Combined Authorities (Overview and Scrutiny Committees, Access to Information and Audit Committees) Order 2016

Lord Kennedy of Southwark Excerpts

Thursday 26th January 2017 Lords Chamber

[Lord Shipley (LD)]

My Lords, this a slightly lengthier discussion than we had on the previous two orders. It results from there having been great cross-party collaboration when the Cities and Local Government Devolution Bill passed through your Lordships’ House. That work developed the basis for the proposals now before us. Let me say at the outset that much of it is welcome.

For the avoidance of any doubt, I want first to ask the Minister to confirm that the order will apply to all combined authorities automatically and that, if there is to be a combined authority in future which does not have a mayor, the order will apply to it as well. I then have a few specific questions. When the Cities and Local Government Devolution Bill passed, we had established separate overview and scrutiny committees and audit committees—it was right to separate those two functions. But in the case of audit, I hope that the Minister can confirm that it will encompass risk, particularly investment decisions.

One function of overview and scrutiny will be to scrutinise risk, but there are advantages in audit committees having a clear risk function as well, because some investment decisions will be very big financial decisions. It was good to see from the list of consultees that the National Audit Office and the Centre for Public Scrutiny were consulted, because one of the aims that we had with the Bill was to ensure that value-for-money audits were done, as well as simply financial audits. Can the Minister confirm whether the proposals given to the Government by the National Audit Office and the Centre for Public Scrutiny have been incorporated in this order?

I have a further concern that there is to be no governance framework for the operation of overview and scrutiny committees. My questions are: how does an overview and scrutiny committee know what it needs to scrutinise? Who will tell it what it should review? Am I right in assuming that agendas and papers for the meetings of combined authorities will be made available, and that they will include both the public and private parts of those agendas? We need to be clear exactly what is proposed here. When the Bill was passed, there was a lot of concern about access to meetings. We do not want to see decisions being taken in lengthy pre-meetings of combined authorities, from which the press and public are excluded, with the formal meeting of a combined authority being very limited in time and content. I submit to the Minister that such an outcome would not be good for local democracy or for the success of mayoral combined authorities in the public perception.

The absence of a governance framework places a lot of responsibility on the shoulders of the committee members, in particular independent members, to ensure transparency and openness. I suggest to the Government that they should monitor the appointment of independent members. There is clearly a process, which we welcome, but I think the Government will need to monitor that appointment process to ensure that it is indeed wholly transparent.

I have a further query about timescales, which relates to the two months allowed for a combined authority to respond to an overview and scrutiny committee. The timescales, as I understand them, are these: an overview and scrutiny committee will call in a decision if it wishes to, which will prevent implementation for up to 14 days. When that committee has held its meeting, the combined authority or mayor must hold a meeting to consider what it has said within 10 days. Potentially, that gives 24 days for the total time taken to that point. However, a period of two months is then allowed for the combined authority to respond to the overview and scrutiny committee, to explain why it made its decision. That is too long. I have not understood why it should take two months. I would be puzzled if it needed to take more than a fortnight, but there may be a reason that I have not understood. I am happy to seek the Minister’s reassurance on this point.

Finally, I would like an explanation, if the Minister is able to give one, for the statement about protecting the overview and scrutiny committee’s independence in the Explanatory Notes. The relevant bullet point, at the top of page 4, says that,

“to protect the overview and scrutiny committee’s independence, the committee may not include any officer from the combined authority or the combined authority’s constituent councils”.

That sounds eminently right and reasonable. What I am not clear about is exactly how the overview and scrutiny committees will then be staffed. There will clearly have to be staff members present, writing opinions and papers for the attention of scrutiny committee members, which implies quite significant staffing. That may be fine, but presumably it also implies that the officers giving advice to the overview and scrutiny committee will potentially be required to give evidence to the overview and scrutiny committee. What power does an overview and scrutiny committee—which may not include any officer from the combined authority or the combined authority’s constituent councils, so there must be independent officers present—have to require an officer who has given advice to a combined authority to attend a meeting? I should be grateful if the Minister will explain that point.

[Lord Kennedy of Southwark (Lab)]

My Lords, again for completeness, I refer the House to my interests set out in the register in so far as they are relevant to the issues being debated. I should state at the outset that I am content with the order before your Lordships’ House and am happy to approve it.

Generally, the order brings combined authorities under arrangements similar to those that exist elsewhere in local government. The new combined authorities, which will elect their mayors this May, will have considerable powers over large areas of service delivery and policy that have a tremendous effect over people’s lives. The powers that it is proposed to give to these new elected mayors and combined authorities are, in some cases, not yet through their parliamentary procedures, such as bus franchising, which is being debated in the other place as it considers the Bus Services Bill. The noble Lord, Lord Shipley, raises some important points about how the procedures will operate in the future and I will be interested to hear the Minister’s response.

I am pleased about the measures in respect of overview and scrutiny, which can serve a valuable function. I have first-hand experience of this, so I hope that the House will allow me to explain with a local example how valuable the function is. I have told the House many times before that I am a councillor in the London Borough of Lewisham. I may not have mentioned that I am a supporter of and season ticket holder at Millwall Football Club. I and many other councillors, residents and campaigners—including Vicky Foxcroft, the Member for Lewisham Deptford, Neil Coyle, the Member for Bermondsey and Old Southwark, and the Association of Millwall Supporters—were concerned at the proposals for redevelopment around the Den, which would not deliver any social housing or enough affordable housing. The club was clear that that potentially put its future at risk in a part of south-east London where it has been part of the community since 1910. Councillor Alan Hall, Councillor Brenda Dacres and others on the overview and scrutiny committee were able to provide robust challenge to the proposals. Other cabinet members, including Councillor Joe Dromey, also opposed the plans, which in recent weeks had a considerable amount of publicity in the Guardian, the Evening Standard, the South London Press, Private Eye, Sky Sports and the BBC. I have been struck by how many members of the House’s staff have said to me as walked past, “Defend my Den, my Lord”.

Yesterday it was announced that the planned compulsory purchase of land leased to Millwall would not be going ahead and that the local authority wants to get around the table to seek agreement on the way forward in a manner that brings together the club, the Millwall Community Trust, which does a great job with children in the area, and others to secure the redevelopment by agreement. Overview and scrutiny played an invaluable role in achieving that turnaround, as did the Association of Millwall Supporters, by highlighting concerns and issues. That is a local example of effective overview and scrutiny. I am happy to support the order.

Combined Authorities (Mayoral Elections) Order 2017

Lord Kennedy of Southwark Excerpts

Thursday 26th January 2017 Lords Chamber

[Lord Shipley (LD)]

My Lords, I welcome the discussion of these orders. I remind the House of my vice-presidency of the Local Government Association. I seek clarification on two points in one of the orders, because, broadly speaking, most of what is proposed is not contentious for us.

I have a question about the combination of polls, and my query lies with paragraphs 8.7 and 8.10 of the Explanatory Memorandum. The memorandum says, rightly, that when you combine polls, that produces cost savings. Given that this is a new election, can the mayoral elections be held on the same day as a general election? In other words, might we end up with three elections on one day? I note the following words in paragraph 8.10:

“Government is confident that electoral administrators will be able to effectively administer combined authority mayoral elections and other polls that they may be combined with”.


That says that the Government are confident, but what evidence were they given by electoral administrators? Running three elections at once is clearly more complicated than running two.

My second question relates to the election booklet that the Minister referred to. Is it the intention to distribute that election booklet alongside poll cards? Clearly, if it is a single process, that will reduce costs at a time when local authorities are having great difficulty in balancing their budgets. Having to pay for two separate distributions will be more expensive and unwieldy than if both are delivered together.

[Lord Kennedy of Southwark (Lab)]

My Lords, I refer the House to my declaration of interests—specifically, that I am an elected councillor in the London Borough of Lewisham and a vice-president of the Local Government Association.

As we have been told, the orders before us today, if approved, will provide the framework and rules for the conduct of elections for directly elected mayors of combined authorities, specifically for the elections taking place in May this year. The second order, as we have heard, deals with the process of addressing vacancies in the office of mayor and sets out how those will be dealt with. I am happy to support both orders before the House this afternoon.

I note that the first order contains matters such as the spending limits and the formula to calculate those limits, the number of voters needed to sign a nomination paper to make it a valid nomination, and other administrative matters which are quite normal for elections.

The noble Lord, Lord Shipley, has raised a couple of points and I shall be interested to hear the reply from the noble Lord, Lord Young of Cookham. However, he may be pleased to learn that in fact I have no questions for him in respect of either order and am content to approve both.

[Lord Young of Cookham]

It is very good that the noble Lord has no questions for me; it gives me more time in which to answer the questions asked by the noble Lord, Lord Shipley. I welcome the general approval of the orders that have been laid before us.

The noble Lord, Lord Shipley, is right to say that you can have more than one election on one day. Indeed, when I fought three general elections, they were held on the same days as the county council elections in Hampshire. In England, it is common for more than one poll to be held on the same day. As the noble Lord said, this helps to enhance voter turnout and produces cost savings.

However, there could be an issue in 2020, given the number of polls scheduled to take place. We will have a UK parliamentary general election, police and crime commissioner elections in England and Wales, Greater London Authority elections, local government elections in England, local authority mayoral elections in England and elections for mayors of combined authorities. I think that the number of polls scheduled to take place in 2020 raises issues for electoral administrators and administrative processes. We will consult the Electoral Commission, local authorities and administrators to make sure that there are no difficulties when we reach that date, and of course we have some time in which to plan.

The suggestion of combining the poll cards with the election addresses in one delivery seems to me to be common sense, if it can be done; I do not know whether the dates coincide. We have just had some in-flight refuelling—I have been handed a note to say that the precise timing of the distribution of booklets will be for the returning officer, the CARO. However, I take the point, and will pass it on, that there may be some economy if the poll cards and election addresses could be combined in the same delivery.

Electoral Fraud

Lord Kennedy of Southwark Excerpts

Thursday 26th January 2017 Lords Chamber

[Lord Young of Cookham]

Sir Eric Pickles made some recommendations on postal votes, although he did not make the recommendations to which the noble Lord referred. Postal voting is an enormous help to those who want to increase participation in democracy and it would be wrong to exclude it. Sir Eric said that postal votes should be renewed every three years. In other words, they should not automatically run on for ever and after three years people in receipt of a postal vote should have to reapply. The Government are consulting on those recommendations.

[Lord Kennedy of Southwark (Lab)]

My Lords, there is a need to review the process in respect of electoral fraud and deal with some of the unintended anomalies in the procedures at present. Will the Minister and some of his officials meet me to discuss these matters?

[Lord Young of Cookham]

I am sure the Minister for the Constitution, who has responsibility for electoral matters, will be more than happy to meet the noble Lord to discuss this issue. Our profession is not held in high regard at the moment, and it assists us on all sides of the House if we can restore confidence in the electoral process and increase the integrity of the voting system.

Voter Registration

Lord Kennedy of Southwark Excerpts

Wednesday 25th January 2017 Lords Chamber

[Baroness Kennedy of Cradley]

To ask Her Majesty’s Government what action they are taking to increase the number of citizens registered to vote.

[Lord Kennedy of Southwark (Lab)]

My Lords, on behalf of my noble friend Lady Kennedy of Cradley, and at her request, I beg leave to ask the Question standing in her name on the Order Paper. I refer the House to my registered interests.

[Lord Young of Cookham (Con)]

That is a request the noble Lord was not in a position to refuse. The Government allocated £7.5 million to promote registration prior to the EU referendum, and a record 46.5 million people are now registered to vote. Online registration has made it easier and faster to make an application to register, with 75% of the 23 million applications made since the introduction of individual electoral registration using this method. The Government aim to further streamline the annual registration canvass and to work closely with the electoral community and civil society organisations to remove barriers that deter underregistered groups from joining the register.

[Lord Kennedy of Southwark]

My Lords, significant local elections are taking place this May, and millions of people are still not registered to vote. What are the Government going to do about this? Their response to date has been feeble, ineffective and lacking in any policy perspective other than to do as little as possible.

[Lord Young of Cookham]

With respect, I would reject the accusations that we have done very little. As I said, we allocated £7.5 million last May, ahead of the EU referendum, for a whole range of voter registration activities, and we now have a number of targeted initiatives for those who are underregistered—black and ethnic-minority groups, social tenants, tenants in the private rented sector, young people and students. We are developing those initiatives in order to drive up the numbers registered, which, as I said a moment ago, now stand at a record level.

Policing and Crime Bill

Lord Kennedy of Southwark Excerpts

Report: 2nd sitting (Hansard): House of Lords
Wednesday 7th December 2016 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

My Lords, it might help the House if I explain why the noble Lord, Lord Brooke, and I view this as quite such a dangerous substance and why it is quite different from alcohol in a liquid form, which one drinks. The reason is that powdered alcohol can be snorted, as can vaping alcohol. The problem is that it is then absorbed through the sinuses, directly through the blood-brain barrier, so that you get an immediate hit. You can get a very high hit in the brain with a very low blood-alcohol level because it has a direct route. If you drink a drink, as many of your Lordships probably will this evening, you will absorb it through the gut and it will go through the liver, where an enzyme called alcohol dehydrogenase partly metabolises it—it burns it up. It then goes into your bloodstream and then to your brain, so the amount getting to your brain will be reflected in a peripheral blood sample, which is where blood-alcohol levels are measured for driving and so on.

However, this powdered or vaping mechanism completely bypasses that. The problem is also that it is extremely difficult to detect, but the rapid high is much higher and faster than one would get even with a schnapps-type drink that might be downed quickly. That effect is particularly dangerous. In an important study done in the US, more than 1,800 undergraduate students were interviewed and 23% indicated that they would use the product if available. Of those, 62%—that is, just about two-thirds—also indicated a likelihood of misusing the product; that misuse was higher among Caucasian students and those who were already hazardous drinkers, who were significantly more likely to use it. We have tabled this amendment because we think this formulation is particularly dangerous and acts like a dangerous drug.

[Lord Kennedy of Southwark (Lab)]

My Lords, as this is the first time I have spoken on Report, I should quickly declare that I am an elected councillor in the London Borough of Lewisham and a vice-president of the Local Government Association.

The question of powdered or vaping alcohol was discussed in Committee, as my noble friend Lord Brooke of Alverthorpe mentioned, and his amendment would now classify it under the Misuse of Drugs Act. I must confess that I had never heard of powdered or vaporised alcohol before we debated this in Committee on 9 November. I have now of course heard that this alcohol can be put into fruit juice and other soft drinks; apparently, it can be baked and put into a whole range of products. I also thought that vaping was an alternative to smoking and had no idea that you can now apparently vape alcohol. I think we all agree that alcohol is a mood-altering substance, so I hope that the Minister can respond to these important issues. I take entirely the medical evidence given by the noble Baroness, Lady Finlay, on how these products can get into your body and how quickly they can react. It is important that we look at this carefully and, if it needs to be regulated properly, at how that can be done.

--- Later in debate ---

[The Earl of Clancarty (CB)]

My Lords, I support Amendment 172, which has been excellently introduced by the noble Lord, Lord Clement-Jones. There needs to be a shift from authorities viewing our nightlife economy as something to be restricted to viewing it as something to be encouraged. Indeed, provision should be made. If London, to take just one example of cities across the UK, has lost 40% of its music venues in the past five years—not, it cannot be overemphasised, through lack of demand—there is something seriously awry with how our local communities are developing.

The licensing authorities need a better understanding of this landscape and to act constructively to counter this. As the noble Lord, Lord Clement-Jones, said, in her reply in Committee the Minister said that cultural activity is “quite a subjective matter”. However, there is nothing in the amendment submitted in Committee or in this amendment about which cultural events should take place. The amendment is not in any way prescriptive; nor is there any sense of a limit to be placed on cultural events or of their particular value socially or culturally. The Minister talked of “a censorious position”, but the fact is that there is already, to a significant degree, an implicit censoriousness—one might say a tunnel vision—in the treatment of our clubs and music venues by licensing authorities, and the amendment would address that.

In evidence given yesterday to the Select Committee on the Licensing Act 2003, Mark Davyd, chief executive of the Music Venue Trust, said, “We want to see grass-roots music venues acknowledged and respected alongside theatres and art centres as spaces that are vital to the health, wealth and happiness of the UK”. That is a laudable aim. It also means that comparable criteria for operation should be applied to all those venues, but that kind of parity can be achieved only if all these cultural activities are perceived in a positive sense and as being connected through the wider landscape. There needs to be a mechanism that achieves that. The licensing authority is, or should be, the meeting place of all the different stakeholders; it is the logical place for that to happen. I hope the Minister will look favourably on the amendment.

[Lord Kennedy of Southwark]

My Lords, we debated this issue in Committee. Many years ago, I was a member of the licensing committee of Southwark Council, although nowadays I am on Lewisham Council and am a member of its planning committee. I am very supportive of this amendment proposed by the noble Lord, Lord Clement-Jones, and the noble Earl, Lord Clancarty.

The noble Lord, Lord Clement-Jones, has a track record of standing up for live music, buskers and grass-roots music venues, and we should all be very grateful to him. We need to help and support the music and entertainment industries, and this amendment will go some way to doing that, as the noble Lord said. The night-time economy is very important and needs to be supported. Clubs, music venues and similar types of establishment bring billions of pounds to the UK economy every year. I very much welcome the appointment of the night tsar by the Mayor of London Sadiq Khan. He clearly recognises the importance of the night-time economy to the economy of London as a whole and is working to ensure that the economy works for industry and residents. It may well be that, as we get new metro mayors around England in the next few months, we find that they will follow his example and do the same to support the night-time economy in their cities.

I also recall our debate in the Moses Room some months ago when we looked at the activities of some local authorities and how they applied legislation. It seemed to me that some people have gone well beyond their powers there. However, I support the amendment and hope that the noble Baroness can give a positive response when she replies.

--- Later in debate ---

The Equality Act’s reasonable adjustment duty is intended to be anticipatory but, because of the problems for individuals in enforcing the duty, things do not tend to work out that way. That is why we need the power that the amendment proposes to give to licensing authorities to enable the enforcement of the duty, if not in an anticipatory way, at least proactively.

[Lord Kennedy of Southwark]

My Lords, Amendment 173, moved by the noble Baroness, Lady Deech, adds to the general duties of licensing authorities a duty of securing accessibility for disabled persons. The noble Baroness raises an important issue; we debated the matter under another amendment, which sought to add in the provisions of the Equality Act in Committee.

It is right to say that people running licensed premises should do much more to ensure that the premises are accessible by disabled people, so that they can go out with their friends and family and enjoy themselves on those premises. It is right that disabled people are able to get access to those premises. When the Minister responds to the debate we may hear that there are general duties under the Equality Act 2010 in force already and that adding a specific amendment does not add anything to the statutory requirements already in force, as noble Lords have said. I hope that we can get a very careful explanation of why that is the case. The Government have a general duty to ensure that the law is properly applied, so I hope that they will use this opportunity to say clearly how they can ensure that that actually happens.

The problem often is whether licensed premises owners fully understand what their obligations are—or, if they do understand, whether they do anything to make those reasonable adjustments. We need to have a very careful explanation from the Minister in response to the debate, because we have the whole issue of the guidance, what review mechanisms are in place, and how the Government are going to ensure that the mainstream access to buildings to which the noble Baroness, Lady Deech, referred actually happens.

[Baroness Williams of Trafford]

My Lords, I thank the noble Baronesses, Lady Deech and Lady Thomas of Winchester, not only for their powerful speeches in this debate but for taking the time to speak with me over the past few weeks on the subject of this amendment. I also commend my noble friend Lord Shinkwin for the sheer quality of his speech and everyone who has spoken in this debate for their persistence in seeking to secure the rights of disabled people.

I am very sympathetic to the issues that have been raised on this matter. Licensed premises such as pubs, restaurants, theatres and cinemas are places where many of us choose to socialise and are therefore an important part of our daily lives. Too many of these venues are difficult for disabled people to access. The same is true of other, non-licensed businesses, too. The issue before us is whether we should use the regulatory framework provided for in the Licensing Act 2003 as a mechanism to enforce the provisions of a quite separate piece of legislation.

The noble Baroness, Lady Deech, and others have answered this question in the affirmative, arguing that it should not be left to disabled people denied access to licensed premises to have to fight on their own to secure their rights. The contrary argument, which I set out in Committee, is that this amendment is seeking to skew the regulatory regime in the 2003 Act and use it for a purpose for which it was never intended. The amendment potentially puts us on to a slippery slope. If we can use the 2003 Act to enforce the obligations placed on businesses by other enactments, where does this stop? Are licensing authorities then to be charged with, for example, ensuring that pubs and restaurants are paying the minimum wage or complying with other aspects of employment law?

While it could be argued that the particular challenges faced by disabled people make this amendment a special case, we should not seek to downplay the fact that there will be a cost to business. I accept that the amendment does not place any new direct obligations on licensed premises as a class of business, as they are already subject to the requirement to make reasonable adjustments. However, if we are expecting licensing authorities to act as an enforcement agency in this regard, there will unavoidably be a cost to them in discharging this new function. As the cost of the licensing system properly falls on licensees rather than the council tax payer, consequently any increase in costs for licensing authorities will need to be passed on through increased licensing fees. We must take this into account when considering the amendment.

I have heard the powerful voices expressed in the debate here today. I cannot ignore the strength of feeling in your Lordships’ House. I believe that there is scope for compromise around possible amendments to the Licensing Act, which would work with the grain of the existing licensing regime. I cannot say more at this stage, as there is further work to do to scope such a possible compromise, but nor can I give the noble Baroness, Lady Deech, any undertaking today that I will be able to bring forward a government amendment at Third Reading. I hope, however, that the noble Baroness will agree to move forward on the basis of the preliminary discussions that we have had earlier this afternoon and, if not, perhaps we should come to a decision on her amendment today.

Terrorism Prevention and Investigation Measures Act 2011 (Continuation) Order 2016

Lord Kennedy of Southwark Excerpts

Thursday 24th November 2016 Lords Chamber

TPIMs will be extended today, but they are not the solution to the underlying phenomenon of terrorism. I do not think that noble Lords will disagree with my comment that we are treating the symptoms and not the cause.

[Lord Kennedy of Southwark (Lab)]

My Lords, I thank the noble Baroness, Lady Chisholm of Owlpen, for presenting the order to the House this afternoon. It has the support of the Opposition. As the noble Baroness says, the first duty of government is to keep our people and our country safe, and the Government have our full support in that important work.

The order before us will renew the Secretary of State’s power to issue TPIM notices for a further five years, so long as the independent reviewer, the Intelligence Services Commissioner and the director-general of the Security Service have been consulted. I understand that they have been and that they have all consented. I note the point that the noble Baroness, Lady Hamwee, made about going for the maximum period of time. At present, I believe that that is the right decision. I also note that the Secondary Legislation Scrutiny Committee in considering the order did not raise that as an objection at all.

As noble Lords have heard, the notice has rarely been used, but it is an important measure of last resort to protect our security when it is not possible to prosecute or, in the case of foreign nationals, deport individuals believed to be involved in terrorist-related activity and when the Secretary of State has decided on the balance of probabilities that the person is or has been involved in terrorist-related activity and the restrictions that can be placed on an individual are both necessary and proportionate.

I am sure that the orders are not issued lightly and one would prefer to be in a position to mount a prosecution. It is welcome, on the other hand, that the orders can be challenged in the courts. As the noble Baroness, Lady Chisholm, said, when they have been challenged, not one has been quashed, which says much for the robustness of the system in place and the built-in checks and balances.

I seek confirmation from the noble Baroness that the Intelligence and Security Committee would be further involved in satisfying itself as to the robustness and operation of the TPIM orders. If that is the case, that provides a further level of parliamentary oversight but in an appropriate, confidential setting.

In conclusion, the order has my full support. It strikes the right balance between keeping the country safe, placing restrictions on individuals when no other option is appropriate and allowing those individuals to challenge them in the courts.

[Baroness Chisholm of Owlpen]

My Lords, I am grateful for the comments that have been made on all sides. Let me just answer the questions that were raised. The noble Baroness, Lady Hamwee, asked whether TPIMs have led to an increase in prosecutions; I am afraid that I am not able to say, for reasons that she can understand. She also asked about judicial involvement in the process. The High Court considers whether the decision to impose a TPIM was obviously flawed and then a later hearing will determine whether the TPIM is necessary and proportionate. The noble Baroness also asked about the impact on communities of relocation. The potential impact that a relocation may have on a local community is always carefully considered. The noble Lord, Lord Kennedy, asked about the security services and the committee.

[Lord Kennedy of Southwark]

I asked whether the Intelligence and Security Committee is involved in the oversight of these orders.

[Baroness Chisholm of Owlpen]

I think that it is—inspiration is appearing over my left shoulder as we speak. No, it is not completely involved at the moment. We are happy to consider that further.

In conclusion, TPIMs have proved to be an essential tool to allow the police and the Security Service to manage the risk from terrorism and one that is required today as much as when the Act was introduced in 2011. This is a tool that is subject to a considerable level of court oversight, rightly, to ensure that it is used only where it is a proportionate response. I therefore ask the House to approve the order.

Motion agreed.

Policing and Crime Bill

Lord Kennedy of Southwark Excerpts

Committee: 4th sitting (Hansard - part two): House of Lords
Wednesday 9th November 2016 Lords Chamber

[Baroness McIntosh of Pickering]

My Lords, I congratulate noble Lords who have tabled and so eloquently moved and spoken to the amendments before the Committee.

Speaking in a personal capacity, I seek guidance from the Minister, who now has a wish list of an additional three or more objectives that could be included in the amendments. In her response, can she explain what original criteria were used to establish the original objectives, as set out in the Licensing Act 2003? More particularly, what is the distinction from what has been achieved by a piece of legislation from an earlier Conservative Administration, of which I am extremely proud, the Disability Discrimination Act? How is that different from Amendment 210?

I was struck by the words of the noble Baroness, Lady Thomas, about catching a falling star. I revert to the earlier theme of why this falling star has been snatched when we have a history over the past 10 or 15 years—possibly even 18 or 20—of every 18 months considering a police and crime or justice Bill that could have neatly included some of these amendments, certainly those that we looked at earlier. As well as “catch a falling star”, one could also say, “pick’n’mix” or “liquorice allsorts”. My favourite would be Mackintosh’s Quality Street but, sadly, there is no relation.

I conclude by paying tribute to the noble Baroness, Lady Deech, who chaired the earlier ad hoc committee with such distinction. I look forward to the Minister’s response.

[Lord Kennedy of Southwark (Lab)]

My Lords, we have moved on to another part of the Bill. I should declare that I am an elected councillor in the London Borough of Lewisham and a vice-president of the Local Government Association. I do not serve on the licensing committee of Lewisham Council; I have enough to do on the planning committee. However, many years ago, I was a member of the licensing committee of Southwark Council. In those days, we considered only music and dance licences. One still had to apply to the magistrates’ court for a late-night alcohol licence. That has all changed and these matters are now under the control of the licensing committee.

This has been an interesting debate on four important amendments, all of which I support. The noble Baroness, Lady Deech, and other noble Lords made very valid points in respect of licensing authorities’ compliance with the provisions of the Equality Act. This is an issue of enforcement, rather than advice and guidance. Being able to remind licence holders of their duty is not good enough because it has not worked as effectively as it should. We should force licensed premises to be able to be used by disabled people.

My noble friend Lord Brooke of Alverthorpe spoke about the need for a duty to promote health and well-being. Local authorities have such general duties but for there to be a specific requirement in respect of licensed premises is a new initiative. He made important points about the changes to availability of alcohol and consumption patterns. They have certainly changed. My noble friend was clear and we can all think back on how many pubs have closed while alcohol is more available in convenience stores and supermarkets. Things have changed in the past 20 years. He also made important points on the duty of authorities to look after young people and protect them from harm.

As regards the promotion of cultural activity and inclusion, the noble Lord, Lord Clement-Jones, has an impressive record in this House of standing up for live music and other cultural activities. He is right to stand up for grass-roots music venues, which have launched many a career in the entertainment industry. I agree with the noble Lord that music and other activities should be helped and supported where possible through the licensing system, rather than just regulated. I recall a debate on a different subject in the Moses Room, when we talked about a range of regulations that sometimes affect people going about their lawful business and allowing them to busk and so on. Decisions on this are being taken by officials of local authorities, rather than elected members, which is worrying. It is a slightly different but similar point. I also agree with what the noble Earl, Lord Clancarty, said about the industry.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, Amendments 210, 211 and 214A in this group seek to add to the list of licensing objectives under the Licensing Act 2003. In answer to my noble friend Lady McIntosh’s question, there are currently four such objectives. These are: the prevention of crime and disorder; public safety; the prevention of public nuisance; and the protection of children from harm. The promotion of the licensing objectives is of paramount importance when authorities make licensing decisions, and each one carries equal weight.

Amendment 210 seeks to add,

“compliance with the provisions of the Equality Act 2010”,

to the list of licensing objectives. As we have heard, the amendment flows from a recommendation made by the Equality Act 2010 and the Disability Committee, which reported in March. I was pleased to be able to respond in our debate on that. All four noble Baronesses who put their name to this amendment served on that committee.

The committee recommended that the Licensing Act 2003 be amended to make failure to comply with the Equality Act 2010 a ground for refusing a licence. In their response published in July, the Government argued that, as employers and businesses were already under a duty to comply with the statutory obligations imposed by the Equality Act not to discriminate against staff or customers, the Act offered sufficient protection. Accordingly, it would be inappropriate for the 2003 Act to duplicate the requirements of the 2010 Act, just as it would be inappropriate to make express reference to other legislation—such as the Health and Safety at Work Act 1974 or the Noise Act 1996—all of which places requirements and responsibilities on licensing authorities and licensees.

Moreover, if we were to apply the logic of Amendment 122 more broadly, we should also be amending the Gambling Act, and indeed many other statutes, to place analogous obligations on those undertaking other forms of regulated activity. To single out the operators of businesses licensed under the 2003 Act could be taken as downgrading the obligations on all other businesses to similarly comply with the requirements of the Equality Act. I am sure that noble Lords would not wish to give that impression.

This is not to say that those running licensed premises should not be doing more to facilitate access by disabled people. Earlier this year the Minister for Disabled People held a round table event with disabled people and the hospitality industry to lead to a better understanding by service providers and businesses and a commitment from them to improve access and attitudes. Organisations represented at the round table made pledges to improve accessibility to their premises and improve their customer service for disabled people. For example, the British Beer and Pub Association pledged to update and promote its guidance on accessibility in pubs. This gives pubs advice on easy changes they can make to improve their service to disabled customers. These are very practical steps which will help to improve the day-to-day experiences of disabled people.

Amendment 211, tabled by the noble Lord, Lord Brooke of Alverthorpe, seeks to add an additional licensing objective,

“to promote the health and wellbeing of the locality and local area”.

The Government are not unsympathetic to those who believe that there should be a greater role for public health within the licensing system, and we of course acknowledge the health harms attributable to alcohol. However, decisions under the Licensing Act have to be proportionate and made on a case-by-case basis. Unless it can be demonstrated that an application for a new licence is likely to undermine one or more of the licensing objectives, the licensing authority must grant the licence. The Government believe that any new licensing objective would need to be capable of standing alongside the existing objectives and function in the same way. Any new objective must therefore enable licensing authorities to determine whether it is appropriate to grant or refuse new applications, review licences and attach conditions or revoke licences.

Previous work has shown that it is difficult to establish direct causal links between alcohol-related health harms such as chronic liver disease and particular premises. Difficulties also remain with putting in place the necessary processes to enable the collection of such evidence—without which decisions based on health grounds would be unlikely to stand up to challenge. Work to date has established that the types of health data that are more readily accessible and most suited to use in a licensing context tend to relate to acute harms such as violent assaults and alcohol-related injuries. These harms, as well as most factors affecting well-being, such as crime levels and the welfare of children, can already be addressed through the existing licensing objectives, as demonstrated by the achievements of areas such as the Kensington area of Liverpool, Newcastle and Middlesbrough.

The Government will therefore continue working with Public Health England to facilitate access to local health data to inform decision-making within the current framework and to help public health teams play a role within licensing. Public Health England has also been testing a support package to assist with the development of local data collection and analysis based on lessons learned from the evidence-based work carried out in 2014-15. I assure the noble Lord that the Government continue to look at this matter seriously and will consider the findings of Public Health England.

Amendment 214A seeks to add,

“the promotion of cultural activity and inclusion”,

to the licensing objectives. This would require licensing authorities to consider the character of licensable activities, rather than purely protect against the potential harm caused by licensable activity. The existing licensing objectives seek to reduce harm that can be evidenced, and licence conditions which are intended to reduce the level of harm can be easily understood—for example, a requirement to restrict noise levels to prevent public nuisance.

It would be difficult to replicate this for “cultural activity and inclusion”, since this is quite a subjective matter and may be interpreted in different ways. For example, would a festival of Hindi films or Irish dance be considered good or bad in terms of cultural activity and inclusion? Making this a licensing objective could place licensing authorities in a censorious position, whereby licensees organising events might be obliged to explain what additional cultural value their entertainment might generate, and the licensing authorities would be required to evaluate that information.

The final amendment in this group, Amendment 212, seeks to add child protection bodies to the list of statutory consultees for statements of licensing policy. Each licensing authority is required to publish a statement of licensing policy and to revise it at least every five years. The statement sets out the general approach to making licensing decisions and managing the evening and night-time economy in the area.

Section 5(3) of the 2003 Act sets out a list of organisations and individuals who must be consulted when the statement is reviewed. The list includes the police, the fire and rescue authority and the public health body, but it is not intended to be exhaustive and therefore does not include all the responsible authorities. The 2003 Act does not prevent licensing authorities from consulting other bodies or persons as they see appropriate.

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[Lord Harris of Haringey]

I sometimes wonder about the priorities of this House and of government in considering these sorts of issues. I think most of those who know me recognise that I am fairly hawkish on counterterrorism, but the number of people in this country who have died as a consequence of terrorist acts since 2005 is less than the number of people who die in a single year because of drunk-driving between the limits that are currently against the law and those proposed by the noble Baroness.

Let us go back over all the legislation since the current limit was introduced—the noble Baroness, Lady Berridge, took us back to what it was like in those times when we were all much younger—and consider how many pieces of legislation, full Bills, have been brought forward by the Home Office to deal with the threat from terrorism. It is usually about one a year, sometimes more—full Bills containing lots of new offences. Yet there is clear evidence that these new limits would reduce the number of deaths, they are fairly straightforward to administer and yet we keep waiting and putting off the decision. That seems to me an issue that we should all address, and we should be conscious that sometimes we have double standards. I will continue to argue for stronger counterterrorism, but it is rather striking that we do not resolve something like this, which would make a real difference, and would stop the wrecking not only of the lives of the families of those who have died but also of the lives of those who cause the deaths.

[Lord Kennedy of Southwark]

My Lords, Amendment 214C, moved by the noble Baroness, Lady Berridge, and supported by the noble Baroness, Lady Jones of Moulsecoomb, and my noble friend Lord Brooke of Alverthorpe, reduces the legal alcohol limits in England and Wales to match the limits introduced by the Scottish Government on 5 December 2014.

My noble friend Lord Harris made a particularly powerful point in respect of deaths caused through drink-driving. I am very supportive of this amendment, as I think we need tough laws on drinking and driving that are effectively enforced.

I also think that it would be quite good to have the same limit across the whole of Great Britain, and ideally the whole of the United Kingdom. This would make it much easier to understand for everyone concerned. I am also not against having a lower limit for commercial drivers and novices.

There is clear evidence that a reduction in the drink-drive limits would save lives. No one has said that is not the case. We have the highest limits in Europe. Only Malta has the same drink-drive limit we have in this country. The limit introduced by the Scottish Government is the same one that is in force in Austria, Belgium, Croatia, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Latvia, Luxembourg, the Netherlands, Portugal, Slovenia and Switzerland. So the case is powerful. In none of these countries is there a problem with the limit being effective.

The second amendment in the group, again in the name of the noble Baroness, Lady Berridge, and my noble friend Lord Brooke, seeks to create a lower limit for novice and professional drivers. Again, I think that this is something we should consider. Many countries have this. That is certainly the case in many of the countries I read out, including Ireland and North Ireland. I think that it is important, if you are a professional or a novice driver, to have a lower limit.

I passed my driving test 36 years ago. I remember getting my first car—you are let loose and you are in there on your own. If you think about it, you are not very experienced at that point. Therefore it would be a good to enforce a lower limit. The fact is that our limits are comparatively high. I hope the Minister will respond to the amendment moved by the noble Baroness, Lady Berridge. It is very good, and I hope that we will get a positive response from the Government. If not, I hope that the noble Baroness will bring it back on Report. I assure her that if she wants to test the opinion of the House at that point, we will support her.

[Baroness Williams of Trafford]

My Lords, I know that these amendments relate to concerns around the Government’s approach to drink-driving limits, particularly in light of changes in the law in Scotland and Northern Ireland, and, more recently, with a proposed change in Malta to lower the drink-drive limit. First, I emphasise that tackling drink-driving is a priority for the Government and that, together with the police, we continue to take robust enforcement action against this reckless behaviour.

Other countries may have a lower alcohol limit, but they do not necessarily have a better record on reducing drink-drive casualties. While it is difficult to make direct comparisons, some stark contrasts clearly exist between ourselves and our European neighbours. Estonia, for example, with a population of 1.3 million, has a limit of 20 milligrams per 100 millilitres of blood and carries out 10 times more breath tests than we do in Great Britain. Yet 160 people died there in 2014 as a result of drink-driving. That rate is 30 times greater per head than in Britain. Closer to home, we can look at France. With a similar population to us, it suffers nearly four times the drink-drive fatalities that we do. Even taking into account those cases that fall between its limit and ours, we perform significantly better.

In many of these countries a first drink-drive offence gets you a fine and some penalty points. Indeed, in Northern Ireland they intend to bring in a fixed penalty notice regime. They will hand out penalty points to those offenders found to be over the new limit but under the old one. There is no appetite amongst the public or road safety groups in England and Wales to reduce the penalties and not disqualify offenders who flout the law. Nor would we wish to create in the minds of potential offenders the thought that they might get only a fine and penalty points and so encourage them to drink and drive.

In England and Wales, the success we have had in tackling drink-driving has been down to the severe penalties, rigorously enforced and backed up with hard-hitting campaigns, which now make this behaviour utterly socially unacceptable. Our roads continue to be amongst the safest in the world because we crack down on those who break the law. Last year we made it a requirement for those convicted of drink-driving offences to undertake medical tests to ensure they are not still dependent on alcohol before they are allowed to drive again.

The same legislation, the Deregulation Act 2015, also made an important change to drink-driving laws by removing the so-called “statutory option”, which allowed drivers who provided a breath test that was slightly in excess of the prescribed limit to demand a blood or urine test back at the station. By removing this provision, individuals have been denied the chance to sober up and so drop below the prescribed limit while waiting for a blood or urine sample to be taken.

Yes, there is always more to be done, but harmonisation with other countries with a poorer record of tackling drink-driving is not a reason in itself to lower the limit.

[Lord Kennedy of Southwark]

In this debate no one has said that we want to lower the penalties—just to lower the limits. We have a good record in this country, and I give credit to our police service for that. The noble Baroness’s amendment is asking only to reduce the limits. She did not talk about penalties or enforcement, and, of course, as my noble friend Lord Harris said, if we looked at the number of deaths caused under the limit enforced now and above the proposed limit, we could save more lives.

[Earl Attlee]

My Lords, the arguments proposed by noble Lords are ones we have heard for many years. The arguments have not changed. Why, therefore, did the party opposite not lower the limit when they were in government? The reason is that it is a tricky issue.

[Baroness Jones of Moulsecoomb]

My Lords, we are not talking about the past but about now. We have an opportunity to do something now: to save lives and prevent serious injuries. I do not understand this reluctance to face facts. As the noble Lord said—is he a friend?

[Lord Kennedy of Southwark]

Yes, I am.

[Baroness Jones of Moulsecoomb]

As my noble friend said, we are not talking about comparing ourselves with other countries, and nor are we arguing for any other changes. We are not talking about drug-driving but specifically about drink-driving and the damage it does to innocent lives.

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I think we share a common objective, especially in the run-up to Christmas, of wanting to see a reduction in the number of people killed and injured on our roads as a result of drink-driving. However, I put it to noble Lords that the most effective way to achieve this is not through this amendment but through the continued robust enforcement of the current law.

[Lord Kennedy of Southwark]

The Minister said that the statistics on what is happening in Scotland will be available shortly. Is she telling the Committee that the UK Government will evaluate them when they become available?

[Baroness Williams of Trafford]

My Lords, the UK Government will look at them with great interest. There may be compelling evidence that comes out of them. Basically, the Government will look at them when they come out.

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[Earl Attlee]

My Lords, I rise briefly to support the general thrust of these amendments because the underlying legislation and the policy behind it was so fatally flawed. I am just sad that it took me and many others so long to realise that the whole policy was 100% flawed and caused unnecessary problems.

[Lord Kennedy of Southwark]

My Lords, this has been an important debate and I am pleased to be able to respond on behalf of the Opposition.

I can support all the amendments in this group as far as they go, although some go further than others. I was particularly pleased to see the amendments of the noble Lord, Lord Lexden, which extend posthumous pardons to Northern Ireland. However, further rights need to be won for LGBT people and women in Northern Ireland, as well as on the mainland. We must return to them at a later date.

I join my noble friend Lord Cashman in paying tribute to the noble Lords, Lord Lexden and Lord Sharkey, for their tireless campaigning. I also pay tribute to my noble friend Lord Cashman for his tireless campaigning to deliver equality for LGBT people. There has been tremendous progress in the past 20 years in particular, and my noble friend has been there, standing up, making the case and challenging prejudice, hate and injustice. We are all grateful to him. The most comprehensive amendments in the group are those in the name of my noble friend and they have my full support. I very much agree with him that granting a pardon to any person convicted of or cautioned for a now-abolished offence, providing they meet certain conditions, and regardless of whether they are living or dead, is the way to proceed. His amendments go further in that they extend pardons to those convicted or cautioned under Section 32 of the Sexual Offences Act 1956 or the Vagrancy Act.

My noble friend made it clear that nothing in his amendments would grant a pardon to any person convicted or cautioned for soliciting. Nor would the amendments grant a pardon to anyone convicted or cautioned in respect of conduct involving a person under the age of 16. My noble friend gave an important illustration of the effect of Section 32 of the Sexual Offences Act 1956, and I agree that it is important to right this wrong for both those who are living and those who are dead. Treat them equally. This is the right thing to do. No one would be pardoned for anything that is still an offence. I hope your Lordships’ House will accept my noble friend’s amendments.

[Baroness Williams of Trafford]

My Lords, I am pleased to be able, on behalf of the Government, to warmly welcome Amendments 214E, 214F, 214G, 239A and 246, and I congratulate the noble Lord, Lord Sharkey, on bringing them forward, as well as the noble Lord, Lord Cashman, who spoke so movingly.

As the noble Lord, Lord Sharkey, explained, these amendments broadly do two things. First, they confer an automatic pardon on deceased individuals convicted of certain consensual gay sexual offences that would not be offences today. Secondly, they confer a pardon on those persons still living who have a conviction for such an offence that has been disregarded under the terms of the Protection of Freedoms Act 2012. It is important to note that for the pardon to apply, the conduct in question must have been consensual and involved another person aged 16 or over, which is the current age of consent. The conduct must also not involve an offence of sexual activity in a public lavatory, which is still illegal today.

This historic step is momentous in righting wrongs suffered by thousands of gay and bisexual men. It is a tragedy that people were criminalised over a shamefully long time for something that society regards today as normal sexual activity. It is time to right the wrongs of the past and I am pleased to support the noble Lord, Lord Sharkey, in putting forward these amendments.

It is important that we link the pardons for the living to the disregard process so that the necessary checks can be carried out to identify whether the individual in question engaged in activity that constitutes an offence today. Since the disregard scheme under the Protection of Freedoms Act came into force, eight disregard applications that concerned non-consensual activity have been rejected. It is therefore crucial that a pardon for the living should only follow a successful disregard application. This mitigates the risk of individuals claiming to be cleared of offences that are still crimes today. It takes into account and protects the rights of victims and ensures that children and vulnerable people are safeguarded from potential risks. This is extremely important and an objective with which I am sure noble Lords would agree. It is for these reasons that the Government cannot commend to the Committee Amendment 214S in the name of the noble Lord, Lord Cashman.

The amendments in the name of my noble friend Lord Lexden seek to make corresponding provision for Northern Ireland. The Committee will be aware of the established convention that the UK Parliament legislates on devolved matters in Northern Ireland only with the consent of the Northern Ireland Assembly. Subject to observing that convention, the Government are ready to look favourably at amendments at a later stage of the Bill along the lines proposed by my noble friend.

I understand that on Monday of this week, the Ministry of Justice tabled an amendment to a legislative consent Motion before the Northern Ireland Assembly seeking its consent to the UK Parliament legislating on this matter. If the proposed legislative consent Motion can make sufficient progress over the next two to three weeks, I would anticipate that the Government will be able to work with my noble friend to come to an agreement before the Bill leaves this House. I should add that the Scottish Government have separately announced their intention to bring forward legislation in the Scottish Parliament.

I turn to Amendment 214R, which is again in the name of the noble Lord, Lord Cashman. The amendment seeks to extend the disregard scheme to include convictions for the soliciting offence in the now-repealed Section 32 of the Sexual Offences Act 1956. Under the current disregard scheme, for the now-repealed offences of buggery and gross indecency between men, it is a relatively straightforward matter to establish whether the relevant statutory conditions are met; namely that the other person involved in the conduct consented and was aged 16 or over, and the conduct would not now constitute the offence of sexual activity in a public lavatory. In contrast, the soliciting offence in Section 32 of the 1956 Act covered a broad range of behaviours and, as such, it is not a straightforward matter to formulate additional conditions to ensure that behaviour which would still constitute an offence today cannot be the subject of a disregard. It is likely that any such conditions would entail more than simply establishing facts—for example, whether the other person was aged 16 or over—and require a shift to making judgments as to whether an activity would be captured by a range of different offences today. This creates some practical challenges in accessing records in sufficient detail to make that judgment.

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[Lord Paddick]

My Lords, with the leave of the House, I cannot let the opportunity go past without congratulating my noble friend Lord Sharkey on what is a phenomenal achievement. I am very grateful to the Government for the support that they have finally given to his amendment.

I turn to another contentious issue. Amendment 214Q stands in my name and that of my noble friend Lady Hamwee. As we have just discussed, with government support my noble friend Lord Sharkey has moved amendments—and we have just passed those amendments—to grant pardons to those convicted of offences that only gay men could commit and that are no longer on the statute book because they were considered discriminatory. These offences are symbolic to the gay community and it is striving to ensure equality in law and in society as a whole.

There is another offence that is symbolic to another minority, which is no longer an offence on the statute book and is considered by many to be another example of what amounts to an historic injustice. Parliament repealed the offence because it was accepted that it was being used in a discriminatory manner by the police; it is the offence of being a suspected person loitering with the intent to commit what was originally an indictable, and later, an arrestable offence. Although the term “sus” has recently been more widely used to describe the use of police “stop and search” powers, it was originally confined to the criminal offence of being a suspected person under Section 4 of the Vagrancy Act 1824. The offence required the evidence of two witnesses, usually two police officers patrolling together. The usual evidence was of a suspected person being seen to try three car door handles, in an attempt to steal the car or from it, or the suspect putting his shoulder to the doors of three homes, with the intention of committing burglary.

The difficulty with the offence was the absence in almost every case of any corroboration, either from witnesses other than police officers, or any physical or forensic evidence. Both the police officers and, usually, young black men, who were almost exclusively the target under sus, knew that it was the word of two police officers against a young black man with no other witnesses or evidence or any other corroboration. This allowed unscrupulous police officers to invent evidence against those who had, at least on that occasion, done nothing wrong.

Of course, some will say that a miscarriage of justice did not occur on every occasion of someone being convicted of being a suspected person and, of course, I cannot say that that was the case. However, I can say—I hope that Members of this House agree with this—that thousands of innocent young black men were convicted, which caused huge pain and distress, destroying the trust and confidence between the community and the police.

I was a police officer—a bobby on the beat, a patrol officer—at the height of the use of that aspect of Section 4 of the Vagrancy Act. In 1975 and 1976, the year I joined the Metropolitan Police, more than 40% of those arrested for sus were black people, when at the time black people accounted for only 2% of the population. It was because by the end of the 1970s you were 15 times more likely to be arrested for sus if you were black than if you were white, far more than the disproportionality in stop and search, that in 1980 the Home Affairs Select Committee recommended the repeal of the legislation. It also threatened to introduce a Private Member’s Bill if the Government did not take action, but the Government did.

There was a great deal of concern, even among police officers at the time—me included—over the use of the offence, in that we knew about the claims of the black community that it was used as a tool to oppress black people. If there was evidence of another offence—for example, attempted theft of or from a motor vehicle or attempted burglary—not only were these offences less likely to be open to question but the penalties were more severe. In other words, if there had been substantive evidence, physical or forensic evidence, which in those days would have been simply fingerprints, then the much safer, more acceptable and far less contentious route was to arrest and charge for the substantive offence rather than sus.

My second comment is anecdotal. I was at Highbury Corner Magistrates’ Court with someone I had arrested. The stipendiary magistrate, Toby Springer, would want to hear from the arresting officer in every case except for those of being drunk and incapable. The case just before me was an arrest made by a colleague for whom I had respect for his honesty and professionalism. He had arrested someone for sus, and the young black man who had been arrested pleaded guilty to the offence and was fined. Downstairs in the cells, where the young man had to pay his fine before being released, I spoke to my colleague, and I remember this very distinctly. I said to him that he had restored my faith in sus because here was a trusted colleague with someone who had pleaded guilty in court to the offence, so the criticisms made by the black community, at least in some cases of sus, were clearly unjustified. He told me what had happened. He and a colleague had turned a street corner and the person he had arrested looked at the police officers and ran away. The officers ran after the youth and caught him. The youth was given the ultimatum, “Do you want attempted burglary or sus?”. The youth said, “Sus”. Presumably realising that the odds were stacked against him, he then went through the whole process admitting to something that he had never done.

Sus is another example of an offence that should never have been on the statute book, or at least an offence that was designed to deal with soldiers coming home from the Napoleonic wars and making a nuisance of themselves should not still have been on the statute book 150 years later. Not every part of Section 4 of the Vagrancy Act 1824 was repealed by the Criminal Attempts Act 1981, but those other offences are, and should be, a debate for another time.

Bearing in mind how long it has taken my noble friend Lord Sharkey to achieve what he has achieved for the gay community through his long campaign for justice, and in the absence of the equivalent of an Alan Turing figure regularly to hand in the case of sus, I am not expecting instant agreement from the Government. However, I ask the Minister to think carefully about what has been a symbolic offence for the black community. It has created huge pain and distress for decades. To pardon those convicted under this legislation—repealed because of its acknowledged discriminatory application and potential for misuse—would be of immeasurable importance to the black community.

Not only did sus damage relations between the black community and the police, it damaged relationships between the generations in the black community. The first generation of migrants from the Caribbean had great faith in the police and when their sons were arrested they did not believe their tales of the police acting improperly in inventing evidence against them. It drove divisions between generations as well as between police and the subsequent generations. Granting pardons to those convicted of being suspected persons loitering with intent to commit an indictable or arrestable offence would be a huge step forward in healing the pain caused and the damage done to the trust and confidence the black community as a whole had in the police. It would also be a much-needed catalyst to dramatically improve those damaged relations as we work to create safer communities for all. I beg to move.

[Lord Kennedy of Southwark]

I have one question for the Minister when she responds to the noble Lord, Lord Paddick. Does she have any idea of the number of people affected by this?

[Baroness Williams of Trafford]

My Lords, as the noble Lord, Lord Paddick, has explained, Amendment 214Q seeks to confer a pardon on persons living and deceased who were convicted under Section 4 of the Vagrancy Act 1824. The noble Lord has explained that Section 4 was used to persecute young black men and this amendment deals with a separate matter to the one that we have just debated. It is, however, also the case that Section 4 was used to prosecute some gay and bisexual men, so there is a read-across to the earlier debate.

In relation to consensual activity between men over the age of consent, Section 101 of the Protection of Freedoms Act 2012 makes it clear that the disregard scheme covers not only the offences of buggery and gross indecency but attempts to commit such an offence, and an attempt to commit such an offence includes conduct covered by Section 4 of the Vagrancy Act 1824. Someone with such a conviction may also apply for that conviction to be disregarded and, if successful, will also receive a pardon under the terms of the new clauses in the name of the noble Lord, Lord Sharkey.

As to other conduct unrelated to homosexuality, the Government do not believe that it is appropriate to introduce a pardon for those convicted of an offence just because that offence has now been repealed and the behaviour in question is no longer regarded as criminal. Pardoning is exceptional by nature. The persecution of gay and bisexual men through the criminal law was a clear historical wrong that we should undoubtedly right through a pardon. There is a special and compelling moral case to try to redress wrongs done to gay and bisexual men in the context of the Government’s commitment to equality. The amendments from the noble Lord, Lord Sharkey, would, like the pardon for Alan Turing, remove a real and particular stigma that is suffered by the living and still attaches to the recently deceased.

The circumstances the noble Lord has described are quite different and, without looking at the facts of individual cases, it is impossible to know whether the conduct in question would still be an offence today.

In terms of the numbers, I was looking for inspiration but we have no data, I am afraid. On that note, I invite the noble Lord, Lord Paddick, to withdraw his amendment.

[Lord Kennedy of Southwark]

Does the Minister mean that she has no data here or no data at all?

[Baroness Williams of Trafford]

No data at all, my Lords.

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[Baroness Berridge]

My Lords, I rise to speak to Amendment 219CA. This lengthy amendment, which at the outset I accept will need recrafting on Report, seeks to deal with a simple problem that has cropped up in our law. It has done so accidentally, I think, but if not sorted out it will cause injustice. Although it is late, a short description of the law and the problem is necessary by way of background.

Successive Governments have sought to tackle forced marriage, beginning with the Forced Marriage (Civil Protection) Act 2007 and with further criminalisation in the Anti-social Behaviour, Crime and Policing Act 2014. To make these remedies effective, the law incorporated—for the first time, I believe—a definition of marriage that included marriages that were not at that time valid under UK law. I quote from the Crown Prosecution Service guidelines on the definition of “marriage”. It states that,

“‘marriage’ means any religious or civil ceremony … recognised by the customs of the parties to it, or the laws of any country in which it is carried out, as constituting a binding agreement, whether or not it would be legally binding according to the law of England and Wales”.

So a relationship that UK law does not currently define as marriage can now, for very good reason, count in our criminal courts and some of our civil courts, for forced marriage purposes, as a marriage. However, this leaves a gap.

A party to a forced marriage that is not valid under UK law cannot use that conviction as evidence of the marriage in the family courts to gain financial remedies. If you have entered into a marriage under duress—a forced marriage that is valid under UK law—that can be the subject of a crime or a civil protection order. You can then, because it is valid under UK law, go to the family courts and say, “I was forced into this marriage under duress”. It is then voidable and it can be annulled. This opens the door to financial relief and the distribution of the matrimonial property.

If under duress in our law you are forced into a religious marriage, it is valid for the purposes of our law in the criminal courts for a criminal offence under the civil protection forced marriage regime, but you are not then entitled to then take that conviction to the Family Court to obtain matrimonial remedy. This is a very different situation from the marriages valid under UK law, as I have outlined, for which you can get an annulment or, of course, a divorce. So if our law has accepted this small number of relationships as marriage for the purpose of the law on forced marriage, why can they not be used for other purposes, such as gaining financial remedy? Not allowing them to be used in this way is a real injustice to those victims of forced marriage who come forward to the Crown Courts but are left with the doors of the Family Courts shut to them in terms of matrimonial property.

I am not seeking for the law to see this small number of relationships as marriages for all purposes or to foist this on a person who, even after there is a conviction for forced marriage, wishes it to be viewed for all other purposes as the religious marriage it was but under duress. Surely, however, that person, in a forced marriage under duress that was a religious marriage, should have a choice—leave it as a religious marriage or take the conviction and be allowed to claim financial remedy under the Matrimonial Courts Act and other such remedies as he or she may on occasion need.

Many of those who have spoken to me on this issue are practising barristers and solicitors. There are many women who, some practitioners believe, do not come forward after years in a forced marriage that is valid only as a religious marriage under our law, as they know that our law leaves them without means to claim matrimonial property. They know they risk the only recourse being welfare benefits, particularly if their children are now adults and they have no claim for maintenance based on caring for the children. Their view is that many of these women would come forward to the Crown Court but are reluctant to do so because they do not want to leave themselves financially vulnerable and unable to access financial remedies. We have an anomaly created by the entry of a different definition of marriage into our law.

Surely it would be just for these people and for the taxpayer to allow someone who is the victim of a forced marriage of this nature to claim, if they wish, the matrimonial property as well. By analogy, we do not retry domestic violence convictions in our Family Courts after the Crown Courts convict a husband or wife. The conviction is accepted as evidence and used by the Family Courts. Why can a forced marriage conviction not also be used in such a simple procedural way to unlock the discretion to redistribute the property and bring justice and consistency in this regard across all our courts—civil, family and criminal?

I hope that my noble friend the Minister might have time to meet with the interested groups that are concerned about this problem in our law. I raised this matter at the time with the anti-social behaviour Bill, and it has come back because there are concerns around the gap we have left for victims of forced marriages that are religious marriages which are not fully accepted under our law. The amendment is a pre-emptive strike to try to avoid this injustice happening and potentially encourage a larger number of women to come forward because they will not risk their property rights, and they will be able to claim the matrimonial property as well as get a conviction in the Crown Court. I beg to move.

[Lord Kennedy of Southwark]

My Lords, as the noble Baroness, Lady Chisholm, told the Committee, this clause confers lifelong anonymity on the victims of forced marriage in England and Wales. The first amendment, in the name of the noble Baroness, Lady Williams of Trafford, extends that provision to cover Northern Ireland as well. I understand that this is at the request of the Justice Department in Northern Ireland. That is welcome, and we on these Benches support these amendments. Amendment 215 is the main amendment, while Amendments 237 and 241 are consequential and would bring the provision into effect.

Amendment 219CA is in the name of the noble Baroness, Lady Berridge. She makes a powerful case to right an injustice that leaves the victim unable to seek redress. That is not right, and the Government should come forward to correct this. I will be interested to hear what the Minister will say in her response to this amendment. She made a persuasive argument; I hope that we will get a positive response from the noble Baroness, Lady Chisholm, and that the Government can deal with it, either now or on Report.

[Baroness Hamwee]

My Lords, we on these Benches very much support the noble Baroness’s amendment. She has obviously been working at this for some time—I see from her face that she has—and her explanation is clear and obviously based on the experiences of which she is aware. So we give her our support.

--- Later in debate ---

[Baroness Chisholm of Owlpen]

I was not suggesting that, just that there are difficulties—other reasons why it could be more difficult to bring in. That is not to say that we are not keen to look further at this issue. However, because we want to consider the findings of the sharia law review, I ask my noble friend to withdraw her amendment so that we have a chance to do that.

[Lord Kennedy of Southwark]

What is the timescale for the review that the Minister mentioned?

[Baroness Chisholm of Owlpen]

That is up to the review and we do not know yet.

Community Pharmacy in 2016-17 and Beyond

Lord Kennedy of Southwark Excerpts

Thursday 20th October 2016 Lords Chamber

[Lord Kennedy of Southwark (Lab)]

My Lords, first, I thank the noble Baroness, Lady Chisholm, for repeating the Statement made by her honourable friend in the other place. Community pharmacies play a huge role in our health and social care system. It is estimated that 80% of patient contact in the NHS is with community pharmacies. Elderly people and those with long-term conditions, in particular, rely on the service provided by their community pharmacy.

For all the warm words and reassurance from the noble Baroness, nothing in the Statement gives comfort to anyone. It confirms, despite concerns raised in this House and the other place and the concerns of the pharmacy sector, patients and the general public, that the Government are carrying on as before. Policy option 2 in the impact assessment, the Government’s preferred policy option, states that,

“there is no reliable way of estimating the number of pharmacies that will close as a result of this policy”.

So we have spending cuts—12% for the rest of this year, 7.4% for next year—and an impact assessment in which the Government admit that they have no idea how many pharmacies will close, but we are supposed to accept the claim at the end of the Statement, that

“my firm belief that the future for community pharmacy is bright”.

To make that claim have an ounce of credibility, the Government will have to do a lot better than the Statement produced today for the House.

We face unprecedented demand on health and social care services, and the importance of local pharmacies is greater than ever. When I go to my GP or my local pharmacy, there are always posters up telling people to go to their local pharmacy for a variety of conditions, not the GP or A&E.

Can the noble Baroness tell the House what she estimates the effect of the spending cuts will be on GP services in general, the out-of-hours service in particular, and on pressure on A&Es, where there is already a problem with people seeking treatment who should really be dealt with by other parts of the NHS?

There is very little information about the effect of these cuts, but some research has been commissioned on the effect of cuts to the pharmacy sector. The results are staggering: 36% of pharmacies could be forced to reduce their opening hours; 76% might have to limit currently free services, such as deliveries to housebound patients; 52% could reduce access to the pharmacist; and 76% could reduce staffing levels.

That does not sound like a bright future for community pharmacies to me; that sounds more like putting patient safety and welfare at risk with ill-thought-out plans. Can the noble Baroness say more about the effect of the Government’s plans on areas of greatest deprivation? Has she come across the pharmacy care law, a product of research undertaken by Durham University, considering the relation between community pharmacy distribution, urban areas and social deprivation in England? What evidence can she provide that the targeting of clusters in areas of the highest deprivation will not affect people who need healthcare services the most, and potentially further widen healthcare inequalities?

Can the Minister tell the House about the effect of the measure contained in this Statement on rural areas? We have heard the statement from the Government that no community will be left without a pharmacy. So can the noble Baroness, Lady Chisholm, give a commitment today that no rural area will lose its pharmacy as a result of these measures and tell us what specifically the Government will be doing to deliver on that commitment, as we need more than warm words? Has the Minister considered the impact that these measures could have on other NHS services? How does she square the desire from the Government for community pharmacies to do more to relieve pressure on GPs and A&E services when, as a result of these actions, opening times, services and the viability of these pharmacies could be put at risk?

In conclusion, if in the time allowed the Minister cannot answer all the points that I have raised today, I hope that she will give a firm commitment from the Dispatch Box to write to me and place a copy in the Library.

[Baroness Chisholm of Owlpen]

I thank the noble Lord for his questions. These reforms will make the necessary modernisation to provide the best possible service for the patient. He mentioned the problems with pharmacies closing and asked where that was going to leave us. We are investing £112 million to deliver a further 1,500 pharmacies in general practice by 2020. The NHS England pharmacy integration fund will be focused on the deployment of clinical pharmacies and pharmacy services in the community and primary care settings, including groups of general practices, care homes and urgent care settings, such as NHS 111. This will improve access for patients, relieve the pressure on GPs and A&E departments, ensure optimal use of medicines and derive better value, improving outcomes for patients.

The noble Lord also asked about pharmacies in deprived areas and rural communities. That is why we are setting up the primary access scheme and are today publishing the list of those pharmacies that will be eligible for funding from the pharmacy access scheme. These pharmacies will be protected from the full effect of funding reductions, and the scheme will include a review process to deal with any inaccuracies in calculations or any unforeseen circumstances. I hope that that answers the noble Lord’s questions.

Community Pharmacy

Lord Kennedy of Southwark Excerpts

Monday 17th October 2016 Lords Chamber

[Lord Kennedy of Southwark (Lab)]

My Lords, I thank the noble Baroness for repeating the Answer to the Urgent Question that was given in the other place earlier today. It is much appreciated by me and other Members. The stated aim of the Government has been to put pharmacies at the heart of the NHS. However, the proposals here will have serious and far-reaching consequences for patients, local communities and the NHS. Can the noble Baroness tell the House when we can expect to see the full impact assessment of these proposed cuts? What steps have been taken to ensure that the pharmacy access scheme is available to all community pharmacies based on the size and need of the population they serve? Does the noble Baroness see the contradiction in claiming to put pharmacies at the heart of the community while implementing arbitrary cuts? Finally, what steps is she taking to prevent the closure or the reduction of opening hours of community pharmacies?

[Baroness Chisholm of Owlpen]

I thank the noble Lord for those questions. The decision on the impact assessment has obviously not been made yet because the Government are thinking about the problems that have just arisen due to the PSNC not accepting the decisions that we thought had been made. There is no reason why this package should in any way affect the efficiencies of pharmacies at the moment. It is important to remember that the Government fund community pharmacies to the tune of £2.8 billion, and the average pharmacy receives £220,000 per year in NHS funding. We believe that the sector, which is made up of private companies that are often densely clustered together, can withstand this, and that the quality of services provided to patients will not be affected as a result. We know that 40% of pharmacies are in clusters of three or more, which means that two-fifths of pharmacies are within 10 minutes’ walk of two or more other pharmacies.

Electoral Status: Online Access

Lord Kennedy of Southwark Excerpts

Wednesday 15th June 2016 Lords Chamber

[Lord Bridges of Headley]

The noble Baroness makes an extremely good point and it is one that I have raised with officials. Electoral registration officers are able to accept applications in person or on the phone, and Electoral Commission guidance encourages them to offer this service to those unable to make an online or paper application for any reason in order to meet their equalities obligations. As I said, the noble Baroness makes an extremely good point and it is one that I am convinced the Electoral Commission will heed.

[Lord Kennedy of Southwark (Lab)]

My Lords, I refer noble Lords to my declaration of interests: I am an elected councillor for the London Borough of Lewisham. What plans do the Government have to ask organisations such as the Post Office, the Department for Work and Pensions, the DVLA and HM Passport Office to help people to get on to the electoral register by asking the people they come into contact with whether they are registered to vote and pointing out the benefits, such as an improved credit rating, with information on their forms and a link to the site to register to vote?

[Lord Bridges of Headley]

The noble Lord makes a good, practical point. I have had conversations with other agencies across government about precisely that, and we are actively considering how we can use the regular communications that government undertakes with individuals. However, I am told that, where this has been piloted in the past, there has been a problem with mixed messages—in other words, a call to action to do one thing can be confused with a call to action to do another. But the noble Lord is absolutely right and it is a matter that I continue to look at.