House of Lords
Royal Assent
Thursday 31st March 2022
(2 years, 8 months ago)
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Retirement of a Member: Lord Tebbit
The Lord Speaker (Lord McFall of Alcluith)
My Lords, I should like to notify the House of the retirement with effect from today of the noble Lord, Lord Tebbit, pursuant to Section 1 of the House of Lords Reform Act 2014. On behalf of the House, I should like to thank the noble Lord for his much-valued service to the House.
Exports: Support for Businesses
(2 years, 8 months ago)
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Baroness Ritchie of Downpatrick
To ask Her Majesty’s Government what recent assessment they have made of the effectiveness of their support for businesses to increase exports.
The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (Lord Callanan) (Con)
My Lords, evidence shows that exporting businesses are 21% more productive and pay higher wages than non-exporters. Government support can help businesses to overcome exporting barriers. In February, 96% of export support service users would recommend it to other businesses and our 2018-19 export client survey indicates that 76% of those using DIT’s face-to-face export support were satisfied with its service. DIT is developing its strategy for monitoring and evaluation to assess the impact of the refreshed export strategy.
Baroness Ritchie of Downpatrick (Lab)
My Lords, I thank the Minister for his Answer, but contrary evidence exists that states that UK exports are underperforming in comparison to those of all advanced economies. In view of this, can he detail what additional support the Government will develop and provide for businesses that previously exported but have since stopped because of unpredictable obstacles and barriers?
Lord Callanan (Con)
We want to continue providing as much export support to businesses as possible. I do not think that the noble Baroness’s criticisms are valid. The latest ONS monthly data shows goods exports to the EU above the level that they were before the TCA was signed. EU exports have performed better than non-EU exports, but it is quite difficult to get a firm picture, as there are a lot of contrary statistics around. We of course want to provide all the support that we can to businesses.
Lord Hannay of Chiswick (CB)
My Lords, will the Minister explain to the House why the Government rejected the recommendation of your Lordships’ European Affairs Committee that the scheme for helping small and medium enterprises to deal with the problems of Brexit be revived and continued? Why was that decision taken and what was its rationale?
Lord Callanan (Con)
We are continuing to provide service to a range of businesses, including small businesses, with the export support service. I outlined in the Answer to the noble Baroness the general satisfaction level of businesses with those services.
Lord Bassam of Brighton (Lab)
My Lords, as ever the Minister tries to paint a rosy picture of how our exports are going but, as the noble Baroness, Lady Ritchie, said, UK exports are underperforming against the rest of the world. Exports across the world have bounced back strongly coming out of the pandemic, yet the UK is the only country tracked by the CPB where goods exports remain below the 2010 average. As a result, the UK has become a less trade-intensive economy. Those are the facts. With no evident plan—the Prime Minister’s comments yesterday rather suggested complacency—can the Minister tell the House what steps the Government are taking urgently to address this and other export-related issues?
Lord Callanan (Con)
We can trade statistics and I can give the noble Lord alternative statistics, but we are optimistic for our export service. We are providing good support to businesses. Businesses across the UK are continuing to export to EU member states and to non-EU member states. We continue to be optimistic for the service. We will provide support to businesses and I am confident that British business will bounce back.
Lord Oates (LD)
My Lords, has the Minister had a chance to read paragraph 1.16 of the OBR’s Economic and Fiscal Outlook? It states:
“With little evidence to suggest that we revise our assumption about the negative effect of Brexit on UK trade flows, we continue to forecast little growth in export and import volumes and a fall in the trade intensity of the economy over the medium term.”
Does he recognise how devastating a statement that is for a trading economy such as ours? Can he tell the House what the Government intend to do to address these highly damaging impacts of Brexit?
Lord Callanan (Con)
I have not had a chance to read the paragraph that the noble Lord refers to, but I know that there are a number of contrary statistics out at the moment and it is quite hard to disentangle the various impacts. Of course, the pandemic had a serious effect on all countries’ export performances, and many supply chains are still suffering. I will certainly take the opportunity to read the paragraph the noble Lord refers to.
Viscount Waverley (CB)
My Lords, I note the presentation of the Minister’s figures in his initial response, but is it not the case that the DIT calculates that for every £1 of government support, exporters get a £4 return? The Heseltine No Stone Unturned competitiveness report stated that a chamber-led approach would provide a 1:6 return. Why would the Government opt to use public finance for a lower ROI option when public finances are stretched?
Lord Callanan (Con)
I do not know the validity of those numbers. I will certainly speak to the department and find out whether that is the case, but I take the thrust of the noble Viscount’s question. The export support service acts as a single point of inquiry for businesses and traders. We have expanded the provisions that we are offering. Export Finance, of course, is world leading. We have trade ambassadors based in a whole range of our embassies around the world to help exporters to expand their potential.
Lord Jones (Lab)
My Lords, does the Minister acknowledge the huge contribution made by the British aerospace industry, still a great reservoir of skills and success and perhaps edging beyond £8 billion in its annual exports? What prospects are there for more research grants for this great industry, bearing in mind the exciting possibilities and potential of composites for ever more green flight? Lastly, he might consider a visit to Broughton in north-east Wales, where some 5,000 aerospace workers construct the wings for the successful, world-beating Airbus company. There he would see the consequences of investment, which means more and more British exports.
Lord Callanan (Con)
I totally endorse the noble Lord’s sentiments. The aerospace industry is hugely successful, including at the Airbus site that he referenced in Broughton in north Wales. A number of other companies across the UK are also providing excellent aerospace exports. Of course, we want to do everything that we possibly can to encourage them. The aerospace industry has had a particularly difficult time during the pandemic, with not many people flying anywhere.
Lord Taylor of Holbeach (Con)
My Lords, I am usually supportive of the Government, but I speak from my personal experience of involvement in a small horticultural business. Not only do we have difficulty in getting people to pick the daffodil flowers that are in bloom at present, but we also have other enormous problems. We used to be able to load lorries in the evenings; the flowers were shipped across overnight and were sold in the Dutch auctions before dawn the next day. That is now totally impossible. Through plant health regulations and customs requirements, we are no longer able to ship overnight to the Netherlands auctions. It may be just an indication, but these problems exist for a number of businesses.
Lord Callanan (Con)
I am obviously very sorry to hear of my noble friend’s experience. I will certainly take that back to the department to see what we can do to alleviate those difficulties. There is clearly some disruption at some ports, et cetera, and we are attempting to smooth the flows of paperwork and export requirements needed to trade with the EU at the moment. I know that a lot of colleagues across government are working to try to reduce those delays.
Lord Fox (LD)
My Lords, I am sure that the Minister will agree that businesses in areas such as conference organisation, music and theatre, which rely on people travelling from this country to countries in the European Union, are suffering great confusion and difficulty in moving their people to the right place in time. Having agreed with that, can the Minister tell your Lordships’ House what the Government are doing to smooth the path for what are mostly small and medium-sized businesses that rely on moving their people efficiently and friction-free across Europe?
Lord Callanan (Con)
I am of course aware—we have discussed this before—that there were difficulties for travelling musicians and others, which principally revolved around the different visa requirements of different EU member states, but I know that DCMS in particular has been heavily engaged in working with member states to work out exactly what the visa requirements are and to publish them on the UK government website to provide support to businesses that are struggling, exactly as the noble Lord says. I think that the situation is a lot easier than it was last year.
Lord Flight (Con)
My Lords, does the Department for International Trade research fully the demand potential for British products and services?
Lord Callanan (Con)
Indeed, a huge amount of work goes on to identify businesses that can export. The 2020 national survey informed us that something like one in seven have never exported but have the potential; their goods and services could be exported. They are very much our target audience for providing export services to help them to fulfil their potential.
Behaviour Change for Net Zero
(2 years, 8 months ago)
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Baroness Boycott
To ask Her Majesty’s Government why they disbanded the Behaviour Change for Net Zero working group; and what they have replaced it with.
The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (Lord Callanan) (Con)
The group was created to discuss potential policies and proposals to be included in the Net Zero Strategy. Given that the strategy was published last year, we are now focused on delivering its commitments and have well-established net-zero structures across government to do so.
Baroness Boycott (CB)
I thank the Minister for his reply, but in evidence given to the Environment and Climate Change Committee, on which I serve, Simon Baugh, the director of government communication, said that the Government considered that their Together for our Planet campaign launched in 2020 was a “success” and were now
“developing and testing a strategy for climate change communications”.
I had barely heard of the Together for our Planet campaign, even though I work in this area, and I guess that many noble Lords have not heard of it either. On what basis do the Government consider it a success? What are the new strategies and when will they be launched? Will it be this year?
Lord Callanan (Con)
The noble Baroness makes an important point. I think that the campaign was a success, but it is important that we take the public with us on this journey. We think that the better approach is to support people in making the green choices that we all want to see them make. We have a range of support measures across government to help them to do this.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, I am sure that the Minister agrees with me that we must invest at scale in renewable energy, going further and faster. If he does, will he set out for the House a bit more these new initiatives and ways forward? We have had the committee that has been disbanded, so what are these new initiatives that we need to know about?
Lord Callanan (Con)
As we said before, we already have considerable investment in renewables, and there will be a forthcoming energy security strategy in the near future, which will expand on some of those commitments. The noble Lord will be aware that we already have one of the largest offshore wind industries in the world, and extremely ambitious plans for scaling up offshore wind, hydrogen, solar and other forms of renewable energy. We want to continue that.
Baroness Parminter (LD)
My Lords, the Welsh are shortly to consult on a behaviour change engagement strategy, and the Scottish already have one. So what plans do our Government have to publish a behaviour change engagement strategy, so that everyone can understand the challenges that we face, and take their part in their role for the transition to net zero?
Lord Callanan (Con)
As I mentioned in earlier answers, we have a range of strategies in place to support people to make their green choices. We have the boiler upgrade scheme, which is launching next month with £450 million-worth of support over three years, to help people to make a green choice in their heating. We have the phase-out of petrol and diesel cars by 2030 to help people to make green choices in their transport. We have the jet-zero initiative, to help people to make green choices in flying and transportation. So we think the better approach, rather than trying to dictate people’s behaviour, is to support them to enable them to make green choices.
Baroness Bennett of Manor Castle (GP)
My Lords, late last year, the Centre for Research into Energy Demand Solutions, involving many prominent UK university academics, produced a report showing that the UK can halve its energy demand by 2050 and still improve the quality of life. That group suggested four possible approaches to government policy on energy demand reduction, ranging from ignore, to steer, to shift, to transform. How does the Minister classify the Government’s approach?
Lord Callanan (Con)
We have discussed in this House in many debates a number of the policies that we have to reduce energy demand. I know that the noble Baroness is a keen advocate of energy efficiency, and I agree with her on that. We have a programme of almost £7 billion-worth of expenditure over the next few years to enable energy efficiency improvements, including home upgrade grants, the local authority delivery scheme, the social housing decarbonisation fund, the public sector decarbonisation strategy, et cetera. They are all about decarbonisation and improving the efficiency of our energy usage, which is, of course, the best form of renewable.
The Archbishop of Canterbury
My Lords, like the Government, the Church of England has targets for reaching net-zero carbon, in our case by 2030. Churches across the Anglican Communion are deeply affected by climate change. For example, Madagascar recently had four cyclones in two months. We are working right across the communion on this question. This week, we have had a gathering of archbishops from across the communion representing more than 100 countries. Will the Minister set out the plans that the Government have to work further with faith communities, which have unique distribution and contacts, from the grass roots to the highest level, both nationally and internationally, and will he commend the work that they are already doing?
Lord Callanan (Con)
I thank the most reverend Primate for his question, and it is a pleasure to see so many of his colleagues in the gallery with us this morning. Achieving our net-zero targets will be a shared endeavour, requiring action from everyone in society. I very much welcome the 2030 net-zero target set by the Church, and I am following the Church’s consultation on its net-zero road map with interest. It mirrors our net-zero strategy, which delivers a comprehensive set of measures to support and capitalise on the UK’s transition to net zero by 2050. I would be very happy to meet with the most reverend Primate to discuss how we can build on that excellent work and how we can work together to enable our green future.
Lord Forsyth of Drumlean (Con)
My Lords, does the Minister accept that everything has changed as a result of the war in Ukraine and the huge increase in the cost of fossil fuels? Given our dependence on fossil fuels as we move away from them in the longer term, are not the Government to be congratulated on allowing further development of North Sea interests in order to enable security of supply and, most importantly of all, to protect the poorest people in this country so that they are actually able to meet their bills?
Lord Callanan (Con)
My noble friend makes a very important point. The Ukraine crisis has changed everything. What the crisis in the use of fossil fuels demonstrates is the need—ultimately, in the longer term—to use less of them and to move towards more renewable power, which I know my noble friend supports. However, in the meantime, for the transition, we will still need oil and gas, and my contention is that it is much better to achieve those supplies from our own domestic production, which is secure, pays UK taxes and employs UK workers.
Lord Foulkes of Cumnock (Lab Co-op)
My Lords, the Minister has very wisely said that new nuclear forms an important part of this strategy. Can he outline to the House what his strategy is going to be to persuade the Scottish Government that new nuclear stations should be established at places like Hunterston and Torness, where the communities are very willing to accept them?
Lord Callanan (Con)
The noble Lord makes an extremely important point. Nuclear will make a vital contribution to our low-carbon, net-zero future. It is very disappointing to see the Scottish Government rejecting an excellent technology that already works well in Scotland. However, if they continue to take this approach, I am sure that the rest of us in England and Wales will be very happy to help our Scottish friends out by continuing to supply clean, green, nuclear power for them.
Lord Hope of Craighead (CB)
My Lords, what are the Government doing to encourage the development of tidal power as an alternative source of energy?
Lord Callanan (Con)
The noble Lord makes a very good point. There are a number of schemes in operation already, and a number of research programmes that we fund to help tidal power. There are a number of different schemes, of course, including proposals for lagoon tidal power, which has proved to be quite expensive at the moment, but we continue to keep these matters under review. We have a constant, ongoing round of contracts for difference, which is our main mechanism of support, and we will, I am sure, look forward to supporting such schemes in the future.
Lord Watts (Lab)
My Lords, do the Government have any plans to insulate homes to a decent standard? We have some of the worst-insulated properties in Europe. When will the Government invest in that, to reduce our need for fuels of any sort?
Lord Callanan (Con)
The noble Lord makes an excellent point. Indeed, we are doing just that. I mentioned earlier that we have something like £7 billion-worth of support through some of the schemes I mentioned, including the social housing decarbonisation fund, the home upgrade grant and the local authority delivery scheme. All of those are focused on helping those on the lowest incomes in society to insulate their homes to reduce their energy bills.
Baroness Sheehan (LD)
My Lords, can I confirm that the Minister just said that the Government were not open to carrying out a consultation on behavioural change strategy with respect to climate change? If that is the case, it is really quite sad, because businesses are trying to lead the way, but they cannot reap the full benefit of their actions without a clear lead from government.
Lord Callanan (Con)
The Government are providing a clear lead. We were one of the first countries in the world to legislate for net zero; we have provided a number of different strategy documents, pointing the way, across a whole range of sectors, to how we can meet net zero, and we are working very closely with business. We are delighted to see that so many different international companies have signed up to our net- zero pledges. We will continue to work with them and continue to encourage people to make greener choices.
Government Business: Messaging Services
Lord Scriven
To ask Her Majesty’s Government what security assessment they have made, if any, of the use by Government ministers of messaging services on personal communications devices for official Government business.
Baroness Scott of Bybrook (Con)
My Lords, for obvious national security reasons, it is not appropriate for us to discuss security matters in detail. However, there are appropriate arrangements and guidance in place for the management of all electronic communications, including instant messages, in relation to the Government’s business. All Ministers and officials are aware of the guidance around the use of communication channels. As with all guidance, we keep this under regular review.
Lord Scriven (LD)
My Lords, Conservatives used to criticise Tony Blair for government by sofa. We now have a Prime Minister who conducts government by Signal, the messaging app that can delete messages after five seconds and block screengrabs. How is this in accordance with official rules, which state that private phones must be used only in exceptional circumstances and that all government business messages must be forwarded to civil servants to ensure the highest probity in public office?
Baroness Scott of Bybrook (Con)
My Lords, there are appropriate arrangements and guidance in place for the management of all electronic communications. Ministers will have informal conversations from time to time in person or remotely. Significant content relating to government business from such discussions is passed back to officials. Ministers will use a range of digital forms of communication for discussions, in line with relevant guidance on the handling and security of information. The Cabinet Office has previously published guidance on how information is held for the purposes of access to information and how formal decisions are recorded for the official record. Ministers are also given advice on the security of all electronic communications.
Baroness Chisholm of Owlpen (Con)
My Lords, when I was chairman of candidates, we tried to teach candidates about their responsibilities as far as their social media were concerned—clearly, not very successfully in some cases. I know that there is guidance in place, but would it not be a good idea for parliamentary colleagues to have more updated lessons about social media? I get the feeling that they do not really read the guidance enough and do not understand what is going on. Perhaps there could be some training for them on a yearly basis in this regard.
Baroness Scott of Bybrook (Con)
My Lords, Members of Parliament get the appropriate guidance when they become MPs, but my noble friend’s idea that all political parties should start discussions about the relevant guidance with candidates before they become MPs is a good one and I shall take it back to the Cabinet Office.
Baroness Smith of Basildon (Lab)
My Lords, we have seen the reports of what happens when those outside Parliament think they have a—let us say—different channel of access to Ministers. Paragraph 2.14 of the Ministerial Code, on “Security of Government business”, makes it quite clear how Ministers should behave. It would be helpful if the further information that the Minister referred to could be published and put in the public domain. However, it is not just about Ministers, is it? In the Code of Conduct for Special Advisers, there is no reference at all to the security of government business or the security of communications in public business. Many of those outside who wish to lobby Ministers, perhaps for contracts for certain equipment, would know that they could go to special advisers if they were not adhering to the same codes and there was nothing in their code of conduct about that. I ask the Minister to take this back and ensure that the Code of Conduct for Special Advisers is reviewed so that they are subject to the same requirements as Ministers.
Baroness Scott of Bybrook (Con)
I thank the noble Baroness for that. She is right that all Ministers and officials are aware of the guidance on the use of communications channels. As with all guidance, we keep that under regular review. Ministers still use a range of forms of communication for discussions, as has always been the case, in line with relevant guidance. However, I shall certainly take back the noble Baroness’s point about special advisers.
Lord Rooker (Lab)
It is not really about private conversations, Minister to Minister. In a way, I am not really bothered about that. What this is about is Ministers using their own equipment to talk to other people: businesses, lobby groups. The Minister simply has not addressed the issue of Ministers using the equipment to go outside of government. She answered only about inside government.
Baroness Scott of Bybrook (Con)
I do not agree with the noble Lord. Let us make it clear: in 2013, the Cabinet Office issued guidance to departments that covered the use of private email accounts and any other form of non-corporate communication channel. The guidance states that all government information must be handled in accordance with the law, including the Official Secrets Act, the Freedom of Information Act, the Data Protection Act and the Public Records Act. Instant messaging services are used mainly for the type of informal, corridor chat that needs to be retained. However, Ministers and officials are required to ensure that a record is captured into the official system of any substantive discussions that take place or any decisions that are made in the course of conducting official business.
The Lord Speaker (Lord McFall of Alcluith)
My Lords, we have a remote contribution from the noble Baroness, Lady Brinton.
Baroness Brinton (LD) [V]
My Lords, the Prime Minister’s foreword to the Ministerial Code states that
“we must uphold the very highest standards of propriety … The precious principles of public life enshrined in this document—integrity … accountability, transparency, honesty … in the public interest—must be honoured at all times.”
The code of conduct and the Government Communication Service proprietary guidance are silent on the use of private emails and social media accounts by Ministers. If the Minister argues that no rules have been broken and that there is private guidance, should not the Ministerial Code be updated as a matter of urgency?
Baroness Scott of Bybrook (Con)
My Lords, the noble Baroness has a point, because the Cabinet Office has kept the guidance from 2013, which is a long time ago and things have moved on. However, it has kept it under review. It would be premature for us to reissue guidance before judgments are received on the two JRs of government policy in this area that are being conducted at the moment, but it is anticipated that updated guidance will be issued once the judgments are received.
Baroness Manzoor (Con)
My Lords, can my noble friend highlight what the national security risks associated with using WhatsApp are and can they be communicated to both Houses so that individuals can take the appropriate action to mitigate against those risks?
Baroness Scott of Bybrook (Con)
I thank my noble friend for that question, but, for obvious national security reasons and as I have mentioned earlier, it is not appropriate for me to discuss security matters in detail at the Dispatch Box. However, I can assure her that there are appropriate arrangements and guidance in place to support Ministers in communicating electronically in a secure way.
Baroness McIntosh of Hudnall (Lab)
My Lords, this debate has centred on propriety in the use of the Ministerial Code, but there is also the issue of security, as just referred to by the noble Baroness opposite. It is well known that private devices are considerably less well protected in the main than those issued formally through the Parliamentary Estate. What assessment have the Government made of the vulnerability of private devices used to communicate government business, whether formally or informally, to possibly hostile state actors?
Baroness Scott of Bybrook (Con)
I cannot give the noble Baroness any further information apart from the fact that there are appropriate arrangements and guidance in place for the management and security of all electronic communications to conduct government business. In line with practices across successive Administrations, the Government do not otherwise comment on internal security arrangements, as I have already said.
Lord Cormack (Con)
My Lords, should it not be a breach of the Ministerial Code to tweet or to Twitter?
Lord Reid of Cardowan (Lab)
My Lords, will the Minister have another go at answering the question of my noble friend Lord Rooker? Can I make easy for her? Is it in breach of the Ministerial Code for a Minister to communicate on a private device with a business or other party outside of government on something that may pertain to government business?
Baroness Scott of Bybrook (Con)
No, it is not, my Lords, but they are required then to take that back to their officials and make sure that it is officially noted.
Chelsea Football Club
Baroness Penn (Con)
The Office of Financial Sanctions Implementation in the Treasury considers all licence applications on a case-by-case basis. OFSI does not publicly disclosure the details of specific applications it receives. Any licence issued under the Russia regulations will be in line with the purpose of the regulations, which is to encourage Russia to cease destabilising Ukraine and cease undermining and threatening the territorial integrity, sovereignty or independence of Ukraine.
Lord Hain (Lab)
My Lords, as a Chelsea fan for 57 years, may I ask whether will the Government ensure that no winning bid loads debt on the club like the Glazers did to Manchester United? Will Ministers also bar the Pagliuca consortium bid headed by the chair of Bain Capital, which remains highly entwined with Bain & Company, recently indicted by a South African judicial commission for acting unlawfully and referred for prosecution. Bain cynically and ruthlessly disabled the country’s tax collecting agency by conspiring with the corrupt former President Zuma for a £8 million fee. Chelsea and the Premier League must not be contaminated with such despicably corrupt business practices.
Baroness Penn (Con)
My Lords, the Government do not want to prejudge any decision Chelsea may make; it is for the club to ensure the best owners are found. We would expect all due diligence and assessment of owners to happen before an application for a licence for the sale of the club is made, which obviously we would consider on its merits.
Lord Addington (LD)
My Lords, would the Minister like to consider just how much easier the Answer to this Question would be if they had actually implemented an independent regulator for English football, as put forward in the Tracey Crouch report? There is a solution to this here, as somebody would be able to go in and deal with this properly without having to take it on to other levels of complication. Surely the Government have an answer here and should take it.
Baroness Penn (Con)
My Lords, the noble Lord is correct that the primary recommendation of the fan-led review is clear and is one that the Government endorse in principle. Football requires a strong independent regulator to secure the future of our national game. We are working at pace to provide the full formal government response to that review in the coming weeks.
Lord McLoughlin (Con)
My Lords, the position that Chelsea is facing at the moment is not the only situation that football is facing. There is also the case against Derby County. I join those colleagues saying that implementation of the Tracey Crouch report should be taken forward. The Queen’s Speech is coming up shortly and this would be a very good opportunity to make sure that this issue is properly addressed.
Baroness Penn (Con)
My noble friend will know very well that I cannot prejudge any content of a future Queen’s Speech. All I can say to my noble friend—and to reassure noble Lords across the House—is that the Government are working at pace to determine the most effective way to deliver an independent regulator and any powers it might need. We will also consider the full recommendations of the excellent Tracey Crouch review.
Lord Faulkner of Worcester (Lab)
Following on from the excellent questions from the noble Lords, Lord Addington and Lord McLoughlin, can I just press the Minister a bit on the fan-led review, the Tracey Crouch report? Its recommendations 10 to 15 deal with fit and proper persons tests for directors and owners. Does the Minister agree that those tests, whether the report is implemented immediately or later, must apply in the case of Chelsea when it is reviewing who is to take it over?
Baroness Penn (Con)
Of course, there is already a process in place for the Premier League to judge a fit and proper person. We cannot judge whether a different test would have prevented the sale of Chelsea to Roman Abramovich in the first place or would constrain a future sale in any way. The fan-led review is about future-proofing the system. That is why we are considering how to enhance the owners and directors test to ensure football has only suitable custodians and directors.
Lord Bassam of Brighton (Lab)
My Lords, it seems to be the case that the Government have effectively nationalised Chelsea Football Club—an interesting example of state intervention, I might add. The sale of Chelsea will obviously have to go ahead sooner rather than later if the club is to avoid running into cash-flow issues and facing the penalties associated with entering administration. The value of the club is such that it is likely to be purchased by a consortium of investors rather than any one individual such as Abramovich. What assessment has the department made of the likely timescales needed to complete due diligence and for the footballing authorities to carry out their fit and proper person tests for owners and directors? This could take some time, and I am concerned that the club will suffer as a consequence.
Baroness Penn (Con)
My Lords, I have heard reference to Chelsea as DCMS FC, but I should be clear that financial sanctions do not change the ownership of the frozen assets. The Government would like to see the club sold to an appropriate owner before the end of the season, but we do not want to prejudge that process; that is for Chelsea to undertake. I understand that the initial bidding round has now closed and the Government expect to hear soon regarding Chelsea’s preferred bids.
Lord Watts (Lab)
My Lords, is it not the Government’s position that they are leaving it to the Premier League to decide whether people are fit and proper to run a football club? Is not the Premier League having a regulator imposed on it because it has failed to do its duty in the past?
Baroness Penn (Con)
The noble Lord is quite right that football has had numerous opportunities to get its house in order. It has failed to do so. That is why we undertook the fan-led review and are considering its recommendations very carefully.
Lord Foulkes of Cumnock (Lab Co-op)
My Lords, can I recommend to the Minister that she reads the really excellent—even though I modestly say so—Council of Europe report on football governance, which endorses the Tracey Crouch recommendations and encourages much greater fan ownership such as that of Heart of Midlothian Football Club? That is the largest fan-owned club in the whole of the United Kingdom, and the more of that the better. If Chelsea, Arsenal, Manchester United and many other clubs could move in that direction, football would be much better in the United Kingdom.
Baroness Penn (Con)
I thank the noble Lord for his bedtime reading recommendation and join with him in the spirit of what he says about the need for greater fan involvement in the governance of football.
Lord Hain (Lab)
My Lords, can I press the Minister again? She really has not answered the Question, I am afraid. The Government have imposed all sorts of restrictions on the club. It cannot sell programmes; it cannot do all sorts of things, and now the Government are saying that it has nothing to do with them in terms of how the bids come out. That is simply not right, surely.
Baroness Penn (Con)
It is correct that the financial sanctions do not change the ownership of frozen assets. We do not control the frozen assets and it is for the club to determine the process of the sale. The Government’s role in this is to consider any licence application under the sanctions on its own merit, and that is what we will do.
Lord Grocott (Lab)
Does the Minister recognise the advantages of a club being owned by life-long supporters of the club known in the local community? It often brings great success with clubs, and I particularly commend to her Stoke City Football Club.
Baroness Penn (Con)
My Lords, I have a feeling that multiple different clubs may be commended to me in the course of this Question. The only thing I would say to the noble Lord is that the Government absolutely recognise the important role of fans and the beneficial role that they can have in the governance and ownership of clubs.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, can I also bring to the attention of the noble Baroness the wonderful work at AFC Wimbledon and the work that our dear noble friend Lady McDonagh did to bring that club back after it was destroyed. I went there recently. It is a fabulous club with a fabulous ground and is wholly owned by the fans.
Baroness Penn (Con)
My Lords, I can absolutely endorse that. I also know that my noble friend Lord O’Shaughnessy was heavily involved in the renaissance of that club.
The Archbishop of York
My Lords, I was not planning to speak, but I thought I might join in some of the fun. I refer the Minister back to her earlier answer in which she referred to football as the “national game”. I wonder whether she would like to confirm that it is the Government’s view that football and not cricket is now the national game, which is a cause of great shock to some of us on these Benches.
Baroness Penn (Con)
My Lords, I do not know about the most reverend Primate’s idea of fun, but I cannot recall the exact words I used. All I would say is that it was great to see the victory of the England women’s cricket team in the world cup.
Elections Bill
Baroness Scott of Bybrook
That the amendments for the Report stage be marshalled and considered in the following order:
Clause 1, Schedule 1, Clause 2, Schedule 2, Clause 3, Schedule 3, Clauses 4 to 6, Schedule 4, Clauses 7 and 8, Schedule 5, Clauses 9 to 11, Schedule 6, Clauses 12 and 13, Schedule 7, Clause 14, Schedule 8, Clauses 15 to 29, Schedule 9, Clauses 30 to 37, Schedule 10, Clauses 38 to 47, Schedule 11, Clauses 48 to 52, Schedule 12, Clauses 53 to 66, Title.
Baroness Scott of Bybrook (Con)
My Lords, on behalf of my noble friend Lord True, I beg to move the Motion standing in his name on the Order Paper.
Constitution Committee
The Senior Deputy Speaker
That Lord Howard of Lympne and Lord Thomas of Gresford be appointed members of the Select Committee, in place of Baroness Doocey and Lord King of Bridgwater.
Police, Crime, Sentencing and Courts Bill
Thursday 31st March 2022
(2 years, 8 months 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 143-I Marshalled list for Consideration of Commons Amendments - (30 Mar 2022)
13:05 - Division on Motion C1 - Ayes: 177 / Noes: 138 - Motion C1 agreed.
13:18 - Division on Motion D1 - Ayes: 163 / Noes: 151 - Motion D1 agreed.
Baroness Williams of Trafford
That this House do not insist on its Amendment 58 and do agree with the Commons in their Amendments 58C, 58D and 58E in lieu.
“PACE etc powers for food crime officers
(1) In the Police and Criminal Evidence Act 1984, after section 114B insert—
“114C Power to apply Act to food crime officers
(1) The Secretary of State may by regulations apply any provision of this Act which relates to investigations of offences conducted by police officers to investigations of offences conducted by food crime officers.
(2) The regulations may apply provisions of this Act with any modifications specified in the regulations.
(3) In this section “food crime officer” means an officer of the Food Standards Agency who—
(a) is acting for the purposes of the performance by the Food Standards Agency of its functions under the Food Standards Act 1999 or any other enactment (including functions relating to the investigation of offences), and
(b) is authorised (whether generally or specifically) by the Secretary of State for the purposes of this section.
(4) The investigations for the purposes of which provisions of this Act may be applied by regulations under this section include investigations of offences committed, or suspected of having been committed, before the coming into force of the regulations or of this section.
(5) Regulations under this section are to be made by statutory instrument.
(6) Regulations under this section may make—
(a) different provision for different purposes;
(b) provision which applies generally or for particular purposes;
(c) incidental, supplementary, consequential, transitional or transitory provision or savings.
(7) A statutory instrument containing regulations under this section is subject to annulment in pursuance of a resolution of either House of Parliament.
(8) In this section “enactment” includes—
(a) an enactment comprised in subordinate legislation within the meaning of the Interpretation Act 1978, and
(b) an enactment comprised in, or in an instrument made under, a Measure or Act of Senedd Cymru.”
(2) In the Criminal Justice and Public Order Act 1994, after section 39 insert—
“39A Power to apply sections 36 and 37 in relation to food crime officers
(1) The Secretary of State may by regulations provide for any provision of section 36 or 37 that applies in relation to a constable to apply in relation to a food crime officer.
(2) Regulations under subsection (1) may apply any provision of section 36 or 37 with any modifications specified in the regulations.
(3) Regulations under subsection (1) may not apply a provision of section 36 or 37 in relation to a failure or refusal which occurred before the regulations come into force.
(4) Regulations under subsection (1) are to be made by statutory instrument.
(5) Regulations under subsection (1) may make—
(a) different provision for different purposes;
(b) provision which applies generally or for particular purposes;
(c) incidental, supplementary, consequential, transitional or transitory provision or savings.
(6) A statutory instrument containing regulations under subsection (1) is subject to annulment in pursuance of a resolution of either House of Parliament.
(7) In this section “food crime officer” has the meaning given by section 114C of the Police and Criminal Evidence Act 1984 (PACE powers for food crime officers).”
(3) In the Food Standards Act 1999, after section 25 insert—
“25A Obstruction of food crime officers
(1) A person commits an offence if the person—
(a) intentionally obstructs a food crime officer who is acting in the exercise of functions conferred on the officer by virtue of section 114C of the Police and Criminal Evidence Act 1984 (PACE powers for food crime officers),
(b) fails without reasonable excuse to comply with any requirement made of the person by such a food crime officer who is so acting, or
(c) in purported compliance with such a requirement provides information which the person knows to be false or misleading in any material particular or recklessly provides information which is false or misleading in any material particular.
(2) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding 3 months or to a fine, or to both.
(3) In this section “food crime officer” has the meaning given by section 114C of the Police and Criminal Evidence Act 1984 (PACE powers for food crime officers).”
(4) In the Police Reform Act 2002—
(a) in section 10 (general functions of the Director General)—
(i) in subsection (1), at the end of paragraph (ga) insert “; and (gb) to carry out such corresponding functions in relation to officers of the Food Standards Agency acting in the exercise of functions conferred on them by virtue of—
(i) section 114C of the Police and Criminal Evidence Act 1984 (PACE powers for food crime officers), or
(ii) section 39A of the Criminal Justice and Public Order Act 1994 (powers for food crime officers: inferences from silence).”, and
(ii) in subsection (3), after paragraph (bd) insert—
“(be) any regulations under section 26E of this Act (food crime officers);”, and
(b) after section 26D insert—
“26E Food crime officers
(1) The Secretary of State may make regulations conferring functions on the Director General in relation to officers of the Food Standards Agency (the “Agency”) acting in the exercise of functions conferred on them by virtue of—
(a) section 114C of the Police and Criminal Evidence Act 1984 (PACE powers for food crime officers), or
(b) section 39A of the Criminal Justice and Public Order Act 1994 (powers for food crime officers: inferences from silence).
(2) Regulations under this section may, in particular—
(a) apply (with or without modifications), or make provision similar to, any provision of or made under this Part;
(b) make provision for payment by the Agency to, or in respect of, the Office or in respect of the Director General.
(3) The Director General and the Parliamentary Commissioner for Administration may jointly investigate a matter in relation to which—
(a) the Director General has functions by virtue of this section, and
(b) the Parliamentary Commissioner for Administration has functions by virtue of the Parliamentary Commissioner Act 1967.
(4) An officer of the Agency may disclose information to the Director General or to a person acting on the Director General’s behalf, for the purposes of the exercise by the Director General or by any person acting on the Director General’s behalf, of an Agency complaints function.
(5) The Director General and the Parliamentary Commissioner for Administration may disclose information to each other for the purposes of the exercise of a function—
(a) by virtue of this section, or
(b) under the Parliamentary Commissioner Act 1967.
(6) Regulations under this section may, in particular, make—
(a) further provision about the disclosure of information under subsection (4) or (5);
(b) provision about the further disclosure of information that has been so disclosed.
(7) A disclosure of information authorised by this section does not breach—
(a) any obligation of confidence owed by the person making the disclosure, or
(b) any other restriction on the disclosure of information (however imposed).
(8) But this section does not authorise a disclosure of information that—
(a) would contravene the data protection legislation (but in determining whether a disclosure would do so, the power conferred by this section is to be taken into account), or
(b) is prohibited by any of Parts 1 to 7 or Chapter 1 of Part 9 of the Investigatory Powers Act 2016.
(9) In this section—
“Agency complaints function” means a function in relation to the exercise of functions by officers of the Agency;
“data protection legislation” has the same meaning as in the Data Protection Act 2018 (see section 3 of that Act).”
(5) The amendments made by subsections (1) to (3) and any regulations made under provision inserted by subsections (1) and (2) bind the Crown.
(6) No contravention by the Crown of section 25A of the Food Standards Act 1999 (as inserted by subsection (3)) makes the Crown criminally liable; but the High Court may declare unlawful any act or omission of the Crown which constitutes such a contravention.
(7) That section applies to persons in the public service of the Crown as it applies to other persons.
(8) If the Secretary of State certifies that it appears requisite or expedient in the interests of national security that any powers of entry conferred by regulations made under provision inserted by subsection (1) should not be exercisable in relation to any Crown premises specified in the certificate, those powers shall not be exercisable in relation to those premises.
(9) In this section “Crown premises” means premises held or used by or on behalf of the Crown.
(10) Nothing in this section affects Her Majesty in her private capacity; and this subsection is to be interpreted as if section 38(3) of the Crown Proceedings Act 1947 (references to Her Majesty in her private capacity) were contained in this Act.”
“(za) section (PACE etc powers for food crime officers);”
“(da) section (PACE etc powers for food crime officers);”
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, with the leave of the House, I will also speak to Motions B and D.
Amendments 58C to 58E respond to the tenacious and clever campaign by the noble Lord, Lord Rooker, to confer appropriate police powers on the Food Standards Agency to enable it more effectively to tackle food crime. We have always been clear that we support the case, in principle, for conferring additional powers on the FSA, but we need to do this in a holistic way. The original Lords Amendment 58 did not deliver all the powers the FSA was seeking, nor did it provide for independent oversight of what are intrusive and coercive powers of the state. Amendments 58C to 58E remedy these omissions.
The amendments do four things. First, they will enable regulations to be made conferring relevant PACE powers on the FSA. Secondly, they will enable regulations to apply provisions in Sections 36 and 37 of the Criminal Justice and Public Order Act 1994 which relate to drawing inferences from a suspect’s failure to account for certain matters, such as their presence at a particular place. Thirdly, they create an offence of obstructing a food crime officer in the execution of functions conferred on them by regulations made under new Section 114C of PACE. Finally, they amend the Police Reform Act 2002 to bring food crime officers within the remit of the Independent Office for Police Conduct. Before exercising the various regulation-making powers provided for in these amendments, the Food Standards Agency will consult interested parties to ensure that we get the detail right and confer on food crime officers only those powers which are necessary and appropriate to their role. I trust these amendments will be welcomed by the noble Lord, Lord Rooker, and indeed the whole House.
I turn now to Amendment 72C, on which I will be as brief as possible because we have rightly dedicated much discussion to this topic and, as I have said before, the Government are pursuing a very broad programme dedicated to tackling violence against women and girls. Your Lordships will have seen that the Commons has spoken and, in doing so, has rejected the Lords amendment by a substantial margin and endorsed an amendment in lieu which firmly commits the Government to responding to the Law Commission’s recommendations related to adding sex or gender to hate crime laws. As I said in our last debate, the Government will also consult on whether to pursue a new public sexual harassment offence before the Summer Recess. Notwithstanding that, this House has signalled that it would like to see quicker progress, particularly on the matter of police recording. If noble Lords permit me, I will address this issue in further debates and in doing so, I hope I can provide reassurance that the Government are listening.
I want to reaffirm that the Government are pursuing the recording of hostility to sex, and that we take the commitment I made to do so during the debates on the Domestic Abuse Bill very seriously. I do intend to see that this work is accelerated, and that remains the case. I also expressed my regret in the last debate that we have not secured the pace of change that was rightly expected on this issue. The recording of sex hostility has proven—with the benefit of hindsight—more complex than parallel experiences we have undertaken with the recording of statutory hate crimes. For the sake of transparency, it is important that the Government are honest when things have taken longer than we might have expected or hoped, even if, as in this case, they are still moving in the right direction.
It would also be beneficial for the House if I outlined some of the challenges we have encountered, so as to assure noble Lords that the issues we are experiencing are technical but perfectly capable of resolution. The Government’s starting point is that we want to get the recording processes right and to do so in a way that delivers useful data. One of the principal quandaries we have been working through to this end is the blurred boundaries between this new recording category and other categories of hate crime. This manifests in contested—or, at the very least, widely confused—interpretations of sex and gender. I am sure that all noble Lords will be mindful of that. As such, this is an issue that crops up frequently in the very debates we have been having in this place. I hope that noble Lords can understand the importance attached to precision and clarity here. We do benefit from a statutory definition of sex, but, given the unique complexities, there is a risk that forces will have their own individual sense of what these terms mean. Therefore, we need to ensure consistency across the board.
We also need to acknowledge that the police already record hostility on the grounds of transgender identity, which means that there are issues to resolve as to the boundaries between different recording categories that do not apply to quite the same degree when recording most hate crimes. In many cases, the difference will be clear, but not always. The closest equivalent puzzle is regarding race and religion, where recording the actual characteristics of the victim—or, indeed, an interpretation of the often confused utterances of the offender—will produce very different answers as to the prevalence of certain hostility in society.
The matters are, of course, not insurmountable. We have resolved them in the past: where there is a conflict between two principles, such as whether a victim’s race or religion was targeted, we have successfully developed a working rule. In the case of race and religion, we tend to stress not what the actual characteristic of the victim is, but what the best available judgment suggests regarding the intent behind what the offender said or did. This will not always prove satisfactory to the victim, but it aims to paint a clearer, if imperfect, picture of the true levels of hostility that might exist in communities. When embarking on these new exercises, there is always a danger that we become bound up in striving for a degree of spurious rigour on data, whereas a common-sense judgment might point to the likely animus at the heart of the offender’s own, often muddled, beliefs. None the less, in this case we did wish briefly to pause and resolve these questions before embarking on a process which might result in less useful insights.
I hope that this provides a broad illustration of some of the difficulties we have encountered, and that it helps to illustrate the Government’s position on why legislation is immaterial to fixing them, particularly as we already have the legal powers we need. Whatever remaining questions we need to answer, I am confident that we will have resolved them in the next few months or, hopefully, sooner. I will certainly ensure that there is a renewed impetus in doing so.
Lord Rooker (Lab)
My Lords, I will be very brief. I say thank you, first, to the House for agreeing the amendment last Tuesday in such substantial numbers, because it sent a better message to the other place than the original vote, which was at 10 pm, and, secondly, to the Government.
The leaders of the FSA will say that these amendments are vital to its core mission and will make tangible benefits to the way that it can deal with food crime. I do not think that I ever claimed that my little amendment of 30 words would solve the problem; the proof of the pudding, of course, is that 1,300 words have come back from the Commons. I know the parliamentary draftsmen are good, but they did not do that last Wednesday. This shows the point: the Minister in the other place said, as the Minister has just said here, that there was no issue of principle between us. I notice, however, that Mr Malthouse spoke about the “unfortunate way” that we dealt with the matter in this place—well, I only know one way to deal with it, and that is within the rules, which is what we did.
It is worth saying that Alistair Carmichael, the Lib Dem—who represents the second-best constituency in the UK, I might add—said
“It tells something about the attitude of the Home Office and this Government in general to Parliament and the other place that for something as prosaic as this it has taken two rounds of ping-pong before the Government have been prepared to accept what was surely to the rest of the world blindingly obvious.”—[Official Report, Commons, 28/3/22; col. 637.]
And it was something on which the Government agreed in principle anyway. The issue was parliamentary time. I know that there will be a consultation and that it will be several months, maybe even a year, before any of this comes into operation, but the fact is that parliamentary time is incredibly valuable. I know that, both as a troublesome Back-Bencher in opposition and as a Minister for 12 years: if you can get it, use it.
The Food Standards Agency issue in this Bill did not fit, but it fitted the Long Title. This is a classic example of where the use of that will save us enormous parliamentary time later on. It also makes the consultation that the FSA will do much more meaningful to the people who will be consulted, because Parliament has already done the primary legislation for it all. So I say thank you very much and I am very pleased with the outcome.
Lord Russell of Liverpool (CB)
My Lords, I speak to Motion B1. I thank the Minister for the way that she explained the Government’s view on this. Interestingly, we had a discussion in yesterday’s Cross-Bench weekly meeting about the diplomacy and constitutional sensitivity involved in ping-pong. There was a range of views; I will not say what they were but they were in fact quite moderate and very balanced, so we are conscious of the delicacy of pushing ping-pong too far. However, I think—I hope—that the Minister would accept that pushing this particular subject to the extent that we have has helped and provided some clarity, not only to those of us who have been pushing for it but to both Houses and, frankly, to the Minister and the ministerial team themselves, who I think were perhaps not fully aware of exactly what they had embarked upon when the commitment was made just over a year ago to make the police record this sort of data.
There were two objectives in going for yet another round of ping-pong. The first was to get reassurance that that commitment really was being followed through with vigour and a sense of direction and purpose. The second objective, which the Minister has just demonstrated, is for the Government to adopt a more open and frankly more honest explanation when they come across difficulties. We often promise to do things and then realise that they are slightly more complicated to carry out than we had imagined or realised at the beginning. But the best thing to do is to say so, because that builds trust, and one of the most important things in the dialogue about this is to do everything that we can to reinforce that trust and good will, particularly for women and girls at the moment who, all the evidence suggests, are not finding it easy to report crimes to anybody, let alone the police. It is incredibly important that we do everything possible to reinforce that trust and make them more willing to do so.
My contention is that the best way to do that is to be honest about what is going well and what is going less well, and what is working and what is not, rather than to pretend that this is all terribly important and one of our major priorities, while newspaper story after newspaper story and television documentary after television documentary tell us that it ain’t working in the way that the Government try to make us believe that it is.
So I welcome this new spirit of openness. I also welcome the fact that I landed the Minister and her Bill team with no fewer than 14 extremely detailed questions yesterday afternoon to consider. They come directly from the police forces that were earliest in starting to record this data, so they are informed by their experiences, good and bad, and their knowledge of some of the complications. I hope that she found those questions helpful because they get to the heart of some of the complexities that we are trying to deal with. The most important thing is that, when we get to the end of rolling this out, the data produced is reliable, accurate, and helpful to the police and to the Crown Prosecution Service, which is somewhat lagging behind in understanding how to use some of this data in informing prosecutions.
So I am grateful to the Minister and her team for responding positively. When the time comes, I will not test the opinion of the House, as I think we have achieved what we set out to do.
Lord Coaker (Lab)
My Lords, I will speak to a couple of the other Motions before I speak to Motion C1 in my name. I congratulate my noble friend Lord Rooker on securing the government amendment and moving the Government away from their position and coming forward with an amendment. I pay tribute to my noble friend Lord Rooker’s work: he has been an example to us all about how to change legislation. But, to be fair to the Government as well, it was good to see them responding sensibly to the points that my noble friend made; they deserve some credit for seeing sense.
On the important work that the noble Lord, Lord Russell, has done with the noble Baroness, Lady Newlove, and many others on misogyny and other associated issues, I say that he is another example to us all of how to give bring about change. The Minister’s comments at the Dispatch Box today show real progress with respect to that. All of us will want to see the progress that is made, and I was particularly struck by the way that the Minister said that she would keep the House updated. That is particularly important, and I thank her for that.
This is a hugely important issue. Many promises have been made over a number of years and perhaps now, given the horror of some of the things that have happened over recent times, maybe this is a sea-change moment when we will see real progress made—so I again pay tribute to the noble Lord, Lord Russell, and many others.
We support Motion D1, in the name of the noble Lord, Lord Paddick. It is crucial in opposing the Government’s noise provisions as it removes the proposed noise trigger for public assemblies. On the wider question of police powers to put conditions on static protests, this new version of the clause proposed by the noble Lord responds to the concerns raised by Ministers and proposes a compromise in line with the JCHR—but I will leave the noble Lord to say more about his own Motion D1 and I look forward to hearing it.
My Motion C1 maintains our previous position that the noise trigger should be removed in full. Our Amendments 73 and 87 remove the Government’s proposed noise trigger, which would allow the police to put conditions on marches or one-person protests which get not “noisy” but “too noisy”. The Government have still not made the case that the power is proportionate, and the more we ask, the less they seem to know about how it could possibly work in practice. For example, the government Amendments 73C and 87H on “serious unease” show that the Government are still in a hole and still digging in recognising that there are problems with the definition of what “too noisy” means.
To indulge noble Lords for just a few minutes, the new subsection inserted by Clause 56(5) has the wording that
“it may cause such persons to suffer serious unease, alarm or distress.”
The Government propose to take out “serious unease”: that is the compromise. We welcome the word “unease” going, but, of course the Government have also taken out “serious”, so we now have a situation where they have lowered the threshold as a compromise—which is a ridiculous point to arrive at and just the shows the confusion.
As noble Lords know, it is really important to read the background notes to all of this. I thought that I must be reading an old version, but it is dated 28 February 2022, so it is updated. The policy paper is entitled Police, Crime, Sentencing and Courts Bill 2021: Protest Powers Factsheet. The Minister in the other place said that it did not matter that “serious” was missed out, because actually everyone knows that it still means serious, even though it has been taken out of the Bill. So I refer to the background. The policy paper was published by the Government on 28 February. I will use it as an example of the hole that the Government are in in trying to define “too noisy”. They cannot do it. There are breaches of the peace as it stands already—but anyway, let me read this:
“This power can only be used when the police reasonably believe that the noise from the protest may cause serious disruption to the activities of an organisation or cause a significant impact on people in the vicinity of the protest. ‘Impact’ is defined as intimidation, harassment, serious unease”—
which will be taken out, which is fine, but the Government’s own background paper says
“serious alarm, or serious distress with the police then having to consider whether the impact is significant.”
So the background policy paper published by the Home Office is now out of step with the amendment that the Government propose to the Bill. “Serious” is no longer there, so, instead of having “serious unease” and in the same sentence “alarm or distress”—in other words, “serious unease, serious alarm or serious distress”—that has been taken out.
Now I am not an expert on these things, but I would say to noble Lords that I would expect in court that serious distress would be more serious than just distress. Now I am not a genius, but I am also sure that if I were in a court and said that it is serious alarm, that would be a higher threshold than alarm. I may be wrong: I leave that to others to judge. But that is the compromise that the Government have come forward with.
In other words, to come forward with me saying all the things that I will come on to in a minute about other things, they are saying, “We’ve got to say something else, Coaker will be off again”. Well, I am, because it does not make sense. I am using humour to demonstrate a really serious point. By legislating in this way the Government show that they do not know what they are doing on “too noisy”. Instead of retreating in a managed, orderly way, they are panicking—“What do we do? How do we do something? We’ve got to say something”—and they come up with this in such haste that they do not think it through properly and they take the word “serious” out, as well as “unease”. I just say to noble Lords, “It just goes on”.
Of course, we then had the famous double-glazing incident, which many noble Lords said to me afterwards could not be true. I just referred them to the guidance. They went away and read it and said, “Goodness me, it does say double-glazing.” I thought the Government might retreat on double-glazing. For those noble Lords who were not here, for it to be too noisy, there are certain thresholds the Government have laid out, so we can understand what “too noisy” may be. So, for example, it says
“A noisy protest outside an office with double glazing may not meet the threshold”.
So, I posed the question that, therefore, what you would need to do if you were having a demonstration and were going to make a lot of noise would be to look at the street, or the area you were going to be in, and look for double-glazing. You could make sure, because if you were demonstrating in a street with double-glazing, you would be fine, even if you made too much noise. However, if you went down an older street that did not have double-glazing, then you would be in trouble.
I had to read it a few times. I actually read it to my wife and said, “Have I misread this?” She said no. But it is such a serious point: this is what we are asking the police to use. In demonstrations in future, the police will be asked to consider whether a demonstration is too noisy on the basis of the number of houses that have double-glazing. Unbelievable.
I thought the Government would retreat, and then it somehow got into the Times, and it must have been a great headline for the Government—they must have been really pleased—
“Police and crime bill: Noisy protests to be silenced by double glazing inspections.”
That was the headline in the Times of 25 March, if noble Lords missed it. That must have made interesting reading in the Home Office. I would have liked to have been the Minister going to report to the Home Secretary on that. “Who signed it off?” was the question I always asked. I thought the Home Office would retreat, but no. So that is the headline for the article: the double- glazing.
I stress again that I am trying, through humour, to make a really serious point about how noisy is too noisy. So, here we go again. I do not know about noble Lords, but I would have retreated. I am sure the Minister would have retreated as well, had it been up to her—I will leave her to answer that—but instead, listen to this, from the Times.
“The Home Office defended the guidance, insisting that it was one of many considerations that the police may have to take into account … ‘It is perfectly reasonable to suggest the type and construction of a building targeted would impact on the level of outside noise that penetrates through’.”
So we are now getting into the thickness of walls—old buildings, sound-proofed or not—and so it goes on. We have gone from double-glazing to the thickness of walls as to where we can demonstrate.
I highlight again that definition bedevils legislation—I accept that—but we have to be really careful with “too noisy”. Where will it apply? This is something that needs proper investigation. Other hypothetical situations where the “too noisy” provisions would not apply, as well as where there is a lot of double-glazing, would be where a protest
“only lasts a short amount of time”.
You can make as much noise as you want as long as it only lasts a short amount of time. The guidance says that
“the same amount of noise over several days”
might be an issue. So, if you do it for six days, you are all right, but if you do it for several days, you have a problem.
Then listen to this:
“A noisy protest in a town centre may not meet the threshold”.
So the towns are going to be excluded from the “too noisy” provisions. Again, how are the police going to decide what a town centre is? It does not include London, presumably, because that is a city, but does it include a suburb of a city? If it goes into the suburbs of London, is that a town centre? In Nottingham, we call lots of the suburbs “towns”. What is a town centre? It does not apply there. Somebody said to me, “I thought the Government’s levelling-up agenda was about including towns”, but a noisy protest in a town centre may not meet the threshold.
I have given those examples of the guidance the Minister has had to show that the Government are in real trouble on “too noisy”. What the Government are asking us to do is to pass a piece of legislation that has a provision in it that is unworkable, ill-defined, illogical and will not work. That is not the job of legislators. There is controversy, there is difficulty, there is difference of opinion, but silliness and ridiculous legislation is not acceptable.
I just say to finish, before I move to Motion C1, that I know and accept that the Government do not want to ban protest—it is ridiculous to suggest that the Government are against any protest; I do not believe that. Nor do I believe that the Government really want to undermine the ability of people to protest, but I do say this: we should erode that right, even with the application of certain conditions, only with very serious care.
Many people, including me, have protested time and time again, and conditions have been put on those marches. A number of noble Lords have been in Governments that have been the victims of massive demonstrations—I am talking about legal ones. No Government in the past have ever sought to restrict demonstrations on the basis that they make too much noise. Margaret Thatcher did not do it; John Major did not do it; David Cameron did not do it; Theresa May did not do it; why on earth are we doing it now? It will not work; this condition is anti-democratic and it sends a signal to people that is unacceptable. It is an infringement of people’s democratic right to protest and we should reject it again.
Lord Paddick (LD)
My Lords, Motion D1 is in my name, but I shall take the Motions in order. On Motion A, we are pleased the Government have decided to give the Food Standards Agency the Police and Criminal Evidence Act powers that it is seeking.
On Motion B, we do not see the Government’s amendments in lieu, Amendments 72C and 72D, to be any kind of concession, in that the Government are duty-bound to respond to the Law Commission report on hate crimes in any event. We support the noble Lord, Lord Russell of Liverpool, in his Motion B1, Amendments 72E and 72F, that police forces should be forced to record or flag offences aggravated by sex or gender by means of primary legislation set out in the Bill as this is the only practical way to ensure 43 autonomous chief constables comply.
I am not quite sure about the Minister’s arguments about the complexity around sex and gender: in relation to hate crime, it matters not whether the victim is somebody born a woman or is a trans woman, only whether the assailant believed that the victim was a woman and was motivated by hatred of women. I fear the Government are just looking for excuses. Having said that, misogyny is a problem in the police and in society as a whole, and we do need urgent action. With the noble Lord, Lord Russell of Liverpool, the noble Baroness, Lady Newlove, and Stella Creasy MP on the case, progress may be slow, but it is inevitable.
On Motion C, the so-called noise trigger in relation to processions, it is very difficult to follow the noble Lord, Lord Coaker, on that issue, but we agree with his Motion C1 that the noise trigger should not be part of the Bill in relation to processions or static protests, as I will come to in a moment in relation to Motion D. As the noble Lord, Lord Cormack, said when we last considered it, these measures are not sensible or practical. I may be incorrect, but it seems to me that the larger the protest, the more popular the cause, the more likely the protest is to be noisy and therefore the more likely it is to be banned. Only a very unpopular cause, which is not going to be as noisy, will go ahead, if we are not careful.
As Liberty has pointed out in its useful briefing, Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services, the body whose report is relied on by the Government to justify the measures in Part 3, did not examine or support the establishment of a noise trigger. In evidence to the Joint Committee on Human Rights, the National Police Chiefs’ Council lead for public order did not reference or advocate for a new power based on the noise that protests generate. I repeat, outside London—where the chief police officer and her deputy are appointed by the Home Secretary—the majority of police forces said police officer numbers were the limiting factor in effectively policing protests, not a lack of legislation.
On my Motion D1, Amendments 80J and 80G, we continue to be concerned about what the then Conservative Home Secretary said about the difference between processions and assemblies when the original public order legislation was debated in the other place. He believed that giving the police the power to ban an assembly would be an excessive limit on the human rights of assembly and freedom of speech.
Lord Cormack (Con)
My Lords, I intervene briefly, partly because the noble Lord, Lord Paddick, was kind enough to refer to an earlier speech that I had made. I congratulate the noble Lords, Lord Coaker and Lord Russell, who have been able to move things forward in an acceptable way, but I think there comes a point where this House has to have very real regard for its constitutional position vis-à-vis the other place. We were justified in asking the other place to think again and, I believe, justified in asking it to think yet again.
I was approached last week by two Conservative Back-Benchers—I will not name them—and they were keen that we should give them another opportunity to think again, which we did. But the fact is that they have not thought again, not by a majority. Some may have changed their votes, but they did not change the position of the other place. It is my reluctant view, particularly on the noise issue, which I think is rather preposterous, that we should now yield to the other place, but if ever a Bill called for post-legislative scrutiny to examine closely how it plays out on the streets and in the public squares, this is it. I hope there will be a proper opportunity to keep these matters under review, but we should have a mind for our constitutional position, and have regard for the fact that we are not the elected House and there is a point beyond which we should not go.
Baroness Fox of Buckley (Non-Afl)
My Lords, I think the noble Lord, Lord Cormack, is right to raise the important point about our constitutional obligations. I am tentative about what I am going to say because I am anxious not to act in defiance of an elected Chamber, not just for constitutional reasons but because democracy is very valuable, and we should have modesty in relation to our role in this place. However, I do feel that, at the very least, the Government are obliged to untangle some serious confusion about why the legislation in relation to protest is even necessary.
When it was originally introduced, there were grandiose claims that this was the Government responding to public concerns—a real clamour from the public—about dealing with new forms of protest. It is true that there has been a lot of anger in the public realm about new forms of protest. Anybody who objected to the amendments tabled by the Government was dismissed as “ignoring voters’ concerns”—just by objecting, in effect, they were being anti-democratic. Yet now the Minister comes back here and suggests that, in relation to the noise trigger, for example, it is a just a modest update of the law and it will not be used very often. It seems to me that the original motivation for these clauses has been lost, and we have ended up with a disproportionate and unnecessary commitment by the Government to deal with a non-problem.
There is perhaps some confusion because earlier this week, as people will have read in the newspaper, a mum was banned from driving for what was described as “nudging” some Insulate Britain protesters. She was trying to get her 11 year-old to school and was exasperated that the protesters would not move, and that the police were not acting to remove them. There was some popular backlash to the fact that this driver was the person who was prosecuted, and at a meeting I talked to people who said, “Well, the mum is not guilty of dangerous driving. The problem here was the failure of the police to police the protest.” They went on to say, “At least the Government are acting and bringing in a new law that will deal with this sort of thing.” When I explained the nature of the new laws that were being brought in, in relation to noise and static assemblies, they said, “What’s the good of that? That won’t deal with the problem of the mum and the motorway and the protester”, and they are right.
Despite reservations, I support the noble Lords, Lord Coaker and Lord Paddick, in the amended amendments that they have brought back, taking on board the modest comments that have been made. I think that these anti-protest clauses are being mis-sold to the public, who, when it is explained to them, do not see any connection between their clamour and these clauses being brought in by the Government.
If there is an issue with protest, it is possibly that the police have not consistently policed protests that have happened over the last few years with the powers that they have, and there is public concern about that. It seems to me that both these clauses, as illustrated by the points made from the Front Bench, will make the police’s job even more complicated and will compromise them politically because they will be accused of subjective interpretations of what is “too noisy” and what is the threat of a static demonstration. I think the Government will inadvertently help to politicise the police, and make the situation of protests more confusing, and they are not doing what I think they originally wanted to do, which was to assure the public that their concerns about new forms of protest would be honoured in legislation. These parts of the Bill do nothing useful for anyone.
Lord Deben (Con)
My Lords, I do think that we ought to consider carefully what my noble friend Lord Cormack said, but it might lead one to a different conclusion. This House is increasingly treated as if it does not really matter at all. The Government are not taking seriously very simple suggestions, when making them is our job—suggestions to make Acts work properly. Today we have had an example of what the Government can do. I thought the noble Lord, Lord Russell, put that extremely well. The Government have recognised that the sensible, continuous pressure of the House of Lords has brought them to make alterations—not exactly as the noble Lord would like, but a good way in that direction. It is notable that it has taken us all this time to do it.
What worries me—I say to my noble friend Lord Cormack that this is a serious constitutional matter—is that the deal works only if the House of Lords believes that its debates and discussions are useful and taken into account by government. What I have seen here is wholly different. This is nothing to do with my noble friend Lady Williams; it is to do with the Government as a whole. When I was Secretary of State, I would say to my Lords Minister, “These are the five things I need. Those are the 10 things I’d like to have, but if their Lordships produce good arguments for other things, then you must give way to them, because that is the purpose”. What Lords Minister today is able to do that? Yet that was the deal; that was why we were here. This is a really serious issue. It is no good the Government saying in the end, “Well, we’ll just use the majority in the House of Commons to shut you up”, when the arguments we have been bringing forward are not great arguments of state or great arguments which clash; they are about making the law work.
The other change that has taken place in the House of Commons is that Members there do not debate these Bills any longer. They do not have the hours that we used to have. When I was a Member of that House, we used to have to have 100 hours of debate before you could get a guillotine. Now we do not have to have anything like that; guillotines are automatic. So if this House does not do its job and discuss these things in detail, they will not be discussed at all. That is the constitutional issue we face today.
I will address only the one thing which I think is very clear. It is incomprehensible to have a law which gives the police the right to stop a protest because it might be too noisy. The Notes of course make it ludicrous. I am very worried about the domestic arrangements of the noble Lord, Lord Coaker, if the only thing he can discuss with his wife is the laws as presented by this Government. If I started to discuss those with my wife, I think my domestic arrangements would be very unsuitable. I merely say that the reason you go on a protest is to draw attention to something. The noble Lord rightly said, and I think I said it myself when I intervened previously, that the more popular the cause, the more likely it is that there will be noise. If I had a protest about the unfair treatment of chihuahuas, I might not get many people with me and I probably would not be stopped—but a protest on, for example, the unsatisfactory dealings with Ukrainians coming to this country might raise huge numbers. Do the chihuahuas get a campaign but the Ukrainians do not—and who makes that decision?
Lord Cormack (Con)
I am most grateful. My noble friend makes a very powerful speech and makes it very sensibly. However, I would just point out that, at the time he was giving instructions and saying, “There are five things I want, but others I’ll give way on”, the House of Lords was a very different place. It had a massive, built-in hereditary Tory majority.
Lord Deben (Con)
I do not think that helps the issue. All that says is that we are a different place because Parliament has decided that we should be. I am not sure that we are necessarily a better place; I would not like to draw attention to that. I am merely saying that we are a place and that we are here to make certain kinds of decisions. I have more sympathy for my noble friend the Minister than I do for almost any other Minister and I admire her enormously—which is why I really find this difficult. I really wanted to be able to say today that I support the Government, but I cannot, as somebody who came into this House saying that I would concentrate on Europe—that has been difficult—the environment and human rights. One of the first human rights is that I can walk with lots of other people to say that something is wrong. For the police to have the powers to say that we cannot, because it might be too noisy, is wrong.
Baroness Wheatcroft (CB)
My Lords, I am very grateful to the noble Lord, Lord Deben, for voicing the fears which I suspect many in this House share. The Government’s majority at the other end, coupled with the attitude of the Executive, would render this House redundant if it could. Today we have seen the possibility of negotiation on a couple of amendments. However, as the noble Lord, Lord Deben, and the noble Baroness, Lady Fox, have said, the right to protest is absolutely crucial to human rights. That the Government should be taking the power, even only possibly, to curtail that right is surely something that this House should fight against.
I completely agree with the noble Lord, Lord Cormack, that there are conventions—there are—and, when dealing with conventional legislation, I have no doubt that we should abide by those conventions. But, as far as I can see, this Government are determined to take powers that are, in our democracy, unconventional. I therefore believe that it is not just our right but our duty to keep trying to tell them that up with this we will not put. They may not intend to use these powers—although quite what the Home Secretary intends is anybody’s guess; certainly not to let in Ukrainian refugees, as far as I can see—but, once they are on the statute book, another Government could. It therefore seems to me that there is no doubt about it: we should hold our ground, not on every amendment that this House passes but on those where we believe we have a real duty to stand up for the democratic rights of the country.
Baroness Jones of Moulsecoomb (GP)
My Lords, I shall speak to Amendments C1 and D1. As usual, I really enjoyed the contribution from the noble Lord, Lord Coaker, because he drew attention to the fact that the Bill is badly written. We knew that when it arrived, which is why it has had so many amendments here in your Lordships’ House. It is still badly written, and it is our duty not to let badly written Bills through. They lay themselves open to court cases and all sorts of potential miscarriages of justice. I personally think that the Government are holding this House in contempt, and that is why they produce so many badly written Bills. Because they have a huge majority in the other place, they can afford not to care about how the Bills are written or about their content.
The noble Lord, Lord Coaker, also said that he did not think the Government were trying to suppress protest. I do not agree with him there, because I think they are. Protests are expensive in terms of police time and clearing up afterwards. They are very disruptive and are almost always anti-Government, so why would the Government not try to suppress them? But they are necessary for free speech and a necessary part of our democratic process. I love demonstrations because they are a chance to meet people who agree with me, which is sometimes a rarity.
Not only is this Bill an assault on freedom of speech and democracy, it clearly should not be passed. It is badly written, and it has bad content. You cannot have a vague and wide-ranging definition of which protests are likely to be too noisy or disruptive. It will be a subjective judgment made by police officers with their own biases. Do not forget that: police officers are human beings as well, and they will have innate biases. As we have heard from the noble Lord, Lord Paddick, the police do not even want these powers anyway. Those of us who believe in clear laws that can be challenged in court do not want them either.
I have been elected five times—once to Southwark Council under first past the post and four times to the London Assembly under proportional representation—so I understand what it is to have a democratic mandate. I understand to some extent the Government’s point of view, who feel they have a big mandate and the right to push things through, but I also understand that this unelected Chamber has a mandate of another kind. Although I love being here, I am not happy about being part of an unelected Chamber; it offends me deeply and I would like it to be abolished so we have an elected Chamber. However, we have a mandate to look at legislation and improve it where we can. As other noble Lords have said, the Government are not listening to us; they do not take into account the expertise—I do not count myself among the experts—that we have here. They do not listen to us.
To protect civil liberties, we have to send this Bill back. I have been assured by a few who have been in this House for decades that ping-pong used to last much longer and that Bills got sent back again and again until this House was happy that legislation was expressed properly and clearly. We really should ask MPs to look at this again and think about whether this is good for democracy in this country. The noble Lord, Lord Cormack, said we should stop and look at it later. No: let us get it right now.
Viscount Stansgate (Lab)
My Lords, I know the House is anxious to move to a vote, although I am here to support my noble friend’s Amendment C1. He used great humour to serious effect, but when I think of how this debate will be viewed when we look back on it, I think the point raised by the noble Lord, Lord Cormack, will be at the very heart of what we are discussing. Yes, there is the incident case of the legislation, but it is the nature of the relationship between this House and the other place that is at the heart of what we are here to do. I much admired the comments of the noble Lord, Lord Deben, and others who have raised this.
If the noble Lord, Lord Cormack, and I were playing ping-pong, there is, as far as I know, no constitutional limit to the number of times we can bat backwards and forwards, as the noble Baroness just mentioned. The noble Lord says we should call a halt after two attempts, but I think there is a different way of looking at it and we should send this back again. There is time. I do agree with the comments made by people with great experience of both Houses that the amount of time the House of Commons devotes seriously to legislation is—I will not say a disgrace—very little. In many cases, many Members I know who go through the Division Lobbies to overturn amendments we have made in this House could not tell you what they are about. They really could not. So, there are good reasons for taking this question on noise seriously and asking the House of Commons to think yet again.
Baroness Williams of Trafford (Con)
My Lords, I thank all noble Lords who have spoken in this debate. I thought I would start by talking about time on debates. This House does spend time on debate. We have gone on until 2 am, 3 am and, once, 4 am in debate. We do not curtail it.
The Government have given way on this Bill in a number of ways. I am very glad my noble friend Lord Cashman—he is my noble friend—is in the Chamber because one thing we have worked on over far too many years is the disregards for historical offences by LGBT people that are no longer offences today. I am incredibly proud that we have secured that through this Bill. To go back to the point from my noble friend Lord Deben about the Secretary of State saying which things they want to get through, I am not going to try to thwart the will of the Home Secretary; I approached her personally on this matter. She had no hesitation in giving way and helping us promote that through this House. I am very glad it has gone through already. We have short memories sometimes; we forget what has gone through on Report. Just this morning we conceded on the PACE powers, and what we are down to is the sticking point on two matters—powers that are vested in the police, not the Home Secretary.
I am pleased that Amendments 58C to 58E have found favour with the noble Lords, Lord Rooker and Lord Coaker, and I am very grateful to the noble Lord, Lord Russell, for his very constructive approach to the issue of the police recording offences aggravated by sex or gender. I do think, through this Bill—not legislatively but through a practical solution—that we have a good way forward. We can all agree the outcome we want to see, which is the collection of data that is usable, useful and consistent. I have outlined that it is not straightforward. I also acknowledge the detailed questions he sent to us yesterday afternoon. I am afraid that, in the short time available, we have not had the chance to consider them, but we will do so and provide him with answers as soon as possible and keep the House updated.
The two outstanding public order measures have been subject to extensive debate and scrutiny in this House and the other place for close to 13 months. The noble Lord, Lord Coaker, asked whether removing “serious unease” risks watering down the threshold, as the qualifier “serious” will no longer apply to alarm or distress triggers. That is not the case: the adjective “serious” can be applied only to the unease trigger, not to the alarm or distress triggers. He seeks to caricature these provisions with his point about double-glazing. The House found him very amusing, but it is not a double-glazing test. The Bill provides that, in determining whether the level of noise may have a significant impact on persons in the vicinity of a protest, the police must have regard to, among other things, the likely intensity of the impact.
The factsheet we have published to aid understanding of these provisions is not guidance for the police. A noisy protest outside a building with double glazing will have less of an impact on the occupants of that building than if there is no double glazing. That is a statement of the obvious but is a matter of judgment for the police on a case-by-case basis. The tests to be applied are clearly set out in the Bill and the police are well versed in applying similar tests in other contexts. The elected House has now reconsidered the amendments on public order a second time and has insisted on its disagreement with the relevant Lords amendments, but in the spirit of compromise it has put forward a constructive amendment to address concerns about the drafting of these provisions. I urge the House to accept this amendment.
I assure my noble friend Lord Cormack that in the normal way, this Bill will be subject to post-legislative scrutiny three to five years after Royal Assent. On the issue raised by the noble Baroness, Lady Fox, the Bill also increases the maximum penalty for obstructing the highway. To answer my noble friend Lord Deben, we have honoured the deal. The Government have listened in so many ways on this Bill, as I have illustrated with a couple of examples, but part of this deal is that ultimately, the views of the elected House should have primacy. I say to the noble Baroness, Lady Wheatcroft, that, as I said earlier, the powers are vested not in the Home Secretary but in the police.
I note that the noble Lord, Lord Paddick, has also put forward his own compromise Amendment, 80J, which would enable the police to set conditions prescribing the start and end times of an assembly, as proposed by the Joint Committee on Human Rights. In our response to the JCHR report, we quoted from the HMICFRS report on the policing of protests, which said that
“protests are fluid, and it is not always possible to make this distinction”
between assemblies and processions.
“Some begin as assemblies and become processions, and vice versa. The practical challenges of safely policing a protest are not necessarily greater in the case of processions than in the case of assemblies, so this would not justify making a wider range of conditions available for processions than for assemblies”.
Given the findings of HMICFRS and the evidence provided by the police, we continue to believe that it is necessary and proportionate to ensure that the police have the power to place the same conditions on assemblies that they do on processions, and in addition to specifying the start and end time of—
Baroness Butler-Sloss (CB)
I am sorry to interrupt the Minister. What is the point of a factsheet if the police are not to take account of it?
Baroness Williams of Trafford (Con)
My Lords, it is intended to be helpful. Going back to something the noble Lord, Lord Blunkett, said at Second Reading, which seems like an age ago now, we must provide clarity to the police. I totally agree with the points he made then.
Given the findings of HMICFRS and the evidence provided by the police, we still think it necessary and proportionate to ensure that the police have the power to place the same conditions on assemblies as they do on processions. In addition to specifying the start and end time of an assembly, as provided for in Amendment 80J, or the place where the assembly may take place and the maximum number of participants, as the 1986 Act currently provides for, it should be left to the operational judgment of the police to apply other necessary conditions—for example, conditions prohibiting the use of lock-on equipment where this could cause serious disruption to the life of the community.
This House has fulfilled its responsibilities as a revising Chamber, and I commend noble Lords for the time they have taken in scrutinising the Bill. It is now time for this Bill to pass.
Baroness Williams of Trafford
That this House do not insist on its Amendment 72B and do agree with the Commons in their Amendments 72C and 72D in lieu.
“Response to Law Commission report on hate crime laws
(1) The Secretary of State must, before the end of the period of 12 months beginning with the day on which this Act is passed—
(a) prepare and publish a response to Recommendation 8 of the Law Commission report on hate crime (adding sex or gender as a protected characteristic for the purposes of aggravated offences and enhanced sentencing), and
(b) lay the response before Parliament.
(2) In this section “the Law Commission report on hate crime” means the Law Commission report “Hate Crime Laws” that was published on 7 December 2021.”
“(ka) section (Response to Law Commission report on hate crime laws);”
Baroness Williams of Trafford
That this House do not insist on its Amendment 73, to which the Commons have disagreed for their Reason 73A; do not insist on its disagreement with the Commons in their Amendment 74A to its Amendment 74, on its Amendment 74B to that Amendment in lieu, or on its con- sequential Amendments 74C, 74D, 74E, 74F and 74G; do not insist on its Amendment 87, or on its disagreement with the Commons in their Amendments 87A, 87B, 87C, 87D, 87E and 87F to the words restored to the Bill; and do agree with the Commons in their Amendment 73C to the words restored to the Bill by their disagreement with Lords Amendment 73 and in their Amendment 87H to the words restored by their disagreement with Lords Amendment 87.
Baroness Williams of Trafford (Con)
I beg to move.
Motion C1 (as an amendment to Motion C)
Lord Coaker
Leave out from “House” to end and insert “do insist on its Amendments 73, 74B, 74C, 74D, 74E, 74F, 74G and 87, do insist on its disagreement to Commons Amendments 74A, 87A, 87B, 87C, 87D, 87E and 87F, and do disagree with the Commons in their Amendments 73C and 87H”
Baroness Williams of Trafford
That this House do not insist on its Amendment 80, do not insist on its disagreement with the Commons in their Amendments 80A, 80B, 80C, 80D, 80E and 80F to the words restored to the Bill by their disagreement with that Amendment, do not insist on its Amendment 80G instead of the words left out by that Amendment and do agree with the Commons in their Amendment 80H to the words restored to the Bill by their disagreement with Lords Amendment 80.
Baroness Williams of Trafford (Con)
I beg to move.
Motion D1 (as an amendment to Motion D)
Lord Paddick
Leave out from “House” and insert “do insist on its Amendment 80 and on its disagreement with the Commons in their Amendments 80A, 80B, 80C, 80D, 80E and 80F, do disagree with the Commons in their Amendment 80H, and do not insist on its Amendment 80G but do propose Amendment 80J instead of the words left out of the Bill by Amendment 80—
“Imposing conditions on public assemblies
(1) Section 14 of the Public Order Act 1986 (imposing conditions on public assemblies) is amended as follows.
(2) In subsection (1), after the third “held,” insert “the time at which (but not the date on which) it is to start and conclude,”.
(3) After subsection (2) insert—
“(2A) For the purposes of subsection (1)(a), the cases in which a public assembly in England and Wales may result in serious disruption to the life of the community include, in particular, where—
(a) it may result in a significant delay to the supply of a time- sensitive product to consumers of that product, or
(b) it may result in a prolonged disruption of access to any essential goods or any essential service, including, in particular, access to—
(i) the supply of money, food, water, energy or fuel,
(ii) a system of communication,
(iii) a place of worship,
(iv) a transport facility,
(v) an educational institution, or
(vi) a service relating to health.
(2B) In subsection (2A)(a) “time-sensitive product” means a product whose value or use to its consumers may be significantly reduced by a delay in the supply of the product to them.”
(4) After subsection (10A) (as inserted by section 57(11)) insert—
“(11) The Secretary of State may by regulations amend subsection (2A) or (2B) for the purposes of making provision about the meaning for the purposes of this section of serious disruption to the life of the community.
(12) Regulations under subsection (11) may, in particular, amend either of those subsections for the purposes of—
(a) defining any aspect of that expression for the purposes of this section;
(b) giving examples of cases in which a public assembly is or is not to be treated as resulting in serious disruption to the life of the community.
(13) Regulations under subsection (11)—
(a) are to be made by statutory instrument;
(b) may apply only in relation to public assemblies in England and Wales;
(c) may make incidental, supplementary, consequential, transitional, transitory or saving provision, including provision which makes consequential amendments to this Part.
(14) A statutory instrument containing regulations under subsection
(11) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.””
Judicial Review and Courts Bill
Thursday 31st March 2022
(2 years, 8 months ago)
Lords ChamberRead Full debate Judicial Review and Courts Act 2022 View all Judicial Review and Courts Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 120-I Marshalled list for Report - (29 Mar 2022)
14:15 - Division on Amendment 1 - Ayes: 148 / Noes: 143 - Amendment 1 agreed.
14:28 - Division on Amendment 4 - Ayes: 159 / Noes: 134 - Amendment 4 agreed.
15:18 - Division on Amendment 5 - Ayes: 146 / Noes: 132 - Amendment 5 agreed.
16:44 - Division on Amendment 25 - Ayes: 136 / Noes: 112 - Amendment 25 agreed.
Member’s explanatory statement
This amendment, and others in the name of Lord Marks to Clause 1, would remove the power to include provision in quashing orders removing or limiting their retrospective effect (“prospective only quashing orders”).
Lord Marks of Henley-on-Thames (LD)
My Lords, Amendments 1 to 3 in my name remove the power to make a quashing order prospective only or otherwise to limit its retrospective effect. These amendments replicate amendments tabled in Committee by the noble Lord, Lord Pannick, who unfortunately already had commitments abroad for today when I put down these amendments and so cannot be here.
This debate is not about the power to suspend a quashing order, which in some cases, we agree, may be a reasonable step. However, that is a far cry from a court on the one hand deciding that government action or regulation is unlawful, so that the court is going to make a quashing order, but then on the other hand being empowered to say that past unlawful action must stand, just as if it had been lawful. That is the effect of new subsection (4), which says that
“the impugned act is … upheld in any respect in which … subsection (1)(b) prevents it from being quashed”,
and of new subsection (5), which says that
“it is to be treated for all purposes as if its validity and force were, and always had been, unimpaired by the relevant defect.”
That is to validate unlawful action that the courts find expressly contravened the law—usually law made by Parliament.
I do not accept that the principle that unlawful action or regulation should be quashed ought to be abandoned simply because there may be hard cases for those who had relied on the law, as they wrongly believed it to be, and may be wrong-footed by the decision that the Government had acted unlawfully. In that category falls the songwriters’ case in 2015, mentioned in Committee by the noble Lord, Lord Anderson of Ipswich, where those who had innocently copied CDs in the belief that they were entitled to do so were found to have acted on the basis of an unlawful regulation.
Such hard cases may be addressed either by administrative action, where unlawful activity before the law was clarified would go unpunished, or by a suspended quashing order, as the noble and learned Lord, Lord Falconer, and I argued in Committee, giving Parliament the chance to correct any possible injustice, if necessary retrospectively. After all, it is for Parliament to change the law, as the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Falconer of Thoroton, pointed out—not for judges to decide to overlook a failure by government to comply with the law’s requirements.
That completely solves the dilemma described in Committee by the noble and learned Lord, Lord Hope of Craighead, in respect of the case of Ahmed, a terrorist asset-freezing case. The noble and learned Lord specifically suggested in that case that a suspended order would give Parliament the time to introduce fresh, lawful regulations.
Even more important to be weighed in the balance than the risk of hard cases are the fundamental principles that underly judicial review: that government must act within the law, that there must be remedies to correct unlawful action and that judicial review is public law in action. Orders made on judicial review are for everyone, not just the applicant before the court but all affected citizens, past, present and future. Many potential applicants cannot afford to apply for JR or simply do not know they can or how to go about it, yet this proposal would expose them to the consequences of unlawful executive action, even if a later challenge by a better-funded and more savvy litigant succeeded. If enacted, this new subsection would fire the starting gun on an unseemly race for justice.
It cannot be right for judges to be able to find that, for example, a tax was unlawful and in excess of power, yet to hold—after thousands of citizens may have paid that tax—that they will quash the unlawful regulation but that, because the sums involved were low, it would be disproportionate to repay all those who have paid, and so quash it only prospectively, leaving those who have already paid the tax cheated and out of pocket.
That is not the end of it. What about those who have not paid up? The unlawful regulation and the unwarranted demands remain effective for them, treated, in the words of new subsection (5),
“for all purposes as if its validity and force were, and always had been, unimpaired by the relevant defect.”
The Minister’s only answer to this conundrum in Committee was that it was
“almost incomprehensible that a court would use”
the power
“where people have paid taxes that were necessarily unlawfully raised”.—[Official Report, 21/2/22; col. 68.]
That is no answer, especially in the light of the presumption that the courts should generally exercise the power. The only respectable answer is not to give them the power.
In the environmental field, this power would probably put us in breach of our international obligations. We are bound by Article 9 of the Aarhus convention of 1998 to accord to all members of the public with a sufficient interest the right
“to challenge acts and omissions by … public authorities which contravene … national law relating to the environment.”
We are further bound by paragraph 4 of the same article to provide them all with “adequate and effective remedies” for infringement. Environmental law is central to public law and frequently the subject of judicial review. We would not be complying with the convention by denying members of the public who do not get in first the right to enforce the law. That is what prospective-only quashing orders would do. I doubt that such orders can be an adequate remedy.
Furthermore, in a case involving judicial review of unlawful executive action breaching a citizen’s rights under the European Convention on Human Rights, this new subsection seems to run the risk of being a denial of the citizen’s Article 13 right to an effective remedy. That article guarantees that:
“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority”.
I suggest that an effective remedy is denied to a citizen whose right of action is stymied because some other litigant who was quicker off the mark in the race for a remedy has previously been granted a prospective-only quashing order.
This is not, as it has been described by the Government, a case of a harmless discretionary power in the judicial toolbox. It is a case of handing to judges the power to validate actions of the Executive that the court finds violated the laws passed by Parliament.
I will say very little about the presumption that is the subject of the amendment in the names of the noble Lords, Lord Anderson of Ipswich, Lord Pannick and Lord Ponsonby of Shulbrede, and the noble and learned Lord, Lord Etherton. I add only this to what I said in Committee: the presumption makes the denial of justice inherent in Clause 1(1) that much worse because, however many times the Minister may describe this as a “low-level” presumption and seek to persuade your Lordships that judges will always find ways not to implement it, the fact remains that it sets a default position to which conscientious judges are bound in law to adhere. In the absence of a finding of good reason not to do so, and provided that “adequate” redresses are offered
“in relation to the relevant defect”,
the court must both suspend a quashing order and remove, or limit, its retrospectivity. One is entitled to ask: “adequate redress” for whom? What does that expression mean, especially for the luckless loser in the race for justice which I mentioned? I do not believe that, to date, the Minister has given an adequate response. I beg to move.
Lord Etherton (CB)
In the absences of the noble Lord, Lord Anderson of Ipswich, who has unfortunately caught Covid, and the noble Lord, Lord Pannick, I shall speak to Amendment 4. This would remove subsections (9) and (10) of the proposed new Section 29A of the Senior Courts Act 1981. This amendment is supported by the Law Society, the Bar Council, the Bingham Centre for the Rule of Law and the Public Law Project.
Subsections (9) and (10) are not based on any recommendation from the Independent Review of Administrative Law chaired by the noble Lord, Lord Faulks. Subsection (9) is either constitutionally dangerous or unnecessary. It reads like a straightforward presumption in favour of making one of the two new quashing orders—a suspended or prospective-only quashing order. If that is a correct reading, it will be for the courts to say what its proper interpretation is. Subsection (9) is constitutionally dangerous and inappropriate as providing a precedent for interference by the Executive with the exercise of judicial discretion. Furthermore, it is contrary to the rule of law in so far as it limits the remedies which are available to set right the unlawfulness of conduct by the state.
In Committee, the Minister said that subsection (9) is not a presumption in the sense of
“trying to fetter judicial discretion or to steer … the courts to a particular decision.”
He said that it will be
“up to the court to decide what remedy is appropriate in the individual circumstances of the particular case”,—[Official Report, 21/2/22; col. 93.]
and that the court’s choice of remedy will, in this case as in others, be guided by what is in “the interests of justice”.
One must ask what the purpose of subsection (9) is. Is it necessary at all? The Minister explained that its purpose is to encourage the development of jurisprudence applicable to the new quashing remedies by requiring the court to consider those remedies positively. If subsection (9) is not, as it appears to be, a straightforward presumption, there is absolutely nothing in the wording of the subsection to support the Minister’s explanation as to its purpose. It is completely unnecessary, following the Minister’s interpretation, because the court is bound to take into account all the circumstances and remedies available in the case of unlawful conduct by the state, and taking into account all the “relevant” matters is specifically required by subsection (8).
Moreover, whatever the reason for the presence of subsection (9), it will encourage further litigation by way of appeal, as it introduces the hard-edged test in subsection (9)(b) that one of the new quashing orders
“would, as a matter of substance, offer adequate redress in relation to the relevant defect”.
That is a hard-edged test and not a discretion. It plainly raises the possibility of widespread disagreement. In short, no good purpose is served by subsections (9) and (10)—only bad purposes—and they should be removed.
Lord Faulks (Non-Afl)
My Lords, Clause 1 gives judges a new power. I suggest that this is a power which enables them to do justice better between the parties, and to avoid some of the hard edges which currently obtain. Remedies in judicial review have always been discretionary. Nothing about this clause changes that; it simply gives judges an extra club in their bag. It is notable that the clause is shot through with the word “may”.
The clause—the presumption apart—has survived scrutiny by the Bingham Centre for the Rule of Law on rule of law grounds. It has been welcomed by many judges. Despite what the noble Lord, Lord Marks, said, it is not obvious to me what the problem is with it. On re-reading some of the speeches at Committee, a lot of the opposition to the clause was on the basis that it gave the judges too much power. It is something of an irony that the rhetoric against the Government’s plans in respect to judicial review was that they were intending to clip judges’ wings in an executive power grab. Now the objection is that judges will have too much power and will make inroads into what has sometimes been described as the “metaphysics of nullity”.
I assure your Lordships that the Independent Review of Administrative Law was genuinely independent. I suppose that I might be regarded as having a political bias, but no such allegation could be made against my fellow panellists. It is unfortunate that the Labour Party oppose this clause in its entirety—this looks a little bit like political posturing. I very much hope that the House will not be divided on this.
The most compelling argument in favour of the clause can be found in the article published in the Times last week by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, which I hope that many of your Lordships have read. The noble and learned Lord is in his place today but, as I understand, he may not speak because he cannot be here throughout the entire debate and, with a great adherence to the customs and practices of your Lordships’ House, he will not necessarily intervene. His cri de cœur at the end of the article was to regret that the power which is given by this Bill in Clause 1 had not existed when he was sitting in the Supreme Court in HM Treasury v Ahmed. Indeed, it is unfortunate that it was not.
The objection to the presumption is, on the other hand, much more understandable. There seems to be two points: does it fetter the judge’s discretion and, if not, does the presumption add anything? I am not convinced that it will fetter the judge’s discretion. He or she will be able to grant the relevant remedy so as to do justice in the particular case. I do not expect a judge to come to a conclusion which he or she would not have reached because of the existence of this rather weak presumption. Putting myself in the position of the hypothetical judge, I would not be diverted. Our judges are made of much sterner stuff.
So why have the presumption in the clause at all? I have struggled a bit with this. The clause does give the judge more flexibility; perhaps the presumption is doing no more than reminding the judge of the new power. I was reminded slightly of the old television advertisements for washing powder. There is only so much you can say about the quality of washing powder once you have emphasised that it washes white, or whiter still, or whiter than other soap powders. Consequently, advertisers used to draw the viewers’ attention to “a new added ingredient”. That is perhaps what the presumption is there for. However, I think that Clause 1 will survive without it.
Baroness Jones of Moulsecoomb (GP)
My Lords, as I have reminded your Lordships’ House before, I have no legal training and so I will use very simple language here.
I have a huge amount of respect for the noble Lord, Lord Wolfson, and I just cannot believe that he is going to convince the House that the Government are right on this because even from a simple point of view, which is what I am going to express, it seems an unjustified attack on the rule of law. Clause 1 is wrong in essence. The noble Lord, Lord Faulks, mentioned an extra club in the bag for judges. I immediately thought of one of the clubs that early humans would have carried around to kill wolves or whatever, but of course he meant a golf club. I can see that he might think an extra golf club is useful, but judges do not need it. Judicial reviews are already difficult, by design, to bring. There are very short timescales in which any claimant can initiate proceedings, and this will reduce the impact on certainty of decision-making. The Government want these hurdles to still be in place, making it hard to win a claim, but now even if you win there is almost no point in bothering.
Restricting judicial reviews in this way will undermine good government. It prevents justice for people who have been done wrong by public authorities, and it lets wrong decisions stand, even where those decisions were unlawful, irrational or procedurally unfair. Democracy goes only so far. Without being tied to the rule of law, we face the tyranny of the majority and an elected dictatorship, which, I argue, is what we have already. My noble friend and I will vote for all these amendments, as unlawful decisions must not be allowed to stand unchallenged.
Lord Judge (CB)
My Lords, I am in the happy position of having somebody agree with me on every point—but not everybody agrees. The Minister is a remarkable advocate. If he came to my home and we had a family cat, after he had spoken for about two minutes the cat would be convinced that if it wanted a fish, it should dive deep down into the sea, find one at the bottom and bring it out.
The Bill provides a new, additional remedy, and it is a very wise step. Can we please consider situations in which judicial review is involved? A massive judicial review proceeds against—it does not matter who—the Government, a ministry, a local authority, and at the end of the hearing the judge finds there is no unlawfulness about this, that and the other, but yes, there was a moment when the decision-making process was flawed because a small procedural step was not taken. It should be open to the court, having listened to arguments on both sides, to say that that procedural irregularity, although demonstrated, has not affected anybody and therefore the order will not be quashed so all the matters that were in argument can proceed. I see no difficulty about that.
My real problem is that I am very troubled about the way in which the new remedy is circumscribed with the presumption. It gives the opportunity for inaction to the wrongdoer. The Minister said that there is not a very heavy presumption, not much to make a fuss about, besides which there is the development of new jurisprudence—I love the idea of the Government wanting judges to develop new jurisprudence in the field of judicial review and I am very grateful to the Minister for that offer—but the only thing expressly required of a judge considering judicial review is to apply the presumption. Why is there not a presumption or a consideration that says that the judge must look at how determined the wrongdoer was to persist in his unlawful action? That would a consideration too, would it not? There is none of that in the Bill—it is just simply this presumption. I respectfully suggest that it is a heavy presumption, because it is the only one which appears in the Bill or which directs the court to a particular starting point.
As for the specialist judges—and they are specialist judges—the idea that they will not know about this new remedy and consider it is simply barking. Even if the judge had a bad moment and forgot about it, can you imagine any advocate acting for the wrongdoer who wished to have the order stand not drawing his or her attention to the presumption and saying, “This is the starting point, my Lord”? The judge will wake up and think about it. To enact legislation to encourage judges to develop jurisprudence is, if I may say so, one of the least good arguments that the noble Lord, Lord Wolfson, has offered in his whole forensic career.
Judicial review is a discretionary remedy. The judge, having considered whether unlawfulness has been established —that is the first question and let us not overlook it—finds that it has. He then examines the nature of the unlawfulness. Is it fundamental? Is it procedural? Is it important procedural? Is it minimal procedural? Then he or she reflects on all the considerations that have come to bear—in other words, all the facts of the case—and makes a decision. Judges really do not need to have more than the broad discretion that judicial review has always offered, and which has made it one of the most fantastic developments in our administrative law in my professional career.
Lord Sandhurst (Con)
My Lords, I oppose these amendments. The power to make a prospective quashing order brings clear benefits. Such an order has more teeth than a mere declaration that a Secretary of State has acted unlawfully. It would be able to indicate that regulations will be quashed within a certain time from the date of judgment unless the Secretary of State in the meantime has properly performed his statutory duties and considered in the light of that exercise whether the regulations need to be revised and, if so, in what form. It is hard to see why that is not beneficial.
Further, the ability to make such orders will be especially useful in high-profile constitutional cases where it would be desirable for the court explicitly to acknowledge the supremacy of Parliament, and in cases where it is possible for a public body, given time, to cure a defect that has rendered its initial exercise of public power unlawful. I note that in his powerful piece in the Times last week, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, wrote that he strongly supported giving the court these powers. As he explained, these powers are not quite so radical as some suggest and, as we have heard, judicial review has always been a discretionary remedy.
The noble and learned Lord pointed out that
“high-profile cases well illustrate how discretion may properly be exercised against giving relief that would have disproportionate consequences for past events”.
He pointed to two examples:
“In Hurley and Moore … in 2012 the Divisional Court declined to quash the ministerial order permitting universities to increase student fees to £9,000. Quashing, the court said, ‘would cause administrative chaos’”.
He also explained that as long ago as 2005 in the House of Lords, in the case of Re Spectrum, seven of the court
“recognised that prospective overruling of erroneous decisions could be necessary”—
I stress that word—
“in the interests of justice where the decision would otherwise be ‘gravely unfair and (have) disruptive consequences for past transactions or happenings’. Although it was not exercised in that case, the power was recognised by five”
members of the court. It will ensure sensible, good administration. It will not bring injustice. These are real benefits.
As for the presumption, I have listened carefully and with the greatest respect to the noble and learned Lord, Lord Judge, but on this occasion I must differ from him. It is only a presumption; it means merely that the court must start from there. It is, as my noble friend Lord Faulks explained, a flag; it points it out; it reminds the court. It does not impose a destination. If there is good reason not to make such an order, the court will be obliged to follow its conscience and depart from the principle—but, if there is not good reason, why should there be a problem? In short, the court is simply prompted to do what good reason dictates.
This clause does not damage the rule of law. It is reasonable and just.
Lord Ponsonby of Shulbrede (Lab)
My Lords, the Labour Party supports the amendment from the noble Lord, Lord Anderson, to remove the statutory presumption and make it clear that judicial remedies should be restricted in this way only in exceptional circumstances. The clause’s effect would be for courts to have less power to provide redress or to compensate those affected by past uses of the unlawful decision. At first glance, that might seem quite a small change to judicial review, but the effects, we believe, would be chilling.
There is widespread opposition to the clause, and the noble and learned Lord, Lord Etherton, quoted a number of the well-respected groups who oppose it. The noble Lord, Lord Marks, cited in particular environmental groups that are worried about the potential effects of the Government’s proposals. I listened very carefully to the noble Lord, Lord Faulks. It is my understanding that the Independent Review of Administrative Law did not recommend prospective-only remedies; it did not recommend presumption for suspended quashing orders; it did not recommend imposing on the courts a list of factors to determine their use; and nor did it recommend ouster clauses. Even the Government’s own consultation paper conceded that a prospective-only quashing order would impose injustice and unfairness on those who have reasonably relied on its validity in the past.
Suspended and prospective quashing orders offer delayed and forward-only remedies. Such remedies could allow environmentally damaging activities to continue in the period between a contested decision and the taking effect of a suspended or prospective-only quashing order.
I listened to the debate with great interest. It was particularly interesting to hear senior lawyers and former judges disagreeing on the points which we have just heard. The noble and learned Lord, Lord Judge, as is typically the case when he speaks, very simply explained his perspective. I think his point was that judges already have broad discretion. They do not need a presumption. A presumption is the only guidance put in the Bill and it is not necessary. He went on to laud the huge benefits we have seen through judicial review and seemed to think that the guidance of the word “presumption” in the Bill would be disproportionately influential, if I may put it like that. That was contested by other noble Lords, including the noble Lord, Lord Sandhurst, but surely if that serves as guidance in the Bill, it will be followed unless there is good reason not to—that is the way I understand it.
So we will certainly support the amendment in the name of the noble Lord, Lord Anderson. We will also support the noble Lord, Lord Marks, if he chooses to press any of his amendments to a vote. We see the amendment from the noble Lord, Lord Anderson, as a compromise amendment that is more in the spirit of the recommendations of the independent review. Nevertheless, the more profound points made by the noble Lord, Lord Marks, are views which we would support if he chose to press his amendments to a vote.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, I begin by wishing the noble Lord, Lord Anderson, well and the noble Lord, Lord Pannick, a safe trip home.
This clause aims to reform remedies on quashing orders in judicial review proceedings so that more flexibility is available to the courts. As my noble friend Lord Faulks noted in Committee, the key for the Independent Review of Administrative Law was that there should be some flexibility to stop some of the “hard edges” that can arise with a quashing order, which operates ab initio, such that the decision is struck down with retrospective effect. This clause is designed to do just that.
I am grateful to the noble and learned Lord, Lord Judge, for his kind words—dare I say that I wish his cat well?—but I confess that I think he expressed the reasons for the remedial flexibility better than I will. I shall come to the presumption point on which we regrettably differ a little later.
The proposed effect of the clause is twofold. First, it allows for the effects of a quashing order to be suspended, or delayed, for a period. Secondly, the clause enhances the flexibility of the court in allowing it to decide whether the retrospective effect of a quashing order should be removed or limited—that is what we are calling a prospective quashing order. As a number of noble Lords referenced, both in Committee and in indeed in print last week in the Times law section, the noble and learned Lord, Lord Brown, who has not participated for reasons which have been explained, has set out clearly the arguments for this additional remedial flexibility. The way he put it in Committee, where he said that Clause 1 confers on the judiciary a power
“to do justice not just to the claimant in a particular case but on a wider basis”—[Official Report, 21/2/22; col. 57.]
really captures what the clause is intended to achieve.
Against that background, I come to Amendments 1, 2 and 3 in the name of the noble Lord, Lord Marks, which would remove prospective-only quashing orders. The noble Lord made a point which has been made before in this regard, which is that there could be situations where a prospective quashing order could cause significant injustice if used incorrectly. The short answer to that point is that we are not forcing the court to use these orders in any case. Just because a power is capable of being exercised, it does not follow that it will be used inappropriately. That is the short answer to the tax case example. It is the answer I gave in Committee, and I stand by it. I say respectfully that I do not think that that sort of example proves any wider point of principle; it is merely an example of a case where this particular remedial order would be inappropriate—in which case the court would not use it. I suggest that that is a complete answer to the tax case example.
The principle of the matter was also covered in this debate. Where we have reached essentially a disagreement is on the constitutional propriety of a court deciding that an unlawful action should nevertheless have some effect and be treated as if it were valid. The short point there is that a judge does not need to go outside their remit of doing justice to the claimant and to the public interest in deciding to use a prospective quashing order. I set out in Committee how such an order could deliver a much fairer and appropriate result in a range of circumstances. I invite the House to consider whether there is a principled distinction between a suspended order and a prospective order. I suggest that the matter comes down to this: you are either in favour of remedial flexibility or you are not. Both proposed new remedies seek to give the courts remedial flexibility. As I shall mention later in the context of Canadian jurisprudence, what we see there are strong conceptual links between the suspended order and the prospective-only order.
Amendment 4 would remove subsections (9) and (10), known as “the presumption”, the intended effect of which is to ensure that the courts will use either prospective or suspended quashing orders if—and this is an important “if”—doing so would provide adequate redress, and unless the court considers that it has “good reason” not to do so. We have heard in this debate good examples of where these remedies would be useful. Against that, two arguments are put with regard to the presumption.
The first argument is that presumption is harmful because it impinges on judicial discretion, and the second is that it is entirely unnecessary because it does not constrain the court in any material manner. The court will use these remedies anyway when it wants to do so. The first point, which is obvious, is that both those points cannot be right: they are materially inconsistent. If I may so, respectfully, only the noble and learned Lord, Lord Etherton, could have managed, with his customary skill, to put both points against me in the same speech. They are inconsistent; I will, nevertheless, take them in turn.
First, I do not accept that the presumption is in any way dangerous or harmful. It is, I repeat, a low-level presumption. The presumption applies only, according to subsection (9) of the new clause inserted by Clause 1,
“unless it sees good reason not to do so”;
the court does not have to use these remedies. Therefore, I respectfully disagree that there is any attack here on the rule of law. Indeed, to respond to the point made by the noble Baroness, Lady Jones of Moulsecoomb, the effect of these new remedies—as I think I said in Committee—might be that the Government lose more judicial reviews, because the court might be more prepared to interfere in circumstances where the consequences of the court’s ruling is not a complete ab initio uprooting of the decision. Therefore, far from limiting judicial review in favour of the Government, if anything, this actually helps applicants in their judicial reviews against the Government.
The other argument, that it is unnecessary, does have more force. Here I come back to the point made by the noble and learned Lord, Lord Judge. We heard an example from the noble Lord, Lord Faulks, about washing powder. Dare I say that what follows now is not meant to be “soft soap”, if I can continue that metaphor? The noble and learned Lord, Lord Judge, said that my argument on this point was the least attractive argument that I have ever made either in the court of Parliament or in the Law Courts. I am not sure that he appreciates just how high a bar he set by that test.
The purpose of including a low-level presumption is to do just that: it is to nudge the court to consider and use these new remedies where they are appropriate, and to build up a strong body of case law to increase legal certainty. In Canada, as I mentioned earlier, there are the Schachter categories, which have established guidelines for the use of suspended quashing orders. Their use actually encompasses what we would call prospective quashing orders as well. We envisage that this presumption in subsection (9) will nudge the courts into that more rapid accumulation of jurisprudence.
I think that if I were to say any more, I really would be repeating arguments with which the House is now familiar. For the reasons that I have set out, I invite the noble Lord to withdraw his amendment.
Lord Marks of Henley-on-Thames (LD)
My Lords, before I seek to test the opinion of the House—which I propose to do—I will make two short points. I do not accept that there is no distinction between a suspended quashing order—which we accept is sensible in the interests of what the Minister referred to as remedial flexibility—and a prospective-only quashing order. The remedial flexibility in a suspended quashing order addresses entirely the point made by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, in his article in the Times, and also addresses the point made in the Ahmed case, as explained by the noble and learned Lord, Lord Hope of Craighead, in Committee.
The objection, in answer to the noble Lord, Lord Faulks, to the prospective-only quashing order is not only that his independent review recommended suspended quashing orders, but it did not recommend prospective-only quashing orders. The important objections to prospective-only quashing orders are, first, not that they give the judges too much power, but that the power they give is to validate unlawful action before the date on which the quashing order is made—action that is ex hypothesi unlawful because that is what the court determines. Secondly, they would deprive litigants of a remedy if they have already suffered from the unlawfulness before the date of the quashing order.
The Minister said, incomprehensibly, that he stood by the answer that a quashing order would be made in the tax case. We say that the tax case illustrates the very danger of the court having the power to quash prospectively only. For those reasons, I respectfully seek the opinion of the House.
Member’s explanatory statement
This amendment, and others in the name of Lord Marks to Clause 1, would remove the power to include provision in quashing orders removing or limiting their retrospective effect (“prospective only quashing orders”).
Member’s explanatory statement
This amendment, and others in the name of Lord Marks to Clause 1, would remove the power to include provision in quashing orders removing or limiting their retrospective effect (“prospective only quashing orders”).
Lord Etherton
Member’s explanatory statement
This amendment would remove the presumption that where a suspended or prospective-only quashing order would offer adequate redress, such a quashing order should be made in preference to an ordinary quashing order.
Lord Etherton
“Limitation of review of Upper Tribunal’s permission-to-appeal decisions
(1) In the Tribunals, Courts and Enforcement Act 2007, after section 11 insert—“11A Finality of decisions in exercise of the supervisory jurisdiction(1) Subsection (2) applies in relation to a decision by the Upper Tribunal to refuse permission (or leave) to appeal further to an application under section 11(4)(b).(2) Subject to subsections (3) and (4), a decision made by the court of supervisory jurisdiction in relation to any such refusal by the Upper Tribunal, whether such decision of the court of supervisory jurisdiction is to refuse permission to proceed or is to dismiss the substantive claim in the supervisory court or is any other order, is final and cannot be questioned or set aside or reversed whether by way of renewal or appeal or otherwise.(3) An appeal lies to the Supreme Court from any such decision of the court of supervisory jurisdiction but only with the leave of the court of supervisory jurisdiction or of the Supreme Court; and such leave may not be granted unless it is certified by the court of supervisory jurisdiction that a point of law of general public importance is involved in the decision and it appears to that court or to the Supreme Court, as the case may be, that the point is one which ought to be considered by the Supreme Court.(4) An application to the court of supervisory jurisdiction for leave to appeal to the Supreme Court must be made within the period of 7 days beginning with the date of the decision of the court of supervisory jurisdiction and an application to the Supreme Court for such leave must be made within the period of 7 days beginning with the date on which the application is refused by the court of supervisory jurisdiction.(5) In this section—“decision” includes any purported decision;“supervisory jurisdiction” means the supervisory jurisdiction of—(a) the High Court in England and Wales or Northern Ireland, or(b) the Court of Session in Scotland,and “the court of supervisory jurisdiction” is to be read accordingly.”(2) The amendment made by subsection (1) does not apply in relation to a decision (including any purported decision) of the Upper Tribunal made before the day on which this section comes into force.”Member’s explanatory statement
These amendments retain the Cart supervisory jurisdiction but, subject only to a limited right to apply for permission to appeal to the Supreme Court, bar any appeal from the court exercising the supervisory jurisdiction or any other challenge to decisions of that court whether by way of renewal or otherwise.
Lord Etherton (CB)
This amendment is supported by the Law Society, the Bingham Centre for the Rule of Law and the Public Law Project.
Amendment 5 is intended to strike a middle course between, on the one hand, the abolition of the Cart supervisory jurisdiction of the High Court in England and Wales, and the Court of Session in Scotland, subject only to the three exceptions specified in proposed Section 11A(4) of the 2011 Act, and, on the other hand, the full retention of the existing Cart supervisory jurisdiction. My amendment would maintain a Cart supervisory jurisdiction at the High Court level but, subject to one exception, without any right of renewal or appeal from a refusal of permission to appeal or a dismissal of the substantive judicial review application, or indeed any other decision of the High Court, such as interim relief. The one exception is that following a debate in Committee, and at the suggestion of the noble Lord, Lord Pannick, the amendment now provides for an appeal direct to the Supreme Court if certified by the High Court as involving a point of law of general public importance, and the High Court or the Supreme Court grants permission to appeal. My amendment provides for a very short timetable of seven days for an application for leave to appeal.
My amendment would curtail the amount of judicial time currently spent on hopeless Cart cases. In one important respect, it would impose a more restrictive regime than that in Clause 2, as it does not make any exceptions as are to be found in subsection (4). Those exceptions give rise to concern, as it can be predicted, particularly in immigration and asylum claims where the objective is often to string out matters for as long as possible, that many applicants will claim to fall within one or more of the three exceptions, even if hopeless, and the High Court would have to adjudicate such claims, and with a right to apply to the Court of Appeal for permission to appeal.
Critically, retaining the restricted supervisory jurisdiction, as proposed in Amendment 5, would help to avoid injustice. The Ministry of Justice’s best estimate, based on the nine years from 2012 to 2020, is that the Cart jurisdiction has been successfully invoked in between 40 to 50 cases on average each year, and on being remitted to the Upper Tribunal for reconsideration of permission to appeal, the overwhelming majority are then given permission to appeal.
Lord Faulks (Non-Afl)
My Lords, the IRAL came to the firm conclusion that Cart ought to go. It did so carefully considering the fact that Parliament should be slow before reversing decisions of the Supreme Court. It made the recommendation in relation to Cart and the case of Ahmed only, despite a number of other cases which were drawn to the panel’s attention as being possibly wrongly decided. As I pointed out in Committee, this was also the view of Lord Carnwath, who had specialist knowledge of the genesis of the Upper Tribunal. I believe it is the view of many, though of course not all, judges.
There are, as we have heard from the noble and learned Lord, a cohort of judges who have to consider what are almost always hopeless applications. They consider them very conscientiously. There may be an argument as to how much time precisely is spent and at what cost, but with very great respect, I am not sure that that is the point. The applicants have, in effect, already had three bites of the cherry. In the extremely unlikely event that a specialist tribunal has made an egregious error of law, I am sure the House will be aware of the fact that the qualified ouster clause contained in Clause 2 provides that, if there is a bad faith decision by the Upper Tribunal or one that is procedurally defective in a way as to amount to a fundamental breach of the principles of natural justice, there will still be an opportunity to challenge it. For the most part, there will not be.
Of course, I have enormous respect for the noble and learned Lord, Lord Etherton, and other noble Lords who support this amendment, but I respectfully submit that we need to grasp the nettle. The poor prospects of success have not deterred applicants from making Cart judicial review applications in the past. I accept that this amendment would further reduce the avenues of challenge, but it would not, I suspect, put anybody off. I am sorry to say that this amendment seems to be something of a fudge. It will frustrate the purpose of the Bill. I fear that, if passed, a Cart JR application will continue to be the most popular JR application. The IRAL found that, of all the possible avenues of judicial review, this is the most popular and that statistic has not been challenged. Perhaps that is not surprising. If you are seeking asylum, it is not surprising that you would seek out every avenue in the hope that you would somehow be successful the next time.
On Amendment 6 from the Labour Front Bench, the potential review which this amendment envisages seems almost impossible to provide—although, no doubt, hard-working civil servants diverted from many other tasks would do their best if this amendment were to become part of the Bill. An asylum application will of course usually involve arguments that include references to Articles 3 and 8 and possibly even the Equality Act. By definition, these arguments have been rejected at all stages of the process. What precisely is this report supposed to do? Is it supposed to conduct a quasi-appeal of all those decisions? How will the material be obtained to enable the report to be provided? With great respect, the House really needs to know how this work will help, before committing the Government to an expensive and possibly fruitless exercise.
Lord Marks of Henley-on-Thames (LD)
My Lords, I support the amendment in the name of the noble and learned Lord, Lord Etherton, to which the noble Lords, Lord Pannick and Lord Ponsonby of Shulbrede, and I have added our names. I suggest that the amendment is a sensible compromise between abolishing Cart JRs altogether and setting a defensible limit on the prospect of excessive satellite litigation by limiting appeals.
We see and acknowledge the risk posed by large numbers of unmeritorious challenges to decisions of the Upper Tribunal dismissing appeals from the First-tier Tribunal, but believe that risk has been exaggerated by the Government, in terms of both the time and judicial resources expended on Cart JRs, as the noble and learned Lord, Lord Etherton, has explained, and the low success rates, which are contended and relied upon by the Government. In particular, we doubt that the Government’s figures take into account the full overall impact of successful JRs on the judicial review climate as a whole, particularly in the area of immigration, to which Cart JRs generally apply.
The Minister is not alone in overestimating the time and judicial resource that would be saved by the abolition of Cart reviews. I say now what I should have said during the debate on the last group: I am very grateful to the Minister for the time he spent discussing with us the issues arising in this Bill, including on Cart reviews. However, in spite of those discussions, we agree with the noble and learned Lord, Lord Etherton, that any savings achieved by the abolition of Cart JRs are not worth tolerating the injustice that would be caused by their abolition. Every successful Cart application signals an injustice that would be done to a future applicant were this clause to be enacted.
As many of us said in Committee, this clause, unamended, would set an ugly precedent for ouster clauses in future legislation, building on the general purpose template in this clause, which is designed to insulate unlawful executive action from judicial review. I suggest that the amendment moved by the noble and learned Lord, Lord Etherton, elegantly avoids that pitfall and it is very important that we support it for that reason, as well as others.
The bar to launching a Cart review is and will remain high: the applicant for judicial review always has to surmount a difficult hurdle in securing permission to bring an application. That is as it should be, given the nature of the supervisory jurisdiction. Indeed, the conditions set out in the Cart case itself were restrictive and stringent, and they will not change. The provision outlined by the noble and learned Lord, whose amendment would allow for an appeal from a decision of the supervisory court directly to the Supreme Court only, in the most limited circumstances only and subject to very short time limits, is a sensible safeguard—and no more—to ensure that important points of law can be considered by the Supreme Court in appropriate cases. I suggest that the Government should not be concerned about that.
Amendment 6, to be spoken to by the noble Lord, Lord Ponsonby, seeks a review of the operation of the provisions in Clause 2, with particular reference to the consequences for persons with protected characteristics under the Equality Act 2010 and the enforcement of rights under the Human Rights Act 1998. We support it in principle, but of course we await hearing from both the noble Lord, Lord Ponsonby, and the Minister on this.
Lord Ponsonby of Shulbrede (Lab)
My Lords, we strongly support Amendment 5, moved by the noble and learned Lord, Lord Etherton, which is really an alternative Clause 2. It offers a much improved and fairer alternative to the Government’s proposal to remove Cart reviews entirely. Cart judicial reviews should not be abolished. These are most often used in serious asylum and human rights cases. Cart is a vital safeguard. There is already a high threshold for bringing them and the proposed saving is tiny compared with the human cost of abolishing them.
There are two principled points to make. The first concerns the constitutional role of the High Court in guaranteeing justice in a tribunal system, and the second concerns the constitutional role of the High Court as the guarantor of the lawfulness of any of the acts in any public body. The noble and learned Lord, Lord Etherton, gave a forensic examination of the figures. I was writing down some of his numbers. The central point was to cast doubt on the benefit which the Minister claimed in Committee.
The noble Lord, Lord Faulks, described the amendment as a fudge. The noble Lord, Lord Marks, described it as a compromise, which I prefer. Many cases come before the court. I recognise that a relatively large number of them are unmeritorious. As I mentioned in Committee, a number of legal advisers who sit in the magistrates’ court go on to work in the High Court—it is a sort of career progression. They will look at those cases when they prepare for the judges to examine the papers. They have told me that a lot of the cases that they deal with are, in their view, unmeritorious, although they use less diplomatic language. Nevertheless, the route is still there. The High Court is the highest court in the country and the compromise put forward by the noble and learned Lord, Lord Etherton, retains that stamp of approval through his proposed amendment, so we support it.
My Amendment 6 would require the Lord Chancellor to carry out and publish a review of the operation of the Cart judicial provisions within Clause 2 not more than two years after the passing of this Bill. The noble Lord, Lord Faulks, said that he thought that this may be an expensive and fruitless exercise. I will not be moving this amendment to a vote. Part of its purpose is to ask the Minister to explain how the Government will monitor the operation of the JR system, including this element of it, because the central point is to retain confidence that the system is working adequately. It is to that end that I tabled this amendment.
Lord Wolfson of Tredegar (Con)
My Lords, a Cart judicial review is a challenge of a decision of the Upper Tribunal to refuse permission to appeal a First-tier Tribunal decision. A Cart judicial review therefore gives the losing party another—or yet another—chance to challenge a decision to refuse permission to appeal, this time by way of judicial review to the High Court, which then opens a further route to the Court of Appeal if permission for the judicial review is refused by the High Court.
The long-established precedent in our judicial system is to have two appeal tiers and for a case to be considered for permission to appeal by two different judges. This is seen with the First-tier and Upper Tribunal system that we have. In this example, the applicant will have lost in the First-tier Tribunal, will have been refused permission to appeal by the First-tier Tribunal, and will then have been refused permission to appeal by the Upper Tribunal, and that should be an end of it. However, a Cart judicial review offers the applicant a third attempt to gain, effectively, permission to appeal, an anomaly not seen in the criminal or civil court systems. It is this third bite of the cherry that we seek to remove. The Bill does this through an ouster clause.
In Committee, we had a short debate about the constitutional propriety of ouster clauses which I will not go into again today, since it was not raised in today’s debate. Whatever position we take on ouster clauses as a matter of principle, I would hope that everyone in the House would agree that we must keep the court system efficient. When we think about efficiency, we look at the nature of the courts and tribunals that we have at different levels of our system. The Upper Tribunal is a senior court with a specialist jurisdiction, so it is well suited to determining questions of law authoritatively and accurately. The fact that it appears to get 96% of its determinations on permission to appeal right re-enforces its place as the best jurisdiction to settle those issues.
I remind those Members of the House who might be saying, “What about the other 4%”, that in every other jurisdiction we do not know the error rate because we only allow two bites of the cherry, and therefore do not know how many of those second bites, if I may put it that way, would have tasted different if a third judge had taken a bite. This clause restores balance in the proper functioning of the tribunal system and fixes a serious inefficiency. I welcome particularly what the noble Lord, Lord Faulks, said about the background to it.
Turning to Amendment 6, in the name of the noble Lord, Lord Ponsonby of Shulbrede, I heard what he said about the purpose in tabling the amendment and will try to respond to that. This is the amendment requiring the Lord Chancellor to carry out and publish a review. The Government have committed, in our impact assessment, to monitoring the new system, and in particular, the impact on those identified as affected groups within that document.
While I agree that it is important that the Government do not simply legislate to make changes to the justice system and then neglect to assess the actual effects of those changes to the system, creating a duty in legislation to review and publish the outcome of that review within two years would be disproportionate, particularly given that commitment to monitor the effect of this change. Further, it is unlikely that we would see the full effect of this change just two years after its introduction, as the legislation does not apply retrospectively. For those reasons, I cannot accept the amendment, but I hope that I have explained to the noble Lord, and the House, why.
Turning to Amendment 5, in the name of the noble and learned Lord, Lord Etherton, replacing Clause 2, rather than ousting the High Court’s jurisdiction over the Upper Tribunal, the new clause would essentially move the ouster one step up the court system. It provides that the decision of the High Court or other relevant supervisory court in reviewing an Upper Tribunal permission-to-appeal decision is final, preventing any escalation to the Court of Appeal but introducing a rather unusual, if not entirely novel, appeal path directly from the supervisory court to the Supreme Court in cases involving a point of law of general public importance. That was the tweak by the noble Lord, Lord Pannick, to the amendment, that we saw in Committee.
With or without that tweak, my concern is that the amendment does not address the main problems, which are, first, that approximately 750 Cart cases per year place a burden on the High Court, and, secondly, that the Cart decision and approach undermines the tribunal system and the proper relationship between the Upper Tribunal and the High Court. I recognise that there is a burden on the Court of Appeal at present, as some Cart cases will be appealed to that court. I do not have precise figures, but I understand that those to the Court of Appeal are substantially less than 750 cases of this kind per year. The burden of the current system falls on the High Court and, for reasons of its resourcing and efficiency, that is where we need to concentrate our efforts.
I am very grateful to the noble and learned Lord, Lord Etherton, for his engagement with me and my officials on the underlying data. Although there appear to remain some differences between us, I think we have come to a closer understanding on the data point. Let me clarify just one point for the record, which is that the 180 days of judicial time was always estimated as around 150 days of High Court time and the remaining 30 days or so in the Upper Tribunal.
Turning to one of the other substantive points made by the noble and learned Lord Etherton, he mentioned that his position goes further than mine in limiting the exemptions for onward appeal, and that he is concerned that the exemptions in the current Clause 2 will be insufficient to prevent many applications to the High Court. I understand the genesis of that concern but, with respect, I think it is unfounded. The exemptions are narrow and focused. We have seen from failed ouster clauses in other circumstances that clear words are needed for an effective ouster clause. In this case we think that we increase that clarity by some limited exemptions, appropriate to the proper relationship between the Upper Tribunal and the High Court.
The exemptions create a clear and simple distinction: questions of fact and law go to the Upper Tribunal, which is a senior and specialist court, and review is retained in the High Court for jurisdictional or procedural matters. That is a neat and robust delineation. I respectfully say that the dichotomy that the noble and learned Lord presents—that we should either have Clause 2 with no exemptions or take his halfway house—is a false dichotomy. I suggest that the current Clause 2 is a sufficient and well-crafted approach to the problem.
Finally, the halfway house put forward by the noble and learned Lord would perpetuate the current oddity of Upper Tribunal decisions being reviewed by the High Court on grounds not limited to extreme jurisdictional or procedural matters. We should trust the Upper Tribunal to get these decisions right and, as I have said, it does so, to an extraordinarily high percentage. The halfway house therefore does not satisfy the Government’s policy position of correcting the Cart decision. Cart was, with great respect, a legal misstep. We heard in Committee from the noble and learned Lord, Lord Hope of Craighead, who was party to the decision; he accepted, with hindsight, that it was a legal misstep. We should overturn it effectively, which is what the current Clause 2 does. The halfway house put before us by the noble and learned Lord, Lord Etherton, would, I fear, leave us in a legal no man’s land. For those reasons, I respectfully invite him to withdraw the amendment.
Lord Etherton (CB)
I should like to make three essential points by way of reply to what has been said. I am extremely grateful to those Members of the House who have supported my amendment.
The noble Lord, Lord Faulks, highlighted what is for him, and I think in government policy terms, critical: that it is said that the success rate is too low. This raises the question: at what price do we value justice? We are agreed that 40 to 50 cases each year have been wrongly refused permission to appeal by the Upper Tribunal. In the case of severely important asylum claims and human rights cases, those 50 cases represent all the trauma that is gone through by a complainant. If one has sat in court and listened to the stories of people who have made the most extraordinary efforts to get to this country, seeking asylum, going from place to place trying to get here, one will know that refusal of a Cart review as one of the 50 is a real denial of justice.
Yes, there are very many cases—too many cases; we are all agreed on this—of unmeritorious applications by way of Cart, but we have to find a balance which takes into account the injustice that will be suffered by even one person, let alone 50 people, in these most serious of cases which involve such a long time and, in many cases, severe trauma.
There are those who, like Micah, recall the admonition: “Justice, justice you shall pursue”. That is what I have spent my entire career attempting to do, particularly as a judge. I do not accept that the middle course is paying too high a price for the justice that would otherwise be denied to the categories of people for whom I have been speaking. My presentation—my middle course—is for those people who would otherwise suffer.
My last point is this. Attractively though the Minister has put it, that there are three bites of the cherry is not entirely correct. The modern method of appeal from tribunals is an appeal from a decision in an asylum case from the Lower Tribunal, then to the Upper Tribunal and then to the Court of Appeal. On his analysis, the Court of Appeal hearing would be a third bite of the cherry, but that is standard procedure. I do not accept that a third review of tribunal cases is in any way unusual. I wish to test the opinion of the House.
(b) it is not a recordable offence, as specified in the Schedule to the National Police Records (Recordable Offences) Regulations 2000 (S.I. 2000/1139).”Member’s explanatory statement
This amendment seeks to exclude any offences which are recordable from the automatic online conviction option.
Lord Ponsonby of Shulbrede (Lab)
My Lords, this whole group of amendments is about criminal procedure divisions. It is not my intention to press any of these amendments to a vote, but to look at the broad sweep—if I can put it like that—of the way the various elements of the emergency legislation for Covid, for example, and other things are being put into criminal procedures on a more permanent basis. I remind the House that I sit as a magistrate and I have personally sat in the Covid emergency-related courts over the last two years.
I will go through these amendments relatively quickly, even though they are important amendments. Amendment 7 seeks to exclude any offences that are recordable from the automatic online conviction option. The existence of a criminal record can, for example, seriously undermine someone’s chances of finding employment, especially in certain sectors and professions, including nursing, social care, childminding and teaching; of accessing educational and training opportunities; of obtaining certain types of insurance; or of having the ability to travel to certain countries. For non-UK citizens, criminal records can affect their right to remain in the country. If the automatic online procedure is introduced, it is crucial that it applies only to those offences for which convictions are unlikely to have an impact on individuals’ rights and opportunities. It is in that spirit that I tabled Amendment 7.
Amendments 8 and 13 are also probing amendments, of which I gave notice to the Minister yesterday, to question to what extent courts will be required to share information with the media and public about cases that have an online or written element. Concerns have been raised that the Bill could damage the principle of open justice and access to the courts’ information. As the Minister knows, this was raised with me only yesterday by the Guardian Media Group; I received a briefing on this matter, which I forwarded to him. I will not go through all the points that are raised in the briefing, but there is a concern that, if the Bill becomes law, it will mean an end to many first appearances in the criminal courts, with the consequential significant reduction in information provided to the media. Various examples are given in the briefing. Although the Minister pointed out in Committee that HMCTS has guidance on this matter, the reality is that there is nothing in the Bill that requires the steps in the guidance to be taken. The purpose of these amendments is to encourage the Minister to give a fuller explanation of the way the media will get access to the courts.
I move on to Amendment 9, under which the accused must have obtained the age of 18 when charged to enter a guilty plea in writing under Clause 4. Children are inherently vulnerable in nature and possess a well-evidenced propensity to plead guilty, notwithstanding the evidence or potential defences—that is in the briefing that I have from Justice. I have to say, talking as a youth magistrate, I think that children also plead not guilty when they are not properly advised. Lawyers need to spend time with youths to get them to explore the impact of whatever their plea is going to be. I have seen ill-considered pleas, if I can put it like that, so I think it is very important that they are properly advised before they make a plea in court. As the chair of the Justice Committee, Sir Robert Neill, pointed out at Second Reading in the House of Commons:
“What is the logic in using the age of 18 in one provision and 16 in a provision that covers broadly similar grounds? We need particular safeguards for dealing with young offenders, to ensure that they do not enter a plea that is not fully informed, either through immaturity or a lack of good advice, as that could have permanent consequences for their future.”—[Official Report, Commons, 26/10/2021; col. 206.]
Amendment 10 proposes:
“Within two months beginning with the day on which this Act is passed, the Secretary of State must commission a review and publish a report on the effectiveness of the single justice procedure.”
As I said, this is a probing amendment to give the Minister an opportunity to commence a review of the procedure to see whether he is satisfied that it is bedding in properly and functioning in an appropriate way. Amendment 11 would guarantee that defendants have access to legal advice before submitting a plea under the provisions of Clause 6. Amendment 12 would ensure that an accused person is informed not only about the consequences of giving or failing to give a written indication of plea but the potential legal and practical consequences of pleading guilty.
Various pressure groups, if I can call them that, have expressed concern about the written procedure of indicating a plea of guilt without proper advice. The Law Society contends that unrepresented defendants will not have the necessary legal knowledge to know whether they are in fact and in law guilty of an offence. Without legal advice, a defendant will likely not understand the full implications of their decision to indicate a plea and the possible consequences of entering a guilty plea. A seemingly innocuous decision made in writing or online could have significant consequences for the defendant.
I know that the Minister’s response to that point will be to say, “They do it in regular courts, so what is the difference here?” But the answer to that point is the ease of doing something by accident. When you physically go to a court, even if you are unrepresented, the environment is such that you know that you are involved in a serious matter, and there is also an opportunity for interaction with judges or magistrates. Certainly, in my experience, they will explore the plea, whether guilty or not guilty, to see whether people understand what they are saying when they respond to the question. The concern is that when this procedure is online there is a temptation to press that button without being aware of the consequences, and that concern is addressed by Amendments 11 and 12.
Amendment 14 would delete Clause 8, thus removing the written procedure for children for indicating plea and determining the mode of trial. Clause 8 would allow children to use the new allocation procedure. That is despite the fact that existing law rightly affords children additional productions and safeguards to reflect their inherently vulnerable nature and well-evidenced propensity to plead guilty—although I question that last point, even though I am reading out that briefing. The point is the same one: people need to be properly advised and understand the gravity of the situation. When dealing with allocation, it is an opportunity for everyone, and children in particular, to fully understand the situation that they are in.
Amendment 15 would delete Clause 9(5), which will introduce a power for the court to proceed with allocation proceedings in the absence of a child defendant. This is a similar point to the one I have just made. We are not convinced that the supposed merits of having a child absent when this decision is made outweigh the risks of disadvantage and lack of safeguards. This is repeating the point I made on the earlier amendments that, certainly in my experience, when a court is deciding on allocation, it sometimes goes into some level of detail on the case itself and it is absolutely right that the young person—and the parents, I might say—should be present when that is being heard. One thing I absolutely always do when I am in youth court is make sure that the parents understand what is being said against the youths, because the youths do not necessarily tell the parents why they are there in the first place. So I think it is an important piece of procedure.
Amendment 17
“would ensure that the new increased magistrates’ sentencing powers would be subject to regular reporting on their impact, including with respect to those with protected characteristics, every four months.”
The noble Lord, Lord Wolfson, argued that the Government already publish data, but I will read out the data that is published. The Government currently collect the following data: first, quarterly data on custodial sentences and average sentence length in criminal courts; secondly, cross criminal justice system scorecards; and, thirdly, criminal justice outcomes data. So, those data which are currently collected will not measure the impact of the increased sentencing powers for magistrates; there needs to be a more specific approach to properly capture those increased sentencing powers, and that is the purpose of this amendment.
Amendment 18 would delete Clause 14, alongside the deletion of Clause 8. I have spoken to this already; it is consequential on the earlier amendment.
Finally, Amendment 37 would provide that, before local justice areas are abolished, the Lord Chancellor must: undertake a consultation with relevant stakeholders; lay before Parliament the report and findings of such consultation; and provide a response explaining whether and how such issues which have been identified would be mitigated. I will say a little more about this amendment. I had thought this was a relatively innocuous amendment. Noble Lords may be aware that magistrates are arranged in local justice areas. My local justice area, for example, is central London, where there are about 300 magistrates. We have a bench chairman, elected by us, and she has a pastoral role and an administrative role in managing all the magistrates within that local justice area.
I understand that this is going to be reviewed, but the argument for doing away with this structure and moving to structure that is more similar to other tribunals is that it would make the process more flexible. But the point I made in Committee, which I repeat now, is that my experience as a current panel chairman of the Greater London family panel—I have about 300 family magistrates who I am currently responsible for—is that every single day I am dealing with pastoral matters. I think it is an important role and I very much hope it will be retained in whatever future structure is landed on, but I understand there will be consultation. I beg to move.
Lord Thomas of Cwmgiedd (CB)
I wish to speak very briefly to Amendment 17. As I think I said previously, there has been thought of moving sentencing powers up for some 15 to 20 years. It is of paramount importance that we have a proper analysis of the effect of this. The effect could be serious not only for the prison population but for the individuals concerned. I hope, therefore, even if the Minister cannot respond now, that officials in his department will come back with some reliable reporting mechanism so that the effect of this change can be analysed. I warmly support it, but if it goes wrong—and that has always been the worry—there must be proper data. Asking for it now, I hope, will ensure that it is thought through carefully and provided in due course.
Lord Marks of Henley-on-Thames (LD)
My Lords, I will add very little to what the noble Lord, Lord Ponsonby, said in moving his amendment. The House has been much assisted and considerably informed, as we frequently are, by his experience as a sitting magistrate and, in particular, by his experience of young people in court.
I do not propose to go through these amendments one by one. I said in Committee, and I repeat, that we are generally supportive of the measures in the Bill, which modernise our criminal procedures, make more use of online access and simplify guilty pleas in low-level cases. The noble Lord, Lord Ponsonby, in what I understand is a series of probing amendments, which he does not propose to put to a vote, spoke of what I might divide into a number of principal themes which we also consider important.
The first is a concern for protections and safeguards for young people in the context of the new procedures. The second is ensuring that all parties understand the new procedures and have full information about the consequences of decisions they have taken, in particular about the effect of guilty pleas, and indeed that they have access to legal advice. The next is a concern that increased sentencing powers for magistrates be monitored and kept under review. I fully endorse what the noble and learned Lord, Lord Thomas of Cwmgiedd, said in that regard. That is very important. We are entering relatively uncharted territory and, although many of us see those themes as significant, nevertheless it is important that they be monitored.
That said, we await the Minister’s response with interest and hope that the safeguards sought by the noble Lord, Lord Ponsonby, will at least be introduced by the Ministry in considering how we go forward with these new procedures after the enactment of the Bill.
Lord Wolfson of Tredegar (Con)
My Lords, I am grateful to the noble Lord, Lord Ponsonby of Shulbrede, for putting down these amendments which, as he says, are probing amendments. I am also grateful to him for his time in discussing all of these points, I think, in a number of meetings we have had.
What I will seek to do—and I hope the House will forgive me if I do not go into too much detail—is respond to them point by point. I will try to strike a balance between giving a proper response here and not unduly delaying the House with points of detail. It may be that there will be points on which I might write further, but I will try to get the main points on the record, so to speak, because these are probing amendments.
I will start with Amendment 7 to Clause 3 on the new automatic online conviction procedure. This amendment would limit the application of this procedure to non-recordable offences only. I can assure the House in terms that we have no intention of extending this new procedure to any recordable offences. This is a new approach for dealing with certain minor offences, which is why we have committed to reviewing this procedure before considering whether to extend it to any further offences. Any extension of the procedure to additional offences would have to be both debated in and approved by Parliament.
Amendment 8 would allow the Criminal Procedure Rules to make provision about information that should be made available to the media and public on cases heard under the automatic online procedure. Amendment 13 would make a similar provision to Clause 6 for cases dealt with under the new online indication of plea and allocation procedure. This is already provided for in legislation. In fact, current provision in the Criminal Procedure Rules goes further. Rule 5.7 of the Criminal Procedure Rules sets out the basic open justice principle that courts must—that is a “must”, not a “may” as in the amendment—have regard to the importance of dealing with cases in public and allowing a public hearing to be reported. Rules 5.8 to 5.11 set out the process for providing that information and the types of information that should be provided.
The court will therefore provide the media with information about the outcome of these proceedings via the court media register within 24 hours of the case being dealt with. In the case of the automatic online procedure, this would include the conviction and fine imposed. That extends the arrangements currently in place for the single justice procedure for defendants who choose this new option.
In the case of the online indication of plea and allocation procedures, the information on the register would include the alleged date and details of the offence, the indicated plea and whether the case was being sent for trial. Any subsequent hearings for case management, trial or sentencing would be listed as normal and defendants would still be required to appear at a hearing in open court after they had proceeded with the online indication of plea and allocation procedures in order to confirm and enter their plea. I underline that this is because we are dealing here with an indication of plea.
Amendment 9 to Clause 4 deals with the guilty plea in writing. It seeks to raise the age of eligibility for the Section 12 plea, as it is called, by post procedure from 16 to 18 years. However, in distinction to some of the matters I have just referred to, this is not a new procedure. It has been available as an alternative method of summary-only prosecution for defendants aged 16 and over since 1957. That is rather a long time. As I said in Committee, I am not aware of any particular issues of concern being raised for children. Clause 4 will ensure that prosecutors can also offer this long-established procedure for suitable cases initiated by charge in person at a police station and will, if they do that, maintain the same age criterion that already exists for prosecutions initiated by summons or postal charge. This would provide defendants and prosecutors with the option of resolving more types of less serious, summary-only cases without having to spend time and resources attending a court hearing. It is subject to a range of safeguards, which I think I set out in some detail in Committee; I hope the House will forgive me if I do not repeat them all this afternoon.
Amendment 12 to Clause 6 proposes a new written procedure for indicating a plea to a triable either-way offence online. It would require a written invitation from the court to inform the defendant about the real-world consequences of pleading guilty to a crime and getting a criminal record. So far as that amendment is concerned, Clause 6 already states that the court must provide important information about the written procedure when writing to a defendant, including the consequences of giving or failing to indicate a plea online. Clause 6 will also enable secondary legislation under the Criminal Procedure Rules to require or permit the court to provide additional specified information where it is deemed necessary.
Importantly, any indication of plea provided through the new written procedure will not be binding on a defendant until they appear before the court at a subsequent court hearing to confirm it. They can also change or withdraw their indicated plea and, again importantly, if they do that, the indicated plea of guilty cannot be used against them in the proceedings that follow.
Lord Ponsonby of Shulbrede (Lab)
Just to explore that point a little more, does that mean that somebody who changes their plea to guilty, for example, when they physically turn up in court will get the full 30% discount on any sentence that may be given in the court?
Lord Wolfson of Tredegar (Con)
I think that is correct, but let me write to the noble Lord on that point. My understanding is that the indicated plea of guilty cannot be used against them. I appreciate the noble Lord’s point is slightly different. I think the answer to it is yes, but I will write to him so that he is in possession of accurate information before the Bill comes back to this House. He will get a written response from me on that point, unless I get the answer electronically before I sit down—that is a challenge to the team.
Amendment 11 seeks to guarantee that defendants will have access to legal advice before they indicate a plea. As I think I said in Committee, we believe this concern is addressed by the fact that defendants will be able to access the new online procedure for indication of plea and allocation only through their legal representative. This is because the new procedure will be available only through the common platform, which is restricted to qualified legal professionals. I have no objection to making the requirement to seek legal advice clear in legislation, but the right place for this would be in the Criminal Procedure Rules, remembering that this will be a plea indication only, not the entry of a plea at court.
Amendments 14, 15 and 18 seek to remove children from the new written procedures and powers relating to pre-trial plea and allocation proceedings for offences triable either way. So far as Clause 8 is concerned, the same safeguards as apply to Clause 6 apply here. Like adults, children will be able to proceed with the new written procedure for online indication of plea and allocation only through a legal representative, and they will be required to make a subsequent court appearance to confirm their plea. This will provide the same opportunities for the court, as we have heard from the noble Lord’s experience, to satisfy itself that the child has understood the position that currently applies.
Clause 9 creates a new clearly defined set of circumstances that would enable a court to allocate a child’s case in their absence. Again, I explained these conditions in some detail in Committee. The key point is that they are far more stringent than those prescribed for adults, even though children cannot elect for jury trial. Those safeguards guarantee that a child will engage with the court before and during the allocation hearing. Even where that does not happen for some reason, the new power will provide courts with the flexibility to progress the case, but only after they have taken significant steps to confirm that it is appropriate and in the interests of justice to do so.
The new overarching safeguard for written proceedings created by Clause 14 will exist alongside the current legal requirements for a parent or guardian to attend at court during all relevant stages of the proceedings. Therefore, Clause 8, read together with Clause 14, will provide more opportunities to ensure that parents and guardians are involved in children’s cases before the first hearing at court.
Over and above that, the courts have a statutory duty to protect the welfare of children and prevent them offending. Clauses 8, 9 and 14 should help ensure that cases are progressed more expeditiously. That means that interventions designed to tackle offending or reoffending can be made at the earliest opportunity. I also point out that these provisions can help reduce the undoubted stress of travel, with a child having to go to court physically, or the disruption of a child having to miss school to attend preparatory hearings at court, because they reduce the overall number of occasions when the child has to be physically present in court.
Lord Thomas of Cwmgiedd (CB)
My Lords, when the Minister says “monitor” and “publish”, what we need to see is proper, in-depth analysis so that one can see what happened—or would have happened had it been dealt with in the Crown Court—and what is now happening. It is not enough to go on with what we already have.
Lord Wolfson of Tredegar (Con)
My Lords, I was just about to come to that point. I have heard what the noble and learned Lord has said. We will certainly consider what data we can publish that would go towards meeting that point. I would be happy to drop the noble and learned Lord a note on that. We have to think about how this new data fits in the with the current data sets, and we need to publish things in an accessible way. I absolutely understand the underlying point. It goes back to the point I was making in the previous group, which is that we should not just make changes and not then assess how they are working; equally, we do not want to be chasing our tails on data. There must be a way through that.
Let me now come to local justice areas, on which we heard from the noble Lord, Lord Ponsonby, with personal experience. Amendment 37 would require the Lord Chancellor to undertake a consultation with relevant stakeholders regarding the proposed removal of local justice areas. This provision will ensure that magistrates’ courts have the flexibility to assign cases and magistrates in a way that best meets local needs. Ultimately, it is up to the Lord Chief Justice to determine what new arrangements are to be put in place. He has a statutory duty to ascertain the views of lay magistrates on matters affecting them. Magistrates’ courts already work closely with local justice partners to manage court business. I confirm that they will be fully consulted, along with local magistrates, the Magistrates’ Leadership Executive and the Magistrates’ Association, before any changes are made.
I turn to the single justice procedure: Amendment 10 seeks to introduce a new clause which would require a review of that procedure, including its use to prosecute Covid-19 offences, and the transparency of the procedure. I have previously argued to the House that there is in fact greater transparency for cases under this procedure, rather than those that take place physically in court. The press receives a detailed list of pending single justice procedure cases, alongside the prosecution statement of facts and the defendant’s statement in mitigation. On the fairly rare occasions, these days, when the press turn up to a magistrates’ court hearing, they do not generally get that material, so they do get more material online than they do when they turn up.
I am afraid that there are errors in all courts; courts are run by humans and, while people do their best, errors occur. As far as Covid-19 offences are concerned, the majority of errors were detected by the single justice and their legal adviser, and dealt with appropriately by dismissing the case. There are other safeguards in place to address errors where they occur. I am not aware of any evidence to suggest that the error rate for prosecuting Covid-19 offences was higher under the single justice procedure than any other court procedure, or indeed that this procedure was the cause of the errors. We believe that the primary cause of the errors was not the process used; rather, it was the volume of regulations, combined—as noble Lords will remember—with the speed of introduction. Work was done quickly with police forces and court staff to reduce, and to try to eliminate, those errors. The single justice procedure is reviewed on a regular basis to ensure that it remains open and accessible.
There are some amendments in my name which are all minor and technical in nature. I note that there were no questions on these amendments, so I am not proposing to go through them in any detail, unless noble Lords want me to do so. In the absence of acclamation, I will take that as a “Please get on with it.” However, that means that, in my reluctance to spin it out any longer, my team have not been able to get back in time with the answer to the question from the noble Lord, Lord Ponsonby, on guilty discounts. I will have to write to him on that, and I undertake to do so.
I hope that, for those reasons, I have set out the opposition to the noble Lord’s amendments. I invite the House to support the few government amendments in this group.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I beg leave to withdraw Amendment 7.
Lord Wolfson of Tredegar
Member’s explanatory statement
This amendment allows subsection (3) of Clause 13 to operate before and after the other provisions of that Clause come into force (see the amendment in the name of Lord Wolfson of Tredegar at page 59, line 4).
Lord Wolfson of Tredegar
Member’s explanatory statement
This amendment is consequential on the amendment at page 53, line 33 in the name of Lord Wolfson of Tredegar.
Lord Wolfson of Tredegar (Con)
My Lords, I am sorry but one of the problems of doing this online is that, when the system freezes, you do not have any notes.
Lord Wolfson of Tredegar (Con)
Keep taking the tablets, my Lords. When we last debated these clauses, a number of noble Lords, including the noble Baroness, Lady Chakrabarti, invited and urged me to meet Inquest. I am grateful for that urging, because I had a very productive and informative discussion with it last week on the measures in the Bill and some wider measures. In fact, Justice also attended the meeting. While it is fair to say that there are differences of opinion between us, I assured them that the Government’s priority remains to make certain that the bereaved are at the centre of the coronial process. The measures in the Bill support this priority. We seek to reduce unnecessary procedures in the coroners’ courts and that will, in turn, reduce delays in the inquest process, and reduce again the distress to bereaved families.
The amendments in my name in this group are minor and technical. They are consequential on Clause 39, which allows a coroner to discontinue an investigation should the cause of death “become clear”, and they remove some obsolete references to post-mortems from existing legislation.
Those are the government amendments. However, I am conscious that the noble Baroness, Lady Chapman, and the right reverend Prelate the Bishop of St Albans have other, more substantive amendments in this group. Perhaps the noble Lord, Lord Ponsonby, will speak on the noble Baroness’s behalf. I will let them propose their amendments before I respond to them.
Lord Ponsonby of Shulbrede (Lab)
My Lords, Amendment 21 would ensure that certain safeguards were met before a coroner could discontinue an investigation into a death. Family members and personal representatives of the deceased must be provided with a coroner’s provisional reasons for considering that the investigation should be discontinued, helping to ensure that family members make an informed decision as to whether to consent to the discontinuation.
Amendment 22 would provide that the Lord Chancellor should establish an appeal process for families who disagree with a decision to discontinue an investigation. Amendment 23 would ensure that inquests were not held without a hearing if that was against the wishes of the deceased’s family. Amendment 24 would ensure that certain safeguards were met before a remote inquest hearing is held and that interested persons were provided with the reasons why a remote hearing is to be held. I am glad that the Minister met Inquest and Justice. The amendments, which are in the name of my noble friend Lady Chapman, would address the various perceived shortcomings within the coronial system. I look forward to the Minister’s answer to them.
Amendment 28 would allow coroners to record risk factors relevant in a death by suicide and require the Secretary of State to issue guidance on the risk factors that the coroner must consider and the form in which they are recorded. The right reverend Prelate will speak to his amendment in due course. It is part of his attritional campaign for, often, young men who commit suicide because of gambling habits. I support his intention.
The Lord Bishop of St Albans
My Lords, I rise to speak briefly to Amendment 28 standing in my name. I would be grateful if the House would indulge me just for a few minutes. As I explained last week when I was presenting my Private Member’s Bill, Public Health England pointed out that, in just one year, there were 409 suicides related to problem gambling. Your Lordships will be aware that the largest lobby group here in the House is Peers for Gambling Reform. Whenever we have tried to deal with this, one thing we keep hearing back is that we simply do not have the statistics or the data on the various causes of suicide. For some while, I have been trying in every way I can to get at least some data to help us with this so that we can devise strategies to reduce the terrible burden on families who have lost a young person.
The noble Lord, Lord Ponsonby, is right that most of those who have taken their lives are young men, but it is now becoming clear that this is quite a significant problem also among younger women. It is partly because the ubiquitous gambling adverts are now spreading into women’s magazines and so on—it is just all over the place.
I shall be brief, because the Minister addressed some of the concerns in responding to my Private Member’s Bill, the Coroners (Determination of Suicide) Bill, last Friday, but there are some important differences in this amendment, which is my attempt to respond to points that the Minister made. Unlike my Bill, the amendment would permit, but not require, coroners to record factors relevant in a death by suicide. Other differences between the amendment and the original Bill include provisions to ensure that the jury would no longer have any say in the consideration and recording of relevant factors and that the consideration and recording of factors by the coroner would now occur outside the inquest process and not disrupt the traditional remit of an inquest to determine how, what, when and where in relation to an unexplained death.
Finally, the amendment would require the Secretary of State to issue guidance on which factors relevant in a death by suicide could be considered and the form in which they would be recorded by a coroner. Strict data protection provisions are included to prevent the identity of the deceased being disclosed or deduced in any way.
Lord Thomas of Gresford (LD)
My Lords, I want to say how much I support the right reverend Prelate the Bishop of Albans in his campaign against gambling. He is energetic in that cause, and I very much respect him for it. He comes up against the nature of inquests, hallowed over many years, which are restricted to inquiring who, where and when. They do not even include the question that is emblazoned upon my family crest: ar bwy mae’r bai—“Who can we blame?”
When we leave this building, we should look at Westminster Abbey and realise that it was not built at the time that the procedures of inquests were begun. The coroner remains in charge of his inquest. He may discontinue, he may decide the inquest on the papers, or he may utilise audio or visual means to do so—all he has to do is notify interested parties that the coroner is satisfied; those are the statutory words. He does not have to give reasons. In particular, he does not have to have the consent of the family members—those who are bereaved and for whom an inquest is a most important matter in their lives. I support the amendments in the name of the noble Baroness, Lady Chapman, which, very sensibly, require the consent of interested persons to the coroner making his decisions in the areas that I referred to, and require him to give reasons for those decisions. I leave it to others to expand.
Lord Wolfson of Tredegar (Con)
My Lords, I shall respond to the amendments in the name of the noble Baroness, Lady Chapman. Amendments 21, 22, 23 and 24 all seek to introduce further conditions into Clauses 39, 40 and 41 relating to coroners’ courts. The Government’s position on these amendments is that, while we understand and sympathise with the intention behind them, we do not consider them necessary.
As I said in Committee, I have concerns about amendments that would cut across the independence of coroners. As the House has just heard, they are a very ancient form of office, but they are a judicial office. How coroners conduct inquests and investigations is a matter—properly, I would say—solely for them. We do not want to introduce concepts such as consent from other parties which would cut across or fetter their judicial discretion.
For example, Amendment 21 seeks to require the coroner to provide interested persons with a provisional reason for discontinuing an investigation, enabling the interested persons to make an informed decision on whether to consent to the discontinuance. We would not expect judges or other tribunals to seek consent from others, especially from people who are not actually party to the proceedings, before taking this sort of decision and I suggest that we should afford coroners, as judicial officeholders, the same constitutional courtesy.
Moreover, necessary safeguards are already in place. Section 4(2) of the Coroners and Justice Act 2009 is clear on instances where a coroner may not discontinue an investigation, including violent or unnatural deaths, or deaths in custody or other state detention. They would also not be able to discontinue investigations which raise ECHR Article 2 considerations, even if the death is suspected to be from natural causes. Over and above that, Section 4(4) of the Act provides that where a coroner discontinues an investigation into a death, they must, if requested to do so in writing by an interested person, provide a written explanation as to why the investigation has been discontinued. We think that is a sufficient mechanism for interested persons to request an explanation for a discontinuance.
Amendment 22 seeks to provide a mechanism to challenge a coroner’s decision to discontinue. Again, routes are already in place. The challenge can be made by way of judicial review or, sometimes, through application to the High Court with the authority of the Attorney-General.
Giving coroners the flexibility to discontinue an investigation where there is clear evidence that the cause of death is natural eliminates the need for an unnecessary investigation and reduces distress for the bereaved, as well as freeing up resources to be deployed on more complex cases. Coroners will of course work sensitively with bereaved families and take their views into consideration. As I said in Committee, I would expect the Chief Coroner to provide guidance for coroners to accompany any changes in the law, to make sure that practice is consistent across coroner areas.
Amendment 23 would require the coroner to seek consent from interested persons before making a decision on whether to hold an inquest without a hearing. The same point on judicial independence applies. Clause 40 is designed to give coroners flexibility to determine when an inquest can be held without a hearing. It might be used where a family have indicated that they have no wish to attend the inquest, for example, or in cases where the coroner has no concerns as to the cause of death. Of course, we would expect coroners to use their discretion judiciously and judicially when applying this provision.
All these measures are designed to support the drive to remove unnecessary procedures from the coroners’ courts. That will help them in delivering recovery plans as they tackle the post-pandemic backlog of inquest cases.
Amendment 24, similarly, deals with remote hearings. The House may be aware that in fact, coroners’ courts have always been able to conduct virtual hearings, but there has been one proviso: that the coroner and jury—if there is one, because often there is not—must be present in the courtroom. That means that under the current law, everyone participating in an inquest can be remote except the coroner, who has to be physically present in a courtroom with nobody else there at all. I suggest that that is somewhat odd, and this provision enables all participants, including the coroner and any inquest jury, to participate remotely, and it brings coroners’ courts in line with other courts and tribunals.
I should add, however, for clarity that where an inquest jury is participating remotely, all members of the jury—which can be from seven to 11 people—must be physically present in the same place and at the same time. They cannot participate remotely from their individual front rooms, for example. We saw during the pandemic how remote hearings ensured that the wheels of justice kept turning, and we anticipate that remote hearings can continue to play a very useful role in coroners’ courts.
The amendment would also out in primary legislation the requirement for coroners to obtain consent before making a decision on whether to conduct an inquest hearing remotely. As to that, my same point about judicial independence applies.
For those reasons, I invite the noble Lord, Lord Ponsonby, speaking for the noble Baroness, Lady Chapman, not to press those amendments.
I turn finally to Amendment 28, tabled by the right reverend Prelate the Bishop of St Albans. He is absolutely right: we debated this only a few days ago, as matters have turned out. I appreciate that this is, as we have heard, somewhat of an attritional campaign, and he has moved the focus of the amendment slightly to deal with some of the points I made last week, and for that I am very grateful. Of course, we recognise the importance of collating quality information on the circumstances which lead to suicide, including gambling-related factors, but we think that the amendment would not deliver that outcome.
As I think I said last Friday, current legislation focuses the coroner on the question of who the deceased was and when, where and how they died, not why they died. That often strays into determining liability, which Section 5(3) of the 2009 Act expressly forbids. I appreciate that, as the right reverend Prelate informed us, some coroners have started to collate that information, but that is really one of the problems. We are very concerned that information collated in a somewhat haphazard manner would not be a sufficiently robust basis on which to base government policy. Furthermore, even if all coroners were asked to do it, we must recognise that coroners get information from a range of sources: family, partners, friends, police, et cetera. All those sources might give the coroner differing motivating factors which could have led to the suicide.
I repeat what I said on Friday: we will be publishing a White Paper in the coming weeks on the Gambling Act review, following the debate on the tragic death of Jack Ritchie, which the right reverend Prelate mentioned last week. We are committed to understanding the circumstances which lead to self-harm and suicide, including gambling addiction. We have commissioned the University of Sheffield to do some work in this area, and the Office for Health Improvement and Disparities has likewise committed to work with government departments and other stakeholders to improve data in this area.
I gave some more information last Friday about what the Government are doing in this area. I will not detain the House by repeating it, but I assure the right reverend Prelate that we are treating the issue with importance. However, we do not, respectfully, think that this amendment is the right way to deal with it. I therefore urge him not to press his amendments. I was going to say that I am very happy to continue the conversation, but I anticipate that this conversation will be continuing, whether I am happy to or not. In any event, I look forward to continuing it with the right reverend Prelate.
Lord Wolfson of Tredegar
“(4) In the following provisions of the Births and Deaths Registration Act 1953, for “revealed by post-mortem examination” substitute “becoming clear before inquest”—(a) in section 2(1), paragraph (ii) of the proviso;(b) in section 16(3), paragraph (ii) of the proviso;(c) in section 17(3), paragraph (ii) of the proviso;(d) section 29(3B).(5) In section 273(2)(a) of the Merchant Shipping Act 1995, for “revealed by post-mortem examination” substitute “becoming clear before inquest”.(6) In Schedule 21 to the Coroners and Justice Act 2009 (which, among other things, makes amendments to the Births and Deaths Registration Act 1953 that have yet to come into force)—(a) in paragraph 10(5), in the inserted subsection (2)(b), for “revealed by post-mortem examination” substitute “becoming clear before inquest”;(b) in paragraph 11(2), in the substituted section (A1)(b), for “revealed by post-mortem examination” substitute “becoming clear before inquest”;(c) in paragraph 16(2), in the substituted paragraph (a), for the words from “there has” to “the death,” substitute “—(i) there has been no investigation under Part 1 of the 2009 Act into the death, or (ii) such an investigation has been discontinued under section 4 of the 2009 Act (cause of death becoming clear before inquest) other than as mentioned in paragraph (b),”.”Member’s explanatory statement
This amendment adds consequential amendments to Clause 39.
“Publicly funded legal representation for bereaved people at inquests
(1) Section 10 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 is amended as follows.(2) In subsection (1), after “(4)” insert “or (7).”(3) After subsection (6), insert—“(7) This subsection is satisfied where—(a) the services consist of advocacy at an inquest where the individual is an interested person pursuant to section 47(2)(a), (b) or (m) of the Coroners and Justice Act 2009 because of their relationship to the deceased, and(b) one or more public authorities are interested persons in relation to the inquest pursuant to section 47(2) of the Coroners and Justice Act 2009 or are likely to be designated as such.(8) For the purposes of this section “public authority” has the meaning given by section 6(3) of the Human Rights Act 1998.””Member’s explanatory statement
This new Clause would ensure that bereaved people (such as family members) are entitled to publicly funded legal representation in inquests where public bodies (such as the police or a hospital trust) are legally represented.
Lord Ponsonby of Shulbrede (Lab)
My Lords, this group of amendments is about legal aid provision for bereaved people in inquests. The new clause introduced by Amendment 25 would ensure that bereaved people, such as family members, are entitled to publicly funded legal representation in inquests, where public bodies such as the police or a hospital trust are legally represented. The new clause introduced by Amendment 26 would remove the means test for legal aid applications for legal help for bereaved people at inquests. The new clause introduced by Amendment 27 would bring the Legal Aid, Sentencing and Punishment of Offenders Act 2012 into line with the definition of “family” used in the Coroners and Justice Act 2009.
This is a very important group of amendments and it is my intention to test the opinion of the House on Amendment 25. As Inquest and others have warned, the new coroners’ provisions contained in this Bill could exacerbate the difficulties already faced by bereaved families who are not eligible for legal aid during the inquest process. It is therefore more imperative than ever that an amendment be accepted to finally introduce equality of arms to inquests and provide automatic, non-means-tested public funding for bereaved families and people where the state is an interested person.
The current funding scheme allows state bodies unlimited access to public funds for the best legal teams and experts, while families often face a complex and demanding funding application process. Many are forced to pay large sums of money towards legal costs or represent themselves during this process; others use crowdfunding. The Bill represents a timely opportunity to positively shape the inquest system for bereaved people by establishing in law the principle of equality of arms between families and public authority interested persons. It is no longer conscionable to continue to deny bereaved families publicly funded legal representation where public bodies are legally represented. It is a very simple point, which has been made in numerous previous Bills. We have an opportunity here. I beg to move Amendment 25.
Lord Thomas of Gresford (LD)
My Lords, I do not think that the Government should hide behind the fact that an inquest is inquisitorial in procedure and not adversarial—that is a myth. It is not the case that there are no adversarial proceedings at an inquest. I have been in many inquests for trade unions, insurers and families, and each side tries to put forward a particular view of the facts which may impact considerably on questions of liability arising in civil proceedings later. I have nothing more to say, except that this amendment is limited to public bodies. I wish it was extended to more than public bodies and to any situation where a coroner faces a heavily weaponised side arguing one way and the family on the other. At that point, legal aid should be easily available to those who are disadvantaged.
Lord Thomas of Cwmgiedd (CB)
My Lords, as the Minister said a short while ago, this is a very ancient office, but the genius of our system, and of the coronial system, is that it has moved and adapted itself over the centuries. Over the last 20 or so years, inquests have changed beyond all recognition. The amount of money and resource now devoted to them, and what the public expect from them, is enormous. It cannot be right that, where the state is involved and has heavy representation, the bereaved family is not also provided for by the state. The coroner cannot remedy that. It is a myth to say that he can do this through his inquisitorial powers; that is simply not possible when you need expert and other evidence, and trained lawyers. I very much hope that the Government will seriously consider this. It is a very modest amendment and I warmly support it.
Baroness Jones of Moulsecoomb (GP)
I rise not to add any contribution on the legal side of things but just to add a little moral outrage, because this is an injustice. We all understand, I think, that the lack of public funding for bereaved families at inquests and inquiries just compounds their suffering. It is also very inefficient, because the point of having competent lawyers in court is that they can assist the court in the administration of justice. They can navigate complex issues of fact and law, which means that a just decision can be reached. It also provides the public with a huge service, because we all have to have confidence in the state to keep us safe in its custody and control.
I admit that it is hard when we have a Government such as this, but even so, I think we all understand that every death in police custody, prisons, mental health institutions or any other setting must be fully exposed through the inquest system, and this cannot be done without legal representation for bereaved parties. Without public funding it is actually a tax on bereaved families. It is time for your Lordships’ House to end this injustice by convincing the Government that they have to allow this amendment through.
Lord Wolfson of Tredegar (Con)
My Lords, I am grateful to noble Lords for their contributions to this short debate. I am conscious that the fact that the debate has been relatively short is not a reflection of the importance of the issue. On the contrary, as the noble and learned Lord, Lord Thomas of Cwmgiedd, said, this is a long-running issue. It is not quite as long- running as the coronial office, but it has been before the House before and doubtless it will be again.
I start by assuring the House that the Government believe that bereaved families should be at the heart of any inquest process, but we consider that, although there are some exceptions, which I will come to, legal representation and legal aid are not required for the vast majority of inquests. As I said on the previous group, the coroner’s investigation is a relatively narrow-scope inquiry to determine who the deceased was and how, when and where they died. In my meeting with Inquest last week, we obviously discussed the availability of legal aid for inquests. Again, I should put on record that although there are undoubtedly areas where Inquest would like the Government to go further, we had a productive and useful conversation.
Amendments 25, 26 and 27 all seek to expand access to legal aid at inquests. However, the amendments would also make that access to legal aid entirely non-means-tested. That would lead to significant and potentially open-ended cost to the taxpayer. It would also go against the principle of targeting legal aid at those who need it most, because these amendments would provide public funding for those who could, in fact, afford the cost themselves. Over and above that, I am not persuaded, with respect to my former and current colleagues, that having more lawyers at an inquest will provide an improved experience for the bereaved. Indeed, it could have the unintended consequence of turning an inquisitorial event into a complex defensive case, which would likely prolong the distress of bereaved families.
We do, of course, recognise that bereaved families need support and guidance. We have been working on several measures to make inquests more sympathetic to the needs of bereaved people. That includes publishing new guidance on the coroner service for bereaved families, engaging with the chief coroner on training for coroners and developing a protocol. I think this goes to the point made by the noble Lord, Lord Thomas of Gresford, that, where the state is represented, the protocol now is that the state will consider the number of lawyers instructed, so as to support the underlying inquisitorial approach to inquests.
I turn to the availability of legal aid. First, legal help is available under the legal aid scheme, subject to a means and merits test, which bereaved families can access if they require advice and assistance. Further, where certain criteria are met, legal aid for legal representation may be available under the exceptional case funding scheme. Where these criteria are met, we are of the view that that process should be as straightforward as possible. Therefore, as of January this year, there is no means test for an exceptional case funding application in relation to representation at an inquest or for legal help at an inquest where representation is granted.
Thirdly, we considered our approach to initial access to legal help at inquests in our recently published Legal Aid Means Test Review. This is something of an intimidating document, but I invite interested noble Lords to have a look at it. There, we have proposed to remove the means test for legal help in relation to inquests which relate to a possible breach of rights under the ECHR—it is generally Article 2, but not exclusively—or where there is likely to be significant wider public interest in the individual being represented at the inquest. We published that review on 15 March; a full consultation is currently open and will close on 7 June.
For those reasons, which go both to the nature of the inquest and what the Government are currently doing in this area, I invite the noble Lord who is proposing the amendments in the name of the noble Baroness, Lady Chapman, to withdraw them.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I thank all noble Lords who have spoken in this debate and have supported these amendments. The opening line from the noble Lord, Lord Thomas of Gresford, was that the Government should not hide behind the inquisitorial defence, if I can put it like that, and that is exactly what we have heard from the Minister today.
He chided me for limiting the amendments to public bodies. I accept that criticism to a certain extent; nevertheless, this is an opportunity for a radical improvement of the inquest system to provide a genuine public service. I absolutely agree with the point made by the noble Baroness, Lady Jones of Moulsecoomb, about the importance of public service, and this is a route to do that to the benefit of people in a distressed situation.
The noble and learned Lord, Lord Thomas of Cwmgiedd, gave a historical perspective, if I can use that expression, saying that coroners have changed and adapted over the years. Here is another opportunity to change and adapt for the public good. I think that if the Government are not willing to make that change, I would like to test the opinion of the House on Amendment 25.
Lord Wolfson of Tredegar
“Payments in respect of pro bono representation
(1) In section 194 of the Legal Services Act 2007 (payments in respect of pro bono representation in civil proceedings in England and Wales)—(a) in the heading, at the end insert “: civil courts in England and Wales”; (b) in subsection (8), for “by order made by the Lord Chancellor” substitute “under section 194C”;(c) omit subsection (9);(d) in subsection (10)—(i) in the definition of “civil court”, omit paragraph (a);(ii) omit the definition of “relevant civil appeal”.(2) After section 194 of the Legal Services Act 2007 insert—“194A Payments in respect of pro bono representation: tribunals(1) This section applies to relevant tribunal proceedings in which—(a) a party to the proceedings (“P”) is or was represented by a legal representative (“R”), and(b) R’s representation of P is or was provided free of charge, in whole or in part.(2) This section applies to such proceedings even if P is or was also represented by a legal representative not acting free of charge.(3) The tribunal may make an order under this section against a person if the condition in subsection (5) is met in respect of that person (and if subsection (7) does not apply).(4) An order under this section is an order for the person to make a payment to the prescribed charity in respect of R’s representation of P (or, if only part of R’s representation of P was provided free of charge, in respect of that part).(5) The condition is that, had R’s representation of P not been provided free of charge, the tribunal would have had the power to order the person to make a payment to P in respect of sums payable to R by P in respect of that representation.(6) In considering whether to make an order under this section against a person, and the terms of such an order, the tribunal must have regard to—(a) whether, had R’s representation of P not been provided free of charge, it would have made an order against that person as described in subsection (5), and(b) if it would, what the terms of the order would have been.(7) The tribunal may not make an order under this section against a person represented in the proceedings if the person’s representation was at all times within subsection (8).(8) Representation is within this subsection if it is provided—(a) by a legal representative acting free of charge, or(b) by way of legal aid.(9) For the purposes of subsection (8)(b), representation is provided by way of legal aid if it is—(a) provided under arrangements made for the purposes of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012,(b) made available under Part 2 or 3 of the Legal Aid (Scotland) Act 1986, or(c) funded under Part 2 of the Access to Justice (Northern Ireland) Order 2003 (S.I. 2003/435 (N.I. 10)).(10) Procedure rules may make further provision as to the making of orders under this section, and may in particular—(a) provide that such orders may not be made in proceedings of a description specified in the rules;(b) make provision about the procedure to be followed in relation to such orders; (c) specify matters (in addition to those mentioned in subsection (6)) to which the tribunal must have regard in deciding whether to make such an order, and the terms of any order.(11) In this section “relevant tribunal proceedings” means proceedings in—(a) the First-tier Tribunal,(b) the Upper Tribunal,(c) an employment tribunal,(d) the Employment Appeal Tribunal, or(e) the Competition Appeal Tribunal,but does not include proceedings within devolved competence.(12) For the purposes of subsection (11), proceedings are within devolved competence if provision regulating the procedure to be followed in those proceedings could be made by—(a) an Act of the Scottish Parliament,(b) an Act of Senedd Cymru (including one passed with the consent of a Minister of the Crown within the meaning of section 158(1) of the Government of Wales Act 2006), or(c) an Act of the Northern Ireland Assembly passed without the consent of the Secretary of State.(13) The Lord Chancellor may by regulations—(a) amend subsection (11) so as to add a tribunal to the list in that subsection, and(b) make consequential amendments of the definition of “procedure rules” in subsection (14).(14) In this section—“free of charge” means otherwise than for or in expectation of fee, gain or reward;“legal representative” means a person who is—(a) entitled in accordance with section 13 to carry on the activity of exercising a right of audience or conducting litigation,(b) a solicitor enrolled in the roll of solicitors kept under section 7 of the Solicitors (Scotland) Act 1980,(c) a member of the Faculty of Advocates in Scotland,(d) a person having a right to conduct litigation, or a right of audience, by virtue of section 27 of the Law Reform (Miscellaneous Provisions)(Scotland) Act 1990,(e) a member of the Bar of Northern Ireland, or(f) a solicitor of the Court of Judicature of Northern Ireland,irrespective of the capacity in which the person is acting in the proceedings concerned;“prescribed charity” means the charity prescribed under section 194C;“procedure rules” means—(a) Tribunal Procedure Rules, in relation to proceedings in the First-tier Tribunal or the Upper Tribunal,(b) Employment Tribunal Procedure Rules, in relation to proceedings in an employment tribunal or the Employment Appeal Tribunal, or(c) rules under section 15 of the Enterprise Act 2002, in relation to proceedings in the Competition Appeal Tribunal;“tribunal” does not include an ordinary court of law.(15) An order under this section may not be made in respect of representation if (or to the extent that) it was provided before section (Payments in respect of pro bono representation) of the Judicial Review and Courts Act 2022 came into force.” (3) After section 194A of the Legal Services Act 2007 (as inserted by subsection (2)) insert—“194B Payments in respect of pro bono representation: Supreme Court(1) This section applies to proceedings in a relevant civil appeal to the Supreme Court in which—(a) a party to the proceedings (“P”) is or was represented by a legal representative (“R”), and(b) R’s representation of P is or was provided free of charge, in whole or in part.(2) This section applies to such proceedings even if P is or was also represented by a legal representative not acting free of charge.(3) The Court may make an order under this section against a person if the condition in subsection (5) is met in respect of that person (and if subsection (7) does not apply).(4) An order under this section is an order for the person to make a payment to the prescribed charity in respect of R’s representation of P (or, if only part of R’s representation of P was provided free of charge, in respect of that part).(5) The condition is that, had R’s representation of P not been provided free of charge, the Court would have had the power to order the person to make a payment to P in respect of sums payable to R by P in respect of that representation.(6) In considering whether to make an order under this section against a person, and the terms of such an order, the Court must have regard to—(a) whether, had R’s representation of P not been provided free of charge, it would have made an order against that person as described in subsection (5), and(b) if it would, what the terms of the order would have been.(7) The Court may not make an order under this section against a person represented in the proceedings if the person’s representation was at all times within subsection (8).(8) Representation is within this subsection if it is—(a) provided by a legal representative acting free of charge, or(b) provided by way of legal aid.(9) For the purposes of subsection (8)(b), representation is provided by way of legal aid if it is—(a) provided under arrangements made for the purposes of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, or(b) funded under Part 2 of the Access to Justice (Northern Ireland) Order 2003 (S.I. 2003/435 (N.I. 10)).(10) Supreme Court Rules may make further provision as to the making of orders under this section, and may in particular—(a) provide that such orders may not be made in proceedings of a description specified in the Rules;(b) make provision about the procedure to be followed in relation to such orders;(c) specify matters (in addition to those mentioned in subsection (6)) to which the Court must have regard in deciding whether to make such an order, and the terms of any order.(11) In this section—“free of charge” means otherwise than for or in expectation of fee, gain or reward;“legal representative”, in relation to a party to proceedings, means— (a) a person exercising a right of audience, or conducting litigation, on the party’s behalf pursuant to an entitlement under section 13, or(b) a member of the Bar of Northern Ireland, or a solicitor of the Court of Judicature of Northern Ireland, practising or acting as such on the party’s behalf;“prescribed charity” means the charity prescribed under section 194C;“relevant civil appeal” means an appeal—(a) from the High Court under Part 2 of the Administration of Justice Act 1969,(b) from the Upper Tribunal under section 14B(4) of the Tribunals, Courts and Enforcement Act 2007,(c) from the Court of Appeal under section 40(2) of the Constitutional Reform Act 2005 or section 42 of the Judicature (Northern Ireland) Act 1978, or(d) under section 13 of the Administration of Justice Act 1960 (appeal in cases of contempt of court), other than an appeal from an order or decision made in the exercise of jurisdiction to punish for criminal contempt of court.(12) An order under this section may not be made in respect of representation in proceedings in a relevant civil appeal—(a) from a court in Northern Ireland, or(b) from the Upper Tribunal under section 14B(4) of the Tribunals, Courts and Enforcement Act 2007,if (or to the extent that) the representation was provided before section (Payments in respect of pro bono representation) of the Judicial Review and Courts Act 2022 came into force.”(4) After section 194B of the Legal Services Act 2007 (as inserted by subsection (3)) insert—“194C Sections 194 to 194B: the prescribed charity(1) The Lord Chancellor may by order prescribe a registered charity for the purposes of sections 194 to 194B.(2) The charity must be one which provides financial support to persons who provide, or organise or facilitate the provision of, legal advice or assistance (by way of representation or otherwise) which is free of charge.(3) In this section—“free of charge” means otherwise than for or in expectation of fee, gain or reward;“registered charity” means a charity registered in accordance with—(a) section 30 of the Charities Act 2011,(b) section 3 of the Charities and Trustee Investment (Scotland) Act 2005 (asp 10), or(c) section 16 of the Charities Act (Northern Ireland) 2008 (c. 12 (N.I.)).(4) An order under section 194(8) that was in force immediately before section (Payments in respect of pro bono representation) of the Judicial Review and Courts Act 2022 came into force—(a) remains in force despite the amendment by that section of section 194(8),(b) has effect as if its prescription of a charity for the purposes of section 194 were the prescription of that charity under this section for the purposes of sections 194 to 194B, and(c) may be amended or revoked by an order under this section.”(5) For the purposes of sections 194A and 194C of the Legal Services Act 2007 (as inserted by subsections (2) and (4)), sections 204 and 206 of that Act extend to Scotland and Northern Ireland as well as England and Wales.(6) In paragraph 17(1) of Schedule 4 to the Enterprise Act 2002 (rules that may be made about procedure of Competition Appeal Tribunal), omit paragraph (ha).(7) In paragraph 32 of Schedule 8 to the Consumer Rights Act 2015 (amendments of paragraph 17 of Schedule 4 to the Enterprise Act 2002), omit sub-paragraph (a).”Member’s explanatory statement
This new Clause allows certain tribunals to order a person to make a payment to a legal assistance charity where a party to proceedings has been represented pro bono and the person would otherwise be liable for that party’s costs. It also allows the Supreme Court to make such orders in appeals from Northern Ireland or from the Upper Tribunal.
Lord Wolfson of Tredegar (Con)
My Lords, I am conscious that this is the last group, and I hope that we can end Report on a point of unanimity across the House. In Committee, I welcomed the proposal from the noble and learned Lord, Lord Etherton, to allow pro bono costs orders to be made in tribunals, in much the same way as they are already available in the civil and family courts. I am now very pleased to bring forward a government amendment that achieves this.
There are some differences in the way that this amendment is drafted. I have discussed these with the noble and learned Lord but, to point them out to the House, the reasons for these changes from the original draft are to ensure that we do not prescribe rules for tribunals outside of the Government’s control, nor trespass on the competence of the devolved Administrations. The amendment captures the majority of tribunals in which costs orders might be made and creates a power for the Lord Chancellor to bring additional tribunals within the scope of this power through secondary legislation.
In some respects, we are in fact going further than the original text from the noble and learned Lord, Lord Etherton, by ensuring that, where the tribunal is reserved and provision regulating the tribunal’s procedure could not be made by any of the devolved Assemblies—as, for example, when the Immigration and Asylum Chamber of the First-tier Tribunal or the employment tribunal sits in Scotland—the tribunal can, under this amendment, none the less make a pro bono costs order regardless of where the tribunal is sitting within the UK. I suggest to the House that this is a positive step for two reasons. First, it will provide additional funding to the Access to Justice Foundation, I hope in a material manner. Secondly, it will level the playing field between parties where one is represented pro bono.
There are also some consequential amendments in this group as to the extent and commencement clauses of the Bill. I beg to move.
Lord Etherton (CB)
My Lords, I am extremely grateful to the Minister for tabling this amendment. I strongly support it, and it is warmly welcomed by the Access to Justice Foundation, which is the prescribed charity in the new amendment. As the Minister has said, it replaces my own amendment along generally similar lines, which I tabled earlier. It would not have come without the active support of the Minister and his very helpful engagement with me both in meetings and in correspondence. I urge all Members of the House to support it.
Lord Marks of Henley-on-Thames (LD)
My Lords, we very much welcome this amendment and thank the Minister very much for responding so positively to the suggestion. There was never any justification for a distinction between tribunals and courts in this regard. Also, the House has every reason to be very grateful to the noble and learned Lord, Lord Etherton, for pushing the point and bringing it to such a successful conclusion.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I, too, thank the Minister for these amendments and the noble and learned Lord, Lord Etherton, who has had a number of discussions with the Minister on this point. He very generously thought that the Government’s amendment was a more suitable wording, if I can put it like that. I do not know whether that is right, but that is the sense I got. It is good to finish Report on a note of agreement, which it does through these government amendments.
Lord Hacking (Lab)
My Lords, I also endorse what was said and support the Bill, particularly because I struggled back from Portsmouth, not for the beginning of Report, alas, but in time to vote. The Minister did say to me—I hope that I am not breaking any confidences—“You’ve just come back to vote against me”, but may I record that I am voting with him on this issue?
Lord Wolfson of Tredegar
My Lords, I am grateful to everyone and look forward to the noble Lord’s support on issues where it might matter more that he is on my side, but I am always grateful for any support that I get from any quarter.
More seriously, I am grateful to the House for what seems to be unanimous support for this amendment. We have made good progress timewise this afternoon and I will not detain the House for very long, but I would like again to place on the record my personal thanks and the thanks of my department to the noble and learned Lord, Lord Etherton, for his engagement on the issue and for proposing it in the first place. He had a number of meetings both with me and officials, and I am really pleased that we have got to a good result here. I also thank the Access to Justice Foundation, which has worked with the noble and learned Lord and with my team to make sure that the amendment works in practice as effectively as possible. For those reasons, I invite the House to support the amendment.
Amendment 29 agreed.
Clause 49: Extent
Amendments 30 and 31
Lord Wolfson of Tredegar
Member’s explanatory statement
This amendment is consequential on the amendment at page 58, line 32 in the name of Lord Wolfson of Tredegar.
“(3A) Section (Payments in respect of pro bono representation)(3) extends to England and Wales and Northern Ireland. (3B) Section (Payments in respect of pro bono representation)(2) and (4) extends to England and Wales, Scotland and Northern Ireland.”Member’s explanatory statement
This amendment provides for the provisions inserted by the new clause after Clause 47 in the name of Lord Wolfson of Tredegar to extend to Scotland or Northern Ireland as necessary.
Lord Wolfson of Tredegar
“(za) section 11;”Member’s explanatory statement
This amendment provides for Clause 11 to come into force on Royal Assent.
“(a) section 13(3);”Member’s explanatory statement
This amendment results in clause 13 and its associated amendments, except for subsection (3) of the clause, coming into force by regulations rather than on Royal Assent (subject to the amendment in the name of Lord Wolfson of Tredegar at page 59, line 10).
“(ba) paragraphs 12 to 14 of Schedule 2, and section 18 so far as relating to those paragraphs;”Member’s explanatory statement
This amendment is consequential on the amendment in the name of Lord Wolfson of Tredegar at page 59, line 3, and provides for amendments related to Clause 11 to come into force on Royal Assent.
“(1A) If paragraph 24(2) of Schedule 22 to the Sentencing Act 2020 (as it was enacted) has been brought in force in relation to either-way offences before the passing of this Act, the following provisions come into force on the day after the day on which this Act is passed—(a) section 13 (except subsection (3));(b) paragraphs 16 to 20 of Schedule 2, and section 18 so far as relating to those paragraphs.”Member’s explanatory statement
This amendment brings Clause 13 and its associated amendments into force the day after Royal Assent if the provisions to which it relates are in force by then.
“(d) section (Payments in respect of pro bono representation).”Member’s explanatory statement
This amendment provides for the new Clause after Clause 47 in the name of Lord Wolfson of Tredegar to come into force two months after Royal Assent.
Lord Wolfson of Tredegar
“(5A) The coming into force of paragraph 20(b) of Schedule 2 results in the provision it inserts becoming subject to section 417(1) of the Sentencing Act 2020 (power to commence Schedule 22 to that Act).” Member’s explanatory statement
This amendment clarifies the prospective effect of paragraph 20(b) of Schedule 2.
Lord Wolfson of Tredegar
“19A_ In section 42 of the Gambling Act 2005 (offence of cheating at gambling)—(a) in subsection (4)(b), for “51 weeks” substitute “the general limit in a magistrates’ court”;(b) in subsection (5), for “51 weeks” substitute “the general limit in a magistrates’ court”.”Member’s explanatory statement
This amendment brings the maximum term of imprisonment on summary conviction of an either-way offence under section 42 of the Gambling Act 2005 into line with the maximum term generally available in such cases.
The Deputy Speaker (Lord Duncan of Springbank) (Con)
My Lords, I am aware that we are without the Minister, so shall we have a brief pause while he is rustled up? That will allow some people to escape the Room and, hopefully, we can track down the Minister. We are all just too efficient—that is why it has happened.
Viscount Younger of Leckie (Con)
My Lords, in the absence of the Minister, who is not too far away, I suggest that the House do now adjourn until 5.10 pm.
Ukraine Refugee Visas
(2 years, 8 months ago)
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The Minister of State, Department for Levelling Up, Housing and Communities and Home Office (Lord Harrington of Watford) (Con)
My Lords, with the leave of the House I shall now repeat in the form of a Statement the Answer to an Urgent Question given in the other place by my honourable friend the Minister for Safe and Legal Migration. The Statement is as follows:
“The conflict in Ukraine continues to shock the world. Putin’s invasion is deplorable and he must fail. We stand shoulder to shoulder with Ukraine and the Ukrainian people. We are steadfast in our determination to help Ukrainians find safety in the face of Russia’s aggression, which is why the Government have mounted a comprehensive humanitarian response. In a short space of time, we have set up two new visa schemes from scratch, made changes to support Ukrainians already in the UK and surged our operations to meet demand.
The family scheme for Ukrainians has already seen more than 23,500 visas issued to family members of Ukrainians already here in the UK. After setting up the scheme, we further extended it to cover wider family members. Alongside this, we set up the Homes for Ukraine scheme to provide a safe and legal route for Ukrainians without existing family ties in the UK. That is led by the Department for Levelling Up, Housing and Communities and my honourable friend the Member for Walsall North will update on this shortly. It has been heart-warming to see so many members of the public coming forward as sponsors. Both schemes are free and allow people on them to work and access public funds.
We have made it as easy as possible for people to apply. We have simplified the application form to make it quick and easy to use. We have increased capacity in visa application centres across Europe. Following advice from security and intelligence agencies that it was safe to do so, we have removed the need for those with valid passports to provide their biometrics before arriving in the UK, allowing the majority of applicants to apply entirely online. We regularly monitor the scheme’s operational performance, bringing in additional caseworkers to ensure that Ukrainian applications are prioritised. Our humanitarian response has involved the whole of government, local authorities and the devolved Administrations, and we will keep working together to support Ukrainians who want to come to the UK. We will do what is right.”
Lord Ponsonby of Shulbrede (Lab)
My Lords, I thank the Minister for repeating the Statement. I understand that it is remarkably similar to the second Statement that is going to be repeated—but nevertheless.
The British people have shown immense generosity in the support they want to provide to the Ukrainian people. The purpose of this is to look at Home Office bureaucracy and challenge the Government about whether the bureaucracy that has been put in place is inhibiting people in a desperate situation from coming to this country. The Minister repeated the statistic that 23,500 visas had been issued for family members, but the figure that has been repeatedly asked for, and which has not been given, so far as I am aware, is for how many have arrived. I do not know whether the Minister is able to answer that question now. When I asked him about it a couple of days ago, he did not have the figure.
The Statement made a point about the relaxation of the rules regarding biometric tests for those with valid passports. Another question which I also asked a couple of days ago was about the position of very young children who do not have a passport, and newborn babies and those soon to be born. How will their families be affected? Will the parents and wider family still be required to travel long distances to have the biometric tests done?
Another question is how many extra caseworkers has the Home Secretary appointed to help families fleeing war? Are there more to be recruited?
Lord Harrington of Watford (Con)
I thank the noble Lord, Lord Ponsonby, for his very valid questions. On his first question on the number of arrivals, I cannot give him that number, but I said that I would write to the House of Commons DLUHC Select Committee, so will of course write to him. I said Friday or Monday; I would like to keep to that and certainly will.
The noble Lord’s second question was to do with children. If I may paraphrase, he said, “Yes, everyone knows security is important, but what security risk can children pose? Do children with their mother have to have biometric tests, et cetera?” The answer is yes, but I should explain the reason, because I asked that question a lot myself, as the noble Lord may imagine. Unfortunately, people traffickers are alive and well and are prospering. We have been warned of this by the Ukrainian and Polish Governments, so we have to be sure that the children are in fact the children of the person claiming to be their mother and I am afraid that involves a visit to the visa centre. All I would say in mitigation is that 90% of applicants are now able to apply online without using the biometric tests. The visa centres are a much quicker way of doing it. The officials are briefed to do it as quickly as possible. If there is evidence that we can look at that those children are children of the mother that they say they are, we are flexible as we can be, but I make no excuse for doing that, because we do not know another way around it.
Finally, conscious that we have 10 minutes, as mentioned by my noble friend, I come to the bureaucracy and the extra caseworkers. This has been geared up a lot. In fact, I am going to Sheffield tomorrow to see the process right the way through the system. There are hundreds of extra caseworkers. We are doing evening shifts and weekend shifts to make sure that the current backlog is expedited as quickly as possible.
Baroness Sheehan (LD)
My Lords, on Monday, the Minister told me from the Dispatch Box that I was wrong when I raised concerns about application forms for Ukrainian refugees being available only in English, yet just last night, the Home Office confirmed that this is indeed the case. It said that Ukrainians seeking refuge could ask their sponsor to fill the form out for them instead. This is a ludicrous suggestion and further elongates an already arduous process. Does it not show that the Government are once again putting paperwork before people? Does the Minister accept that his remarks on Monday were wrong and will he please correct them?
Lord Harrington of Watford (Con)
I thank the noble Baroness, Lady Sheehan, for her question. If I misled her or this House, it was the last thing I intended to do. My memory is that I said that the forms are in English, but there are drop-down bits on the website that translate matters into Ukrainian. If that is not the case, I apologise to the noble Baroness. That is certainly in train and she is absolutely right to ask that question. I am very happy to contact her separately with a progress report on that. I apologise to her and the House if I misled her, but assure her that it was not done on purpose.
Baroness Finlay of Llandaff (CB)
Could the Minister please tell us how many whole-time equivalent staff have been taken on in addition to manage the process? How many Ukrainian translators have been drafted in to assist with the process? Who is the official employed full time to oversee the Homes for Ukraine scheme and how are they being held to account? Why is there no processing of DNA on arrival in place if there are concerns about the children? Where is the information on an appeals process if somebody is rejected?
Lord Harrington of Watford (Con)
The noble Baroness has asked a lot of questions in one go; I will do my best. On the number of extra staff taken on, I am now satisfied with staffing levels. There are 300 staff in Sheffield alone, and the total number of staff on this, in the different areas, comes to nearly 1,000.
The noble Baroness asked whether there is an appeals process. I do not believe there is. I shall check that, but for the moment the question has not come up. Most people who have applied have been accepted. We really are doing the best we can to make sure that everyone suitable is accepted. She asked me a further question on DNA, which she had asked me before and I found extremely interesting. I am trying to find out the answer.
The problem at the moment is not rejecting people but speeding up the system. I was taken on by the Prime Minister to do this, and I bear full responsibility for it. It is not an excuse, but the system is far faster than it was last week and the week before, and I am expecting significant incremental increases next week and the week after. At the DLUHC Select Committee I was asked what I felt would be the run rate imminently —next week or the week after—and I mentioned 15,000 per week.
Lord Cormack (Con)
My Lords, I have one question. I handed to my noble friend a letter signed by eight rectors and vice-rectors of medical universities in Ukraine and asked for the expediting of visas for those who have been invited by British universities. What progress has been made on that?
Lord Harrington of Watford (Con)
I thank my noble friend Lord Cormack for his question. He and I have discussed this most days since he gave me the letter last week. The way government works, the responsibility for this is with the Department for Education. I have taken it up—I believe he has too—with the Universities Minister, and I hope to have an answer for him soon. He gave me until early next week, and I intend to keep to that.
Lord Dubs (Lab)
My Lords, the Minister has certainly got into the real hot seat of the Government, and I wish him well. I do not like to be churlish, because he has not been in the job a long time, but a number of things are quite puzzling. I have written to him about a family, a mother and a child, who have made five separate applications to get here, yet nothing seems to be happening. The bureaucracy is still there, and it is delaying people. We are a laughing stock. One has only to switch on the news; every day there are families complaining that they cannot get here. It is embarrassing for us all.
One other thing: the Minister says he does not know the number of arrivals. That seems to contrast with the almost daily tally of people who have arrived illegally on boats. We seem to know exactly how many have arrived day by day, yet we do not know how many there are when they come under an official scheme. We need to be given confidence that something is working.
Lord Harrington of Watford (Con)
I thank the noble Lord, Lord Dubs, and I hope he knows that I have the utmost respect for him. I worked with him on the Syrian refugee programme. He disagreed with me a lot then, but we had a very proper and positive dialogue. I think he also knows that it is always my hope and attempt to do what he asks me to do, because that is the kind of person he is—and, I hope, the kind of person I am. What he said about the five applications is totally unacceptable. I apologise if he has not had an answer. I personally have not seen his letter, but before I go home today I will make sure that I have and will report to him on that.
I take a little—I want to be tactful and not say “offence”; I do not say that at all—disagreement with what he said about us being a laughing stock. With our family scheme and our Homes for Ukraine scheme, more than 20,000 people have gone through the system. I assure him and noble Lords that this is not complacency. The figure is more than 3,000; the scheme started days ago. I will be held to account at this Dispatch Box, but I think it is too early to do so.
The Deputy Speaker (Lord Duncan of Springbank) (Con)
My Lords, the time allowed for this Question has now elapsed. I understand that the Whip wishes to make a point.
Viscount Younger of Leckie (Con)
My Lords, before we move on to the second UQ, I urge noble Lords to keep their questions very succinct and short—ideally just one question, possibly two—then hopefully my noble friend will be able to keep his answers short as well. The more Peers who can get in on this important subject, the better.
Lord Dubs (Lab)
My Lords, the Minister answering read the whole Statement, which is quite proper, but it took up half the time. Surely that should not eat into our time.
Viscount Younger of Leckie (Con)
Could I possibly put the noble Lord right? The Clock started from nought after the Statement was read, so there was a full 10 minutes after the Statement was read.
Lord Harrington of Watford (Con)
I assure the noble Lord, Lord Dubs, that I would much rather have the Statement taken as read. I was told that, because it was delivered today, that is not possible. I will try to read quickly before the 10 minutes starts.
Homes for Ukraine Scheme
(2 years, 8 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Minister of State, Department for Levelling Up, Housing and Communities and Home Office (Lord Harrington of Watford) (Con)
I will do my best not to duplicate the previous Statement and to read as quickly as possible. I will not repeat that
“President Putin’s bloody invasion is a barbaric and unprovoked attack”—
I think everybody knows that:
“In this country there has been an outpouring of public support for the Ukrainian people. We have matched the generosity of the British public with an ambitious humanitarian offer to Ukrainians who wish to come to the UK to escape conflict. Members of this House will know, since the Home Office opened and expanded the family scheme and DLUHC launched the Homes for Ukraine scheme with our colleagues, both schemes have received thousands of applications from people willing to open their hearts and their homes to a new guest.
We have balanced the need to move rapidly with the equal need to get the scheme right. On Friday 18 March the visa application process was opened, and we have already seen the first arrivals coming to the UK. We are minimising bureaucratic foot-dragging and cutting unnecessary red tape, while making sure that people are being set up in the best possible situation to start a new life in the UK, where they can access the right local services and support.
The scheme will be a success only if local and national government are working as one, and councils are being provided with £10,500 per guest to help with them all. We have been working with the Local Government Association and individual councils across the country to fine-tune the practicalities and logistics of the scheme. As the Levelling Up Secretary said, we will keep things under review to make sure that the Government have what they need and get what they need. We are working closely with the devolved Administrations. Four million Ukrainians have been displaced in this bloody and unjust war so far. We are responding to the gravity of this conflict, and we will continue to work with Members of the House to open up our communities to Ukrainians in the weeks and months ahead.”
Baroness Hayman of Ullock (Lab)
My Lords, during the Statement in the other place, the Minister said that 200,000 people were interested in the Homes for Ukraine scheme, yet figures released confirm that just 2,700 visas have been granted so far under the scheme. It appears that Ukrainians are not sufficiently aware of its existence. So what are the Government doing both to raise awareness and to simplify the process as much as possible?
Secondly, the Local Government Association told the DLUHC committee yesterday that 144 Ukrainians refugees had presented as homeless. The Minister, Eddie Hughes, said the Government were going to investigate to ensure an understanding of what had led to this. But they urgently need housing, so can I ask the Minister what is actually being done to provide them with homes?
Finally, the Prime Minister has accepted that councils should have access to the database of sponsors so they can be responsible for matching up refugees with sponsors who want to house them. Can the Minister confirm that this is actually going to happen? What urgent guidance and support in this area are being given to councils so they can provide this much-needed support?
Lord Harrington of Watford (Con)
I thank the noble Baroness, Lady Hayman, for her comments—again, very constructive and helpful. I will do my best to answer them as quickly as possible, owing to time. The first question was about how we are making Ukrainians aware of our schemes. The answer to that is that now, through our work with the Polish authorities, when people pass into Polish territory, they will download a QR code, and that will give them all the information about our scheme, which is translated into their languages. Secondly, we are providing leaflets in Ukrainian that are distributed widely through NGOs as well as by our own staff. We are very conscious of this, and the noble Baroness makes a valid point. We need to do more. But now we are basically sending a message to everybody through a phone messaging system.
The second question was on simplification of the process. I have spoken extensively about that. I will not repeat myself, but my whole being is to simplify this process as quickly as possible.
Thirdly, the noble Baroness asked about the implications for the 44 people who have been made homeless. This is not an excuse, but I should clarify that this is from the family programme, not the sponsor programme. It is the responsibility of local authorities to deal with them. It is not acceptable. Of course, they have the money to deal with homeless people, but they should not be homeless because they are on a family scheme.
The noble Baroness’s final point is to do with the guidance that local authorities receive. I am sure she is aware, but there is extensive guidance on the internet, and I have regularly met the main people at the LGA to try to brush up on this. I have had conversations with CEOs of councils and with the political leaders of all parties to try to hone this.
Baroness Sheehan (LD)
My Lords, yesterday the noble Lord, Lord Ahmad, in response to the Statement on Ukraine, said that 2,700 visas had been granted to Ukrainian refugees. Can the Minister say whether that number refers to applications for the Homes for Ukraine scheme? My understanding is that people who do manage to navigate that application process are issued a reference number, not a visa, and then have to await an official letter of permission to travel to the UK, without which they cannot enter the UK. This is yet another example of putting paperwork before people. How many people have received that letter and, as a consequence, how many people have arrived in the UK?
Lord Harrington of Watford (Con)
I am happy to clarify the questions asked by the noble Baroness, Lady Sheehan, which are, as usual, precise, to the point and perfectly valid. I should explain what happens with the Homes for Ukraine scheme. People apply when they get their security clearance—I do not want to give the impression that “security” is to do with spies; it is mainly to do with people trafficking, paedophilia and other things. At that stage they get an email back that grants their permission to come in. That is a PDF with permission to fly. That is for the 2,700.
Lord Alton of Liverpool (CB)
My Lords, can the Minister say who is the official employed full-time to oversee the process? Will he arrange for him to attend the regular briefings organised by the Foreign Office and the Ministry of Defence, which no one from the Home Office or his own unit attends, in order to brief Members of both Houses? Can he also say whether he will look, as I did last week, at the way family units are being kept together in Lithuania when refugees arrive from Ukraine, and at whether we are doing the same here?
Lord Harrington of Watford (Con)
I thank the noble Lord, Lord Alton, for his question. I am certainly happy to do what he suggests with the family units; that is a very good point. On his first question, I apologise: I was thinking of the answer to his second question, but I will look it up and write to him. I do know the answer, but I was thinking of his second question.
Lord Porter of Spalding (Con)
My Lords, can I ask the Minister to check again his statement about all the families who are presenting as homeless coming on the family scheme? I should declare an interest as part of the LGA. My understanding is that about a third of those who have presented as homeless so far have come from that scheme. One of the obvious reasons for this is probably that the families they come to already live in houses in multiple occupation, and may not have enough room to accommodate more people.
Lord Harrington of Watford (Con)
My noble friend is right, and I will look at the number that he said. As I say, 44 was mentioned at the Home Affairs Select Committee. The family scheme does not stipulate, or attempt to stipulate, that the accommodation being offered is suitable. It is a family reunion scheme which, although it has greatly expanded, is based on one that tens of thousands of people from all over the world come in on every year. We have accelerated it for this and we have broadened the definition of “family” as much as we possibly can because of the desperate situation, but of course I will look into it.
Lord Berkeley (Lab)
My Lords, the Minister has said several times how helpful the Polish Government have been. That is really good, because the Polish Government have been infamous for bureaucracy in the past. I hope that they are not learning bureaucracy of biometrics from us, because they have more important things to do. Can the Minister explain how those few people who are getting here so far are being transported and who is paying for it, be it by rail, by road or by air? Are they getting free transport or are we making them pay?
Lord Harrington of Watford (Con)
I hope that I can answer the noble Lord’s question straightaway. On who pays for them, people are responsible for their own flights, but the operators, Wizz Air and others, are giving either free or very cheap flights. People whom I spoke to last week had paid £10 each. Once they get here, they receive free road, rail or other transport to get to their destination. That was announced last week by the Transport Secretary.
Lord Hannay of Chiswick (CB)
Will the Minister accept thanks for having finally clarified that the issue of security is not about catching spies but about dealing with people traffickers? Are we liaising in the most intense way possible with Europol, which I presume is also following this same process to try to stop any refugees falling into the hands of traffickers?
Lord Harrington of Watford (Con)
I can confirm what the noble Lord has asked about liaising with all the foreign agencies. I am glad to have picked up on our main security concerns. I think “security” is the wrong word. Obviously, national security is very important, but it as much security for the people who could be trafficked as it is security in a more general sense.
Baroness Morgan of Cotes (Con)
My Lords, further to the question from the noble Lord, Lord Alton, can my noble friend offer any advice to a family currently in Poland, a mother and two young daughters, where the daughters have been issued visas but the mother is still waiting? Without the mother having a visa, clearly they will not be able to travel to this country to take advantage of this scheme.
Lord Harrington of Watford (Con)
I thank my noble friend Lady Morgan for her question. If the mother in this case has a Ukrainian passport, it should be really easy for her to get a visa, by simply filling out the form and downloading it. If she does not have a passport, that could be why a visa has not been issued. For that, she would have to go to one of the VACs. I can assure her that the VACs would be very sympathetic and do everything they could to give permission. However, to give a more a detailed answer, I would have to know why she has not got her visa if she has uploaded a passport.
The Deputy Speaker (Lord Duncan of Springbank) (Con)
My Lords, the time allowed for this Question has now elapsed.