House of Lords
Monday, 16 October 2006.
The House met at half-past two of the clock: the LORD SPEAKER on the Woolsack.
Prayers—Read by the Lord Bishop of Newcastle.
Iraq and Afghanistan: Military Casualties
My Lords, since 1 October 2005, 36 British forces personnel have died in Afghanistan, of whom 18 were killed in action,14 were fatalities on an RAF Nimrod, and four died from other causes. Twenty-four died in Iraq, of whom 23 were killed in action. In the period 1 October 2005 to 30 September 2006, 25 personnel were seriously or very seriously injured on Operation HERRICK, and 14 on Operation TELIC. Of these, nine from Operation HERRICK and five from Operation TELIC were still hospital in-patients more than30 days after first being declared casualties. Casualty figures for October 2006 will be published next month.
My Lords, I am grateful for that reply. Is the Minister aware that, sadly, there is some scepticism about the accuracy of the figures that the Government have released in this matter, or perhaps, to be fairer, about the way in which serious injury at least is defined? Will he publish a more detailed account of the injuries and deaths that have occurred in the circumstances that I have described so that we can all know for sure exactly how the figures that he has given were arrived at?
My Lords, I recognise that there is concern. My understanding is that that concern centres on the perceived difference between our forces and, for example, the US forces in the relative numbers of those killed in action to those wounded in action. I will see what further detail we can present, taking into account medical confidentiality and so forth, but we must recognise, when we compare the UK and the US, that there are real differences in NATO in the definitions that are used and in the way in which coalition forces record the wounded. There are also differences in the intensity of operations that are carried out, which are reflected in differences in the ratios.
My Lords, when I was a soldier, we used to have a saying, “Big thumbs on little maps; that’s the way to kill the chaps”. I intend in no way to second-guess the decision of commanders on the ground, but willthe Minister confirm that, when we moved into Helmand province, the highly successful policy that we had been following of “take, hold and build”—that is, rebuild the administration and reconnect the infrastructure—was changed in favour of a forward-base policy? Will he tell us the reasons for that, and will he reassure us that those reasons were military, not political?
My Lords, the noble Lord is correct in that there was a change early in the campaign in terms of the support for certain northern outposts in Helmand province in respect of requests from Governor Daud, who wished us to ensure that the rule of law and local governance was maintained in those areas at an early stage of the campaign. That has proved to be successful. It has been a hard battle, and we need to recognise the courage and dedication of those men who so fought. But it has been effective in those northern towns, which are regarded as a bellwether for the area, and we can build on that success over the next six months.
My Lords, as I said last week in answer to Questions, personnel who are wounded in operational theatres are treated in military field theatres in Iraq or Afghanistan and, when they are brought back to the United Kingdom, they are cared for in NHS units throughout the country. In doing that, we make sure that they get the best possible care because, thankfully, we have a small number of personnel who need to be cared for in this way.
My Lords, I am grateful to my noble friend for raising that point. As I have said, the numbers that we have are, thankfully, so small that it would not be viable for us to have a dedicated military hospital. To give noble Lords some idea, I should say that, as of this lunchtime, we have a total of 21 in-patients in all the Birmingham hospitals, including 12 people in Selly Oak Hospital. It would not be viable for us to hold these people in a military hospital because the throughput would not enable us to maintain the skills of surgical staff or provide the best possible care.
My Lords, in his answer of last Tuesday on hospitals, the noble Lord said that,
“the level of care that we provide for our service people is admirable”.—[Official Report, 10/10/06; col. 121.]
How does he reconcile that with the criticism made by the Chief of the General Staff, who I understand enjoys the complete and full support of the Prime Minister, in his Daily Mail interview on the arrangements for the injured who come back to the United Kingdom?
My Lords, I have read carefully the transcript of the Chief of the General Staff’s interview with the Daily Mail, in which he made several very positive comments about the level of care provided to our service personnel in Selly Oak. It is important for us to emphasise the practicalities of the situation. If we are to provide the best possible care for our people, using the full range of specialist facilities available in the modern NHS, that must be within the NHS units, as I have described.
My Lords, I shall write to the noble Lord and place a copy in the Library, because this is a complex area. There are a number of definitions, which it is important for us to fully understand. In terms of the differences, there is a programme going on in NATO to harmonise the standards in order to enable us to make the comparisons. I understand that it will take NATO some time to reach that position.
My Lords, does my noble friend agree that the operation in Afghanistan would be carried out more quickly, efficiently and effectively if our NATO allies, who intimate that they will support the effort in Afghanistan, came up with the troops? Would opposition spokesmen not be better employed, instead of making niggling attacks on the British Government, trying to encourage some of our NATO allies to put the troops on the ground and get the conflict over as quickly and effectively as possible?
My Lords, we are into the eighth minute.
Lebanon: EU Interim Intervention Force
My Lords, the United Kingdom welcomes the progress being made in Lebanon towards the implementation of UNSCR 1701. The cessation of hostilities has continued to hold. Israel has withdrawn from Lebanon, apart from the divided village of Ghajar, and the Lebanese army is now patrolling the Blue Line supported by a strengthened UNIFIL. EU member states are leading on the UNIFIL deployment, and the EU is also assisting the Government of Lebanon with border security, training and equipment. The United Kingdom has allocated £2.5 million as part of this effort.
My Lords, I thank the Minister for that Answer. These are national contingents, of course, but they are from EU and other countries. Is the Minister confident that this is going to work this time, bearing in mind all the setbacks of the past? I am sure that he would agree that we would not want any Jericho jail débâcles in this case—it is on a much bigger scale anyway. Regarding the European countries that are there and Mr Solana’s strenuous efforts to get co-ordination and make sure that this does hold firm, is the Minister confident that it will stand as an agreement against Israeli intransigence, against further attacks by Hezbollah on Israeli civilians and against repeats of the rather shaming US/UK complicity when they tried to delay the start of the ceasefire at the end of July?
My Lords, let me start by saying that I do not accept the last assertion at all. On the substance of the noble Lord’s question, it is undeniably true that the position is now better as a result of the deployment, as is the capacity of the Lebanese Government to deploy their forces right through the south of Lebanon for the first time in30 years. I take those to be encouraging signs. I am also encouraged by the number of countries that are now stepping forward with agreements to deploy troops over the next period in addition to the 5,000-plus who are already there. It would probably be a very bold person who said that they were confident that anything would work in the Middle East this time, but we are giving it our very best shot, and that is what we are obliged to do.
My Lords, transit through the airports of the United Kingdom will be undertaken in accordance with international law, as it has been for a very long time. I am intrigued by the question because the Minister responsible for Prestwick airport is the Liberal Democrat Minister in the Government of Scotland. I do not doubt that the Liberal Democrats will have questions that they wish to ask of their own party in Scotland.
My Lords, does the Minister agree that nothing would benefit the future security, stability and economic progress of Lebanon more than a genuine and active attempt by all parties to the road map to move forward the peace process in the Middle East?
My Lords, can the Minister tell us what progress he thinks is being made in the disarmament of Hezbollah? Is it his assessment that, after all the misery, Hezbollah is today weaker after the Israeli invasion or stronger, as many people think? They believe it to be more active and, apparently—according to Mr Nasrallah—with more weapons than when it started.
My Lords, it is hard to make an assessment of whether Hezbollah is stronger or weaker, but I take some comfort from the fact that the Government of Lebanon are now able to patrol, with their own forces, the whole of their territory. As I have said, that position has not existed at any time in the past 30 years. It is absolutely clear from UN Security Council Resolutions 1599 and 1680— apart from Resolution 1701 most recently—that there is an obligation on Hezbollah to disarm. There are requirements on the United Nations forces—I accept that they have not yet done this—to help to achieve that disarmament. Let me just add this: in the acceptance by the Government of Lebanon of the full terms of those United Nations Security Council resolutions, Hezbollah Ministers in that Government did not dissent from the requirement to disarm.
Agriculture: Hill Farming Allowance
My Lords, as at 12 October, the Rural Payments Agency had made partial or full payments to 91 per cent of eligible claims for the 2006 hill farm allowance. The remaining payments are being dealt with as quickly as possible. As far as the 2005 hill farm allowance payments are concerned, 99.7 per cent of eligible claims have been met in full.
My Lords, I am grateful to the Minister for that reply. Will he continue to prioritise the hill farm allowance payments? He acknowledged on 10 May this year that those,
“in receipt of the hill farm allowance are probably farming on some of the most difficult areas and are not the wealthiest of farmers”.—[Official Report, 10/5/06; col. 902.]
Farmers who have not had their hill farm allowance—in the Lake District, in particular—are suffering hardship. Could the Minister do his best to get their payments expedited?
My Lords, yes, we did prioritise at that point. That is the reason we have got to 91 per cent at present. Some difficulties have arisen in some areas, but there are fewer than 1,000 claims now to be met in full. There are some issues relating to the RPA in regard to common land, but there is a dedicated team still working on the matter. I am not going to give a date by which we will pay it because no one will believe me, but we are working on it as quickly as we can.
My Lords, does the Minister realise what a lack of hill farmers could do to the countryside, particularly in the Lake District? It is essential that they go on farming that area. It is all very well to talk about 99.1 per cent—or whatever it was the Minister said—but what is that in numbers, how much is owing to the farmers and why cannot he give an answer now as to when they will be paid when the matter is over a year old?
My Lords, the Question relates to two years; I gave the figure for 2005. Of the eligible claims, 99.7 per cent have been met in full. That would be some £27 million—or, rather, the budget was£27 million. I do not know, but the 0.3 per cent may be tied up in issues relating to liquidation, change of ownership, probate—the normal, run-of-the-mill things that cause slight delays. I apologise for the0.3 per cent, but it is only 0.3 per cent. We are at91 per cent for 2006. Of course, the 2006 payments for the hill farmers have been dependent on the 2005 single farm payment. That is probably the main reason for the delay, and that is why there is a dedicated team. As to the actual figures, £20.8 million has been paid out to 9,598 claimants as of12 October. That is an average of about £2,000 each but, of course, if your total income is only about £5,000 as a hill farmer, it is a substantial amount. We understand how serious it is.
My Lords, does the Minister acknowledge that the previous week, on9 October, there were 2,153 hill farmers not paid? He cited a figure of 9,590, or thereabouts, who had been paid as of now. The hardships sustained by those hill farmers are enormous, and the matter needs to be expedited rapidly because of the cash-flow implications at this time of the year, when winter feeding on farms commences in the hills.
My Lords, I take the noble Lord’s point. In order that there should be no misunderstanding about this, I can say that there were 11,687 claims: 364 were withdrawn and 797 were rejected, leaving 10,526. We have paid some £20.8 million on 9,598 claims. There were 2,000, but the total figure, with 300-odd withdrawn and almost 800 rejected, leaves us with fewer than 1,000 eligible claims still to be paid.
My Lords, are the figures for hill farmers who are due their money in addition to those for the RPA money that has not been paid out on the single farm payments, or are they included? Can the Minister give me any idea of when he will be able to respond to me in regard to at least four individual cases that I have raised with him of farmers who have not received any help from the Government?
My Lords, as to the latter point, which the noble Baroness raised with me last week, I think two have been replied to—we will probably send copies of the letters that she has already seen—and we are actively looking at the others.
The issue must not be confused: the hill farm allowance is not the single farm payment. Most hill farmers will have received a single farm payment or will be eligible for it. I am answering the Question. I am not going down the road today of answering questions about single farm payments because the Question was about the hill farm allowance. We have enough trouble with the single farm payment without me coming here and answering one question with information relating to another. Some people are owed both. That is the point. With regard to the very small claims, I suspect that some will be owed both.
My Lords, we are extremely apologetic, and I mean that sincerely, for the way in which the single farm payment has been introduced. It has been less than successful: promises were made and not kept; people were told they would get money but it did not arrive; questions were not answered; the wrong maps were sent out; and the forms were not properly pre-populated. But by the end of the legal window, 30 June, when we were required to pay out 96.14 per cent of the money—about £1.5 billion—we had actually got within 1 per cent of that. We now have to deal with the long tail for 2005, and at some time we will have to turn our attention to 2006, which will probably not be much better than 2005.
My Lords, the devolved Administrations in Scotland, Wales and Northern Ireland use a purely historic system of organising the single farm payment. That decision was not taken for England. They are totally different systems, even though they all come within the ambit of the common agricultural policy. It is a good point about hindsight and what might have been done, but I am dealing with the present and the future. There are enough people, whether it is the Select Committee or the National Audit Office, looking at what has happened over the past two or three years with the decisions made on the computer systems, the business plan, and the principal decisions for me not to get involved. I am interested in the present and the future; I cannot change the past. I have to work with the system that was introduced.
My Lords, the Minister said that nearly 800 forms were rejected. Is that just because of a minor box-ticking error? I know that some farmers have had their claims rejected. The forms are very complicated—only one box need be wrong and the entire claim can be refused. Will the RPA please start looking more kindly on people who are not used to doing this sort of complicated paperwork?
My Lords, the hill farm allowance is public money, half of it from the European Union, and it was subject to the auditors and the rules. There are appeal processes, but I am not aware of any major dispute about the rejected claims. The words of the noble Lord, Lord Dixon-Smith, who is in his place, ought to be emblazoned above every farmyard’s accountant’s office. I said I wanted them put in a leaflet, if possible. He said the best value-for-money thing he ever did as a farmer was to fill in his Defra forms.
My Lords, the single farm payment was not introduced throughout the European Union in the same year, but Germany introduced it and met some difficulties. I understand that a team from the Rural Payments Agency has been in discussion with our German colleagues to find out what went wrong there so we can learn from their experience. All EU countries will introduce it in a different way. It has not been plain sailing. I understand that the French are starting to do it this year, using a system that is different from ours but conforms with the agreement that they have with the European Commission.
My Lords, it may have something to do with the system that was introduced. I am not complaining—there is plenty of evidence that, once we can get the English system working in the long term, it will be far superior to what is involved for farmers in the devolved Administrations.
My Lords, the Government’s assessment of future climate change comes from the Intergovernmental Panel on Climate Change’s 2001 report, which indicated that mean global temperatures will rise between 1.4 and 5.8 degrees centigrade above 1990 levels by 2100. This will result in rising sea levels and more extreme weather, with increased risk of severe flooding. For the UK, the UK Climate Impacts Programme’s scenarios project warmer and wetter winters and hotter and drier summers, with more extreme heatwaves.
My Lords, I thank my noble friend for that reply, but does he agree that it is difficult to look at the situation 100 years from now with any certainty of what may happen in reality about climate change, as well as many other matters? Given that we contribute about 2 per cent of greenhouse gas emissions and China, the United States and India contribute about 70 per cent, why are we making our contribution appear so important? Since global warming could mean a warmer Britain and could even be welcomed, as we have seen this summer, why should we not go along with the consensus, rather than wishing to be a world leader on climate change, as the Secretary of State for Environment, Food and Rural Affairs said we should be last Thursday?
My Lords, being a world leader will actually be good for business as well as meaning that are taking responsibility for looking after the planet. We will not be here in 100 years, but others will, and we have a responsibility if we know something is happening out there to do something about it. I would invite anyone who has not seen it to go and have a look at Al Gore’s film, “An Inconvenient Truth”.
There are assessments that say that the UK will get hotter, but one aspect of climate change could be the slowdown or possible stopping of the North Atlantic Ocean thermohaline circulation of the Gulf Stream. I assure my noble friend that that would not lead to us in the UK just worrying about cold winters; we would be a lot colder than we are now. In other words, the predictions go both ways. If climate change stopped the circulation in the Atlantic of the Gulf Stream, we would be in really serious trouble. The predictions are there, and the situation has been assessed by the scientists. It is not simply something that has happened in the past that comes around every few hundred years. There is enough evidence that human behaviour has changed what happens on the planet; therefore, we have to use human behaviour to try to rectify or take account of that.
My Lords, with all the risks that the Minister explained in his first Answer of rising sea levels and flooding, why have the Government cut the budget for flood defences and adaptation work to Natural England and other such bodies?
My Lords, have the Government yet found a causal link between CO2 levels and global warming? There were periods at the time of the Romans and in the Middle Ages when the weather got very much hotter and at that stage, of course, CO2 levels were insignificant.
My Lords, there is quite a bit of science to this, and I am an engineer not a scientist. People have claimed that these cycles have come and gone over the years, and I understand that Milankovitch, the Serbian mathematician, had a look at the way in which the planet oscillates from time to time and the orbit changes very slightly—these things happen maybe every 100,000 years. The fact is that that has been discounted. Other scientists—now there is a consensus—would say that human behaviour is making a difference to the climate. We have a responsibility to push this thing ahead as a world leader. That is our role, and it is one that we gladly share with others.
My Lords, does the Minister accept that our problem really is the speed of change of the climate, which reduces the ability of organisms to adapt to it? Will he also take this opportunity to tell the House a little more about the economics of biofuels? All the evidence is that, when the oil price rises to $70 or $80 a barrel, biofuels become profitable. Given the demand from India and China, $80 a barrel does not seem unlikely. Could he tell the House a little more about what we could do to encourage the use and development of biofuels?
My Lords, I am glad that my noble friend asked that question, although we have had no discussion of it. The fact is that ordinary life need not stop as we adapt to climate change. We have enough evidence to show that in the past few years, between 1990 and 2005, when our emissions fell by 15 per cent, GDP rose by more than 40 per cent. If we can manage the situation, we could have new industries and new products.
With biofuels, I can give an example of how the situation will not shatter our way of life in terms of having to change and adjust. Yesterday, I was a guest of Energy Efficient Motorsport at Silverstone for the British Touring Car Championship. Engines there were running and racing on 85 per cent bioethanol fuels. In other words, not for the first time, British engineers are leading in technology transfer; we are working on fuels that we have grown and that are sustainable and do not damage the atmosphere. That will transfer to ordinary motoring so that others can make use of the land to grow crops and grow our fuel.
My Lords, is not the danger of the Government’s reply in referring to what the situation may be in 2100 the implication that things move quite slowly? Is not the proposal inMr Al Gore’s film that things are actually moving very much faster than was previously thought? I think that the Minister said that the Government’s position was based on assessments made at the 2001 intergovernmental Conference. Would it not be a good idea perhaps to update that, to make people aware that there is a real risk that things are moving very much faster than was previously thought?
My Lords, the noble Lord is bang on. I understand that a review of that is due in 2007, so we will be able to get a new assessment. Also, the economist Professor Stern will shortly publish his report, which he has worked on for world organisations. With regard to the noble Lord’s point about what is happening, one of the examples given is that heatwaves such as the one that occurred in Europe in 2003 are predicted to be a normal occurrence by 2040 and will be considered cool by 2060. The 2003 heatwave, of course, caused over 30,000 extra deaths across Europe due to heat-related mortality. Something is happening, it is happening quickly, and we need to respond to it.
My Lords, it has been assessed that legal requirements will force changes by companies. There is no question about that; getting them todo so voluntarily will probably not work. But, to paraphrase my right honourable friend the Home Secretary, one does not have to love George W Bush to appreciate that American scientists have got nearer to joining the world consensus than they have in the past.
Animal Welfare Bill
My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the amendments for the Report stage be marshalled and considered in the following order:
Clauses 1 to 13,
Clauses 14 to 51,
Clauses 52 to 62,
Clauses 64 to 67.—(Lord Rooker.)
On Question, Motion agreed to.
Violent Crime Reduction Bill
Clause 1 [Drinking banning orders]:
Page 1, line 10, leave out “or disorderly”
The noble Lord said: My Lords, to the select few who remain, I hope to be forgiven if I remind your Lordships of something of the background to drinking banning orders and the basic objection in principle we have to them in the way they are expressed in the Bill.
We recognise that there is a problem with excessive drinking in this country, particularly among young people. However, the drinking banning orders use the machinery of the ASBO. The ASBO is something we have objected to throughout. The drinking banning order is an application to the court—either a magistrates’ court or a county court—by the police or a local authority to obtain an order against an individual whose conduct is disapproved of.
The order imposes,
“any prohibition on the subject which is necessary for the purpose of protecting other persons”.
A civil order is being obtained and therefore the rules that appertain to civil proceedings, in particular the procedures of the court, are not as stringent as they are where criminal charges are concerned. It is possible to obtain such an order entirely on hearsay evidence—the tittle-tattle of the neighbourhood, as it were. It is also possible to obtain that order not because the offensive behaviour is proved beyond reasonable doubt—the ordinary standard in a criminal case—but simply on a balance of probabilities that the behaviour complained of has been established more rather than less. If it is breached in any way, the drinking banning order can be followed by criminal proceedings in the ordinary sense. A breach of a banning order will result in a fine. If that fine is not paid, as sometimes will be the case with people with a drink problem, it can be followed by imprisonment.
The amendment to which I speak seeks to put at least some curb upon the making of these orders. At the moment the orders can be made,
“for the purpose of protecting other persons from criminal or disorderly conduct”.
We are all familiar—some may be more familiar than others—with the normal criminal charge of being drunk and disorderly, but this is “criminal or disorderly”; in other words, disorderly conduct which does not amount to a criminal offence can still provide the foundation for a drinking banning order. We therefore have a combination of things. It is not necessary for the police or the local authority seeking such an order to prove that the person against whom the order is to be made has committed a criminal offence but merely that he has been “disorderly”, whatever that means.
As I indicated earlier, the making of the order is just a step forward to the creation of a fresh criminal offence. If on a balance of probabilities and on hearsay evidence a person, because of his disorderly behaviour, which is not a criminal offence, is made subject to a drinking banning order, he can end up being charged with a crime of breaching the order. He gains a criminal record for conduct that is not criminal at all. By definition within the Bill as it is currently drafted, he is guilty of a criminal offence for breaching an order relating to simply disorderly but non-criminal conduct. That is the point that I make in Amendment No. 1. The same point is made in relation to Amendments Nos. 5, 7 and 15, where the same disjunctive concepts of criminal or disorderly conduct appear.
We think that it is entirely wrong in principle ‘first’ to use such a vague term as “disorderly” and, secondly, since it is almost by definition not criminal conduct, to enter into a procedure which can result in a criminal conviction. I hope that is a sufficient explanation. I beg to move.
My Lords, this Bill is of such moment to the Government that it began a year ago last summer in another place and is now staggering towards its conclusion.
We support measures to give the courts more effective powers to ban individuals from licensed premises if that will materially improve public order. We remain concerned that the measures in the Bill hit headlines in newspapers but do not hit at the underlying causes of public disorder. We do not wish to weaken the impact of drinking banning orders. In Committee, we had a full debate on this, and I tabled amendments at that stage. I approach the debate in a rather different manner to that just espoused by the noble Lord, Lord Thomas of Gresford. Certainly, we do not wish to see the curbs imposed on DBOs that would follow on from the amendment that he has proposed today. We made that clear in Committee too.
It might be for the convenience of the House if I remark here more generally about matters today. We used the Summer Recess and last week to have a series of meetings and discussions with the bodies that will be affected by the variety of measures in the Bill. We have also met the Bill team and Ministers. As a result of those meetings, many of our concerns have either been allayed or, I hope, will be addressed by government amendments and commitments which we anticipate, if all goes well, will be put on the record at the Dispatch Box by Ministers today. On that basis—that is the reason for my silence later—I will be very sparing with some of my comments as we go through our proceedings this afternoon. I give notice that I will not move Amendment No. 6. I hope that Members will not take my silence for the fact that I have nodded off; I hope not, far from it. I shall leap into action when we come to my amendments later. I do not wish to detain the House unduly.
My Lords, I am most grateful to the noble Baroness for her very constructive introduction to business this afternoon. Her use of the word “staggering” towards a conclusion on this Bill was probably an inadvertent pun relating to the matters in hand. We like to think that we are moving to a clinical finish on effective legislation; but descriptions can get lost in translation. I am grateful to her also for her kind comments about the work that has been undertaken during the Recess. I trust that we can make good progress this afternoon on Report. I apologise in advance if some of my explanations are lengthier than they might otherwise have been but that will be because we want to try to address the issues to which the noble Baroness has alluded.
I shall now address the amendment proposed by the noble Lord, Lord Thomas of Gresford. The noble Lord will not be surprised to hear that these amendments do not find great favour with the Government. I hope that he will not take offence at that, but clearly we have a difference of view—a carefully and well understood difference of view. The group of amendments would together have the effect of restricting the circumstances in which an individual can be given a drinking banning order to engagement in criminal but not disorderly behaviour. The House will be aware that amendments on similar lines were proposed in Committee. We have now debated this matter at some length in the other place and in this House.
It is worth emphasising that the latest British Crime Survey tells us that some 24 per cent of people say that people being drunk or rowdy in public places is a “very” or “fairly” big problem in their area. The behaviour of those who misuse alcohol can intimidate members of the public and cause disorder and general nuisance, and we cannot ignore that fact. In Committee, I referred to some examples of what might constitute disorderly conduct but might not necessarily be caught by the criminal law. I mentioned noise nuisance and disturbance, the kicking of dustbins late at night, or shouting or swearing in the street as examples of disorderly conduct. I am sure that many of us come across that sort of thing from time to time.
It is however not the case that any sort of conduct that could be described as someone causing a noise or making a nuisance of themselves could lay that person open to a drinking banning order. The conditions for an order are clearly set out in the Bill: the individual must have engaged in criminal or disorderly conduct while under the influence of alcohol; and as such an order must be necessary to protect other persons from further conduct by him of that kind while under the influence of alcohol.
The Government have sought to explain to both Houses that numerous recent statutes refer to both crime and disorder, including the Serious Organised Crime and Police Act 2005, the Licensing Act 2003 and the Anti-social Behaviour Act 2003. The Crime and Disorder Act 1998 refers to both crime and disorder as distinct concepts. The courts have demonstrated that they are perfectly capable of deciding what does, and what does not, constitute “disorderly behaviour”.
It is important that we do not remove the word “disorderly” from the Bill. We should not lose sight of the aim of this new measure, which is to help achieve a culture change in binge drinking, to discourage unacceptable alcohol-fuelled behaviour, to deal appropriately with such behaviour when it occurs and to protect people from harm caused by alcohol-related disorderly behaviour.
We understand that there is a difference between us. We do not accept the noble Lord’s argument. We think that we have the balance about right on this offence. We know that similar anti-social behaviour measures work well and that there is widespread public support for them. I therefore suggest that the noble Lord withdraw the amendment.
My Lords, I think it was the late, lamented Linda Smith who said that you can’t take ASBOs away from people—it’s the only qualification some of them are going to get. I can see that the DBO comes into that category. It is poor in principle that the Government confuse civil and criminal procedures in relation to both ASBOs and these new drinking banning orders. It is important that criminal behaviour, which carries a public stigma, should be clearly distinguished from other behaviour which—although it may not appeal to everyone and may appear disorderly to some; if it is not criminal—should not be punished as if it were a crime.
I have made my point twice, and made it extensively. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Page 2, line 2, after “considers” insert “appropriate and”
The noble Lord said: My Lords, Clause 1(3) states:
“The prohibitions imposed by such an order must include such prohibition as the court making it considers necessary, for that purpose, on the subject’s entering…premises in respect of which there is a premises licence”
or a club premises licence. The purpose of this small amendment is to provide a check to the magistrates or to the county court where the order is made, not to impose excessive restrictions upon an individual. The use of the word appropriate in the amendment is intended as guidance to the decision taker that it is not enough to impose a simple ban and that it must be considered in all the surrounding circumstances. I beg to move.
My Lords, the amendment seeks to tighten the prohibitions that can be imposed by a drinking banning order. The same amendment was proposed in Committee. Clause 1(3) states that prohibitions by such an order must include such prohibition as the court making it considers necessary on the subject entering licensed premises.
I recognise from our discussion of the amendment in Committee that the noble Lord was seeking to provide guidance to magistrates or the county court on the appropriateness of an order. His intention is to require the court to consider whether the terms of the order are appropriate.
Such a test before a prohibition could be included in an order is unnecessary, because if a prohibition were inappropriate it could not be necessary. I would expect the courts to consider in every case the appropriateness of an order and any proposed prohibition. The drinking banning order guidance that will be published to accompany the measure will make clear the circumstances in which certain prohibitions would be inappropriate. Some of the areas where prohibitions should not be proposed are already provided for in the Bill. I have also given a commitment to this House to include others in guidance—for example, prohibitions should not be imposed if they would prevent an individual taking his child to a place where he may receive medical treatment. Some of those issues were discussed along those lines at an earlier stage. Therefore, I believe that the amendment is unnecessary and I hope that the noble Lord will withdraw it.
My Lords, I am glad to hear that guidance is to be given to magistrates and the county courts on the circumstances in which an order such as this would be made. In the light of that assurance, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Page 2, line 20, at end insert-
“(4A) Before making a drinking banning order, a court must receive a report from an appropriate officer about the proposed subject of the order, which contains information about the subject and, in particular, about whether there is any reason to suspect that he may be-
(a) suffering from substance addiction (including alcohol dependence); (b) a person falling within section 1 of the Mental Health Act 1983 (c. 20) (application of Act: “mental disorder”); or (c) suffering from any other recognised physical or mental illness or condition which could either- (i) affect his ability to restrict his intake of alcohol; (ii) cause him to engage in criminal conduct while under the influence of alcohol; or (iii) affect his ability to comply with a drinking banning order. (4B) In subsection (4A) above “an appropriate officer” means-
(a) where the proposed subject is aged 18 or over, an officer of the National Offender Management Service or a social worker of a local authority social services department; (b) where the proposed subject is aged under 18, a social worker of a local authority social services department or a member of a youth offending team. (4C) If the court determines that the proposed subject of a drinking banning order may be a person falling within subsection (4A)(a) to (c), the court shall not make a drinking banning order unless satisfied, on receipt of medical evidence, that-
(a) his ability to understand and comply with the order will not be significantly restricted by reason of his being a person falling within subsection (4A)(a) to (c); and (b) compliance with the order, either alone or in combination with any other order or sentence to which he is subject, would not have a deleterious effect upon his mental or physical health.”
The noble Lord said: My Lords, this amendment was put forward in Committee. At that time, I understood that the Minister was somewhat favourable to the idea that, before making a drinking banning order, reports should be made to the decision-maker, whether the magistrates or the county court judge. I have repeated it in the hope that I might hear a little more from the Minister on this subject. Again, I look for an assurance that the need for reports will be contained in guidance. If I get that assurance, I shall not pursue this matter further. I beg to move.
My Lords, I hope that I can reassure the noble Lord and I shall take a little time dealing with his amendment for that very purpose.
The amendment would introduce further safeguards to the process of making a drinking banning order. It would mean that any court considering making an order must first receive a report from an appropriate person on the subject’s mental and physical health and on whether he or she has any substance addictions. As the noble Lord said, we have discussed this amendment before, and I assure the House that the Government understand the terms in which it has been tabled. We have also considered the matter further, as I said we would and as the noble Lord alluded to, but we concluded that an amendment was unnecessary, and I shall expand on why we believe that to be the case.
There are two main routes for seeking a drinking banning order. The first is on application to the magistrates’ court. Prior to making such an application, there is a statutory consultation phase. The police would need to consult the local authority, or vice versa, depending on which authority was intending to seek a drinking banning order.
It should be at that stage that an individual’s vulnerability is considered—that is, before an application is made. If the individual is considered to be vulnerable, such as suffering from alcohol addiction or mental health problems, an assessment can be made of his or her circumstances. I have previously mentioned to the House that local authorities have a duty to do that under the National Health Service and Community Care Act 1990. Where appropriate, the necessary alternative support should therefore be provided under the duty of that Act.
Therefore, for drinking banning orders made on application, it is unlikely that an order will be sought for someone suffering from alcohol addiction or mental health problems. In our view, such issues should be identified at an early stage prior to making any application. Where the court has concerns that a drinking banning order may not be appropriate due to an individual’s vulnerability, it can of course decide against an order or seek a report of its own volition.
The second main route where an individual could be subject to an order is on conviction in criminal proceedings. In such cases, the individual is before the court for a criminal offence. The individual’s vulnerability—if the court needs to consider that as an issue—is likely to have been considered in relation to the main offence. It is open to the court to seek a report on its own volition in that respect. In that case, such a report could be a factor in the consideration of a drinking banning order, which would be post-conviction. Therefore, again in this respect, the amendment is unnecessary.
The noble Lord, Lord Thomas of Gresford, asked in Committee, on 26 April at col. 165 of the Official Report, whether it is intended that drinking banning orders will be applied to rough sleepers who are alcohol dependent or drug dependent. I think my earlier points cover that issue. However, with respect to individuals who are dependent on drugs, I can tell noble Lords that drugs do not come within the conditions that have to be reached to apply for a drinking banning order. Those conditions, as set out in the Bill, are that the individual has engaged in criminal or disorderly conduct while under the influence of alcohol and that an order is necessary to protect others from further conduct by him of that kind while he is under the influence of drink. So we do not foresee an application being made for a drinking banning order where the individual is solely under the influence of drugs.
With regard to rough sleepers who are alcohol dependent, drinking banning orders are unlikely to be suitable for someone who has an alcohol addiction problem and this should be identified at an early stage, as I made clear earlier. However, with regard to rough sleepers, noble Lords will want to be aware that in 2003 local authorities were required to develop and put in place homelessness strategies. Under those, they were obliged to take into consideration the needs of rough sleepers within their area. That involved ensuring that appropriate provision is available and encouraging strategic partnership working with other statutory agencies such as healthcare providers, drug treatment agencies, social services and the police, as well as voluntary agencies that work within the sector. Moreover, the increasing involvement of the police in town centre management and rough-sleeping programmes has led to closer co-operation between them and homelessness agencies.
We would expect rough sleepers to be assisted under existing arrangements rather than being given a drinking banning order unless it was appropriate to do so. Although I cannot give an assurance, as the noble Lord requested in Committee, that guidance will provide that a judge must consider whether a report is necessary and call for it, I can give an assurance, as I have done to date, that these issues will be very carefully mapped out and covered in guidance on drinking banning orders. Those issues will be dealt with very clearly and carefully in guidance so that the courts are well aware of what they need to do when considering such issues. I hope that, having heard that assurance, the noble Lord will be encouraged to withdraw the amendment.
My Lords, I am grateful for the very full reply which the Minister has put forward to meet our concerns about the vulnerability of people who might be subjected to drinking banning orders. He has rightly covered the position of drug users and rough sleepers. It seems to me that rough sleepers in particular are inappropriate people to be made subject to such orders because they would be incapable of keeping them and would very quickly end up committing the criminal offences which I have discussed with your Lordships. I am sorry that the wise words of the Minister will not be official guidance, but I hope that much of what he says will find its way—and I see that he nods—into the instructions given to chief police officers and to local authorities when such orders are being contemplated. I hope that no circumstance will arise when inappropriate drinking banning orders are made. On that basis, I am happy to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 3 [Orders on an application to magistrates' court]:
Page 3, line 29, leave out “16” and insert “18”
The noble Lord said: My Lords, I apologise to your Lordships for rising to my feet so much on this matter. We are concerned that applications can be made for individuals who are aged 16 or over. Ever since 1933, the courts have drawn a distinction between adults and juveniles under the age of 18—at first it was under the age of 17 but that age has been raised. It is regrettable that again a route to a criminal conviction is opened up to juveniles in this age group. I will no doubt be unable to convince the Government of that, but I put it forward again as a matter of principle. Although I appreciate that, unfortunately, a lot of binge drinking is done by young people in that age bracket, I do not think that drinking banning orders leading to conviction are the proper way of dealing with their problems. I beg to move.
My Lords, if a court has to consider, some guidance ought to be given about how it should consider. I think that this is necessary. I would have supported the first amendments but I was engaged by the noble Lord, Lord Bach, outside the Chamber.
My Lords, perhaps I should talk to the noble Lord, Lord Bach, about that, or a drinking banning order—but no!
The noble Lord, Lord Thomas of Gresford, is right that he will not be able to persuade me, and for good reason. Noble Lords will have heard similar arguments put before and, as I have explained before, our consultation paper Drinking Responsibly proposed that drinking banning orders should apply to those aged 16 years or older. That basically reflects published evidence from the Prime Minister’s Strategy Unit, in the alcohol harm reduction strategy’s Interim Analytical Report, that those aged 16 to 24 are more likely than all other age groups to binge drink. The British Crime Survey tells us that, in alcohol-related assaults, offenders generally tended to be aged 16 or older. The noble Lord, Lord Thomas, generously accepted that that is an important point.
Findings on underage drinking in the 2004 Offending Crime and Justice Survey, published on2 June 2006, provide further evidence in support of setting the age at 16 and above. The survey looked at the prevalence and patterns of underage drinking and the link between underage drinking and offending and disorderly behaviour. It found that 59 per cent of 16 to 17 year-olds reported having tried to buy alcohol from pubs and bars and just under half—47 per cent—from shops in the past 12 months, and most had been successful on at least one occasion. The survey also reported that those who drank alcohol once a week or more committed a disproportionate volume of crime.
The Government believe that raising the age at which an order can apply to 18 does not address the real problem of underage drinking and would enable young people to escape the consequences of their actions. Indeed, the amendment fails to recognise that an order may be appropriate to protect other persons from this type of conduct. I would therefore not want to undermine the use of drinking banning orders by restricting them to those aged over 18.
Amendment No. 11 would limit fines for breach of a drinking banning order to those aged 18 and over. As I explained in Committee, I cannot see the benefit of the proposed amendment. It would mean that those aged under 18 would not be punished for breaching an order, and I do not think that that is a desirable position. I do not want to see anything that undermines the effectiveness of drinking banning orders. These amendments would do that, and I urge the noble Lord not to press them this afternoon.
My Lords, this is another issue on which we will not agree. The policy of my party is to protect young people, and that is what has led to the next amendments that I will move. I am sorry that there is a breach of that principle by these clauses. However, I appreciate that it would be fruitless to take the matter any further. I therefore beg leave to withdraw the amendment.
[Amendment No. 5 not moved.]
Clause 4 [Orders in county court proceedings]:
[Amendments Nos. 6 and 7 not moved.]
Clause 7 [Supplementary provision about orders on conviction]:
Page 6, line 17, leave out subsections (8) and (9).
The noble Lord said: My Lords, at this stage the House might have expected to have heard from the noble Baroness, Lady Anelay, but since she has not moved Amendment No. 6, it is me again.
This is the “name and shame” part of the Bill. The idea is not simply to make an order, but to publicise it in the press and, I presume, by photographs and posters, if necessary. That may be appropriate for an adult, but we do not think it is appropriate for juveniles.
I have already referred to the Children and Young Persons Act 1933. In that Act, significant restrictions were placed on the report of proceedings in which children and young people were concerned. Your Lordships will be aware that even in the most serious cases, the identity of young people was protected both at charge and after conviction. Only with charges such as murder or rape does the judge permit the identity of a person under 18 to be disclosed to the press. That being the case, why do we have the change in the Bill?
I was looking to see what was said about publicity in 1932, when the Children and Young Persons Act passed through the House. I could not find the precise passage where it was discussed, but to give your Lordships some idea of the position at the time, the Act abolished the whipping of young people. That received a certain amount of opposition in your Lordships' House. My noble friend the Earl of Glasgow’s forebear, the then Earl of Glasgow, said:
“whipping would be a better thing for a boy than being sent to prison. I am quite sure that the noble Viscount”—
that is Philip Snowden, for the benefit of Members opposite—
“himself would never have reached the high position he has reached in the estimation of his countrymen if it had not been for castigation in his youth. What is there against whipping? They say that it has a hardening effect, but when I look round your Lordships' House—and I doubt that there is any one of your Lordships who has not been whipped at some time of his life—I see no sign of that hardening process among your Lordships”.—[Official Report, 26/5/32; col. 486.]
I think I can say the same thing today.
That was the climate in 1932 and in that climate it was decided that it was inappropriate for young people to be subject to publicity and to have their names and identities known. In discussion of that Bill, their Lordships were concerned to reform young people rather than to punish them. Juvenile courts came into being and the procedures were altered to deal with them. The lack of publicity was an important part of it all.
This is really red-top newspaper stuff—to publicise young people who are perhaps guilty of disorderly conduct; having their photographs put up in the local pubs or published in the newspaper. Will that reform them? Will it make them better people? Will they be less likely to offend in future? I very much doubt it. I think that the effect of publicity of that sort could be twofold. It could be seen as turning the individual into a local media personality, so that he can bask in the glow of the publicity. Alternatively, it could be seen to be something that damages his future education and career. Whichever it may be, it is wholly undesirable. I respectfully urge on your Lordships that it is appropriate to remove the naming and shaming provisions from the Bill, both on the making of the order—or rather, on conviction following criminal proceedings—and in any other respect. I beg to move.
My Lords, we had a similar debate only last week in your Lordships’ House when we discussed the Police and Justice Bill. We did not have the benefit of the historical discourse given by the noble Lord, Lord Thomas of Gresford, which I am sure we all found enlivening and, in its way, entertaining. I am tempted to talk about whipping, although perhaps it is inappropriate. In any case, I got the message from the noble Lord’s story to us all.
The amendment seeks to reimpose automatic reporting restrictions, in the terms set out by the noble Lord, in proceedings for an order on conviction involving young people and where there is a breach of an order by a young person. As I said, we debated this last week and on several other occasions, and we on the government Benches take a very different view. In the past, I sought to explain that we are not creating a situation in which all cases would be automatically reported. Although we are reversing the presumption, we are not preventing the courts imposing reporting restrictions where appropriate. It is for the courts to make that judgment. The important point here is that communities that become involved in laying the ground for a form of social action, of which drinking banning orders are part, need to be able to see and to understand that action is being taken on their behalf against behaviour that can blight whole neighbourhoods. In addition, we argue that the effectiveness of a drinking banning order and the ability to enforce it will frequently depend on people knowing about the order and its terms.
The noble Lord talked about individuals becoming local anti-heroes and media personalities in their neighbourhood. I doubt that that is likely; it has certainly not occurred greatly where I live as a result of anti-social behaviour orders. The publicity surrounding those orders has, in most instances that I can judge, been beneficial, because people have felt that at last the courts are doing something that represents their side of the argument. Of course it is possible that the knowledge distributed about someone’s behaviour may make them reflect more on that behaviour, which in itself is no bad thing. It may well make young people think of the possible longer-term consequences for their employability and for their set of friendships and social relations.
Anti-social behaviour orders have certainly had some value. A test case in the London borough of Brent—R (on application of Stanley, Marshall and Kelly) v the Metropolitan Police Commissioner—upheld the principle that publicity is necessary to help to enforce an order. It recognised that, by informing local people of the prohibitions imposed by the order, they could identify and report breaches to the police. We recognise, however, that any publicity must be necessary and proportionate to the identified aims and impact of the order. In some circumstances, particularly where publicans and local people need to know and understand to whom an order applies, there will be value in publicity.
I come back to the point that we do not want to undermine the effectiveness of drinking banning orders by accepting the amendments. Accepting them would have an adverse impact on our policy objectives. The noble Lord takes a different view, to which he is entitled, but I urge him to reconsider his position for the sake of the effectiveness and completeness of the policy that we are working through in the legislation and to withdraw his amendment. I cannot see that those amendments have merit. Where courts think that it would be inappropriate, they are of course entitled to take the view that publicity given to drinking banning orders for young people is wrong, inappropriate or unnecessary, and are at liberty to follow their own judgments.
My Lords, perhaps the Minister will help me with a matter of interpretation. Under Clause 4(4), as regards,
“an individual who is not a party…engaged in criminal or disorderly conduct”,
disorderly conduct cannot be criminal, as a matter of interpretation. Therefore, you are concerned with a person who has been engaged in conduct which isnot criminal, as a matter of interpretation. Under Clause 7(7), a drinking banning order takes effect on the day on which it is made. But what about the appellate process from a decision of the county court? In my day, it was in the Green Book, or something like that. Has that all gone? Is there no procedure for appeal from the county court? If it takes effect on the day that it is made, does that mean you prescribe the procedure for appeal? I do not know: perhaps the noble Lord will help me.
My Lords, as ever, I am very grateful for support from the noble Lord, Lord Campbell of Alloway, on this point. He emphasises the point that I made on Amendment No. 1. Unhappily, he was unable to make it in relation to that amendment. It is a question of balance. The Government have a favourite phrase, “We think we have got it just about right”. I recall once speaking to Lord Williams of Mostyn, for whom this was a very favourite phrase. He reminded me of a man riding a bicycle on a tightrope in spangled tights—I must say, he was not very impressed with that analogy.
I do not think that the Government have got the balance right in this instance. For 70 years we have had a principle that, except in exceptional cases, there should not be publicity—naming and shaming—of people under the age of 18, as it now is. I do not object to publicity for those over the age of 18 who are made subject to drinking banning orders. I do not suggest for a moment that, if necessary, their photographs should not be put up in public houses as being subject to such an order and that the prohibitions which apply to them are known tothe public. That is not my point. My point is that the balance can be properly struck only if some protection remains for juveniles. I feel very strongly on this and I am not able to withdraw the amendment. I propose to test the opinion of the House.
Clause 9 [Interim orders]:
Page 8, line 1, leave out “clerk” and insert “proper officer”
The noble Lord said: My Lords, these minor and technical changes clarify aspects of the Bill. Amendment No. 13 deletes Clause 11(11); the subsection provides that an order made by the Secretary of State under Clause 11 specifying persons who may bring proceedings for breach of a drinking banning order is subject to the negative resolution procedure. It has been deleted because it was considered to be neater for the procedure to be governed by the general order- and regulation-making provisions under Clause 14. Amendment No. 16 to Clause 14 ensures that this is the case. These amendments ensure that an order made under Clause 11 will continue to be subject to the negative resolution procedure.
Amendment No. 9 amends Clause 9(5) to replace “clerk” with “proper officer”. Permission of the proper officer is therefore required if an application for an interim drinking banning order against an individual is to be made without notice being given to that individual and heard in the absence of that individual. Under Clause 14, “proper officer” means the justices’ clerk in relation to a magistrates’ court, and the clerk of the court in relation to any other court.
Amendment No. 14 seeks to clarify when a course provider must issue a certificate or notice on being asked to by the individual. The course provider must give a certificate unless the individual who undertakes the course fails to pay the course fees, attend the course as instructed or comply with any other reasonable requirement of the course provider. If the course provider does not issue a certificate, they must give the individual written notice of that decision and their reasons. The amendment makes it clear that the course provider must issue a certificate or notice before the end of the 14th day beginning with the day on which any request to do so is made by the individual.
Under Clause 13(6), the Bill already provides that where an individual is given a notice or his request for a notice or certificate has not been complied with, he may apply within a certain period to the court for a declaration that a certificate has been incorrectly withheld in contravention of Clause 13(3). Ifthat is found to be the case, the court can, under Clause 13(7), decide that the individual has satisfactorily completed the approved course and may therefore receive a reduction to the length of the drinking banning order. I beg to move.
On Question, amendment agreed to.
Page 8, line 19, at end insert-
“( ) The Secretary of State must issue guidance setting out factors that the court should have regard to in determining whether applications for the renewal of orders under this section should be granted.”
The noble Baroness said: My Lords, it is open to the court to continue to renew interim drinking banning orders without a final hearing ever taking place. When we debated this in Committee on26 April, at col. 197—a long while ago—the Minister agreed that if this were to occur, it would be an abuse of process and a cloak for inefficiency. He said that getting this matter addressed through guidance would be on his “to do” list. It is now October, and I have moved this amendment to ask the Government what progress they have made in producing draft guidance on this matter and whether the House will be able to see it before Third Reading.
In an idle moment in August, I went through Hansard trying to add up the number of times the Minister told the House that guidance would be produced. There were not enough idle moments, even in August, for me to list all the occasions on which he said that. However, we should be given an indication of the guidance with regard to interim drinking banning orders, and I hope that we will be able to see it before the Bill finally leaves this House. I beg to move.
My Lords, I am glad that the noble Baroness found plenty of other things to do in August; she probably had a much happier time not using all her downtime to seek out all the references to guidance that have been made during the Bill’s proceedings.
Amendment No. 10 seeks to ensure that guidance will be issued to set out the factors that the court should have regard to in respect of whether applications for renewal of an interim order should be granted. I understand that the concern arises that courts could continue to renew interim drinking banning orders without a final hearing ever taking place. The noble Baroness has rightly encapsulated my own concerns about this matter at an earlier stage.
The maximum duration of an interim drinking banning order is limited to four weeks. An interim drinking banning order may be renewed once or more but not for longer than four weeks from the time when it would otherwise have expired. It must in any event cease to have effect on the court’s decision on whether to make a drinking banning order. While it is technically possible for an interim drinking banning order to continue to be renewed, this should not happen in practice. It hardly seems the best use of the courts’ time—or, indeed, the police or a local authority’s time—and it seems extremely unlikely that the courts would continue to renew interim drinking banning orders.
It is right that the interim process should be exactly that and that authorities are obliged fully to satisfy the court by making a proper application for a permanent drinking banning order. Drinking banning order guidance will make this very clear. We have already given a commitment to issue such guidance. This is why an amendment which seeks to ensure the Secretary of State issues guidance is unnecessary. I do not see any need for a reference to guidance in the Bill. I should also add that the Government have given a commitment to the Lord Chief Justice that we will consult the judiciary on the draft drinking banning order guidance.
There are also several safeguards in place. An interim order will not take effect until it is served personally on the subject. Court rules will make this clear. Applications can be made to vary or discharge an interim drinking banning order if an individual believes that it has been wrongly imposed, at which point the court would have to hold a hearing to consider whether to vary or discharge the interim drinking banning order. As I sought to explain in Committee, the detail for such orders will be set out in the magistrates’ courts rules and in guidance, so coverage of this issue is very much on our “to do” list.
I can understand the noble Baroness’s irritation but I hope that she does not feel the need to press the amendment this afternoon.
My Lords, the “to do” list keeps getting longer but with this Bill it never actually gets done—that is the difficulty. The only crumb of comfort—a very small one—is that the Minister says that a commitment has been given to the Lord Chief Justice that the judiciary will be consulted on the draft drinking banning order guidance.
The Minister says that it would be bad practice and wrong to take up the court’s time continually to repeat the process and to have the four-week drinking banning order renewed. My problem is that inertia could be built in. I would not wish to see court time wasted in that way. As the Minister knows, my concern with several unconnected measures in this Bill is that there could be inertia when penalties simply get built into the system and continue without the proper review, and that the final hearing is the right way to deal with those matters. But this is not a matter that I would press further. I hope that the “to do” list does not grow but gets done. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 11 [Breach of drinking banning orders]:
[Amendments Nos. 11 and 12 not moved.]
Page 9, line 36, leave out subsection (11).
On Question, amendment agreed to.
Clause 13 [Certificates of completion of approved courses]:
Page 11, line 17, leave out from “discharged” to end of line 18 and insert “before the end of 14 days beginning with the day on which any request to do so is made by that subject”
On Question, amendment agreed to.
Clause 14 [Interpretation of Chapter 1]:
[Amendment No. 15 not moved.]
Page 12, line 47, after “under” insert “section 11 or”
On Question, amendment agreed to.
Clause 15 [Power to impose charges on licence holders etc. in zones]:
Page 13, line 20, at end insert “, provided that no charges shall be payable by any persons or clubs unless the local authority is satisfied on the basis of evidence that it is reasonable to impose charges on those particular persons or clubs”
The noble Baroness said: My Lords, I shall speak also to Amendments Nos. 19, 20, 21 and 28.
Amendment No. 17 would add a test of reasonableness into the provisions that would empower local authorities to impose extra charges on licensed businesses that fall within an alcohol disorder zone. The drafting in Clause 12 regarding alcohol disorder zones contains a fundamental flaw, as there is nothing in the scheme in its current form to prevent a local authority imposing blanket charges on licensed premises and clubs in an alcohol disorder zone regardless of the degree to which the premises contribute to the disorder. In our view, that is far too arbitrary, and is potentially extremely unfair to those businesses that, for example, close well before the usual times when alcohol-fuelled disorder may take place. The amendment we propose would impose a requirement on the local authority that it must be satisfied it is reasonable to impose charges on particular clubs or people. This provides a safeguard for individual businesses that are entirely innocent of contributing to or causing alcohol-related crime.
In Committee the Minister objected to this on the basis that we would be placing an undue burden on the local authority. We disagree. Although of course we acknowledge that establishing a causative link between individuals misbehaving due to excessive drink and specific licensed premises might not be straightforward, it is not unduly problematic, and we have sought to reduce the burden on the local authority by setting the test as one of reasonableness. A test is entirely straightforward and sensible.
The issue is essentially one of fairness. Why should a corner shop or convenience store that closes at six o’clock in the evening pay for the late-night problems caused by a few irresponsible licence holders? We on these Benches acknowledge that some licensed premises encourage irresponsible drinking; for example, by free-drink promotions and so-called happy hours, and by serving individuals who are already drunk. There are a few—not many, one hopes, and reducing in numbers. It is entirely reasonable that such irresponsible establishments should be penalised. The main concern of the bodies representing the licensed trade is that there should be a link between paying any charge and being responsible for the alcohol-fuelled trouble, and that is what my amendment seeks to address.
The Minister’s response to the debate in Committee gave more cause for concern. He stated that he thought it would be,
“reasonable to assume that all premises inside an alcohol disorder zone must be contributing in some way to the problem”.—[Official Report, 26/4/06; col. 232.]
We simply cannot agree to that broad assumption. It means that even those premises that conduct themselves impeccably could be caught by the penalty of a charge, and that would be a disproportionate way for the Government to behave.
I noticed that later, on a different day in Committee, the Minister appeared to take a different tack. I tabled an amendment to probe how the Government would expect the boundaries of ADZs to be drawn and clearly identified. In response, the Minister gave an example that looked similar to the one he had given on 26 April, but which could lead to a significant and far more helpful interpretation of the way charges would be imposed. He said:
“We want to see an ADZ drawn very tightly around the area where it is reasonable to assume that the licensed premises within that designated area have a definite and proven link to the levels of crime and disorder within the locality”.—[Official Report, 17/5/06; cols. 299-300.]
If that second reply is the correct interpretation of the Government’s intention in bringing forward these measures, we would certainly be on the same wavelength. The problem is that the Bill does not make that causal link clear in its terminology.
I shall move on to what is effectively the second set of amendments in the group; I proposed that I should take this large group together, because, as I said in opening this afternoon, it is one of the areas where significant progress has been made in discussions with the Government over the summer. It was therefore very much the wish of the British Retail Consortium and the Wine and Spirit Trade Association that I should put on record in full our concerns, and then enable the Government to give what we hope may be a satisfactory response.
The effect of the remainder of the amendments in this group would be to ensure that the two types of licensed premises set out in Clause 15(6)(a) and (b) would be exempt from any charges imposed by virtue of the clause. The first type would be those premises whose principal use did not involve the sale of alcohol, and the second would be those premises where the availability of alcohol is not the main purpose for which individuals enter them. The Minister gave an assurance in Committee, at col. 236 on 26 April, that the exemptions in Clause 15(6) would be included in regulations. I said that I would consult the British Retail Consortium and the Wine and Spirit Trade Association to see whether that was sufficient to satisfy them. I met them during the Summer Recess. They reported that they remained concerned that the Government had not put clearly on record their intentions regarding, first, exemptions; secondly, how the charges would be applied to businesses of different sizes, hours of opening and management practice; and thirdly, discounts, and whether in any circumstances a business might receive a 100 per cent discount where it had behaved appropriately.
Since we debated this matter in Committee, I have also been contacted by the public affairs manager of Boots plc. He states that Boots is very concerned that the decision on ADZs will be left to regulation. He makes the understandable point that companies such as Boots need clarification that they will be exempt. Will the Minister say today whether the Government’s view is that Boots, and companies that operate in a like manner, will be exempt from charges?
Like me, noble Lords may be a little surprised that Boots considered that it might come within the rules governing ADZs. But it was pointed out to me that there is some sale of alcoholic beverages as part of gift sets, particularly in the five months running up to Christmas. We are in that period now and I saw such sets on the shelves in my local Boots last week. For the rest of the year Boots does not sell alcohol. Alcohol sales equate to just 0.1 per cent of Boots’s turnover per annum, but it already pays more for licences than purely alcohol-based retailers, such as small off-licences, due to the fact that the cost of the licence is based not on how much alcohol you sell but on the size of the licensed area. As Mr Sheppard, representing Boots, points out, that is taken to be the whole of the Boots store. I understand that Boots has about 400 stores with licences. Obviously, it is important to know whether the Government intend that businesses such as Boots should be caught up in the ADZ charging system.
I have covered the matter in detail as I hope that the Minister’s response will be such that we may not need to return to the matter at Third Reading. I await that response with anticipation. I beg to move.
My Lords, I am pleased at the length and depth with which the noble Baroness put forward her case and at her account of the history of the matter. I declare an interest as the president of the all-party group on the retail trade. No doubt I have received the same brief as the noble Baroness from the BRC.
It is not just a question of a burden on industry but the unfairness of being tarred with the same brush. On all sides of the House there is general acceptance that something must be done about the matter. Whether this weapon, which is to be used by local and national government, is the appropriate one remains to be seen. However, the briefing that I received indicates that the relevant people are smarting at the unfairness of legislation not differentiating clearly between responsible and irresponsible retailers.
I discussed the subject of this debate with some people over lunch and we mentioned Enfield. The situation that this Bill is meant to deal with occurs from time to time in Enfield. But how do you demarcate the area within which premises will be subject to charges? It is not easy. The Minister referred to the difficulty of placing the burden on local authorities to define those areas more precisely, but that is a burden on local authorities. The retail trade has an honourable place in the economy. It is entitled to try to ensure that imposts placed on it are proper and reasonable.
The noble Baroness referred to the discussions that have taken place. I took particular note that a lot of the trouble was caused by the Minister’s remarks on 26 April:
“I think that it would be reasonable to assume that all premises inside an alcohol disorder zone must be contributing in some way to the problem”.—[Official Report, 26/4/06; col. 232.]
That is a questionable assumption. How can that be? This is the stage when better counsels and experience prevail. The people who have pleaded their case with the Minister are sensible, responsible retailers, who obviously want the best that they can get, but they are not shirking their problems. There are a number of ways in which the Government rely on retailers to police actions that the Government bring forward and which they commend. It will not help relationships between the retail industry and the Government if what is manifestly unfair treatment is let to go ahead without alteration. I am very grateful indeed that the noble Baroness has set the scene.
My Lords, I follow the noble Lord, Lord Graham of Edmonton, in referring to unfairness. That is, critically, at the base of the problem that the noble Baroness, Lady Anelay, has outlined. The purpose of the alcohol disorder zones is to spread any increased charge for policing a particular area among the licensed premises in that area. That is not right. It may be that a particular set of premises does not contribute in any way to the disorder that is taking place. As the noble Lord, Lord Graham, said, very responsible retailers may be called on to pay for the sins of others. That is fundamentally unjust and contrary to the spirit of the common law of this country. We on these Benches will wholly support the noble Baroness in whatever decision she makes on the amendment.
My Lords, I am, as ever, grateful to the noble Baroness, Lady Anelay, for giving me an opportunity to clarify some of my comments from an earlier stage in the Bill, which have been interpreted in a way that suggests that we want to put in place a scheme that would operate unfairly; clearly we do not. We want something that is workable and which everyone feels comfortable and confident in supporting. I hope that what I say on the amendments can offer some reassurance, and I am sure that it will.
Amendment No. 17 would oblige local authorities to determine whether individual pubs and clubs had directly contributed to alcohol-related crime and disorder before including them in the scope of the alcohol disorder zone charge. That would, in effect, mean that the local authority would have to establish a clear link to the particular pubs, clubs and off-licences that inebriated offenders had patronised. When the amendment was debated in Committee, I said that I believed that it was, in general terms, unworkable, and I remain of that view.
As we recognised in Committee, there is a tension with alcohol disorder zones. They will inevitably include some responsible operators. That has been the theme of much of our discussion with the trade associations representing both the off-licence and on-licence operators. I concede willingly that their concern is understandable, particularly at a time when the trade is taking big steps to raise operating standards, which we welcome. We welcome the expressions of concern by the trade associations, which have helpfully been given full voice on all sides of the Chamber this afternoon.
I offer the House assurances about the way in which the provision will be used. First, as I made clear, ADZs will be there as a last resort, to secure collective responsibility for alcohol-related crime and disorder in a locality when all other measures have failed. That action must include using the full force of the provisions in the Licensing Act 2003. Where evidence reveals a few clearly identifiable problem premises, local authorities and the police should not reach for an ADZ; the Licensing Act should be used. Alcohol disorder zones become an option where this and other interventions have been tried and there is still a more general problem. ADZs cannot and will not become a routine intervention. I believe that our work on alcohol disorder zones with representatives from local authorities and the police bears this out. As ADZs will not become a routine intervention, I can inform the House that we will review their operation two years following their implementation. The review will be undertaken earlier, if necessary—for example, if we find that their use escalates out of control, which we will take action to rectify.
In relation to charging premises, we recognise that not all premises should pay the same. We propose a national charging framework that will be structured and calibrated so that account will be taken of the risk that individual premises pose. This will be linked to the level of service that they receive and the amount that they pay. For example, a small pub on the corner closing at 11 pm will pay much less than a large bar closing at 3 am. I accept that that does not precisely address what the noble Lords are seeking in their amendment, but constructing the charge in this way will allow us to gear both the charge and the service received to reflect the different nature of licensed premises. There will not be a flat-rate charge for all.
Opposition Amendments Nos. 19, 20, 21 and 28 deal with exemptions. Clause 15(6) provides for the only exemptions from the ADZ charge that can be granted. Premises must pass both a principal use test and a patronage test to qualify for an exemption. The amendments would provide for more exemptions through regulations, and premises might not necessarily have to pass more than one test to claim the exemption. Alcohol disorder zones are intended to encourage licensees within the designated locality to work together to reduce alcohol-related crimeand disorder. We recognise that there should be exemptions from the charge. The intention ofClause 15(6) is to provide a sensible basis for decisions to be made around both use of the premises and their patronage. We need to go no further than that.
Perhaps I may give an illustration of how we expect the exemptions to work in practice. We have made it clear that our policy intention is for restaurants and hotels to be exempt from the charge and we have assured the British Hospitality Association on that count. The Bill also provides for discounts to be granted on the charge. I can inform the House that when we ask Parliament toconsider regulations, we will propose discounts of up to 100 per cent of the charge in certain circumstances. Local authorities will have to establish a time for ADZ services to commence, which would need to be evidence-based in relation to when crime and disorder occurred. Premises that closed before that would receive a 100 per cent discount. I believe that that addresses the points raised by stakeholders, including the Wine and Spirit Trade Association, which was concerned that premises might pay for services that were delivered after they closed and for which no direct benefit was received.
That also addresses some of the points made by the noble Lord, Lord Thomas of Gresford, in Committee and by the noble Lord, Lord Graham of Edmonton. No doubt there could be an interesting debate on whether a 100 per cent discount is an exemption, but I am sure that noble Lords will not be too disappointed if I fail to enter that semantic discussion.
Through the discounting arrangements, we will be seeking to deliver on some of the issues that lie behind the amendments. I am sure that the noble Baroness will recognise much of what I have said from discussions that she has had with Tony McNulty, the Minister of State at the Home Office. He also wrote to her on 11 October detailing these and other matters. I have placed a copy of that letter in the Library of the House so that all noble Lords can have sight of it.
The noble Baroness also raised a point about Boots the chemist, which I understand perfectly well. In fact, I have a horrible feeling that at some stage some years ago I may even have purchased one of those glorious packs to which she referred. I probably bought it as a present that no one wanted to receive.
In the context of exemptions, it was mentioned that the noble Baroness had been approached by Boots the chemist, which was concerned that it might be subject to charging in an ADZ. As she explained, Boots sells alcoholic gifts at Christmas. As the correspondence points out, the noble Baroness can be assured that local authorities will make decisions on exemptions on a case-by-case basis. I place on record our view that it is extremely unlikely that Boots will be caught by the charge simply because it sells seasonal gifts. On the basis of its business model, I cannot see that the sale of alcohol is the principal use to which its premises are put or that its patronage is focused mostly on the sale of alcohol. That assurance is given in correspondence and it is one that I am happy to repeat from the Dispatch Box because I think that it might help our deliberations and assist noble Lords who may be contemplating pushing the amendment to a vote. I hope that the amendment will be withdrawn.
My Lords, I suppose that that question could be posed in relation to any new power that any Government ever took at any time. The commitment makes very clear, and I have put it clearly on the record this afternoon, that we would be very surprised if we thought that local authorities and the police working together werenot using the ADZ regime appropriately and proportionately in the circumstances and not using it as an instrument of last resort, all else having failed. In those circumstances, not only would a review be brought forward but it would have to be conducted at some speed. That is not the intention of the legislation and I want to make that absolutely clear. I hope that that reassures the noble Lord, Lord Waddington.
My Lords, my noble friend Lord Waddington went to the heart of my concerns when I first tabled these amendments. As the Minister knows, I was worried that we were coming forward with a package of provisions that local authorities in some areas might be tempted to see as a way of obtaining extra income and that therefore they might go through this procedure. The British Retail Consortium and the licensed trade had similar concerns.
I appreciate that over the past months the Government have been trying to say that the process by which an ADZ may be designated and maintained is so carefully drawn and convoluted that it would not be an easy option for a local authority to take. The Government are trying to get the balance right and to assure me that the review will take place after two years. The fact that they have recognised that it may have to take place before two years shows that, even in government, it is recognised that some areas might adopt ADZs too easily. I hope that that is not the case, because we all want some kind of provision that assists local authorities to obtain better policing for their communities on these matters, particularly in the middle of the night. Although I accept the Minister's assurances today, overall I still have niggling concerns about whether ADZs will be used more frequently than they should be, and I am grateful to my noble friend Lord Waddington for raising that issue.
I am grateful for the support from the noble Lords, Lord Graham of Edmonton and Lord Thomas of Gresford, who again spoke on the core issue of fairness. We were all trying to address that. As the noble Lord, Lord Graham of Edmonton, said, the retail trade has an honourable place in our economy—I thought that that was a very appropriate quotation from him.
After I received the letter from the Government last Thursday, I ensured that the licensed traders were able to see that letter—the Government forwarded it to them by e-mail. They were able to consider it and their view was that, if the Minister fairly put on the record those assurances, that would be sufficient for them. The Minister says that the letter is in the Library, and it is always helpful for the public to know that, but an assurance at the Dispatch Box gives the retail trade that added assurance and provides a guarantee that things may happen in the way it hopes.
On whether there is an exemption or a discount, I do not believe that the retail trade is concerned under which head it falls, as long as responsible traders are not caned by having extra taxes for events to which they have made no contribution. The commitments given by the Minister today make it possible for me not to press this group of amendments and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Page 13, line 36, at end insert-
“(c) must require a local authority to ensure that the level of charges which they impose acts as an encouragement to local action and not as a hindrance to the viability of local businesses.”
The noble Lord said: My Lords, the noble Baroness, Lady Anelay, referred to her fears, which we share, that the ADZ scheme would be seen as a way of raising extra revenue. When the noble Lord, Lord Bassam, replied to a similar amendment on26 April he said:
“The charge needs to be set at a meaningful level which is sufficient to recoup local agencies’ costs in mounting effective enforcement interventions based on what is required to properly reduce crime and disorder in any given locality”.
In other words, local businesses would pay for the security firms and for extra policemen possibly—although that is unlikely—to patrol the particular area. That was a matter which concerned us. I tabled an amendment in Committee, suggesting that there should be a cap on the compulsory charge which would be the equivalent of 3 per cent of the premises’ annual rateable value. That was a fairly arbitrary figure but it provided a mechanism which could differentiate between different sizes of businesses. However, things have moved on and the Minister has given us foresight of the regulations, but not the regulations themselves, of course. I understand that there will be a national charging scheme with differential charges—there will not be a flat rate—and there will, of course, be discounts, to which the noble Baroness, Lady Anelay, referred a moment ago.
In Amendment No. 18, all I am now seeking is that the regulations that we are promised should not impose an artificial cap, but should take into account the words of the Minister in Committee when he said:
“The important thing is that we get the principles right, that it does not act as a disincentive, and that it acts as an encouragement to get collective action at work”.—[Official Report, 26/4/06; col. 207.]
I have used those words in my amendment, which, as your Lordships will see, suggests that the regulations,
“must require a local authority to ensure that the level of charges which they impose acts as an encouragement to local action and not as a hindrance to the viability of local businesses”.
I recognise that that is a great deal vaguer than the3 per cent which I proposed in Committee. I believe that the local authority must have in mind at all times that this is not a revenue-raising situation which can continue indefinitely, but that it is designed to deal with a specific problem, over a specific period—another matter to which we shall turn shortly—and that there should be a time limit on the imposition of these zones. I am not asking for a great deal and I hope to achieve some success on this occasion. I beg to move.
My Lords, as the noble Lord, Lord Thomas of Gresford, said, the amendment would require the Secretary of State, when laying regulations on charging, to qualify the level of the charge paid locally. In particular, the regulations would require a local authority to ensure that the level of charges that it imposes acts as an encouragement to local action and not as a hindrance to the viability of local businesses. I am sure that the amendment has been moved for good reason.
I understand where the noble Lord is coming from and that we are going back to putting a cap on the compulsory charge within an ADZ. I recognise that the amendment bears some relation to our earlier debates. Yes, the charge needs to reflect the last-resort nature of ADZs and help incentivise local action. We are not about setting charges at a level that forces people to stop trading—that would be completely outwith our expectations of the legislation and it is not what we are trying to do. At the same time, however, we hold that the charge needs to be set at a meaningful level that is sufficient to recoup local agencies’ costs in mounting effective enforcement interventions based on what is required to reduce crime and disorder locally—so the charge must be realistic.
We have ensured that the charge will be applied fairly. There will be a charging formula which takes account of a premises’ size, hours of opening and management practice. The clear aim is to have charges that are proportionate, reflecting the level of risk proposed by licensed premises and the level of enforcement activity required. And, as I explained earlier, we have provided for discounts. Outlets that close before ADZ enforcement activity commences will receive a 100 per cent discount. Local authorities will be able to grant discounts of up to 100 per cent to recognise compliance with the action plan—again in our view, making the charge fair and proportionate. But can we impose a one-size-fits-all upper level of charge? I think not. While I applaud the intentions of the noble Lord, I do not think that the amendment takes us any further.
However, I am prepared to undertake that we put something along these lines in guidance. We will reinforce the key point, which is that the charge should incentivise local voluntary action, and should do nothing which undermines local businesses, drives them towards bankruptcy, or acts as a backdoor means for the local authority to raise additional revenue. We are prepared to undertake to include in guidance something that deals with the noble Lord’s point so that the issues he has raised are properly understood by local authorities when they come to consider their charges. I hope that with that undertaking, he will withdraw his amendment.
My Lords, I am encouraged by the Minister’s words. I hope that local authorities can be made accountable for these charges and that they will be able to demonstrate a relationship between the level of the charge and the costs that are incurred by additional safeguards within alcohol disorder zones. I hope that that is included in guidance. I wish that we could see these regulations and I certainly wish that we could see the 2,000 pages of guidance that will result from this Bill. A huge amount will be attached to almost every clause. I am content and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 19 to 21 not moved.]
Clause 16 [Designation of alcohol disorder zones]:
Page 14, line 29, after “been” insert “persistent and repeated”
The noble Lord said: My Lords, Amendments Nos. 22 to 25 deal with Clause 16, dealing with the designation of alcohol disorder zones. I am anxious that the local authority should not make such orders without an appreciation of a persistent and repeated problem. As the Bill stands, the local authority could designate an alcohol disorder zone if there has been a single instance of nuisance or annoyance. That is why I seek to include the words “persistent and repeated”.
On Amendment No. 23, for reasons I explained in relation to Amendment No. 1 and subsequent amendments, we would leave out the words “or disorder”.
Amendment No. 24 raises an important principle because an alcohol disorder zone can be imposed even though the nuisance, annoyance or disorder does not occur within the zone itself. The clause permits the imposition of an alcohol disorder zone if the nuisance or annoyance takes place near that locality. I find it difficult to understand why one would impose such a zone simply because of a disorder down the road. In Committee, the Minister said that there might be a problem at the taxi rank or the bus station, but that does not give any strength to the argument that an area containing licensed premises should have statutory charges imposed upon it to pay for policing not of that zone, but of the bus station, the taxi rank or somewhere adjacent to the zone, but not necessarily in it. I do not see why public houses and licensed premises should carry such a burden. If the boundaries of the zone are not defined, but rely on areas outside that zone, the charges imposed on the licensed premises are even more unfair, so I hope your Lordships will consider this amendment to remove the words “or near”.
Amendment No. 25 ensures that the provisions of the Licensing Act 2003 have been fully used. It does so in order to prevent a local authority declaring an alcohol disorder zone, getting a charge and raising the money for the local police force and so on without using the existing provisions in the Licensing Act 2003.
These amendments tighten the circumstances in which alcohol disorder zones are designated. I beg to move.
My Lords, Clause 16(1) sets out the criteria for the designation of an alcohol disorder zone: first, a general test based around nuisance, annoyance and disorder in or near the locality; secondly, a link to the consumption of alcohol; and thirdly, a likelihood of repetition.
The noble Lord’s amendments focus around the first criterion and seek to add a further restrictive limb. They add a qualification that the public nuisance would have to be “persistent and repeated”, remove the terms “disorder” and “or near” from the first limb of the test and add a further limb placing an explicit requirement that full use of the Licensing Act 2003 had been made.
In response to the noble Lord’s point about “persistent and repeated”, I have made clear that alcohol disorder zones are an intervention of last resort, and we want to signal that. On the other hand, we want to ensure that the power can be used with a degree of flexibility. The Bill provides the overall framework. Clause 19 provides for guidance to be issued on the administration of ADZs, Clause 19(2) places a duty on the Secretary of State to ensure that the guidance sets out what alternative steps should be considered prior to proposing an ADZ and Clause 19(4) places a duty on local authorities to have regard to the guidance. The guidance will set out clearly the alternative interventions to deal with alcohol-related crime and disorder, including tackling incidents that are not persistent.
So we do not need the reference to “persistent and repeated” that the amendment would provide. I can also give an assurance that the guidance will emphasise that and specifically refer to full use of the Licensing Act 2003 before designating an alcohol disorder zone. That takes account of the concern at the heart of one of the noble Lord’s amendments.
On the removal of the term “disorder”, it would not be wise to lose the link between disorder and anti-social behaviour and alcohol. We need to tackle those behaviours, which have a significant impact on our communities. We want that in the Bill.
Finally, turning to the removal of the term “or near” from the criteria, I certainly understand what the noble Lord says. As I recall, we had an interesting debate on that point in Committee. As I understand it, the noble Lord is concerned that problems occurring away from the immediate vicinity of licensed premises should be attributed to them and that they end up having to pay for services to tackle that problem.
It is important to draw a distinction between local authorities making the case for an ADZ, how the ADZ will be drawn and what services the compulsory charge will cover. On making the case, it is important that some account is taken of the impact of alcohol-related crime and disorder in the area near the concentration of licensed premises. To give an example, residents in a nearby street may be disturbed by rowdy drunks leaving the premises, or there may be pinch points at a nearby taxi rank. All of that is alcohol-related and associated with patronage of the premises.
Of course, the voluntary action plan may include preventive steps to tackle those problems—perhaps contributions towards a taxi marshal. On designation of the ADZ, the zone will be tightly drawn around the premises concerned and the compulsory charge will cover enforcement activity directly affecting the premises. The charge will not cover supervision of a taxi rank or the patrolling of streets outside what we envisage as being a tightly drawn area.
I hope that as I have given those assurances, the noble Lord will feel able to withdraw his amendment.
I have to say that I am not satisfied with that assurance. It is very important that the alcohol disorder zone should be a solution of last resort, as the Minister has said on many occasions. It is also strange that, although an order can be made because of disturbance near the locality of the zone, if the Minister is correct, the charge cannot be used for the payment of means of suppressing the disorder elsewhere. That is totally illogical. So it would not be used to police the taxi rank or the quiet neighbourhood street where the problem is impacting on local people.
I could understand if the noble Lord were putting that forward as an explanation for the word “near” the locality, but that is not the case. The people who live in the next street, the quiet residential area, who have drunks rolling down there from the alcohol disorder zone, will have no better policing or security than they have now—at least, it will not be paid for by the licensed premises, which has to pay on the rationale that it is causing the problem in that locality.
I have to say that the clause as drafted and the designation of the zones is far too loose. If it is to be a matter of last resort, it should be drafted much more tightly, in the way that we have suggested. I propose to test the opinion of the House.
My Lords, with permission, I shall repeat a Statement on political progress in Northern Ireland made earlier today in another place by my right honourable friend the Secretary of State for Northern Ireland. The Statement is as follows:
“Between 11 and 13 October in St Andrews, both the British and Irish Governments engaged intensively late into the night and from early morning with the Northern Ireland political parties. That we were able to defy the sceptics and cynics and secure the St Andrews agreement opens the way to a new dawn for democracy in Northern Ireland—a new democracy based, for the very first time in Northern Ireland’s tangled history, on the twin foundations of the rule of law and power sharing. Without question, it may come to be seen as a pivotal moment in Irish history.
“These two foundations stand together or fall together: on the one hand, unequivocal support for the police and unequivocal support for the rule of law; on the other, an absolute commitment by all the parties to share power in a restored Northern Ireland Executive. Delivery on both these foundations was absent from the Good Friday agreement; now it is in prospect. That is a measure of what was achieved at St Andrews—arguably the fulfilment of the hopes expressed on Good Friday eight years ago. The agreement has been placed in the Library and is available in the Vote Office.
“All the parties at St Andrews were crystal clear on one point at least: that in May Parliament had legislated for closure, one way or another, on the political process. Four years since the Executive and Assembly last sat, there has been set in statute a clear endpoint of 24 November by which the political parties would agree to locally accountable government for the people they represent, bringing direct rule to an end. The alternative, as I have made clear, is that the Assembly would dissolve. Incidentally, were the parties to unravel St Andrews at any stage in the coming weeks and months, dissolution would follow as night follows day, and both Governments would move on to formulate plan B. There is not a choice between St Andrews and something else; there is only a choice between St Andrews and dissolution.
“Since the House set the 24 November deadline in statute, there have been important indicators that the context within which the political development can take place has been changing—changing fundamentally, changing for the better and, I personally believe, changing for good.
“Northern Ireland had the best parading season for four decades with not a soldier on the streets on 12 July, something unthinkable just a year ago when 115 live rounds were fired by loyalist paramilitaries at police and soldiers during the Whiterock parade. This year, Whiterock passed off peacefully following a cross-community dialogue. Loyalist leaders have given me assurances, as the IRA has done, that they will now work to ensure an end to their paramilitarism and criminality.
“Last week for the first time ever, the leader of the Democratic Unionist Party, the right honourable Member for North Antrim, met the Catholic Primate of Ireland, Archbishop Brady”.
I can say to those noble Lords who are following the text of this Statement that the Secretary of State then went on to congratulate the right honourable Member for North Antrim and the noble Baroness, Lady Paisley of St George’s, on their 50th wedding anniversary last Friday. The Statement continues:
“Over the summer, the Committee on the Preparation for Government, with all the parties face to face in the room, did important and constructive work on a range of issues central to the good governance of Northern Ireland. Above all, there has been further compelling evidence that IRA violence has indeed ended, a judgment confirmed decisively on 4 October in the report of the Independent Monitoring Commission, which also confirmed in paragraph 2.17:
‘The leadership has maintained a firm stance against the involvement of members in criminality, although this does not mean that criminal activity by all members has stopped. The leadership’s stance has included public statements and internal directions; investigating incidents of breach of the policy; the expulsion of some members; and emphasising the importance of ensuring that business affairs are conducted in a legitimate manner’.
“The Government firmly believe that the circumstances are now right to see a permanent political settlement in Northern Ireland, with the restoration and the full and effective operation of the political institutions. Anyone with experience of the political process in Northern Ireland will know that it is never easy, that the negotiations are always tortuous and tough and that there is always a danger of things unravelling. St Andrews, like Good Friday, is no exception. But the harder the negotiations, the more likely it is that any agreement that comes out of them will stick.
“There were two main issues to be resolved at St Andrews if we were to achieve restoration of the power-sharing Executive: the need for support for policing and the rule of law across the whole community, which would enable, in due course,the safe devolution of policing and justice to the Assembly; and changes to the operation of the Good Friday agreement institutions.
“On support for policing, I want to spell out to the House what that means by quoting from Paragraph 6 of the St Andrews agreement. It means,
‘endorsing fully the Police Service of Northern Ireland’;
‘actively encouraging everyone in the community to co-operate fully with the PSNI in tackling crime in all areas’;
it means playing a full and active role in,
‘all the policing and justice institutions, including the Policing Board’.
“For many years now, all in this House have joined the Government in demanding support for the Police Service of Northern Ireland from every part of the community. My honourable friend the Member for Foyle and his SDLP colleagues—John Hume especially—have shown courageous leadership in making that a reality. With one in five—rising to one in three—of Police Service of Northern Ireland officers now Catholics, and the service deploying with local consent right across Northern Ireland, including South Armagh, policing has been transformed.
“But no one here will now underestimate how significant it will be if the republican movement can accept and endorse the agreement drawn up at St Andrews. Based on last week’s discussions, I am confident that it will do so and that this will make for a decisive and irrevocable break from a past of violence and criminality. It will give absolute confidence in an authentically new Northern Ireland of hope and peace and the rule of law.
“I believe that when this active support for policing and criminal justice is seen to be delivered, there will be sufficient community confidence for the Assembly, in line with the St Andrews agreement, to request the devolution of justice and policing from the British Government by May 2008. It is very important to acknowledge, however, that devolution of policing is already very substantially down the road. Following the Patten report, direct-rule Ministers relinquished matters of real importance. The Police Service of Northern Ireland has been accountable for five years to the Policing Board, comprising, as it does, locally elected and independent representatives; it has been accountable to the Police Ombudsman for Northern Ireland and to the district policing partnerships. The remaining devolution of policing and justice is largely institutional, focusing more on the courts and the administration of justice than on operational policing, which in the past has been so controversial to nationalist and republican communities.
“Although nationalists and republicans had major concerns over the primacy of national security being vested in the Security Service,St Andrews makes clear in Annexe E that there is full accountability for all domestic operational security matters because these will be exclusively undertaken not by MI5 but by the Police Service of Northern Ireland, which is of course itself fully accountable in Northern Ireland, including those of its officers who may be secondees to MI5. We stand ready, moreover, to develop procedures and to establish protocols on MI5’s activities to provide any reassurances necessary on accountability.
“Taking Northern Ireland out of a divided past and into a shared future can be done only on the basis of agreement on fundamental principles:the principle of consent; the commitment to exclusively peaceful and democratic means; sharing power within a stable inclusive partnership Government; equality and human rights for all; and mutually beneficial relationships developed between north and south within these islands. Those are the fundamental principles of the Good Friday agreement and they will always remain the bedrock and foundation of the political settlement in Northern Ireland.
“The Good Friday agreement, however, allowed for changes to be made to the operation of the institutions to make them more responsive and effective and, following discussion with all the parties, we have made an assessment of these in Annexe A to the St Andrews agreement. The Government will introduce legislation to enact appropriate changes and other aspects of theSt Andrews agreement before the statutory November deadline, once the parties have formally endorsed the terms of the agreement and agreed on that basis to restore the power-sharing institutions.
“We have now set out a clear timetable for restoration. Tomorrow, a new programme for government committee will begin regular meetings at Stormont to agree priorities for the new Executive. Crucially, parties will for the first time together be represented at leadership level on that committee, as on the existing Committee on the Preparation for Government.
“We have asked the parties to consult onthe St Andrews agreement and to respond by10 November to allow time for final drafting of a Bill to take through Parliament. Once this happens, and on the basis that the St Andrews agreement is endorsed, the Assembly will meet to nominate the First Minister and Deputy First Minister on24 November, the deadline for a deal.
“I do not have to spell out to the House the great significance of these nominations, the more so given those who are likely to be nominated:the leader of the Democratic Unionist Party and the deputy leader of Sinn Fein. I pay tribute to the right honourable Member for North Antrim. Like anyone who understands something of the history of Northern Ireland, I realise that this is not an easy step for him or for his party.
“In January, there will be a report from the Independent Monitoring Commission. In March, the electorate will have the opportunity to endorse the St Andrews agreement, either through an election in Northern Ireland or through a referendum. We will listen to the views of all parties before making a decision on the most appropriate way of consulting the electorate and legislating accordingly. Either way, the people will speak. On 14 March, prospective members of the Executive will be named by their party leaders. On 26 March, power will be devolved and the d’Hondt formula will be run.
“This is an ambitious programme and there is still much work to be done. But I do not think that Northern Ireland has been at this point before. It is a tribute to my right honourable friend the Prime Minister, the Taoiseach and the British and Irish officials who have worked tirelessly over so many years that we are at this point. Their energy, time and patient attention to the detail of the issue have been unprecedented. But, above all, it is a tribute to all the political parties in Northern Ireland—all of them—which have shown courage and leadership and have taken risks for peace and political progress. They have shown that therecan be accommodation and agreement without sacrificing principle or integrity.
“Friday 13 October was a good day for Northern Ireland. It has the potential to be greater still, to be the foundation stone of a new Northern Ireland, based exclusively on the principles of peace, justice, democracy and equality. Whatever difficulties lie ahead, I trust that none of those who took part in the talks last week will lose sight of that great prize”.
My Lords, that concludes the Statement.
My Lords, I thank the noble Lord for repeating the Statement that the Secretary of State made in another place. I also thank the Secretary of State and his staff for giving us early sight of it.
We welcome the progress made in the negotiations at St Andrews and the positive approach adopted by each of the parties. I congratulate the Prime Minister, the Secretary of State and the leaders of the Northern Ireland parties on what is clearly a major step forward. But let us be absolutely clear that, for this to happen, Sinn Fein must deliver on policing. Power sharing in Northern Ireland will not work unless all Ministers in the Executive fully support the police, the courts and the rule of law.
In this context, I welcome the reports over the weekend that the Government are planning to amend the ministerial code of conduct to make this a requirement of taking office. Your Lordships may remember—and I gently remind the noble Lord—that the Opposition sought to do this earlier this year through amendments to the Northern Ireland (Miscellaneous Provisions) Bill, but we were told that it was unnecessary. I am comforted that the Government have changed their mind and ask the Minister if he could be more specific aboutthe changes that he would like to see.
One piece of the jigsaw missing from the timetable set out in the St Andrews document is the date for the special Sinn Fein ard fheis, which is required to change that party’s position on policing. Can the Minister give the House any indication when that is likely to take place? Does he agree that it is crucial to the process that there is clear movement on this issue before the parties give their responses to theSt Andrews document by 10 November? Will he further agree that support for policing means more than simply joining the Policing Board? It has to include encouraging people in republican communities to report crimes to the police and to co-operate fully with police investigations, as well as urging people from those communities to join the police force in Northern Ireland. Will the Minister confirm, too, that there will be no toleration whatever of individuals or parties seeking to use the community-based restorative justice schemes as a form of private justice or as an alternative to the legitimate authority of the PSNI?
The Secretary of State spoke about possible electoral endorsement of the St Andrews proposals. Will he make it clear that, whatever route the Republic of Ireland intends to follow in that respect, it would be constitutionally quite wrong for citizens of that country to vote on any matters that relate to the internal governance of the United Kingdom? Does he agree that the referendum in the Republic must be confined to any changes in its constitution or system of government?
The Opposition support the institutional changes set out in the St Andrews document, particularly those relating to ministerial accountability and collective responsibility. Subject to seeing the actual texts of the new legislation, we hope to be able to offer the Government our support. We also welcome the Government’s change of policy on capping and additional relief for pensioners when the new rates system is introduced and the retention of academic selection. Will the Secretary of State bring forward a new Order in Council to repeal the complete ban on all academic selection that the Government imposed earlier this year?
I wish the Government well in the course that they have set. The ultimate prize on offer is great—a peaceful, stable and prosperous Northern Ireland with a shared future for people from all traditions, based on democracy and the rule of law rather than on terrorism and the gun. That is an objective that should unite.
My Lords, the St Andrews agreement lends a whole new dimension to the notion of Ulster Scots. I welcome the Minister’s Statement and thank him for the advance sight of it.
It is only fair to say that much praise should be given to the Prime Minister, the Taoiseach and the Secretary of State for their unremitting endeavours to see restoration of the devolved institutions and, with it, an enduring peace. Whatever else Mr Blair’s legacy will be composed of, it will be only fair that he is acknowledged for the role that he has played since 1997 and his assiduous, painstaking and persistent attempts to bring about peace, which now may well materialise.
Some good progress was made in St Andrews last weekend. The paper published by the Government shows that there is now a real potential for achieving devolved government in Northern Ireland within the space of a few months. I am also pleased to see from Annexe B of the agreement that progress is to be made on a Bill of Rights for Northern Ireland and on a single equality Bill.
I hope the Minister will be able to give some clarification on some further points. First, the published agreement seems to remove a step in the process of formulating an Executive: a cross-community vote to confirm the election of the First and Deputy First Ministers. We all know that this election has caused problems in the past, but nevertheless it is a fundamental principle of the Good Friday agreement. Paragraph 5 of strand 1 of the agreement states:
“Key decisions requiring cross-community support will be designated in advance, including election of the Chair of the Assembly, the First Minister and Deputy First Minister, standing orders and budget allocations”.
Such a vote demonstrates that there will be joined-up government in Northern Ireland and that the First and Deputy First Ministers enjoy the confidence of the Assembly. Why will such an important vote be omitted in the future?
Secondly, will the Minister give the House an indication of how the structures for a department of justice will be agreed? Will that be a matter for the Executive, or for the Assembly as a whole? Finally, to reiterate what the noble Lord, Lord Glentoran, asked, what will happen to those orders currently in abeyance until 24 November, including the education order that deals with selection and the 11-plus? Logically, and to keep faith, these should not be implemented until Stormont is fully reassembled. It would be cynical if that were not the case.
I am glad to see that the Secretary of State emphasised that,
“there is not a choice between St Andrews and something else. There is only a choice between St Andrews and dissolution”.
I hope it will be St Andrews, and not dissolution.
My Lords, I am most grateful, as indeed everyone will be, for the warm welcome the Statement has received from the noble Lords, Lord Glentoran and Lord Smith of Clifton. I understand their caveats—I would not even call them caveats, really; they were asides. When it comes to answering on specifics, there are some areas I cannot go into.
The Secretary of State made it clear in the other place that the normal policing rules about recruitment will apply, including police and community support officers. The Statement I have just repeated makes it crystal clear that support for policing goes well beyond joining the policing board. I referred to paragraph 6 of the agreement, which is somewhat detailed; it has at least three or four bullet points.
The date for Sinn Fein to make its own decisions is a matter for it. It is an independent political party, and it knows what needs to be done. In some ways there is a new deadline; 24 November is in statute, and we are not planning to change that, but we have said that we need the endorsement and agreement of all the parties by 10 November to give us time to pass an emergency Bill before the 24th. Anyone can work out, looking at what has to happen, that time is incredibly short. If agreement is not secured by then, the normal process legislated for by Parliament will take place: dissolution will occur at, I think, midnight on the 24th. That is the top and bottom of it.
Regarding the Republic, I have nothing. I was not able to listen to all the comments in the other place, but, frankly, the elections and referendums referred to in our Statements relate to Northern Ireland. This is an issue for Northern Ireland. Obviously the Republic has its own views, but no one has discussed that. The point is that we need the parties to come back to us and talk about the best way of taking the people’s voice. Clearly there is a view to take the people’s voice, and there are only really two ways to do that: an election to a new Assembly, and everyone can see that there are pluses and minuses to that, or a referendum to get the agreement done. We need some discussion about that, and we do not want to foreclose any of the options.
On the code of conduct, I take the point made by the noble Lord about the Northern Ireland (Miscellaneous Provisions) Bill. The code was not necessary in that Bill, but it is necessary now to look at it. We were always committed that if the parties came forward with an agreement about changes, it would be a matter for further discussion, and the preparation for Committee is the ideal place to do that. If there is common agreement on that, we said we would do the legislation required.
On academic selection, the 11-plus will still be around for a bit. I think it goes in 2008; it is not as though we legislated to abolish it this year or next. If there is agreement by 10 November and the Assembly is restored by 26 March—that is, the powers are devolved—a decision to ban academic selection will be taken by the Assembly in a cross-community vote. If there is no agreement and no Assembly, the academic selection will remain banned, but it is up to the people of Northern Ireland. Our view is that we hope the 11-plus in its present form will go, but it is then up to the Assembly and local people to determine how best to have a transfer to secondary education. It is a matter for the parties.
As for other legislation, we referred to the capping on rates, and we will do that if the process takes a form. However, the other processes that are in being—indeed, this House will have a Grand Committee on four orders next week, I think—will proceed as normal, as we have always said. The Assembly can take that up at the relevant time.
It has consistently been made clear that there is absolutely no question of restorative justice being used as an alternative justice system. Once criminal justice and policing are devolved, the structure is a matter for discussion. I have nothing in my brief on that. I do not think any decisions have been taken, and there will have to be discussions. It is a matter for the parties to discuss and agree in the months ahead.
The St Andrews agreement is the first time we have given the date of May 2008, the date that is in the Secretary of State’s Statement. Parliament has a triple lock, if I remember rightly: a joint resolution by the First Minister and Deputy First Minister, so there has to be agreement there; the Assembly; and Parliament has to agree as well. This cannot be done behind closed doors, nor just by one party. When we legislated in this House for the devolution of policing I remember saying there would have to be an assessment of how well the Assembly had been fulfilling its role and tasks. The view has been taken in the negotiations that if the Assembly is back by next March, we ought to be able to reach a decision by May 2008. That will be for the parties to discuss. If it is their view that it should have the same ministerial oversight as other departments, it will be for the First Minister and Deputy First Minister to set up the arrangements under, I believe, Section 17 of the Northern Ireland Act 1998. If it is their view that it should have an alternative structure, it is a matter for the Assembly to legislate using the powers in the Northern Ireland (Miscellaneous Provisions) Act that we passed earlier this year.
I appreciate the remarks made by the noble Lord, Lord Smith of Clifton, on the Prime Minister’s activities. I am new to this, as people know, but by common consent he has devoted more hours and a greater proportion of his time as Prime Minister to this issue than any other. That is not to criticise any former Prime Minister. This has been a nightmare to deal with, and very difficult. As the Statement said, the Prime Minister has been involved in the detailed discussions at every stage of the process. The people around the table have understood that.
My Lords, I join other noble Lords in thanking the Minister for repeating the Statement made earlier today in another place and for the assurances, which I think we will all be glad to hear, about the undertakings for support for the police and the institutions of the state. We look to the Government to ensure that there is no watering down in that respect.
In view of the Secretary of State’s pledge given earlier this afternoon to the leader of the Democratic Unionist Party to consult further on the issue of water charges, would it not be prudent then to hold off the Order in Council on water charges which comes before the Grand Committee next week? Will the Minister indicate how far this further consultation will take place? Will he also confirm, if it is held off, that the financial arrangements outlined in Annexe C of the agreement will cover the costs of such delays?
My Lords, I did not hear that exchange but, broadly speaking, I know what answer was given. There is not much I can say about the water charges as the consumer council is mounting a legal challenge to their introduction. The matter will go before the courts. Everyone understands the situation. Water charges were not included in this year’s budget and have not been for two years. I draw the attention of the noble Lord, Lord Laird, to the fact that the Chancellor will discuss with the parties the financial structure and the consequences of theSt Andrews agreement for Northern Ireland. That will cover the matters that he has mentioned.
My Lords, I join my noble friend Lord Smith of Clifton in congratulating the Government and the Taoiseach on the work that they did at St Andrews. It was a marvellous piece of work and all parties to the agreement had a great input. The conclusion has to be one of hope although I do not at all underestimate the difficulties that lie ahead for all parties regarding a shared future for Northern Ireland. I am particularly interested in policing. I was pleased to see that May 2008 is now proposed for the devolution of policing and justice. That is something that everyone can work towards. A tremendous effort has been made by the PSNI and the Chief Constable, Sir Hugh Orde, to engage Sinn Fein in dialogue to make it a full member of the policing board. I hope that the Minister will ensure that members of Sinn Fein understand the remit of the policing board, which is clearly set out in Annexe E. As now, it will have the power to require the Chief Constable to report on any issue pertaining to his functions or to those of the police service. All aspects of policing will continue to be subject to the same scrutiny as now. The security service will participate in briefings to closed sessions of the policing board to provide appropriate intelligence background about national security related policing operations
If Sinn Fein joins the policing board, it will become part of that group which will hear all the concerns about policing and those of the security services as well. That has to be a great prize for the peace and security of Northern Ireland.
My Lords, I agree 100 per cent with what the noble Baroness said. For that reason I shall not say much more as that could make matters worse. As I have always said, the way to get a solution is for all the parties coming to the table to walk away from it feeling that they have been successful and for the language of failure, victory, war or defeat to disappear; in other words, everyone should feel that they have been successful. That is what emerged from the events of last week. The consequences of those events are momentous. The expectation is that the Northern Ireland Policing Board will operate in virtually the same way as policing in the rest of the United Kingdom. That is our aim and aspiration.
My Lords, I welcome the Statement on the St Andrews agreement. That is possibly a misnomer since no one has yet agreed it; it is now up to the main political parties in Northern Ireland to agree it. But it is a proposal from the two Governments. I congratulate and thank the Prime Minister and the Prime Minister of southern Ireland, Mr Ahern, for the energetic way in which they have attended to this issue.
I see the St Andrews agreement as an extension of the Belfast agreement. I congratulate all those who I hope will support it in the coming days. On the so-called elections or referendum, since both Governments discussed this issue the Minister cannot sidestep the question of what will happen in the Republic of Ireland. Will it be a case of a referendum or simply the approval of the southern Irish Parliament? It will be a referendum if there are constitutional problems in the Republic. We need clarity on that issue. I am certain that that was discussed.
As regards Northern Ireland, would it not be odd to have a referendum if all the parties supported the issue? You would get very little enthusiasm for that and parties would be very unwilling to commit money to a referendum where the result was obvious. It may well be better for political parties to get a new mandate on the basis of the St Andrews agreement.
Will the Minister clarify the position on academic selection, as I am still slightly confused? If the St Andrews agreement proceeds and the Assembly and the Executive come into operation, will academic selection continue without taking any further decision? Will it be changed only after a cross-party vote in the new Assembly?
As clearly it was discussed with the southernIrish Government, and there is reference to it in theSt Andrews agreement, what is Plan B? Or do we have to use other means to find out what it is? The people of Northern Ireland need to know what the alternative is.
Will the Minister tell us more about the suggestion of a reduction in corporation tax in one part of the United Kingdom? Would that not mean fewer tax transfers from Northern Ireland to the Treasury? Certainly, it would be welcomed by business people, but would it not mean in return that the Treasury might send less money to the devolved institution, resulting in reduced expenditure on housing, hospitals and education?
Finally, when the St Andrews agreement is approved and the Assembly is up and running with an Executive, will the IRA still exist?
My Lords, under the rules of the House I believe that I have a choice of answering two of those six questions, so I will choose the two easy ones. There is no Plan B. If the noble Lord reads Hansard, he will see that the Statement said that if necessary we would formulate Plan B. There is no secret, hidden Plan B. If it all falls apart, we will formulate Plan B.
I repeat what I said about academic selection in case I did not make myself clear. If there is agreement by 10 November and the Assembly is restored by26 March next year, a decision to ban academic selection will be taken by the Assembly on a cross-community vote. When we discussed the order recently we agreed that that matter would be left to the Assembly provided it was restored. If there is no agreement and no Assembly, academic selection will remain banned. That is the position.
I cannot add to what I said on the elections. I do not answer for the Republic of Ireland; I answer for the United Kingdom Government. We shall discuss with the parties the best way of letting the people speak. That is their desire; the parties raised that themselves. There is a choice—an election or a referendum. That matter will be discussed in the weeks ahead.
My Lords, I join others in wholeheartedly welcoming the agreement. I welcome also the efforts made by the Minister, his colleagues, the Prime Minister and the Taoiseach. When the Member for North Antrim, the Reverend Ian Paisley, becomes the First Minister in Northern Ireland, he will be entitled to the support of all parts of the community. Was it not always the case that when he and Gerry Adams sat down at a table together under this agreement, we would make progress in Northern Ireland?
Can the Minister give the House any idea when the ard fheis is likely to be held to approve these proposals? Does he agree that unless the central issue of policing and the maintenance of law and order is addressed, and the rhetoric turned into reality, all the words will wither? Therefore, we need assurances about how to encourage members of the nationalist/republican community to join the Northern Ireland police service, to become involved and to do the things that were referred to today.
My Lords, I agree with the noble Lord, but I would counsel one thing. It does not serve any purpose for anyone anywhere to seek to put further hurdles in the way of any of the political parties in Northern Ireland making their internal decisions. The dates for decisions have been agreed. There is 10 November—and we have promised the Government that we will legislate urgently through this House and the other place—and there is26 March. It is entirely up to the political parties of Northern Ireland, the independent, registered political parties, to make their decisions. They know what decisions have to be made, and they have to be clear and transparent so that we can get an agreement.
I do not think that we should second guess those parties, saying, “We need to know by another date”, or whatever. It is up to them to do that. They are responsible and they want to share in the process. I agree entirely with the first part of the noble Lord’s remarks regarding the leader of the DUP. Nevertheless, it is up to the political parties in Northern Ireland now. The ball is truly in their court now; by 10 November we require their agreement to the St Andrews agreement. Otherwise there will be dissolution of the Assembly.
My Lords, while tributes have quite properly been paid to the leader of the Democratic Unionist Party, and to the leadership of Sinn Fein, I detain your Lordships for a moment in paying tribute to the work, dedication and courage of the Prime Minister in bringing about this move towards an agreement. Does my noble friend agree that the success of devolution in Scotland and Wales has helped to change the climate in Northern Ireland? Again, that devolution has come about because of the courage of this Government, and this Prime Minister in particular.
My Lords, I agree entirely with my noble friend. The fact of the matter is that the Prime Minister could easily have walked away from this. He could easily have walked away and not spent the time that he has chosen to spend on it. Frankly, very few people would have blamed him if he had walked away; but he did not. He gave leadership to try to bring the parties to an agreement, and it can only be an agreement where each of the parties feels as though they share some of the success. As I have said, the language of defeat and victory must be abolished. They have all got to feel as though they have a share of the success, and that is what the Prime Minister has been able to do.
My Lords, I congratulate both Governments unreservedly on Friday’s achievement in Scotland and on the contents of today’s Statement. I got into trouble more than a decade ago for congratulating the leaders of Sinn Fein on their courage. I do not think that I shall get into any trouble at all today if I especially congratulate the right honourable gentleman for North Antrim, Dr Paisley, on his courage. Of all the 14 places where Robert the Bruce may have famously observed the stamina of the spider, the most favoured is Rathlin Island, off the north Antrim coast. Now we have further proof. When does the Minister think the most fruitful time would be for your Lordships’ House to debate these historic matters?
My Lords, I cannot comment on that, but I pay tribute to the work of the noble Lord. I am told that the people of Rathlin Island vote to a man and woman for the leader of the DUP, because he got them electricity as a constituency Member, so he is definitely in their favour.
My Lords, like everyone else who has spoken, I think the people who made this proposal for an agreement are to be congratulated from all sides. I have three questions for the Minister. This is about devolution and not independence. Is there any indication from Sinn Fein that when we have a devolved Assembly—if we have it—it will come to Parliament to represent its constituents and make the proper Oath of Allegiance so that it can serve its constituents not only in the devolved Assembly but in this Parliament?
Secondly, I have a question on Annexe B, which says:
“We will establish a forum on a Bill of Rights and convene its inaugural meeting in December 2006”.
Why does a devolved Northern Ireland need a separate Bill of Rights? We already have a Bill of Rights that applies to the whole of the United Kingdom. I would like to hear the Minister’s comments on why there is a proposal for Northern Ireland to have a separate Bill of Rights when it will still be part of the United Kingdom.
Finally, will the Minister explain the sentence on page 5 of the Statement:
“Power will be devolved and d’Hondt will be run”?
Could we know what d’Hondt is? I think I probably do know, but not everyone does, and it would be nice to have it in Hansard.
My Lords, I will choose to answer the one easy question; d’Hondt is the formula for dividing up the proportions of the parties in the Executive to be Ministers. It is a well-known formula; I do not have a visual aid to explain how it works. It has worked before in Northern Ireland; it works elsewhere. Everyone accepts that it is a fair way to distribute seats.
On the other two questions, Annexe B speaks for itself. Northern Ireland has different rights and rules, and there is different legislation relating to equality. There are several mentions of that. Secondly, as far as the noble Lord’s first question is concerned: again, why put further hurdles in the way of parties who are coming to an agreement?
My Lords, I have two questions for the Minister. First, has the IRA now agreed to recognise British courts and British justice, which it has still steadfastly refused to do publicly? Incidentally, when is the McCartney case going to come to trial?
Secondly, I see that there is concern about victims, and that is very reassuring. When Martin McGuinness was last asked whether they would allow back those people who had been expelled from Northern Ireland by the paramilitaries, he said that that would not be in the interests of the community, and they would not do it. Has that issue been taken up? Are the rights of those people, very many of them expelled for the most monstrous reasons, to be taken up? I ask because it is little use to talk about victims without paying attention to the victims who still exist and who need not be victims.
My Lords, as I recall, one of the four orders due in Grand Committee next week relates to victims; it may relate to the victims’ commissioner. I will be happy to take advice to answer that. I cannot possibly comment on the McCartney case; it is not relevant to this Statement.
As far as recognising the courts is concerned, the specific answer to the question is, “I don’t know”. But the point is that we are dealing here with the devolution of the criminal justice and policing system of Northern Ireland. That is what this has all been about, and the recognition and acceptance of that has actually been the key to unlocking movement to get the Assembly back. So movement is under way on this, and that is clearly set out both in the Statement that has been made by the Secretary of State and in the agreement. We will know by 10 November.
Violent Crime Reduction Bill
Consideration of amendments on Report resumed on Clause 16.
[Amendments Nos. 23 to 25 not moved.]
Page 15, line 37, at end insert-
“( ) A local authority must consult every person listed in subsection (4)(c) for a further period of 14 days after the period set out in subsection (8)(a) before designating the locality unless the conditions set out in subsection (8)(b) apply.”
The noble Baroness said: My Lords, when I spoke to the large group of amendments that represented questions from the Wine and Spirit Trade Association, I made the point that there would be a couple of other amendments covering new aspects that I would need to move today on matters that had been brought to my notice since Committee.
Amendment No. 26 seeks to build consultation into the time frame of creating an alcohol disorder zone. The licensed trade has pointed out that it would be sensible to have a statutory two-week period between the action plan stage and the potential stage of the designation of the zone. That would allow time for the essential consultation between the local authority, the police and all affected businesses. Surely, it would be to the benefit of everyone in the community if there were time built into the process for constructive discussion to take place between all parties on how best to deal with the problems in a locality. I beg to move.
My Lords, it might help if I set out how we see ADZ designation working. An ADZ can be implemented if, after eight weeks following publication of the action plan, steps are not being taken that are sufficient to enable the local authority to consider designation to be necessary, or if before or after eight weeks the local authority is satisfied that the plan will not be implemented or that the steps required are no longer being taken, or if that effect is no longer being given to arrangements made in accordance with the plan.
The amendment seeks to add a further stage to the process at the eight-week point if the local authority does not consider that the steps taken are sufficient to render the designation unnecessary. It would require local authorities—as I understand it, and as the noble Baroness has explained—to consult licensees for a further period of 14 days before designating the ADZ. I understand the noble Baroness’s concern, which, I assume, is intended to ensure that a final warning is issued before the local authority designates an ADZ—the final opportunity to take steps to implement the action plan.
As I stressed in Committee, the action plan is the real prize. That is best illustrated by the constructive work we have undertaken with the Wine and Spirit Trade Association, following Committee, on the guidance to local authorities on designation and the flexible approach that we want to see taken towards the action plan.
Throughout the eight-week period, we expect the local authority to engage with licensees to ensure that steps to implement the action plan are under way. It is clear that sitting back and waiting for the eight weeks to expire will not achieve the desired outcome. There will be a need to ensure that licensees are given ample warning before designation. However, I do not believe that we need to introduce an additional step into the process in the Bill or, effectively, to seek to prolong the eight-week period and turn it into a 10-week period.
Guidance will reinforce the need for local authorities to engage with licensees throughout the eight weeks and for local authorities to ensure that, as the eight-week point approaches, licensees have every opportunity to deliver on the plan. It is important to see how that operates on the ground. If we can get the guidance right and ensure that the eight-week period is used actively, whereby there is a continual loop of contact between the local authority, police, licensees and so on, then the issue of concern to the noble Baroness will melt away and the process will be more workable and less bureaucratic, so that the extra period she seeks will become unnecessary.
My Lords, as the Minister stated, the Government see the action plan as the real prize. Responsible traders have already been involved in working out their own action plans and we are concerned that there is not too much bureaucracy or that steps are not taken against people who are trying to ensure that there is no public disorder.
Like the Minister, I do not wish for the period of consultation for the action plan to stretch so much that nothing ever gets done. Equally, I want to ensure that the consultation period is carried out effectively and that those who co-operate in producing the plan do not suddenly find themselves facing the imposition of a plan and an ADZ when they have tried to do all that they can.
I appreciate why the Government are trying to avoid an extra two-week delay in the system, but given that this is a new idea, I will go back to the Wine and Spirit Trade Association and find out whether the Minister’s words have reassured it or whether I need to take any further action at Third Reading. At this stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 17 [Procedure for designation of zones]:
Page 16, line 13, at end insert-
“( ) Twelve months after the compulsory charging stage of an alcohol disorder zone is implemented, the locality will cease to be designated as an alcohol disorder zone.
( ) If the local authority and police authority agree that the designation of the locality as an alcohol disorder zone should continue, they may repeat the procedure set out under section 13 for the designation of the locality as an alcohol disorder zone.”
The noble Lord said: My Lords, I retabled this amendment because I am anxious about whether the Government have had any further thought about terminating the orders made under Clause 15. I have suggested to the Government that there should be a cap on the statutory charge; that has not been successful. Your Lordships have voted down our suggestion that there should be further clarification of the extent of an alcohol disorder zone. The amendment deals with its temporal limits.
I am anxious that the local authority that seeks to designate such zones should not find them an easy way of raising additional revenue and roll them over, which is what the Bill permits. The order can be rolled over without again going through the necessary procedures. The purpose of tabling the amendment is to ask the Minister whether there is any news. Have we advanced? If not, what is his and his colleagues’ thinking on this issue? I beg to move.
My Lords, I am not sure that we have much more to add to what was said in Committee. I can understand where the noble Lord is coming from and is trying to go. The amendment imposes a sunset of a year on an alcohol disorder zone after compulsory charging begins. That is not right, nor is the requirement for the local authority and local police authority, not the local chief police officer, to restart the process if they believe that the ADZ should continue. We can see no merit in the noble Lord’s proposal.
However, a year is a long time and the vast majority of ADZs will probably come to a natural conclusion within a shorter time. We do not expect them to have an extensive life. After all, ADZs will be reviewed at three-monthly intervals. We expect the review to be thorough and to look extensively at whether the problem has been addressed. We intend the guidance to be very clear on that point. Given the intensive enforcement effort involved at the compulsory charging stage, it is unlikely that ADZs will last more than a year.
Perhaps those may turn out to be famous last words, but one can never be precise about these issues. When the ADZ covers an area with intractable problems that may be more deeply rooted than even the development of an alcohol disorder zone can deal with, a lengthier period may be required—but that is unlikely. One would hope that the effort put in by the police, the local authority and others involved in the zone should fairly speedily begin to have an effect and, I hope, wind up the ADZ within a year.
So the amendment is not necessary, nor would the extra effort be required for the local authority to renew an alcohol disorder zone. While I understand what the noble Lord is trying to achieve, we need to set the system in motion, view the imposition of ADZs as a last resort, hope that people are involved at an appropriate level and manner and ensure that we monitor the way that ADZs work and build on experience. Thus a “sunset” of a year would become unnecessary and I hope that the noble Lord will withdraw the amendment.
My Lords, I am grateful to the Minister. I think that he has said enough in setting out the Government’s policy and thinking behind this legislation to make it open to local licensees who feel that the local authority is abusing the powers given by the Bill to seek redress in the courts if necessary. I am sure that if they did that in the case of abuse, the Minister's statement today would be well employed. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 20 [Supplemental provisions for Chapter 2]:
[Amendment No. 28 not moved.]
Clause 23 [Offence of persistently selling alcohol to children]:
Page 23, line 18, at end insert-
“(6A) Upon an unlawful sale of alcohol taking place, the designated premises supervisor and the premises licence holder of the premises where the unlawful sale was made must be immediately notified of the unlawful sale and provided with evidence of that sale.”
The noble Baroness said: My Lords, this is another fresh matter that has arisen since Committee.Clause 23 creates a new offence of persistently selling alcohol to children. The offence is committed if on three or more different occasions in three consecutive months alcohol is unlawfully sold on the same premises to a person under the age of 18.
As I made clear in Committee, we on these Benches strongly support the creation of the offence, and the amendment has been tabled to probe the most speedy and effective way of preventing alcohol being sold to children. The Wine and Spirit Trade Association is concerned that, if an unlawful sale takes place, it is imperative that the designated premises supervisor and premises licence holder are immediately informed and can take appropriate action.
I understand that retailers are worried that in exceptional circumstances three test purchases could take place within a short time. For example, one particular sales assistant may be on duty and acting outside instructions during those three narrowly spaced periods of sales. That could mean that the designated premises supervisor or premises licence holder would not have the appropriate knowledge to enable them to take any remedial action until they had been notified that there had been three failed tests, which would prompt the possibility of their licence being suspended for three months. The amendment would therefore ensure that the store manager was aware of the problem and able to take action immediately to rectify the problem. Surely that would also be of benefit to other young people in the neighbourhood who might otherwise slip through the net and be able to buy alcohol while the problem went undiagnosed until there was a third report of an offence. I beg to move.
My Lords, I support the amendment and draw your Lordships’ attention to an article which appeared in the Metro newspaper on9 October headed, “Drinkers caught out by a lock-in”. A Mr Ronny Carter, who runs the G-Bar in Oxford, had his suspicions about 23 drinkers inside his public house, so he locked the doors, turned the light on and called the police. The drinkers all provided identification to show that they were over the age of 18 but, in fact, when the police asked everyone who was carrying a fake ID to sit down, only one out of 23 remained standing. That was a piece of self-help on the part of Mr Carter which is highly to be commended. The spirit behind the amendment rather reflects Mr Carter's attitude and we support it.
My Lords, my explanation will be a little longer than most but I hope that it helps the noble Baroness and those who have brought this issue to our attention.
I am grateful to the noble Baroness for tabling the amendment because, ultimately, it goes to the heart of the responsibilities placed on licensees by the Licensing Act 2003. As I understand it, the amendment would require the designated premises supervisor—the DPS, as he or she is generally referred to—and the premises licence holder to be notified immediately when any unlawful sale of alcohol took place on their premises. It would also require those persons to be provided with evidence of the offences.
The premises licence holder, which will often be a business, is responsible for ensuring that licence conditions are adhered to and that licensing law in general is complied with. We strongly believe that these absolute responsibilities cannot be avoided, even if the business headquarters is some distance away.
The amendment does not set out which person or body should give the required notification or provide the required evidence, but I assume that the intention is that this new requirement would fall on the enforcement officers. In other words, it proposes more work for the police or trading standards officers who detect the offences. Incidentally, it indirectly adds another layer of bureaucracy to the fixed penalty notice arrangements for the police.
We need to consider and understand the deeper significance of the amendment and, in doing so, it is important to look back at the development of the Licensing Act 2003. When the reform of the licensing laws was being considered, the alcohol retail industry successfully lobbied for a split licensing regime under which the premises licence would be held by the business and the personal licence would be held by employees. The intention was that managers could move around freely without the premises licence having to be transferred.
However, in giving businesses this greater flexibility, Parliament also placed on the businesses holding the new premises licences direct responsibility for ensuring that licence conditions were adhered to and that licensing offences did not take place. Large chains involved in retailing alcohol are therefore no longer able to abdicate responsibility to managers, who used to hold the old liquor licences. The new job of the premises licence holder is to prevent breaches of licensing law and licence conditions and not just to react to them. This goes to the heart of the amendment.
I know that the noble Baroness is concerned about fairness and reasonableness, as we all are. She asks what would happen if three offences were committed within 20 minutes and the DPS and premises licence holder did not know. How could they have time to rectify the situation? Let us be clear. If three criminal offences, each potentially punishable by a maximum fine of £5,000, are committed within 20 minutes, each one represents a fundamental failure by the DPS and the premises licence holder to fulfil their responsibilities under the Licensing Act 2003. Their role is to ensure sufficient supervision to prevent such crimes.
These individual crimes must not be trivialised. I am sure that the noble Baroness will recall that the Government and this House began the process of toughening the law on selling to children by supporting the Licensing (Young Persons) Act 2000. That Act began life as a Private Member’s Bill promoted by the Member of Parliament for Pudsey and arose because of the death of one of his14 year-old constituents, David Knowles. The House will recall that David Knowles ran to his death on a major road after drinking alcohol that had been repeatedly sold to him by a store throughout a single afternoon. That is the potential consequence of the criminal act of selling alcohol to young children.
When the Government have met the large chains, they have given assurances that they will work to improve their poor performance on the sale of alcohol to children. Yet the amendment implies that they would not even know, and should have no reason to know, that offences were being committed on their premises if the enforcing authorities did not bother to tell them. That would hardly inspire confidence that they were taking their new responsibilities seriously or that they were ensuring proper supervision of the premises.
The industry cannot have the increased flexibility provided by the Licensing Act but not the attached responsibility. Under the Licensing Act, new rights and flexibilities go hand in hand with new responsibilities and sanctions for failure. Would itbe unfair if three test purchases took place within20 minutes, giving rise to the new offence in the Bill? Ultimately, I think not. Individual test purchases are a well established enforcement mechanism for revealing failures which go much deeper than the individual offence detected.
Before a test purchase occurred, how many unlawful sales could well have taken place outside the knowledge of the enforcement agencies? How many children would already have been harmed? Test purchases are generally targeted on the basis of local intelligence. The likelihood is that a large number of offences will have gone undetected and unpunished.
The threat of test purchasing is intended to create a severe deterrent to these crimes. The Government do not intend to restrict the work of the enforcing agencies by providing guidance that the DPS or premises licence holders should always be told about test purchase failures. I have no doubt that they may sometimes be told, and it is by no means unusual for failures to be discussed with the DPS. However, in our view, insisting on such a practice would send out all the wrong messages. It would imply that there was some kind of acceptable failure rate before further action was taken. There is no excusable failure rate in an area as important as this. The new offence punishes the failure of the premises licence holder to prevent persistent and repeated offences taking place on the premises for which the holder is responsible. If they need a warning, let the message from this House be that a single unlawful sale is unacceptable. There can be no excuses.
However, the House should also remember that if the offending business does not want to accept the prohibition on sales of alcohol for 48 hours, it may elect to go to trial. It would be free to argue the perceived unfairness of the situation. The court would be under no obligation to fine the business or suspend its premises licence at all.
If the new offence causes the industry to invest in better and more effective management supervision and better training for staff selling alcohol, the House should welcome and applaud that. The expenditure on alcohol each year in this country now exceeds£40 billion. The industry can afford to ensure that it complies with its responsibilities to children and their parents and to the wider community.
During the debates on the then Licensing Bill, the protection of children from harm was one of this House’s top concerns. To its credit, the House persuaded the Government to toughen up that Bill to protect young people better. I do not think that the House should now retreat on that. It is not for licensing officers, the police and trading standards officers to meet the responsibilities of supermarkets, pubs or convenience stores by being their eyes and ears.
Of course, as Government, we shall continue to work closely with the alcohol retail industry to reduce sales to young people. While we are making progress in this area, the Government must push for zero tolerance to ensure that children are given the highest level of protection possible. This is not an area where business should be thinking only of minimising its liabilities. That might not be a message that the noble Baroness and the noble Lord wish to hear, but it is a fair one, sets out our position very clearly and makes plain the responsibilities of those in the industry. For those reasons I cannot accept the amendment.
My Lords, the Minister speaks as though all licensees are trying to sell alcohol to young persons and trying to evade their duties. That was the general tenor of his answer. The amendment was tabled as a probing amendment, to try to ensure that those traders who are responsible and co-operating with the Government are able to take remedial action as soon as possible. The Minister says that the three test purchases are now unlikely to take place unless there has been a considerable history of bad behaviour by the licensee. If that were so in each and every case, one would not have sympathy with the retailer who must be failing in his or her duty to train and monitor staff properly. The concern remains that there will be people who are doing all that they can to ensure that there is no bad sale. I repeat what the Minister said—that a single failure rate is unacceptable. I agree, but of course there is the issue of acquiring the evidence to take a person to court. Some of the people who may be caught by this may be trying to take a responsible approach. I agree with the Minister when he says that underlying all this is the fact that there should not be sales to young people.
As a magistrate, I used to sit on a licensing Bench and I used to visit licensed premises, including a particular off-licence where there were reports of difficulties relating to underage people. As soon as that was notified properly to the licence holder, action was taken. The difficulty was that there was much rumour but no one had been prepared to put up and they certainly did not shut up until later on.
I shall take the advice of the Wine and Spirit Trade Association to see whether it wishes to probe further at Third Reading. However, today I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
After Clause 24, insert the following new clause-
“MANDATORY PREMISES LICENCE CONDITION: DOOR SUPERVISION
(1) Section 21 of the Licensing Act 2003 (c. 17) (mandatory condition: door supervision) is amended as follows.
(2) In subsection (1) for “be licensed by the Security Industry Authority” substitute “-
(a) be authorised to carry out that activity by a licence granted under the Private Security Industry Act 2001; or (b) be entitled to carry out that activity by virtue of section 4 of that Act.” (3) In subsection (3) in paragraph (a), at the end insert “and which is licensable conduct for the purposes of that Act (see section 3(2) of that Act)”.
The noble Lord said: My Lords, this amendment will correct an unforeseen consequence of Section 21 of the Licensing Act 2003. At present, where a premises licence issued under the Act requires one or more persons to be at the premises at any time to undertake security activities, it must also, subject to several exceptions, require such persons to be licensed by the Security Industry Authority, even if the Private Security Industry Act 2001 does not require them to be licensed. Subject to certain exceptions, Section 21 of the 2003 Act catches all persons performing these activities, whether they are required to be licensed by the SIA or not.
The practical consequences of this have recently come to light. In plain English this means that when the wording of a premises licence requires security staff to be present at an event to carry out a security activity, there are cases where they have to be SIA-licensed, even if they are not required to be licensed by the 2001 Act. That includes volunteers and other groups that have been exempted, including those who are working legally under a licence dispensation notice. The amendment aims to correct that anomaly. I beg to move.
On Question, amendment agreed to.
After Clause 24, insert the following new clause-
“DESIGNATED PUBLIC PLACES
(1) Section 14 of the Criminal Justice and Police Act 2001(c. 16) (places which are not designated public places) is amended as follows.
(2) In subsection (1)-
(a) for paragraph (a) substitute- “(a) premises in respect of which a premises licence has effect which authorises the premises to be used for the sale or supply of alcohol; (aa) premises in respect of which a club premises certificate has effect which certifies that the premises may be used by the club for the sale or supply of alcohol;” (b) in paragraph (b), after “(a)” insert “or (aa)”; (c) in paragraph (c), for “20” substitute “30”. (3) After subsection (1) insert-
“(1A) Subsection (1B) applies to premises falling within subsection (1)(a) if-
(a) the premises licence is held by a local authority in whose area the premises or part of the premises is situated; or (b) the premises licence is held by another person but the premises are occupied by such an authority or are managed by or on behalf of such an authority. (1B) Subsection (1) prevents premises to which this subsection applies from being, or being part of, a designated public place only-
(a) at times when it is being used for the sale or supply of alcohol; and (b) at times falling within 30 minutes after the end of a period during which it has been so used. (1C) In this section ‘premises licence' and ‘club premises certificate' have the same meaning as in the LicensingAct 2003.””
The noble Lord said: My Lords, this amendment resolves an unintended problem associated with the licensing of public spaces under the LicensingAct 2003, and the use of designated public places orders—DPPOs—under the Criminal Justice and Police Act 2001. That Act gave local authorities the power to introduce DPPOs, making it an offence in the designated public area to drink alcohol after being required by a police officer not to do so or to fail to surrender alcohol or alcohol containers when requested to do so by the police. To safeguard the legitimate business of pubs and clubs, the 2001 Act also provides that areas that have a justices’ licence—now premises licence or club premises certificate under the Licensing Act 2003, or a temporary event notice authorising the supply of alcohol—cannot be designated as part of a DPPO.
The Licensing Act 2003 brought the licensing arrangements for a range of activities under the same licensing regime. This means that premises licensed for the sale of alcohol, the provision of regulated entertainment and the provision of late night refreshment now hold the same type of authorisation. The 2003 Act’s statutory guidance encourages local authorities to seek premises licences for public spaces, in order to allow local community events such as farmers’ markets, open-air festivals, concerts and carnivals to take place without the need for each individual event organiser to apply for a separate licence. The local authority would hold the licence and allow the various events to operate within its terms.
The unintended consequence of this is that, where local authorities apply for a premises licence in respect of public spaces in order to hold regulated entertainment, and in some cases allow the sale of alcohol at certain times, those places cannot then be designated as part of a DPPO. Concerns have been raised by a number of local authorities that wish to promote community events by licensing public spaces but also wish to make use of DPPOs in tackling the problems of anti-social drinking. The current position offers no flexibility and needs to be addressed.
The effect of the Government’s amendments is that where a local authority holds a premises licence, occupies a premises subject to a premises licence or has managed on its behalf a premises subject to a premises licence, a DPPO will be excluded from applying to those premises only at times when alcohol is being sold or supplied and for 30 minutes thereafter. At all other times, the premises will be able to be the subject of a DPPO. In other words, the DPPO, if one has been introduced by a local authority, will not apply while alcohol sales are taking place. The DPPO will apply once the alcohol sales cease and after the expiry of a 30-minute grace, or wind-down, period after the last sale has been completed. In effect, there will be a temporary suspension of the DPPO in such situations.
There are two other minor and technical changes related to the amendment. The first clarifies the 2001 Act to the effect that a DPPO is excluded from applying to a premises only where the premises licence under the Licensing Act authorises the sale or supply of alcohol. Other forms of authorisation—for example, licences authorising entertainment only—will not be affected and premises subject only to them can still be within a DPPO. The second ensures consistency with the main amendment by replacing “20 minutes” with “30 minutes” for the length of time after the expiry of a temporary event notice that a premises must remain outside the scope of a DPPO. A temporary event notice is an alternative form of authorisation for alcohol sales under the Licensing Act for occasional events.
The rationale in the 2001 Act for excluding TEN-authorised premises from DPPOs is the same as for licensed premises. Logically, the grace, or wind-down, period before a DPPO can apply should be the same after the end of an event as it is after the end of alcohol sales on local authority occupied or managed premises. The amendment would bring the two grace, or wind-down, periods into line.
I hope that that explanation is clear. I beg to move.
On Question, amendment agreed to.
Before Clause 26, insert the following new clause-
“OLYMPIC TARGET PISTOLS
After section 7 of the Firearms (Amendment) Act 1997 (firearms of historic interest) (c. 5) there is inserted-
“7A OLYMPIC TARGET PISTOLS
(1) The authority of the Secretary of State or the Scottish Ministers (by virtue of provision made under section 63 of the Scotland Act 1998) is not required by virtue of subsection (1)(aba) of section 5 of the 1968 Act for a person to have in his possession, or to purchase or acquire, or to sell or transfer, an authorised pistol if he is authorised by a firearms certificate to have the pistol in his possession, or to purchase or acquire it, subject to the following conditions-
(a) that it is only for use in connection with training for and competing in the Olympic sport of target pistol shooting, (b) that it is only for use at regional shooting clubs designated by the Secretary of State as a place where such pistols can be used, (c) that it is stored at such designated sites and can only be removed subject to the authorisation of the Secretary of State. (2) For the purposes of this section an authorised pistol is a pistol whose specifications are determined by order made by statutory instrument by the Secretary of State.
(3) In determining such specifications, the Secretary of State must consult the International Shooting Sports Federation.
(4) This section shall not come into force before 1st January 2010 and shall expire on 31st December 2012; but this is subject to subsection (5).
(5) Her Majesty may by Order in Council provide that this section shall (instead of expiring on 31st December 2012) expire at the end of a period specified in the Order.
(6) No recommendation may be made to Her Majesty in Council to make an Order under subsection (5) unless a draft of the Order has been laid before, and approved by resolution of, each House of Parliament.””
The noble Lord said: My Lords, I bring this amendment back on Report because we have no clarification and are nowhere near where I had hoped we would be in discussions with Her Majesty's Government. My objective is to persuade the Government to be clear about their intentions. The objective of the amendment is to persuade the Government to amend the firearms legislation so that it does not disadvantage UK competitors in small-bore/pistol shooting in forthcoming Olympic Games. I am sure that the Minister needs no reminder that training by all athletes for the 2012 Olympic Games has already started and is intense, vital and ongoing. As the law stands, pistol shooters and the like are at a significant disadvantage.
I have two letters in front of me. I hope that I am allowed to have them, but if not, bad luck for the Government. The first was sent to my noble friend Lady Anelay by Simon King, who states:
“The Government is committed to allowing pistol shooting events at the 2012 London Olympics. The Secretary of State already has sufficient powers under section 5 of the 1968 Firearms Act to authorise competitors and officials to possess competition pistols for the duration of the Games, and the special warm-up events. These powers were used successfully for the 2002 Commonwealth Games held in Manchester…The same powers could be used to allow a small number of potential medal winners to practise in Great Britain in advance of 2012”.
That is not what we are after—it really is not. It is a sensitive issue and great care is needed to ensure that public safety is not put at risk.
Let us not go totally crazy—we finished talking about the IRA and so forth only half an hour ago. Legislating for professional people to have specialised weapons under a special regime will not possibly, in anyone’s imagination, endanger anyone’s life anywhere. It is not real thinking. I understand the political sensitivity and I can see that people are frightened. I regret to say that my party started this legislation some years ago. It has carried on, but it should not have done and I ask the Minister to rethink it.
I am more concerned about a letter to Richard Caborn signed “pp Vernon Coaker”. Its earlier paragraphs say more or less the same as the letter to my noble friend Lady Anelay, but the last paragraph says:
“Whether or not we will use our section 5 powers to authorise such a scheme will ultimately be a matter of detail but I agree in principle that this should be explored further”.
I submit that the matter should be explored further and very quickly. A conclusion should be reached and the whole situation clarified. Frankly, as an Olympian and an athlete, and as one who cares about the medal tables in 2012, I think that bureaucratic stupidity is getting in the way of reality. I know that I am using strong words in your Lordships' House, but I feel strongly about the issue. Having talked to the Minister—I thank him for giving me his time—to Richard Caborn and to others, and having been received sympathetically, I think that it is time for the talking to stop and for the Government to come forward with a solution to this issue, which should not be difficult to dream up. I beg to move.
My Lords, I strongly support my noble friend. We are not trying to do anything that will in any way imperil public safety—just the reverse, obviously. We want assurances that our sports men and women will be able to practise freely and readily for these particular disciplines in the 2008 and 2012 Olympics. We want them to be able to practise in this country at venues convenient to them, and we want permission to be given to all those who reasonably anticipate that they will take part in those disciplines at the Olympics. So far, it is as though they have been treading in treacle, with one department writing to another in occluded language and no one getting round to saying to the potential Olympians, “Okay, here’s your authority. Go ahead and practise”.
My Lords, I pay tribute to the noble Lord, Lord Glentoran, for his passion and commitment on this issue. I understand and sympathise with his frustration at treading in treacle, as the noble Baroness put it, and failing to make progress with officials. I want to make it clear that the Government and I are sympathetic to his point of view and I am sure that, when we come to deal with the issue in a practical way, matters will be resolved as we would all wish.
The Government have always made it clear that pistol-shooting events will be able to go ahead in the 2012 London Olympics without the need to change the legislation. Instead, we will use the Home Secretary’s powers under Section 5 of the Firearms Act 1968 to authorise competitors and officials to possess competition pistols both for the duration of the games and for special warm-up events. As the noble Lord conceded, such arrangements worked well for the Manchester Commonwealth Games and there has never been a great difference of opinion between us on that issue.
However, there is more of a difference between us in determining the arrangements that might be made to allow people to train in the UK ahead of the games, which is at the heart of this amendment and a similar one tabled in Committee. It seeks to meet previous concerns that there was no sunset clause by giving a date of 31 December 2012, but still looks to keep the arrangements in place by providing for the date to be extended by Order in Council.
We are not persuaded that we have to change the legislation as proposed, although I can confirm that we have been working with colleagues in the Department for Culture, Media and Sport and representatives of the sport to find a way through this sensitive issue. As we have said, this can be resolved using the Secretary of State’s powers under Section 5. These powers are not tightly circumscribed and it is possible to attach such conditions as may be thought necessary to ensure that public safety, or the police, are not endangered.
As with the previous amendment, the proposed new clause is not confined to those with a realistic chance of becoming an Olympian. As drafted, it would leave it open to any shooter to claim that he was training with that as his long-term aim. This amendment goes far too wide and, indeed, might be seen as a weakening of our gun controls.
Furthermore, if we are looking to allow an elite squad to train before the Olympics, I am not convinced that the shooting organisations would be happy with the proposed start date of 1 January 2010. I am sure that the noble Lord knows much more about it than me but, in my amateur thinking, it takes time to develop and maintain a performance pyramid to meet agreed targets, and any chance of success would be severely compromised by the limited time allowed by the proposed new clause.
Although I accept that the amendment is sensitive to the need to ensure that any training allowed takes place in a safe environment, I believe that it lacks the flexibility that can be achieved using Section 5 powers. As promised, we are fully engaged with the sport in trying to establish suitable arrangements, and we understand that it is content that this is a satisfactory way of progressing the matter.
The noble Lord, with his understandable passion and commitment, has made a case, but the amendment does not fit the Bill, as it were, and, because of its inflexibility, could have an adverse effect on the training programme for shooters wishing to compete in the 2012 London Olympics. I give an assurance that we will use the Section 5 powers flexibly to achieve the outcome desired by all sides in this argument; that is, to ensure that competitors and officials are able to possess competition pistols and to practise to perfect their skill for the Olympics. I am sure that they will be successful in the event.
My Lords, my noble friend Lady Anelay raised the point that shooters will want to compete in the 2008 games. Will the Government be cognisant of that fact and bring the legislation in early enough to ensure that our teams have good success in 2008, which will give them even greater success in 2012?
My Lords, I do not have eyes in the back of my head, but my colleague tells me that my officials are nodding. Let us take a nod and wink as saying yes on this occasion, as I am sure that that will be the case. I had assumed that it was already the case. I hope that that reassures the noble Baroness and the noble Lord.
My Lords, I thank the Minister for his response and his acceptance of my passion. He is right to say that I am driving at the need for athletes to train well in advance. That means today; it means tonight. I put the date of 2010 in my amendment with my fingers crossed because I thought that we would probably be in power by then and we would be able to sort it out. So I was fairly light-hearted when I chose a date to serve the purpose of the original probing amendment in Committee and I left that date in this amendment.
The nub of this matter, which I think everybody understands—I know that the officials do, because I have seen them nodding on different occasions, and I know that the Minister does—is that there is a big bag of medals available in a number of sports for Olympian men and women if they are good enough on the day. I have worked with dear old Richard in the past and we are doing our best to make sure that we get in the top four in that medal table. At the moment, the Home Office is, to put it kindly, not helping by being obdurate in not legislating or amending legislation and by not telling us how it plans quickly to help our star performers and our up-and-coming stars—our second XI—to train and to reach the standard required to win medals. I thank noble Lords for listening, and I hope that I may hear more from the Minister before Third Reading, either in the Chamber or outside it.
My Lords, I heard what the noble Lord said, and I will speak with our officials again to do what I can to ensure that things are put in train to enable what needs to happen to do so and to make sure that flesh is put on the bones of what we intend to do with Section 5 of the 1968 Act and how it would work.
Page 30, line 29, leave out subsection (6).
The noble Lord said: My Lords, Amendments Nos. 33 and 34 deal with minimum sentences. I do not understand the rationale behind minimum sentence requirements in Home Office Bills. We have a sentencing council, mostly made up of practitioners, that gives recommendations. The Lord Chief Justice gives practice directions. The Court of Appeal deals with sentences and lays down guidelines for particular offences. These are all people who have spent a lifetime—the practitioners, at least—dealing with these problems. If anybody knows the right sentence in a specific case, it is them. But along comes the Home Office, with nil experience of the courts and how they work or of everything that goes into sentencing, and, through various Home Office Ministers and through the Home Secretary, demands that the court should impose minimum sentences, except when we come to Clause 27(6), where there is a proviso,
“unless it is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify”,
the court not giving a minimum sentence of three years. So there is a let-out clause for the judiciary if it thinks that the minimum sentence set out in that clause would be unjust.
Then in Clause 28 we come to complicated amendments of the 1968 Act. I find it impossible to trace through the Act to find out what is intended, but minimum sentences for certain firearms offences are again laid down. Why do Home Secretaries interfere with what is essentially a function of the courts in our constitution? One of these days, we will have a written constitution. Indeed, the noble and learned Lord, Lord Goldsmith, has called for a written constitution that will clearly set out the responsibilities of the various branches of government and its relationship to the judiciary. But the Government cannot resist meddling. Here is a fine example of meddling, with a proviso—a “get out of jail free” card—stuck on to it. It is an excrescence. I hope that the Minister will be persuaded by my mild remarks to remove it from the Bill, not just from Clause 28. I beg to move.
My Lords, I suppose that the words of the noble Lord, Lord Thomas of Gresford, were mildly provocative. I shall try not to rise to the bait too quick or too hard. As the noble Lord knows, in the Criminal Justice Act 2003, the Government introduced a minimum sentence for certain firearms offences in response to the rising level of gun crime. The aim was to deter criminals from using guns and to ensure appropriately tough sentences for those who still did. This approach has had some success. In 2004-05, there was a 5 per cent decrease in the number of crimes in which guns were used and handgun offences fell by 15 per cent. Statistics for the year ending 2005 show that firearms offences, excluding air weapons, were down 3 per cent and fatal injuries were down 30 per cent.
That shows that the minimum sentences can work. It is a tough measure, but the courts can still take account of exceptional circumstances—the noble Lord alluded to that—relating to the offence or the offender and can impose a lesser sentence if they consider it justified. The Government think that that is the right balance and are committed to the minimum sentence measures in the Bill.
Amendment No. 33 would prevent the courts from imposing a minimum sentence on 16 to 18 year-olds convicted of the new offence in Clause 26 of using someone to mind a weapon. I regret to say that it is not unknown for 16 to 18 year-olds to use guns and other dangerous weapons and it is therefore important that the minimum sentence applies to that age group, too. However, taking account of the fact that they are juveniles, Clause 27 provides for a different minimum sentence from that for adults. Instead of five years’ imprisonment, the minimum sentence is of three years’ detention.
Amendment No. 34 would remove from the Bill what we consider to be a useful addition to the existing minimum sentence provisions for firearms offences. At present, the minimum sentence applies only to simple possession of a prohibited firearm. Clause 28 applies the minimum sentence to other offences involving the possession of prohibited firearms, such as possession with intent to injure or possession with intent to cause the fear of violence. That will ensure that an offender who commits one of those serious offences does not escape the minimum sentence by inadvertently not also being charged with the simple possession offence. The Government believe that minimum sentences can work. There is rightly the provision for the courts to take account of exceptional circumstances and to impose different sentences on juveniles. The measures in the Bill reflect that and, we believe, are balanced and fair.
I have little expectation that the noble Lord will agree with me, but I invite him to consider those comments before he, I hope, withdraws the amendment.
My Lords, there is not the slightest evidence that the decrease in gun crime is related to the fact that minimum sentences have been included in various Bills. There is not the slightest evidence to show that the sentence passed by a particular judge in court would have been any different with or without the minimum sentences. It is gesture politics. It is a political act; it is sending messages. I am totally opposed to using the criminal law to send messages via the red-top papers. I shall not press this to a vote, but every time the Government propose minimum sentences, I will say something along similar lines. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 28 [Minimum sentences for certain firearms offences]:
[Amendment No. 34 not moved.]
Clause 35 [Specific defences applying to the offence under s.34]:
Page 38, line 30, at end insert-
“( ) the participation in the sport of airsoft organised by persons in such manner as may be specified for the purposes of this section by regulations made by the Secretary of State”
The noble Baroness said: My Lords, the amendment would ensure that those engaged in airsoft activities could continue to do so in their current form. It would give them a defence to the offence of using a realistic imitation firearm. It would enable them to continue their sport only following regulations to be set out by the Secretary of State. The Government could thereby ensure that the sport was carried out only under safe and regulated conditions and that those weapons would not be available to those who might want to use them for illegal purposes.
When I spoke to an amendment in Committee on 22 May at col. 623, the Minister said that the Government rejected it and that they believed that there was no compelling reason for airsofters to use realistic imitations. That is the very point at which airsofters and the Government diverge in their understanding of the sport. Airsofters have said to me that it is vital in skirmishing that they should be able to use realistic imitation weapons. In Committee, I put on record a detailed description of what constitutes the activity of airsoft. As this is Report, I shall certainly not go through that detail again, but I am very much aware that the activity is not well known to Members of Parliament in either House, so it took some while for a head of steam to work up and for noble Lords and Members of another place properly to appreciate how important the activity is to a substantial number of people in the United Kingdom.
On 21 May, Mr Ken Elston, chairman of the United Kingdom Airsoft Site Governing Body, wrote a full submission to the Home Secretary, explaining why the exemption was necessary to save the sport. The response to that submission came from Mr Keith Bottomley of the Home Office firearms section, SC1. The letter is undated, but he restated the position set out by the noble Lord, Lord Bassam, in Committee, as follows:
“In particular, no really convincing argument was put for the need to use such realistic imitation weapons for this purpose”.
The letter states that the Government see no real reason why airsofters cannot,
“use brightly coloured translucent plastic weapons based on existing airsoft actions”.
It is quite a brief letter in response to a very well argued two and a half-page submission to the Home Office. Mr Elston has subsequently written to me to make the following cogent point: it remains a mystery to airsofters that groups who make only a limited use of airsoft equipment, such as historical battleground re-enactors, can qualify for exemption in the Bill, while the very people who are the recognised and legitimate users of airsoft equipment—airsoft players, who are members of registered clubs and who meet on a regular basis on registered, well regulated sites away from the general public under the auspices of a governing body—cannot.
Prior to the Bill, airsofters were led to believethat the exemption clause was there to ensure that legitimate users would not be affected. The idea that translucent, brightly coloured weapons could be acceptable as an alternative or be in any way appropriate is, frankly, ridiculous. Photographs have been presented to me showing what the use of such translucent weapons would look like and it would not make it an activity in which people would want to continue to take part.
Airsofters do not want their sport of skirmishing reduced to a childish game with bright yellow plastic weapons. That is how they put their view. For airsofters, it is and, they hope, will always remain an adult activity for the serious and committed participant. The activity used to be known as airsoft skirmishing, but due to the registration office accepting that the word “skirmishing” is protected and owned by the paintball company, airsoft has tended to alter the title of its game, but it remains an adult activity in which the realism of the equipment and weapons plays an essential part.
There is also concern that the Government's provisions could end up assisting criminals and putting the police in danger. If a criminal were to decide to spray a real firearm fluorescent yellow so that it looked like an airsoft weapon, which the Government will allow to be used, that could place an armed officer in an invidious position. A moment of hesitation could cost the officer his or her life. Airsofters remain convinced that it is important to have clear legislation that provides a simple and workable exemption for genuine airsofters, so that they can carry on with their activity in the same responsible manner as they always have in the past. My amendment is designed to achieve that objective.
I am aware that since I tabled this amendment way back in May, the Minister, Mr McNulty, has had meetings during the summer with the bodies representing airsofters. I am aware from discussion since then and letters written to me that the Government have been prepared to make a significant change in their stance—but not as far as writing something in the Bill, which we always believe is preferable. There may be a way to resolve the impasse between the airsofters and the Government that is acceptable to airsofters. In particular, I am aware of a letter written by Mr Tony McNulty on 19 September to Mr Tim Wyborn of the Association of British Airsoft, setting out just such an offer. If in his response, the Minister is able to indicate where the Government might move their position towards, I may be able to withdraw the amendment later. For the moment, I beg to move.
My Lords, in order to know what we are talking about, I have been trying to ask surreptitiously what airsoft is. Answers range from hairspray to some other thing. Someone has just said that it is a squeezy toy that sells for $109.99. What is it? Is it some sort of paintball game? We cannot really judge this amendment if we do not know what it is.
My Lords, because my noble friend is asking me a question before I sit down—as ever, she is within the rules of Report—I shall, with the leave of the House, briefly explain. I will not repeat the full description that I gave in Committee. My noble friend highlights a difficulty; many people immediately think of paintball when they hear the word “airsoft”. That is what really annoys airsofters because nothing, they say, could be further from paintball. Airsofters engage in skirmishing whereby they enact battle scenes. They are not re-enactors, but dress in fatigues and use black plastic realistic copies of firearms. Those copies can fire a bullet, but at such a low velocity that, if I aimed at the Minister from across the Dispatch Box—of course, I would never consider doing so—he would not feel any great discomfort, if I managed to hit him. Given my only previous attempt to learn how to use a handgun, I am sure that I would miss.
In skirmishing, one deploys great ability in feinting and carrying out battle moves. It is very good training. I am told by airsofters that ex-soldiers, members of the Territorial Army and police officers often participate in it as a way of honing their skills—this is its importance—by taking part in an activity that, if one were in the Army and live ammunition was being used, could result in an unpleasant outcome for one or other of the participants. With airsoft, however, it is a matter of practising skirmishing. I hope that that rather abridged and at times flippant explanation—it was not intended to be flippant—might help my noble friend. I shall also ensure that airsofters send her further and better particulars. You never know—she might take part.
My Lords, I owe a debt of thanks to the noble Baroness; I knew nothing about airsofting before similar amendments were tabled in Committee. I am sure that the noble Baroness, Lady O’Cathain, will know a great deal more as a consequence of this debate. I feel the thud of wodges of paper landing on her doormat as we speak. Indeed, I am sure that we will all be bombarded—perhaps bombarded is the wrong term; rather, advised—by airsofters on what brilliant games can be played with the kit they use.
The amendment has been perfectly explained as a defence for the sport of airsoft against the new offence in Clause 34 of manufacturing, importing or selling realistic imitation firearms. This point was made earlier in our consideration of the Bill. The Association of British Airsoft visited the Minister in the summer, as the noble Baroness said, to press its case in defence of its sport. I can inform the House that, after careful consideration, the Government have agreed to provide such a defence. We will not do so in the Bill, however, but through the regulation-making powers in Clause 34, because I argue, as I often do on these occasions, that that provides greater flexibility in specifying exactly who will benefit from the defence and how it should work. I believe that Home Office officials will meet the association later this month to discuss the important details. Using regulations also enables us to fine-tune the arrangements, which might be necessary given that airsoft is not a long-established pursuit. No doubt it is one of those things that evolves over time.
Amendment No. 35 would provide a defence for airsoft in the Bill, but we believe that it is better to put it into regulation. Furthermore, the amendment refers to airsoft being organised by persons “in such manner” as the Secretary of State may specify. However, the real issue is agreeing arrangements to ensure that only genuine airsoft players can benefit from the defence. It is therefore more a question of “who” than “how”.
I hope the noble Baroness will welcome the Government’s decision to provide a defence for airsoft and that, having heard what I have to say on this subject, she will happily withdraw her amendment.
My Lords, I am very grateful to the Minister. Mr Tim Wyborn said in advance of today that, if the Minister could put those words on record, airsofters could accept his offer of an exemption through regulations, although obviously that was the second-best option. I agree with the association that exemptions are always better in a Bill rather than in secondary legislation, in which one must prove that one is an honest person and a real airsofter.
I am grateful, too, for the indication that the talks towards the end of October will go ahead. As one can imagine, airsofters have not taken part in parliamentary proceedings before, and have got on with their own business relatively quietly and very honestly and legitimately. They have had no reason to be within the ambit of parliamentary affairs and were concerned that if the matters were not put clearly on record, they might not get the exemption later on when the regulations were formed. The Minister has made that offer clearly, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 36 [Meaning of “realistic imitation firearm”]:
Page 39, line 16, leave out “section 34” and insert “sections 34 and 35”
The noble Lord said: My Lords, this amendment and those grouped with it are minor and technical amendments to clarify errors in the drafting of Clause 36 and Schedules 2 and 5. It is not necessary for me to trouble the House with precise details of these errors. I beg to move.
On Question, amendment agreed to.
Before Clause 40, insert the following new clause-
“INCREASE OF MAXIMUM SENTENCES FOR OFFENCES OF HAVING KNIVES ETC.
(1) In each of the following provisions of the Criminal Justice Act 1988 (c. 33), for “two” substitute “four”-
(a) section 139(6)(b) (maximum penalty for offence of having knife etc. in public place); (b) section 139A(5)(a)(ii) (maximum penalty for offence of having knife etc. or offensive weapon on school premises). (2) This section applies only to offences committed after the commencement of this section.”
The noble Lord said: My Lords, these amendments are rather more substantial and relate to issues helpfully raised by the Opposition in Committee and before. I should say for the record how much I share the concern expressed by the noble Baroness, Lady Anelay, about knife crime and how grateful I am to her for tabling her amendments at this stage of the Bill and at an earlier stage. There is a shared commitment and determination to ensure that those carrying a knife in a public place without good reason or good cause or without lawful authority receive appropriate sentences.
Protection of the public is one of the key priorities of this Government. Knife crime is a major cause of public concern and fear. For these reasons, we are proposing an increase in the maximum penalty for this offence from two years’ imprisonment or a fine or both, to four years’ imprisonment or a fine or both. Our amendment goes further and proposes the same increase in the maximum sentence for the offence of having a blade or point in a school without good reason. This is part of our wider package of measures to reduce knife crime in line with our manifesto commitment,
“to introduce tougher sentences for those involved in serious knife crime”.
All noble Lords will be concerned about knife crime, and I hope they will welcome the amendment as evidence of the Government’s commitment to this issue. We must ensure that courts have sufficient powers to deal appropriately with the illegal possession of knives as a way of preventing further offences. Let me explain why the Government propose increasing these maximum sentences to four years. Raising the maximum sentence to four years is consistent with the different, although related, offence of possessing an offensive weapon under the Prevention of Crime Act 1953, for which the penalty is four years’ imprisonment. It also ensures that our penalties are as severe as those in Scotland, where the penalty for this offence was recently increased to four years. Maximum penalties generally should be proportionate, indicate the relative seriousness of the crime, and allow for proper punishment of the most serious instances of the offence including repeat offences. As the noble Baroness has herself proposed an amendment to increase the penalty for the offence of possession of a knife in a public place to four years, I trust that she will feel able to withdraw her amendment in favour of the Government’s amendment. I beg to move.
My Lords, I have no objection to this amendment, but the public must be getting increasingly confused. What are the real chances of courts passing these maximum sentences when the Lord Chief Justice is doing his level best to persuade the courts to pass shorter sentences?
My Lords, the system works in this way. There is a generally accepted level for the standard penalty for carrying a knife. If your Lordships double the maximum, the standard penalty will automatically increase. The judges who pass the sentence will look at the fact that Parliament has spoken in this way and will increase the penalty. That is the way to proceed: it is not by passing minimum sentences. The judiciary respond when maximum sentences are increased: I think that we all dislike the imposition of minimum sentences. We support the increase in these penalties. It is an increasing problem, particularly on school premises. Having been involved in the Philip Lawrence case concerning the unhappy death of a headmaster, I am well aware of the nature of the problem.
My Lords, I support government Amendments Nos. 37 and 49 and I shall speak to my Amendment No. 38. It is right that one should increase the maximum sentence for the,
“offence of having article with blade or point in public place”,
without good reason from two to four years. I hope that it may provide a stronger deterrent to those who might consider carrying a knife in a public place. I also hope that it will send a message to the victims of crime that Parliament has expressed its will that such an offence should be treated with the utmost gravity. The need for such an amendment becomes all the more apparent when one considers the sentencing powers of the courts in relation to a similar offence—possession of an offensive weapon—under the Prevention of Crime Act 1953. That offence carries a maximum penalty of four years. Given the rise in knife crime, we felt that the time had come to consider whether the offence of carrying a bladed article merited a greater sentence as a maximum than that available under the 1953 Act.
In Committee, the Minister said that he shared my concern about the incidence of knife crime but that the Government’s view was that the best way to deal with sentencing was through the Sentencing Guidelines Council. He indicated that the forthcoming Sentencing Guidelines Council guideline on assaults would,
“reiterate that use of a weapon increases the seriousness of violent crime”,—[Official Report, 22/5/06; col. 631.]
and that the sentence should be increased to reflect that.
At that stage, I had tabled a probing amendment for Committee which would increase the maximum penalty to five years. I reflected on the Minister’s response and, of course, I naturally value the work of the Sentencing Guidelines Council. But I remained of the view that it was the right time to signal disquiet about the increasing use of knives by increasing the maximum sentence that might be available to the courts. Since then, I am afraid the reports of knife crime have continued to alarm me and other Members of this House. It is on the increase. Recent reports have suggested that in some parts of the country it has risen by as much as 90 per cent inthe past two years. Perhaps the most worrying trend is the increase in the carriage and use of knives by young people, including, from a personal viewpoint, reports that carriage of knives by young girls is as widespread as by young men.
On 25 May, I therefore tabled a series of amendments to give the Government a “pick-and-mix” opportunity to say whether they would raise the maximum sentence to three, four or five years. Of course, I was pleased to read in the newspapers this summer that the Home Secretary was minded to accept my amendment and set it at four years. I thought that perhaps for this one occasion the Government would manage to accept an opposition amendment. But, nae, they found a way of saying, yet again, that they agreed with me, but that my amendment was defective. This Government are so resourceful when it comes to wriggling out of saying that the Conservative Party has got something right. So they found a way of ensuring that their amendment comes forward. However, I agree with them. It is right not only to raise the maximum penalty to four years but also to ensure that penalties—I give way to my noble friend.
My Lords, as ever, my noble friend is 100 per cent right: how could he ever be otherwise? I certainly saw some criticism in the press about the Government’s amendment and, by implication, my amendment, by those who said that increasing the maximum penalty would do no good at all. I agree and there will obviously have to be other measures as well. So it is against the background of other measures that we proposed too that I would agree with this. In addition, I criticised the “red-topping”, as the noble Lord, Lord Thomas of Gresford, would say, of the knife amnesty that took place earlier this year. Perhaps the Minister might be able to tell the House how successful that has been. When I tabled Written Questions in the summer, I was told that it was too soon for the Government to have the relevant statistics from the police forces. If the numbers of the great success do not come readily to mind, perhaps he might write to me to let me know what happened. However, in the spirit of ensuring that we have a range of measures to deter people from carrying knives and, possibly, using them, I support the Government’s amendment and will not move mine.
My Lords, we have a measure of agreement on the appropriate maximum sentence. I paid tribute to the noble Baroness at the beginning of this short debate. When she made her case at a previous stage, I thought that I had indicated a degree of personal sympathy and that the Government should reflect on the position. As the noble Baroness said, there was a further review ofthe sentencing provision for possession of knives during the summer, which is why we thought that there was scope to provide a wider range of sentencing powers for courts to address individuals possessing knives in public and in schools.
This is not the first time that the Government have acted. There are a number of legislative and, for that matter, non-legislative government initiatives to combat knife crime. Previously, we had concerns that increasing the maximum penalty for the offence could be disproportionate, but in view of the concerns raised during the passage of the Bill, we further reflected on the situation during the summer and concluded that increasing the maximum penalty would provide a useful tool to tackle knife crime.
We also had a debate earlier today on knife crime. The noble Lord, Lord Thomas of Gresford, took exception to the age at which someone can be sold a knife being changed. Young people, aged 16 and 17, will not be able to buy a knife. A new offence of using someone to mind a knife or a gun is created to ensure that people who hand knives or guns to, for example, younger siblings for them to look after, cannot escape the effect of the law.
The noble Baroness asked whether we thought that the knife amnesty was successful: we do. And it certainly highlighted the importance with which the Government and society generally view the handling of knives and their potential for the commission of life-threatening and fatal crimes. The figures I have suggest that some 90,000 items have been handed in to the police in England and Wales and we continue to follow that up with enforcement and educative work. We have given support to organisations like Be Safe, which provides education on knife crime in schools, demonstrating the dangers and consequences of carrying knives. We also support community organisations through our Connected Fund, which provides grants to local groups working on knife crime, gun crime and gangs. Operations conducted by the Metropolitan Police and British Transport Police also highlight the issues, and I—as I am sure have other noble Lords—have seen the adverts and promotion material on that. I must say that I think that the impact overall of the knife amnesty has been very beneficial. It has certainly raised the issue in my locality in terms of press and news coverage and perhaps has helped people to take the issue more seriously. Clearly more can be done and we shall pursue that.
Because of those actions, we think that the original spirit of the amendment moved by the noble Baroness is valuable in that it helps to raise public concern over this issue. We are glad that we have reached a similar point and I was pleased to hear the noble Baroness acknowledge that our amendment goes somewhat further and wider than her own. For those reasons, it appears that the noble Baroness will support our amendment rather than the amendment in her name.
On Question, amendment agreed to.
[Amendment No. 38 not moved.]
Clause 42 [Power to search school pupils for weapons]:
Page 44, line 18, leave out “believing” and insert “suspecting”
The noble Lord said: My Lords, these amendments on the power to search for weapons relate to school staff only. Clause 42 currently prevents a head teacher requiring a member of staff to carry out a search. In this amendment we allow a head to direct for the purposes of this Bill any authorised member of staff whose work at the school wholly or mainly relates to school security. This includes security guards authorised by the head teacher. While we do not think it is reasonable for a head teacher to have the power to compel a member of the teaching staff to search a pupil, we do think it reasonable that trained security staff can be required to exercise their specific skills. Subsection (4) remains to prevent teachers and other school staff being so compelled.
This does not apply to institutions of further education or attendance centres where the Teachers’ Pay and Conditions Document does not prevail. Also in the second group we have an amendment to provide transparent definitions of school staff for the purposes of the Bill, as well as of security staff. It is included for technical reasons and I shall not weary the House with the detail. However, it spells out why that has to be the case. I beg to move.
My Lords, inadvertently I have skipped a group and spoken to Amendment No. 42 when moving Amendment No. 39. I apologise to the House. I must say that I was confused myself because I had thought that my speaking notes were rather longer. I shall now speak to the right amendments.
This group of amendments covers slightly different subject matter, although it is not unrelated to the amendment I have just addressed. I shall move government Amendment No. 39 and speak to Amendments Nos. 44, 46, 48 and 52. In doing so I shall also resist opposition Amendments Nos. 41, 43, 45 and 47. I hope that that clarifies the position.
Amendment No. 41 seeks to remove the proposed power to generally authorise staff to search for weapons in a school. It is important to have a power to authorise generally as it would allow staff, once generally authorised to search, to act immediately when they suspect there is a concealed weapon. Without general authorisation, staff or pupils could be at risk if staff suspected that there was a weapon while the head or deputy head teacher could not be contacted for any reason. Amendments Nos. 43, 45 and 47 require the relevant Secretaries of State to issue guidance and suggest that the guidance may in particular refer to training and information on paying compensation. My right honourable friend the Secretary of State for Education and Skills already has plans to issue guidance for schools, while my department will issue guidance for attendance centres. Further education institutions will be able to make use of the guidance for schools. We will consult fully on the draft guidance, which will include advice on staff training and employers’ duties to take reasonable steps to keep staff members safe, as well as having insurance to cover any liability for injury in the course of their employment. It is therefore not necessary to put a duty on the Secretary of State to issue guidance, nor is it necessary to suggest the contents of such guidance. In those terms, I hope that the noble Baroness will not press her amendments.
Government Amendments Nos. 39, 44 and 46 relate to the power to search for knives or offensive weapons in schools, colleges and attendance centres respectively at Clauses 42, 43 and 44. By changing the grounds for a search from “reasonable grounds for believing” to “reasonable grounds for suspecting”, we will broaden the scope of searches to include a wider range of people. It is important to do this for two reasons. First, head teachers have told my noble friend the schools Minister that they sometimes suspect that a knife is in the school, but that the information is not strong enough for believing that a particular pupil has it. This amendment would enable a search in those cases where a member of staff has reasonable grounds for suspecting that the particular pupil has the knife.
Secondly, we want to do all we can to counter any possible accusation that staff have performed a search without sufficient grounds. Lowering the grounds from belief to suspicion makes such accusations less likely to arise and less likely to succeed. We also take the view that suspicion of a weapon in the school allows a search to move outwards, starting perhaps with those pupils who are said by other pupils to be carrying a knife, or pupils who have been trying to hide something. If nothing is found on them, the search can move on to those who tend to act as willing minders of illicit items, or are easily bullied into being unwilling minders. Staff often have a clear picture of such dynamics among their pupils. The search can then broaden to pupils in the same class year or in the same neighbourhood. That increases the chances of finding a knife that is suspected to be somewhere and could enable a school to search quite a large proportion of its pupils. However, before searching any pupil, there must always be a reasonable suspicion that the individual may have the knife. While safeguarding the rights of individual pupils being searched, we also want to protect all pupils and staff from the risk of or threat of violence, so we want to give schools and others as much discretion as possible to discover where a knife might be on the premises.
Attendance centres provide group-based sessions for offenders aged between 10 and 25. These offenders have been sent to such centres by the courts for offences which include the use of violence and the possession of knives or offensive weapons. Widening the grounds to search from “reasonable grounds for believing” to “reasonable grounds for suspecting” will ensure that designated attendance centre staff are able to act upon intelligence to search individuals and will ensure that all staff and attendees are afforded the proper protection from knives and offensive weapons. We recognise that few incidents of attendees carrying offensive weapons have been reported over the past two years. However, we believe that this power should be available to staff if they so choose to use it, and that it should offer the most realistic test by which they would be able to initiate a search. The clause offers appropriate safeguards and authorisation of search criteria.
Through government Amendments Nos. 48 and 52, we are seeking to reduce the threshold for a constable to exercise his or her powers of entry and search in Section 139B of the Criminal Justice Act 1988. This section currently enables an officer to exercise those powers provided that he or she has reasonable grounds for believing that a person on the school premises has a knife or offensive weapon with them. As indicated above, we consider that this presents a threshold which is not in proportion to the nature of the problem and the potential consequences that might arise from it. Therefore, we propose revising that threshold to one of reasonable grounds for “suspecting” to ensure that the police power to search in schools is consistent with that of school staff. Guidance will be produced by the Department for Education and Skills in consultation with the Home Office, the police and other key stakeholders. This will contain pointers which schools could take into account when considering whether a search is justified on the grounds of reasonable suspicion, together with advice on the way in which the power should be applied.
I also take this opportunity to refer noble Lords to a closely related matter regarding the Written Statement made earlier by my noble friend the schools Minister about the non-contact or minimal- contact screening of pupils and others for weapons. Such screening involves the use of metal detectors contained in walk-through arches or hand-held wands. Screening can be carried out on all pupils provided it is carried out in a way that respects people’s privacy. If screening indicates that a weapon may be present, school staff could then call the police or use the new power included in the Bill to carry out a hands-on search. The guidance I have referred to will include good practice advice on screening. The power to screen pupils, as recently clarified by the DfES legal advisers, is enabled by education law giving head teachers the power to make school rules relating to behaviour and discipline as a condition of entry. I beg to move.
My Lords, I speak to my Amendments Nos. 41, 43, 45 and 47. They are all probing amendments and, naturally, I indicate at this stage that I support the government amendments. We had a full debate on these issues in Committee on22 May, at cols. 636 to 642 of the Official Report—which shows how full the discussion was. I return to the fray merely to ask for clarification on two matters.
The first issue concerns the safety of staff in schools. Amendments Nos. 43, 45 and 47 require the Secretary of State to issue guidelines on the carrying out of searches. The Minister has tried to assuage me as to why my amendments are not necessary, but I am trying to find out what happens if a member of staff is injured in the course of his or her duty in carrying out a search. In the real world, it is unlikely that a student who carries a knife for the wrong reason will simply say, when challenged by a member of staff, “Well, yes, fine, Mr Smith”—or Mrs Smith—“here is my knife. Please do take it”. On a day-to-day basis, when implementing the provisions of the Bill, the staff could face serious injury.
The Minister says that regulations will lay out best practice from the point of view of training and that insurance policies should therefore pay up. I want to ensure that there is no reason for anything to be paid in compensation, because there should be no injury in the first place. I am trying to find out what discussions the Government have had with teaching unions and head teachers on this matter and how the provisions will be put into effect in such a way that school life is not disrupted and certainly so that teachers are not put at risk. Although I raised these questions in passing on 22 May, I have not received any response over the summer.
The second issue I addressed was whether a general search was to be implemented or whether it would be a search specific to an individual category. I asked the Government in Committee what their intentions were. I am certainly content that a head teacher should be able to authorise staff in general to carry out searches; in other words, they should be able to say that all staff are trained, competent and able to carry out searches. However, my concern was whether it was right then to give a general power to search; that is, not only that any member of staff can search but that any member of staff can search any person within the school regardless of whether it was reasonably thought that they could be carrying knives.
Amendment No. 41 tries to address that issue. I think the Government, by strengthening the power of search, have clarified the position I was trying to get at in Committee. The Minister said that the term will now be “suspecting” rather than “believing”, and I do not find that substitution objectionable. As I understand it, it is a commonly enough used and understood term in the criminal law and it seems appropriate to use the word “suspecting” rather than “believing” within the context of these clauses. So by a side wind, by tabling Amendment No. 41, the Government have resolved the concerns that I had in the amendments I tabled both in Committee and on Report. For those reasons, I not only support the government amendments but will not be moving my own amendments when we reach them.
My Lords, I am grateful to the noble Baroness for her support for our amendments. She raises important issues about school staff searching pupils and being at physical risk or danger because of the search. We cannot be entirely risk-averse—that is a fairly obvious comment—and if the head teacher decides that a search is not safe the school will probably wish to call the police to conduct it. That said, school staff—especially senior managers—these days are highly skilled and experienced in managing the behaviour of young people in their charge. From the feedback that I get from my children as they go through school, I have always been very impressed by how capable teachers are at resolving and avoiding confrontations. I think that the guidance we issue, the training given and the support provided will help raise that performance still higher. In so doing it should minimise the physical risk or danger that otherwise might be present. Staff should search only if they are properly trained and judge it safe to do so, and they must, of course, be authorised to do so by the head teacher. Otherwise we always clearly advise staff that they should involve the police, and that advice which was given in the past still stands.
The noble Baroness asked about the attitudes of staff, the unions and so on. This matter has been the subject of considerable discussion with the unions. Indeed, I understand that there have been discussions with the head teacher and teacher unions both today and previously. The unions are broadly content. Indeed, I have quotes from unions in my brief which state that the NASUWT has welcomed the provisions of the Violent Crime Reduction Bill designed to give more support to teachers and head teachers in maintaining good order and discipline by enabling searches to be conducted for offensive weapons. It is sensible and logical for such powers to apply to groups of pupils and not just individuals. And the ASCL, in the form of John Dunford, has put on record the following:
“There are few more difficult or more serious issues for a head teacher to deal with than pupils carrying knives. I therefore welcome the increased powers for heads to search for knives. This will be helpful to the small number of schools where this is a recurrent problem”.
So there is generally a welcome there.
The noble Baroness herself raised and dealt with the issue of the process to be gone through in conducting searches—the point at which the search should begin and how it should proceed from there—based on the rephrasing of the Bill. We have reached a happy point with regard to these amendments and I am grateful to the noble Baroness for her support.
On Question, amendment agreed to.
Social Security (Graduated Retirement Benefit) (Consequential Provisions) Order 2006
rose to move, That the draft order laid before the House on 11 July be approved [34th Report from the Joint Committee].
The noble Lord said: My Lords, in my view, this statutory instrument is compatible with the European Convention on Human Rights.
The order represents unfinished business fromthe Pensions Act 2004, which introduced new arrangements for people who defer taking up their state pension. Under these new arrangements, a person who defers for 12 months or longer has the option of a one-off taxable lump sum payment instead of a pension increase. The Act did not extend the new arrangements to graduated retirement benefit, beyond providing the necessary vires, and this was to be achieved separately by regulations.
The graduated retirement benefit is the precursor to today’s additional pension payable under SERPS or the state second pension scheme. The graduated retirement benefit scheme ran from 1961 to 1975. People accrued graduated retirement benefit on the basis of earnings-related “graduated” contributions. Rights accrued prior to the scheme being wound up in 1975 are preserved, but they are not preserved in aspic. Over the years, the provisions have been modified to bring rights to graduated retirement benefit broadly into line with those which apply to state pension generally—hence the application of the new deferral arrangements to graduated retirement benefit.
The order amends Section 150 of the Social Security Administration Act 1992. The amendment is required to bring lump sum payments to which a surviving spouse may become entitled where their late spouse had deferred drawing graduated retirement benefit within the scope of the annual uprating order. The amendment also relates to people in civil partnerships. This consequential amendment should have been made by the Pensions Act 2004 alongside the equivalent amendment in respect of mainstream state pension. Unfortunately, due to an oversight, it was omitted, for which I can only apologise.
Where the surviving spouse or civil partner is drawing his or her pension, but the deceased spouse or civil partner is deferring his or her pension at the point he or she dies, the surviving spouse or civil partner can inherit 50 per cent of the deceased’s entitlement to graduated retirement benefit. This includes enhancements arising from the fact that the deceased had deferred claiming. Where the deceased had deferred claiming for 12 months or more from6 April 2005 onwards, the surviving spouse or civil partner has the option of taking a taxable lump sum payment. However, where the surviving spouse or civil partner is not drawing his or her pension when their spouse or civil partner dies, any inheritable graduated retirement benefit—including a lump sum payment—does not become payable until such time as they start to draw their pension. The purpose of this amendment is simply to enable the value of the inheritable lump sum to be protected by uprating it on an annual basis with effect from April 2007.
I should explain that the earliest point at which a person could become entitled to a lump sum payment was 6 April 2006. The first uprating after that point was effective from 10 April 2006. There is therefore a theoretical possibility—albeit remote—that a person who died between 6 and 9 April 2006 was deferring graduated retirement benefit and has a surviving spouse or civil partner who was not immediately eligible for a lump sum payment because they were not drawing their pension. In this scenario, the April 2006 uprating should be applicable although, owing to the lacuna in the primary powers, the 2006 uprating order could not make the necessary provision. I am happy to report that to date no such cases have come to light, but in the unlikely event of such a case arising in the future, I can assure the House that the 2006 uprating will be applied on an extra-statutory basis and the maximum amount involved would be no more than £10. I commend the order to the House.
Moved, That the draft order laid before the House on 11 July be approved. [34th Report from the Joint Committee].—(Lord Hunt of Kings Heath.)
My Lords, I am sure that the Minister would be surprised if these Benches did anything other than support the order. It is clear that the law as it stands is deficient and should be remedied, and we support the order to that extent.
The first question that I was going to ask the Minister related to the number of people who might have been affected in the gap. However, the Minister has answered that fully, for which I thank him.
I should like to take this opportunity to raise some wider issues arising from the need for the order. What went wrong in this particular case and is there something more fundamentally wrong with the pensions system? On the specifics, can the Minister say anything about how this error arose when the original measure went through both Houses of Parliament? It is easy to say that it is a simple case of human error, and we accept the Minister’s apologies. But I assume that the Minister’s department has checking and oversight procedures which are designed to counter a fairly obvious risk in the context of very complex social security legislation. Those systems have failed. Does the Minister know why and have any investigations taken place? If the department did not have oversight procedures that were adequate to deal with the situation, will he tell us whether any learning has been taken from this error in terms of the way in which legislation is handled?
Secondly, is the pensions system just too complicated? I expect that few people have an understanding of how the graduated benefit component of their pension is expected to work. I speak as somebody who has probably accrued a bit from the early 1970s and I freely confess that I have not the faintest idea how it will affect my pension entitlement or that of my husband.
We know that one of the reasons for the bad take-up statistics in pensions credit is the complexity of the system. It is so complicated that it was not surprising that the Pensions Commission concluded that 9 million pensioners were not saving enough for their retirement. The Government recently introduced something they called pensions simplification, but anyone who has had to wrestle with the Finance Act provisions and the volumes of regulations needed to underpin them will know that it will not result in simplification for a very long time.
I could go on at length about the complexity of public and private pension provisions, but today is not the time for that. I freely concede that this is not a feature merely of the past nine years but has a much longer pedigree under Governments of all parties.
The Government’s recent White Paper referred to a possible pensions law rewrite project. It would be helpful if the Minister could update the House on that. Rewriting the law, as has been found with the Tax Law Rewrite Project, does not reduce its volume or its underlying complexity. Simplification is a different mindset. Is there any hope that the Government would start to address a reduction in complexity in any meaningful way in our pensions system?
My Lords, we on these Benches also support the order, but I have two or three short and simple questions. Ironically, the original proposals for the introduction of the lump sum payment were contained in the Government’s Green Paper Simplicity, security and choice. Sadly, they have not proved simple enough for the Department for Work and Pensions to get them right first time.
How was the oversight or lacuna, as I gather it is now called, spotted? As one of probably not all that many people who did Latin and learnt what a lacuna was, I suggest that “gap” or “hole” are perfectly good words that it might do no harm to use in future. In any case, why did it take two years to come to light? For my own information, why is equivalent provision for Northern Ireland made by statutory rules, while it is done by order for Great Britain?
Finally, and perhaps more significantly, this will be uprated in line with the retail prices index. Will the Minister take on board the fact that the retail prices index is proving a very unreliable measure of the real cost of living as it affects pensioners? Essentials such as housing, fuel and light in particular are now rising in price much faster than the general retail prices index. Indeed, I estimate that for the average pensioner the cost of living has risen something like6 per cent over the past year, which means that if we just stick to the retail prices index uprating it will be a real cut in the standard of living for the average pensioner. Could he comment on that, as it is also relevant to this order?
My Lords, I am grateful for the overwhelming support that I have received tonight for this order. In response to the noble Baroness, Lady Noakes, we think that very few people are likely to be involved, if any, but we are enabled to make extra-statutory payments to any person affected, and the change that the order will make will enable us to ensure that that cannot occur in future. So we hope that no one has been affected, although the sum involved is of course relatively minor.
I did prefer the word “lacuna”, although I had to give up Latin after one year due to not being very good at it. In the course of the work of officials in the DWP, the oversight was identified, which is why the order was brought here today. Noble Lords will know that I have taken a lot of Bills through this House, though not a pensions Bill, and I have had considerable contact with officials who have dealt with pension legislation, so I can say that they are a first-rate group of people who are extremely thorough. Clearly it is regrettable that this oversight occurred, and we need to do everything to ensure that oversights are sorted out before legislation is brought to the House. I have no hesitation in accepting the responsibility of ensuring that that is to happen.
The noble Baroness, Lady Noakes, and the noble Lord, Lord Oakeshott, made rather more general points about the complexity of pension legislation, and implied that because it is so complex mistakes are more likely to happen. There is no question but that pension legislation is very complex. Something that I have discovered in the work of the Department for Work and Pensions in relation to not only pensions but benefit legislation is that there will clearly always be a trade-off between simplicity and fairness. One reason why the existing state pension legislation is extremely complex is because of a wish to make changes to the state pension system that are equitable, to meet social obligations. For that, additional rules are often introduced. The graduated retirement pension benefit is a case in point, owing to its preserved nature.
I would always want to see the legislation simplified—and, as I can tell the noble Baroness, Lady Noakes, we are continuing to work on that matter. But the key outcome is not so much to the legislation but in helping the public to understand the rules and trying to ensure that they are as simple as possible. I hope that one outcome of the pension White Paper following the Turner commission leading to legislation will be a system that the public understand much more clearly than the current system. When simplification in the law can help that, we need to look at that—and we shall continue to do so. The efforts that my department has made to provide statements to members of the public who are coming closer to receiving their state pension have been extremely helpful, and clearly we need to build on that. It is also clear that in relation to deferral or the potential receipt of a lump sum as a result of the changes made in the 2004 Act, a considerable effort has been put into advertising through leaflets and phone lines the availability of this option to the public. Again, I accept that we need to do better in future and shall continue our efforts to ensure that the benefit of this change is made known to as many potential recipients as possible.
As for Northern Ireland, my understanding is that the reason why it is being treated in this way is the suspension of Stormont. Let us hope that we see progress in that area.
Finally, I do not think it is the first time that the noble Lord, Lord Oakeshott, has raised the matter of the RPI with me. We are following current practice. At this stage we have no plans to change it, but we will keep the matter under review.
On Question, Motion agreed to.
Regulatory Reform (Agricultural Tenancies) (England and Wales) Order 2006
The Minister of State, Department for Environment, Food and Rural Affairs (Lord Rooker) rose to move, That the draft regulatory reform order laid before the House on 5 July be approved[24th Report from the Regulatory Reform Committee].
The noble Lord said: My Lords, the order amends the Agricultural Holdings Act 1986 and the Agricultural Tenancies Act 1995. The amendments will foster tenant farmer diversification; give tenants and landlords greater flexibility to come to their own agreements; ensure decisions on restructuring are business-led; improve the viability of the tenanted sector; maintain the balance between landlord and tenant interests; and enable landlords and tenants to adapt to the agricultural climate of the 21st century. The amendments were developed in collaboration with the Tenancy Reform Industry Group—TRIG—and the proposals have cross-industry support.
Article 5 removes the barrier to tenant farmer participation in diversified activities by amending the criteria for the “livelihood test” for succession to a tenancy. Articles 6 and 8 ensure no loss of compensation or disruption to the rent review cycle when adding to or removing land from a holding, provided that the new holding forms a substantial part of the old holding. Articles 7, 9 and 10 replace the arbitration procedures in the Agricultural Holdings Act 1986 with the procedures in the Arbitration Act 1996 in line with the Agricultural Tenancies Act 1995.
Article 12 also relates to the 1995 Act. It clarifies provisions that have confused industry and professionals since the introduction of the 1995 Act on circumstances in which the 1986 Act continues to apply. It encourages restructuring by introducing new provision to allow parties to agree in writing that, when a tenant holds a 1986 Act tenancy, the 1986 Act will apply, provided that the old holding is a whole or substantial part of the new holding.
Article 13 gives landlords and tenants freedom to set their own maximum notice period for a farm business tenancy and retains the protection of the 12-month minimum notice period. Articles 14 and 15 give landlords and tenants greater freedom to reach agreement on rent reviews. Articles 16 and 17 make it easier for landlords and tenants with farm business tenancies to reach agreement on improvements to a holding by providing an option to agree a maximum limit for the end-of-tenancy compensation.
The order will promote a healthy and competitive tenanted sector without removing tenant protection or disrupting the landlord/tenant balance. The Government have given commitments to monitor the effectiveness of the regulatory reform order, particularly in relation to the impact on tenant farmer diversification, and to keep under review whether future legislative measures might be necessary. I am happy to repeat that commitment here, but I cannot be precise about how it will be done, as changes are always being made to the scope and level of surveys that we undertake. We will carry out this commitment through our close links with industry and the Tenancy Reform Industry Group and through analysis of available statistics and research.
On behalf of the Government, I thank the members of the Delegated Powers and Regulatory Reform Committee for confirming that the present proposals are appropriate to be made under the Regulatory Reform Act 2001, and for recommending them to the House. The committee in another place has also considered these proposals. It concluded that they remove burdens within the meaning of the Regulatory Reform Act 2001 without removing any necessary protections or preventing the exercise of any existing rights or freedoms. Both committees have unanimously recommended that the order be approved. I beg to move.
Moved, That the draft regulatory reform order laid before the House on 5 July be approved [24th Report from the Regulatory Reform Committee]—(Lord Rocher).
My Lords, I thank the Minister for bringing this order before us today. My only disappointment, and I am sure his as well, is that we could not get it in before the Recess. We did try, but I think that time in another place precluded it. One or two of the tenancy agreements have come up, so there has been a delay, but I thank him for explaining it.
I have one query from the point of view of the NFU and then I have one or two directly. The Tenancy Reform Industry Group took its bearing back in November 2002 and reported its recommendations in June 2003. This coincided with the CAP reforms, and the recommendations were made without the benefit of knowing the detailed implication of those reforms. Defra then took a long while to get the RRO drafted, missing, as I have just said, the autumn slot. Although this order is welcome, there may well be some more desirable adjustments to be made in agricultural tenancy law to take account of changes within the CAP. Perhaps the Minister could clarify that. It would be helpful if we could get an assurance that the Government will look sympathetically on any further recommendations that the industry may wish to bring forward in the future. I do not think that that is controversial; it is plain common sense.
We welcome this order. We are particularly pleased that the Government have responded to the way in which farming has changed in recent years, including contracting and other activities that are carried out on the holding. The Minister has, rightly, explained to us tonight that there had been confusion among the industry professionals and practitioners over whether Section 4(1)(f) of the 1995 Act applies only narrowly. I think that I have understood from what he said that that is not true. I hope that I am correct. Hansard records of the debates during the passage of the Agricultural Tenancies Bill suggest that the then Government’s intention was that the provisions would apply narrowly where parties had unwittingly surrendered the status under the 1986 Act.
The effect of the legislation is that when a landlord is asked by a tenant to give his consent to an improvement on the holding, he has no means of knowing the extent of that liability at the end of the tenancy. That could mean that some landlords are reluctant to give their consent to a tenant’s proposals simply because they do not know how much compensation they will be required to pay. Will the Minister comment on that?
I turn to the amendment to the provisions on notices to quit in the 1995 Act. Under that Act, a notice to terminate a farm business tenancy must be given in writing at least 12 months, but not more than 24 months, before the date on which it is to take effect. The current legislation prevents landlords and tenants from agreeing to a longer notice period than 24 months. There is therefore no flexibility to agree a notice period of, say, up to five years, which would give both landlords and tenants greater security and enable long-term planning. That is a small issue, but again I would be grateful for some comment.
On the timing of consent, when the noble Lord, Lord Whitty, was the Minister responsible for these tenancies, he promised to monitor the responses of landlords when faced with requests from tenants for renewed consent. He suggested that if the Government had evidence that landlords were reluctant to grant consent, they would consider what further measures were necessary. It would be enormously helpful if the Minister were to reiterate those comments on the Floor.
Finally, I turn to fiscal change. In order not to perpetuate a disincentive for landlords to grant tenants consent to diversify, all land, including buildings, let by a landlord under the 1986 Agricultural Holdings Act or the 1995 Agricultural Tenancies Act should be added directly to the definition of “agricultural property” for inheritance tax agricultural property relief to the extent that it is used for business purposes under consent from the landlord. Agricultural landlords should be able to defer payment of capital gains tax on gains to the extent that they are used to make improvements that increase the economic value of the land subject to agricultural tenancies that are used for business purposes. The business asset taper relief from capital gains should be available to all let land for business purposes, irrespective of the business of the occupier. Again, I would be grateful if the Minister could clarify that.
While we welcome this order, I have raised one or two specific issues, and would be grateful if the Minister responded to them. We hope that the order will make it much easier for those who have tenancies to get on and diversify and make a little bit more money than they have been able to in the past, and at the same time give landlords a certain amount of security, which they also need.
My Lords, a lot of the ground that I was going to cover has been covered already, and I do not wish to delay the House too much. However, I wish to make one or two points.
As has been said, it was hoped that this regulatory reform order would come to us before Michaelmas, this September. We all know why it did not. I know that the Minister tried very hard to get it in place in time, but the general clogging up of the legislative process seems to have made that impossible.
The work done by the Tenancy Reform Industry Group made an invaluable contribution to this order. It straightened out much tenancy law and policy that was not entirely satisfactory in the previous legislation. I shall consider the livelihood test towards the end of my remarks.
The regulatory reform order introduces amendments to ensure that agricultural work done away from the holding as well as other work can be approved in writing by the landlord. I shall make further points on that. One needs to be an expert in land law to deal with this order. It is complex but it is a very good attempt to overcome some of the anomalies to which the noble Baroness referred, particularly the problem that the original holding must remain a substantial part of a new holding. That appears to have been sorted out in the order, as does compensation, which is a difficult area on which to legislate.
The arbitration procedures in the Agricultural Holdings Act 1986 were very inflexible. The order seems to introduce much more flexibility in settling disputes. That can only be a good thing. The amendment to provisions of rent reviews in the regulatory reform order, which amends Section 9 of the Agricultural Tenancies Act 1995, as the Minister said, and allows parties to opt out of rent review provisions by express agreement, is a good solution to that problem.
As regards notice to quit, the removal by the regulatory reform order of the upper limit of 24 months is a desirable outcome. I hope that I have interpreted that correctly and that the process could go on for much longer than 24 months. If that is the case, it is a good thing.
I refer to one of the concerns of the Tenant Farmers Association and, indeed, of the Tenancy Reform Industry Group. TRIG proposed that non-agricultural income earned on or from the holding should be able to be considered where the landlord had consented to the non-agricultural use at any time, whether before or after the introduction of the regulatory reform order. At a late stage, it was discovered that the provision in the RRO would be able to apply only if the consent from the landlord came after the introduction of the RRO. That means that, even where a tenant is involved in an established non-agricultural use of the holding previously consented by the landlord, he will have to seek the landlord’s consent again if any of the income from that activity is to be eligible to be counted in the livelihood test of the potential successor. There is a risk that landlords may decide not to give that consent and perhaps not to be helpful either. The noble Baroness made the point that the noble Lord, Lord Whitty, had promised to monitor the responses of landlords when faced with requests from tenants for renewed consent. That is an important point on which both the noble Baroness and I agree.
The noble Baroness mentioned the fiscal changes, with which I agree. However, TRIG has raised structural issues. The Government were asked by TRIG to consider various structural issues, including barriers to tenants’ retirement, lack of support for new entrants and the risk of the loss of county council smallholding farms. I know that far too many of those farms have been lost. They provide the first rung on the farming ladder. I have been, and continue to be, very closely associated with the young farmers movement. These are very important issues. As we know from many surveys that have been ca