Abu Qatada

Lord Henley Excerpts

Monday 30th April 2012 Lords Chamber

[Lord Foulkes of Cumnock]

To ask Her Majesty’s Government what is the current position regarding the deportation of Abu Qatada.

[The Minister of State, Home Office (Lord Henley)]

My Lords, we await the decision of the European Court of Human Rights on whether to accept Qatada’s referral request. We wrote to the Strasbourg court to ask that it reject this application both on the merits of the case and on the timing of his request. Qatada, meanwhile, remains in detention.

[Lord Foulkes of Cumnock]

My Lords, let us forget the shambles of last week. Will the Minister explain exactly how and when this terrorist is going to be deported?

[Lord Henley]

My Lords, I cannot give a precise answer on when he will be deported because that matter is in the courts. However, I do not accept what the noble Lord says about there being a shambles last week. It was quite clear from all the advice and all the precedents that the three months for making the referral expired at midnight on 16 April. My right honourable friend made her decision on that basis. We now await to see what the courts are doing.

[Lord Faulks]

My Lords, on 7 February, the last occasion on which the noble Lord answered Questions about Abu Qatada, he was asked whether the Government could provide a new reassurance that this sort of situation would not recur, and he referred to the fact that the Government were hoping that reform of the Strasbourg court might make it less likely. We have now had the Brighton declaration. Can the Minister tell the House whether the Government think that this is more or less likely to happen again, and if it is less likely to do so, why?

[Lord Henley]

My Lords, my noble friend is a lawyer and therefore will know that we can never give an absolutely cast-iron guarantee about what the courts or lawyers might or might not do, but I can say to him that the agreement reached at the Brighton conference represents a substantial package of reforms and marks a significant step towards realising the goals that the Prime Minister set out at Strasbourg.

[Lord Anderson of Swansea]

Will the noble Lord give the best guesstimate he can of how much, over the past decade and under both Governments, the British taxpayer has had to pay to keep this man and his family in this country by way of social security payments and legal aid? When will this end?

[Lord Henley]

My Lords, I cannot give that figure to the noble Lord, much as I would like to because I think it is one that the public ought to know. If I can make some sort of guesstimate, working with my own department, the Ministry of Justice and the Department for Work and Pensions, I will certainly do so. However, I can give him an assurance that my understanding is that he is not to have his costs paid in the current matter of the referral to the European Court of Human Rights.

[Lord Tomlinson]

Has not the Minister rather overplayed the importance of this when compared with the Government’s objectives in the Brighton declaration? Will he give an assurance that we will abide totally by the Brighton declaration, that we will cease as a country to suffer the humiliation of having our Government condemn the European Court of Human Rights, and that we will regard it in the way that it always should have been regarded, as the bulwark of our civil liberties?

--- Later in debate ---

[Lord Henley]

My Lords, I do not accept what the noble Lord says at all. All I said was that I thought that the declaration represented a substantial package of reforms. There could be many more reforms to that court. The noble Lord knows perfectly well that it very often exceeds its functions and goes beyond what was ever intended in 1950 when we signed up to the original convention on human rights.

[Baroness Hamwee]

My Lords, the procedural issues are important but so, too, is the substantive issue. With the Government having reached what they regard as an acceptable memorandum of understanding with the Jordanian Government as to the evidence that will be used in a trial in Jordan, can the Minister tell the House how that process will be monitored to ensure compliance with the memorandum of understanding?

[Lord Henley]

My Lords, we will maintain very close contact with the Jordanian Government when we manage to extradite this man to Jordan and he faces his trial there. We will make sure that we keep fully cognisant of what goes on in the trial in that country.

[Lord West of Spithead]

My Lords, when I was the Security Minister I was constantly struck and somewhat surprised by how my opposite numbers in a number of European countries seemed able to return terrorists to the countries to which they belonged. Perhaps we could ask those countries how they manage to circumvent the rules and how they avoid getting into the complete muddle that we seem to have got in.

[Lord Henley]

My Lords, other countries do things in other ways. The important thing to remember is that this country abides by the rule of law and listens to what the courts say, however unpalatable that might be. I think that what that court has done is unpalatable. We hope that it will see reason on this occasion and accept that his referral is out of time and that there are no merits in the case whatever.

[Lord Brooke of Sutton Mandeville]

My Lords, whatever the merits of the 24 hours that were being debated at the beginning of this matter, did my noble friend notice that the infection can spread to the Back Benches opposite? The noble Lord, Lord Foulkes, suggested in his supplementary that the dramas had happened last week when in fact they had happened the week before. Seven days is an even longer period to lose.

[Lord Henley]

My Lords, I would not want to comment on the sense of timing of the noble Lord, Lord Foulkes.

[Lord Hunt of Kings Heath]

My Lords, the Minister has already referred to listening to the court. In terms of lost days, he will know that the Prime Minister told the BBC that his officials had checked with the European court the deadline for the appeal. Will the Minister give the House of Lords chapter and verse as to when the Home Office checked with the European court and what the court said?

--- Later in debate ---

[Lord Henley]

My Lords, the Home Office and other parts of the Government have been in regular contact with the court ever since the judgment back on 17 January. We are absolutely clear, and both precedent and legal advice are clear, that the deadline for the referral was within—I stress “within”—three months, by midnight on 16 April, and that the judgment comes into effect after three months; that is, after midnight on 16 April. That could hardly be clearer and the precedents could hardly be clearer.

[Lord Cormack]

My Lords, as this is a leap year, does not the Home Secretary have a day in hand?

[Lord Henley]

My Lords, I am advised that leap years do not come into it.

[Lord Hughes of Woodside]

My Lords, it appears that all the discussions and advice were handled verbally. Are we to believe that that is the case? Is there nothing in writing or a paper trail to say specifically that these deadlines were properly arrived at? If not, why can that not be published?

[Lord Henley]

My Lords, I can only repeat the answer that I gave to the noble Lord’s noble friend, Lord Hunt. I said that we have been in constant contact with the court, that all legal advice and legal precedents indicated that this was the case, and that the difference between the timing for the referral, which had to be within three months, and the timing for the judgment—that is, after—made it quite clear that midnight on the 16th was the moment in question.

[Baroness Farrington of Ribbleton]

My Lords, the Minister has not given the information on exactly when the court advised the Government that that was the date. He referred in his answer to my noble friend Lord Hunt to legal advice and general advice in correspondence with the court. What is the exact date on which the court in Strasbourg gave advice to the Government that the final date was the one which the Government used?

[Lord Henley]

My Lords, the point I was making, if the noble Baroness would be fair enough to listen to me, was that we had been in regular contact with the court on these matters. It was quite clear from precedent and legal advice that the case that I have put forward is the right one. Therefore we were satisfied that we were right to consider that the last possible moment for referral was 16 April at midnight.

[Lord Foulkes of Cumnock]

My Lords, this is a serious question—with respect to those opposite—and the Minister has still not answered the questions about the future. What are the Home Office’s plans for dealing with this man and when can we expect him to be deported? Please can I have an answer?

[Lord Henley]

My Lords, like the noble Lord, and like the previous Government—who tried to do something about this for 10 years—I and all other noble Lords would like to see this man deported as soon as possible. He represents a very real risk to this country, and this has been going on for 10 years. However, we must abide by the rule of law and we must wait until the court makes its decision. I do not know when the European court will deal with this referral case. As far as I am concerned as a very simple lawyer, this looks like a pretty simple case that the court could deal with pretty quickly, if for no other reason than that it is obvious that he is out of time in his referral.

Police: Race Relations Policies

Lord Henley Excerpts

Monday 30th April 2012 Lords Chamber

[Baroness Howells of St Davids]

To ask Her Majesty’s Government whether they will encourage HM Inspectorate of Constabulary to undertake a thematic review of race relations policies within police forces in the United Kingdom.

[The Minister of State, Home Office (Lord Henley)]

My Lords, the Government take recent allegations of police racism very seriously. The firm actions taken by the Commissioner of the Metropolitan Police are exactly those that we would expect other service leaders to take if faced with similar issues. We do not believe that a thematic inspection by Her Majesty's Inspectorate of Constabulary is necessary at this stage.

[Baroness Howells of St Davids]

I thank the noble Lord for his reply. He will recall that on 29 November he assured the House that there was no racism in the police force. Circumstances have shown that he was wrong. Will he consider again encouraging the police force to begin racism awareness training among the constabulary? We need to get rid of the Aryan myth of white superiority once and for all and I believe that it is necessary that we should all understand what that is.

The Commissioner’s statements were very encouraging. Is the Minister able to arrange a meeting between those of us who are very interested in this subject and the commissioner so that we can explain to him what is really meant by institutional racism and the recommendations in Macpherson can be acted on?

[Lord Henley]

My Lords, I owe the noble Baroness an apology if I suggested that there was no racism within the Metropolitan Police. It is obviously wrong to suggest that any organisation has no racism within it. What I was trying to get over on that occasion, and on the two occasions last week when I dealt with questions of this sort, was that institutional racism within the Met has largely been dealt with. It was encouraging that the most recent cases of racism were reported by the police themselves and therefore this was a strong sign that these matters were being dealt with.

I would be more than happy to assist in arranging a meeting between the noble Baroness and others and either the Commissioner or the Deputy Commissioner, whomever she considers the most appropriate person to deal with these matters. Meanwhile, as I made clear on the Question from my noble friend Lord Sheikh and the Statement that I made on another occasion when I believe the noble Baroness was present, I believe that the Met is making considerable strides in this area.

[Lord Condon]

My Lords, does the noble Lord agree that the wider police service must show great vigilance and endeavour to respond well to race and diversity issues? They must not become complacent and somehow see race as yesterday's problem or yesterday’s issue. This is an ongoing challenge that the service must respond to well at all times.

[Lord Henley]

My Lords, the noble Lord, Lord Condon, with his great experience, is absolutely correct to express those points. I fully agree with him. I remind him and the House that an important part of the regular reviews by HMIC—the inspectorate of the constabulary—is that any force inspections should always include some detail of an assessment of equality, diversity and those matters.

[Lord Dholakia]

My Lords, at least 27 police officers are under investigation for racist behaviour. The noble Baroness, Lady Howells, is rightly concerned about that. She has done a tremendous amount of work following the death of Stephen Lawrence on the adversarial contact between the black community and the police. While we appreciate the action taken by the Commissioner of the Metropolitan Police, is it not right that we should have a thematic inspection of racial issue policies, particularly in relation to training, recruitment and retention, bearing in mind that the cuts to police expenditure are likely to impinge on these areas?

[Lord Henley]

My Lords, I am grateful for the question from my noble friend Lord Dholakia. I stress that I did not rule out a thematic review—I just said that I did not think it necessarily appropriate at this stage. I can assure my noble friend that there have been thematic reviews in the past. If necessary, that could be looked at again. I repeat the important point in the answer I gave to the noble Lord, Lord Condon, that this is already part of any inspection of the police force. Also, on the very unfortunate recent cases that have appeared in the Met, the great thing is that such cases are at least being reported by their fellow police officers. That is a sign that something is being done. It is progress.

[Lord Soley]

Does the Minister agree that, over the years, training of the police on racism has improved dramatically but there is a real problem when they then finish their training and join forces which are not representative of the diversity of this country? Should we not put all the emphasis on recruitment and retention of people from across the range so that our police forces represent this country? In that way, you would do far more to resist racism in a force than you would simply in the classroom alone.

[Lord Henley]

My Lords, I fully agree with the noble Lord. Training is very important but it is also important to make sure that recruitment and retention continue so that all police forces can represent the appropriate diversity of their individual areas. That is the important thing: to make sure that they can then continue to police their area with the proper consent of those being policed.

[Baroness Afshar]

My Lords, in the current atmosphere of Islamophobia, could we have an assurance that race includes religion? It seems to me that Muslims are becoming disproportionately targeted. They are of many races and can come in all colours and shades, but because of their religion they are being singled out.

[Lord Henley]

My Lords, the noble Baroness makes a very valid point and one that I am sure is taken into account in initial and all further ongoing training.

[Lord Elystan-Morgan]

My Lords, does the Minister agree that successive Governments, probably over the last 40 years, have found it extremely difficult to recruit the maximum number of officers from among ethnic minorities? Can he assure the House that the greatest effort will be made and the heaviest emphasis placed upon this crucial factor?

[Lord Henley]

My Lords, I can say that great progress has been made over the last 40, 30, 20 and even 10 years on increasing the diversity of the police force so that it better represents the areas that it covers. That will obviously vary from Wales to the Met. I can also tell the noble Lord—and this is important—that the figures from black and ethnic minority communities on their satisfaction and confidence in our police forces seem very similar to figures from white communities.

Migration: University-sponsored Students

Lord Henley Excerpts

Monday 30th April 2012 Lords Chamber

[Lord Clement-Jones]

To ask Her Majesty’s Government what consideration they have given to excluding university-sponsored students from the United Kingdom’s net migration statistics.

[The Minister of State, Home Office (Lord Henley)]

My Lords, the UK uses the internationally agreed definition of a migrant, which is someone coming to or leaving the United Kingdom for a period exceeding 12 months. It is right that students intending to stay for that period should be counted because during their stay they are part of the resident population and contribute to pressure on public services infrastructure. It is not appropriate to discount them from net migration statistics.

[Lord Clement-Jones]

My Lords, the department makes no distinction between temporary and permanent migration. Many other countries do, and still fall within the UN definitions. That means that the Home Office is targeting net migration figures that include overseas students, which is directly contrary to the policy of the Department for Business, Innovation and Skills. Surely now that the e-Borders system will be able to track very closely non-EEA students and other citizens coming into this country, it is time to exclude those students from the net migration figures and have a unified government policy.

[Lord Henley]

My Lords, I am afraid that in terms of migration my noble friend has got it right. I do not think he would want me to adjust the figures purely to achieve the ends that he suggests, as there might be complaints from the House that we were fiddling the figures, and I do not want to be accused of that. We stick by the long-standing international United Nations measure that students who come to the UK for more than a year are counted as migrants.

[Lord Bilimoria]

My Lords, I have just returned from the annual UK-India round-table meeting, and this very question was raised. Why cannot the Government exclude foreign students from the target? Foreign students bring up to £8 billion of revenue into this country. In fact, the Government should be trying to double the number of foreign students from 440,000 to 800,000, bringing in another £8 billion. Does the Minister agree—I know this from experience, as my family was educated in this country from India for three generations—that by encouraging foreign students you build generation-long links, with huge benefit to this country?

[Lord Henley]

My Lords, I totally agree with the noble Lord in that I accept that students coming to universities—and I stress that the Question is purely about students coming to universities—provide very great value to this country, and we want to see their numbers increase in many areas. They have increased over the past year or so, as I understand it, but we want to get rid of some of the bogus students who come here not to study but to work—and that is what we are doing.

It is important that we stick to international UN definitions. As I said, there would be considerable criticism of me if I suggested that we should fix those figures purely for our own purposes.

[Lord Howarth of Newport]

My Lords, if the Government were to accept the proposal put to them by the noble Lord, Lord Clement-Jones, would they not thereby confer a great benefit on UK universities and on bona fide international university students, as well as on our international standing, and at the same time be able to hit their own immigration target figures, which they have otherwise not a hope of achieving?

[Lord Henley]

The noble Lord is, yet again, another one who wants me to fix the figures. I do not want to do that. We want to do these things in a proper way, and the definition of migrants is that they are people staying for over a year. We welcome students and do what we can to get them, but we are not going to fix the figures in the manner that he suggests.

[Baroness Knight of Collingtree]

My Lords, is it not the case that the situation has been made very much worse by the numbers of students who have come here from foreign countries and not left but remained here, making great difficulties? Is not that point at the heart of this difficulty?

[Lord Henley]

My noble friend is right to point out that quite a large number of students stay on, but the other point to make to her is that quite a number of people coming over in the past—not the university students that we are talking about—were coming over to colleges that did not really exist and were there purely as a scam to get around migration statistics. That is what we have been trying to deal with.

[Lord Morgan]

My Lords, is this policy not the result of a basic intellectual confusion that has very serious and harmful effects? First, it distorts the statistics on immigration, which causes concern. Secondly, as we have heard, it is extremely harmful to universities and deters many would-be bona fide students from overseas countries, with a great loss of revenue. Thirdly, it seriously imperils relations with Commonwealth countries such as Malaysia, Singapore and India. Should we not think again?

[Lord Henley]

I think that if the noble Lord looks at the statistics he will find that there has actually been an increase in the number of students from Malaysia and Singapore. I appreciate that there has been a decline in the number from India, but there have been increases from elsewhere. Here we are talking about university students, and we have not seen an overall drop in those numbers.

Again I go back to the point that it is quite obvious that the noble Lord seeks to ask me to fiddle the figures. I do not want to do that.

[Baroness Brinton]

My Lords, if the Government are not happy to change the system of permanent and temporary migration figures, and given that in the past they have said that they cannot always track students leaving the country, will they please consider using the HESA statistics, which record students when they leave the country—or, even better, get the border agency to ask students as they leave whether they have completed their studies rather than just where they are going?

[Lord Henley]

My noble friend goes on to a somewhat more detailed point, which I will have to look at. I would certainly be more than happy to do that and write to her.

[Baroness Afshar]

My Lords, as a student who stayed and was educated at school and university here, I have to say that many of us do not come here just to work but to contribute. We have a lot to contribute, and the current limitations mean that students from the Middle East, particularly from countries such as Iran but also elsewhere, cannot get access any more because the limits are so tight that anyone from outside the Commonwealth has enormous difficulty getting in. Some of us do make good.

[Lord Henley]

My Lords, I think the whole House is grateful that the noble Baroness came and stayed here, and for the contribution that she has made to the House, but she will also recognise that we have a duty to make sure that we have some control over our migration figures. We are trying, as I was trying to make clear earlier, to get some control over some of the more bogus applicants who claim that they were coming in to study, whereas in fact they were coming in for other purposes.

Public Bodies (Abolition of Courts Boards) Order 2012

Lord Henley Excerpts

Monday 30th April 2012 Lords Chamber

Moved By

[Lord Henley]

That the draft order laid before the House on 31 January be approved.

Relevant documents: 53rd Report from the Merits Committee, 41st Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 25 April.

Motion agreed.

Trusts (Capital and Income) Bill [HL]

Lord Henley Excerpts

Monday 30th April 2012 Lords Chamber

Moved By

[Lord Henley]

That the Bill be read a second time.

[The Minister of State, Home Office (Lord Henley)]

My Lords, a Second Reading Committee considered this Bill in the Moses Room on Wednesday 25 April, and I therefore beg to move this Motion formally.

Bill read a second time.

Police: Racism

Lord Henley Excerpts

Wednesday 25th April 2012 Lords Chamber

[Lord Sheikh]

To ask Her Majesty’s Government what recent assessment they have made of the level of racism within British police forces and how this can best be addressed.

[The Minister of State, Home Office (Lord Henley)]

My Lords, the Government take allegations of police racism very seriously. Any such allegations must be investigated thoroughly and, when and where required, perpetrators must be dealt with robustly. I have confidence in the ability of leaders of the police service to deal with this issue.

[Lord Sheikh]

My Lords, I thank the Minister for that reply. What assurance can my noble friend give your Lordships' House that police officers and staff are receiving appropriate training in community and race relations following on from recent events? Academic research has found that there is still a low level of diversity in senior and specialist ranks of the police forces. What more can be done to encourage police forces to recruit, retain and promote police officers from a diverse background?

--- Later in debate ---

[Lord Henley]

My Lords, taking the noble Lord’s first question first, he is right to talk about the importance of appropriate training, which all police forces are doing up and down the country. We will encourage them to continue doing so. As for his second question about low levels of diversity in the senior and specialist ranks of the police force, he is right to emphasise that point. It is important that we improve diversity at all levels and that police forces remain representative of the communities that they serve so that they can better understand their needs and ensure that the services they provide are appropriate. That is something that the leadership of police forces up and down the country is ensuring is done.

[Lord Mackenzie of Framwellgate]

My Lords, in fighting racism, which the whole House will support, does the Minister agree that the routine use of the race card is not helpful? Is he aware that when I made a complaint to the commissioner about Commander Ali Dizaei—they were serious allegations—who subsequently went to prison, a complaint was lodged against me with the Clerk to this House, alleging racism and abuse of authority? That complaint was written on behalf of the National Black Police Association by the Society of Black Lawyers. Does he agree that those organisations that seek to represent their members should check the facts far more clearly when making serious allegations that can affect people’s reputation and even livelihoods, and that it is not helping the fight against racism?

[Lord Henley]

The noble Lord makes a very important point about the problems that we are dealing with. What I want to get over is that we do not believe that the police are institutionally racist. It is very encouraging that in the case of the recent allegations the police officers themselves reported that issue, and it is evidence of the fact that there is no institutional racism in the police force. Obviously, cases will nevertheless come to light from time to time, and they must be dealt with in the most appropriate manner. That is why we are looking at the leadership of all police forces, and why we want ACPO and the Met to do their bit and the Mayor of London to do his bit—and in future we want police commissioners to do their bit—to make sure that racism is tackled at every possible level.

[Lord Dear]

My Lords, I am sure that we all deplore racism and discrimination wherever it occurs, particularly in organisations as pivotal as the police service, which can intervene and interfere in everyday life. I have two questions for the Minister, both concerning leadership, which have already been mentioned tangentially. Will he agree with me on the Floor of the House that in any organisation, and particularly in the police, leadership is absolutely key in influencing the culture of the service—its standards, ethics and so on? If he does agree, as I am sure he will, will he then go further and agree with me that part two of the recently published report from Mr Tom Winsor presents a golden and once-in-a-lifetime opportunity to seize the issue of police recruitment of top-level people and their advancement into rank at an early stage, that it will remain at the top of the Home Office agenda, and that there is a real will to continue to pursue that to its final conclusion?

[Lord Henley]

My Lords, I am grateful to the noble Lord, Lord Dear, for emphasising the importance with which we see the role of leadership within the police force in dealing with these matters and getting the culture right. I hope that will continue. As regards his second point about Winsor, I agree with him on that and we will pursue it. However, I believe that a degree more consultation is needed, and we will certainly do that in due course.

[Baroness Hussein-Ece]

My Lords, is not the failure to deal with incidents of racism, particularly in the Metropolitan Police, a stain on our tolerant civilised society? Is it not further in stark contrast to the case of Liam Stacey, the student who was jailed for 56 days for posting offensive comments on Twitter after the collapse of the footballer Fabrice Muamba? What urgent action is being taken to restore trust between the police and the communities, and to stamp out the evil scourge of racism that still exists in certain sections of the force?

[Lord Henley]

My Lords, I am afraid that I do not agree with my noble friend that there is a failure on this occasion. What has happened is that the police themselves have recognised that there is a problem. It was the police officers themselves who raised these allegations and are dealing with them. That is the encouraging sign, indicating that there is not the institutional racism that has been alleged existed in the Met in the past. I am very grateful therefore that that is happening and that those matters are being dealt with.

[Lord Hunt of Kings Heath]

My Lords, on the question of leadership I take this opportunity to commend the police commissioner on his robust action in relation to the matter to which the Minister has just referred. Can I, however, take the noble Lord back to the Statement that he gave yesterday? He told us that the Home Secretary is considering whether an independent inquiry should be established into allegations of corruption in relation to the original investigation into the murder of Stephen Lawrence. If the Home Secretary agrees to set up an independent inquiry, will the Minister consider passing on to her the suggestion that that inquiry might look at what progress has been made by the Metropolitan Police since the Macpherson report was published?

[Lord Henley]

My Lords, I echo the noble Lord’s opening remarks. As regards his other remarks about the Statement I made yesterday, I think he will remember that there was a general consensus in the House that this was a matter on which we needed to move relatively slowly. I can therefore say to him that things have not moved on much further in the 12 hours since I made that Statement. My right honourable friend the Home Secretary is therefore still considering what to do, and will go on considering those matters while the Met’s internal review continues. I will also make sure that she takes note of the comments that the noble Lord has made when she comes to make a final decision on that matter.

Public Bodies (Abolition of Courts Boards) Order 2012

Lord Henley Excerpts

Wednesday 25th April 2012 Grand Committee

Moved by

[Lord Henley]

That the Grand Committee do report to the House that it has considered the Public Bodies (Abolition of Courts Boards) Order 2012.

Relevant documents: 53rd Report from the Merits Committee, 41st Report from the Joint Committee on Statutory Instruments.

[The Minister of State, Home Office (Lord Henley)]

My Lords, the purpose of this order is to abolish 19 courts boards across England and Wales. The order provides for abolition with no transfer of functions. Before addressing the order I will give some background on courts boards and their proposed abolition.

In 2010, the Government announced a review of all public bodies which aimed to increase transparency and accountability, cut out duplicated activity and discontinue unnecessary activities. In conducting reviews, departments were asked, first, to address the question of whether a body needed to exist at all. In the case of courts boards, the Ministry of Justice considered that the answer was no. This view reflected that of the previous Administration, who announced in March 2010 their intention to close courts boards. The abolition of courts boards was therefore listed in the Public Bodies Bill which received Royal Assent in December 2011.

Courts boards were established in 2003 with a remit relating to the Crown Court, county courts and magistrates’ courts. They do not manage or administer the courts themselves but advise HM Courts and Tribunals Service to improve its service. Courts boards were established partly because there was a fear that magistrates’ voices would be lost within a unified courts system. However, their role has diminished in recent years as other structures are now in place to ensure magistrates’ views are heard. Locally, there are strong relationships with magistrates’ Bench chairs and, nationally, views are represented by the Magistrates’ Association and the National Bench Chairmen’s Forum.

Another function of courts boards is to ensure that the voices of local community court users are heard. However, amalgamations within HM Courts and Tribunals Service areas have reduced courts boards areas from 42 to 19 in recent years, diminishing their ability to represent the whole community. While the Ministry of Justice fully recognises the need to respond to local needs, the Committee should recognise that it is not trying to recreate a like-for-like structure in place of what it is abolishing. One reason for reforming public bodies is to make necessary savings, and this could not be achieved by simply filling the gap with something similar, especially where functions are duplicated. Abolishing courts boards will save the public purse approximately £450,000 per year. Given their reduced role over recent years, retention cannot be justified in the current financial climate.

The proposal to abolish courts boards was included in a public consultation published in October 2011. Of the 23 responses received, seven were in favour of abolition, three were neutral and 13 were against. Arguments against abolition focused on concerns around the loss of a body to oversee Her Majesty’s Courts and Tribunal Service’s performance from a local perspective. As I will discuss, there are other ways in which these local voices can be heard. Those in favour of abolition agreed with the Government’s view that HMCTS is capable of addressing the gaps left by abolition. The department found no compelling argument within this consultation to change its proposal.

The order was laid on 31 January. Orders under the Public Bodies Act have a minimum 40-day scrutiny period, with a committee of either House able to extend this to 60 days by resolution if it feels it necessary. This order been scrutinised by several Select Committees within Parliament: in this House, the Merits of Statutory Instruments Committee; in the other place, the Justice Select Committee; and, collectively, the Joint Committee on Statutory Instruments. None of these triggered the optional 60-day extended scrutiny period.

The Merits of Statutory Instruments Committee reported on this order on 16 February, having requested supplementary information. The committee specifically asked the Minister to address several questions during the debate. On his behalf, I will now take these point by point. First, the report asked that the other avenues that could perform the same functions as courts boards should be more fully articulated, in order to support the assertion that courts boards’ functions are being duplicated. Courts board representatives can have their views heard through structures such as justice issue groups, area judicial fora, local criminal justice boards, victims and witnesses subgroups, and court user groups.

There are also strong local relationships between HMCTS and local magistrates’ Bench chairmen. Additionally to these groups, Section 21 of the of the Courts Act 2003 requires the Lord Chancellor to ascertain the views of magistrates on matters of relevance to them. This will of course continue after courts boards have been abolished. As for engagement with members of the public, courts already use a variety of methods to engage with their local communities, such as open days, open justice week, representation at local community meetings, customer satisfaction surveys and mock trials. These methods provide more direct engagement with local communities than courts boards do. Members of the community may also air their views through direct communication with their courts, writing to the relevant Ministers via their MPs or by responding to consultations.

I turn to the second point that the report requests be addressed specifically, that of giving reassurances about what provision will remain to monitor and influence how court services are tailored to the needs of the local areas. The Ministry of Justice remains committed to preserving the links between courts and local communities. Under the new agency framework, HMCTS regions will be encouraged to explore local options suitable to them, such as making more effective use of court user meetings, to engage the wider community in improving service delivery. This idea is already being developed in one HMCTS area and initial best practice has been circulated to other areas.

Furthermore, delivery directors and jurisdictional leads are working with the judiciary, stakeholders and other agencies to deliver a joined-up justice system that is responsive to the communities it serves. Further plans are being developed that will promote more direct engagement with communities. Neighbourhood justice panels are just one example of this. These panels will, through community volunteers, involve communities in finding restorative and reparative solutions to anti-social behaviour and low-level crime.

The department is also committed to increasing the transparency of the justice system in order to encourage better engagement with the public and enable citizens to hold services to account. This will, among other measures, allow for the release of various data with contextual information to promote public understanding of the justice system. This has already begun. For instance, earlier this year, the department published timeliness data for courts on the open justice system website, allowing users to see how their local court is performing.

The Ministry of Justice has taken on board the views of the Merits Committee and would like to thank it for its thorough reporting. Courts boards are an advisory non-departmental public body whose role has greatly diminished in recent years. Their functions can now be carried out in other ways. The Ministry of Justice remains committed to improving courts’ and tribunals’ performance and to listening to the local community. The department will continue to do this in the future, through the other means I have laid out today.

However, in the current financial climate, it is right that duplicated functions across government should be removed. As I said earlier, abolishing these boards will save around £450,000 per year. I therefore commend this order to the Committee and beg to move.

[Lord Beecham]

My Lords, again I thank the Minister and congratulate him on his very clear exposition of this order. I indicate at the outset that, as in the House of Commons, the Opposition do not in any sense oppose the proposals.

However, although the Minister has rightly referred to issues raised by the Merits Committee, it should be noted that, as well as raising individual issues, the committee expressed some concerns about how the whole process had taken place. In particular, in relation to the explanatory document, paragraph 13 of the Merits Committee report points out that both the Magistrates’ Association and the Law Society thought that the current system was better than nothing. The Government have made a judgment on that and I do not necessarily quibble with it. The Merits Committee came to this conclusion:

“On balance the low number of consultation responses would seem to support the Government’s view, that Courts Boards are not operating particularly effectively”.

However, it also pointed out that while the,

“Explanatory Document suggests that other existing avenues may perform the same function better”,

that would need to be articulated “more fully in debate”. Up to a point that has happened in another place and here today, but it did not happen unprompted. Similarly, on the impact assessment, the committee pointed out that,

“in order to demonstrate compliance with the statutory tests”—

departments—

“should, as a minimum, include in the ED a clear statement of the factors that have been included in their calculation of net savings”.

They have subsequently done that and, again, there is no issue over that. However, as the Merits Committee indicated, it would be better to have had that in place in the first instance.

The committee made a point about the reassurances over provision to monitor and influence how court services are tailored. Its conclusion was a modest rebuke to the Government, which said:

“In our consideration of future draft Public Bodies Orders, we will expect the Government to present a properly argued case that the tests in the 2011 Act have been satisfied, supported by objective evidence”.

I am sure that the Minister will wish to ensure that that is carried through in the event of any further orders coming from his department. I hope that the Government as a whole will take that point.

One or two issues remain outstanding, which relate partly to the answers that were given by the Minister, Mr Djanogly, in Monday’s debate in the House of Commons and those given by the noble Lord today. These refer to the other structures that are in place, such as justices’ issues groups and the Magistrates’ Association. As the Minister said on Monday, there are other bodies, which mean that,

“court users … can have their views heard through structures such as justices’ issues groups, area judicial forums, local criminal justice boards, victims and witnesses sub-groups, and court user groups”.—[Official Report, Commons, Delegated Legislation Committee, 23/4/12; col. 4.]

That raises the question of the number of bodies that might be involved and suggests rather a more fragmented approach to looking at the issues that arise in an individual area. It is striking that there is no mention of local authorities among those groups. I invite the Minister to consider whether it would be appropriate to encourage HMCTS to promote the involvement of local authorities, which are important partners in community safety and can make a significant contribution to dealing with the problems of crime and disorder, which manifest themselves locally and end up in the courts.

Useful experiments are taking place in different parts of the country in relation to some of these matters. For example, I am currently chairing a scrutiny panel in my own authority dealing with the mental health of offenders. In the course of that we have discovered that there are experiments about providing professionals at court who can assist those who might have mental health problems at a very early stage in proceedings. It is also something that the young offender teams are involved in, closely linked to the local authority services.

The point is that it will not be sufficient simply to have different groups of people relating to the HMCTS.

--- Later in debate ---

[Lord Beecham]

My Lords, I shall resume my suspended sentence—which is not an inappropriate term in the circumstances. I invite the Minister to explore a couple of aspects, in particular in relation to the role of local government.

First, it would be interesting to know whether the experiment that the noble Lord has referred to includes the relevant local authority, or authorities, in that area; and secondly, whether he would encourage the system to co-operate with any local authority scrutiny committee, because it would of course be open to a local authority to scrutinise what is happening in this area. Also, in relation to monitoring and reporting on what is happening—which can be done locally, and the local authority scrutiny committee may be a suitable vehicle for that—there is the question about whether the department itself would collate information, so that what is happening and what improvements might be made to the system can be seen nationally, rather than simply leaving it at the local level. That was the thrust of the implicit suggestion of the Merits Committee when it inquired as to that.

Finally, I note that some £450,000 will be saved by this process. It is not an inconsiderable amount of money but has to be seen in the light of the £1 billion shortfall in the anticipated savings from the abolition of public bodies of one kind or another. It will be interesting to see how much more is to come in various other regulations or orders that we will no doubt be considering. Not just in the context of this department, but generally, there seems to be a long way to go to meet the Government’s target of £2 billion of savings. However, as I said at the outset, we will not oppose the order and trust that, in the developing system, there will be an adequate exchange of information. There might for example be peer review and, in particular, there should be an annual report by the department or the agency on the progress that is being made.

[Lord Henley]

My Lords, I thank the noble Lord for those comments and will deal with some of the points he has raised. Starting at the very end, when he talked about the savings that are necessary, he is right—£450,000 is a relatively small amount in the great scheme of things and we will continue to have to look across all departments and the whole of government for further savings to try to get the deficit down and, ultimately, to start reducing the debt that we inherited. The noble Lord knows that full well, and all parts of the Government will continue to do that. However, at this stage, discussing this particular order, he would not expect me to go any further.

I am grateful that he made clear that the Opposition do not oppose these proposals. It would be very odd if they did since they intended to do exactly this and announced it in the Budget in 2010. He then went on to talk about the various concerns that the Merits Committee had had and alleged that it had issued us with a modest rebuke. I appreciate that it was a modest rebuke, which we will take on the chin, but it could have given us a much more severe rebuke—it was open to it to insist on a 60-day period rather than a 40-day period. It is open to the Merits Committee to do even more than that. It is a very effective committee and one that we all, quite rightly, live in fear of and whose considerations we take very carefully. That is why I can give an assurance on behalf of the department that future Explanatory Memorandums will be clearer, with the financial impact fully laid out and the assessment against the various tests fully spelt out. We will make sure that that is the case. There are four further orders due from the MoJ in due course and we will try to make sure that we comply with the wishes of the Merits Committee.

The noble Lord then raised questions about my opening remarks and those of my colleague, Mr Djanogly, in another place, suggesting a fragmented approach and asking about bringing local authorities into consultation on these matters. As an old local authority hand—one with more experience than many people in this area—he is right to talk about local authorities, and we shall certainly look at how we can work with them and involve them. He suggested making use of their scrutiny committees and there are various ways in which we can look at that. Courts and the wider criminal justice system certainly try to work hard and liaise with local authorities and local authority groups, and they will look at how they can improve that in due course.

The noble Lord asked whether we will publish data nationally. Under the transparency agenda we are publishing data on a national basis in relation to the courts programme so that the public can see local and national performance directly. If the noble Lord would like further details about that and how to access it, I am more than happy to write to him in due course.

I hope that has dealt with the noble Lord’s points. If it has, I beg to move.

Motion agreed.

Trusts (Capital and Income) Bill [HL]

Lord Henley Excerpts

Wednesday 25th April 2012 Grand Committee

Moved by

[Lord Henley]

That the Committee do consider the Bill.

[The Minister of State, Home Office (Lord Henley)]

This is a short but technical Bill to amend the law of England and Wales relating to capital and income in trust. Capital, for these purposes, is trust property that constitutes a pool or fund of assets, and is to be distinguished from the income earned on those assets. For those who remember their Bar or solicitor exams, the distinction has traditionally been illustrated by the homely metaphor of a tree and its fruit. The tree is the capital—for example, an office block or shares in a listed company—and the fruit is the income—for example, the rent received from renting out the offices or the dividend paid on the shares.

Before turning to the substance of the Bill, I would like to say that I am very pleased to be presenting it today, although with considerable trepidation. I know that it should be my noble friend Lord McNally, who is otherwise engaged in the Chamber; he is the Minister in the Ministry of Justice who is responsible for the Law Commission and he has been a great supporter of the Bill. He is disappointed not to be able to be here, but I can assure the Committee that he will be available at later stages of the Bill.

I also know that several noble Lords present today have had the advantage of attending a briefing on the Bill by Professor Elizabeth Cooke, who is the Law Commissioner responsible for the Bill, and Stephen Roberts, who is head of litigation and legal policy at the Charity Commission. I regret that I was unable to attend that session but have had the advantage of a private tutorial from Professor Cooke and Mr Roberts to prepare me for our debate today. Otherwise I would have had to rely on my lecture notes, if they still existed, from Bar exams some 35 years ago.

The Government are very grateful to the Law Commission and the Charity Commission for all the help they have given in the preparation of the Bill for introduction and their continuing support for the Bill as it goes through Parliament.

The Bill will implement, with minor modifications, the legislative reforms recommended by the Law Commission in its 2009 report Capital and Income in Trusts: Classification and Apportionment. These reforms owe their genesis to concerns expressed by various noble Lords, including the noble Lord, Lord Phillips of Sudbury, during debates on the Bill that became the Trustee Act 2000. This led to the publication of a Law Commission consultation paper in 2004 and the Commission’s report in 2009. The Ministry of Justice then carried out a public consultation in 2010 on the draft Bill published by the Law Commission in its report and published a response in 2011 explaining how it intended to finalise the Bill. This extended process of detailed and responsive consultation has, I believe, created a measure with a large degree of consensus, which is suitable for this special Law Commission procedure in your Lordships’ House.

The overall aim of the Bill is to simplify three distinct but linked areas of trust law in England and Wales relating to capital and income. These areas are apportioning receipts between income and capital beneficiaries; classifying receipts by trustees as income or capital; and investing by charity trustees who, in deciding what investments to make, have to distinguish between investments that will produce income on the one hand and investments that will produce capital on the other.

I will start with the first point addressed in the Bill, the rules of apportionment in Clause 1. They deal with apportioning trust receipts between income and capital beneficiaries. For example, a trust—let us call it the AB trust—may be established by a person making a gift of investments on trust for person A for life, with remainder to person B. This means that the trustees will pay the income arising on the investments to A until A dies, and then transfer the investments to B. Because of the different entitlements to income and capital, the trustees must distinguish between investment receipts according to their legal classification as income receipts due to A, or capital receipts which must be held ultimately for B and can be invested to produce income for A during his or her life.

As noble Lords will remember, in the 19th century various cases came before the courts in which the judges had to decide how to split receipts in this way. Sensible though the decisions were in their time and circumstances, the application of some of them as general rules of trust practice is now problematic.

Clause 1 therefore disapplies for new trusts the first and second parts of the rule in Howe v Earl of Dartmouth, the rule in Re Earl of Chesterfield’s Trusts and the rule in Allhusen v Whittell. This means that in the absence of express provision in a new trust, these rules will not apply and the relevant receipt will belong in its entirety to the income or capital beneficiary, depending on its classification as one or the other. This will bring new trusts into line with modern trust drafting practice, which almost always excludes these rules in the document setting out the terms of the trust. This will simplify the administration of trusts without any loss in fairness. Clause 1 also disapplies for new trusts the statutory rule requiring the apportionment of income over time imposed by the Apportionment Act 1870.

The reforms effected by Clause 1 will mean that complex and time-consuming calculations, generally affecting relatively small sums of money, will be avoided.

The changes in Clause 1 are restricted to new trusts so that there is no interference with the intention of settlors, who may have wished the existing law to apply.

Clause 2 amends the law relating to the classification for trust law purposes of specified tax-exempt distributions by companies on demerger for all trusts. This is relevant because trustees holding shares in a company which demerges may receive a dividend in the form of a distribution of shares which represent an equivalent stake of ownership in the demerged company. The clause provides that, unless the trust specifies to the contrary, all the distributions falling within Clause 2 will be treated by the trustees for the purposes of the trust as capital. At present, rather confusingly, this is only the case on indirect demergers.

The distributions to which Clause 2 applies are those that are tax-exempt under Sections 1076, 1077 and 1078 of the Corporation Tax Act 2010 and, in the future, those that are tax-exempt and are specified by an order made by statutory instrument by the Lord Chancellor. No such order is envisaged at present.

In practical terms, Clause 2 will move the classification of dividends received by trustee shareholders on direct demergers from income to capital, and will secure that classification for dividends on indirect demergers, which currently rests on a decision of the High Court. As a result of the Bill, all distributions received by trustees on tax-exempt corporate demergers will be classified as capital for trust law purposes. This will remove not only the potential injustice to capital beneficiaries of seeing significant proportions of the capital holding of the trust assets converted to income by reasons beyond the control of the trustees, but also the pressure on trustees to sell investments in companies proposing demerger purely to avoid the outcome of the present inconsistent classification.

Demergers may be structured by companies in a variety of ways. In some cases of demerger, where Clause 2 applies to classify the distribution as capital, the company may have held off paying the usual dividends pending the demerger. The income beneficiary may then be unfairly disadvantaged because dividends that would have been income in the normal course of events have not been paid and the receipt on the demerger is classified as wholly capital. To prevent Clause 2 perpetuating this problem, Clause 3 gives the trustees power to compensate the income beneficiary from the trust capital. We do not expect that this power will be exercised often but we believe it is necessary in the interests of fairness.

That brings us to Clause 4, which relates to investment by charities with a permanent endowment on a total return basis. Before describing the working of the clause, I will briefly explain the meaning of these two concepts.

First, there is permanent endowment. A charity has a permanent endowment if its constitution places restrictions on the expenditure of property held for the purposes of the charity. Typically, a permanent endowment will be a capital sum donated for charitable purposes on terms that the income it generates may be used for those purposes, but the capital itself must remain untouched to create more income for the future.

Secondly, there is total return basis. Total return investment involves the charity trustees selecting investments on the basis of risk and return, and then spending an appropriate proportion of the total return, irrespective of the form individual returns take, as capital or income. As a result, the trustees are not constrained in their investment choices by the need to generate income returns and can select appropriate investments in the same way as the trustees of charities that do not have permanent endowment.

It may be helpful to illustrate this by way of an example. Let us assume that there is a charity set up to help homeless people, with a permanent endowment of £100,000. At present, the trustees must decide how much expenditure they think is appropriate and then set up an investment strategy to try to achieve it. For example, they might invest in a portfolio of fixed-income investments and shares that they anticipate will produce £2,000 a year. Whatever income that portfolio actually produces is expendable on the charity’s objects; the capital cannot be spent. That is the case even if the portfolio performs below expectations or some returns unexpectedly take the form of capital. In those circumstances, trustees today either face an income shortfall which could jeopardise their planned operations or have to undertake a process to enable them to spend some of their permanent endowment.

Under total return investment, the charity trustees do not have to anticipate expenditure when making investments. Instead, like trustees who do not hold permanent endowment, they can invest in a portfolio which balances risk and return, ignoring the form of returns. The trustees are then able to allocate a fair proportion of the eventual total return to expenditure, whether the investment receipts in question would be classified for trust law purposes as capital or income.

Total return investment is not a new concept. Charity trustees can already apply to the Charity Commission for authority to adopt it and a small number have done so. Clause 4 provides a new framework for obtaining that authorisation. Instead of making an application, charity trustees with a permanent endowment will be able to opt in to this type of investment on the terms prescribed by regulations to be made by the Charity Commission by resolution, if the trustees consider it is in the best interests of the charity to do so. This new administrative approach will reduce the costs of embarking on total return investment for both charities and the Charity Commission.

The change will enable charity trustees responsible for a permanent endowment to bring themselves broadly into the same position in relation to investment decisions as charity trustees without a permanent endowment. This will allow them to invest in the same way as other trustees in accordance with their duties under the Trustee Act 2000 and the trust instrument.

The detailed terms on which total return investment can be pursued will be determined by the regulations to be made by the Charity Commission. The regulations will be finalised only after the Charity Commission has carried out a consultation, which it intends to do after the Bill has been enacted.

--- Later in debate ---

[Lord Henley]

The Committee will be grateful to the noble Lord for that declaration of interest.

I start by congratulating the noble Lord, Lord Beecham, on being the first speaker in this debate to mention Dickens, in this bicentenary of his death. I was wondering how long it would be before Jarndyce v Jarndyce appeared, and assure him that I was about to mention it. Although the noble Lord says that this has been only eight years in gestation, as my noble friend Lord Phillips put it, if we go back to a case that I was not familiar with but which is no doubt up on the wall in the noble Lord’s lavatory, Bouch v Sproule, that was some 125 years—so it has been going on for a considerable amount of time.

I hope to deal with some of the points that have been raised, but give an assurance to the House that this is the beginning of proceedings. We have rather a good form of procedure before us for these Law Commission Bills, which will allow this Bill to be properly scrutinised later on in Committee. Another place will also scrutinise the Bill properly—as it always does—in due course. I am sure we do it slightly better, but another place will have its role to play. I can give that assurance to my noble friend Lord Higgins—this is not some odd procedure whereby the Bill comes only to this House. It will go to another place in due course.

The first point that came up was raised by my noble friend Lord Phillips about Clause 3 and the discretion that is available to the trustees. What qualification was there for that discretion and might there be some alarm among trustees about whether they could be liable for how they exercise it?

I say to my noble friend that the Bill has so far been very carefully constructed. It has been looked at by many people of much greater erudition than me and, possibly, of even greater erudition than my noble friend. They have taken these points into consideration but the great advantage of this procedure is that we can look again as the Bill goes through the House. It is certainly something to which my noble friend might want to come back in Committee when we get to that stage, at which point our mutual noble friend Lord McNally will be dealing with the Bill for the Government. It will be a matter for that Committee.

[Lord Phillips of Sudbury]

Can I take it that the Minister will be happy for consultation with his officials to take place on this matter?

[Lord Henley]

Obviously, we are always more than happy for there to be consultation before, during and whenever to deal with these matters. They ought to be looked at and that is how we get the right result in the end on all Bills. It is something that we would more than encourage. I am sure the noble Lord will be in touch with the officials, and that he has already spoken to them, the Charity Commission and the Law Commission at some stage.

I move on to my noble friend Lord Hodgson’s concerns about whether the regulations in Clause 4, particularly the total return investment regulations in new Section 104B, will be too restrictive. Again, this is a matter that we will need to look at in some detail. However, it is a matter that the Charity Commission should be able to get right following consultation. I am certainly confident that it will strive to ensure that the regulations achieve just the right level of trusting the trustees to get things right and protecting charity funds. It is a matter that I hope the House will look at in detail.

I understand my noble friend’s concerns about English cathedrals and that he raised the matter at the Peers’ briefing in March. As a result of ongoing discussions at official level between the Ministry of Justice, the Law Commission, the Charity Commission and the Church Commissioners, they are all looking at the issue. In essence, the Association of English Cathedrals, which represents all the corporate bodies of our 42 cathedrals, has asked that Clause 4 be extended to include the cathedrals in its scope. The association considers that this would benefit the 20 or so cathedrals that have permanent endowment. That would put those English cathedrals on the same footing as the Welsh cathedrals. However, unlike cathedrals in Wales, cathedrals in England are not subject to the general regulation of the Charity Commission. The Government will consider the request from the Association of English Cathedrals carefully, but at present no final decision has been taken.

I cannot remember whether it was on this issue or another that my noble friend speculated as to whether the word “Resist” appeared in my briefing. I can assure him that it does not, although it might appear later as we discuss these matters further. However, this is not really a matter for the Government to resist; it is a matter for all of us to make sure that we get right. Again, I stress that this is not a government Bill; it is a Law Commission Bill, which we are ensuring gets on to the statute book.

My noble friend also asked about social impact and mixed-motive investment. The Government acknowledge that social or mixed-purpose investment is a highly important issue and are grateful to the noble Lord for drawing attention to it, both today and as part of the work of his ongoing review of charity law. The Government’s ambition is that social investment should become a major source of finance for the social sector. To this end, the Cabinet Office’s social investment team is working with other government departments to make this vision a reality. Social or mixed-purpose investment did not, however, form any part of the Law Commission’s work on capital and income in trusts and therefore has not been included in the Bill, by the Law Commission in its report or by the Ministry of Justice in its consultation. Therefore, at this stage we would not want to see anything further added.

I have already dealt with the question from my noble friend Lord Higgins as to whether the Bill will go to the Commons. I can give that assurance. My noble friend also asked whether it will apply only to new trusts, which I think was a question also raised by the noble Lord, Lord Beecham. I can give an assurance that the reform is prospective only. We believe that retrospective interference with existing trusts could frustrate the intention of the person who created the trust, contrary to the general principles of trust law. However, as the noble Lord, Lord Beecham, reminded us, in any drafting of trusts that he has been doing over the last however many years, he has been excluding the rules in Howe v Earl of Dartmouth and others, just as, I imagine, most practitioners have been doing.

My noble friend Lord Higgins also asked about the letter and whether there was going to be any effect on small and medium-sized businesses. We believe that it is unlikely to have a major effect on small and medium-sized enterprises. However, the impact assessment published by the Ministry of Justice states:

“While a reduction in the complexity of the current legal rules may lead to a very marginal reduction in trust related business for small legal firms and trust service suppliers, this is expected to be more than offset by reduced costs for trusts. Small legal firms and trust service suppliers may also benefit from additional business if there is an increase in the number of charities operating total return investment … We do not consider that the Bill is likely to have a disproportionate impact on the operations and performance of small businesses compared to others”.

[Lord Higgins]

I am still slightly puzzled about this. It says that the Bill is expected to be beneficial to small firms and micro-businesses. Does it mean small legal firms? The idea of a small legal micro-business strikes me as a little unlikely, so I do not understand how it affects small businesses and micro-businesses.

--- Later in debate ---

[Lord Henley]

My Lords, I had better look at the letter more carefully myself in due course and write to my noble friend to deal with that point.

My noble friend Lord Wakeham talked about the possibility of delays of the sort one finds in law, which no doubt provided the noble Lord, Lord Beecham, with his opportunity to bring in Jarndyce v Jarndyce. I hope that there will not be undue delay in dealing with this, but I can certainly give him an assurance that there will not be the gap that he was talking about. We will continue with the old system until we have the new system.

Lastly, I will correct a point that I made earlier, when I said that this was a Law Commission Bill. I must make it clear that it is actually a government Bill. However, the Government recognise that it is uncontroversial and that it has been put forward by the Law Commission; it can therefore continue through Parliament under this special procedure, which I think is appropriate for Bills of this sort.

I hope that I have dealt with most of the points. I will look carefully at what I have said in due course and if necessary write to noble Lords to deal with any points that I have missed. I commend the Bill to the Committee.

Motion agreed.

Protection of Freedoms Bill

Lord Henley Excerpts

Tuesday 24th April 2012 Lords Chamber

Moved by

[Lord Henley]

That this House do not insist on its Amendments 16, 17 and 18, to which the Commons have disagreed for their Reason 18A.

18A Because the Commons consider that the imposition of general restrictions of this nature on the exercise of powers of entry could undermine actions to protect public safety.

[The Minister of State, Home Office (Lord Henley)]

My Lords, the House will recall that Amendments 16 to 18 provide that powers of entry may be exercised only either with the agreement of the occupier of the premises in question or on the authority of a warrant unless the authority using the power,

“can demonstrate that the aim of the use of the power would be frustrated if a warrant or agreement were sought”.

This restriction would be disapplied where the power of entry was exercised by a trading standards officer, a constable or a member of the Security Service, or in pursuance of the protection of a child or a vulnerable adult.

As I indicated on Report, we do not disagree with the sentiment behind these amendments. Indeed, we share their objective of seeking to roll back intrusive state powers and ensure that, where such powers are needed, they are subject to appropriate safeguards. However, although the amendments are well intentioned, we remain firmly of the view that they could hinder effective enforcement and, in so doing, undermine action to protect public safety. This view was shared by the House of Commons, which, following a reasonable debate, disagreed with your Lordships’ amendments without a Division. I note that during that debate in the Commons David Hanson said from the opposition Front Bench:

“My colleagues in another place supported the amendments, so that we could have this debate today … The Opposition will not support the amendments because we do not feel they are valuable”.—[Official Report, Commons, 19/3/12; cols. 531-32.]

As I have previously indicated, it is not what the amendments seek to achieve but the blanket approach that they adopt that creates the problem. They start off with a catch-all requirement that in all cases powers of entry may be exercised only with the consent of the occupier or on the authority of a warrant. They then go on to provide blanket exceptions to this rule.

The result is that the exemptions are either too narrow, in that they fail to capture important powers of entry that help to bring offenders to justice or save life and limb, or they are too broad. In particular, we are not persuaded that trading standards officers should in all circumstances, regardless of their motives for entry, be able to enter any premises, including people’s homes, without having either secured the consent of the occupier or obtained a warrant.

My noble friend has attempted, in part, to address the concerns that I set out on Report by seeking to add to the list of exemptions, which now includes an officer of the Serious Organised Crime Agency and by conferring on the Secretary of State a power to add further exemptions by order. In some respects we are offered an amendment in lieu that adds little to the existing provisions in Clause 40. The clause already contains an order-making power to enable additional safeguards, such as the requirement for a warrant or consent, to be added to the exercise of particular powers of entry. We do not need another delegated power to achieve a similar outcome.

In conceding that further exemptions are needed, my noble friend appears to accept that a case-by-case assessment of each power of entry is needed. That is what we are committed to doing. In conducting the review, the rebuttable presumption will be that for any powers of entry in respect of people’s homes, these should indeed be exercised only with consent or on the authority of a warrant. Where exceptions are fully justified, they will be applied on a case-by-case basis and not across the board for particular categories of state official. The review of all powers of entry will be completed, as we have made clear, within two years, and we will report to Parliament on progress at six-monthly intervals, as my honourable friend the Parliamentary Secretary made clear in another place.

The review of powers of entry will enable us to deal with the current stock of powers—the 1,300 or so powers that people complain about. Similarly, the gateway that has been established by the Home Office limits the creation of further new powers and is already making significant progress. For instance, greater safeguards have been added to all powers considered to date, including in respect of domestic dwellings, a requirement that entry is obtained either with the consent of the occupier or on the authority of a warrant, and a number of powers of entry have also already been repealed. I hope that that reassures the House that this Government are serious about dealing with the proliferation of powers of entry that we have seen over recent years and ensuring that they are subject to appropriate safeguards. When taken together, the measures that we have brought forward in this Bill and in the new gateway process will strengthen the rights and privacy of homeowners and businesses, provide greater legal certainty and ensure that legitimate law enforcement is not impeded in its duty to protect the public.

In outlining our approach, I have also set out why we cannot, in every case, demand that entry is effected only with the consent of the occupier or on the authority of a warrant and why providing a power to add exemptions simply underlines why a blanket approach will not work. I remind the House again that the Commons disagreed to these amendments after considerable debate without a vote and without seeking to offer any of its own amendments in lieu. Given that, it is time to bring this debate to a close and get on with implementing the provisions of the Bill. I commend Motion A to the House and invite my noble friend not to press his Motion A1.

Motion A1 (as an amendment to Motion A)

Moved by

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[Lord Henley]

My Lords, I start by saying to my noble friend Lord Marlesford and other noble Lords that I am grateful for the fact that he acknowledges that we are at least on the same side in that we seek to reduce the number of powers of entry and make sure that existing powers of entry have the appropriate safeguards where necessary.

I begin with a very brief history lesson. At the time when the noble Lord, Lord Butler, was Secretary to the Cabinet, I can remind him and the House that we had something of the order of 500 or 600 powers of entry. As my noble friend Lord Selsdon said, it was difficult to know exactly how many there were. Over the years, mainly after the noble Lord ceased to be Secretary to the Cabinet, we saw a rather dramatic growth in the number of powers of entry. Something of the order of about 700 new powers of entry crept in between 1997 and 2010. I am sure that there were very good reasons for many of them and that all of them went through both Houses of Parliament, because all of them would have needed primary legislation in one form or another to get them.

It might be that Parliament nodded in its duty and did not provide the appropriate safeguards and checks and balances when considering all those powers of entry. Because of the dramatic growth that we saw over those 13 years, the new coalition Government in 2010 made a commitment that we would review all existing powers of entry and do what we could to reduce those that were unnecessary, bringing in appropriate safeguards—a warrant or consent—where necessary. That is why we brought forward the provisions in this Bill in Clauses 39 to 46.

I make it clear to the House that those proposals were in respect of the existing stock of the 1,300 or so powers of entry that we had. On top of that, there is always the danger—because Governments do this—that new powers might creep in. That is why we brought in the new gateway approach in the Home Office, to be adopted by all other departments, to look at any new powers of entry that might come in and make sure that they were properly scrutinised and that Parliament looked at them appropriately as they came through in Acts of Parliament. I am grateful that my noble friend Lord Marlesford at least commended that gateway approach to the new powers, but we are largely talking about the existing powers and how we want to look at the existing stock and do what we can to reduce it.

My noble friend brought forward his amendment before. It went to the Commons, where they looked at it—and I have to say to the noble Lord, Lord Neill, that they did not look at it with a lack of respect. They gave it a very good hearing and debated it for some 45 minutes, and the fact that they did not divide on it was obviously a sign that they thought that there was sufficient agreement. It is not for the Government to decide whether matters are divided on. Certainly, considerable respect was shown to the amendment and it was debated in considerable detail in another place.

My noble friend in his amendment seeks to create a blanket approach to what should be dealt with and then accepts that that approach is wrong—and he admits it is wrong because he then brings in a blanket exemption, which surely contradicts the whole point of what he is trying to do. We are trying to conduct a review of the whole process, which will closely examine all the powers that we have and those that are necessary while adding further safeguards to others. That is the important thing. There might be some powers that we do not need—right, we will get rid of them. There might be some that we do need but which do not have the appropriate safeguards, and in that case we will look at them. We have made it clear that in conducting our review the default position will be that any powers that require entry to people’s homes must require their consent or be by warrant only. This amendment provides only a blanket rule across the board, which we do not think is the right approach.

I accept that there have been criticisms—

[Lord Lester of Herne Hill]

Can the Minister confirm that we are not in a vacuum while the review is taking place in that, if there were unnecessary and disproportionate searches or seizures, the Human Rights Act would require our legislation to be read properly to prevent them from being classified as unlawful searches or seizures?

[Lord Henley]

My noble friend is a great expert on the Human Rights Act and the House always defers to him when we discuss such matters. If there was a case of the sort that he implies, I am sure the courts would look at it in a manner that he thinks appropriate.

I am trying to make clear that we want to conduct a review over two years. I accept that there has been criticism from a number of colleagues, including my noble friend Lady Hamwee, who asked whether we could do it more quickly. The noble and learned Baroness, Lady Butler-Sloss, and my noble friend Lord Lawson also implied that we should do it more quickly. We will try to do it as quickly as possible but, as my honourable friend said in another place, we will also update Parliament on a six-monthly basis about how we are getting on. We think that this approach is the better one—to go through all the powers one by one, from department to department. Obviously, some departments will have a bigger workload than others. I understand that my old department, Defra, has rather a lot of powers. No doubt we will encourage them to work harder, and I and my colleagues in the Home Office will encourage them to do that. I think that is the better approach, and my noble friend’s approach—to bring in a blanket approach, accept that it is wrong and then bring in blanket exemptions—is not the right way forward.

[Lord Elton]

Will there be an opportunity in both Houses to debate the combined report when it is laid before Parliament before decisions are taken on legislation?

[Lord Henley]

I would hope that, as and when each power of entry is looked at, we will remove it as appropriate. I can assure my noble friend that we have already moved about 30 or so as part of the review. Most of those will require only secondary legislation to do that. It will be an ongoing process. As I made clear earlier, we will give a six-monthly update to Parliament on how we are doing this. At the end of that process I cannot give a commitment as to exactly what we will do. Certainly I am sure that my noble friend and others will hold us to account if we do not keep to that two-year programme. As I said, we want to do it more quickly if we can.

[Lord Butler of Brockwell]

My Lords, I agree with a great deal of what the Minister has said, but would the Government’s objectives not be better achieved if they proceeded on the basis that powers would lapse unless a positive case could be made for them, rather than that they should remain unless a case is made to remove them?

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[Lord Henley]

My Lords, I am a great fan of sunset clauses, and I would be more than happy to do that. It is a matter for Parliament; with any new power that comes in, Parliament must decide whether a sunset clause should be brought in. It is not within the scope of what we are debating now to bring in a sunset clause for all 1,300 powers of entry that exist. That is not the aim of my noble friend’s amendment, and it is not an idea that has been put forward by anyone else. I am sympathetic to sunset clauses, and I know that the noble Lord is sympathetic, but let us consider that with new powers that come in. It is not something that we can debate at this stage.

With those assurances about what we are doing and with the assurance that we will continue to update Parliament on how we are getting on with this, I hope that my noble friend feels able to withdraw his amendment.

[Lord Marlesford]

My Lords, I am most grateful to all noble Lords who have taken part in the debate. The House of Lords is always quite impressive, but the quality of the experience, knowledge and wisdom that have been shown by noble Lords speaking has been terrific. There has been a psychological thing that probably happens to all of us: there are those who want to do something and get on with it and those who say, “Well, let’s wait”. There is a place for both. However, on this question of how long it would take for a review, when my noble friend Lord Selsdon says that it took 18 months just to count the powers, I just wonder how far they will get in examining each of the 1,300 powers in 24 months.

I want to emphasise just one or two things. The first is that we are not aiming to remove any powers of entry. All we are saying is that we believe that the powers of entry, with certain exceptions, should be subject to agreement or to warrant as far as the occupier of the premises is concerned. The second—and this is where the amendment has changed—concerns what is found or felt about the provision before the powers have all been examined. My amendment does not interfere at all with the Bill’s current provision for a review. That provision will continue and it will be good to have it—I wish it godspeed, and we shall look forward to getting the reports. In the meanwhile, however, we will have achieved something. We will also have given the Government an opportunity so that if it transpires that a power has been trammelled by being subject to agreement or warrant and that has been counterproductive or undesirable in the public interest, the Government will be able to come back ad interim with an order to correct it. That is what I mean in describing the way that I have removed the blanket imposition.

In view of the comments of people such as the noble Lord, Lord Butler, and the noble and learned Baroness, Lady Butler-Sloss, I think that the general tenor is really such that the Government could do better. I would like to see whether the opinion of the House supports that approach.

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Moved by

[Lord Henley]

That this House do agree with the Commons in their Amendments 51A to 51E.

51A: Line 40, at end insert “or serious alarm or distress”

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51E: Line 51, at end insert—
“(2A) For the purposes of this section A ought to know that A’s course of conduct will cause B serious alarm or distress which has a substantial adverse effect on B’s usual day-to-day activities if a reasonable person in possession of the same information would think the course of conduct would cause B such alarm or distress.”

[Lord Henley]

My Lords, I shall speak also to Commons Amendments 133A to 133C. The House will recall that at Third Reading in this House the Bill was amended to introduce two new specific offences of stalking and stalking involving fear of violence. These new offences are set out in new Sections 2A and 4A of the Protection from Harassment Act 1997. I acknowledged at the time that the new Section 4A offence needed better to reflect the psychological trauma experienced by victims. I indicated that the Government would bring forward further amendments to address this point when the Bill returned to the Commons to consider the Lords amendments.

These additional amendments were duly approved by the Commons on 15 March and it now falls to your Lordships’ House to agree to them. The amendments made in the Commons to Amendment 51, which I brought forward at Third Reading, widen the new Section 4A offence so that a course of conduct amounting to stalking that causes serious alarm or distress, which has a substantial adverse effect on a victim’s usual day-to-day activities, is also captured. These changes will mean that when a stalker’s course of conduct causes their victim to, for example, change where they socialise or to ask their friends or family to pick up their children from school because they are afraid of running into their stalker, the Section 4A offence could be made out and therefore, on conviction, result in a sentence of imprisonment of up to five years. I am confident that through these changes we have further strengthened the protection of victims of stalking. We are also sending a clear message to perpetrators that this behaviour will not be tolerated.

I am convinced that we now have workable and effective laws to bring the perpetrators of stalking to justice. Elfyn Llwyd, who chaired the recent independent inquiry on stalking, said in the debate in the Commons that the new provisions,

“show that the Government have carried out a listening exercise, and we will now have firm laws. They will prevent lives from being ruined and, crucially, from being lost”.—[Official Report, Commons, 19/3/12; col. 553.]

Before bringing forward these amendments in the Commons, my officials discussed them with the National Association of Probation Officers and Protection Against Stalking. These organisations share the concerns raised here at Third Reading about the psychological impact that stalking has on victims. As many of your Lordships will know, both NAPO and PAS have said that they support the changes we have made.

I know that that view was widely shared on all sides of this House, but it is clear that the noble Baroness, Lady Royall, has some lingering doubts, if I may put it that way, that have prompted her to table two further amendments to the Commons amendments. I seek to reassure her that those amendments are unnecessary.

The noble Baroness’s amendment to Amendment 51C seeks to include a further limb to new Section 4A to cover cases where a stalker causes a victim to fear for their personal safety or that of another. I can assure the House that where such stalking behaviour causes the victim serious alarm or distress such that it substantially affects their day-to-day activity, then it could meet the threshold for the Section 4A offence. The threshold would also be met where the behaviour causes the victim to fear violence. A third party who is made to fear for their safety could also have recourse through the existing criminal and civil law, including by pursuing an injunction or a restraining order in appropriate cases.

The Government consider that the Section 4A offence should be reserved for cases where a stalker causes the victim to fear, on at least two occasions, that violence will be used against them or where a stalker causes their victim,

“serious alarm or distress which has a substantial … effect”

on their,

“usual day-to-day activities”.

It is right that this offence, carrying a maximum sentence of five years’ imprisonment, is reserved for those stalking behaviours that are more serious and have greater impact on their victim. Of course, all cases of stalking are serious and can wreck lives, but it is important that we maintain a clear distinction and escalation between the two new offences. Prosecution under Section 4A should be reserved for the worst cases. Such cases should already be captured in the Section 4A offence and adding this limb could lower the threshold too far. If the stalking behaviour does not cause the victim to experience one of the effects as set out in Section 4A(1), a prosecution under Section 2A would be more appropriate.

Again, officials have discussed this amendment with NAPO, Protection Against Stalking and with the Association of Chief Police Officers’ stalking lead. We have expressed our view that such cases could be captured in the existing Section 4A offence as amended in the Commons, and that this should be highlighted in police training. To ensure that this issue is properly understood by police and prosecutors, officials will involve ACPO, NAPO, Protection Against Stalking and others in developing training and guidance. Officials will meet them soon to agree how to work together. I am convinced that this issue can be addressed without further changes to the legislation. We now need to get the Bill on the statute book and to work with partners to ensure that these new offences are fully effective in protecting the victims of stalking and bringing offenders to justice.

I end by saying that I am indebted to all Members of the House who have worked with us to shape this legislation. Together, we have across all parties developed workable legislation that will support the police and the courts in eradicating this awful crime. This will make a real difference to victims. I again pay tribute to noble Lords on all sides of the House, including the noble Baroness, Lady Royall, the noble Baroness, Lady Howe, who is not in her place, and my noble friend Lady Brinton, for their tireless efforts in raising these issues and ensuring that stalking victims will be properly protected by these new laws. I commend Motions B and C to the House and invite the noble Baroness not to press her Motions B1 and B2. I beg to move.

Motion B1 (as an amendment to Motion B)

Moved by

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[Baroness Hamwee]

My Lords, what we have heard today emphasises the need for training for the police and maybe other agencies, and the need to be alert to behaviour that may escalate, having started as apparently comparatively innocent. I was relieved to hear my noble friend say that these amendments are unnecessary and grateful for his explanations. Reading them earlier today, it seemed to me that they were covered in both senses. The two sets of behaviour described, of which individual B was the subject, would fit within the new sections. As regards a third party, it is likely, depending on the degree of seriousness, for other criminal offences to be involved.

As I say, I am glad to know that the amendments are unnecessary and that such behaviour will be covered. If legislation is adequate, it is important that it is not expanded to cover explicitly this sort of example because matters that are not explicitly included might then be thought to be excluded. Therefore, if the legislation covers, perhaps in a fairly technical way, the behaviours that are of concern, it could be damaging in a wider sense to spell out those behaviours in the legislation.

[Lord Henley]

My Lords, I can respond relatively briefly and will deal, I hope, with most of the points. First, to protect the honour of the Home Office, I correct just one point made by my noble friend Lady Brinton. She talked about there being a department in the Home Office known as “Death and Violence”. I can assure her that that is not the case. The Home Office team that leads on this is called Interpersonal Violence, which I hope my noble friend will accept is a better name than the suggestion that she put forward.

I thank the noble Baroness, Lady Royall, for accepting that this matter has been driven by Parliament. It has been cross-party and I pay tribute to all those in this House and another place—the right honourable Elfyn Llwyd and others—who have led the work on this. Perhaps I may also say how important it is that we work with others; and that is why we will continue to talk to NAPO, Protection Against Stalking and ACPO about how we bring in the right training. As the noble Baroness will be aware, my right honourable friend the Prime Minister made it clear on International Women’s Day that training will be provided, and we will work with those bodies to develop that training. It is because we are providing it that we do not believe that the noble Baroness’s amendments are necessary or appropriate. It is because we believe that we have come to a considerable degree of consensus on this that now is the moment to move on and get this Bill on the statute book.

All that I want to do at this point is respond to one matter in the example that the noble Baroness gave regarding Mary and the problems she faced. The noble Baroness said that Mary did not change her daily routine and therefore would not be captured by new Section 4A. As the noble Baroness made clear, Mary on that occasion kept records of her stalker, she did not sleep and had to speak to the police. All those are examples of day-to-day activities being affected. Therefore, new Section 4A certainly could apply in that case, and that is why it is important that we provide the police with exactly the right training, and is why I am trying to give the commitment that we will work with the bodies that we have been talking about to make sure that the right training is evolved.

I should also take on the point made by my noble friend Lady Brinton about the need within the Home Office and Ministry of Justice to make sure we change the culture appropriately—that obviously also applies to the police—in terms of understanding the importance of these matters and ensuring that prosecutions are, when appropriate, pursued with vigour, if necessary at the higher level provided by new Section 4A, or by new Section 2A in much more minor cases. I dealt with the example given by the noble Baroness because I wanted to make it clear that new Section 4A could apply even in that case.

I therefore feel that the noble Baroness’s amendments are not necessary. I hope that she will not press them and that the Bill can move on to the statute book with due speed.

[Lord Mackay of Clashfern]

Is the noble Lord prepared to say that the Government’s view is that the amendment of the noble Baroness, Lady Royall, is in fact included in the interpretation of their Amendment 51C?

[Lord Henley]

My Lords, my understanding and what I was trying to get over is that, with the introduction of appropriate training in how the police prosecute in these matters, her amendment is not necessary. I therefore think I am right in saying that what I have said would be covered by my noble and learned friend’s point.

[Baroness Brinton]

I apologise for casting aspersions on the Home Office. I got my departments muddled. Unfortunately, it was the Ministry of Justice that has a department with such a name.

[Lord Henley]

I, as always, speak for Her Majesty’s Government when I am at this Dispatch Box, but on this occasion I cannot honestly answer for the Ministry of Justice. All that I was trying to do was clear the name of my department, but I am sure that other Justice Ministers will in due course be able to respond to my noble friend’s point.

[Baroness Royall of Blaisdon]

My Lords, I am grateful to the Minister and to the noble Baronesses who participated in this debate. The Minister and the noble Baroness, Lady Brinton, quite rightly spoke of the critical value of training for the police and other members of the criminal justice system. It is clear that in the case cited by the noble Baroness, that of Claire Waxman, training that will bring about a change of culture is an absolutely necessary and vital part of ensuring that in future the perpetrators of stalking are truly brought to book and the new offence that we are introducing is properly used against them.

I realise that the Minister says that the case of Mary would be covered by the amendments being brought forward by the Government, and he says that my amendments are not therefore necessary. The intervention of the noble and learned Lord, Lord Mackay, is of course extremely valuable because the Minister has clearly said that it is his interpretation of the government amendments and the Bill as it stands that those cases would be covered. However, a lot of what the Minister has rightly said—and I, too, am glad about the consensus that we have achieved on the Bill—depends on the quality of the training that will be provided to the people involved in the criminal justice system. I am glad that ACPO, NAPO and Protection Against Stalking will be involved in the discussions on training but, frankly, the words of my amendments are almost belt and braces. We are often told by Bill teams and parliamentary counsel that one should not include in a Bill matters that are otiose, but I do not regard the words that I propose as otiose. It is belt and braces to ensure that while training is important, should it fall down for whatever reason, those words will be in the Bill to ensure that people such as Mary, Sally Evans and others mentioned to me by NAPO, ACPO and other charities are properly covered. Before us is a great opportunity. I pay tribute to all Members of this House and indeed the Government for moving as far as they have gone in this Bill. The consensus that we have achieved is terrific. However, I should like to ensure that the belt and braces are there, and I therefore seek the opinion of the House.

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Moved by

[Lord Henley]

That this House do agree with the Commons in their Amendments 133A, 133B and 133C.

133A: Line 22, leave out “by stalking or otherwise” and insert “and stalking involving fear of violence or serious alarm or distress”

Stephen Lawrence

Lord Henley Excerpts

Tuesday 24th April 2012 Lords Chamber

[The Minister of State, Home Office (Lord Henley)]

My Lords, I beg leave to repeat in the form of a Statement the Answer given by my honourable friend the Parliamentary Under-Secretary of State for Crime and Security to an Urgent Question in another place. The Statement is as follows:

“It is a matter of deep regret that it took 19 years to achieve convictions for the murder of Stephen Lawrence. In the years since he was murdered, the Lawrence family fought tirelessly for justice and, without their efforts, it is unlikely that either Gary Dobson or David Norris would have been convicted. I hope that the verdicts in January are able to finally deliver some comfort to the Lawrence family.

Allegations of corruption in the murder investigation have been looked at on two previous occasions. They were examined by the Macpherson Inquiry, which concluded that,

‘no collusion or corruption is proved to have infected the investigation of Stephen Lawrence’s murder’.

They were also looked at by the Independent Police Complaints Commission in 2006, which again was unable to find any corruption in the original murder investigation.

Following the convictions of Gary Dobson and David Norris, further allegations of corruption have come to light. As a result, the solicitor acting on behalf of Mrs Lawrence has written to my right honourable friend the Home Secretary asking her to set up a public inquiry.

Allegations of police corruption must always be taken seriously and investigated thoroughly. It is essential that we ensure that the actions and behaviours of any corrupt police officers do not undermine public confidence in the police’s ability to respond to, investigate and fight crime. The Metropolitan Police is currently carrying out an internal review into these corruption allegations and we await its findings. I would like to reassure Members that my right honourable friend is treating these issues with the utmost seriousness. She is currently considering her decision and has offered to meet Doreen Lawrence to discuss these issues further. She will keep the House updated”.

My Lords, that concludes the Statement.

[Lord Hunt of Kings Heath]

My Lords, first, I thank the noble Lord, Lord Henley, for repeating the Urgent Question in another place as a Statement in your Lordships’ House. I echo his remarks and regret that it has taken so long to achieve convictions for the murder of Stephen Lawrence. Like the noble Lord, I also pay tribute to the Lawrence family for their tireless efforts to seek justice.

The House will know that during the investigation by the Metropolitan Police five suspects were arrested but not convicted. During the investigation many suggested that the murder was racially motivated and that the handling of the case by the police and the Crown Prosecution Service was affected by issues of race. After widespread concern, a public inquiry was held, led by Sir William Macpherson. This examined the original Metropolitan Police investigation and concluded that the force was institutionally racist.

As the Minister said, allegations of corruption in the murder investigation have been looked at on at least two previous occasions. They were looked at first by the Macpherson inquiry itself, which concluded that no collusion or corruption was proved to have infected the investigation of Stephen Lawrence’s murder. Then in July 2006 the IPCC announced that it had asked the Metropolitan Police to look into alleged claims of police corruption that may have helped to hide the killers of Stephen Lawrence. In 2007, the IPCC said that it had found no evidence to substantiate these allegations. However, within weeks of the convictions earlier this year, the issue of corruption in the Lawrence case surfaced again when the Independent made allegations about a detective in the Lawrence case which had previously been made in the Guardian in 2002 and by the BBC in 2006.

Doreen Lawrence has called on the Home Secretary to order a second public inquiry into the police investigation of the murder of her son. The call for a Macpherson 2 comes as the Metropolitan Police has said that it has been unable, after a month of investigation, to establish whether it passed potentially crucial files detailing investigations by its anti-corruption command to the police inquiry into Stephen Lawrence’s death held in 1998.

Those are some of the contexts in which we consider the Government’s response today, and I should like to ask the noble Lord a number of questions. He said that the Metropolitan Police is currently carrying out an internal review into these corruption allegations. Can he give me any indication of when that review is likely to be concluded? In view of the need for public confidence in any internal inquiry before consideration is given to a wider public inquiry, given that it is currently an internal review and given the current state of concern about these issues in relation to the Metropolitan Police, does the Minister consider that some assistance from HMIC might be appropriate? Does he accept that only an independent inquiry is ultimately likely to give the public confidence?

We understand that the Home Secretary is, as the Minister said, considering this matter at the moment but there has been an indication that one of her concerns is cost. Can the noble Lord assure me that cost will not be a factor when the Home Secretary comes to order an inquiry? Does he also accept that there are very powerful reasons for holding such an inquiry, including the seriousness of the allegations, the fact that they have recurred on a number of occasions and that the Inquiries Act 2005 states that inquiries should be held if particular events have caused or are capable of causing public concern? I suggest that that threshold may well have been reached.

If there is to be an inquiry—either a continuation of Macpherson or a new public inquiry—I should also like to ask the Government whether they will consider adding to its terms of reference consideration of progress made by the Metropolitan Police following the Macpherson finding of institutional racism and whether further changes need to be made in the light of more recent racism allegations, which I think will be the subject of an Oral Question in your Lordships’ House very soon.

Perhaps I may also refer the Minister to a number of comments made by my right honourable friend Yvette Cooper in relation to the wider allegations of alleged racism involving Metropolitan Police officers reported in recent weeks. It is very important that the IPCC carries out a swift investigation of this. She has also suggested an urgent referral to the IPCC of new information regarding alleged corruption at the time of the original police inquiry into the murder of Stephen Lawrence. I should also say that we on these Benches give full support for the efforts of the commissioner and commend his response to the recent allegations, including operational changes. There would, I think, be some real benefit if one saw Macpherson reconvened with the specific remit of investigating the corruption but also looking at the progress that the Met has made in tackling racism in the light of recent allegations and in the context of the stance that the commissioner has taken in recent weeks.

[Lord Henley]

My Lords, I am grateful to the noble Lord for his support for the commissioner in these matters, and I am also grateful that he stressed that we have already had two reports—from Macpherson and the IPCC—both of which were unable to find any corruption in the original inquiry. However, obviously that does not mean that we should not look again at these matters and that is why in this Statement, made in response to a Question, we made it clear that initially the Met will hold an internal review. The noble Lord asked when it will conclude. Obviously I cannot give him an answer to that. If it is to be an internal review, it would not be appropriate for me, the Home Secretary or any other Home Office Minister to say how it should be done and when it should report or whether at this stage any assistance from HMIC might be appropriate, as the noble Lord suggested. As the Statement makes clear, my right honourable friend is treating these issues with the utmost seriousness and is currently considering her decision on these matters. It would be wrong for me to try to pre-empt that decision. That is why the Statement makes it clear that she offered to meet Doreen Lawrence to discuss these matters and that she will keep the House updated as and when appropriate.

The noble Lord then asked whether an independent inquiry was the only solution or whether we should have a continuation of Macpherson, and whether cost would influence us in these matters. I can give him an assurance that, within limits obviously—we do not want another Saville inquiry, which the noble Lord will remember cost something of the order of £100 million or £200 million—we will not let cash constrain or limit us too much.

The noble Lord went on to ask whether we would consider the terms of reference for any new inquiry. Again, until we decide whether we will have an inquiry, which is a decision for my right honourable friend, I cannot speculate on that on this occasion.

I have tried to answer every question that the noble Lord has put to me, but I have given him no answers whatever because this is not the moment or stage at which to do so. However, my right honourable friend is considering these matters and they are being taken very seriously indeed. She will consider them in due course.

[Baroness Hamwee]

My Lords, while one obviously regrets the need for such a Statement, I thank the Minister for giving it. Among one’s reactions, one can only imagine the frustrations of the many good officers who have been involved in this whole case, and, of course, the feelings of the Lawrence family. I also welcome the Home Secretary’s agreement to meet Mrs Lawrence. Does the Minister agree that the whole case confirms the wider importance of the involvement of, and information being given to, the family of victims as well as, when it is not a murder case, to the victims themselves? We have moved a long way, though there is further to go, from the days when the victim was little more than a witness. The role of the family is important in this day and age.

[Lord Henley]

My Lords, I totally agree with my noble friend about understanding the importance of victims and their needs, which is something that I hope we always manage to do. I also endorse what she said about the frustration of what she described as the vast majority of officers. I should like to make it clear to the House at this stage that there is no evidence from the two inquiries we have had. So I should like to refer to the frustration of all officers, on the basis of the basic presumption in English law that all are innocent until shown to be otherwise. However, I accept what she means about the frustration of those who feel that they have been tarnished by the actions of what we hope is not even a tiny minority—we hope that it does not exist at all.

[Lord Reid of Cardowan]

I also thank the Minister for his Statement. I have both a personal and a previous interest in this as I was Home Secretary when the IPCC established its inquiry into this question of corruption. As a former Home Secretary—other former Home Secretaries will no doubt verify this—I understand the difficult and dangerous job that the police do and the general debt of gratitude that we owe them for our security and safety. That is all the more reason why when there are allegations or prima facie indications of corruption within the police force it is not only a source of frustration, it tarnishes the reputation of British policing.

As the Minister will know, on this occasion not only is there recurrently a swirl of allegations around this case, but it is happening in the context, as my noble friend Lord Hunt said, of other allegations of racism. There is also at present an inquiry into at least allegations that the police did not judiciously and as assiduously as possible follow up investigations into wider issues connected with the press. That is all the more reason, in addition to the concerns of the family itself, that the Minister should be able to answer two questions. First, can he assure us that when the internal police inquiry is finished—and it is proper that the Home Secretary waits until that operation is finished, as it is an operational matter for the police—the Home Secretary or another government representative will report back to the House within a reasonable time on their considerations? Secondly, will the Government not rule out the possibility of conducting a public inquiry into this matter in order to allay the concerns and fears of the wider public should those remain following the internal police inquiry?

[Lord Henley]

My Lords, I think that I made it pretty clear when repeating the Statement that my right honourable friend has made it quite clear that she is not ruling out an inquiry, and I repeat that assurance to the noble Lord. I also make it clear that she has promised to keep the House updated as a matter of course. I cannot promise precisely how and when she will do that or whether she will do something before the internal inquiry ends, but there might be other occasions. The precise timing and method by which she keeps the House updated obviously will be a matter for her.

I thank the noble Lord—who I think is the only former Home Secretary in the Chamber at the moment—for his intervention, and particularly for what he said about the police and the debt that we owe them. Let us hope that all these allegations prove to be unfounded as far as possible.

[Lord Blair of Boughton]

I lived with the Lawrence inquiry for something like 16 years, and I had the honour this year to be invited to give the first Stephen Lawrence inaugural lecture. Like many others, I pay tribute to the Lawrence family, and Doreen Lawrence in particular.

I suggest that the Home Secretary is taking a very sensible line on this matter. When I read the Independent a month or so ago regarding these allegations I was surprised at how many of those allegations I had heard before—how many had been in the investigation by the Guardian in 2002 and by the IPCC, and how many were known to those of us who had worked on the case. My concern now is to distinguish, as statisticians do, between coincidence and causation. The original Macpherson inquiry clearly did not say that there was no corruption, but it could not find any connection between corruption and the failures of the first investigation. I think that that is probably the situation that we still sit with.

I commend the idea that if an inquiry is necessary we should pursue it with absolute vigour. I also commend the view of the noble Lord, Lord Hunt, that perhaps the Metropolitan Police’s internal inquiry should be given the support of an independent position from HMIC. This case has so many layers that we should take it very slowly, as the Home Secretary suggests, and very carefully, before we rush to judgment.

[Lord Henley]

I am very grateful for the intervention of the noble Lord, Lord Blair, who knows more than anyone about these issues. I am also very grateful for the support that he offers to the Home Secretary as regards taking this very carefully. I think that my right honourable friend will also note in particular his comments on the possible assistance that HMIC may wish to give to the Met in this instance.

[Baroness Berridge]

My Lords, a recent After the Riots report from the Riots Communities and Victims Panel drew on statistics that one in three people think that the police are corrupt and an IPCC survey stated that 43 per cent of black people felt that a complaint against the police would not be dealt with impartially compared with 31 per cent generally. As much as one is encouraged by the comments of the new Metropolitan Police Commissioner and the new leadership at the IPCC, this is the level of public confidence in those bodies. Will the Minister consider what, in essence, I believe Doreen Lawrence is asking for, which is some level of independence and impartiality in this inquiry because, in effect, you have a police investigation into the police? I ask the Minister to comment on the converse side of that: in the current context, is there not a danger that there might be a temptation for the Metropolitan Police to be too hard on past conduct to allay present connected concerns about racism, which also would not be a just resolution to this matter? Would introducing independence and impartiality achieve the best way of establishing the truth of what has happened and would improving public confidence in the police be best for the police themselves and especially for the Lawrence family?

[Lord Henley]

My Lords, on occasions, I have heard allegations that one in three people think that the police are corrupt, but other surveys seem to show relatively high levels of satisfaction with the police, both in the white community and in the BME community. It is much the same for both groups, although it varies once one gets into sub-groups. I note what my noble friend said about the need for a new independent inquiry. That has not been ruled out and it is a matter that my right honourable friend the Home Secretary will consider in due course. As the noble Lord, Lord Blair, put it, at the moment it is right for the Met to conduct and complete its internal review and for this to move on in the appropriate way. I think he was also right to stress the need not to rush on too fast in these matters.

[Lord Harris of Haringey]

My Lords, public confidence in the police is extremely important. If there is an underlying feeling that the police, either in these circumstances or in others when allegations have been made, have acted in a way that is not with full integrity and is corrupt, is the Home Office satisfied with the current arrangements within the police service for monitoring and reassuring the public about the integrity of officers? What steps does the Home Office envisage putting in place to ensure that priority is given to this work when the new regime of police and crime commissioners comes into force later this year?

[Lord Henley]

My Lords, the noble Lord is absolutely right to talk about the importance of public confidence in the police. If we do not have public confidence in the police, we move to a rather different form of policing and one which neither he nor I would ever wish to see. I shall not go wider into the debate on police and crime commissioners at this stage as I appreciate that there are differences of view between the noble Lord and myself about them. We believe that they will bring greater accountability and that, in future, we shall have better policing as a result. As I made clear in the Statement, my right honourable friend takes all allegations of this sort extremely seriously. If any allegation, and particularly this one, is proved to be true, that can undermine public confidence in the police force which he and I and everyone else in the House considers so important.