House of Lords
Tuesday, 7 November 2006.
The House met at half-past two of the clock: the LORD SPEAKER on the Woolsack.
Prayers—Read by the Lord Bishop of Southwell and Nottingham.
My Lords, there is some evidence that squirrels prey on woodland bird nests, but the true extent of any impact on the bird population is unknown. This issue is being looked at by the UK Woodland Bird Group, but it is difficult to design a study that would give a definitive answer.
My Lords, I am surprised by the Minister’s reply. The papers that I passed to him show that Professor Roy Brown has looked at more than 115 areas for up to 30 years and that, according to his research, mammal predation accounts for between one-third and three-quarters of all songbird predation losses. Therefore, having read Professor Brown’s report, does the Minister agree that it is clear that mammal predation is one of the most important factors in the decline of our songbirds? Will the Government put forward and fund their own research once they have got over the funding shortcomings that they have at present?
My Lords, it is not all the fault of squirrels; I would think that pesticides have something to do with this issue. We note the report that the Songbird Survival trust has produced and are grateful for its contribution to the debate. We would encourage the trust to share any unpublished evidence and research with the scientific community. Of the 15 species covered in the report by the trust, only three species were identified as being affected by grey squirrel predation: blackbirds, robins and whitethroats. These results are not consistent with the findings of the repeat woodland bird survey of 2005.
My Lords, does my noble friend agree that, while there may be some dispute about the effect of grey squirrels on birds, there is no dispute about the effect of grey squirrels on our native red squirrels? Does he accept that the carrying of squirrel pox by the grey squirrel has wiped out most of our red squirrels, which are now found only in the far north of England and one or two isolated pockets? As a matter of urgency, will he ask his officials whether they will commission scientific research to try to discover a vaccine that would allow red squirrels to survive this terrible squirrel pox?
My Lords, we all want the red squirrel to survive over the grey squirrel. My noble friend is right to say that this has been a serious problem. It is all the fault of the import from America of the grey squirrel some time ago. The red squirrel is now found only in the north of England in 16 separate reserves, and of course on the Isle of Wight. No grey squirrels are on the island and, if any turn up, we will deal with them and they will not come back again. We have a plan to maintain the 16 areas in the north of England and the Isle of Wight as red squirrel reserves with 5-kilometre buffer zones where action is taken against the grey squirrel to protect food supplies and to protect against the other factors that lead to problems for the red squirrel.
My Lords, I asked about this yesterday because I had to have immunocontraceptives explained to me. I asked, “How do you know whether you are giving them to the boy grey squirrels or the girl grey squirrels?” I am told that it is a bit of a problem out in the wild. It is true that the Forestry Commission and Defra are collaborating to investigate the potential of such a vaccine, if I can call it that. If everything goes according to plan, it will be 10 years before a usable fertility control method is available for grey squirrels. I have to say that, as it has been for former Defra and MAFF Ministers, every vaccine that is meant to solve a problem is always 10 years away.
My Lords, does the noble Lord agree that grey squirrels can decimate oak trees? I planted some 300 oaks and virtually half of them have been destroyed. We are allowed to use only a very few of the poisons now available to try to deal with this problem.
My Lords, I am not knocking the grey squirrel, because it is very popular with people in urban areas. When the grey squirrel turns up in their gardens, they like it, so we have to be careful what we say about them. There are some very good public relations out there. But grey squirrels are not as nice to look at as the red ones—and I have seen only one red squirrel in my whole life. The fact is that grey squirrels cause incredible damage to forest trees. There are means to deal with them, as the Forestry Commission does. Equally, as people know when they plant their bulbs, if they are not careful the grey squirrel will dig them up within a few hours. While all this is annoying, we have no plan—I shall repeat this because I do not want any letters—we have no plan to eradicate grey squirrels.
My Lords, does the Minister accept the findings of the report to which my noble friend referred in the first Question as good evidence on the research side? The evidence falls into two parts, the first being the problem with regard to farmland and the other being the problem with regard to woodland birds themselves. What research is being done on both accounts?
My Lords, the last thing that I want to do is to knock the report by Songbird Survival, but the fact is, by implication from my first and second responses, we do not accept all the science in it. We have asked the trust to share any of its unpublished evidence with the scientific community. There is a problem here, but songbird populations are on the up. Since 1995, an increase of 6 per cent has been measured on the index of woodland birds, although the current level is only around 60 per cent of the 1970 figure. Nevertheless, as I say, it is on the up. We believe that the number of songbirds may have dropped to the bottom and is now starting to come up again. This is in part due to changes in farming practices. Over a six-year period in the 1980s and 1990s, farmers were paid to dig up the hedgerows. We lost 25 per cent of the hedgerows in this country, which is bound to have affected birdlife. Today we are paying farmers to put the hedges back again and we can see birdlife populations increase because of different, environmental farming practices.
My Lords, there is no question but that the grey squirrel does a lot of harm, and I cannot agree with my Front Bench about contraception. I think that a more practical way of controlling grey squirrels, one which does work, is to pay a substantial sum for every squirrel tail handed in.
NHS: Clostridium Difficile
My Lords, we have an extensive programme of measures to counter healthcare-associated infections. We recently published a new code of practice on the prevention and control of healthcare-associated infections. The Healthcare Commission will assess compliance with the code and use its powers to issue an improvement notice to those not observing the code properly. These arrangements cover Clostridium difficile, for whichwe will also be introducing quarterly publication of mandatory surveillance data.
My Lords, I thank the Minister for that helpful reply. Is he aware that several trusts are not adhering to the guidelines? Is he further aware that a hyper-virulent strain came from Canada in 2004 and that more than 30 people died at Stoke Mandeville hospital? Does he agree that infection control is so important that its budgets should be ring-fenced?
My Lords, we are aware that this is a serious condition in a number of hospitals. We have made very clear what the NHS needs to do in this area. We know, in particular, that isolation of patients with C. difficile diarrhoea and good infection-control nursing procedures—such as hand-washing and wearing gloves and aprons—are absolutely critical. We now need the whole of the NHS to get behind the guidance issued by the Chief Medical Officer and the Chief Nursing Officer to try to control infection within its hospitals.
My Lords, the Minister will be aware that the present strain of Clostridium difficile is very susceptible to antibiotic resistance and can transmit this resistance to other pathogens such as salmonella and staphylococci, which, of course, are different organisms from Clostridium. What is the extent of Clostridium difficile antibiotic resistance in the country and what research is being done to control it?
My Lords, I cannot give the noble Lord, who has a great deal of knowledge in this area, an exact figure. There are two antibiotics, one of which is Vancomycin, that are effective and alternative antibiotics are being investigated. I can write to him with more details.
My Lords, following on from the previous question, is not one of the problems the increasing resistance of the new strain of Clostridium difficile bacteria, which is often caused by wanton antibiotic usage? Our current methods of recording antibiotic prescribing are not very good in hospitals. The CDC in America has pointed out that we need more research in this area. Should we not consider the lack of support for academic microbiology in the United Kingdom?
My Lords, my noble friend is right. One of the key elements in the advice that has been given to the NHS by the Chief Medical Officer and the Chief Nursing Officer is about prudent antibiotic prescribing to reduce the use of broad spectrum antibiotics. Again, it is down to people at the local level—doctors, nurses and everyone—working together to adhere to that guidance and to make sure that this infection is controlled in the hospitals where it exists.
My Lords, we know that hand-washing and other hygiene measures are probably the most effective intervention we can make at the moment for Clostridium difficile. What are the Government doing, particularly NHS Estates, about guidance for ward and hospital design, given that doctors and nurses are saying that getting to basins to wash properly is proving remarkably difficult?
My Lords, this does not apply only in relation to this particular infection. The issue of good design in hospitals is taken seriously by NHS Estates and a great deal of information and guidance has been given to the NHS in this area. The same concerns apply to other cross-infection issues. It is down to people when they redevelop their hospitals to follow the guidance that has been issued.
My Lords, we rely very heavily on the Health Protection Agency to trace and record cases of Clostridium difficile infection. Can my noble friend give us any idea whether the HPA has invested sufficient resources in its regional laboratories and regional detection centres to do all this vital work?
My Lords, the clinical advice I have received is that Clostridium difficile is largely and overwhelmingly a hospital-based infection; it is part of the mandatory surveillance introduced by the Government in 2004. If I have any more information in this area, I will write to the noble Baroness.
Railways: Cross-country Franchise
My Lords, the invitation to tender for the new cross-country rail franchise was issued on 31 October. Cross-country services will continue to serve the Scottish destinations which they serve currently. Pending commercial negotiations, services from Scotland to Birmingham and Manchester via the west coast may move to other operators. This does not represent a downgrade of the service, nor does it leave any Scottish destination disconnected.
My Lords, I thank the Minister for that Answer, which shows that it is too late to do anything about the proposed new franchise without withdrawing the franchise process.
Glasgow is a rail market worth 31 million journeys per year, and Edinburgh is worth 13.6 million journeys per year. Why is it a good idea to disconnect Glasgow from 45 railway stations in the south and south-west of England, particularly when we are trying to encourage rail substitution for domestic air services? What advice does the Minister have for rail travellers in Glasgow seeking to go to south-west England? Should they make their way to Edinburgh to change trains, which is quite easy but leads to longer journeys, or should they go to Birmingham New Street, which is awkward, congested and about to be rebuilt? What wisdom is there in this franchise reorganisation?
My Lords, the intention behind the franchise change is to enhance, improve and extend the services, not to restrict them or to cut off any market. That would scarcely be in anyone’s interests. The noble Earl is right that we are also seeking to tackle the problem of congestion at Birmingham New Street, but some aspects of the service will clearly improve. Subject to commercial considerations, transfer of some of these parts of the franchise will be to Virgin West Coast, which will use the west coast mainline and greatly speed up communication from Glasgow to Manchester and Birmingham.
My Lords, will my noble friend confirm that any trains currently on the west coast cross-country route between Birmingham and Scotland via Preston will terminate at Birmingham so that anybody wishing to go beyond Birmingham southwards to Brighton, Bournemouth or the West Country would have to change in Birmingham, as is my understanding? Surely that will increase the congestion of people in the rather nasty Birmingham station we have at the moment rather than reduce it.
My Lords, I am not prepared to have Birmingham New Street defined as a nasty station, but lines are congested there and through-trains produce difficulties for timetabling. However, I draw to the attention of the House the fact that the average daily number of passengers making journeys from Preston beyond Birmingham to Plymouth is only nine, and to Bristol it is only 10. So we are not talking about hundreds of passengers being inconvenienced by this proposal. By increasing the capacity at Birmingham New Street and making sure that certain lines are kept free, we are guaranteeing that the trains will run on time, which is of great importance to the passenger.
My Lords, the Minister mentioned low numbers of passengers on some lines, but he must be aware of overcrowding at particular times and on particular routes on the cross-country network. In many cases, we have magnificent, new, state-of-the-art trains, but there are not enough seats. Is a commitment to trying to alleviate some of the overcrowding included in any of the terms of the new franchises?
My Lords, the noble Lord makes an important point, because we envisage an expansion in rail travel. Therefore, the bidders for this franchise, which is the subject of the Question, are required to cost the option of providing 30 per cent more capacity on the busiest routes. That may be done by increasing the frequency of trains but also by lengthening some trains. Rail travel is destined to expand. These franchises look forward to that development.
My Lords, passenger numbers on the cross-country rail franchise grew by 10 per cent last year. The number of people travelling is increasing by that amount each year and possibly by more in the future. How is the proposal consistent with the Government’s objective of expanding the railway, bearing in mind that the changes in the specification reduce the opportunity for point-to-point journeys from 1,100 to 564? At the many extremities of this route, one will find that the service is either barely existent or withdrawn entirely. How is that consistent with expansion?
My Lords, as I just indicated, the proposal under the franchise is for a substantial increase in traffic. As the noble Lord indicated, there will be problems with regard to certain destinations and stations, but, as I have indicated, expansion can often be concentrated on certain routes and stations. The noble Lord will recognise the one obvious advantage: if the Glasgow services are transferred from the cross-country franchise to the west coast mainline and operated by Virgin, with its tilting trains, both the time that the journey will take and its quality are bound to improve over present provision.
My Lords, does the Minister appreciate that one of the consequences of the rejigging of the cross-country franchise will be a reduction in services on the south Lakes and Furness lines to Manchester airport. It is proposed that trains on those lines will be substituted by direct services from Manchester airport to Glasgow airport. Has no one told the franchise people that Glasgow has its own airport and that north Cumbria has Newcastle airport?
My Lords, my noble friend raised this issue earlier this year and I was unable to convince him then of the position. Certain aspects of the new services will create some difficulty for passengers travelling to certain destinations. The noble Lord is right that we should have regard to services to Manchester airport, but the quality of the service from Manchester to the airport has been greatly enhanced. I recognise that changing trains will be required, but changing trains if the service is of a higher quality is a gain and not a loss.
Children in Care
asked Her Majesty’s Government:
What plans they have to address the issues relating to children in care raised by Ofsted and the Commission for Social Care Inspection in their report on the second round of annual performance assessments which was published on 1 November.
My Lords, we set out for consultation wide-ranging proposals for transforming the lives of children and young people in care in the Green Paper Care Matters, which we published on 9 October. The proposals directly address the concerns raised by Ofsted and CSCI about the educational attainment of children in care. The Government’s reforms aim to improve services for all children, and this vulnerable group must not be left behind.
My Lords, the proposals in the Green Paper are very welcome, but the Minister will know that the quality of the service given to looked-after children by authorities across the country varies considerably. I have two questions. First, what are the Government doing to find out what factors make one local authority so much better than another? Secondly, what are they doing to share best practice, to bring the worst of them up to the standard of the best of them and the whole lot up to another level?
My Lords, one particular concern has been the recruitment of foster carers, which, as the noble Baroness knows, goes to the heart of the provision made available for children in care. Earlier this year, we introduced national minimum allowances for foster carers, which now apply irrespective of local authority area. That has helped to spread more widely the best practice of those authorities that paid higher minimum allowances. There are a whole set of proposals in the consultation paper for spreading equivalent best practice, including having different tiers for the recruitment of foster carers and paying salaries to foster carers of children in the most difficult conditions. We look to directors of children’s services to continue to collaborate closely and we facilitate that collaboration so that best practice is spread widely.
My Lords, the Green Paper is very welcome, but how will young people be consulted about it, in particular in responding to the consultation form in the report? Secondly, how will the children’s care councils that are proposed work at a local level?
My Lords, we have published a separate version of the Green Paper for young people and will take full steps to involve them in the consultation process. For example, we will hold a series of regional and national consultation events aimed at engaging young people, in partnership with organisations such as What Makes the Difference? and the Children’s Society, as well as with the Children’s Rights Director for England, Roger Morgan, who has an established reputation in this area.
My Lords, will the Minister assure the House that there is collaboration with the Home Office and the youth justice boards in view of the very high proportion of young people in prison who have had the experience of being in care at an earlier stage in their life?
My Lords, I can give the right reverend Prelate that assurance. If he has looked at the consultation paper, he will know that a whole section of it is devoted to the interests of children who are in custody. I draw his attention to pages 81 and 82, which set out a series of measures to improve provision for children in care who find themselves in custody, in particular the arrangements that are made in respect of them when they leave custody, which has been a particular weakness of the regime until now.
My Lords, given that 49 per cent of local authorities rate retention of child and family social workers as difficult or very difficult, given that 5 per cent of looked-after children in care last year were not even assigned a social worker—which is up from 2.7 per cent two years ago—and given the concerns of children in care about the turnover of their social workers, will the Minister ensure that the concerns about the development of the social care workforce are very clearly recognised in the Comprehensive Spending Review? When is the welcome proposal for a newly qualified social worker status likely to be implemented?
My Lords, I can give the noble Earl the assurance that he seeks. We believe that there are strong arguments for the newly qualified social worker status, which, as he says, the Government have put forward as an option for further consideration. It would mirror the equivalent status available in the teaching profession. It comes with a substantial price tag attached, which will feature in our consideration of our priorities in the Comprehensive Spending Review, but he has my assurance that we are taking the proposal very seriously.
My Lords, as the noble Earl, Lord Listowel, has said, the report rightly criticises the number of children in care without a named social worker. Part of the problem of ensuring that every child in care has a named social worker is the shortage of specially trained social workers. Does the Minister agree that this is an area where volunteers could work alongside professionals—that is, if they are not put off volunteering to work with children in the first place?
My Lords, the first priority is to see that they have access to good schools, on which there are a whole set of proposals in the consultation paper. The particular issue of access to the internet will depend on the care setting and the provision made within it. We would expect, for example, foster carers to be able to provide such access—the revised and increased allowances that are made available to them will make it easier to do so, if they have not been doing so already. If there are other specific measures about which I can inform the noble Baroness, I will do so in writing.
My Lords, does the Minister agree that it is somewhat disappointing that the number of days at school missed by looked-after children has remained static? What extra steps will the Government advise to increase the number of days that they attend school?
My Lords, engaging young people in care more fully with their education by having schools that take their interests seriously is the key objective to be secured if we are going to see those young people turn up at school more. That is why the stability of placements is important and why it is vital that young people who move between care placements have the opportunity, if the distances allow, to remain in the school that they were in previously. The consultation paper proposes that there should be free transport for them so that they can do that. It is also why we have introduced the new powers, which the House agreed to through the Education and Inspections Bill, to allow children in care not only priority admission to schools at the beginning of the school year, but similar priority during the course of the school year, so that one of the biggest problems faced by children in care—not having a school place for periods while their care placement moves—is overcome. I hope that all those measures will help to meet the concerns that the noble Baroness rightly highlighted.
Police and Justice Bill
A message was brought from the Commons, That they agree to certain of the amendments made by your Lordships to the Police and Justice Bill without amendment; they insist on their disagreement to certain other amendments, and they have made amendments in lieu to which they desire the agreement of your Lordships.
My Lords, I beg to move that the Commons message be considered forthwith.
Moved accordingly, and, on Question, Motion agreed to.
[The page and line references are to HL Bill 104 as first printed for the Lords.]
36: After Clause 46, insert the following new Clause-
“Designation of Part 2 territories: omission of United States of AmericaIn the list of territories in paragraph 3(2) of the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003(S.I. 2003/3334) “the United States of America” is omitted.”
The Commons disgree to this amendment for the following reason-
36A: Because it is appropriate for the United States of America to be a designated territory for the purposes ofsections 71, 73, 84 and 86 of the Extradition Act 2003
The Lords insist on their Amendment No. 36 for the following reason-
36B: Because it is not appropriate for the United States of America to be a designated territory for the purposes ofsections 71, 73, 84 and 86 of the Extradition Act 2003
The Commons insist on their disagreement to Lords Amendment No. 36 but propose the following amendments in lieu-
36C: Page 36, line 44, at end insert the following new Clause:-
“Designation of United States of America(1) In article 3(2) of the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003 (S.I. 2003/3334) (territories designated for the purposes of sections 71, 73, 84 and 86 of the Extradition Act 2003) the entry for the United States of America is omitted.
(2) An order bringing subsection (1) into force is not to be made-
(a) within the period of 12 months beginning with the day on which this Act is passed, or(b) if instruments of ratification of the 2003 treaty have been exchanged.In this subsection “the 2003 treaty” means the Extradition Treaty between the United Kingdom of Great Britain and Northern Ireland and the United States of America signed at Washington on 31st March 2003.
(3) Subject to subsection (2), if after the end of the period mentioned in subsection (2)(a) a resolution is made by each House of Parliament that subsection (1) should come into force, the Secretary of State shall make an order under section 51 bringing it into force.
(4) An order made by virtue of subsection (3) must bring subsection (1) into force no later than one month after the day on which the resolutions referred to in subsection (3) are made or, if they are made on different days, the day on which the later resolution is made.
(5) If subsection (1) is brought into force, it does not affect the power of the Secretary of State to make a further order under section 71(4), 73(5), 84(7) or 86(7) of the Extradition Act 2003(c. 41) amending article 3 of the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003 so as to add a reference to the United States of America.
(6) An order such as is mentioned in subsection (5) may include provision repealing this section.”
36D: Page 39, line 1, at end insert-
“( ) section (Designation of United States of America)(2)to (6);”
My Lords, I beg to move Motion A, That the House do not insist on its Amendment No. 36, in respect of which the Commons have insisted on their disagreement, and do agree with the Commons in their Amendments Nos. 36C and 36D in lieu.
We return once again to the debate on the scheme of our law on extradition, specifically the provisions governing extradition to and from the United States of America. Since we debated this issue last week, the elected Chamber has again voted decisively and convincingly on this matter. Indeed, the margin by which the other place rejected this House’s amendment on forum more than doubled from 41 to 94 votes. That is a powerful message on which this House will want to reflect carefully.
At this point I wish to say a few words about the government amendments passed by another place. We have tabled these purely out of procedural necessity to enable the matter to return to this House. They do not alter the Government’s position one iota. We cannot and do not agree with the amendments tabled by the Opposition and passed by this House in July.
I want to ensure that there is no misunderstanding about the purpose and effect of these amendments. They include a sunrise provision. I must make it clear to the House that the Government are under no obligation to bring forward the resolution that would be required to bring the new clauses into force and, moreover, have no intention of doing so. Although it is open to others to bring forward a resolution, the Government have no intention whatever of supporting any such resolution. Therefore, the House will not be surprised to learn that the Government cannot support Motion B1, tabled by the noble Lord, Lord Goodhart, which would remove the sunrise provision and bring the forum amendments into force on Royal Assent.
In rejecting the Opposition’s amendments, I again thank the House, including all those on the Benches opposite who spoke so eloquently, for the support and encouragement that they gave me in my visit to Washington in July. A number of noble Lords voted for the Opposition’s amendments in July because they were concerned about the delay in ratifying the 2003 treaty. I assure noble Lords that I used all those salient points to assist me in my deliberations in Washington. Noble Lords wanted to give a clear message to our sister upper House in the United States that it had to meet its side of the bargain, as we had already in part delivered on ours in redesignating the United States under the 2003 Act. I say to the noble Lords, Lord Kingsland and Lord Goodhart, that I understand why they made the points that they did on forum. There are always two sides to an argument. It is incumbent on all of us to try to listen to the other side and seek to understand the concerns that are raised. I understand the concerns that were expressed by all in this House who supported that Motion.
However, there is a balance to be struck between the interests of justice for the victims of crime and the rights of the accused. The Government believe that we have struck the right balance in designing our extradition arrangements. The noble Lords, Lord Kingsland and Lord Goodhart, believe that the arrangements on forum should be changed so that the balance is adjusted in favour of the accused. That is a perfectly respectable position for the noble Lords opposite to take, but it is not one which the Government can accept. To accept the amendment of the noble Lord, Lord Goodhart, would add a ground for refusing extradition that is outwith the 2003 treaty with the United States and some 20 other bilateral treaties. Thus, whatever the strength of feeling on the Benches opposite, I respectfully suggest that that is not the way to conduct our international relations.
Having negotiated a new treaty with the Government of the United States of America and pressed tirelessly for the Senate to give it its consent, we cannot now effectively change the terms of the treaty on the back of this Bill. We have known those terms for three years. The Opposition’s amendments would put us and the American Government in an unconscionable position. The amendments would, in effect, require the United States Government to renegotiate the 2003 treaty under duress. I know that this House would not want to put the Government or a close ally in that position.
I will not repeat all the benefits to the United Kingdom of the new treaty, but we should not lose sight of the fact that it will close loopholes that have enabled suspects to escape justice for some considerable time. The House will, I am sure, be at one with me in wanting to ensure that this country secures the full benefits of the new treaty as quickly as possible, so that British victims of crime can see justice done. I need not remind the House that in 1972 the treaty took five years to ratify. This treaty has taken three. The arguments on evidence have been well rehearsed on both sides of the House, and it is no longer the central issue before us. The tests in the United Kingdom and the United States are not identical, but they are broadly comparable. We have never wavered from that position.
So that leaves forum. As I have explained, a statutory provision making forum a ground for refusal in the Extradition Act could make us unable to ratify the treaty. We have, however, looked at an alternative. We are developing a non-statutory agreement with the United States in cases where a person could, even theoretically, be tried either there or here. The purpose of that agreement is fairness. By that I do not just mean fairness to the suspects, although of course that is vital, but fairness to the victims; in short, a balance. Future generations of prosecutors and victims would not forgive us if we missed this opportunity to improve and strengthen our provisions to combat cross-border crime. While acknowledging the concerns that have been raised, I urge this House, having done this country a great service in enabling us to bring about ratification, now to drop its insistence on the amendment and allow us to move forward and ratify the treaty, which is now ready to be so ratified by our American colleagues.
Moved, That the House do not insist on its Amendment No. 36, in respect of which the Commons have insisted on their disagreement, and do agree with the Commons in their Amendments Nos. 36C and 36D in lieu.—(Baroness Scotland of Asthal.)
My Lords, as happened last week, the Minister has opened, quite properly, by dealing with both Motion A and Motion B and, as the mover of Motion B1, I will therefore take the same course. I should add something that I failed to add last week; the noble Baroness is remarkably persuasive, and I congratulate her on her great success in persuading the American Senate to ratify the treaty. She clearly did an outstanding job on that. I am afraid that she has not been quite so successful in persuading me.
We have not insisted on keeping what I call the designation amendment, which would remove the designation of the United States of America under Section 84(7) of the Extradition Act 2003. We recognise that that would unquestionably prevent the implementation of the 2003 treaty. While we feel strongly that that treaty should never have been agreed in its unequal form, we recognise that it would be wrong for us to press for everything we want and that we must concentrate our fire on what we see as the most important target. We see that target as being the forum amendment, which is both the more important and the one that is likely to have less serious effect on the relations between this country and the USA.
It is plain to us that a forum amendment is needed. Where the United States is an appropriate forum for trial, we should, of course, be willing to extradite to the USA people whom it seeks for trial. But the United States may not be an appropriate forum; for example, where all or most of the alleged criminal acts have happened in the United Kingdom, where the links between the offences and the United States are minimal, where most of the evidence and the witnesses are in the United Kingdom and where the United Kingdom authorities have decided not to prosecute because of insufficiency of evidence. The United States is plainly not an appropriate forum in those circumstances. If that is the case and when it would be unjust and oppressive to order extradition of the defendant, surely a United Kingdom judge, not a prosecutor, should have the power to prevent extradition.
The noble Baroness talked about ensuring that victims of crime in this country get justice. Of course that is right, but is not someone who is extradited to the United States unjustly himself a victim? Has he had the justice which he deserves? We believe that he has not.
The forum amendment will be entirely consistent with the Council of Europe Convention on Extradition and with the framework decision that set up the European arrest warrant. It is right that the amendment should not apply only to the United States but should extend to all countries, as it will, if passed. Do we not want to protect our people from unjust extradition not only to the USA, but to Albania and Azerbaijan, whose legal systems are far inferior to those of the USA?
These debates have shown that the Government, in their wish to simplify what was unquestionably a sclerotic extradition system, have oversimplified the situation and have removed necessary protections against injustice. It is clear that the forum amendment would not require the renegotiation of the treaty. I apologise for suggesting otherwise in our previous debate. I have taken further advice since then.
The Extradition Act was enacted in November 2003, some eight months after the treaty was signed. It contains several provisions that restrict the power to extradite people to the USA—notably Section 87, which forbids extradition which is in breach of rights under the European Convention on Human Rights. There was no suggestion that that or any other bar on extradition set out in the 2003 Act led to a need for renegotiation of the treaty. The Government have, in effect, admitted that the forum amendment would not require a change in the treaty.
It is true that the USA could now refuse to exchange instruments of ratification, which are necessary to bring the treaty into force. But why should they refuse? If there is no exchange then there will be enormous pressure on our own Government to cancel the designation. If they did so, the United States would lose all the benefits it receives from the treaty, which are very substantial. The US may not welcome the inclusion of the forum amendment, but it has given no sign that it would refuse to bring the treaty into force as a result of it. Such a decision would not need to go back to the Senate, but would be for the President alone.
In the House of Commons the Government accepted our amendment from last week but added the sunrise clause. The noble Baroness said that the Government would take great care to ensure that the sun never rose, because the House of Commons would never approve. Our amendment simply removes the sunrise clause and replaces it with a clause that would bring the forum amendment into effect as soon as the Bill received Royal Assent. This is not a zero-sum gain. Withdrawal of the designation amendment means that the Americans and our Government can get the treaty—and they will get it unless the Americans act totally irrationally. The passage of the forum amendment means that British citizens and residents faced with unjust extradition to an inappropriate forum, whether in the United States or elsewhere, will get justice. This is a solution that we believe combines justice with practicality and common sense.
My Lords, I have nothing to add to or subtract from what the noble Lord, Lord Goodhart, said. His analysis exactly reflects the conclusions that we on these Benches have reached.
I have only a brief observation to make about the manner in which we find ourselves in this situation. As your Lordships well know, this treaty was signed in secret. It was negotiated in secret. Indeed nobody, apart from the civil servants directly involved and the Home Secretary knew that these negotiations were going on—despite the fact that an Extradition Act was in the offing. Moreover, this was no ordinary treaty. Many international treaties, which are negotiated, signed and ratified between states, have no implications for individuals. But this treaty deeply affected the rights of citizens in this country.
The extraordinary thing about this treaty is the different treatment of the rights of US citizens and those of British citizens. I know that the noble Baroness dissents from that, but in our judgment the rights of British citizens were valued far lower than the rights of US citizens. All their constitutional conditions were met, but none of those that we ought to have brought forward, but apparently did not, was met. It is a bad treaty, which should never have been signed. That remains our position.
What will we do about it? There is a wider issue for us as the official Opposition to consider. We have sent the Bill back to the elected House twice, and it has come back to us twice, effectively unchanged. The noble Lord, Lord Goodhart, said that there are certain designer changes, but only for the purposes of procedure. Essentially the Government have held their ground. The noble Lord, Lord Goodhart, and I have sought to negotiate with the Government informally to see whether some form of watered-down forum arrangement might be appropriate, but the Government have stuck to their guns.
What should the official Opposition do? Should we send it back again, with all the implications that that would have for Parliament, or should we not? We have concluded that, in our judgment, it would be wrong for us as an unelected House, having faced two repudiations from the elected House, to send this back one more time. We are the unelected House. If we were an elected House, I am sure that our decision would be different.
My Lords, I am deeply sad that the lawyers and the Government cannot tell the difference between information and evidence. I am deeply sad that we have abrogated the rights of British subjects, and I am even sadder that my own side has taken the view that it has. This House should insist on protecting the liberty of the subject. The health service and other things are, for want of a better word, “administrative” arguments. But this goes to the core of British liberties. We know that this Government—and the noble Baroness should know a lot better because she is a jolly good lawyer—have ridden roughshod time after time over British liberties. I will have great pleasure in voting with the noble Lord, Lord Goodhart.
My Lords, I, too, express my surprise that the official Opposition have withdrawn their opposition on the ground that we are the unelected House. I have heard them argue differently in the past and I am surprised that they have now accepted the government view in totality—that if the Commons override amendments sent to them, that is the end of the matter because we are an unelected House. That places this House in a very junior position indeed.
It is not as if the House of Commons cannot get its own way. It can always get its own way by using the Parliament Act. That is exactly what it should do under these circumstances. This extradition agreement with the United States has been a disgrace from beginning to end. I know that particularly. The Minister will remember that I intervened during the debates on the European arrest warrant to draw the Committee’s attention to what was happening with the negotiations with the United States. The fact that the Government wanted to negotiate something in secrecy is altogether against any credit that they might otherwise have had.
I very much regret the fact that the official Opposition have withdrawn their opposition to what the Government have been doing and that they will not insist on the proper amendments, sent to the House of Commons by this House after much debate among people well qualified in this particular law. If the amendment of the noble Lord, Lord Goodhart, is put to the vote—I hope that it will be—I should be delighted to support it.
My Lords, I have a question for the Minister based on personal experience. I am prompted to ask it by her mentioning the closing of loopholes. In March 1980, I was commanding the brigade in Belfast. We surrounded a house in which there was an IRA gun team who had killed a number of RUC men over the preceding months. In achieving their surrender, an extremely gallant young officer of mine, Captain Richard Westmacott, was unfortunately killed by this team. I eyeballed the four gunmen as they were taken out of the house to prison. They were tried at the Crumlin courthouse the next year. After they were found guilty of murder, there was a mass escape from the Crumlin and large number of them got away to America. It was 11 years before we succeeded in obtaining the extradition of Doherty, the leader of that team. Each and every time we asked, the Americans claimed that the murder of Captain Westmacott had been a political crime and they therefore refused to extradite. We are told that we are now deeply involved in a war on terrorism. Can the Minister assure me that, under these arrangements, this sort of loophole will be closed and British victims of crime will be able to see justice done in future?
My Lords, would new Section 83A of the Extradition Act, were it to come into force on the passing of the Bill with which we are now concerned, require an amendment of the treaty or not? The noble Lord, Lord Goodhart, seems to have changed his mind on this. I was of the view that it would probably require an amendment to the treaty, which was one reason why I would be against the amendment of the noble Lord, Lord Goodhart. I have other reasons, however, which were given by the noble and learned Lord, Lord Boyd of Duncansby, on the last occasion. I do not know whether the noble and learned Lord intends to speak today, but he made an extremely powerful case against the form of the amendment. As we all know, it will almost certainly lead to further delay and complications, which it has been our object for at least 30 years to try to avoid in extradition proceedings.
My Lords, I shall deal first with the point raised by the noble and learned Lord, Lord Lloyd of Berwick. I wholeheartedly agree with him about the accuracy of the points made by my noble and learned friend Lord Boyd on the last occasion when we discussed this matter; they were absolutely correct. Secondly, if the amendment tabled by the noble Lord, Lord Goodhart, was accepted, we would not be able to guarantee ratification because those forum amendments are outwith the treaty. Therefore, it would be open to our American colleagues to say that they were not prepared to ratify the treaty unless and until those provisions were expunged. The noble Lord, Lord Goodhart, said that in realpolitik, although we might be accused of acting in bad faith in not having raised those matters, the benefits of the treaty are so clear that the Americans might feel obliged to concur. That is not a way in which we do business in this country; it is not a way in which we ratify and deal with treaties.
I heard the noise that came from the other side, but I remind the House that this treaty was negotiated in a similar way to the way in which many other treaties were negotiated. There may be a feeling in this House that in future we should not be able to enter into treaties unless and until Parliament has spoken and has gone through every scintilla, and until every “i” has been dotted and every “t” has been crossed. But that is not how we do business at the moment, and it is not how any Government before us have done business. However, that is probably a debate for another day.
To deal with the question asked by the noble Lord, Lord Ramsbotham, in relation to the 1985 position, I assure him that the 1985 supplementary treaty disapplies the political offence in extradition. That has been continued in the 2003 treaty. The situation to which the noble Lord referred could not now occur.
My Lords, I have seen it reported that one of the inducements given to the American Senate to ratify the treaty was a statement that the United Kingdom would not seek the extradition of any IRA people for acts committed before Good Friday. Can she confirm whether that is true?
My Lords, it has been made plain that all the provisions that currently apply as a result of the Good Friday agreement would apply to any person who wishes to take advantage of them. We are not making any new, different or separate arrangement outwith that which we already have in relation to the Good Friday agreement. Noble Lords have debated many times how someone may apply to have those issues dealt with if he wishes to put himself into a better place. We have made no separate or different arrangement.
My Lords, I heard noble Lords around me saying, “What does that mean?” I must admit that I did not understand a word that the Minister said. Can she answer the question more clearly? I may be one of the stupider Members of this House, but on this occasion other noble Lords are also saying that they cannot understand the answer.
My Lords, this House has debated every scintilla of the issues in relation to the Good Friday agreement, its consequences and the basis on which people can seek amnesty or an opportunity to return to this country. I shall not say that we did so ad nauseam because those issues are incredibly important. All those provisions apply in relation to any individual wherever he happens to be if he wishes to return to this country and take advantage of them. Nothing that we have done in relation to this treaty or this Act changes those issues. We are very hopeful of having a resolution to the Northern Ireland question later this month. We will have to wait and see what happens. Nothing that we have done here alters any of that work in any way whatever. I am sure that the House would not want me to recite each and every—
My Lords, it really depends on when they went, what they did and whether the provisions under the Good Friday agreement apply to them. The Senate’s advice and consent to the treaty was subject to a resolution regarding the situation in Northern Ireland. The UK Government have already stated—in September 2000—that they will no longer pursue the extradition of individuals who, if they were to return to Northern Ireland, would now be eligible for early release under the terms of the Good Friday agreement scheme and who would, on making a successful application to the Sentence Review Commission, have little if any of their original prison sentence left to serve. The resolution to which the Senate’s consent to the treaty was subject is non-binding and was intended to reassure Senators that the treaty would be implemented in accordance with the US law and constitution and in compliance with the Good Friday agreement.
I am sure that nobody in this House would wish us to set back the position of Northern Ireland to where it was before that agreement. We are moving forward, and that which we commit this country to do will be consistent with that and not undermine it. I am sure that the noble Lord, Lord Tebbit, would not wish to undermine the new arrangements that we have in Northern Ireland, which are likely to bring peaceand tranquillity to that Province for the first time in many a year. So, we have the situation in relation to the past.
As regards the forum, I just say that we do not agree that this treaty jeopardises the rights of citizens of this country. I have tried to make it absolutely clear in the assurances that I have given to the House that if our prosecutors come to the conclusion that the facts complained of are wholly or substantially in this country, that the links are minimal and that most of the events took place in the United Kingdom, it will be their decision whether to prosecute in this country, and theirs alone. If at any stage, once an extradition application has been made, we reach the conclusion that this case would be better tried in this country, that we should prosecute those facts and that it would be in the interests of justice so to do, I assure this House that our prosecutors will decide to do that. It is our right and our duty to do that if we reach that conclusion. Nothing that happens in this treaty or this Act prevents us from so doing.
Your Lordships should be aware that my noble and learned friend the Attorney-General is absolutely seized of this matter; he understands the concerns of this House and the importance that we place on prosecuting matters in this country if it is right todo so. I give that assurance to help the House to appreciate that we understand the anxiety that has been expressed and that we will do everything that we can to address the issue.
This treaty inures to our advantage, and I am surprised to hear the noble Lord, Lord Kingsland, say that this is a bad treaty and should never be signed, because when I previously asked whether Her Majesty’s loyal Opposition wanted the treaty, the answer was yes, they did. I understand why they want this treaty. They want the treaty for the same reasons as we do: we want justice for victims; we want fairness; and we want to be able to prosecute those who should properly be prosecuted in the correct jurisdiction.
My Lords, when we debated the matter a week ago, the noble Baroness made a most interesting speech, which I have had the benefit of reading several times. At the end of her speech, there was a passage that indicated that, since the ratification of the treaty, she had had some discussions with the American negotiators that gave messages of comfort as to how the treaty would be negotiated. I concluded by asking her a direct question: what was the status of those assurances? Did they have the force of law or were they merely a message of comfort? I have not heard from the noble Baroness since and she did not reply at the time, so I should be grateful if she could answer that question now.
My Lords, I apologise for not replying. They are assurances. They do not have the force of law in that they do not set down enforceable arrangements, but we have had similar arrangements over a long period. They are practical arrangements as to how we will work with our partners—ways of dealing that have stood us in good stead. It is the intention of both our Attorney-General and the Attorney General in the United States to continue those discussions so that we have a reasonable, practical arrangement for decisions to be made on whether cases would be best tried here or elsewhere.
I underline the fact that nothing in those informal arrangements would preclude or prevent us from prosecuting if we came to the conclusion that we wanted to do so, irrespective of what any contracting state may prefer. It will be our decision and down to our prosecutors whether we believe, on the face of the evidence and information that we have, that the matter would be better dealt with in this country. No agreement that we enter into will impinge in any way on our ability to make that decision for ourselves.
My Lords, the noble Lord, Lord Bridges, was too quick for me, rising before I could respond to the noble Baroness's final observation about our wanting the treaty. We want the treaty, but subject to the forum amendment. We do not understand why the forum amendment was granted to the Irish but not to us. There is, it now appears, one simple reason: the Irish asked for it; we did not. The Government do not really want the judges to have the power to determine; they want the prosecutors to have the power to determine forum. That has always been wholly unacceptable to us and, thus, the treaty is wholly unacceptable to us without that forum provision.
On Question, Motion agreed to.
81: Schedule 14, page 134, line 3, at end insert-
The Commons disagree to this Amendment for the following Reason-
81A: Because the Lords Amendment, taken with Lords Amendments Nos. 82 and 83, could cause the United Kingdom to be in breach of existing international agreements and would unduly restrict its ability to enter into further ones.
The Lords insist on their Amendment No. 81 for the following Reason-
81B: Because it is appropriate that judges should have discretion over requests for extradition in the manner proposed.
82: Page 134, line 5, leave out “19A”” and insert “19B””
The Commons disagree to this Amendment for the following Reason-
82A: Because the Lords Amendment, taken with Lords Amendments Nos. 81 and 83, could cause the United Kingdom to be in breach of existing international agreements and would unduly restrict its ability to enter into further ones.
The Lords insist on their Amendment No. 82 for the following Reason-
82B: Because it is appropriate that judges should have discretion over requests for extradition in the manner proposed.
83: Page 134, line 23, at end insert-
“19BForum (1) If the conduct disclosed by the request was committed partly in the United Kingdom, the judge shall not order the extradition of the person unless it appears in the light of allthe circumstances that it would be in the interests of justice that the person should be tried in the category 1 territory.
(2)In deciding whether extradition is in the interests of justice, the judge shall take into account whether the competent United Kingdom authorities have decided to refrain from prosecuting the person whose surrender is sought for the conduct constituting the offence for which extradition is requested.””
The Commons disagree to this Amendment for the following Reason-
83A: Because the Lords Amendment, taken with Lords Amendments Nos. 81 and 82, could cause the United Kingdom to be in breach of existing international agreements and would unduly restrict its ability to enter into further ones.
The Lords insist on their Amendment No. 83 for the following Reason-
83B: Because it is appropriate that judges should have discretion over requests for extradition in the manner proposed.
84: Page 142, line 5, at end insert-
“Bars to extradition (1) Section 79 (bars to extradition) is amended as follows.
(2) After paragraph (d) of subsection (1) there is inserted-
“(e)forum.” (3) In subsection (2), for “83” there is substituted “83A”.
(4) After section 83 there is inserted-
“83AForum (1)If the conduct disclosed by the request was committed partly in the United Kingdom, the judge shall not order the extradition of the person unless it appears in the light of allthe circumstances that it would be in the interests of justice that the person should be tried in the category 2 territory.
(2)In deciding whether extradition is in the interests of justice, the judge shall take into account whether the competent United Kingdom authorities have decided to refrain from prosecuting the person whose surrender is sought for the conduct constituting the offence for which extradition is requested.””
The Commons disagree to this Amendment for the following Reason-
84A: Because the Lords Amendment could cause the United Kingdom to be in breach of existing international agreements and would unduly restrict its ability to enter into further ones.
The Lords insist on their Amendment No. 84 for the following Reason-
84B: Because it is appropriate that judges should have discretion over requests for extradition in the manner proposed.
The Commons insist on their disagreement to Lords Amendments Nos. 81 to 84 but propose Amendments Nos. 84C and 84D in lieu-
84C: Page 134, line 44, at end insert-
“Restriction on extradition in cases where trial in United Kingdom more appropriate 3A (1) In section 11 (bars to extradition)-
(a) at the end of subsection (1) there is inserted- “(j)forum.”; (b) in subsection (2), for the words from “12” to “apply” there is substituted “12 to 19B apply”. (2) After section 19A (inserted by paragraph 3 above) there is inserted-
“19BForum (1)A person’s extradition to a category 1 territory (“the requesting territory”) is barred by reason of forum if (and only if) it appears that-
(a)a significant part of the conduct alleged to constitute the extradition offence is conduct in the United Kingdom, and (b)in view of that and all the other circumstances, it would not be in the interests of justice for the person to be tried for the offence in the requesting territory. (2)For the purposes of subsection (1)(b) the judge must take into account whether the relevant prosecution authorities in the United Kingdom have decided not to take proceedings against the person in respect of the conduct in question.
(3)This section does not apply if the person is alleged to be unlawfully at large after conviction of the extradition offence.”
3B (1) In section 79 (bars to extradition)-
(a) at the end of subsection (1) there is inserted- “(e)forum.”; (b) in subsection (2), for “Sections 80 to 83” there is substituted “Sections 80 to 83A”. (2) After section 83 there is inserted-
“83AForum (1)A person’s extradition to a category 2 territory (“the requesting territory”) is barred by reason of forum if (and only if) it appears that-
(a)a significant part of the conduct alleged to constitute the extradition offence is conduct in the United Kingdom, and (b)in view of that and all the other circumstances, it would not be in the interests of justice for the person to be tried for the offence in the requesting territory. (2)For the purposes of subsection (1)(b) the judge must take into account whether the relevant prosecution authorities in the United Kingdom have decided not to take proceedings against the person in respect of the conduct in question.
(3)This section does not apply if the person is alleged to be unlawfully at large after conviction of the extradition offence.”
3C (1) An order bringing paragraph 3A or 3B into force is not to be made within the period of 12 months beginning with the day on which this Act is passed.
(2) If after the end of that period a resolution is made by each House of Parliament that paragraphs 3A and 3B (or either of them) should come into force, the Secretary of State shall make an order under section 51 bringing the paragraphs (or paragraph) into force.
(3) An order made by virtue of sub-paragraph (2) must bring the provisions in question into force no later than one month after the day on which the resolutions referred to in that sub-paragraph are made or, if they are made on different days, the day on which the later resolution is made.”
84D: Page 39, line 1, at end insert-
“( ) paragraph 3C of Schedule 14;”
My Lords, I beg to move Motion B, That the House do not insist on its Amendments Nos. 81 to 84, in respect of which the Commons have insisted on their disagreement, and do agree with the Commons in their Amendments Nos. 84C and 84D in lieu.
Moved, That the House do not insist on its Amendments Nos. 81 to 84, in respect of which the Commons have insisted on their disagreement, and do agree with the Commons in their AmendmentsNos. 84C and 84D in lieu.—(Baroness Scotland of Asthal.)
moved, as an amendment to Motion B, at end to insert, “but do propose AmendmentNo. 84E as an amendment to Amendment No. 84C:
84E: Leave out lines 47 to 57 and insert—
“3C Paragraphs 3A and 3B shall come into force on the day on which this Act is passed.”
The noble Lord said: My Lords, I have just two brief points to make in response to what the noble Baroness said. First, we are in the same position on the question whether the forum amendment would involve renegotiation of the treaty. As I understand it, she maintains—and I agree—that the United States, not having yet taken the final step of exchange of instruments and ratification, could, in theory, decide not to proceed with the exchange of instruments, in which case the treaty would not come into force. On the other hand, if they proceed with the exchange of instruments of ratification, because the forum matter is, as she said, outwith the treaty, the treaty would be perfectly valid without any renegotiation. I understand that to be the position, and I think that that is the answer to the question from the noble and learned Lord, Lord Lloyd of Berwick.
The Minister’s only other argument is that this would delay extradition. To a slight degree, that must be correct, but it is also true that the real reason why extradition took so long in this country is that, on several occasions under the old procedure, matters had to be referred to the Home Secretary for a decision. There was a judicial review each time the Home Secretary took a decision. This was clearly abused. Under the new procedure, whether or not the forum amendment is accepted, there will be no scope for similar discretionary decisions by the Home Secretary, so the main cause of delay will be excluded. What is left of delay is a price plainly worth paying for justice. I therefore still firmly believe that the forum amendment should be added to the Extradition Act.
My immediate thought, on learning of the position of the Conservative party on this issue, was of a poem that many noble Lords will know:
“The grand old Duke of York,
He had ten thousand men,
He marched them up to the top of the hill,
And he marched them down again”.
If one substitutes the name of the noble Lord, Lord Strathclyde, for that of the Duke of York, and 200 Peers for 10,000 men, that is exactly the position which the Conservative party is in now. It is not only feeble but positively shameful, and I hope that a number of noble Lords on the Conservative Back Benches will join the noble Earl, Lord Onslow, in supporting us in the Division Lobby.
In December 2003, we were the first party to battle against what we saw as unjust extradition when we opposed in both Houses the order that gave to the USA the right of extradition without evidence. If, as seems all too probable, that battle is about to come to an end, we will at least have fought it to the last. I beg to move.
Moved, as an amendment to Motion B, at end to insert, “but do propose Amendment No. 84E as an amendment to Amendment No. 84C”.—(Lord Goodhart.)
On Question, Motion B agreed to.
Road Safety Bill [HL]
A message was brought from the Commons, That they do not insist on one of their amendments to the Road Safety Bill but have made amendments in lieu thereof; they insist on certain of their amendments and disagree to certain amendments made by your Lordships for which they assign reasons.
My Lords, I beg to move that the Commons message be considered forthwith.
Moved accordingly, and, on Question, Motion agreed to.
[The page and line references are to Bill 113 as first printed for the Commons.]
1: Leave out Clause 2
The Lords disagree with Commons Amendment No. 1 for the following reason-
1A: Because it is appropriate for local transport authorities to be able to use revenue from speed cameras to fund local transport facilities or related environmental improvements
The Commons do not insist on their Amendment No. 1 but propose the following amendments in lieu-
1B: Page 1, line 15, leave out “In”
1C: Page 1, line 16, leave out from ‘etc.)’ to end of line 2 on page 2 and insert “is amended as follows.
(2) In subsections (3) and (4), for “this section” substitute “subsection (1)”.
(3) After subsection (4) insert-
“(4A)The Secretary of State may by regulations make provision for making to public authorities for road safety purposes payments calculated by reference to any amount by which-
(a)the amount of the sums paid into the Consolidated Fund in consequence of the commission of offences to which subsection (2) applies and which are detected by cameras, exceeds (b)the amount of any payments made undersubsection (1).”.”
My Lords, I beg to move Motion A, That the House do agree with the Commons in their Amendments Nos. 1B and 1C.
As I explained to the House when last we considered the Bill, Clause 2 is defective in a number of respects. For example, it refers to income from the enforcement of offences under subsection (2). This is inaccurate and could extend to income from offences detected by police officers as well as cameras. It also refers to several undefined terms such as “safety camera scheme”.
Our obligation is to save this vital Road Safety Bill. Given that the House is keen that the Government should have a power to make such regulations, we have tabled Amendment No. 1C, which delivers the intended aims of Clause 2 but which is not technically defective and would be workable. As I have previously explained, new arrangements are being introduced for the integration and funding of safety cameras from 1 April 2007 which will see the end of the netting-off funding arrangement and local authorities receiving additional money for road safety through the local transport process—some £440 million over four years. This is a significant and sustained level of funding at a time when future fine incomes are not guaranteed. The House will recognise that there are already signs of improved compliance with speed limits, which, of course, has the inevitable effect of reducing the level of fine income.
The Association of Chief Police Officers national rollout of speed awareness courses from 1 April will enable more offenders to opt for re-education rather than penalty points and fine. If anything, therefore, it is likely that the amount of fine income from speeding offences will reduce over time. This, of course, is very good news as it shows that the public are increasingly recognising the dangers associated with excessive speed. The whole purpose of speed cameras is to reduce the amount of speeding. We therefore hope and expect that the level of fine income will go down over time.
In the event that use was made of the powers set out in Amendment No. 1C, this would be contingent on having a mechanism to ensure that the regulations did not create incentives for partnerships to drive up the level of fine income in order to secure additional income and to ensure that those partnerships which succeed in improving compliance with speed limits, thereby reducing the income from speed cameras, are not penalised by receiving less money for other road safety purposes.
I reiterate that our obligation is to save this vitally important Road Safety Bill. I hope the House will recognise that the Government have responded to the defeat we sustained last time on this issue and that we have acted accordingly.
Moved, That this House do agree with the Commons in their Amendments Nos. 1B and 1C.—(Lord Davies of Oldham.)
My Lords, I thank the Minister for his comments and the Government for their rethink on this issue. As everyone knows, I am very much a localist. One of the reasons I was very keen to promote this provision is that money raised locally from speed cameras should be spent locally and not go into other pots and be distributed in other ways. I agree totally that there must not be anything in the clause or the regulations which encourages speed cameras merely to raise money, which is what many people claim they are there for.
We have agreed during our debates on the Bill that speed cameras have been a very effective way of saving lives and reducing speed. We want to see more money reinvested in road safety, sometimes through fairly minor measures. The highway engineers to whom I have spoken will be very pleased to see this part of the legislation come into operation. It will provide transparency and in many parts of the country they will be able to see money raised locally spent on measures that will save lives.
I thank the Government again; I am pleased they have had a rethink. Although there are still some defective parts of the Bill, which we shall talk about later, this is a good addition and I thank the Government for bringing it forward. We shall obviously support it as it was our amendment initially.
On Question, Motion agreed to.
5 Clause 16, leave out Clause 16
The Lords disagree with Commons Amendment 5, and propose Amendments 5A and 5B in lieu-
5A Page 21, line 18, at end insert-
“(2)The Secretary of State must make regulations under this section no later than 31st December 2007.””
5B Page 59, line 6, after “1,” insert-
“(aa) section 16,”
The Commons insist on Amendment No. 5 and disagree to Amendments 5A and 5B for the following Reason -
5C Because it is undesirable to make regulations about retro-reflective tape when European and international legislation about it is being prepared
My Lords, I beg to move Motion B, That the House do not insist on its disagreement to Commons Amendment No. 5 and do not insist on its Amendments Nos. 5A and 5B in lieu.
Use of retro-reflective tape is already permitted and many heavy vehicle operators have already opted to fit it voluntarily. We are committed to making it mandatory and believe the best mechanism for achieving this is through amendment to both EC and UNECE legislation. This route has been agreed internationally and proceedings are under way that will mandate it in European and international law. We do not believe it would make good sense to try to introduce domestic regulations covering only UK-registered vehicles while European and international legislation is being prepared to introduce a “universal” requirement to fit the tape.
In addition, the legal basis for making such UK-specific regulations before tape fitment is mandated by EC and UNECE law is at best uncertain. If we were to introduce regulations by the end of 2007, I cannot be sure that we would not be open to challenge and possibly to infraction proceedings.
Unilateral Italian requirements on this subject have been mentioned, and there has been some confusion over this. Let me clarify the position. I have a copy of a letter from the Secretary-General of the Commission for the Italians advising them, among other things, of their obligation to include a mutual recognition clause relating to other member states or EFTA countries signatory to the EEA agreement, and suggesting they reconsider their legislation.
In addition, I can confirm that the Enterprise Directorate-General website lists the Commission, Germany, France and the UK as all having commented on the draft Italian ministerial decree on retro-reflective materials for heavy vehicles and trailers. The UK view is that, because UNECE Regulation 48 specifically mentions Regulation 104 tape as “optional”, that reference establishes competence on this subject, taking it away from individual member states.
Let me make it clear that the UK is not pressing for infraction proceedings against the Italians, nor do we in any way oppose amending UNECE and EC legislation to mandate the use of retro-reflective tape on heavy vehicles and trailers. But we maintain that the Italian measure is unlawful under existing legislation, and that it would be unlawful for us to follow the Italians in doing this. It would also be impractical, for reasons I shall explain.
Structural requirements for vehicles are not a matter of individual member state competence. As a result, there can be no possibility of introducing national regulations intended to apply to foreign-registered as well as UK-registered vehicles. I think that that is obvious to everyone. The question of regulations covering only UK-registered vehicles is not so clear cut. We could make regulations, under existing powers, to require the fitment of retro-reflective tape to newlyregistered UK heavy vehicles. However, we would not be able to enforce that on all UK-registered vehicles, as I shall explain in a moment.
If we did try to make such regulations, we would need to notify them to the European Commission under the technical standards directive. I suspect that if we did so, the regulations would be held up, possibly on the grounds that the EC is in the process of legislating on the same subject. If we tried to get round that by failing to notify the EC, our requirement would be unenforceable.
If, by some chance, the regulations did go through, we would none the less be obliged to register vehicles which were presented for registration correctly approved to UNECE Regulation 48 and/or the lighting installation directive, but not fitted with the tape. Those approvals do not require the tape, but we are duty bound to accept vehicles which are in line with them. It would be embarrassing were we thereafter to claim that such vehicles, even though correctly registered for use in the UK, were not in fact lawful for use on the public road because they lacked the tape. I can imagine only that the Italians may be avoiding such difficulties by applying their regulations only to Italian-registered vehicles, which do not have Regulation 48 or lighting installation directive approval. Otherwise, I feel sure that aggrieved owners and operators in Italy would have appealed on the grounds that the law was being breached.
As I understand it, such regulations could be challenged on several fronts. For example, they would discriminate under general Community law principles, or possibly even on a human rights basis, against UK vehicles. They would be outwith the lighting installation directive and UNECE obligations and would prejudice the single market, which is the point of harmonisation.
Clause 16 is also deeply flawed in that, unlike the existing powers which it reflects, it does not contain provisions specifying offences and penalties. Therefore, even if the Secretary of State made regulations under the power to require the fitment of retro-reflective tape to heavy trucks and trailers, owners and operators who failed to comply would commit no offence and face no penalties.
In view of these factors, and because it makes no sense to make regulations requiring the tape for UK vehicles alone when work is already in hand to require it universally, we remain opposed to the making of early, unilateral regulations on this subject. We should do far better to rely on the powers which we already have, which already cover reflective tape and include provision for enforcement and penalties. We have undertaken to use these powers as soon as permitted to do so by European and UNECE regulations. Additionally, we have undertaken to discuss with industry how it might best prepare for the introduction of this mandate, to which we are committed, including the possibility of early introduction on a voluntary basis.
Some people have argued that it would be worth trying to introduce an early, UK-only, mandatory requirement because it would save lives. While we recognise that the tape is useful, we are not convinced that it will achieve highly significant accident savings in this country. While the tape is helpful in improving conspicuity during the hours of darkness and in conditions of poor visibility, UK trucks are already equipped with various aids, such as side marker lights and rear retro-reflective plates. The tape's road safety effects will therefore not be as great as they may be in some other countries.
I have heard some people quote overall UK heavy vehicle accident statistics, assuming that the introduction of the tape would have an immediate and beneficial effect. It must be remembered, however, that the tape will have no effect on daytime, good-visibility incidents. It will have an effect only on incidents taking place in the dark or in conditions of poor visibility, and only in those cases where lack of conspicuity is a contributory cause. There are other causes of accidents, such as speed, drink-driving, ice, oil or obstructions on the road, mechanical failure and reckless driving.
In 2005, Loughborough University carried out a study on retro-reflective tape—copies of which are in the Library of the House—for the Department for Transport. The report noted:
“Accident reduction figures … from … American data involved comparison of the accident involvement of vehicles with [retro-reflective] contour marking … and … those with no retro-reflective markings. Whereas in the UK reflectors and lighting on the rear and sides of HGV[s] … are already required … to improve … conspicuity”.
Therefore, the addition of retro-reflective tape may not result in reduction rates in the UK similar to those which have been observed in America. The estimate of gains from fitting the tape is therefore likely to be optimistic.
Nevertheless, I reiterate that we intend to introduce the mandatory requirement as soon as we can, consistent with its applying to the whole of Europe. For the reasons I have outlined, it is not right that we should do it unilaterally. Accordingly, I beg to move.
Moved, That the House do not insist on its disagreement to Commons Amendment No. 5 and do not insist on its Amendments Nos. 5A and 5B in lieu.—(Lord Davies of Oldham.)
My Lords, I thank the Minister for that very full answer, but I am still very disappointed that we have not been able to find our way through what is rather a muddle. The noble Lord did not mention the United Nations, but I have seen some correspondence in which even that body seemed to be involved. It has been said that these retro-reflective strips are not all they are cracked up to be, but all the evidence is that they save lives. We have spent a year discussing this Bill and various ways in which we might make our roads safer and save lives. This measure was one of the daring ones which would have been fairly cheap—it would cost about £100 a vehicle; it could have happened relatively quickly; and, whatever the debate about how much it might save, it would certainly have added to the safety of our roads.
I am very disappointed, because there is no difference in our policy on this. We all want eventually to have these strips, and to have a degree of safety and the saving of lives that is as high as possible. So I am disappointed that the Government have not been able to find a way—or to persuade our European neighbours to find a way—through this quagmire of Euro-legislation. I know that the Minister had good intentions on this matter, because I have discussed it with him several times, and I do not think that we can take the matter any further today. The Minister did not say this in his introduction—or at least I did not hear him say it—but the manufacturers should start preparing so that the strips can be rolled off quickly on new vehicles when the legislation or regulation comes into force.
We are disappointed. We shall not push the matter again today, but it is a pity that we have not been able to find a way through.
My Lords, I, too, am disappointed, as bureaucracy seems to have got in the way of common sense. I am sure that some accidents would be avoided if these proposals were implemented. The results are usually very bad for the person who hits a heavy lorry, rather than the other way round. The Government have made their case—but I cannot help reflecting that if we were discussing railway safety much quicker action would be forthcoming even if only a few lives were likely to be saved.
My Lords, the Minister gave a masterful defence. Because the Government do not want to do something, he and his officials have done a wonderful trawl of 150 reasons why it should not happen. I am sure that those reasons are all true, and I commend him for the detail that he went into, but I think it is very sad. But there we are—he may be right. I hope that out of this will come more pressure to stick this tape on vehicles on a voluntary basis.
The Minister omitted one of the offences that could occur—death by careless driving, which we shall discuss shortly. Finally, I congratulate him on pronouncing the word “conspicuity” three times without fluffing it, which is a real challenge.
My Lords, I am grateful to my noble friend for his last point about that word, which I do not intend to repeat. But I accept his point. He says that there should be pressure for voluntary compliance. Some vehicles are fitted with that tape—and it is permitted for people to do so. We have made it clear throughout the passage of this Bill—and we have been aided by the opposition parties, which have stressed their commitment to the concept—that we see reflective tape as an aid to road safety. It is not quite the outstanding aid that it may have been in the United States, when it proved in many cases to be the only way in which to make vehicles conspicuous on American roads. Of course, British vehicles are differently and better equipped than those in the United States.
Nevertheless, the strip will be an aid, and we intend to make it mandatory, as soon as we have agreement throughout Europe, which is bound to be an incentive to manufacturers of vehicles to start considering whether they should put it on immediately. It does not add a huge amount to the cost of a new truck, as the noble Earl, Lord Attlee, said last time we debated this matter. We would expect manufacturers to recognise that in due course it will be a requirement. We do not think the issue is sufficient to collide with our European partners in quite the dramatic way that might have been the result of us acting unilaterally.
On Question, Motion agreed to.
6: Clause 20, page 24, line 36, column 4, leave out “the statutory maximum” and insert “12 months (in England and Wales) or six months (in Scotland) or the statutory maximum, or both”
The Lords disagree with Commons Amendment No. 6 for the following reason-
6A: Because it is not appropriate to provide for a custodial sentence for causing death by careless or inconsiderate driving
The Commons insist on Amendment No.6 for the following reason -
6B: Because it is undesirable for a custodial sentence not to be available on summary conviction of the offence of causing death by careless or inconsiderate driving
My Lords, I beg to move that the House do not insist on its disagreement to Commons Amendment No. 6, on which the Commons have insisted for their reason 6B.
We return once again to the offence of causing death by careless driving. The question before us today is whether a custodial penalty should be available on summary conviction for the offence, and I shall concentrate on that. A number of issues need to be addressed before I can move on to discussing why the Government are insisting on this amendment, and I recognise the strength of feeling in several parts of the House on this matter. I am therefore obliged to repeat, but not at great length, some of the points I made on the previous occasion when we debated this.
This legislation has been considered carefully and was the subject of extensive consultation. The consultation itself was preceded by a review in which a wide range of stakeholders was consulted, including judges, the police and road safety campaigners. The policy is not being rushed. I realise that there is some concern that these offences were not included in the Bill from its introduction, but that was because they were still the subject of the consultation exercise we were carrying out and we did not want to pre-empt the outcome of that process. We made changes as a result of that consultation, and included the offences in the Bill as soon as we were able to do so.
The maximum penalties provided for this offence will be 12 months on summary conviction or five years on conviction on indictment. I emphasise that those penalties are the maximum that would be available to the court. If the court did not consider a custodial penalty to be appropriate, it would use other methods of disposal; for example, by imposing a fine or a community penalty. I did not respond directly last time when the noble Baroness, Lady Gardner, asked what would happen if a mother reversed out of her driveway and caused an accident to her child. I cannot conceive of any court prosecuting and passing a sentence against a mother in such circumstances, but in any case that would be for the court to make its judgment. Here we are merely seeking to establish maximum penalties where careless driving has clearly resulted in death, and is therefore serious.
Some noble Lords may be concerned that sentencing will be inconsistent or unfair, but we are seeking to ensure that guidance from the Sentencing Guidelines Council will be available to inform sentencing decisions. The only obligatory elements of the penalty would be disqualification and endorsement, as is the case with other bad driving offences where death is caused.
This issue is not one to which we can return, as both Houses have now agreed. I realise that certain noble Lords are concerned about it, however, and I believe a mistake was made at Third Reading. I cannot say whether a mistake was made, only which amendment was voted upon. That is the only judgment I can make. We voted on whether this offence should have a custodial penalty attached to it on summary conviction. The Government lost that vote at Third Reading in this House by the very narrow majority of 159 to 153. I cannot assume that everyone who voted on that amendment did so in the mistaken belief that they were voting on the penalty for the offence as a whole. I wish to concentrate on the effect that our vote would have on the operation of this offence. On the previous occasion that we debated this matter, the noble and learned Lord, Lord Lyell, stressed that in his view a mistake had been made in the way the amendments had been dealt with, although he recognised that it was not a mistake on the Government’s part. I reiterate what I said to the noble and learned Lord on that occasion. The Government can deal only with the Bill as it is before us. If a mistake has been made, we are not in a position to correct it, nor dare we presume the basis on which noble Lords voted.
The other place has insisted on its amendment that a custodial penalty should be available on summary conviction to avoid what I think the House will recognise as the perverse consequences of providing that a Crown Court only can impose a custodial penalty for this offence. It is those perverse consequences which I urge noble Lords to concentrate on and recognise today. The failure to provide for a custodial penalty on summary conviction would mean that any case that might conceivably warrant a custodial sentence would be referred to the Crown Court for trial. This would increase costs and anxiety for the defendant. This runs contrary to views expressed during the consultation exercise. The Magistrates’ Association is clear that in its view if it is to have the power to try this offence, it should have a full range of penalties at its disposal.
In addition, under changes made to magistrates’ powers under the Criminal Justice Act 2003, which are awaiting implementation, if a magistrates’ court accepts jurisdiction in a contested case but finds,on trying it, that a custodial sentence was after all justified, it will cease to be able to commit it to the Crown Court for sentence, even if it considers its sentencing powers to be insufficient.
I assure the House that the Sentencing Guidelines Council, which is charged with publishing definitive sentencing guidelines for all criminal offences in England and Wales, has asked the Sentencing Advisory Panel for advice on sentencing for the new bad driving offences that would be created by this Bill. It will also review the existing guidelines for the offences of causing death by dangerous driving and causing death by careless driving when under the influence of drink or drugs. This will ensure that courts are aware of how these offences work together and what factors to consider in relation to sentencing. It will also ensure that sentencing for this new offence is consistent and fair. The factors to be taken into consideration would be subject to consultation, to which noble Lords will have the opportunity to contribute. I encourage the House to do so. I believe that this is the most appropriate way forward.
I noted the letter of the noble and learned Lord, Lord Lyell, in today’s Times. I am forced to recognise that throughout these long debates I have fallen short of persuading him of the Government’s case. That is not for want of trying; we have expressed our opinions clearly on several occasions. I pay great tribute to the way in which the noble and learned Lord presented his case. He and the Government fundamentally disagree on this matter. Nevertheless, the Government have gone as far as they can to implement a manifesto commitment and to see through that commitment by votes in the other place—votes which fully considered the careful scrutiny which this House gave to the issues, including not just scrutiny on the detail but the principled case which the noble and learned Lord, Lord Lyell, made supported by his Front Bench. Therefore, I hope that noble Lords will recognise that the Government have reached this position after the fullest possible consideration of the matter. The Government have a majority in another place. That majority has spoken. Therefore, I hope that the noble and learned Lord recognises that even if he again expresses his reservations about our position, it would not be appropriate for a further vote to be taken on the matter.
Moved, That the House do not insist on its disagreement to Commons Amendment No. 6, on which the Commons have insisted for their reason 6B.—(Lord Davies of Oldham.)
My Lords, I will not detain your Lordships for any longer than I strictly have to. Suffice to say, we know the arguments well. Sadly, we have been unable to reach any sort of agreement on the merits or suitability of this provision. It is of some concern given, as I said previously, that this is very much the most contentious part of the legislation, which we generally all support because we all support road safety.
As my noble and learned friend Lord Lyell of Markyate said so well in his letter today in the Times, to which the Minister referred, we run the risk of criminalising individuals for a momentary lapse of concentration. With your Lordships’ permission, I thank my noble friend for all the help and legal expertise that he has given me over the past months.
Of course, we have the utmost sympathy and respect for victims’ families, who have lost loved ones. We all know and understand the emotion that causes, and we had some debate on that in this House. That is not the issue. The issue in this House is that Parliament should not be in the business of passing bad legislation. It pains me to say that we are on the verge of doing so, and we genuinely believe that. Your Lordships’ House has rejected this legislation twice. The Minister said that it was not a very big majority the first time, but it certainly was quite a large majority the second time. Indeed, it is the overwhelming view of this House and of the wider legal profession that this legislation simply will not work.
When one has a collective legal expertise such as we are fortunate to have in this House, one tends to listen to and respect those views, yet the Government have chosen not to listen. We have cautioned against this clause time and again, yet the Government have chosen not to take any note. This is our right in this House. The Minister has given his arguments, and we still do not accept them. We will not be voting on this today, but we will watch this legislation as it moves on to the statute book and becomes operational. If we feel that it has unfortunate consequences, we shall look for some future opportunity to reverse it and create more suitable legislation.
My Lords, I thank the Minister for what he has said. The Bill has been closely examined by this House, and the other place has had the opportunity to reconsider it. It has chosen not to do so. I take fairly seriously the Minister’s remark that it is for the courts to decide what penalty to impose. We shall see in due course how that works out. In the mean time, I do not intend to pursue the matter any further.
My Lords, clearly, my noble friend Lord Hanningfield is right that we should not pursue this any further and we should agree to the Motion. If the Opposition make a mistake in voting or in procedure, we have to live with it; the Minister isright on that point. However, I am convinced that Clause 20 is misconceived.
Although the amendment does not concern the automatic disqualification of drivers convicted of this offence, we have touched on it. In my view, automatic disqualification for what might have been the most minor of errors, admittedly with very tragic consequences, is the fatal flaw. In those circumstances, a minor driving flaw will not result in a custodial sentence, but the six-month ban will mean that motorists prosecuted for this offence will fight like hell in the Crown Court. The way in which this provision was introduced is not the Minister’s fault, but equally I am quite sure that some Minister will have to come to this House and propose amendments to the provisions in Clause 20. You only have to think of the unintended consequences of a conviction in the Crown Court because a jury is reluctant to convict for a minor error of driving. The consequences will be loss of licence, which will inevitably lead to loss of employment for those who have to drive for their living. So I am disappointed in the way that this whole business was introduced at a late stage in the Bill. I am sorry that we have been unable to debate this matter as thoroughly as your Lordships would have liked, but, at the end of the day, we shall have to leave this one.
My Lords, we are in a sad position, as this is bad legislation that will do injustice. None the less, I thank the Minister because, although we have disagreed strongly on all these matters, he has been unfailingly courteous and his ministerial colleagues have given me a good deal of time to try to explain the position and to tease out what I believe are great flaws in this legislation.
I am sorry, but I cannot resile from the fact thatthis legislation has been rushed. A mistake was made on 10 January. I was certainly part of the mistake, which was made by everyone, including, I say with great respect, the House authorities, and I do not believe that the Government realised at that time that there had been a mistake. Let me just remind noble Lords what happened. After we voted on Amendment No. 4, which kicked out prison sentences from the magistrates’ courts, the words from the chair were, “Amendments 5 to 8 not moved? Not moved”—and the crucial Amendment No. 5 disappeared into the ether.
That is the difficulty of being rushed. Because the matter was not brought before your Lordships' House until Report stage, instead of there being three opportunities to consider and vote on it—in Committee, on Report and, if necessary, at Third Reading—there was an opportunity to vote on it only at Third Reading. If we had known about the matter at the beginning, at Second Reading, I am sure that it would have been corrected either in Committee or on Report. Therefore, I warn the House and, with great respect, the Government against bringing forward very important measures at this stage.
The Minister said that the matter had been carefully considered beforehand. I beg to disagree. There was a short consultation period, which lasted two and a half months. The Minister may tell me that that is normal, but it seemed to me to be very short. I find it very surprising that, despite being warned against the serious potential injustice of this matter by the Lord Chief Justice, the Council of Circuit Judges and the Justices’ Clerks’ Society, who all know exactly what they are talking about in this area, the Government should charge ahead.
Why is this going to cause injustice? The Minister said that it would somehow all be put right by the Sentencing Guidelines Council. I shall look with the greatest interest to see what the poor Sentencing Guidelines Council will say about this measure, which has filleted out the very well understood distinction between dangerous driving and careless driving. Dangerous driving falls far below the standards to be expected from a reasonable and prudent driver and applies to circumstances where the driver knew or should have known that what he was doing was dangerous and was likely to hurt or kill someone. Careless driving is simply that other area of driving that, sadly, is all too common, but which simply falls below the ordinary standard.
Dangerous driving is massively more likely to cause death than careless driving is. Although statistics in this area are not extensive, they clearly show that dangerous driving is at least 20 times more likely to cause a death than careless driving is, yet 31,000 people are currently convicted of careless driving. It will be tragic for the victims and for the driver, but some of those incidents will lead to death. How is a court now to tease out in which of those cases of careless driving that cause death it would be just to impose a prison sentence?
Nowhere in all our law, in any field of life, do we impose prison sentences for ordinary negligence. I was astonished to see Alistair Darling seeming to propound the principle that sounded like an eye for an eye, a tooth for a tooth. He said that a life is a life however it comes to be lost—I may not be quoting exactly, but that was the nub of it. Will that principle be carried to teachers who take children on outings or to doctors and nurses who have to administer drugs? Will it apply to industry and commerce? If people are to be sent to prison for ordinary negligence, we are in an uncertain and potentially unjust world.
I come back to careless driving—I will not go on for too long. When it is between dangerous and careless driving, whether it be in the Crown Court or the magistrates’ court, the prosecution must set out clearly what those dangerous ingredients are that justify a conviction for dangerous driving. In the right case, a sentence—possibly a severe sentence—would be justified for causing death or, indeed, for the dangerous driving itself. What are the ingredients of careless driving that will justify the prison sentence? Prosecutors in our world do not ask for sentences. It is contrary to our tradition.
My Lords, I will wind up in a minute, but the Minister repeated these arguments and said that the matter had been carefully considered. It is probably one of the most important matters that has come before the House in this Session. The Government have made one of the most radical changes to our criminal law since I have been in this House. While I defer to the noble Countess, who has no doubt been here a great deal longer than I have, let me wind up quickly.
This is a very difficult matter for the Sentencing Guidelines Council, and it is very difficult for the defendant to know what case he has to meet and where the issue that might lead to his or her imprisonment will arise. I am sorry to say that this matter has not been properly considered. It is in a mess, which I very much regret. I very much hope that in due course a future Government will think better of it and put the situation right by repealing this measure.
My Lords, I shall be very brief. Yesterday I received a DVD from a police officer serving in Leicestershire Constabulary showing three very short interviews for the local television about careless driving and various other matters. The final one, without prompting or priming beforehand, was an interview with two people who were involved to a large extent in car crime. They both said that, if they had known that a prison sentence was likely for any of the things that they had done, they would never have done them. That was the view from the sharp end.
My Lords, I am grateful to everyone who has contributed to this short debate. It was inevitable that I would be obliged to reiterate the fundamental argument of principle that we have had on previous occasions. My prediction of the response of the noble and learned Lord, Lord Lyell, proved all too accurate, and I congratulate him again on saying it with such clarity.
I dispute one point with the noble and learned Lord. He suggested that the Government had rather rushed this legislation. First, our intent to consider it preceded the previous general election. Our consultation period lasted for more than three months, which is the Cabinet Office guidance on the process of consultation. I was able to cite those who supported the legislation, and the noble and learned Lord expressed the view of those who had reservations about it.
If I can coin the phrase again, we are where we are. There is no doubt that our positions of principle are irreconcilable. That is not because the Government have not listened carefully or had the advantage of representations from this House at successive stages of the Bill. Those representations have been all too clearly expressed, and the other place is well aware of the arguments of principle against the Government’s proposals. The Government’s proposals, however, also rest on principle: a commitment made in the last manifesto. The other place, having considered the representations and amendments from this House, insists on its position. I give way to the noble and learned Lord, but briefly.
My Lords, that is so. We have introduced an increased sentence, which is what we were committed to.
The position is quite clear. We have had the benefit of extensive debates from which we have all learnt a lot. The Government listened carefully. The other place listened to and saw our debates, took them into account and has reached its position of insisting on the position that it adopted.
On Question, Motion agreed to.
Rural Payments Agency
My Lords, with permission I shall repeat a Statement made in the other place by the Secretary of State for Environment, Food and Rural Affairs. The Statement is as follows:
“I would like to make a Statement on the single payment scheme administered by the Rural Payments Agency.
“In my Written Statements on 9 May and 5 July, and my oral Statement on 22 June, I said that the well rehearsed difficulties in the administration of the 2005 single payment scheme would create challenges for delivery of the 2006 scheme, and I promised to keep the House informed of developments. On this occasion, as on every other, I reiterate the apologies that I have offered to farmers on behalf of my department, and my commitment to remedy the problems. Today I can report progress under the 2005 scheme, and plans for the 2006 scheme. But the interim chief executive of the Rural Payments Agency and I are clear that much more needs to be done to learn the right lessons from the National Audit Office’s recent report and to build on helpful guidance that I am sure we will see in the forthcoming reports from the EFRA Select Committee, the Public Accounts Committee, the Office of Government Commerce and the Hunter review.
“As I mentioned in my Written Statement on5 July, the total amount to be paid by the Rural Payments Agency for the 2005 scheme will not be known for certain until the last claim is completely validated and necessary corrections are made. However, the latest estimate, at 3 November, puts the figureat £1.528 billion, of which over £1.516 billion—99.2 per cent—has now been paid. Moreover, 110,244 claimants have received a full payment and a further 4,756 have received a partial payment and are awaiting their top-up. This combined total of 115,000 represents 98.5 per cent of the revised estimated total claimant population—116,661—entitled to a payment.
“All but 50 of the claimants still awaiting any payment are currently calculated to have a claim value of less than €1,000. The 50 cases are all difficult cases, involving issues such as probate or business liquidation, which would be challenging in any year. Dedicated teams are in place to deal with these cases and the other outstanding payments as soon as possible. Similarly, on hill farm allowance payments, some 95 per cent of claimants have received a full or partial payment, and a dedicated team is exploring all avenues to make the outstanding payments as soon as possible.
“During October, the Rural Payments Agency moved the bulk of its processing staff to detailed validation of the 2006 claims. Initial validation of those claims has been undertaken over the summer and has gone relatively smoothly. The same can be said of the 2006 round of eligibility inspections. However, the difficulties involved in completing 2005 claim processing have inevitably impacted on the 2006 payment timetable.
“Everyone wants claims to be paid in full as soon as possible. I understand that, and the new management of the RPA are dedicated to building stability and predictability into the system so that full claims are delivered in an efficient and timely way. However, the interim chief executive has reported to me that he can not guarantee that the agency can deliver full payments within the payment window for the 2006 scheme. Neither he nor I believe that it is acceptable to expect farmers to wait until next June or beyond for payments. I have therefore agreed with the RPA a challenging formal performance target of paying 96.14 per cent of valid 2006 claims by 30 June 2007, and it is determined to do all in its powers to deliver on that. In addition, I have also decided to pursue a partial payment plan.
“Our aims can be simply stated. First, we want to maximise payments to farmers that arrive on a timely and predictable basis. That means making full payments where possible and partial payments where necessary. Secondly, we want to minimise the risk of late payment penalties and disallowance. Thirdly, we want our decisions this year to help the RPA to establish a new and sound footing for the delivery of the single payment scheme in future.
“I have therefore agreed with the RPA that where full payments are not possible in the early part of next year, partial payments should start in mid-February for eligible claims above €1,000. The RPA estimates that the process will take around three weeks. Payments will be made for not less than 50 per cent of claim value. This reflects the level that EU regulations permit without diverting significant resource away from, and therefore delaying, work on validating claims for full payments.
“Needless to say, I will be keeping the situation under close review, but the interim chief executive of the RPA has set out for me and Lord Rooker the basis on which he is confident that partial payments can be made and we believe, in part on the basis of the partial payment experience in May this year, that the money will be delivered.
“The single payment scheme and its administration have caused distress to farmers. The only way to make good on this year’s problems is to improve the management of the system so that confidence is rebuilt. I have set out clearly that this will not happen overnight, but I believe that the staged approach that I have set out is the only one that is prudent and responsible, and I commend it to the House”.
My Lords, that concludes the Statement.
My Lords, I thank the Minister for repeating the Statement made in another place. We are grateful to him for the update. I remind the House of my family’s farming interest.
I am disappointed by the Statement because the problems that occurred with the 2005 scheme, which resulted in chaotic late payments, have not been addressed and the Statement does not guarantee that the agency will deliver the 2006 scheme within the payment window. I am sure that that disappoints the Minister as well. The 2005 scheme meant a 50 per cent increase in calls to the rural crisis network,farm borrowing rising by £379 million in one year, RPA administration costs rising by £46.5 million—two year’s worth of the hill farm allowance—and £131 million being set aside for EU penalties. It was not a happy situation.
Of 2005 single payments, 110,244 were paid in full by 3 November, but that still leaves 4,756 partial payments awaiting top-up. Why has it not been possible for them to be paid? When will the problem be resolved? The Minister said that 50 claimants were awaiting any payment at all. He said that this was due to probate or business liquidation. How many fall into either category? When does he anticipate that these issues will be resolved?
The Statement refers to dedicated teams. When they are established, will an individual be allocated to a farmer or is the RPA working to an overall dedicated team approach? What is the position regarding permanent or temporary staff? The Statement goes on to say that the validation of the 2006 payment scheme has gone relatively smoothly. Perhaps the Minister will share with the House what aspects have not gone smoothly and what has been done to rectify this. The Statement refers to the National Audit Office’s report and reflects the Minister’s intention to build helpful guidance. I have looked again at recommendations 23 to 32. Which of these has been actioned, or has no progress been made to date?
Why was Germany, which adopted a similar dynamic system to ours, able to pay its farmers on time and what within our system made that impossible? At the time we had discussions about mapping, IT systems and human error. Were those difficulties also experienced by Germany or do we have lessons to learn from it? Will the Minister confirm that the mapping issues which created great difficulties in last year’s scheme have all been rectified and that the problem will not occur again? Are the IT systems now compatible or is there an ongoing problem?
According to the Statement, those to whom the 2006 payment cannot be paid in full will receive a minimum of 50 per cent. To some farmers that will be a disappointment, because this year when they eventually received it, they were paid 80 per cent as a partial payment.
Some 95 per cent of hill farm payments were paid. That leaves some 700 of the most pressed farmers without any money to which they are entitled. Further to our debate on the delayed rural development programme yesterday, can the Minister tell us more, or will he acknowledge that those hill farmers may be doubly hit by the cancellation of that project?
How confident is the Minister that proper controls have been put in place to ensure that the 2006 system will run smoothly? Has the relationship between the Minister and the RPA chief executive been resolved? In the past there was a certain lack of understanding and accountability. Has somebody been allocated to take overall responsibility and control? In the past, answers to questions on progress have not been forthcoming. Will the Minister ensure that such questions are answered? The 2005 system was riddled with incompetence. We cannot accept that with regard to the 2006 payments.
The sum of £131 million was put aside in case the EU called back on that money because the system ran late. Will that be an additional budget deficit to the £200 million that is already forecast for Defra?
Finally, is the Minister satisfied that the RPA’s new sound footing for the future delivery of the single farm payment is in place? Will he share with us what exactly this new sound footing is? I am grateful to the Minister and look forward to his response.
My Lords, I thank the Minister for repeating the Statement and for allowing us sight of it beforehand. The NAO report on the single payment scheme states in part 4:
“The single payment scheme has cost more to implement than expected and many of the financial savings forecast are unlikely to materialise”.
That is a damning criticism of what has happened. I do not blame the Minister personally for that. A lotof hard work was done by staff to try to rescue this failing scheme, but I note in an Answer in theother place today to our Treasury spokesman that £2.9 million was paid in bonuses to Defra staff last year. I trust that they are not in the employ of the RPA, otherwise they must think that they have won the lottery.
I note, as the noble Baroness said, that according to the Statement, 110,244 farmers have received the full payment but, like her, I note that 4,756, had received only a partial payment. I do not expect the Minister to be able to answer this question now, but I should like him to investigate. There are several hundred farmers on the Welsh border whose main holding is in Wales but who have land in England. Many of them have received no payment at all and yet on the land they occupy in Wales, they were paid in December 2005. They are still waiting for the payment in England in November 2006, but have had nothing. There is a big problem there which I ask the Minister to expedite.
There is a reference to hill farm allowance payments, where the Statement reads:
“Similarly, on hill farm allowance payments, some 95 per cent of claimants have received a full or partial payment”.
I regard that statement as pure spin, because we do not know what is the breakdown between those who have had a full payment and those who have had only a partial payment. What percentage of those farmers remain to receive top-up payments? During the past fortnight, it was mentioned that some applications had been rejected. Have they been resubmitted? What is the situation there on those hill farms? There is a lot of hardship among livestock farmers as a resultof that.
The Minister admitted, via his chief executive, that the RPA would be unstable for a considerable time. At least there has now been a reality check about the situation. Given the shambles that has occurred, the basic policy elicited in the Statement—that full payment will be made where possible in future and partial payments where necessary—is a move forward, but it is the best of a very bad job. The situation is ironic when many of us were advocating partial payment, way back—I am talking about more than 12 months ago. In the early part of next year, I note that partial payments will start in mid-February, which is still late when you think that payments in Scotland and Wales will have been made in December this year, next month. Even then, less than 50 per cent of the claim will be paid during that window of opportunity.
The statement that the Government are confident that partial payments can be made does not inspire confidence in me or, I am sure, many farmers. A staged approach, although very necessary in the situation, is really a back marker. What part has Accenture, the IT consultant, played in all that? The same company is involved in the IT shambles in the NHS contract, where a £12.4 billion cost has been incurred but there is not as yet any delivery of that system. In this case, the contract costs have nearly doubled to £50.3 million, as the NAO report says. Indeed, the total overspend of the implementation is £46.5 million. This is serious money, which farmers would have really appreciated if it had ended up in their hard work. Farming, as the Minister knows, is a relentless occupation. Every penny is hard-earned. One can judge that a different scheme in England, possibly an in-house payment scheme, would have been a far better solution.
The NAO report concludes in part 5:
“Better management of the risks could have reduced the disruption experienced”.
Surely the problems in this scheme should have been apparent in 2004-05. There are many lessons for the future, and it is clear that a greater hands-on approach by Ministers and senior civil servants would have ferreted out these problems at the time and made it clear that a contingency plan needed to be formed, as it became more and more apparent that the scheme would fail in the future. It was obvious that this was going to happen, but unfortunately Ministers were not told the truth. The story has been one of negligence.
My Lords, I shall do my best in the time available to answer as many of the questions that have been asked as possible. I will have to write to any noble Lords whose questions I have not answered, because I am limited to answering questions from the Front Benches.
It is no good asking me for guarantees. Both the Secretary of State and I have made the Statement, so that is it. It is absolutely clear, and we have confidence in it, based on the information that we have received from the Rural Payments Agency. We are not going beyond it; it is as simple as that. We are trying to learn the lessons from what has happened this year, and we need to give people confidence, but extra promises and dates—forget it. We will try to deliver, and the RPA staff will work their socks off to deliver what we have promised today.
The noble Baroness asked me about 20 questions, some of which I will not be able to answer. The £130 million is not cash, and it will not be called on, as the Secretary of State said in the other place. It does not do to talk this situation up. We have paid within 1 per cent of the legal requirement by 30 June. In other words, we have paid within 1 per cent of the 96.14 per cent. We do not know what will happen about disallowances and penalties from the European Union; it may be a couple of years before we do. That is nothing to do with the budget deficit of the £200 million. As I said, it is not a cash sum.
We will give partial top-ups as soon as possible. I cannot say how many of the 50 payments involve probate or business partnership disputes, because other factors are involved. Those are the two examples that we have given, but there are more, and they would have happened in the normal course of events under the old payment schemes. Only 50 are above €1,000; all the rest are less than €1,000.
The dedicated teams are working on the payments that we have not made, as well as on the hill farm allowances, for 2005. The system of working will be different for 2006. It will not be task-based as under the old system, in which a farmer’s form was dealt with by any one, or possibly by up to three or four, of the RPA offices around the country at any one time. Once all the farmers’ forms have been divided up, each form will be dealt with in one of the offices by a team of 12 or 25 people—I cannot remember the exact figures. They have been training for that process throughout the summer.
The validation process has gone relatively smoothly. The first stage, which is relatively easy, was all done in one office at Workington. I visited it when the validation was being done. That is the easy part. The second stage of validation is the one that takes the time. That is when the full payments are made, which is why we can say that we will make full payments where we can and partial payments where we cannot. So it is true that some farmers will get full payments, because they will have gone through the validation process by the time the buttons are pressed.
I will get further information on Germany, which had problems with its system. The RPA staff went to Germany to discuss whether there were any mutual problems, which I fully accept is a point that comes up constantly.
Bearing in mind that we have paid most of the claims for 2005, except for those with which we have had problems, we should not have too many mapping problems in 2006. Most field boundaries do not change. However, it is surprising how many change through the sale of fields or fields being split up. There will be those difficulties, but I will not rest on that. I do not say that the mapping issues will be on the same scale as last year—clearly they will not—because 40,000 extra customers to whom we had not paid food subsidies in the past and whose fields we did not know about were brought into the scheme. Those fields are called “pony paddocks”— perhaps it is not quite as crude as that, but we are talking about very small claims. These claims are in the system, so we should not have to go through that again. Some claimants got so little that they gave up, which is why the number of claimants for this year is lower than last year.
The IT system is evolving. The plans for this programme beggar belief. I will not go over the past, but I have to live with it. Updates and other aspects of the system have to be dealt with constantly. It is agreed that sugar has to be incorporated into the programme in order that the 17,000 sugar farmers will get their subsidy, which was done differently this year. There are some programme upgrades that still have to be done. It is not one system that is in place and on which we can just press the buttons in the following year and out will come the money. It is not like that. Starting in mid-February, we are confident that a minimum of 50 per cent of each claim will be made 10 weeks earlier than 80 per cent of partial payments were made last year. That has to be a massive boost to and improvement in cash flow for farmers in comparison with what happened this year. I realise that a few farmers received payments early this year, but the vast majority got partial payments in the middle of May. I cannot go beyond what I have already said on the hill farm allowance, but I will give a further report because we still need to do that.
As I said in the Statement, we are confident that there are good relations between ourselves and the new management of the RPA. Members of the other place have a representative capacity. I have promised that I will hold surgeries during the winter on a weekly basis, if necessary. I met three dozen representatives recently. It is important for them to know that they can come to see the Minister every week. I will have someone from the RPA with me so that we can iron out problems as they arise. There has to be more contact between the Minister and farmers’ representatives. I do not say that people in this House do not have contact, but I am doing the surgery for Members of the House of Commons, which was well received.
I am not playing around with the Statement, but as regards putting the RPA on a sound footing for following years, I do not want to work one year at a time. On the basis of what we do this year, I want the RPA to be thinking about 2007. At the moment, I am still looking at the form for 2007, which we will sign off shortly. I want the RPA to know that it will not work piecemeal each year with one scheme to another. I am not saying that partial payments will be at the same times next year, but I want the RPA to be set up so that we can have as near the same system as possible each year until we can make substantial changes.
I have come to the end of the time allocated for the Opposition Front Benches. In respect of Wales, we are checking the problems of the border. I was asked about the bonuses to staff. The RPA deals with the single farm payment scheme. It also pays out on 41 other schemes relating to food and agriculture. It pays subsidies—the biggest goes to Tate and Lyle, which gets some £120 million. The idea that farmers get most of the money is not true. I repeat—the RPA administers 41 schemes. Because there has been a problem with a high-profile scheme, you cannot say that the targets people were working to in the other schemes should deny them their performance bonuses. I do not say that it should be excluded, but the RPA wants to run a better system for the single farm payment and to maintain the quality of the other schemes that it operates. The fact that I do not get any questions about them tells me that it is doing a good job.
My Lords, the Minister has made a brave defence of the present position, but would it be right to interpret the figures and percentages he has given today as suggesting that, even now, as regards the payments that people should have received by June for 2004-05, some 4,500 farmers have received only 50 per cent and 1,500 nothing? Further, is it not the case that as regards the “challenging formal performance target” for next year, referred to in the Statement with the implication that it may be too challenging to meet, it is planned that over 4,000 farmers will get only 50 per cent by June of the coming year? Lastly, because of cost overruns in Defra we have seen extremely worrying accounts about cuts in other Defra expenditure programmes quite unconnected with the RPA. Is it correct that cuts are being made in the Environment Agency, in Natural England and in laboratories within the State Veterinary Service?
My Lords, on the last one, no. No cuts have been made in the State Veterinary Service. The other morning, “Farming Today” lined up someone effectively to call me a liar. I have made statements in this House, and they have been made in the other place, to the effect that there have been no cuts in the State Veterinary Service; in fact, it has had £16 million more this year than it had last year, and £3 million was a resource figure swapped over for capital. The total budget stayed the same. I have to knock this one: there have been no cuts whatever. People outside are worried that we are playing fast and loose with food safety and animal welfare. It is simply not true. The State Veterinary Service has not been affected.
On the other issues the noble Lord asked about, the target we have set is the European Union one: to pay 96.14 per cent of the money by 30 June next year. As we said in the Statement, the chief executive has made it clear that he cannot make the full payments by that date and hence we have had to look at partial payments. We paid out to within 1 per cent of that figure by June of this year; some 95 point something per cent of the money was paid out by June. The 4,756 people who have received a partial payment for 2005 should have received 80 per cent of the money because this year’s partial payments were set at that percentage. The top-up is therefore 20 per cent. Obviously it is true that to work to that target next year suggests by implication that there would still be some money not paid out. However, the European Union target is to use the window between 1 December and 30 June to pay out 96.14 per cent of the money. Beyond that, we could be subject to penalties. For this year we have said that where we have not paid out, we will make interest payments from 30 June, and indeed we are doing that.
My Lords, first, can the Minister tell us why, according to a letter in yesterday’s Daily Telegraph, the interest paid by the agency on overdue payments is apparently completely withheld if the sum due is under £50? Secondly—here I declarean interest—why is the rate of interest payable only 6.75 per cent when the average rate of interest paid by farmers on their overdrafts is at least one full percentage point above that and possibly more?
My Lords, on the actual payment of interest, the Statement made in the summer pointed out that it would never be enough but that we had taken advice on a formula. It was the London bank rate plus 1 per cent, and that was the rate we paid. However, the central point is why no interest is paid if the payment would be less than £50. One of the lessons we have tried to learn in this scheme, and something which has caused a problem, is that some 30,000 to 40,000 of the 120,000 claims accounted for 2 per cent of the money. We paid someone a penny in interest. The computer system is set up for 120,000 claimants and some of those claims are worth tens of thousands of pounds, but elsewhere we are dealing with tiny payments. We have a major problem here because there is no de minimis on the payment. We are going to bring in a de minimis when we are able to do so. It certainly will not be this year and I do not think it will happen in 2007, but we are not going to compound the sin of not having a de minimis payment on the single farm payment by not having one on interest payments. We could have ended up sending out cheques for a few pennies, so that the letter would be worth a couple of pounds less than the stamp. We decided to set a de minimis payment of nothing under £50. That was done in the interests of good administration, otherwise we would have had loads more staff on the job, it would have cost us a fortune to work out and send off the payments, and we would have then been criticised for sending out chicken feed. This is one of the issues that has caused problems surrounding single farm payments in the first place—no de minimis payments.
My Lords, in response to the noble Lord, Lord Livsey, the Minister mentioned all the hard work that is being done on the computer systems. Has the board member who was in charge of IT received a bonus? Did he in any way communicate his concerns about the mess that the computer system was in and the fact that the mapping system and the payments system did not interface with each other? Were Ministers warned of these problems?
My Lords, I am in no position to answer the noble Countess. I have been at Defra since May and I have concentrated on the present and the future. I indicated in the Statement that there are four other groups looking at the past. We have released information under the Freedom of Information legislation, so I have had the benefit of seeing some of the RPA information sent to Ministers from last October to March of this year. I have not gone back. I have no doubt the EFRA Select Committee and the others will be looking at what the board member responsible for IT was doing in that period, but I do not have that information.
My Lords, the House will recall my interest as a recipient under the scheme. Perhaps I may ask the Minister a question which perplexes a huge number of farmers. They note that the chief executive officer of the RPA was fired; they read in the press within the past couple of weeks that the noble Lord, Lord Bach, has said that he believes he was fired, too, because of the appalling management of this scheme. Why did not the buck stop at the top?
My Lords, I declare my continuing interest in this matter. The Minister went a little further than the text of the Statement, if I heard him correctly, because I think he said that in February of next year some farmers will receive 100 per cent of their claim. Can he confirm that no farmers will be penalised to the extent of receiving only half where they are not at fault in the way they have handled their paperwork?
My Lords, the noble Lord is absolutely right. I refer him back to the exact sentence in the Statement:
“I have therefore agreed with the RPA that where full payments are not possible in the early part of next year, partial payments should start in mid-February for eligible claims above 1,000 euro”.
There is an implication in that sentence that some farmers, as I said, will get a full payment because they will have gone through the second stage of validation by that time. What we cannot do is get enough through in order to promise full payments.
It is not their fault that the second stage of validation will not be ready for everyone—otherwise, quite clearly, the chief executive would not have advised us that he could not complete full payments by the payment window—and no one is blaming the farmers for this. The forms are horrendous but they will get easier as the years go by. Some farmers will receive a full payment, I think that is the implication of the Statement, because they will have gone through the second stage of validation, but the majority will not have and, because of this, we will introduce a partial payment system. The figure is set at 50 per cent because that protects us under the European Union rules for doing this without validating the claim. We have no authority to pay more than 50 per cent if we have not validated the claim. This year, the first year, was slightly different and there was a dispensation of up to 80 per cent for non-validated claims, but that is not available for the second year.
My Lords, I declare a serious interest in that I am married to a farmer. However, I have talked to many other farmers so I shall not be putting only my wife’s points. First, when will the interest on the late payments be paid? Secondly, when will the Government get around to paying out the €150 rebate on the first €5,000 that is supposed to have been repaid? Thirdly, I thought the whole point of this system is that it goes back to reality and therefore we are trying to get accurate maps from which to work. It seems unbelievable that when there is a tiny transcription error on the cheques and you write in say, “Terribly sorry but, as you can see, two of those figures are clearly the wrong way round”, they write back and say, “We spotted it first and therefore we are going to maintain this error”. It seems quite dotty that they do not just get it right and agree what the real figure is. It will lead to further problems because the errors will have to be corrected at some stage.
Presumably, next year it will all come down to when these checks are taking place on the ground. I heard that inspectors go round with GPS systems checking the areas. Civilian GPS systems are accurate to around 2 metres to 3 metres only. The countryside boundaries drawn by the Ordnance Survey maps are accurate to only 1 metre, so there is a built-in error. You are expecting mapping to an accuracy of 0.1 of a hectare which is only 1 metre out in a 100-metre long boundary, and many fields are much longer than that. You cannot map to such accuracy so there will be horrendous rows in the future. I suggest that everyone gets a bit more sensible about it.
I know a farmer with organophosphate poisoning who, being very ill, goes in and out of hospital but tries to maintain the paperwork. There is a serious problem in trying to get the right boxes ticked. The unreasonable attitude of the RPA towards small slippages here and there—given that the illness is caused originally by farming—is quite unfair and it ought to take more interest.
I hope that the data transfer system from the RPA to the RDS system in Defra is working and is no longer losing parcels of land when it transfers the data so that you cannot get your entry-level schemes correct. When will the entry-level payments start?
When I find that there are errors of £3 and £10,000, I have no confidence in calculating the exchange rate. There should be no error. If that error is consistent across the whole £1.5 billion figure, someone is filching £450,000.
My Lords, I am not in a position to answer the noble Earl on his last couple of questions, but I will get some advice on them.
I fully accept that some people have difficulty filling in the forms. The window for filling in the forms for 2006 closed some time ago—in fact, the EU gave us an extra month for that in the summer because we had sent the forms out late. We want to make sure that we do not send the 2007 forms out late; we have been discussing that with the stakeholders in the farming industry so that we can do that a lot earlier. However, I also know a lot of farmers—not all of them—who get specialists to fill in their forms for them. You are required to do that but I understand that if people are ill, that can cause difficulties. There is no easy answer.
On the accuracy of mapping fields, I said in the Statement that the initial validation had gone relatively smoothly. I then said:
“The same can be said of the 2006 round of eligibility inspections”.
So I have no reason to believe there is any difficulty with the inspections.
On the noble Earl’s first question, interest is indeed being paid. It can only be paid once the full payment is known about, because we are paying interest on the delayed payment from 30 June. It is only on the final calculation that we can pay the interest. Farmers have received interest payments where we have made the full payment since 30 June. We will not pay the interest until we know what is due and we cannot know what is due until we have made the final payment. There is a delay in a few cases, as the Statement makes clear.
My Lords, may I press the Minister again on de minimis interest payments? I agree with him totally that it is not cost-effective to send out cheques for 2p or 3p or even £2 or £3. However, he will be well aware that, when the boot is on the other foot, the Inland Revenue sends out tax demands for 5p or 10p, having abandoned their previous £30de minimis figure. Does he agree that a £50 de minimis is quite unusually high? Would it not be much fairer to reduce it to something like £20?
Charities Bill [HL]
My Lords, today is Tuesday 7 November in the year of Our Lord 2006. At the first Second Reading of this Bill, as long ago as 20 January 2005—nearly two years ago—the noble Baroness, Lady Scotland, said:
“One of the most important contributions that the Government can make to facilitating and promoting activities of the charitable sector is to create a modern legislative framework for it . . . By reforming the legal and regulatory framework for charities, the Government will enable people to use charities as a means to make a difference. The Bill will help existing charities to thrive, grow and realise their full potential”.—[Official Report, 20/1/05; col. 883.]
Sadly, the Bill could not complete its passage before the general election was called.
At the Bill’s second Second Reading on 7 June 2005—a mere 18 months ago—the noble Baroness said:
“The Government believe that a thriving charity sector is a cornerstone of a healthy society”.—[Official Report, 7/6/05;col. 783.]
Given those remarks and the fine words that the Government use about the voluntary sector, the subsequent progress of the Bill—or lack of it—is very surprising. After that Second Reading in June 2005, there were a couple of days in Committee and on Report, in July and October respectively, with Third Reading on 8 November last year. Since that date—one year less one day—we have heard nothing. The Bill has disappeared into some legislative black hole. It has only now emerged, with two days to go before the end of the Session if we are to avoid the extraordinary spectacle of the Bill failing and falling for a second time. The Government owe the House and the charitable and voluntary sector an explanation of why their behaviour on the passage of the Bill has been so dilatory.
My Lords, I return to the Bill, having been here before, as the noble Lord, Lord Hodgson, mentioned. I thought that there was about to be a deal prior to the general election, but it did not come to pass. I am disappointed that it has taken all this time, but let us rejoice that the Bill is before us and we can see it home today.
My noble friend Lord Phillips of Sudbury is sojourning in Sudbury and is not presenting himself here further. I think that that is a sad affair, but that is his decision. That means that I return to the Bill. I was with it the first time round but not the second. I suppose, having returned to it again, that I ought to declare my interests. I am a trustee of the Joseph Rowntree Charitable Trust and the JRSST Charitable Trust, and am vice-president of the Community Foundation for Calderdale. I welcome the Bill’s return today.
My Lords, this is a bit of general knockabout, so I will treat it with the respect it deserves. The noble Lord, Lord Hodgson, could probably tell your Lordships better than I why the Bill was delayed at all first time round. We thought it was uncontroversial legislation. We had given it a thorough bout of House of Lords scrutiny and we thought that our colleagues at the other end, just prior to the 2005 general election, would happily see it through. Then, when the opportunity was presented to have a definitive piece of charity law on the statute book, the Conservatives in another place, for reasons best known to themselves—perhaps they saw some controversy in it that we at this end did not see—decided to knock it on the head and kill it off. That was a great shame because we have, as a consequence, spent a lot longer getting to this happy point of putting this legislation to bed and seeing it happily on its way.
The delay is regrettable in the sense that the parliamentary process has taken rather longer than it should have, with timetabling, and so on, but it has meant that the Bill has been further scrutinised. It is probably one of the most scrutinised non-controversial Bills of all time. That is no bad thing, because it has enabled experts in the field such as the noble Lord, Lord Phillips of Sudbury, to help us sharpen it up. It has been sharpened up also by notable contributions from the Benches opposite, not least from the noble Lords, Lord Hodgson of Astley Abbotts, Lord Sainsbury of Preston Candover, Lord Swinfen, Lord Shutt, and others. The Bill is in almost perfect form. We have a small hurdle to clear this evening, which I am sure will not detain your Lordships' House too long, except for, I am sure, very well informed questions.
On Question, Motion agreed to.
1: Clause 2, page 2, line 22, at end insert “, or of the efficiency of the police, fire and rescue services or ambulance services”
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 1. I shall spend a little time on the amendments, because the group includes an amendment which the noble Lord, Lord Hodgson of Astley Abbotts, intends to move. Within this small group, Amendments Nos. 1 and 3 go together and Amendment No. 2 stands on its own.
Noble Lords will recall that when this Bill was in your Lordships' House last year, the noble and gallant Lord, Lord Craig of Radley, put forward a powerful case for adding as a specific category of charitable purposes,
“the promotion of the efficiency of the armed forces of the Crown”.
The Government accepted the force of the noble and gallant Lord’s argument and made an amendment to include his proposed category, which is Clause 2(2)(l).
A similarly powerful case was put more recently on behalf of the police to my honourable friend the Parliamentary Secretary in charge of the Bill by the Police Dependants’ Trust and by the Commissioner of the Metropolitan Police among others. They advocated the inclusion in the Bill’s list of charitable categories of,
“the promotion of the efficiency of the police”.
The Government agreed to its inclusion and the amendment was duly made. I should emphasise that this amendment does not change the law, since the promotion of the efficiency of the police can already be charitable, but it is of considerable importance to the police service that its status and its importance in national life be recognised alongside that of the Armed Forces. The chief executive of the Police Dependants’ Trust has written to my honourable friend to express his and his trustees’ delight with the amendment.
It would have been invidious to have included the police without also including the other two emergency services, so the provision at which the Government arrived, which is Amendment No. 1, covers the police, the fire and rescue services, and the ambulance service. Amendment No. 3 provides a definition of “fire and rescue services”.
Amendment No. 2 is on the different subject of sport. The Bill includes as a category of charitable purposes “the advancement of amateur sport”. When it left your Lordships’ House last year, “sport” was defined in that context by Clause 2(3)(d) as meaning,
“sport which involves physical skill and exertion”.
The Government have listened carefully to representations in another place and elsewhere that the definition of “sport” was unclear or was too narrow. The new definition, substituted by Amendment No. 2, improves on the Bill’s existing definition in two main respects. First, it makes it clear that what we are talking about, in the context of charitable sport, is sports or games—we have added “games” as an extension of the previous definition—which are capable of contributing to improvements in the health of participants. The Bill’s original definition, with its requirement for physical skill and exertion, was intended to denote sport which was capable of contributing to physical health, but I concede that it did so by implication rather than by stating it expressly. The new definition takes a direct approach by referring specifically to health.
Secondly, there seemed to be no justification for continuing to focus on the physical to the exclusion of the mental, when those two aspects of health appear to be of equal significance. The new definition therefore extends to sports or games on the mental as well as on the physical side. The noble Lord, Lord Hodgson, will recall his own amendment to exactly that end in Grand Committee in the Bill’s previous life.
The charitable purpose of the advancement of amateur sport should be seen alongside the Government’s community amateur sports club scheme, which provides a real alternative to charitable status. It gives tax advantages to community-based sports clubs run on an amateur basis, without requiring those clubs to show any public benefit in the charitable sense. The scheme exists to encourage grass-roots participation in a wide range of sports.
The Government have therefore taken full account of what has been said in Parliament and outside about the definition of charitable sport and have reacted as helpfully as they could. I shall listen with interest to the explanation of the noble Lord, Lord Hodgson, of his own amendment before I respond to it.
Moved, That the House do agree with the Commons in their Amendment No. 1.—(Lord Bassam of Brighton.)
My Lords, I think we had degrouped the amendments, but, in the spirit of harmony which should always guide our proceedings, I am quite happy to speak to Amendment No. 2 and my Amendment No. 2A alongside the other amendments in this group, because, as the Minister pointed out, they are both concerned with Clause 2, which defines the meaning of “charitable purpose”. We have no problem with Amendments Nos. 1 and 3, but we have tabled a further amendment to Commons Amendment No. 2.
Amendment No. 2, as drafted, sets a double test for a sport to be charitable. Not only must it involve physical or mental skill or exertion, but also it must promote health. Our amendment would remove the test of promoting health from the definition of charitable sports. As the Minister pointed out, the Government have already amended this clause considerably. Effective lobbying, of which we have all been recipients, has taken place from the Chess Federation and so on. Despite this, the amendment as proposed is flawed. The promotion of health requirement is very difficult to prove and can be contradictory. It sets a double threshold for charitable status which may well prove too high for some very worthy potential recipients. It is also superfluous. The public benefit test, as laid out in Clause 3, combined with proof of some sort of mental and physical exertion, should surely be more than adequate for the Government’s purposes.
Several comments were made in the debate in another place about the difficulty of proving a health benefit. We have so far heard or seen nothing to explain exactly what standard of proof will be needed. If we are not to proceed with our amendment, it would be helpful if the Minister could explain how the Charity Commission proposes to assess studies purporting to show health benefits. Numerous reports have appeared in the press which suggest that certain mental exercises, including sudoku and others, may help delay the onset of Alzheimer’s disease, yet the Alzheimer’s Society’s website makes no mention of this or other mental exercises. There is no conclusive proof either way. This is tricky territory that depends on medical advice, which will often be contradictory. Why do we have to land the Charity Commission with this difficulty?
The test is also inherently contradictory for many sports. One need only think about boxing and other martial arts to see that the practice of these sports can both promote and damage one’s health. The training needed to excel is no doubt good for you, but the injuries that occur routinely in the fights surely are not. It is possible to be extremely fit, and yet not to be healthy. The high levels of serious injuries and long-term health problems that afflict our most accomplished sportsmen and women would bear that out.
Our amendment would resolve all these contradictions and confusions and come to the Minister’s aid. The Government's view that sport is only a good thing because of the health benefits it brings is extraordinary. Religious organisations and those whose purpose is education may now have to prove public benefit, but they are not being asked to prove that they directly improve job opportunities or personal morality, or reduce crime. Why is sport considered less intrinsically beneficial? Why do the Government consider the many skills and traits that sport encourages, such as personal motivation, self-confidence and team work, irrelevant?
My Lords, I am quite clear that Amendments Nos. 1 and 3 are fine, although I have never understood why the word “efficiency” was used in the charitable purpose clause. However, it is certainly right that the police and fire and rescue services should be included.
Secondly, on sport, I read the Commons debate in Hansard and cannot really fathom the reasoning for the proposal—and then I ask myself whether it matters, and I do not know. The test is to ask the Minister whether he, as someone who is interested in sport and understands the word “sport” far more than I do, for example, can think of any example of an exclusion. I think that that would help us. What does he believe would be excluded because it is not thought of as promoting health? If we have an answer to that, it may give us a clue whether we should support the amendment proposed by the noble Lord, Lord Hodgson.
My Lords, is it not the case that the advancement of health is already in the list of purposes which fall within the meaning of charitable purpose, making it superfluous to insert it in the context of sport? The advancement of health is there in its own right in Clause 2(2)d, so it would seem tautological to include it twice.
My Lords, this is a useful discussion to have, and I am sure that at the end I shall in part agree—personally—with the remarks of the noble Lord, Lord Shutt. How much difference it will make is not for me to estimate, but it is an important question to raise. The matter revolves around the question why we should not make all sport charitable instead of requiring a link to health improvement. That is the kernel of the debate.
Charity is based on the requirement to show public benefit. To qualify as a charity, a sports club would have to be able to show that the facilities and opportunities that it provided for participants led to a public benefit. The most obvious form of benefit from public participation in sport—I would claim, without discounting the points made by the noble Lord, Lord Hodgson—is the health benefit. It is true that there are many sports in which you can suffer an injury, including even innocent sports such as cricket, which is my favourite sport, or running, which I do to try to sustain a level of fitness. So of course it is possible to have a disbenefit, although you are a pursuing a healthy lifestyle, but there is overall a benefit from public participation in sport. I think that we would all acknowledge that—which is why we have thought it right to define sport in terms of its potential to improve health.
However, a sports organisation that could show that its activities resulted in another form of public benefit could also qualify as a charity under one of the other charitable categories, rather than the amateur sport category. There are, for example, charities that use sports, such as riding or target shooting, to help those with a disability. There are others that use sports or games, such as chess—perhaps even sudoku, for all I know—to achieve an educational objective. However, a real alternative exists for clubs that cannot show an identifiable public benefit in a charitable sense, or that do not want to be charities: the community amateur sports club, or CASC, scheme. That scheme is for clubs which are open to the whole community; are organised on an amateur basis; and have as their main purpose providing facilities for, and promoting participation in, one or more eligible sports.
An eligible sport for the purpose of the CASC scheme means any sport which is on SportEngland’s list of recognised sports. The underlying purposeof the CASC scheme is to promote grassroots participation in sport. A club registered in the CASC scheme is entitled to many, if not quite all, of the tax reliefs that charities enjoy. So, one way or another, there is encouragement for virtually every type of amateur sports organisation. For those that can demonstrate a public benefit in the charitable sense, there are two potential routes. One is through the charitable heading of advancement of amateur sport for those that meet the new definition of sport; the second is through some other charitable heading, such as the advancement of education or the relief of those in need by reason of disability. For those that cannot demonstrate a public benefit in the charitable sense, or simply do not want charitable status, there is the CASC scheme.
The inclusion of an express health requirement is in our view the most transparent way in which to proceed. Let us consider the effect of leaving out any reference to health. A sports club applying to register with the commission under the advancement of amateur sport heading would have to do two things. First, it would have to show that the activities it promoted qualified as a sport under the definition of sport. With the noble Lord, Lord Hodgson’s amendment, a range of activities that made no contribution to health would be able to do that. On the physical side, the noble Lord would admit pie-throwing, for example, or perhaps even dangerous sports such as tobogganing down Ben Nevis on a piano, or being launched from a catapult as a human projectile. On the mental side he would admit, for example, arcade games, poker, pub quizzes and so on.
What is unsatisfactory about that is not that we disapprove of those activities per se. It is simply that some activities, of which those I have mentioned might be examples, have little or no chance of demonstrating the required public benefit or, consequently, of acquiring charitable status. In considering the public benefit aspect of a sports club applying to register as a charity for the advancement of sport, the Charity Commission would look for a health benefit, since that is the legal basis on which sports clubs can already be accepted as charitable. We do not think there is any point—indeed we think it would be positively misleading—to give sports and games which do not contribute to health, or which might even have the opposite effect, the impression that they might succeed in gaining charitable status. We would be giving a misleading impression if we went the route of the amendment proposed by the noble Lord, Lord Hodgson.
Sports that can demonstrate nothing by way of charitable public benefit have an alternative route: the community amateur sports club scheme, which admits sports not by reference to whether they are good for health but by reference to the extensive list of sports recognised by SportEngland.
The noble Lord, Lord Shutt, asked a specific question in his own inimitable style. I am afraid that I shall have to disappoint the noble Lord because, much as I should like to speculate on examples of sports that do not meet the health criteria—and it would be fun to do so; we could have quite an entertaining time—it is not really for Ministers to do that. That is really a job for the Charity Commission, which must decide on the definition established by Parliament. The commission will undertake public consultation when the new definition is in force, which will give every sport the opportunity to put its case that it qualifies as a sport within the new definition. So those pie-throwing sports folk, who come from somewhere else in this universe, could launch their argument if they so wished and thought that it was a valid thing to argue as a sport.
My Lords, I cannot think precisely of a whole load of sports that I want to set to one side. I know that the noble Lord is trying to be helpful.
For a sport to fall within the definition, it will ultimately have to pass the test of public benefit. If it can do that, then fair enough. Either way, we are in a beneficial position, because there are the alternative routes and those that are already provided for through the convenience of this Bill. So I have to reject the amendment proposed by the noble Lord, Lord Hodgson of Astley Abbotts, and encourage him not to cause us any further delay with the Bill and not to move his amendment this evening.
On Question, Motion agreed to.
2: Page 2, line 34, leave out “sport which involves physical skill and exertion; and” and insert “sports or games which promote health by involving physical or mental skill or exertion”
2A: Clause 2, line 22, leave out “promote health by involving” and insert “involve”
The noble Lord said: My Lords, I am grateful to the Minister for his reply. I am glad he mentioned cricket. I have had first-hand experience of his cricketing prowess, since I met him at the check-in queue at Heathrow airport at some ungodly hour when he was flying to play cricket in Lisbon with the parliamentary cricket team. That said, I thought his response was more a nudge down to third man than a flashing cover drive to the boundary.
I am grateful to the noble Lords, Lord Shutt and Lord Best. I think we have extracted the juice from this orange. I do not think there was a necessity for a two-tier test, given the points the noble Lord, Lord Best, made, but the evening is moving on, and we will not advance the arguments any further now.
[Amendment No. 2A not moved.]
On Question, Motion agreed to.
3: Page 2, line 37, at end insert “; and (f) in paragraph (l) “fire and rescue services” means services provided by fire and rescue authorities under Part 2 of the Fire and Rescue Services Act 2004(c. 21).”
4: Clause 8, page 9, line 40, leave out “Secretary of State” and insert “Minister”
My Lords, I am happy to. I do not wish to detain the House for too long. I thought this was a relatively uncontroversial groupof amendments. I shall speak to all the other amendments in the group.
I can be brief. The amendments give effect to the machinery of government changes that transfer parts of the Home Office to the newly created Office of the Third Sector in the Cabinet Office in May this year. Quite simply, the need for these amendments has arisen because the Charities Act 1993 and the Bill give certain statutory functions to the Secretary of State. Examples of the Secretary of State’s functions include the making of regulations and orders and the appointment of the Charity Commissioners. In the past those functions have been exercised by the Home Secretary, and in the future they will be exercised by Cabinet Office Ministers. Since none of the Ministers in the Cabinet Office is a Secretary of State, references in charity law to the Secretary of State have to be converted to refer to the Minister for the Cabinet Office.
I am happy to say more if noble Lords want me to, but I hope that explanation is sufficient.
My Lords, I hope the Minister will explain just one sentence. I have had several telephone calls following the publication of these amendments saying, “Does this mean the status of the Charity Commission and charity generally is being downgraded?”. Outside, in the country at large, the use of the word “Minister” appears to be less important than “Secretary of State”. I understand the reason behind the change, but it was worthwhile the Minister putting that on the record so the sector is reassured.
My Lords, that is certainly not what the amendments mean. They simply reflect the change in title. The Minister for the Cabinet Office—who, as the noble Lord will know, is currently my right honourable friend the Chancellor of the Duchy of Lancaster—is a Minister in the Cabinet who happens not to have the title of Secretary of State. The same is true of my right honourable friend the Chancellor of the Exchequer. He is not a Secretary of State, but I do not think anyone would dare to suggest that he was down the pecking order. I certainly would not.
It is an indication of the prominence the Government wish to give to the role of charities and other third sector organisations in national life that the Prime Minister has created the new Office of the Third Sector. It is important that we have a high-level appointment. The creation of that office is valuable in itself. I know my honourable friend Ed Miliband takes his role and responsibilities extremely seriously, and has worked hard to promote that office. Having such a dedicated ministerial level of expertise set aside for the charitable and voluntary sector will serve that sector well in the future.
I am grateful for the opportunity the noble Lord, Lord Hodgson, has given me to clarify that point. I am sure he will understand just how seriously we take this new role.
On Question, Motion agreed to.
5: Clause 9, page 11, line 39, leave out “(subject to subsection (11))”
6: Page 11, line 41, leave out from beginning to end of line 3 on page 12
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 5 and 6. I can be brief on these amendments too. They achieve three separate effects. Amendments Nos. 5 and 6 give up a ministerial delegated power that has not been used in over45 years. Amendment No. 11 allows the general income threshold for the registration of charities to be varied by order at any time. That amendment was needed because the Bill had inadvertently been drafted to prevent variation of that threshold before a report had been made to Parliament on the operation of the Act. We have had a lot of debate in the past about thresholds, so I know the noble Lord, Lord Hodgson, will see the importance of that. That report need not be commissioned until five years after Royal Assent. The Conservatives were keen, and Ministers have agreed, that the registration threshold and other thresholds should be reviewed much sooner than that, and that changes in thresholds should be made if necessary.
Other amendments in this group allow different provisions within the new registration arrangements to be brought into force at different times. The point of doing that is simply to ensure that the Charity Commission can manage the flow of new registrations in a smooth and orderly way. As I understand it, none of those amendments was at all controversial in another place. I beg to move.
Moved, That the House do agree with the Commons in their Amendments Nos. 5 and 6.—(Lord Bassam of Brighton.)
My Lords, I am grateful to the Minister for that, and for his reassurance. I assume these amendments cover all thresholds in all places, because there is not just the £5,000 threshold: there are also the £90,000, £100,000 and £250,000 thresholds. It is important that we do what we can to regularise the schedule as much as possible, and therefore I would be grateful for that reassurance.
How is the process of change in the thresholds initiated? Is it the Secretary of State—or, now, the Minister? Is it the Charity Commission, or some third party? It would be helpful to know how that will happen. There is always a danger of inertia where we do not do it yet and the years tick by while all the time inflation is having an effect, particularly on the £5,000 thresholds, but also on threshold levels generally. A word of reassurance on that point would be helpful.
My Lords, I entirely agree with the noble Lord, Lord Shutt, on that point. It is important that we have flexibility, and if we had not put these amendments in place I feel we would have lost that, which would have been unfortunate.
The review of the operation of the Act, which can be instituted under Clause 72, kicks in after five years. The provision to which this amendment relates, if uncorrected, would have got in the way of the commitment that has been made to carry out within one year of Royal Assent a review of all the financial thresholds in the Charities Act 1993 and in the Bill. This amendment will remove the anomaly, and will allow the general registration threshold to be varied should the review of financial thresholds point that way, allowing the Government to be in a position to implement any recommendations from the review. After this amendment, all thresholds except the one relating to excepted charities can be altered at any time. As I said, the Government will initiate a review a year after Royal Assent.
On Question, Motion agreed to.
7: Page 12, line 22, leave out “by the Commission”
8: Page 12, line 31, leave out “by the Secretary of State”
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 7 and 8. This group consists entirely of minor amendments that have been recommended to us by the draftsman and others. They are designed to improve the drafting of the Bill or to correct minor errors and, in some places, omissions. The effect of the amendments generally is very small indeed.
I rise really to speak to the other 40 amendments in the group, but I have no intention of doing so, because that would be not a good use of parliamentary time. When we discussed these matters confidentially, the noble Lord, Lord Shutt, asked me to provide a few examples of what a minor and technical amendment might mean. I have a very long list of those, and if the noble Lord gives me a number I will turn to any one of them and try to provide him with an answer, perhaps as an exemplification, if he really needs me to. I assure the House that none of these amendments is of consequence other than making the legislation work better.
Moved, That the House do agree withthe Commons in their Amendments Nos. 7 and 8.—(Lord Bassam of Brighton).
On Question, Motion agreed to.
9: Page 13, line 8, leave out “Secretary of State” and insert “Minister”
10: Page 13, line 13, leave out “Secretary of State” and insert “Minister”
11: Page 13, line 22, after “(7)” insert “(a)”
12: Page 13, line 26, leave out from “day” to “(registration” in line 27 and insert “on which subsections (1) to (5) above come into force by virtue of an order under section of the Charities Act 2006 relating to section of that Act”
13: Page 13, line 41, leave out “Secretary of State” and insert “Minister”
14: Page 14, line 7, leave out “Secretary of State” and insert “Minister”
15: Page 14, line 30, leave out “(subject tosection 3(11) above”
16: Clause 10, page 14, line 34, leave out “commencement of section above” and insert “appointed day”
17: Page 14, line 34, leave out “Secretary of State” and insert “Minister”
18: Page 14, line 43, leave out from “the” to end of line 44 and insert “appointed day. “(4)In this section “the appointed day” means the day on which section 3A(1) to (5) of the 1993 Act(as substituted by section of this Act) come into force by virtue of an order under section of this Act.”
19: Clause 11, page 15, line 21, leave outsubsection (9)
20: Page 15, line 36, leave out “Secretary of State” and insert “Minister”
21: Page 16, line 2, leave out “Secretary of State” and insert “Minister”
22: Page 16, line 8, leave out “Secretary of State” and insert “Minister”
23: Page 16, line 32, leave out “Secretary of State” and insert “Minister”
24: Page 16, line 34, leave out “Secretary of State” and insert “Minister”
25: Clause 22, page 22, line 8, leave out “Secretary of State” and insert “Minister”
26: Clause 23, page 24, leave out lines 14 to 17 and insert- “(a) a Scottish recognised body, or (b) a Northern Ireland charity,”
27: Page 24, leave out lines 32 to 35 and insert- “(a) a Scottish recognised body, or (b) a Northern Ireland charity,”
28: Page 24, line 44, at end insert- “(3A) After section 25 insert- “25A Meaning of “Scottish recognised body” and “Northern Ireland charity” in sections 24 and 25 (1) In sections 24 and 25 above “Scottish recognised body” means a body- (a) established under the law of Scotland, or (b) managed or controlled wholly or mainly in or from Scotland, to which the Commissioners for Her Majesty’s Revenue and Customs have given intimation, which has not subsequently been withdrawn, that relief is due under section 505 of the Income and Corporation Taxes Act 1988 in respect of income of the body which is applicable and applied to charitable purposes only. (2) In those sections “Northern Ireland charity” means an institution- (a) which is a charity under the law of Northern Ireland, and (b) to which the Commissioners for Her Majesty’s Revenue and Customs have given intimation, which has not subsequently been withdrawn, that relief is due under section 505 of the Income and Corporation Taxes Act 1988 in respect of income of the institution which is applicable and applied to charitable purposes only.”
29: Page 25, line 2, leave out “and 25” and insert “to 25A”
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 26 to 29. The amendments update the references to Scottish and Northern Ireland charities to take account of the Charities and Trustee Investment (Scotland) Act 2005 and the proposed Northern Ireland legislation. They ensure that a Scottish charity or a Northern Ireland charity cannot invest in an English common investment fund or common deposit fund unless it—the Scottish or Northern Ireland charity—is recognised by HMRC as being entitled to charitable tax relief.
Moved, That the House do agree with the Commons in their Amendments Nos. 26 to 29.—(Lord Bassam of Brighton).
My Lords, I want to ask the Minister one question about Amendment No. 62. I came across this today; I am sorry that Iwas not able to give him prior warning. Amendment No. 62 inserts a new clause before Clause 72, presumably after Clause 71. The new clause is entitled, “Disclosure of information to and by Northern Ireland regulator”. Clauses 70 and 71 are in Chapter 3 of Part 3, entitled, “Financial assistance”. Clause 70 is headed, “Power of Secretary of State to give financial assistance to charitable, benevolent or philanthropic institutions”, and Clause 71 is the same for Wales, through the National Assembly.
For those of us who are trying to keep the Bill clear, systematic and comprehensible—something that the noble Lord, Lord McKenzie of Luton, and I have debated at some length on the Companies Bill—this seems a strange place to have this provision. When we come to Amendment No. 130, we will be inserting into one of the schedules sections entitled “Disclosure of information to Commission”, “Disclosure of information by Commission”, and “Disclosure to and by principal regulators of exempt charities”. Why have we stuck the Northern Ireland provision into the middle of the Bill, when it surely would fit better when we are dealing with issues of disclosure of information as provided for in Amendment No. 130? This is not going to shake the charity world, but these small idiosyncrasies make the job of a charity trustee more difficult and more complex. An explanation would be helpful.
My Lords, I am more than happy to provide an explanation, but whether the noble Lord will find it entirely helpful I am not sure; we can but try. One of the changes that this relates to falls essentially under Amendment No. 62. The grouping, with Amendments Nos. 70 and 72, relates to the draft Charities (Northern Ireland) Order, which I mentioned earlier. One of the changes that the order will make, if enacted, will be the creation of a charity commission for Northern Ireland as the regulator of charities there.
Amendment No. 62 is the main amendment, and it comes into play when the Northern Ireland charity regulator comes into existence. The amendments allow provision to be made by regulations authorising disclosures of information to the Northern Ireland charity regulator for the purpose of helping it to carry out its functions. Such provision must be made in legislation that extends beyond Northern Ireland, because it needs to authorise bodies outside Northern Ireland to disclose information to the Northern Ireland charity regulator. For that reason, it cannot be done in the Northern Ireland order.
We are happily trying to assist the Northern Ireland authorities by including the provision in this Bill. I suspect that that has probably affected the chronology, although I cannot be absolutely certain about it. Maybe the noble Lord has a point about where things fall in the Bill. I certainly take his point about statute sometimes being hard to follow. We thought about this in relation to the Bill generally, and I have probably said on earlier occasions when we have been debating the Bill that we need to ensure that the Bill, when it becomes an Act, is accessible; we will provide proper guidance to ensure that it is. That is all about setting out contents, cross-referencing and all those things. The Northern Ireland provision is new, and it is free-standing as a clause while the other disclosure provisions amend the existing statute. I hope that that helps the noble Lord.
On Question, Motion agreed to.
30: Clause 24, page 25, line 22, after “court” insert “or the Tribunal”
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 30. This amendment relates to the charity tribunal. Section 29 of the Charities Act 1993, as substituted by Clause 24 of the Bill, allows trustees formally to seek the Charity Commission’s advice on any matter relating to their duties as trustees or to the proper administration of their charity. Section 29 also provides trustees with a form of protection; if they follow the commission’s advice, they will be taken as having acted in accordance with their responsibilities. This protection is, however, not available where a court decision has been made on the matter in question, or where court proceedings are pending to obtain a decision. Amendment No. 26 corrects an oversight on our part by putting tribunal decisions on the same footing as court decisions in that respect.
Moved, That the House do agree with the Commons in their Amendment No. 30.—(Lord Bassam of Brighton.)
On Question, Motion agreed to.
31: Clause 27, page 29, line 17, after “(2)”, insert “above””
32: Clause 28, page 30, line 15, leave out “Secretary of State” and insert “Minister”
33: Clause 29, page 31, leave out line 21
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 33. I shall also speak to Amendments Nos. 71, 80 and 81. The present accounts scrutiny regime for charitable companies—charities that are established in the legal form of a company—is a company law regime. One consequence of that is that smaller charitable companies are subject to a regime whose requirements are designed for small businesses, not for small charities. Larger charitable companies—those whose annual income is above the professional audit threshold of £500,000, as it will be set by this Bill—are in a better position, as the company law scrutiny regime for larger charitable companies is effectively already the same as the regime prescribed by charity law for unincorporated charities.
In our debates on the Companies Bill, the noble Lord, Lord Hodgson, tabled amendments that would have taken small charitable companies out of the company law regime for accounts scrutiny and placed them instead within the charity law regime. The Government accepted that there was merit in that approach. We took representations from a number of umbrella bodies for charities and professional accountancy bodies and received favourable responses. We therefore agreed to proceed with the idea. At its heart is the sensible proposition that we should treat charitable companies primarily as charities, albeit ones that happen to be set up in company form, rather than primarily as companies that happen to have charitable status.
To give effect to that, changes are needed both to the Companies Bill and to the Charities Bill. The necessary Companies Bill amendments were made in that Bill’s Report stage in another place last month and were agreed in your Lordships’ House last Thursday. The principal amendment to the Charities Bill is Amendment No. 80, which contains a new order-making power allowing Ministers to amend the Charities Act 1993 and the Bill to reflect changes in company law that will be made by the Companies Bill when it comes into force. The result will be that we can apply the same accounts scrutiny requirements to all charities regardless of their legal form. Once the relevant parts of the Companies Bill have come into force and the order has been made, those scrutiny requirements in the case of small charitable companies will be in charity law rather than company law.
The order-making power will also allow for the group accounting requirements to be changed so that, as regards the preparation of group accounts, a group of charities headed by a charitable company is put in the same position as a group headed by any other form of charity. This order-making power will allow Ministers to amend primary legislation. The order will be subject to the affirmative resolution procedure, which Amendment No. 71 achieves. The other two amendments in this group, Amendments Nos. 33 and 81, are minor and consequential.
There will have to be careful co-ordination between the Department of Trade and Industry and the Cabinet Office over the timing of the company law and charity law changes. Our intention is to put that in motion as soon as we can in the next year. The changes cannot be instant because, in accordance with our obligations under the compact between the Government and the voluntary and community sector, we will need to consult charities, professional accountancy bodies and other interested parties by publishing an exposure draft of the order for a reasonable period. Noble Lords can be assured that we intend to press ahead with these changes as soon as we can.
Moved, That the House do agree with the Commons in their Amendment No. 33.—(Lord Bassam of Brighton).
My Lords, those who have followed the Bill’s proceedings will be aware that I have form on this issue. For reasons explained in our debate on Amendment No. 5, on threshold, we should seek simplicity and comprehensibility whenever we can and bring as much regulation as possible under one regulator—in this case, the Charity Commission.
So I was disappointed when, during the earlier stages of the Bill, the noble Lord, Lord Bassam, said that my objective, whether desirable or not, could not be achieved because accounting regulations for charities that are companies form part of the Companies Act, not the Charities Act. Just as I was reflecting ruefully on that, a Companies Bill came along that gave me a chance to use my persuasive skills in relation to another department. As the Minister has pointed out, we have been able to bring in the necessary changes, but our amendments were designed to bring them in forthwith.
There appeared to be some backsliding by the Government during subsequent proceedings on the Companies Bill in another place: instead of a measure to introduce the new regime immediately, there was to be only a power taken in Amendment No. 80 to introduce the new regime in due course. We debated this matter last week during consideration of Commons amendments to the Companies Bill. I am delighted to see the noble Lord, Lord McKenzie, in his place on the Bench, because he reassured me that there was no intention of delaying implementation of this matter. He explained the reasons why this rather amorphous situation had to remain—the timing of the two Bills could not be foreseen and, in the natural order of things, every possible disaster must be guarded against, including that one Bill might still fail. I am grateful to the Minister for his reassurance this afternoon. I would be very disappointed indeed if, after all the work that has gone into trying to make this shift to bring charity regulations under the charity regulator, there were delays in implementation beyond the requirements to consult the sector.
My Lords, from time to time there is good reason for charities to incorporate and sometimes there is good reason that they do not incorporate. It should not be the nature of the auditing regime that moves one in one direction or the other. Therefore, applying that auditing regime to either situation is absolutely right.
On Question, Motion agreed to.
34: Clause 37, page 37, line 11, leave out “(5)to (7)” and insert “(4) to (6)”
35: Clause 38, page 38, line 3, leave out “or directors”
36: Page 38, leave out lines 13 to 21 and insert- “(1) Section 727 of the Companies Act 1985 (power of court to grant relief to officers or auditors of companies) shall have effect in relation to a person to whom this section applies as it has effect in relation to a person employed as an auditor by a company. (2) This section applies to- (a) a person acting in a capacity within section 73D(1)(b) or (c) above in a case where, apart from this section, section 727 would not apply in relation to him as a person so acting, and (b) a charity trustee of a CIO.””
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 36. This amendment is designed to give the court power to grant relief from personal liability to the charity trustees of a charitable incorporated organisation or CIO. Section 61 of the Trustee Act 1925 gives the court the power to grant relief to trustees, but the charity trustees of a CIO are not trustees within Section 61 of that Act. Section 727 of the Companies Act 1985 gives the court the power to grant relief to the officers of a company, but that, too, does not at present apply in the case of a CIO. This amendment therefore provides for Section 727 of the Companies Act also to have effect in relation to the charity trustees of a CIO. We are indebted to the honourable Member for the Isle of Wight, who is the counterpart in another place of the noble Lord, Lord Hodgson of Astley Abbotts. Between them, they spotted the gap and the need for this amendment. I am grateful to them both.
Moved, That the House do agree with the Commons in their Amendment No. 36.—(Lord Bassam of Brighton.)
On Question, Motion agreed to.
37: Clause 39, page 39, line 23, leave out “Secretary of State” and insert “Minister”
38: Clause 40, page 41, line 27, leave out “Secretary of State” and insert “Minister”
39: Clause 41, page 45, line 1, leave out “Secretary of State” and insert “Minister”
40: Clause 42, page 45, line 24, at end insert “in response to the question put to the meeting”
41: Clause 43, page 46, leave out lines 34 to 36
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 41. This simple-looking amendment responds fully and directly to amendments tabled both in this House by the noble Lord, Lord Hodgson, and in another place by Andrew Turner MP, the honourable Member for the Isle of Wight. The aim is to allow trustees, where they have power to sell land and decide to sell it, to spend the capital proceeds of the sale without having to replace the capital from their charity’s income. The underlying purpose of the original exclusion of land was to make it clear that charity trustees who do not have power to sell land could not use these provisions to allow the capital proceeds of an unauthorised sale to be spent. We are now satisfied that these provisions could not be used in that way, even if, as we propose through this amendment, the exclusion of land were removed.
In addition to these provisions, the Charity Commission already has power under Section 26 of the Charities Act 1993 to authorise the expenditure of permanent endowment capital where it is expedient to do so. That power continues. I understand that after the Bill is passed the commission will publish guidance on the application of these new provisions and on the use of its existing powers. I hope that that will assist those who might benefit from this provision.
Moved, That the House do agree with the Commons in their Amendment No. 41.—(Lord Bassam of Brighton.)
My Lords, I am grateful to the Government, and to the Minister for his explanation of the amendment. Permanent endowment raised a number of concerns for me and the noble Lord, Lord Phillips of Sudbury. The negative definition in the legislation meant that gifts made centuries ago were trussed up in such a way that they could not be released, which was probably quite at odds with the original wishes of the donor. It is good to see that that issue is being addressed. It is also important that the issue of in specie land—which particularly concerned the noble Lord, Lord Phillips—was involved. After all, a charity does not exist to act as the perpetual owner of a particular piece of land if those proceeds could be better used in furthering its purposes elsewhere. I am glad that the changes are now going to reflect this.
On Question, Motion agreed to.
42: Page 48, line 29, leave out “Secretary of State” and insert “Minister”
43: Page 49, line 33, leave out “Secretary of State” and insert “Minister”
44: Clause 45, page 53, line 21, leave out “to give money or other property” and insert “which is- (i) an appeal to them to give money or other property, or (ii)an appeal falling within subsection (4), (or both) and”
45: Page 53, line 35, leave out subsections (4) and (5) and insert- “(4) An appeal falls within this subsection if it consists in or includes- (a) the making of an offer to sell goods or to supply services, or (b) the exposing of goods for sale, to members of the public.”
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 44 and 45. I shall speak also to Amendment No. 122.
Amendments Nos. 44 and 45 were recommended by the parliamentary draftsman, to achieve clarity in the wording of the Bill. They do not change the meaning or effect of the Bill.
I am led to understand that Amendment No. 122, however, makes a more substantive change, to preserve an existing power which continues to be useful and which the Bill would, without this amendment, inadvertently have repealed. It is to do with the regulation of street collections. The Police, Factories, etc. (Miscellaneous Provisions) Act 1916 currently allows local authorities to regulate such collections. The provisions of the Charities Bill will replace those of the 1916 Act for the regulation of street collections which are for charitable, benevolent or philanthropic purposes, but the Bill will not make provision for the regulation of street collections for purposes other than charitable, benevolent or philanthropic purposes. The effect of the amendment is to preserve local authorities’ powers under the 1916 Act to regulate street collections for purposes other than charitable, benevolent or philanthropic purposes.
The particular example mentioned to us as justifying the preservation of this power was the collection by animal rights activists, some of whom might deserve the label of extremists and who might use the proceeds of collections for purposes which were clearly not charitable, philanthropic or benevolent. We think it right that local authorities should continue to have the power to regulate such collections. I am sure that the noble Lords, Lord Hodgson of Astley Abbotts and Lord Shutt of Greetland, would agree with me on that.
I am sure that we could think of other collections that were not charitable, and do not fall into that definition, where it is quite right that the local authority has a regulatory role. I know that a number of my colleagues in another place have made that case forcefully. I pay tribute in particular to my long-term friend and colleague David Lepper, MP, who has drawn attention to some of the difficulties that can arise through less than philanthropic or charitable activity by some street collectors.
Moved, That the House do agree with the Commons in their Amendments Nos. 44 and 45—(Lord Bassam of Brighton.)
On Question, Motion agreed to.
46: Clause 63, page 68, line 19, leave out “Secretary of State” and insert “Minister”
47: Page 69, line 10, leave out “Secretary of State” and insert “Minister”
48: Clause 68, page 73, line 20, leave out “Secretary of State” and insert “Minister”
49: Clause 69, page 73, line 26, leave out “Secretary of State” and insert “Minister”
50: Clause 70, page 75, line 5, leave out “The Secretary of State” and insert “A relevant Minister”
51: Page 75, line 16, leave out “Secretary of State” and insert “relevant Minister”
52: Page 75, line 20, leave out “Secretary of State” and insert “relevant Minister”
53: Page 75, line 22, leave out “Secretary of State” and insert “relevant Minister”
54: Page 75, line 30, leave out “Secretary of State” and insert “relevant Minister”
55: Page 75, line 34, leave out “Secretary of State” and insert “relevant Minister”
56: Page 75, line 35, leave out “The Secretary of State” and insert “A relevant Minister”
57: Page 76, line 2, leave out “the Secretary of State” and insert “a relevant Minister”
58: Page 76, line 3, leave out “Secretary of State” and insert “relevant Minister”
59: Page 76, line 4, leave out “the exercise of” and insert “any exercise by him of any”
60: Page 76, line 6, leave out “Secretary of State” and insert “relevant Minister”
61: Page 76, line 11, at end insert- “(11) In this section “relevant Minister” means the Secretary of State or the Minister for the Cabinet Office.”
62: Before Clause 72, insert the following new Clause- “Disclosure of information to and by Northern Ireland regulator (1) This section applies if a body (referred to in this section as “the Northern Ireland regulator”) is established to exercise functions in Northern Ireland which are similar in nature to the functions exercised in England and Wales by the Charity Commission. (2) The Minister may by regulations authorise relevant public authorities to disclose information to the Northern Ireland regulator for the purpose of enabling or assisting the Northern Ireland regulator to discharge any of its functions. (3) If the regulations authorise the disclosure of Revenue and Customs information, they must contain provision in relation to that disclosure which corresponds to the provision made in relation to the disclosure of such information by section 10(2) to (4) of the 1993 Act (as substituted by paragraph 99 of Schedule to this Act). (4) In the case of information disclosed to the Northern Ireland regulator pursuant to regulations made under this section, any power of the Northern Ireland regulator to disclose the information is exercisable subject to any express restriction subject to which the information was disclosed to the Northern Ireland regulator. (5) Subsection (4) does not apply in relation to Revenue and Customs information disclosed to the Northern Ireland regulator pursuant to regulations made under this section; but any such information may not be further disclosed except with the consent of the Commissioners for Her Majesty’s Revenue and Customs. (6) Any person specified, or of a description specified, in regulations made under this sectionwho discloses information in contravention of subsection (5) is guilty of an offence and liable- (a) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum, or both; (b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine, or both. (7) It is a defence for a person charged withan offence under subsection (5) of disclosing information to prove that he reasonably believed- (a) that the disclosure was lawful, or (b) that the information had already and lawfully been made available to the public. (8) In the application of this section to Scotland or Northern Ireland, the reference to 12 months in subsection (6) is to be read as a reference to 6 months. (9) In this section- “relevant public authority” means- (a) any government department (other than a Northern Ireland department), (b) any local authority in England, Wales or Scotland, (c) any person who is a constable in England and Wales or Scotland, (d) any other body or person discharging functions of a public nature (including a body or person discharging regulatory functions in relation to any description of activities), except a body or person whose functions are exercisable only or mainly in or as regards Northern Ireland and relate only or mainly to transferred matters; “Revenue and Customs information” means information held as mentioned in section 18(1) of the Commissioners for Revenue and Customs Act 2005 (c. 11); “transferred matter” has the same meaning as in the Northern Ireland Act 1998 (c. 47).”
63: Clause 72, page 77, line 21, leave out “Secretary of State” and insert “Minister”
64: Page 77, line 31, leave out “Secretary of State” and insert “Minister”
65: Page 77, line 34, leave out “Secretary of State” and insert “Minister”
66: Page 77, line 40, leave out from “the” to “, it” and insert “appointed day (within the meaning of section of this Act”
67: Clause 73, page 78, line 2, leave out “the Secretary of State” and insert “a relevant Minister”
68: Page 78, line 9, leave out “Secretary of State” and insert “relevant Minister”
69: Page 78, line 10, leave out “the Secretary of State” and insert “a relevant Minister”
70: Page 78, line 16, at end insert- “(ba) any regulations under section (Disclosure of information to and by Northern Ireland regulator),”
71: Page 78, line 19, after “” insert “or (Amendments reflecting changes in company law audit provisions)”
72: Page 78, line 21, after “(b)” insert “(ba)”
73: Page 78, line 22, leave out “the Secretary of State” and insert “a relevant Minister”
74: Page 78, line 28, at end insert- “(7) In this section “relevant Minister” means the Secretary of State or the Minister for the Cabinet Office.”
75: Clause 74, page 78, line 34, leave out “The Secretary of State” and insert “A relevant Minister”
76: Page 78, line 41, at end insert “(including an enactment restating, with or without modifications, an enactment amended by this Act).”
77: Page 78, line 41, at end insert- “(6) In this section “relevant Minister” means the Secretary of State or the Minister for the Cabinet Office.”
78: Clause 75, page 79, line 2, leave out “Secretary of State” and insert “Minister”
79: Clause 76, page 80, line 8, at end insert- “(5A) In this Act “the Minister” means the Minister for the Cabinet Office.”
80: Before Clause 77, insert the following new Clause- “Amendments reflecting changes in company law audit provisions (1) The Minister may by order make such amendments of the 1993 Act or this Act as he considers appropriate- (a) in consequence of, or in connection with, any changes made or to be made by any enactment to the provisions of company law relating to the accounts of charitable companies or to the auditing of, or preparation of reports in respect of, such accounts; (b) for the purposes of, or in connection with, applying provisions of Schedule 5A to the 1993 Act (group accounts) to charitable companies that are not required to produce group accounts under company law. (2) In this section- “accounts” includes group accounts; “amendments” includes repeals and modifications; “charitable companies” means companies which are charities; “company law” means the enactments relating to companies.”
81: Clause 77, page 80, line 15, at end insert- “(ca) section (Amendments reflecting changes in company law audit provisions),”
82: Page 80, line 17, at end insert- “(f) the following provisions of Schedule 8 - paragraph 88(1A), paragraph 99 so far as it confers power to make regulations, and paragraph 169(c), and section 75 (1) so far as relating to those provisions.”
83: Page 80, line 18, leave out “Secretary of State” and insert “Minister”
84: Page 80, line 22, leave out “Secretary of State” and insert “Minister”
85: Clause 78, page 80, line 28, leave out subsections (3) and (4) and insert- “(3) The following provisions extend also to Scotland- (a) sections 1 to 3 and 5, (b) section 6 (5), (c) sections (Disclosure of information to and by Northern Ireland regulator) and , (d) section 75 (2) and (3) and Schedules 9 and 10 so far as relating to the Recreational Charities Act 1958 (c. 17), and (e) section 75 (4) and (5), sections 76 to 79 and this section. (3A) But the provisions referred to in subsection (3)(a) and (d) affect the law of Scotland only so far as they affect the construction of references to charities or charitable purposes in enactments which relate to matters falling within Section A1 of Part 2 of Schedule 5 to the Scotland Act 1998 (c. 46) (reserved matters: fiscal policy etc.); and so far as they so affect the law of Scotland- (a) references in sections (1) and (1) to the law of England and Wales are to be read as references to the law of Scotland, and (b) the reference in section (1) to the High Court is to be read as a reference to the Court of Session. (3B) The following provisions extend also to Northern Ireland- (a) sections 1 to 3 and 5, (b) section 6 (5), (c) section 23, (d) sections 72 (Disclosure of information to and by Northern Ireland regulator) and 74, (e) section 75 (2) and (3) and Schedules 9 and 10 so far as relating to the Recreational Charities Act 1958 (c. 17), and (f) section 75 (4) and (5), sections 76 to 99 and this section. (3C) But the provisions referred to in subsection (3B)(a) and (e) affect the law of Northern Ireland only so far as they affect the construction of references to charities or charitable purposes in enactments which relate to matters falling within paragraph 9 of Schedule 2 to the Northern Ireland Act 1998 (c. 47) (excepted matters: taxes and duties); and so far as they so affect the law of Northern Ireland- (a) references in sections 1 (1) and 2 (1) to the law of England and Wales are to be read as references to the law of Northern Ireland, and (b) the reference in section 1 (1) to the High Court is to be read as a reference to the High Court in Northern Ireland.”
86: Page 80, line 34, leave out “But this does not apply to” and insert- “(6) But subsection (5) does not apply to any amendment or repeal made in the Recreational Charities Act 1958 (c. 17) by a provision referred to in subsection (3) or (3B). (6A) Subsection (5) also does not apply to- (a) ”
87: Page 80, line 35, after “(c. 6),” insert “or (b) those made by Schedule in the Police, Factories, &c. (Miscellaneous Provisions) Act 1916 (c. 31), or (c) the repeal made in that Act by Schedule 9,”
88: Page 80, line 36, leave out subsection (7)
89: Page 80, line 39, leave out subsection (8)
90: Schedule 1, page 81, line 11, leave out “Secretary of State” and insert “Minister”
91: Page 81, line 12, leave out “Secretary of State” and insert “Minister”
92: Page 82, line 5, leave out “Secretary of State” and insert “Minister”
93: Page 82, line 6, leave out “Secretary of State” and insert “Minister”
94: Page 82, line 8, leave out “Secretary of State” and insert “Minister”
95: Page 82, line 19, leave out “Secretary of State” and insert “Minister”
96: Page 82, line 21, leave out “Secretary of State” and insert “Minister”
97: Page 82, line 24, leave out “Secretary of State” and insert “Minister”
98: Page 82, line 29, leave out “Secretary of State” and insert “Minister”
99: Page 82, line 33, leave out “Secretary of State” and insert “Minister”
100: Page 82, leave out lines 38 to 43 and insert- “(2)The terms and conditions of service of persons appointed under sub-paragraph (1) are to be such as the Commission may determine with the approval of the Minister for the Civil Service.”
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 100.
The amendment reverses an amendment made in your Lordships’ House on Report, on 12 October last year. That amendment was moved by the noble Lord, Lord Phillips of Sudbury, who, for reasons that we well understand, is no longer with us. His contribution to this Bill—and to the field of charity law over many years—has been second to none. As ever, I shall not avoid an opportunity to praise him for that. He has done a fine service, and we are greatly in his debt.
However, the amendment had an effect which I believe went further than the noble Lord foresaw or intended. It is to reverse that effect that the Government made their counter-amendment in another place. The noble Lord, Lord Phillips, was rightly concerned to secure the independence of the Charity Commission from ministerial interference and control in the way it operates in regulating charities. Many of your Lordships shared the view that the commission must be independent in how it operates as a regulator. The Government strongly share that vision. For that reason we have included in the Bill a provision expressly asserting and guaranteeing the commission’s independence. The provision is in new Section 1A of the 1993 Act, inserted by Clause 6 of the Bill. It says:
“In the exercise of its functions the Commission shall not be subject to the direction or control of any Minister of the Crown or other Government department”.
I do not think it would be possible to be clearer than that as to the commission’s independence as a regulator from ministerial influence.
The need for the provision inserted by the amendment comes from the fact that the commission is—and, under the Bill, is to remain—a non-ministerial government department. While the commission is a non-ministerial department, its staff must be in the Home Civil Service. Without the amendment there will be, at the very least, serious doubt as to whether the commission’s staff were in the Home Civil Service. We would be in the highly unsatisfactory position of having to tell the staff of a government department that the effect of the Bill might well be to remove them from the Civil Service. We could not, however, tell them with any certainty what their status was, since there is no obvious precedent for a government department outside the Civil Service.
As I have said, the effect of the amendment of the noble Lord, Lord Phillips, was probably not exactly what he had in mind. To quote from his contribution to the debate:
“The Minister made a serious point, with a degree of tentativeness, about what this would do to the status of the employees. I am sure I speak for the noble Lord, Lord Hodgson, as well as myself in saying that, if that is the case, we would accept without demur an amendment at the final stage of this Bill that made it clear that the status of employees was unchanged”.—[Official Report, 12/10/05; col. 327.]
That is precisely what our amendment aims to achieve: to make clear that the commission’s staff are to remain in the Home Civil Service. Our amendment is a common provision which is used in other legislation establishing non-ministerial government departments—for example, the legislation which established the Food Standards Agency. It does not mean that the Minister for the Civil Service will be involved in the determination of the terms and conditions of employment for individual members of staff. The Charity Commission already has delegated authority on behalf of the Minister for the Civil Service to determine, except for staff in the senior Civil Service, the number and grading of its posts and the terms and conditions of employment in so far as they relate to such things as remuneration, allowances, expenses, holidays, working arrangements performance, promotions and redundancy. The commission is only required to agree the overall pay remit with the Treasury. The commission takes its own decisions on terms and conditions of service within a broad framework.
Finally, I repeat the most important point in this debate: that the Bill places the commission, for all purposes to do with the exercise of its regulatory functions, wholly outside ministerial control in both fact and appearance. I am very grateful to the noble Lord, Lord Phillips, for his contribution in that debate, which enabled me to move this amendment—unchallenged, I am sure.
Moved, That the House do agree with the Commons in their Amendment No. 100.—(Lord Bassam of Brighton.)
My Lords, as the Minister said, we return to familiar territory: the independence of the Charity Commission. Concern was expressed during the earlier stages of the Bill that, given the greatly increased power of the Charity Commission, it is important that it be properly insulated from political pressure from any part of the political spectrum. I am the first to recognise that the Government made a major step with the insertion of subsection (4), which the Minister read out a few moments ago. I am sure the whole House is grateful to them for that.
However, in paragraph 5 of Schedule 1, there are what could be regarded by the suspicious—some might say, the paranoid—as weasel words that the appointment of other staff requires the approval of the Minister as to their terms and conditions of service. There was concern that it would be said that the Charity Commission is independent, but it would be told how it is going to make appointments and how much it will pay and therefore the effectiveness and work of the commission could be shaded and guided by use of paragraph 5 of Schedule 1, which is headed “Staff”. While the noble Lord, Lord Phillips, and I could see the force of the argument about approval of the chief executive’s pay and rations, the argument for controlling the terms and conditions of all other staff did not hold water for me.
The amendment on which I supported the noble Lord, Lord Phillips, was to establish a cap on the total remuneration—clearly, we could not hand away the pen and the chequebook—but leave the detail tothe commission. Strangely enough, that is what the Minister says the present amendment does, but it does not quite say that. Our wording makes that much clearer than his amendment does. It states:
“The terms and conditions of service of persons appointed under sub-paragraph (1) are to be such as the Commission may determine with the approval of the Minister for the Civil Service”.
That is not, “Here’s the overall cap, you get on with it”; it could be, “Bring us a list of all the people, and we will see what their pay and rations are”. I was very reassured by the Minister’s words from the Dispatch Box, but I was rather less reassured by the way they tied in with the amendment. What he said seemed to me to fit much more happily with the amendment tabled by the noble Lord, Lord Phillips, and me, which is in the Bill at present.
I accept that the Minister is a man of honour, and I am sure that he is telling me exactly how the situation is going to work out in future. I am sure that there are some deficiencies in the drafting of the amendment that the noble Lord, Lord Phillips, and I tabled, which was passed at the last stage, but it will be helpful if, one last time before we wave goodbye to this clause, he could give us a final word or two of reassurance that the wording in my amendment, which matches his words, cannot be used and that we have to have this amendment, which still leaves the slightly uneasy feeling that a determined Minister at some date in the future could grab the powers and influence the commission in a way that all sides of the House agree would be undesirable.
My Lords, the Minister spoke about my noble friend Lord Phillips of Sudbury, and I think it is an appropriate time to pay tribute to him, particularly to his tremendous service in charitable endeavours and in assisting those involved in them. However, I thought, “He’ll not get away with this one”, and that is how it has turned out. One of the concerns of the noble Lord, Lord Phillips—and we hear that the staff are concerned the other way—was that good people arrive at the Charity Commission, but they do not last long because the salary regime is not sufficient compared to other fields. That was one of his concerns, and it is interesting that the commission not being thoroughly part of the Home Civil Service leads staff to worry in the other direction. It was interesting to hear the Minister’s comments and his absolute assurance that, in this, independence is crucial and supreme.
My Lords, the debate we had on this matter was important, and we should remind ourselves of its outlines. I can only repeat—perhaps with extra emphasis—that we value the independence of the commission, which is essential. We believe it is there in fact, and I dispute some of the interpretation of the noble Lord, Lord Hodgson. I thought I made clear how we see the situation, particularly with regard to pay and conditions, which commission staff, in the main, are very happy with. They were certainly unhappy about the prospect of being outside the Home Civil Service. They were not too chuffed about that idea at all, and were somewhat horrified when they discovered what the effect of the amendment might be. We gave a lot of thought to the legal status of the commission, and we came up with what we thought was most appropriate and would work best. Earlier, I made a comparison with the Food Standards Agency, which is, perhaps, the closest comparison we can come up with among regulators. I do not hear too many complaints about that organisation’s independence, and I know that people greatly value the way in which it works.
Of course, it is never an entirely closed story, and there is an opportunity to review the way in which the Bill works. I am sure that noble Lords will not have missed the importance of Clause 72, which requires the commission’s status as a government department to be considered as part of the review of the impact of the legislation. A person must be appointed to carry out the review within five years of the Bill receiving Royal Assent, and that issue will be reported and laid before Parliament for further discussion and consideration. It might be that in four or five years’ time, people will take a different view about the way in which the commission operates and, as a Government, we would be foolish to ignore criticism at that stage. We will judge any case for a change in the status of the commission on its merits. However, a coherent alternative has not been presented to us. We think that what we have designed works well in legislative terms and, important though this debate on independence has been, we have something that has worked well and will work well in future. I hope with that the noble Lord will feel happier and will not oppose this amendment.
On Question, Motion agreed to.
101: Schedule 4, page 101, line 40, leave out “Secretary of State” and insert “Minister”
102: Page 101, line 47, leave out “Secretary of State” and insert “Minister”
104: Page 104, line 34, leave out “Secretary of State” and insert “Minister”
105: Schedule 6, page 108, line 4, leave out “Secretary of State” and insert “Minister”
106: Page 108, line 37, leave out “Secretary of State” and insert “Minister”
107: Page 108, line 39, leave out “Secretary of State” and insert “Minister”
108: Page 109, line 30, leave out “Secretary of State” and insert “Minister”
109: Page 110, line 19, leave out “company” and insert “charity”
110: Page 112, line 33, leave out “Secretary of State” and insert “Minister”
111: Page 114, line 16, leave out “Secretary of State” and insert “Minister”
112: Schedule 7, page 115, line 23, leave out “Secretary of State” and insert “Minister”
113: Page 117, line 4, leave out “Secretary of State” and insert “Minister”
114: Page 118, line 29, leave out “Secretary of State” and insert “Minister”
115: Page 119, line 44, leave out “Secretary of State” and insert “Minister”
116: Page 121, line 6, leave out “Secretary of State” and insert “Minister”
117: Page 124, line 35, leave out “Secretary of State” and insert “Minister”
118: Page 125, line 32, leave out “Secretary of State” and insert “Minister”
119: Page 128, line 28, leave out “Secretary of State” and insert “Minister”
120: Page 129, line 5, leave out “Secretary of State” and insert “Minister”
121: Page 131, line 10, leave out “of the Secretary of State”
122: Schedule 8, page 133, line 17, at end insert- “Police, Factories, &c. (Miscellaneous Provisions) Act 1916 (c. 31) 14A (1) Section 5 of the Police, Factories, &c. (Miscellaneous Provisions) Act 1916 (regulation of street collections) is amended as follows. (2) In subsection (1) for “the benefit of charitable or other purposes,” substitute “any purposes in circumstances not involving the making of a charitable appeal,”. (3) In paragraph (b) of the proviso to subsection (1) omit the words from “, and no representation” onwards. (4) In subsection (4) before the definition of “street” insert- ““charitable appeal” has the same meaning as in Chapter 1 of Part 3 of the Charities Act 2006;””
123: Page 136, line 13, at end insert- “Recreational Charities Act 1958 (c. 17) 37A In section 6 of the Recreational CharitiesAct 1958 (short title and extent) for subsection (2) substitute- “(2) Section 1 of this Act, as amended by section of the Charities Act 2006, has the same effect in relation to the law of Scotland or Northern Ireland as section of that Act has by virtue of section (3) to (3C) of that Act. (3) Sections 1 and 2 of this Act, as in force before the commencement of section of that Act, continue to have effect in relation to the law of Scotland or Northern Ireland so far as they affect the construction of any references to charities or charitable purposes which- (a) are to be construed in accordance with the law of England and Wales, but (b) are not contained in enactments relating to matters of the kind mentioned in section (3A) or (3C) of that Act.”.”
124: Page 138, line 24, at end insert- “Sex Discrimination Act 1975 (c. 65) In section 21A of the Sex Discrimination Act 1975 (public authorities) in paragraph 14 in the Table of Exceptions in subsection (9), for “Charity Commissioners for England and Wales” substitute “Charity Commission”.”
125: Page 143, leave out lines 21 to 29
126: Page 144, line 9, at end insert- “(1A) In subsection (1) after the definition of “institution” insert- ““the Minister” means the Minister for the Cabinet Office;”.”
127: Page 144, line 31, at end insert- “91A In section 79 (short title, commencement and extent) omit- (a) in subsection (6), the words “(subject to subsection (7))”, and (b) subsection (7). 91B In Schedule 7 (repeals) omit the entry relating to the Police, Factories, &c. (Miscellaneous Provisions) Act 1916 (c. 31).”
128: Page 144, line 33, at end insert- “92A In the heading for Part 1, for “CHARITY COMMISSIONERS” substitute “CHARITY COMMISSION”.”
129: Page 145, line 32, leave out “COMMISSION’S”
130: Page 146, line 32, leave out paragraph 99 and insert- “99 For section 10 substitute- “10 Disclosure of information to Commission (1) Any relevant public authority may disclose information to the Commission if the disclosure is made for the purpose of enabling or assisting the Commission to discharge any of its functions. (2) But Revenue and Customs information may be disclosed under subsection (1) only if it relates to an institution, undertaking or body falling within one (or more) of the following paragraphs— (a) a charity; (b) an institution which is established for charitable, benevolent or philanthropic purposes; (c) an institution by or in respect of which a claim for exemption has at any time been made under section 505(1) of the Income and Corporation Taxes Act 1988; (d) a subsidiary undertaking of a charity; (e) a body entered in the Scottish Charity Register which is managed or controlled wholly or mainly in or from England or Wales. (3) In subsection (2)(d) above “subsidiary undertaking of a charity” means an undertaking (as defined by section 259(1) of the Companies Act 1985) in relation to which—(a) a charity is (or is to be treated as) a parent undertaking in accordance with the provisions of section 258 of, and Schedule 10A to, the Companies Act 1985, or (b) two or more charities would, if they were a single charity, be (or be treated as) a parent undertaking in accordance with those provisions. (4) For the purposes of the references to a parent undertaking— (a) in subsection (3) above, and (b) in section 258 of, and Schedule 10A to, the Companies Act 1985 as they apply for the purposes of that subsection, “undertaking” includes a charity which is not an undertaking as defined by section 259(1) of that Act. 10A Disclosure of information by Commission (1) Subject to subsections (2) and (3) below, the Commission may disclose to any relevant public authority any information received by the Commission in connection with any of the Commission’s functions—(a) if the disclosure is made for the purpose of enabling or assisting the relevant public authority to discharge any of its functions, or (b) if the information so disclosed is otherwise relevant to the discharge of any of the functions of the relevant public authority. (2) In the case of information disclosed to the Commission under section 10(1) above, the Commission’s power to disclose the information under subsection (1) above is exercisable subject to any express restriction subject to which the information was disclosed to the Commission. (3) Subsection (2) above does not apply in relation to Revenue and Customs information disclosed to the Commission under section 10(1) above; but any such information may not be further disclosed (whether under subsection (1) above or otherwise) except with the consent of the Commissioners for Her Majesty’s Revenue and Customs. (4) Any responsible person who discloses information in contravention of subsection (3) above is guilty of an offence and liable—(a) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum, or both; (b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine, or both. (5) It is a defence for a responsible person charged with an offence under subsection (4) above of disclosing information to prove that he reasonably believed—(a) that the disclosure was lawful, or (b) that the information had already and lawfully been made available to the public. (6) In the application of this section to Scotland or Northern Ireland, the reference to 12 months in subsection (4) is to be read as a reference to 6 months. (7) In this section “responsible person” means a person who is or was—(a) a member of the Commission, (b) a member of the staff of the Commission, (c) a person acting on behalf of the Commission or a member of the staff of the Commission, or (d) a member of a committee established by the Commission. 10B Disclosure to and by principal regulators of exempt charities (1) Sections 10 and 10A above apply with the modifications in subsections (2) to (4) below in relation to the disclosure of information to or by the principal regulator of an exempt charity. (2) References in those sections to the Commission or to any of its functions are to be read as references to the principal regulator of an exempt charity or to any of the functions of that body or person as principal regulator in relation to the charity. (3) Section 10 above has effect as if for subsections (2) and (3) there were substituted—“(2) But Revenue and Customs information may be disclosed under subsection (1) only if it relates to- (a) the exempt charity in relation to which the principal regulator has functions as such, or (b) a subsidiary undertaking of the exempt charity. (3) In subsection (2)(b) above “subsidiary undertaking of the exempt charity” means an undertaking (as defined by section 259(1) of the Companies Act 1985) in relation to which- (a) the exempt charity is (or is to be treated as) a parent undertaking in accordance with the provisions of section 258 of, and Schedule 10A to, the Companies Act 1985, or (b) the exempt charity and one or more other charities would, if they were a single charity, be (or be treated as) a parent undertaking in accordance with those provisions.” (4) Section 10A above has effect as if for the definition of “responsible person” in subsection (7) there were substituted a definition specified by regulations under section 13(4)(b) of the Charities Act 2006 (regulations prescribing principal regulators). (5) Regulations under section 13(4)(b) of that Act may also make such amendments or other modifications of any enactment as the Secretary of State considers appropriate for securing that any disclosure provisions that would otherwise apply in relation to the principal regulator of an exempt charity do not apply in relation to that body or person in its or his capacity as principal regulator. (6) In subsection (5) above “disclosure provisions” means provisions having effect for authorising, or otherwise in connection with, the disclosure of information by or to the principal regulator concerned. 10C Disclosure of information: supplementary (1) In sections 10 and 10A above “relevant public authority” means— (a) any government department (including a Northern Ireland department), (b) any local authority, (c) any constable, and (d) any other body or person discharging functions of a public nature (including a body or person discharging regulatory functions in relation to any description of activities). (2) In section 10A above “relevant public authority” also includes any body or person within subsection (1)(d) above in a country or territory outside the United Kingdom. (3) In sections 10 to 10B above and this section—“enactment” has the same meaning as in the Charities Act 2006; “Revenue and Customs information” means information held as mentioned in section 18(1) of the Commissioners for Revenue and Customs Act 2005. (4) Nothing in sections 10 and 10A above (or in those sections as applied by section 10B(1) to (4) above) authorises the making of a disclosure which—(a) contravenes the Data Protection Act 1998, or (b) is prohibited by Part 1 of the Regulation of Investigatory Powers Act 2000.””
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 130.
The amendment provides for an updated information-sharing regime between public authorities and the Charity Commission, building on that already contained in Section 10 of the Charities Act 1993. It includes specific provisions relating to the exchange of Commissioners for Revenue and Customs information, tightening up that particular regime.
Under the current arrangements in Section 10 of the Charities Act 1993, certain Revenue and Customs information may be disclosed to the Charity Commission. The commission may onwardly disclose that information unless the Commissioners for Revenue and Customs have expressly restricted it.
The Commissioners for Revenue and Customs have a modernised information-sharing provision in Section 18 of the Commissioners for Revenue and Customs Act 2005 and are now seeking to modernise their information gateways with other bodies. For example, they have recently established a new information gateway similar to that set out in this amendment with the Office of the Scottish Charity Regulator. Their premise now is that information gateways relating to the exchange of Revenue and Customs information should contain an automatic restriction against onward disclosure of Revenue and Customs information. HMRC must consent to any onward disclosure of that information. That is one of the changes that this amendment will make to the gateway for Revenue and Customs information with the Charity Commission.
The Commissioners for Revenue and CustomsAct 2005 also provides for a criminal offence if Revenue and Customs information is unlawfully disclosed by Revenue and Customs personnel. This amendment would extend that offence to unlawful disclosure by Charity Commission personnel.
New Section 10B inserted into the 1993 Act by this amendment extends the Charity Commission’s information-sharing capacity, including that for sharing Revenue and Customs information, to principal regulators of exempt charities in carrying out the role of principal regulator. The provisions in relation to Revenue and Customs information apply in the same way as they do with the Charity Commission; namely, that there would be an automatic restriction against onward disclosure of Revenue and Customs information disclosed to the principal regulator, and that HMRC must consent to any onward disclosure. The offence for unlawful disclosure would also apply.
I should emphasise that the commission, as a government department, will continue to be subject to the provisions of the Data Protection Act 1998, which offers important protections to the public about the handling of personal information.
Moved, That the House do agree with the Commons in their Amendment No. 130.—(Lord Bassam of Brighton.)
My Lords, I know that this is the last amendment for our consideration, but I would like to take the opportunity to raise concerns about the growing number of information gateways between various organisations and public authorities. AmendmentNo. 130 takes this a stage further. Most of what the Minister said referred to HMRC, but of course it has much wider applications than that.
As I read Amendment No. 130, newSection 10A(1)(a) permits the disclosure of information,
“if the disclosure is made for the purpose of enabling or assisting the relevant public authority to discharge any of its functions”.
So far maybe so good, but new Section 10A(1)(b) states that,
“if the information so disclosed is otherwise relevant to the discharge of any of the functions of the relevant public authority”.
The words “otherwise relevant” could cover almost anything. The Government have a great fondness for proposals that could lead to what they describe as “joined-up government”. It is always sensible to encourage the right hand to know what the left hand is doing and I am sure that nobody would support the unwarranted withholding of information from relevant bodies. Indeed, the past situation, where concerns about confidentiality meant that no information was permitted to be divulged, even to the police, obviously needs amending. But people now argue that the pendulum has swung or is swinging too far in the other direction.
These concerns are not unfounded. Many of these new gateways deal with highly confidential or sensitive information. Safeguards must be included to ensure that this information is not misused or treated with less care and attention than it should. Too often disclosure of information is made at a low level by junior staff who have no idea of the importance of the data they are handling and handing over. And, of course, once disclosed, the information cannot be recaptured. Moreover, for the organisation which has been affected by this disclosure, to prove that the disclosure was improper can be very difficult. However useful gateways may be when everyone behaves as they should, we must still guard against the certainty that people will make mistakes, albeit inadvertent mistakes.
To many that may seem like narrow, or even irrelevant, quibbling; it is perhaps hard to imagine this amendment leading to disclosures of sensitive or confidential information. But these questions about gateways need to be raised every time a new gateway is developed or proposed.
We read every day that people are increasingly concerned about the hidden intrusion of closed circuit television on their lives and the threat this may present to our individual freedom. Information gateways can be just as dangerous, with detailed information about people or organisations being passed over without their knowing anything about it, and always with the danger that the recipient may not be as careful with the information as he should be.
I understand that it will be possible in this case for the organisation sharing its information to classify sensitive data as such and to request that it is used only for certain purposes. This seems entirely sensible and probably should apply across the board to all other gateways. Perhaps the Minister could reassure me that I have assessed that correctly and that there will be some way to check that the recipient organisation is following these instructions.
My Lords, the Minister prefaced his remarks by telling us that this provision was about modernisation. That puts one on one’s guard. Of the amendments that we have—certainly in terms of space; three pages and a bit—this is the most substantial.
I have three questions on the amendment. First, in new Section 10 under “Disclosure of information to Commission”, new subsection (2) refers to bodies falling under one or more of the following paragraphs,
“charity … an institution which is established for charitable, benevolent or philanthropic purposes … an institution”—
where tax relief is involved—
“a subsidiary … of a charity”
and a “Scottish Charity Register”.
Why is paragraph (b) there? What does that bring in that is not covered by the word “charity”? Why do we need,
“an institution which is established for”?
My second question relates to new Section 10A. The noble Lord, Lord Hodgson, referred to paragraphs (a) and (b). Having got paragraph (a), why do we need paragraph (b)?
My third question relates to new Section 10C. “Relevant public authority” is defined as,
“any government department … any local authority … any constable, and … any other body or person discharging functions of a public nature”.
How far does that spread? For example, does it include a contractor? It would be helpful if we were clear about what some of these things really mean.
My Lords, I will try to be as helpful as I can on the points raised. Essentially both noble Lords were asking about the distinction between the provisions of new Section 10A(1)(a) and 10A(1)(b). The provisions are considered to have a similar effect to the existing provision in Section 10 of the 1993 Act. That is how we approach this issue. They give the commission the power to disclose information to another relevant body, whether the main purpose in doing so is to assist that body to discharge its functions under new Section 10A(1)(a) or where it is relevant to the other public authority’s function under new Section 10A(1)(b). The second part will enable the commission to disclose information to other public bodies in circumstances where it can assist the commission to discharge its functions.
An example might be when the commission passes information to the police about bogus fundraisers: it may be less concerned with the prevention or detection of crime—the function of the police—than with protecting charity property through the hope that a prosecution will put the people concerned out of business. Another example where new Section 10A (1)(b) might apply would be where the commission passes information to HM Revenue and Customs about failings of a charity’s employee tax administration that it had discovered in the course of an investigation. Of course, the commission may be less concerned with the collection of tax than with the hope that the impact of a Revenue and Customs intervention will promote better charity governance in future.
Amendment No. 130 does not make a lot of radical changes to the exchange of information provisions that have been in place for many years—in particular, as I said, in Section 10 of the Charities Act 1993. Those provisions emerged in the 1980s following abuses of charity tax reliefs for personal gain which, at that stage, were identified by the Inland Revenue. It found that, where abuses were taking place, the organisations or individuals involved would give different explanations and accounts of their actions to the Revenue than to the Charity Commission. There is no surprise there. The introduction of the information-sharing powers enabled a joined-up response to ensure that any abuses of tax relief for personal gain were effectively addressed.
I entirely understand where the noble Lord, Lord Hodgson, is coming from. I appreciate his point about data creep, because that is what it amounts to. That is a theme that he and other noble Lords have referred to many times. The amendments will strengthen and modernise the information-sharing regime. They will enable it to work better and have a more rigorous framework around it, so that the principal regulators can properly fulfil their duties under the Act. It is common knowledge to us all that the Data Protection Act 1998 protections are there. As I said, they include the Charity Commission and the principal regulators of exempt charities. The safeguards contained in that legislation are there to provide protection to the public relating to the handling, storage and disclosure of personal information.
The noble Lord, Lord Hodgson, was also concerned about how staff might handle the issue internally. I fully recognise that; he made an important point. It will be for us to ensure that Charity Commission staff are well trained, understand the import of Data Protection Act protections and are trained in handling these sensitive data. That will be important. We have underlined the seriousness of offences that can be committed by ensuring that we are very clear about the import of those issues. That is why we have specifically created offences relating to the unlawful onward disclosure of Revenue and Customs information. As I explained earlier, that is consistent with the offence of unlawful disclosure in Section 19 of the Commissioners for Revenue and Customs Act 2005, which applies to Revenue and Customs staff.
That is my explanation of what we seek to achieve. I think that I have covered the main points about which noble Lords were concerned. If I have not, I am more than happy to write with further, better particulars—
My Lords, the noble Lord says that it is too late. I cannot see that he will oppose the amendment, but it is important that people are satisfied and that we put things sufficiently on the record and in the public domain to provide the measure of reassurance that is sought.
On Question, Motion agreed to.
131: Page 148, line 41, after “was”,”, insert- “(ba) for “they act” substitute “it acts”,”
132: Page 149, line 16, at end insert- “(za) for “they have” substitute “it has”,”
133: Page 156, leave out lines 39 and 40 and insert- “(c) for “the Commissioners so request, be transmitted to them” substitute “the Commission so requests, be transmitted to it”, and”
134: Page 157, line 11, at end insert- “(9) In subsection (8) for “in subsection (3)” substitute “to subsection (3)”.”
135: Page 158, line 9, at end insert “, and (c) for “they may” substitute “it may”.”
136: Page 162, line 10, leave out “19B” and insert “19C”
137: Page 162, line 35, at end insert- “(3A) At the end add “or section 75D”.”
138: Page 164, line 41, at end insert- “(2A) Omit- (a) in the definition of “exempt charity” in subsection (1), the words “(subject to section 24(8) above)”, and (b) subsection (4).”
139: Page 165, line 7, at end insert- “(ba) in the definition of “institution”, after ““institution” insert “means an institution whether incorporated or not, and”.”
140: Page 165, line 11, at end insert- ““the Minister” means the Minister for the Cabinet Office;””
141: Page 165, line 15, at end insert- “169A In section 97(3) (general interpretation) for “Part IV or IX” substitute “Part 4, 7, 8A or 9”.”
142: Page 165, line 15, at end insert- “169B In section 100(3) (extent) for “Section 10” substitute “Sections 10 to 10C”.”
143: Page 169, line 32, at end insert- “Constitutional Reform Act 2005 (c. 4) In Part 3 of Schedule 14 to the Constitutional Reform Act 2005 (the Judicial Appointments Commission: relevant offices etc.) after the entries relating to section 6(5) of the Tribunals and Inquiries Act 1992 insert- “President of the Charity Tribunal Legal member of the Charity Tribunal Ordinary member of the Charity Tribunal Paragraph 1(2) of Schedule 1B to the Charities Act 1993(c. 10)”.” 144: Page 169, line 32, at end insert- “Charities and Trustee Investment (Scotland)Act 2005 (asp 10) The Charities and Trustee Investment (Scotland) Act 2005 has effect subject to the following amendments. In section 36(1) (powers of OSCR in relation to English and Welsh charities)- (a) for “Charity Commissioners for England and Wales inform” substitute “Charity Commission for England and Wales informs”, (b) for “under section 3” substitute “in accordance with section 3A”, and (c) for “section 3(5) of that Act,” substitute “subsection (2) of that section,”. In section 69(2)(d)(i) (persons disqualified from being charity trustees)- (a) at the beginning insert “by the Charity Commission for England and Wales under section 18(2)(i) of the Charities Act 1993 or”, and (b) for “under section 18(2)(i) of the CharitiesAct 1993 (c. 10),” substitute “, whether under section 18(2)(i) of that Act or under”.”
145: Page 169, line 32, at end insert- “Equality Act 2006 (c. 3) (1) The Equality Act 2006 has effect subject to the following amendments. (2) In section 58(2) (charities relating to religion or belief)- (a) for “Charity Commissioners for England and Wales” substitute “Charity Commission”, and (b) for “the Commissioners” substitute “the Commission”. (3) In section 79(1)(a) (interpretation) after “given by” insert “section 1(1) of”.”
146: Schedule 9, page 170, line 5, at beginning insert- “Police, Factories, &c. (Miscellaneous Provisions) Act 1916 (c. 31) In section 5(1), in paragraph (b) of the proviso, the words from “, and no representation” onwards.” 147: Page 170, line 18, column 2, at end insert- “In section 79, in subsection (6) the words “(subject to subsection (7))”, and subsection (7).” 148: Page 170, line 20, column 2, at end insert- “In Schedule 7, the entry relating to the Police, Factories, &c. (Miscellaneous Provisions) Act 1916(c. 31).” 149: Page 170, leave out line 29
150: Page 171, line 6, leave out “paragraphs (x) and (zb)” and insert “paragraph (x)”
151: Schedule 10, page 173, line 21, leave out paragraph 12 and insert- “12 The amendment made by section does not affect the payment of remuneration or provision of services in accordance with an agreement made before the day on which that section comes into force.”