Protection of Freedoms Bill

Debate between Lord Lucas and Lord Henley

Monday 6th February 2012 Lords Chamber

[Lord Lucas]

My Lords, I very much look forward to reading the report tomorrow. I support the direction that the noble Baronesses have taken but I feel that Amendment 49A raises too many questions, particularly around the boundary of what is and is not acceptable conduct. For example, there is no requirement on A to behave reasonably, only on B. In subsection (5) of the proposed new clause we are getting close to the continental form of law where something is permitted only if it is allowed in legislation, whereas in the English form of law something is permitted if it is not forbidden in legislation. That requires careful consideration. I hope that the report of the noble Baroness will be the start of that process, and that my noble friend will be very supportive in his reply.

[Lord Henley]

My Lords, perhaps the House will welcome my intervention at this stage. I echo the words of the noble Baroness, Lady Howe, in saying that, surprisingly, I, too, commend the noble Baroness, Lady Royall, on tabling the amendments in this group. However, I have some doubts about their practicality and timing.

My first doubt is about their practicality. There are three amendments in the group. I am not sure in which order the noble Baroness would wish to see them on the statute book, or whether she wants to see them all on the statute book at the same time. Amendment 49A sets out in some detail what she proposes to do, although subsection (8) of the proposed new clause still gives the Secretary of State power by regulation to add further forms of conduct to subsection (6). The second amendment is a somewhat briefer attempt to do the same thing, which gives greater power to the Secretary of State to govern by regulation. The third, Amendment 49C, seems to imply that the Secretary of State can do what she likes, when she likes, merely by regulation. I am not sure that that is the right way to go about legislating in this field. I hope that I will cover these points in greater detail in my brief remarks.

I appreciate also the extreme importance of this matter. I make it quite clear to the noble Baroness and to the House that the Government take this very seriously indeed. We understand what my noble friend Lady Brinton called the fear and trauma that it can cause victims, many of whom are women living in fear of physical violence as well as mental anguish. We accept that more needs to be done—I make that quite clear—to protect victims of stalking and to stamp out such behaviour. That is why the Government took the initiative as long ago as last November in launching their consultation, which sought views on how we could more effectively protect victims of stalking—including, if necessary, through strengthening civil and criminal law, and police powers.

Protection of Freedoms Bill

Debate between Lord Lucas and Lord Henley

Tuesday 31st January 2012 Lords Chamber

[Lord Lucas]

This is also a minor drafting amendment, but I suspect that I shall have to speak to it at greater length. It concerns the scope of “such” in the clause. It is very hard to divine in English what preceding part of the clause “such” is meant to apply to. Clearly, it can go further than the preceding noun. For example, if I were to say, “Some Peers make marmalade; such marmalade is highly prized”, that “such” would clearly apply to marmalade made by Peers and not just to marmalade. However, one can stretch the elastic too far and in that case “such” would seem to apply only to the closing words of a phrase. That is the difference that I have with the drafters of this clause. Clause 33(3) says:

“The surveillance camera code is admissible in evidence in any such proceedings”.

Does “such” mean “criminal and civil proceedings” or does it mean the whole of subsection (2)? This is a moot point. If you put the two subsections together and read straight on, it is absolutely clear in any normal sense of English that “such” refers to the whole of the preceding sentence, but the drafters say that by separating it into two subsections, the “such” applies only to “criminal or civil proceedings”. That is a difficult argument. The additional separation is small and “such” requires to be construed as if what is being talked about is a subset of the whole, but if you are talking about civil and criminal proceedings, you are really talking about the universe of proceedings. There are no other kinds of legal proceedings; you are talking about every kind of legal proceedings in the common world. You would not need “such”, you would talk just about proceedings or legal proceedings. For “such” to have a meaning in that place—I have read and reread that clause—it must refer to the whole of subsection (2). If it does, it allows the surveillance camera code to be admissible in evidence only in cases brought against a person in connection with their not having obeyed the code, not in all the cases that might otherwise involve parking or other aspects of criminal and civil behaviour where the code might be relevant. “Such” greatly restricts the use of the code.

I am clear from my discussions with the Home Office that it intends subsection (3) to be wide—that is, it should apply to any criminal or civil proceedings. It would be much clearer for anyone subsequently reading the Bill if that is what it said, rather than “such”. I beg to move.

[Lord Henley]

My Lords, I am grateful to my noble friend, particularly for his references to making marmalade. I can assure him that I made my marmalade last weekend. It did not go terribly well and I will probably be making some more this weekend to make sure I can enter it in that great marmalade competition that takes place in Cumbria once a year. No doubt the noble Lord, Lord Campbell-Savours, will be entering his marmalade in due course.

I am sorry that my noble friend still does not quite understand what we are trying to do here, but I admire his persistence. It reminds me of our late noble friend the Earl of Balfour, who frequently put down detailed amendments of this sort to a whole range of Bills and caused the parliamentary draftsmen considerable problems, as they had to try to explain their intentions and how they were getting to them. I hope that I will be able to do that and I shall quote from earlier correspondence.

My noble friend will remember that we discussed this matter in Grand Committee. My noble friend Lady Stowell dealt with it and then wrote to my noble friend Lord Lucas to clarify the overall purpose of Clause 33 and to provide reassurance that the wording of subsection (3) was consistent with the clause’s intention. Perhaps I may quote the relevant sections of the letter. It stated:

“Clause 33(1) provides that ‘a relevant authority’ must have regard to the surveillance camera code; clause 33(2) is deliberately wider than 33(1) in that it provides that any failure to have regard to the code (whether by a relevant authority or by another) does not of itself create civil or criminal liability. Subsection (2) is open to two interpretations: a narrow interpretation to the effect that the code is admissible in any civil or criminal proceedings in which a failure to have regard to the code is relevant, or a wider meaning, namely that it is admissible in any civil or criminal proceedings. We consider that it was clear from the context of the Bill that the words do refer to any civil or criminal proceedings. If you look at clause 33(2) there are no civil or criminal proceedings at that point. Consequently, the ‘any such proceedings’ (in subsection (3)) can really only refer to any civil or criminal proceedings. One also needs to consider clause 33(4) which refers to ‘any such proceedings’, since the meaning of that will hinge on the reference in clause 33(3)”.

I stand by the drafting skills of our parliamentary counsel and believe that the meaning that he has set out is already, should I say, crystal clear. The reference to “such proceedings” unambiguously refers back to the reference to criminal or civil proceedings in subsection (2). We do not need to repeat those words in subsection (3). We remain unconvinced that there is any real merit in such a revision to the Bill. Moreover, if we were to make that change in Clause 33, we would also need to amend Clauses 51 and 62 and Schedule 3, which adopts the same drafting approach.

With that explanation and having read out that extract from my noble friend Lady Stowell’s letter, I hope that my noble friend Lord Lucas will feel able to withdraw the amendment.

[Lord Lucas]

My Lords, one of the happy consequences of Pepper v Hart is that by setting out what he has, my noble friend has solved the problem, because he has produced something to which the courts can now turn to answer any question that may arise. I am very happy to withdraw my amendment.

Protection of Freedoms Bill

Debate between Lord Lucas and Lord Henley

Thursday 12th January 2012 Grand Committee

[Lord Lucas]

This amendment would give people seeking information the right to see that information in its original context. I beg to move.

[Lord Henley]

I thank my noble friend for speaking to his amendment with such brevity that he caught me unaware. He has set out how he seeks to introduce a provision into the Freedom of Information Act to the effect that, so far as is practical, and where they request it, applicants must be supplied with a copy of the original record containing the information in which they are interested.

I accept that disclosing copies of documents is often the easiest way of responding to freedom of information requests and that that practice is widely followed. In some instances, it may be reasonably practical in terms of cost to supply copies of the existing record, but there may be legitimate reasons why it is not proportionate to do so when the benefit to be gained is balanced by the burdens imposed. For example, the most reasonable interpretation of the amendment would mean that the additional information need not be released if it has not been requested, but if it is, the public authority would be obliged to provide pages of blacked-out text in order to provide the full existing record. I do not think that that would be the most appropriate way forward. Leaving the position that public authorities can provide copies of the original where necessary but they are not obliged to do so is possibly the more appropriate way to deal with this matter, and I hope my noble friend will feel able to withdraw his amendment.

[Lord Lucas]

I am grateful for that reply. I shall think carefully about what the Minister said, and if I need to ask further questions I shall do so when I meet his officials. I beg leave to withdraw the amendment.

Protection of Freedoms Bill

Debate between Lord Lucas and Lord Henley

Tuesday 13th December 2011 Grand Committee

[Lord Henley]

Parents and children, to the extent appropriate for the child’s age, must be informed in the appropriate manner, and we want to get that right. We just do not think it needs to happen every year. If, as my noble friend Lady Walmsley said, there were substantive changes to what was being proposed, then further consent would be required, but we do not have to do that each and every year. Once should be enough for the duration of that child’s journey through that school.

[Lord Lucas]

My Lords, I am very sad indeed to learn that my noble friend’s equipment is entirely inanimate, but if for the purpose of legislation that is the meaning of the word, I am sure that having it in Hansard will suffice.

I am not at all sure that I understood the scope of “reasonable” as he expressed it. He said that the biometric system had to be run by or for the school, if I remember his wording exactly. I do not see where the boundaries of that are. If a bit of software provided by the school is being used on the school’s computers, why should that fall outside the prohibitions in this Bill just because it is a built-in component of a commonly available system? I would be very grateful if I could sit down with officials between now and Report to go through that.

I would also like to explore the scope of electronic means where we are looking at this consent. What forms of registering consent will be acceptable? This occurs as a general question. How is a school to know that a parent has given consent? How is it to know that it is the parent who has given consent? Schools do not have a stock of signatures to compare signatures against. If it is hard enough with something in conventional writing, how they are going to do it in electronic form I am not at all sure.

[Lord Lucas]

Yes, my Lords, and in the ordinary way where something is not, as it were, being mandated by law in the way that is occurring in the Bill, that would seem sufficient. I would like to be sure that that ordinary common-or-garden communication that the noble Baroness describes will be acceptable under the Bill. Clearly, there is the matter of a verifiable electronic signature. When we came to introduce electronic means into the definition of writing it was with the concept of an electronic signature that was verifiable so that you could complete documents by electronic means, but that is not what is being talked about here. What we are talking about is getting an email that says, “Yes, I’m happy and so is Fred”. Is that consent by both parents, or is there some greater degree of identification required for electronic communications to be acceptable under this thing? Or is it just the reasonable best efforts of the school? I am not asking the noble Lord to respond now if he has prepared—

[Lord Henley]

If I may, I will just briefly respond to the noble Lord. Obviously, on the question of what is reasonable, great tomes have been written about reasonability in legal terms for years and years, and it is something that we want to discuss. In regards to, as he said, what forms of consent will be required I think he was quite right to take the intervention from the noble Baroness, Lady Farrington, who as a mother and a grandmother speaks with great experience as to what happens to these messages and where they end up. However, if my noble friend would like to discuss this with myself and officials, that would probably be very useful, just to make sure that we can get it right between now and Report. I will certainly be more than happy to offer a meeting.

--- Later in debate ---

[Lord Henley]

If it was a matter of getting in and out of the school, there would have to be some other provision—as with school meals and libraries and so on—by which they could get in and out. It would not just be by biometric data; it might be by a PIN or a smart card or whatever. But I will certainly look at the point made by the noble Baroness, who speaks, as I said, with such great experience in these matters.

[Lord Lucas]

My Lords, I am grateful to my noble friend for offering a meeting. There are clearly also other subjects to discuss: what form of records schools commonly have about parenting and guardianship arrangements; whether those are sufficient to deal with the requirements of the Bill; whether the Bill allows sufficient flexibility to deal with occasions when parents should not be communicated with; and how commencement is proposed. The Bill will introduce a considerable process of adjustment even if it is taken carefully. As the noble Earl, Lord Erroll, said, it threatens effectively to make these systems inoperable and therefore to require schools at considerable expense and in a great hurry to put other systems in place and make alternative arrangements. The way in which this section of the Bill is to be commenced is quite important.

I would be delighted to have a meeting; I would be delighted if the noble Lord, Lord Rosser, wanted to join me, because it is clear that we have common concerns about how this will work in practice and a common suspicion that what the Government are about is trying to ban these systems all together. However, for now and particularly with regard to Amendment 85, I beg leave to withdraw my amendment.

Education Bill

Debate between Lord Lucas and Lord Henley

Wednesday 14th September 2011 Grand Committee

[Lord Lucas]

My Lords, I had better say to the noble Lord, Lord Sutherland, that I will not move Amendment 145 because I had a wonderful e-mail from the Minister saying that he had done everything he possibly could and that all sorts of wonderful reductions in paperwork were on the way. All I can say is thank you.

[The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Henley)]

My Lords, the noble Lord, Lord Young of Norwood Green, and I have been waiting rather a long time for our cameo role in this Bill. I hope that my voice lasts the course of this debate. It has been a very useful debate, and I hope that I can manage to answer some of the points and give an indication of where the Government are going and how we wish to continue to speak to all noble Lords involved with apprenticeships and address the concerns that have been expressed. I was grateful to the noble Lord, Lord Young, for saying that he welcomes what we are doing but wants, as I think he put it, to stretch out our commitment. That is the theme behind a lot of the amendments that have been tabled, and I would like to discuss them in due course.

However, if the noble Lord will bear with me, I shall start with the amendment tabled by the noble Lord, Lord Layard, supported by a weighty list of noble Lords from all sides of the House. I know they have been discussing their amendment with my colleague John Hayes, and I am very grateful for that. I understand that the noble Lord, Lord Layard, had a further useful conversation with my honourable friend earlier this afternoon and that he is willing to work with the Government on a government amendment that would come forward on Report to achieve the shared aim of promoting apprenticeships to young people in a way that fits in with the redefined apprenticeships offer. I hope that after discussing this matter with my noble friend Lord Wakeham and the other noble Lords who tabled the amendment, the noble Lord will send his proposal to me or to my honourable friend. We have a reasonable amount of time because of the odd way this House is sitting and then breaking off so that we can all go off to our conferences. I do not know whether the noble Lord is going, but some of us are. There is certainly time for discussions to continue to take place on that. I give an assurance that doors are still open and that discussion will continue to take place.

I now return to the noble Lord, Lord Young, and congratulate him on his speech. I apologise for the fact that he was interrupted not once, but twice by Division Bells in the Chamber. I shall deal with one or two of the points that he raised in his amendment. First, he mentioned his concerns about the number of 16 to 18 starts. The figures the department has are that there were 99,400 starts in 2008-09, 116,000 starts in 2009-10 and 102,900 starts in the first nine months of 2010-11, and one hopes that there will be more. We hope that we will continue to see some sort of increase. I hope that the noble Lord will find those figures useful.

He also commented on targets. I note that the Government of whom he was a distinguished member were very keen on targets. I have always been less keen on targets and think that they can very often distort and end up producing the wrong result because people merely go for whatever the number is on paper. We do not want to have targets in this area, but we obviously have to work to planning assumptions modelled by the analysts based on previous years and future ambitions. That is where we get the figures that he was talking about. I think he should consider that targets in themselves can sometimes produce the wrong result.

I shall turn in slightly more detail to the noble Lord’s three amendments: Amendments 144AA, 144AB and 144C. Amendment 144AA deals with the offer. I understand the noble Lord’s concern, and I can assure him that the Government wholeheartedly share it. We also want to see many young people starting their careers on a sound basis through apprenticeship, as the noble Lord did himself. We differ only in our view about the most effective way to achieve that. That is why my honourable friend wants further discussions with the noble Lords behind that amendment.

The previous Government, of whom the noble Lord was a member, did much good work in building the apprenticeship programme. We accept that. They substantially increased the number of people undertaking an apprenticeship and put in place many of the structures and procedures that make the apprenticeship programme what it is today. We acknowledge that. However, the original offer set out in the 2009 legislation of an apprenticeship place for all suitably qualified young people in specific groups would mean the chief executive of the Skills Funding Agency having to find jobs with employers for all the eligible young people who wanted an apprenticeship, but neither he nor Government can tell employers whom to employ. I think the noble Lord will accept that point.

Our redefined offer in this Bill constitutes a more robust deal for those same groups of young people because we know we can deliver it. The duty on the chief executive of the Skills Funding Agency to prioritise funding for their training once they have an apprenticeship place sets the right balance between the employer-led nature of the programme and the need for support from government that young people can rely on.

In Amendment 144AB, the noble Lord suggests that procurement could be used as a vehicle for encouraging employers to take on a number of apprentices. Amendments 144AB and 144AC raise three issues: first, increasing the number of apprentices working on government projects, secondly, regularly publishing the numbers and planned numbers of apprentices in the Civil Service, and thirdly, linking apprenticeships and Investors in People status. I know my honourable friend recently met the noble Lord to discuss all those subjects and to explain the Government’s fundamental belief in a voluntary rather than a regulatory approach. I have always believed that in government. It is a better approach to follow to avoid additional burdens, particularly on smaller employers and smaller businesses. I know that my honourable friend outlined the actions he is leading to drive up the number of apprenticeships in the public sector.

On procurement, the Government want to encourage more businesses to offer apprenticeships for the clear benefits they bring to individuals and employers, but we do not believe that the best approach is to impose this by adding to the mountain of rules and regulations that businesses face on procurement at the moment and which are really very substantial. Rather, we are committed to simplifying and streamlining the procurement process to reduce burdens for suppliers and public sector bodies. Within these parameters, I know that my honourable friend has reiterated to the noble Lord his intention to look again at our policies and the way they could encourage more apprenticeship places, without disadvantaging SMEs or, of course, breaching the law.

Turning to the noble Lord’s amendment on Investors in People status, I am sure that he would agree that Investors in People is the mark of an employer that cares deeply about the long-term skills needs of its workforce and understands the business advantages of skilled and motivated staff but, because of the wide range of benefits of Investors in People status to staff and employers, we would not want further to discourage take-up of the standard. If we were to add extra conditions at this stage, such as needing to demonstrate a commitment to apprenticeships, we possibly risk inadvertently reducing employer engagement with the programme.

Amendment 144C, which was tabled by my noble friend Lord Addington, relates to apprenticeship specification and disabled people. I understand that he is seeking assurances that learners who demonstrate that they have the skills and experience to meet the requirements of an apprenticeship certificate should not be prevented from receiving a certificate on the basis of any recognised disability. I understand that we have written to the noble Lord to provide reassurances on this and to explain the steps that we are taking to ensure that apprentices with a disability are at no disadvantage in the certification process for an apprenticeship. If my noble friend feels that is not sufficient, my honourable friend would be happy to have further discussions with my noble friend between this stage and Report.

Higher Education White Paper

Debate between Lord Lucas and Lord Henley

Tuesday 28th June 2011 Lords Chamber

[Lord Henley]

My Lords, in the debate before this Statement, the noble Lord opposite castigated my right honourable friend Mr Pickles as a Gradgrind figure. We obviously want to be wary of aiming just for value for money, but we have to be very careful to make sure that public money is spent appropriately. I do not think, bearing in mind what I said about preserving academic freedom and the ability of higher education institutions to decide for themselves how to do things, that the approach we are setting out does that in any way at all. We want to make sure that any public money is spent appropriately.

[Lord Lucas]

Does my noble friend agree that the practice of cross-subsidisation must now end? It may have been acceptable, when it was just government money, to take £5,000 from the money provided for a humanities course and give it to a student doing an engineering course. Now, when we are asking a humanities graduate to pay £9,000, it is surely totally unacceptable to take half that money and spend it on an engineering student.

[Lord Henley]

Again, I want to leave this as a matter for the higher education institutions themselves. It is up to them; they do not have to charge the same amount for each student if those students are doing different courses. If students are doing a humanities subject, there is no reason why the institutions should not charge less than for other, more expensive subjects. It must be a matter for them.