Immigration and Security

Baroness Hamwee Excerpts

Thursday 4th July 2013 Lords Chamber

[Baroness Hamwee]

My Lords, I thank the noble Lord, Lord Marlesford, for an interesting speech on such a significant issue. The relationship between effective immigration controls and the interests of our security—the words used in the title of his debate—is certainly not the same as it was some years and some centuries ago. He talked about the kaleidoscope that has twisted again, of course, just in the past few hours.

I wondered what security was in this context. My noble friend Lord Alderdice tells me that in Northern Ireland during the Troubles they used to distinguish between those involved in the Troubles and ODCs: ordinary, decent criminals. I think that the distinction now between organised crime and terrorism across the UK is quite blurred. As the noble Lord has said, crime threatens security and funds terrorism. I wondered even more what was meant by a “border” in this context; I mentioned this to the noble Lord yesterday. Our physical border is hard enough to defend, with international aviation, a lot of coastline, trading, parcel services and so on, but of course it is the non-physical border and modern communications and their new challenges that are so much the subject of our attention, and so they should be.

The House has debated cybersecurity, which the noble Lord has mentioned, on a number of occasions. It is one of the areas in the national security strategy, along with organised crime, climate change, energy and so on, in which immigration controls certainly have a role, so it must be right that security is intelligence led.

There have been home-grown rebellions through the ages. Disaffection may take new forms now, although there was something very primitive about the attack in Woolwich. Those attackers clearly felt a need to talk to the world, as have those who have formed pre-suicide attack statements. What should we learn from this? What are the needs which those who recruit them are meeting? When talking about some people’s vulnerabilities recently, particularly those of young people, I realised how those have been exploited, how they are let down by the system, or feel that they are, how they feel unseen and not responded to, and that we could have been talking about grooming for sexual exploitation, gang recruitment or terrorism. We need to speak to the needs of these young people and to reach out to them in a way that they understand and not see the problems only through the lens of our own views.

I was grateful to the noble Lord, Lord Harris of Haringey, who I do not think is taking part in this debate but is in his place, for arranging a meeting earlier this week with representatives of a women’s network, the Shanaz Network, which grew out of the worries of mothers about their sons, and sometimes their daughters, and their vulnerability to radicalisation and finding the language and a way to talk to them about this. They said, although not quite in these terms, that fathers may tend to applaud their sons as being masculine and macho whereas mothers are much more inclined to say, “Stop and think”. They have searched for ways to say that, and I am sure in many instances have been very successful in doing so. I mentioned intelligence-led provision. I have heard it said that our security services, in recruiting or “turning “ people, think in terms of, “We must get this person”, not, “We must get to know this person”.

The other major issue that was more than touched on by the noble Lord is the competence—I use the word deliberately—of our border controls. The frustration of the Commons Home Affairs Select Committee is evident in its regular reports on the UKBA. I do not need to spell out what the backlog means at a macro as well as a micro or an individual level. In its last report, the Home Affairs Select Committee said:

“It is possible that tens of thousands of individuals whom the Agency has not been able to trace are still here … We are astonished that the Agency provided this Committee, and its predecessors, with information that turned out to be patently wrong on so many occasions over the last six years”.

I am not comforted by the outsourcing of immigration services, not least because I am not convinced that the level of training needed to undertake the job of, for instance, an entry clearance officer, which is important and often very sensitive, will be given, although I have no doubt that the Minister will tell us of the work that is being done to turn all this around.

Our borders are not under threat from mass movements of people, as is the case, for instance, in north Africa or Italy, but that does not mean that we should not think as seriously and thoughtfully as this debate allows others—I do not include myself in that—to do. We could, of course, turn the question on its head and ask what security we provide for migrants who are open to exploitation, but I suspect that is not what the noble Lord, Lord Marlesford, seeks from this debate.

Immigration Rules: Impact on Families

Baroness Hamwee Excerpts

Thursday 4th July 2013 Lords Chamber

Asked By

[Baroness Hamwee]

To ask Her Majesty’s Government whether they have any plans to review the social and economic impact on families of recent changes to the immigration rules.

[Baroness Hamwee]

My Lords, I could fill my limited minutes and everybody else’s with examples of the impact of the family migration rules introduced a year ago this month. The media covered some of them when the all-party group launched the report by the inquiry that I had the privilege to chair. Those affected tell better than I can the outrage, confusion, puzzlement and anguish of British citizens and taxpayers who had never for a moment expected that their country would put such obstacles in the way of them living with their family in that country.

The All-Party Group on Migration is supported by the Migrants’ Rights Network, which wrote the report, and I thank it very warmly. The report looks at changes to the rules that had previously required someone seeking to sponsor a non-EEA partner and any children to demonstrate the ability to maintain their family without recourse to public funds. Immediately before last July, that was equivalent to income support—about £5,500. A number of sources and a range of evidence of income were counted. Now the minimum income requirement is £18,600, a level that is not attained by getting on for half of British workers, and there are considerable regional variations. The minimum income requirement is greater when there are children and can be met only through limited sources. Those who are successful at the initial stage of application must meet other criteria at later stages, but it is too soon to see their impact.

There is also a block—I use that term advisedly—on applications by adult dependent relatives to join British citizens and permanent residents here. They have to demonstrate a very high level of dependency, one which suggests to me that they would not in fact be able to travel, and that the sponsor’s financial support is not sufficient to provide care in their own country. Will the Minister give an example of when an application by anyone in this group could be successful? If you have the money to meet the requirements to come here, you have the money to be supported in your original country.

The Migration Advisory Committee was asked about the income needed to support applicants,

“without them becoming a burden on the state”.

That is an economic remit, and it gave economic advice, but as the MAC recognised, there are also legal, moral, and social dimensions. Our report calls for an independent review as to these impacts. Noble Lords will be familiar with the work of Oxford University’s Centre on Migration, Policy and Society. COMPAS is just the sort of organisation I have in mind to do such a review. It also calls for a review of the income level and how the system is working. I am well aware that the Government have said in recent answers to Parliamentary Questions that the rules are working as intended. They say that they will keep the impact under review without having any proposal to conduct an immediate review.

A study by Middlesex University suggests that preventing up to 17,800 migrant partners—the Government’s estimate—from coming and working here will cost the UK as much as £850 million over 10 years in lost economic activity. There is no evidence that most migrant partners have claimed public funds during their first five years here. Most, in fact, work and pay tax, and want to do so. Conversely, excluding a partner may increase claims on the state. A single parent may need support, which would not be necessary if there were two parents here to share the care of the child. Both sets of rules are driving out some of the very people who contribute significantly to our society. Of course, that is a double win if this is a numbers game.

The reality of the finances of many families does not fall neatly within narrow criteria. What about an incoming partner’s employability and earnings or indeed a significant job offer? Surely it would be sensible to review the exclusion of these. A lot of employment does not come within tier 2, an alternative route which is often suggested as being available. What about self-employment? It is subject to peaks and troughs and it is not always evidenced in the easy ways that the Government would want; but as a country we want entrepreneurial spirits. What about the length of time that savings must be held and their form when an applicant relies on savings in lieu of earnings? This affects people over a range of circumstances. I have to say that I think anyone holding an awful lot of liquid cash is likely not to be handling his assets very well. I have just heard of a high-net-worth couple that we would surely want within our tax base here who have relocated to another country because of the rules. I urge the Government to review the application of non-cash assets. What about the assistance available from family members—members who feel it natural and who are desperate to help their younger family members? This is felt particularly acutely by grandparents who want to be part of their grandchildren’s lives but cannot if what they can provide by way of accommodation and money cannot be counted to meet the requirements.

A child’s early months and years are hugely significant in his development, not merely—if “merely” is the right word—his well-being. In another part of the legislative forest, a child’s welfare by statute is paramount; so says the UN Convention on the Rights of the Child. Noble Lords are of course very familiar with Article 8 of the European Convention on Human Rights and with Section 55. It was as recently as Tuesday that we discussed in debate on the Children and Families Bill a government clause providing for a presumption that the involvement of a parent in the life of a child will further the child’s welfare. The four UK Children’s Commissioners support an independent review and that the obligation to secure a child’s rights to a family life be reflected. The Chief Inspector of Borders and Immigration recommends that the best interests of the child should be referred to expressly in decisions. We now even seem to see parents who are not allowed to live here being refused a visitor’s visa. It is no answer that the Briton should take his British children and live abroad if that is not the best for his family. I heard someone affected by these rules on a radio phone-in say that he was building up a business here—and that there just was not much call for mortgage-broking in Nigeria.

There were some changes in April to the evidence of means that it is required but—this point applies much more widely than to this type of application—the evidential requirements are not sufficiently clear or straightforward for applicants to understand. I do not think it is appropriate that we have managed to create a system where the ordinary applicant has to find legal advice. Indeed, it is a sorry state of affairs if the scope for flexibility and discretion in an assessment is constrained by the abilities of entry clearance officers and other immigration staff.

I would like to talk about the time taken for dealing with applications and appeals, whether the objectives of promoting integration are achieved, whether the rules support family life—which is clearly an objective of the Government—and about the amount of taxpayers’ money which is being spent, and will be spent, on government lawyers defending decisions, but I have to leave time for others who I hope will talk about the real human dilemmas.

We have a higher income threshold than any other major western country except Norway. We are out of step with the rest of the EU. Is it right that if, for practical reasons, you are not able as a couple, one of you not being an EEA citizen, to move to Ireland or France to live and work there for just a few months and then come to the UK under the treaty as EU citizens, you are denied the opportunity to live in this EU country as a family?

We live in an interconnected world, a term which was used in the previous debate. British citizens fall in love with people from Canada, Bangladesh, Costa Rica, Chile and Australia. We want to protect our reputation, a point which is often raised in connection with student visas. We want to protect our values, care for our parents, and have a family life. One of those values is fairness. These rules are not regarded as fair by so many of our fellow citizens. I therefore repeat the inquiry’s call for a review because of, as I have said, the outrage, confusion, puzzlement and anguish that are being felt.

Global Migration and Mobility (EUC Report)

Baroness Hamwee Excerpts

Thursday 6th June 2013 Lords Chamber

[Baroness Hamwee]

My Lords, it is always a privilege to follow Members of the Bishops’ Bench and I agree very much with what the right reverend Prelate said about human trafficking—the dark industry.

I was impressed by the number of speakers who put their names down for this debate. It says a lot, both for the concern of Members of your Lordships’ House about this issue and the value of the report, which I was fascinated to read. I join with others in thanking the noble Lord, Lord Hannay, and the committee for producing a fascinating report.

I realise that to say that we live in a global world is tautologous, but it is certainly an internationally connected world and needs more than a national approach. This is acknowledged both by the report, which says:

“The UK’s migration policy … should not be formulated and implemented in a vacuum”,

and by the Government, who say that,

“Member States’ needs differ greatly, so a ‘one size fits all’ approach to migration and growth would be counter-productive”.

Of course, each state has its own characteristics and needs. There are differing needs even within the UK. We are used to hearing explanations for our migration policy that point to highly skilled people who are so desirable for our country and our economy, but I always think that we should be grateful for the not necessarily technical skills that people from different cultures bring to our country, in particular from those cultures that are very good at caring. My goodness, our society needs people who are good at caring as well as the high-tech end of social care and medicine.

Having spent a lot of my political life in London, I tend to look at a lot of what we do from a London perspective. Yesterday at a lunch I sat next to a retired Permanent Secretary, who was reminiscing that when he was working as a civil servant, London’s population was 8 million. The population now is 8 million, approximately the same as it was in 1961, and indeed in 1931, but as he recalled, when the population was falling in the 1960s and 1970s, we thought the world was going to come to an end; now we think the world might come to an end because it is getting too big.

Of course, concerns about London reflect concerns about students. I am not surprised that other Members of your Lordships’ House have chosen to focus on this issue. The university sector is not short of champions here. As we know, the Government tell us in their response that the anti-abuse reforms have been targeted at the non-university sector.

Concerns about reputation—about our country not being welcoming, as my noble friend Lord Sharkey said, and the feeling that this country does not really want to do business with some other countries—has a knock-on. There are economic effects as well as the reputational ones and effects on business in the widest sense. That involves more than just universities. Perception is very important, and the quicker that the Government can recover ground in this area—the perception about this is unhappy and uncomfortable—the better.

The confidence of our business community is affected by the difficulties in this area to do with process. The concerns among people to whom I talk about immigration are often as much about process as they are about policy. One hears examples such as, “My clients decided not even to bother to try to get visas for particular people to come to work in this country. They are just going straight to Frankfurt”. I think that my noble friend Lord Clement-Jones will speak about tourist visas. That is one concern that the London business community has drawn to my attention and, no doubt, to that of other noble Lords. It mentions that the UK has improved its position in its overall competitiveness as a tourist destination from seventh to fifth in the recent WEF rankings, but we have dropped 24 places in the competitiveness of our visa requirements. We have slipped from 22nd to 46th. London First comments that competitor destinations are doing better at forging relations with new high-value tourism markets, such as China, with Paris, for example, attracting between five and eight times as many Chinese visitors as London.

It is clear to me that a lot of policy is driven by the effectiveness or otherwise—the competence, if you like—of the process, particularly the entry clearance process. It is of course very difficult to suggest that discretion should be applied to immigration applications. I am not going anywhere near that, but the ability to assess information is very important and does not seem to be in oversupply in the entry clearance system. I have no idea of the result when one is faced with an irritating tinkly version of Vivaldi when trying to get through on the telephone to follow up visa inquiries, but I know of considerable frustration that it is simply impossible to talk to a real person.

As I said, process as well as policy is important to build and retain trust among more than the business community, to which I have referred. I was interested that one of the four thematic priorities of the GAMM is organizing and facilitating—I stress the word facilitating—legal migration and mobility. Obviously, that begs the question of what is legal, but, like my noble friend, I took particular note of the paragraphs on family reunification. There was the recommendation that,

“there could be problems with a situation that admits spouses and children more readily to one Member State than another, considering that, once admitted they may eventually acquire the right to freedom of movement throughout the EU. We repeat our view that the Government should seek to opt-in to the Family Reunification Directive”.

British citizens who marry non-EEA nationals and then find that they cannot live in their own country with their partner and children as a family unit or be with elderly parents in the UK because they cannot meet the requirements—which are among the toughest in Europe—regard this, to use a mild term, as unfair. It is puzzling to them. It will not have crossed their minds that this might be a problem. The sense of hurt, betrayal, anger and so on is not reduced when they find that the UK is out of line with the rest of the EU.

The Minister is aware of a piece of work with which I have been concerned. We will be launching our report about family migration on Monday, but I want in this context to share one small piece of evidence received by the group which looked at this. The submission went as follows:

“I served in the British Army for 9 and a half years, have a First Class Honours degree and my husband is also degree educated and currently earning more than I do [overseas] … I am antagonised by the fact that citizens of the EEA face none of these obstacles when bringing their non-EEA spouse to the UK, yet I, a British citizen and former member of the British Army, am not entitled to the same rights in my own country”.

Several noble Lords remarked on integration being of the highest importance. I was impressed that my noble friend Lord Sharkey was able to ask questions about the paragraph in the Government’s response on that because, frankly, I found it quite difficult to understand. As for localisation, yes, local organisations have an important role to play, but that did not seem to be an answer to the point. The right reverend Prelate talked about a ragbag of resources in this context. I would prefer that we find a toolbox, not a set of leftovers, to address it. I do not think that he meant to suggest that. Like him, however, I regard this as an overwhelmingly important issue.

Queen’s Speech

Baroness Hamwee Excerpts

Thursday 9th May 2013 Lords Chamber

[Baroness Hamwee]

My Lords, when my noble friend opened this debate, he said from the Front Bench that he looked forward to working with candid friends throughout the House. I can assure him that we will be friendly and candid.

Archbishop Vincent Nichols, in his homily at a service on Monday, said that,

“the right policy will always be guided by courage and generosity and not by appealing to fear or pessimism”.

I added to that list, as guides, sound information, logic and a clear head. I have also just added “not acerbic or polemic language”. That could be applied to any subject, but in fact the subject was migration, and he was speaking at the mass for migrants. Time and debate both in and outside Parliament will tell how the Bill is guided, and whether it appeals to fear and pessimism.

The components of the Bill are not wholly clear. In March, announcing the splitting up of the UKBA, the Home Secretary said that a Bill in this Session would address its “complicated legal framework”. That matter does not seem to have been discussed publicly but presumably will occupy us. If it is to be part of the Bill, what of the Immigration Services between now and the commencement of legislation—or is that an administrative matter?

There has been much discussion of restrictions on services and benefits for immigrants, where fear—as many noble Lords said—is too easily whipped up. The big question is whether it is the right thing to do. Another question is whether it is workable. I hope that, before the Government bring forward a Bill, they will undertake very full consultation with landlords who may be required to check the immigration status of tenants, with employers who are already required to check for possible irregular migrants—how realistic is it to give them further immigration responsibility, and how are confusion and discrimination to be avoided?—and with health professionals, who I am sure do not want to go down the road of, “We need to see your papers”, which would be comparable to, “We need to see your insurance” in the US. A framework Bill against a background of an arms race of rhetoric would not be the reminder that we need of the benefits that our country has gained and continues to gain from immigration.

We understand that the Bill will also deal with the deportation of those who have no legal basis to remain. We must be concerned about the impact of that on refugee and migrant children and families, including unaccompanied children and those trafficked into the UK. I echo the reference of the right reverend Prelate the Bishop of Lichfield to the wide impacts of the administration of the immigration system. This in part takes us back to the quality of decision-making. If legislation is to include what is currently within the immigration rules, in what position does that leave the thousands of other rules? I do not understand the need to upgrade.

I mentioned trafficking. I was delighted to hear the Prime Minister say bluntly the other day that trafficking is slavery, and announce his intention to involve himself closely with the issue. On that occasion he met a woman who had escaped domestic servitude—eventually. She was helped by the wonderful little charity Kalayaan, which reports the markedly worse treatment of those it encounters on the relatively new tied migrant domestic worker visa—tied, that is, to the employer. This must be an unintended consequence that we could address in the legislation.

Much of the impact of other rules introduced last year on family migration must have been unintended and unforeseen. I am at the moment involved in an all-party group looking at these rules, and we are working on our report. I will share two stories with your Lordships. The rules make new provision for bringing to the UK adult and elderly dependants. We heard from the BMA of a woman consultant in the NHS who was unsuccessful in her application to bring to the UK her elderly parents, for whom she wanted to care. She decided to move back to Singapore. Her sister, feeling that it was wrong that only one child should take on this responsibility, moved back with her, as did her brother-in-law. They, too, were consultant psychiatrists. This country lost three consultants in that one episode. One was a psychiatrist specialising in children with learning difficulties—a very specialised specialty, if I may put it that way. If all we are looking at is numbers, I suppose that was a double win.

We have also raised considerably the minimum income threshold and other financial requirements for applications to bring in a spouse or partner—with any children—who is a non-EEA national. We heard from a gentleman living in Swansea, an area of very low wages, who is earning an adequate wage for his area but well below the threshold. He has an autistic daughter, and he would like to bring his new wife to this country from Canada, but he is not able to do so because of the financial limits. That woman would help to care for the daughter, which would be a saving to the state, not a drain on it. We heard, too, of British children separated from a parent because of the tightness of the rules. I was particularly struck by hearing more and more of the understanding of the impact of separation on a child’s development, and the attachment disorders that may result.

We will address questions of attachment and identity when this House comes to the Children and Families Bill, to which my noble friend has referred, and the work of the Adoption Legislation Committee. There turned out to be both post and pre-legislative scrutiny. I was a member of that committee, and we will be debating that for the first time next week. I hope, too, that the Bill gives us an opportunity to consider modernising the birth registration system to reflect the diverse forms of family that we now have, and the right of children and adults to know their genetic origins as well as their legal parentage.

I had hoped that we would have some opportunity somewhere to address some aspects of drugs policy, if not wholesale reform—I am with the noble Baroness, Lady Meacher, on that.

In the last Session, the Government acknowledged the role of the victim in rehabilitation of offenders—and therefore, of course, as we all know, the prevention of further offending in future—in legislating for restorative justice. That was very delicate, but welcome. The community trigger for communities on the receiving end of persistent anti-social behaviour will also be delicate. These things need sensitive handling, and there is a difficult line between early intervention and prevention and assumptions of guilt. The fairly new Chief Inspector of Constabulary at the HMIC recently spoke about the police needing to focus on crime prevention, which is something that we would all support. I hope that he did not mean crossing that delicate line when he said that resources would be needed to,

“know where the offenders are—those who are wearing tags and those who are just known”—

I emphasise those words—

“to be the most prolific and persistent and dangerous offenders in the community—and take them off the streets”.

I hope, for my part, that the Bill will extend the restorative justice approach, working with a young person, and with those affected by anti-social behaviour, addressing root causes and perhaps building on acceptable behaviour contracts developed by some local authorities.

Another difficult line is to know what a result is, when an organisation is paid by results. I congratulate the Government on their determination to cut reoffending by recent ex-prisoners, especially those on short sentences—or, to put it another way, to help them back into mainstream society. The Government know that this needs facilitating different, new, imaginative, risk-taking ways of doing things. When I was making notes for today, I decided that I was really too weary of the terms “innovation” and “radical”, which I think are becoming a bit devalued. To find a way to succeed, an organisation must be allowed to fail. The St Giles Trust is rightly held up as a model of this way of working. It is admirable and engages ex-offenders to work with its clients to very great effect.

Conversations between all who come within the very extensive umbrella of stakeholders—another overworked term—must be the right way to go about things. In the interests of time, I will not develop that thought in relation to terrorism and counterterrorism except to say that we would not have got where we did in Northern Ireland if we had not been prepared to talk directly to terrorists. I wonder whether we need the same leap of imagination and faith to take creative steps not just with the moderates in various communities where there is a danger of breeding home-grown terrorism but also with the bad guys.

Terrorism was mentioned in the gracious Speech in the context of foreign affairs and so, too, was my final topic—preventing sexual violence in conflicts worldwide. This matter is more than prevention; it is a case of responding to people’s needs and giving aid. I congratulate the Government, particularly the Foreign Secretary, on the Preventing Sexual Violence Initiative. I very much hope that the Government will be able to use feedback on local capacity in conflict and post-conflict situations provided by those working on the initiative. We must not be yet another entourage of experts who come and go. We must build up lasting relationships as the way to achieve lasting change through working with local experts and local NGOs. After all, it is what we are trying to do at home with payment by results. NGOs in these situations often need very little payment to achieve very significant results.

At the migrants’ mass, Archbishop Nichols talked of very real pressures made sharper in hard economic times. That will be the focus of the Government, but I come back to his wise warning against appealing to fear and pessimism and his advocacy of the guides of generosity and courage.

Crime and Courts Bill [HL]

Baroness Hamwee Excerpts

Monday 25th March 2013 Lords Chamber

[Lord Blair of Boughton]

My Lords, I am sorry that the House is going to hear a series of commissioners being referred to and speaking. I have cut my speech right down because there was nothing that I disagreed with in the speeches that followed the Minister’s speech.

I shall emphasise one thing and ask one question. I gather that in the other place it was said that this is a procedural matter. It is not a procedural matter, but a matter of national security. The deputy national co-ordinator of counterterrorism, a Metropolitan Police officer acting under the command of the Metropolitan Police Commissioner, said in public this week that the terrorist threat is rising. As my noble friend Lord Condon said, and I can vouch for it from my time as commissioner, there has not been a single plot that did not arise in, pass through or aim at London. When the bombs go off, whether in London or Glasgow, only the Metropolitan Police can put thousands of officers on the road or fly people in Chinook helicopters to Scotland. That is because the Metropolitan Police is the size it is. The NCA will never be that size. That is one other aspect of why the Met is the right beast to do this job of enormous national importance.

I echo the points being made to the Minister. Has there been any evidence of failures in counterterrorism by the Metropolitan Police? There is no evidence that anybody seems to be aware of. Is there any evidence that having counterterrorism policing in a separate agency from territorial police forces is a good idea? No, there is not, and there is exactly the opposite if you look across the Atlantic with the divisions between the Department of Homeland Security, the FBI, the CIA, the New York Police Department, and so on. The person who first began to mention the idea that counterterrorism should be taken from the Metropolitan Police is one Boris Johnson. He made that point in 2008 at the Conservative Party conference. I would like reassurance from the Minister that the sectional interests of London Conservatives are not being put in front of national security because the reason that Boris gives for this is that it would allow the Mayor of London alone to choose the Metropolitan Police Commissioner without the influence of the Home Secretary. That is a very poor argument for imperilling national security.

[Baroness Hamwee]

What we are being asked to do this afternoon is to consider the procedure around a substantial issue, but it is the procedure. It seems quite logical that counterterrorism should be dealt with alongside and as part of dealing with serious crime and organised crime. They are often inseparable activities that fund terrorism, and I suspect they largely come within the remit of the NCA, or will do when it is in operation. The NCA will be able to task police forces. Can the Minister confirm that it will not have a lot of bodies on the ground, but will be able to task existing forces—including, presumably, the Met? Is this the way it is to operate?

I appreciate the problems about Northern Ireland, and I do not suggest that they are not important. I also take the point that it is vital not to disrupt effective working relationships, to which the noble Lord, Lord Reid, referred. Again, perhaps that is answered in part by the point about tasking.

We must at some point address overall how this House and the Commons deal with secondary legislation, but that is not a matter for now. The super-affirmative procedure seems to go as far as it can in allowing for consultation with an iterative-process response to comments on the part of the Government.

I did not think that I would ever hear myself say this, but this issue probably comes as close as anything to lending itself to a yes or no answer for this reason: whether there is a super-affirmative order or primary legislation, there will be regulations dealing with transitional arrangements and all the detail. Whichever procedure we have, it will not avoid those. The regulations will go through their habitual course.

Finally, can the Minister explain how, in legislative terms, counterterrorism is to be moved away from the Met, if it is? I am unclear whether any legislation is required for that part of the process. As I read it, counterterrorism is with the Met under a direction—not an order—from the Secretary of State. If that is so, then the Government’s proposals would mean far more involvement by Parliament than has hitherto been the case on this issue; I may have read this completely wrong and the Minister will put me right when he responds.

[Lord Kerr of Kinlochard]

My Lords, I find today’s business difficult. Two categories of difficulty arise. This provision is much less difficult. I find the case made by the noble Baroness speaking for the Opposition persuasive and familiar. I have heard it before. I agreed with it when I heard it in earlier stages of consideration. My difficulty when the Commons reject our proposals is that I always feel cautious about disagreeing with the Commons. However, in this case, they have not heard our reasons for removing this provision. I am inclined to go with the noble Baroness who spoke for the Opposition, and say again what we think, at least to ensure that the Commons hear and listen to it.

I have much greater difficulty with the provisions that we are going to look at today which we have never seen before. The point made by the noble and learned Lord, Lloyd of Berwick, and supported by the noble Lord, Lord Cormack, is very important. For us to have to look under this procedure at language and provisions which are entirely new and were not in the Bill that was worked on here, in a rushed debate, without time to take advice from outside, conflicts with the concept of the House of Lords as a serious revising Chamber. I hope that the Minister will think carefully about that.

--- Later in debate ---

[Baroness Howe of Idlicote]

My Lords, I rise to support the amendment moved by my noble friend Lord Ramsbotham. I believe that what happened in the Commons, the way in which this whole area was tossed aside and not debated at all, was disgraceful. I believe that the very least that the Government can do is to answer the three questions that my noble friend has put to the Minister. I would lay the greatest emphasis on having an annual report on progress that is made in the whole of this area.

I am especially concerned about the differences in the treatment of men and women for two reasons. First, there is a distinct difference in the backgrounds of women who are in prison for very short sentences. As we have heard, such sentences account for the vast majority of women—and indeed men—in prison. As one example, 5% of the prison population are women, and yet 31% of self-harmers in prison are women. The Government should receive full marks for starting to outline, at last, these plans, as we have begun to get a picture of what we hope will happen in the future. I am very supportive of these plans as there are so many women in prison who should not be there, certainly not to serve short sentences as is currently the case.

Secondly, and above all, these women should not be in prison because of the effect that it is having on their families. How many of those families will find their own way into prison as a result of having had their family broken up, having been taken into care or placed with relatives and, above all, having lost that very particular relationship between mother and child? I believe that that is the worst aspect of all. How many facts are we given about the number of families who are repeatedly in and out of prison in a continual spiral of offending?

Good luck to the Government with their plans, but please let us have a report on what is happening, and let us have real progress. Quite apart from the women concerned, I believe that we will find that this kind of treatment could be as applicable to men in our prison service. We need a whole overview of what goes on.

[Baroness Hamwee]

My Lords, I would be surprised if some Members of your Lordships’ House were satisfied with a report as infrequently as annually. The questions, rightly, will come quite often to my noble friend, as they have done over the years. I know that this is something that he holds close to his heart, as does Helen Grant. I note that the document published on Friday—which I, too, thought was shorter than expected—is headed Strategic Objectives for Female Offenders and does not purport to be a complete strategy.

Perhaps I may ask my noble friend one question which follows on from what the noble Baroness has just said. It concerns the effect on children of their mother’s imprisonment. I suppose that this is a plea to include that in the strategy. The developing knowledge about the effect on children of separation from their mothers is something that we should take very seriously, and no doubt we will be considering it in the Children and Families Bill. I hope that my noble friend can reassure the House that the whole-system approach which is referred to in the strategic objectives is a whole system that will extend in all the ways we know it should, and not just to the narrow punitive and personal rehabilitative aspects that we have mostly been talking about this evening.

[Lord Rosser]

My Lords, the Commons amendment seeks to strike out Part 7 of Schedule 15 to the Bill, which provided much-needed statutory provision for women offenders. Part 7 was successfully introduced into the Bill at Third Reading in this House but was subsequently struck out in Committee in the House of Commons without further debate.

The Government have just published their promised Strategic Objectives for Female Offenders setting out their priorities, and they have also announced the setting up of a new advisory board for female offenders chaired by a Home Office Minister which is intended to support the Minister,

“in providing strong leadership on delivery of our strategic priorities”.

However, these developments do not remove the need for statutory measures to ensure that the distinct needs of women in the justice system are prioritised and met. I understand that there have been 10 previous reports across the UK on the matter of women in the justice system, but none, it seems, has been implemented in full. In the light of the publication of their strategy but in the absence of any statutory backing, how will the Government ensure that all contracting areas in the new environment make provision that is appropriate to the particular needs of women, and how will the Government ensure that progress is sustained and built upon?

It is not clear why the Government do not want to take this legislative opportunity to deal more effectively with women who offend. To begin with, funding is not ring-fenced for service provision delivered by women’s centres or women’s services, and a number of them fear significant funding cuts or even closure. The inclusion in the National Offender Management Service’s Commissioning Intentions for 2013-14 of an intention that provision should take into account the “specific needs” of women offenders falls far short of any statutory guarantee of women-specific provision. There is evidence in recent research published by the Equality and Human Rights Commission that commissioning procedures and outcomes have already had a negative impact on the funding of women-only services, including services for women offenders and those at risk of offending. In the Strategic Objectives for Female Offenders the Government recognise that the,

“relatively small number of female offenders presents particular challenges”.

Unless there is statutory underpinning for women’s community provision, there is a risk that this will result in inadequate provision.

Provision for women offenders in the community is probably best described as patchy and its future uncertain. Unless and until the courts are confident that effective community penalties are available in their area then vulnerable women will continue to be sent to custody to serve short sentences for non-violent crimes. I know the figures are well known, but over half the women in prison report having experienced domestic violence and one in three has been sexually abused. Most women serve very short sentences, with 58% sentenced to custody for six months or less; and 81% of women entering custody under sentence had committed a non-violent offence compared with 71% of men. Women also account, as the noble Baroness, Lady Howe, has said, for 31% of all incidents of self-harm, despite representing just 5% of the total prison population.

The recent joint inspection report on the use of alternatives to custody for women offenders found a lack of women-specific provision for both unpaid work and offending behaviour programmes and noted that,

“women-only groups, where run, were often successful”.

It found that,

“women’s community centres could play an important role in securing a woman’s engagement in work to address her offending and promote compliance with her order or licence”.

At the moment, it looks as though government funding for the national network of women’s centres will be substantially reduced and that, for some, it may run out very soon. The future of the centres under payment- by-results commissioning is uncertain. Placing community provision for female offenders on a statutory footing will at least help to protect the vital role played by women’s centres and other local services in the effective delivery of community provision for women.

If the Government are not prepared to legislate now on this issue, do they have plans to do so at some stage in the future? It is not proposed changes in the provision of probation services or a changed landscape that is preventing the Government making statutory provision. That, frankly, is a red herring: a Government wanting to legislate would not be deterred by that issue. If the Government have no intention at all to legislate, then at least will a Statement be made each year to Parliament, as the noble Lord, Lord Ramsbotham, and the noble Baroness, Lady Howe, asked, on the progress being made towards improved provision for female offenders? That, surely, is the least the Minister can offer when he stands up to give his response.

Electronic Commerce Directive (Trafficking People for Exploitation) Regulations 2013

Baroness Hamwee Excerpts

Wednesday 6th March 2013 Grand Committee

[Lord Taylor of Holbeach]

My Lords, I thank the noble Baroness, Lady Smith of Basildon, for her broad welcome for the directive and the regulations arising from it. I think we are all agreed on it. The opt-out of police and justice measures would not affect this order or the UK’s participation in the trafficking directive. It is not part and parcel of that situation. That is important to know.

I know the opt-outs are a matter that concerns the noble Baroness. The work in relation to all the opt-outs is ongoing negotiation and discussion. She knows that I and my noble friends in the Ministry of Justice will do our best to keep the House informed of the implications of anything that comes forward.

The first review of the regulations will be after five years. By that time, we will see what the implications are. We hope that we can anticipate relatively few prosecutions under these regulations because their existence is the key to making sure that e-trafficking is not used to reinforce this terrible trade.

[Baroness Hamwee]

Did I hear the Minister say that the first review will be after five years? Regulation 8(4) states:

“The first report … must be published before the end of the period of five years”.

Perhaps I am saying this only to register my presence, but we should be clear about that.

Police Integrity

Baroness Hamwee Excerpts

Tuesday 12th February 2013 Lords Chamber

[Baroness Hamwee]

My Lords, I, too, welcome the Statement and I agree with the implicit message that transparency and integrity go hand in hand. I do not doubt that, when there is a problem, those who feel it most keenly are individual police officers who themselves have shown the utmost integrity. First, what consultation has been undertaken on these measures, not just with ACPO but with those who represent the lower ranks of the police service? Secondly, will any of these measures —I am thinking particularly of the registers of interests, gifts and so on—apply to civilian staff within police forces?

[Lord Taylor of Holbeach]

My noble friend has raised two very interesting aspects and I thank her for bringing them forward. The key thing about these proposals is that they will affect the professionalism of the police at all ranks so, as she rightly points out, they represent a development that I hope will be welcomed. They will be part and parcel of ongoing discussions that we are having as we seek to create a modern police force in this country—something that covers a whole load of matters and will now include this. We will make sure that that happens.

It is intended that those employed by the police in a civilian capacity will be subject to IPCC involvement, a matter that the IPCC itself has raised with us. I cannot say whether the register of gifts, or of contacts with the media, will be extended into that area but she makes a very interesting suggestion that it should do so.

Crime: Women's Safety

Baroness Hamwee Excerpts

Tuesday 12th February 2013 Lords Chamber

[Baroness Hamwee]

My Lords, I am grateful to the noble Lord for introducing this subject. The noble Baroness, Lady Stern, in her influential review into how rape complaints were, and maybe are still, handled—I have to say that the noble Baroness should be speaking earlier than me in this debate—concluded that,

“it is time to take a broader approach”—

broader, that is, than relying on the conviction rate—

“to measuring success in dealing with rape”.

She talked in the report of,

“a range of priorities that needs to be balanced”,

in particular by giving “higher priority” to,

“Support and care for victims”,

as well as of helping,

“the victim to make sense of the police and prosecution processes”.

As the noble Lord said, if we did not understand the need for that before, the response of Frances Andrade to the prosecution of Michael Brewer has made it shockingly vivid.

The Government’s progress review of the action plan on ending violence against women and girls reported that a number of actions had been completed to identify ways to improve communication with victims of sexual violence. The actions taken were the completion of a Home Office handbook and a CPS booklet. Perhaps this issue needs to be revisited. The Home Secretary acknowledged last week that Frances Andrade’s suicide might discourage others from coming forward with complaints.

In late 2011, I attended a conference at New Scotland Yard for SOIT—sexual offences investigation trained; this is a new acronym to me—officers. I was impressed by the concern then shown by police to extend understanding and professionalism in this work, but I wonder whether this is still not something which is often better recognised by the more senior officers. Has it trickled down to the junior officers who will respond initially to complaints and offences?

What also made an impression on me were some of the comments made by victims of sexual offences, though “victims” seems to me to be the wrong word, because the women in question presented themselves very much as survivors. I looked this morning at the notes that I made. They included: “Victims have lots to lose … villains are the defence teams and the judiciary”—I recognise that that is a pretty complicated area and I do not want to be too simplistic, but this is the reaction—and “getting DNA on the database is regarded as a result”. What all that amounts to is the victim not being taken sufficiently seriously and not being treated as any of us would feel we or people whom we know to be in this situation would want to be treated.

Since I thought that we would have even less time available this evening than we have, my focus in preparing my remarks was deliberately narrow, although there is one other particular issue which I will come to in a moment. The noble Lord’s referring to how women are treated inside the home as well as outside prompts me to mention, though not at length, domestic violence. Another point that he made which is similar to what I have been saying was about the attitude of less senior police officers. When I mentioned this in a debate not long ago in the presence of a retired, very senior police officer who is a Member of this House, he took me to task afterwards. I raised the matter also with the chief executive of a domestic violence charity with which I used to be associated and she said, “No, the attitude has not changed. We’d like to think it has, but it hasn’t, certainly not to the extent that would be appropriate”.

The other issue that I will slot in, and on which public awareness is probably about 20 years behind that on domestic violence—which is how I have heard others describe it—is that of trafficking of women. Here I make a plea for imaginative understanding of victims. That ranges from how immigration issues are dealt with through response to minor offending by the victims of trafficking to treating the trauma which they have experienced.

It is not a very good idea to add to my speech in a rather disorganised way a whole lot of scattered points, so let me come back to the other item that I wanted to raise. The report which is the subject of this debate inevitably presents snapshots, but it is trends which are the most important. I am not saying that trends are completely ignored by the report, because one trend which is very clear within it is the steady rise in the number of offenders in prison for sexual offences, from around 6,000 in 2005 to almost 10,000 in 2011. That suggested to me that offender management is not succeeding, but then I came across the statistic that more than 80% of those offenders had not previously been cautioned or convicted for sexual offences. I am not sure how these statistics lie together and whether the Government have any comment to make on them, nor am I sure whether they are affected by a tendency to prosecute for a lesser offence than rape, which I presume is to ensure a conviction. Perhaps the questions on this should all be about the rehabilitative skills which will be available in the world of payment by results that we all see coming along the track.

I cannot get away from the thought that perhaps no distinction is being made with other offenders and that the best approach to rehabilitation as well as punishment is the big question. However, I shall return to where I started: I heard it said the other day that someone who is murdered is murdered once—I do not condone that, of course—whereas someone who is raped is raped over and over again, because that trauma is experienced again and again. In the system’s treatment of victims, we would do well to remember that.

Intelligence and Security Committee: Annual Report 2011-12

Baroness Hamwee Excerpts

Monday 21st January 2013 Grand Committee

[Baroness Hamwee]

My Lords, when I went to see the latest Bond film, “Skyfall”, there were two Members of your Lordships’ House in the audience. I think we both found that the least credible part of the film, which was a high hurdle, of course, was the active executive role taken by the chair of the Intelligence and Security Committee. That is probably the limit of my expertise on the subject, certainly compared with today’s speakers and indeed with other noble Lords in the Room, so I hope that noble Lords will forgive any naivety in my comments.

On reading the report, although this is not a criticism of the report itself, the writers or the committee, I would have been pleased if some of the gaps had been filled. I am not talking just about the redactions, although on those I did wonder about the process. Does the committee advise the Prime Minister that certain matters are for his eyes only, as it were, because as we discussed during the passage of the Justice and Security Bill, responsibility for security is a matter for more than the agencies? Indeed, much reference is made in the report to what is called the wider intelligence community. It appears from the report that the National Security Council, with a membership of Cabinet Ministers, joins things up across government. The report states:

“It is evident that the NSC has increased further its status and priority, and we are reassured that the requirements of the NSC have been assimilated by the intelligence community”.

I am intrigued that membership of the Joint Intelligence Committee is not quite aligned with that of the NSC, which includes the Secretary of State for Energy and Climate Change. However, DECC officials are not permanent members of the JIC. The events of the past few days have confirmed the relevance of that. Perhaps the issue will soon be water, but that could be a matter for another debate. The JIC, on the other hand, includes officials from BIS but the Secretary of State for Business is not a member of the NSC, which is interesting given the problems of cybersecurity to which the noble Marquess has just referred.

The impact of the NSC on the intelligence community—to pick up that reference—is one thing but what is important above all is its impact on outcomes. The report’s very first recommendation concerns the distinction between policy implications and analytical judgments. Again, this has already been mentioned and the Government agree with it. It cannot be easy to maintain that distinction or to avoid blurring the line between the operational and the strategic. Two of the quotations from the evidence from the Foreign Secretary which are contained in the report were particularly interesting on this. He said:

“We task them all the time”.

Then, acknowledging the importance of operational independence, he goes on to say that,

“there is a process of discussion. I mean, the weekly discussions that I have with the Security Service are about where they are focusing their resources and particular operations that require that resource and questions I can ask about the issues that I see that need to be addressed and how they are doing them. So it’s a different sort of accountability”.

Accountability is an interesting word there, because it is moving towards the Executive. I am not saying that there is anything wrong in that involvement or that I am critical of it, but I thought that this highlighted the point. The noble Marquess, Lord Lothian, has asked the Minister to confirm that resources will remain available for the front line, which in my mind raises the question of who is responsible for the allocation of resources within each agency by each agency, and how much they should be told by the Government where resources should be allocated.

As I read the report, the agencies are increasingly collaborating for operational reasons as well as for efficiency. The Government’s response stresses the importance of a tri-agency approach to conducting and supporting counterterrorism investigations. No doubt the debate about having separate agencies and the demarcation lines is a very old one, but I wonder whether the time is coming for it to be revived and for a reflection on where the demarcation lines should be, as the world changes and we become more of one global whole.

One of the changes of course is the agencies’ increasing dependence on IT. I was not surprised to read of the difficulties of retaining talented people—to whom one must pay tribute, not only in IT but across the piece. This is not a new issue in the public sector: the attractions of the private sector have taken, for example, engineers and planners out of local government for years. It means making the job attractive, not only in terms of salary but in other ways. There is talk of recruitment. I have been on to the websites and played with what is there. However, I do not get much of a sense of what the imaginative and innovative methods are to which the Government refer—without fleshing it out—which would attract possible applicants to look for jobs with the agencies and get to the point where they might try to take the intelligence test, if I have used the term correctly.

Turnover within the agencies seems high. I assume that there is an analysis, either within each agency or by the committee, of the levels of seniority where there is high turnover and the reasons for it. Is absence monitored? Sickness levels are often a very good indicator of what is going on beneath the surface. This information is in the public domain but, as regards discussing this area in public, taking evidence from those who can give it is just the sort of thing that could be considered—an issue that I raised during the passage of the Justice and Security Bill—not at one stage removed, as we are today. I readily acknowledge that there are difficulties when one moves from the general to the particular in this area but, for example, redundancy payments are indeed high, as the report mentions. This makes me wish to ask—but I cannot ask or listen to the question being asked—whether there are false economies in making high redundancy payments if that means recruiting a large number of more junior employees.

Diversity, as is also recognised, is an issue in recruitment and, perhaps, retention—I am not clear about that. Are the nationality requirements really such a problem for diversity? How much effort is being made to learn from other sectors? Is there secondment to and from the agencies and other sectors? Presumably, that is not entirely impossible? I would like to think that the committee has been told more than:

“Work is in hand to identify a sustainable package of measures to tackle the situation”.

However, I return to the “what?”. The proportion of spend on counterterrorism brings one up short. I noted, too, mention of home-grown self-starters and lone actors. The sections on the Prevent strand of the strategy reminded me of the difficulties in another area—drugs. This is all about mindsets, and I wonder whether there is any read-across that one can make. I should be interested to know whether the ISC was content with its recommendations on this. I wonder, too, if it was satisfied with the Government’s response to the section on torture and cruel, inhuman or degrading treatment. It seems that nothing is immune from being turned into an acronym. The report refers to the risk of being linked to such activities. I do not know whether it is only my reading of the Government’s response but it carefully does not address the difficult area of “condoning” such treatment—if that is the right word for not asking all the questions or ferreting away at investigations that might reveal things that one might not want to know; and yes, I have read the consolidated guidance and note the role of Ministers in this. Perhaps that is for another day.

It is clear that the committee’s oversight is continuous and vigorous. Meetings are not everything but I note that the committee met 44 times in the year—almost once a week. As the committee and the noble Marquess, Lord Lothian, has said, the real test is our response to the unexpected. Perhaps the events of the past few days remind us that behind this is the question of what is done to limit the unexpected. I pay tribute to the work of the committee as well as of the services. Scrutiny is by no means merely passive and reactive, and this report shows that.

Crime and Courts Bill [HL]

Baroness Hamwee Excerpts

Wednesday 12th December 2012 Lords Chamber

In relation to morphine, I understand that the panel is considering a limit which is significantly above the average concentrations of morphine in blood found in cancer patients receiving long-term steady-state doses of morphine. That is some reassurance, but again if the Minister can elaborate, it would be helpful. The point made by Napp Pharmaceuticals is that the defence in the legislation as it stands applies only once the case has progressed. It will not protect innocent patients on prescribed medications from the stress of arrest and further testing at the start of the process. Does the Minister agree that Clause 29 needs to be amended to cover drivers who are able to show that they have not taken alcohol and who can explain that they are on prescribed medication? Will the Minister consider bringing forward a government amendment to this effect at Third Reading? It would be helpful to be given some reassurance. A zero tolerance approach would be very serious for these chronic patients who need their medication and can drive safely while taking it. I beg to move.

[Baroness Hamwee]

My Lords, semaphore signals made across the Chamber are always excessively polite. I do not want to take too much of your Lordships’ time on these amendments, but that is not to say that I do not think they are important. However, I am aware that some noble Lords may be hoping to get on to another amendment soon.

The letter which some noble Lords have received from the noble Earl, copying us in and updating us—if I can put it that way—on the findings of the expert panel was extremely helpful. However, it confirms not only some of the points to which the noble Baroness referred but that this is very much still a work in progress. At the previous stage, the Minister referred to the vast array of drugs which needed to be considered. That is certainly the case given the existence of controlled, uncontrolled, traditional and designer drugs. Drugs are not as easy to deal with—if that is the right word —as alcohol. The Department for Transport has not yet published the expert panel’s report, which may be more relevant to the next group of amendments, but it has provided some reassurances, albeit they are not yet in the public domain in the normal sense of the word.

I support what the noble Baroness said about looking at the effect of drugs rather than assessing whether they are classed as controlled drugs. Dr Wolff’s very helpful presentation, which some of us were able to attend, explained that the panel’s work is based on an assessment of risk. That, it seems to me, is absolutely at the heart of what the noble Baroness has said. We are all aware that, as regards psychoactive drugs which are not yet controlled and may never be, chemists around the world are looking at old pharmacopoeia and designing new drugs. They will always be ahead of the rest of us in terms of the proper control of these substances.

I support Amendment 118K. I am impressed that the noble Baroness, Lady Smith, has managed to incorporate “knowingly” in the amendment by drafting another paragraph. I struggled to find a way of incorporating “knowingly”. My approach was not as ambitious as hers. My Amendment 118J would insert “substantially” to make paragraph (b) read:

“D took the drug substantially in accordance with any directions given”.

This provision refers to prescribed medicines. I am aware that it is very easy to forget to take a prescription medicine at precisely the right time. I have done that, and I am sure that most other noble Lords have done it. The medicine may state that it should be taken with a meal, but you might have missed the meal. Patients are human, and they forget. They do what they think is best in catching up with the daily dose. The panel said that it was important to strengthen medical information but warned individuals about the risks of consuming the relevant drug and driving, particularly if alcohol is also consumed. It recommended that healthcare practitioners should be better informed about these risks. I am sure that that is right and admirable, but I do not think that it wholly meets the point. As has been said, road safety is involved in this matter. The balance between protection and having the flexibility required to take account of human imperfections is difficult to strike. Again, we are talking about inappropriate risk.

Amendment 118M was suggested by the Joint Committee on Human Rights and concerns spiked drinks. Its report refers to the,

“apparent increase in recent years of incidents of spiking drinks in public places, in particular with so-called ‘date-rape drugs’ … We are also anxious about the impact of strict liability criminal convictions on individuals’ CRB checks, even where disqualification from driving may have been avoided through a special reasons hearing”.

The committee states earlier in its report that the point may have been made that a drink has been spiked. It is not impressed by the Government’s objection to permitting a “spiked drinks” defence. The committee states that,

“the Government’s objection does not hold good if such a defence imposed the legal burden of proof, as opposed to the evidential burden of proof, on the defendant: that is, if the Bill provided for a defence only if the defendant can prove that the drug was present in their body due to the intervention of a third party without the defendant’s knowledge or consent. We are concerned that the new strict liability offence as presently drafted is incompatible with the presumption of innocence in the absence of a spiked drinks defence which casts the legal burden of proof on the defendant”.

Therefore, the committee recommended this amendment to your Lordships and, indeed, to Parliament.

[Lord Walton of Detchant]

My Lords, I wish to speak briefly in relation to this group of amendments and Clause 29, largely in order, I hope, to receive reassurance from the Minister.

A number of medical bodies and a pharmaceutical company have drawn to my attention the possibility that this legislation and the testing systems could mean that patients taking legal medication for chronic pain might well face prosecution. Patients with chronic pain well established on a stable dose of prescription or over-the-counter opioid analgesics may have levels of metabolites in their system well above any threshold used for roadside or police station testing, even though such levels of these metabolites would not in any sense impair their ability to drive. Patients driving while taking these remedies might then be subjected to the threat of criminal prosecution or, at the very least, might face stressful allegations and the onerous burden of proving that they were not impaired and that there was no other reason why they should not be driving.

The defence included in the legislation is welcome. Subsection (3) of proposed new Section 5A states:

“the specified controlled drug had been prescribed or supplied to D for medical or dental purposes”,

and that,

“D took the drug in accordance with any directions given by the person by whom the drug was prescribed or supplied”.

That is very helpful, but the concern that has been drawn to my attention is that, although that defence sounds absolutely solid, it would be available only once a case has progressed. It might therefore not protect innocent patients from the stress and inconvenience of arrest, further testing and potential prosecution. The wording of the defence does not put the burden of proof on the prosecution; the onus is on patients to show that they took the prescribed medication in accordance with instructions. This might well prove to be a difficult task, and it would be unjust to criminalise an innocent patient as a result of a technicality. Will the Minister reassure me that this particular clause is strong and solid enough to avoid that problem?

--- Later in debate ---

Moved by

[Baroness Hamwee]

118N: Clause 29, page 29, line 23, at end insert—
“( ) Before regulations under subsection (8) are laid before Parliament, the Secretary of State shall publish a report regarding the controlled drug proposed to be specified and the limit proposed to be specified.”

--- Later in debate ---

[Baroness Hamwee]

My Lords, I hope to be very brief on this amendment and on Amendment 118P. These amendments deal with the regulations which, as the noble Earl has assured the House, will not be proceeded with until a good deal more work is done. My first amendment would provide for a report from the Secretary of State about the,

“drug proposed to be specified and the limit proposed to be specified”,

before laying regulations. Like all other noble Lords who have taken an interest in this, I am very keen that the decision should be made on the basis of evidence. This amendment is to suggest that the evidence base should be in the public domain and easily accessed before we are asked to deal with regulations.

I said a few minutes ago that there is a huge array of drugs. I was quoting the noble Lord, Lord Henley, when I said that but, having seen that remark in Hansard, it struck me that it may be difficult to decide whether to support regulations that cover more than one drug or where there is concern about the limit applying to a particular drug. It would be very helpful to have regulations made a drug at a time so that the vote can be very clear when the matter comes before both Houses of Parliament. Following the points that have been made about the importance of controlling drug-driving, I hope that the House would be able to vote for the inclusion of a particular drug without jeopardising the inclusion of another if there is concern about one which is on a list or the limit for one which is on the list. I beg to move.

[Earl Attlee]

My Lords, I would point out first that these are very important clauses and it is right that the House looks carefully at them. I know that these amendments relate to concerns around how the Government will implement the new offence. Amendment 118N proposes that the Government should be required to publish a report regarding the controlled drugs and limits to be specified in regulations before such regulations are laid before Parliament. The Government do not consider that such a requirement is needed. Clause 29 already requires the Government to consult before specifying in regulations the drugs and limits for the new offence. The Government also intend to publish a copy of the report of the expert panel on drug driving shortly. I have already provided an explanation to the House on the reasons for its delay. The consultation will set out the evidence base for specifying particular controlled drugs and limits in regulations.

Amendment 118P proposes that individual sets of regulations should be drafted for each controlled drug to be covered by the new offence. I recognise the importance of considering carefully the specified limits for each controlled drug. That is why we will consult on the drugs to be included in the offence and the limits which should be specified. It will be open to anyone to respond to that consultation and their response will be considered carefully. Drafting a new set of regulations for each controlled drug would be time-consuming for the Government to prepare and for Parliament to consider, and would be likely to involve much unnecessary repetition. It could also make it more difficult for those seeking to use the legislation since there would be multiple sets of regulations to refer to, making the relevant law unnecessarily complex.

The Government therefore believe that it would be better for all concerned for a single set of regulations to be produced following consultation. In the event that the regulations were not approved by Parliament due to the inclusion of a particular specified drug or limit, the Government would amend the regulations and lay a further draft before Parliament for approval. In the light of the points I have raised, I hope that the noble Baroness, Lady Hamwee, will be willing to withdraw her amendment.

[Baroness Hamwee]

My Lords, for speed, I will not comment on that other than to thank the noble Earl. I beg leave to withdraw the amendment.

Amendment 118N withdrawn.

--- Later in debate ---

[Baroness Butler-Sloss]

My Lords, like many other people, I received a large number of e-mails and letters all going one way in support of the noble Lord’s amendment. I would just like to tell the House about one letter I received. In my very untidy desk, I have lost it, but it was about a lay preacher who preaches on the street and preaches on Sundays in church. He happens to subscribe to a literal form of the Old Testament with which I do not agree, but he was preaching on his literal interpretation in the street. Someone complained to the police, and he was arrested and spent seven hours in the police station. He was placed on police bail on the order that he was not allowed to preach. If that is not an abuse of the freedom of speech, I do not know what is. I cannot understand why the Minister and the Government are not supporting this amendment.

[Baroness Hamwee]

My Lords, I was hoping that my noble friend Lord Macdonald would be in his place as he was a little earlier. I hope he is not stuck in a lift or something. I want to put on record on his behalf, on my behalf and on behalf a number of people who are becoming quite vocal, my wholehearted support for this amendment, and I speak for a number of colleagues. I put my name to the equivalent amendment at the previous stage and, as I recall it, the noble Lord, Lord Mawhinney, said, “For heaven’s sake, even the Liberal Democrats have this as party policy”. Well, we do; we would have gone further, but we are happy to go as far as is before us tonight.

[Baroness Smith of Basildon]

My Lords, as we have heard, it is nearly a year since the Government launched their consultation on public order policing and whether the word “insulting” should be removed from Section 5 of the Public Order Act. In the Committee on this Bill—a good five months after the close of the consultation—the Minister said that he hoped that at Report stage, the Government,

“will be able to put forward the Government’s considered view to the House”.—[Official Report, 4/7/2012; col. 781.]

Since then, the Government had a further five months to come to a decision, and yet—unless the Minister is going to make an announcement this evening—even at this stage, we still have not had a public announcement from the Government about their position, or about the findings and evidence from the consultation which your Lordships’ House has asked for.

I say to the Minister that this is typical of this Bill. From the National Crime Agency framework document, the debate we had earlier and the panel report on drug driving, evidence that would have assisted this House in consideration of the Bill and been welcomed by noble Lords for scrutiny has not been available to your Lordships’ House. It does this House, and those proposing the amendment today, a grave disservice that the Government are so tardy bringing forward information that is crucial to this debate. I share the frustration of the proposers at the Government’s failure to provide this information for the debate today. Are the Government finally able to state their considered position now or will we have more evasion and more waiting for a consultation that closed many months ago?

I understand some of the difficulty for Ministers; it lies in the nature of coalition Government. The Liberal Democrats, at their spring conference this year, passed a motion to repeal this part of the legislation. We also know from names on the amendment that a number on the Conservative Benches—as we heard this evening—also support removal. The campaign is led in the other place by David Davis MP. If there is so much interest in this issue, why have the Government not brought forward the results of the consultation in order to have a proper, informed debate on the merits of the issue, rather than leaving it to campaigners?

I am not suggesting for one moment that the law as it stands is perfect in its application; we have heard numerous examples why it is not. I appreciate that there are grave concerns that there are cases where its use by the police and the CPS has been disproportionate and, indeed, ridiculous at times. There is a very strong argument for better guidance on the application of this clause to ensure that its use is always appropriate and effective.

However, we are concerned that the evidence of the need for its removal has not been presented to your Lordships’ House. We do not want to risk removing a useful tool which currently enables the police to address homophobic and religiously offensive issues. There is still a huge grey area when it comes to these issues.

Many of your Lordships have said that they received no correspondence in favour of “insulting” remaining; I did receive such correspondence. I tried to look at it in balance with the other correspondence I had. YouGov polling estimates that over 400,000 lesbian, gay and bisexual people a year experience homophobic insults, abuse and harassment. Furthermore, 77% of victims of homophobic crimes and incidents do not report them to the police because they have no confidence that the police will or can do anything. I question whether it is right to take tools away from the police which they could use properly to address these sorts of hate crimes and what message that will send. We need a proper debate on whether the existing law is the right approach. It has to be done on an evidential basis, which is why I find it totally unacceptable that the Government apparently have evidence which they are not bringing forward.

We have heard examples of disproportionate and ridiculous use of the legislation, but there are also examples of its proportionate use. I have been sent these by Stonewall. I am not normally shy and retiring or very modest in my approach, but I am loath to read out the insults and the behaviour that was hurled at a Mr Braithewaite, when he intervened for a fellow passenger on his train, Heather Williams, who had been accosted by a third passenger—the defendant—for being transsexual. The language that was used and the behaviour towards them led to a prosecution and a successful conviction under Section 5 of the Public Order Act. I do not believe anybody in this House would want to tolerate or allow that kind of behaviour to go unpunished.

If there are to be changes in the law, there should be a full examination of the evidence. We want to ensure that people like that are properly punished for their crimes. The letter today from the Director of Public Prosecutions should be fully considered in the light of what he has to say, and the Government’s response to their consultation.