House of Lords
(9 months, 3 weeks ago)
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Death of a Member: Baroness Flather
(9 months, 3 weeks ago)
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The Lord Speaker (Lord McFall of Alcluith)
My Lords, I regret to inform the House of the death of the noble Baroness, Lady Flather, on 6 February. On behalf of the House, I extend our condolences to the noble Baroness’s family and friends.
Post Office Appointments: Ministerial Responsibility
(9 months, 3 weeks ago)
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Lord Touhig
To ask His Majesty’s Government what responsibility ministers have for the appointment of the Board and Chief Executive Officer of the Post Office.
The Parliamentary Under-Secretary of State, Department for Business and Trade and Scotland Office (Lord Offord of Garvel) (Con)
My Lords, I thank the noble Lord for his Question. As set out in the Post Office’s articles of association and shareholder relationship framework document, the Secretary of State for Business and Trade appoints the chair and directors of the Post Office and approves the appointment of the chief executive officer. Strong and effective leadership of the Post Office is a necessity and the Government therefore take their role in making the right appointments very seriously.
Lord Touhig (Lab)
My Lords, I believe that the shortcomings of the Post Office board and senior executives were responsible for this unparalleled injustice. Last week, the Minister said that the Government were looking at tightening the governance of the Post Office. Can I suggest that one way of doing this would be for the Ministers making the appointments to also ensure regular appraisals of those they have appointed? After all, who among us in this Chamber has not gone through an appraisal at some time? If such an appraisal scheme already existed, perhaps sub-postmasters across Britain would not be in despair, feeling that they were—I think of the words of Toby Jones, who played Mr Bates in the TV drama—the “skint little people” who are
“fighting a war against an enemy owned by the British Government”.
Lord Offord of Garvel (Con)
I thank the noble Lord for that. The whole House shares the noble Lord’s sentiments that this is a deeply shameful episode, which went on for over 20 years. It is quite incredible to think back on the scale of the failure here, both of governance and of corporate life. Since the Horizon scandal came to light, the Government have taken quite a lot of steps to strengthen the governance of the Post Office. However, there are a number of ongoing reviews, including one by Simmons & Simmons, to look at exactly how the appraisal system works. Once the Wyn Williams review—a statutory inquiry—has concluded, we will be able to take steps around corporate governance going forward.
Lord Arbuthnot of Edrom (Con)
My Lords, in an arm’s-length organisation, to whom in practice is the chief executive accountable? Is it the department’s Permanent Secretary?
Lord Offord of Garvel (Con)
I thank my noble friend for his question and for all his efforts on behalf of the postmasters. We have to realise that this is a limited company owned entirely by the Government, with one share owned by the Secretary of State. It separated from Royal Mail Group when that went private, but the Post Office is actually classified as a public non-financial corporation. Public corporations include, for example, Ordnance Survey, Royal Mint and British International Investment. They are typically owned by the appropriate Secretary of State in that department, the reason being that they are hybrid: the Post Office has commercial activity, it makes revenue through the post offices, but it also receives public money to support the network. As a result, the governance is such that the chief executive reports to the chair, the chair reports to the Secretary of State, and the chief executive also reports to the Permanent Secretary when it comes to public money.
Lord Fox (LD)
My Lords, I am not sure that the Minister answered the question from the noble Lord, Lord Arbuthnot. We agreed that the Post Office needs leadership, and last week the Minister said:
“We will appoint an interim chair as soon as possible”.—[Official Report, 30/1/24; col. 1122.]
Perhaps with another week, the Minister can dwell a little more on the process. When will the details of the process be published? How will the job description of this appointment differ from the job description that was used by Business Secretary Kwasi Kwarteng when he appointed Henry Staunton as recently as September 2022? What will change in the job description of the chairman from the last appointment?
Lord Offord of Garvel (Con)
I thank the noble Lord for that question. The corporate answer is that the chief executive reports to the chairman; the job of the chairman is to fire the chief executive on behalf of the shareholder; the shareholder is the Government and, since these matters came to light in 2020, we have had the new shareholder relationship document that outlines all the governance on this. Indeed, the Minister for the Post Office has had monthly meetings, starting with Minister Scully through to the current Minister, Minister Hollinrake, with the chief executive. When the new chair is appointed, that chair will step into the position and continue to run the board on behalf of the Government.
Lord Hain (Lab)
I am sorry, but the Minister has not answered the question from the noble Lord, Lord Arbuthnot.
Baroness Williams of Trafford (Con)
Order. It is the turn of the Cross Benches.
Baroness Butler-Sloss (CB)
My Lords, as a member of one of the departments is a member of the board of the Post Office, at the relevant time—and the board knew quite early on that Horizon was not working properly—why did that representative not tell the Government, or did he do so?
Lord Offord of Garvel (Con)
I thank the noble and learned Baroness: this is the whole purpose of the inquiry. I cannot answer the specific questions, not having been there myself. The inquiry will look into this. What is clear is that there has been a failure of governance. On the face of it, Post Office Ltd is set up with the right checks and balances in place. There have been non-executive directors, there is the government representative on the board, there is a chairman: on the face of it, it should be subject to the governance that we see in private companies. For some reason, there has been a lack of inquiry and of challenge and we need to understand why and find out who is accountable for that.
Lord Hain (Lab)
My Lords, is this not a systemic failure of the whole state? The answer to the question from the noble Lord, Lord Arbuthnot, is that the Permanent Secretary is the accounting officer for the Post Office, and the department puts a director on the board of a public corporation. This is not just about the failings of Post Office managers; it is about the failings of the whole state, which sacrificed pillars of the community to suffer one of the gravest injustices committed in recent times.
Lord Offord of Garvel (Con)
I thank the noble Lord for that: no one can disagree with his sentiments. As I said, the machinery was put in place, but there was a lack of scrutiny, inquiry and challenge from the non-executive directors, from, perhaps, the chair, and from, perhaps, the Ministers. The Permanent Secretary role is a key one because, using the public accounting model, they meet with the DBT on a quarterly basis to have that line of communication as well. There was no shortage of lines of communication here.
Lord Forsyth of Drumlean (Con)
My Lords, my noble friend has vast experience in private equity and elsewhere in business. Does he not agree that, faced with this kind of disaster, the first thing any private business would do is clear out the entire board, without necessarily attributing any blame, and put in a new team of people who did not have any baggage in order to sort it out. Why do the Government not get on and do that?
Lord Offord of Garvel (Con)
Three new non-executive appointments were made in 2023 and there will be a new senior independent director appointed and a new chair. Two postmaster directors have also been appointed to the board. The current chief executive, who came in in 2019 at the point of the judgment, remains in place. We continue to have faith in him to move this thing forward quickly, with the right amount of oversight. We have confidence in the board as it is reconstituted. But, as has been said, the question is: why did the original failure happen? We need to find that out.
Lord McNicol of West Kilbride (Lab)
My Lords, the financial cost of the Horizon scandal is going to be in excess of £1 billion, and that does not take into account the personal cost to the postmasters and postmistresses, some of whom are here with us. Fujitsu has offered to pay a voluntary contribution but, more importantly, should the Post Office wish to sue Fujitsu, is it still in time to do that and when did the Post Office agree a standstill?
Lord Offord of Garvel (Con)
I thank the noble Lord for that question. On the specifics, I will write to him on the actual timeline, but the reality is that Fujitsu knows it has a major part to play here. It knows that it is under serious investigation. It has pre-empted that by coming out and saying that it feels a moral responsibility. My colleague, the Minister in the other place, has made it very clear that the cost of this debacle cannot land purely on taxpayers and I am sure there will be a very full investigation and compensation required from Fujitsu.
Lord Stirrup (CB)
My Lords, further to the question from the noble Lord, Lord Forsyth, when in an earlier Question Time I asked the Minister whether the Post Office brand was not now too toxic for it to continue as currently constituted, the Minister replied that, in his view, the brand image of the Post Office had improved as a consequence of what had happened. Now, while the reputation of the people who run sub- post offices has no doubt been greatly enhanced, to suggest that of the reputation of the organisation which so cruelly and illegally persecuted them cannot possibly be true. So I repeat what I asked then: is it not now time for a wholly new organisation, with new leadership and a new business model incorporating the appropriate ethical principles?
Lord Offord of Garvel (Con)
I thank the noble and gallant Lord for his question. To clarify my remarks, last time I said that the reputation of the postmasters had been enhanced and most people in the community think of the Post Office as being the postmasters. In the last 12 months, the churn of postmasters—those leaving and those coming in—has gone up. We have a record number of post offices—11,700—in the country; 5,000 of those are in rural areas and one-quarter are the last shop in the village. They form a vital role in the community and, as I said before, the reputation of the postmasters has only been enhanced by this sorry tale.
Ukraine Conflict
(9 months, 3 weeks ago)
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Lord Campbell-Savours
To ask His Majesty’s Government what steps they are taking to resolve the conflict in Ukraine.
The Minister of State, Foreign, Commonwealth and Development Office (Lord Ahmad of Wimbledon) (Con)
My Lords, we support a just and sustainable peace that restores Ukraine’s sovereignty and territorial integrity, underpinned by the UN charter. However, Russia’s actions on the battlefield demonstrate that President Putin has no interest in such an outcome. President Zelensky has clearly demonstrated Ukraine’s commitment to peace in his 10-point peace formula, and together with our partners the United Kingdom is providing Ukraine with the support it needs to both protect and defend its sovereignty.
Lord Campbell-Savours (Lab) [V]
My Lords, with some defence chiefs calling for national mobilisation, more equipment and intervention in Ukraine, and the Defence Committee arguing that we do not have the resources, despite the highest tax rates in recent history, and having in mind the sensitive national debate now under way in both Washington and Ukraine, where is the voice of reason that believes it is better for all to sit down and talk through resolution of this conflict? I profoundly disagree with those who say that it is not possible and the Russians will never talk. Is it not cheaper for all? It would save lives—300,000 have been lost to date—protect the international economy and preserve the peace that is now threatened worldwide.
Lord Ahmad of Wimbledon (Con)
My Lords, no one wants peace more than the Ukrainians. Anyone who has visited Ukraine can see that. President Zelensky wants peace; that is why he has put forward a 10-point programme. The noble Lord shakes his head, but perhaps at some point I will be able to convince him. As we mark this anniversary yet again, let us go back two years. Who invaded whom? Who is the aggressor and the responsible actor that created this war? Russia created the war; Mr Putin can stop it and he should do so now.
Lord Collins of Highbury (Lab)
My Lords, I am sorry for not following convention but I want to intervene at this stage to make clear that the Official Opposition are fully behind the Government’s position on Ukraine. We support their actions, and the fact that this House is united is an important element in ensuring Ukraine’s victory.
In our debate on Ukraine, the Minister said:
“We will squeeze Russia’s war machine”.—[Official Report, 26/1/24; col. 932.]
That will involve sanctions, so can he update the House on the new agency delivering them? How quickly can we bring it in and strengthen our sanctions against the Russian war machine?
Lord Ahmad of Wimbledon (Con)
My Lords, we are at one, as the noble Lord knows and as is required at this time. Only last week I met the prosecutor-general of Ukraine, who underlined the strength and courage he finds in the support from not just this House but the British people.
Together with our international partners, we have unleashed probably the largest and most severe package of sanctions. As the noble Lord knows, I often share some of the insights behind them. Cumulatively, between February 2022 and October 2023, £22.7 billion of Russian assets were reported frozen due to UK financial sanctions regulations. The UK has committed £50 million to support the new deterrence initiative, and the new Office of Trade Sanctions Implementation will strengthen this further. As I have said before, we will continue to report on specific progress made.
Lord Lancaster of Kimbolton (Con)
My Lords, the cost of this war will pale into insignificance compared with the cost of reconstructing Ukraine. It is at that point that the coalition in support of Ukraine will be truly tested. Can my noble friend give the UK’s current estimate of the cost of reconstruction and say what leadership we as a nation are showing in pulling together a reconstruction fund? Also, if I may correct the record, no service chief has called for national mobilisation.
Lord Ahmad of Wimbledon (Con)
My Lords, I thank my noble friend, who provides a great deal of insight on this. The debate about Ukraine across our country reflects the very freedoms that the Ukrainians are fighting for—the freedom to debate, challenge and provide insight. I thank my noble friend for providing his own insights.
The UK led on this last summer by hosting a conference on reconstruction. Various figures are being put forward, but the challenge is that there can be no effective assessment of the overall reconstruction plan until Russia pulls back from the areas it has occupied. It has caused damage environmentally, not just in the buildings and lives lost. At the Ukraine Recovery Conference last year, the UK announced £250 million of new capital to de-risk investments in projects to support economic recovery. Once that full assessment has been made—tragically, it will run into billions of pounds—we will need to stand up collectively, and the private sector will play a role. At a time when Ukraine is facing these challenges, it is vital that we stand at one and support its energy renewal, reconstruction and war effort. We stand with Ukraine.
Lord Stirrup (CB)
My Lords, in a recent speech in Sweden, President Macron said that Europe needed to do whatever was necessary to ensure Ukraine’s success, irrespective of what political decisions were made in America. What discussions are His Majesty’s Government having with France, Germany and other European allies to help turn such rhetoric into reality?
Lord Ahmad of Wimbledon (Con)
My Lords, we always listen carefully to what President Macron says—France is an important ally in every sense, and we are working closely with France and our European partners. We are aware of the discussions going on across the ocean in the United States but, equally, we need the US to be part of this effort, and the reconstruction effort. The debate we had only the other week illustrated this large component. Not only are we making that case to our European partners but we continue to advocate the case for Ukraine in the United States.
Baroness Smith of Newnham (LD)
My Lords, the noble and gallant Lord stole part of my question—I was going to ask about relations with our neighbours and what discussions His Majesty’s Government were having. I will rephrase it and ask the Minister what assessment, beyond France and our closest allies, His Majesty’s Government have made about the solidarity in Europe to support Ukraine. There was a wobble during 2023. Do the Government think that Poland, for example, is now firmly back on the right side and giving as much support as possible?
Lord Ahmad of Wimbledon (Con)
My Lords, I am sure the noble Baroness has noticed that there is a change in the Polish leadership. We have also seen, when it comes to issues of the defence of Europe, the importance of our advocacy within NATO. It is very clear in the discussions we are having, particularly through that organisation, that Europe stands together, and stands with Ukraine.
Earl Attlee (Con)
My Lords, will the UK persist with merely doing enough to prevent Ukraine being defeated, rather than any more than that?
Lord Ahmad of Wimbledon (Con)
My Lords, my noble friend raises an important point. We need to ensure that Ukraine has what it needs to defend its sovereign territory. Let us go back in time. Since we saw the invasion and annexation of Crimea, the UK’s position has been consistent—indeed, it is a position shared by His Majesty’s loyal Opposition. Loyalty is an important word here—loyalty to each other but also to Ukraine. We will stand steadfast in ensuring that the defensive capability that Ukraine needs is fully supported.
Lord Singh of Wimbledon (CB)
My Lords, according to both Ukrainian and Russian media, former PM Boris Johnson, in a visit to Kyiv in 2022, persuaded President Zelensky to reject a peace deal with Putin that would have led to the withdrawal of Russian troops in return for an undertaking that Ukraine would not join NATO. Does the Minister agree that this was an opportunity missed and has since cost thousands of lives?
Lord Ahmad of Wimbledon (Con)
My Lords, I am not going to respond to media speculation. I have had the opportunity, as I am often reminded, to serve under a number of Foreign Secretaries and Prime Ministers—including former Prime Minister Boris Johnson —and, since this war started, it is very clear that the United Kingdom’s position has been consistent. It has been strong and firm, whether led by Boris Johnson or his successors—including our current Prime Minister, who visited Kyiv. The position from the UK is clear: we stand with Ukraine.
Lord Bellingham (Con)
My Lords, there is a catastrophic food shortage in Sudan, South Sudan, Somalia and other countries in the Sahel. Historically, they have relied on grain exports from Ukraine, and indeed from Russia as well. Since Russia renounced the Black Sea grain initiative in July, those exports from Ukraine have fallen by 34%. Can the Minister give his assessment of the current situation? What more can be done to get more grain exports out of Ukraine to those hard-pressed parts of Africa?
Lord Ahmad of Wimbledon (Con)
My Lords, my noble friend raises a very important point. Ukraine supplied to many across Africa—more than 400 million people were the beneficiaries of Ukraine’s grain exports. I can share with my noble friend that Ukraine is now exporting more grain than at any time since the war began. Monthly export figures for January saw in excess of 4.6 million tonnes of grain go through the Black Sea, which is a 32% increase on the peak month of the Black Sea grain initiative. That has become consistent because—although we praise the UN and other parties, such as Turkey, that brokered the deal—since it has been rejected by Russia, we have continued to stand steadfast. We have helped in the Black Sea and, although it is still very much early days, that is why we are beginning to see an increase. Long may that continue.
Buy Now, Pay Later: Regulation
(9 months, 3 weeks ago)
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Lord Davies of Brixton
To ask His Majesty’s Government, further to the publication of draft legislation on ‘Buy Now Pay Later’ arrangements in early 2023, when they intend to fulfil their 2021 commitment to regulate such arrangements.
The Parliamentary Secretary, HM Treasury (Baroness Vere of Norbiton) (Con)
My Lords, the Government’s consultation on proposed draft legislation to bring buy now, pay later into regulation closed in April 2023. In it, the Government reiterated their position that regulation must be proportionate so that borrowers are appropriately protected without unduly inhibiting access to these useful, interest-free products.
Lord Davies of Brixton (Lab)
My Lords, I have to say that I find the Answer from the Minister deeply disappointing. It is three years since the Woolard Review concluded that more needed to be done to ensure a healthy, sustainable market in unsecured credit, including, in particular, buy now, pay later. Since that time, the use of buy now, pay later has more than trebled, with the citizens advice bureau warning that consumers are left without vital consumer protection and reporting from its own experience a huge rise in the number of people needing services to deal with the problems created by this form of credit. Is that not just evidence that this is no longer a serious Government prepared to undertake tasks to protect ordinary rank and file people?
Baroness Vere of Norbiton (Con)
I disagree with the noble Lord. Obviously, we have received a large amount of stakeholder feedback to the consultation on the draft regulations. We are considering that feedback and it is very varied. In many cases, when provided affordably and used responsibly, interest-free credit can be incredibly helpful to people trying to balance certain payments from month to month. The average outstanding balance of buy now, pay later is £236. These are relatively small amounts of money that can be shifted from month to month, and it is proving incredibly useful to a number of people.
The Earl of Effingham (Con)
My Lords, buy now, pay later works for people who can manage their finances, but unfortunately, there are many who struggle with that management. What are the Government doing to make financial education a pillar of the school curriculum?
Baroness Vere of Norbiton (Con)
I agree with my noble friend that this is at the heart of it. Any credit facility, be it interest-free or not, has to be understood by those who use it. To that end, the national curriculum has included financial education since 2024. In primary schools, children learn about the uses of money. In secondary school, they go on to learn about budgeting and managing risk, which is of course incredibly important in the credit markets. They learn about financial products and services and raising and spending public money. We have put those elements in place.
Baroness Kramer (LD)
My Lords, a number of the firms that provide buy now, pay later—which are of course unregulated schemes currently—are seeking authorisation from the FCA also to offer regulated credit schemes. As we saw with the mini-bond scandal, this mixing of regulated and unregulated lulled ordinary people into misunderstanding the absence of supervision for unregulated products and led them into serious financial distress. Will the Minister advise the FCA not to authorise any schemes for buy now, pay later firms until buy now, pay later is itself properly regulated?
Baroness Vere of Norbiton (Con)
While it is fair to say that buy now, pay later itself is not regulated, many elements of getting out to consumers are regulated. The broader consumer protection legislation which exists provides such protections. For example, the FCA has rules and guidance on advertising and financial promotion. Only today, the FCA financial promotions gateway is in force. Buy now, pay later firms must also go through that gateway with all their marketing materials to ensure that they are not misleading, and that is to the benefit of consumers.
Baroness Bennett of Manor Castle (GP)
My Lords, a study last year by the Centre for Financial Capability found that a quarter of buy now, pay later users had been hit by late payment fees. That figure rose to 34% for users aged 18 to 34. Those young people are also facing the problems of the weight of student debt: about half of them go to university and, increasingly, they are carrying debt as well for further education. Is this not just one more way of laying a huge weight of debt on our young people?
Baroness Vere of Norbiton (Con)
I do not believe so, because, as I said, it is not a huge amount of debt. The average balance for younger people aged 25 to 34 is just £185. One experience that I think many users have of buy now, pay later is that they may, once, have a late fee—I know that my children certainly have—and then they learn, and they do not do it again. Those fees are not particularly expensive, but Experian, for example, would say that 99% of agreements were settled on time in January and February. We cannot shut off access to a form of interest-free credit which has saved consumers more than £100 million. It is really important that we get the balance right.
Lord Livermore (Lab)
My Lords, in February 2021, the Government promised to act swifty to regulate buy now, pay later. Three years later, legislation is nowhere in sight. While the Government have delayed, leaving millions of consumers unprotected, Labour has set out plans for regulating the sector. That includes a requirement for clearer information, while ensuring the same protections for consumers as they get when using a credit card. To move things along, will the Government now adopt Labour’s plan, which has received broad support from all major buy now, pay later providers?
Baroness Vere of Norbiton (Con)
I have to be honest with the noble Lord in saying that I have not read Labour’s plan, but he talked about clarity of information. It is worth pointing out that it is not just the FCA that looks at advertising and financial promotion. We have the Consumer Protection from Unfair Trading Regulations 2008; we have the Consumer Rights Act, and then we have the UK advertising code. In terms of information, it is clear that consumers have a number of recourses, but I return to what I said at the outset: the consultation closed in April 2023; the Government have reiterated our position that regulation must be proportionate. I am quite surprised that the Labour Party thinks that it has a solution that has been backed by all buy now, pay later firms, because it is a very complex area and we need to achieve a balance.
Lord Sikka (Lab)
My Lords, buy now, pay later services may offer interest-free periods, but, as has already been said, they charge high interest rates and fees for late payments, which really push up the price of the product. Without regulation, this industry is likely to go the same way as pawnbrokers, who charge interest of up to 160%. Will the Government impose a ceiling for the fees and interest rates that this industry can charge?
Baroness Vere of Norbiton (Con)
I am not sure whether the noble Lord has looked at what the late payment fees are for buy now, pay later firms. They are incredibly small, because the business model is very different in that it does not necessarily rely only on such charges; they are paid by the retailers as well. As I said, all sorts of existing and broad consumer protections underpin fair contracts—that would be the Consumer Rights Act. The FCA has already taken action against six buy now, pay later firms, where it felt that the contract terms were either unfair or unclear. The system is working; it is a very complicated area; the Government are looking at the responses to the consultation, and we will publish a response in due course.
Lord Deben (Con)
My Lords, does my noble friend accept that, if we do not do this carefully, we will be removing opportunities from a large number of people for whom this is important? Is not the rush to regulate a very dangerous concept in this case?
Baroness Vere of Norbiton (Con)
I agree with my noble friend.
Baroness Vere of Norbiton (Con)
I do not always. There seems to be a “computer says no” attitude to newfangled things. I absolutely reject that. While noble Lords may or may not use buy now, pay later, I know many young people who do, and they do so very successfully. I would not want to overregulate a product or get it wrong, thereby causing that product to be removed from the market.
Lord Watts (Lab)
The Minister says that there needs to be regulation, that the Government have gone out for consultation and that they are now considering it. To ask the same question I ask of Ministers all the time: where is the timeline for that? When will the Government act rather than talk?
Baroness Vere of Norbiton (Con)
We will act by publishing the results of the consultation and our response to it in due course.
Tata Steel: Port Talbot
(9 months, 3 weeks ago)
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Lord Harries of Pentregarth
To ask His Majesty’s Government what steps they are taking to safeguard jobs at Tata Steel in Port Talbot, and to encourage alternative forms of employment in the area.
Baroness Swinburne (Con)
My Lords, Tata informed the UK Government last year that it intends to close the steelworks and withdraw from the UK, putting 8,000 jobs at risk. The current plan put forward by Tata, which is subject to consultation, will see the Government investing £500 million to secure the future of steelmaking in Port Talbot, protecting 5,000 steel jobs in the UK and thousands more in the supply chain, while putting UK steelmaking on a more green and sustainable footing.
Lord Harries of Pentregarth (CB)
I thank the Minister for her reply. As she will be aware, job losses on this scale—some 2,000 at Port Talbot—will have a totally devastating effect on the community. Lord Tebbit said about the closure of the mines in the 1980s that, however necessary it was, he regretted the destruction of those communities and thought that in retrospect the decisions had been taken too quickly and not enough had been done. We can only hope that the Government do not have similar regrets about what is happening at Tata. First, what pressure are the Government putting on Tata Steel to slow down the phasing out of the blast furnaces? Secondly, would the Government consider setting up a task force, which would work very closely with the Welsh Government, employers’ organisations and members of the local community, to see what alternative forms of employment there might be, given that there are bound to be some job losses?
Baroness Swinburne (Con)
I thank the noble and right reverend Lord for that question. It is true we recognise that this is a devastating blow for the community, which is why we have already set up the Tata Steel/Port Talbot Transition Board. It is not called a task force but it will, in effect, act in that way. It is set up to
“protect and grow the economic environment and to support and mitigate the impact on those workers, businesses and communities … directly affected by”
this Tata Steel announcement. The reality is that that board is already up and running. It has support, being not just chaired by the Secretary of State for Wales but having representatives of the Welsh Government on it. It also has on it the local MP and various members from Tata and the local community, and business experts. So it is already set up and has a £100 million fund to do this work, and it will be tasked with making sure that alternative employment is found for all those who need it.
Lord Forsyth of Drumlean (Con)
My Lords, is it not insanity to spend half a billion pounds of taxpayers’ money on ending the production of virgin steel through blast furnaces in this country, which means that we end up importing steel from China, where the electricity to fire its blast furnaces is made by opening coal-fired power stations? Surely this is the green agenda going too far, and the price that is being paid by that community and the taxpayer is far too high.
Baroness Swinburne (Con)
I understand my noble friend’s point. However, Tata informs us that it is losing £1.7 million per day in running these blast furnaces and on the coke they need. With regard to carbon emissions, we are following a green agenda and we have targets that we have set. With the advent of the new electric arc furnace, which will provide a modern, efficient and less carbon-intensive method of producing steel, we will be reducing Tata’s footprint in this country by 85%, 22% of Welsh carbon emissions, and more than 1% of the UK’s emissions as a whole.
Lord Anderson of Swansea (Lab)
My Lords, the Minister must know that the economy of the Swansea Bay City Region is heavily dependent, directly and indirectly, on this giant steelworks, which I can see from my home in Swansea. Has it not been clear for some time that there has been a major threat to it? Why did the Government not earlier set up such a fund as they now have, to steer creatively private industry to the area, or relocate government departments, as the previous Labour Government did so well with the DVLA at Morriston?
Baroness Swinburne (Con)
I can tell the noble Lord that, more broadly, the UK Government have provided substantial support for the economy of Port Talbot and south Wales, with further projects being developed. This includes the development of the Celtic Freeport in Port Talbot and Milford Haven, backed by up to £26 million of UK government funding, which will focus on low-carbon technologies. It aims to create 16,000 jobs by mid-2030. The Celtic Sea is also the prime location for the floating offshore wind centre that is being planned, which will also bring several thousand jobs. Meanwhile, the Swansea Bay city deal, which covers the Port Talbot area, is in the process of delivering a number of exciting developments across the region.
Lord Fox (LD)
One way to meet the justified need mentioned by the noble Lord, Lord Forsyth, to produce more virgin steel rather than from scrap is to use direct reduced iron technology that can be produced through an electric arc furnace. Last month, Tata Steel’s global chief executive told Parliament’s Welsh Affairs Committee that Tata would invest in DRI technology only if it could be guaranteed a good supply of first methane and then hydrogen. That is why he told that committee that Tata is building that plant in Holland and not in the United Kingdom. Can the Minister investigate how much money Holland is giving Tata to build that plant? Perhaps it could drive a harder bargain because with this technology comes more jobs.
Baroness Swinburne (Con)
I thank the noble Lord. The Port Talbot transformation project does not prevent further technologies being deployed over time. We are paying careful attention to the international developments, particularly the hydrogen and DRI systems, such as the Tata Steel project in the Netherlands. Ultimately, this technology has not yet reached commercial activity, but when it does reach that maturity, we will look at it closely.
Viscount Waverley (CB)
My Lords, Tata has multiple interests beyond steel. Are the Government looking at its operation in total and perhaps encouraging a package deal that takes into account all its other interests that impact this country internally?
Baroness Swinburne (Con)
I thank the noble Lord. Yes, I understand that Tata is being spoken to as a global entity by various government departments, and it announced last year that it was going to invest very heavily in the gigafactory.
Lord Touhig (Lab)
My Lords, I find myself much in sympathy with the points made by the noble Lord, Lord Forsyth. What part of the package is being invested in upskilling our people? In the last figures I saw, about 80% of people in work in the United States had been back in the classroom upskilling themselves, compared with 56% in Germany and Japan and 30% in the United Kingdom. We have to give our people skills for the jobs that do not exist yet.
Baroness Swinburne (Con)
I agree with the noble Lord, and that is why the £100 million has been made available: £80 million of that is from the UK Government, £20 million from Tata, and the majority of it will be spent on upskilling the local population, so that they can fill the advanced manufacturing jobs we are expecting to create in that area.
Lord Howell of Guildford (Con)
My Lords, electric arc furnaces require huge volumes of electricity to be produced reliably—24 hours a day, seven days a week—and distributed by a reliable transmission system. Are the Minister and her colleagues in the Government satisfied that the necessary investment should be started—there is not much sign of it yet—in expanding the national grid by five times, and in moving from 25 gigawatts of nuclear power, our present low level, up to 50 gigawatts, which is the minimum that will be needed?
Baroness Swinburne (Con)
I agree with the noble Lord that we need to upgrade all this infrastructure. However, the holistic view of this particular area in Wales is that we will have, I hope, one of the largest offshore floating wind platforms to facilitate plants such as the Tata arc facility, but also any of the new advanced manufacturing that will take place on that site.
Lord Leong (Lab)
My Lords, as the Minister said earlier, and as the noble Lord, Lord Forsyth, mentioned, Tata Steel secured £500 million of taxpayers’ money in state aid, yet it rejected union proposals for a two-phase plan that would protect more than 2,300 jobs over a decade and that would see no compulsory redundancies at Port Talbot. The loss of these jobs will clearly have a very hard impact on the region and the national economy. Have the Government made any assessment of whether this £500 million in state aid passes their value-for-money test?
Baroness Swinburne (Con)
I can tell the noble Lord that I believe that the unions have been fully involved in these discussions. The plans have been discussed with the company, but the company informs us that is not viable for it to consider that plan at this point. However, the consultations started only on 2 February. Therefore, it is for the company and the unions, and its employees and staff, to ascertain the possibilities. With respect to what the Government are doing, they are monitoring everything very closely and having long conversations with the companies and the Welsh Government.
Baroness Chapman of Darlington (Lab)
My Lords, sadly, the community in Teesside experienced almost 10 years ago what the community in south Wales is about to endure, and the development that Ministers speak about at the site at Port Talbot has been happening in Redcar. Sadly, there has had to be an investigation by the department into the way that the deals there have been conducted. Will the Minister make sure that all the correspondence about this deal is released so that confidence in investment can be secured for Teesside?
Baroness Swinburne (Con)
I will make sure that the department gets that request.
Medical Devices (In Vitro Diagnostic Devices etc.) (Amendment) Regulations 2023
(9 months, 3 weeks ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Markham
That the draft Regulations laid before the House on 14 November 2023 be approved. Considered in Grand Committee on 6 February.
European Organization for Astronomical Research in the Southern Hemisphere and the European Space Agency (Immunities and Privileges) (Amendment) Order 2023
(9 months, 3 weeks ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Ahmad of Wimbledon
That the draft Order laid before the House on 18 December 2023 be approved.
Relevant document: 8th Report from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 6 February.
Carer’s Leave Regulations 2024
(9 months, 3 weeks ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Offord of Garvel
That the draft Regulations laid before the House on 11 December 2023 be approved.
Relevant document: 8th Report from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 6 February.
Civil Procedure (Amendment No. 4) Rules 2023
(9 months, 3 weeks ago)
Lords ChamberRead Full debate Read Hansard Text
Lord Harlech
That the Rules laid before the House on 18 December 2023 be approved.
Relevant document: 8th Report from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 6 February.
Victims and Prisoners Bill
Wednesday 7th February 2024
(9 months, 3 weeks ago)
Lords ChamberRead Full debate Victims and Prisoners Act 2024 View all Victims and Prisoners Act 2024 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 31-IV(a) Amendments for Committee (Supplementary to the Fourth Marshalled List) - (6 Feb 2024)
Baroness Thornton
“Free independent legal advocates for rape victims(1) The Secretary of State must develop proposals for a scheme to give victims of rape access to free, independent legal advocates available in every police force area in England and Wales.(2) For the purposes of this section “independent legal advocate for rape victims” means a person who is a qualified solicitor, with experience working with vulnerable people, who provides appropriate legal advice and representation to individuals who are victims of criminal conduct which constitutes rape.”
Baroness Thornton (Lab)
My Lords, as well as moving Amendment 78, I shall also speak to Amendment 79 in my name, with the support of the noble Baroness, Lady Hamwee. I will speak to the other amendments in this group, and I am particularly pleased to be able to support the amendments in the name of the noble Baronesses, Lady Bertin and Lady Morgan. Both are on important issues, which we will discuss this afternoon.
The amendments in my name seek to ensure that there is a scheme to give victims of rape access to free independent legal advocates—available in every police force area in England and Wales—and that the Secretary of State must develop proposals for a scheme to give these victims access to free, independent legal advice. The idea of independent legal advice and representation for victims in these circumstances is not a new one. In 2005, the then Government announced their attention to introduce legally aided representations for victims in homicide, rape and domestic violence cases—though it was not brought in. In March 2014, the Minister of Justice in the current Government again raised the idea of independent legal representation in a review of the treatment of victims in sexual offences cases, but, again, did not implement the policy. Now it is time to make this a reality.
Independent legal advice and representation can provide an important mechanism and layer of accountability, which results in improved police and CPS policies and procedures. Independent legal advice has already been successfully piloted in Northumbria, and exists in many other jurisdictions, including most European countries, Australia, California and Ireland. Evidence clearly indicates that this legal advice and representation can operate well, alongside the rights of defendants to a fair trial. This proposal does not propose changes to the role of victims and survivors in the criminal justice process, or the rights of audience that currently exist—nor does it change the adversarial system that we have in the UK.
In 2017, the sexual violence complainants advocate scheme was piloted in Northumbria by the then PCC, Dame Vera Baird, to engage local solicitors to provide legal advice and support to local adult rape complainants. The support primarily related to complainants’ Article 8 rights to privacy, advising on digital download requests and demands for material in the hands of third parties—such as school reports, medical records and therapy notes.
The pilot scheme took 83 referrals from September 2018 until December 2019, and was evaluated. Case file analysis showed poor practice around victims’ privacy rights—some police officers believed that there was no need to seek consent from the victims. The SCVAs challenged data requests in fewer than 47% of the cases. The evaluation showed that the scheme was overwhelmingly positive. It increased complainants’ confidence in, and understanding of, the justice system—which is likely to reduce attrition. There was consensus that the project changed organisational cultures—significantly decreasing police and CPS requests for indiscriminate evidence. Police and the CPS felt the investigations were more efficient, relevant and proportionate. A judge commended the pilot as encouraging earlier consideration of disclosures and issues—making cases more efficient and proportionate. All the pilot’s participants agreed with the principle of legal support being made available for sexual offence complainants.
The CPS’s victim’s right to review, which allows a challenge to a decision not to prosecute has been broadened by the High Court to offer an opportunity for a victim to make representations. A victim who wants to use this new voice will need publicly funded, independent, legal representation, so that there can be an equality of arms with the reviewing lawyer from the CPS.
In Amendment 115, tabled by the noble Baroness, Lady Bertin, the
“court’s permission must be obtained for access to, service or disclosure of”
the victim’s counselling record—which is why it is linked, in a way, to the amendments I have previously spoken to.
“The court must direct that access should not be granted, or evidence should not be served or disclosed, if the court finds that this would disclose a protected confidence”.
In the Government’s own end-to-end rape review, and in debates around the digital extraction clauses in the Police, Crime, Sentencing and Courts Act, it has been understood that it has become almost routine for victims of rape to be subjected to credibility trawls. This is when victims are asked, sometimes without proper regard to the law, to relinquish their private and personal information for scrutiny by the police and the prosecution.
I am sure the noble Baroness will tell us about the issues this raises in more detail, but in summary: victims and survivors who have reported sexual violence to the criminal justice system are often put in an impossible position, forcing them to choose between seeking justice and accessing therapeutic support. Neither existing legislation nor guidance in this area has effectively addressed the problem of widespread inappropriate requests for this material. The law must change to introduce new higher thresholds for disclosure that is unique to counselling and therapy records to be applied through judicial scrutiny.
Baroness Bertin (Con)
My Lords, on behalf of my noble friend Lady Morgan, who is sorry not to be here today, I shall speak to Amendments 101, 102 and 173, and I shall speak to my own Amendment 115. I give praise and thanks to the noble Baroness, Lady Thornton, for outlining a lot of the issues in these amendments.
First, I shall talk about Amendments 101, 102 and 173, which, I might add, have the name of the noble Baroness, Lady Kidron, attached to them too. Amendment 102 and the associated necessary Amendments 101 and 173 seek to ensure that victims of crime—but particularly victims of sexual violence, for that is where the issue most frequently arises—are protected from excessive and unreasonable demands for their personal data. As the noble Baroness, Lady Thornton, has pointed out, that is the reason why attrition rates are as they are.
Third-party material is material about the victim held by third parties. It can include medical, educational and social services records, as well as records of therapy and counselling, which I will come to in more detail later. It has become commonplace for victims to be subjected to scrutiny of their personal lives, and thus their credibility, by way of a trawl through their personal data, and nowhere more so than in rape investigations. This issue has been well examined in both the media and at a policy level. These trawls act as a deterrent to reporting, and can cause a victim who has reported to then withdraw. There are fears about deeply personal information ending up in the hands of the defendant or being aired in court, where friends and family of the victim may hear it. In addition, requesting this information in such a non-discriminatory way can dramatically elongate already considerable investigation times.
I applaud the Government for introducing legislation in the Police, Crime, Sentencing and Courts Act, which set out a regime to be used by police when requesting digital data, such as that held on mobile phones. Within this Bill, the Government have tabled clauses which purport to do the same for third-party material, but these clauses differ considerably from those in the PCSC Act. As it stands, there will be two quite different regimes for the police to apply when considering obtaining digital material and third-party material, which, in practice, they frequently do in tandem. This is potentially confusing for the police, but, more importantly, for the victims of crime.
Amendment 102 is quite simple, in that it seeks to apply exactly the same robust regime to third-party material as the Government, having listened thoroughly to campaigners, already laid down in legislation for digital material. I hope Ministers will see the need to follow suit in respect of third-party material. This amendment is backed by my noble friend Lady Newlove, the Victims’ Commissioner, so I will allow her to speak to it.
I will speak to my Amendment 115. I am very grateful for the support of the noble Baroness, Lady Thornton, and the noble Lord, Lord Ponsonby. Rape and sexual abuse, as we know in this Committee, are deeply traumatic crimes, the impact of which can be wide-ranging and life changing. Sexual violence and abuse are often a root cause of mental health problems, eating disorders and self-harm, and, tragically, suicide. It is common for the impact of sexual violence and abuse to affect family and personal relationships, a victim’s ability to work, and long-term educational attainment. For many victims and survivors, counselling and therapy are a vital means of working through trauma, supporting them to find routes to regain control of their life. It is therefore imperative that those who choose to do so can seek support without fear that their counselling records will be used to humiliate them in court or, more often, to stop their case progressing in the first place.
The reality is that counselling records contain feelings and not facts. Typically, rape survivors will have feelings of shame and self-blame, and often complex feelings towards the perpetrator. Counsellors and therapists will support survivors to work through these painful feelings and make notes of things that will support their recollection for the next session. They are not collecting evidence for criminal investigations.
Routine access to this material by criminal justice agencies has severe consequences for victims’ mental health and well-being. Some try to stay with the process, while receiving no or limited emotional support, while others drop out altogether because of the intrusion into their private lives. According to recent figures, the proportion of adult rape investigations which ended due to victim attrition was 62%. I think we can all agree that that is far too high. Despite widespread recognition of this problem and the good work carried out by the Government to limit the vast amounts of personal data taken from rape victims, this remains a very big problem.
The Home Office’s own research found that, in case file reviews of rape cases, almost one-third contained a police request for counselling and therapy notes. Where a reason was given for the request, 32% were simply related to establishing a perceived victim reliability or credibility, and did not pertain to the facts of the case.
Rape and sexual abuse are treated with exceptionalism in the criminal investigation process. In no other crime does the victim have their counselling and therapeutic records trawled through and scrutinised with a view to finding any content that may disregard their character. I acknowledge 100% the good work that the Government have taken forward and progressed through Operation Soteria. Stronger legal protections are needed to limit far-reaching requests for these notes which very often contain the most sensitive personal data.
Other jurisdictions have demonstrated that it is possible to do this, while allowing for vital fair trial rights to be duly safeguarded. The state of New South Wales in Australia is a good example. It has an adversarial legal system—very similar to ours—but its notes are afforded far greater protection. This is achieved by ensuring that counselling records are disclosed only when they contain material of substantial probative value and by transferring the decision as to whether this meets the test to a judge. In 20 years, no appeals have been overturned on the basis of counselling and therapy notes.
I propose a similar model because it would strengthen and support the important work led by this Government. It would reinforce the transformative effects undertaken by police and prosecutors through Operation Soteria. It would also save precious police and prosecutor time and resources. They would need to access this material only when they were able to ascertain that there was substantial probative value in it, and not waste time simply trawling through irrelevant records.
We should not miss this opportunity. If the situation does not change, tens of thousands of survivors will have their rights undermined, face further intrusion and be deterred from both therapy and from engaging with criminal investigations. I will leave my noble friend Lady Finn to speak to Amendment 106. I whole- heartedly support Amendment 78. I sincerely hope that the Government will take it on board.
Baroness Finn (Con)
My Lords, I rise to speak to Amendment 106 in the name of and on behalf of the noble Baroness, Lady Morgan of Cotes. She is sorry not to be here today because of family commitments. This amendment was first debated in the other place. It was proposed by the honourable Stella Creasy based on her own experience as a victim of harassment. This experience is not unique to her. I am grateful—as I know she is too—for the support for this amendment of the noble Lord, Lord Russell of Liverpool, as well as the noble Baronesses, Lady Thornton and Lady Brinton.
In short, if an individual makes a malicious complaint about someone to the police, the police can act to remove that record. Malicious reporting to other organisations—whether social services or an employer as part of a campaign of stalking and harassment—does not carry the same safeguard. As a result, data is retained on individuals who have been targeted maliciously, be it through workplace harassment, stalking or something else. Many victims find that, even if the person targeting them has been convicted, their harassment continues because such records remain. Current data protection rules mean that such records cannot always be deleted. The retention of this data has lasting consequences for all individuals involved.
This proposed new clause seeks to enable the deletion of data where a clear threshold is met to show that the report was the result of malice and that retaining it would continue the harassment. As the testimony of victims has shown, it is not necessary to be an MP to be subject to malicious reporting as part of a deliberate campaign of stalking and harassment. Such reporting, designed to have a serious long-term impact on victims and their families, can occur against anyone doing any kind of public work, in the context of domestic abuse or as anonymous, vexatious harassment.
Public bodies can refuse to delete the data on the grounds that they feel it necessary to retain that data for compliance with a separate legal obligation or for performing a task in the public interest. To overturn this, a person has to demonstrate that the public body’s retention of the malicious data is not necessary for either of these purposes, thereby putting the burden of proof on to the data subject and potentially requiring lengthy court action.
For most people, this is not possible or desirable, leaving them with no legal recourse. This amendment would update the UK general data protection regulation and address these inconsistencies, mirroring the concept of exceptional circumstances under which any deletion would take place. The proposed new clause would give all data controllers guidance on how to manage situations where there are competing obligations—for example, in safeguarding or identifying repeated attacks on an individual via third-party reporting. Unlike the current right to object, this would create an absolute right to request deletion and therefore overrule exemptions that currently apply. This would ensure that public bodies such as local authorities are able to comply with these requests for deletion without risking failing to meet their legal duties. At present, these authorities are very clear that due to existing data protection rules they cannot take this step.
Baroness Hamwee (LD)
My Lords, I support Amendment 115 and would certainly have put my name to it had there been any space. I was shocked when I discovered this initially, and remain shocked, that victims are advised to postpone counselling and therapy, which goes against everything that I understand about the importance of counselling and therapy. It is another instance of victims being regarded as a sort of unwarranted hindrance to a prosecution. They are bystanders —somehow they are being too awkward, almost by their existence.
I very much support the amendment. However, I wonder whether the arguments do not extend to some extreme offences other than sexual offences—violence, modern slavery and so on. Since we will not be voting at this stage and, on an amendment like this it would be unusual for the Minister to say, “I agree”, and then sit down, if this amendment comes back at a later stage, perhaps thought could be given to extending it. It could be about not just victims of offences—I am not making the distinction between sexual and other offences—but about victims of acts which, if proved, would be offences. That may be a bit technical at this point.
I also support Amendment 106. There is something very perverse about the data subject being so hampered in the deletion of her or his own data, as if our personality and humanity were somehow lesser than our data presence.
My name is to the first two amendments in the name of the noble Baroness, Lady Thornton, which are about independent legal advocates and legal advice. We had a long debate on Monday about the skills that are needed by advocates, and Amendment 78 seems to bring those skills together. An advocate needs a range of skills, which should include legal qualification. I do not know whether it needs to be that of a solicitor— I am a solicitor; a legal executive with experience in this could do it equally well—but it is about the combination of the legal skills and other skills that are needed to work in support of victims. I do not suggest that solicitors would not have those.
Lord Hampton (CB)
My Lords, I will speak briefly to my Amendments 103 and 103A, which the noble Baroness, Lady Thornton, has already talked about. I am grateful for the support of the noble Lords, Lord Ponsonby of Shulbrede and Lord Russell of Liverpool.
These amendments would simply add the Children’s Commissioner as a statutory consultee for the codes of practice alongside the Information Commissioner, the Commissioner for Victims and Witnesses and the domestic abuse commissioner. The Minister might well say that this is covered by the phrase
“such other persons as the Secretary of State considers appropriate”.
The noble and learned Lord, Lord Bellamy, pointed out proudly earlier in our debates that children are mentioned in the Bill three times; this is an opportunity to add them two more times, making five in all. By simply adding the Children’s Commissioner to the list of names in the Bill, the Government can, with no effort or watering down, show the importance of children as victims. I look forward to the Minister’s answer.
Baroness Newlove (Con)
My Lords, I support most of the amendments in this group, which is quite lengthy. One of my key priorities for the Bill is that it delivers greater safeguards to protect the privacy of victims of sexual violence. That is why I am speaking in support of these valuable amendments.
The Government’s rape review was in response to the concern at collapsing charging and prosecution numbers. The review found that most victims did not see a charge or reach court, and one in two victims withdrew from the rape investigations. Privacy concerns led many to withdraw. It had become standard practice for victims who reported to the police to be asked to hand over large quantities of private information. This included digital data from mobile phones, but also what is known as “third-party materials”—personal information about an individual held by organisations.
“Third-party materials” is a seemingly innocuous phrase, but it belies a greater meaning and significance. In reality, it means education records, medical files, social services records or therapy notes. These can all be requested as part of an investigation—an investigation that focuses on the victim, not the accused. I quote one sexual violence survivor:
“I felt anxious, confused and infuriated. I was under far deeper investigation than the rapist (who I have no doubt would have had questionable material had they searched the same). They had refused to take physical evidence—my clothing from the night of the attack—but wanted to investigate my private life. I asked them to justify each request but they could not, so I did not provide it”.
This material often includes documents that the victim may have never seen. These can be introduced at court and used to attack the victim. As one victim told me:
“I had good support for the criminal court. Good preparation. But it made me angry. I was made out to be a liar and it made me feel low. That came as a surprise—it was dreadful. I wasn’t expecting it. Afterwards I was very upset and couldn’t control myself. I started having dreams and flash backs. I was asked about things in my records that I knew nothing about—my past and I didn’t know why”.
In effect, victims are being forced to choose between seeking justice and their right to a private life. That is not a choice; that is an ultimatum. The Government made reassuring noises when they announced an amendment to the Bill over the summer. They promised better protection for rape victims from invasive record requests, but I am concerned that their proposals do not offer the level of protection that we are calling for or that victims need. We need provisions that will offer the protection required. For this reason I am in full support of Amendments 101, 102 and 173, tabled by my noble friend Lady Morgan, which my noble friend Lady Finn eloquently addressed today.
Some noble Lords may recognise these provisions: my predecessor as Victims’ Commissioner, Dame Vera Baird, secured similar amendments to the Police, Crime, Sentencing and Courts Act 2022. These were designed to protect rape victims from overintrusive and excessive police requests for personal mobile data downloads. This amendment not only provides greater support for victims but provides police with a consistent approach to handling requests for digital material and third-party material. Their job is difficult enough as it is, without lawmakers adding to the complexity of their work by placing two very different processes and criteria side by side.
I am also pleased to support Amendments 78 and 79, which call for free legal representation for victims of rape and sexual assault to ensure that their privacy is also protected. Requests for information are often a clear violation of our human right to privacy—our Article 8 rights, to use the legal jargon. My predecessor argued that there should be a right in law for victims to be given free legal representation where these rights are threatened. I wholeheartedly and absolutely agree. Put simply, a lawyer advises and makes representations on the victims’ behalf, cooling police requests for data and improving victim confidence in proceedings. In their rape review, the Government committed to consider a pilot, and I will push hard to get this up and running.
I also support Amendment 115, which if enacted would enable rape victims to seek therapy to help them cope and recover. I am always concerned when I meet victims of rape who tell me they have declined to seek counselling. They are rightly told that notes from counselling sessions might be disclosed to the court. Worse, they might be disclosed to the defendant: intimate, personal details shared with their abuser. That cannot be right. As a result, many victims will wait until the trial is complete before seeking therapy. This can mean years without support, suffering alone and in torment. Some may take their life. It is no surprise that many withdraw so they can access counselling sooner. That is no good for the victim, no good for justice and no good for society.
Currently, notes are routinely requested and can end up being the subject of cross-examination at court. As one survivor said when appearing on “Newsnight”:
“The defence said ‘Are you truthful?’ and when I said yes, she said—‘Well, you’re not exactly truthful with your husband are you? Would you like me to read your therapy notes out about what you’re currently discussing with your therapist?’ I said no. It was like a physical punch because I wasn’t expecting it. That someone would bring that up in a courtroom, about my current sex life. How, how is that relevant? It was violating—like another trauma”.
That is why I want to see records of therapy and counselling received by victims of sexual violence made subject to a form of privilege that would make them exempt from disclosure. It would not be an absolute privilege: judges could waive it if they considered a substantial value to the notes being disclosed. It is a model that balances the defendant’s right to a fair trial with a victim’s right to access counselling. We know it works. As my noble friend mentioned, it has been in place for many years in Australia, where the criminal justice system is comparable to ours. It is about a fairer model, and that is what the Bill needs to deliver: a level playing field for victims.
I also support Amendment 106. Like many others in this Committee, no doubt, I was appalled to hear that malicious individuals are weaponising legislation designed and put in place to protect vulnerable children. As we have already heard, if an individual makes a malicious complaint about someone to the police, the police can act to remove that record.
Lord Russell of Liverpool (CB)
My Lords, I support effectively all the amendments in this group, but your Lordships will be relieved to hear that I am not going to speak to all of them. I will speak briefly to Amendments 101 and 102, introduced very ably by the noble Baroness, Lady Bertin. The essential point behind these amendments is to try to align this Bill with the clauses in the Police, Crime, Sentencing and Courts Act that lay down the rules for digital disclosure.
I thought it might be helpful to try to find out what was happening with these new rules and whether they were actually working, so the Victims’ Commissioner’s office put in a request to try and find out. In true and typical form, the Government have not done any evaluation of before and after the Act came into effect specifically in this area.
However, a part of the Project Soteria programme is enacting this new code and some academics are looking at it, so we asked them for their feedback on whether the new code was working in terms of access to private data. They said they had
“seen a move towards better proportionality which they attribute to the Act. They have also seen less threats that investigations will end if the victim does not want to hand over their phone. There is also greater consideration given to alternative means of obtaining digital evidence such as screen shots”,
rather than taking everything off a phone. In conclusion —and this gives kudos to the Government—they said that
“the intentions of parliamentarians to change culture via the legislation do seem to be bearing fruit”,
which is very good news. So, since the evidence shows that it is working, it is not difficult to suggest that what was enacted through that Act should be mirrored exactly in this.
I move to Amendment 106, so ably spoken to by the noble Baroness, Lady Finn. This is personal for me. I have known Stella Creasy since before she acquired a family, during the troubles and strife of the years that went by before she was blessed with two children. To have an individual who has never met you decide to use an anonymous profile to make complaints about you on the basis that he does not like some of her views, specifically on misogyny and the behaviour of some men, and say that on that basis you are an unfit mother, is simply staggering. It is also staggering that the police decided to take this seriously; they finally admitted that that was wrong and, in doing so, said that the officer had been spoken to and that it was a time for reflection and some learning. My own view is that he should have been given a complete and utter bollocking and should probably have been asked to leave the service, or at least put on probation. That is wholly unacceptable.
So it is wrong that this can happen in the first place. When it happens, if the police decide to take the complaint seriously, having not investigated it, and pass it on to social services, social services are in a sense obliged to put on your record that an investigation is taking place on the basis of the complaint, regardless of whether it has any merit. Despite the fact that Stella’s persecutor was found to be malicious and sentenced, it remains on the record. Waltham Forest says that it can and will do nothing about getting rid of it. Perversely, it says that it will keep it on the record because she is a safeguarding risk to her children, as people in future might try to cause her harm through them. I fail to understand that logic. I do not know what the barriers to entry are to gain employment in Waltham Forest, but I suggest they might be elevated somewhat if that is the degree of logic applied in a situation such as this.
So I implore the Government to look at this seriously. As the noble Baroness, Lady Finn, said, they should sit down and talk with interested parties to understand how this happened and try to work out how to prevent it in future, or how to develop very clear guidance to enable authorities to which complaints might be made to go through a decision tree, to analyse the veracity and probity of such allegations, thinking very carefully about the implications of actions they might take without having fully thought them through.
Lord Thomas of Cwmgiedd (CB)
My Lords, I will make three brief observations. First, I warmly commend Amendment 115. The law needs to balance very carefully the rights of the defendant and those of the victim. This is an admirable compromise, restricted to professional people, and I hope that it is a good example of the way that Parliament can move the law along to accord with present times.
Secondly, in relation to Amendment 102, consistency is critical. One must remember that the police will have to operate this, and it will be hard work for them as the law is made more and more complicated. Having slight differences between systems makes their life impossible. We need only to look at experience with search warrants and the terrible mess that was made of those to realise why it is essential to have consistency.
The third point relates to Amendment 78. There has been a lot of controversy as to whether victims of rape should have an advocate in court to represent them. As I understand the amendment, it goes nowhere near that; it is merely for advice. It seems to me that an awful lot of the difficulties that occur in rape cases could be solved by the victim having someone who is independent of the prosecution to talk to, because the prosecution cannot go to the extent of the help the victim needs. I am sure that, in the end, this would increase significantly confidence in the criminal justice system. The problem is cost; maybe the Government, with appropriate legislation, should try it in a series of pilots to see how it is best run, rather than rolling out nationwide.
Baroness Finlay of Llandaff (CB)
My Lords, I will make a very brief point, following on from that made by my noble and learned friend Lord Thomas of Cwmgiedd.
There is a group of victims who are particularly vulnerable: those with impairments in mental capacity, who may have difficulty in expressing and explaining what has happened to them and are vulnerable to misinterpretation of anything they say—they are in particular need of advocates who understand their needs.
Many years ago, I was asked by Gwent Police to assist them in a prosecution in relation to people with profound mental incapacity who had been abused and raped. It was very difficult to pull the evidence together, and it was a very steep learning curve to see how difficult it is to let the veracity of what they were trying to tell one be heard and come through. I hope the Government will recognise that there is a group in the population who are particularly vulnerable to exploitation and to sexual abuse by the very nature of having learning difficulties and impairments, and of course that also includes young people with autism—we know how vulnerable they are to influence, and to coercion into a situation that they believe.
Lord Marks of Henley-on-Thames (LD)
My Lords, in this group, I will speak only to Amendments 78 and 79, in the names of the noble Baronesses, Lady Thornton and Lady Hamwee. They call for free independent legal advocates and free independent legal advice for victims of rape, and I support the principle behind them. I take the point made by the noble and learned Lord, Lord Thomas of Cwmgiedd, that they do not necessarily talk about advocacy in court, although Amendment 78 does talk about free independent legal advocates.
The noble Baroness, Lady Thornton, said that the amendments will not affect our adversarial system; nor will they affect it adversely. However, I hope that they will, if adopted, have an effect by ensuring that the interests and voices of victims are considered and heard throughout the criminal justice system, and—certainly for the purposes of these amendments—more comprehensively in rape cases, and that will be wholly beneficial.
These amendments lie at the heart of what this Bill is all about, which is to bring about a transformation in the way we look after the victims of crime. We have moved, but far too slowly. When I practised in the criminal courts a long time ago now—and this is not intended to be an exercise in reminiscence—as both prosecutor and defender, we were almost encouraged to take pride in the structure of criminal cases as a contest between the state—the Crown—represented by the prosecution’s lawyers, and the defendant, represented by independent barristers and solicitors, generally paid for by the state. The adversarial system was all. The victim, usually called the complainant—or in financial cases, the loser—was universally treated as no more than a witness, liable to be harshly cross-examined almost without restriction, and deserving of no extra consideration on account of the ordeal suffered as a result of the crime.
Baroness Brinton (LD)
I am very grateful to my noble friend for so admirably speaking to Amendments 78 and 79—I will not cover them again—and to all noble Lords who have spoken. I want to focus my contribution initially on Amendment 106, which I have also signed. I have talked to Stella Creasy both about her own experience and about mine.
I had two incidents with my stalker-harasser. The first was at the beginning of the 2005 election, when, coming out of a Sky studio, I was told that my local newspaper wanted to speak to me about the fact that I was under investigation by Special Branch for electoral fraud—which was the first I had heard of it. It transpired that the person who was then identified as my stalker had reported me to Special Branch for falsifying my nomination papers and had then issued a press release for the weekly deadline of my local newspaper—which rather left me in a difficult position to discuss it.
A few hours later, my agent and I sat with two officers from Special Branch, who were extremely helpful. They were clearly more senior than the police officer that Stella encountered, because they were very clear that this was malicious. Worse than that, it was an intent to waste police time and money on an investigation that had no cause. They had briefly examined the allegation about why my nomination papers were false and deemed that this was malicious too. As a result, the whole problem went away, other than a severe talking-to to the person who had made the complaint.
Three years on—I think I mentioned this in one of the earlier sessions—one of the letters to the newspapers about me alleged that I was not fulfilling my role as a foster parent correctly by being a candidate. They had also reported me to social services. At that point, it became extremely helpful for the social worker, whom we knew quite well, to be able to ring Special Branch and say, “There is a malicious campaign going on,” and the whole thing just stopped. Is that not what should happen in every single case where it is clearly malicious?
I echo the comments of the noble Lord, Lord Russell, about Waltham Forest. It seems to me that they have lost sight of the actual case here. While it is important that both Stella Creasy and her children are appropriately protected, to do so following a malicious complaint in the terms of that complaint seems to me to be completely and utterly wrong.
From these Benches, we support all the other amendments that have been laid, and I thank the noble Baroness, Lady Bertin, for introducing amendments on third-party materials and therapy and counselling data. I also thank the noble Baroness, Lady Thornton, for her Amendments 78 and 79. As my noble friend Lord Marks outlined, this is absolutely at the heart of giving victims justice during a process and after a process. They are, perhaps, very detailed amendments— I am very aware of the point made by the noble Lord, Lord Thomas of Cwmgiedd, about the police needing a balance, but there is a way through that. At the moment, the balance is entirely against the rights of the victim, and I hope that the Minister will be able to respond in a positive way.
Earl Howe (Con)
My Lords, with this group of amendments we arrive at a particularly sensitive and emotive set of issues, as noble Lords have so movingly described. I shall do my best to provide responses to each of the amendments in as constructive and informative a way as I can.
I start by addressing Amendment 101, in the name of my noble friend Lady Morgan and spoken to by my noble friend Lady Bertin. The amendment seeks to revise the Government’s new Clauses 44A to 44F, which place a duty on authorised persons, including the police, to request victim information only when it is necessary and proportionate in pursuit of a reasonable line of enquiry. It would instead require agreement before the police could request victim information.
To pick up a point raised by the noble Lord, Lord Russell of Liverpool, when we were developing this legislation we wanted to consider very carefully the desirability of aligning the provisions around requests for victim information and the extraction of information from digital devices. Where possible, we have ensured consistency between those provisions.
The new victim information clauses in this Bill do not grant new powers to authorised persons; instead, they place safeguards around requests for third-party material. This is unlike the powers governing the extraction of material from devices in the Police, Crime, Sentencing and Courts Act, which give new statutory powers to authorised persons to request a device and extract information from it on the basis of agreement.
My noble friend’s amendment is based on the principle of victim agreement, but there is a key point we need to remember here. Unlike the information contained on a personal device, the victim does not own the material held by a third party, and therefore cannot agree to its disclosure. That does not mean that the victim’s views are immaterial, and I will come on to that, but the decision to release this information instead lies with the third party. The third party, of course, must be able to fulfil their own obligations under the Data Protection Act 2018, which governs the processing of personal data by competent authorities.
When considering digital information, it is likely that information held on a device could be accessible via other sources: that is, messages between a victim and suspect could be accessible from the suspect’s device. That is unlikely to be the case for third-party material. Therefore, it would not be appropriate to mandate that a victim agree to a request before the third party can disclose the material, because that may prevent the police accessing vital information relevant to the case.
Furthermore, a suspect’s right to a fair trial is already enshrined in law as part of the Human Rights Act 1998, which new measures must not contravene. This amendment could prevent authorised persons accessing information they need to support a reasonable line of inquiry, whether it points towards or away from a suspect. Investigators should always work to balance the public interest in obtaining the material against the consequential impact on the victim’s privacy.
Of course we recognise that it is best practice for investigators to work with and consult victims, so that their views and objections can be sought and recorded. That is why we have supported police in doing so in the draft statutory code of practice that we have published alongside the Bill.
Amendment 106 seeks to revise current data protection legislation, so that victims of malicious complaints involving third parties can prevent the processing, and subsequently request the deletion, of personal data gathered during a safeguarding investigation where the complaint was not upheld.
It is of course right that people are able to flag genuinely held concerns about children whom they believe to be vulnerable. It is also right that social services fulfil their duty to treat each safeguarding case seriously and to make inquiries if they believe a child has suffered or is likely to suffer harm. However, equally, malicious reporting and false claims made to children’s social care are completely unacceptable. They not only cause harm and distress to those subject to the false claims but divert crucial time and resources from front-line services and their ability to undertake investigations into cases where there are genuine safe- guarding concerns.
Current data protection legislation sets out that data controllers must respond to any request from a data subject, including requests for erasure, and then must consider the full circumstances of a request—including the context in which the data was provided—before refusing. Where a data subject is dissatisfied with the response to their request, the current rights of appeal allow a data subject to contest a refusal and, ultimately, raise a complaint with the Information Commissioner’s Office.
I assure my noble friend that, as part of its decision-making process, the ICO will take into consideration circumstances where a malicious claim has been made that may or may not amount to criminal conduct. Where a complaint to the ICO is upheld, the ICO can tell the organisation to assist with resolving the complaint, such as providing information or correcting any inaccuracies. The ICO can make recommendations to the organisation about how it can improve its information rights practices, and can take regulatory action in the most serious cases.
I hope that the process I have set out reassures my noble friend, and the Committee, that the current data protection legislation provides adequate protection. Therefore, in our view, additional provision is not needed.
Baroness Thornton (Lab)
Can the noble Earl clarify that he is saying that it is up to the victim to take the action?
Earl Howe (Con)
The law is there to enable them to do that. However, where they have an advocate, that person can act on their behalf. I recognise what the noble Baroness is implying in that question. All this is an extremely stressful and traumatic process for the individual involved.
Baroness Brinton (LD)
May I pick up on the Minister’s response to the noble Baroness, Lady Thornton? The whole problem in this group is about the onus that is continually placed on the victim. It would be really helpful for the victim and those supporting them if there were an ability to short-cut some of that access. It would be enormously helpful if the Minister could go back and perhaps seek advice from the ICO about whether there are exceptional circumstances like that, because it is such a burden.
Earl Howe (Con)
I will be very happy to do that because I fully recognise the seriousness of the issue, and in particular the appalling events that Stella Creasy had to endure.
Lord Russell of Liverpool (CB)
The noble Earl has laid out, in his usual exemplary way, the way that the system is meant to work and the way it is designed. I suggest that the acid test would be to go to the officials concerned in Waltham Forest and ask them to describe, without leading the witness, exactly how they see what the noble Earl has just described—how they understand it—and how they therefore see what they can and should do. I suspect the results would be some distance away from what the noble Earl has just described, and therein lies the problem. It is fine to have a system, a process and a code that are meant to work, but if they are not working, which they clearly were not in this case, to put the onus on the individual victim to try to rectify that does not seem like justice, and neither does it seem sensible or proportionate.
Earl Howe
I have heard the strength of feeling on this, and I will be more than happy to take the issues raised back to my colleagues and officials in the department. I will be happy to write to noble Lords about this, and I would also be happy to arrange for my noble friend and interested Peers to meet me, or my noble and learned friend Lord Bellamy, to discuss the issues that have arisen.
I turn to Amendment 103, tabled by the noble Lord, Lord Hampton. We recognise the importance of ensuring that the distinct needs and experiences of children are reflected in the code of practice that the noble Lord mentions, and that is why we have included specific guidance in the draft code for handling victim information requests for children. I agree with the noble Lord that it is essential to make sure that the final code reflects best practice in this area, and that is why my noble and learned friend Lord Bellamy has instructed officials to review the list of statutory consultees for this code of practice.
I turn next to the amendments tabled by the noble Baroness, Lady Thornton, which seek to require the development of proposals for schemes to give victims of rape access to free independent legal advice and representation. I agree that it is extremely important that victims are confident in their rights and are aware of those rights, particularly when preparing for trial and when requests for their personal information are made; I found much that I could agree with much of the contribution from the noble Lord, Lord Marks.
We wanted to ensure that our understanding of this issue is as comprehensive as possible and, to that end, the Government asked the Law Commission to consider the merits of independent legal advice for victims as part of its comprehensive review into the use of evidence in sexual offence prosecutions. The consultation closed in September last year, and we expect the final report to be delivered in the autumn of this year. To avoid making changes at this stage that could pre-empt the outcome of the Law Commission’s review, and to ensure that we are considering all the evidence as a whole, we will consider the Law Commission’s report and respond in due course. There is no reason why the tenor of this debate should not form part of the Government’s deliberations once we have the Law Commission’s report in our hands.
Perhaps I could add something around the therapeutic support issue. Victims of rape should not be told that they cannot access the therapeutic support that they need to heal from the trauma that they have endured. The Crown Prosecution Service pre-trial therapy guidance is absolutely clear that therapy should not be delayed for any reason connected with a criminal investigation or prosecution. The guidance sets out clearly that it is for the victim to make decisions about therapy with their therapist and that criminal justice practitioners should play no role in the decision-making process.
In the rape review action plan, we recognised that victims of rape frequently experience intrusive requests for personal information. To improve that situation, we have taken a number of actions, including legislating through the Bill to introduce a statutory code for the police to ensure that requests for victim information are made only when necessary, proportionate and relevant to a reasonable line of inquiry. The police must also provide full information to the victim on what information has been requested, why it has been requested and how it will be used. A draft code of practice has been published. When it is finalised, it will be statutory, and police will have a duty to have regard to the code when making requests. I hope that that is helpful.
Lord Marks of Henley-on-Thames (LD)
My Lords, I am grateful to the noble Earl for giving way. I ask whether the code will, in fact, introduce what the noble Baroness, Lady Newlove, called a privilege against requests made for records of therapeutic interventions. That is one of the problems: therapy is deterred by the fear of a future request for notes to be disclosed. That is a very serious issue.
Earl Howe (Con)
I recognise the seriousness of the issue. I have no advice in my brief on that, but I will be happy to write to the noble Lord on that point.
Baroness Newlove (Con)
My Lords, it is exactly as the noble Lord, Lord Marks, said. He put it so succinctly, more so than I did—I would go on, because I am so passionate about this.
I have admiration for the noble Earl. What worries me in all this legislation is that it is so simple to say, but when it is enacted on a traumatised rape victim, it is not as simple as joining the dots. I am up for having further conversations, but this is for the professionals. While we can stand here and say this, I am still going through the criminal justice system, and believe you me: I could write another book on how it does not do a service to victims—and I am in the position that I am in, as is the noble Baroness, Lady Brinton; it does not follow.
For rape victims, it is really hard-hitting when they are going to a SARC centre to be forensically examined, and they are talking to individual people. While we want to have trust and faith in our police officers, the police are so not like what we will have in statutory guidance. Also, what do we class as reasonable? Everybody within our criminal justice system has a different definition. It should not be for the victim to think, “What is reasonable?”, when they just want to do what is best.
I really want this to work, but I wish we could be cautious and understand that the people we are talking about are traumatised. They may have been raped not once or twice: it could have been in their home. Everything is intrusive, and it is down to the victim to have a voice to go forward. I wish we could get that in the guidance and the legislation, because it is their lives that we are speaking about and it is their lives that we need to put back on a level playing field.
Baroness Bertin (Con)
My Lords, I will also come in on this. I have huge respect for the noble Earl, and I have huge respect for the police, but I am afraid I cannot accept the idea that all 43 police forces and all chief constables will look at, understand and know the code of conduct, and that this will somehow be better than a judge saying that something is right or wrong when it comes to releasing therapeutic records. I would certainly like to meet him and others about this, ahead of Report.
Earl Howe (Con)
My Lords, I am the first to agree that a code of practice takes us only a certain distance. We also need to ensure that there is proper training for police and others. We had a short debate about this earlier in the week, and I hope I gave some useful information to noble Lords on that front. I am, of course, very happy to speak to my noble friends about this—as I am sure my noble and learned friend Lord Bellamy will be, once he gets better. It is not a simple matter, and I did not intend to suggest that it is.
On the amendment tabled by my noble friend Lady Bertin, as I have already said, it is vital that victims of crime can access the justice system and get the support they need without fear that their privacy will be violated. I am aware of concerns that deeply private information about victims, including notes from counselling sessions, have sometimes been used inappropriately to discredit victims—in particular, victims of rape and serious sexual offences—seeking justice through the criminal justice system. This can, as the noble Lord, Lord Marks, pointed out a minute ago, prevent victims from accessing the support they need in the first instance. That should not be the case, and I am grateful to my noble friend for raising the topic through the amendment.
My noble friend’s amendment seeks to put in place a judicial barrier for disclosure of counselling records and, with some exceptions, to create a requirement for the court not to grant access to this material where the disclosure was made in confidence by the victim to a person providing support services in a professional capacity.
Through the Bill, we are placing a new statutory duty on the police, as I have said, to request victims’ information from a third party only where necessary and proportionate in pursuit of a reasonable line of inquiry. Police must also provide information to the victim on what information has been requested, why, and how it will be used.
As I have outlined, the Government have asked the Law Commission to examine the trial process in sexual offence prosecutions and consider the law, guidance and practice relating to the use of evidence. This review will include consideration of whether a court direction should be required before accessing third-party material such as counselling records, and consideration of international examples where this system is in place.
Baroness Chakrabarti (Lab)
I am grateful to the noble Earl for giving way. I have not spoken in this group so far, because I agreed with everything said by the proposers and did not want to take up the Committee’s time, but, in the light of what I have just heard—in general, but also specifically about counselling notes— I feel moved to. A general obligation on necessity and proportionality is not going to cut it, I am afraid, because counselling and therapeutic notes are special. Just as legal advice is special, and subject to special protection in the courtroom, there is no reason why we cannot act to make such notes special too.
I appreciate that the noble Earl is heroically stepping into another’s brief, no doubt at short notice, but I think that it is for the department to reflect on the quality of thinking so far. Waiting for the Law Commission will take too long. There are already too many women who have not come forward to report their rapes because of the well-publicised problem with counselling notes. They are being counselled by public authorities to choose between counselling or taking their criminal case forward—this is totally unacceptable.
My goodness, the irony of relying on general principles in the Human Rights Act is perhaps the richest I have heard in a long time, given some of the positions that senior members of the Government are taking on that Act and the ECHR. I hope the noble Earl will reflect on these answers or urge others responsible to reflect.
Earl Howe (Con)
My Lords, having tasked the Law Commission, as we have, with preparing a full-scale set of recommendations in this area, it would be unthinkable for us to pre-empt its report. I am afraid I must disagree with the noble Baroness. I realise how emotive and stressful an area this is for anyone who is intimately involved in it day to day, but that is how we have to proceed.
Baroness Bertin (Con)
I want to make a technical point about the Law Commission review, which I have full respect for. As I understand it, the commission will not be looking into pre-charge situations, so the amendment would still stand as that subject is not being tackled by the Law Commission. I reiterate that I just do not buy the idea that police officers all around the country are necessarily going to have the right training to enact the responsibilities that we are putting on them. We really will be pursuing this, I am afraid.
Earl Howe (Con)
I hear what my noble friend has said. I was able to give what I hoped was helpful information in our debate on Monday about police training, but it is by no means an overnight process, as I am the first to acknowledge. Still, work is under way, and it is surely an important ingredient in the mix.
We think that the Law Commission is best placed to conduct a holistic review of the existing system and to make recommendations for improvement where necessary, and the Government are most reluctant to make changes at this stage that could pre-empt the outcome of its review. However, we can all look forward to closely reviewing and responding to its findings and recommendations when they are published later in the year.
Before I turn to Amendment 173, I shall address the point raised by the noble Baroness, Lady Finlay, about victims with limited mental capacity. There are general points in the code about enhanced rights if the victim’s quality of evidence is likely to be affected because of a mental disorder. They may be supported by a registered intermediary if a mental disorder affects their ability to communicate. Some communications under the code might be done with a nominated family spokesperson if the victim’s mental impairment means that they are unable to communicate or lack the capacity to do so.
The Law Commission is looking at the impact of rape myths on people with disabilities or mental health conditions and how the current legislation and practice of the use of intermediaries is working in respect of complainants in sexual offence cases with disabilities and disorders.
Baroness Newlove (Con)
My Lords, I am grateful for that response to the noble Baroness, Lady Finlay. I did a report on registered intermediaries. Again, I mean no disrespect to the Minister, because this is a very passionate area that we are speaking about, but we have a shortage of registered intermediaries, and they are the ones who train the police to get the best evidence.
I am concerned about people with autism or special needs, and even victims who have nothing apart from their trauma. My concern is that there is a shortage of registered intermediaries, and the reason is that they were not getting paid to do the job. I ask the Minister to write to me to see where we are on that position. While he has given a copy-and-paste response, in a sense, it does not help to fix the problem for people with special needs.
I have met a couple of victims of rape who were disabled. They thought they were raped because they were disabled, but it has never left me that when they went through the court trial they found that those people were on the web and looking at disabled people. It was not because that victim was disabled. So I am concerned. The Minister does not have to answer now, but I ask him to write to me about where we are on registered intermediaries after that report six or seven years ago.
Earl Howe (Con)
I would be happy to write to my noble friend.
Amendment 173 seeks to extend Clause 24 to the whole of the UK. At the moment these measures apply to England and Wales, on the basis that policing is a devolved matter. This aligns with the territorial extent of the majority of measures within the Bill. We have also taken the decision to limit the scope to England and Wales as, following engagement with the devolved Governments, it is clear that there is no appetite at present for these provisions to extend further.
Baroness Thornton (Lab)
I assume the noble Earl is asking me to withdraw my amendment.
I thank all noble Lords who have taken part in this debate. The noble Earl will be able to report with some veracity to his noble friend, who we hope will be back with us next week, that there is a complete degree of unity across the Committee about the need for action on all these amendments.
I thank the noble Earl for the fact that there has been some movement; I think that at least two meetings will flow from this group of amendments. I thank the noble Baroness, Lady Finn, in place of the noble Baroness, Lady Morgan, for her introduction and the suggestion that we should meet to discuss Amendment 106 and take that discussion forward together.
On Amendment 106, we have talked about my honourable friend Stella Creasy, who I have known since she was about 16 or 17 years old, but the briefing we got told us of many other examples of people who had been harassed. As one anonymous case said:
“Out of the blue Z received a call from their local police sharing details of a complaint made about the treatment of her children. The anonymously submitted complaint made a series of false claims accusing Z of neglect and abuse ranging from failing to feed or clothe their children correctly or take them to the dentist and GP. Social services were able to confirm that Z’s children attended school, the dentist and were registered with their local GP. Despite a lengthy investigation Z is no further in understanding who made this complaint, and their children’s record remains”.
She feels wretched about that fact. Of course, that carries forward to what happens to those children. Every time that mother has to fill in a form or a job application in public services of some sort, the fact that the report exists on the record is material.
Many noble Lords hold positions. I am a non-executive director of the Whittington Hospital and have had to go through the usual CRB checks to hold that position. If this was me, I would have to have declared that. That is what happened to Stella Creasy and all these other women who have been harassed and about whom vexatious complaints have been made. It is not just that this is unfair and a continuation of harassment; it has a material effect on those people and their children. We need to find a remedy for this issue.
I turn to the other amendments. I thank the noble Baroness, Lady Bertin, for her introduction and for the way in which she talked to her amendments. The noble Baroness, Lady Newlove, made her usual powerful and informed contribution. The words of the noble and learned Lord, Lord Thomas, were very wise. The noble Baroness, Lady Finlay, champions some of the most vulnerable people in our society. The noble Lord, Lord Marks, was perfectly correct in saying that the effects of Amendments 78 and 79 in my name would be only beneficial, not just for the victims of rape but for all the authorities and for their conduct in dealing with these victims.
The question is: can we wait another couple of years for the Law Commission to report and for the Government to consider it and take it forward? I was interested in what the noble Baroness, Lady Bertin, had to say. This issue may not fall within the scope of what the Law Commission is considering. We all need to know that, so that the discussions we might have with the Minister can be resolved in a spirit of information. I praise the noble Earl who has had to stand in for dealing with all these issues in his normal informed and courteous manner.
Finally, Amendment 115 on not delaying therapy is vital. As my noble friend Lady Chakrabarti said, the idea that you have to choose between therapy and justice is so abhorrent that we cannot wait another couple of years to be able to sort that out.
I thank the noble Earl. I look forward to the meetings and conversations we will have between now and Report, when I suspect we will return to many of these issues. I withdraw my amendment.
Baroness Chakrabarti
“Parental alienation in criminal domestic abuse casesIn section 1 of the Children Act 1989, after subsection (7) insert—“(8) Anyone involved in the case who is also a victim (of criminal conduct) within section 1 of the Victims and Prisoners Act 2024 (meaning of “victim”) cannot be considered by the family court as a potential perpetrator of parental alienation.””Member’s explanatory statement
This clause would seek to ensure that victims under this Bill could not be disadvantaged by considerations of parental alienation in the family court.
Baroness Chakrabarti (Lab)
I have recovered my calm and my optimism that we may get some more positive noises from the Government in the next group.
This large group could easily have been degrouped because it covers two fairly distinct areas. This is a very long Bill with a lot of amendments, so maybe keeping this as one group was an attempt to assist the business managers. I hope that the Committee will bear with me in separating the two principal issues covered by this long list of amendments.
Amendments 84 to 100 are about what is called Jade’s law. There are other concerns about the family court and the way in which its process has been and is being used abusively against victims within the definition in the current Bill. Amendments 82, 110, 111 and 117 refer to this.
I turn first to Jade’s law. The Committee will remember that last October the Government amended this Bill in the other place to include new Clause 16. This is what is being called Jade’s law. The intention is to ensure that a parent who kills a partner or an ex-partner with whom they have children will automatically have their parental responsibility suspended upon sentencing. The purpose is not to burden family members already in a state of some trauma with having to apply subsequently to the family court of their own volition to ask for the parental rights of the killer to be removed. Parental rights could be suspended as part of the sentencing process to take away that additional procedural burden. It is often bereaved grandparents and close family members who are in that devastating situation.
Jade’s law is named for Jade Ward, who was murdered by her former partner in 2021, with her four children sleeping in another room. Jade’s family campaigned for a change in the law after Jade’s murderer was able to continue to take part in decisions relating to the children. There are other case studies too.
Baroness Brinton (LD)
My Lords, it is a pleasure to sign all the amendments from the noble Baroness, Lady Chakrabarti, in this group. I will not go through the detail of them, but I want to make a couple of comments about Jade’s law and parental alienation to set in context why all the amendments are necessary. They certainly try to remedy the poor behaviour of ex-partners especially, but not only those, who are offenders through the criminal courts system. As we have heard through the passage of the Bill, we are talking about the most manipulative and vindictive people, who will continue to do everything they can to persecute their ex-partner or, I am afraid, sometimes their current partner.
The noble Baroness, Lady Chakrabarti, referred to the report from the Ministry of Justice’s harm panel published in 2020. It found evidence that through the family court system abusers were exercising
“continued control through repeat litigation and the threat of repeat litigation”.
Its recommendations outline comprehensive changes to the system to stop this happening using a whole series of mechanisms.
Among other things, the panel recommended that the basic design principles for private law children’s proceedings should be set out in the way it described and which I will not go into. Much more importantly, it seems to be safety focused and trauma aware. The problem with the offenders we are talking about is that those children are already traumatised.
Although the report was principally about children, it talks about parents in private law cases as well. One problem faced in family courts is the increasing number of litigants in person. It is not even a counsel representing one of the parents; it is the estranged partner, who may have a criminal record for their behaviour, cross-examining their ex and other witnesses. That is just not appropriate. I know the law has changed on that, but that is the context in which the report was written.
The Minister referred in a previous group to the importance of training, and indeed we have had amendments on that. Recommendation 11.11 by the harm panel echoed amendments that your Lordships’ House has seen in recent years, on training in the family justice system to cover a
“cultural change programme to introduce and embed reforms”.
It then goes through a whole string of items which I will not mention, but it specifically mentions the problems of parental alienation.
Prior to that report, it was very difficult to get the family courts even to accept that there was such a thing as parental alienation—the noble Lord, Lord Ponsonby, has nodded at me. The Domestic Abuse Act 2021 certainly made some improvements, but unfortunately the reason for these amendments is that there are too many holes in the current system that mean that victims going through private family law proceedings can be inappropriately assessed by experts, with some inappropriately concluding that victims’ allegations, including those made by children, are evidence that the victim parent is “alienating” the other.
The victim parent often cannot get the family court to consider the previous criminal behaviour of their former partner or even a caution—I suppose that technically counts as criminal. The point is that—and we have debated this a lot in your Lordships’ House—the family court rightly prides itself on being a stand-alone court system, but in this instance the behaviour that was found through the criminal system is now replicated in the family court system; it is not everywhere but it happens. Family courts need to recognise that and take it into account.
There is recognition now of what is called the “parental alienation trap” in academic research both here and in America. Basically, it means that victims are accused of alienation. Not only does that compound the trauma from the abuse but that trauma is then used as evidence that the mother or child—and it usually is a mother—is disordered and therefore an alienator. That is a trap that you cannot get out of in a court, because whatever you do is wrong.
A further problem is that some parents who are calling their former partners disordered can now get specialist advisers who believe in parental alienation. One bit of evidence from the Victims’ Commissioner for London was a quote from a victim of the family courts:
“The therapist recommended a 90 day plan for my son to spend time with his Dad with no contact with me. She wrote in her report that there was a need to ‘sever the bond between mother and child’. The ‘experts’ then had free rein granted by the judge to force me and my son through privately paid therapy every week at £150 per hour. The therapists and social worker told me if I didn’t, they wouldn’t give me my son back. They wanted to take him away at the end of 90 days and give full custody to my ex but my ex refused as he said ‘I had learnt my lesson and he had a life and didn’t want my son all the time’. I was one of the lucky ones. I had to fight this case for over 2.5 years and it cost me a total of just under £900,000”.
People who have access to resources are using their money to manipulate the family court system even more.
It is also extraordinary that it is possible for those on bail or awaiting trial for domestic or child sexual abuse offences to have unsupervised contact with their children. Amendment 111 would prevent this. For similar reasons, victims of domestic abuse need protecting from disclosure of their personal and private medical records, as we discussed in the previous group. I will not repeat the arguments, but they are as strong here, particularly where the litigant in person will see those details in all their glory.
While we welcome the Government’s amendment to Clause 16 in the Commons to take account of Jade’s law, it does not go far enough to protect children, particularly children who have been abused by a parent—unbelievably, they retain the right to parental responsibility above the safeguarding of a child. Amendments 84 to 100 on Jade’s law also cover the issue that happened with Jane Clough, who was murdered by her ex-partner. I had the privilege through the stalking law inquiry in 2011-12 to meet Jane’s parents, John and Penny Clough. Ever since their daughter’s murder, they have campaigned tirelessly for legislation to protect victims and their children from their violent and murdering partners and ex-partners.
It is really important that these lacunae in the family court system are closed. We need to make sure that children, whom the family courts stand there to protect, are the absolute priority and that every bit of evidence from the criminal court system or other systems, through repeated litigation through the family courts, is taken into account.
Baroness Newlove (Con)
My Lords, I support all these amendments. As Victims’ Commissioner, I have been in contact with many victims who have experienced criminal offending and are going through the family courts. I have raised concerns about how, as I hear from victims of domestic abuse in particular, the family courts can be a highly traumatising environment. Anecdotally, from someone who has worked in family law, I hear that you have only to go into the family courts to see how private they are. You cannot even walk freely. The barristers take over and you go before the judges. It is very clinical at an emotional time.
I was pleased when this was acknowledged by the Government, which resulted in the harms panel report, as has been discussed. I was also pleased that the Government legislated through the Domestic Abuse Act, in which I was heavily involved, to prevent perpetrators of domestic abuse cross-examining their victim in family court proceedings. However, we still have issues within the family courts for victims of abuse. As has been said, parental alienation has been increasingly argued in the family courts and even on social media when you speak out about it. It is interesting that we are talking about it in this Chamber to protect those victims. I am aware of cases where it has been used by an abuser to discredit their victim in child custody hearings. I was also shocked to discover that so-called experts in these cases are not always qualified or regulated to provide such opinions, and yet weight is frequently given to the evidence in court.
As we have just heard from the noble Baroness, Lady Chakrabarti, abusers will often try to paint the abused parent as unfit in other ways, sometimes relying on medical records which detail evidence of the mental effects of trauma that they have caused. In fact, I would like to see that put down to coercive control by the abuser, rather than the victim having problems. We have to back up these claims for mental instability. It cannot be right that an abuser can go into a family court and use it as a tool of abuse. Therefore, I am wholly supportive of the measures to reduce the opportunity for an abuser to make false claims about their victim, and which seek to ensure that only qualified experts give evidence which is considered by the family courts making these difficult decisions.
I urge the Government to support Amendments 110 and 117. Although it is relatively rare, thankfully, we know that children die at the hands of an abusive parent during unsupervised contact, where abuse is a factor in the marriage breakdown. Research conducted by Women’s Aid considered the deaths of 19 children in such circumstances in a 10-year period—even one such death is too many and no children should be at risk in this way.
I urge the Government to support Amendment 111, which seeks to prohibit unsupervised contact for a parent awaiting trial, or on bail for domestic abuse, sexual violence or child abuse-related offences. The Government first proposed legislating to create Jade’s law after campaigning by the family of Jade Ward, who was killed by her former partner. This law seeks to, in effect, remove the parental rights of someone who kills their child’s other parent—a move I welcome. However, it does raise concerns about what it means for women who kill an abusive partner. Are we really saying that they should automatically lose their parental rights, as well as being imprisoned? I am in favour of measures which seek to mitigate the effect of Jade’s law in such circumstances being included in legislation. I therefore ask the Government to support Amendment 89.
Baroness Fox of Buckley (Non-Afl)
My Lords, I rise with some trepidation, but also with an open mind because I want some clarity on one or two of the amendments. In general, the group of amendments we are discussing seem eminently sensible in terms of safe- guarding, but I seek some clarification. Perhaps the noble Baroness, Lady Chakrabarti, can give me some help, because her explanation was very well made, detailed and useful, and explained the two different groups.
My concern is specifically with Amendment 82, which says, in effect, that anyone who is a victim of criminal conduct within Section 1
“cannot be considered by the family court as a potential perpetrator of parental alienation”.
It seems an extraordinary thing to put into law. To say that somebody can never be considered by the family court to be a potential perpetrator of anything would seem to go against the spirit of open inquiry; for example, the possibility that even if one is a victim, one might well indulge in something unsavoury.
In the previous group, we heard a huge amount about the damage that can be caused by false allegations. We must always consider the possibility that false allegations are used to alienate one parent against another; this has become known as “parental alienation”. I am rather sympathetic to the concern raised by the noble Baroness, Lady Chakrabarti, about medicalisation —I particularly do not like quack medicalisation—and I am glad to hear that many noble Lords are worried about the fact that so many people who call themselves experts are not necessarily experts, which is something I have been arguing for quite some time across a range of issues, so all that is good.
None the less, Amendment 82 uses the term “parental alienation”, and I want to know how this amendment will help, because if anyone is using, for example, falsifications that are aimed at removing one parent from a child’s life, even if that parent was previously guilty of a crime, we have to be careful, do we not?
Baroness Fox of Buckley (Non-Afl)
Yes, I said the other day in speaking to my amendments, I hope everyone accepts, that more women are the victims of domestic violence, but it is also the case that it can work both ways. I would like each allegation to be carefully examined by the courts; that is all. It needs to be that way, because we should have the aspiration that both parents should work to restructure the family in a healthy manner after separation, even after the massive disruption of domestic abuse. In the spirit of saying that I want people who commit certain crimes to become rehabilitated and to become responsible citizens, I do not want something that is so blanket as Amendment 82.
Baroness Brinton (LD)
The argument that the noble Baroness is expanding on now would be a case where a couple had separated and there may have been some domestic abuse or domestic violence. She is saying that they should both have the opportunity to try and get together and work things out together for the sake of the children. I do not believe there is anybody in your Lordships’ House who would disagree with that sentiment, but that is not what this amendment is trying to do. It is saying that, when the charge of parental alienation is used, it is almost demonstrating—simply by using the terminology and everything that goes with it—that the battle by one party still continues against the victim. Therein lies the problem. The noble Baroness’s latter principle is absolutely fine, but that is not the way that the people who bring forward claims of parental alienation behave in the court system.
Baroness Fox of Buckley (Non-Afl)
My only final point is to say that the term “parental alienation” has become problematic on both sides. It seems to me that one side can use the term “parental alienation” in the way that has been described—I have made the point that the term is used in the amendment—and another side can basically say that anyone who uses the term “parental alienation” does not understand the problems of victims of domestic violence, which is usually the accusation, as is that they are on the side of men’s rights campaigners. I am not saying any of that. I want some clarification on one amendment only of this very big group, because it is unhelpful to put it in the law.
Baroness Chakrabarti (Lab)
I will briefly respond to the noble Baroness. I thank the noble Baroness, Lady Fox, for her constructive engagement and for everything she has said. I will respond on that specific amendment. I understand where she is coming from.
Perhaps I did not put it very well, but what I was trying to articulate before is that I fully accept, as a fact of life, that marital breakdown will, sadly, sometimes —maybe even often—create a rancour that can be passed on to the children. The children can be caught in the middle, and they may feel that they are pulled in two directions, or perhaps in one direction more than the other; it does not matter. That is a fact of life. It is a matter of evidence and fact that is not, in my view, a matter for medical experts, but a matter for the judge to deal with and cope with—I think the noble Baroness is slightly sympathetic to that point.
In many cases, it will be about encouraging the parties, whatever their pain, to reflect on their actions in the interests of the child. However, it does not require the kinds of sums of money and the sorts of diagnoses that the noble Baroness, Lady Brinton, was talking about. It has to be said again that we are often talking about some very wealthy men; it need not be, but it is usually men. These are some very wealthy individuals who pay some very expensive, slightly dodgy—and if the noble Lord, Lord Russell, can use the “B” word, I can use “dodgy”—experts, whose expertise I would query, but whose greed I would not.
I can always reflect on drafting; that is what Committee is about. Here, when we talk about being
“considered … as a potential perpetrator of parental alienation”—
as opposed to simply saying bad things to their kids about the other party—we are talking about this syndrome. That is what I was trying to reflect. As for the fact that they should not be diagnosed or considered for diagnosis for 90 days for this syndrome, frankly, if they are a victim of abuse, it is almost inevitable that they are going to have some rancour or anger towards the other partner, unless they are a saint. Judges are well capable of considering that and working out what to do on the facts.
It is really about attempting to separate facts from expert evidence. These are hard facts that judges can deal with, with other court reports. This so-called “alienation expertise”, that some of us believe has become a bit of a racket, is being weaponised against victims. If there is something in the clarity of the drafting that can be improved, that is the great benefit of Committee, but I am trying to respond with the intention behind my amendment. I am very grateful for the opportunity to do that, raised by the noble Baroness, Lady Fox.
Lord Meston (CB)
My Lords, having started to grow old in the family courts, I feel that I ought to address some of these amendments, some of which I would like to support and some of which I would like to qualify.
I begin by clearing up one particular point, which was possibly a slip by the noble Baroness, Lady Brinton. There is no question now of unrepresented litigants being allowed to cross-examine mothers, particularly in contested cases involving domestic abuse allegations. It simply is not tolerated. No judge would tolerate it and we all know how to deal with it when it arises.
Turning to the individual amendments, as quickly as I can, and dealing first with Amendment 82 relating to parental alienation, I am worried by the proposal to restrict the family court’s approach to cases involving allegations of so-called parental alienation by what would amount to a statutory exclusion of evidence. There are two main grounds for concern that I suggest. First, the amendment would restrict the scope of what the court might want or need to consider. Secondly, and ironically, it might tend to elevate the significance of the concept of parental alienation. Allegations of alienation, whether justified or not, have become part of the weaponry of high-conflict parental disputes. The concept of parental alienation is controversial, and, indeed, as the noble Baroness, Lady Chakrabarti, said, the idea that there is a syndrome is largely discredited. That in itself may be one reason why it should not find its way, in any way, into a statute.
I was not going to refer to what was recently said by the President of the Family Division, but in view of what I have heard, I will say that in an important recent decision, in 2023, the President of the Family Division said:
“Family judges have, for some time, regarded the label of ‘parental alienation’, and the suggestion that there may be a diagnosable syndrome of that name, as being unhelpful. What is important, as with domestic abuse, is the particular behaviour that is found to have taken place within the individual family before the court, and the impact that that behaviour may have had on the relationship of a child with either or both of his/her parents. In this regard, the identification of ‘alienating behaviour’ should be the court's focus, rather than any quest to determine whether the label ‘parental alienation’ can be applied”.
It is often said that the family court has to take a holistic view of the child’s welfare. It has to look not only at what happened in the past but at what might be possible in the future. Cases of this type have a particular complexity. The signs of parental alienation are, frankly, not difficult to identify. In my experience, Cafcass is well equipped to do that. The causes are more difficult to understand. Cases in which one parent tries to turn the child against the other parent, consciously or unconsciously seeking to punish the other parent, present differing degrees of alienation and varying motivations.
These cases are not easy to resolve. They require an understanding of the family dynamics, and an assessment of the impact of what has happened and of the harm to the child concerned. The evidential picture is not always clear-cut. Indeed, there are some cases in which there may quite well have been some level of domestic abuse by one parent, but the alleged parental alienation is wholly unrelated to it; or the persistent hostility revealed is quite out of proportion to the type of abuse that has been experienced. The Children Act and the practice direction governing cases in which abuse has been established fundamentally require the court’s assessment of harm, or risk of harm, from all sources. Those are the vital considerations.
Amendment 82 would insert the label “parental alienation” into primary legislation. It could artificially restrict—and, indeed, distort—the proper analysis of parental behaviour and attitudes in their context, and could restrict the careful handling that such cases sometimes require. I doubt that would be helpful. Indeed, it could well be unhelpful.
I turn now to Amendment 84 and others that wish to introduce the use of Section 91(14) orders. For the uninitiated, Section 91(14) orders restrict further applications to the court without leave of the court. It is a valuable power. Although Section 91(14) orders are not strictly speaking barring orders, as sometimes described, they provide a necessary protective filter to ensure that inappropriate applications will not be allowed to proceed.
In reality, a Section 91(14) order may or may not be necessary in any individual case of this type—that is to say, a case involving the application of Jade’s law. However, in these extreme cases, if there is any possibility of an inappropriate application by the convicted offender, such an order would be justified. Indeed, under current guidance there does not always have to be a risk of repeated applications, but rather the risk of any application without merit.
In the situation covered by the Bill, when, unfortunately, one parent has killed the other and the victim’s family or foster carers have stepped in to care for the child or children, they should be shielded from the prospect and distress of further court proceedings. However, in that context, and slightly tangentially, I will just qualify one observation made by the noble Baroness, Lady Chakrabarti, when she referred to parental rights. One of the great improvements brought about by the Children Act 1989 was to remove the concept of parental rights. What is being restricted here is the exercise of parental responsibility.
My only reservation about the Section 91(14) amendments relates to the question of who should be responsible for making such orders and when they should be made. From experience, I emphasise that the orders require careful, case-specific drafting. It is therefore always necessary, when making such an order, to specify its duration, which is not dealt with by Section 91 itself. That may require consideration of the age and circumstances of the child and, in these situations, the position of the surviving adults. I rather assume that those proposing these amendments would wish the order usually to run until the youngest child reaches 18 years of age, but I suggest that should be made clear, either in the statute or in the order.
However, I add that these are not orders of which most Crown Courts will have had any experience. At the sentencing stage in the Crown Court, there might not be the material on which to craft an appropriate order. Accordingly, while I do not in any way wish to oppose the principle of the amendments relating to the use of Section 91(14), I suggest that under the existing scheme of the Bill it would be better to leave any mandatory imposition of a Section 91 order to the required review hearing in the family court, for which the Bill provides in new Section 10B.
Lord Marks of Henley-on-Thames (LD)
My Lords, as we have heard, Amendment 82, the first in this group, is designed to prevent a parental alienation argument, usually relating to contact but sometimes to residence as well, being used by perpetrators of domestic violence or child sexual abuse to harass their victims through repeated applications to the family court.
The Government need no reminding of the background, because it was the Government who commissioned the panel on the risk of harm in 2020, to which my noble friend Lady Brinton referred. That was responsible for a significant change of thinking in this area. The assumption that ensuring that children should always continue contact with both parents unless the circumstances were exceptional had dominated courts’ thinking for many years and was given some statutory force, though not in absolute terms, by Section 1(2A) of the Children Act 1989. However, the panel found that there was a pervasive culture of disbelieving victims of domestic abuse, compounded by a pattern of abusive ex-partners abusing the courts’ processes by applications to the court, and effectively of the courts ordering contact, in particular in favour of abusive parents, against the wishes of the victim—the other parent.
Allegations of parental alienation—I accept that the term became something of a term of art, perhaps unjustifiably—are frequently made by abusive parents, and they still are, generally seeking contact but also residence. My noble friend Lady Brinton has given a detailed account of why the parental alienation issue has represented a significant failure of the family courts in recent years. The process involves the abusive parent claiming that the resident parent is opposing contact in an effort to alienate the child from the non-resident parent; essentially, it is the bad-mouthing allegation taken to extremes, in a way that is wholly unjustifiable. I will not repeat the persuasive account of the issue that my noble friend Lady Brinton has given. However, in these cases with which we are concerned, the victim’s allegations are generally true. We need to remember that the children may be put at risk by unwanted contact with their parent’s abuser.
Summarising the position in 2020, the Minister, the noble and learned Lord, Lord Bellamy, wrote in the ministerial foreword to the panel’s report:
“The Panel found that too often, adversarial court proceedings retraumatised victims. Allegations of domestic abuse were too readily disbelieved or dismissed, alongside poor risk assessments and siloed working. The report also identified a view amongst many respondents that courts often placed an undue emphasis on ensuring children had contact with both parents”.
In its recommendations, the panel recommended a series of principles, which included:
“The court and those working within the system will be alert to those seeking to use … processes in an abusive or controlling way. Such behaviour will be actively identified and stopped”.
However, the issue persists.
Amendment 82 is directed at preventing victims being treated as responsible for parental alienation if they oppose applications made by perpetrators of violence against them to the courts. The amendment, as framed, would prevent a victim of domestic violence being considered as responsible for parental alienation.
The Committee may accept that the amendment as it stands is too absolute. As the noble Baroness, Lady Fox of Buckley, pointed out, supported by the noble Lord, Lord Meston, the amendment as drawn purports to prevent a court reaching a conclusion of fact, which it ought to be entitled to reach in a case where the evidence supports that finding. Nevertheless, I suggest that, in the view of the evidence that the panel and many other experts have considered, the direction of travel of the amendment is right. The interventions of my noble friend Lady Brinton and the noble Baroness, Lady Chakrabarti, in response to the speech of the noble Baroness, Lady Fox of Buckley, made it clear what the point and intention of this amendment are. If it needs redrafting, that could be dealt with between now and Report. The aim is to prevent perpetrators of domestic abuse continuing that abuse by transferring it to the court, abusing the court process with unwarranted accusations against their victims of turning the abusive parent against the victim.
Amendment 111 would reflect in the Bill a principle implicit in the findings of the panel: that in domestic abuse cases the court should disapply the Section 1(2A) presumption that parental involvement of both parents is generally in the interests of a child or furthers a child’s welfare. Furthermore, by the amendment, unsupervised contact should not be ordered in a case where the parent concerned is a defendant or a potential defendant in a case of domestic abuse, child abuse or a sexual offence. The level of supervision specified involves the presence of an approved third party at all times during contact, to ensure the physical safety and emotional well-being of the child, but the court would be left to determine the precise nature and location of the supervised contact permitted. I suggest that that represents a relatively minimal level of safeguarding. I accept entirely the caution expressed by the noble Lord, Lord Meston, as to the difficulty sometimes of arranging supervised contact. However, that difficulty needs to be weighed against the danger of exposing children to unnecessary risk, and I suggest that the amendment provides a reasonable balance.
Amendment 110 would ensure that anyone carrying out psychological assessment of a person as a victim for family proceedings would be suitably qualified by being regulated by the Health and Care Professions Council. I accept again the point that the noble Lord, Lord Meston, made, that often the perpetrator needs psychological assessment as well. Whether the qualification for making psychological assessments should be as is suggested—that is, regulation by the Health and Care Professions Council—is a matter for discussion. However, suitable qualification is always important.
Amendment 117 would protect victims from orders to disclose medical records to proven or alleged perpetrators of domestic abuse against them, unless the circumstances were exceptional. We have been through much of the detail of that and the principles behind it in relation to group one, and I suggest that the amendment is important in just the same way as the amendment in group one.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I open by agreeing with the last point made by the noble Lord, Lord Marks, that the overall path of this group of amendments is consistent with the harm panel’s recommendations.
In debating the group, I can see that there may be drafting improvements to be done. I am particularly grateful to the noble Lord, Lord Meston, for the points he made regarding the drafting of particular amendments.
I remind noble Lords that I sit as a family magistrate in London, and have been one for about 10 years. About 80% of the work that we deal with in our practice is private law, and so very much the types of cases that we are considering in this group of amendments.
I am grateful to my noble friend Lady Chakrabarti for the way she divided this group into two—Jade’s law and then the amendments that focus on using the family court to perpetrate or perpetuate abuse, which is almost always abuse of the woman.
I will not go through the amendments individually, because they have been fairly widely debated, but I will make some particular points, the first of which is on Amendment 82, which the noble Baroness, Lady Fox, questioned and spoke to. The point she made was about the medicalisation of parental alienation, and I think she argued that the courts should decide.
Some noble Lords in the Committee will have taken part, about three years ago, in the Second Reading of the Domestic Abuse Bill, as it was then, when the noble Baroness, Lady Meyer, spoke passionately about parental alienation. She absolutely believes that parental alienation is real, and that she experienced it with her own sons. In my experience of when domestic abuse allegations are made, which is fairly frequent, it is not an unusual scenario where the woman is making accusations of domestic abuse against the man and the man is applying for a child arrangements order to restart contact with his children, and he is making allegations of parental alienation. When that happens at magistrates’ level, we kick it upstairs.
We know it is a complex area, where, as the noble Lord, Lord Meston, said, there has been recent advice from the president on this matter, and we know that, particularly when there are wealthy individuals involved, there will be any number of experts who are brought into the court to try to resolve cases. We see these allegations a lot at my level, and we try, if possible, to resolve them there, but if they are persisted with, we will put them up to district judge or circuit judge level.
I want to reiterate what the noble Lord, Lord Meston, said about the Crown Courts putting in place protection orders to prohibit repeated applications and that this should be a decision for the family court. It is something that is routinely done in the family court, when you see persistent applicants who are abusing the process, and I argue that it is usually evident when we see it and they are orders that are regularly put in place.
The other point that the noble Lord, Lord Meston, made, was on Amendment 89, which I support. He questioned the degree of drafting in the amendment. The point I would make is that while there may well be shortcomings in the drafting, the direction of travel is clear and consistent with the rest of the amendments in the group. That may well be something that this side of the House would want to persist with at later stages of the Bill, depending on how the Minister replies to this debate.
In summary, family courts present some of the most difficult cases that I deal with. You see more tears in a family court than in any other court structure. I had a meeting this morning with a group representing fathers. This is an unusual group: you do not see them that much, and not much lobbying material has been sent to me regarding this or the Bill as a whole. The group that came to see me this morning was called Dads Unlimited, and its particular interest is in male suicide and male self-harm. The point that it was making to me—I must admit that it had some pretty persuasive data—was that, when men are involved in the family court system and making applications to court, they hide their mental vulnerabilities. They do not go to see their GP, and they do not want to talk about it, because they believe that it will be used against them when they are making their applications to court to restart contact with their children.
This is a difficult issue, and I think everybody understands that. Nevertheless, these amendments are trying to codify and build in protections to reduce abuse within family courts as far as possible, and I support them.
Earl Howe (Con)
My Lords, I begin by thanking the noble Baroness, Lady Chakrabarti, for tabling this group of amendments, which take us deep into the heart of the family court and its proceedings. The noble Baroness speaks compellingly and with great passion on these matters. I think she would agree with me that family court proceedings involve some of the most sensitive and difficult decisions that any court has to make, resulting as they do in often profound consequences for parents, children and whole families.
All the amendments in this group have noble aims. They seek to protect vulnerable children and victims of domestic abuse, and that is an agenda that I and the Government strongly support. I shall address each in turn, but I need to start by airing what I see as a difficulty running through these amendments: in one way or another, a number of them seek to curtail the family court’s discretion to take individual decisions on a case-specific basis on what is in the best interests of the children involved. With enormous respect to the noble Baroness, whose experience is much wider than mine, we need to be a bit careful here. The paramountcy principle, enshrined originally in the Children Act, provides the bedrock of all family court decisions. It is a principle that I firmly believe we must protect and uphold.
I start with Amendment 89. As the noble Baroness explained, it seeks to exempt from the provisions of Clause 16 victims of domestic abuse who then kill their abuser; this is Jade’s law, as she mentioned. None of us can have anything but the deepest sympathy for people who find themselves dealing with these extremely difficult and challenging situations. That is why my response on this amendment is that the Bill already allows for this protection. Clause 16 gives a clear route to protect victims of domestic abuse who have killed their abuser. It allows the Crown Court not to suspend parental responsibility in cases of voluntary manslaughter where it would not be in the interests of justice to do so. Our intention in including this exemption is that it could be used in situations where a victim of domestic abuse kills their abuser after a campaign of abuse. I hope the noble Baroness will find that assurance helpful.
Lord Meston (CB)
My Lords, I hesitate to interrupt, and I understand the drift of what the noble Earl is saying, but all I was suggesting was that, although I fully understand the desirability in many cases of having Section 91(14) orders—and suggest that in these extreme cases they should be the norm—it should not be done in the Crown Court but should be part of the mandatory requirements at the review hearing that will follow shortly afterwards in the family court. It should, at the very least, be something in the statute that the reviewing family court should be required to consider.
Earl Howe (Con)
I am very grateful to the noble Lord for those comments and will ensure that they are fed back to my noble and learned friend Lord Bellamy, and the department as a whole.
Baroness Chakrabarti (Lab)
I take the opportunity of this conversation to request that, when the noble Earl feeds back to the noble and learned Lord, Lord Bellamy, the point made by the noble Lord, Lord Meston, he emphasises that the concern here was not the Crown Court versus the family court and disrespect for any court’s expertise; it was for families being dragged into another process, possibly without legal aid, and going through the trauma of that procedure when they have just lost a loved one to murder by the spouse or partner. If, somehow or other, the Government could consider—the noble Earl dropped some breadcrumbs when he spoke of the duties of local authorities—a way to relieve the burden on the families who have to spend money and go through further trauma, that would be very welcome.
Earl Howe
I take the point about burdens placed on families at exactly the point they should not be, and I will feed that in.
Amendments 85 and 96 seek the automatic suspension of parental responsibility in cases where a parent has been convicted of sexual offences
“against the child, or a child in the family”.
I understand the motivations behind the amendments, but there are good reasons for limiting Clause 16 to instances of murder and manslaughter. Where one parent has killed the other, the children involved will, in many cases, have no one left to exercise parental responsibility apart from the perpetrator. It is absolutely right that, in those circumstances, those caring for the children are spared the burden of commencing family proceedings to restrict the offender’s parental responsibility.
Where a parent has committed another serious offence, the situation is very different. The other parent will, in most cases, be able to exercise their own parental responsibility and, if required, apply to the family court to restrict the offender’s parental responsibility. Legal aid is available for these applications.
There is a further point here. There may, and almost certainly will, be many cases in which an offender is not seeking to abuse anyone, or even to exercise their parental responsibility, and the children and family involved therefore have no interest in going through court proceedings to see their parental responsibility formally restricted. In those scenarios, it is unlikely to be in the best interests of the child and their family to be drawn into court proceedings that would inevitably be triggered by the automatic suspension, and the further distress that this will cause. Again, these amendments have a worthy aim but there is already a clear legal route for these restrictions to be put in place, and I hope that provides some reassurance.
Amendment 110 seeks to ensure that only experts regulated by the Health and Care Professions Council can undertake psychological assessments in family court cases. As the noble Baroness knows, the instruction of an expert within the framework of Section 13 is a matter for judicial discretion. There are, however, clear rules governing the use of experts in the family court. Practice direction 25B covers the role of experts in the family court, and an annexe outlines the 11 standards that experts must comply with. Where an expert’s profession is not regulated, it details the alternate obligations to ensure compliance with the appropriate professional standards.
I have already mentioned the Family Justice Council’s draft guidance on responding to allegations of alienating behaviour. The guidance notes that only experts regulated by the HCPC should give evidence in cases where alienating behaviours are alleged. Despite the measures already in place, and the upcoming guidance, it is clear that concerns exist. Officials are considering what else can be done in this area. I am mindful that we are dealing with an existing system of judicial discretion, so I am keen that any additional action does not disrupt the safeguards already in place but addresses the legitimate concerns that have been raised.
I am grateful to the noble Baroness for what she said on this topic. I hope she is reassured that we are taking seriously the issue of unregulated experts and seeking to resolve this matter through the appropriate route.
Amendment 111 seeks to remove the presumption of parental involvement in domestic abuse cases and to prohibit unsupervised contact between any person and a child where they are awaiting trial, are under police investigation, are on bail, or are going through criminal proceedings for domestic abuse, sexual violence or a child abuse-related offence. I recognise how important the issue of parental involvement is. However, the existing legislation, namely the Children Act 1989, provides sufficient safeguards to address these concerns. Section 1(6) of that Act, first, requires courts to consider whether a parent can be involved in the child’s life in a way that does not put the child at risk of suffering harm. The presumption of parental involvement applies only if that test is met. The presumption, where it does apply, is also rebuttable where there is evidence that the involvement will not further a child’s welfare. The court must treat the child’s welfare as its paramount concern.
In addition, practice direction 12J clearly sets out the factors that the court should consider when deciding whether to make an order for a parent to have involvement with a child. The court must be satisfied that the physical and emotional safety of the child and the parent can be secured before, during and after any contact.
I appreciate the aims of this amendment, and the noble Baroness will be aware that the Government are currently reviewing how the courts apply the review of the presumption of parental involvement, which will be published in due course. However, as there is already a clear legislative route for the court to determine if parental involvement should be prevented to protect the child. I therefore believe the proposed amendment is unnecessary.
Next, I will address Amendment 117, which seeks to prevent the family court from ordering a victim of domestic abuse to disclose their medical records to their abuser, unless there are exceptional circumstances. The Family Procedure Rules give the court the power to control the disclosure of evidence. Rule 22 provides that the court may give directions about the type and nature of the evidence it can order, alongside outlining the nature of the evidence required to reach a decision. The court will also decide how any evidence should be placed before the court. Rule 4.1(3)(b) gives the court the power to make an order for disclosure and inspection, including the disclosure of documents, as it thinks fit.
Baroness Chakrabarti (Lab)
I am so grateful to the Committee for the time we have spent on this lengthy but, I hope everyone will agree, important group of amendments.
I will not thank everyone or summarise their contributions because that would not assist the Committee at this late hour, given the groups that need to follow today, but I reserve particular thanks for the noble Baroness, Lady Fox, the noble Lord, Lord Meston, and the Minister. In Committee we benefit the most from detailed scrutiny of Bills and amendments, and their comments, particularly about drafting issues and the need to refine some of the ideas and amendments, were very helpful; they will allow me and those I am working with to reflect and improve amendments in areas where it is thought they should still be pursued.
I was particularly grateful to the noble Lord, Lord Meston, with his lifetime of expertise in the family courts, for the generous humility that he brought to the debate, given that I am not at all an expert while he is a very distinguished expert in the field. On the issue of psychological assessments of suspects, defendants and offenders being just as important as those of victims, I completely agree—but one was limited, as one always is, by the scope of the Bill.
I listened with great care to the points on Amendment 82 from the Minister, the noble Lord, Lord Meston, and the noble Baroness, Lady Fox of Buckley. I think the Committee understands our concern, and there may be something we can do to address that concern without naming the syndrome that we know has been discredited. I am thinking about how people are treated rather than trying to interfere with any court’s finding of fact, so I was grateful for that. I am still concerned about unsupervised contact with children by the kind of offenders we are talking about. We will have to return to that, along with some of the other concerns here. I made the point that respecting the expertise of the family court is without question, but we have to protect victims in particularly dire circumstances from being dragged from one court to another if that can at all be avoided.
It is always a pleasure to face the Minister across the Chamber. He is drafted in like a Marvel superhero by the Government because he is one of their finest advocates. It is a particular delight to be charged with attempted breaches of Article 6 or any other article of the convention, and to be reminded of the importance of not ousting the jurisdiction of the courts. If only the noble Earl could have a word with the Home Office about those values, I would be incredibly grateful. With that, I thank the Committee again and beg leave to withdraw the amendment.
NHS Dentistry: Recovery and Reform
(9 months, 3 weeks ago)
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The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Markham) (Con)
My Lords, I start by declaring my interest that my wife, who is present today, is a dentist—although she is not currently practising. With the leave of the House, I shall now repeat a Statement made in another place by my right honourable friend the Secretary of State for Health and Social Care. The Statement is as follows:
“With your permission, Mr Speaker, I would like to make a Statement on our plan to recover and reform NHS dentistry. First, on behalf of the entire House and my department, I send our very best wishes to His Majesty the King. His decision to share his diagnosis will be welcomed by anyone whose life has been touched by cancer. I know that we are all very much looking forward to seeing him make a speedy recovery and resume his public duties.
Turning now to dentistry, thanks to a once-in-a-generation pandemic between 2020 and 2022, 7 million patients across England did not come forward for appointments with NHS dentists. Since then, we have taken decisive action to recover services. We have made reforms to the dental contract, so that practices are paid more fairly for caring for NHS patients with more complex needs. We have made sure that dentists update the NHS website regularly so that the public know that they are taking on new patients. This has delivered results, with 1 million more people seeing an NHS dentist last year than in the year before. However, we know that too many, particularly those living in rural or coastal communities, are still struggling to find appointments. This recovery plan will put that right by making NHS dental care faster, simpler and fairer for patients and staff. It is built on three key pillars, which I will address in turn.
First, we will help anyone who needs to see an NHS dentist to do so, wherever they live and whatever their background. To do this, we must incentivise dentists across the country to care for more NHS patients. That is why I am delighted to tell the House that for the coming year, we are offering dentists two new payments on top of their usual payments for care— £15 for every check-up they perform on NHS patients who have not been seen over the past two years, and £50 for every new NHS patient they treat who has not been seen over the same period—because we know that patients who do not have a relationship with a dentist find it harder to get care. That is not a long-term ambition: our new patient premium will be available from next month.
We are also increasing the minimum payment that dentists receive for delivering NHS treatments. This will support practices with the lowest unit of dental activity rates, or UDA, to provide more NHS care. However, we know that in many of our rural, remote and isolated communities, dentists themselves are in short supply. That is why, starting this year, up to 240 dentists will receive golden hello payments worth up to £20,000 when they commit themselves to working in one of those areas for at least three years. These dentists will give patients the care they need faster, make dental provision fairer and tackle health inequalities.
We are also delivering dentistry to our most remote regions without delay. This year, we will deploy dental vans to more isolated, rural and coastal areas. Staffed by NHS dentists, they will offer check-ups and simple treatments such as fillings. This model has been tried and tested successfully across many regions. For example, last year in Cornwall, a mobile van visited five harbours, treating more than 100 fishermen and their families. We will be rolling out up to 15 vans across Devon, Gloucestershire, Somerset, Norfolk, Suffolk, Lincolnshire, Cambridgeshire, Dorset, Cornwall, North Yorkshire and Northamptonshire. This move has been welcomed by Healthwatch, the Nuffield Trust and the College of General Dentistry. We will let patients know when vans will be in their area, so they can get the care they need faster.
These reforms will empower NHS dentists to treat more than 1 million more people and deliver 2.5 million more appointments. As the chief executive of National Voices, a group of major health and care charities, said:
‘This extra money … should help thousands of people who have been unable to see a dentist in the last two years to get the care they need’.
These reforms are just the beginning. This recovery plan will also drive forward reforms to make NHS dentistry sustainable for our children and our grandchildren.
That brings me to the second pillar: growing and upskilling our workforce for the long term. Our long-term workforce plan, the first in NHS history, gives us strong foundations on which to build. By 2031, training places for dentists will increase by 40% and places for dental hygienists and therapists, who can perform simple tasks such as fillings, will also rise by 40%. More dentists and more dental therapists will mean more care for NHS patients.
I am delighted to tell the House today that we are going further in three key ways. First, we will consult on a tie-in to NHS work for dentistry graduates, because right now too many are choosing to deliver private work over valuable NHS care. More than 35,000 dentists in England are registered with the General Dental Council, but last year almost one-third worked exclusively in the private sector. Training those dentists is a significant investment for taxpayers, and they rightly expect it to result in the strongest possible NHS care. That is why, this spring, we will launch a consultation on a tie-in for graduate dentists and how this could deliver more NHS care and better value for taxpayers.
Secondly, we will take full advantage of our dental professionals’ skills. Today, even though they have the right training, without written direction from a dentist, dental therapists cannot do things such as administer antibiotics. This year, we will change this, making life simpler for dentists and making care faster for patients. As the president of the College of General Dentistry has said, the
‘use of the full range of skills of all team members will enable the delivery of more care and make NHS dentistry more attractive to dental professionals’.
Thirdly, we will recruit more international dentists to the NHS. We have a plan to do this by working with the General Dental Council to get more international dentists taking exams and to get them on to the register sooner, and to explore the creation of a new provisional registration status so that, under the supervision of a dentist who is already on the register, highly skilled international dentists can start treating patients sooner, rather than working as hygienists while they are waiting to join the register.
I turn now to our plan’s third pillar, which is prioritising prevention and giving children a healthy smile for life. This begins by supporting parents to give their children the best possible start. That is why family hubs up and down the country will offer parents-to-be expert advice on looking after their baby’s teeth and gums. As those babies grow up, we will support parents and nurseries in making sure that, before every child starts primary school, brushing their teeth is part of their routine.
The evidence is clear: the earlier good habits are built, the longer they will last. Seeing a dentist regularly is vital for children’s health, but, since the pandemic, too many have been unable to do that. That is why this year we are taking care directly to children. We will deploy mobile dental teams to schools in areas with a shortage of NHS dentists. They will apply a preventive fluoride varnish to more than 165,000 reception-age children’s teeth, strengthening them early and preventing decay. Our Smile for Life programme has already been endorsed by the College of General Dentistry.
Six million people in England already benefit from water fluoridation. In order to go further in protecting children’s teeth, we will consult on strengthening more of our country’s water with fluoride. Again, the evidence is clear: in some of the most deprived parts of England, enhancing fluoride levels could reduce the number of teeth that are extracted because of decay by up to 56%. That is why, through the Health and Care Act, we made it simpler to add fluoride to more of our water supply. As a first step, this year we will launch a consultation on expanding water fluoridation across the north-east—an expansion that would give 1.6 million more people access to water that strengthens their teeth, preventing tooth decay and tackling inequality.
This is our Government’s plan to recover and reform dental care: dental training places up by 40%; 2.5 million more appointments; dental vans treating more patients; more dentists in remote areas; more dentists taking on NHS patients; better support for families and better care for children; patient access up and inequity coming down. It will make life simpler and treatment faster and fairer for patients and staff. We have taken the difficult decisions, and we have now delivered a long-term plan to make dental care faster, simpler, and fairer for people across the country”.
Baroness Merron (Lab)
My Lords, I associate these Benches with the thoughts and prayers expressed for His Majesty the King. We wish him a full and speedy recovery.
I thank the Minister for this Statement at a time when NHS dentistry is at the most perilous point in its 75-year history. I found yesterday’s scenes in Bristol quite shocking, where the police were called to manage hundreds of people lined up outside a dentist. They had flocked to a newly opened practice, absolutely desperate to secure an NHS appointment. It is a raw illustration of the state of dentistry where more than eight in 10 dental surgeries are refusing to accept adult patients seeking NHS care and where more than seven out of 10 are not accepting under-18s. Tooth decay is the main reason for children between the ages of six and 10 being admitted to hospital.
It is noted that there is some proposed new investment in this plan, although previous funding has not kept pace with inflation. Good practice is to be deployed to improve access to dental care for those who have not seen a dentist for years, through the use of mobile clinics and some preventive measures. But this long-awaited plan which the British Dental Association has described as “sticking plaster” will not address the systemic problems that have led to today’s state of near terminal decline.
In addition to targeting recruitment of dentists to areas most in need and the preventive toothbrushing scheme for three to five year-olds, we have committed to 700,000 extra urgent and emergency appointments. There does not seem to be anything in the plan to address this latter need. This is key, because surveys have shown that 82% of dentists have treated patients who have had to take matters into their own hands since lockdown, by carrying out DIY dentistry. In 2022-23, across England, 52,000 patients were seen in A&E with a dental abscess caused by tooth decay, as well as 15,000 with dental caries. How will this plan work without the provision of more emergency and urgent appointments?
We know that immediate reform of the dental contract is needed. If in government, we will sit down with the British Dental Association in our first week. The Government’s 2010 manifesto made a promise to reform the NHS dental contract. Yet, this Statement confirms that reform will not be on the cards until 2025. Why was progress not made when it could have been? What assessment has been made of the impact of continued delay on dental health?
I turn to some specific points. Dentists are covering costs out of their own pockets, particularly for treatments that require lab work, such as dentures and crowns. This needs to be addressed. What assessment has been made of this situation and what impact does the Minister expect the plan to have in resolving it?
To what extent do the Government expect the new patient premium to make a dent in the scale of the problem of improving access for new patients? As the plan for around a million new patients is time-limited, there are concerns that this risks disincentivising the long-term treatment of the new patients being brought into the NHS. What reassurance can the Government give that this will not happen? The Government state that the plan will deliver care to 2.5 million, but their own data show that 12 million people in England have an unmet need for NHS dentistry. What about the rest?
The plan also includes “golden hellos” to around 240 dentists to work in underserved areas for up to three years. I hope this will help. Across the UK, 90% of dentists are not taking on new, adult NHS patients. In huge parts of the country, new patients are not being taken on at all, while, in others, dentists are refusing to see a child unless a parent is signed up as a private patient. What sort of a dent will 240 dentists make in this? How will these payments be distributed and in what areas? Perhaps the Minister can clarify whether the payments are for new dentists or are they to be used to get existing, qualified ones to move?
The absence of essential NHS dentistry is to the detriment of the health of the nation. As the Nuffield Trust says, this plan appears to be,
“a much-needed scale and polish when what NHS dentistry needs is root canal treatment”.
I look forward to the Minister’s response.
Lord Allan of Hallam (LD)
My Lords, from these Benches, I also echo our best wishes to His Majesty the King. We hope that he makes a speedy recovery.
In responding to this Statement, I also reach for that familiar phrase of it being a sticking plaster, before heading in the direction of dental metaphors. Rather than a scale and polish, it seems to me that this is something of a temporary filling when, as the noble Baroness, Lady Merron, says, NHS dentistry needs serious root canal work.
I feel for the Minister because I know he cares about dentistry and understands the scale of the problem. He has to sell the temporary filling hard in the hope that we will trust the Government to deliver on the more comprehensive course of treatment that is in the consulting on and exploring part of the document.
There are three elements in that long-term part of the plan on which I hope the Minister can comment further today or later in writing. First, we are told that the Government will ring-fence the £3 billion of NHS dentistry budgets from 2024-25 which have been underspent because of the lack of dentists willing to work at NHS rates. We cannot see this changing overnight, even with what is announced today. How will this ring-fencing work if an integrated care board has still not been able to get the take-up of the contracts that it wants? What kinds of things could they use these underspends for? Will these include additional local financial incentives on top of the ones we are discussing at a national level today?
Secondly, it is important to realise the benefits of people with dental qualifications moving to the UK. I know that the Minister would wholeheartedly agree. The policy document promotes the idea of a provisional registration of overseas qualified dentists while they are waiting for their full GDC registration. The phrasing in the Statement and in the document is quite hesitant. It talks about the Government working towards introducing legislation. Can the Minister give us more information about the complexity of the legislative changes that will be required and their likely timescale?
Thirdly, failures in emergency care both cause severe patient distress and additional work for NHS hospitals. The noble Baroness, Lady Merron, has already pointed out that many children are referred to hospital for emergency treatment. I looked at the description on the Smile Together website—a good service in Cornwall cited in the plan. It says that:
“Smile Together is commissioned by NHS England to provide urgent and emergency dental care to patients who would otherwise be unable to access treatment. Demand for this service is very high and the criteria set by our commissioners is very strict. We therefore offer emergency appointments that are independent of our NHS service”,
and people who call in who are unable to get an NHS appointment and do not wish to wait and try again the next day can basically go private. I am not sure we want to be in a situation where people needing emergency care are left hanging on the phone day in, day out, or face having to go for the private option. I hope the Minister can explain what the Government intend to do around emergency care. I hope he will agree that making sure people can get NHS emergency care will be better for both the patient and the NHS.
A temporary filling is designed to last a few weeks—or months at most—or perhaps until an election. We are grateful for the temporary relief it provides, but we know that more work is needed, and this has to be done urgently if we are to fix NHS for the long term.
Lord Markham (Con)
I thank noble Lords for their comments. First, the thing that brings us together is the desire on all sides to expand capacity. That is something that we are all behind. I hope that I can bring out the themes in this regard—the plans that we are talking about are designed to do exactly that.
The noble Baroness, Lady Merron, asked how the golden hellos will work. The idea is that it will be in the 12 most needy areas, and the ICBs will have the flexibility in how they attract people there. It might be existing dentists who they want to take from another area, or it might be private sector dentists or dentists who are just graduating. It is about making sure that they have the ability to bring those people into the areas of most need.
The mobile vans have proved quite successful already in areas such as Cornwall, where they have already been. They are designed to hit exactly those areas where it is hard to seed new dental practices, because there is a dental desert there, for want of a better word. Each of those vans alone should be able to do about 10,000 appointments a year, which is quite a sizeable number. Of course, what that does is put it in the areas of most need. The beauty of it—if beauty is the right word—is that, when you are talking about emergency-type situations, you will be able to tell exactly where they are.
The other thing that is important, with regard to all the payment mechanisms and how that will work, is that the dentists working in these vans are salaried. The idea is that we know that in those instances it is absolutely going to work in terms of the incentives. While we think that the patient premium absolutely will help in terms of access, and we know that the hardest one is getting them to see patients for the first time and that is what the additional £50 is all about, by bringing in these salaried people we can absolutely guarantee that those new people will be seen in those situations.
What I note from all this is that these are very concrete plans to create 2.5 million new treatments. I noticed that the noble Baroness, Lady Merron, mentioned the Labour plan of 700,000 extra, so I shall let noble Lords draw their own conclusions as to which one is more extensive. But to try to answer the question around ring-fencing, what this is all designed to do is to make sure that the contracted number of UDAs that we want to happen is delivered. Noble Lords will have heard me say before that the problem often is that it is not delivered because the dentists then go and try to sell to the private sector instead. So this is all designed to underpin that: first, by making it more attractive for those dentists to offer it to patients, in terms of the patient premium of £50, and the increase in the UDA price; and, secondly, by supplementing that with salaried staff, so you can absolutely make sure that it is being delivered in those circumstances. That is what we are trying to do—because we know that the UDAs are there in terms of the expansion, and we did see a large expansion last year. We increased the number of treatments from 26 million to 33 million, a 23% increase—so we have managed to do it. But we are talking here about wanting to do more of it, of course.
As for whether this is a temporary filling or a long-term fix, of course the long-term workforce plan is all about a long-term fix, making sure that we have the supply in place so we can supply the NHS services needed on a long-term basis. That is where we are talking about the 40% increase, and about making it easier to bring people in from overseas, to answer the question from the noble Lord, Lord Allan. As noble Lords know, I have a personal interest. I would not have a wife—or this particular wife—if she had not managed to become a dentist from overseas. But what I saw from all of that was that it is a two-stage process. It was one thing for her to be allowed to become a private dentist. I had to fill in the forms myself, and it was pretty hard. But it was an altogether new process then to become an NHS dentist. To be honest, the conclusion after all that was, “Why would I bother to do this? If I can already be a private sector dentist, why would I jump through a load more hoops to then become an NHS dentist?” It is designed to try to iron out those differences and not act as a disincentive in those situations.
To answer the question, those mobile vans, in terms of SMILE4LIFE, are there to make sure that they get people off on the right foot. The family hubs are for training would-be mothers about looking after gums and teeth. But also, crucially, it is about using those mobile services in the areas where they are most needed, putting in the fluoride varnish for 165,000 reception-age kids—so aged from four to five. That means really starting to get the right start to life in all this.
I hope that what we are seeing here is a comprehensive set of plans, expanding supply in terms of the golden hellos, mobile vans and increasing treatments, as well as the long-term workforce plan for increasing staffing. We are making it more attractive for dentists to provide NHS dental services in terms of the patient premiums. These will all start very quickly—in March, for instance. It is also about increasing the UDAs and making sure that our children get the right start to life, in terms of SMILE4LIFE, and making sure that their teeth are clean from a very young age.
There is a lot to do—I perfectly accept that—but I believe that what we have here is taking the right steps to achieve it.
Lord Young of Cookham (Con)
My Lords, I felt that today’s Statement deserved a slightly warmer welcome than it has received so far, particularly from the noble Baroness. At a time of enormous pressure on public expenditure, more resources have been found to target the people in the areas who need dental treatment.
I shall raise an issue that has not been raised in exchanges so far. The single most effective public health measure that the Government could take to reduce tooth decay, particularly among children, is to add fluoride to the water supply in those parts of the country where it does not occur naturally. The Health and Care Act 2022 transferred the responsibility from local authorities to my noble friend’s department. Since then, until today, nothing has happened. I welcome the announcement that there will be consultation on extending fluoride to the areas in the north-east where tooth decay happens to be at its highest. Can my noble friend give some idea of the timescale of that consultation and whether there are any plans to extend fluoride to other parts of the country where it is urgently needed as a public health measure?
Lord Markham (Con)
I thank my noble friend. He is absolutely correct that the benefits of water fluoridation are well proven. The consultation for the north-east of England, which will bring in 1.6 million people to this, is starting very shortly. The idea behind that is that we can really try to get moving quite quickly on that. I was surprised to learn that the level of water fluoridation in England today is only at about 6 million people. I know that a lot of people think that their water supply has fluoridation, but there is obviously a long way to go on that. The 1.6 million in the north-east is a good extension to that, but there is a lot more that we plan to do in this space.
Lord Harris of Haringey (Lab)
My Lords, I declare my interests as chair of the General Dental Council. I welcome the fact that this plan has now arrived—it has been a very long time coming. Of course, the council’s role is to maintain a register of dentists and ensure that all the dentists on that list are of an appropriate standard and fit to practise in this country. I am not going to comment on the level of investment, but I make the point that increasing the number of dentists on the register does not in itself increase the number of people who practise in the NHS. I think that the British Dental Association uses an analogy about a bucket with a hole in it. The point is that, if the situation is one in which dentists, whether they qualified here or abroad, feel that the rewards that they get from being an NHS dentist are insufficient, we will continue to see that drift away from NHS dentistry.
My specific point is about the question of overseas registration. The Statement highlighted the fact that 30% of those on the register are qualified from overseas. I should say that nearly 50% of those who joined the register in 2022 are from overseas, so that gives some idea of the direction of travel. To facilitate that, the GDC has trebled the number of places for people taking their ORE part 1 examinations. On the specific proposal about provisional registration, which the General Dental Council will welcome, I hope it is recognised that, if somebody is provisionally registered, they must be supervised. This will require a structure within both the NHS and private practice to make sure that there are adequate levels of supervision available and an adequate number of dentists to do that. Can the Minister tell us how that will happen?
Lord Markham (Con)
I thank the noble Lord, particularly for his great knowledge and work with the GDC. I absolutely accept the basic point about the leaky bucket, for want of a better phrase; we are losing a lot of dentists to private. At the end of the day it is about the economics, and clearly we need to make sure that doing NHS work pays. In part that is what the patient premium is designed to do, as is increasing the value of UDAs to £28. There is also an acceptance that we need to look at some of the more long-term measures to make sure that it is economic to do that. The salaried staff I mentioned earlier will help with that as well.
The noble Lord is absolutely correct—again, I have some personal experience of all this—about having that mentoring scheme. Even if a dentist has been operating overseas for a number of years, learning a lot of the techniques and methods here is very beneficial. It is absolutely recognised that such mentoring is required. On the detail of how that is being planned, I will set out in my letter to everyone how exactly that will be achieved.
Lord Hacking (Lab)
My Lords, I have been very reassured by the Minister’s Statement and by my noble friend speaking on behalf of my party. It is very good to hear that dentistry is at last being given much greater attention at National Health Service level. I welcome the type of detail that has been brought out in this short debate; for example, bringing more fluoride into our water supplies and the elementary thing of getting a child to clean his or her teeth with proper toothpaste as a morning act before going out to school or elsewhere.
Many years ago my wife, who is a qualified consultant, was in Pakistan with a team of English doctors and surgeons to demonstrate heart surgery. I, in a kind of parliamentary capacity, was asked to make a visit to a certain place, Murree. This involved going through a number of villages in Pakistan. Of all the infirmities among the villagers, and there were a lot, the most conspicuous were infirmities of the teeth. It was a nightmare to look at.
This is some reassurance. We are absolutely right to pay proper attention to dentistry, and I most welcome the Minister’s Statement and the words of my noble friend speaking on behalf of my party.
Lord Markham (Con)
I thank the noble Lord for his comments. I agree that we all too often see such circumstances. As many as half the children in A&E come in for reasons of problems with their teeth. That absolutely illustrates, in a similar way to the noble Lord’s experience in Pakistan, that it really is vital to get on top of these problems. The hope, and the plan, is very much that these are the first steps in making sure that we achieve that.
Baroness Taylor of Stevenage (Lab)
My Lords, I take the point from the noble Lord, Lord Young, about money being found for dentistry in straitened circumstances. However, in the past 14 years, a whole generation of younger children who are now around six to 10 years old have had almost no access to dental treatment, resulting in the poor health and dental health that we heard about from my noble friend Lady Merron and the noble Lord, Lord Allan. What efforts will the Government make to ensure that the backlog of dental treatment that those children need will be assessed properly, with the appropriate treatment given as quickly as possible? Otherwise, we will have further health problems in future as those children go into their teenage years.
Lord Markham (Con)
On the targeting and how we are using those mobile vans, the thinking is that they will be rolled out quite quickly—in about six months or so. We are absolutely looking to target those areas with backlogs, such as where we know that the distance to an NHS dentist is further than normal, where there is low access according to GP patient surveys or where there is a low number of dentists per patients. This is exactly set up to try to make sure that we are going into those areas where there is the biggest backlog. Turning up in those locations and allowing people to queue up and receive a service on that day allows access very quickly to the people who really need it. At the same time, when they are calling up because they might need dental services, we can tell them, “A mobile van will be in your areas in two weeks; we can book you an appointment now”. That is designed to really hit those backlog areas. I suspect—this is just me speculating—that such will be the success of these that this will a model that we will look to roll out more widely in future.
The Earl of Courtown (Con)
My Lords, with apologies to the House, I am afraid that the noble Lord, Lord Young, was not in his place at the start of the Statement and, with the greatest apologies, it is the custom of the House that a noble Lord should be here for the start of the Statement before they ask a question.
Victims and Prisoners Bill
Wednesday 7th February 2024
(9 months, 3 weeks ago)
Lords ChamberRead Full debate Victims and Prisoners Act 2024 View all Victims and Prisoners Act 2024 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 31-IV(a) Amendments for Committee (Supplementary to the Fourth Marshalled List) - (6 Feb 2024)
Lord Garnier
“Compensation for victims of fraud and other economic crimes(1) The Secretary of State must, within one year of the passing of this Act, lay before Parliament a review of victims of fraud, bribery and money laundering offences.(2) The purpose of the review under subsection (1) is to identify how victims of such economic crimes could be better compensated without such victims needing to pursue civil action.(3) The Secretary of State must provide for a public consultation on the review.(4) In this section “victims of economic crime” includes United Kingdom and overseas victims of complex corruption cases where the harm caused by the offending is not easily quantifiable.”Member’s explanatory statement
This new Clause requires a review to explore how domestic and overseas victims of fraud, bribery and money laundering offences could be better compensated without the need for civil proceedings to recover their losses or compensation.
Lord Garnier (Con)
My Lords, this amendment is grouped with an amendment proposed by the noble Baroness, Lady Brinton, and is supported by the noble Baroness, Lady Bennett of Manor Castle. Unfortunately, she cannot be here, so noble Lords will have to deal with me, and I hope I will not detain the Committee very long. I should declare an interest in that I am a barrister in private practice and some of the work that I do involves fraud, bribery and money laundering offences; at least, some of the clients I represent sometimes become involved in that sort of thing. Sometimes, I act for the Serious Fraud Office in prosecuting and dealing with those accused or thought to have been guilty of such things.
The new clause set out in Amendment 112 is designed to require a review to explore how domestic and overseas victims of fraud, bribery and money laundering offences could be better compensated without the need for civil proceedings to recover their losses or compensation. The terms of the new clause are set out on the amendment paper, so I shall not read it out: it is there for those interested to see.
Just before Christmas last year, in December 2023, a company called Entain entered into a deferred prosecution agreement with the Crown Prosecution Service in response to allegations, which it admitted, that part of Entain had failed to prevent bribery in, most often, Turkey, over a seven-year period. The deferred prosecution agreement that Entain, formerly Ladbrokes, agreed to contained terms which included that it should pay a penalty and a disgorgement of profits of £585 million, plus a charitable donation of £20 million. Prior to that, in the decade or so before the Entain case, multinational companies were fined more than £1.5 billion after investigations by the Serious Fraud Office into corruption abroad, but only 1.4% of those fines, about £20 million, was used to compensate victim countries, according to research by the law firm Reynolds Porter Chamberlain and, in particular, due to the hard work of Mr Sam Tate, a partner of that firm, who, with others in the firm, has made a particular study of this pattern. It seems to me that companies that are convicted in this country of offences which have an effect overseas should be required to compensate their victims overseas—we need to change that.
Much of the corruption involved in these cases has occurred in African countries that are already suffering terrible economic hardship from food and energy crises and from inflation. They are in dire need of economic support to repair the damage caused by corruption. Our own Government have been vocal in their support for compensating foreign state victims of corruption, but the action taken to compensate them tells a different story and, if I may say so, leaves us open to charges of hypocrisy.
Most corruption cases brought before the English courts involve foreign jurisdictions. Therefore, this country is stepping in as the world’s policeman and prosecuting crimes that take place in other countries but keeping all the fines for the Treasury here in the United Kingdom. That is important because corruption causes insidious damage to the poor and the not so poor, particularly in emerging markets. The United Nations has said that it impedes international trade and investment, undermines sustainable development, threatens democracy and deprives citizens of vital public resources. The African Union estimated that in 2015, 25% of the continent’s gross domestic product was lost to corruption. Every company convicted of overseas corruption in this jurisdiction should, I suggest, be ordered to compensate the communities they have harmed; that would be both just and effective. Compensation should come through investment in programmes targeted at decreasing corruption and benefiting local communities by, for example, building and resourcing more schools or hospitals.
At first glance, English law encourages compensation. It is required to take precedence over all other financial sanctions—so far, so good—but as with many noble ambitions, problems lurk in the detail. Compensation is ordered in criminal cases only where the loss is straightforward to assess, even though the trial judge is usually of High Court or senior Crown Court level—that is to say, judges who deal with complex issues every day. Let me give the Committee a couple of examples.
In October 2022, Glencore, the international mining and minerals extraction company, pleaded guilty to widespread corruption in the oil markets of several African states. I interpose here to say that in that case, now long over, I represented the applicant state seeking compensation. Glencore pleaded guilty and was ordered to pay £281 million in penalties and further orders, but not a single penny has been ordered to go back to the communities where the corruption happened, because it was held that compensation would be too complicated to quantify and the overseas state applying for compensation had no legal standing in the case. You could say that I was very lucky to be allowed to speak at all during the proceedings, because the statute says that the people who have the legal standing to make an application to deal with compensation are the prosecutor and the defendant company, and I was not representing either of them. None the less, the judge was kind enough and polite enough to let me advance my submissions to him. He rejected them because the statute prevented his acceding to my application.
Baroness Brinton (LD)
My Lords, it is a pleasure to follow the noble and learned Lord, Lord Garnier. I have the second amendment in this group, Amendment 116. The amendments are connected by the word “compensation”, but they are actually about very different issues. Mine is a probing amendment to discuss how the current court-ordered compensation scheme could be improved. I thank the London Victims’ Commissioner and Victim Support for their very helpful briefings.
We know that crime can have a significant emotional and financial impact on victims, and research shows that many victims value compensation as a tangible form of redress. Court-ordered compensation is financial compensation that a judge or a magistrate orders must be paid to a victim by a convicted offender, and the money owed is retrieved by the Courts Service on behalf of the victim. The worries are that the system of payment and enforcement of court-ordered compensation is causing unnecessary distress and frustration, because too often the compensation is paid in very small instalments, over a long period, or, even worse, not at all.
The Ministry of Justice’s paper, Punishment and Reform: Effective Community Sentences, which was published in 2012, sets out that:
“Compensation orders are an essential mechanism for offenders to put right at least some of the harm they have caused. They require offenders to make financial reparation directly to their victims, to compensate for the loss, damage or injury they have caused”.
The problem is the slow payments and poor enforcement. The system of payment and enforcement is adding unnecessary distress and frustration to victims’ experience of the criminal justice system. The piecemeal nature of payments also acts as a constant reminder to the victim of the crime. This point was recognised by the Ministry of Justice, in a 2014 publication, which stated that
“the current scheme of receiving compensation can be distressing for victims because it prolongs their relationship with the offender and can prevent them from moving on from the experience”.
HMCTS has a number of powers at its disposal to collect payments from offenders, including taking money directly from their earnings or benefits, issuing warrants to seize and sell goods belonging to an offender, or, ultimately, bringing an offender back before the courts. Despite this range of powers, collection rates remained low for a number of years. In reality, many compensation orders are never paid, with victims asked by the court to write off the debt owed by the offender.
To put that in context, in quarter 1 2023, the total value of financial impositions outstanding in courts in England and Wales was £1.47 billion, up 3% on the previous quarter and 4% on the previous year. The amount of outstanding financial impositions has more than doubled since quarter 1 2015. However, we recognise that a change in policy regarding the collection of financial impositions is partially behind the cumulative increase, as unpaid accounts are no longer routinely closed, and therefore more outstanding impositions are carried over. The latest available data shows that, 18 months after being imposed, only 53% of victim compensation was paid to victims. Slightly more recent data shows that, after 12 months, only 40% has been paid, with only a quarter of compensation paid to victims within three months.
I move on to an example of good practice in the Netherlands. In 2011, the Government of the Netherlands introduced the advanced compensation scheme as part of the Act for the Improvement of Victims in Criminal Procedure. Under the scheme, the state pays the victim the full amount—up to a maximum of €5,000—of compensation awarded by the court if the offender fails to pay within eight months. The state subsequently recovers the amount due from the offender. Originally, the scheme covered only victims of violent and sexual offences, but in 2016 it was extended to cover the victims of any crime.
Victim Support’s research has shown that many victims are very distressed. One victim of crime said:
“I still have not received any compensation after a year and a half”.
Another said that
“you have to keep going and be persistent with any claims for compensation that you feel you deserve. Why should you be a victim twice?”
My amendment sets out a possible mechanism to replicate the Netherlands scheme, because we need to find some balance. The whole point of this entire Bill is to smooth the journey for victims. This final part—compensation awarded by the court, recognising that they have been a victim and providing them with some redress—is not working for our victims. I very much look forward to hearing from the Minister. Any suggestions he may have, even if he does not think this is right, would be gratefully welcomed.
Lord Sandhurst (Con)
My Lords, I will speak briefly to Amendment 112. My noble and learned friend’s proposal is an excellent one and I urge the Government to address it promptly and seriously.
Companies and persons convicted of matters affecting those overseas, particularly overseas companies and the countries themselves, should be liable to compensation. It is important that it does not just feed more corruption, but the concept is plainly right. It will put this country in a good place in the world and show leadership on a really important topic, because there is far too much corruption around the world and too many countries turn a blind eye to it.
I urge the Government to take this amendment very seriously. I hope they will have come up with a concrete proposal to endorse it by Report. I commend it to the Committee.
Baroness Newlove (Con)
My Lords, I support the probing amendment from the noble Baroness, Lady Brinton, which is an opportunity for the Government to look at court order compensation.
The compensation for victims when they leave a court is not the amount they receive and it takes many years. I will not repeat what the noble Baroness has said—it is on my sheet as well—but, for the victims I meet, compensation causes further problems and trauma. It gets worse if victims apply for criminal injuries compensation, because the court order compensation is deducted from any award that is made. This is fine where the court order compensation is paid, but, if not, the victim is left worse off as a result. I agree that we should look at how the Netherlands pays up front.
I know that there is no money tree but, to make it smooth for victims, instead of being for the offender to hide once again and use as a tool in financial cases for coercive control, I hope the Government will review this court order compensation scheme. I know from speaking to judges that they know that, when they award this, the offender will pay it in dribs and drabs. Now is the time for a good review of this.
Lord Marks of Henley-on-Thames (LD)
My Lords, I will briefly address both amendments.
On the amendment from the noble and learned Lord, Lord Garnier, supported by the noble Lord, Lord Sandhurst, I completely agree with the need for a review and the points made by the noble and learned Lord. His speech dealt largely with corruption, but the amendment deals with bribery and money laundering, which gives rise to significant hardship in countries where it can bite. The weakness of our system is that there is no real provision for proper compensation or properly assessing compensation—even in domestic cases, let alone international ones—where there is a conviction but the degree of loss has not been properly investigated. Noble Lords will no doubt have a great deal of sympathy with the noble and learned Lord, who was allowed to address the judge out of consideration and kindness but had his submissions rejected because there was no legal standing.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I thank the noble and learned Lord, Lord Garnier, and the noble Baroness, Lady Brinton, for educating me on these two matters. I was not familiar with the issue in our civil courts. The noble Lord, Lord Sandhurst, made a succinct moral point; I thank him and the noble and learned Lord for educating me. If UK plc wants to maintain its position as a leading centre for resolving international disputes between countries and companies, there is a strong moral case for at least reviewing the way in which compensation may be awarded. As the noble and learned Lord said, his amendment is probing and we support it in the sense in which it was moved.
In relation to the amendment tabled by the noble Baroness, Lady Brinton, supported by the noble Baroness Newlove, again I was not aware of the scheme in the Netherlands. However, as a magistrate, I am required to consider compensation for every case I hear, and compensation will take priority over other impositions of the court, such as fines, victim surcharge or costs, or anything like that. When I do so, I am of course extremely aware that I am often dealing with offenders who are on benefits, and even if they are not on benefits, they are often not particularly well paid. It is a fact, which I am not surprised about, that the compensation comes over a long period and often not at all. I take the point that the noble Baroness made about this being a constant reminder to the victim of the offence, and I am aware that sometimes victims are asked to write off the outstanding money which is just not arriving.
The way in which the Netherlands is proceeding is interesting; I do not know whether there has been an estimate about how much money that would cost. It is an interesting idea and I do not know how fully the Minister, when he comes to respond, will be able to talk about the money side of things. The point made by the noble Baroness, Lady Brinton, about reminding victims of the original offence—and we are here talking about the victims Bill and trying to ameliorate their concerns—was well made and deserves a full answer.
Lord Roborough (Con)
My Lords, I thank my noble and learned friend Lord Garnier for raising this issue in Amendment 112. Fraud and other economic crimes have a profound impact on their victims, which is why this Government have been very clear about their commitment to tackle such crimes and to support victims.
The measures in the Bill are designed to improve the experiences of all victims of crime, including economic crimes. One way it seeks to do so is by improving the oversight of service providers’ delivery of all victims’ code entitlements. For victims of fraud in particular, under the victims’ code, all victims who have suffered harm, including economic harm, as a direct result of a crime are entitled to information about compensation and, where eligible, to be told how to claim it. The Government take the compensation of victims of economic crime very seriously, as it is crucial for limiting the harms of these soulless crimes. We are taking active steps to improve reimbursement and compensation routes for victims to ensure that, whenever possible, funds are taken from criminals and returned to victims.
Victims’ interests continue to be a priority issue for the UK. New powers introduced by Part 4 of the Economic Crime and Corporate Transparency Act allow applications for stolen crypto assets or funds to be released to victims at any stage of civil forfeiture proceedings. Work is ongoing to implement these reforms in order to ameliorate the negative impacts of criminal conduct, including economic crime.
In cases where there are overseas victims, as the noble and learned Lord mentioned, the Serious Fraud Office, the Crown Prosecution Service and National Crime Agency compensation principles have committed law enforcement bodies to ensuring that compensation for overseas victims of economic crime is considered in every relevant case, and that the available legal mechanisms are used whenever appropriate to secure it. His Majesty’s Government are also fully committed to identifying potential victims and utilising suitable means to return money and/or compensate victims in line with international provisions, per the Government’s transparent framework for asset returns.
As a signatory to the UN’s Convention against Corruption, the UK places great importance on the recovery and return of the proceeds of corruption to those affected by bribery, embezzlement of public funds, money laundering, trading in influence and other abuses of official functions. The UK is obligated to return funds where the conditions for mandatory return are met. However, it also exercises its discretion to return funds in appropriate cases when it is not otherwise mandated to do so.
On the point raised about UK courts being able to award compensation, this requires a co-ordinated, multilateral approach on how to find resolutions for victims. The fraud strategy sets out ambitions to drive global action on tackling fraud. We are developing stronger partnerships with our allies to raise the profile of this transnational threat, improve our understanding of how it manifests globally, share best practice and lead a co-ordinated, multinational response. This engagement will build towards a global fraud summit in early 2024, where key partners will come together to spearhead a co-ordinated diplomatic and law enforcement approach to tackling global fraud.
Measures in the Criminal Justice Bill, which is progressing through the other place, also considers victims’ interests. Further changes are being made to the confiscation regime, under the Proceeds of Crime Act, to enable swifter resolution of proceedings and improve enforcement planning, allowing victims to be compensated earlier and more fully. I am aware that this does not fully address many of the excellent ideas raised by the noble and learned Lord, which were supported by my noble friend, Lord Sandhurst, and I would suggest a meeting to investigate them further, if that was acceptable.
As I have set out, extensive work is already being undertaken to strengthen the rights of victims through legislative vehicles which are still undergoing implementation. I therefore do not believe it is appropriate for a legislatively required review to be introduced at this time.
On Amendment 116, tabled by the noble Baroness, Lady Brinton, the Government are clear that it is extremely important that victims are aware of their rights, particularly when interacting with criminal proceedings. The current victims’ code sets out in plain language entitlements for victims of crime, including being provided with information about compensation. I hope it is helpful if I provide some information about criminal compensation orders. Criminal courts in England and Wales are, by law, required to consider compensation in all cases involving personal injury, loss or damage resulting from the offence. Where the court chooses not to impose such an order, it must provide reasons. In determining whether to make a compensation order, and the amount to be paid under such an order, the court must consider the financial circumstances of the offender—as alluded to by the noble Lord, Lord Ponsonby—to strike a balance between seeking reparation and not imposing debts that are unrealistic or unenforceable. In line with the sentencing guidelines issued by the independent Sentencing Council, if the victim does not want compensation, this should be made known to the court and respected. However, it is right that the decision whether to award compensation and the amount of any award is a matter for the court. In response to the noble Lord, Lord Marks, and his point about the victim’s right to have a court hear their view on compensation, I think that is an interesting idea to investigate, and it would be good to have a meeting.
In addition to compensation orders, the statutory Criminal Injuries Compensation Scheme 2012 exists to compensate victims who suffer a serious physical or mental injury as the direct result of a violent crime, including physical and sexual assault and domestic violence. Payments under the government-funded scheme can never fully compensate for the injuries suffered but are a recognition of public sympathy.
On expenses and property, victims already have an entitlement under the current victims’ code right 10 to be paid expenses. Victims can claim expenses from the Crown Prosecution Service if they have to attend court to give evidence, including, for example, for travel, childcare and loss of earnings. Right 10 in the current code also sets out that the police should return any property taken as evidence as soon as it is no longer required. The Government do not currently have plans for victims to be paid compensation from central funds. That is because compensation orders are paid directly from the offender, requiring them to make reparation to the victim for any loss, personal injury or damage caused by the offence. The decision whether to make a compensation order in a particular case is a matter for the court, and it has a range of powers for the recovery and enforcement of financial impositions. With the permission of the noble Baroness, I would like to write to give further detail on what actions the Government are taking to improve the enforcement of such compensation orders.
Lord Garnier (Con)
My Lords, of course I will beg leave in a moment or two to withdraw my amendment. I am very grateful to my noble friend the Minister for his ability, at very short notice, to deal very elegantly with what I would describe as a long hop. The short point is one I made earlier on—that only 1.4% of the value of fines raised in this country has found its way back, under the mechanisms that he refers to, to victims’ estates. That is not enough. That said, I thank him for his offer of a meeting, which I would certainly like to take up, if I may. I thank my noble friend Lord Sandhurst for his support. I also thank the noble Lord, Lord Marks, for his very thorough response to my suggestions in Amendment 112, and the noble Lord, Lord Ponsonby, for his kind remarks.
The reason why I metaphorically doffed my hat at the noble and learned Lord, Lord Thomas, a moment ago, when the noble Lord, Lord Marks, accused me of being the pioneer of deferred prosecution agreements, is because, yes, as a matter of policy, as a Government Minister at the time, I suppose I was responsible for it. I take some pride in it. However, I could not have achieved it without the co-operation of the senior judiciary. From memory, the noble and learned Lord was president of the Queen’s Bench at the time when the late, much-lamented Lord Judge was the Lord Chief Justice. The two of them, with other members of the senior judiciary, dealt with it impeccably as a matter of legal process. They were not in the least bit interested in the politics—neither was I, actually. We were all interested in trying to make the DPA system work. Thanks to cross-party support in the other place and throughout government, and support from the senior judiciary, the deferred prosecution agreement system came in through statute. I am very grateful to all those who helped with that.
I am in danger of going to the church by way of the moon. This is quite an important subject. It needs thought and proper development. Some ideas need to be tested to destruction, but some need to be given a chance—perhaps through a meeting with my noble friend on the Front Bench and others at the Ministry of Justice—to see which parts of this idea are worth germinating. In the light of all that, I beg leave to withdraw my amendment.
Lord Sandhurst
“Duty to inform victims and families of the unduly lenient sentencing schemeAfter section 36 of the Criminal Justice Act 1988, insert—“36A Duty to inform victims and families of the unduly lenient sentencing scheme(1) The Secretary of State must nominate a government department to inform victims and their families of their rights set out in section 36 (reviews of sentencing).(2) The information provided under subsection (1) must include the type of sentence and the time limit for application, and advise that applications must be made to the Attorney General.””Member's explanatory statement
This amendment will ensure that victims are aware of the Unduly Lenient Sentencing scheme which presently has a strict 28-day timeframe in which to apply, there being no power to extend the time.
Lord Sandhurst
My Lords, I will speak to Amendments 113 and 114. Amendment 113 seeks to impose a duty to inform victims and families of the right to refer an unduly lenient sentence. Amendment 114 seeks to extend the time, in exceptional circumstances, for such a reference. I begin by declaring my interest as a member of the Justice and Home Affairs Committee.
Currently, the position is that victims have a strict 28-day time limit from the day of passing sentence to make an application under the scheme. The right is simply to have the case considered by the law officers within the Attorney-General’s Office. It is that office which decides whether to take it to the Court of Appeal as an unduly lenient sentence.
The victim, or family, if they are to make use of this, must know in good time of: first, the right to refer; secondly, the time limit for doing so; thirdly, the date when the sentence will be passed, which they have to know in advance; and, fourthly, the sentence itself, if the victim was not present, for whatever reason. At this point, I refer to the noble Baroness, Lady Chakrabarti, who signed this amendment, and who had hoped to be here but has had to leave. As she said very succinctly to me, there is no point in having an unduly lenient sentence regime if victims do not know about it. That is where we are.
Importantly in this context, the 28-day limit is not open to extension, even in special or exceptional circumstances. That is the point of my second amendment. I am informed by Claire Waxman, the Victims’ Commissioner for London, that victims do not always attend sentencing, and often do not receive communication of the fact that they can refer a matter as an unduly lenient sentence or that they have to do so promptly. Of course, offenders can appeal their sentence outside the 28-day time limit, which is on paper there, if they show good cause. There is a statutory exception for them.
However, the revised victims’ code now includes an obligation for witness care units to highlight the scheme to victims, at the same time as informing them of the sentence in their case. That might be a good thing, but it does not go far enough, because witness care units engage only with victims who are witnesses in the court case. This will not apply to a proportion of victims, including bereaved family members. There is no organisation which currently has the responsibility for informing those victims.
In the debate on earlier amendments about training and so on, when I addressed this Committee the other day, I showed that many victims are unaware of the code, unaware of its contents and not kept abreast of their rights. Someone has got to grip this point as well, and make victims aware of their right to refer to the Attorney-General their dissatisfaction with a sentence. They especially have to be informed of the 28-day time limit. They have to know when sentence will be passed and, if not present, what was said.
Let me give a rather stark example of an unfairness that has happened. Alex Belfield received a five and a half-year prison sentence for a campaign of stalking various employees of the BBC. Claire Waxman personally referred that sentence to the Attorney-General’s Office. She considered it to be unduly lenient. A response was received several weeks later that explained that the case had been referred back to the CPS, which had requested the matter to be relisted in the Crown Court under the slip rule. The judge had looked at it again; he agreed that he had erred in his approach to sentencing, but he declined to change it; so that sentence stood. The CPS explained that the time limit for referral to the Court of Appeal had, however, now passed. So the Attorney-General’s Office could not refer this case under the ULS scheme, despite the initial reference having been made in time. It had been made in time to the CPS, but it had not referred it on because the CPS had taken the slip rule route. A possibly—and I do not say it was—lenient sentence, therefore, which might have been referred, stood.
The witness care unit, as I said, does not address non-witnesses. Others also might have reasons for being late. The information for victims given on the CPS website does make reference to the unduly lenient sentence scheme, but it is in there among a lot of other information. It still requires a victim to be proactive, to know that there might be something worth looking for, to think about it, and then to know where to look. That is not really a very satisfactory state of affairs. Something must be done. Making reference to a scheme in materials is very different to actually informing a victim. The witness care unit does not reach all victims, as I have explained. More must be done.
As for the power to extend time, it should be only in exceptional circumstances. I do not ask for anything different, so it is not going to create an open-ended time limit for appeal. The Attorney-General’s Office is the office that decides whether to take it to the Court of Appeal, so it acts as a filter. It will filter out at once all silly and unreasonable applications. If the amendment is granted, the discretion to consider reasons for lateness—whether they are exceptional and so on—remains with the Attorney-General. The Attorney-General is not going to start wading through large numbers of late references. The statutory guidance produced alongside such legislation could provide guidance on what circumstances might be treated as exceptional. Properly managed, therefore, there will not be unfair uncertainty for convicted prisoners who think they got a sentence of a particular length and suddenly are caught by surprise five years later.
Currently, offenders have 28 days to appeal their own sentence, but they have a right to apply to extend that time limit, which in the right circumstances may be granted, in order to appeal. This amendment, therefore, seeks to give some level of parity between the rights of the victim and the rights of the convicted defendant. I commend these amendments; information of rights is essential and power to extend time is only fair. There should be a measure of parity between victims and convicted defendants. I beg to move.
Baroness Brinton (LD)
My Lords, I signed this amendment, and it is a rerun for me, as I had similar amendments in the Police, Crime, Sentencing and Courts Bill. Most of the arguments that the noble Lord, Lord Sandhurst, has put forward responded to what the Minister said from the Dispatch Box during the passage of that Bill. These two amendments have been tightened to focus on the real areas of concern. One is not just to inform victims, but also their families; the second is to ensure that the time limit in exceptional circumstances could be extended.
Prior to laying previous amendments, I met Tracey Hanson, whose son Josh Hanson was murdered in 2015. After her son’s killer was sentenced in 2019, no agency made her aware that she was able to appeal the sentence under the ULS scheme. It was only when she approached Claire Waxman, the London Victims’ Commissioner, on the 28th day following the sentencing, that she was made aware of the scheme. Nobody in the system connected with the case contacted her. She was family, obviously not the victim. She submitted her application to the Attorney-General’s Office on the 28th day—that same day—at 8.40 pm. However, this was rejected because it was outside of court hours. At the time, there was no mention of office hours or court hours within the victims’ code or on the Government’s website. Tracey has campaigned for reforms to the unduly lenient sentence scheme, asking for the 28-day time limit to be given flexibility in certain circumstances, such as when the victim or their family is not informed of the scheme. She asked that the scheme be referenced in the judge’s sentencing remarks.
It is worth noting, though, that this still requires statutory responsibility for an agency to communicate those remarks to the victim. Can the Minister respond again—it was not him before; it was his predecessor—to see how we can smooth the journey for victims and families as they go through the judicial process? This particular case is really egregious in having an inflexible time limit for victims and families and yet a flexible one for convicted offenders.
Lord Garnier (Con)
My Lords, I do not want to take much time. I understand, and indeed sympathise with, the thrust of the remarks of my noble friend and the intention behind his amendment. I am sure it is a good idea for people to know about the unduly lenient sentence scheme, particularly if they are victims. In my experience as a law officer who had to deal with these when I was in office, there did not seem to be any lack of knowledge among the people affected by what they thought were unduly lenient sentences, and we had plenty of applications to us in the law officers’ department to consider them. I say in brackets that, as often as not, not every crime or offence qualifies to come within the scheme. A degree of education needs to be made available in order that the public should realise that not every offence that they read about in the newspapers comes within the unduly lenient sentence scheme.
Baroness Brinton (LD)
Part of the object of the amendments is to ensure that the scheme is published and explained. That is one of the reasons why there is a reference to making sure that, in the judge’s sentencing, he or she refers to the scheme, and then victims and families can be provided with information as they leave the court, or it can be sent to them if they are not there.
Lord Garnier (Con)
I cannot quite see the wording that the noble Baroness refers to, but I am not sure I think it a good idea for a judge, having promulgated a sentence, then to say, “If anyone doesn’t think I’ve given them enough, perhaps you’d like to complain”. The judge must make his or her own mind up, based on the information in front of them, and do justice in that particular case. If the prosecutor, a witness, the victim or a member of the public wishes to say that that is unduly lenient, they can write to the law officers and see what their consideration of the matter is.
I agree with publicity and with educating everybody about what the system is about. However, I do not agree with encouraging everybody to run to their Member of Parliament, the newspapers or the law officers because they wish the sentence had been different. That way leads to disappointment, quite apart from a bureaucratic mess in the law officers’ department—which is a very small department.
Baroness Hamwee (LD)
My Lords, I raise an issue with regard to the time limit. It is not from the wording of the amendment, which I support, but the wording in the victims’ code. At the moment it says that, first:
“The Attorney General must consider the matter as soon as possible”.
What does that mean? Secondly, it says that they must do so
“no later than the 28th calendar day after the sentence was imposed … in business hours and”—
I emphasise this—
“with sufficient time for consideration”.
How can the victim know how long the Attorney-General needs before the 28 days runs out? It is a hard cut-off, but with something rather woolly leading up to it. The victims’ code could do with a little revision to make it quite clear, in addition to the points that my noble friend has made and the very tough example that she gave, just how this would operate. I would not know, to meet that condition, how long before the end of the 28 days I should get a note through the Attorney-General’s door.
Lord Thomas of Cwmgiedd (CB)
My Lords, I support the principle put forward by the noble Lord, Lord Sandhurst, that there should be proper information provided to victims. This should be proper in the widest sense, so that they fully understand; we do not want disappointment and secondary victimisation. The whole question of time limits and extending them is not a suitable matter for debate at this hour of the night. What is important is the principle.
Baroness Newlove (Con)
My Lords, I have noticed the time as well, and the points that I was going to raise have already been made. I will talk about how it feels, as a victim in a murder trial, to hear, after sentencing, all these professionals say that the offenders, who have been found guilty and sentenced, will now appeal their convictions and sentences. But nothing goes in, and the clock is ticking.
When we are looking at extending times and providing information, we are talking about an area that we all know about to a degree, but the victim does not understand unduly lenient sentencing. It is actually the media that leads the way. I think we need to look at this again. We now have flexible working hours, so who is going to pick up the inbox if nobody is in until the next day? We need to be more creative in how we do this. To tell the victim, such as Tracey Hanson, that they are out of time is not a fair and level playing field. If the offender has a legal advocate to do all the paperwork, and does not have to lift a finger, maybe we need a legal advocate to help the victim understand. We can say that people should go on the website and read this, that and the other, but they are traumatised and still trying to get their heads around what they have just listened to in court.
Baroness Thornton (Lab)
My Lords, I apologise for the previous explosion from my phone—I was just making sure that you are all paying attention.
This is one of those groups—we have already had a couple of such occasions during this Committee—where you look at it and think, goodness me, why is that not happening already? Why is that not being done, when it is so obvious that it should happen? Like in many of the other cases, it comes down to the question of whose responsibility it is to make sure that the victim is properly informed, and their family properly supported, to know what is going on. It would be great if the Minister could tell us what the answer to that question is, as it is kind of at the heart of everything we have been discussing so far. I look forward to hearing the answer.
Lord Roborough (Con)
My Lords, I thank my noble friend Lord Sandhurst for Amendment 113, in relation to the unduly lenient sentence scheme. It seeks to ensure victims and their families are given the necessary information about the scheme and, where this does not happen, provide for an extension of the relevant deadline. I understand the distress that victims may feel if they believe that the sentence given to an offender is not sufficient. The unduly lenient sentence scheme provides a way to ensure that victims, their families and members of the public can request for sentences for certain serious crimes to be challenged, by asking the Attorney-General to consider making an application to the Court of Appeal for a sentence to be reviewed.
Amendment 114 seeks to allow extension of the time limits for applications under the scheme, which must currently be made within 28 days of sentencing. However, the scheme has a fixed time limit to reflect the importance of finality in sentencing for both the victim and the offender. Although we will keep this this limit under consideration, there are no current plans to remove the certainty of this absolute time limit. The 28-day time limit reflects similar constraints on defendants appealing against conviction or sentence; it is important for both victims and offenders that we avoid ongoing uncertainty about the sentence to be served.
Amendment 113 puts forward a duty to inform victims and families of the scheme. It might reassure my noble friend to know that the current victims’ code is already clear that victims should be informed about the scheme by the police’s witness care units at the same time as they are told about the sentence; this is expected to be done within six days of sentencing. It may also help if I explain that “witness care unit” is the generic name for a police-led function that provides information and support to victims, as well as witnesses, in cases progressing through the criminal justice system. Under the victims’ code, the witness care unit is responsible for providing services to victims who are not witnesses in the trial, as well as those who are.
For example, under right 9 in the code, all victims are entitled to be told at the end of the case the outcome, including a brief summary of reasons for the decision where available. This also includes telling victims about the ULS scheme when they are told the sentence in the case, which is in paragraph 9.6 of the code. It is heartening to hear from the noble and learned Lord, Lord Garnier, that the scheme is well used, despite examples of where it has not worked being given by others in this short debate.
In answer to the noble Lady Baronesses, Lady Brinton and Lady Thornton, as part of the CPS’s bereaved family scheme, the CPS and the trial advocate will meet the family at the court following the sentence to explain it and answer any questions. The scheme will be highlighted in appropriate cases as part of this.
My noble friend Lord Sandhurst raised an unfortunate case in which consideration under the slip rule means that 28 days had elapsed. In general, the law officers and the Attorney-General’s Office endeavour to review any sentence referred to them, the only exception being those where there is insufficient time to do so; for example, if it is received late in the day, the statutory time limit runs out. In those cases where the slip rule applies, CPS guidance instructs prosecutors to apply for the sentence to be corrected under the slip rule quickly and within the 28-day period for the ULS scheme. This means that, if the application is unsuccessful, the Attorney-General is not time-barred from being able to make an application under the ULS scheme within the 28-day period.
Where there seems to be broad consensus in this debate is on the need to do better on informing victims and their families about their rights under the scheme. This has been brought up by the noble Baronesses, Lady Brinton, Lady Hamwee and Lady Newlove. I am open to discussing further with noble Lords how best to ensure that victims are better informed of the scheme and its deadline, but I respectfully ask that my noble friend withdraw his amendment.
Lord Thomas of Cwmgiedd (CB)
My Lords, would it be possible for the Minister to find out whether the police keep records of the notification of the witness unit and, if the records are kept, what the statistics reveal? This is really an argument about whether we have the right mechanism, rather than the principle. Obviously, the Minister cannot do that this evening, but if the Ministry of Justice or the Home Office could find out, that would alleviate the problem.
Lord Roborough (Con)
The noble and learned Lord makes a very sensible request, and I will do my best to write to him.
Lord Sandhurst (Con)
My Lords, I am grateful to various noble Lords for their support, the points that they have made, and, if I may say so, the very sensible suggestion from the noble and learned Lord, Lord Thomas, about collecting data.
If I may comment on my noble and learned friend Lord Garnier’s observations, they show that good information is necessary. It is absolutely essential. He says that these are simple and reasonable obligations; in which case, they must be explained to everybody. The guidance should set it out, and it should say simple things such as: “The Attorney-General has only 28 days in which to lodge a reference. If you are minded to complain about the sentence, you must do so straight away so that the Attorney-General has time to consider it properly; otherwise, I am afraid that there is no prospect of a reference being made”—something to that effect.
As for the extension of time, I hear what is said. It will be only in exceptional cases, and it will be the Attorney-General who decides. I just do not see what the problem is. If it is there and remains because the Government do not change it, it is really important that proper information is given.
I am grateful for the answers given by my noble friend Lord Roborough, standing in on short notice and dealing with these rather tricky little points. In the circumstances, having heard what has been said, I will withdraw my amendment. But I really do hope that something can be done, administratively at the very least; that we can receive proper assurances that victims and particularly those who are not witnesses, such as the bereaved and so on, really are told properly; and that a log is kept showing that they have been told—when and where and in what terms. I beg leave to withdraw.
Lord Wills
“(a) occurs or occurred in England and Wales,”
Lord Wills (Lab)
My Lords, Amendments 119A to 119C in my name have been drafted to allow the independent public advocate to act for the victims of incidents, or series of events, that might have occurred before the passage of the Bill. As currently drafted, the Bill does not permit this.
Underpinning my original conception of the independent public advocate in my two Private Members’ Bills that were the genesis of this part of the Bill was the belief in the need for greater support and agency for those who had been failed by the state—which is meant to serve them—in what the Bill describes as “major incidents”. This is particularly the case when the full extent of such an incident may be revealed only over a period of time. In these circumstances, it is perverse to exclude from such support, which is outlined in the Bill the sub-postmasters whose lives were wrecked by the Horizon scandal, for example, or those whose lives were devastated by contaminated blood transfusions in the 1970s and 1980s, or by nuclear tests in the 1950s and 1960s. These are all catastrophic events that have, in some cases, become apparent only over quite a long period of time.
The victims need the support of the independent public advocate as they continue to search for justice and to right the wrongs that were done to them. These amendments will rectify this problem with the Bill’s current drafting. I beg to move.
Lord Thomas of Cwmgiedd (CB)
I have a very short amendment—wholly unrelated to what has just been put forward—and I thank those in the Whips’ Office for suggesting that it remain in this group, and not, as I had proposed, move to a later group, which would be reached much later this evening. It does not really matter which group it is in, because it does not really affect anything else. It is a simple, short point in relation to the co-operation between Governments within the union and, therefore, has to do with devolution.
Clause 33 sets out the functions of the advocate who is to be appointed in respect of a major incident. None of the functions in this clause is a reserved matter, so under the Government of Wales Act, the Senedd has the powers to appoint. Therefore, in any particular incident, the Senedd could make provision so that it could appoint its own advocates. I do not believe a different view is taken by the Government in London.
It may also be the case that Welsh Ministers can appoint a non-statutory inquiry following a major incident in Wales, but that is not the kind of point to go into at this hour. The only power that the Senedd could not make provision for is for an advocate appointed under the Act to automatically secure interested person status in a statutory inquiry—those powers are reserved as they are part of the justice powers. Of course, a public advocate appointed by the Welsh Ministers would be free to apply for interested person status, and would probably get it—so I do not think it makes any practical difference. As I understand it, this point has caused the Senedd’s consent to the legislative consent memorandum to be qualified and reserved until this matter is resolved.
There are four short points to make. First, it seems sensible that the Welsh Government are involved as part of the scheme if there is a major incident in Wales. That would avoid any possibility of duplication. Secondly, it is important that the Welsh Government have a say in the person appointed. The advocate must have knowledge of Wales as well as the necessary ability to do everything in Welsh as well as English, since in Wales, English and Welsh have equal status.
Thirdly, significantly, it would be a further step in underpinning by statute co-operation between the Governments as part of the normal exercise of shared functions within a union. Fourthly, the Minister provided the greatest possible help in achieving something similar in relation to mission statements in the Levelling-up and Regeneration Act, as provided for now in Section 2 of that Act. This seems to be yet another step that can be taken to put in place a strong statutory framework for co-operation to ensure that there is no duplication and there is good working co-operation.
Lord Marks of Henley-on-Thames (LD)
My Lords, I support Amendments 119A to 119C in the name of the noble Lord, Lord Wills.
I suggest that the usual basis for avoiding retrospective legislation does not apply in this case. Generally speaking, we take the view that it is wrong for new legislation to have retrospective effect. That is because, if an individual behaves in accordance with the law as it is at a given time, it is regarded as wrong for the law subsequently to be changed—I believe this is a correct analysis—in such a way as to change the legal framework in which that person legitimately operated at the time when they acted as they did. However, that principle cannot be relevant in the treatment of victims of major incidents and the provision of advocacy services to such victims. It is not as if there is anything in the Bill that could affect the behaviour of victims or indeed the behaviour of others in respect of major incidents, regardless of whether or not those others may have been culpable in some way for the occurrence of the incident.
There is a safeguard in the Bill against stale incidents becoming the subject of the amendments of the noble Lord, Lord Wills, simply because they are past and could be a long way past, but the meaning of a “major incident” includes the definition in Clause 28(2)(c), which says that a
“‘major incident’ means an incident that … is declared in writing by the Secretary of State to be a major incident for the purposes of this Part”.
For that reason, the Secretary of State could take the view that, if an incident were so stale that it ought not to be the subject of a major incident determination, he or she simply would not make one.
The other point I wish to make is that the noble Lord’s Amendment 119C shows the importance of the possibility of making the legislation retrospective. It talks about a single event or a series of linked events over time. In the case of a series of linked events, it may be the last event that gives rise to the need to call it a major incident but all previous events need to be taken into account as well. Therefore, the amendment shows how important the Wills amendments could be—if I can put it in that way.
I will speak briefly to Amendment 120 in the name of the noble Lord, Lord Ponsonby, which he has not addressed because no doubt he is going to wind up. I will not be winding up on behalf of these Benches as a result. His amendment concerns the possibility of declaring a major incident when only a small number of individuals are killed, injured or suffer major harm. To us, it is important that that amendment is permitted.
I take as an example—it is one that I simply thought of—the terrorist attack on Fishmongers’ Hall by Usman Khan in November 2019, when two people were killed and three more injured. In the words of the BBC a little while later, that incident
“touched the lives of so many”.
One knows that the incident must have touched the lives in a very serious way of those who intervened, those who witnessed the offences on London Bridge, and those who attended the Fishmongers’ Hall rehabilitation conference which led to such disastrous consequences. All were, in a sense, victims of the attack. All may have suffered, if not serious harm, at least some psychological harm. All may have needed some support. That need could be helped by the provision of advocacy services, advice or representation of some sort. The amendments in the name of the noble Lords, Lord Wills and Lord Ponsonby, taken together, would secure that that would be possible, even in the case of past events.
Baroness Sanderson of Welton (Con)
My Lords, on the amendments in the name of the noble Lord, Lord Wills, in some of the issues he raised—infected blood or sodium valproate—people raised the alarm and were not listened to over decades; it can take a long time for the enormity and scale of a tragedy to come to light. That is a defining theme for many of the issues that could potentially be looked at by the IPA. I fully support those amendments.
On Amendment 120, a concern about the way the IPA has been set up is the point about major incidents. It will kick in when there is a major incident, such as Hillsborough or Grenfell. In such an instance, there is a very good chance there will be a public inquiry; I think the public would demand it. There has always been a concern about incidents that perhaps do not meet that bar: there will not be a public inquiry but something appalling has happened and, as in the nature of this amendment, it reveals a systemic failure and it may be repeated. It would need the support of the IPA. Looking at the make-up of this role, I think we should be very careful not to overlook those incidents in our desire to talk only about major incidents.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I thank my noble friend for moving his Amendment 119A and speaking to his other two amendments, and for the various examples he gave of the reason for the independent public advocate. Of course, there will be more substantial groups on this later, which we will not get to tonight. The noble Lord, Lord Marks, explained very clearly why the issue of retrospectivity should not apply in the types of cases we are talking about.
I thank the noble Lord for doing that. However, I do not thank him for speaking to Amendment 120 because he chose my example. I have not been able to think of another one while I have been sitting here. As the noble Baroness, Lady Sanderson, reiterated, there are occasionally incidents where there is a huge amount of public interest and concern. The noble Lord, Lord Marks, made the point that many lives are touched by incidents such as Fishmongers Hall even though fewer people were killed. It is about giving discretion so that the Secretary of State “may” declare that an independent public advocate would be suitable for this case.
We will have much wider debates about the roles of the IPA. I pay tribute to my noble friend for the many years of work he has done on this. I look forward to hearing the Minister’s response.
Earl Howe (Con)
My Lords, I am grateful to noble Lords for bringing forward the amendments in this group. All but one relate to the important issue of the definition of a major incident and its scope. I will address them in turn.
First, I will respond to Amendments 119A, 119B and 119C from the noble Lord, Lord Wills. These amendments seek to expand the scope of the independent public advocate scheme to include an event or series of linked events which have occurred prior to this section coming into force. In practical terms, as he has made clear, they would introduce a retrospective element to the scheme, allowing the Secretary of State to declare historic events as major incidents and to appoint an advocate accordingly. The noble Lord has brought this important issue to the Government’s attention. It is right that we should debate it.
At the outset, I need to state the Government’s position. Incidents which occur wholly—I emphasise “wholly”—before this part is commenced are not in the scope of this scheme. I recognise that the tragic events of the past and the experiences of those impacted by them have clearly highlighted the need for the independent public advocate. I do not mean to suggest otherwise. However, the IPA is designed as a forward-looking initiative to assist victims in the immediate aftermath of a major incident when there are investigations, inquests and inquiries into what happened. The scheme is intended as a way of providing support at an early stage. Given this, the Government believe that there would be limited additional benefit in appointing an advocate to support victims of incidents where the official processes are at an advanced stage or may have already concluded.
As the Bill stands, I can confirm that the definition of a major incident already covers either a single-time incident, or a series of linked incidents. It does not allow for the advocate to support the families of those who died or individuals who were seriously harmed by any linked incidents which occurred prior to the Bill’s commencement. Having said that, I recognise the point made by the noble Lord, Lord Wills, that recent events have shown that it can take time for events and their circumstances to become clear. There may be instances where these events do not occur during the same time period. I was grateful for the observations of the noble Lord, Lord Marks, on that theme.
I understand the importance of getting right the definition of a major incident. I have therefore asked my officials to consider it further. If it would be helpful, I would be happy to continue engaging with the noble Lord about this so that we can return to it on Report.
I turn to Amendment 120 from the noble Lord, Lord Ponsonby, which seeks to expand the definition of a major incident and therefore the IPA scheme. The amendment would allow the Secretary of State to declare a major incident in circumstances that do not meet the threshold of a significant number of deaths or those suffering serious harm but attract a significant public interest.
It is important for me to make it clear that the impetus for establishing a public advocate has been the experience of victims following past disasters that were exceptional, presented unique challenges and involved multiple organs of the state, which victims found difficult to navigate or have their voices heard by. The Government believe that it is important that the scope of this scheme is controlled and is clearly focused on assisting victims of major incidents which are, by their nature, rare. This amendment would set a possible expectation that the IPA might be appointed to support victims who have been involved in smaller-scale incidents, especially those where there are very few injuries or fatalities, which is not the policy intention.
There is a further and possibly helpful point that I can make. Arguably, the Secretary of State already has a broad discretion in the Bill to declare a major incident and to interpret the term “significant”. For those reasons, the Government, at this time, do not believe that this change is necessary. The public interest will also be one of the considerations that the Secretary of State will have in mind when making their decision, and more detail on this will be included in the policy statement.
Lastly, proposed new subsection (2B)(a) of this amendment seems to imply that blame or liability must have been found prior to this power being exercised. If the Secretary of State were to act quickly, they may risk prejudicing any subsequent investigation, which would not serve the interests of victims.
I am afraid that the amendment runs counter to the Government’s policy intention, but I hope that it is helpful that I have pointed out that potential element of discretion that is built into the wording in the Bill, and I hope that the noble Lord, Lord Ponsonby, will understand why we cannot support the amendment.
Lastly, I turn to Amendment 126 from the noble and learned Lord, Lord Thomas of Cwmgiedd, which would require the Secretary of State to obtain the concurrence, or in other words the agreement, of Welsh Ministers before appointing an advocate in respect of a major incident occurring in Wales. The purpose of the independent public advocate scheme is to support victims of major incidents. This Government agree that these functions fall within the devolved competence of the Welsh Senedd, with the exception of the amendments to the Coroners and Justice Act, which Clause 34 provides for.
The Ministry of Justice has engaged with officials in the Welsh Government during the development of this policy. It is clear that there is great benefit to having a single scheme that covers England and Wales to provide consistency of service. Our discussions with the Welsh Government are ongoing, as we seek a legislative consent Motion for these measures. Ministers in the UK Government will write to Welsh Ministers shortly, setting out a proposal for their role with regard to declaring a major incident which occurs wholly in Wales, and the subsequent appointment of an advocate in respect of that major incident.
I hope that that reassures the noble and learned Lord that this is a live issue that is very much on the radar of my noble and learned friend Lord Bellamy. He is very much aware of the devolution implications, and we are actively working to find a solution. The Government will bring forward any necessary amendments on Report, and I am happy to return to this topic at that time.
Lord Wills (Lab)
My Lords, I am grateful to everyone who has spoken in this short discussion and to the noble Lord, Lord Marks, for his remarks, and particularly for his cogent justifications for these amendments in terms of retrospection, which were an extremely valuable contribution to the debate. I am very grateful to the noble Baroness, Lady Sanderson, and to my noble friend Lord Ponsonby, for their support too.
I am also extremely grateful to the Minister for his open mind on this issue, if I may take it that far—or at least a willingness to continue discussion on what is quite a crucial question. I am very happy to do that, and I shall withdraw the amendment shortly.
I just want to say a few words about the Minister’s comments. He stressed the word “wholly”—major incidents that happened wholly in the past. That is a very important word, because it means when the incident no longer has any impact on the victim. In most cases—to think of the bereaved or those who suffered, not necessarily directly but indirectly, as in the examples from both the noble Lord, Lord Marks, and my noble friend Lord Ponsonby—such incidents are by definition not wholly in the past. The postmasters’ suffering is not wholly in past, even though the damage was done in the past. Similarly, for the victims of blood transfusions and their relatives, and the victims of nuclear tests in the 1950s and 1960s, these are ongoing traumas. They are the people who need the support of the independent public advocate.
I am, as I say, very happy to carry on this discussion in the hope that we can find some sort of resolution. A large number of people are still grievously affected by these major incidents, and I hope that this rare legislative opportunity to help them can be seized. With that, I beg leave to withdraw the amendment.
Baroness Thornton
“Victims of major incidents: registration of deathThe Secretary of State may by regulations make provision for a relative to provide information in the connection with the registration of the death of a person who was a victim of a major incident, even if an investigation is conducted under Part 1 of the Coroners and Justice Act 2009.”Member's explanatory statement
This is a probing amendment concerning the need for a qualified informant such as a relative of the deceased to be permitted to provide information to register the death after a major incident.
Baroness Thornton (Lab)
My Lords, in many ways, my Amendment 121 continues the discussion about the victims of major incidents; in fact, I think we have a suite of amendments that talk about the issues that surround those who have been involved in major incidents, whether they were quite some time ago, as my noble friend Lord Wills said, or more recently.
I refer to the work of my honourable friend Emma Lewell-Buck, as she raised this issue in the Commons. This is a probing amendment, because it is important that we start this discussion, and I think that everybody is aware that the issues of registering deaths are not uncomplicated. When she raised this in the Commons, the Government said that they
“intend to launch a full public consultation on the role of the bereaved in death registration following an inquest, including those impacted by a major disaster”.—[Official Report, Commons, 4/12/23; col. 138.]
In the Commons, the Minister told my honourable friend that it was no longer possible to accept her amendment
“due to the Data Protection and Digital Information Bill, which will digitalise death registration”.
I report that, because my honourable friend said that her amendment would
“give the Secretary of State the power to modify any provisions, which would enable the clause to be shifted to a digital state in future”,—[Official Report, Commons, 4/12/23; col. 122.]
and the Minister at the time said that the Government were incredibly sympathetic to the purpose.
I will relate the reason why this is important. My honourable friend has been campaigning for this change for some time on behalf of her former constituents Chloe Ann Rutherford and Liam Thomas Allen-Curry, who were murdered in the 2017 Manchester Arena attack. She explained in her speech, which is on record, that in 2022, after sitting through the public inquiry and listening to every agonising detail of what their children went through, Chloe and Liam’s parents were told that they would be denied that right to register their children’s deaths due to outdated legislation that states that, where deaths require an inquest or an inquiry, death registration is to be done solely by the registrar. All that those devoted parents wanted was to be part of the final official act for their precious children, but they were denied that.
After meeting the Minister, they were given assurances that he would look urgently at whether and how those changes could be made. Emma Lewell-Buck said:
“With each change of Minister”—
of course, that has been a feature of some ministries in this Government—
“the promises continued, yet nothing has changed”.—[Official Report, Commons, 4/12/23; col. 122.]
In February 2023, the bereaved families attended yet another meeting with Ministers, at which they felt they were treated with contempt, patronised and insulted, and that it was clear that they been misled by the Government for nearly a year, because despite it being entirely possible to change the law, the Government simply did not seem to want to do so.
Baroness Newlove (Con)
My Lords, I support this amendment. The Manchester Arena terror atrocity in 2017 chilled every parent in the country. When you watch your children head off to a concert or a party, excited and happy, you are never at ease until they are safely home. I have met many victims from this concert, and I have to say that it saddens me every time I hear about it. What happened that night is every parent’s worst nightmare and our hearts go out to them. We can only imagine their grief, which is still there today, and it is a loss from which they will never recover.
All of us in this Committee will want to be sure that these parents have all the support they need—this is what the Bill is all about. It is therefore deeply upsetting to hear that, after these parents sat through what must have been a harrowing public inquiry, they were then told that the registration of their children’s deaths would be done not by them but by a local authority official. This is bureaucracy at its most cold. The treatment of bereaved families by the state will always have a profound impact on their recovery. For those parents, being able to register their children’s death was, for them, an important step in their grieving process and it should be their right, as the parents, to have that facility.
It would appear that under the Home Office’s Births and Deaths Registration Act 1953 and the Ministry of Justice’s Coroners and Justice Act 2009, it is standard practice for a registrar to register deaths involving an inquest or inquiry. I understand that, if a person dies in usual circumstances, such as due to a health condition, a close relative can personally register their death. I did that in September for my mother, so I know that it is important. However, I am told that if they die in a major incident, it falls to the registrar. I also acknowledge that not all relatives want to register the death of a loved one, as in most cases, an interim death certificate is given soon after the incident for funeral arrangements —something I know about personally as well—but I want to see families being given a choice.
Having been to see so many Ministers is an insult: not just that they have been told “Yes, yes, yes” and then something else has been done, but every time they speak to a different Minister, it drains them. That they are having to explain, as parents who have lost children in the most horrendous way, beggars belief. What I am asking the Government and the Minister—all that is being asked for in this amendment—is that they be given that choice: that an extra space be found in the toolbar for the certificate, so that when a close family member wishes to be noted on the certificate, this can be achieved, without interfering with the coroner’s findings.
I understand that, sadly, it is too late for the victims of the Manchester Arena bombing, but I feel sure it will bring some solace to them that they have achieved something for future victims and can actually say “Goodnight” to the children they have lost.
Lord Marks of Henley-on-Thames (LD)
My Lords, I wish briefly to add my support to this amendment. It seems to me that there is no good reason why the amendment should not be passed. We have heard from the noble Baronesses, Lady Newlove and Lady Thornton, about the emotional effect of suffering deaths of relatives in major incidents. It is quite clear that the emotional impact is severe. It is also quite clear that some alleviation, some relief, may be found in the process of registering the death. Why on earth should a relative not be able to register the death if they so choose? For that reason, I can see no reason to resist this amendment.
Lord Roborough (Con)
My Lords, Amendment 121, tabled by the noble Baroness, Lady Thornton, is intended to establish a regulation-making power to allow a qualified informant, typically a relative or close friend, to provide information to register a death where the death is the result of a major incident. I thank the noble Baroness for this intervention on such an important and complex issue. I also pay tribute to the Member for South Shields and the right honourable Member for Garston and Halewood for their commitment and determination in championing this cause on behalf of the families bereaved by the Manchester Arena attacks. I also extend my deepest condolences to the families who lost loved ones in that terrible incident.
The Government are committed to ensuring that bereaved people remain at the heart of the inquest process and are able fully to participate in it. Bereavement is never easy, but it is inconceivably difficult to lose a loved one in circumstances which, by definition, are unexpected and traumatic, so we fully understand the importance for bereaved families of having a role in the registration of their loved one’s death following an inquest. For them, as for all who are bereaved, this could be a vital part of the grieving process. In this regard, I agree with many of the comments from my noble friend Lady Newlove.
However, it is also our responsibility to uphold the integrity of the inquest process. While all deaths must be registered, not all deaths will be investigated by a coroner. Deaths which are subject to a coronial investigation and include an inquest cannot be registered until the inquest has concluded. That is because in such cases the inquest is where all the facts including the personal details of the deceased and the cause of death are established. The legislation requires the registrar to register the death following the receipt of a certificate from the coroner. The registrar has the sole responsibility to register all deaths.
The amendment does not disapply the registrar’s statutory duties in this regard and would exist alongside those requirements. So, while I fully understand and sympathise with the intent behind it, it is unclear what the statutory purpose of the relative’s provision of information and the status of that information would be.
In answer to the noble Lord, Lord Marks, I believe that there are a number of good reasons why we will not accept this amendment. We must be mindful that an amendment of this kind could inadvertently undermine the integrity of the inquest process, in particular where the bereaved family is not in agreement with the coroner’s conclusion at the inquest. Furthermore, the amendment is limited to those bereaved by a major incident. The distress of losing a loved one in this way is unimaginably difficult. However, I do not believe that it is right that we legislate for this now, knowing that there would be many who would not be able to utilise the new provision.
While I am sympathetic to the purpose behind the noble Baroness’s amendment, the Government cannot support it for the reasons I have given. That said, we are very aware of the sensitivities surrounding this issue and it is important that we identify the most appropriate way forward. In doing so, we must also take into account the practical implications of other legislation, such as the Data Protection and Digital Information Bill—referenced by the noble Baroness, Lady Thornton—also currently before this House, which will enable implementation of remote delivery of registration processes in the near future.
For these reasons, I can confirm that—as my ministerial colleague the Minister for Prisons, Parole and Probation announced in the other place—the Government will undertake a full public consultation, as soon as practicable, on the role of the bereaved in death registration following an inquest. This will enable us to gather a wide range of views on potential ways forward. I hope that the noble Baroness will welcome my reiteration of this commitment, even if it goes no further as she has asked, and that, together with the Members who continue to champion this issue in the other place, she will work with the Government as we seek a solution to this sensitive and complex issue.
Baroness Thornton (Lab)
I thank the noble Lord for that answer. If I understood him correctly, his key point was that there is concern that the registration process might be compromised, but he did not say how. I do not understand how that could be. There is no question that the death must be registered, and bereaved families know that that cannot happen until the inquest has been completed, even if it takes years, as it sometimes does. I do not understand how that process would be compromised under these circumstances. I would be reassured if I thought that the consultation the Government are initiating will ask that question and work out how to solve that problem.
Lord Roborough (Con)
It might help the noble Baroness if I wrote with a fuller explanation of how it could compromise that process.
Baroness Thornton (Lab)
That would be useful to the Committee, because then the legal eagles behind me and on other Benches could look at it and see whether it holds water. The noble Baroness, Lady Newlove—whom I thank for her support—and I are not convinced. However, I beg leave to withdraw my amendment.