this is a good idea. This is about not only high and consistent standards but experience—experience within the criminal justice system will be relevant at various times—and integrity. These people will have access to private and confidential information. For all those reasons, it is important that there is a consistent, high standard.
Each part of the system, whether the police, prosecutors, defence, courts, judge or jury, requires this to happen consistently. It seems amazing that at the moment they are not able to rely on the same interpretation or translation of the same material. That seems odd. At least in the case of the police, you can go back and check some of the original evidence. Body-worn video, CCTV or audio recordings of the interview might be available, so someone can go back and check. However, as far as I am aware, that is not the case in court. There is a written record, but that in itself is open to interpretation and is not always entirely accurate.
There are things that feed into the criminal justice system which are also important and rely on the contribution of the individual and what they say, for example psychiatric assessments. These can be vital in determining whether someone is guilty or so psychiatrically ill that they should not be held guilty for their actions and in determining what actions will follow a sentence.
This is not a minority issue, particularly in London. The last time I saw the figures, around 27% of the 250,000 arrests carried out by the Metropolitan Police every year are of foreign nationals. There is then at least a risk that they are speaking a second language, not their first, which imposes certain challenges on the whole system. It is vital that they, as well as witnesses and all the other people who play a vital role in the criminal justice system, are able to be heard.
Finally, it seems to me that this is particularly pertinent in an adversarial system which relies an awful lot on cross-examination. Are mistakes made in court? Is consistency observed between the original account and those given by various witnesses? Language is very important. We would all say so, but I would say it is even more important in an adversarial system, which sometimes seeks to cause inconsistency in the account that is given. This creates an even bigger burden for the system to make sure that the account of the language is of the highest standard available. It is important that the Government create such a system, so I support this amendment.
Lord Thomas of Gresford (LD)
My Lords, when I was a young solicitor in north Wales, I recall a knock on the door at about 6 o’clock in the evening. There was an agitated man of Polish extraction on the doorstep saying, “Please come quickly. My friend is dying in hospital and he wants to make a will.” I went to the hospital, which was just around the corner, and discovered that the patient spoke only Polish. I said to the first man, “What are we going to do?” He said, “We don’t need an interpreter. I’ll do it. He wants to leave everything to me.”
Lord Berkeley of Knighton (CB)
I wholeheartedly endorse my noble friend’s amendment, having seen on a couple of occasions interpreters who I seriously thought could barely speak English. Imagine the confusion when the interpreter translated “car” as “cow”. The judge became pretty exasperated at this point. However, there is one obstacle to this that I see. The noble and learned Lord, Lord Falconer, mentioned one obstacle, but the other might be that it is very difficult at the moment for courts to find interpreters at all. I seriously worry that there is going to be a shortage of interpreters, although I still feel that we should get the standard up, whatever happens. Perhaps we need to have courses for interpreters with proper qualifications making it a career in which people who could become interpreters could find some sort of vocation.
Lord Marks of Henley-on-Thames (LD)
My Lords, I have put my name to this amendment for all the reasons put forward by the noble Baroness, Lady Coussins, in opening. She has campaigned for this change for a long time and has a great deal of knowledge and experience on the subject. We have also heard from the right reverend Prelate the Bishop of Leeds, the noble Lord, Lord Hogan-Howe, and my noble friend Lord Thomas, who still supports this reform despite the success of his experience with the Polish testator. I will therefore add little.
There is an answer to the points made by the noble and learned Lord, Lord Falconer of Thoroton, about the availability of interpreters and the need for speed in getting them to court, and by the noble Lord, Lord Berkeley of Knighton, about there being enough registered interpreters. I accept, as I expect would the noble Baroness, that there would be a need to transition the introduction of these proposals and to take steps to ensure that there were enough registered interpreters. We also have to consider the availability of interpretation in the very unusual languages that she mentioned.
This amendment is important. The duty of an interpreter in courts and tribunals is limited and specific. It is a duty to act as a conduit and only as a conduit; accurately to convey the meaning of the court’s proceedings to the non-English speaker; then, if and when that non-English speaker gives evidence, to convey the court’s and counsel’s questions to that non-English speaker; and lastly, and most importantly, to convey the non-English-speaking witness’s evidence to the court. That all demands accuracy, and to provide that accuracy requires a great deal of skill.
However, it is a duty to act as a conduit only, the aim being to overcome the language barrier. It is decidedly not to render assistance of a more general kind to the non-English-speaking participant in legal proceedings, still less to provide some kind of informal independent advice service. Yet, in spite of those very clear principles, many of us who have practised in courts and tribunals have seen how interpreters, often motivated by the best of intentions, can fail in their task. The inadequacies have been extensively and well highlighted by the noble Baroness, Lady Coussins.
There are two main reasons for such a failure. The first is that some set out to act as interpreters when they lack the necessary linguistic skills and they simply get the translation wrong. Sometimes the inaccuracy is noticed by someone in court who understands and speaks the language concerned who can then ensure that the witness’s meaning is further explored, but on other occasions it is not, and when it is not then injustices occur.
The second problem is that some interpreters overreach themselves. Again, often they are not motivated by an improper wish to intervene in the proceedings with ideas of their own, yet they do precisely that. They discuss evidence with the witness and act as assistants and advisers as well as interpreters. The noble Lord, Lord Hogan-Howe, pointed out that on some occasions the integrity of the witness and of the proceedings is called into question. That is wrong, and it subverts the proceedings of the court or tribunal concerned. The way in which we must deal with these issues is quite simply by training and minimum standards, and that is exactly what the amendment seeks to achieve.
I add this final point: I hope that, in order to maintain registration, it would be necessary to have adequate programmes of continuing education. Interpretation is a difficult skill that requires specialist and professional training and needs constant maintaining. I hope the Government will bring a positive response to this amendment.
Lord Ponsonby of Shulbrede (Lab)
My Lords, this has been a very interesting debate and I thank the noble Baroness for moving her amendment; in general terms we support it. The question marks would be about the standards, which she dealt with very fully, whether emergencies could be covered, and the potential costs. As the noble Lord, Lord Marks, said, there needs to be a transition to harmonising and raising standards in general.
I want to pick up a couple of points made by noble Lords. The noble Lord, Lord Hogan-Howe expressed surprise that there was not already a common standard and I was surprised as well. He went on to talk about there being written records in courts, but that is not the case in magistrates’ courts; they are not a court of record. As a sitting magistrate, I regularly have interpreters in court. In the 14 years I have been a magistrate I can think of three or four occasions when the magistrate colleagues I have been sitting with have told me that the interpretation was wrong. They knew the language and were able to inform us, and we were able to deal with the situation. But, as other noble Lords have pointed out, that will not always be the case. It is not that unusual for interpretations to be wrong.
I want to make a more serious point, which the noble Lord, Lord Marks, also made, about interpreters overreaching themselves. As I mentioned in an earlier group, I regularly sit in the domestic abuse court and I have done various bits of training on that. One of the points the training makes is that you have to be careful with interpreters and translators when dealing with domestic abuse cases in minority languages. It has been recorded that the interpreters overreach themselves and what the witness or the victim is saying in court will get back to that minority group. It is something that the court needs to be very aware of and handle sensitively to prevent that happening—and it does happen. Nevertheless, in general terms, we support this amendment.
Lord Stewart of Dirleton (Con)
My Lords, Amendment 280 would restrict the Ministry of Justice to appoint in our courts and tribunals only interpreters who are registered on the national register of public service interpreting—the NRPSI—and possess a level 6 diploma in public service interpreting, or who comply with the NRPSI’s rare language status protocols.
The Ministry of Justice commissions the services of interpreters for our courts and tribunals in England and Wales through its contracted service providers, thebigword and Clarion Interpreting. These interpreters are sourced from the Ministry of Justice’s register, which is audited by an independent language service provider, the Language Shop. All interpreters are required to complete a justice system-specific training course before they are permitted to join the register.
The contract has a clearly defined list of qualifications, skills, experience and vetting requirements interpreters must meet, which have been designed to meet the needs of the justice system. It covers a vast range of assignments, from simple telephone interpreting to deal with a user query to the facilitation of interpretation in a complex criminal trial. The qualifications and level of experience required will depend on the complexity of the assignment and the highest complexity level has qualification criteria comparable to those set by the national register of professional service interpreters.
It is in dealing with that vast range that the noble Baroness’s rhetorical analogy broke down. Of course I would expect my heart surgeon to have the relevant qualifications and experience to fulfil that role. At the same time, if my car developed a minor technical fault, I would not necessarily want to pay out for a consultant engineer to fix it, as opposed to taking it to the local garage.
Complaints about the quality of interpretation or the professional conduct of interpreters are carefully monitored and independently assessed by the Language Shop. The complaint rate remains low at less than 1%.
Lord Marks of Henley-on-Thames (LD)
I take it the Minister would accept that legislation could quite easily disapply those regulations in the case of the use of registered interpreters, if that legislation were correctly worded and addressed to do so.
Lord Stewart of Dirleton (Con)
Hypothetically, yes, but I hesitate to give the noble Lord a definite commitment on that, as my information on these points is substantially in answer to the point raised by the noble Baroness. But, if the noble Lord will permit me, in exploring these important points, I will make sure that the Ministry of Justice writes to him and that there is a meeting with the noble Baroness, as she sought, to discuss with her the future of this amendment. I hope that that answer will satisfy both the noble Baroness and the noble Lord.
Just to continue on that point, it is important to bear in mind that we are reviewing and engaging in consultation with various bodies. But we need to take into account the broad-ranging needs of the Ministry of Justice and to ensure that we have a service appropriate for the wide range of circumstances and the various commissioning bodies to which I have made reference. There are concerns that mandatory NRPSI membership may give unnecessary control over the supply chain, and the police interpretation contract does not require interpreters to be NRPSI registered. We need to complete a full and objective assessment of MoJ needs across the board and not to introduce NRPSI standards when we do not know what impact they might have on the overall justice system.
The Ministry of Justice is looking constantly to improve the service for users and to work collaboratively with interpreter membership organisations and language service providers to ensure that the short, medium and long-term service needs of the criminal justice system are met. Her Majesty’s Courts & Tribunals Service is starting up a language services future pipeline working group, which will focus on the issue of securing suitably qualified interpreters in the long term.
I will develop that point. As the single biggest public sector user of language services, we believe it is important for the Government to encourage new entrants into the interpreting profession and to provide them with appropriate opportunities to build up their experience levels and to maintain standards of excellence. We have an independent quality assurance supplier, which has recently developed a subsidised trainee scheme, encouraging qualification in languages that are in high demand in our courts. We will continue to work with it, and with other organisations, to improve our service and to ensure it provides access to suitably qualified interpreters in the future. The arrangements that we have in place are designed specifically to ensure that our courts and tribunals are supported by high-quality language service interpretation that meets the needs of all our court users, both now and in the future.
I turn now to some of the submissions made by your Lordships in Committee. I fully accept the point made by the right reverend Prelate the Bishop of Leeds on the distinction between translation and interpreting. But on the submission made by the right reverend Prelate and the noble Lords, Lord Marks and Lord Hogan-Howe, I return to the point that there is a wide range of functions which interpreting has to carry out. With the greatest of respect, each of those noble Lords answering on this point predicated their submission on the fact that we were talking about translation at the very highest level—at the most important level of translating a potentially complex criminal trial.
In response to point made by the noble Lord, Lord Marks, again I accept that the single function of an interpreter in these circumstances is to act as a conduit by which English may be rendered into a foreign language and the foreign language rendered as accurately as it may be into English in order to assist the court. Again, that is at the very top end of the spectrum. Lower down, in simpler and more straightforward functions that I identified—the most elementary part of the range of needs that I discussed—it may well be that some well-meaning attempt to intervene and to assist, such as the noble Lord, Lord Marks, discussed, might be appropriate. I am thinking of the simple telephone inquiry that I referred to.
Lord Hogan-Howe (CB)
There are just two points that I would like to have clarified. First, the noble Baroness, Lady Coussins, proposes a consistent high standard. I was not sure from the Minister’s response what the equivalent is in the contract. I hear that there is one, but I do not know what it is.
The second point is that there might be a spectrum of quality of interpretation. I understand that in a broad sense, but if that was to include the magistrates’ court, there are two issues there. First of all, someone’s liberty is at risk for six months and, in any case, they could be committed to a higher court for a more substantial penalty, should the magistrate decide to do that. Finally, as we have heard only today, if we look at things such as inquests, they can have very substantial consequences both for the people who apply to them and for the people who might be judged by them.
I am not quite sure about either of those points. First of all, what is the standard? Secondly, is it true to say it is always such a wide spread of necessity, given the importance to the victim, the suspect or the witness, in each of these cases?
Lord Stewart of Dirleton (Con)
As I think I have said, the contract provides that, at the highest level, the standard is commensurate with that of the NRPSI. In answer to the noble Lord’s second point, of course none of that interrupts anything that I have said about the importance of identifying the point at which interpretation facilities suitable for the most complex case is to be found. Simply because a matter is not being tried at the Crown Court does not mean that it would not engage the need for the most detailed, able and comprehensive of interpreting facilities.
In closing, I can, as I said earlier, indicate that my noble friend Lord Wolfson of Tredegar, the Minister dealing with this matter, will meet the noble Baroness, Lady Coussins, who is proposing the amendment. In the circumstances, I ask her to withdraw the amendment at this stage.
Baroness Coussins (CB)
My Lords, I thank the Minister for his detailed reply and all noble Lords who have contributed to the debate and supported the principle, if not every detail, of the amendment. Some very good ideas have emerged; I am particularly taken with that of a transitional period.
A couple of questions were asked. The noble and learned Lord, Lord Falconer, referred to family courts. In a family court where an interpreter might be needed at very short notice, it strikes me as even more important, if we are talking about families and children who may be in very vulnerable circumstances, to have an interpreter who is properly qualified. Rustling up somebody at very short notice might not serve the interests of those vulnerable families and children, but I agree that it is a complex situation.
On the point raised by my noble friend about courts sometimes finding it difficult to find interpreters, that is partly to do with the fact that so many interpreters—thousands, I believe—left public service when the MoJ system was contracted out to private companies, because those companies have sustained appallingly low levels of pay and poor conditions. The Minister referred to the need to get new interpreters on board. Yes, of course, that is right, but there are also a lot existing, qualified, experienced interpreters out there who need to be brought back into public service. I believe that if their status was raised and their contribution and professionalism more readily acknowledged by having these minimum standards, which they all complied with, they would be attracted back into public service.
The Minister referred to the fact that the MoJ system is audited by the Language Shop and that complaints were very low. Yes, that is true, but the Language Shop also failed 50% of the interpreters on whom it conducted spot checks, so it is clear that qualifications without experience are not good enough.
I am grateful for the promise of a further meeting with the noble Lord, Lord Wolfson, to discuss the amendment, and I look forward to discussing this issue further on Report. With that in mind, I am happy to withdraw the amendment at this stage.
Integrated Rail Plan: North and Midlands
(3 years, 1 month ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Rosser (Lab)
This integrated rail plan is in reality about backtracking on government promises to build the eastern leg of HS2 and Northern Powerhouse Rail. The Government know that HS2 and full delivery of Northern Powerhouse Rail would have given a major boost to the economies of our northern cities, because that is what the construction and pending completion of HS2 have already done and will continue to do for the economy of the West Midlands and Birmingham in particular. Leeds and the local West Yorkshire economy will now be denied the full £54 billion of estimated economic benefits of their HS2 link, with Leeds becoming a less attractive venue than it would have been for new and expanding businesses. Northern Powerhouse Rail delivered in full, with a new high-speed line through Bradford, was also set to deliver an estimated £22 billion for northern economies. The integrated rail plan does not address the impact of backtracking on the eastern leg of HS2 and Northern Powerhouse Rail on the economies of our northern cities and towns, and there was no government answer when I asked about it last Thursday.
Typically, this Government are now seeking to silence opposition to their watered-down plan, since Transport for the North, which is overseen by all the northern mayors and council leaders, has just been told that it will no longer be financed by central government to develop Northern Powerhouse Rail and that in future this work will be funded directly, and thus controlled directly, via Network Rail by the Department of Transport, a reflection of the Government’s centralising tendency and lack of enthusiasm for real devolution of power and decision-making.
The Government’s integrated rail plan, which incidentally says very little about rail freight at all, places great weight on the virtues of upgrades of existing lines and the time in which they can be completed and the costs incurred. In doing so, though, the rail plan and the Secretary of State fail to reflect the very different experience of recent major upgrades. The west coast main line was upgraded at a cost of £9 billion, nearly four times the original cost estimate of £2.5 billion. Despite costs ballooning nearly 400%, the upgrade still had to be reduced in scope from 140 mph top speed to 125 mph with moving block signalling, in-cab signalling, being abandoned; otherwise, the cost would have been up by nearly 600%. The project led to substantial upheaval to existing services over a period of years and was not completed until 2009, very late and 10 years after it started.
Work on the Great Western electrification commenced in June 2010 and was due to be completed in 2016-17, but was not completed until 2019-20. The project ran into major difficulties, causing repeated extensions to deadlines and costs to increase by more than 300%, to around £2.8 billion in 2018 from £874 million in 2013. Despite this dramatic increase in costs, the project still had to be scaled back to keep cost increases merely in excess of three times the original figure. Electrification from Didcot Parkway to Oxford, Cardiff to Swansea, Chippenham to Bath and Bristol Parkway to Bristol Temple Meads, as well as branches to Henley and Windsor, were also deferred indefinitely by the Government in November 2016, with the Cardiff to Swansea electrification being cancelled outright in July 2017.
The message is clear: upgrading routes is not as straightforward as the Government suggest. The hard evidence shows that costs will be very much higher than projected and the time taken to do the work a great deal longer than projected. Statements plucked out of the air about being able to deliver a watered-down version of what was promised a decade earlier than projected fly in the face of the facts and experience. Such statements also fly in the face of the Government’s own document, which indicates that the new lines on part of the watered-down Liverpool to Leeds route will not come into service until the 2040s—the same timescale within which the Prime Minister, in his foreword to the plan, says that high-speed lines under the original plan will have reached the east Midlands and Yorkshire.
Further, on costs, there is no breakdown of costings for each separate project within the plan, or a breakdown of any large figures within each separate project. There is also a further issue: the watered-down schemes outlined in the rail plan are dependent for delivery, on both projected capacity and speeds, on digital signalling. But I believe, perhaps mistakenly, that there is not yet a substantial tried and tested digital signalling scheme as envisaged by Secretary of State already in full operation. Indeed, people have so far been working on trying to develop such a scheme for more than 20 years. If there is a delay in the projected timescale for bringing such an as yet untried signalling development to fruition, even the watered-down schemes as projected in the rail plan will be severely compromised in respect of capacity, speed and timescale.
In the past decade, the north of England received £349 per person in transport spending, while London got £864. If the north had received the same level of spending as London, it would already have had £86 billion more since 2010. Yet this rail plan, worth £96 billion, some of which is in the south at the southern end of HS2, will take well into the 2040s at best to complete, considerably over two decades away. This plan, with its backtracking on previous pledges and reductions in previously stated future levels of expenditure, continues, not addresses, regional investment inequalities. So much for the Government’s levelling up and delivering HS2 in full, including the eastern leg, and Northern Powerhouse Rail.
Baroness Randerson (LD)
My Lords, I recall a particularly funny episode of “Yes Minister” in which the Prime Minister asked Jim Hacker to produce an integrated transport plan. It was called “The Bed of Nails”, and I was reminded of that episode over the weekend as I watched the Secretary of State valiantly trying and failing to sell this plan as a success for the north of England. It takes a lot of ingenuity to produce a plan that almost doubles the time it will take to get, for example, from Birmingham to York, and still call it an improvement on previous plans.
Despite the Secretary of State’s sleight of hand, the plan has not been well received. The Government have managed to unite the elected mayors of the north, the chambers of commerce in Yorkshire, Greater Manchester, Birmingham, east Lancashire, Doncaster, the east Midlands and even London, the Chartered Institute of Logistics and Transport, Conservative MPs for northern constituencies and the Conservative chair of the Transport Committee in opposing and criticising the Government’s plan.
Not surprisingly, one of the critics was Transport for the North, and for that it has been stripped of its powers, which seems a very strange approach to levelling up. I join the noble Lord, Lord Rosser, in asking the Minister to explain why control of the Northern Powerhouse Rail project will now lie solely with central government—what is it that makes Ministers so sure that they know better than the people of the north about what they need in relation to railways?
The most high-profile decision was, of course, to truncate HS2 by abandoning the eastern leg. Those cities that had expected to be directly linked to a new 21st-century rail line have developed investment plans predicated on that and expected an economic boost along those lines. They now have to start again following a massive no-confidence vote by the Government. As the noble Lord said, transport spend per head is scarcely more than one-third of the size that it is in London. In her answer to me last Thursday, the Minister admitted that abandoning HS2 and reducing the Northern Powerhouse Rail plans
“saves the taxpayer billions of pounds.”—[Official Report, 18/11/21; col. 407.]
I suggest to the Minister that this approach is totally unacceptable. What do the Government plan to do to redress the balance now that their levelling-up promises to the north of England lie in tatters?
HS2 was always as much about capacity as speed. The Government are going instead for a patchwork of schemes, with short stretches of electrification. Digital signalling, which has long been promised, and longer platforms for longer trains will create some extra capacity but it does not compare with what a whole new railway would do. The Government promised to electrify 13,000 kilometres of railway by 2050 and so far have done 2.2% of that. So we are 235 years behind schedule. I ask the Minister: after all the stretches referred to in the plan have been completed, what percentage will we be on?
Finally, one of the reasons for building a new line is that the upgrading of existing lines is enormously disruptive. As a veteran of 10 years of Great Western’s electrification, I can attest to that. What calculations have the Government made of the cost of disruption for the lines they propose to upgrade?
The Parliamentary Under-Secretary of State, Department for Transport (Baroness Vere of Norbiton) (Con)
I thank the noble Lord, Lord Rosser, and the noble Baroness, Lady Randerson, for their considered responses to the integrated rail plan. I too had the opportunity, over the weekend, to read the documents in detail and consider the sorts of questions I might face today. Actually, noble Lords have not disappointed so far in the issues that they have raised—and I accept that they feel very strongly about this.
Having read the documents and considered this more carefully, I think the integrated rail plan is an elegant solution. We had a very outdated plan, the old plan, which did not properly take into account some developments, particularly from the national transport bodies, notably Transport for the North and Northern Powerhouse Rail, and Midlands Engine Rail, Midlands Connect and the Midlands Rail Hub. None of them had a proper look-in in the plans. We saw that costs were rising and that the whole thing did not fit well together, so it was absolutely right for the Government to go back, look at the plans, set them all out and consider what we are actually trying to achieve. The goal is not to build new railways; it is just something that enables people to get from A to B more quickly, more frequently and at a cheaper cost. That is what we are trying to do.
How we choose to do that is a combination of stretches of new railway, as noble Lords know, and some upgrades to existing railways. That is a very elegant situation that comes at a lower cost to the taxpayer. I will not and see no reason to apologise for that at all. It also happens much more quickly than it would otherwise, so we need to take a step back. There are a lot of winners here. I would like to be living in Nottingham, quite frankly; people there are going to have a great time. Good old Derby will have direct access to HS2, which it was nowhere close to prior to this. Also, all the places along the Midlands main line will get electrification and have more reliable journeys now. They did not even get a look-in in the old plans.
We have taken a more considered approach to the system as a whole. I accept that life has changed slightly for Leeds, but Leeds is also benefiting from this. We have said that we will spend £100 million on looking at how to get HS2 to Leeds. We will look at whether the current station can absorb the additional capacity and we will finally start work on the West Yorkshire mass transit system. This is great news for Leeds, so I do not share the doom and gloom of the noble Baroness, Lady Randerson, about its economic future. Actually, having a train line that goes to Manchester is just one of the things that people in Leeds might want; they might also want to travel around their own city on a mass transit system. I think we have been able to help Leeds in this regard. The impact on economies will be set out in the business cases for all the different schemes, as we go forward.
On TfN and its change of role, this is not at all unusual within the Department for Transport. We have a good relationship with TfN and it has an important role in providing us with statutory advice. However, the Northern Powerhouse Rail programme will be in the Government’s major projects portfolio and it requires clear accountability to the Secretary of State. Therefore, the client will be the Department for Transport, but that does not cut out Transport for the North. It has a joint sponsorship role, and again it is important that it can offer advice and knows what is going on with the project. In terms of delivery, however, it must be accountable to the Secretary of State to make sure that we keep things moving as we need to.
There was a comment about the Government not being a fan of devolution, on which I beg to differ. The city region sustainable transport settlements have committed £5.7 billion to our major cities. That is truly transport devolution on a large scale.
The noble Lord, Lord Rosser, came up with a litany of delays that had happened previously. I do not disagree that sometimes large transport infrastructure projects suffer from delays. None of us involved in transport likes delays but sometimes they happen. However, I am not entirely sure why they would not then happen to elements of HS2. Given that the previous full “Y” going all the way up was not going to be delivered until the mid-2040s, my goodness, we could be looking to the mid-2060s before that was delivered then, had it been delayed. I am not sure that that is necessarily a reason for not liking the Government’s plans.
On the issue of disruption, all transport infrastructure projects are disruptive. We know that. However, the approach taken by this IRP will cause less disruption that previous plans would have. For example, the HS2 eastern leg in full would have caused significant disruption to the motorway network. It would have crossed it 13 times. I am the Roads Minister—that disruption would have been quite challenging. We know that enhancements to existing lines will ease bottlenecks and make rail services more reliable. We will work very closely with the rail industry to minimise disruption as the schemes are developed and delivered.
I turn now to the issue of digital signalling. If I may, I will write on this issue so I can provide the most up-to-date information that I have.
The noble Baroness, Lady Randerson, asked what percentage will be electrified when this is all finished. In my brief I have the figure of 75%, which I want to check. It feels right—but you think, okay, we are going to go from quite a small percentage to 75%. We are going to be electrifying hundreds of miles of railway line, so this probably is right but, again, I will write to 100% confirm that number. This is a huge electrification programme, as I am sure the noble Baroness will understand.
Let us turn to money. The noble Lord, Lord Rosser, mentioned it and so did the noble Baroness, Lady Randerson. This is the sort of thing that I get a little bit confused by. We are in a strange parallel universe where it matters only how much you are spending rather than what you are spending it on. That strikes me as bizarre. People are saying to me “But you are not spending this money on this railway line,”. No, but we are providing more benefits to more people, more quickly for less money. Surely that is a good thing.
I say to the noble Lord, Lord Rosser, that I believe that the leader of the Opposition has in mind to establish something called the value for money office, should he ever become Prime Minister. He may well think that that is a very good idea. But I say to the noble Lord that, if he had the Government’s integrated rail plan at £96 billion—providing some pretty good service uplifts and some good improvements in journey times—versus the previous outdated plans costing £185 billion, and if he were to give those to this new-fangled value for money office, I wonder which one it would choose.
Lord Snape (Lab)
My Lords, if the Minister believes that this solution of hers is so elegant, why have she and fellow Ministers been advocating something different for so many years? That is the first and obvious question. The second one is that she talks about capacity. Is she aware that any student of the railways will tell you that capacity on a stretch of line is governed by the speed of the slowest train? Taking fast trains away and running them on their own infrastructure enables capacity to be increased on other lines too. The mixture of freight trains, slow passenger trains and fast passenger trains, as well as HS2, will not increase capacity; indeed, rather the reverse.
Finally, what the Government propose will mean years of delay, dislocation and bus substitution because, as we proved as far back as the 1960s, it is impossible to run an intensive service on a railway while you are improving it and electrifying it. It just cannot be done.
Baroness Vere of Norbiton (Con)
I hope that we are able to prove the noble Lord, Lord Snape, wrong in that regard. Obviously, we have done a significant amount of work on this and we believe it can be done. In terms of the fact that we have previously been advocating for a different style of network, I do not see that is a particular issue. Sometimes when the facts change, you have to change what you are proposing. The issue here is: do we have endless amounts of money? No, we do not. Can we deliver very good improvements to service for just under half the amount of money? I think we can. The other thing is that we can use the money we are not spending for other vital investments, so it is not such that that money is suddenly disappearing.
The noble Lord talked about capacity, and this is a really important point: the capacity constraints on the west coast main line are far greater than on the east coast main line. We will be able to get capacity improvements on the east coast mainline. It is far more important that we improve capacity on the west coast main line, which is why we have developed the plans that we have.
Lord Wallace of Saltaire (LD)
My Lords, Bradford does not come out very well, or have any joy, from this. I was very unhappy with the way in which the Minister answered questions on Thursday; I thought she was condescending to the House, which was inappropriate. I am glad that she is now engaging with the reasoned arguments others are making.
There are a number of inaccuracies in this paper. It refers to “introducing” an electrified line from Leeds to Bradford—but I travel on an electrified line from Leeds to the north of Bradford most weekends. It also refers to “electrifying” the Leeds to York section. I happened to travel on that on Monday of last week and the gantries for the electric wires are already up—so I suspect that the investment for that has already been made and it is not new money. So I puzzle over the accuracy of some of what is being said.
I ask, however, about capacity across the Pennines, because clearly the biggest cost of the new line from Leeds to Manchester via Bradford would have been the tunnel through the Pennines. The capacity across the Pennines is extremely tight and, unless one doubles the Standedge tunnel, you are going to have a choke point on upgrading the line between Leeds and Manchester via Huddersfield. Do the Government intend to double the Standedge tunnel, or would they consider that?
A cost-benefit analysis of the Calder Valley and north-east Lancashire—the latter being one of the poorest areas in England—would show that a more northerly line between Leeds and Manchester would spread benefits economically in a way which upgrading the current line simply will not do.
Baroness Vere of Norbiton (Con)
Well, I am very happy to write to the noble Lord on the detail of his question, as I am not well versed on the tunnels et cetera in the area to which he referred. I apologise if he felt that I was condescending to the House on Thursday. It is, of course, always very funny to be asked lots of questions based on the media rather than the actual documents, which had not been published at that time—and of course the questions were about upgrading, and I could not answer them. Maybe the noble Baroness had read the documents, but I had not, so I could not answer.
Bradford will benefit from electrification of the line to Leeds, and improved journey times will mean that you can get from Bradford to Leeds in 12 minutes—that is quite some distance in 12 minutes. I wish I could get that far in London. So it will benefit, and I think that we will look at various other projects as well. Part of the whole issue we are looking is the core pipeline work, which is set out in the Integrated Rail Plan, but we will look at any other scheme and service that will offer further improvements. This is exactly what the National Infrastructure Commission suggested that we do. This is the Integrated Rail Plan, and this is the core pipeline of work and, if noble Lords have suggestions for other schemes that would be affordable, would further improve our ability to improve services, and would be deliverable, I would really appreciate it if noble Lords would forward them to us.
Lord Lea of Crondall (Non-Afl)
My Lords, is it not the case that the credibility of these proposals depends on long-term political consensus? We are not here until 2040 and 2060, sitting around this Chamber. Years ago, I did a couple of jobs for the World Bank on transport infrastructure investment, returns and so on. It is absolutely vital that you nail down the fact that it has got to have long-term political consensus. In this country we are not even trying to do that in terms of the Government opening the door to other people to try to agree on some proposals.
Does the Minister recognise what Hilary Benn said the other day, that the proposals put forward as a long-term plan—for nearly a hundred years, as the Victorians did—would have had
“Victorian railway engineers scratching their heads in disbelief”?—[Official Report, Commons, 18/11/21; col. 740.]
What will the Government do to ensure there is scope for getting together proposals—including some of these—systematically to achieve a long-term cross-party consensus? That is the only way that they will not fall flat on their face.
Baroness Vere of Norbiton (Con)
I hope that I have just outlined to the noble Lord that we will continue to look at schemes that we can put in place in addition to the core pipeline. The RNIP will be published in due course. I hope that will reassure noble Lords that there is a programme in place, and that we will take forward some of the commitments that we have already made. As I have said, I look forward to hearing suggestions from whichever side of the House.
Lord McLoughlin (Con)
One of the problems that the Government face is about expectations, and the rise in expectations as far as transport is concerned. The Secretary of State made a number of important announcements last week, some of which have been called for. The problems of overruns in railways—I certainly had my fair share of them when I was Secretary of State—is common to the industry. I wish Network Rail well in its attempts to keep these under control. I come to the point that HS2, which will be 75% built as originally put forward, was always about capacity. It is very important that the question of capacity be properly addressed. I see from the plan published by the Secretary of State last week that the Government are still looking at options for HS2 to Leeds. The areas that have blight at the moment, because they are being considered as options for that, will continue to have that blight. I hope that the Government will come to conclusions on those options as quickly as possible. I wish my noble friend well, and I wish the Government well in ensuring that the public transport that we all want to see is actually delivered.
Baroness Vere of Norbiton (Con)
I appreciate the wise words of my noble friend. It is the case to a certain extent that some people’s expectations were not met by this plan but, as I have said, there are many things to commend it. I have already mentioned Nottingham and Derby, and there are so many other places that will benefit from this plan. This really is building back better but also with better value for money. I know that a number of noble Lords have questions around capacity. I will include in my letter to noble Lords how we intend to improve capacity in various ways on different parts of the railway; it is all set out in the plan but it might be helpful if I draw it all together for noble Lords. I will also perhaps arrange an open meeting with Minister Stephenson so that noble Lords can quiz him; he is the person who knows this back to front.
Lord Shipley (LD)
My Lords, in reaching the decision to end the HS2 track in the east Midlands rather than Leeds, and HS2 trains at Sheffield rather than Newcastle, what economic impact assessment was done by the Government of the effects on both Yorkshire and the north-east—given that private developer investment will inevitably follow the HS2 track due to the extra capacity that it will provide—or is it the case that no impact assessment on Yorkshire and the north-east has actually been done?
Baroness Vere of Norbiton (Con)
As I explained previously, different places are getting different things. The impact from an economic perspective will therefore be varied. The integrated rail plan gives more certainty to people who want to invest in various places. Quite frankly, I were a business, I would still look very favourably on Leeds. It is about to have a mass transit system that no one has previously managed to give it.
Baroness Blake of Leeds (Lab)
My Lords, I was back in Yorkshire at the weekend, as I am sure everyone would expect. It is hard to convey the anger and sense of betrayal felt across the whole of the north, but particularly in the whole of Yorkshire. There are so many issues to discuss but, frankly, Leeds does not need to be told from down here exactly what is good for it. While a tram will be very welcome it does not in any way, shape or form compensate for the loss of connectivity or address the congestion of Leeds station, given the cancelling of the proposals that the plan put forward last week.
I was going to ask the Minister about the upgrading of the lines and the chaos it will cause. We all remember the timetabling chaos. If the work east of Marsden is not addressed with alternative routes, goodness knows what is going to happen to us. Throughout the document, which I read, there is reference to post-Covid changes of transport use—the fact that the tram will take away the need for investment in the station. Is the Minister aware that levels of passenger use going through Leeds station are already back to pre-Covid levels, and that at weekends it is actually above that level? Please, what are the plans doing to address the fact that if we do not get the investment we need, Leeds City station will fall over within the next four or five years?
Baroness Vere of Norbiton (Con)
I just reiterate that we have absolutely not ruled out getting HS2 to Leeds. It is part of the wider pipeline of work that we are considering; obviously, the station is critical to that as well; as is the mass transit. Among the key things that I need to reassure noble Lords of in this are the capacity and track improvements, along with the digital signalling and all the things that we hope to do on the east coast main line. As I said earlier, it is not as needful of extra capacity as the west coast main line. We believe that by making the improvements, we will see faster journey times to Leeds, Darlington, Newcastle and Edinburgh. We will also see those journey times reduce far sooner than we would have done with the old plans.
Baroness Pinnock (LD)
My Lords, I too live in Yorkshire and am proud to do so. I can confirm that there is an extraordinary sense of anger and betrayal as regards the plan for rail infrastructure in the county. I want to address the issue of rail freight, which has one page in the document—one page. There is a line in the document which says that the aim is to take road haulage off the M62 and transfer it to rail. I hope the Minister can answer on this, because within the plan there are no specific aims for the volume of haulage that it is intended to get off road and on to rail. There are no specific proposals for hubs and terminals where the exchange can take place. There is nothing about logistics, which are essential, and no specifics for rail infrastructure other than a possibility—I think that is the word in the plan—of a third track on the part of the trans-Pennine route from Huddersfield to Marsden. Of course, following Marsden is the Standedge tunnel, which has already been raised.
Can the Minister provide details as to how this modal shift from road to rail is going to occur, in what volume and to what timescale? While I am at it, she mentioned that £200 million has been allocated for mass transit in Leeds so I quickly ask her: since £100 million of that has already been allocated to a discussion about how to get HS2 to Leeds, and there is only £100 million for the Leeds transit, what will that buy?
Baroness Vere of Norbiton (Con)
The work on Leeds mass transit will be driven by West Yorkshire Combined Authority. It will be its plan, but we will support it on that and ensure that we can get the best possible outcome for the people of Leeds in terms of getting mass transit in place. As the noble Baroness knows, West Yorkshire Combined Authority received a very good settlement from the CRSTS. As that extends for only five years and this will need longer development than that, we commit to continue working with the authority on the mass transit system.
The noble Baroness mentioned rail freight. She is right that this does not leap out of the pages of the IRP, but it is not really supposed to. Rail freight is absolutely a feature of the Williams-Shapps rail review and the work we are doing there. As we put in place Great British Railways, we will focus on national co-ordination of rail freight, again looking for projects to make sure that this can happen as easily as possible.
As I have mentioned numerous times, this is not the end and there are other projects that could be added to this to improve it. We will introduce a new, rules-based track access regime with a statutory underpinning for freight and open-access operators. Essentially, we want to maximise the usage of a very extensive and expensive national asset. Rail freight is at the core of much of what we are doing on the railways, as well as many of our wider discussions on freight.
Lord Walney (CB)
My Lords, as has been said, reduced passenger numbers are mentioned at a number of points in the document as justification for some of the changes. Can the Minister confirm whether changed modelling in predictions of journeys has been part of that? If that has not been locked into the numbers, or if there is so much uncertainty over those numbers, does that not mean that there is a grave risk that even the reduced expansion which was announced last week could be further reduced if hybrid working creates more of a structured change in passenger flows than previously thought?
Baroness Vere of Norbiton (Con)
The noble Lord raises a really important question. I have stood at this Dispatch Box and been asked many times how we will change capacity based on what has happened post Covid. We are confident that things will continue to change and that we will see greater usage. We are also quite sure that that usage may not look exactly the same as it did.
One of the biggest issues with the old plan was that it was not properly integrated with other local, regional and national transport networks. We think we can do that much better. Detailed modelling and up-to-date forecasting will happen whenever a business case goes through its various stages. I would not expect any wholesale changes, but this may lead us to think about what infill and other schemes we might consider in order to maximise our initial investment in the IRP. That might be something we should look at in light of future forecasts for demand.
Police, Crime, Sentencing and Courts Bill
Monday 22nd November 2021
(3 years, 1 month ago)
Lords ChamberRead Full debate Police, Crime, Sentencing and Courts Act 2022 View all Police, Crime, Sentencing and Courts Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 40-XI Eleventh marshalled list for Committee - (22 Nov 2021)
Lord Falconer of Thoroton
“Harassment in a public place
(1) A person must not engage in any conduct in a public place— (a) which amounts to harassment of another, and(b) which he or she knows or ought to know amounts to harassment of the other.(2) For the purposes of this section, the person whose conduct is in question ought to know that it amounts to harassment of another if a reasonable person would think the conduct amounted to harassment of the other.(3) For the purposes of this section—“conduct” includes speech;“harassment” of a person includes causing the person alarm or distress.(4) Subsection (1) does not apply to conduct if the person can show—(a) that it was for the purpose of preventing or detecting crime,(b) that it was under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or(c) that in the particular circumstances it was reasonable.(5) A person who engages in any conduct in breach of subsection (1) is guilty of an offence.(6) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months, or a fine not exceeding level 5 on the standard scale, or both.”Member’s explanatory statement
This would create a specific offence of street harassment.
Lord Falconer of Thoroton (Lab)
These important amendments deal with the attempts to make this Bill a reset as far as violence against women and girls is concerned. They create a number of new offences and indicate that there should be reviews in certain areas in relation to harassment and other related things. I will go through each one in turn.
Amendment 284, in my name, would create a specific offence of street harassment. It is not limited to sexual harassment because the experience of men and women on the street is not restricted to sexual harassment. In July 2021, the Home Secretary indicated that she was thinking of introducing a crime of sexual harassment. There are a whole range of studies about the effect, particularly on women, of harassment in the street. A United Nations study, not restricted to the United Kingdom, said that 70% of women had been affected by street harassment, 4% said that it was worth complaining about it and 45% said that it was not. The sort of harassment that one has in mind in relation to this offence is wolf-whistling, people being called out to, people being the victim of people treating them with a total lack of respect in a way that might cause alarm or distress. As I say, it is not restricted to women; other groups are affected as well. Members of the LGBTQ community speak of harassment that they suffer in particular places. It would be wrong to restrict the terms of this offence to a particular type of harassment or a particular group of people, but this proposed new clause makes it an offence to subject somebody to what a reasonable person would regard as harassment, and harassment includes causing that person alarm or distress.
I very much hope that the Government will take up the opportunity that the Home Secretary herself indicated was worth taking up. That would indicate that the sorts of behaviour that in many cases occur throughout the length and breadth of the country would no longer be acceptable, and if people behave better and do not commit acts of harassment, that will have an affect right up the scale. In terms of the drafting, the proposed new clause sets it out very clearly, but we are open to any suggestions about how it may be drafted better.
Amendment 285 makes it an offence to kerb-crawl. We define it as
“an offence for a person, from a motor vehicle while it is in a street or public place … to engage in conduct which amounts to harassment in such manner or in such circumstances as to be likely to cause annoyance, alarm, distress or nuisance to any other person.”
That seeks to deal with people in their cars winding down their windows and shouting, barracking and making life difficult, often with a sexual undertone or more than an undertone. Again, that should be a crime, and something that we very much hope that the Government will treat as a serious matter. We hope that they will take up the suggestion that has been made. Again, if there are better ways of drafting it, we are more than open to hearing them, but Amendment 285 provides the basis for such a crime.
Amendments 292A and 292B are about sex for rent, which should be a crime. This is where an individual offers accommodation at a reduced cost or free in exchange for sex. This arrangement can be either at the beginning of a tenancy or enforced during a tenancy, often when tenants are experiencing difficulties in finding somewhere to live or in paying the rent. Sex for rent arrangements force people, especially women, into the most vulnerable of situations, often in enclosed private spaces to which a perpetrator has constant and unrestricted access. This has been a matter of campaign for a considerable period, particularly from groups such as Generation Rent. Politicians from all parties have picked it up and investigative journalists have too.
This Bill provides an opportunity to do something about it. A 2016 Shelter survey found that 8% of women had been offered a sex-for-rent arrangement at some point in their lives. In 2018, YouGov and Shelter estimated that 250,000 women had been asked for sexual favours by their landlords in exchange for free or discounted accommodation at some point between 2013 and 2018. More recent research by Shelter, which regards this as a serious issue, suggested that 30,000 women in the United Kingdom were propositioned with such arrangements between the start of the pandemic in March 2020 and January 2021. It is not difficult to imagine that the question of how one affords accommodation became more and more difficult for certain people during the pandemic.
Lord Hope of Craighead (CB)
My Lords, I support Amendment 284 for all the reasons that the noble and learned Lord, Lord Falconer of Thoroton, has explained. However, I respectfully suggest to him that there is a slight mismatch between that amendment and Amendment 285. Amendment 284 is so broadly defined, for the reasons that have been very well expressed, that it would include the conduct that is described in Amendment 285. Indeed, if we look at the wording of Amendment 285, harassment is an essential element of that offence.
I raise the point because there is a difference between the penalties. The value of the kerb-crawling clause is that it introduces a possibility of disqualification, and I see the force of that, but the fine is only level 3, whereas the fine in Amendment 284 is level 5. If I was a prosecutor, having to decide which charge to bring, I would probably go for the offence in Amendment 284 and forget about the disqualification. I wonder whether, if the noble and learned Lord is thinking of bringing the matter back, he might try to amalgamate these two and perhaps put a subsection into Amendment 284 to cover the situation that if the harassment offence is conducted from a motorcar, in the way broadly described in Amendment 285, it would attract the additional penalty of disqualification. It would then be brought into Amendment 284’s sanctions, which are imprisonment, which might well be appropriate in a kerb-crawling offence, and also the level 5 fine. That is a refinement of drafting, but I am very much in favour of Amendment 284 as it stands, particularly in view of the broad way in which it is expressed.
Baroness Bennett of Manor Castle (GP)
My Lords, I offer Green support for all these amendments. Some of my questions have just been answered by the noble and learned Lord, Lord Hope of Craighead, and his suggestion that some of the amendments be combined is positive, because retaining the opportunity to take away the right to a vehicle in an offence involving a vehicle is very useful.
I am aware of the time and the pressure to make progress, but it is a great pity that we are discussing such an important group of amendments, all put forward by the noble and learned Lord, Lord Falconer of Thoroton, so late at night and in this rather rushed way. I will just draw some comparisons and links between them.
One thing to highlight is how much these amendments come from community campaigning from the grass roots up. I imagine that the campaign for the offence of harassment draws, in large part, from the group called Our Streets Now, set up by sisters Gemma and Maya Tutton, aged 16 and 22, who are working with the charity Plan International UK. Their hashtag is #CrimeNotCompliment. I suspect that the noble and learned Lord might have drawn on their ready-made Bill and I note that this has had strong cross-party support in the other place. I draw on the words of the women’s rights campaigner Nimco Ali, who said it is “bizarre” that street sexual harassment is still legal. Littering and smoking are banned, but this kind of behaviour is not.
On Amendment 285, I briefly highlight that Generation Rent, another grass-roots campaign group, has been pushing for action here. A report by Shelter in January found that, between March and September 2020, around 30,000 women had been offered housing in exchange for sex. This is a function of the extreme dysfunction of our current housing system.
I have to address Amendment 292M personally because, as I suspect is the case for many people, particularly women, it is something I have personally experienced. I was 11 years old in another country, out in the centre of Sydney on my own, when I was subjected to this offence. I was taught, as lots of young girls were then and probably still are now, to laugh, turn around and walk away. But that I can still vividly remember that street scene shows that it had an impact on me. When I look back now, I felt as an 11 year-old that this was a threat to my right to be on the streets. I did not tell my mother, because I was worried that she would think I should not be allowed out on my own to exercise the freedom that I wanted and continued to exercise. It is crucial that we see a change in attitude here and a review is a good way to address that.
The noble and learned Lord, Lord Falconer, has covered Amendment 292T very well, but we must note that Femicide Census, campaigning on this and broader issues, reports no sign of a reduction in the rate of femicide. That study covered a 10-year span from 2009 to 2018. We are not making progress on this, but we need to. I hope the Government will go away and look at this important group of amendments very seriously, and come back to us with proposals covering—I like to be an optimist—all of them.
Baroness Fox of Buckley (Non-Afl)
My Lords, spiking is a serious matter and people who do it should be caught and punished, but I issue a note of caution, because I am slightly worried about Amendment 292R, put forward by the noble and learned Lord, Lord Falconer. I am worried it might be too reactive and respond to the perception that this is a major problem, rather than a cool factual analysis. Calling for an urgent review could unintentionally fuel what might be a moral panic and create a climate of fear.
To give some context, despite the headlines and social media hysteria, some careful commentators and a range of experts have raised doubts, queried some of the sensationalist coverage and warned against overreacting. There was a useful article in Vice that started the debunking, which quoted Guy Jones, a senior scientist at the drugs charity The Loop, who pointed out that
“few drugs would be able to be injected like this”,
using a needle. Administering drugs in this way is just not an easy task. Some experts have explained that it would be particularly difficult to use date-rape drugs, because of the larger needle that would be needed and that it would need to be in the body for at least 20 seconds.
The director of the Global Drug Survey, Adam Winstock, notes:
“There are very few widely accessible drugs”
that could be used in this way and given intramuscularly in small enough volumes that people would not notice. A critical care nurse I saw interviewed suggested that the likelihood of administering drugs like ketamine was virtually zero. After a high-profile report about somebody being infected by HIV, the National AIDS Trust pointed out:
“Getting HIV from a needle injury is extremely rare. A diagnosis takes weeks.”
So it is worth pausing.
Baroness Kennedy of Cradley (Non-Afl)
My Lords, I will speak in support of Amendments 292A and 292B. In doing so, I declare my interest as director of Generation Rent.
In my view, men advertising free rent for sex are not landlords, they are predators; they prey on vulnerable women and men with limited financial options. The fact that they use Covid as a marketing technique is abhorrent. They do not provide, or even attempt to provide, a safe, secure home; they deliberately take advantage of people. Although the law and CPS guidance in this area were updated a few years ago, they are still flawed and inadequate. Action against these predators needs to be enforced, investigated and prosecuted. The web platforms such as Craigslist, which is reportedly worth £7.5 billion, that facilitate this exploitation need to have action taken against them. They host these ads, yet they are ignored by law enforcement. Some of these predators may not be aware that they are breaking the law; however, I am sure that many are laughing at the law. They post their ads, which are open and explicit, and their criminal actions pass by unhindered because they know that they can post these ads without consequence.
Despite it being a criminal offence, as my noble and learned friend Lord Falconer of Thoroton said, there has only ever been one charge for sex for rent. That was in January this year, and it was because of the good work of journalists who passed their evidence to the police. Thanks to that and an investigation by ITV researchers in 2009, this then resulted in further criminal inquiries.
Of course, as director of Generation Rent, I would say that dealing with the criminal justice aspects of this issue is only one side of the problem. Hand in hand with these criminal justice changes there needs to be action to address the insecure housing situation and financial vulnerabilities of thousands of people in this country. We need a dramatic increase in social housing. It was reported last week that fewer than 6,000 social homes were built last year. We need more interventions to support renters in arrears. Rent arrears have tripled during the pandemic, and more renters than ever are now on universal credit. We need a proper and permanent end to private renters being able to be evicted for no reason with just two months’ notice. Hundreds of thousands of people are financially vulnerable and live at risk of homelessness and exploitation.
No one should ever be forced by coercion or circumstance to exchange sex for a home. The law needs to better protect renters from these predators, who seek to exploit them in return for a roof over their head. I very much support the amendments tabled by my noble friend and look forward to the Minister’s reply.
Lord Marks of Henley-on-Thames (LD)
My Lords, I entirely support the motivation behind all the amendments in the group, comprehensively spoken to by the noble and learned Lord, Lord Falconer. I am, however, hesitant about the detail of the new offences proposed, and that goes further than the drafting—I fully accept that the noble and learned Lord suggested that there could be changes to the drafting. All five of the new offences have problems of breadth. That prevents me giving unqualified support to creating these new offences without considerable further research being undertaken.
I take the point made by the noble Baroness, Lady Fox of Buckley, that there is some danger to having a review of the spiking offence, but, in general, as distinct from the specific new offences, I am entirely unqualified in my support for the two amendments calling for urgent reviews of the law on exposure and on spiking. We need to consider carefully how the law in these two areas is working, the extent to which it needs reform and exactly what reform is needed. The review mechanism proposed in the amendments is comprehensive and sensible, and the amendments have the potential, if accepted, to lead to measured and evidence-based reform which will work well. It is that type of reform that we should all want.
The amendments creating each of the five new offences in this group respond to entirely justifiable views that something must be done, but I am not sure that the conditions on which criminal liability is imposed have been sufficiently reviewed and considered. The response I would like to see in each case from the Government is a promise to consider the new offences carefully and, with expert help, to see whether they can come up with offences that would be clearly defined, thoroughly drafted and delineated, and limited to behaviour that should properly be criminal, with all the pitfalls considered.
I fully agree with the noble Baroness, Lady Bennett of Manor Castle, that we have suffered in this Bill from trying to do everything in a rush. These amendments, while well intentioned and in the right spirit, fall into that danger.
We could take the creation of the new offence of non-fatal strangulation in the Domestic Abuse Act as a useful template. The proceedings on that provision in that Act also proved that there does not need to be undue delay in ensuring that a well-drafted provision reaches the statute book. Indeed, it might be possible to include new offences in all these areas, if only the Government would give a sensible allocation of more time for their consideration.
Perhaps I may give several examples of my concerns—they include those expressed by the noble and learned Lord, Lord Hope, but go further. On street harassment, in Amendment 284, I am concerned about the breadth of the proposed offence. The noble and learned Lord saw it as a virtue that it was not confined to sexual harassment. I do not agree with that, because “harassment” as defined is so broad that it criminalises behaviour that many people would not believe ought to be criminal.
I am also concerned about the use of the words “ought to know” in the context of harassment. When a defendant does not know that conduct amounts to harassment but is charged on the basis that he ought to have known it, is that properly a criminal offence? These are not drafting points; they reflect a concern about criminalising behaviour with a particular target—generally sexual harassment, as has been said—while included in the target are far more offenders than could properly have been envisaged.
On kerb-crawling, I am concerned that the definition in subsection (1) of the proposed new clause in Amendment 285 is far wider than anything that would normally be understood as kerb-crawling, which usually has to do with soliciting prostitution. This would cover any conduct amounting to harassment, after getting out of the vehicle, that is
“likely to cause annoyance, alarm, distress or nuisance”.
It seems to me that any incident of road rage could therefore be covered. The proposed offence is completely two-sided. The suggested penalty is revocation of a licence, or a fine. Why revocation of a licence? Incidents of road rage may be two-way—there may be blame on both sides. Why not a shorter ban, if the removal of a licence is indeed appropriate?
Amendment 292A concerns the offence of sex for rent and Amendment 292B concerns facilitating it. These amendments are directed at unscrupulous landlords and owners or providers of accommodation. Appalling behaviour, such as that outlined by the noble Baroness, Lady Kennedy of Cradley, would be covered by the proposed offence, but is that behaviour all that the proposed offence would cover? The definition includes the words “requiring or accepting” sexual relations. Is the provider of the accommodation always the only guilty party? Should such behaviour always be criminal? What about the landlady of the bed and breakfast who seduces the potential paying guest and offers him or her a free room in return? Is that always to be criminal? Even if it is, is that offence always triable on indictment only? Is that proportionate? I suggest not—it needs further thought. The business of sex for rent is disgraceful, in exactly the way expressed by the noble Baroness, Lady Kennedy, but we need to be very careful about what we introduce in response to the outrage that is felt as a result.
On Amendment 292T and sexually motivated homicide, of course one understands the motivation behind creating that new offence, but my concern is that, as drafted, the offence would criminalise behaviour where the perpetrator intended no harm at all to the person who died. It covers a person who kills another
“in the course of … sexual gratification”
and intends the act—in other words, has the intention to do whatever sexual act it is that led to the death of the person who dies. Would this not cover consensual acts desired or intended by both parties which, whether by accident or misfortune, led to the death of one of them? The noble and learned Lord said that this was there to outlaw the defence of rough sex. I understand that it is there for that purpose, but people have sex that gives them heart attacks—that is an extreme and, in a sense, absurd example, but there are a lot of sexual acts that lead to harm. You cannot criminalise them all just to deal with the defence of rough sex. Some of those acts would be unintentional and innocent.
My point is not to resist any change in the criminal law; it is simply to point out how careful we need to be in passing new legislation before we introduce new rafts of offences that go far too wide. That would be a restriction on freedom, not an improvement in the freedom of the citizen from new offences. I hope that the Government will respond to these amendments in a positive way, but with great care and in the spirit of compromise between the need for care and the need to criminalise behaviour that truly ought to be criminal.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I am grateful to the noble and learned Lord, Lord Falconer, for setting out these amendments, which call for new offences to tackle street harassment and so-called sex for rent, propose a review of the offences of exposure and administering a substance with intent, and seek to address cases which involve the so-called rough sex defence.
On Amendments 284 and 285, tabled by the noble and learned Lord, no one can doubt the gravity of the issue these amendments seek to address. Like the Committee, the House and the whole country, I was very shocked by the tragic events of September; first, Sabina Nessa and then the revelations about how the murderer of Sarah Everard had abused his position as a police officer to commit his awful crimes. While these are the most serious violent crimes which can happen to women, they form just one part of what Her Majesty’s Inspectorate of Constabulary referred to in its recent report as an epidemic of violence against women and girls.
What is so striking is how these crimes have galvanised so many women and girls across the country to talk about their experiences and their suffering. To many of us—although not, of course, to those who experience it—the sheer scale of the problem has been shocking. Many of the more than 180,000 responses which we received to the call for evidence on the Tackling Violence Against Women and Girls strategy addressed this issue, as did the report published by Plan International UK in September. Figures released by the Office for National Statistics in August about perceptions of personal safety and experiences of harassment were equally shocking. For example, two out of three women aged between 16 and 34 had experienced one form of harassment in the previous 12 months. Thankfully, those experiences are not of the same level of gravity as what happened to the women who I have just spoken about, but they are still deeply traumatic to their victims.
I assure noble Lords that tackling violence against women and girls is a huge priority for this Government. We published our new Tackling Violence Against Women and Girls strategy in July. As the Home Secretary wrote in her foreword, violence against women and girls is not inevitable, and
“This Strategy will help bring about real and lasting change.”
On the issue of sexual harassment in public places, it sets out a number of commitments. A national communications campaign will challenge this kind of behaviour and ensure victims know how and where to report it. To ensure police are confident about how to respond to public sexual harassment, the College of Policing will provide new guidance for officers; this work is already well advanced. To prevent the behaviour happening in the first place, we will work to deepen our understanding of who commits these crimes, why they do it and how this behaviour may escalate, including through our new funding on what works to tackle violence against women and girls.
The strategy confirmed that we will pilot a tool, StreetSafe, which will enable the public to anonymously report areas where they feel unsafe and identify what it was about the location that made them feel that way, so that police can use that information to improve community safety. The pilot launched in August. The strategy also confirmed that the Government are investing a further £25 million in the safer streets fund to enable local areas to put in place innovative crime prevention measures to ensure that women and girls feel safe in public spaces. The successful bids were announced in October. The strategy also confirmed that the Home Office would launch a £5 million safety of women at night fund focused on the prevention of violence against women and girls in public spaces at night. The successful bids were announced on 10 November, and our commitment to this issue cannot be in doubt.
However, there is rightly considerable interest in the legal position, including whether there should be a new law specifically targeted at this type of behaviour. I pay tribute to parliamentarians in both Houses for their campaigning on this issue and to the organisations Plan International UK and Our Streets Now—the latter, as the noble Baroness, Lady Kennedy of Cradley, said, set up by two sisters out of a determination that other women and girls should not suffer sexual harassment as they had.
As noble Lords will know from the tackling VAWG strategy, while there is not a specific offence of street harassment, there are a number of offences in place that capture that behaviour—I think it was the noble Lord, Lord Marks, who talked about behaviours—depending on the specific circumstances, including offences under the Protection from Harassment Act 1997, the Public Order Act 1986 and the Sexual Offences Act 2003. However, we are looking carefully at where there might be gaps in existing law and how a specific offence of public sexual harassment could address those. That work continues and is being informed by the results of the call for evidence and by our direct engagement with campaigners on this issue. We have not yet reached a position on it and I cannot commit to have done so ahead of Report; as the strategy notes, this is a complex area and it is important that we take time to ensure that any potential legislation is necessary, proportionate and reasonably defined.
On Amendments 292A and 292B, we can all agree that so-called sex for rent is an exploitative and abhorrent phenomenon that has no place in our society. That said, there are existing offences under the Sexual Offences Act 2003 that might be used to prosecute the practice, including the Section 52 offence of causing or inciting prostitution for gain and the Section 53 offence of controlling prostitution for gain. Both offences carry a maximum penalty of seven years’ imprisonment and can capture instances of “sex for rent”, dependent on the circumstances of the individual case. The Section 52 offence would apply when the identified victim had been caused or incited to engage in prostitution. In addition, the online safety Bill will also place duties on sites that host user-generated content, such as social media companies, to protect their users from illegal content. This would include posts that are committing the offence of inciting—
Lord Falconer of Thoroton (Lab)
I apologise for interrupting, but is it right that those existing sexual offences all require the victims in “sex for rent” cases to be characterised as engaging in prostitution?
Baroness Williams of Trafford (Con)
I was going to get on to that, because I had noted the noble and learned Lord’s point. There are two answers. The first is that anyone who makes the report to the police will benefit from the anonymity provisions in the Sexual Offences (Amendment) Act 1992. The second is that the Section 52 offence applies when an identified victim has been caused to engage in prostitution or incited to do so, whether or not the prostitution takes place. In other words, a victim does not have to identify as a prostitute for the Sections 52 and 53 offences to be used. I hope that partly answers his question, although he does not look entirely convinced.
Lord Falconer of Thoroton (Lab)
How can the Minister tell when I am wearing my mask?
Baroness Williams of Trafford (Con)
I can see the noble and learned Lord’s eyebrows.
In 2019, the Crown Prosecution Service amended its guidance Prostitution and Exploitation of Prostitution to include specific reference to the potential availability of charges under the Sections 52 and 53 offences where there is evidence to support the existence of “sex for rent” arrangements, and—as the noble and learned Lord, Lord Falconer, and the noble Baroness, Lady Kennedy of Cradley, pointed out—in January this year the CPS authorised the first charge for “sex for rent” allegations under Section 52.
Baroness Kennedy of Cradley (Non-Afl)
If the offences were in place in 2003 and the guidance updated in 2019, why does the Minister believe that it is only this year that the first charge has been made for sex for rent?
Baroness Williams of Trafford (Con)
I do not disagree that it is only now being prosecuted. The point is that it is being prosecuted, and that is what I was trying to get over. The defendant in that case has pleaded guilty to two counts of inciting prostitution for gain, but as there is due to be a trial on an unrelated matter, it is probably not wise for me to comment further on this.
The noble Baroness talked about landlords. It is imperative that we ensure that landlords are not able to use their status and exploit any legal grey areas that could abuse their tenants or any other vulnerable people in society. The noble Lord, Lord Marks, also cited a number of examples. Local authorities and police forces are aware of these issues, and they will ensure that those convicted of these offences are banned from engaging in managing or letting residential accommodation.
Amendments 292M and 292R would require the Secretary of State to review the operation of two offences under the Sexual Offences Act 2003: namely, those of “exposure” and “administering a substance with intent”. As the noble and learned Lord, Lord Falconer, has explained, both amendments are in response to recent events. I appreciate the issues that the noble and learned Lord has raised, but I do not think that it is a requirement to put into primary legislation. I am sure he will remember from his tenure as Secretary of State for Justice that the Ministry of Justice, together with the Home Office, keeps the operation of the criminal law under review, and if there are problems they will act where necessary.
I am not sure whether it was the noble Baroness, Lady Fox, or the noble Lord, Lord Marks, who pointed out that we need to make legislation following full investigation of the facts and the consequences of making new laws, but we will continue to review the law in these areas and to ensure that it is up to date and fully equipped to protect victims of exposure and, indeed, spiking.
In relation to exposure and the police response to allegations in respect of Sarah Everard’s killer, the Committee will be aware that the first part of the inquiry announced by the Home Secretary will examine the killer’s previous behaviour and will establish a comprehensive account of his conduct leading up to his conviction, as well as any opportunities missed. We will, of course, want to learn any lessons arising from this and other aspects of the inquiry.
The recent reports of spiking—adding substances to drinks and injecting victims with needles—are concerning, and I have every sympathy with victims and anyone who might feel unable to go out and enjoy a night out for fear that they might be targeted. Any spiking constitutes criminal conduct, and the necessary offences are on the statute book. As with any crime, it falls to the police to investigate and ensure that those responsible are dealt with in accordance with the law.
The police are, of course, operationally independent, and it would not be right for me to comment on specific instances and allegations at this time when there are ongoing investigations, but they are taking it very seriously and working at pace to gather intelligence and identify perpetrators. My right honourable friend the Home Secretary has already asked the National Police Chiefs’ Council to urgently review the extent and scale of the issue and is receiving regular updates from the police, as has been widely reported. This is being done using resources at local, regional and national level, including the National Crime Agency.
Finally, turning to Amendment 292T, we return to the issue of the so-called rough sex defence. Noble Lords will remember the extensive debates on this topic during the passage of the now Domestic Abuse Act 2021. In that Act, the Government responded to concerns from the public and from across the House that defendants, invariably men, argued that the death of a person, invariably a woman, was caused by “rough sex gone wrong”.
Lord Falconer of Thoroton (Lab)
I am very much obliged to everybody who has taken part in this incredibly important debate. It is terribly unfortunate that this debate is happening at this particular time—I am very glad to see the Minister nodding. This is incredibly unfortunate when we are talking about violence against women and girls, which is the big issue in relation to this Bill. This is no attack on the Whips, but they asked prior to the dinner break that we get on as quickly as possible. It is an incredibly unfortunate way for this House to look at legislation such as this.
I thank the noble and learned Lord, Lord Hope, for his support for Amendment 284, which concerns street harassment. I take note of what he said in relation to Amendment 285 and the difference between the penalties. He was suggesting that there might be a way to amalgamate the two. That suggestion seems to be very well made, and I hope that when we come back with this on Report, we might try to follow it up. I was grateful to the noble Baroness, Lady Bennett, for her support in relation to all of the amendments.
I take note of what the noble Baroness, Lady Fox, said in respect of the review on spiking. One is in a bit of a dilemma: there is already some degree of anxiety in relation to spiking. I think that what she was saying was, “Do not have an immediate review because that increases the anxiety,” but if you do nothing about it, the anxiety continues. My own judgment would be that one should have the review.
Separately, the noble Baroness, Lady Fox, asked whether one should be worried if one is criminalising through harassment conduct including speech. I do not think that that criminalises free speech, because the sorts of speech that we would intend to criminalise under the harassment crime would be cajoling, offensive behaviour—not expressing an opinion but insulting people or demanding sex or other things of people in a wholly inappropriate way. I do not think that would give rise to the risk of an attack on free speech.
Baroness Fox of Buckley (Non-Afl)
I suppose it is following on from what the noble Lord, Lord Marks, pointed out, about the broadness of that amendment. Since 2016, I have been subjected to a “fair amount of verbal”, as they say, walking around the Westminster village, from people who did not approve of my Brexit views. It was not pleasant: it was not sexual, but it was particularly obnoxious and offensive; but I do not know whether that should be against the law. I might have a moral view of it, but I would not want them all to be arrested. I am saying that, while verbal harassment is unpleasant, there is a question as to whether it should be made criminal. I just do not want everyone being locked up for things they say, even if what they say causes distress.
Lord Falconer of Thoroton (Lab)
I completely take the noble Baroness’s point. The law has been very, very aware of that. There is a difference between people saying to you on the street, “I very much disagree with your views on Brexit” and others saying, “Why are you such a stupid, awful” and then a series of expletives, and chasing you down the street, just abusing you. The law is capable of making distinction.
Baroness Fox of Buckley (Non-Afl)
It was the latter rather than the former, I have to say.
Lord Falconer of Thoroton (Lab)
Then there might be a point where that becomes harassment.
I found the speech of the noble Lord, Lord Marks of Henley-on-Thames, to be terrible. He sounded like a Government Minister in relation to this, thinking of excuses why not to do something about harassment, not just against women—against other people as well—but particularly against women. I was very struck by the fact that the Minister at least acknowledged that there is a real problem in relation to this. Her speech accepted that something had to be done about it, which that of the noble Lord, Lord Marks, did not.
There was a difference between the view of the noble and learned Lord, Lord Hope of Craighead, which was broadly to accept the proposals that I am making in Amendment 284, and that of the noble Lord, Lord Marks, who raised two particular points in relation to street harassment. One was about the breadth of the offence, which is not limited to sexual matters. I do not think it should be limited to sexual matters. If somebody who is disabled is chased down the street by a group of people taunting them for being disabled, that should be harassment. The second point the noble Lord was worrying about was “ought to know”. The sort of conduct that we are seeking to criminalise here is where people behave in a way that is wholly unacceptable. If you say, “I did not know that it was criminal to wolf-whistle and chase somebody down the street,” the fact that you did not know that should not be any defence. Those were the only two points he made in relation to it.
Lord Marks of Henley-on-Thames (LD)
I am grateful to the noble and learned Lord for giving way and I am sorry that he found my speech terrible. I think he missed the point. I am not suggesting that there should be no criminalisation of the sexual offences. It may well be that the behaviour about disability that he mentions is already criminal. The point I am making is that you have to be very careful to delineate offences so that they are criminalising only conduct that ought to be criminal.
The noble Baroness, Lady Fox of Buckley, with whom I do not always agree, made the distinction very well. In my understanding of the Minister’s speech, she and I were on exactly the same page. We both believe that violence against women and girls has to be treated extremely seriously. We both believe—and if I sound like a Government Minister, the noble and learned Lord knows that I am not and never have been one—that the Government have a responsibility to ensure that the ambit of the criminal law is kept within the ambit of the law that people can trust and have confidence in. They cannot do that if you randomly criminalise behaviour that ought to be without the criminal law.
Lord Falconer of Thoroton (Lab)
I do not know where to start in relation to that intervention. I agree with the noble Lord that we need a clear delineation. We need to come forward with something. We have come forward with something that, interestingly enough, the former Lord President of the Court of Session in Scotland found completely acceptable but the noble Lord, Lord Marks, does not, for the two reasons that he has given that seem to me to be ill founded. We need to make progress in relation to it. We are not going to have an opportunity to do it. What I take the noble Lord, Lord Marks, as saying is that he will co-operate with us in trying to delineate an offence for the purposes of this Bill because something needs to be done now.
Lord Marks of Henley-on-Thames (LD)
The noble and learned Lord invites a response. I can certainly say that we will co-operate with that and I completely agree with him that the degree to which we are forced to rush this legislation inhibits progress on the kinds of proposals he is making. The difficulty is that one has to look at these offences in detail.
The noble and learned Lord suggested—rather unfairly, I think—that the two points I made against the street harassment offence he was particularly concerned with were the only two points I had. I made it absolutely clear in my speech that these were just examples. I agree with the Minister that you have to look very carefully at the whole area of new offences. That is why the reviews are important in relation to the spiking and exposure offences. You simply cannot legislate in a hurry to create new offences, as his amendment seeks to do.
Lord Falconer of Thoroton (Lab)
I have no idea whether that was a yes or a no to my question. I assume the two points the noble Lord made were his two best points and the other two were no better than that, so I do not know where the Liberal Democrats stand in relation to that now.
In relation to the sex-for-rent offence, various points were made about whether the case of the landlady who seduces the male tenant and then does not charge rent should be an offence. I am more than happy to work out whether there should be certain defences available. As the noble Baroness, Lady Kennedy of Cradley, made clear, it is something that urgently needs criminalisation—and criminalisation that does not require the victim to be either characterised as engaged in prostitution or incited to commit prostitution. The implication of the law, even if it gives the victim anonymity, is that by succumbing to the sex-for-rent proposal the person is forced to become engaged in prostitution. That is not the way the law should be. There should just be a straightforward criminalisation of it.
Of course, I am sure that the offence can be made better in terms of its drafting but it is a drafting issue, not an issue of substance between us. If we do not do it in this Bill, when will we do it? The point that the noble Baroness, Lady Kennedy of Cradley, makes is almost unanswerable: there has been one prosecution. I could not work out whether there is maybe another one coming, from what she said. That would make it two, over years, and it is wholly unacceptable that that is the position.
Baroness Hamwee
“Automated decision-making: safeguards
(1) Where data is being processed for a criminal justice purpose, section 14 of the Data Protection Act 2018 is to be read as if the amendments in subsections (2) to (7) had been made.(2) In subsection (1) after “solely” insert “or significantly”.(3) In subsection (4) after “solely” insert “or significantly”.(4) In subsection (4)(a) after “solely” insert “or significantly”.(5) In subsection (4)(b)(ii) after “solely” insert “or significantly”.(6) In subsection (5) after paragraph (a) insert—“(aa) provide to the data subject all such information as may be reasonable regarding the operation of the automated processing and the basis of the decision,”(7) After subsection (5) insert—“(5A) The controller’s powers and obligations under this section are not limited by commercial confidentiality claimed by the provider of equipment or programmes used”.”
Baroness Hamwee
My Lords, changing the subject, the Data Protection Act 2018, reflecting the GDPR, in Section 14 provides that “decisions based solely”— solely—“on automated processing” are “subject to safeguards.” Such a decision
“produces legal effects concerning the data subject, or … similarly significantly affects the data subject.”
The decisions are subject to safeguards under the Act, notification of the data subject and the right of the data subject to request reconsideration or, importantly, a new decision not based on automated processing. Noble Lords will appreciate the potential importance of decisions affecting liberty and that the use of artificial intelligence may well involve profiling, which does not have an unblemished record.
This amendment would alter the term “solely,” because “solely” could mean one click on a programme. The term “significantly”, proposed in the amendment, is not the best, but I think it will serve the purpose for this evening. I do not claim that this is the best way to achieve my objective, but I did not want to let the moment pass. The Justice and Home Affairs Committee —I am not speaking as its chair—has had this issue raised a number of times. The Information Commissioner is one who has raised the issue. Elizabeth Denham, before she left the office, said it should not just be a matter of box-ticking. The guidance of the Information Commissioner’s Office provides that there should be the following three considerations:
“Human reviewers must be involved in checking the system’s recommendation and should not just apply the automated recommendation to an individual in a routine fashion; reviewers’ involvement must be active and not just a token gesture. They should have actual ‘meaningful’ influence on the decision, including the ‘authority and competence’ to go against the recommendation; and reviewers must ‘weigh-up’ and ‘interpret’ the recommendation, consider all available input data, and also take into account other additional factors.”
The Minister will, I am sure, refer to the current government consultation on data, Data: A New Direction, published in September. We dealt with this issue by putting the amendment down before then but, even so, the consultation questions the operation and efficacy of the Article 22 of the GDPR, which, as I said, is the basis for Section 14. I appreciate that the consultation will have to run its course but, looking at it, the Government seem very focused on the economic benefits of the use of data and supportive of innovation.
Of course, I do not take issue with either of those things, but it is important not to lose sight of how the use of data may disadvantage or damage an individual. Its use in policing and criminal justice can affect an individual who may well not understand how it is being used, or even that it has been used. I was going to say that whether those who use it understand it is another matter but, actually, it is fundamental. Training is a big issue in this, as is, in the case of the police, the seniority and experience of the officer who needs to be able to interpret and challenge what comes out of an algorithm. There is a human tendency to think that a machine must be right. It may be, but meaningful decisions require human thought more than an automatic, routine confirmation of what a machine tells us.
The government consultation makes it clear that the Government are seeking evidence on the potential need for legislative reform. I think that reform of Section 14 is needed. AI is so often black-box and impenetrable; even if it can be interrogated on how a decision has been arrived at, the practicalities and costs of that are substantial. For instance, it should be straightforward for someone accused of something to understand how the accusation came to be made. It is a matter of both the individual’s rights and trust and confidence in policing and criminal justice on the part of the public. The amendment would extend the information to be provided to the data subject to include
“information … regarding the operation of the automated processing and the basis of the decision”.
It also states that this should not be “limited by commercial confidentiality”; I think noble Lords will be familiar with how openness can run up against this.
Recently, the Home Secretary told the Justice and Home Affairs Committee twice that
“decisions about people will always be made by people.”
The legislation should reflect and require the spirit of that. A click of a button on a screen may technically mean that the decision has a human element, but it is not what most people would understand or expect. I beg to move.
Lord Paddick (LD)
My Lords, with the leave of the Committee, I will speak briefly. In my comments on the previous group on which I spoke—the one beginning with Amendment 278—I did not mean to suggest that the noble Lord, Lord Carlile of Berriew, was filibustering. I tried to inject a little humour into proceedings, bearing in mind the wide range of issues that we discussed in the debate on that group and the length of that debate. I joked that it was beginning to look like a filibuster. I have apologised to the noble Lord but I wanted to include that apology in the official record.
We support this important amendment. As my noble friend Lady Hamwee said, Section 14 of the Data Protection Act 2018 provides some safeguards against important decisions being taken by automated processing. It allows a human review on appeal with the subject having been told, but only if the decision was “solely” taken automatically, rather than “significantly”, as my noble friend’s amendment suggests. Experience in the American criminal justice system of using algorithms shows that bias in historical decisions is replicated, even enhanced, by algorithms. We therefore support this amendment.
Lord Rosser (Lab)
As has been said, Article 22 of the general data protection regulation provides that a person has
“the right not to be subject to a decision based solely on automated processing, including profiling, which produces legal effects concerning him or her or similarly significantly affects him or her.”
It also provides that there is an exemption to this if the automated decision-making is explicitly provided in law. Section 14 of the Data Protection Act 2018 provides, as has been said, some safeguards based on Article 22 for cases where the law allows automated decision-making on things that may have a significant effect on a person. It provides that where a significant decision is made by automated means, the subject may request that the decision is retaken with human oversight. The section currently provides protections for a decision taken, as has once again been said, “solely” by automated means. The amendment would extend this provision to decisions taken solely “or significantly” by automated means.
The issue of automated decision-making will become, and indeed is becoming, increasingly prevalent in our lives—a point made by all sides during the passage of the 2018 Act, when we tried to add far stronger safeguards to the then Bill to prevent decisions that engaged an individual’s human rights being decided by automated means. On that basis, I am certainly interested in the points raised to extend the right of appeal to decisions that are based “significantly” on automated processing.
Finally, it is potentially concerning that the Government are currently consulting on removing Article 22 of the GDPR and the associated protections from UK law altogether. I believe that consultation closed last week. Can the Government give an indication of when we can expect their response?
Lord Sharpe of Epsom (Con)
My Lords, I am grateful to the noble Baroness, Lady Hamwee, for explaining this amendment, which relates to automated decision-making. Let me first say that the Government are committed to maintaining high standards of data protection and agree that the clarity of safeguards relating to automated decision-making is important. The Government are also aware of some of the difficulties faced by organisations in navigating the terminology of these automated processing provisions.
As all noble Lords have noted, to address this issue the Government are currently seeking evidence via a public consultation, which is being run by the Department for Digital, Culture, Media and Sport. As the noble Lord, Lord Rosser, noted, that consultation closed only last Friday. He also mentioned Article 22. The consultation is looking at the need for legislative reform of the UK data protection framework overall, including GDPR and the Data Protection Act 2018. It covers Article 22 of the UK GDPR, including organisations experienced with navigating the solely automated processing and similarly significant terminology. As I say, that consultation closed on 19 November.
In examining the responses to the consultation, the Government will consider the safeguards in respect of automated decision-making that involve personal data in the round. We will address this matter in the government response to the consultation, which we expect to publish in the spring. We also look forward to the report of the inquiry by the Justice and Home Affairs Committee, chaired by the noble Baroness, Lady Hamwee, and will take its conclusions and recommendations into account when bringing forward our proposals for legislation. In the meantime, with apologies for being brief, I invite the noble Baroness to withdraw her amendment.
Baroness Hamwee (LD)
My Lords, I am grateful for that reply. This amendment and this concern are about far more than navigating terminology. It is actually a fundamental point, but I do not intend to keep the Committee any longer. I think I have made it clear that I am probing but, I hope, probing to an end. I beg leave to withdraw the amendment.
“Crime scenes: religious rituals or prayer
In securing a crime scene where a person within that crime scene is severely injured, such that there is a strong likelihood that they might die, there is a presumption that the constable in charge will allow entry to the crime scene to a minister of religion in order to perform religious rituals or prayer associated with dying.”Member’s explanatory statement
This amendment is intended to probe expectations of police procedure.
Baroness Stowell of Beeston (Con)
My Lords, before I get to the amendment, I think I can speak for all of us in saying that our thoughts are with the Amess family this evening.
Noble Lords who were in the Chamber for the tributes to Sir David Amess after the horrific crime that led to his shocking death will recall that at the end of her contribution the noble Baroness, Lady Masham, asked a question. I will quote her directly:
“Could priests be allowed to attend a crime scene so that they can give the victim their last rites, especially when they are dying?”—[Official Report, 18/10/21; col. 26.]
She posed this question, because it was reported that Sir David’s local priest had been denied access by the police to attend him in person to administer the last rites. It should be stressed that the priest accepted the instructions of the police and said prayers beyond the perimeter of the crime scene. I am not going to rehearse the events of that tragic day. None of us were there. It is not for me or any of us to second-guess the police officers on duty. I believe that the police should have the discretion to make whatever operational decisions they judge to be right, depending on the situation they are dealing with at any given time.
However, like the noble Baroness, Lady Masham, and many others, I found the news that a local priest was not able to attend to a dying man surprising and, to my surprise, somewhat upsetting, especially because he was the victim of such an horrific crime. I do not believe that this is a matter for legislation. Others who participate in this debate might think differently, including those who have put their name to this amendment. But after the noble Baroness, Lady Masham, and I talked, we decided to table this probing amendment to explore whether the presumption could be that at a crime scene the police constable in charge would allow entry to a minister of religion to give the last rites or other prayers associated with dying.
Perhaps now is the moment to declare that I am not a Catholic, or, I have to say, particularly religious, but like most of us who are perhaps hatch, match and despatch types, agnostics or atheists, I respect and understand how important faith is to people who practise their religion and recognise that it can become important at times of grief and loss, irrespective of the extent of our convictions. Like most other people, I think it is right that the police and all public authorities respect all religious faith, but I do think it is reasonable to expect the main elements of the Christian faith to be understood or more familiar to the police than most religions, because while religious affiliation is in decline among today’s Britons, it is still safe to say that Christianity is the main religion in the UK. That complex picture of increasing diversity and a declining majority does not mean that we should not give the importance of Christianity a plug from time to time and should not take for granted that something such as a priest being given access to a dying man at the scene of a crime will happen just because we assume that the reason why it is important is widely known and understood.
Even though there is no evidence that this was anything other than an isolated incident, having learned that something so innocent yet important was prohibited, those of us who are public figures have a responsibility to say loud and clear that we would expect it to be possible unless there are good reasons otherwise, and that we do not want the myriad sensibilities which these days the police are required to take account of to be at the expense of timeless expectations, such as access of a religious minister to someone at their most desperate hour of need.
I am grateful to the Catholic Union, which has been in contact with me since I tabled this amendment. It has been at pains to emphasise that the Catholic Church is not looking for special treatment for priests; it believes it is important for all people of faith to have access to ministers of religion when they are sick or dying. I know that the Catholic Union and the Catholic Bishops’ Conference have requested a meeting with the Minister. Notwithstanding what my noble friend has already said at Oral Questions today—I was not in the Chamber for that, but I caught up with it and know that a working group has been set up off the back of a discussion between Cardinal Nichols and the Met Police Commissioner—I reinforce that request for a meeting, so that we can discuss the appropriate steps for the Government to communicate to the police the level of importance that Parliament has afforded this matter and to receive assurance from the police that they have understood our concerns.
If it is doable, my noble friend the Minister might also like to invite a ministerial colleague from the Department of Health and Social Care, as I understand that there is growing evidence of a lack of access for priests and ministers of all faiths to care homes, hospices and some hospitals. This too was raised during Oral Questions earlier today. I realise that this would have been difficult during Covid because of lockdown restrictions, but the fear is that social norms may have been permanently uprooted and replaced by new customs and practices which, while necessary during a pandemic, are here to stay because they are more convenient for the institutions concerned.
I know from my private conversations with her that my noble friend the Minister cares deeply about this topic. In her response, I hope she is able to tell the Committee what action the Government have taken to assure themselves that, in all possible circumstances, the police will give access to a local priest or religious minister. I very much look forward to hearing what she has to say. Meanwhile, I am grateful to the noble Baroness, Lady Masham, for allowing me to work with her on this, and to all noble Lords who have put their name to this amendment. I beg to move.
Baroness Masham of Ilton (CB)
My Lords, I thank the noble Baroness, Lady Stowell of Beeston, for introducing this amendment. When I read about the terrible murder of Sir David Amess while he was attending his parliamentary surgery, I was very shocked and saddened. Later, I learned that his parish priest was denied entry by the police to the crime scene to administer the last rites. I was also shocked and surprised then. After the disgusting and tragic murder of Sarah Everard by a member of the police force, I hope they will show some contrition by understanding this sensitive amendment. We need kind, honest, well-trained police to undertake their vital work to keep everyone safe.
David Amess was an honourable, brave man. He will be remembered as an exemplary Member of Parliament. If someone else had been murdered instead of David, I feel that David would be bringing an amendment similar to this to Parliament.
The sacrament of the last rites, which is also known as extreme unction or anointing the sick, is for people who are gravely ill or close to death. It is the sacrament for the remission of sins, to strengthen and comfort the soul, and food for the journey. While not every Catholic will request the last rites to be administered by a priest, many do. It can be of utmost importance to some.
I would like to thank Alasdair Love from the Public Bills Office, who helped to put together this amendment. I am pleased that Cardinal Vincent Nichols and the Commissioner of the Metropolitan Police, Dame Cressida Dick, have agreed to establish a joint group to study these issues. I hope that training for police officers on this matter will be included. This gives some hope. I add that the coronavirus has made this sensitive and important matter even more complicated, but problems are for solving. I hope that providing the sacrament of healing to the dying who desire it will become more available. I look forward to the Minister’s reply and thank all who support this amendment.
The Lord Bishop of Leeds
My Lords, this is very sensitive territory. Dying is sacred and is part of our living. I think I am the only minister of religion here, and I have accompanied many people, including my own father, to and through their death. If you have been party to that, you will know that it is holy territory.
One could say that violent death is even more holy because of how that dying has been brought about. It seems that there needs to be religious literacy on the part of the emergency services and the police, and that the religious bodies need also to improve their literacy in relation to the nature of these events and how they are dealt with.
The noble Baroness the Minister mentioned at Oral Questions the complicating factor that this is a crime scene. The body becomes significant—I do not know what the correct terminology is, but you cannot muck about. Adding oils to the body or whatever becomes significant. But it should not be beyond the wit of man and woman to come to a reasonable accommodation.
Some 20 years ago, I came down to London to become the Archdeacon of Lambeth. I was surprised at how organised the Church of England was in south London, though not because it was south London—I had come from Leicester. There was a very well worked out arrangement with what are called ecumenical borough deans, so that each borough had a way of bringing the different faith communities together—not just Christians —working with the Met and other emergency services to ensure that, when there was a disaster, violence or violent death, there was a way of ensuring that ministers could have access to provide the ministry that the victim or their family requires.
I know that this is a probing amendment. I praise the emergency services and the police for their sensitivity in the way they have addressed this, but they are doing so within a culture that often treats religion as a private matter. I get told sometimes that Christians, Muslims, Jews and Hindus are all the same but just wear different clothes and have a different diet. It is not like that. Culturally, we need a deeper religious literacy—in the media, in our public institutions and public life, and in the nature of our discourse, where the language is often a giveaway.
I am glad that the Catholic Bishops’ Conference and Cardinal Nichols are having these conversations. I ask the Minister to urge that those conversations perhaps go wider and deeper, as we take our time to work out a more effective way of handling what is very sacred territory.
Lord Moylan (Con)
My Lords, I have two points to raise. Following the right reverend Prelate the Bishop of Leeds, I start by saying that this is a sensitive subject. I agree with him that, even though this is the day of burial of Sir David Amess, and he is in our thoughts, I do not wish to criticise the police and their conduct on that day or talk about that incident. I want to talk at a slightly more abstract level. I appreciate that anyone in charge of the crime scene on that day faced a difficult decision and it is not for me to criticise what they did at that time; that is not my point.
My first point is to stand back and ask a more abstract question: who owns a death? The assumption, especially when a death is violent or in emergency circumstances, is that the death is owned by the state—by the police and the ambulance service primarily. They are in charge, it belongs to them and everybody else must have permission to be admitted. Even the right reverend Prelate the Bishop of Leeds sort of admitted that and gave that point away by saying that police needed better training to understand why and when they should admit people to the scene.
I would go a little further and say that the claims of the police and ambulance service have to be understood and considered in the light of other claims. Those other claims include the claims of the family and the dying person themselves as to who owns what is going on and who has a say. If we simply collapse into thinking that it is just a matter of getting better police procedure, we are conceding the major point. Of course it is in the public interest that a criminal who has killed people should be brought to justice, that their trial should be fair and the evidence preserved. But that is not the only interest in a death. It is not the only subject and there are other claims we should consider.
This afternoon, as some noble Lords know, there was an Oral Question on this topic in my name on the Order Paper. One noble Lord genuinely asked: has this subject ever come up before? I think he meant: has it ever come to a ministerial desk before? The answer of my noble friend was that she thought not—that the Amess case had brought it to public attention, but it had not really come up before. However, the real answer to that question is, “Yes, yes, yes”. It has come up before, for example at the Manchester Arena, and countless times in care homes over the last year throughout this country; it just does not rise to the level of Ministers’ desks.
Here, I have to admit that I have taken some advice from a distinguished academic specialising in emergency response, and I am told by her that this is partly because there is indeed police training on this subject, but it is primarily focused on how to explain to the families afterwards why the priest was not allowed in. That is the main focus of police training, rather than training them to think of the circumstances in which they might relinquish their claim—valid though it is—in order to respect the claims of others. That is my first point, and I think we should reflect on that.
My second point is a little more practical: we can do this better if we want to. We have done it better in the past. I was told today, again by the same distinguished academic, that there are lovely pictures from the Second World War of ARP wardens going into bomb sites—arduous and horrible work—immediately after a bombing to try to rescue the dying and recover the dead. They were accompanied by clergy with “ARP clergy” written on their tin hats, because it was assumed that these people were correctly and properly embedded in any team that was going to identify, and to find and rescue, people who were dying in the wake of a bomb. Of course, in those circumstances, there was no question of identifying the perpetrator. The perpetrator was well known and was not going to be brought to criminal trial on that basis.
I am treading on slightly uncertain ground for me here, but if you go to other countries—to Israel, for example—I am told that where there are bombs and emergency responses, there are people who are again embedded with the police. They would not be clergy because Judaism operates in a different way; there is no function, as I understand it, reserved to a clergyman in Judaism that cannot be carried out by a lay person. Although the approach to death is slightly different—it is not a question of last rites for the dying, but more a case of the proper treatment of the dead—these people are embedded with the police and it is all well understood. My noble friend Lord Moynihan, asking a supplementary question earlier today, drew attention to practice in certain US states. Again, there is much better relationship, a working relationship, between the police and what are called faith groups, in exactly these circumstances.
That illustrates the two points. First, we need to ask ourselves some radical questions about who is charge in these circumstances, and who has a claim—not just as a petitioner, merely standing at the door asking—to be there at the death. Secondly, if we want to, we can do better. That is why, today, I asked my noble friend if she would at least undertake a study that looked at practice in other countries and jurisdictions to see how they do it and what we can learn from that. I think we would benefit greatly from that. I do not ask any more.
Baroness O’Loan (CB)
I thank the noble Baronesses, Lady Stowell and Lady Masham, for tabling this probing amendment, prompted by the tragic and terrible murder of Sir David Amess and the inability of the attending priest to gain access to Sir David in what may have been his final moments. I am not sure if it is a declarable interest but, like Sir David, I am a Catholic. My support for this amendment is a product of my faith.
In almost any situation in which someone has suffered a terrible injury, there is the possibility that a crime has been committed and therefore, of course, the location of that injury will become a crime scene. Current police procedures are very specific about the management of such scenes and actions taken in those first minutes may be critical to resolve any crime that has been committed. The responsibility lies with the first officers to attend. Access to such a scene is necessarily limited. A scene log will be created to manage and record all the activities within the crime scene. However, a variety of people do gain access. They include ambulance and medical personnel, undertakers, photographers and scene of crime officers. They all have a legitimate purpose in being at the scene, but not all these purposes relate to the maintenance of the integrity and provenance of any material that may be recovered from the scene. Crime scene officers are required to ensure that persons entering the scene are wearing suitable protective clothing to prevent contamination of the scene, and to ensure that they are protected from any hazards present. So, it is possible to provide safe access for clergy that will not in any way contaminate or inhibit an investigation. The question then must be: is it desirable to do so?
Northern Ireland has seen the cost and the benefit of the presence of a priest on many occasions. The PSNI has worked with very well with clergy of all denominations. Perhaps I could remind your Lordships of the terrible murder of the two corporals, Derek Wood and David Howes, by the Provisional IRA on 19 March 1988 in west Belfast. Father Alec Reid of nearby Clonard Monastery attended them as they lay dying. His prayers—his intervention at that most savage moment—were enormously important to so many.
Two Belfast priests died during the Troubles attending their parishioners who had been shot. Father Hugh Mullan died in 1971, going out into gunfire knowing that he could be shot. Another, Father Noel Fitzpatrick, died in 1972 when accompanied by a parishioner, Paddy Butler. Waving a white handkerchief, he attempted to reach wounded men during sustained and heavy gunfire. These were brave men living their call to minister. It has long been a tradition in this country and many others that there is recognition of the value of spiritual and pastoral support. For this reason, chaplaincy services are publicly funded in many situations. However, at the present moment, attending an emergency scene as a priest can be a daunting experience, as the response of police and ambulance personnel is not certain. It depends on a decision made by someone who may have no religious faith and who may see absolutely no justification for permitting access by a priest.
To be able to receive sacramental spiritual support in the event of a death, or possible imminent death, is of profound meaning and importance to Catholics. Indeed, the support of a priest or other minister of religion is of great importance to those of other denominations and faiths. As your Lordships have heard, Cardinal Nichols and the Commissioner of the Met have agreed to establish a joint group to study the access given or refused to Catholic priests at scenes of traumatic violence and to consider whether any changes are required to the guidance issued to officers facing such a situation. This is a very positive initiative that will inform the national debate. There can be no doubt that many factors will be considered but, given that safe access, with protection against any crime scene contamination, can be secured, the primary question must be whether such access should and can be managed in a way that will enable the celebration of the sacraments at this most sacred moment, the moment when we believe a soul is passing.
Undoubtedly, any future guidance will require processes for the identification, training, et cetera, of clergy who might be granted access in such situations, but these are practical issues which can be resolved. I put my name to this amendment because I believe it can be done, and it should be done, for the support of the dying person and for their family and friends, who may be enormously comforted by the fact that a priest was allowed to attend someone at this most sacred moment.
Baroness Newlove (Con)
My Lords, I support this amendment. I appreciate the time, but as somebody who has lost somebody to a violent act and has been in a crime scene, I reiterate the words of my friend, the noble Baroness, Lady O’Loan. I am a Roman Catholic, but actually I am speaking about the procedures that the police had in place on that night. I was in a crime scene and I had to wait for permission to leave that crime scene and to be able to go and see Garry, who was dying. He died on the ground—he came around and then they rushed him. It may have been only minutes but it was hours in my mind. You have to wait for police procedures. I fully respect that the police are doing what they are doing, but it did feel at times that it was about the process and not about the dying man on the ground and my three daughters, who were covered in blood, being whisked away as victims of a horrendous, horrific crime. Even the priest in the hospital had to step away with anger at seeing how vicious a scene it was.
I support this probing amendment, not out of disrespect for the police officers, but I do believe that there are a lot of processes that go on. Even the Home Office is on the phone to see if things are flagging up. So, with respect, to make this procedure a lot better, we have to look at how we help victims and their families. My heart has gone out to Sir David’s family, because the shock of those seconds of losing somebody is something you will never, ever get over.
Lord Touhig (Lab)
My Lords, that was one of the most powerful statements I have heard in this House, coming from someone who knows what it is like to suffer. It is a horrible tragedy that the Amess family have suffered. I echo the noble Baroness who introduced the amendment in saying that our thoughts and prayers are with them tonight, and for the repose of Sir David’s soul.
I was not sure that I could add much to this debate, but I gave it some thought and would like to share some personal observations. Thinking about the amendment, I recalled the singing of the hymn, “Abide With Me”. I have heard it sung twice recently: first, when I tuned into a vigil mass celebrated by Canon Pat Browne, the Roman Catholic priest in Parliament, on the eve of Armistice Day, and, again, when I watched the Festival of Remembrance at the Albert Hall on television. What kept coming into my mind was a line in that hymn:
“Hold Thou Thy cross before my closing eyes.”
Those words express what I believe many people of the Christian faith hope for at the end of life. They emphasise how important it is to receive spiritual comfort.
For Catholics like me, the last rites are an important and spiritual passage, a sacrament, an opportunity for reflection on past failings and for seeking forgiveness and reconciliation. I bear witness from within my own family of the peace experienced by loved ones when they were supported in their faith by a priest administering the last rites.
People of faith, whether Jews, Muslims, Christians or indeed of any other faith belief, desire the spiritual support that their faith can give them at the end of life. More widely, I think that many of my friends who have no faith would always wish to be surrounded by family and friends at the end of that life. Let us ask ourselves: who among us would not hope to leave this life comforted by family and friends or, as in the case promoted in this amendment, by a priest?
I strongly agree with the noble Baroness, Lady Stowell, who made it clear that this is a probing amendment and the matter does not require legislation. Rather, it requires a little bit of common sense, perhaps education, training and research, so that the blue-light services, especially the police, recognise this matter and treat a request such as the one that has prompted the tabling of this amendment in a way that will allow a minister of religion to be with a dying person at the end.
Lord Paddick (LD)
My Lords, I thank the noble Baroness, Lady Stowell of Beeston, for bringing this amendment to the Committee, particularly in such a selfless way in that she said that she was neither a Catholic nor particularly religious. Seeing the arrival of Sir David Amess’s body at the House this evening was very moving, and our thoughts are with his family. I thank the noble Baroness for saying that she was not second-guessing the police officers at the scene of that terrible tragedy, but, as she said, there was a local priest who was not allowed to give the last rites.
The right reverend Prelate the Bishop of Leeds gave a very moving and sensitive speech, and I agree with much of what he said. I should declare an interest both as a Christian but not a Roman Catholic and as a police officer who served for more than 30 years. Religious faith is important to people, but so is bringing offenders to justice, particularly those responsible for offences where fatal injuries or injuries expected to be fatal are inflicted. The contribution of the noble Baroness, Lady Newlove, was extremely powerful in giving first-hand experience of that tension between the need to preserve evidence in order to convict those responsible and wanting to address the needs of the dying person and their family.
Securing forensic evidence is often vital to the identification and prosecution of offenders, as in the case of Sir David Amess. I agree that there needs to be a meeting of police and religious leaders—not just Roman Catholics—to ensure that both sides understand the needs of the other. Police officers should have a real understanding of the religious needs of people and the religious leaders should understand the needs of the police in these circumstances. As I said this afternoon in Oral Questions, surely there must be a role for government in bringing these two sides together, in facilitating this understanding and in ensuring that, after this understanding has been reached, operational police officers share it and know how to respond in these very difficult situations.
Interestingly, in groups of amendments that are to come, I refer to the valuable lessons from Northern Ireland to which I do not think we are paying enough attention. I am grateful to the noble Baroness, Lady O’Loan, for her remarks.
Lord Coaker (Lab)
My Lords, what a moving and powerful debate we have had this evening. I know that the noble Baroness, Lady Williams, and her noble friend will have been moved by it as well. The real challenge that has been presented to the Minister and the Government is how to capture what has been said in this Chamber tonight in relation to the practice that takes place in very difficult and challenging circumstances.
I am not going to rush this, and I am pleased that noble Lords have not rushed this either, as this is too important a debate to be rushed. In speaking to their amendment, the noble Baronesses, Lady Stowell and Lady Masham, spoke in such a way that gave respect to the awfulness of what happened with David Amess. I pay tribute to the noble Baronesses. Out of the horror of that situation, they are trying to make something positive happen in future. We have all been moved by that. The challenge for the Government is how to do something about it.
I say gently to the Minister that the system will respond in a bureaucratic, almost insensitive way, by saying, “It’s really difficult, Minister. It’s very tough to do something about this.” This is one of those situations that requires the system to respond. Human needs to speak to system and make it work, and that is not easy—it really is not.
The noble Baroness, Lady O’Loan, brought her perspective from Northern Ireland. She did incredible work there in trying to ensure that, among the terrorist atrocities, somehow or other there was comfort for the dying and bereaved, as well as the pursuit of justice. That was a beacon in that situation, and they made it happen there. The noble Lord, Lord Touhig, talked about the situation in his own family. The noble Baroness, Lady Newlove, made a very moving, personal statement about the horror of what happened to her and the tension between trying to comfort the dying while ensuring that the police were allowed to do their work.
The noble Lord, Lord Moylan, made a brilliant speech. I am not a lawyer so, when I spoke just now, I spoke as a politician who demands that the system works. There are brilliant lawyers on both sides of this Chamber who can dissect the law; that is not me. I say to those with legal expertise, like the noble Lord, Lord Moylan, that I may not have that legal expertise, but I know what the public would expect the system and the law to do. I know how they would expect the legal system, the courts and the police to respond, and how they would expect the system to work.
The phrase that the noble Lord, Lord Moylan, used was, “Who owns the death?” Who owns it? I will talk about myself because that is easier to do. Maybe I have got this wrong, but my sense is that, if I were attacked in the street and stabbed—God forbid that this happens to any of us, but if it happened to me and I was dying—I would not want a police officer ensuring that the crime scene was not compromised. If my wife, or my children, or my grandparents were nearby, that is who I would want to come. I would not care if the crime scene was compromised; I would not.
I know that that is difficult for the police because the police will want—as, of course, in generality, we would all want—the perpetrator to be caught, put before the courts and dealt with. I am just saying what Vernon Coaker, a human being, would want: I would want my family or my friend, if they were nearby, to be allowed to come and see me and talk to me, in the way that no doubt the right reverend Prelate the Bishop of Leeds has had to do on many occasions. I would want them to give me comfort, and to give me a sense that I could say goodbye properly to my loved ones.
I do not know what that means for the law, to be honest, or what it means for the guidance, but I do not believe that it is impossible to learn, as the noble Lord, Lord Moylan, laid out, from other countries or jurisdictions, or from what is done elsewhere, to find a means of balancing those two priorities in a more sensitive way than perhaps we see at the moment. That is all that this Chamber is asking for—and that is what the Minister needs to demand from the system. The system will say, “It’s tough, it’s difficult. We need to do that, but we have also got to preserve the crime scene.” The Chamber is saying, “Yes, preserve the crime scene; yes, let’s catch the perpetrators, but not at the expense of everything else.” Let it not be at the expense of human beings knowing what is best for themselves—of individuals at the point of death being able to choose who they want to see.
I suggest that the majority of us would want our family with us, even if it meant some compromise to the crime scene. That is what I think and what I believe this Chamber is saying and demanding. The debate has been incredibly moving; people have laid out their souls. They have done it with a sense of purpose, to say to the law and the system: it needs to change; this cannot happen again. If this had happened to somebody else, I believe, as somebody else said, that David Amess would be saying the same as the rest of us. Maybe that is a fitting tribute to him as well.
Baroness Williams of Trafford (Con)
My Lords, I echo the words of the noble Lord, Lord Coaker; this has been one of the loveliest debates that I have ever been privy to in this Chamber. As his family prepares to say goodbye and his body lies in the Crypt just yards away, may we all spare a moment to think about David Amess, and the tragic way in which he died. It was absolutely senseless; it has shocked us all.
As noble Lords have said, we must extend our thanks to Essex Police and the Metropolitan Police for their quick and comprehensive response, and apprehending and charging the alleged culprit. I also bring out for special mention my thanks to my noble friend Lady Stowell of Beeston for moving this amendment, to my noble friend Lady Newlove, whose testimony with her first-hand experience was deeply moving, and to the noble Baroness, Lady O’Loan, who has shared such experience in this area, particularly in Northern Ireland, and how it has been dealt with day in and day out for decades.
As a Catholic, I understand the importance of extreme unction, absolution and viaticum for those close to death. However, this is not just about Catholics, of course, as the right reverend Prelate the Bishop of Leeds said. To answer my noble friend Lord Moylan’s point about who owns a death, we have to strike a sensitive balance. Humanity and sensitivity need to be shown to families and the person who is dying. That is the balance that we need to strike here.
Baroness Stowell of Beeston (Con)
My Lords, I am very grateful to my noble friend the Minister and to all noble Lords who have spoken today. First, in response to my noble friend’s last couple of points, of course I will withdraw this amendment, and I am grateful to her for agreeing to the meeting requested by the Catholic Union and for including in that meeting a Minister from the Department of Health and Social Care. Having been requested, it is important that that meeting goes ahead and provides an opportunity for a discussion on these issues from that single perspective. As she has already said, it is very encouraging that Cardinal Vincent Nichols and Dame Cressida Dick have initiated this working group to look at the issues arising from the events of that tragic day.
The debate this evening has been remarkable. I have found it quite moving. I was very unsure about tabling this amendment, if I am honest. I hesitated quite a bit about it, and then after I had tabled it, even with the support of the noble Baroness, Lady Masham, I kept thinking, “Oh God, is this the right thing to do?”, but I thought it was important that we had an opportunity to debate these matters. As I said earlier in my opening remarks, I genuinely felt that it was important for us to stand up and say, “This is important”, rather than just accept it as something that happened and move on.
The result of that seems to have been noble Lords expressing views and raising points that I had not even thought about and elevating the importance of this issue. In addition to what the Minister has already agreed to, it would be proper for her to give further thought to how we can explore its importance even more. I think it was the noble Lord, Lord Coaker, who suggested that the Government facilitate the dialogue between the various different religious faiths. As the right reverend Prelate, to whom I hope I did justice to at the beginning, said, this is not just about the Catholic faith but about how we address some of these bigger issues, which really do need to be considered. As a society, we have to make sure that the things that are really important to us as human beings and to our cohesiveness as communities are recognised and given the attention and weight that they deserve by those of us in positions of power to make these things happen.
Again, I am grateful to all noble Lords and I look forward to sitting down with the Minister and the representatives of the Catholic Union. Until then, I beg leave to withdraw the amendment.
Lord McColl of Dulwich
“Modern slavery through control of another's property
In Section 1 of the Modern Slavery Act 2015 (Slavery, servitude and forced or compulsory labour) after subsection (1)(b) insert—“or(c) the person occupies or exercises some substantial control over another’s home in connection with the commission of another criminal offence and the person knows or ought to know that the other person—(i) has not given consent,(ii) is unable to give free and informed consent, or(iii) has withdrawn consent.””Member’s explanatory statement
This new Clause would make exploitation through exercise of control over another person’s property without their consent an offence under Section 1 of the Modern Slavery Act.
Lord McColl of Dulwich (Con)
My Lords, over the six years since the Modern Slavery Act was passed, we have seen the criminals involved in modern slavery continuing to find new ways to exploit others for their own advantage. In particular, we have seen the rise in criminal exploitation of children and vulnerable adults in county lines drug dealing. Amendment 292F seeks to address the phenomenon of cuckooing, which is an example of criminal exploitation that has recently grown in prominence.
Cuckooing is the evocative name given to a situation whereby criminals take over a person’s home against their wishes and use the property to facilitate criminal activity. Most commonly, this occurs where drug dealers take over the victim’s home and use the premises to store, prepare and distribute drugs. Your Lordships may be unfamiliar with this issue, but just last month there was a national police week of action on county lines drug dealing during which the National Police Chiefs’ Council reported that 894 cuckooed properties were visited in just one week.
This is a crime affecting hundreds if not thousands of people. Victims of cuckooing are often quite vulnerable people, perhaps people with learning disabilities or mental or physical health challenges, survivors of abuse or people living with addiction. Their vulnerability is exploited by the criminals, who take advantage of them to control their home. None of us could accept that indignity, insecurity and wrongful intrusion into that most precious space, one’s home. That is what the victims endure.
It is important that the Government are tough on this area of crime. As David Cameron said in 2010, burglars
“leave their human rights at the door.”
An Englishman’s home is his castle, and if the law cannot protect him there, then who can?
Victims are targeted by criminal gangs and have their homes taken over for prolonged periods by sometimes dangerous people, putting them at significant risk of harm. One such victim was Anne. Anne had had a difficult upbringing and suffered many abusive relationships. After leaving an abusive marriage, she became a victim of cuckooing when she was given local authority housing in an area where there were many drug dealers. Due to alcohol and drugs, Anne’s physical and mental health deteriorated quickly. When the police entered her home they found a perpetrator, who was just 21 years old, lying on a sofa. He was in possession of drugs, weapons and some cash that the police found in the flat. Anne was in a very bad state but she saw the perpetrator as her protector who was keeping trouble out of the door, yet he himself punched and assaulted Anne, threatening her on multiple occasions. He told her to go to the streets to supply other dealers but she was not getting any money, just some drugs.
This is clearly a form of modern slavery. The victim’s home is taken over without their consent, and they are vulnerable and powerless to prevent it in the face of dangerous criminal gangs. Like Anne, victims are often physically and emotionally abused. Although police and prosecutors are aware of this phenomenon and determined to target the criminals, it seems that the law may not offer them adequate tools for the job. Cuckooing does not meet the definition of the human trafficking offence in Section 2 of the Modern Slavery Act because there is no travel involved. According to the CPS, however, neither does it fall within the definition of slavery, servitude or forced or compulsory labour under Section 1 of that Act unless the criminals demand labour or service from the victims in addition to occupying their home.
While it may be possible to prosecute these criminals for other offences, such as drug crimes, we cannot be satisfied with a situation that does not reflect the exploitation of a person at the heart of the offence. We must hold criminals to account for the harm done to victims of this exploitation and offer victims hope for a future free from this kind of control. There is a clear public interest in protecting the right of every person to their private and family life without having their home taken over against their will.
Lord Paddick (LD)
My Lords, I am grateful to the noble Lord, Lord McColl of Dulwich, for raising the important issue of cuckooing. This is when criminals, mainly drug dealers, take over the homes of vulnerable people. It is a very serious and not uncommon problem, as the figures cited by the noble Lord gave witness to. I look forward to the Minister explaining why this amendment is not necessary or what alternative the Government propose.
Lord Coaker (Lab)
I note the work that the noble Lord, Lord McColl, has done on modern slavery over many years, and thank him for it. It is right for us to acknowledge that in speaking to this amendment.
I want to draw particular attention to the section of the noble Lord’s amendment that covers something that is often not recognised to the degree it should be when it comes to county lines gangs’ operations and the way cuckooing works. Proposed new sub-paragraph (ii) talks about when a person
“is unable to give free and informed consent”.
That is the crucial bit. Too often, people are asked, “Why have you allowed this to happen? Why have you let them take over your property?” It is almost as though they have given their consent. But they are sometimes so frightened that they give their consent because, if they do not, the consequences will be such that they live in fear. Somehow, the law does not seem to recognise that.
Proposed new paragraph (c)(ii) refers to someone being unable to give “free and informed consent”. This is absolutely crucial to stopping the offence of cuckooing. People sometimes appear almost as though they have left a property of their own free will, saying, “Here you are. Come into my property. Use it for drugs and county lines operations.” Then, sometimes—not always, but sometimes—the police say, “Well, what did you do about it? Why didn’t you stop it?” That does not reflect the real world. People are terrified; they are frightened. They are told, “If you don’t let us use your property and get out of it, or if you tell anyone about it, we are going to do X, Y or Z to you or to your family.” That is sometimes not recognised, but it is the crucial part of what the noble Lord’s amendment gets at. If we want to stop cuckooing, we must understand that people are coerced into giving their consent; often, the law seems to treat them as though they have given their consent willingly. If we are to stop cuckooing, we must understand the context in which it occurs. I hope that the noble Baroness will be able to reflect on that.
Lord Sharpe of Epsom (Con)
I am sorry to disappoint the noble Lord.
I am grateful to my noble friend Lord McColl for introducing this amendment which seeks to provide for a bespoke criminal offence to tackle what is known, as he pointed out, by the evocative name of “cuckooing”. I assure noble Lords that this Government take all forms of exploitation seriously and we are determined to tackle it. I fully sympathise with the intentions behind this amendment, as we recognise that these unscrupulous exploiters often target the most vulnerable in our society to control their homes and, as my noble friend argued most powerfully, against their will to perpetrate a range of crime types. This practice is often associated with drug dealing, which is a feature of county lines offending, but also encompasses other forms of exploitation types such as sex work, which not only devastates the lives of the victim but impacts the local community in which they live.
While I support the sentiments behind this amendment, we remain to be persuaded that a new offence is needed. There are existing powers that can be and are being used to disrupt cuckooing, including the use of civil preventive orders, such as closure orders and criminal behaviour orders, breach of which is a criminal offence. As to the criminal law, there are offences under the Misuse of Drugs Act 1971 which may be charged, specifically those under Section 4 relating to the supply of controlled drugs and under Section 8 relating to the occupier of premises knowingly permitting the production or supply of drugs from their property. The offence of participating in the activities of an organised crime group in Section 45 of the Serious Crime Act 2015 may also be relevant. That said, this is an area of the criminal law which we continue to examine.
Moreover, I am sure my noble friend would agree that were there to be a new offence, Section 1 of the Modern Slavery Act is not the proper place for it. That section deals with offences where a person exercises control over another person to hold them in slavery or servitude, or requires them to perform forced or compulsory labour. The focus is on controlling another person and not their property or belongings. Having said all that, we recognise the seriousness of this phenomenon, and we will continue to look into it and support law enforcement partners in their efforts to tackle this malicious crime. In the light of this assurance, I hope my noble friend will be content to withdraw his amendment.
Lord McColl of Dulwich (Con)
I thank the Minister for his reply and the noble Lord, Lord Coaker, for being so supportive. The problem is that this is falling between two stools, and I do not quite understand how the present law is going to be used to deal with this problem. I would like some explanation; perhaps the Minister could write to me explaining exactly how the present law can and should be used. Meanwhile, I beg leave to withdraw my amendment.
Lord Wasserman
“Recording the sex and acquired gender of alleged victims and perpetrators of crime
After section 44 of the Police Act 1996 insert—“44A Recording sex registered at birth and acquired gender (1) Police forces in England and Wales must keep a record of the sex registered at birth of each person who is—(a) the alleged victim of a crime reported to that police force, or(b) arrested for a crime by a member of that police force.(2) Police forces in England and Wales must keep a record of the acquired gender of each person with a gender recognition certificate who is—(a) the alleged victim of a crime reported to a member of that police force, or(b) arrested for a crime by a member of that police force.(3) Provision by a police force to the Secretary of State of any protected information recorded under subsection (2) above does not constitute an offence under section 22 of the Gender Recognition Act 2004.””Member’s explanatory statement
This amends the Police Act 1996 to ensure that the sex registered at birth and acquired gender, if appropriate, of anyone who is the alleged victim of a crime or who is arrested for a crime will be recorded by police.
Lord Wasserman (Con)
My Lords, before I say anything substantive about this amendment standing in my name and the names of the noble Baronesses, Lady Morris of Yardley, Lady Grey-Thompson and Lady Ludford—who apologises for not being in her place this evening—I apologise to the House myself for having been unable for medical reasons to attend the Second Reading of this important Bill. However, I watched the debate with much interest, and was impressed by the wide range of issues raised and the very strong feelings with which many of those issues were discussed.
For me, the key point at Second Reading was made by the Minister, my noble friend Lady Williams of Trafford, who, when introducing the debate, described the Bill as having one overarching objective; namely, to keep the public safe. I have devoted almost the whole of my professional life to advancing this objective, both in this country and abroad, and it is for this reason that I enthusiastically welcome the Bill and welcome the opportunity to speak to this amendment.
If I were asked to name the most important lesson I learned from my long experience of policing, on both sides of the Atlantic, I would say that it is the importance of accurate, timely and comprehensive information in reducing crime and making communities safe. Without such information, policing and crime reduction become simply a matter of guesswork and luck. With such information, however, our police forces and those who advise and assist them can begin to understand why, when and where crimes occur, and to develop effective evidence-based plans, strategies and tactics for tackling them. In a nutshell, the more comprehensive, consistent, timely and accurate the information available to our police forces, the more effective their efforts and the safer our communities will be.
Everyone who cares about policing and public safety recognises this, and it is this concern for consistent, accurate and comprehensive national information which accounts for Section 44 of the Police Act 1996, which gives the Home Secretary the power not only to require all forces in England and Wales to collect, maintain and return information about criminal behaviour and policing but to
“specify the form in which information is to be provided.”
It is this power to specify the form of the information to be provided that makes our national collection of criminal statistics so useful, because it permits the Home Office to issue its so-called counting rules—a set of memoranda that spell out in detail what information is to be collected by individual forces. These rules, which are kept regularly up to date to reflect new crimes and other changes in legislation, ensure that our national collection of criminal information is accurate, comprehensive and timely, rather than a set of random figures that reflect the whims and preferences of individual chief constables or police and crime commissioners.
I am making something of these Home Office counting rules because I want noble Lords to appreciate that there are already in place tried and tested arrangements to collect information from the police and to ensure that these collection arrangements are easily amended in the light of practical experience on the ground. For this reason, I very much hope at this late stage of this evening’s debate to concentrate on the main proposals of the amendment and not get bogged down in discussing the modalities of how this information should be collected. These are matters of detail for practitioners to consider in the light of the general principles that Parliament lays down for them, and not really matters for primary legislation.
Let us turn, therefore, to the heart of the amendment. It aims to fill a serious gap in our national collection of criminal statistics caused by the fact that, at present, police forces are not routinely or consistently required to collect data on the sex of all alleged victims or perpetrators of crimes. As a result, practice on the collection of sex data varies across forces and, in recent years, there has been a confusion with gender and related concepts, such as gender identity, which have been compromising the accuracy of our national data relating to sex. For example, most police forces currently allow biologically male alleged perpetrators to self-identify as women, even when charged with rape, and will then record the crime as carried out by a woman.
As is obvious from this example, our present laissez-faire attitude to how sex is recorded by forces across England and Wales has important practical consequences. It deprives policymakers and police practitioners of accurate and consistent national statistical data about discrimination on the basis of sex. It thus makes it very difficult, if not impossible, to develop effective evidence-based policies for fighting these crimes, especially crimes relating to violence against women and girls—the tackling of which is one of the Government’s principal objectives and one to which they are committed by international agreement.
The amendment aims to fix this problem by amending the Police Act 1996 to require all forces to collect, for
“each person who is … the alleged victim of a crime reported to that police force, or … arrested for a crime by a member of that police force”,
at least one and in some cases two pieces of personal information. The first is the sex registered at birth of the alleged victim or arrestee, and the second is the acquired gender of that person, provided that he or she has a gender recognition certificate—known as a GRC—which legally recognises their acquired gender in the UK. I am sure some noble Lords would wish to argue that neither of these categories is appropriate in the context of the criminal justice system and that forces should collect only information on alleged victims’ or arrestees’ gender identity as he or she declares it to be. Let me deal with this argument in stages.
Baroness Brinton (LD) [V]
My Lords, I wish to speak against this amendment, because on first reading it set off a number of alarm bells. But I say to the noble Lord, Lord Wasserman, that I listened carefully to what he said, to try to understand his arguments. For me, there are consequences for trans people in the amendment that no other group of people with protected characteristics would have to face in our society.
Those who have laid and spoken to amendments to this Bill against transgender people have repeatedly said there is a data collection problem. But I do not understand why the data needs to be collected by the police, given that for most crimes—whether the victim or the person being arrested, as set out in this amendment—being a trans person is just not relevant.
A parallel example would be requiring a disabled person to register with the police. I have chosen this example deliberately because, four years ago, I was physically attacked in my wheelchair at Euston station. For that incident, the wonderful British Transport Police recorded the crime as a disability hate crime—the crime, note, not the victim or the perpetrator. I would be appalled if every time I reported a crime thereafter—online fraud, for example—I had to say, “By the way, I’m disabled and I’m on your disability register.”
Rape offences are probably the only offences where the police need to know the sex of the offender because the legislation is dependent on the person’s genitals. It is otherwise not relevant information because the police do not need to know it. The noble Lord, Lord Wasserman, says that it is easy to add one section to the crime reporting information system—CRIS—but is it so easy? Adding just one extra category will take time and, for an existing reporting system, is usually very much more expensive than expected. Just ask the Government about the costs of adding the booster jab details to the Covid app, when they have thrown millions at IT during the pandemic.
I note that the amendment says that the above
“does not constitute an offence under section 22 of the Gender Recognition Act 2004”,
which prevents the disclosure of this protected information. On what grounds, then, is it acceptable to share people’s protected characteristics when the GRA says that is private information? In the context of personal information, can the noble Lord confirm whether the amendment complies with GDPR? I am not sure that it does, as it is not personal information that is essential to record.
I return to why the amendment was laid. Can the noble Lord, Lord Wasserman, answer some questions to try to explain the aims of his amendment? I will give a hypothetical example: a trans individual is subject to house burglary or to a street mugging unrelated to their gender. This amendment requires them, if they report that crime, to out themselves to the police. Why should they suffer that loss of privacy and human rights, and to what end? Why should trans people face such a disincentive to report crimes perpetrated against them? Why is this the one group of people being singled out as victims?
I have a second example. A trans person is arrested for being drunk and disorderly but they have been assaulted and in fact are suffering from concussion, which can give the same appearance. That would be a defence to any charge but they are required to out themselves upon arrest. Why? A key tenet of our law is that accused persons are presumed innocent and mostly have the same right to privacy and liberty as all citizens. That is different for criminals. The noble Lord, Lord Wasserman, referred two or three times to crimes and criminals but that is not what this amendment says. It concerns anyone who is arrested. What is the position of an accused person who refuses to provide the relevant information? The amendment does not make this clear. Would they be obstructing a police officer in the execution of their duty under Section 89(2) of the Police Act 1996?
A further real concern about this amendment, if enacted, is that it would prevent trans people coming forward to report being victims of crime as they would have to out themselves. Many would not be comfortable with disclosing that sort of information. It also implies that a gender recognition certificate is what defines gender, whereas many trans people do not have or want one of them.
The fundamental problem for me, though, is the labelling and targeting of trans people, either as victims or those arrested by the police, alone of any group in our society. While this amendment may not be being instructing them at this stage to wear a pink triangle on their jackets at all times, there would be a data pink triangle. It would set them apart from every other grouping in society. It sets a dangerous and unacceptable precedent. I hope the noble Lord will withdraw the amendment.
Baroness Morris of Yardley (Lab)
My Lords, I have put my name to this amendment and I shall speak in support of it. I very much welcome the way in which the noble Lord, Lord Wasserman, presented the argument. He gave a lot of detail, and at this time of night I will not go over it again, but I want to emphasise one or two points.
To begin with, I say that I sort of understand the points made by the noble Baroness, Lady Brinton, and I take them seriously, because anybody who thinks that any proposed legislation will discriminate against one group deserves to be heard and to have those questions explored. But at the core of this is the collection of data; we are an immensely data-rich society at the moment. Sitting here, throughout the debates this evening, there have been so many times when the argument that has been put forward has depended on the collection of data. Whichever public service you look at, whether it be education, health, the criminal law or whatever, much of the progress that we have made over previous decades has been because we have had the ability to collect data.
I am a woman, and I think that my sex has made many advances over the past decades because people arguing for legislation that has protected women, men, people with disabilities and people who are transgender have been able to make the case only because they have been able to collect the data. Unless you have the data, you are arguing vaguely about some impression about something that might happen, so I am deeply wedded to the idea of collecting data in the formation of public policy and the advancement of political ideas.
I think that is defensible, but I do not take for granted the fact that we do not give something up in the collection of that data. I will be honest. I am trustee of a number of charities, as I think everybody in this Chamber is. Every year, when I am asked to fill in the data declaration, I see another bit of data there. Sometimes, I think “Why do they want to know that about me?”, and the one I am saying that about at the moment is sexuality. I sit there, I tick the box that says “heterosexual”, and I think “What’s that got to do with me being a trustee of this body?” But I sign it, because I think that, on the whole, that declaration of bits of information about ourselves can be put to the common public good. If we were to look at charities, without declaring that information, how do we ever get to make the argument that women, or people who are black or from ethnic minorities, or from the gay community, are not represented on charities? Whether we like it or not—and I accept that it is difficult to come to terms with it sometimes—it is about the protection, rights and freedoms of individuals. But I would never say that we do not pay a price for the collection of this data, or that we must not continuously and constantly make sure that the data we are asking to be collected is in the public policy interest.
That is why I have come to this amendment and why I very much support the arguments that have been made. What the amendment asks is simply that we collect two bits of data, among others. One is the sex at birth and the other is any gender acquired during the lifetime of the person. Without that, I do not know how we can go on to develop public policy in the pursuit of those who have committed crime and of the public duty to protect those who have been victims of crime. Unless we have the data about how many of which groups there are, they will be ignored.
I have sat through a long and very interesting debate today. My noble friend on the Front Bench said that one of the most important things about the Bill before the Committee is that it is a Bill about protecting women and girls. I do not know how you do that unless you collect the data. We have heard about county lines and knife crime. Unless we collect the data to know that many of the people who are drawn in and persuaded to commit those crimes are young men, we cannot develop a suite of policies that support them. When we collect data about sex, it is entirely proper to ask about acquired gender as well. We must not conflate the two.
The problem at the moment is that different police forces are collecting data about sex at birth and about gender acquired at some other point and then conflating the two. We do not have the sequencing of data and information across police forces in this country that can enable us to make public policy. That is what this amendment is asking. It wants to disaggregate those, as the mover of the amendment has said.
Baroness Grey-Thompson (CB)
My Lords, I thank the noble Lord, Lord Wasserman, for tabling this amendment, to which my name is attached, and for very clearly explaining it. I also thank the noble Baroness, Lady Morris, for talking about public policy interest. That is the reason I have attached my name to this amendment.
I believe that the collection of consistent, routine and accurate data is paramount, not least in order to provide the correct services and support for both alleged victims and perpetrators of crime. But the data has to be consistent in being able to spot trends, allocate resources and make historical comparisons. In the past, the words “sex” and “gender” have been used interchangeably. This is no longer the case. A clear definition and understanding of what information is useful and appropriate to be recorded is important.
I agree with the noble Baroness, Lady Brinton, on her point that people need to feel safe and be encouraged to come forward and report crimes, but I am afraid I do not agree with her when she talks about having a register that adds people. That is not my intention in supporting this amendment. Disclosure can be an issue, and it can trigger strong emotions and fears for some vulnerable individuals. As legislators, we must understand and address such fears, but also recognise that they are not a sufficient reason to compromise accurate data collection for the benefit of everyone in society.
It is really important that data is taken in a careful and sensitive way. By carefully gathering this data, this amendment seeks partly to help policymakers in making decisions on support for alleged victims and treatment for those who commit crimes, but also to provide consistency and, as the noble Baroness, Lady Morris said, the best information that we can get to make good public policy.
Baroness Barker (LD)
My Lords, we clearly have a division in the House about the merits of this amendment. There are those of us who quite clearly understand the way in which the terms “sex” and “gender” are used and have been used, not just in this country—under several bits of legislation, most importantly the Gender Recognition Act—but also in international law. There is a growing body of international law in which “gender” and “sex” are well understood.
I simply want to ask the noble Lord, Lord Wasserman, to explain three points that he made in his speech. First, he said that the intention of this amendment was to keep the public safe by the accumulation of accurate, appropriate, timely and consistent data. If that data is not aligned with a person’s gender identity, then it will not be accurate, so how can he ask us to accept it? Secondly, he told us that we should not get bogged down in modalities, but this is about a very practical exercise of gathering data, not in a theoretical way and not on the basis of gender-critical beliefs but actually on the basis of people’s lives. Does he not think that this is important enough detail to put into primary legislation? Finally, he said that experience has shown that it was very useful to gather information about sex and gender. Whose experience? Can he give us more information about that?
Baroness Chakrabarti (Lab)
My Lords, I will speak briefly. I thank all noble Lords who spoke to this. It is a controversial amendment, but I think it has been spoken to quite sensitively, all things considered; maybe it is the lateness of the hour—maybe that was a good move.
I agree with the previous speaker that difficulties in the drafting of an amendment cannot just be dismissed as modalities because when we put forward draft amendments to legislation and say “must” we need to examine what that means. If, as the amendment suggests:
“Police forces in England and Wales must keep a record of the sex registered at birth of each person”,
how is that going to be executed and what will the consequences be? One has to imagine that one is a younger version of the noble Lord, Lord Paddick, in the police station back in the day. People turn up to record whatever it is—a theft, shoplifting, burglary, or a violent offence. How is this recording of the birth sex as well as the subsequently declared gender going to happen and what is the sanction for the “must”? That is not a modality, it is what law requires; there have to be consequences to a “must” being breached. Whatever is really going on, I know there are really sensitive issues in our society at the moment of sex and gender which we will not, I suspect, resolve tonight—we might, but maybe not.
I agreed with my noble friend about the value of data. Whether in the health service or criminal justice system, data is great, but there is another side too, which I think my noble friend acknowledged: that data will put some people off. There are other jurisdictions not far from here where people are really nervous even about declaring their race because of obvious historic reasons for being sensitive about declaring your race at the police station—let alone declaring your birth sex.
We need to see the yin and yang of this particular debate. On the one hand is the brilliant research and analysis of crime we could do if we had more and more data. But on the other hand—and this is not completely different from the previous debate—what we want is victims to come forward and criminal justice to be done. We do not want to do anything that discourages victims from coming forward and reporting crime. That includes people who feel anxious about certain sensitive pieces of information about themselves. We would never want them to put off going to the police station for fear that they say too much. For instance, a person who has been burgled thinking “Was I burgled just because I was burgled, or because I am a trans person? Do I really want to draw more attention to myself because I am an anxious victim of crime?” We need to think about that, let alone the poor old practicalities for a younger version of the very youthful-looking noble Lord, Lord Paddick.
Lord Paddick (LD)
My Lords, I thank the noble Baroness, Lady Chakrabarti, for introducing my speech. This amendment is designed to compel police forces to
“keep a record of the sex registered at birth”
of anyone who is a crime victim or who is arrested by the police for a crime. It also forces the police to
“keep a record of the acquired gender of each person with a gender recognition certificate”
who is a crime victim of crime or is arrested for a crime.
It also says that providing this data to the Secretary of State will not be an offence under the Gender Recognition Act. Again, I want to try to focus on the amendment and not get drawn into the wider debate, as far as I can. As the noble Baroness pointed out, I was a police officer for over 30 years, so I want to look at this from the perspective of the police.
How will a police officer know what the sex registered at birth is—thumbscrews, or a chromosome test—even without the consent of the victim? Maybe they could force victims to give their fingerprints, in the hope that they may have had their fingerprints taken before they transitioned and that will prove it—except they may have had them taken after they transitioned, and that will then show their acquired gender, so that will not work. Will victims have to produce their birth certificates before they are even allowed to report a crime? Of course, if someone has acquired a gender recognition certificate and used it to have their birth certificate changed, as they are legally allowed to do, the birth certificate will show their acquired gender, so that will not work either. How exactly will police forces keep a record of something they do not know and have no reasonable way of finding out unless the victim or perpetrator volunteers the information?
If the victim or the perpetrator is a trans person, they are legally protected from having to disclose that information. “Well, it’s obvious,” some people will say, “you can tell, can’t you?” I have met trans men who you would never believe were assigned female sex at birth and trans women who you would never believe were assigned male sex at birth. I have also, embarrassingly, been with a lesbian friend of mine, assigned female sex at birth and who has always identified as a woman, who was stopped going into a women’s toilet in a top London restaurant because they wrongly thought that she was a man.
The supporters of this amendment may say that if they do find out, maybe the police can record it—that maybe the victim is reporting a transphobic hate crime or for some other reason volunteers that information.
The second part of the amendment is totally unnecessary. Section 22(4) of the Gender Recognition Act 2004 already states:
“But it is not an offence under this section to disclose protected information relating to a person if … (b) that person has agreed to the disclosure of the information”—
for example, if they are the victim of a trans hate crime—or, as stated later in the same section, at paragraph (f),
“the disclosure is for the purpose of preventing or investigating crime”.
So the police can use that information already, without fear of being prosecuted. The amendment is not necessary if the victim or perpetrator volunteers the information.
My noble friend Lady Brinton asked if she would have to declare every time she becomes a victim of crime, even if it is a burglary, that she has a disability? What about me? Will the next step be that I have to tell the police that I am gay before I can report that my flat has been broken into? For what purpose should victims have to out themselves? What if I get caught stealing a bottle of Marks & Spencer Prosecco?
Lord Paddick (LD)
It is very good, actually; I had some on Saturday. I have not tried to do that but if I did, will I have to admit being gay, as well as being a shoplifter?
In 2018, the Government tentatively estimated that there were between 200,000 and 500,000 trans people in the UK. Noble Lords have said they like data; I am going to give them lots of data. Between the Gender Recognition Act coming into force and 2018, 4,910 trans people have been issued with a gender recognition certificate. If we take the top of the range of the estimate, I make that 0.75% of the population identifying as trans and 0.0076% of the overall population having a gender recognition certificate, or less than one in 10,000 people.
Even if a victim went through the whole criminal justice process without disclosing, and without the police establishing the sex assigned to them at birth, if they were a trans woman, it would increase the number of woman victims, and if they were a trans man, it would diminish the number of woman victims, and taken together, and taking account of the total number of trans people, it would even out. Taking into account that only a fraction of them will become victims of crime who report it to the police, any difference to the crime statistics will be statistically insignificant.
The police arrest, on average, 12 in 1,000 people each year—three in 1,000 women. I do not know how many of the estimated 7.5 in 1,000 trans people are trans women and how many are trans men. Of course, if trans women are counted in the female offender figures, they will also be counted in the female population figures, boosting both the numerator and the denominator. I was never any good at mathematics—I left that to my twin brother—but it is quite clear to me that trans people are not going to make any statistically significant difference to the crime figures unless we assume, and there is no factual or statistical basis to think otherwise, that trans people are more likely to commit crime or to commit particular types of crime.
Lord Coaker (Lab)
My Lords, interesting points have been raised by Members around the Chamber. I agree with my noble friend Lady Morris about the need for data; how you collect it and what data you collect is always the issue, but data is essential, obviously. We have some concerns around this amendment regarding its breadth and the inclusion of victims. As the noble Baroness, Lady Brinton, and the noble Lord, Lord Paddick, pointed out, to require someone who is a victim of any crime, from theft of a pet up to violent robbery, to record their sex at birth in order to report that crime and interact with the criminal justice system is, in my view, quite troubling. It may have a significant effect on anybody potentially coming forward if that is an actual requirement of every single victim of every single crime. I think it may well act as an impediment to their coming forward and that is a consideration.
Having said that, there are some concerns around certain types of crime, namely rape and sexual violence. I agree with the noble Lord, Lord Paddick, about what the data says, but I think the impact on victims of how these crimes are recorded does vary between police forces in a way that is not helpful either. I did a little research, and I just preface this by saying that the only research I could find was a couple of years old, so if it is out of date, I apologise, but it did point to a problem around this.
“Police forces are recording suspected and convicted rapists as female if they no longer wish to identify with their male birth sex. Six forces”—
I will not name them—
“disclosed under freedom of information laws that if someone is arrested for or convicted of rape, the official record will state the gender they chose to identify themselves as. A further five forces … did not answer the question directly but each said they recorded gender in line with the person’s wishes.”
Irrespective of the rights and wrongs of what that data would tell us, I do not think it is helpful to have such a stark difference between lots of different forces. That goes to the point that my noble friend Lady Morris made, unless I misunderstood her, about the consistency of data that can be applied in a way that means we can learn from it and make judgments about it. Those are the only comments I would make on this amendment.
Baroness Williams of Trafford (Con)
I thank my noble friend Lord Wasserman and others for explaining this amendment, which relates to the recording of sex and gender by the police.
The Government do not currently stipulate how a victim’s or offender’s sex at birth or gender identity must be recorded by the police. It is an operational matter for each individual police force to decide what information to record in cases where a crime is committed, taking into account any relevant national guidance. There are no other instances across government where there is a mandatory requirement to record both a person’s sex as registered at birth as well as their acquired gender, if that is applicable. The Office for Statistics Regulation is clear that it is for each department to decide when and how it collects data, including data on both sex and gender.
We have already stated that we do not plan to require biological sex to be recorded across the criminal justice system in our response to a recent petition calling for the biological sex of violent and sexual offenders to be so recorded. The response cited the practical difficulties in recording biological sex, some of which have been cited this evening, as well as the implications for those with a gender recognition certificate as justification, the implications of which I will touch on later.
I understand that this issue has received media attention, with the media reporting that there have been cases of sexual offences committed by transgender women where these crimes, which are traditionally male crimes, have been recorded as being committed by women. The Daily Mail reported that the Home Office is working with police to develop a new procedure for officers to record the sex of criminals in order to ensure that crime statistics are more accurate.
As noted in much of this reporting, the Home Office has already started work with the National Police Chiefs’ Council to promote a standardised approach—a phrase that lots of noble Lords have used—to the recording of all protected characteristics, which is currently at an early stage. Further, the Office for Statistics Regulation has issued draft guidance for the collection of sex and gender data for public bodies. This work should bring greater accuracy and consistency of the recording of sex and gender and allow the police to understand how best to collect it. I think it is through these processes, rather than legislation, that it is appropriate to improve the accuracy of the recording of sex and gender.
There are also a number of legal concerns arising from the amendment. It is unclear why the Government would need to mandate the uniform recording of this information regarding both alleged victims and perpetrators for all offences, and how this would be considered both necessary and proportionate for operational purposes. Accordingly, it could amount to an unlawful interference in someone’s right to respect for their private and family life under Article 8 of the European Convention on Human Rights. The requirement might also breach Article 14 on the basis that it amounted to discrimination where transgender individuals are concerned. It is not clear, due to the scope of the amendment, that such a requirement could be lawfully justified.
I put it to the Committee that legislating so that the police routinely record this type of data is not the solution to the problem of standardising how sex and gender are recorded. Reasonable and appropriate actions are already being taken to address this that do not carry the same potential consequences as mandating it by law. There will be more to be said on this in the coming months, as the noble Baroness, Lady Chakrabarti, said, but I hope that for now I have said enough to persuade my noble friend to withdraw his amendment.
Lord Wasserman (Con)
My Lords, I am grateful to my noble friend the Minister for her comments, which were thoughtful and helpful, as ever. I assure the noble Baroness, Lady Brinton, that now, after midnight, I will withdraw my amendment. She need not worry about any more debate.
I recognise very much the problems of collecting this information, which is why I went out of my way to speak at some length about the Home Office counting rules. I happened to be involved with their development when I was at the Home Office. They are very much based on consultation with the National Police Chiefs’ Council, experts, think tanks, academics and so on. As I said, these rules ensure that the collection arrangements are easily amended in the light of practical experience on the ground. I have no doubt that any debate about the collection of such information will get careful consideration by the experts at the Home Office who run the counting rules, by the police, and others.
I still think that it is important to have national criminal information. One of the weaknesses of our system, as we said in an earlier debate on the Bill, is that we have 43 separate forces with 43 chief constables, each deciding how they will collect and maintain crime statistics. This is not the best way to do it. Some noble Lords will no doubt suggest a single police force, as in Scotland. That is not such a good idea, but there is another way of doing it—by Parliament setting clear rules at high level, and the experts then deciding how best to collect the information sensitively, with due respect to human rights and to people’s deepest feelings, ensuring that they take the population with them. Having said that, I beg leave to withdraw my amendment.