Independent Inquiry into Child Sexual Abuse
Lord Beecham Excerpts(6 years ago)
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Lord Beecham
To ask Her Majesty’s Government when they intend to provide a formal response to the Interim Report of the Independent Inquiry into Child Sexual Abuse, published on 25 April.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, the Government welcome the inquiry’s interim report and appreciate the work that has gone into it. We are carefully considering all its recommendations and will publish our response shortly.
Lord Beecham (Lab)
My Lords, eight years ago, Gordon Brown issued an apology for the mistreatment of migrant children sent to Australia and other parts of the Commonwealth between 1945 and the early 1970s, many of whom suffered serious physical, sexual and emotional abuse. The Independent Inquiry into Child Sexual Abuse published its report last March calling for redress within 12 months. Australia established a scheme within six months. In July, the Minister for Mental Health and Inequalities promised a response before the Summer Recess. None has been published. How long will it take this Government to accord justice to the many victims of such shocking mistreatment?
Baroness Williams of Trafford
It is important to point out that IICSA’s central role is to inquire into a number of institutions rather than people, and that includes the Home Office, the DfE and the Department of Health and Social Care.
Lord Beecham
My Lords, have the Government made any assessment of the process in Australia, where, as I said, matters have been resolved within six months? If so, what lessons have they learned from that?
Baroness Williams of Trafford
The noble Lord is right that many of the children who went to Australia were apologised to by the Australian Government, and indeed the Australian Government issued compensation to some—I do not know whether it was all—of those involved. Certainly, we will consider all those things in the round when we respond to the inquiry review.
Asylum Seekers
Lord Beecham Excerpts(6 years, 7 months ago)
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Lord Beecham
To ask Her Majesty’s Government what measures are in place to ensure the safety and well-being of asylum seekers during periods of detention in the prison system and during their removal from the United Kingdom.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, the dignity and welfare of those in our care is of the utmost importance and we accept only the highest standards from those who manage the detention estate. Detention and removal are essential parts of effective immigration controls and it is vital that they are carried out with dignity and respect. We are working with our new escorting contractor, Mitie Care and Custody, to ensure that appropriate focus is placed on welfare considerations during removal from the UK.
Lord Beecham (Lab)
My Lords, this Question is prompted by a report from Her Majesty’s Chief Inspector of Prisons, which related that there were 80 staff members on a flight organised by a subsidiary of Capita in which 23 asylum prisoners were being deported, 22 of whom were placed in waist restraints that were neither necessary, proportionate nor reasonable, in the inspector’s view. Bad language was used and the only female detainee was forced to use the toilet with the door open. How many more cases of mistreatment of prisoners and asylum seekers by the private companies engaged by the Ministry of Justice and the Home Office to run our prison and asylum services will Her Majesty’s Government tolerate before terminating their contracts and taking the service back in-house?
Baroness Williams of Trafford
My Lords, I stress that the Government do not have a dogmatic approach to contractors where private is bad and public, or in-house, is good. It is important that the companies that we contract with meet the standards that we set when we engage them. A service improvement plan will be issued shortly. All escorts are fully trained in HOMES techniques—that is, the Home Office Manual for Escorting Safely—and they undertake regular refresher training courses. For the new contractor, which started on 1 May, we will revisit some of the assessment processes and the use of de-escalation techniques.
Money Laundering
Lord Beecham Excerpts(6 years, 9 months ago)
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Baroness Williams of Trafford
I am sure the noble Baroness will understand that I will not talk about individuals, but I am sure she will also appreciate that we work with other countries to share intelligence, certainly through the Criminal Finances Act and the unexplained wealth orders. Through these institutions, we will make progress on bringing these people to book who are laundering and hiding their money in the UK.
Lord Beecham (Lab)
What do the Government propose to do about the role of the British Overseas Territories in this area? There has been a lot of controversy about the use of the facilities available there, both for UK residents and those of other countries, and the Government seem rather loath to intervene. Are they reviewing that situation?
Baroness Williams of Trafford
We made it clear during the passage of the Criminal Finances Act that we would certainly not intervene with legislation but would work with the overseas territories and the Crown dependencies to have a register of beneficial ownership with mutual and sometimes almost live-time access for law enforcement purposes.
Budget Statement
Lord Beecham Excerpts(7 years ago)
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Lord Beecham (Lab)
My Lords, I begin, as is customary, by referring to my interests as a Newcastle city councillor and vice-president of the Local Government Association, and on this occasion as a beneficiary of the Government’s largesse in relation to capital gains tax, inheritance tax and the treatment of higher-rate taxpayers.
It is just a few days more than seven years ago that the then Chancellor proclaimed:
“Britain is on course both to grow the economy and balance the books”.—[Official Report, Commons, 29/11/10; col. 530.]
The reality is that the economy is growing at a slower rate than that of our partners and competitors and we have missed the target for balancing the books—something that will not be achieved, it now appears, until the mid-2020s. Instead, we are experiencing the worst record on household incomes and productivity in living memory, with devastating effects on the lives of millions of people, in relation to their ability not only to provide adequately for their families but to have access to key public services and affordable housing and to make provision for their years of retirement.
Across a wide range of critical services from health and social care to education, policing, the shocking state of our prisons and the appallingly diminished access to justice, the fifth-richest economy in the world is failing to meet the needs of its people, wedded as this Government are to the failed dogma of privatisation and the minimisation of the role of the state—national and local—in furthering economic growth and social justice. Consider the news in the last few days, to which some of your Lordships have referred. On Friday we had a report of a growing crisis in the provision of care homes, where the Competition and Markets Authority seeks urgent action because the current regime is not sustainable, as councils are unable to pay to the providers of the service the extra cost of between £900 million and £1 billion—and rising—needed to ensure equity between self-funded and public-funded care. Or take yesterday’s news, which has again been referred to, of the resignation of the four remaining members of the Social Mobility Commission, including not only Alan Milburn but the highly respected Member of this House, the noble Baroness, Lady Shephard—without any real response from the Government to that event.
In the 50 years I have been privileged to serve as a local councillor, I have never known such unrelenting and damaging pressure on crucial local services—pressure which this Budget, like its predecessors in the last seven years, has failed adequately to address. Even now, when the Chancellor talks of building 300,000 homes a year he is looking seven or eight years into the future, as my noble friend Lady Blackstone pointed out. It is far from clear how many homes councils will be allowed to provide let alone, as I have mentioned several times in debates, what improvements in space and energy conservation standards will be applied—areas on which we lag behind most of Europe.
The Budget did, it is true, make some movement towards addressing the issue but only to the extent of inviting councils to bid for increases in the cap on housing revenue account borrowing by up to a total of £1 billion from 2019 to the end of 2022. At a conservative estimate of a cost of £100,000 per home, that would provide over four years a grand total of some 10,000 new homes. What on earth is the problem with allowing housing revenue accounts to borrow? That borrowing would be not for revenue expenditure but to provide assets with a value, diminished in that sense only by the Government’s fixation with requiring the right to buy at a discount. Laughably, the Government are apparently now proceeding with a regional pilot of right to buy for housing association tenants at a cost of £200 million.
Councils are facing a funding gap of £5.8 billion by 2019-20 and there is a current shortfall of £1.3 billion in adult social care. Astonishingly, no mention was made in the Budget of increased funding in this crucial area, as the right reverend Prelate the Bishop of Portsmouth pointed out. This is an area in which the previous spring Budget provided £2 billion over three years, as a one-off sum. There are real issues, moreover, in relation to the funding going to an overstretched NHS for capital funding for the so-called sustainability and transformation partnerships, where it is far from clear whether local councils are treated as genuine partners, no doubt as a result of the systemic problems facing the NHS.
Shockingly, the Budget makes no extra provision for children’s services, which in 2015-16 spent £605 million more than was budgeted in the face of growing needs to protect children at immediate risk of harm, with 90 children a day entering care last year. The shameful reliance on charities and food banks to provide for children in school holidays remains in place.
Another visible and shameful result of government policy has been the rise in homelessness and rough sleeping. The formation of a task force to investigate the problem is welcome but the £48 million allocated seems unlikely to make the impact required. Will councils, which have the responsibility to deal with housing and homelessness problems, be given the lead role in accessing funding to provide suitable accommodation—either directly or via private landlords—rather than the dreadful places to which so many of these vulnerable people are all too often directed? Lastly in relation to housing, while the LGA welcomes the announced change in housing benefit awards under housing benefit and universal credit, will the Government deal with the gap between discretionary housing payment funding of £185 million and the annual loss of £486 million associated with the benefit cap, £557 million from the bedroom tax and £3.7 billion by those paying rent above the local housing allowance?
I end by quoting one of my favourite poems, Shelley’s “Ozymandias”, in which the poet imagines the text on the remains of a statue of a long-dead king of Egypt. It read:
“My name is Ozymandias, King of Kings;
Look on my Works, ye Mighty, and despair!”.
The poet added:
“Nothing beside remains. Round the decay
Of that colossal Wreck, boundless and bare,
The lone and level sands stretch far away”.
A better epitaph for this Government’s seven and a half years in office could not be devised.
Syrian Refugees: Food Aid
Lord Beecham Excerpts(10 years ago)
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Lord Beecham
To ask Her Majesty’s Government what steps they are taking to relieve the suffering of Syrian refugees and the pressure on their host countries, in the light of the suspension of the United Nations food voucher programme for want of funding.
Lord Beecham (Lab)
My Lords, I beg leave to ask a Question of which I have given private notice.
The Parliamentary Under-Secretary of State, Department for International Development (Baroness Northover) (LD)
My Lords, the UK has committed more than £700 million in response to this catastrophe, of which more than £150 million has gone to the World Food Programme, funding food for refugees in Jordan, Lebanon, Turkey and Iraq and those in need inside Syria. We are in close contact with WFP, our other partners on the ground and other donors to assess what more should be done. The rest of the world needs to play its part both in terms of pledging money but also making good on its promises.
Lord Beecham
My Lords, I am sure we are all grateful to the Government for the resources that they have put in. However, 1.7 million refugees from the dreadful events in Syria are now threatened with starvation as a result of lack of funding for the World Food Programme’s support. In addition to the terrible hardship those innocent people face, it is surely unreasonable to expect Jordan, Lebanon and Turkey to assume total responsibility for them when they are already under immense pressure. Will Her Majesty’s Government press other nations in the region, notably the wealthy Gulf states, including Qatar, which is, after all, spending a fortune on preparing for the 2018 World Cup, to do much more to assist? Would it not also be in their own interests to do so rather than allowing ISIS and other extremists to exploit a possible tragedy for their own ends?
Baroness Northover
My Lords, the noble Lord is quite right about the fragility of the countries around Syria—not least, of course, Iraq and what is happening there. Just to reassure him slightly, the World Food Programme has fully suspended only in Lebanon, although that is enough of a challenge. As regards the other countries, in Turkey, Iraq and Jordan at the moment it is proposed that vouchers should be reduced, but the full suspension is happening only in Lebanon. The noble Lord is quite right that we need to engage internationally and I can assure him that we have been extremely active in that regard, not least in the Gulf. He will know that the United Kingdom helped to bring forward $1 billion at the various international gatherings that took place last year and this year brought forward $3.3 billion. We now need to make sure that the pledges that were made are delivered.
Crime and Courts Bill [HL]
Lord Beecham Excerpts(12 years, 5 months ago)
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Lord Ponsonby of Shulbrede
My Lords, I support my noble friend Lord Touhig in the detail of what he is proposing. I agree that when costs are added they should be means-tested as were the original fines when they were put in place.
I want to raise a separate issue which I raised also at Second Reading, and this is probably the best amendment with which to do so. When magistrates impose new fines, they very often do not know the level of the outstanding fines. It is not unusual for a magistrates’ court to go through hundreds of cases in a day when they are dealing with small matters and to put on hundreds of fines. They will never know, in my experience, what the level of outstanding fines is. This is clearly unsatisfactory because it can, and in many cases does, force people into an unstable financial situation. If the courts had known the level of the outstanding fines, they might have looked at other sentencing alternatives which were more appropriate for the person who is unable to pay their fines.
I have raised this issue with colleagues who are magistrates. It is feared that, if this provision were made mandatory, the administrative procedures would be brought to their knees because, as I said, literally hundreds of fines can go through in a single sitting. The administrative system should be set up so that magistrates and judges can get information on the level of outstanding fines in reasonable time before they go ahead and sentence. As I said, this is a slightly different matter from the burden of the amendment, but it goes to the heart of practicality of imposing fines.
Lord Beecham
My Lords, in speaking to my noble friend’s amendment, I shall deal also with my opposition to the question that the clause stand part. Before I do so, I am sure that your Lordships would wish to join me in extending to the noble and learned Lord, Lord Mackay of Clashfern, who is not in his place today, congratulations on his 85th birthday. It would be good to see that in the record of the House.
I support the amendment moved by my noble friend Lord Touhig and have little to add to it, save that the Minister will have received a letter from Mr Paul Nicolson of the Zacchaeus Trust which was sent to my noble friend and copied to a number of your Lordships. It illustrates the nature of the problem that my noble friend has addressed, but with particular reference to the outsourcing of the collections enforcements system under Clause 20(2). This proposes an amendment to the Magistrates’ Courts Act which prescribes that:
“All functions of fines officers may be contracted-out”;
my opposition to stand part refers to this.
Mr Nicolson’s letter sets out a case for doing that. The amendment went down before I had heard from him, so we were of a like mind without knowing it at the time. One of the concerns that he expresses—which has been touched on by my noble friend—is that the cost of enforcement is likely to rise significantly to the extent that it is contracted out: courts officers do not, of course, charge the same amounts as bailiffs. The Minister will have seen from Mr Nicolson’s calculations that whereas court costs and a fine officer might add £135 to a fine of around £200, where bailiffs are involved, that figure could rise very substantially indeed because they charge a great deal more. I will be moving an amendment in relation to bailiffs a little later.
The letter suggests that the privatisation, if you will, of enforcement is likely to aggravate the problem. It says that contrary to the Government’s view—and I do not know if the Minister will be able to comment on this—
“fines officers do make judicial decisions”.
If they were privatised, that would be effectively privatising an element of judicial discretion. The letter goes on to say that, at present:
“The magistrates will set the level of the fine and then issue a collection order. It is then the fines officers’ duty to collect the fine. They decide: a) the weekly/monthly level of payment; b) whether it should be changed if there has been a change of circumstances; c) to send out bailiffs to defaulters”,
and, importantly,
“d) whether to send the case to the magistrates for reconsideration”,
if it is found that the defaulter is vulnerable or the fine is disproportionate and should be reconsidered.
Mr Nicolson supposes that the Government will argue that these are purely administrative tasks; I do not know whether the Minister will be advancing that argument. However, from his point of view, and I guess that of the Zacchaeus Trust, these are effectively part of the judicial functions of the court and should not be privatised, with all the additional costs to defaulters that that would involve.
I therefore support the amendment. My opposition to clause stand part is designed to invite the Government to explain the rationale for further contracting-out of this function, how it might operate, and to what extent it is expected that this service will be privatised and at what cost to the public purse and to debtors. I hope that the Government will perhaps reconsider this. We may otherwise have to revert to it at Report. It seems a step too far in terms both of the burdens it will impose, and of the principle of contracting out a significant role like this beyond the court system.
Lord Beecham
“75B Minimum size of charging order
The Secretary of State shall by regulation prescribe the minimum amount above which a charging order may be granted in respect of a judgment debt, which shall be laid before, and approved by a resolution of, each House of Parliament.”
Lord Beecham
This is a probing amendment dealing with the question of charging orders. Creditors may seek to obtain a charging order against the assets of a judgment debtor, including his or her home, and that can lead to an order for sale. In 2009-10, 566 such orders were obtained.
The Government have been consulting on a proposal to impose a financial threshold below which such action could not be taken in respect of unsecured debts, particularly in relation to consumer credit cases, where the debtor is in fact already paying a premium for the loan through higher interest rates affecting the risk to the creditor.
The whole process began with a report from Citizens Advice in 2009 called Out Of Order, which recommended just such a threshold and which led to the previous Government publishing a consultation paper in February 2010. That was followed in March 2010 by an OFT publication entitled Irresponsible Lending Guidance—in itself an admission of the seriousness of the problem. The key guidance called on creditors to make it clear that charging orders might be obtained which could lead to the sale of the property charged and therefore to the loss of the home at the time of the entry into the consumer credit agreement. It also, significantly, warned creditors not to harass or threaten debtors with the loss of the home if they did not in fact intend to enforce such an order. This, of course, underlines the fact that the problem is not just a financial one, but also encompasses the anxiety and stress caused to debtors and their families. As the evidence base for the recent consultation points out:
“In considering whether to make an order for sale, the court will balance, against the rights of the creditor to recover the debt, the rights of the debtor and his/her family in respect of the family home under Article 8 of the European Convention on Human Right … in all cases judicial discretion will be exercised”.
While the latter point is true, it is unlikely to assuage debtors’ fears of losing the family home pending a hearing and a judicial determination.
At present, the information about the number of relevant cases is limited. It would be reasonable to infer that in the past two years numbers will have risen in light of the recession—the “Breadline Britain” so poignantly portrayed in the recent Guardian series. However, the figures rely on monthly returns from individual county courts, so again in the words of the evidence base, there is “scope for collection error” in the statistics, both as to the total numbers and whether they are ultimately enforced. There is still less information about the cost to the public purse of the consequences of people losing their homes—for example, through re-housing, temporary accommodation and children being taken into care.
Given the move to a single county court, will the Government consider establishing a more robust system for tracking the data and costing the outcomes, so that policymakers, and indeed the public, are given a clearer view of the dimension of the problems? The coalition agreement pledged action to deal with this problem and at page 12 of the Government’s programme for government promised, among other things, that they would,
“ban orders for sale on unsecured debts of less than £25,000”.
Unsurprisingly, the credit industry opposed the principle of a threshold, both when the idea was first floated in 2009-10 and during the recent consultation. In the event, it appears that the Government have substantially backtracked and have announced an intention to apply a threshold of only £1,000, so that charging orders and the threat of losing one’s home will remain for debts of that very modest amount or above. This is surely a major breach of the pledge in the coalition agreement. By definition, it threatens homeowners, not people in social housing or in receipt of housing benefit whom the Prime Minister and other Ministers, regretfully, are too often at pains to vilify. It is another example of a policy that will hit the working poor hard, just as some of the other changes will hit this group as hard or harder than the very small minority who abuse the system.
The Government have pointed out that creditors who are thwarted under a threshold scheme might resort to bankruptcy proceedings. I suppose that risk exists. If they did, however, at least they would not rank above other creditors who had not priced for the risk in the first place by charging a premium for the credit.
I hope that the Government will reconsider the level of the threshold. This amendment does not seek to prescribe a particular level, but rather to establish the principle and a requirement for parliamentary approval of any regulation establishing such a level. That is what the Delegated Powers Committee recommended in its second report; an affirmative resolution procedure for the establishment or alteration of a threshold level. It is clearly necessary for the threshold to be realistic and proportionate, and £1,000 patently does not meet those criteria. It would be interesting to learn from the Minister—perhaps not today because this is not, after all, her departmental concern—the rationale behind the Government’s abandonment of its pledge in the coalition agreement and its reduction of the threshold from £25,000 to the nugatory figure of £1,000. I beg to move.
Baroness Northover
My Lords, I thank the noble Lord, Lord Beecham, for bringing to the Committee’s attention the issue of charging orders. The power to prescribe the minimum amount above which a charging order may be imposed already exists, although it has not yet been implemented. That power is enshrined in Section 94 of the Tribunals, Courts and Enforcement Act 2007, which gives the Lord Chancellor the power to make regulations to provide that a charging order may not be made to secure a sum of money below a certain amount. While differently expressed from the noble Lord’s amendment, it will achieve the same end.
It should also be borne in mind that a charging order is only a means of securing a sum of money ordered to be paid under judgment and that it requires an order for sale of the charged property for ultimate enforcement. Section 94 of the 2007 Act includes a second power for the Lord Chancellor to provide that an order for sale may not be made to enforce payment of a sum below a certain amount.
Lord Beecham
My Lords, I am grateful to the Minister for her reply. She has certainly supplied some information, but I am afraid she has far from convinced me that the Government’s stance is correct. The effect of this failure to set a minimum threshold is to put homeowners in a particularly invidious position. By definition, it is only they whose homes are threatened if they are in debt. As I say, it stems from a consumer credit arrangement that already insures the creditor because they charge more for credit. Effectively, they are getting two bites of the cherry; they receive more for the credit facility and will have the opportunity to take these proceedings. Of course, judicial discretion exists, but as I have already indicated, it will leave people in considerable fear of losing their homes, pending an outcome. That is deeply unsatisfactory.
The noble Baroness has referred to evidence that was received. Obviously the consumer credit industry would be opposed to the imposition of a threshold which should apply both to the charging order and to sale, but it would be interesting to know what other groups were against it.
For the moment, I am prepared to withdraw the amendment, but it is something to which I think we shall be returning on Report.
Lord Beecham
“36B Regulatory system for bailiffs
The Secretary of State shall establish a new regulatory system for bailiffs.”
Lord Beecham
My Lords, I am engaged in a series of probing exercises today. Not being a dentist, it is not a familiar role. This amendment deals with the thorny question of bailiffs. Again, this is an area of law on which the Government have been engaged in consultation with a view to strengthening the system of debt collection and debt enforcement. They have come up with some proposals, but rather than deferring action until the next Session of Parliament, I would urge them to take the opportunity to bring forward those proposals for inclusion in this Bill. We will, after all, still be in Committee when the House returns after the summer Recess. If it were delayed beyond then, there may well not be time in this Session of Parliament to deal with this issue. Admittedly, the consultation has only just ended—I think it ended last month—but I suggest that it is not beyond the Government’s capacity to seek to deal with it by an addition to this Bill after the summer.
There has long been concern about the law covering debt enforcement by bailiffs, whether under county court judgments, under a warrant for execution or under the magistrates’ court, to collect fines, council tax arrears, compensation or maintenance in family cases, when acting on a distress warrant or liability order. In the High Court, High Court enforcement officers are employed to enforce writs of execution. The whole area is, in the Government’s view, “complex, unclear and confusing”, with a history stretching back centuries and sometimes with language to match. It is understandable that, as the Ministry of Justice stated in its consultation paper of February 2012:
“This confusion can result in bailiffs and enforcement officers misrepresenting their … authority”.
I must stress that the concern is not, essentially, over the actions of employees of the courts but over private bailiffs. There are unfortunately many cases in which bailiffs have acted in unacceptable ways and beyond their powers, and there is widespread concern about their charges, which the debtor must meet. I cite one example, which was quoted by the Zacchaeus 2000 Trust—again, chaired by the Reverend Paul Nicolson—in its briefing on what was the LASPO Bill. It cited the case of a firm of bailiffs that, without going through the necessary procedure, seized goods from a single mother with an 11 month-old baby and another young child. She was on benefits and suffered mental health problems. She owed £2,365—a substantial amount. The goods seized included a kettle and a toaster. The firm said that it was permissible to seize the kettle and toaster because the mother had a pot and a cooker.
There are worse cases than that. Last September, a bailiff called on a pregnant woman, saying that she owed £58 in council tax. She had received no communication about this. When she asked the bailiff to hold on while she got dressed and moved to close the door, the bailiff kicked the door in, injuring her leg and hip. When the police were notified and sought information from the bailiff’s firm, they were denied on the rather spurious grounds of data protection. There was another case in Wales in which a bailiff obtained a walking possession illegally, harassed a woman in the street in front of her friends and contacted her through a social networking website. As a final example, in south-east England a 19 year-old woman failed to pay a £118 fine for improper use of a child’s train ticket and, although she requested a payment plan, was visited by a bailiff who threatened to seize her mother’s goods—not her’s but her mother’s—if the bailiffs were not paid £418. He abused the young woman’s mother, threatened to remove her car and said that he could take anything in the house and break the door down to do it.
These are matters of great concern and, in fairness to the Government, they have acknowledged that there needs to be considerable improvement in the whole system. The previous Government sought to address some of these issues in the Tribunals, Courts and Enforcement Act 2007, which was designed, inter alia, to improve the regulation and practices of bailiffs and change the way that debt collection and enforcement is carried out. Part 3 of that Act, which has yet to be implemented, would introduce a complete code setting out the bailiffs’ power of entry onto premises, what goods can be seized and sold, what fees can be charged and the whole process from the serving of notice to the distribution of sale proceeds.
One aspect of Part 3 of the 2007 Act would create a proper system for the independent regulation of bailiffs, which is at present sadly lacking. There is no nationally recognised qualification or standard of competence for bailiffs, who can merely be certificated by the county court in relation to certain types of debt enforcement, including road traffic debts, council tax and non-domestic rates. In addition, they need to be certificated to distrain for rent—although Part 3 of the 2007 Act, if and when it is implemented, would also limit that to cases of commercial properties and rents, rather than domestic rents.
The previous Government made some initial moves to improve matters by setting up an online register of certificated bailiffs—so that debtors could check whether the bailiffs were in fact recognised to that extent—a Criminal Records Bureau check for would-be bailiffs when applying for certification and some minimum training requirements. The present Government took matters forward in January, and I welcome that, by setting out the National Standards for Enforcement Agents to be adopted by councils and other authorities for use by those working for them. This is a voluntary code and requires, for example, that bailiffs refrain from using threatening behaviour or unlawful force to gain access to premises, or from discussing a debt with anyone except the debtor. They have to withdraw if only a child is present on gaining entry and have a duty of care to elderly, disabled or vulnerable people. So far as they go, those are useful measures and, to their credit, the Government seek to enshrine these principles and other measures in law, and to reply to the consultation that concluded in October.
However, it is critically important that the new regime includes rigorous criteria for the independent accreditation of bailiffs, backed by an effective regulatory regime with regular monitoring and an accessible complaints system. The courts and other statutory bodies must have a special responsibility both for staff they directly employ on enforcement and those with whom they contract. In my view, the Government are moving in the right direction but need to act to carry out the intentions of the 2007 Act and take them further, so that we can avoid the disgraceful behaviour of what are no doubt a minority of bailiffs, who were exemplified in the cases to which I have referred. I again urge the Government to clarify today what they have in mind, if they can, but certainly, if at all possible, to go beyond simply replying to the consultation in October by bringing forward amendments to this Bill so that the matter can be dealt with as part of this legislation and concluded in this Session. I beg to move.
Baroness Northover
My Lords, I am grateful to the noble Lord, Lord Beecham, for explaining his thinking behind this amendment. He described what are, indeed, horrendous accounts. There have been debates over many years about this problem. Let me start by saying that we understand the concerns about bailiffs. The Government have given a commitment to providing more protection against aggressive bailiffs and are working to this end. I thank the noble Lord for his welcome for the progress that we have been making.
In January, the Government announced the updating of the National Standards for Enforcement Agents, with a view to defining acceptable behaviour for bailiffs. This was the first step in the Government’s plans to change the way that bailiffs are regulated and to make sure that they operate fairly to all concerned. Then, in February, we launched a public consultation which set out how we plan to provide more protection against aggressive bailiffs while still enabling effective enforcement. The package of proposals seeks to restore balance to the system; to improve clarity so that both debtors and creditors know where they stand; to strengthen protections for the vulnerable; and to ensure that individuals, business and government are able to collect the debts that they are owed.
Our aim is to respect the competing rights of both the creditor and the debtor. Unless there is prompt and effective enforcement, the authority of the courts and public confidence in the justice system are undermined. Creditors are entitled to collect what they are owed, while debtors should be protected from the kind of oppressive pursuit of their debt that the noble Lord has just described. This consultation set out a number of specific proposals, which, among other things, seek to: set out to whom and under what circumstances reasonable force to enter premises will be available; set out when and how a bailiff can enter a property; create minimum entry standards and certification processes to ensure bailiffs are fit to operate; prohibit the use of force against a person, with additional safeguards to protect children; make clear which items an enforcement agent may not take from someone’s home; make clear what fees bailiffs can charge for the range of debts that they collect for local government, courts and businesses; and remodel and clarify the complaints process available to the debtor. I hope that all of those proposals would address the noble Lord’s points.
The consultation, as the noble Lord, Lord Beecham, acknowledges, closed only recently on 14 May and we are now carefully considering the responses, with a view to publishing our response in the autumn. This has therefore been a timely debate and we will certainly take account of the noble Lord’s views. I will make sure that what he has just said is fed into the MoJ.
Like the noble Lord, the Government are clear that aggressive bailiff activity is unacceptable. We are committed to bringing forward effective proposals in due course to protect the public and ensure that bailiff activity is proportionate. I hope that, with those assurances, and having had the opportunity to raise this important issue, which we fully recognise, the noble Lord will be prepared to withdraw his amendment and await the Government’s proposals later in the year.
Lord Beecham
I thank the Minister for her very full reply. I am certainly prepared to withdraw the amendment. Can she give me an indication as to whether the Government will at least consider using the Bill as a vehicle for the welcome changes that she suggests will follow? I would have thought it feasible to do that, given that we will not have completed Committee by the time we return. When we return, we will have further work to do on the Bill as it stands and since there is likely to be very broad support across the House for the changes that she proposes, it would not be too difficult to add these matters to the Bill. I do not ask for a firm commitment but for an indication that the Government will at least consider doing that.
Baroness Northover
As an extremely junior member of the Government, that would be going way beyond what I am allowed to do, but the important thing is not to pre-empt consideration of the consultation. The noble Lord may assume as to what may emerge from people’s responses to that consultation, but it is appropriate for Government to give due consideration to what comes in, and we will make proposals in due course.
Lord Beecham
“(1A) Before issuing any order under subsection (1), the Lord Chancellor shall first report to Parliament that the following principles have been adhered to in any decisions made under subsection (1)—
(a) the protection of witnesses, victims, defendants, parties and jurors, who shall under no circumstances be recorded;(b) the promotion and proper administration of justice;and filming shall not be permitted if it would cause undue prejudice to any person involved in the proceedings.”
Lord Beecham
We now come to debate the broadcasting of court proceedings. This has already taken place in respect of certain proceedings of the Supreme Court. There is a suggestion in the Bill that this should be significantly widened. My amendments support the principle, but set out guidelines as to the way in which change might be made and also take into account—implicitly, I have to say, rather than explicitly—the recommendation of the Delegated Powers Committee that any changes should be made by regulation; again to be approved by parliamentary vote.
Amendment 147ZC proposes that in making an order as to which categories of case might be broadcast and when that might happen, the Lord Chancellor should apply principles that should be first reported to Parliament. The basic principle is surely that broadcasting of court proceedings is for the purposes not of entertainment but of promoting understanding of the judicial system and thereby reinforcing public confidence in it. It is not by any means to be a YouTube of incidents, as opposed to proper, sensible coverage of an important area of public life, the justice system.
Amendment 147ZC requires the Lord Chancellor, in making any order extending categories of broadcasting, to confirm that principles have been adhered to, including, most essentially, the protection of witnesses, victims, defendants, parties and jurors, who shall under no circumstances be recorded; the promotion and proper administration of justice; and that filming should not be permitted if it would cause undue prejudice to any person involved in the proceedings. That is a fairly straightforward provision designed to protect the integrity of the system.
The decision in an individual case should, of course, be a matter for the judge. There may well be cases in which the judge decides that it is not appropriate, in all the circumstances, to take advantage of the permission to allow broadcasting that the Bill, if enacted, would confer. Amendment 147B simply says that, in making a direction that broadcasting should be permitted, the court or tribunal should have regard to the principles that I have adumbrated, which would, if the amendment is accepted, apply to the Lord Chancellor in widening the range of potential broadcasts in the first place.
Clearly there are legitimate concerns about the extent to which broadcasting might impinge on people’s positions, particularly parties to the case. I do not think that the Government envisage extending coverage to the whole process of trials, rather to particular aspects. Some of these are mentioned in other amendments, in particular sentencing, remarks on sentencing, and perhaps arguments by a counsel. Such matters should be dealt with properly by regulation, taking into account the factors mentioned in Amendment 147A.
I hope that the Government will respond positively to these suggestions and I look forward very much to hearing the views of other noble Lords who have tabled amendments. This is an area of considerable public interest and concern. There is a way forward, the Government are on the right lines, and with some safeguards we would be prepared to support the principle of extension. The question, of course, is where one draws the line and that is a matter which we will no doubt be debating this evening and further on Report. I beg to move.
Baroness Hamwee
Amendment 147A is in my name and that of my noble friend Lord Thomas of Gresford. I do not take issue with the principles set out in Amendment 147ZC, moved by the noble Lord, Lord Beecham, except that I question the term, “undue prejudice”. I wonder whether filming should be permitted if it might cause any prejudice, but that is a minor point.
I am pleased to see the government amendment providing for the affirmative procedure; it will give us the opportunity to debate the extension of the subjects that can be broadcast. I have no doubt with my amendments that the Government intend to see how it goes, limiting the items as they have described. The two paragraphs listed in our amendment may look less than the Government had proposed for the initial—experiment is perhaps too loaded a term—experience of filming, recording and broadcast, but my noble friend Lord Thomas corrected my drafting and said that the term “judgments” covered everything that was needed in the first paragraph. However, this development seems to me to be so significant that I am not convinced that it should not be stated in the Bill and that any extension of it should not be the subject of primary legislation.
I agree with those who predict pressure from the broadcasters for an extension so that there is livelier material for the 6.30 news and so on. Even “Today in Parliament”, admirable though it is, chooses the livelier and racier exchanges, and that is entirely understandable—it seeks to balance those with the important items that get discussed in both Houses, and it has half an hour to do so. When one is looking for a clip of only a few seconds, one is bound to want something that will grab the audience’s attention. Of course, a wider understanding of the justice system must be a good thing. I do not want to sound too paternalistic, but there must be a danger that an extension that popularises and simplifies would lead to a loss of subtlety and complexity. The noble Baroness, Lady Kennedy of The Shaws—who has far more experience of the courts than I do—spoke powerfully about this at Second Reading.
At Second Reading I mentioned the issue of counsel playing to the gallery. It occurs to me that others may do so as well. The experience of the riots last summer, and what came out regarding the behaviour of some of those who were charged and what was prompting them, has made me wonder whether people in that situation might themselves seek to use proceedings that were broadcast in order to continue the political statements that they were making. The Government always say that we must beware of the lack of legislative opportunities but, as we generally get a criminal justice Bill each year, that does not necessarily seem to be the best argument.
When we have secondary legislation—I acknowledge that there have been improvements in the reporting by departments of consultation that has taken place before secondary legislation comes before your Lordships—it is likely that there will be a variety of views on the details of the extension and the parts of court proceedings that would be covered. These will be difficult to deal with because of the inability to amend secondary legislation. My general point is that this is so important a step that it should require the closest consideration.
As ever, when one looks at one’s own drafting immediately before standing up to speak to an amendment, one sees the faults in it. I should perhaps have included the word “only” after the phrase,
“an order may be made”,
but this is Committee so I hope that your Lordships will not hold that against me. I do not regard approval of the very limited recording that is currently proposed as amounting to approval in principle for recording and filming in court to such an extent as to avoid the need for the consideration, on the basis of primary legislation, of an extension to this.
Lord Beecham
My Lords, I reiterate that the Opposition support the thrust of the Government’s policy. We are glad that the Government have accepted the recommendation of the Delegated Powers Committee about requiring the affirmative procedure. We share the Government’s view that it is important to develop understanding of the judicial process and to promote public confidence in the justice system to which, in our view, their proposals would contribute.
The Minister referred to a triple lock. There is, in fact, a quadruple lock because, as she said in the latter part of her reply, the judge or tribunal can determine what can be shown on the occasion of the trial. That is fundamentally important. We all agree with the horror expressed by the noble Lord, Lord Thomas of Gresford, at the prospect of anything like the Norwegian experience being replicated in our courts. It is clear that that would not happen under these proposals. However, I hope I will not be accused of scandalising the judiciary if I point out that it is not necessarily just the parties to a case that might play to the camera. There was a Judge Pickles—I do not think he was related to the Secretary of State of the same name—who acquired a certain reputation for playing not to the camera but to the media during his judicial career and, emphatically, afterwards. I do not think any of our present judges would follow that course. I am sure they would resist the temptation to do so.
Lord Thomas of Gresford
I hope that we do not get to the American situation where lawyers come out on to the steps of the court and make submissions about the way the case is going and so on. That is something that the profession should stop. I do not know that it is necessarily a matter for the Government.
Lord Beecham
I entirely agree with the noble Lord but, as the noble Lord, Lord Pannick, pointed out, the profession would be in a position to stop that at both levels. It would clearly be very undesirable for that to happen. It is clearly also incumbent on the media to behave responsibly, but we expect that of the media and all too often find them wanting in that respect. However, I think the framework here would be adequate to deal with that situation.
I am caught between two views of Amendment 147ZC. The noble Baroness, Lady Hamwee, would prefer that the word “undue” was removed so that the amendment would read,
“filming shall not be permitted if it would cause prejudice to any person involved in the proceedings”.
The noble Lord, Lord Pannick, would prefer all reference to prejudice to go. That suggests that perhaps my formulation is better balanced than either of the other propositions. Fundamentally, how far to permit broadcasting will be a decision for the judge taking into account the interests of all parties present. We have to have confidence that the judiciary will discharge that duty.
It seems to me that there ought to be some guidelines on the way that this is approached, perhaps embodied with the wording of the amendment or something of an improvement upon it. Perhaps the Government would wish to consider that matter when we come to Report. In the mean time, I think there is broad support for these proposals, which we welcome, and I beg leave to withdraw the amendment.
Lord Carswell
My Lords, as your Lordships are aware, I was for some 20 years a judge in Northern Ireland. In that capacity, I had the function on many occasions of conducting criminal trials without a jury of very serious terrorist offences. It was a very responsible and difficult job and, in that capacity, I was scandalised more than once. I do not know whether that is a declaration of interest, but it certainly explains what I am about to say to your Lordships.
I did not consider for a moment instigating a prosecution or suggesting to the Attorney-General—who was not the noble and learned Lord, Lord Goldsmith, but a predecessor—that a prosecution should be bought. There were deeply scandalous assertions in a certain newspaper that I had come to the conclusions I had reached in criminal trials on the instructions of the Government, more or less, without saying it, as their cat’s paw. I was deeply offended and I deeply resented it. I was scandalised, but not for one moment would I have considered asking the Attorney-General whether he would consider bringing contempt proceedings—or, rather, a scandalising prosecution.
My reason is very simple: judges have to be able to take these things. There may be a point beyond which they should not have to lie down and put up with the slings and arrows, but there are other ways of dealing with it than this offence. That is the reason it has fallen into desuetude: it is not necessary in modern conditions; not necessary for a sophisticated society; and not necessary for judges who have to have the hardihood to put up with comments which sometimes may be unfair, badly based and just plain vulgar rudeness. However, that is part of what they have to do: they have to shrug their shoulders and get on with it. It is for that reason that, although I was very cross at the time about it, I certainly did not invoke the criminal law. I support the amendment.
Lord Beecham
We are addressing these issues in wonderfully archaic language. The “scandalisation” of judges; the “murmuring” of judges in Scotland, which puts me in mind of the murmuration of starlings—it is, apparently, the collective noun for starlings—and here we are in this High Court of Parliament considering this arcane offence.
Like the noble and learned Lord, Lord Goldsmith, I deprecate the tendency of politicians of all political colours and Ministers of different Governments publicly to criticise judges when decisions have gone against them. I also deprecate the tendency of the tabloid press in particular to denounce the judiciary for perceived leniency, or whatever it might be, from time to time. However, as other Members of the Committee have made clear, that does not justify applying a criminal offence and criminal sanctions to those who are critical, rightly or wrongly, of what the judiciary has done.
Scandalising the judiciary has not always been the province of politicians or the media. One of the most frequent scandalisers of the judiciary was that eminent Conservative lawyer and Lord Chancellor, Lord Birkenhead, known as FE Smith. He frequently clashed with judges. On one occasion the judge, in an irritated spasm, inquired, “Mr Smith, what do you think I am here for?”, to which he replied, “My Lord, it is not for me to question the inscrutable workings of providence”. That came as near as anything to scandalising that particular judge. I do not think it was Mr Justice Darling, whose reputation has been adequately canvassed tonight.
We certainly support this amendment. It is clearly timely to dispose of the revival of a procedure that is quite antiquated and unnecessary. I hope that the Government will accept the amendment.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, every so often this House produces a little nugget of a debate that is extremely important and that will bear further reading and study. I am grateful to all noble Lords for their contributions, and to the noble Lord, Lord Beecham, for his murmuring of starlings.
Lord McNally
Murmuration. We learn something new every day in this House. I also thank him for another good FE Smith story.
The noble Lord, Lord Pannick, introduced the amendment with his usual eloquence and well-structured argument, marred only by a terrible joke about Fifty Shades of Grey, but at least yet another book was plugged in this debate. We have all been rushing to eBay to get the remaining copies of Borrie on defamation, which will be worth getting; and of course Peter Hain’s memoirs, as has been rightly pointed out, have been given far greater coverage than I recall their getting when they were published.
Nevertheless, what has been discussed is extremely important. I very much welcome the contribution of the noble and learned Lord, Lord Carswell. As a judge in Northern Ireland, he and his fellow judges were so important in upholding the rule of law in the most difficult of circumstances, and in so doing he not only has our admiration but we are all in his debt for his courage and consistency. For him to say that he thought that the law was not necessary weighs heavily in making any judgment. I also share the views of the noble and learned Lord, Lord Goldsmith, and the noble Lord, Lord Beecham, about getting the balance right between politicians and judges.
I understand what the Prime Minister meant when he spoke in the other place about there always being a little bit of rough and tumble between the two in the modern age. I think I have said at the Dispatch Box that a little bit of dynamic tension between politicians and the judiciary in a democracy does not go amiss. The warning from the noble and learned Lord, Lord Goldsmith, is correct, and he will not be surprised to know that the present Lord Chancellor—I cannot speak for the present Attorney-General or the Solicitor-General—has not been slow to remind exasperated Ministers that it does not help to start opining on this. The balance of contributions was right that it will happen occasionally, but if it became too much of a free-for-all it would genuinely undermine public confidence in the judiciary and in the workings of our legal system. The warnings are well made.
Criminal Justice and Police Act 2001 (Amendment) Order 2012
Lord Beecham Excerpts(12 years, 7 months ago)
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Baroness Doocey
My Lords, I support this order and I am very pleased that cycling is included. On more than one occasion, I have seen people cycling in the park in a very irresponsible manner, which can have devastating effects. However, I should like to mention parks and dogs. I love both and am in the wonderful position of living in an area where I can use Bushy Park and Richmond Park.
It never ceases to amaze me how people who are completely and utterly responsible about their dogs and would not dream of not cleaning up after them in the street will take a very different view in a park. They also take different views between different parks. Bushy Park is a wild park which does not have manicured lawns in most places. It always surprises me that totally responsible people will say, “Oh, it doesn’t matter here because the deer are all over the park and what is the difference?”. But children play in parks and I am particularly concerned about the spreading of the parasitic disease toxocariasis. I know someone who suffered as a result of this disease, but its effects are not widely known.
I believe that everyone should be able to use our parks. We are very lucky to have such wonderful Royal Parks and open spaces. But enjoyment for children, animals and adults should not be ruined by the very small minority of people who just cannot be bothered to clean up after their animals. It is not the fault of the animals. It is the fault of the owners. Therefore, these orders are particularly welcome and I am very pleased that this behaviour will be subject to PNDs in the future.
Lord Beecham
My Lords, it is a privilege to be involved in such a momentous change to the country’s criminal law. I support entirely the Government’s objectives, particularly the observations made by the noble Baroness, Lady Doocey. She has referred to a matter which is of considerable risk to health and clearly cannot be tolerated. The Explanatory Notes refer to the fact that the impact of the order will be reviewed in 12 months. I assure the Minister that the Opposition will not press for such a review, unless Cabinet Ministers are seen to be depositing papers otherwise than in the litter bins in the Royal Parks, which would make a welcome change. It is hardly necessary to go to those bureaucratic lengths for such modest matters as these.
However, I wonder whether at some point the Government propose to review the general issue of fixed penalty notices outside the Royal Parks. There may well be other matters concerning the Royal Parks that might be raised. But there might be other issues that would be worth discussing with, for example, the Local Government Association, the national parks authorities and organisations of that kind to see whether there needs to be general updating of the system. As the Minister has made clear, this is a cost-effective way in which to deal with relatively low-level matters that nevertheless cause offence and inconvenience, and occasionally create risks to public health and safety. Having said that, we certainly support the order.
Baroness Northover
My Lords, I thank my noble friend Lady Doocey and the noble Lord, Lord Beecham, for their support. I agree absolutely with what my noble friend said about dogs fouling parks. From many years’ experience of small boys in particular playing in the parks where I lived, not just the foulness but also the important health risks involved in dogs fouling was of great concern. I welcome this support and note what the noble Lord, Lord Beecham, asked about whether this might be reviewed and applied to other areas. I will take that back, given that I have no pointer at the moment on what we might be thinking of doing.
Now, fortunately, I have some inspiration. We are currently developing a new framework for the use of out-of-court disposals, including PNDs, and revising the guidance for officers. That deals with reviewing the PND scheme more generally. The noble Lord pointed to other areas where it might be applied that were analogous to the situation of the Royal Parks. I will take back that question and let him know what we conclude. I hope that I have addressed the concerns of noble Lords, and that they will support the order.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Beecham Excerpts(12 years, 10 months ago)
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Lord Beecham
My Lords, it took the good Lord seven days to create heaven and earth and it has taken the noble Lord only a day longer in Committee to come up with something on which I can offer him the Opposition’s wholehearted congratulations. We are very pleased with the amendments, which cover two points: the alignment of the starting point of sentencing to cut across all the categories; and the inclusion of transgender people in the scope of the Bill.
Yesterday’s Guardian was a disturbing edition, showing that at the moment disabled people generally are being singled out for victimisation in society as a whole. I hope very much that the signal that today’s amendment gives will help to counter that disgraceful and worrying development. I congratulate the Minister again on bringing forward the amendments.
Lord McNally
My Lords, to respond to the noble Lord, Lord Ramsbotham, I cannot imagine that actions such as he described are not already covered by prison regulations, but I will examine that and write on the matter.
Lord Ponsonby of Shulbrede
The noble and learned Lord, Lord Woolf, is of course correct. Magistrates already give their reasons and say why it is so serious that only a custodial sentence will do. I was really addressing the speech made by the noble Baroness, a substantial part of which was against short sentences per se. I understand that the amendment does not make that point, but, because of her speech, I felt duty bound to point out that the reality is that we are very often sentencing for breaches of community orders. Nevertheless, this is an important debate and I am happy to support both amendments.
Lord Beecham
My Lords, I defer to the huge wisdom and practical experience of all noble Lords who have spoken in this debate. In particular, I congratulate the noble Baroness, Lady Linklater, on the clarity with which she developed her arguments in respect of both amendments. Like her, I am indebted to the Prison Reform Trust for its briefing. I should say that I am a member of an advisory group on young offenders that is run by the Prison Reform Trust.
On the first amendment, clearly it would be helpful to everyone involved in the system for the maximum degree of information to be available to those who are charged with the responsibility of sentencing—and in so doing, to take advantage of the work of the Local Crime: Community Sentence initiative which is run by the Magistrates’ Association and the Probation Association and has been endorsed by the Lord Chief Justice. This is in part to assist magistrates in coming to their decisions, but also in part to ensure that the public are aware that community penalties can be and often are an effective alternative to imprisonment. But there is a feeling that, perhaps due to pressures on the probation service in particular, there has been a reduction in the degree to which the two are working together and communicating effectively in practice. It is no easy task to deal with the volume of cases that come before the courts, either from the standpoint of the probation service or, indeed, from that of the magistracy and those who provide advice to magistrates. This amendment certainly offers an opportunity to develop what has been good practice and ensure that it is spread more widely.
Lord Faulks
Although I accept the general points made by the noble Lord about the general undesirability of short sentences, does he accept that there are some cases where the clang of the prison door really is the only answer for repeated minor offences? Notwithstanding all the valuable points about how little can be achieved, something can sometimes be achieved in some circumstances by the very fact of incarceration.
Lord Beecham
I think that that is right, and indeed the noble and learned Lord, Lord Woolf, said very much the same. It is quite possible, within the ambit of the amendment, to achieve that objective. There may well be cases where what some call the “short sharp shock” may work. I think it will work in probably only a relatively small number of cases, but the option should certainly be open.
As I say, I have some reservations about the second amendment, but I wholly endorse the first one. This is a matter that we need to continue to evaluate, but above all we need to ensure that the probation service in particular is given the resources that it needs to work with offenders so as to avoid not only the social and individual harm that is done but also the enormous cost to the public purse of reoffending, where the rates remain unduly high.
Lord McNally
My Lords, I am extremely grateful to all those who have contributed to this debate. It has been an extremely useful one. I am also grateful to the noble Lord, Lord Judd, for reminding us that this is the 200th birthday of Charles Dickens, who gave us the most well-known phrase about the law: “The law is an ass”. He also gave us the best example of the futility of litigation in Bleak House. Dickens was certainly not in awe of the law, and very few of his legal characters are particularly warm.
Baroness Stern
I support the proposal that the clauses should not stand part of the Bill and the comments of the previous two speakers. Liberty has sent me a very helpful brief which I will be using. I declare my interest as a trustee of the Civil Liberties Trust.
Liberty points out in its brief that the Green Paper which led to this Bill envisaged that if there were tougher community sentences, prison would be used less because those sentences would be used instead. This is indeed a worthy idea, but I point out to the Minister that it is supported by absolutely no evidence whatever. Making community sentences tougher instead of making them more positive, rehabilitative and socially useful, simply adds to the number of such sentences and leads to more failure and imprisonment.
On the extension of curfews, it is hard to envisage a beneficial effect on the normal life of a curfewed person. How can a curfewed person become interested in going to work or jobseeking? How can they become involved in caring for a relative or in some activity which will take them away from crime? A curfew is a very blunt instrument with very little penal value. Has thought been given to the effect on the rest of the family? What will the effect be on the other siblings who may be on the straight and narrow and have to spend all their time in the house with the one member of the family who has been deemed not to be on the straight and narrow? What will be the effect on the family if it is the father who has to stay at home for 16 hours for 12 months? That person may spend his time at home drinking, so what happens to his wife and children? These points apply especially to the impact of curfews on children. Surely this measure will be a real hindrance to normal teenage development. It is hard to envisage anything else.
What is the objective of these clauses in terms of ensuring a more effective criminal justice system? In the other place, the Minister said that they would give courts more flexibility. But the flexibility to increase a curfew from 12 hours to 16 or six months to 12 seems more like punitiveness. If it is to give an impression of toughness, I would counsel the Minister against this. The public will not register the difference between 12 and 16 hours and six and 12 months. As a result, more people will fail and the public will then say, “There you are—he should have gone to prison. These non-custodial sentences never work”.
Finally, it might also be worth bearing in mind the cost. These proposals come with a price tag. In terms of change, rehabilitation, giving up drugs and alcohol and developing a social conscience, they add nothing. There are many better ways of spending money.
Lord Beecham
My Lords, I strongly endorse the proposal of the noble Baroness that both clauses should be deleted from the Bill and the criticisms of the clauses that she and other noble Lords have made. The noble Baroness, Lady Stern, has just referred to a statement made by the Prisons and Probation Minister in the House of Commons, in which he argued that this 33.3 per cent increase in the hours of the curfew and the 100 per cent increase in the maximum period over which such a curfew might be imposed—from six to 12 months—would enable the court to use curfews “creatively and flexibly”. However, there is potential for flexibility in the present system. That is not to say that one is entirely convinced by the present system but even it makes it clear that the 12 hours do not have to be a single period; they do not have to be consecutive. They can be in two or more blocks if the court thinks that is right. The curfew can be for a longer period at weekends than during the week. An element of flexibility is currently available.
I have yet to hear of an evidence base for this proposed change. What has persuaded the Government that a change of this kind will be effective? For that matter, what leads the Government to think that the present system is all that effective? We have heard from my noble friend Lord Ponsonby—no doubt rightly—that he spends much of his time dealing with breaches of community orders, of which this would be one, and sending people to prison for short sentences. It seems that the effect of these amendments would be to place a larger number of people on a conveyor belt to his court and other courts, and thence to prison, with consequences that have hardly been calculated.
A 12-hour curfew is difficult enough. It would be very difficult for anyone with a job, voluntary work or training to fit them in with a 16-hour curfew. It would make it virtually impossible for anyone to travel any kind of distance to work or some other establishment. That cannot be consistent with the aim of getting people—in this case mainly adults—into employment, which is one of the principal ways of avoiding reoffending.
As the noble Baroness, Lady Stern, has pointed out, the curfew is effectively a negative form of community sentence. For community sentencing to be effective it ought to be positive, for example through community pay-back and restorative justice, which we will come to on later amendments. This is simply temporary containment. Indeed, one wonders what the effect will be of children being cooped up in the dysfunctional homes from which too many unfortunately come, and which are probably at the root of their problems in the first place.
I do not know whether the Government propose any assessment of the impact of the current system, let alone—if these clauses stand part and the Bill goes unamended—of the lengthened periods that these two clauses would impose. A proper evaluation should be made before proceeding with any change in either direction, but I am not aware that any such evaluation has taken place or is being planned. Perhaps the Minister could enlighten us. The figure for the number of breaches that the noble Baroness, Lady Linklater, cited at the beginning hardly suggests that the system is all that effective, particularly for children.
This is very much a retrograde change. The noble Lord, Lord McNally, referred to Dickens earlier. I feel that this is almost a Dickensian proposal and one that we should not be developing in the bicentenary of that great writer. I think he would have had some pointed things to say about this type of legislation, and rightly so. I hope that the Government will think again and not press the changes that have been so effectively criticised by Members of the Committee and those outside.
Baroness Northover
My Lords, Clauses 67 and 75 would enable a court to impose longer curfew requirements as part of a community order, a suspended sentence order or a youth rehabilitation order. The clauses would allow the court to impose a curfew of up to 16 hours a day for a duration of up to 12 months. Enabling the courts to impose longer curfews in this way will make the community order capable of being more punitive and attractive as a suitable disposal for more serious offenders, possibly some who might otherwise have gone to prison. It will also increase the confidence of the public, who too often see community sentences as insufficiently demanding. No doubt these issues will be much debated in this House, but I am very glad that noble Lords support the principle of doing what we can to keep people out of prison. We all know the drivers of that.
We believe that increasing the maximum number of hours of curfew per day will give the courts more scope to use community orders imaginatively to punish offenders, protect the public and encourage compliance.
Lord Beecham
Wherein lies the imaginative use of these orders? Where is the imagination?
Baroness Northover
Perhaps we should leave that to those who are curfewed. For example, a curfew period of 16 hours will enable courts to curfew offenders for 12 hours overnight, as often happens now, but also to add a further period. This is designed to ensure that the offender is at home immediately before a community pay-back session to increase the likelihood of their turning up on time. More seriously, that illustrates the point that I just made about how this could be teamed with something else that the court wishes to achieve. If the curfew is timed so that the person will be at home before the community pay-back session, that is an imaginative way of using it. A young person attending school will need less restriction during the school week but could have their movements more tightly restricted at weekends, when they are at greatest risk of reoffending. That is another point.
I am aware that the Prison Reform Trust does not share this view and believes that the courts already have sufficient flexibility to impose curfews. I know that this belief has been endorsed by the Bar Council. Both have commented on their particular concerns about the impact of these changes on children. While I understand these concerns, it should be remembered that the new curfew limits are maxima. They will be imposed only where such a requirement is, as the law requires, the most suitable for the offender and where the sentence is proportionate to the seriousness of the offence. In respect of under-18s, we expect the longer curfews to be used sparingly and that courts will take their age into account. It will be the court that decides whether and how to use this option.
My noble friend Lady Linklater makes the case for when lengthy curfews would be disproportionate. Doubtless the court would see that in the relevant cases. The kind of aspects that my noble friend mentioned would be raised in court and taken into consideration.
Compliance with curfew is normally monitored electronically through the offender wearing a tag. This will not change. Indeed, we are exploring ways of making more use of electronic monitoring as the technology becomes more sophisticated and robust. None of the existing safeguards will change. Courts will still be required by law to ensure that the restrictions on liberty imposed by any community order are commensurate with the seriousness of the offence, so longer curfews may be more suitable for more serious offenders. It will remain the case that before imposing a curfew requirement, the court will have to consider what the effect of the curfew might be on the person themselves and their individual needs and circumstances and on other people living at the curfew address. With longer curfews being available, it will be even more important that the courts take account of the needs and views of the family members before setting the curfew hours. Youth offending teams will assess the suitability of the home address for curfew purposes. They will make a recommendation to the court on what length of curfew is appropriate. We would expect that any longer length and duration of curfew would be focused on older children where the alternative might be custody.
The point was made that longer curfews would interfere with work and children’s education. The law requires that all community order requirements, including curfews, should, as far as possible, avoid interfering with an offender’s work and education. I hope that that will reassure people. We believe that giving courts the power to impose longer curfews will contribute to realising the aim of making non-custodial sentences tougher and more demanding. In doing so, we hope that they will command greater confidence among sentencers and the public.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Beecham Excerpts(12 years, 10 months ago)
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Lord Beecham
My Lords, the Minister regaled us earlier with some literary allusions, and Dickens featured largely in those. I would like to follow his example—something which I am not always disposed to do, but on this occasion I will—by making another literary allusion to the famous Sherlock Holmes story concerning the dog that barked in the night. Watson pointed out that the dog did not bark and Holmes said that that was the mystery. The mystery about restorative justice is that it is not yet in the Bill. I hope that as a result of tonight’s deliberations and following the line of thinking of the noble Lord, Lord Carlile, the Bill will include references to restorative justice for precisely the reason that he gave—namely, it would send a very clear signal of the Government’s expressed intent to promote restorative justice.
As has been indicated already, restorative justice has been around for a considerable time and has proved successful. Some 85 per cent of victims who have been through the process are satisfied with it. That is a very high proportion, particularly in these circumstances. The Home Office estimates that restorative justice has reduced reoffending by some 14 per cent. Again, that is a very significant reduction. To follow again the point made by the noble Lord, Lord Carlile, financial savings can be made in this respect. The Restorative Justice Council estimates—presumably on the basis of an equivalent 14 per cent reduction in reoffending—that in the case of adult offenders something like £185 million would be saved simply as a result of the reduction in offending quite apart from other savings that might arise. Therefore, we are talking about significant figures and a significant impact.
Mention of the adult aspect of this matter encourages me to endorse very strongly the reference of the noble and learned Lord, Lord Woolf, to the need to spread the concept across the age range. At the moment, it is mainly concentrated on children and young offenders. Only 1 per cent of adult offenders go through a restorative justice process. Expanding that would be significant and would lead, in the view of the Restorative Justice Council, to the savings that I have mentioned.
The Government have expressed their enthusiasm not only through the Minister’s words but in the Green Paper, Breaking the Cycle, which was published some 14 or 15 months ago. That document contains positive references to restorative justice, describing it as a,
“well established concept in youth justice”,
but pointing out that,
“restorative justice for adults is sometimes viewed as an afterthought to sentencing”.
The Green Paper went on to say that the Government were looking at how they might change that, whereby in appropriate cases restorative justice became,
“a fundamental part of the sentencing process”.
The paper stated that this was,
“likely to involve using restorative approaches as a better alternative to formal criminal justice action for low level offenders where the offender and victim agree the outcome”,
including apologising, replacing items or making good damage and so on.
The Green Paper continued:
“Secondly, in instances where a court case is likely to lead to a fine or community sentence, [the Government] will explore how it could best be used at the charging stage”.
“At the charging stage” goes beyond the amendments before us, and it is an interesting concept. The Government said that they would explore how best it could be used then, and pointed out that, if used, restorative justice,
“would be delivered as part of an out-of-court disposal, for example as a condition attached to a conditional caution”.
Again, a variety of action might be agreed—paying compensation to the victim or making good the offence in other ways. I do not know whether the Government have pursued that to any significant extent. Perhaps the noble Baroness who is to reply to the debate might comment on that. If not, she might follow up the point made at paragraph 80 of the Green Paper to see exactly how far the Government have gone. There is considerable potential in all this, and the amendments certainly should assist the process.
Restorative justice is usually discussed in terms of the face-to-face encounter between victim and offender, and that is perhaps the most obvious use of the term. However, it can be used in the broader sense of what is sometimes also called justice reinvestment—that is to say, in schemes such as community payback, whereby instead of individual reparation the offender is putting something back into the community, and not necessarily into the community that has suffered directly from his or her depredations, but into the community generally.
There have been some encouraging schemes around this concept. In my part of the world, two schemes in particular stand out that involve the successful restoration by offenders of two Victorian parks—Albert Park in Middlesbrough and Saltwell Park in Gateshead—where in both cases mainly young offenders worked under supervision and made a significant contribution to a local amenity as part of their punishment. The process had two effects: first, it of course gave the community an asset; but, secondly, it gave the offenders a skill and an experience of useful employment. Restorative justice can be applicable in that wider concept. In my own ward of Newcastle City Council there is a church with a large graveyard in which many local dignitaries of the 19th century are buried. It was in a poor state and there is now an ongoing restoration scheme that is facilitated in part by a group of offenders on a community payback scheme. That is another good example of restorative justice in that broader sense.
Both approaches to restorative justice are potentially valuable. I hope that the Government—in addition to endorsing the concept, as I am sure the Minister will—will ensure that the concept is enshrined in statute to give an impulse to its spread in practice, particularly but not exclusively among adult offenders. This would also ensure that the good intentions of the Green Paper, with which we on the opposition Benches certainly agree, were translated into reality at both individual and community levels.
I congratulate noble Lords who brought this matter forward in these amendments. I hope the Government see their way to accepting these amendments and, arguably, to expanding them in the way that the Green Paper appeared to advocate.
Baroness Northover
My Lords, where but in the Lords would we be having such a wonderful debate, run through with humanity, after 10 o’clock at night?
I acknowledge noble Lords’ support for the principle of restorative justice. The Government are indeed committed to delivering greater use of restorative practices across the criminal justice system. It is one of our key priorities. For example, we have already begun providing more than £1 million-worth of funding to youth offending teams, probation trusts and prisons for restorative justice training and practice standards, and we are currently setting up neighbourhood justice panels based on restorative principles. It is excellent to have noble Lords’ support for restorative justice. However, the Government believe that the amendments are unnecessary, although we are sympathetic to the intentions behind them.
On the amendments in the name of the noble Lord, Lord, Lord Ponsonby, as I think he realises from what he said in his speech, a court already has sufficient powers under the existing requirements of the youth rehabilitation order and community order to make restorative justice activity a formal part of those orders. The activity requirement allows the court to consider the use of restorative justice where it has been advised that the victim and offender have agreed to take part and provision is in place to deliver such a requirement. The amendments make no provision for ensuring that both the offender and the victim are completely prepared to participate in a restorative justice process. That is crucial to the restorative ethos and to prevent victimisation, but I understand what the noble Lord is aiming at.
Turning to Amendment 172DAA in the name of the noble and learned Lord, Lord Woolf, the courts already have powers to adjourn sentencing for the provision of restorative justice to be undertaken if they believe it will inform the sentencing process. I hope that the noble and learned Lord will be reassured that the Government are looking at taking that process further to allow for restorative outcomes to help inform the courts as to what appropriate sentence should be handed down.
However, the amendments do not contain sufficient safeguards to prevent the ineffective use of remand resources to adjourn sentencing and hold offenders in custody in cases where the victim does not want to participate. The amendments also do not seek to impose a restriction on the length of remand, which poses additional risks not only to delay in court time but also around the proportionality of remanding an offender in custody for a significant length of time without sentencing.
Therefore it is much better for the courts to retain discretion to decide when and in what circumstances restorative justice can be effectively undertaken, although we understand people's concern to ensure that it is high on the agenda. In practice, that would most likely need to be in cases where the court has already been notified of the willingness of both the victim and the offender to participate in the restorative justice process.
As I mentioned, it is crucial that the victim should have the opportunity to consider and undertake restorative justice if they so wish, and the offender must also be completely willing to participate—which the proposed new clause does not provide for. Any circumstances in which the offender is not completely prepared to participate in restorative justice—which cannot be signalled simply by a guilty plea—presents serious risks for the victim being revictimised because the offender is falsely or forcibly engaged in the process.
We have heard a great deal about the potential of this approach, which is of course very encouraging. Before we can make any determination as to whether further, specific legislation is necessary for restorative justice, we must make significant steps to build capacity to deliver it. Once we have begun to make greater strides in embedding restorative justice across the system and helping areas to put necessary provisions in place, we will reflect carefully both on whether to widen the application of restorative justice using the law and on how to do so, if it proves necessary to take this approach. Although I understand noble Lords’ enthusiasm to enshrine this now in statute, there is work to do before we reach such a stage—persuasive though noble Lords undoubtedly are, and we certainly agree with their principles. Although we share a common interest in the increased use of restorative justice, at this stage I nevertheless urge the noble Lord to withdraw his amendment.
Health and Social Care Bill
Lord Beecham Excerpts(13 years ago)
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Baroness Finlay of Llandaff
My Lords, my name is to Amendment 339. The other amendments have been spoken to most eloquently, having been introduced fully by my noble friend Lord Patel. One additional point, and the reason for having these directors of public health on a register, is that the person appointed may be fit to do the job today but they need to be fit to do the job tomorrow as well. By having them on a register, issues of revalidation, continuing professional development and so on would be maintained, and a level playing field would be maintained in an upward direction.
We have heard today about infection, but the greatest threat to public health may well come not from infection but from issues such as cyberterrorism around our major utilities and the havoc that that could cause. These directors of public health will have an enormous amount on their shoulders, and they need to be linked into the national and international disaster planning groups. Some of those aspects of their work will be ill understood by those in local authorities, who may feel that such things are remote and unlikely to happen. In the event of a disaster, those skills will have to be drawn on immediately, and the directors of public health have to be prepared and able to take the leadership role.
I urge the Government to consider carefully any good reason why not to register directors of public health. I cannot see any reason not to register these people who are trained specialists. You have to have a really good reason not to, in the face of all the evidence that they should be registered.
Lord Beecham
My Lords, there is clearly a broad and deep consensus in the House that the general direction of the Government’s proposals for public health is on the right lines. We welcome in particular the restoration to local government of many public health functions.
There are still some areas of potential difficulty, though, which may well account for the recently published survey of the Faculty of Public Health, which showed great concern among 1,000 members of the profession who responded to a survey. Some 71 per cent of them disagreed that the new system would create a safer and more effective response to emergencies, and we will be looking at the situation regarding emergencies in a subsequent group. Eighty-one per cent disagreed with the proposition that the proposals would reduce inequalities in access to health; 83 per cent disagreed that the new structures would reduce bureaucracy; and 79 per cent feared that they would lead to fragmentation. I do not necessarily concur with those views—I think they are too pessimistic—but they disclose a degree of concern that some of the amendments that we are now discussing would allay.
Underpinning some of those concerns is the issue that is not part of the Bill: funding. We cannot ignore the real concerns about that—they have been voiced before and no doubt they will be again as we continue to debate the Bill—but in particular there is concern that, whereas the department apparently estimates the cost of public health services at £4 billion, which presumably is to be used as the basis for ring-fencing the grant that would go to local government, the BMA’s estimate is £5 billion. If that is right, it is a significant difference that would impact on local authorities. Of course, we are awaiting next year’s revenue support grant settlement. In addition, there are concerns about how the health premium would operate and how it might disadvantage areas that suffer from significant social and economic disadvantage. They would find it harder to improve the health of their communities than other, better placed authorities and might, therefore, lose out. In looking at the Bill, particularly the provisions that relate to public health, these concerns must be borne in mind.
Having said that, it is clear that many of the amendments that have been spoken to this afternoon address very serious issues. While I do not necessarily accept the entire burden of the criticisms made by the members of the Faculty of Public Health, I am sure Ministers in this House would not describe those with such concerns in the terms that Simon Burns used in another place when he described critics of the Bill as “zombies”. They are not zombies; they are dedicated public health professionals whose concerns have to be addressed. I am sure that the noble Earl and the noble Baroness would not descend to language of that kind.
The amendments that have been moved and spoken to by the noble Lord, Lord Patel, and supported by Members across the Committee, deal in particular with the position of directors within local government. They begin with the question of how they should be appointed in the first place. On appointments, Clause 27 refers to an authority,
“acting jointly with the Secretary of State”.
This is a slightly curious formulation. I suppose it should not be detached from the later provisions about Public Health England. In the words of Mr Burstow, the Minister of State for Health, Public Health England is deemed to be the Secretary of State. For the purposes of this clause, it may be that that is what is envisaged: Public Health England, as the Secretary of State, would be involved jointly in the appointment.
I am not convinced that it is necessary for an appointment to be made jointly but I concur with the view of the noble Lord, Lord Patel, that a procedure is needed for the approval of the Secretary of State of such appointments, and for the approval of any dismissal. I may be risking my status as an honorary vice- president of the Local Government Association when I dissent from its views on these matters. It takes the view that a director of public health should be treated in exactly the same way as any other chief officer of an authority. Respectfully, I disagree profoundly with that; they are not in an analogous position. Their position is much more analogous to that of a head of paid service, the chief finance officer or the monitoring officer, who have separate roles because they are not simply departmental officers; they have a wider responsibility, which impinges on the roles of other officers and other departments. A director of adult services or a planning officer does not have the same relationship with his colleagues. He is on level terms, as it were, and would not necessarily be expected to take the kind of stance that a director of public health might have to take in relation to failures of other parts of the authority. It is therefore essential that the position and independence of the director are protected. Therefore, I strongly support amendments to that effect.
What I am not clear about is how the appointment should be couched in terms of responsibility. Certainly, I agree with Amendment 229, which suggests that the director should be able to report directly to the local authority. However, to say that the director should be responsible to the chief executive is too narrow a definition. Not all authorities may choose to have chief executives. Fortunately, under the Localism Act, we have been spared the notion that the position of chief executive could be combined with that of the leader of a council or an elected mayor. Councils are not required to have a chief executive; they are required to have a head of paid service. The appropriate mechanism is that promoted by Amendment 229. That should be the line of accountability and the directors should certainly be part of the authority’s management team. They should have the status of a chief officer and the ability, if necessary, to report to the council. They ought also to be qualified.
The Opposition endorse entirely the proposals for a statutory registration system along the lines to which noble Lords have referred, not a voluntary system which I think is envisaged by the Bill. The statutory system should have external quality control, particularly of non-medical public health professionals. This would certainly strengthen the position and maintain the quality of the service. The noble Lord, Lord Warner, referred to comparable status with NHS professionals and made a significant point in that respect. This could, of course, place directors on a higher salary level than other officers within a local authority. That might create some difficulties and might also be something of a new burden. I think that that is the phrase we use in local government. Therefore, it perhaps ought to be reflected in the way that grant is distributed. Perhaps the Minister will undertake to have a look at this. Perhaps some portion of the salary should be specifically contributed to by the department in making its allocations. This would facilitate an acceptance of a differential within local government. However, Amendment 259 talks about making terms and conditions,
“no less favourable than those of persons in equivalent employment in the National Health Service”.
I am bound to say that I am not entirely clear how to define that equivalence. That may need to be explored further. No doubt the Minister will want to look at that aspect.
I think that the noble Baroness, Lady Finlay, referred to what might be described as public health emergency situations. One of the difficulties to which we will have to return in the next group of amendments is the absence of a fully fledged regional structure under the new system. As I say, we will no doubt return to this. However, there is concern about resilience and about how matters that transcend local authority boundaries—and public health problems do transcend local authority boundaries in many instances—will be managed and how these can be addressed, in particular under the proposals around the Health Protection Agency and the current local pattern of provision. I agree strongly with the noble Lord, Lord Walton, about the desirability of the director of public health being a member of the commissioning groups and, indeed, of the national Commissioning Board. We have discussed this before. The noble Earl, Lord Howe, indicated that the boards should be relatively small. However, there seemed to be a possibility of ensuring that if a director was not a member of the board, one could at least be appointed as an adviser to the board and, presumably, if it is the national Commissioning Board, also to the clinical commissioning group at local level. That would certainly be helpful.
However, there remains the issue of the position of directors in relation to district councils. As other noble Lords have pointed out, the responsibilities relating to public health are not confined to principal authorities at county, metropolitan district or London borough levels. There are housing issues and other significant issues around food safety and the rest which are district council responsibilities. It is not clear how directors of public health would operate in two-tier areas where district councils have those responsibilities. A mechanism might have to be developed to ensure that directors are able, for example, to report directly to those authorities where the exercise of the district council responsibilities may not be sufficiently addressed to public health issues. I am not inviting the Minister to give a definite indication at this moment but I would hope that this matter can be taken away and looked at further.
It is clear that there is considerable consensus around the House on the direction of government policy and the need to make improvements along the lines of these amendments. The noble Lord, Lord Warner, invited the Minister to turn over a new leaf and asked for a different type of Earl Howe. For my part, I would be quite happy to settle for the noble Earl, Lord Howe, that we know and love from previous incarnations. I just hope that he is given scope by the Secretary of State to respond positively to this positive debate and to the positive suggestions that have emerged.
Baroness Northover
My Lords, I think that, one way or another, I am going to disappoint: I am going to disappoint the noble Lord, Lord Beecham, that the response is not coming from my noble friend Lord Howe, whom he is so fond of, or—
Baroness Northover
I am absolutely delighted.
In answer to the noble Lord, Lord Warner, it may be that the version of my noble friend Lord Howe that he is seeing now is slightly different from the one that he usually sees, but I am surprised at his comment about my noble friend having made little movement. The noble Lord will know—
Baroness Northover
I am more than happy to write to the noble Lord about those areas.
Lord Beecham
Perhaps the Minister, if not today then subsequently, could address her mind to the significant issue that I raised about the positions of directors of public health and district councils. Her assumption, which is fair enough at the present stage of the Bill, is that to all intents and purposes Public Health England and the Secretary of State are one. It is a political version of the theological concept of consubstantiation. I understand that, but that assumes that Amendment 260, which calls for Public Health England to be a special health authority, will not be approved. If it were approved, what would the Government’s position be on the question of joint appointments and consents that under the Bill at the moment would lie in the hands of the Secretary of State? At that point, Public Health England would not be the special health authority. I am not asking for an immediate answer, but if the amendment were to be approved—and I certainly hope it will be approved in due course—would it be Public Health England in those circumstances or would it be the separate Secretary of State’s role to adjudicate on those matters?
Baroness Cumberlege
I thought we were going to debate Amendment 260 later today and I would like to take part in that debate when we come to it in the groupings.
Lord Beecham
My Lords, again I have a great deal of sympathy with the amendment moved by the noble Lord, Lord Patel, and the amendments in the name of the noble Baroness, Lady Williams. It seems to me that there is the potential for confusion over the differing roles that arise in situations such as an outbreak of disease or other public emergencies. The Bill variously imposes duties on the director of public health, although not specifically on the local authority, to act in such cases, bearing in mind that the documents are to be issued by the Secretary of State. Quite what documents would be issued in an emergency is not clear.
Amendments 227 and 235 in the name of the noble Lord, Lord Patel, accord better with the situation which might arise. They clearly make the point of local authority involvement and do not simply rely on the provisions of Clauses 43 and 44, which confer duties on the board and clinical commissioning groups. Incidentally, the fact that such duties are imposed on clinical commissioning groups surely enhances the need for the director of public health to be a member of, or to be represented on, such groups. But that is a matter to which we will no doubt return when we come to the governance arrangements for clinical commissioning groups.
Clause 43 makes it the responsibility of the board to ensure that all providers designate an individual to be responsible for the relevant emergency. Again, it is not quite clear what is meant by providers in that context. The board is also required to secure that it and the clinical commissioning groups in the health service—but, specifically, not local authorities—are prepared for emergencies. There seems to be some fragmentation in the distribution of responsibilities for this situation. That matter is also reflected in the general position in relation to resilience and emergencies generally. At the moment, there is a strong regional structure and if there is a problem, the regional director of public health can intervene and can require steps to be taken. There is always the facility for someone to be directed to act in the case of an emergency; as it were, someone will always be on call. It is not clear that that will survive the new structures.
It is essential in these cases also to recognise the important role that the voluntary sector plays in a public emergency. The Red Cross and other organisations of course are very often the first on the scene. I know that the noble Baroness, Lady Emerton, will address this issue when she speaks to her amendment. In advance of her doing so, I want to indicate support for the involvement of that sector as a consultee in the question of appointing directors of public health but, more widely, for the contribution of that sector to be recognised.
This issue of fragmentation of responsibility and the lack of a regional structure, which will follow if the Bill is passed in its present form, is a matter that attracted the attention of the Health Select Committee. That committee’s report indicated that there is a lack of confidence in the structures that would replace the regional structures under the provisions of the Bill:
“We are concerned at the lack of clear plans for Public Health England to be established at the regional level. The idea of “sub-national hubs”, in some—as yet undefined—alignment with the sub-national structures of the NHS Commissioning Board and the Department for Communities and Local Government does not seem to us adequate”.
Public Health England needs clear strategic and regional accountability, and although we are not yet debating Public Health England, nevertheless there is clearly in the mind of that committee—and I share that view—considerable doubt about whether the structure, with perhaps four sub-national hubs and a number of groupings around the Health Protection Agency when it is now combined with and taken into Public Health England, will in fact be sufficient. Although Clause 44 gives the Secretary of State powers of direction, the absence of regional arrangements clearly could, in the minds of that committee, create considerable difficulties. So there are issues which are partly reflected in the concerns of members of the Faculty of Public Health to which I referred in the debate on the previous amendments, and the role of the Health Protection Agency in the new structure will bear materially upon that issue.
I think the amendments tabled by the noble Lord, Lord Patel, actually take us in the right direction. We need a stronger structure to cope with problems of disease, immunisation and particularly emergencies, and again I draw attention to the fact that local authorities that would be involved in emergencies are not necessarily the principal authorities with which a director of public health would be involved. Again I raise the issue of how district councils in shire county areas will be involved in those situations. Without necessarily seeking a response today, I hope that is a matter that the noble Baroness the Minister would take away and consider. I am afraid it is becoming a bit of a recurrent theme, but for that very reason it seems to me that we need to address it properly so that the entirety of the local government family is involved in preparing for and dealing with emergencies as they arise, given in particular that district health authorities have very significant responsibilities in some areas. The noble and learned Lord, Lord Mackay of Clashfern, referred to E. coli, and food safety is the function of district council authorities and clearly part of the agenda which has to be addressed when looking at public health as a whole.
I hope that on this occasion the Minister will be somewhat more sympathetic than she proved to be last time to the amendments that have been tabled by the noble Lord.
Baroness Northover
My Lords, we are always sympathetic to all sorts of amendments, and the fact that we take away amendments and consider them further should, I hope, reassure noble Lords—
Earl Howe
My Lords, my point was that such conflicts have been managed in the past and can be easily managed in future. While there may be a specific example my noble friend wishes to draw to my attention, which of course I shall take seriously, I am not aware of any such examples. The clustering arrangement in practical terms is working efficiently around the country. Of course, I regret if hard-working non-executive directors who have served PCTs in the past have stepped down, because they have done sterling service, but it has been necessary to rationalise that structure.
Lord Beecham
Would the Minister care to reply to the rather disturbing question of the noble Lord, Lord Mawhinney, about the threat to members of the PCT who decline to resign and the consequent apparent disqualification from subsequent appointment?
Earl Howe
My noble friend refers to the current legal position—that a non-executive director can leave his or her office in only one of two ways: by resigning or by being forced to resign. There is no desire on anybody's part to force non-executives to resign. These are not non-executive directors who in some way have misbehaved—not at all. However, it is necessary in the interests of the NHS that we rationalise the system.
The proposal put before non-executive directors was that, in the interests of the health service, they should consider their positions. That is not because they have done anything wrong but because of the transition that we find ourselves in. I would ask any non-executive directors who are listening or who read Hansard not to take offence at this. It is no reflection of their service to the public or the health service; it is simply a reflection of the transition that we are going through.
With my noble friend's permission, I should cover some of the other questions that have been raised. Of the many functions transferring from SHAs, Amendment 236AAA specifically seeks to address the role of postgraduate medical and dental deans in the new system. I recognise the vital role that the deans currently play to ensure quality within education and training. The important work of the postgraduate deaneries will continue through transition and into the new arrangements from April 2013. The SHAs will continue to be accountable for postgraduate deaneries until 31 March 2013, allowing time for a phased transition of their functions. This will ensure stability and help develop the improved system.
As the noble Baroness indicated, I have undertaken to come forward with more detailed proposals on education and training between now and Report. I repeat that assurance. Further work is under way on the detail of those arrangements with the right accountabilities for the quality of education and training to Health Education England and the professional regulators. That detail will be published as soon as possible. I hope I can reassure her that we have listened to the concerns in this area and that we are taking steps to address them
I would also like to address the matter of Clause 45 standing part of the Bill, which is part of this group. This clause will ensure that the Secretary of State will be able to establish new special health authorities only temporarily, for a maximum of three years. If there is a compelling reason for a special health authority to continue to exercise its functions beyond the three-year deadline, it is possible to extend its existence. However, any decision to do so would be subject to full parliamentary scrutiny via the affirmative procedure. This is to reflect our intention that any body in the health system exercising functions on a longer-term basis should have those powers transparently conferred on it in legislation.