Police, Crime, Sentencing and Courts Bill

Lord Falconer of Thoroton Excerpts

2nd reading
Tuesday 14th September 2021 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

My Lords, I am obliged to the noble Baroness, Lady Williams, for her clear but inevitably incomplete description of the Bill. Her incomplete description of it is not her fault. We support some of the measures in the Bill, in particular those that seek to increase penalties for sexual and violent crime, but the presentation of the Bill in this form is an affront to the rule of law and the role of Parliament: 177 clauses, 20 schedules, 62 new delegated lawmaking powers and amendments to 39 other statutes. Our constitution requires legislation such as this, particularly because it affects the liberty of the subject, to be properly scrutinised by both Houses of Parliament. With a Bill this size, that is well nigh impossible. Introducing a Bill in this way at this time does not accept, as the Government should, the limitations of time on a parliamentary process.

Quite separately from those complaints that I have about the Bill, the Delegated Powers Committee of this House has delivered a report which makes it absolutely clear that it takes considerable offence to a number of the Bill’s provisions that are giving power to the Executive to pass guidance; in particular, those that will give Ministers undue power because the effect of failing to comply with that guidance will lead to consequences in court, which will have an effect on the citizen. This is not the way to legislate. Yes, there are certain things that need to be done as far as the criminal justice system is concerned, but this Government should prioritise what those things are and then do them.

The Lord Chancellor said in another place that this Bill was designed to increase—or, in his words, restore—faith in the criminal justice system. It does not do that. There were things that he could have done to restore that faith, which is urgently required. I shall identify three things to indicate that. In the year to March 2021, a staggering 21.8% of victims said that they wanted to abandon their criminal case because they were fed up with the system—that is 945,000 cases involving the victims withdrawing their co-operation. A survey by Vera Baird, the Victims’ Commissioner, said that one-third of victims took the view that they would not report a crime again because of the experience they had had in the criminal justice system. As everybody in this House knows, because it has been repeated time and again, the number of complaints of rape goes up every year while the number of rape prosecutions goes down, and the number of convictions goes down as well.

Yes, we do need improvements to the criminal justice system, but a Christmas tree Bill of this size is not the way to deal with it. It is not possible in the time allotted either to me or to any of us to identify every single issue in relation to the Bill, but I will identify 11 issues that may be worth further consideration.

The first is on the policing of protests. The Minister will have seen what the Joint Committee on Human Rights has said in relation to the provisions that have been taken. It says absolutely explicitly that the Government have got the balance wrong between the right to protest and the powers being given to the Executive. To give the Executive the power to ban demonstrations because they make excessive noise is not proportionate; you would expect demonstrations to make noise and we will be looking in some detail at those provisions.

Secondly, there is the issue of unauthorised encampments in Clauses 62 to 64. These go much further than the Minister said. Contrary to what she specifically said, they are an attack on the Roma or Gypsy way of life. It is not necessary and, furthermore, it is not supported by the National Police Chiefs’ Council. It is something the Government have done which goes much further than necessary.

Thirdly, the Bill does not bring into effect right across the country Section 28 of the Youth Justice and Criminal Evidence Act 1999. If that section had been brought into effect, it would have allowed and led to the ability—right across the country—of victims of severe sexual assault to give their evidence straightaway before a judge. They would be cross-examined about it, but the film of that evidence would then be played at the trial at a much later date. That would allow the victim to avoid that awful period as they wait for the trial to take place. But the Lord Chancellor said in another place only that it should be further piloted. Why is it not being introduced right across the country? A reason given is because there are not enough judges to do it, and there would need to be judges to hear the evidence of the victim. Apart from offences leading to death—primarily murder and manslaughter—it is hard to imagine a higher priority for the judiciary than hearing serious rape and sexual violence cases, so the absence of judicial resource does not seem a good excuse. We would strongly urge that it be rolled out and will introduce an amendment to that effect.

Fourthly, I welcome what the Minister said about the extraction of information from the mobile phones of victims of serious sexual assault. Subsequent to the deliberations of another place, I think, a code of practice was produced as to the circumstances in which the extraction of material from mobile phones could be done. We share the concerns that that code of practice does not adequately protect the interests of victims. In particular, it needs some sort of third party to protect their interests in relation to that; again, that will be debated. I would be very interested if the Minister could indicate to me what protections for the owner of the mobile phone are contained in the code of practice, and whether they can be strengthened.

Fifthly, we think that there should be, subject to judicial discretion in appropriate cases, a minimum sentence for rape of seven years. The answer given by Ministers in another place was, “Well, two-thirds of people convicted of rape get seven years or more now, so why do you need a minimum sentence?” The answer is: so that it is clear what the view of the legislature is on the gravity of that crime. There needs to be some degree of judicial discretion, but that could be built in.

Sixthly, we take the view that the Bill should have addressed as a priority the problem of sexually offending behaviour and provided greater protection. Three specific steps were proposed in the other place. First, a whole-life term should be the starting point for a murder that involved the abduction and sexual assault of the victim. Secondly, there should be an independent review of the sentencing code in relation to domestic homicides. Thirdly, there should be a power to sentence offenders for up to two years if they identify an anonymous complainant in a case involving rape or serious sexual assault.

Last Thursday—I may have got the date wrong—the Government announced an independent review of the sentencing structure for domestic homicide. Clare Wade, a Queen’s Counsel, has been appointed to review the sentencing framework. I do not know and have not seen the terms of reference of that framework. Could the Minister set out what they are and indicate what the relationship of that review is to sentencing guidelines and the Sentencing Council?

Seventhly, this is a perfect opportunity to deal with the Vagrancy Act 1825, which makes it a crime, in effect, to be street homeless. Are the Government, who have been broadly supportive of changes to the Vagrancy Act, willing to see it repealed? An argument given in the past as to why it should not be repealed was that you need something to deal with “aggressive begging”. We on this side of the House believe that that is already covered by other legislation.

Eighthly, this is the opportunity to deal with indeterminate public protection sentences. We recognise the problem that there are certain people whom it would be difficult to release, but they should be a very exceptional and small category. Perhaps they should be a category of people upon whom, if there had not been an IPP sentence, a life sentence would have been passed instead of the IPP. It may well be that everybody else—the number is going up, not down, over a definitive period—should be released.

Ninthly, it was said in another place that the offence of assaulting a shop worker would be actively considered. Shop workers have been rightly praised for keeping the country and the economy going during the pandemic. We need a bit more than warm words. The Minister in the other place said that they would consider it. Can the Minister in this place tell us where they have got to in relation to that?

Tenthly, I understand that the Government are going to introduce in this place amendments in relation to the serious issue of pet theft, although I may be wrong. Could the Minister explain the position on that?

Finally, I turn to the issue of the children of mothers in prison. Time and again, prison sentences for mothers victimise their children. The Human Rights Committee of both Houses said that this is a perfect opportunity to deal with that issue, if on no other basis than that proper information and data be collected. I did not give the Minister notice that I would raise this issue, but if she could deal with it when it is convenient—perhaps not today but on another occasion—I would be grateful.

Separately from the things that we think are right—we have no problem with the police covenant or, as I have indicated, some of the strengthening of sentencing—we would like to focus on those eleven areas. I do not treat them as exclusive, and no doubt there are many things I have omitted, but this Bill is simply a scattergun that will not do enough for criminal justice.

I very much hope that, on 27 October, the key thing we will hear in the comprehensive spending review is that the criminal justice system will be properly funded and that recompense will be made for the 25% of funding that has been taken away from it by this Government.

Counter-Terrorism and Sentencing Bill

Lord Falconer of Thoroton Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Monday 21st September 2020 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

My Lords, thanks to the noble Lord, Lord Parkinson of Whitley Bay, for introducing with such care and clarity this important Bill. We understand he has been thrown in at the deep end after the sudden departure from the Government of the noble and learned Lord, Lord Keen. He has acquitted himself impressively so far.

This is a significant Bill. The criminal justice response is key in the fight against terrorism but can never be the only response. While many of the recent terrorist atrocities have been associated with Islamist extremism, it is important to identify that there remain threats from others: as the UK’s top counterterrorism police officer, Neil Basu, recently confirmed, the fastest growing terrorist threat comes from far-right organisations. Of the 224 people in prison for terror-related offences, 173 are Islamist extremists and 38 are far-right ideologues; and of the 16 plots foiled by the end of 2018, four involved the far-right.

This Bill deals with four issues. The first is increasing sentences for terrorist-related offences. The second is changing the basis on which those convicted of terrorist offences can be released, and the terms thereafter on which they are on licence. The third is changing the TPIMs regime in three significant respects: reducing the burden of proof, making TPIMs last potentially indefinitely, and increasing the range of powers a TPIM can include. The fourth is removing the time limit for completion of the Prevent review, mandated by previous primary legislation.

On this side of the House, we will look carefully at the details of the increase in sentences and the proposed change to the way the system deals with early release of those convicted of terrorist offences. We will also look at when and how the Parole Board should be involved and how it should approach these issues.

While the detail matters a lot, we do not in principle oppose the first two parts of the Bill. There needs to be really tough sentencing for terrorists. Confidence in the system and justice for victims depends on it. The Deputy Mayor of Manchester, my noble friend Lady Hughes, described the gasp from the families of the victims of the Manchester Arena bombings when Mr Justice Jeremy Baker imposed a minimum term of 55 years on Hashem Abedi, who was convicted of plotting the Arena bombing with his brother. My noble friend described the gasp as a small amount of relief among their terrible anguish. It brings little comfort, but the pain of inadequate sentencing for the victims of terrorist bombings is real. The families of those who died in the bombing have themselves been sentenced to a lifetime of pain and loss. The very least they can expect is that the justice system pass sentences that reflect the gravity of what happened.

Coupled with that is the disregard with which the system is viewed when terrorists are released before their nominal sentence is concluded and commit offences again. The tragedies of Fishmongers’ Hall on 29 November 2019, and Streatham High Street on 2 February 2020, are terrible examples. At Fishmongers’ Hall, the bravery of the Polish porter, Lukasz Koczocik, helped to overpower the terrorists. Two former offenders, James Ford and Marc Conway, also became heroes when they helped tackle the attacker to the ground. Jack Merritt and Saskia Jones, who dedicated their lives to seeing the best in people, were working in offender rehabilitation, only to be killed at the rehabilitation conference at Fishmongers’ Hall. I pay a heartfelt tribute to them and extend my deepest sympathy to their families for their unimaginable loss. This terrorist attack, like the one on Streatham High Street on 2 February, was committed by an individual who was already convicted as a terrorist offender but had been released automatically halfway through their sentence. They were neither deradicalised nor deterred by their time in prison. In fact, their time at Her Majesty’s pleasure had made the position worse.

The most serious terror offences already attract what is known as extended determinate sentences, which require an offender to be referred to the Parole Board at the two-thirds stage of their custodial term, when they can be considered for release. At the end of the custodial term, the offender will be released on an extended licence. For terrorist offenders for whom the maximum penalty for their offence is life, this Bill removes the opportunity of Parole Board-directed release before the end of the custodial term, ensuring they serve a whole term in custody. This applies UK-wide and to both young and adult offenders. For this cohort of offenders, there will be no chance of parole before the end of the custodial term. This will give rise to prisoner management problems where there is no prospect of early release. However, that may well have to be faced. As the Bill goes through the House, we will need to consider whether that is appropriate for someone convicted under the age of 21. People seduced by appalling ideologies when teenagers should have some hope. There is agreement that, the younger the subject, the greater the hope for successful de-radicalising measures.

The Bill proposes that the maximum licence period for terrorists after release should be 25 years. We have concerns about the proportionality and cost of that reform, which have also been expressed by the Independent Reviewer of Terrorism Legislation. There is no explanation as to how this burden will be paid for in the context of a decimated probation service. Much of what happens on licence will depend on the effectiveness of the probation service. It is truly hopeless of the Government to blithely increase these licence periods, thereby appearing tough to the public, knowing full well that without proper additional expenditure on the probation service, these commitments and legislation will have little effect in the real world. Could the Minister provide the House with estimates of how much extra expenditure will be incurred by giving effect to these additional licence periods? How will probation afford them?

These are some of the issues in the first part of the Bill that we will wish to explore. I make it clear that, in principle, we support increasing the length of terrorist sentences and the significant tightening of the circumstances, outlined in the second part of the Bill, in which a person convicted of a terrorist offence may be released before the end of his custodial term. We consider it crucial that the criminal justice system be effective in catching and convicting terrorists, passing appropriate sentences and ensuring—consistent with the terms of their sentence—that they are not released before it is safe to do so. That does not mean that every terrorist is sentenced to an indeterminate sentence, but that the true length of the sentence passed and how it is implemented must have public confidence.

In connection with sentencing and early release, I have focused on what is in the Bill, but it is important also to focus on what is not in it. Inside and outside the criminal justice system, there must be a much more driven and focused effort on de-radicalisation measures. For many prisoners, such measures will have no impact whatsoever; moreover, many will manipulate the system to obtain early release by pretending they have had an effect. But that is not a reason to give up on those measures, both inside and outside prison. The Acheson review of 2016 dealt with de-radicalisation measures in prison. He made 69 recommendations, consolidated down to 11, eight of which were accepted. What happened to those recommendations remains a total mystery.

Mr Acheson himself said in a report published in 2019:

“Our unsafe prisons provide a fertile breeding ground in which predators, peddling extremist and violent ideologies, can prey upon the vulnerable, creating significant risks to national security and the public at large.”


He added:

“On the present trajectory, it is all too conceivable that a future terrorist will have been groomed and radicalised within our prison estate.”


Can the Minister provide details of which Acheson recommendations have been implemented, and give details of how they have been implemented?

The failure properly to address de-radicalisation measures in prison will haunt this country for generations, as we establish “academies of terrorism”. We must continue with these measures, as much for the prisoners—often young and vulnerable—imprisoned for non-terrorist offences, who end up radicalised and dangerous because of a total lack of push-back from the authorities against the vile, dominating hold of much stronger characters who are imprisoned for terrorist offences, certain of the rightness of their warped beliefs and able to seduce others into them.

In the world outside prison, it is equally important that the state ensures proper pushback against these warped ideologies. The Prevent strategy is designed to do that, but there are legitimate concerns about it and the extent to which its unintended consequences damage the fight against radicalisation. We are disappointed at the slow progress of the review; we are disappointed that there is no reviewer in place and that the Government are still in the process of selecting one. Can the Minister give the House details as to when they hope the review might report, and indicate what steps they are taking to ensure that it does so within a reasonable time? The removal of the time limit, which expired in August 2020, is plainly contrary to the wishes of Parliament when it introduced that amendment. Too often, this Government appear to make a concession in relation to legislation and then do all they can to undermine the effect of that concession. The Dubs amendment is a painful example.

The sentencing, early release and licence provisions in the first two parts of the Bill include a provision for polygraph tests, as mentioned by the Minister, which are to be used to inform licence conditions and their compliance and whether prisoners have broken those provisions. The unreliability of polygraph tests is well known. Can the Minister tell the House what view the Government take on their reliability, how—in light of that—they consider their use to be appropriate, and what studies they are relying on? Once they accept that it is not appropriate to rely on polygraph tests alone to determine whether conditions are satisfied, why rely on them at all?

Finally, the Bill makes it easier to get a TPIM, gives greater powers if a TPIM is granted, and allows it to last indefinitely without any change in circumstances. There will be cases where trial, conviction and sentence are not possible. It is right that the Government have the sort of power that a TPIM involves as part of their armoury against terrorism, but the changes are significant. Much anxiety has been expressed by non-aligned bodies about whether these powers are necessary. We will look very carefully at these powers. What is absolutely key is that the Government make a proper case for the need for these additional or changed aspects of TPIM. Can the Minister identify, in general terms, the difficulties experienced by those with the power to seek these orders, which currently arise from the balance of probabilities test? Can the Minister explain why it is thought necessary to extend them without a change in circumstances for longer than two years?

This is an important Bill. We will work constructively with the Government to deliver it, and will focus the whole time on equipping the authorities to be as effective as possible in combating terrorism. That means tougher sentencing and parole arrangements, but it also means effective measures to keep people from being radicalised or remaining radical.

Deaths in Police Custody

Lord Falconer of Thoroton Excerpts

Monday 30th October 2017 Lords Chamber

[Baroness Williams of Trafford]

I say to my noble friend that there is not another “if”. It is important that the police protect the public with honesty and integrity and that they uphold the values set out in the policing Code of Ethics. Police integrity and accountability are central to public confidence in policing. A system that holds police officers to account helps to guarantee that, so the Government must ensure that the public have confidence in the police to serve our communities and keep us safe. I think that on that we all agree.

[Lord Falconer of Thoroton (Lab)]

Dame Elish’s report is very good and I understand that it will take time to consider it. I am extremely worried by the answers that the Minister has given about inquest representation. I am afraid that the noble Lord who mentioned “ifs” and “buts” was putting it kindly. I have two questions. Please can the Minister confirm that there is an immediate change in approach by the Legal Aid Board to giving legal aid for representation of the relatives and families of those who have died in custody? It is unclear from the answer that has been given whether there is a change in practice. The Minister said that the starting point is that you will get legal aid but that it is subject to an overriding discretion. Please can she confirm that there is a change of practice and that the presumption is that you get legal aid unless there are exceptional circumstances? Secondly and separately, please can she provide details to the House of the legal aid review and of how representation at inquests is to be considered? When will the review report and will the timing of those recommendations be different from the timing in relation to the rest of Dame Elish’s recommendations?

[Baroness Williams of Trafford]

My Lords, I suspect that I have sounded a bit cautious this afternoon but I can guarantee that the starting presumption is that legal aid should be awarded for representation of the bereaved at an inquest. There is a presumption to grant legal aid. It is a total change of approach, as I think the noble and learned Lord will agree, and I should have thought that the House would be happier about it. It is a total change of approach.

Hillsborough

Lord Falconer of Thoroton Excerpts

Wednesday 27th April 2016 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

My Lords, I declare an interest as someone who has given advice to the Hillsborough families over the last five years. I thank the noble Lord for repeating the Home Secretary’s Statement. The Home Secretary promised the families that she would do her best to see the wrongs that they had suffered righted, and she has been true to her word.

The facts that the Home Secretary’s Statement narrates are truly terrible. Yesterday the jury gave an unequivocal verdict. They found that the 96 who had died were unlawfully killed and that there was no fan behaviour that did or might have caused or contributed to their death. How could it have taken 27 years for the truth to emerge? The South Yorkshire police force put protecting itself above care for the fans, the families and the truth. It had relationships with the media that made it possible for it falsely to smear the families and the fans. In all too many cases, the media colluded with the police in perpetrating those smears. In the justice system, the families for too long could never compete with the resources of the public bodies and the private companies that they faced in court.

The inquest that has just concluded has produced a verdict that completely vindicates the fans and the families. The jury delivered its verdict, which clearly was thought out as it included reasons, not just the yes/no answers that the Minister rightly went through in the Statement. It was clear that it had thought about the matters and come to clear and simple conclusions. The inquest itself, though, involved the smears continuing. Lawyers for retired police officers repeated the slurs about drunken behaviour. The current South Yorkshire force tried to establish that others were responsible for the opening of the gate. Apologies made now by the South Yorkshire Police ring very hollow indeed.

There are a number of areas that this House and the other place should look at in relation to what happens in future. First, I agree with all that the Home Secretary has said in relation to subsequent criminal proceedings. Can the Minister give us an update on the timing of decision-making? In particular, do we really have to wait until the end of the year before decisions are made?

Secondly, on the issue of disciplinary proceedings against the police, the Policing and Crime Bill currently going through the other place proposes a 12-month time limit after retirement during which disciplinary proceedings can be taken. Will the Minister consider whether, in the appropriate cases, there should be no time limit so that people cannot retire in order to avoid proper disciplinary proceedings?

Thirdly, there is the position of the South Yorkshire police force. As I have indicated, it continued with a number of allegations detrimental to the fans in this inquest, despite what it said immediately after the Hillsborough Independent Panel reported, and despite the remarks of the Lord Chief Justice when he set aside the previous inquest verdicts. What steps does the Minister think should be taken to deal with the present position of the South Yorkshire Police? Does a root-and-branch review of the South Yorkshire Police now appear appropriate? Is the position of the chief constable of the South Yorkshire Police now untenable?

Fourthly, there is the collusion between the media and the police. No one has ever been held to account for the smears in the media relating to the families and the fans. Noble Lords will know that on the Wednesday after the Saturday, the Sun produced a headline saying, “Hillsborough: The Truth”, and made entirely false allegations about the behaviour of the fans. Libel proceedings were obviously not a possibility, for a whole range of reasons. The relationships between the police and the media were to be investigated by the second stage of the Leveson inquiry. That is no longer going ahead. The relationships between the police and the media were a considerable source of the 27-year delay. Is it the Government’s intention to go back on their promise—not to these families, although they were included in the group, but to all those who had suffered from media smears—or is the second stage of the Leveson inquiry going to take place?

Lastly, there is the unlevel playing field. The inability of the families properly to fund themselves at the first inquest led to findings of accidental death and a cut-off time of 3.15 pm that meant there was no proper inquiry in the first inquest. There was an appeal to the Divisional Court but that was rejected. What steps are the Government now going to take to ensure that families such as the Hillsborough families are not left alone and outgunned in court?

It was wonderful to be in the court yesterday, on the day when the justice system acknowledged the truth. The families were vindicated. However, it was filled with so much sadness about the lives ruined by the darkness of those 27 years and the very many people who had died over the period, never seeing the person they loved being able to rest in peace. Our institutions failed the families time and again. Liverpool Football Club and the City of Liverpool never wavered in their support of the families. They were with them during the years when there was no hope, but mostly the families were alone. The best of our country and its true values were demonstrated by the families who never gave up. We should honour them and do our best to ensure that what happened to them will never happen to anyone else.

[Lord Storey (LD)]

My Lords, I thank the Minister for the thorough and important Statement. When you meet the Hillsborough families, you are immediately in an emotional bond with ordinary, loving and decent people—remarkable and loving people—who, over 27 years, with great dignity and heads held high, have taken on the establishment to get to the truth. Much is owed to those who researched the evidence; to the indefatigable supporters’ groups led by families; to the independent panel chaired by the then Bishop of Liverpool; to those who finally listened and agreed to a second inquest; to the jurors who spent years examining the evidence, and to all those involved in legal support for the family, including the noble and learned Lord, Lord Falconer of Thoroton.

On this day of all days the front page of the Sun speaks volumes for the real levels of remorse shown by that newspaper. There will be no complete justice until those responsible for the events at Hillsborough—for the monstrous cover-up, the lies and the years of organised deceit—are properly called to account. Thanks to many people, the families of the 96 dead and nearly 700 injured have never walked alone. What plans do the Government have for arrangements for access to justice to ensure that ordinary people always have full opportunity to get their complaints heard in the face of inaction or opposition from the authorities? In my city we say, “At the end of the storm there’s a golden sky”. My thoughts and prayers are with the families and survivors today.

Electoral Registration and Administration Bill

Lord Falconer of Thoroton Excerpts

Monday 14th January 2013 Lords Chamber

[Lord King of Bridgwater]

My Lords—

[Lord Falconer of Thoroton]

My Lords, I do not know whether people think it is time to draw the debate towards a close.

--- Later in debate ---

[Lord Wills]

My Lords—

[Lord Falconer of Thoroton]

My Lords—

[Baroness Anelay of St Johns]

My Lords, I think that it is the general mood of the House that it is time to hear from the noble and learned Lord, Lord Falconer, from the opposition Front Bench.

[Lord Falconer of Thoroton]

My Lords, I am obliged to the Chief Whip. Amendments are admissible in this House if they are, to quote the Companion,

“relevant to the subject matter of the Bill and to the clause or Schedule to which they are proposed”.

As is well known, the Public Bill Office has advised your Lordships that this particular amendment is not admissible. The view of the movers is that the amendment is relevant and therefore admissible. I share that view. The first question for your Lordships today is: how is a disagreement such as this to be resolved? The Companion specifies that the Public Bill Office advises on whether an amendment is admissible and it is expected that that advice will be taken. The Companion states that the decision on admissibility—again, it makes this clear—can ultimately be decided only by the House itself. It lays down a procedure; namely, it requires the Leader to put the advice of the clerks. While normally the advice of the Public Bill Office will give rise to no difficulty and will be plainly right—hence the expectation—if the mover of the amendment has good reason to contend that the amendment is relevant, and he or she has discussed it with the Public Bill Office and still holds that view, then he or she is entitled to put it to the House.

--- Later in debate ---

[Lord King of Bridgwater]

My Lords—

[Lord Falconer of Thoroton]

I will take interventions when I have finished this part of my speech.

The correct approach was accurately described by the noble Baroness, Lady Boothroyd. I will embarrass her by quoting what she said in November:

“For us, of course, there is no Speaker here to make that ultimate decision”—

namely, whether we can accept an amendment—

“We all know what the Companion tells us; it has been repeated many times recently in this House. But by its very nature, it is advice that is offered to us and it is only advice; it is only expected to be taken. It is not a command, nor is it written on tablets of stone. I put it to the Leader of the House that, as there is no individual in this House to make the ultimate decision, is it not for your Lordships’ House to make that final decision?”.

I agree with the noble Baroness. It completely reflects how a self-regulating House should operate. I want to make it clear that my disagreement with the views of the Public Bill Office in no way reduces my respect for those in that office. I have the greatest confidence in them; they serve the House very well. This House should not feel anxiety about debating and reaching a decision on an issue such as this. Again, the noble Baroness, Lady Boothroyd, got it right when she described her own disagreements with the clerks:

“But I took it in what I believed to be in the best interests of the democratic process, and to provide debate on a contentious issue of public interest and concern—and the roof did not fall in”.—[Official Report, 19/11/2012; col. 1623.]

Again, I respectfully agree.

Why is this amendment admissible? Relevance is the test. The language is different from that of the other place, but the slightly different approaches would usually achieve the same result. The rules exist to ensure that amendments to Bills are properly focused on that Bill and not on wider issues. There are no legally defined limits to what is relevant in this context; they are to be garnered from the approach of the House to previous amendments. The Public Bill Office rightly advised me, when considering this matter, to look at previous amendments which had been debated without any issue as to relevance being raised by that office. I was told that that indicated what is admissible since the Public Bill Office considers every amendment for relevance. With respect, I agree with the approach of the Public Bill Office.

Noble Lords will remember the Parliamentary Voting System and Constituencies Act 2011 which introduced a new system for fixing boundaries focused primarily on the number of registered voters in any place. Throughout the passage of that Act, which for these purposes deals with boundaries and the alternative voting system and not with registration, through both Houses of Parliament, amendments were tabled and debated that sought to delay the timing of the boundary review until such time as the level of registration of voters had improved. Concern was expressed on all sides of both Houses about the undoubted fact that there were unsatisfactorily low levels of voter registration—perhaps as many as 6 million people who should be registered were not. There was no substantial dispute on any side of the House that this was a problem that needed to be addressed. Neither the Public Bill Office in this House nor the clerks to the Speaker or the Speaker in the Commons regarded those amendments as either inadmissible or out of scope. The 2011 Act contains no provisions about registration.

This Bill speeds up the introduction of individual elector registration. Currently, the position is—

[Lord True]

My Lords, it was on this point that I had wished to intervene from the perspective of someone who spent 13 years in the usual channels. The question that the noble and learned Lord is putting is, I think, the wrong one. It is not whether the House can do it, but whether it is wise to be contemplating doing it. That was the point made most compellingly by the noble Lord, Lord Martin of Springburn. I would ask this directly of the noble and learned Lord: if it is not the clerks to whom we defer for advice in these matters, then to whom? If, as was said earlier, we are now going to establish a practice whereby any noble Lord can put the case that their amendment is a good one so why do we not take it, or worse, if we are expected to go to outside lawyers or QCs for advice on what is or is not admissible, would that not be a revolution in the way this House does things and would it not advantage those with deep pockets or political parties with access? Most of the rest of us in this House do not have access.

Is it not the case that the—

[Lord True]

We are in Committee, my Lords. Is it not the case that our clerks are uniquely experienced and uniquely dispassionate, and that their advice is available equally to all? Is it not better to stick with the system we have than the new, revolutionary approach being proposed by the noble and learned Lord?

[Lord Falconer of Thoroton]

My Lords, I am not suggesting a new and revolutionary approach. There is one group of people—namely, this House together—which has a better view than the clerks. I say that because the clerks are seeking, in the advice they give, to express the will of this House. I fundamentally disagree with the noble Lord, Lord True, that this is a change in practice. It reflects exactly what has been happening for many years. I refer to the debate in 1968 where the idea that it was in any way improper to discuss it was wrong. The consequence of being a self-regulating House is that when significant issues such as this one arise, ultimately it is the House that decides them. This is a classic issue which the House should decide.

[Lord King of Bridgwater]

The noble and learned Lord keeps citing the 1968 case. Is it not true that Lord Goodman then withdrew his amendment?

[Lord Falconer of Thoroton]

He withdrew his amendment at the end of the debate, making it absolutely clear that there was no support for the idea that solicitors should become High Court judges. That was the reason he withdrew it. However, as I understand it, the Leader of the House and the noble Lord, Lord Forsyth, have said that there is some convention that you should not move the amendment. The approach of the Leader of the House in urging my noble friend Lord Hart to withdraw his amendment, and as I understand it the approach of the noble Lord, Lord True, is that the right thing here is that the advice of the clerks, which I greatly respect, is not advice but a definitive ruling against which there is no appeal.

I have referred to the fact that amendments relating to registration were allowed to the boundary changes Bill. The obvious reason for that is that, in relation to a Bill about boundaries, it was accepted that registration is a vital building block in how to fix the boundaries. It is important, when applying the rules of admissibility, to show both common sense and consistency. The thing that really matters in relation to the new—

[Lord Wills]

Very briefly on this point of relevance, perhaps I may draw the attention of my noble and learned friend to Clause 16 of this Bill which, like this amendment, deals with electoral boundaries. It deals with the reviewing of boundaries, as does this amendment. Both Clause 16 and the amendment deal with the timing of the reviews, not their outcome. Does my noble and learned friend agree that that makes the amendment admissible in the context of this Bill?

[Lord Falconer of Thoroton]

I do not know if your Lordships have noticed, but it is my personal view that this is an admissible amendment because it is relevant. If you fundamentally change the system of registration—the Government have described the effect of this Bill as being the most important change to registration for 100 years—that is bound to have a very significant effect on the boundaries that are to be fixed for individual constituencies. The best analogy I can think of is this. Let us suppose there was a Bill to double the length of sentence for anyone given a sentence of imprisonment. Would the clerks or this House take the view that you could not have an amendment which said, “Before you introduce these longer sentences, make sure that you have enough prison places”? Would it be argued that because the subject matter of the Bill was sentencing, you could not deal with the issue of prison places? That is the closest analogy.

This is a situation where constituency boundaries are determined by the numbers of registered voters. If you are going to change the registration system, that is bound to have an effect on the boundary changes. What is the effect of the amendment? It would delay the boundary changes by five years, which does not mean that they must be changed in five years’ time, but that they must be “not before” a period of five years. The consequence of such an amendment would be an opportunity to look at the effect of individual registration. As has been pointed out by my noble friend Lord Hart, we already have pilots which suggest that there is a low rate of striking in relation to the new individual registration. That is what you would expect. Currently, household registration allows the head of the household to register everyone. The effect of individual registration, coupled with the need to prove that you are the person you say you are, inevitably makes the process more cumbersome. There are considerable benefits, but the effect inevitably will be to reduce the coverage of the electoral register.

In addition to those arguments, it is plain that we are in a situation of limbo because it is not clear upon what basis, in terms of constituencies, the election that is bound to take place by May 2015 will take effect. This is an admissible amendment. This is a relevant amendment. It is an amendment that this House can rule on. There are very strong arguments for delaying the introduction of the new method of registration because if you do not, you will end up with a substantial group of people, mostly the dispossessed, who are not registered and will thus take no part whatever in our democracy. I strongly advise the House to feel able to vote on this amendment and I strongly advise noble Lords to support it.

[The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)]

My Lords, I have thought hard if not long about how to respond to the debate on the amendment moved by the noble Lord, Lord Hart. I recognise that many noble Lords will have their own reasons for lending their support to one side or the other. Sometimes this may be a matter of conviction. Sometimes one may see party advantage one way or another. I am going to ask noble Lords to put all that to one side. Before I challenge some of the issues raised by the debate, I would like to focus the attention of the Committee on the implications of passing the amendment.

Some might say that this is an amendment conceived in mischief. I know and like all the noble Lords whose names are on the amendment, but I expect all of them will have to acknowledge that they have been disingenuous, if persistent, in seeking to include it in the Bill, for it seeks to postpone the provisions of an Act passed by this House and by Parliament less than two years ago. We should not forget the context in which the many measures for providing for constitutional change were brought before Parliament. Following the expenses scandal all parties recognise the need for change. The reduction in the size of the House of Commons and the provision for an immediate boundary review to be repeated in each fixed-term Parliament were designed to restore public confidence in the political institutions of which this House is a part.

This was the manner in which the House debated the measure. It was thoroughly argued into the early hours and indeed, memorably, through the night on one occasion. Issues that I am sure are fresh in noble Lords’ minds were raised, argued and resolved from the bandwidth of variation in constituency size, the historic overrepresentation of some parts of the United Kingdom and the need to reconcile that with geographical, local and historical ties. From the Tamar valley to the Isle of Wight to Orkney and Shetland, the Bill was passed. It is the law.

How stands the House should it now say, without good cause, that the provisions of the near-completed boundary review should not be implemented for the election for which they were designed? How stand politicians who argue this way? How stands politics as a consequence? Where does it put this House in the eyes of the people should the Committee choose to pass the amendment? We will not be seen, as we would choose to be seen, as the guardians of constitutional propriety or active above and beyond narrow interests and loyalties. No, we will be seen as being no different from the rest of them, motivated by hubris and cynicism. We have recently won time to demonstrate the strengths of the House. Indeed, it would appear from the comments of my noble friend who attended the Constitutional Committee that the future form of this House is the subtext as to why the amendment is here today, and I am replying to it. We should see the trap that has been laid.

I have listened to the arguments of those supporting the amendment. It is still not clear whether there is agreement on the ambiguity at the heart of it. The current review, based on the December 2010 register, is one for which current law provides. How does its deferment stand under the amendment? Is it to be kept on ice and used for the 2020 election, despite the fact that it will then be based on a register that will be nearly 10 years old or is the work to be abandoned and a new review used for the May 2020 election? Whatever, it is clear that in the absence of the current boundary review, it would be the old boundaries, based on a register as old as February 2000 as far as England is concerned, that would be used for the May 2015 general election.

[Lord Falconer of Thoroton]

I think it is clear from the wording of the Act that, as a result of the amendment, if there was a review with a boundary review date of 2018, then the register that would be taken would be 1 December 2015.

[Lord Taylor of Holbeach]

I am reassured that the noble and learned Lord makes that point, but that means that this particular boundary review has been a wasted effort in his mind. I would like to challenge why that is the case. This particular piece of legislation affects only individual electoral registration. It does not affect the boundaries of constituencies—certainly not for the next election. That lies in existing legislation that is not the subject of the Bill. If the Committee has had difficulty in addressing this issue, it rather proves the point of relevance. We have heard some marvellous speeches for and against individual registration of electors, which is the subject of the Bill before the Committee, but it is hardly going to be affected by this amendment because the 2015 boundaries are based on the 2010 register, which is already in existence and cannot be affected by a change of register for this occasion. That register has nothing to do with individual voter registration or the Bill.

There have been lots of contributions from all sides of the Committee about individual electoral registration and, in particular, criticisms of the transitional procedures. That is perfectly proper. That is what the Bill is about. The Bill is about the process of individual electoral registration. However, they are irrelevant as far as the amendment is concerned because it seeks to defer a boundary review that is based on the old system of registration, namely the 2010 register. That is why, I suspect, the clerks found it extremely difficult to find relevance in the amendment because it does not affect the subject of the Bill that is before the Committee of the House.

There has often been mention of the differing views within the coalition on the presentation and approval of the current review, which is now more or less completed. That may be so but, as the law stands, it is not the Government, or the coalition, that decide the response to the Boundary Commission; it is Parliament and it will have the final say. However, the amendment would deny this Parliament that opportunity by preventing the Boundary Commission finishing its work and so denying the House of Commons of this Parliament an opportunity to take an informed decision on the Commission’s proposals. Is it right that this House takes it upon itself to deny the House of Commons that opportunity? Herein lies the trap for those of us who believe in the unique contribution that this House can make to our parliamentary democracy and the delicate constitutional underpinning that lies beneath it. Noble Lords can, of course, ignore this and press ahead with their amendments. I hope they do not subsequently rue the day. Rather, I hope noble Lords will reflect further on where this amendment might put this House, and politicians and politics in general. I urge the noble Lord, Lord Hart of Chilton, to do so and to withdraw his amendment.

Should the noble Lord and his colleagues press on and seek the support of the Committee, I ask all noble Lords to think this matter through, as I have tried to do myself. It is a virtue of this place that I can address all the Benches and say that we in this House should be very wary of defying the will of this Parliament, as expressed in the Parliamentary Voting System and Constituencies Act. I certainly do not seek to argue that the elections to another place are no concern of this House or this Committee—the Bill we are discussing is all about that—but I do say that we fail in our constitutional function if we deny another place fairness of constituency size.

--- Later in debate ---

[Lord Rennard]

My Lords, our Amendment 39 seeks to resolve concerns raised by the Electoral Commission that the wording in the Bill could weaken electoral registration officers’ existing duties.

It is welcome that the Government propose to add a duty to secure that,

“persons who are entitled to be registered in a register (and no others) are registered in it”.

This is effectively a duty to ensure completeness and accuracy, and I welcome that. However, we do not see the case for diluting that duty with a test that states,

“so far as is reasonably practicable”.

If those words were omitted, the duty would simply be subject to the existing test, which is to,

“take all steps that are necessary”,

making it far stronger. The Government argued at an earlier stage that the “reasonably practicable” test does not make any difference and that electoral registration officers will still comply. That begs the question: if it makes no difference, why change the wording? It is clear that having these words is more likely to dilute the duty than not having them.

As far as I know, no legal challenges have been brought to the existing test of,

“take all steps that are necessary”,

with, perhaps, a vexatious suggestion that an electoral registration officer should have taken an unreasonable step, such as coercing someone to fill in a form or something of that nature. It is of course understood that the steps taken should be reasonable, but we believe that all necessary steps should be taken, and to that end the words referred to in Amendment 39 should be omitted.

I would be grateful to hear from the Minister why he thinks there is merit in removing those words—or at least a reiteration of the assurance that there is no intent to change the purpose of those words, even if they disappear from the legislation. We should not like to hear that there is any intention to dilute the duties of the electoral registration officers, and these reassurances will need to be persuasive if we are not to return to this issue on Report. I look forward to hearing from the Minister and I beg to move.

[Lord Falconer of Thoroton]

My Lords, we have two amendments in this group. They chime with the point that the noble Lord, Lord Rennard, is making; namely, is the Bill intending to dilute the powers of electoral registration officers and the Electoral Commission?

Amendment 39A seeks to address concerns held by the Electoral Commission that Schedule 4 waters down the provisions of the Representation of the People Act 1983 that required electoral registration officers to take all necessary steps in carrying out their duties. Our amendment proposes to remove this subsection and is intended to give the Government an opportunity to explain their thinking on this, and it very much reflects the point made by the noble Lord, Lord Rennard.

With regard to Amendment 39C, this Bill downgrades the role of the Electoral Commission in the transition to and rollout of individual electoral registration. We have sought several opportunities to amend this Bill to give the Electoral Commission more power. This amendment aims to give power to the Electoral Commission to intervene where EROs are not performing to a sufficiently high standard.

However, interestingly, the Electoral Commission has now issued a statement saying that it feels that it does not need these further powers. We originally tabled this amendment in response to the Electoral Commission’s concerns, but it now says:

“In instances where the Commission has concerns about ERO performance, following a recommendation from the Commission, the Secretary of State or Lord President of the Council has a ‘power of direction’ to require EROs to comply with any general or special directions in relation to the discharge of their functions. To date this system has worked well and we therefore see no need for this to change when IER is introduced”.

The Electoral Commission says it is satisfied with this provided that it receives assurance from the Government that they are prepared to use the existing power of direction in cases where EROs are not fulfilling their duty to take all necessary steps to maintain the electoral register.

It is not a satisfactory position that the Electoral Commission not taking additional powers depends upon a Minister intervening in relation to what particular EROs are doing. It is a slower process; it depends upon the good will of politicians. Is it not better for it to be dealt with by a body that is independent of any political party? I would be interested to hear the Government’s views on these issues.

[Lord Gardiner of Kimble]

My Lords, first, I thank my noble friend for raising the issue of the general duty on registration officers.

The amendments to the 1983 Act set out in the Bill strengthen the existing duties on a registration officer while taking into account the requirements of the new registration system. The amendments to Sections 9 and 9A of the 1983 Act made by the Bill do not lower the standards that registration officers are expected to meet. Instead, they set out explicitly important requirements that are not expressly stated in legislation at present.

The qualification of “reasonably practicable” applies to the standard of completeness and accuracy of the register that must be reached—it must be as complete and accurate as is reasonably practicable. This is a high standard. To set it any higher would be to ask registration officers to achieve unreasonable or impracticable levels, which would not be right. It is simply not possible for registration officers to have perfectly up-to-date registers at all times and it would not be reasonable to introduce a requirement on registration officers which they would not be able to meet.

The Electoral Commission accepts that the changes proposed to Section 9A do not represent a watering down of the duties of electoral registration officers, but has asked the Government to make clear their intention behind the rewording of Section 9A. To offer that reassurance I will quote Mr David Heath from another place when he said that,

“far from diluting the requirements on registration officers, under the new registration system we are strengthening the existing duties”.—[Official Report, Commons, 27/6/12; col. 316.]

The change we are making does not weaken the duty in Section 9A. We have set out in draft regulations our initial proposals for what registration officers must do to encourage an application to register to vote. This includes as a minimum the sending of an invitation, two reminders, and the sending of a canvasser to encourage an application.

I believe that Amendment 39A has the same desired effect as Amendment 39. In addition, however, it would have the effect of removing the explicit duty to seek to include in the register those who are eligible to vote but are not currently on the register. Amendment 39C would give the Electoral Commission powers of intervention where they judge that registration officers have not taken all of the necessary steps outlined under Section 9A. However, it is not clear from the amendment what form this intervention would take.

We believe that the fulfilment of the requirements set out in Section 9A plays a vital role in improving the completeness and accuracy of our electoral registers, which we are committed to achieving; however, giving the Electoral Commission powers to intervene where this is not being done would be a significant change in its role.

The Commission already has powers to set and monitor performance standards for electoral services, against which electoral registration officers’ performance is measured. A failure to meet those standards could indicate a potential failure to meet the duty set out in Section 9A of the 1983 Act. In addition, Ministers may require registration officers to comply with directions relating to discharging their functions. It is also an offence for them to breach their official duty without good cause. To date this system has worked well and we see no need to change this or for any specific provision to be made relating to the discharge of Section 9A duties. For these reasons, I question whether the amendment is necessary in ensuring that Section 9A duties are fulfilled. For those reasons I ask my noble friend to withdraw his amendment.

I shall also speak to Amendments 43 and 45, which are minor and technical amendments. As a consequence of the changes to the canvass process under IER to be made by the Bill, we need to remove the reference to “the relevant date” from Section 49(6)(a) of the 1983 Act. That date is usually 15 October, which is currently the date of residence for the purposes of the annual canvass. Under IER the canvass will not be tied to a date. It is for those reasons that the Government will move Amendments 43 and 45.

--- Later in debate ---

Moved by

[Lord Falconer of Thoroton]

39B: Schedule 4, page 21, line 26, at end insert—
“( ) In subsection (2), after paragraph (e), insert—
“(f) reporting to the police any suspicion he or she might have that an offence had been committed relevant to the integrity of registration and absent vote applications””

[Lord Falconer of Thoroton]

This amendment seeks to put an additional duty on electoral registration officers. Tackling electoral fraud is one of the stated aims of the Government in shifting to a system of individual electoral registration. It has been one of the justifications for speeding up the implementation. While we warn against the fast-track transition, we wholeheartedly support all attempts at addressing and seeking to eliminate the occurrence of fraud. EROs are the officials charged with the administration of the electoral register. If they see suspicions of fraud, they should report them to the police, and in this amendment we suggest that a specific duty be placed on EROs to do that. I beg to move.

[Lord Gardiner of Kimble]

My Lords, Amendment 39B would require electoral registration officers to report to the police any instances where they suspect that individuals have committed offences relating to electoral fraud when submitting a registration or absent vote application. While the spirit behind the amendment is commendable, the Government do not consider it to be necessary to make this a statutory requirement. I should like to explain the reasons for that.

The need for EROs to refer to the police any suspicions they have on registration or postal vote applications which they receive is already very clear in the guidance issued to them by the Electoral Commission. The Electoral Commission’s Managing Electoral Registration in Great Britain guidance clearly states:

“Any issues concerning the integrity of the registration process should be reported”—

by the ERO—

“to the police immediately”.

In addition to this, the Electoral Commission has worked with the Association of Chief Police Officers to produce guidance for EROs, returning officers and police officers on identifying and responding to allegations of electoral fraud around the registration and postal voting process. In exercising its powers under Section 9A of the Political Parties, Elections and Referendums Act 2000, the Electoral Commission has also set a specific performance standard on integrity which EROs need to meet in maintaining the integrity of registration and postal vote applications. In order to meet this performance standard, EROs are required to establish and maintain contact with their local police with a single point of contact and to ensure that any suspicions arising from registration and postal voting applications are reported to them immediately.

In view of the guidance, performance standards and the reports from the Electoral Commission which confirm that the overwhelming majority of EROs already take the appropriate action to report any suspicions they have in relation to fraudulent registration and postal voting applications to the police, we do not consider that this amendment will have any major impact or lead to any improvements on the ground. Although it is commendable, it is for those reasons that I ask the noble and learned Lord to withdraw his amendment.

[Lord Falconer of Thoroton]

My Lords, I am grateful to the Minister for his reply. I beg leave to withdraw the amendment.

Amendment 39B withdrawn.

--- Later in debate ---

[Lord Gardiner of Kimble]

My Lords, I shall speak also to Amendment 42. These are minor amendments and are intended to ensure that as many eligible applicants as possible are registered by removing a restriction on rolling registration applications being added to the revised register. Removing this restriction would not affect the entitlement of people to object to an application for registration or the registration officer’s duty to determine objections. Rolling registration was introduced by the Representation of the People Act 2000, the provisions of which set up a 14-day period prior to the publication of a monthly update or a revised register during which successful rolling registration applications may not be added.

Under the household registration system, this 14-day limit does not cause any great problems as different rules apply to the compilation of registers used for elections, and the revised register, which is usually published on 1 December, is published following the canvass period. Because a returned household canvass is a de facto application to register, few rolling registration applications are currently made in the canvass period. However, under IER, all applications to register will be akin to rolling registration applications. Having a 14-day period when these cannot be added to the revised register could cause a problem and potentially harm the completeness of the register. The amendments remove the 14-day limit in relation to the publication of the revised register.

As I said, these are minor amendments, but they are supported by the Electoral Commission, which said that it did not believe that there was any significant rationale for retaining the current 14-day period. Indeed, the Association of Electoral Administrators did not feel that there was any administrative reason to keep the limit. For those reasons, I beg to move.

[Lord Falconer of Thoroton]

My Lords, the amendment sounds reasonable. Am I right in saying that there will now be no time limit before publication in respect of which registration can take place, meaning that, if you make your application the day before the register is published, it will be included in the register? If you remove the 14-day limit, that appears to be the effect. Perhaps I have misunderstood the amendment, but that seems to be the effect.

[Lord Gardiner of Kimble]

My Lords, I think that I am getting into slightly technical territory, but my understanding is that the provision is designed so that, about five days before the register is concluded, as many people as possible are able to be on the register. Some assistance may be coming from the Box, which is always very helpful. The answer that I have is that there is still a five-day objection period, which I think gives the provision a practical effect.

[Lord Falconer of Thoroton]

That is incredibly helpful. I am more than happy to see the 14 days go. The consequence is that, up to five days before publication, you will get on to the next published register; if the application is within those five days, you will be on the register that is published after the one that is just about to be published.

[Lord Gardiner of Kimble]

I am very happy to confirm to the noble and learned Lord that that is the case.

--- Later in debate ---

[Lord Gardiner of Kimble]

My Lords, this is a minor and technical amendment to the Bill. It ensures that there is no ambiguity over the continued application under individual electoral registration of the existing criminal offence relating to non-disclosure of information in response to the annual canvass or providing false information in the response.

The amendment maintains our declared policy of keeping the criminal offence alongside the new civil penalty. The criminal offence of non-disclosure or providing false information is an important part of electoral registration, giving registration officers the capacity to offer a warning on the canvass form and to insist that it is duly completed and returned.

The civil penalty is an additional tool for registration officers as they encourage individuals to register, but the criminal offence is still necessary to ensure that they receive as much information as possible in response to the annual canvass so that residents may be retained on the register or invited to make an individual application.

This is a technical amendment to paragraph 1B of Schedule 2 to the Representation of the People Act 1983, which is inserted by the Bill. It creates a link to paragraph 1 of that schedule, on the requirement to give information, which contains the link to the offence in paragraph 13. I beg to move.

[Lord Falconer of Thoroton]

I feel sorry for the Minister because this is rather a complicated amendment. It was presented as being intended to preserve the criminal offence alongside the civil penalty. My reading of the amendment, which amends an amendment to another Act of Parliament, is that, instead of referring to information that a registration officer “must request or provide”, it refers to information that they,

“may or must require persons to give by virtue of regulations under paragraph 1(2), or must provide to persons”,

when conducting a canvass in Great Britain. I do not read Amendment 44A as preserving a criminal offence; I see it as changing the terms of the change that was introduced by the amendment to the other Act in this Act. Am I right and, if so, what is the effect of Amendment 44A? I apologise for asking such a complicated question but it is a rather complicated provision.

[Lord Gardiner of Kimble]

I understand that the key phrase in the amendment is the reference back to paragraph 1, but its purpose and effect is that there will be a criminal offence relating to non-disclosure of information on the annual canvass, as there is under the current household registration system. This relates to not providing information or providing false information when requested by an ERO. The criminal penalty can be used by EROs to ensure that the annual canvass form is completed and returned. However, the offence will remain in addition to the civil penalty being introduced under IER, which allows registration officers to impose the penalty where an individual fails to apply to register when required to do so. The criminal offence is more severe because it aims to prevent the potential disenfranchisement of others through the canvass whereas the civil penalty relates to an individual’s application. That is the purpose and effect of the amendment. I can go into further technical detail but perhaps I may clarify the point to the noble and learned Lord more fully when I have taken further advice. Having looked at the technical detail, which involves so much explanation of paragraphs, sections and subsections, I think that I would be in difficulties, and I suspect that other noble Lords might be also.

[Lord Falconer of Thoroton]

I am perfectly content with that answer. Perhaps the Minister could have somebody write a little letter about it, because I do not think that it is at the heart of the Bill. It is my fault for not quite understanding the effect of the new amendment. If it were possible to write a letter in relation to it, I am sure that it would be no problem, but it would mean that, by the time we got to Report, we would know where we stood. I apologise for not grasping it.

Amendment 44A agreed.

--- Later in debate ---

Moved by

[Lord Falconer of Thoroton]

47: Schedule 5, page 27, line 21, at end insert—
“( ) The Government shall report to Parliament annually, within two months of the end of the financial year, on what money has been made available to local authorities to meet costs of transition to the new register and what safeguards have been put in place to make sure the money has been spent on the specified task.”

[Lord Falconer of Thoroton]

My Lords, this amendment—if it was passed— requires the Government to report to Parliament annually, within two months of the end of the financial year, on what money has been made available to local authorities to meet the costs of the transition to the new register which will be under IER, and what safeguards have been put in place to make sure that the money has been spent on the specified task. I do not think it would be properly regarded as ring-fenced money but it would mean that the Government would be identifying the amounts of money that they expected to be seen spent on the transition and then there would be a report back afterwards to indicate what had happened to that money.

This is important because I think everybody in the House, and certainly in the other place, is aware of the importance of IER being made to work. I think most people would accept that whether IER works properly or is introduced in a way that does not leave too many people off the register will depend to some extent on the resources that are made available by central government to local authorities to ensure that happens. We know local authorities are pressed in a whole variety of ways at the moment because of the current economic position. I think it is sensible to try to protect the position that at least there is a requirement to report on both the money envisaged and then what happened to it. I beg to move.

[Lord Norton of Louth]

My Lords, I have a slight problem with the amendment moved by the noble and learned Lord. I may have missed something, but he said that the amendment provides that the Government shall report to Parliament annually, so there is no limit on the number of years—presumably it is in perpetuity—but they would be reporting on something transitional. Presumably there should be some time limit set in the amendment, otherwise there is redundancy built in to what is being asked in terms of providing material that becomes irrelevant once the transition is complete? Or have I missed something?

[Lord Falconer of Thoroton]

One would hope so. I do not know how long the transition is going to take. It is clear from the way that everybody has spoken that probably in the first publication of the register where IER is compulsory—1 December 2015—it will not be complete. I have no idea how long it will go on after that, therefore at the moment I am not minded to put in a terminus date. At this stage, I cannot see any objection to the principle. This may surprise you as I am not intending to push this to a vote, but if the principle were accepted—which I hope it will be—then I think the right thing to do would be to talk to the Government to work out the best way to craft the detail.

[Lord Gardiner of Kimble]

I am most grateful to the noble and learned Lord for his amendment requiring an annual report to Parliament on the funding allocated to local authorities. I am sorry to disappoint the noble and learned Lord, but as the then Minister for Political and Constitutional Reform announced during this Bill’s Second Reading debate in the other place, we will provide local authorities in England and Wales with grants under Section 31 of the Local Government Act 2003 to pay their net costs for the transition to individual registration in addition to the current costs of running the annual canvass process which will continue to be met through the formula grant.

The Government wrote to local authorities over the summer seeking views on the proposed payment method for the allocation of non-ring-fenced Section 31 grant and the proposed formula which will be taken into account in making allocations. The Minister for Political and Constitutional Reform then wrote to local authorities in December 2012 setting out how the final funding approach, including the funding formulae, will work. The grants paid by the Government to each local authority during the transition will be a matter of public record, and the progress made by local authorities towards implementation of individual registration will be scrutinised by the Electoral Commission as part of its performance standards regime and will also be a matter of public record.

Spending decisions are ultimately a matter for local authorities. However local authorities are required by Section 54 of the Representation of the People Act 1983 to pay the expenses of a registration officer properly incurred in the performance of their functions. Paragraph 16 of Schedule 4 to the Bill ensures that this requirement extends to the registration officer’s duties in respect of the transition to the new system.

I am sorry to disappoint the noble and learned Lord, but it is for those reasons that it is felt that the amendment is not necessary, and I therefore ask him to withdraw his amendment.

[Lord Falconer of Thoroton]

The effect of my amendment would be that the report to Parliament annually, within two months of the end of the financial year, would simply be on what money was made available which the local authorities could use to meet the costs of the transition and what safeguards have been put in place to make sure the money had been spent on the specified task. It does not, in fact, require that the Government have to ensure that they do. It is a means of identifying what they intended and what steps they took to see whether it happened. With the greatest of respect to the Minister, I cannot see in any of the reasons that he gave why that is not quite a good thing to do which causes no problems for central government and does not interfere with the fact that it is ultimately for local authorities to make the decision about how they spend the overall grant they have. All that is being required here is that central government do the best it can in order to ensure that there is enough money for the transition without in any way offending the constitutional position.

Despite the Minister’s excellent help on previous amendments, I fear we may be hearing about this one again. I beg leave to withdraw the amendment.

Amendment 47 withdrawn.

Moved by

[Lord Falconer of Thoroton]

48: Schedule 5, page 27, line 31, leave out “first” and insert “second”

[Lord Falconer of Thoroton]

My Lords, Amendments 48, 49 and 51 deal with this particular issue. We know that even though there is no compliance with the notifiers in the period up to 2014, nevertheless the individual elector will be carried over to the 2014 register but not to the 2015 register. In relation to the 2014 register, although the registration would be carried over, the proxy or postal voting arrangements made in relation to that elector will not be carried over. We would like to see carryover of the proxy and postal voting arrangements. We fear that if there is carryover without that also being carried over, it may well be that, without knowing it, people lose their ability to vote. The people who will be most affected by this will tend to be the poorest and the dispossessed in society. Is there a reason why the carryover does not include the proxy or postal vote? If the registration is to be carried over to 2014, what is the thinking behind not having a carryover? Will the Government think again? I beg to move.

--- Later in debate ---

[Lord Taylor of Holbeach]

My Lords, there is no question of inadmissibility for these amendments. Indeed, questions were raised during the debate that we had a short while ago that addressed, in particular, the transitional arrangements to the new, individual electoral register.

Two subjects are under discussion and, if noble Lords will permit, I will deal with them in turn. The first is the removal of absent votes from those electors who do not register under IER in 2014. My noble friend Lord Rennard’s Amendment 50 and Amendment 51, tabled by the noble and learned Lord, Lord Falconer, speak to that issue. The amendments would leave in place absent votes for the 2015 general election for voters who have not registered or been verified under IER. To respond to my noble friend’s challenge, I think that he is saying that that is incompatible with the arrangements that we have elsewhere. One of the drivers of IER is tackling electoral fraud, and especially vulnerabilities to registration fraud, to restore voters’ confidence in the system. Moving to a position where all those casting postal votes or using proxies have been verified through IER will add an additional safeguard to the system at the earliest possible opportunity.

The Electoral Commission agrees with this position and stated in response to Amendment 50:

“We oppose this amendment because we believe that the security of the absent voting process should be improved in advance of the 2015 UK general election”.

The use of data matching to confirm entries will mean that a significant number of current postal voters are likely to be able automatically to retain their postal vote in the 2015 general election. Others who are not automatically confirmed on the new register will be given an opportunity and reminders to register under the new system in 2014 and, if they choose not to, will still be able to cast a vote—not a postal or proxy vote, but one in person—at the 2015 general election. We are not disfranchising anyone, but the driver is, of course, to get people to register under IER.

There will be clear communication to anyone with an absent vote who is invited to register under the new system about what will happen if they do not do so, and in the event that the person does not register, they will be written to again to inform them that they have lost their absent vote and giving them the opportunity to register under IER and reapply for their absent vote. This is a participatory exercise; it is not designed to remove legitimate voters from the register.

Those steps, alongside the addition of the other measures we have introduced to maintain completeness, such as the introduction of the civil penalty, minimise the risk of someone with an absent vote inadvertently losing it, which was one of the noble and learned Lord’s concerns, while as promptly as possible bringing in an important safeguard against fraud.

I now turn to Amendments 48, 49 and 58, each of which relate to the carry-forward of existing electors under IER. I briefly remind the Committee that, under our proposals, there is already a carry-forward function to include those from whom a canvass form has been received in the final pre-transition canvass, which we intend to conclude in spring 2014. Those who do not make a successful application to register and are not confirmed by data matching, which of course the vast majority will be, will remain on the register throughout the transition to TIER, including the register used for the 2015 general election.

Amendment 48, tabled by the noble and learned Lord, would have the effect of including in this carry-forward those electors who last registered in the canvass of 2012. This would retain until 2015 the entries of electors added to the register last year who did not respond positively to the final non-IER canvass. If entries from 2012 were kept on the register until 2015 without any subsequent evidence that the person was still resident there, the register for the next general election would contain entries where the ERO had not heard from the elector for more than two years. We believe that this is too long for the ERO to remain satisfied that the citizen is indeed still resident and that the effect of this amendment would be to increase the inaccuracies on the register, something I think all Members of the Committee would agree should be avoided. Indeed, much of the debate we had earlier was about inaccuracies on the register.

Amendment 49, also tabled by the noble and learned Lord, would extend the carry-forward for one year, so that non-IER entries on the register are not removed until 2016. Amendment 58, tabled by my noble friend Lord Rennard, would mean that the final transition to an electoral register made up solely of individually registered electors could take place only following Parliament approving a statutory instrument. We are not minded to adopt these proposals because of the likelihood of the inaccuracies they will bring to these early IER registers. We know that carrying forward non-IER entries on the register will result in some inaccurate entries being carried forward. We judge that this is an acceptable risk to take to protect the registers for the general election in 2015.

However, when the registers are published, after the 2015 canvass, in December 2015 it could have been nearly two years since the ERO had heard from the individuals in question here, which brings in the risk of a high degree of inaccuracy. Under the noble and learned Lord’s amendment these entries would remain on the register and under my noble friend’s amendment they would remain on the register if Parliament did not vote to engage the removals process in 2015. Furthermore, under our plans, by the time of publication of the registers in 2015, those individuals who are not confirmed automatically at the start of the transition will have had more than a year to register individually, over two canvasses, and will have been contacted a number of times by their ERO. There will also be a general election between the two canvasses—a time when awareness of politics and voting is at its highest. Our intention—and I hope this reassures noble Lords who are the authors of these amendments—remains that EROs will write to individuals who have neither registered nor been confirmed towards the end of the 2015 canvass to inform them that they will be removed and to offer them one further chance to apply to be registered.

I hope that is reassuring. The intention behind these amendments is to maintain the number of entries on the register, but in our view they risk reducing the accuracy of the register to an unacceptable degree. In the case of the amendment tabled by my noble friend Lord Rennard there is also the difficulty of creating uncertainty for the public and administrators which could undermine the effectiveness of our plans for the transition. The Government are confident that our proposals for the transition to IER are about right. We will avoid the problems that this group of amendments is intended to address and, for the reasons I have set out, I urge the noble and learned Lord to withdraw his amendment.

[Lord Falconer of Thoroton]

I am grateful to the Minister for that comprehensive reply. Two things go through my mind. First, in relation to the 2014-15 change, he acknowledges that despite all the efforts being made to get people to register by IER it may not work. If that is right, why will it work in relation to postal or proxy votes but not in relation to individual registration? Secondly and separately, the noble Lord, Lord Lipsey, referred to the effect of the information that is coming out, and we know what the data-matching pilots are saying. Do they not make the Government think that a longer carryover period is be required? In particular, the data-matching pilots are showing that only about 70% of names are matching up, which may not be enough. I hope the Government will think about those matters. We will certainly think again and consider whether to come back on Report. I am grateful to the Minister for his answer. In the circumstances, I beg leave to withdraw the amendment.

Amendment 48 withdrawn.

Police (Complaints and Conduct) Bill

Lord Falconer of Thoroton Excerpts

Tuesday 11th December 2012 Lords Chamber

[Lord Falconer of Thoroton]

My Lords, I declare an interest: I am acting, pro bono, for the Hillsborough Family Support Group, which includes members of over two-thirds of the families of the 96 people who died in the Hillsborough disaster. I apologise to the House that I am not able to attend the winding-up speech. I have apologised personally to the noble Lord, Lord Taylor of Holbeach, who has kindly urged me nevertheless to intervene in the debate.

I greatly appreciate the House having the opportunity to reflect on Hillsborough and to think about the way forward. The tragedy on 15 April 1989 was entirely foreseeable. The tragedy which befell the Liverpool supporters who came from all over the country that day was unspeakable and unimaginable for them and for the families of those who were injured or died. They could have expected the state, the organisations involved and the media to support them, and some did. However, elements in the state, in the organisations involved and in the media did not support them; instead, they vilified them without justification. They blamed Liverpool fans—both those who died and those who lived—for what happened in order to deflect blame from their own responsibility.

The inquiry by Sir Peter Taylor—later, Lord Taylor of Gosforth—rejected the police’s attempts to blame the fans and put the blame four-square on the police. However, as the right reverend Prelate has indicated, the inquiry gave no consideration to the role of the emergency services because it accepted the theory of a uniform and quick mode in relation to each of those who died, and, as a result of the right reverend Prelate’s commission, we now know that to be wrong. The inquests which followed saw the police seek to put the blame back on the fans in a way that Lord Taylor had rejected. The 3.15 pm cut-off meant that the truth was never investigated, let alone revealed. The courts and the judges subsequently did nothing to redress the balance in the years to come.

The families of those who died never gave up. Andy Burnham said in a debate in the other place in October:

“Those truths have been told only because of the sheer love of mothers, fathers, brothers and sisters … a love that provided strength when hope was lost and provided dignity in the face of provocation”.—[Official Report, Commons, 22/10/12; col. 795]

I thoroughly endorse those words. The resilience and courage of the Hillsborough families has led to the truth coming out and the cover-up being revealed. Their role and their achievement dwarfs all other contributions to the revelations that have come out in the past few weeks. They were supported by the people of Merseyside, who stuck with them through thick and thin when almost the rest of the country had abandoned them. The Merseyside MPs, whom it is invidious to name but I name five of them—Andy Burnham, Derek Twigg, Maria Eagle, Alison McGovern and Steve Rotherham—stuck with them throughout; the Liverpool Echo stuck with them throughout; David Conn of the Guardian stuck with them throughout; and Jimmy McGovern, who wrote and produced a drama-documentary which made a real difference, and Phil Scraton, who was on the bishop’s panel, stuck with them.

The role of the right reverend Prelate the Bishop of Liverpool has been stunning and fundamentally transforming of what has happened to the position of the families. He did not say it about himself but he should have: he listened when the state, the establishment and the other organisations involved stopped listening pretty soon after the Taylor inquiry. The bishop’s panel revealed that the families were right and the establishment was completely wrong in the way it had been addressing the matter.

The Prime Minister’s response on 12 September 2012 was conspicuous in its decency and leadership. It has been quoted on a number of occasions, but he unequivocally accepted the injustice that the families had suffered and he unequivocally apologised to the families for what the state had done. His attitude was incredibly important in making it absolutely clear that the families had been right.

What of the future? The Bill is helpful and we support it. I do not want to go into the detail of these issues but, in relation to what happens now as regards the investigations following Hillsborough, perhaps I may make the following points. First, the families have waited 23 years for justice. Many of the families did not discover how their loved ones had died until the bishop’s panel produced its report 23 years after the event, which is an appalling indictment on the institutions that should have been looking after those families. The consequence of that 23-year wait is that the state should do everything that it reasonably can to ensure that the criminal investigation, any prosecutions that follow and the process of any inquest—if the High Court agrees to it—take place as quickly as reasonably possible.

Secondly, it would appear that more than one body will be involved in the criminal investigations. By that, I mean the IPCC and the police. It is imperative that those investigations should be properly integrated. It would be intolerable if any sort of disagreement between the bodies involved led to anything short of complete integration or any repetition and unnecessary duplication in the investigations that take place.

Thirdly, the work of the panel provides an incredibly good route map for the investigation. There is no doubt, as the right reverend Prelate the Bishop of Liverpool acknowledged, that there is a need for further investigation, but the investigation now knows so much more about what happened than any other normal police investigation. Build on it, do not reinvent the wheel and use it as a route map.

Fourthly, it is important to make sure that all the investigations that take place and any subsequent prosecutions are properly resourced. I know from my own experience within government that properly resourced investigations are incredibly effective and focused. In the past 15 years, we have seen investigations take place in relation to particularly heinous crimes. This can happen in this case. Resources are important.

Fifthly—again, I pick up a point made by the right reverend Prelate—it is important to consult the families throughout the investigation and the processes. The families have said directly to the Home Secretary, who was sympathetic and incredibly decent in her response—and they said it in my presence—that trust has to be earned back in the light of what has happened. Regaining that trust will be greatly assisted by consulting the families and discovering what their wishes are—not to compromise independence but to ensure that their views are taken into account.

Sixthly, it is necessary to build into the process something that does not deprive the investigation and the prosecution of their independence but makes sure that the process has drive and momentum, even when the searchlight of publicity has moved on.

Finally, from beginning to end, until 12 September, this has been a series of processes whereby the state and other bodies have failed—and have failed the families and the people they were supposed to serve—including the football authorities, the football grounds involved, the media, the police, the emergency services, the prosecution authorities, the judges and the coroner’s court. They have all been found wanting, as the panel’s report strongly indicates. What happens now is an opportunity for those bodies to prove that they have learnt the lessons of Hillsborough. In a sense, for the past 23 years it is the people who were at the game who have been on trial. Now it is the bodies that let them down that are on trial. I hope they can prove that they are worthy of the trust that the country should be able to have in them.

Marriages and Civil Partnerships (Approved Premises) (Amendment) Regulations 2011

Lord Falconer of Thoroton Excerpts

Thursday 15th December 2011 Lords Chamber

[Baroness Hamwee]

My Lords—

[Lord Falconer of Thoroton]

My Lords—

[Baroness Verma]

My Lords, to assist the House I suggest we hear from the Liberal Democrat Benches first, maybe then the Convenor of the Cross Benches, followed by the noble and learned Lord, Lord Falconer, and then the Bishops.

[Baroness Hamwee]

My Lords, we complain when primary legislation is not commenced or implemented. The first instinct of the noble Lord, Lord Alli, was absolutely right, though he then extended his arguments. We also complain when legislation is not clear. This is not the case today. The Merits Committee, of which I am a member, did not make a judgment on the merits of the substance of this order. It used its entirely standard language, drawing it to the special attention of the House on the grounds that,

“it gives rise to issues of public policy likely to be of interest to the House”.

That statement is quite uncontentious.

I can see from those already attempting to intervene that we will hear today closely argued analysis of a construction of the words “Act”, “authority” and “services”, and I am always glad to recruit such expertise to the cause. Essentially, however, the issue is, “Does the order do what Section 202 of the Equality Act provides?”. I believe that it does. Or, “Does it require any individual or organisation to do what they do not wish to do?”. I believe that it does not. The order cannot trump primary legislation, nor can it require what the Act itself precludes. As we have been reminded, primary legislation says that nothing places an obligation on religious organisations to host civil partnerships if they do not wish to do so. If there are differing views within an organisation, that is not a matter for government.

The noble Baroness uses in her prayer the word “pledge”. It is not a pledge—or rather, it is more than a pledge—because the words are in Section 202. That section is surely permissive: it is an opt-in, not an opt-out. We know there are objections to it, but that was a matter for 2010. I say that to those who would like to extend that section, as well as to those who would like to see it interpreted restrictively. To attempt now to reverse it, extend it or block it, is inappropriate.

I will be quick because there are so many noble Lords who wish to speak. I find it very difficult to see anxiety engendered among people with a particular view. I do not like to see people fed fear. I realise that something that may seem entirely reasonable to me may seem very prejudicial to you, whoever you and I are—that is, whichever side of the argument one is on. I will end by voicing what others might see as my own prejudices. That 46,000 couples have entered into civil partnerships is wonderful; 92,000 people have been able to give formal, legal expression to their relationship. It is a paradox that some who advocate celebrating marriage within a faith oppose extending it to other stable relationships. I welcome the order and look forward to taking forward Section 202.

[Lord Falconer of Thoroton]

My Lords, I speak as a lawyer today. I concede my obligation to the House to set out my genuine view, because this is a legal issue and because I was formerly the Lord Chancellor. The noble Baroness, Lady O’Cathain, and the noble Lord, Lord Alli, agree the basis upon which Parliament—not only this House—passed the amendment to the Civil Partnership Act which abolished the prohibition on civil partnerships being registered in places of religious worship. My noble friend Lord Alli said at the time that there was no disagreement about this.

From the outset I want to make very clear that the amendment does not place any obligation on any religious organisations to host civil partnerships in their buildings. We made that clear by including in the amendment the words:

“For the avoidance of doubt, nothing in this Act places an obligation on religious organisations to host Civil Partnerships if they do not wish to do so”.

There is no doubt that that was the basis on which the provision was passed. If we have not given effect to that provision, we should not agree to these regulations. The only issue today is therefore whether as a matter of law we have given effect to it. It is for the House to make a decision about this. It is always possible to find a lawyer who says that something is arguable. It is for us to go through the provisions today and form a view about whether or not, contrary to our intention and to that of the House of Commons, we have somehow failed to achieve it.

I will very quickly go through the basic provisions so that we arrive at a clear answer. Section 2 of the Civil Partnership Act makes the moment at which a civil partnership occurs the moment at which the two partners sign the civil partnership document. Section 6 of the Act—this is, before the amendment—says that that signing can take place either at a registry office or at approved premises. It sets out provisions for premises to be approved by somebody called the registration authority. The registration authority is the local authority. The Civil Partnership Act gives the local authority discretion over whether or not they register premises. Section 6 of the Act as originally passed says that civil partnerships cannot be registered at religious premises. Section 2(5) says—and this provision remains—that there should be no religious element in relation to any registration of a civil partnership.

The amendment of the noble Lord, Lord Alli, which was supported by Parliament, did two things. First, it removed the prohibition on religious premises being used for civil partnerships. It retained the approval process, so that local authorities still approve whether premises—including religious premises—can be used for civil partnerships. Secondly, it added to the Civil Partnership Act words to the effect that for the avoidance of doubt, this does not compel any religious organisation to host a civil partnership ceremony if they do not want to.

That is the legal framework that we now have to look at. On the basis of that legal framework, my initial conclusion is that Parliament has made its intention absolutely clear: Parliament does not want to compel anybody to host registration of civil partnerships unless they want to.

I wondered what could conceivably be the argument that we have failed to express our intention clearly. I have read the two opinions that have been provided on this. I will do my best to summarise them fairly and set out why they are plainly wrong, although not lacking in bona fides. The first argument, which was advanced by Professor Mark Hill QC in his opinion dated 8 November, is that because the regulations say that—for the avoidance of doubt—the law does not compel anybody to host a civil partnership if they do not want to, the regulations saying it would not, alone, be enough. I completely agree with that. A regulation saying that hosting is not required would have no effect at all if the position was that the primary Act of Parliament did not get rid of the risk of any discriminatory legislation. However, the primary Act of Parliament does contain the prohibition, so it seems clear that Professor Hill is wrong about that.

I looked through Professor Hill’s opinion to find out what he said about the main provision in the Act, which appeared to be the critical provision. He said that Section 202, in referring to an Act, refers to the Civil Partnership Act and not to the Equality Act. I found that wholly unconvincing because the risk which the noble Baroness, Lady O’Cathain, and the QCs identify is that there are provisions in the Equality Act, except for the purpose of this argument, that might be said to create a risk of some sort of action arising from the fact that you perform civil partnerships but not marriages, or the other way round. It seems to me beyond argument that the intention of Parliament must have been to get rid of that risk by putting in the very same Act the phrase,

“For the avoidance of doubt, nothing in this Act”,

gives rise to the risk of any compulsion. For Professor Hill’s opinion to be correct, you have to assume that this House and the Commons were unaware of the risk that the Equality Act could give rise to litigation when they put into the very same Act a statement that said that allowing churches to host civil partnerships does not lead to any church being compelled to host one. I cannot think of a judge who would give effect to such a nonsensical argument.

8 November was the date on which the advice of Professor Mark Hill was obtained. His advice came under some legal attack. Noble Lords will know that the legal advisers of the Roman Catholic Church, the Church of England, the Home Office and the Equality Commission have all said that there is no legal risk. Reinforcement was obtained from Mr Aidan O’Neill QC. I am very grateful to the noble Baroness, Lady O’Cathain, for providing a copy of his advice. He gives a lot of ground in relation to it, recognising the difficulty that exists.

[Baroness Trumpington]

Could the noble and learned Lord please stop turning away?

--- Later in debate ---

[Lord Falconer of Thoroton]

I apologise. Mr O’Neill says that since Section 3 of the Human Rights Act requires statutes to be interpreted as much as possible in accordance with the European Convention on Human Rights, that section might, arguably, give rise to the possibility that it could be construed away or read down. However Mr O’Neill, who I do not criticise at all, is an honourable man. He rightly sets out the basic law in relation to reading down under Section 3. He says that the only limitation on Section 3 of the Human Rights Act, on interpretive obligation, according to the House of Lords decision in Ghaidan, is that in reading words into the legislation, or in deleting offending words, the courts have to be satisfied that such emendation could not be said to “go against the grain” by overriding some cardinal feature of the legislation in question, or otherwise raise generally policy issues that a court cannot properly seek to resolve by a process of judicial rewriting. That is what Mr O’Neill, the person relied upon by the noble Baroness, Lady O’Cathain, said.

--- Later in debate ---

[Lord Tebbit]

The noble and learned Lord has given a splendid exposition of the law of the United Kingdom. Can he assure us that there is no vestige of a chance that European law, either through Brussels law or the law that falls from the European convention, could override the British courts? After all, it, not this House, is now the ultimate authority on our legal affairs.

[Lord Falconer of Thoroton]

In general terms I can give no assurance that the European courts cannot override the British courts on this. Indeed, they can override this Parliament. However, with respect to the noble Lord, Lord Tebbit, that is not the issue that this House is addressing today. The House is addressing a simple issue of English law and it has been accurately put by the noble Baroness, Lady O’Cathain: does the legislation that we passed give effect to the intention of this House? That is a question of interpretation of English law. I have no doubt that it gives effect to it because it is so clear. I have read both opinions very carefully and my view is not shifted by them.

I make two further points. First, Professor Hill QC and the noble Baroness, Lady O’Cathain, who accurately reflected this argument, said that there was some risk that local authorities would try to punish churches that did not agree to host civil partnerships by saying that they could not have the authority to conduct marriages. I have absolutely no doubt that there is no foundation for that in even the existing law. Section 41 of the Marriages Act 1949 lays down a process whereby there is no discretion in the local registrar, who is a separate person from the local authority. The person who decides whether a church is entitled to solemnise a marriage is not the local authority but the Registrar-General. He has no discretion in that matter once it has been resolved in terms of the statutory requirements. The legal foundation of that does not exist.

The second point made by the learned professor is that the regulations—not the Act—say that an application can be made by a trustee or a proprietor of the church. He gives rise to the possibility of doctrinal debates in churches about this and one trustee applying when the congregation does not want it and the minister or the priest perhaps does not want it. That is a policy consideration that the state has been concerned about and has made specific provision for. The Government say in relation to their response:

“Following concerns about ensuring that the local congregation is made aware of an application in respect of the premises they use for worship, we will make clear in guidance and on the application form that best practice is for the proprietors or trustees of the premises to make their congregation aware … In addition, each application will be required to be advertised by a local authority and is subject to a period of 21 days’ public consultation, providing further safeguards against applications being made without the knowledge of the relevant congregation”.

I do not think there is any statute in the world that would be able to provide for disagreements within a church about doctrinal issues. What the state has done—and I commend the state for it—is to follow the approach taken in the Marriage Act in relation to the solemnisation of marriage, and this has caused no trouble over hundreds and hundreds of years.

My legal opinion is absolutely clear. Although I completely respect the sincerity of the noble Baroness and completely accept the bona fides of the QCs, there is nothing in what they say and you can be confident that, even though I can give no guarantees that nobody will bring litigation—there is bound to be somebody who will—it only requires one case to deal with it.

[Baroness Williams of Crosby]

Before the noble and learned Lord finishes his extraordinarily useful and helpful speech, could I ask him to come back for a moment to one of the issues raised by hundreds of my correspondents—many noble Lords will probably have similar numbers of correspondents on the subject; I have hardly ever seen so many except for health—which is whether the Equality Act, if approached on the grounds of discrimination, would be able to overcome the specific amendment to which he has referred on both major pieces of legislation? It would be helpful for all of us, in replying to that very powerful public opinion, to know the view of the noble and learned Lord—as the previous Lord Chancellor—on this topic.

[Lord Falconer of Thoroton]

My unequivocal view, which I have been trying to express, though rather badly, is that the provision that the noble Lord, Lord Alli, and I have quoted has the effect of making sure that no discrimination proceedings can be brought under the Equality Act or under the convention in English law as a result of a church saying no to civil partnerships being solemnised on their premises. That is the problem and I am absolutely clear that there is no possibility of discrimination legislation, based on the Equality Act, as a result of the drafting of Section 202.

There is also a broader point of principle. We should not, as a House, be knocked off doing what we decided to do by the opinions of two Queen’s Counsels. We should be clear that we achieved our intention. We used simple language. There is no doubt about what it means and I have absolutely no doubt that the courts will give it effect. I have reason to believe that it might be said that it would be quite easy to amend the provisions, using a provision of the Civil Partnerships Act under Section 259. This would take time, but it would be quite easy to do. It is, however, utterly unnecessary because we expressed our views utterly clearly and the courts will give effect to them.

[The Lord Bishop of Oxford]

My Lords, I, too, am most grateful to the noble and learned Lord, Lord Falconer, for an extraordinarily erudite narrative. I am also grateful to the noble Baroness for initiating the debate because it gives us the opportunity to look at this very important and sensitive issue of the regulations. I have been much exercised, as I am sure many of you have, by the conflicting opinions I have received. I very much wish the issue were clear-cut, and perhaps it really is. However, for reasons I will explain, I will not be able to join the noble Baroness in the Division Lobbies if she pushes it to a vote.

I say that with real regret, because I entirely share the noble Baroness’s passionate concern for safeguarding religious liberty which is one of the tap-roots for all liberty. Those who hold to the traditional ethical teaching on sexual morality of the Christian churches and many other faiths can too easily be accused of being homophobes. The implication is that, if persuasion does not work, we may have to resort to coercion, which would be a profoundly wrong approach.

The question before us today is whether these regulations do in fact interfere with religious freedom. Having considered the issues carefully and tried my best to understand the conflicting legal opinions of the distinguished lawyers with whom I have also been in touch, I am not persuaded that they do give us that danger. There could, in principle, be two possible arguments for opposing the regulations. The first would be to register opposition to the principle of allowing civil partnerships to be registered in places of worship. The second would be because, although the principle is accepted, these particular regulations were deficient.

On the first point, although it is history, it can be argued that the change in the law agreed by Parliament last year does have its curious features. To say, as the law now does, that civil partnerships can be registered in places of worship but without any religious element taking place in the registration is, on the face of it, quite odd. Moreover, denominations wishing to offer services of blessing following civil registration can already invite people to come to the church or synagogue after the registration and have that element there. Parliament rehearsed these arguments last year and was persuaded that, if people want to register their civil partnership and have a religious ceremony at the same time and in the same location, then legislation should not get in the way of their doing so. That was essentially for religious liberty reasons. The Quakers, the liberal Jews, the Unitarians and anyone else who wanted to host civil partnership registrations should be free to do so, but not forced to do so. I do not, therefore, see a sufficient case for opposing these regulations on the first of those two possible grounds.

For me and, I am sure, for all of us here, everything turns on the second issue which is whether these regulations and, indeed, the Equality Act to which they give effect, are defective. By defective, I mean whether what is meant to be an option would, in fact, become a duty. Will churches and chapels be at risk of litigation? We non-lawyers are in the hands of the experts here. I can muster only a 40 year-old Oxford law degree which is quite inadequate for the task. However, the advice of the legal office of the General Synod is clear that it will be perfectly lawful for churches, chapels and other places of worship to decline to register their places of worship as premises for civil partnerships. That advice has been unequivocally endorsed by the standing counsel to the Synod, Sir Anthony Hammond QC, who was previously Her Majesty’s Procurator General and Treasury Solicitor and Queen’s Proctor. It is also the view of the Government’s lawyers and other senior lawyers not unknown in these erudite precincts, one of whom we have just heard from.

In addition, for the Church of England and certain other denominations, there would have to be a policy decision at the national level from the relevant body—in our case the General Synod—before any church could seek to register. I know that the Christian Institute has commissioned legal opinion from the two separate QCs we have heard about, who take a different view to the lawyers I have mentioned. This is disturbing, and I look to the Minister in responding to this debate to read very carefully into the record his own understanding of the position. In particular, I would like to hear him assure the House that, in the wholly unexpected event of the courts taking a different view from the massed ranks of government lawyers, church lawyers and other lawyers to whom I have referred, we would have either primary or secondary legislation to sort the problem out. I am sure that assurance can be given.

I have the highest regard for the professionalism and integrity of the lawyers of the General Synod, who also advise the House of Bishops. In the light of their advice, it is not clear that there is anything in these regulations or last year’s legislation which needs to be changed. They appear to me to preserve the ability of the Church of England and all other churches and faiths to decide their policy on these matters in the light of their own beliefs and teaching. I regret coming to a different conclusion from the noble Baroness; I would like to have stood with her in support of religious liberty, which is essential to a civilised society, but on the balance of arguments I believe the safeguards are already in place.

Let me say one final word before I conclude. It is hardly a secret that the Church of England along with many other religious traditions continues to wrestle with the underlying ethical issues. We are likely to go on doing so for a considerable time. I have taken part in many of those internal debates and they are at their best when characterised by a spirit of restraint, mutual respect and generosity.

Given the litigious nature of our society, it is only right that we should look at regulations on a sensitive subject such as this with a good deal of care. I am grateful that so many noble Lords and noble Baronesses are here to do that. Nevertheless, I would urge from these Benches that this debate is characterised by that same restraint, mutual respect and generosity that I just mentioned. Those are the qualities by which religious, and indeed all, liberties are best nourished and protected.