Local Government Elections (Referendum) Bill [HL]

Lord Young of Cookham Excerpts

2nd reading (Hansard): House of Lords
Friday 15th December 2017 Lords Chamber

[Lord Young of Cookham (Con)]

My Lords, I begin by congratulating my noble friend Lord Balfe on his success in the ballot and on introducing this interesting debate about alternative means of electing local councillors. He certainly sparked off a wide variety of ideas, which I will focus on in a moment.

We welcome the debate that my noble friend has initiated on democratic representation in local government and how best to choose our leaders in local authorities. It is a long time since I served on a local council. It is 46 years since I lost my seat on the London Borough of Lambeth, to which I was elected in 1968 alongside Councillor John Major and also, much to her surprise, Councillor Lady Young, who was a paper candidate in an unwinnable ward in Clapham which my party won. I agree with what has been said about the importance of local government and take this opportunity to pay tribute to councillors of all parties who have managed with reduced levels of grant over recent years but have none the less maintained, on the whole, good-quality services and, in some cases, actually increased public satisfaction.

Our debate today has been underpinned by a desire to ensure popular engagement with this important local democratic process and to protect the transparency and integrity of our electoral system at local level—principles which all who have spoken would support. This is clear across all parties: successive Labour and Conservative Administrations have introduced directly elected mayors for some local authorities and the combined authorities taking on the most significant devolved powers, as well as directly elected police and crime commissioners.

I take the point made by a number of speakers that the current system can lead to domination by one party, with few opposition members. However, I think that that argument has less force now than when I was on the local authority because we have had the introduction of overview and scrutiny committees which can challenge the executive in a way that was not possible with the old committee structure that I was familiar with. On top of that, we have audit committees and officers of the council who have responsibilities on legality and value for money.

I also think that the notion of safe seats or safe wards has less validity now than it used to given the volatility of the electorate. At parliamentary level, we have seen my party lose Tatton and Dr Taylor win Wyre Forest, so I think that the notion of safe seats and safe wards is less valid. I think it was the noble Baroness, Lady Jones, who mentioned Sheffield. Within my memory, Sheffield has been run by three different parties, so it is not the case that there are parts of the country that are the monopoly of any one party.

My noble friend Lord Balfe shared his background in the Co-operative movement, which shaped his views on electoral reform. He also mentioned Wales. One consequence of devolution of course is that different parts of the UK can go their own way, and it does not follow that because Wales has gone in a particular direction, England has to follow. He also mentioned ward boundaries. As I understand his Bill, there is nothing in it that would affect ward boundaries, so the particular issue that he raised would have to be dealt with in a different way. He mentioned his support for the Greens. The Greens have shown that they can win wards—and indeed local authorities—under the existing system, so I would not accept that the existing system is a barrier to what were initially small movements.

My noble friend and the noble Lord, Lord Kennedy, mentioned that they favoured the additional member system, if we were to go down this particular route. I think that the smaller the boundary, the more difficult it is to have additional member systems. There is already the allegation that they are “second-class citizens”. That argument has less validity if you are looking at a region or a country but, when you get down to individual wards, if you were to have additional members sitting for such a small geographical area, there would be real difficulties in persuading people of their credibility.

The noble Lord, Lord Lipsey—speaking, if I may say so, from an unusual position in the Chamber, but on a familiar theme—addressed some of the deficiencies in the Bill and made it clear that he was anti-referendums. He also made the point that some of the difficult decisions about the Bill had been subcontracted to the Secretary of State, who would have to introduce a Bill to address some of these problems. I was interested in what he said about citizens’ juries, but I think that his proposal would put a huge weight on an as yet untested system of such juries taking important decisions on local democracy.

The noble Baroness, Lady Jones, asked me to answer the question of why is it fair that the DUP should have so many seats and the Greens so few. The answer is that the country had a referendum and decided that it wanted to stay with first past the post, and it is first past the post that produced the outcome that the noble Baroness referred to. In her closing remarks, she said that we should trust the people. If we are going to trust the people then I think that we have to honour the result of that particular referendum.

The noble Lord, Lord Tope, argued generously for a system that would give my party more representation in the London Borough of Sutton. I have to say that, next May, we hope to do that on our own, without the benefit of his proposed system. But, like others, he identified some deficiencies in the Bill. On the question of turnout, one can argue it both ways. I think I am right in saying that, when we moved from first past the post to the regional list system for the European Parliament, turnout fell from what it had been under first past the post—so it is not always the case that changing the system drives up turnout.

My noble friend Lord Balfe was somewhat dismissive about manifestos, but I have to remind him that my—and his—party’s manifesto commits us to,

“retain the first past the post system of voting for parliamentary elections and extend this system to police and crime commissioner and mayoral elections”.

In his remarks, the noble Lord, Lord Kennedy, said that he wanted to reduce the number of different systems. That is exactly what my party’s election manifesto does: it proposes moving back to first past the post as the system for the elections to which I have just referred.

To return to my noble friend Lord Balfe’s speech, far from moving towards the system advocated by his Bill, subject to local referendum, there is the clear commitment in the party’s manifesto to move in the opposite direction, which means it is difficult for us to support this particular piece of legislation.

We want to ensure that the laws governing our local elections can be understood and applied with confidence. Under first past the post, electors select their preferred candidate or candidates for their ward, the system is well understood by the electorate and it is straightforward for electoral administrators to deliver election results accurately and quickly.

Opinion has been tested—I referred to this a moment ago—and appetite among the public for a move from first past the post is not evident. The referendum in 2011 on changing the system of parliamentary electoral representation from first past the post to alternative vote was 67.9% against to 32.1% for on a turnout of 42.2%. The Bill before us seeks to apply PR rather than the alternative vote, and to councils rather than Parliament. None the less, significant public support has recently been expressed for first past the post. The Government’s position is that local government is local. First past the post ensures a clear link between the councillor and their ward in a manner that systems of PR may not. Local government has a strong tradition of having as its essential component the local councillor. Between them, these councillors represent the spectrum of different political parties; a number of councillors represent no party and stand as independents. The current system of representation facilitates this.

Electoral systems used to achieve PR are often more complex than first past the post; systems such as the single transferable vote require ballots to be counted multiple times in order to allocate seats. First past the post entails a relatively simple count which usually need be conducted only once, minimising the pressure on the administrative process and the possibility of error.

Elections using first past the post produce lower numbers of rejected ballot papers compared with other systems, including PR systems. According to the Electoral Commission, the Scottish council elections using STV led to 37,492 ballot papers being rejected: as a proportion of total ballots cast, that is nearly six times higher than under first past the post in the general election. High numbers of incorrectly completed ballot papers place pressure on the administrative process at the count by requiring electoral administrators’ adjudication.

We have had a useful debate. I thank all those who have contributed. I expressed reservations about the provisions of the Bill, as have other contributors to our debate. We have clearly stated our intention not to move away from the tried and tested first-past-the-post system. We have no plans to enable the change to the voting system for elections to English local authorities that the Bill could provide for, nor indeed do the Government propose to introduce the legislation envisaged by my noble friend. I am sorry to have to close my speech with remarks that I know he will find disappointing.

Budget: North East of England

Lord Young of Cookham Excerpts

Thursday 14th December 2017 Lords Chamber

[Lord Beith]

To ask Her Majesty’s Government what assessment they have made of the likely impact of measures announced in the Budget on the north east of England.

[Lord Young of Cookham (Con)]

My Lords, the Budget has provided a significant and very positive impact for the north-east of England, with more than £300 million to replace the Tyne and Wear Metro fleet, Transforming Cities funding for Tees Valley and an investment fund of £600 million over 30 years as part of the “minded to” devolution deal for the north of Tyne.

[Lord Beith (LD)]

My Lords, the funding for the Tyneside metro is welcome, but the big announcement in the Budget was the half-baked devolution deal. Does the Minister realise that the region has none of the transport, health and social care powers and still less the level of funding which other regions such as Manchester and Birmingham are getting? It has a boundary cutting right through the middle of Tyneside and it focuses on the creation of an expensive elected mayor who nobody asked for and very few people want. What, if anything, will this deal do for the low-wage rural areas of north Northumberland, so often outvoted by the Tyneside areas on which this deal will focus?

[Lord Young of Cookham]

My Lords, I welcome what the noble Lord said at the beginning about the metro. The rolling stock is some 40 years old and is not as reliable as it should be, and the new rolling stock will make the north-east an even better place in which to live and work. So far as what the noble Lord calls the “half-baked deal” is concerned, for those not familiar with the story so far, seven local authorities in the north-east approached the Government, under the umbrella of the North East Combined Authority, for a devolution deal. This was in accordance with the Government’s wish to decentralise decision-making and give local areas more powers and resources. Half way through the discussions, four of those local authorities withdrew. Those who understand the socio-political dynamics of the north-east and the tribal tensions of the Tyne may understand why—but I do not. The decision for the Government was whether the three remaining local authorities of Northumberland, Newcastle and North Tyneside should go ahead. Those authorities want to proceed, as do the business community and the local enterprise partnership. For those reasons, the Government are minded to proceed and the ball now rests in the court of the three local authorities to go through the statutory consultation and pass the local orders.

[Lord Beecham (Lab)]

My Lords, I should declare my interest as a member of one of the tribes in question. Educational attainment is a key contributor to economic development. In Newcastle—this will be true of the region as a whole—27% of children are living in poverty; that is 50% more than the national average. Will the Government now seek to improve the life chances of these children by replicating in the north-east the very successful London Challenge that transformed education in the capital?

[Lord Young of Cookham]

I have no objection at all to rolling out successful experiments in London, or indeed anywhere else, to other parts of the country that could benefit from them. There is quite a lot in the Budget to help the north-east on housing, health, transport and technology. Under the proposed deal on education, adult education would of course be devolved to the new combined authority. On the noble Lord’s specific question on education, perhaps I could take advice from colleagues in the respective departments and then come back to him.

[Baroness McIntosh of Pickering (Con)]

My Lords, will my noble friend agree that there is a lot in the Budget and the industrial strategy to improve connectivity, particularly in rural areas? Will he ensure that these measures are used in rural communities across the whole of the north of England—the north-east, north Yorkshire and the north-west—to ensure that access to and the speed of rural broadband are improved, to enable rural businesses to compete?

[Lord Young of Cookham]

I entirely agree with my noble friend. She will know that the industrial strategy, which was launched at the same time as the Budget, promised, among other things, to make the UK a more connected country, with high-speed fixed-to-mobile access available in all areas including rural ones. It also aimed to make decisions on infrastructure more geographically balanced. That is at the heart of the industrial strategy. My noble friend will have an opportunity to develop her arguments after Christmas, when there will be a whole day’s debate on the industrial strategy.

[Lord Blunkett (Lab)]

My Lords, the Minister may not have a handle on the tribal conflicts in the north-east, but I have a slightly better handle on the tribal conflicts in Yorkshire. There is a real worry that the whole of the east Pennines is losing out in relation to resources which would otherwise be available if the plans for elected mayors in the city regions there had actually been carried through. If they do occur in the months ahead, will the noble Lord give an assurance that the resources earmarked for authorities with elected mayors will be available, and backdated, for combined authorities that move forward with an elected mayor in the way he has described?

[Lord Young of Cookham]

The noble Lord will know that there is a Sheffield regional city devolution deal with an elected mayor. That is being set up, with an election scheduled I think for May next year. If other parts of Yorkshire want to approach the Government and offer a similar devolution deal, of course we would listen. When it comes to backdating resources, my colleagues in the Treasury might just pause before signing up to that one. But what we do not want to do is have an all-Yorkshire deal which then unwinds the deal that is already going ahead with the Sheffield City Region. The Government would listen very warmly to any work the noble Lord can do to encourage more authorities to come forward with devolution deals and elected mayors.

[Lord Wrigglesworth (LD)]

The Minister is quite right to welcome the support that has been given to the north-east, in particular the support for Teesside, where the steelworks have been closed and where a Conservative mayor has been working very closely with the Labour authorities to ensure the success of the Government’s approach. The position on Tyneside is quite disastrous. I was chairman of the Port of Tyne Authority for a number of years, and with an international passenger terminal on one side of the river and docks on the other, working with different authorities across the river is going to be most difficult. Will the Minister therefore seek to do whatever he can to get the Labour authorities on the south side of the river to join their colleagues north of the river in order to set up a single authority for the whole area?

[Lord Young of Cookham]

I am grateful to the noble Lord. He may have more influence than I have in seeking the reconciliation that he promotes, in view of his knowledge of and commitment to the area. On Tees Valley, as he referred to, the Chancellor announced £123 million of new funding to ensure the ongoing safe and secure management of the former SSI steelworks, and I welcome the close working between the mayor, Ben Houchen, and the local authority. On the north-east and Tyneside, whether it is too late for the four authorities to change their mind I do not know, but obviously we would like to go ahead with the previously proposed authority with all seven local authorities involved.

Grenfell Tower

Lord Young of Cookham Excerpts

Thursday 14th December 2017 Lords Chamber

[Lord Kennedy of Southwark]

To ask Her Majesty’s Government what action they are taking to ensure that survivors of the Grenfell Tower fire do not spend Christmas and New Year in temporary accommodation.

[Lord Young of Cookham (Con)]

My Lords, the Government are supporting the Royal Borough of Kensington and Chelsea in rehousing survivors of the Grenfell Tower fire as quickly as possible. Rehousing must proceed at a pace that respects the needs, wants and situations of survivors, but bureaucratic inertia must not add to delay. In line with the recent task force report, I expect the council to do whatever is necessary to ensure that households can move into settled homes as swiftly as possible.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, today is six months since the tragedy at Grenfell Tower, and we remember the victims and survivors of that terrible night. I pay tribute to the emergency service workers, the public sector staff, the voluntary sector and the faith communities for working up to this very moment to get the community back on its feet. Six months is a very long time in these circumstances, and to be living in hotel accommodation, vulnerable, unsettled and traumatised, is no way to spend Christmas. Can the Minister tell the House what specific action the Government are taking to get these families into accommodation in the new year? On the anniversary of this terrible tragedy, we want to be talking about going forward, not still talking about housing families in permanent accommodation. Despite what the noble Lord has said, the situation today for the majority of these families is just unacceptable.

[Lord Young of Cookham]

I endorse what the noble Lord said about the response of the fire service—it was on the scene within six minutes—and about the community response. The most reverend Primate the Archbishop of Canterbury paid tribute to and spoke very movingly about that response on the “Today” programme.

To bring the House up to date: 151 homes were lost in the fire; some of those homes were overcrowded and others had multi-generational households which now wish to divide, so 210 households that formerly lived in Grenfell Tower and Grenfell Walk need to be rehoused. One hundred and forty-four households have accepted an offer of either temporary or permanent accommodation; 99 have moved in—54 into temporary housing and 45 into permanent housing—and 111 are in emergency accommodation, of whom 66 are yet to accept an offer of either permanent or temporary accommodation.

The noble Lord asks, quite rightly, what action is being taken. The Royal Borough of Kensington and Chelsea plans, by Christmas, to have acquired 300 homes, set against the 210 that are needed. It is acquiring two homes a day. I quite agree that Christmas is no time to spend in emergency accommodation; the Government are acutely aware of that. In the four hotels where most of the families are, specific arrangements have been made for the families to have space of their own to meet each other and to entertain their wider families, if they want to. A lot of services are being put on by voluntary or faith groups over the Christmas period to help and support those families.

We very much hope that by June next year everyone will have moved into permanent accommodation, but families need to move in their own time. Some who are in emergency accommodation do not want to move into temporary accommodation because they might have to move twice. The Royal Borough of Kensington and Chelsea is doing intensive work alongside the families, finding out what accommodation they need and where they need it, and seeking to match that with the 300 houses that it is acquiring. I very much hope that by June everybody will have been offered and accepted permanent accommodation.

[Lord Shipley (LD)]

My Lords, I join the Minister and the noble Lord, Lord Kennedy, in paying my respects to those who died in the Grenfell fire six months ago. I remind the Minister that this Question is about what the Government are doing. Does he accept that local people have now lost confidence in their local council? I remind him that in the Government’s Statement on the Grenfell fire on 19 October, it was said that there were expected to be 300 suitable local permanent properties by Christmas, yet only 45 households have moved in. Does he have confidence in the local council to deliver, or may it be time for the Government to intervene more directly?

[Lord Young of Cookham]

The Government have no plans to put commissioners into the Royal Borough of Kensington and Chelsea. It has a new leader and a new chief executive and the Government have established a task force to make sure that that royal borough lives up to the expectations that everyone has of what it plans to do. Some of those in temporary accommodation want that to become their permanent home. The Royal Borough of Kensington and Chelsea is approaching the relevant landlords to see whether that can take place. Some of those in emergency accommodation have already accepted permanent accommodation but it takes time to complete, fit out the house and put in the white goods to enable the families to move in. I am conscious that your Lordships are impatient for progress to be made but I am confident that the Royal Borough of Kensington and Chelsea, which plans to spend nearly £250 million acquiring property, now has the message, and I think the former lack of emotional intelligence and empathy is now behind us. It is now getting on with the job.

[Lord Tebbit (Con)]

My Lords, were any of those who are now claiming social housing tenants of Grenfell Tower who had moved out and unlawfully let their accommodation to more than one family? I do not think we need have too much sympathy for people who behave like that.

[Lord Young of Cookham]

I am not sure that I fully understood my noble friend’s question. The assistance that the Government and the Royal Borough of Kensington and Chelsea are seeking to extend is to those who were living in Grenfell Tower or Grenfell Walk at the time who are now homeless, or who were homeless shortly after the fire. Therefore, anybody who was living there at the time is now being assisted by the Royal Borough of Kensington and Chelsea. My noble friend has lived through tragic circumstances where people have lost their lives. He will know better than anyone else in this House the trauma that those people have been through. We ought to allow them the time and space to find suitable accommodation to move into.

[Baroness Crawley (Lab)]

My Lords, in the aftermath of the Grenfell tragedy, why are the Government continuing apace with their deregulation agenda?

[Lord Young of Cookham]

So far as Grenfell Tower is concerned, the noble Baroness will know that the Hackitt review is shortly to produce its interim report on fire regulations and fire safety. She will know that after the tragedy at Grenfell Tower, advice was given on two occasions by the DCLG to owners of property that might not have the appropriate cladding on how to make safety measures appropriate for those blocks. The whole thrust of the inquiry under Sir Martin Moore-Bick and of the Hackitt inquiry is to make sure that nothing like this ever happens again.

Combined Authorities (Mayoral Elections) (Amendment) Order 2017

Lord Young of Cookham Excerpts

Monday 11th December 2017 Lords Chamber

Moved by

[Lord Young of Cookham]

That the draft Order and Regulations laid before the House on 13 November be approved.

Considered in Grand Committee on 6 December

Motions agreed.

Combined Authorities (Mayoral Elections) (Amendment) Order 2017

Lord Young of Cookham Excerpts

Wednesday 6th December 2017 Grand Committee

Moved by

[Lord Young of Cookham]

That the Grand Committee do consider the Combined Authorities (Mayoral Elections) (Amendment) Order 2017.

[Lord Young of Cookham (Con)]

My Lords, in speaking to this order I shall speak also to the Local Authorities (Mayoral Elections) (England and Wales) Regulations 2017. The purpose of these instruments is to modify provisions in the Representation of the People Act 2000 to enable the pilot scheme provisions to apply to combined authority elections and local mayoral elections. These provisions were brought into effect in 2000 and used extensively in pilots in 2007. There has been no piloting of changes to the voting process since 2007 but new polls have been introduced to other local authority elections; namely, elected local mayors and mayors for combined authorities. At present, the 2000 Act piloting provisions do not fully apply to these new polls.

Earlier this year, the Government announced that they would be conducting pilots for voter identification at the local elections in May 2018, in line with their manifesto commitment to,

“legislate to ensure that a form of identification must be presented before voting”.

Voter ID is part of the Government’s commitment to improve the security and resilience of the electoral system that underpins our democracy, and will ensure that people have confidence in our democratic processes. Five authorities have indicated their intention to run voter ID pilots at the local elections in May 2018: Woking, Gosport, Bromley, Swindon and Watford, while Tower Hamlets will pilot new security features for postal voting. Watford and Tower Hamlets will also be holding local mayoral elections in addition to their local council elections.

The powers to alter electoral conduct rules for the purpose of running pilots are contained in Section 10 of the Representation of the People Act 2000. Section 11 of that Act enables the Secretary of State to apply measures trialled in a pilot scheme generally, taking into account any report on the scheme provided by the Electoral Commission under Section 10. Currently, these sections make provision to conduct pilot schemes in local authority and Greater London Authority elections.

As I indicated a moment ago, two of the local authorities that plan to conduct pilot schemes in May 2018 for local government elections will also be holding a local authority mayoral election on the same day. These polls are usually held in combination, for the benefit of electors and administrators. The proposed changes will allow pilot schemes to be conducted at both these polls. This will ensure that voters have a smooth voting experience. It would be confusing for voters if the provisions being piloted applied to one poll but not the other poll being held on the same day. The changes will also facilitate the effective administration of the polls being held.

More generally, the statutory instruments we are considering will enable pilot scheme orders to be made that are intended to improve the voting experience for voters and make the electoral process more secure. The pilot order schemes will also allow evidence to be collected for statutory evaluation by the Electoral Commission of the impact of voter ID in polling stations. That evidence and evaluation will inform the Government’s decision about how most successfully to meet their manifesto commitment to introduce voter ID nationally. There are currently no pilot schemes planned at a combined authority mayoral election—“metro mayors”, as the media have termed them—but the order will facilitate any pilot scheme orders for combined authority mayoral elections to be held in the future.

I turn briefly to the detail of the proposed changes. As I explained, Section 10 of the Representation of the People Act 2000 enables the Secretary of State to, by order, make provision for running pilot schemes relating to the conduct of local government elections in England and Wales. Section 11 allows the Secretary of State to apply those changes generally. Section 10 as drafted does not enable changes to be made to the conduct rules for local mayoral elections. Also, provisions in Section 11 that enable measures tested in a pilot scheme to apply generally and on a permanent basis do not encompass conduct rules for local mayoral elections. When the mayoral rules were made in 2007, provision was made to apply Sections 10 and 11 of the RPA 2000 to mayoral elections. However, a further modification was needed to enable changes to be made to the mayoral conduct rules as those rules are made under the Local Government Act 2000. Sections 10 and 11 enable changes to be made only to conduct rules made under the Representation of the People Acts. This was a technical oversight. The regulations make these modifications to enable pilot scheme orders under Section 10 of the RPA 2000 to make changes to the mayoral conduct rules. This will enable pilot scheme orders to be made that will facilitate voter ID pilot schemes during local mayoral elections in the short term, and any other pilot schemes in the longer term.

I turn to the Combined Authorities (Mayoral Elections) (Amendment) Order 2017. Similar to local mayoral elections, Sections 10 and 11 of the RPA 2000, as currently drafted, do not enable the conduct rules for combined authority mayoral elections to be modified. When the combined authority mayoral order was made in 2017, provision was made to apply Sections 10 and 11 of the RPA 2000 to combined authority mayoral elections. However, a further modification was needed to enable changes to be made to the 2017 conduct rules, made under the Local Democracy, Economic Development and Construction Act 2009. Again, this was a technical oversight. The order makes these modifications to enable pilot scheme orders under Section 10 of the RPA 2000 to make changes to the combined authority conduct rules for the purpose of conducting pilots.

We are also taking the opportunity to address a technical issue concerning the subscription of candidates’ nomination papers at combined authority mayoral elections. The order will amend the definitions of “elector” and “local government elector” to clarify who may subscribe a nomination paper. A subscriber must be of voting age on the day of the poll and they must be on the local government register of electors on the last day for the publication of the notice of election, which must be published no later than 25 working days before polling day. It also includes new versions of the form of the nomination paper for use by candidates of the combined authority and mayoral elections as a consequence of these changes.

The provision for the combined authority mayoral elections did not contain the limitation of the register being the one produced by the last day for publication of the notice of election, which is the case for other polls. This meant that administrators had to check subscribers on the register up to that date and beyond it, which opens up scope for confusion and error, as this was unlike the position for other polls. This change brings the provision in line with those for other polls and therefore also supports more effective administration when polls are held in combination. These amendments will make combined authority mayoral elections consistent with other polls on this issue and provide certainty to candidates and administrators on who may subscribe a nomination paper.

Our principal stakeholders, the Electoral Commission and the Association of Electoral Administrators, have been consulted on these draft statutory instruments and they are content. Furthermore, they have expressed support for voter identification pilots in general. The Cabinet Office and the Electoral Commission will undertake detailed evaluation of the pilots, after which the Government will announce the next step towards implementing voter ID nationally.

We consider that these instruments are necessary for the conduct of electoral pilots in respect of local mayoral elections and combined authority mayoral elections, and that they make the law governing candidates’ nominations at combined authority mayoral elections consistent with other polls. I commend these instruments to the Committee.

[Baroness Pinnock (LD)]

My Lords, again I draw the attention of the Committee to my registered interests as an elected councillor in Kirklees and a vice-president of the Local Government Association. I understand, appreciate and welcome the technical changes in these two statutory instruments, which ensure that the opportunity to take part in the pilot for voting ID, among others, can include mayoral elections.

My noble friend Lady Thornhill is currently the elected Mayor of Watford, which is one of the pilot areas in next year’s elections. No doubt it was that and the Tower Hamlets situation that have triggered these SIs. I asked my noble friend Lady Thornhill what sort of ID they were using. It is quite interesting: they require people to bring their polling cards as their form of identity when they vote. Failing that—because those involved in elections know that polling cards constantly get lost—they can bring other forms of written ID. Interestingly, they are not required to provide photographic ID.

I am concerned that, following the report by Eric Pickles, the Government seem to be focusing their attention on voter identification in order to improve the integrity of the ballot, rather than focusing on the area where there is evidence of larger fraud: the use of postal votes. I am concerned, and have been for a long time, about the abuse of postal votes, for a number of reasons. One reason is that for some families in some communities—where the whole family votes by post—a secret ballot does not exist. In particular, that has a negative effect on women’s rights to express their own opinion when they vote. That issue, unfortunately, has not been addressed through this.

I also draw the Minister’s attention to the widespread use of postal votes in areas whereby they are collected and filled in by others. We know this from court cases. Despite the best efforts, which I accept have been made, to improve the identifiers on postal vote applications and hence on the form and the ballots as they are completed, in my experience they might have reduced but certainly have not prevented continuing abuse of the postal voting system.

Lastly, when it comes to voter identification, we need to learn from the experience of those of us who have been involved in elections. I will relate an experience I have had to illustrate the point. It took place a few years ago, but I will not say in which area it was. A guy drove his car down the street and pressed the horn. People came out of various houses. The man in the car handed out polling cards and off those people went to vote. Linking the polling card with the person has not prevented abuse in the past and I am not necessarily convinced that voter ID would reduce it now. It might also prevent some people voting because they would not want to have photographic identification.

I am all in favour of improving the integrity of the ballot because it has been eroded over the past few years, but I am not convinced that we have found the solutions. Having said that, I totally support these statutory instruments.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, I will make only a few brief remarks on the order and the regulations. Like the noble Baroness, Lady Pinnock, I refer the House to my interests as a councillor—in the London Borough of Lewisham—and as a vice-president of the Local Government Association.

In general I am supportive of the order and the regulations—I have no problem with them as such. However, there are some issues. As we have heard, one of the themes in the review is fraud. Issues of fraud have been reported far and wide over a number of years in the media and there have been a number of court cases in which people have, quite rightly, been prosecuted and some sent to prison, deservedly so. I think we all agree that we want to make sure that fraud is driven out of our electoral system, and if these go some way towards helping to do that, that is well and good and I support it.

We have had a number of pilots in this area of policy over a number of years—I certainly remember that the Labour Government, and particularly Jack Straw, loved pilots. I just hope that if we have these pilots, we will make a decision on them and move them along a little. I am all for pilots but I want a conclusion as well. If they are seen to improve the electoral system, we should go ahead with them.

On the nomination papers, obviously that is fine. I am surprised that we need to do that, but I am happy that we agree those nomination papers.

I may have heard the Minister say that we consult the people we normally consult, which is the Electoral Commission and the Association of Electoral Administrators—two fine bodies. I have certainly made the point—if not to the Minister then to other Ministers sitting in that position on behalf of the Government—that the one group that is always missed out is the political parties. We have some experts in these areas. I was a member of the Parliamentary Parties Panel, which is the statutory body that the commission consults, and I then became an electoral commissioner, so I sat on the Electoral Commission. I can tell your Lordships that at no point did these bodies consult on these issues with the political parties. They do not. They might say that they do, but they do not, and it is a shame. They might say that we do not need to on this one, because these are purely technical matters. There are people from all parties—we all know some of them very well— who are expert in these areas and can give valuable information, insight and experience. It is a shame; the Government should as a matter of course add in the political parties and formally consult them as well. It would not be a great problem for the Government to do that. We should certainly not rely on the Electoral Commission. As I said, it is a good body and great people—and great commissioners—work there, but I do not want it to consult, because it will not. It does not; it will talk to the administrators, and as this is a technical issue and not a campaign it will not involve the parties. Maybe we should think about that.

My noble friend Lord Campbell-Savours makes a valid point about ID cards and fraud. That certainly would have dealt with the issue. The issue is of course that some people do not have ID or what is acceptable ID when you go along to the polling station—what would be acceptable? Everyone has a passport or a driving licence, so what will not be acceptable? That is an issue to deal with. Also, Northern Ireland has a little electoral card, which is very popular, especially among young people, because they say, “It gets us into pubs and clubs because it proves we’re 18”. It is not an ID card but an electoral card provided by the Chief Electoral Officer for Northern Ireland.

My noble friend Lord Campbell-Savours mentioned the supplementary vote. All these systems are interesting and useful. I prefer the alternative vote, because it spreads the vote around more evenly than the supplementary vote, but other systems are definitely worth looking at.

Having said that, I support these measures as far as they go. I look forward to the noble Lord’s response.

[Lord Young of Cookham]

My Lords, I am grateful to all noble Lords who have taken part in this short debate, all of whom have indicated their broad support for the measures before the Committee but have raised a number of other issues. A number of those who have spoken are vice-presidents of the Local Government Association. I am not, but I was a vice-president of a predecessor body called the AMA. I was expelled either for rate-capping or for abolishing the GLC, which may well be spent convictions.

I will deal with some of the issues raised. The noble Baroness, Lady Pinnock, is quite right that there are a range of recommendations in the Pickles report. We are dealing with some of them, such as those on harvesting votes by political parties and behaviour at polling stations. They are being dealt with on a separate track.

Tower Hamlets is piloting postal vote ID, to pick up the point the noble Baroness made, so we will have more information on what the options are for dealing with the issue of potential fraud with postal votes, which she raised. In principle, postal votes are a good thing because they help drive up participation in the democratic process. They are a very convenient way of voting, so I would not want to move away from the system we have of postal votes on demand, but we will discover more from Tower Hamlets about how one can drive up the integrity of the system.

Turning to some of the other points made, I take the point that the noble Lord, Lord Campbell-Savours, made about trying to target the pilot schemes on particular areas where there are known to be problems. The approach we have adopted at this stage is to invite local authorities to take part in the pilot schemes, rather than be prescriptive, which is the approach he was in favour of. Tower Hamlets, which is an area where there has been some difficulty, is taking part in one of the pilot schemes on postal votes.

So far as declarations of interest are concerned, my experience is that the interests of candidates are widely advertised during the process of the campaign— quite often by their opponents. Putting them on the ballot paper would make the ballot paper very cumbersome. I think the noble Lord’s suggestion was that they might go on the nomination paper. We will look at that in conjunction with the Electoral Commission.

On the supplementary vote, there is a Private Member’s Bill coming up in the name of my noble friend Lord Balfe looking at alternative methods of electing local councillors. He is in favour of some form of PR for local government, so if the noble Lord is free on a Friday, there will be an opportunity for him further to develop his views. The supplementary vote is of course used at the moment, as the noble Lord said, for local mayors, combined authority mayors, the London mayor and the PCCs, so it is already embedded in part of the process. I do not think we have any plans to use it more widely.

[Lord Campbell-Savours]

Does the Minister not see the merit if we target where the problem is and then getting rid of the individual registration scheme? I see no benefit whatever in the scheme other than to deal with a problem in particular areas, which will be dealt with anyhow under other arrangements.

[Lord Young of Cookham]

Individual voter registration was introduced, I think with the support of the Opposition, by the last coalition Government. It is now there and it is an improvement—

[Lord Kennedy of Southwark]

I think the Minister will find that it was initially introduced by the Labour Government, then of course the coalition Government changed the rules when they brought the Act in at the start of that Government.

[Lord Young of Cookham]

But I think there was broad all-party support for individual voter registration, which was the point I was making. So we have a lone voice, which I respect, but it is an improvement on the previous system, where it was up to the householder to put people on the voters’ list. Where we are now is a much better system.

On the issue I was talking about a moment ago, we will have a look at declarations of interest but, as I said, putting it all on the ballot paper would make it more difficult for electors to understand. It could lead to errors and confusion in completing the ballot paper. I also mentioned registration. Changing the registration system has ensured that false names cannot be put on the register to allow ghost voters to cast fraudulent ballots, which had been a significant issue in the past.

The noble Baroness, Lady Pinnock, raised postal vote fraud. I am advised that there is no evidence of organised postal vote fraud since personal identifiers were introduced in 2007. Tower Hamlets will pilot changes to postal voting. On the Watford pilot, if a poll card is missing, the elector can cancel it and be issued with a new poll card to enable them to vote. Poll cards are one of the types of photo and non-photo IDs being tested in the 2018 pilots and, as she said, not all of them will involve having photo ID. We are addressing 48 of the recommendations in the Pickles review and will consider measures to improve the integrity of the postal vote process. The 2018 Tower Hamlets pilot will shed some light on how to take this further.

On advising the parliamentary parties—so in response to the noble Lord, Lord Kennedy—I used to be on a parliamentary panel set up by the Electoral Commission. We had regular meetings with the Electoral Commission and all three parties were represented on that panel. Of course, the political parties are represented on the Electoral Commission itself, so when we consult it I would hope that it might touch base with the political representatives on the commission. If not, they will have read this exchange and I am sure they will change their procedures to take on board that criticism. The noble Lord is right that the political parties should be consulted—of course, they are consulted right at the end, as we are doing at the moment in dealing with these statutory instruments.

The ID card system in Northern Ireland is voluntary. You can either get an ID card or use your passport, or some other system. It is very much a voluntary process.

If I have not dealt with all the questions raised, I will certainly write to noble Lords but I welcome their contributions and I commend these instruments to the Committee.

[Lord Kennedy of Southwark]

I have just a couple of points. My noble friend Lord Campbell-Savours talked about specific areas. When I was a commissioner, people at the commission would always talk about hotspots but it was never very clear about what was meant and where they are. That is part of the problem; they always went on about hotspots and I remember discussing them, but I could not get much progress at all.

On these instruments, yes, the commission does a good job and consults the political parties through the Parliamentary Parties Panel, which I was a member of as an official for many years. I was one of the first four political commissioners on the commission and when we had our board meeting, we would look at broad-brush things such as policy. We were not sitting and looking in detail at such regulations. Something is missing here. It is not intentional but it is missing and it would be useful to get that on the record and at some point to have it looked at. That is not a criticism but something that has fallen through the cracks.

Local Authorities (Mayoral Elections) (England and Wales) (Amendment) Regulations 2017

Lord Young of Cookham Excerpts

Wednesday 6th December 2017 Grand Committee

Moved by

[Lord Young of Cookham]

That the Grand Committee do consider the Local Authorities (Mayoral Elections) (England and Wales) (Amendment) Regulations 2017.

Motion agreed.

Criminal Justice (European Investigation Order) Regulations 2017

Lord Young of Cookham Excerpts

Wednesday 6th December 2017 Grand Committee

Finally, in answering the committee’s question about safeguards for the transfer of prisoners, the Home Office legal adviser explained that any recourse for problems in returning a transferred prisoner or a piece of evidence would be a matter for the European Court of Justice. That was in evidence to the committee in its recent report. Under the Government’s plans, if they happen, what happens after March 2019, or at least after a transition or implementation period, as the Government prefer to say? What alternative protection to court protection would replace the ECJ?

[Lord Young of Cookham (Con)]

My Lords, I am very grateful to the noble Lord, Lord Rosser, for allowing us to have this debate on the EIO. I will focus on the principal points raised during our discussions, which are, as I understand it, the failure of the Home Office to respond in time to the request for information from the committee and the language it used—I have read in full the minutes of the Secondary Legislation Scrutiny Committee’s meeting on 12 September. Then there was the question of what happens to the football fan, posed by my noble friend Lord Hodgson, then the issues of what happens to the prisoner transferred and their protections. Finally, there was the broader question of what happens post Brexit.

Rather than read out a fairly long brief about why the EIO is a marvellous instrument, I will focus on the specific issues raised during the discussion, beginning with the failure of the Home Office. The noble Lord, Lord Rosser, made the point that it was not the first time the Home Office had apologised for late submissions to the Lords committee. He asked why the assurances given on an earlier occasion had not been fulfilled and delicately asked why we should believe the assurances that have been given this time.

I begin by apologising yet again, as my honourable friend Nick Hurd did, for the time it took to respond to the request from the committee in respect of this legislation. There was a breakdown in the process for handling this piece of correspondence in the department. It was a serious administrative error. I and Ministers in the Home Office take the business of parliamentary scrutiny very seriously. Officials have looked into what happened to learn the lessons and to ensure this does not happen again. They have now put in place a robust process to improve the quality of the material put before parliamentary scrutiny committees. I read the comments from, I think, my noble friend Lady Finn, who complained about the language used.

This supervision includes personal oversight by Ministers, with a named senior civil servant held personally accountable throughout the development of the draft instruments. New quality assurance and trading interventions are already under way. These are all intended to reduce the need for committees to seek additional information and to ensure that when such requests are made there is a clear line of sight throughout the department to ensure that they are expedited.

The matter has been considered at the Home Secretary- chaired regular departmental Ministers’ meetings, which I now attend, to ensure that it is addressed and discussed at the highest level. I hope that this will assure the noble Lord, Lord Rosser, and others, that we take this very seriously.

[Lord Rosser]

The Minister referred a moment ago to “personal oversight by Ministers”. Can we have it quite clearly, then, that if this happens again, it will not be the responsibility of officials but of Ministers, full stop?

[Lord Young of Cookham]

Absolutely. As somebody who has been a Minister on and off for nearly 20 years, I am a fully-paid subscriber to ministerial accountability and responsibility to this House and the other place. I am not a Minister who will, if this happens again, pass responsibility on to civil servants.

On the question of the language, I apologise again for the quality of the memorandum on this occasion. As I said a moment ago, the Home Office has put in place robust processes to improve the quality of material put before the scrutiny committee, and again, this includes personal oversight by the Ministers, with a named civil servant within the apartment accountable for the development of these draft instruments. As I said a moment ago, the buck stops with Ministers.

In the example given by my noble friend Lord Hodgson, he would not be a prisoner in the UK, therefore the temporary transfer provisions simply would not apply. They apply only if the person is a prisoner in the UK. The Secretary of State then has to be satisfied, first, that the prisoner consents, and secondly, that no alternative means of providing evidence exists. In the evidence given by Stephen Jones on 12 September, we read:

“Baroness O’Loan: What if the prisoner refuses to go? … Stephen Jones: If the prisoner refuses to consent to the transfer taking place, then it will not happen”.


I hope that reassures my noble friend that he can go and watch his favourite football team in Bucharest and be an innocent witness to an exchange which may result in a crime being committed. He can come back to this country confident that he will not have to go back there under the provisions of the EIO.

The noble Baroness, Lady Ludford, and the noble Lord, Lord Rosser, raised the question of what will happen if a prisoner is not returned. First, the temporary transfer of persons held in custody for the purpose of investigation has already been possible for a number of years under the existing mutual legal assistance system, which the EIO replaced, so this order is not introducing a new provision. However, the UK central authority’s records suggest that the numbers for transferring prisoners held under custody are extremely low. We are aware of one instance of this happening in the past five years. The prisoner is normally able to give evidence in person through court or through video telephone conferencing, and it would have to be authorised by a Minister.

Under the directive, a country receiving a prisoner under an EIO must return the prisoner back to the executing state. However, I accept that the point is not explicit in legislation, which I think was the point raised by the noble Baroness, Lady Ludford. As with other matters relating to EU law, the Court of Justice of the European Union will be competent to give a view, in this instance on the application of the directive, and in particular on the interpretation of Article 22.1, which we consider makes it clear that a prisoner has to be sent back to the executing state—the UK—within the period stipulated by the executing state. Such an interpretive ruling would be binding on the member concerned.

[Lord Rosser]

How long would it take to go through this procedure?

[Lord Young of Cookham]

I do not have the answer at my fingertips. Clearly, it would have to go through the judicial process. As I indicated, we have transferred only one prisoner in the past five years and in that case there was not a problem with the prisoner being returned. In these circumstances the European convention offers similar protections to those in the charter but, unlike the EAW, which I think was mentioned by the noble Baroness, no detention or transfer can take place without consent under an EIO. I am advised that an urgent procedure is available if the person is in custody. That seems only fair. But I take the point that the noble Lord and the noble Baroness would like more information on this. I am also advised that effective dispute resolution mechanisms and protections for UK and EU citizens will be agreed as part of the negotiation on our future relationship with the EU.

That brings me to the final point raised. The fact that both noble Lords raised this indicates that when we do negotiate post Brexit, these particular issues need to be tied down to avoid any problems of delay in resolution. The question was: what contingency plans are in place in case no deal is reached with the EU and, indeed, what are we planning to do as part of an agreement? As the Prime Minister made clear in her Florence speech, we are unconditionally committed to maintaining Europe’s security now and after we leave the EU. What we must do now is agree the mechanisms to support ongoing co-operation. It is in no one’s interests that either the UK or Europe suffers a loss of operational capability as a result of the UK’s exit.

We have proposed a bold new strategic partnership with the EU, including a comprehensive agreement on security, law enforcement and criminal justice co-operation. That was set out in a paper on those subjects, which I think was debated earlier this year. We are seeking an overarching treaty with the EU that provides for practical operational co-operation, facilitates data-driven law enforcement, and allows multilateral co-operation through EU agencies. It is too early to say what future co-operation we may have in relation to individual measures, such as the EIO. In leaving the EU, we will end the direct jurisdiction of the Court of Justice of the EU. But there is significant precedent for the EU to have co-operation with third countries, including co-operation closely aligned to areas of EU law, but there is no precedent for a third country to submit to the jurisdiction of the CJEU. Effective mechanisms will be necessary to ensure that obligations that are agreed will be enforced after negotiations on the treaty.

I was asked what contingency plans are in place in case no deal is reached with the EU. We are confident that continued practical co-operation between the UK and EU on law enforcement and security is in the interests of both sides. The EU 27 made it clear in their Article 50 negotiating guidelines, published in April, that:

“The EU stands ready to establish partnerships in areas unrelated to trade, in particular the fight against terrorism and international crime, as well as security, defence and foreign policy”.


So we approach these negotiations anticipating that an agreement in this area can be reached. We do not want or expect a no-deal outcome. But a responsible Government should prepare for all potential outcomes, including the unlikely scenario in which no mutually satisfactory agreement can be reached. That is exactly what we are doing across the whole of government.

I hope I have addressed the specific issues raised.

[Lord Hodgson of Astley Abbotts]

As I understood it—and the noble Baroness, Lady Ludford, referred to this—one of the weaknesses of the EAW was that it was being used for fishing expeditions, which tended to undermine it, and that the EIO was to fill that gap; in other words, you could ask questions which did not require an EAW, which had been brought into disrepute in some senses. But that is not the case, is it? You have to be a prisoner before you can have an EIO, so we are back to fishing expeditions again. There is no way that an EIO could be served on the ordinary person in the street because they are not a prisoner. Our concern about fishing expedition continues, I think.

[Lord Young of Cookham]

It goes back to what the EIO aims to do. Basically, it is a judicial co-operation mechanism for providing assistance in investigating and prosecuting criminal offences and it replaces the existing scheme; that is, the existing EU and Council of Europe mutual legal assistance measures. It does this through introducing mutual recognition of other member states’ judicial decisions. As my noble friend said, it standardises the process for making requests by using a template form rather than a letter of request, and it specifies time limits for responding. All the evidence shows that it is already working quite well. A number of requests have been made and processed, and it is proving to be a much more efficient system than the one it replaces. As more member states sign up to the EIO, we believe that it will be an improvement on the previous mutual legal assistance scheme.

I am not sure that I have fully understood the point made by my noble friend, in which case I shall read it again in Hansard. I will drop him a line and hope to give him and the noble Baroness an assurance. As I have just said, the EIO is a mutual legal assistance measure. An individual can give a voluntary statement under an EIO or could be compelled to come to court in the UK in the same way as in domestic proceedings. I hope that that gives my noble friend the answer he was seeking.

[Baroness Ludford]

Perhaps I might invite the Minister to agree that one thing that would help in the situation of both the EIO and the EAW would be if the person concerned had legal advice and representation at both ends of the system. One of the regrets that I referred to in general terms was that the UK has not opted in to the directive on the right to a lawyer. That was a great shame, notwithstanding the controversies about legal aid. When the measure was agreed a few years ago, the gold standard was access to a lawyer. Had we opted in—hope springs eternal and there is still time—that would have motivated other member states to make sure that they came up to the mark, because a person who has legal advice and representation is going to be in a much stronger position to contest any unfair treatment.

It is a great pity that the UK, with its strengths in the rule of law and justice, has not opted in, apart from to the directive on interpretation and translation—which, contrary to the remark made by the Advocate-General for Scotland last week, is a directive, not a regulation. I was the rapporteur on it. Unfortunately, the UK did not choose to take part in the other ones in the so-called Stockholm programme of defence rights, so we have an unbalanced participation. I think that it would give everyone more confidence if the UK had a more balanced participation. I suppose that I am only asking the Minister to accept my remarks.

[Lord Young of Cookham]

I think I will respond to those remarks rather than accept them. The noble Baroness prefaced her remarks by saying “notwithstanding any arguments about legal aid”, but I think that that is probably exactly the issue, in that the proposition she has just put forward would mean extending legal aid into an area where it does not exist at the moment. That takes us into a broader argument about legal aid. Perhaps I might offer to write to the noble Baroness if I have misunderstood her comments.

[Lord Rosser]

I raised one question at the end of my remarks which I do not think the Minister has responded to, and I am quite happy to repeat it. It refers to a statement at the end of the fifth report of the Secondary Legislation Scrutiny Committee. I asked whether, first, the Home Office and, secondly, the Government, accept—and will ensure that they abide by—the committee’s clear statement in its fifth report that,

“although an increased volume of SIs was to be expected from all Government Departments during the Brexit period, that pressure would not be an acceptable excuse for any decrease in the quality of the material presented to the House for scrutiny”.

My question was, first, does the Home Office accept and will ensure that it abides by that and, secondly, do the Government accept and will ensure that they abide by it?

[Lord Young of Cookham]

I have in front of me the response given by the Minister to the committee—it was right at the end—to a question from my noble friend Lord Kirkwood of Kirkhope. He asked:

“Can you give us some assurance as the numbers ramp up that you think the quality will not suffer?”.


Mr Hurd replied:

“I can give you as much reassurance as I can. It needs to be tested. There will be a high volume of secondary legislation, but I am absolutely sincere in saying I hope and believe this instance we had to come and apologise for is exceptional and will not be repeated. It is a basic function of any department to support Ministers in the scrutiny process with Parliament. I cannot guarantee that balls will not get dropped at all because to err is human, but that is what has happened in this case”.


In its fifth report, the committee also made it clear that,

“although an increased volume of SIs was to be expected from all Government Departments during the Brexit period, that pressure would not be an acceptable excuse for any decrease in the quality of the material presented to the House for scrutiny”.

I accept that.

[Lord Rosser]

The Minister accepts it on behalf of the Government as well as on behalf of the Home Office, I take it.

[Lord Young of Cookham]

I accept it in the context that I have just repeated it.

[Lord Rosser]

I am not quite sure what answer I have had. I would have thought it fairly clear that if I asked whether that also represented the Government’s view, as opposed to the Home Office view, the Minister could have said either yes or no. I invite him to say either yes or no. Do the Government intend to accept and abide by the statement that he has just repeated, which appears at the end of the Secondary Legislation Committee’s report?

[Lord Young of Cookham]

At the risk of bringing my ministerial career to a premature end, I can say yes. Of course the Government accept the principle that the committee has made clear: that pressure would not be an acceptable excuse for any decrease in the quality of the material presented to the House for scrutiny. I am happy to put my name to that proposition.

[Lord Rosser]

I thank the Minister for his responses. I am sure that he would not say that he found himself in a difficult situation, since he has had no responsibility for the Home Office’s failures to which we have referred and which were referred to in the committee’s report. I am very grateful to him for making it clear that if there are further failures by the Home Office, the responsibility rests fair and square on the shoulders of Ministers. It is just not good enough to turn up in front of a committee or to make statements that somehow it is due to an administrative failure, which by implication means that they are passing the buck on to officials. Ministers gave assurances; Ministers are responsible for seeing that those assurances are kept and, if they are not, it is only Ministers who are responsible and accountable for that. They should be prepared to accept that responsibility if they have to appear in front of the committee again, and not seek to say words which imply that somebody else within the department at a lower than ministerial level is somehow responsible.

I also thank the noble Lord, Lord Hodgson of Astley Abbots, and the noble Baroness, Lady Ludford, for their contributions to this debate and for the issues they raised, along with the questions they asked and to which the Minister has had to respond. I say in closing only that my motive in tabling this Motion, apart from raising my specific questions, is that we have some duty when we see such a report from the Secondary Legislation Scrutiny Committee to make sure that it is debated. I do not think that the committee is prone to making such critical comments and observations about a department—and, in this instance, its failure—every five minutes. I think it really would have to be pushed to feel moved to write its fourth and fifth reports in the vein that it did. I will leave it at that and thank everyone who has participated. I thank the Minister again for his responses and, since this is a take-note Motion, I take it that this Committee agrees to take note of the Motion.

Proceeds of Crime Act 2002 (Search, Seizure and Detention of Property: Code of Practice) Order 2018

Lord Young of Cookham Excerpts

Tuesday 5th December 2017 Lords Chamber

Moved by

[Lord Young of Cookham]

That the draft orders and regulations laid before the House on 23 October be approved.

[Lord Young of Cookham (Con)]

My Lords, we know that criminals are increasingly adept at finding new ways to hide the proceeds of crime. That is why, earlier this year, we legislated through the Criminal Finances Act to provide law enforcement agencies with new powers to strengthen and extend existing powers to trace and recover criminal assets. Most relevant for the purposes of this debate are new powers to seize and forfeit assets such as precious metals, precious stones and artistic works.

Codes of practice protect the public by ensuring appropriate and proportionate use of new powers. In this case, they include search and seizure powers, which are used by a wide range of law enforcement officers in connection with various investigations.

Three of the statutory instruments put before the House today bring into force revised and new codes of practice providing guidance on the use of Proceeds of Crime Act—POCA—powers for the search, seizure and detention of property to support enforcement of confiscation orders; on search powers for cash that is suspected to be unlawful in origin or purpose; and on search powers relating to the new power to seize certain listed assets. The final instrument makes a minor and technical amendment to an existing provision in POCA to take account of the creation of the new power to forfeit listed assets.

POCA provides strong powers for the fight against crime, and particularly against serious and organised crime. These powers may involve significant interference with the privacy and property of persons suspected of certain offences, and the purpose of these codes of practice is to guide law enforcement officers in the lawful and proportionate exercise of the powers. They are therefore a safeguard to ensure effective and consistent use of the powers.

The POCA powers available to law enforcement have been significantly strengthened by the Criminal Finances Act 2017. Once commenced, the new powers will give officers important new tools for the recovery of criminally obtained assets, thus playing a key role in the Government’s commitment to make the UK a more hostile environment for those who seek to move, hide and use the proceeds of crime and corruption.

Noble Lords may recall that when this legislation was undergoing its parliamentary passage, the Northern Ireland Assembly was dissolved. That meant that a legislative consent Motion could not be obtained. The Minister for Security made a commitment in the other place not to commence any legislation relating to devolved matters without the appropriate consent in place. Keeping with that commitment, the new and amended POCA powers to which the codes relate will not, initially, be commenced in Northern Ireland. As a consequence, the necessary rules of court, and equivalent codes of practice governing devolved functions, will not be in place.

We are working with the authorities in Northern Ireland to commence these powers as soon as possible. Codes of practice are currently in use in Northern Ireland in respect of existing powers in the Proceeds of Crime Act 2002. The new powers and the amendments to existing powers in the Criminal Finances Act 2017 will not be commenced in Northern Ireland until a legislative consent Motion can be obtained. As a result, the codes that are laid before noble Lords in so far as they apply to Northern Ireland will continue to make provision for the existing POCA powers but not for the amendments and new powers in the Criminal Finances Act 2017.

In Scotland, a separate—combined—code of practice has been drafted in respect of searches by constables in relation to the civil forfeiture of listed items of property and the civil forfeiture of cash. A public consultation is being undertaken. The code is expected to come into force in the spring.

Two of the codes before noble Lords are revisions of previous codes issued under POCA and closely follow those issued to police officers under the Police and Criminal Evidence Act 1984. The third code is new, but it, too, is modelled on the PACE procedure. The codes provide an important safeguard and reassurance that the powers in POCA are being used appropriately and proportionately.

The new powers giving rise to these codes have already been approved and debated extensively by both Houses. We are therefore not debating the powers themselves today; rather, we are considering the codes which give guidance on their use.

The amendments to POCA which require the new and amended codes of practice are: the new power to forfeit listed assets such as precious metals, precious stones and artworks; the expanded powers relating to search and seizure to prevent the dissipation of property that may subsequently be used to satisfy a confiscation order; the extension of search powers to a range of law enforcement agencies, notably the Serious Fraud Office; and the extension of the definition of “cash” for the purposes of cash seizure and forfeiture powers to include gaming vouchers, fixed-value casino tokens and betting receipts.

POCA stipulates that the Secretary of State must prepare and publish a draft of any new or revised code, consider any representations made and modify the draft as appropriate. A public consultation on all the codes before your Lordships was carried out this summer, and amendments were made to the drafts accordingly. The responses were generally supportive of the codes of practice but contained certain specific suggestions or recommendations that we were able to address.

The first order brings into effect a new code of practice providing guidance on the use of search powers for the recovery of listed assets, such as precious metals and stones, that are suspected of being unlawful in origin or purpose. In essence, this builds on the existing powers relating to the forfeiture of criminal cash.

--- Later in debate ---

[Lord Paddick (LD)]

My Lords, we also support these instruments and see the importance of extending the ability to recover criminal assets to precious metal and precious stones. There is a serious concern in some communities, for example with drug dealers who display their wealth ostentatiously, that young people should not be encouraged to go down that route by such behaviour. The police and other law enforcement agencies sometimes have difficulty in proving substantive offences against such people, so for them to be able to seize such precious metal and precious stones where people are not able legitimately to account for them is an extremely important move.

It is a concern that these powers will not be able to be commenced in Northern Ireland. This highlights again the importance of Northern Ireland in matters that the country is concerned with at this time.

It is important that these agencies have the necessary resources to implement the powers to which these codes of practice relate. While it is possible that fewer resources will be required to seize assets than would be necessary to prove sometimes difficult substantive offences against the individual, we are content with these instruments.

[Lord Young of Cookham]

My Lords, I am grateful to both noble Lords for their support for these measures, and I will try as best I can to answer the questions raised. I can confirm that the powers cannot be applied to G4S. I repeat the assurance my ministerial colleague gave yesterday in another place.

Questions were raised about Northern Ireland. As I explained when I introduced the order, the new powers and the amendments to existing powers in the Criminal Finances Act 2017 will not be commenced in Northern Ireland until a legislative consent Motion can be obtained. As a result, the codes that are laid before the House, in so far as they apply to Northern Ireland, will continue to make provision for the existing POCA powers, but not for the amendments and the new powers in the Criminal Finances Act. In answer to the question about how this is done, the statutory instruments will apply the codes in Northern Ireland and the limitation I have just referred to is in the wording of the codes themselves rather than in the statutory instruments that bring the codes into force. The approach we have taken in drafting the codes is that it is clear in the wording that guidance on the new powers introduced by the Criminal Finances Act will not apply to Northern Ireland for the reasons that I have just given. It is clear, however, that the rest of the code that provides guidance on the use of existing powers will apply to Northern Ireland. If it would help both noble Lords, I would be happy to drop them a line explaining which bits apply now and which bits will apply later.

In answer to the question about who we are corresponding with, I imagine we are corresponding at official level within Northern Ireland. If and when an LCM is obtained from the Assembly, the codes will be revised to remove the restrictions in relation to Northern Ireland. In response to the noble Lord, Lord Rosser, this will require further consultation and debates in Parliament, and the revised codes will be brought into force by further statutory instruments, so we will go round the course again.

I have here a list of which sections of POCA relate to England and Wales and which extend to Northern Ireland. Rather than read it out—it is long and complicated—I think it would be best if, as I said a few moments ago, I wrote to noble Lords and placed a copy of the letter in the Library.

[Lord Rosser]

I thank the Minister for that. It will be extremely helpful. In writing that letter, will the Minister set out whether the fact that the provisions will not apply in Northern Ireland at this stage, and may not apply there for some time, will have any detrimental effect on their application in Great Britain as opposed to Northern Ireland? I am not entirely clear what the detrimental effects will be for Northern Ireland or for Great Britain of the provisions of these instruments not being applicable in Northern Ireland until some date that is not yet known.

[Lord Young of Cookham]

It would clearly have been better if there had been a Northern Ireland Assembly in operation and we could have got an LCM and extended the powers throughout the United Kingdom. As we cannot extend them to Northern Ireland, some of the new provisions that were introduced in the Criminal Finances Act earlier this year will not immediately be applicable to Northern Ireland. To that extent, therefore, the Act will not be as effective as we initially hoped. However, it will come into effect in the rest of the United Kingdom, and the terrorist financing amendments will commence as that is a reserved matter, not a devolved matter.

I was asked about resources and whether these powers will place more resource burdens on law enforcement at a time of pressure. These powers extend and strengthen the powers in POCA. They add to the toolkit, rather than being powers to use in isolation. As such, they may be used in a strategic fashion that may save money.

The powers are making the use of POCA more effective and more streamlined. In addition, due to the terms of the asset recovery incentivisation scheme, the more an agency recovers, the more it receives. In the past two years, we have amended the scheme that distributes the money recovered under POCA. A £5 million topslice of the amounts recovered is now available for bidding for national schemes to support further asset recovery work. In addition, where more than £184 million is recovered, under the old terms of the asset recovery incentivisation scheme, the Home Office will return 50% above that threshold to the regional organised crime units.

I hope I have been able to address the issues raised in this short debate and repeat that I am grateful for the broad support. I beg to move.

Motions agreed.

Proceeds of Crime Act 2002 (Investigations: Code of Practice) Order 2018

Lord Young of Cookham Excerpts

Tuesday 5th December 2017 Lords Chamber

Moved by

[Lord Young of Cookham]

That the draft orders laid before the House on 23 October be approved.

[Lord Young of Cookham (Con)]

My Lords, the three orders before your Lordships give effect to revised codes of practice, providing guidance on the use of investigatory powers in the Proceeds of Crime Act 2002—our old friend POCA—and on the use of powers in relation to “terrorist property” under the Anti-terrorism, Crime and Security Act 2001—ATCSA.

POCA and ATCSA provide strong powers in the fight against organised crime and terrorism, enabling investigations and the recovery of assets which are the proceeds of crime or which are used to fund terrorism. These powers may involve significant interference with the privacy and property of persons suspected of certain offences, and the purpose of these codes of practice is to guide law enforcement officers in the lawful and proportionate exercise of those powers. They are therefore a safeguard to ensure effective and consistent use of the powers.

The codes may be revised, or new ones created, in the light of legislative changes, and the revised codes now before your Lordships reflect the changes made to POCA and ATCSA by the Criminal Finances Act 2017. I ask noble Lords to note that two of these codes relate to POCA: one contains guidance for law enforcement officers and is issued by the Secretary of State, while the other contains guidance for prosecutors and is issued by the Attorney-General. The third code relates to ATCSA and contains guidance for officers, and is issued by the Secretary of State.

The three codes build on previous codes issued under POCA and ATCSA and closely follow those issued to police officers under the Police and Criminal Evidence Act 1984. The POCA and ATCSA powers available to law enforcement have been significantly strengthened by the Criminal Finances Act 2017. The codes need to be updated as a consequence of these amendments. Once commenced, the new powers will give officers important new tools to assist with investigations and with the recovery of assets. This is a key part of the Government’s commitment to tackling all levels of crime.

Noble Lords may find it helpful if I clarify the territorial extent of the powers subject to the codes of practice we are considering today. Noble Lords may recall that when this legislation was undergoing its parliamentary passage, the Northern Ireland Assembly was dissolved, which meant that a legislative consent Motion could not be obtained. The Minister for Security made a commitment in the other place not to commence any legislation relating to devolved matters without the appropriate consent in place.

I assure noble Lords that we are working with the authorities in Northern Ireland to commence these powers as soon as possible. For the time being, however, the codes, in so far as they apply to Northern Ireland, will cover only existing POCA powers. The new powers for terrorist financing will be commenced in Northern Ireland, since terrorist financing, as I said a moment ago, is a reserved matter. The ATCSA provisions apply across the whole of the UK and thus include Scotland. The POCA provisions to which these codes relate are for England and Wales and Northern Ireland only, and do not extend to Scotland.

We plan to commence the majority of the new and amended POCA and ATCSA powers on 31 January 2018. Once approved, the codes before your Lordships will come into operation at the same time, enabling the full operation of the powers. Of course, the powers to which the amended codes relate have already been debated by your Lordships, and the Criminal Finances Act received Royal Assent in April. Again, therefore, we are not debating the powers themselves today: rather, we are considering the codes which give guidance on the use of those powers.

Briefly, the amended codes of practice are required as a result of the introduction of new investigation powers and some amendments and extensions of existing ones, and new seizure, detention and forfeiture powers under ATCSA. POCA and ATCSA stipulate that the Secretary of State must prepare and publish a draft of any new or revised code, consider any representations made and modify the draft as appropriate. I can assure noble Lords that a public consultation has been undertaken on all the codes that I am referring to today.

One order gives effect to a revised code of practice providing guidance on the use of powers of investigation by law enforcement officers under Chapter 2 of Part 8 of POCA.

The revised code caters for new and amended powers introduced by the Criminal Finances Act, including unexplained wealth orders and changes to the way in which disclosure orders may be applied for and used. UWOs will enable an enforcement authority to require an individual or company to specify how property in the order was obtained, and may state that specific documents or information are to be provided in order to establish whether certain assets have been legitimately obtained.

The section relating to disclosure orders has been significantly revised. In addition to confiscation and civil recovery investigations, appropriate officers will now be able to apply for disclosure orders in a money-laundering investigation. In addition, the code includes the exercise of investigation powers in two new categories of investigation that were introduced by the Criminal Finances Act: namely, detained property investigations and frozen fund investigations. These new investigations support the new powers to forfeit certain listed items of property, such as precious metals and stones, and to forfeit funds in bank or building society accounts where the relevant property derives from or is intended for use in unlawful conduct.

Persons who may apply for these orders are clearly set out in the revised code, as are the procedure and statutory requirements for applying. The code also highlights the points that enforcement authorities and appropriate officers should consider before making an application.

There is a similar investigation code providing guidance for prosecutors using powers under Chapter 2 of Part 8 of POCA, which is issued by the Attorney-General, and the order bringing that into effect is also before your Lordships today. I can assure noble Lords that the Attorney-General’s revised code mirrors the form and substance of the Home Secretary’s revised investigation code. As such, we are debating the codes jointly and, in this instance, I am speaking on behalf of the Attorney-General.

The third order gives effect to a revised code of practice, made under the Terrorism Act 2000, for officers exercising asset recovery powers conferred on them through the terrorist property provisions of Schedule 1 to ATCSA. This code has been updated to reflect the amendments made to the Terrorism Act—TAct—and ATCSA by Part 2 of the Criminal Finances Act 2017, including a new power to administratively forfeit terrorist cash and new civil recovery powers to seize, detain and forfeit listed terrorist assets and to freeze and forfeit terrorist money held in bank and building society accounts.

The orders before your Lordships will bring all the relevant codes of practice into effect, ensuring that effective, up-to-date safeguards are in place and enabling full commencement of the POCA and ATCSA amendments that I just described. We are working towards a common commencement date for the powers covered by these codes of 31 January 2018.

I make no apology for repeating the important point that the revised codes are an important safeguard to ensure the targeted, proportionate and effective use of the POCA and ATCSA powers. Among other things, the codes ensure that officers consider the rights of the individual and the community more widely and that they follow a structured process when arriving at a decision to use the relevant powers, and also when executing them. The codes also ensure that a full audit trail in relation to the use of the powers will be recorded. It is of note that the training which all investigators obtain from the NCA ensures that investigators are familiar with these codes.

The codes form an important safeguard which ensure that the powers are used in an effective, considered and targeted manner. I beg to move.

[Lord Rosser (Lab)]

I again thank the Minister for his explanation of the purpose and meaning of these orders. On the Proceeds of Crime Act 2002 (Investigations: Code of Practice) Order 2018, the Criminal Finances Act 2017 amended some investigation powers, introduced new powers and widened the definitions of an investigation for the purposes of POCA. Where relevant, those changes are reflected in the revisions to the code of practice. The same applies to the Proceeds of Crime Act 2002 (Investigative Powers of Prosecutors: Code of Practice) Order 2018, which relates to the exercise of functions by the Director of Public Prosecutions, the director of the serious fraud squad and the Director of Public Prosecutions for Northern Ireland, as well as officers of the Serious Fraud Office.

In relation to the second order, paragraph 8 of the Explanatory Memorandum on the consultation outcome states:

“Two responses were received … and the draft code … was amended as appropriate”.


From where did the two responses come, and what changes were made to the draft code of practice in the light of those responses?

The Terrorism Act 2000 (Code of Practice for Authorised Officers) Order 2018 brings into force a revised code of practice, which will enable officers to discharge their functions in respect of existing terrorist asset provisions by including guidance on operational requirements for officers on the exercise of the various new powers created by the Criminal Finances Act 2017. I shall not ask about the content of the consultation responses primarily because, apparently, there were none. We support these orders.

[Lord Young of Cookham]

I am very grateful to the noble Lord for his support. I asked the same question as he did about the responses that we received to the consultation. I was told that they were technical and minor. I do not have at my fingertips the names of those who responded, or what the technical and minor changes were, but I shall, of course, write to the noble Lord when I have that information, which I hope he finds illuminating.

Motions agreed.

Personal Identity Cards

Lord Young of Cookham Excerpts

Monday 4th December 2017 Lords Chamber

[Lord Campbell-Savours]

To ask Her Majesty’s Government what discussions Ministers have had in the last year with United Kingdom security and border control authorities on the introduction of personal identity cards.

[Lord Young of Cookham (Con)]

My Lords, in 2010 the coalition Government decided to scrap the ID card scheme and the associated national identity register because it was expensive and represented a substantial erosion of civil liberties. While many countries have identity cards, we have not seen any evidence that they offer greater protection against terrorism or greater control at the border. The Government are not planning to revisit that decision.

[Lord Campbell-Savours (Lab)]

Many people would contest those conclusions. Does the Minister accept that the issues of national security, crime, protection against fraud, and entitlements are of concern right across this House and across the political divide? With that in mind, would it not be helpful if the Liaison Committee, which is about to select its ad hoc committee inquiry subjects for next year, were to support an inquiry into national identity cards? I appeal to Members across the House to write to Philippa Tudor, the clerk to the Liaison Committee, supporting this year’s application for an ID card ad hoc committee inquiry? If not, once again, it is likely that the application will be rejected.

[Lord Young of Cookham]

My Lords, I understand the noble Lord’s disappointment that when he applied to the Liaison Committee last time for an ad hoc committee on this very subject, his bid was not successful. There were 35 bids and only four ad hoc committees were established: I hope he accepts that his disappointment was shared by others. An email went to all noble Lords—I think it was last week—from the noble Lord, Lord McFall, inviting bids for the next tranche of ad hoc committees for this Session. The decision will be made by the Liaison Committee, on which the Government have only one member. The noble Lord appealed to the whole House to support his bid. The notion that the Government could stand in the way of the noble Lord’s bid, which I think was implied in some way, implies that my noble friend who sits on the Liaison Committee could go around discouraging people from supporting it—like Henry Fonda in “12 Angry Men”—which is fanciful. However, the noble Lord has launched his manifesto on the Floor of your Lordships’ House and his fate now rests with the Liaison Committee.

[Lord Sterling of Plaistow (Con)]

My Lords, in 2003 the noble Lord, Lord Blunkett, who was Home Secretary at the time—in the Government of the party opposite, of course—published Identity Cards: The Next Steps. Anybody who reads it will realise that the reasons put forward are even more meaningful now than they ever were in that period of history. I totally support what the noble Lord, Lord Campbell-Savours, is proposing: I think it is hugely important to this country.

[Lord Young of Cookham]

I am grateful for the intervention of my noble friend. I am genuinely envious of those, such as him and the noble Lord, Lord Campbell-Savours, who think that the case for an identity card system is made, and equally envious of those who come with equal conviction to the other side of the argument. I say that as someone who, with my party, has voted both for and against identity cards. Having revisited this subject recently with some assistance from the Home Office, it seems to me that introducing identity cards now would be a 20th-century solution to a 21st-century problem, since so much identity fraud is now online and forgeries have become much more sophisticated. Other countries are now moving away from physical identity cards to other forms of digital identification of who people are.

[Lord Paddick (LD)]

My Lords, if Ministers had discussed identity cards with border security services, no doubt they would have said, “We don’t need ID cards —we need stronger border controls, including effective exit checks”. With passenger numbers increasing, why have the Government reduced the budget of the Border Force, forcing it to cut the number of staff at UK airports? This morning two-thirds of the e-gates at Heathrow Airport terminal 5 were closed because of a lack of staff, resulting in queues that will only get worse if we have a damaging Tory Brexit.

[Lord Young of Cookham]

I think exit checks were reintroduced in May 2015. I will correct that in writing if that is not the case. The Government want tourists to be able to visit this country and not spend a disproportionate time going through passport or visa control. The last statistics I saw a few weeks ago indicated that the average time it takes to get through passport control was coming down, but I take note of the noble Lord’s representations. I agree that we should allow people to come in without undue delay.

[Lord West of Spithead (Lab)]

My Lords, the Minister has not addressed the issue, which is that the Government are undertaking work at the moment and have tasked businesses with coming up with options to provide a means of identifying yourself online by using a card with biometrics. If you have a biometric card which identifies you, which is being used so that you can get online to all the government services we want to put online, what do you call it? It seems to me that it is an identity card. If we have one, why can we not use it more thoroughly?

[Lord Young of Cookham]

I think what you call it is a voluntary system, as opposed to a compulsory one.

[Lord Ramsbotham (CB)]

My Lords, is the Minister aware that there is already an identity card in existence and use? Thanks to the initiative of an organisation called Headway, people with acquired brain injuries are issued with a card which not only has on it their photograph but lists the symptoms that the brain injury has resulted in, such as speech defects or movement defects. That has been recognised by the police and is helping a great deal in preventing people with acquired brain injuries being arrested so often. It is interesting that the police, having recognised that card, are now very much in favour of an identity card, on which such information could be included.

[Lord Young of Cookham]

I am sure the whole House applauds the introduction of the voluntary system which the noble Lord has just referred to. Eighty-four per cent of the people in this country have a passport. That is a perfectly feasible form of identity available to anyone who wants one.