House of Lords
Wednesday, 7 February 2007.
The House met at three o’clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of London): the LORD SPEAKER on the Woolsack.
Armed Forces: Accommodation
My Lords, I am sure that the whole House will wish to join me in offering our sincere condolences to the family and friends of Second Lieutenant Bracho-Cooke, who was killed in Iraq on Monday.
In each of the past two financial years, around £500 million has been spent on the maintenance and improvement of service accommodation. In the next decade, we plan to spend a total of more than £5 billion on the defence estate. Even so, we recognise that much still needs to be done to meet the needs of our service men and women and their families.
My Lords, I thank the noble Baroness for that helpful and fairly positive reply, albeit invoking some concern over what has happened hitherto. Does she agree that the root of the problem lay 10 years ago when the Ministry of Defence, under excessive Treasury pressure, forced through a daft plan to sell off and lease back a large part of the defence estate and hand over its upkeep to an impersonal and progressively underfunded agency, which, as a result, manifestly performed less effectively than the chain of command used to do? As this has not been corrected, can the Minister assure the House that when sufficient funds are produced to carry out the improvements and modernisations, which she has more or less promised as necessary, these will be ring-fenced? Otherwise, they will be vulnerable to the inevitable cash squeezes that invariably hit first the administrative tail, and the present lamentable and totally unacceptable state of affairs will merely linger on.
My Lords, I say to the noble and gallant Lord, Lord Bramall, that we are concerned. We ask a great deal of our service men and women. It is right that they should expect the very highest standard of accommodation when they come back from various theatres and, of course, while their families remain in that accommodation. We have spent and are spending more than £1.3 billion on modern, en-suite, single-bed spaces for our service personnel, which is just part of the £5 billion that we plan to spend on service accommodation in the next decade. The noble and gallant Lord talked about the sale to Annington Homes 10 years ago. He is right that that was, in effect, a privatisation measure. It meant that we were tied into a contract that perhaps if we had been in power we might not have made, but we are where we are. We must now make sure that we do our very best by our service personnel.
My Lords, from these Benches we, too, send our condolences to the family of the young officer who was killed. To avoid messages to call centres disappearing into a void, would it be possible for service families to have more direct access to the contractors responsible for correcting problems with their accommodation?
My Lords, I understand the point that the noble Lord is making. When the housing prime contract, to which I am sure he is referring, was set up last year, it had a very inauspicious start. I think that the helpdesk expected something in the order of 800 to 1,000 calls a day, but it got more than 2,500 and did not cope well, to put it mildly. However, firm action has been taken to improve the quality of the service and there is now considerable improvement in the present system. More than 9,000 calls are made to the helpdesk each week, of which 92 per cent are now answered within 30 seconds and 98 per cent are answered within two minutes.
My Lords, Members on these Benches join others in offering our condolences to the family of the second lieutenant so tragically killed on Monday.
The Minister has spoken of £5 billion to be spent over the next decade. That sounds like a lot of money, but many of our soldiers, sailors and airmen will have long since left the services in 10 years’ time. How is this work to be accelerated in the light of the assurances given by the Prime Minister in his speech at Plymouth? Lastly, what proportion of substandard accommodation will be upgraded by that £5 billion?
My Lords, on 11 January the Prime Minister spoke about introducing the second phase of the modernisation of accommodation for single service men and women. As I explained earlier, we have spent around £1.5 billion during the first phase on modern, en-suite, single-bed accommodation. As we know, people’s expectations increase all the time. Whereas sharing a room with four or eight people was considered acceptable 10 or 20 years ago, today young service people want their own rooms and en-suite facilities. The Prime Minister has already indicated that there will be a substantial second phase for that.
My Lords, at present 59 per cent of married quarters meet the highest of the four rates, which as the noble and gallant Lord knows represents a very exacting standard. We hope that the figure will go up to 64 per cent over the next three years, rising into the future.
Monetary Policy Committee
My Lords, the Chancellor will send his updated remits to the Governor of the Bank of England in March, as he does every year. Since the Bank of England was made independent in 1997, the United Kingdom has enjoyed unprecedented macroeconomic stability and a period of unbroken growth unparalleled by any other G7 economy.
My Lords, my noble friend is right to congratulate, as do we all, the Monetary Policy Committee on having maintained a low rate of inflation as per the targets for the past 10 years. However, I am sure that he is aware that, in addition to inflation, the committee is also required under the Bank of England Act 1998 to consider and support the Government’s economic objectives of high and stable levels of growth and employment. A former member of the Monetary Policy Committee recently told me that neither the Governor nor the MPC has ever considered the second requirement. So will my noble friend ask the Chancellor of the Exchequer, before he moves on, to consider sending at least a reminder to the Governor and the MPC that they should take proper account of the Government’s other requirement?
My Lords, I am somewhat surprised by my noble friend’s source on this. The minutes of the Monetary Policy Committee clearly indicate that the MPC attaches great importance to the growth of the gross domestic product and to labour market conditions. The Chancellor, in his letter, makes that clear to the committee, and the record stands by itself.
My Lords, is not the lesson of 2006 that the MPC should keep its concentration fixed on its anti-inflationary remit rather than letting itself be distracted too much by other concerns about the state of the economy or economic management? Is it not the case that as long as the MPC maintains its predictability and its credibility on inflation, we are thereby likely to have lower interest rates and faster domestic economic growth?
My Lords, I am grateful to my second noble friend for producing the justified balance that we always expect from the government Back Benches on this issue. On growth and employment, I want to emphasise and reinforce what he has just said: the issue is the inflation target. The Bank is all too well aware of the sanctions under the Bank of England Act 1998 if it fails to hit the inflation target. If inflation goes over the target by more than 1 per cent, the Bank will have to explain itself. That will be the main driver of its business.
My Lords, at the end of 2003 the Chancellor decided to change the measure from RPIX to CPI. Since then, the CPI measure has doubled and is now 1 per cent above its target. Do the Government believe that that was a wise decision? Do they believe that it has had any impact at all on wage settlements?
My Lords, we think that it was a wise decision for the obvious reason that it clearly enables us to directly use international comparators, which is of great importance. Even with the limited rise in United Kingdom interest rates in recent months, we are still well below the international average. The vast majority of central banks have been obliged in recent months to increase interest rates as a result of the obvious factor of high oil, gas and food prices. We use the index as a credible indicator for our major macroeconomic decisions, and wage bargainers of course have recourse to it.
My Lords, does my noble friend agree that there is a direct correlation between credibility, both at home and abroad, and government interference, and that the decision that the Government made immediately on coming to office in 1997 has been the foundation of much of the clear economic success?
My Lords, it is time to hear from the Lib Dems.
My Lords, I suspect that even the noble Lord, Lord Barnett, will have doubts whether the Monetary Policy Committee will change its procedures given that the current remit has operated for nearly 10 years. However, the MPC’s procedures are deficient in the method of appointment provided for. Will the Minister recommend to his colleague the Chancellor that future appointments to the MPC should be made openly and transparently, rather than in a late-night telephone call from the Chancellor asking some poor, unsuspecting economist to make up his mind by the following morning?
My Lords, I am somewhat confused. What do the Government think the Monetary Policy Committee is doing? Is it concentrating solely on inflation and the inflation target, as the noble Lord, Lord Howarth, suggested, or is it doing what the noble Lord, Lord Barnett, has suggested it should be doing and looking at more than one area? I think that the noble Lord, Lord Howarth, is right. What do the Government think is going on?
My Lords, the answer to that question is straightforward. The major obligation on the Monetary Policy Committee is clearly detailed in the Bank of England Act, and the Chancellor’s remit stays scrupulously close to that. The committee has a major objective on inflation. That does not alter the fact that it is all too well aware that its deliberations and decisions have an impact on the wider macro-economy. The Chancellor and others point out to it the necessity of taking the issue in the round—and that is broadly what my noble friends succeeded in doing with their two contrasting but exceedingly helpful questions.
Parliament: Deployment of British Forces Overseas
My Lords, the Government addressed this point in the House of Commons on 8 January. The position was also made clear in the Government’s response to this House’s Constitution Committee’s report Waging War: Parliament’s Role and Responsibility. The Government continue to listen to views about prerogative powers to deploy the Armed Forces and to keep their policies under review.
My Lords, I thank the noble and learned Lord the Lord Chancellor for that reply. As he said, the Select Committee on the Constitution, of which I have the honour to be a member, published a report last July that recommended that there should be a parliamentary convention determining Parliament’s role in making decisions to deploy force outside the United Kingdom to war. The Government, in their very brief response, said that they were not presently persuaded of the case for establishing a new convention determining the role of Parliament in the deployment of the Armed Forces but would keep the matter under review. The Leader of the Opposition, the Leader of the Liberal Democrats, the Chancellor of the Exchequer and the Leader of the House of Commons have made public comments sympathetic to the view of the Select Committee. Moreover, we shall shortly—
My Lords, I am coming to the question. We shall shortly be debating the future composition of this House and its role. There is a strong chance that in future there will be a difference of view between the two Houses. In view of the public interest in this matter, will the noble and learned Lord the Lord Chancellor undertake to facilitate a debate on the Select Committee’s report in this House at an early date?
Unfortunately, my Lords, I cannot make any offers of debates on such issues. The committee’s report, to which the noble Lord, Lord Goodlad, referred, was an excellent contribution to the debate. The issue is difficult. The question is: should the Executive still formally have the power to wage war? Everyone accepts that it is inconceivable in the current climate that any Government would ever go to war without first having the support of Parliament. I suspect that the issue, although defined as a matter of principle, does not have much practical impact.
My Lords, since there were no parliamentary Motions supporting armed intervention in Sierra Leone and Kosovo, is it not clear that the supposed constitutional convention that Parliament will be asked afterwards is a fragile protection against a Government committing British forces to armed conflict without the wholehearted support of the British people? Should the prerogative powers not be based on constitutional statute?
My Lords, it was clear that the Constitution Committee rejected the idea of any sort of statute in this area because that would be inflexible. It would have been perfectly possible at any stage for Parliament to intervene and say it did not support either of the interventions in Kosovo and Sierra Leone. It did not.
My Lords, I do not know whether the noble and learned Lord has had the chance to read the Private Member’s Bill that I produced on this subject, but does he agree that it would be possible to have a statute that provided that we should not wage war without parliamentary approval, but that also had flexibility built into it for cases of emergency? What is the objection in principle to placing this part of the prerogative under the control of Parliament with built-in flexibility, rather than relying upon a rubbery, elastic, probably non-existent convention?
My Lords, the committee gave two reasons. First, you could not, by a framework in a statute, build in sufficient flexibility. Secondly, and separately, there was no enforceability of such a provision. In those circumstances, the Constitution Committee took the strong view, despite the fact that its inquiry started off looking at Bills, that an Act of Parliament was not the right way forward. It accepted that flexibility was necessary. On the noble Lord’s first question, I confess that I have not read his Bill.
My Lords, is my noble and learned friend aware that I am a little puzzled about the way this Question is going? My recollection is that, when I was a Member of the other place, I was permitted by the present Prime Minister to vote on the deployment of troops in Iraq, but I was not permitted by the previous Administration, under Mrs Thatcher’s premiership, to vote on the deployment of troops in the south Atlantic. Is that not a very important difference?
My Lords, my noble friend is right about the vote on both issues. On the deployment of troops in the south Atlantic, I anticipate that it is right to say that the then Prime Minister had the full support of the British people. There was no dispute about that so there was no need to have a formal vote on it. There was a vote on the invasion of Iraq, the outcome of which was in favour of going. It demonstrates that flexibility ensures that Parliament can express its view appropriately.
My Lords, the noble and learned Lord has emphasised that the committee was not in favour of this matter being regulated by statute. Why does he ignore the fact that the committee was equally firmly of the view that we could not leave matters as they were and that it had to progress to a properly organised convention? Why is one point relied on and the other totally ignored?
No, there is not a convention already, my Lords. That is what we said in our evidence, and I do not think that people disputed it. It is perfectly possible—indeed, it will invariably happen—that Parliament would debate the going to war by the Executive, but there is no convention about how or when that should happen and what the circumstances would be.
Climate Change: UN Report
My Lords, the report issued by the Intergovernmental Panel on Climate Change is the most comprehensive assessment of the science of climate change to date. It leaves us in no doubt that mankind is affecting the climate system and will continue to do so unless we take urgent international action to reduce emissions. We welcome the report and fully endorse its conclusions.
My Lords, is my noble friend aware that I am impressed, as many Members of this House will be, by his Answer? Is it not right that an unprecedented warning was given that the increased incidence of hurricanes and cyclones is directly related to climate change, which most scientists argue is caused by human activity? How do the Government consider that this dire situation can be cured, and when should we start confronting it?
My Lords, it is a complex issue, but we expect the intensity of cyclones to increase as the world warms. That is the inevitable consequence of the warming process. We believe that by reducing our emissions, we can reduce the risk of the high levels of warming, indicated in the report, and curb the increased intensity of the cyclones. However, we do expect an increased intensity.
My Lords, these United Nations reports do not arise in a vacuum; they are the result of long years of studying. What part did the United Kingdom Government play in the arrival at these conclusions? More importantly, it is agreed that it is essential to get international agreement that all countries should be involved in action to right this particular difficulty. What discussions are the Government involved in to advance that particular point?
My Lords, I cannot give the precise number. Literally thousands of scientists were involved in putting together this report. I understand that some 600 key scientists were involved from 2001 to 2007, the period between the third and fourth report, but with several thousand more peer- reviewing the work of those scientists to come to the unanimous report that was produced. I cannot say how many of those were British, but there is a contribution from this country.
As for the international action, we are required under the international agreements—the Kyoto agreement and others—to produce a climate change programme, which we did last March. There are ongoing discussions around the world at various times. This is a further scientific assessment of where we have got to, in some ways complementing the Stern report, which concentrated more on the economics.
My Lords, are the British Government one of those who signed up to the agreement in Paris last week that the United Nations structures needed to be strengthened when dealing with the environment and that there needed to be an agency or organisation more powerful than the environment programme of the UN to handle this issue? If they did subscribe to that view, what are they going to do about it?
My Lords, I am sorry, but I do not have an answer to the noble Lord’s specific question. The point is that we have welcomed the report and fully endorsed its conclusions at its publication last week. I shall have to take further advice on the detail of the other part of the noble Lord’s question.
My Lords, is the Minister aware that the press conference in Paris last week given by United Nations bureaucrats in this area bore very little relation to the careful conclusions of the scientists themselves as manifested in the report, which is there in summary form for policy makers and anybody else to read? What the scientists say—
My Lords, is the Minister aware that what the scientists say does not determine what is sensible economic policy? That is the big question in this area. Finally, may I congratulate the Government on their insincerity on this issue, in making it quite clear by their actions that they do not actually mean what they say about this?
My Lords, the noble Lord himself was present at a counter-report by the Fraser Institute which, according to Wikipedia, is a reactionary conservative think-tank based in Canada. That report, published yesterday, which the noble Lord endorsed, misrepresents the international panel’s conclusions, selectively quotes from the report and distorts the evidence by presenting it out of context without any recognition whatever of the full breadth of the analysis. I can give examples to back up every one of those assertions if required.
My Lords, one area that the Paris meeting emphasised was the warming of the oceans and the accelerating rise of sea levels. When will the Government start to put together and present a strategy to the House on adaptation, especially in relation to sea defences, particularly given the fact that we have extreme weather events? However successful we are in reducing emissions, we will have rising sea levels for several years to come.
My Lords, indeed we are, and an awful lot of work is being done by CEFAS, the laboratory agency of Defra, on rising sea levels to know where to place defences so that they can be effective. It is not necessarily the case that all sea defences can be effective. There is evidence in the report published last week showing potential rises in sea levels that are going to cause catastrophic problems for people around the world. Those problems are not just for one Government to deal with; they are intergovernmental. There will clearly have to be sea defences as well as organised movements of population.
My Lords, on that point, have the Government taken into account what the Stern report and this international panel of experts have said about the danger of tidal surges—not least the consequences for London, the public transportation system in London and the Thames barrier?
My Lords, I am not au fait with updates on the Thames barrier, but it has probably been used a lot more than was planned. Work is in hand longer term on reinforcing the Thames barrier because, on the evidence of the Stern report and the report issued last week, it will not do the job that will need to be done. The position is much more serious now.
My Lords, with the leave of the House, my noble and learned friend the Lord Chancellor will imminently repeat a Statement on the White Paper. For this Statement only—this is without precedent—the usual channels have agreed that the noble Lord, Lord Williamson of Horton, should have the opportunity to speak within the initial 20-minute period set aside for the Front Benches, along with the noble Lords, Lord Strathclyde and Lord McNally. As usual, there will then be another 20 minutes for noble Lords from all sides of the House to put questions. As far as I can judge, there are no losers there.
I remind the House that the Companion makes it clear that the 20-minute question period should be for questions. Obviously, the shorter the questions are kept, the more answers that can be. I reassure the House that we shall no doubt find time to return to this subject.
House of Lords: Reform
My Lords, with the leave of the House, I shall now repeat a Statement made earlier today by my right honourable friend the Leader of the other place. The Statement is as follows:
“Mr Speaker, with permission, I should like to make a Statement on reform of the House of Lords. Accompanying this Statement is a detailed White Paper, The House of Lords: Reform (CM 7072), available in the Vote Office. The White Paper has been informed by the excellent report of the Joint Committee on Conventions, which the other place and this House debated and approved on 16 and 17 January respectively.
“The White Paper’s publication follows nine months’ intensive discussion within government and with the other parties. I have chaired cross-party talks—the first such government-led talks to be held for nearly 40 years. The cross-party group has met eight times since June. I am very grateful to those on the group for their work and constructive approach to this complex issue.
“The starting point for the cross-party talks was that each of the three main parties was committed by its 2005 manifesto to seeking reform of the Lords. My party, as well as pledging, without qualification, to remove ‘the remaining hereditary peers’, said that a,
‘reformed upper chamber must be effective, legitimate and more representative without challenging the primacy of the House of Commons’.
The Conservatives promised,
‘to seek a cross-party consensus for a substantially elected House of Lords’,
and the Liberal Democrats to replace the Lords with a,
‘predominantly elected second chamber’.
“In the cross-party talks, a significant degree of consensus has been found on several, but not all, of the important issues. Where the Government do not agree with the Opposition or the Liberal Democrats, they have done their best in the White Paper accurately to reflect the areas of disagreement.
“All members of the group were of one mind on the fundamental primacy of the Commons, and that the House of Lords should be a complement to the Commons, not a rival to it. There was agreement that a reformed House should be partly appointed, partly elected—hybrid—consisting of at least 20 per cent non-party-political members, and that it was essential that no political party should have a majority of the whole House of Lords; that membership of the reformed House should reflect the diversity of the United Kingdom and its people, and the range of religious opinion in the country; and that the special arrangements for membership of the upper House of a limited number of hereditary Peers should come to an end.
“The group decided that introducing reform over a long transitional period would be essential. But with opinion divided in all three parties, and each committed to a free vote, we did not come to a view on the proportion of elected and appointed members, nor on the precise method and timing of any elections, although all parties agreed that any elected element should be by a form of direct election.
“It is palpable that Lords reform has been unfinished business for at least 100 years. This is not a criticism of the work of the members of the other place, many of whom give great service and the nation the benefit of their expertise and experience. But it is our judgment, shared by the other parties as their manifestos show, that the status quo is no longer an option. But moving forward is difficult. Great passions on this issue are aroused in both Houses and in all parties. Given this, the White Paper is self-evidently and unapologetically a compromise, both in terms of destination and transition. I believe that the choice we have is either making progress on a scale and to a timescale of the kind indicated in the White Paper, or seeing the whole exercise aborted altogether, in which case there would be no further progress on this for a generation.
“Time and time again, fundamental reform of the House of Lords has failed because, for some, the best has become the enemy of the good. Deadlock this time round would be easy to achieve; the prize of progress means moving forward gradually and by consensus.
“The basis for a consensus on a hybrid House already exists. All recent inquiries into the future of the Lords—including those by the Royal Commission chaired by the noble Lord, Lord Wakeham, the Public Administration Select Committee chaired by my honourable friend the Member for Cannock Chase, and the cross-party ‘breaking the deadlock’ group—have come to this conclusion.
“The Government have used the White Paper to illustrate how a hybrid House might work, using a model—it is a model—where 50 per cent of the House is elected and 50 per cent is appointed, with 30 per cent from the political parties and 20 per cent with no party-political affiliation. This model, in my view, provides the most effective balance between election and appointment in a reformed House. There are myriad other views, and the free vote, including by Ministers, will enable those views properly to be expressed.
“The White Paper proposes that the size of the House should be reduced to 540 Members. Elections would be held at the same time as elections to the European Parliament and would use the same constituencies, but on a different electoral system—that of the partially open list. One third would be elected at each election. The Church of England Bishops would continue to be represented.
“Should Parliament opt for a system in which appointments to the second Chamber continue, all appointments would be made by a new statutory appointments commission, assessing both suitability as well as propriety. The commission would be independent and report directly to Parliament. The right of the Prime Minister of the day to make appointments would end.
“The proposals in the White Paper would also break the link between the peerage and seats in Parliament. Members, including current Members, would be able to resign their seats. Disqualification provisions for any Member of the Lords convicted of an offence would be brought into line with those in the Commons. All Members would be able to vote in general elections.
“The position of Peers currently sitting in the House has been an important consideration. We propose that no existing life Peer will be forced to leave.
“Let me now turn to the procedure that the Government propose for the free vote in this House. The whole House will recall that when the free votes took place four years ago, there were eight options before it: five of them—from abolition, to 100 per cent appointed, to 100 per cent elected—were put to Divisions. Every single option was voted down.
“One system of voting in this House is well tried and works to give a clear-cut decision on any straight ‘yes-no’ choice. It is plainly essential when it comes to determining the content of law. But this system is no good—it does not work—for indicating preferences; in mathematical terms, a binary system is not designed to elicit preferences and cannot do this job properly.
“Instead, the system that the Government are proposing is specifically designed to enable those voting in this House to come to a decision on this issue. Members will be invited to rank preferences in numerical order and the successful preference will be the one gaining at least half of all votes, after the successive elimination of the least successful choices.
“The Government propose that there should be three substantive votes, with the first two in the normal way: on whether there should be a second Chamber at all, and then on whether there should be any further reform. If and only if a decision is made by the House that there should be a second Chamber and both of these are in the affirmative, the House would then move to an alternative vote on preferences.
“The detailed arrangements for the alternative vote ballot itself would be under the direction of you, Mr Speaker. It is for the other place to decide what procedure it adopts.
“Although the alternative vote procedure is an unusual method of voting, a broadly similar approach has nevertheless been agreed by this House and the other place for choosing the Speaker of each House.
“I am aware—and this will, no doubt, be reflected in the questions—that the doctrine of the dangerous precedent says that nothing should ever be done for the first time. But every one of the traditions that we cherish in this House was once an innovation.
“To allow this House to give proper time to consider this procedure, a resolution to give it effect will be put to the House a week before the substantive debate on composition. It is intended that the debate on composition itself, with the free votes, will last for two days.
“I believe that, following the cross-party talks and the report of the Joint Committee on Conventions, this White Paper represents the best opportunity to make progress that we have had for many decades. As our manifesto stated, there are many reasons why we should move ahead with reform of the House of Lords: to increase its effectiveness, to make it more representative of the United Kingdom and to increase its legitimacy.
“But there is a wider issue as well, and that is to seek, through this process, to strengthen Parliament by enhancing the way in which the Lords complements the work of the primary Chamber. By doing this, our democracy as a whole would be better served.
“I commend the White Paper to the House”.
My Lords, that concludes the Statement.
My Lords, your Lordships might be forgiven for thinking that they had come to the House this afternoon at last to see the light at the end of the tunnel. Instead, we have been offered a House of 57 varieties. The Government promised consensus but, instead, are giving us a mudge of compromise, which has itself been compromised once again by the Cabinet, no less.
They offer choices but cannot even decide the name of the reformed House, and, when they make a decision, they make the wrong choice. So, while I thank the noble and learned Lord for repeating the Statement, I sympathise with him, for he has a difficult task today. On the one hand, he comes here with unpopular proposals, thought by many to be unnecessary, and, on the other, he offers an undertaking that the present House can stay for life. My response will not surprise the noble and learned Lord. This is a proud House. It does not deserve, and will not brook, another botched attempt at reform.
Whatever we think of the White Paper ideas—I find them still not fully thought through and, frankly, as they are, unacceptable—they mean much more major constitutional upheaval, more far-reaching even than in 1999. With a Government clearly at odds with themselves and thinking it out as they go along, there is not much basis for progress here.
Lords reform is like opening the lid of Pandora’s box: who knows where debate might lead if there is no firm guiding principle behind it? So will the noble and learned Lord answer, just this once, the basic question? Exactly what problem is this package aiming to solve? Is the House too strong or too weak? Is the aim to enable us to defeat all Governments more, with “more legitimacy”, as the noble Baroness, Lady Jay of Paddington, used to say, or what? The White Paper lacks real clarity of purpose or principle.
There is agreement in this House, to which I subscribe, but the only proper basis for major constitutional change is that, first, it should be undertaken only if it strengthens the authority of this House to control the Executive and, secondly, it should be attempted only with consensus across parties and across the two Houses. These proposals, I believe, fail both tests.
In other areas, too, the Statement assumes too much. For example, we have not agreed, and do not agree, that the undertakings given to this House by the noble and learned Lord, Lord Irvine of Lairg, in 1999 that elected hereditary Peers will not be excluded before stage 2 is complete can be set aside just on the basis of a preferential vote in another place. Even to make the suggestions that the White Paper does is deeply dishonourable.
So areas of agreement there may be, but consensus there is not. Indeed, there is not even consensus inside the Cabinet. Confused and divided government can deliver only a confused and divisive reform. So can the noble and learned Lord say how many Cabinet members back these ideas? Has the Chancellor of the Exchequer approved them? And what of the Prime Minister himself? In 2003, he said that,
“a hybrid [House] … is wrong and will not work”.—[Official Report, Commons, 29/1/03; col. 877.]
What made him change his mind? Can the noble and learned Lord explain the thinking about the timing? Why bring this all up now, when there is so much unwelcome police attention to the appointment of life Peers? How can we have a rational discussion about the role of appointed Peers against this background?
Can the noble and learned Lord give us some clearer sense of the time that this House will be allowed to reflect on its own future? Will it be three weeks or three months? Is the aim to have a Bill this Session or next? What would the Government do if the other place voted for election and this House did not? Would it use the Parliament Act and would the divided Cabinet be whipped into unity on that? I know that of course, as the government Chief Whip has just reminded us, we will have an opportunity to debate the White Paper. No Peer should feel under pressure not to contribute. This affects us all, and brings the method of our coming here into the full glare of the public gaze. That may not always be comfortable.
Can the noble and learned Lord tell us what plans the Government have to allow us to debate this new system of preferential voting? It is a major constitutional change in itself, and the House should have time to come to a view. Is it envisaged, for instance, that the process will be used more generally for legislation? It looks, from the papers that I have seen, that another place will need to vote 11 times before coming to a conclusion. Is the same envisaged for your Lordships? The noble and learned Lord proposes that 50 per cent of the House be chosen by party lists, and another 30 per cent selected by party bosses. What kind of a democracy is that?
If there were a firm government proposal for real reform—for example, truly elected political Peers with a 20 per cent balance of independents—we could get on and discuss it. But reform should be real, not a mush of PR and political correctness that is simply appointment by another name. It should be based on constituencies to which people can relate: cities and counties, not huge, remote Euro-regions as the White Paper proposes. Why is it on European election day? If we are to have election, then the terms must be long, non-renewable and with elections staggered. In that, at least, the White Paper is right and follows the reports of my noble friend Lord Wakeham and my noble and learned friend Lord Mackay in some respects.
This House is seen as offering tremendous value: high quality at very low cost. What will the proposed reformed House cost, larger as it will be, as if the public were crying out for more paid politicians? Why is the White Paper so coy on cost? It is costing £50 million to expel 12 Law Lords from this House. How much will the total annual pay for 800 Peers be, and how big the pay-offs? These areas will get intense scrutiny in the media, and the Government must lead on them. The SSRB cannot necessarily be relied on to deliver a sensible or restrained answer.
Our talks over these past few months were constructive, and I thank the noble and learned Lord and Mr Straw for the way in which they conducted them. In particular, I thank them for giving me advance notice of the White Paper and this Statement. I cannot fault them on their courtesy and behaviour in that respect. I, the noble Lord, Lord McNally, the noble Lord, Lord Williamson of Horton, and the right reverend Prelates took part in a constructive spirit. It would have been wrong not to have sought consensus. It was right to attempt it. There is no disgrace in failure, but if the noble and learned Lord assumes assent for this paper, failure it will be.
We are now at the fag-end of a prime ministership. I understand the haste to search for a legacy, but this House is old, with centuries of work done and, please, centuries more to come. Some think that it does not do so bad a job, and cry out for reform not here, but in another place. How disappointing that the White Paper is silent on that.
If the Government try to force this mish-mash through, then our ways will part. These confused plans are not real reform, and risk bringing division and perhaps discredit on us all. The wise thing would be to pause for mature reflection in both Houses and to gather the wisdom of Parliament, treating this plan as the Green Paper that it really is and giving us all time to consider what is and is not in it in far more depth and in a less febrile climate than today’s.
My Lords, it is always a great pleasure to follow the noble Lord, Lord Strathclyde, and it has been a pleasure to be with him on the Joint Committee looking at this matter. Noble Lords will have got the flavour of his approach on this. The Conservative Party has a radical House of Lords reform policy in its manifesto, but the noble Lord must adopt the posture of Blackadder in the series on the First World War; he must talk a good fight without actually wanting to go over the top. The reason is that if at the Dispatch Box he actually expounded Conservative Party policy as in its manifesto, he would feel a terrible tingling between his shoulder blades. I have some sympathy because I am not entirely tingle-free myself.
I welcome this White Paper and pay tribute to how Jack Straw has gone about a difficult task with great integrity and constructiveness. I know that that does not help Jack on those Benches across there, but it is true. I also pay tribute to the noble and learned Lord the Lord Chancellor; it is often forgotten that this process was started on his watch, when he called the parties together to discuss it, and Jack Straw took it over. For my party, the White Paper is a step towards redeeming a 100 year-old commitment, and we look forward to the process. Some clarification is needed. I understand that the Commons will look at it on 27 February and during the week beginning 5 March. It is widely accepted that we should be aware of the Commons’ decision before we have our debates, but it would be interesting to know where that puts us on the calendar.
I note the tribute paid to the Joint Committee on Conventions, on which I, too, sat. It provides a template for the relations between the two Houses in future. I draw the attention of the House to two points about the Joint Committee on Conventions: it drew great attention to the importance of manifesto commitments and to the supremacy of the House of Commons.
As Mr Straw said in his Statement, the three main parties were very close together in their commitments to Lords reform at the election. My party leader, Sir Menzies Campbell, today reaffirmed our commitment to radical reform of this place. I wonder whether the two other party leaders have reconfirmed theirs; it might help some of their followers in the decisions they have to make. If one follows the Joint Committee on Conventions and looks at manifesto commitments and at decisions in the other place, it is inconceivable that this House should be given a veto on Lords reform.
It is often said that the post-1998 House of Lords has done a good job, and I agree. Research by University College London confirms that it has, but there is no doubt that the House is tainted by patronage and that the status quo is not an option. Mr Straw is right to say that what will come forth in the end will be a compromise and that the White Paper gives us an opportunity to move forward. I shall not go into the details of the White Paper because I hope that all Members will use it as their Recess reading. I shall echo a great Liberal statesman from the 20th century in saying that this White Paper is not the end of the debate on Lords reform; it is not even the beginning of the end, but it could be the end of the beginning.
As Mr Straw recognises, a wrecking process would be relatively easy. I only have to look round the House to see some pretty adept wreckers. That kind of unholy alliance would be totally against what is required and against public opinion.
My recommendation to the House is to take this White Paper home, together with the reports of the Wakeham commission and the Joint Committee on Conventions, and come back in a constructive frame of mind. We may go further on this than we imagine.
My Lords, I intervene at this stage because I participated in some of the earlier discussions, and the Statement and White Paper are of manifest importance to the Cross-Bench Peers.
There are four elements underlying all future discussions—and I think that there will be a lot of them. They are: first, the conclusion, referred to by other noble Lords, that the working methods of the House are very satisfactory, as shown by the recent report of the Joint Committee on Conventions; secondly, the increasing public satisfaction with the work of the House and their manifest disinterest in any reform; thirdly, the presence of a small number of hereditary Peers, which could call for a move to a situation where a hereditary title does not alone serve as an entry ticket to this Chamber; and, fourthly, the references in the Labour Party manifesto and the gracious Speech that the Government will work to build a consensus on reform of the House of Lords and bring forward proposals.
We now have before us the White Paper, so we can see how far we can arrive at a consensus on possible changes. The Statement states that,
“the prize of progress means moving forward gradually and by consensus”.
We attach importance to that. These questions have been around for some time—some say, since 1910—and it would be good to decide whether common ground can be found between the two Houses and we can get on with the work of Parliament.
As Convenor of the Cross-Bench Peers, a large group in the House, I want to make one or two points which relate directly to us. First, I welcome the reference in paragraph 8 of the Statement and elsewhere in the White Paper that at least 20 per cent of a reformed House would comprise non-party-political Peers. I interpret that as referring to the independent, non-party-political Peers within the Cross-Bench group. It does not of course include the Bishops, who are Lords Spiritual and not normally considered to be within the group of independent, non-party-political Peers. As takeovers and mergers are the flavour of the month, I hope that the noble and learned Lord the Lord Chancellor will confirm that we do not wish to take over the Bishops.
We wish to refer to other points that refer directly to the Cross-Benchers, but the bedrock of our position is that 20 per cent of the membership should be non-party-political Peers. We believe that we contribute pretty well to the House and that our role must be continued in any reformed House.
Secondly, I welcome the proposal to put the Appointments Commission on a statutory basis. That has not been referred to by the other political parties, but it is an important point. We welcome the substantial non-party-political membership of the reformed Appointments Commission.
Thirdly, I am glad to see the continued lifetime role of the present life Peers, although with a possibility of resignation. We also welcome the assurance in the White Paper, in paragraph 10.24, that any action agreed in relation to hereditary independent Peers will be no less favourable than that for hereditary party-political Peers. The even treatment of the hereditary Peers, wherever they are in the House, is an important point, which we understand is reflected in the White Paper.
It goes without saying that we shall examine carefully the proposed 50 per cent elected membership of the House and the specific arrangements for such election, together with the procedures to be adopted in each House for expressing a view on membership. Will the noble and learned Lord the Lord Chancellor comment on why the Government decided that elections should be timed with the European Parliament’s elections rather than at the same time as the general election? It might be argued that the people should choose their representatives in the two Houses at Parliament at the same time.
My Lords, I thank the noble Lords, Lord Williamson and Lord McNally, for their constructive responses to the White Paper. I intend no discourtesy to the noble Lord, Lord Strathclyde, who, I may say—I take the House into my confidence in this respect—was a delight on the Joint Committee. He was so constructive and keen for reform. I find that there are two Lord Strathclydes: one when he is with me or with the Guardian and one when he is here in the Chamber.
I shall read to you what the Guardian reported the noble Lord had said to someone called Mr Patrick Wintour. Of course, the press often get it wrong, so I am quite sure that it has got this bit wrong.
“Lord Strathclyde also objected to the length of Mr Straw's transition programme, pointing out that it would take two generations to reduce the house to 540. He added that the large appointed element would still leave open the charge of cronyism. He confirmed that the Conservative party would support 80% of the upper house being elected”.
So this wild reformer over here appears to be saying “Too slow and not enough” about an elected element. Indeed, he asked: what is the problem that we are seeking to solve? Presumably, the same problem that the noble Lord is seeking to solve by suggesting 80 per cent reform. As far as I am concerned, the problem that we need to debate is: is it possible to go on in the long term with a House this effective and this good which has such a significant effect on legislation without there being an elected element? That is the question. The White Paper allows a proper debate about it.
I completely agree with the noble Lord, Lord Strathclyde, that no noble Lord should feel inhibited about expressing his or her views in this debate. The last time that we debated the matter, 98 noble Lords spoke on the issue, and I very much hope that there will be a similar number this time. As regards the Parliament Act, let us wait to see whether or not we can build a consensus. The costs will depend on what conclusion Parliament reaches about a new House. As far as a Bill is concerned, obviously that depends on the terms of the coming debate, promised in our manifesto and committed to in both other parties’ manifestos in 2005 as well.
I also support the proposal of the noble Lord, Lord McNally. First, do read the White Paper; it is a very impressive attempt to see whether consensus can be reached. We should attempt to reach consensus with the same enthusiasm that I saw from the noble Lord, Lord Strathclyde.
I confirm to the noble Lord, Lord Williamson, that the 20 per cent element would comprise non-party-political Peers. It does not include a takeover of the Bishops. I do not think that such a takeover would be altogether successful in these circumstances. The noble Lord asked why we should have the elections for this House at the same time as the European elections rather than at the same time as the general election. There are arguments both ways. We have plumped for European elections because we think it right, when people are voting for the Commons, that it should not affect how they vote for the second Chamber, but we recognise that it is a very finely balanced issue.
This is a very important issue, where this House, quite rightly, has a voice that should be heard. I completely respect the views strongly held on both sides of the House. We see the noble Earl, Lord Onslow, and the noble Lord, Lord McNally, together supporting an elected element. We see my noble friends Lady Symons of Vernon Dean and Lord Tomlinson completely against it. Let us have the debate and hope that during it we discover the views of the noble Lord, Lord Strathclyde.
My Lords, I am not completely against an elected element in this House. I am against an elected element that does not have the powers that an electorate will expect of elected Members.
To follow that up, does my noble and learned friend think that this White Paper contains any firm proposals? He will recall paragraph 61 of the Cunningham report, which was endorsed by both Houses and which was, indeed, a matter of resolution in both Houses. It said:
“Should any firm proposals come forward to change the composition of the House of Lords, the conventions between the Houses would have to be examined again”.
If there are firm proposals in this White Paper—I have not had long to read it, but some of them seem pretty firm—can my noble and learned friend say when these issues will be examined again before a decision is taken in another place on how we should proceed? The White Paper refers to “an endorsed option”. Is that a decision? My noble and learned friend said that the White Paper was impressive; it is certainly very remarkable in many respects.
Will my noble and learned friend then turn his attention to the procedure in another place and say whether, in his view, it is possible to vote in another place for reform, as set out perhaps in the Labour Party manifesto, but not thereby tie oneself to voting for the principle of an elected element, on which there was said to be a free vote? Those are two very specific points. I leave the broader principles in the White Paper for another time.
My Lords, I am not sure whether that was an endorsement of the White Paper. On my noble friend’s first question, paragraph 4.17 of the White Paper deals with when the conventions will be considered further. I anticipate that the noble Baroness is referring to the fact that the Joint Committee on Conventions, chaired by my noble friend Lord Cunningham of Felling, said that if there were firm proposals, the conclusions would have to be revisited. I shall read paragraph 4.17, which is very short:
“Once the debates on this White Paper and the free votes have taken place, and in advance of any legislation on reform of the House of Lords, the Government will look in further detail at the issue of the adequacy of the current conventions to ensure the primacy of the Commons in practice, to which all parties are committed”.
Plainly, legislation is the point of decision.
My noble friend asked whether you can be in favour of reform without supporting an elected element. Yes, because you can, for example, be in favour of removing the hereditaries and in favour of a statutory appointments commission.
My Lords, I am very grateful for the assurance given by the noble and learned Lord the Lord Chancellor that no hostile takeover bid is intended, and I am grateful that the right reverend Prelate the Bishop of Chelmsford could be closely involved in the work that has culminated in the White Paper. My question is rather similar to the noble Baroness’s. I see that there will be further discussions with the Bishops, who sit in this House as Lords Spiritual—not, we hope, as defenders of sectarian narrow interests, but as people, often from regions of the United Kingdom that are little represented in this House, who are in touch with a great range of opinions and institutions. There will be further discussion about numbers and the very important question of securing flexibility, so that the Bishops who are most able and willing to participate in the important affairs of the House can do so. How those consultations will mesh with the general progress of these reforming proposals is very important indeed. We will obviously want to hold ourselves ready to respond at the right time.
That said, we particularly welcome the emphasis on including leading members in Britain’s faith communities, who have already made a distinguished contribution to the business of this House. The Lords Spiritual have been making this point for many years. I see a reference to discussions with the Appointments Commission on how to achieve this representation, and I wonder how the noble and learned Lord proposes to consult the other faith communities about this very important dimension of the total culture of this Chamber.
Lastly, on the underlying theme of the legitimacy of this House, how is that really secured in the eyes of the public? No one has quarrel with the concept of the supremacy of another House where election is the norm, but is it not possible to argue more positively and to reiterate that many Members of your Lordships' House have been elected by the system which one might call “continuous assessment” rather than through examination? There are many noble and gallant Lords, noble and learned Lords, noble and therapeutic Lords and noble and prosperous Lords who have stood election by their peers every day of their professional lives. That is a tough scrutiny indeed, so why cannot we underline the legitimacy that comes from such election?
My Lords, on the first point, it was the unanimous view of the parliamentarians who met and discussed the matter that the Bishops should stay. As the right reverend Prelate rightly says, there needs to be further discussion of the number and selection of the Prelates who stay. We envisage that occurring after the votes have been cast in both Chambers.
The inclusion of representatives from other faith communities must be discussed with the Appointments Commission. Plainly, if it becomes a statutory commission, legislation could be significant in determining how that would happen.
I am very attracted to the idea of continuous assessment. Can you fail continuous assessment after a while?
My Lords, will the noble and learned Lord the Lord Chancellor accept that not one sentence of the Statement or the White Paper suggests that the introduction of elected Members of this House will do anything to improve or enhance the performance of this House, to which he once again paid tribute in the Statement today?
Will he also accept that any attempt to force through legislation on the basis that these proposals reflect any kind of consensus, when he must know as well as anyone that the proposals are most unlikely to secure the assent of this House, would be constitutionally unacceptable?
My Lords, I have made it clear in reply to the Front Bench interventions that I believe that the quality of what this House does is very high. In particular, what this House does well is significantly to amend legislation without gridlock and generally without conflict with the other place. However, I do not think it is right that that is done without an elected element, and the question that arises is whether one can introduce an elected element without reducing the quality of what is done. I believe that one can do that while keeping the complementary role of this House.
The debate is intended to identify whether there is sufficient consensus to obtain reform of this House. We know that within individual political parties there is not full agreement, but is there enough agreement across the political parties to reform this House? If there is, we should go ahead.
My Lords, will the noble and learned Lord the Lord Chancellor address the issue of public opinion? Does he share my surprise that the opponents of reform seem completely to ignore evidence of strong public support for reform? Does he not agree that to obtain and retain public consent for the institutions of parliamentary democracy is extremely important? Will he confirm that he has seen the substantial public opinion poll published this morning by the Hansard Society, showing that 82 per cent are in favour of a majority elected membership of this House and only 6 per cent want to retain the fully appointed House? When those who reckon that they understand and appreciate the work that we do are asked, 92 per cent say that they would want an elected element to this House. Does the noble and learned Lord not agree that, were the Labour Government to have 82 per cent, let alone 92 per cent, support for any of their other policies, the Prime Minister would be a much happier man?
My Lords, I am sure that many of our policies have 92 per cent support, though it would be wearisome of me to list them now. And yes, I am aware of the opinion poll. The debate in both Chambers that will reach its climax in terms of composition should also be informed by what the public think should happen. That should be our hope and it should be very much reflected in our debates.
My Lords, I thank my noble and learned friend for repeating the Statement made by my right honourable friend Jack Straw. I can assure him that the fact that it sounded no better on repetition was not a reflection of his reading of it. Jack Straw laid great emphasis in his Statement on reaching a consensus. What consensus does my noble and learned friend believe exists among his noble friends sitting behind him? How does he evaluate the level of support towards that consensus? Secondly, can my noble and learned friend explain the point, in paragraph 18, of a “partially open list” for elections? I have grappled with that concept and it is beyond me, but perhaps he can apply his legal mind to it and explain it. Finally, as there is great emphasis on the need for accountability driving change, can he explain to me how accountability is served by election for a 15-year term with no possibility of seeking re-election?
My Lords, it would be unwise of me to try to estimate how much support for change there is behind me, as my noble friend asks. I know that every one of my noble friends has an open mind and will be very keen to engage in the debate. That is why they are here and why they would pass the continuous assessment that the right reverend Prelate has in mind.
A partially open list means that one can either vote for the party list or vote for someone on the party list. If the votes that the person one votes for individually are high enough—sorry, if the party list gets to a point where someone is elected from that list, if the votes for the individual are that high, he or she gets on rather than the person at the top of the list.
My Lords, I do not think it is comprised of the widest range of views possible. The views represented here are most excellent, but given the geographical, regional, racial and gender breakdown, they most certainly do not reflect the views of this country.
My Lords, the noble and learned Lord the Lord Chancellor referred to the long-term nature of these proposals. How does the White Paper suggest we address a situation, which we have seen in recent years in Turkey and in Italy, where parties have come from nowhere and formed Governments? Such a party could find itself with virtually no Members to support it and no Ministers in this House. Is that addressed in the White Paper? Does the noble and learned Lord agree that, if it is not addressed, it makes the White Paper's proposals inadequate, especially if there had to be a sudden top-up of Members in such an event and one wished to confine the membership of the House to 540?
My Lords, I have to confess that we have not dealt with the problem of a party from nowhere becoming the leading party in the other place. If a party from nowhere did so, the least of the country's difficulties would be what went on in the Lords. We would be looking at the Commons.
My Lords, perhaps I may reassure my noble and learned friend that there is at least one supporter on these Benches who is still very firmly in favour of an elected element in this House. Is he aware that I am very anxious that the Government should proceed on the basis of various Labour party manifestos over the years in which we said that we wanted a predominantly, but not exclusively, elected second Chamber? I welcome the steps that the Government are taking in that direction.
I wonder whether my noble and learned friend can help me on something else. I listened, as I always do, to the noble Lord, Lord Strathclyde, with great interest and some amusement. I listened as I was wondering what Conservative Party policy on this was going to be; but came it not—not a glimmer of what it was. After a curmudgeonly and negative approach, we got: “We should have a period of mature reflection”. We have been reflecting maturely on this since 1910. I can tell the noble Lord, Lord Strathclyde, that even I have been reflecting maturely on it for about 15 years. I do not know how much longer we are expected to go on reflecting maturely on it. The fact is that his mature reflection is designed to be a Conservative veto, and we cannot accept that.
Finally, has my noble and learned friend had any indication from the noble Lord, Lord Strathclyde, that Conservative policy is now to back 80 per cent? At one stage, when we started, their policy was to leave the House as it is. That changed into support for a wholly elected House. That now seems to have changed to an unwholly elected House. It makes no sense to back a wholly appointed House in the name of a wholly elected House which you cannot at this stage get. It makes no sense at all. But that is perhaps not surprising.
My Lords, without sounding too craven, I should like to express my gratitude for the noble Lord’s support. I also agree that it was very difficult to identify the policy of the noble Lord, Lord Strathclyde. He spoke longer than I did in the Statement, but I still could not determine his policy. It is a bit rich for him to complain about a lack of consensus when he cannot even in his own mind reach agreement on his position.
My Lords, speaking perhaps as a Bernard Matthews turkey for a moment, and also, as noble Lords know, as someone in favour of a large chunk of elected power, I welcome parts of the White Paper. It has been timid in proposing only 50 per cent, and disgraceful on the “ajar” list—for want of a better word. It is also a great pity that it has not faced up to the fact that life Peers deserve to be culled just as much as hereditary Peers. I know that if that was suggested, they would behave like shop stewards of the Liverpool dock labour scheme, because I have seen it already. When the hereditary Peers were pushed out, my noble friend Lord Ferrers pointed out that it would be the turn of the life Peers next, but they all said, “Oh no it isn’t”. The Government have ducked the issue. There must be a proper limit on the number of Members. That is why I say, even though I know that I am in a minority on this issue in this House—
My Lords, can my noble and learned friend confirm that in responding to the White Paper he recognises that two of the proposals on which we have been working for some months—the statutory appointments commission and removal of the hereditary principle—are not the same as the status quo? Those are neither insignificant reforms nor reforms that would challenge the principle of the primacy of the House of Commons—unlike the 50:50 approach which, as my noble friend Lady Symons said, would almost certainly create a very difficult problem.
My Lords, I agree entirely with the first part of my noble friend’s statement. If you introduced a statutory appointments commission and put an end to the remaining hereditary Peers staying here, it would be a significant change. The question is whether one should go further.
Justice and Security (Northern Ireland) Bill
Brought from the Commons; read a first time, and ordered to be printed.
rose to move, That the first report from the Select Committee be agreed to, except for paragraph 8 (HL Paper 15).
The noble Lord said: My Lords, I should explain briefly why we wish to leave out paragraph 8 of the first report. This paragraph deals with the scrutiny of regulatory reform orders and followed proposals on the issue from the Government. It has, however, been overtaken by a report from the Commons Select Committee on Regulatory Reform, which recommended something slightly different. The Government have agreed with that committee. The matter will therefore come back to the House once the Commons’ position is clear. I beg to move.
Moved, That the first report from the Select Committee be agreed to, except for paragraph 8 (HL Paper 15).—(The Chairman of Committees.)
On Question, Motion agreed to.
rose to move, That the second report from the Select Committee be agreed to (HL Paper 25).
The noble Lord said: My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the second report from the Select Committee be agreed to (HL Paper 25). —(The Chairman of Committees.)
Serious Crime Bill [HL]
My Lords, before I do anything else, I must offer my abject apology. I was listening to my noble and learned friend, but I came downstairs to find that the debate had ended. I am deeply sorry to have kept the House waiting even for one second.
I beg to move that this Bill be now read a second time. This Bill is important and significant. It gives us a major opportunity to address a number of serious issues. In moving that the Serious Crime Bill be given a Second Reading, I want to emphasise the difficulties with which, as your Lordships will be aware, we deal every day. Teenage girls are taken from their homes in eastern Europe and trafficked into the UK for the purpose of forcing them into prostitution, while drugs such as heroin and crack cocaine make their way on to our streets, destroying lives and communities and causing harm that costs more than £15 billion a year. Criminals are living comfortably off the proceeds of all these crimes. These issues are what this Bill is about.
As my right honourable friend the Home Secretary has made clear, the Home Office is committed first and foremost to ensuring the safety and security of the citizens of the United Kingdom. We are bringing forward a legislative programme with this principle at its heart, and an essential part of that is the Bill now before noble Lords. Its measures will help law enforcement agencies to prevent and, we hope, reduce such harm, take away the profits made from the suffering of those trafficked for sex or addicted to drugs, and put a stop to the types of fraud that cost the taxpayers of this country billions of pounds.
The Bill results largely from a consultation on the Green Paper, New Powers Against Organised and Financial Crime, published last July. We received a broad range of responses, the majority of which were supportive of the policy ideas set out. We have listened to the comments made and I and my ministerial colleagues have met a range of stakeholders and interested parties—including, for example, the Information Commissioner, Liberty and the Law Society—to listen to their views and to ensure that the need to protect us all is balanced with appropriate safeguards.
Developing on the Green Paper, the Bill sets out four key areas where we felt that improvements could be made: the creation of a new civil order, to be targeted at those involved in serious crime and designed to prevent their involvement in serious crime in the future; taking forward the work undertaken by the Law Commission on the law in relation to encouraging or assisting crime; improving the prevention of fraud through the sharing of data across both the public and private sectors; and, finally, improving the current regime for recovering the proceeds of crime.
A key area contained in the Bill but which was not contained in the consultation paper is the provision to merge the Assets Recovery Agency with the Serious Organised Crime Agency. This is being done to maximise the skills and expertise of both agencies in going after the profits of criminals.
An additional area for which the Bill makes provision but which was not included in the Green Paper is an extension of the surveillance powers available to Her Majesty’s Revenue and Customs, which are currently available only for tackling serious crime relating to ex-Customs and Excise matters, to serious crime relating to ex-Inland Revenue matters as well. This is necessary to address emerging patterns of criminality targeting the direct taxation system. These proposals take further the new approach to tackling organised crime first outlined in the 2004 White Paper, One Step Ahead.
While the provisions in the Bill are targeted at different elements of serious criminality, they have common features. First, they reflect a commitment to reducing the harm caused by serious crime. Rather than focusing on particular outputs such as prosecutions or seizures, they focus on preventing crime wherever possible. Secondly, they reflect careful work with law enforcement practitioners, identifying the key gaps in the current system and giving them the tools that they need for the job while ensuring that these tools are truly necessary and, most important, proportionate.
I will take your Lordships through these measures a little more comprehensively and provide some clarification in certain areas that seem initially to have caused some confusion and mistaken reporting in the media. I hope that your Lordships will feel content after these matters are explored more fully.
Part 1 of the Bill creates the serious crime prevention orders, the SCPOs. These are aimed at the prevention of the kinds of crimes that I mentioned at the outset. The people who commit crimes of this nature are often very skilled, very intelligent and very adept at adapting their processes. In short, they are not stupid and will try to distance themselves from criminality while still raking in the profits. They will often coerce those weaker than themselves into taking risks and they will constantly seek to find new ways of making money while avoiding detection by law enforcement agencies.
The Government must be similarly flexible and innovative in providing new law enforcement tools that will help to prevent this. As a result, we are proposing the creation of the orders that I am about to explore with your Lordships. These will add another string to the bow of law enforcement agencies which is flexible enough to prevent those involved in serious crime from carrying on, but which can only be granted by the courts where it is reasonable and proportionate to do so.
Perhaps I can reassure your Lordships on a few elements of the orders. First, these orders will be able to be applied for only by the three applicant authorities set out in the Bill: the Director of Public Prosecutions, including the Director of Public Prosecutions for Northern Ireland; the director of the Serious Fraud Office; and the director of Revenue and Customs prosecutions. This reflects the fact that the orders will be sought only where appropriate and in a targeted way as a result of specific investigations by law enforcement agencies into serious criminal activity.
I make it clear that serious crime prevention orders are not simply a soft alternative to prosecution. The Government are committed to ensuring that those who commit serious crimes are caught, brought to justice and punished appropriately. It is highly significant that the applicant authorities also have the responsibility for deciding whether it would be appropriate in a particular circumstance to bring a prosecution. The principle behind the orders, though, is that there will be times when it is possible, through the imposition of reasonable restrictions or obligations, to prevent those involved in serious crime from committing further acts that will bring harm to others. Prevention is a key issue that we seek to address in these provisions.
Secondly, I know that in the press coverage of the publication of the Bill there has been much mistaken comment about these orders being a way for law enforcement agencies to get around troublesome prosecutions. I assure the House that that is not the intention. When deciding whether to make an order, the courts will apply a two-part test. First, there is a backward-looking element, in that it relates to a person’s previous behaviour. The court will have to be satisfied that a person has been involved in serious crime, which will be the case if they have committed a serious offence, facilitated the commission of a serious offence by someone else or acted in a way that was likely to facilitate the commission of a serious offence, either by themselves or someone else.
These are civil orders, so this involvement will have to be proved to a civil standard. But I know that many of your Lordships will be only too aware—so I hope that noble Lords will forgive me if I emphasise it—that where serious assertions are made, the civil standard can be virtually the same on certain issues as the criminal standard. Recent case law has stated clearly that in proceedings like these the court will look at the civil standard as a sliding scale, with the likely standard of proof for these orders being very close to the criminal standard of “beyond reasonable doubt”.
My Lords, the noble Lord knows as well as I do that the reason it will not have to appear in the Bill is that the jurisprudence, which has certainly been well established for as long as I have been at the Bar and, I would hazard a guess, even as long as he has, tends to emphasise that point. The sliding scale has been with us for a very long time. The most recent authorities, however, particularly in relation to these issues, have driven that point home. The court has said on a number of occasions that that is the case.
These orders are not about punishing people without proof; they are not punitive. Rather, they are proposed to be preventive. They are a means of prevention based on our most senior judiciary, sitting in the High Court, being satisfied of the person’s involvement, or likely involvement, in serious crime. If an order is to be imposed by the Crown Court, it must be based on a criminal conviction.
The second part of the test is forward-looking, in that it provides that the court must have reasonable grounds to believe that the terms of the order will prevent, restrict or disrupt involvement by the subject of the order in serious crime. Not only does that test have to be met before an order will be granted, but, in deciding what these terms should be, the court, as a public authority for the purposes of the Human Rights Act, will have to ensure that any term of an order is compatible with the convention rights.
Thirdly, the Bill provides for numerous safeguards, most notably in relation to third parties who might be affected by the terms of the order. We have included comprehensive rights to make representations at proceedings when the granting of an order is considered, rights to apply for the variation or discharge of an order at a later stage, and rights to appeal. I believe that the provisions of the Bill are such that third parties will not be unreasonably affected by the terms of an order.
Finally, we have taken much care to ensure that, where an order is sought against an organisation such as a company, the impact on legitimate business will be minimal. In the same way as for all other third parties, the applicant authority will have to bring the potential impact on third parties, such as business customers, to the court’s attention when they are considering the imposition of an order. I believe that these orders will provide a balanced approach to helping to deal with the very real harm caused by serious criminals to the communities in which we live. I look forward to discussing them in detail in Committee.
The second main policy plank of the Bill is concerned with plugging a gap in the criminal law identified by the Law Commission, whereby a person currently incurs no criminal liability if he assists another to commit an offence that is not in fact committed, whereas he will incur liability if he gives encouragement in this situation. That is especially important with regard to serious crime, where we might be talking about supplying a car for the purpose of an aborted armed robbery, but it also applies across the whole of the criminal law.
In implementing the very sensible changes suggested by the Law Commission, we will ensure that those who assist or encourage offences are held accountable for their actions regardless of whether an offence is actually committed or attempted. The offences are: encouraging or assisting an offence with intent; encouraging or assisting an offence, believing that an offence will happen; and encouraging or assisting a number of offences, believing that one or more offences will happen but without being sure as to which.
In drafting these offences, we have taken into consideration the responses that we received to the consultation paper and the continued engagement with stakeholders. As a result, we are proposing some limited changes to the Law Commission’s recommendations. The Law Commission has confirmed that it is content with these changes and I hope that the provisions will meet with your Lordships’ approval. I take this opportunity to thank the Law Commission for the hard work that it has undertaken in this regard; the work has been very important and we are very grateful for it. The provisions are complex and technical in places, and I look forward to exploring them more fully with your Lordships in Committee when we examine the detail of the Bill.
The third key area of the Bill is data sharing for the purpose of preventing fraud. If you were to ask the vast majority of the public whether that should be done, they would be shocked to discover that it was not already being done. This is why the overwhelming majority of the responses that we received to the consultation process for these proposals were supportive.
There is something abhorrent about criminals seeking to enrich themselves on benefits and services that are intended for the more vulnerable members of our society—for example, those who claim housing benefits despite owning their own properties, sometimes several properties. It is the Government’s responsibility to provide the means for public sector organisations to protect themselves and the taxpayer against this activity. Our society has become increasingly dependent on the use of personal data for all our day-to-day personal and business transactions, including accessing services provided by the public sector, such as benefits or passports. However, the very existence of these many different systems across both the public and private sectors offers opportunities that criminals have not been slow to exploit. These are the opportunities that the new data-sharing measures are intended to spoil. This will offer savings to the private sector and the public purse.
I should like to reassure your Lordships of one fact, which I hope will provide the context for discussion of these clauses today and in Committee. Every aspect of the sharing of data that will come about as a result of this legislation will be done in accordance with the provisions of the Data Protection Act.
During development of this policy there has been a process of engagement, at official and ministerial level, between the Home Office and the Information Commissioner. As a result, the commissioner has indicated that he is content with the principles. I hope that your Lordships feel similarly able to support these provisions.
It is fairly easy to see this type of fraud as “victimless”, but that is far from the truth. The Home Office commissioned research by National Economic Research Associates; that research, which was published in 2000, estimated the cost of fraud in 1998 at up to £14 billion. This cost means that less money is available in the public sector for those who legitimately access public services, and its cost to the private sector is passed on to the UK customer. The frauds that these criminals commit may also be used to fund other serious crimes.
The provisions of this Bill will enable the public sector to share information with the private sector, and vice versa. It offers the potential to help to identify individuals intent on defrauding the taxpayer by accessing benefits and services to which they are not entitled, and to prevent those applications from being granted where they should not be. This is not a broad gateway that allows any sharing of government information; rather, it is a narrow and targeted provision to prevent fraud.
There are two distinct parts to what we are trying to do. First, we are talking about data sharing to enable public bodies to share information with the private sector through a specified anti-fraud organisation. Of course, no decisions have yet been made on which organisation or organisations should be so specified, but CIFAS, the UK’s Fraud Prevention Service, which is a non-profit-making organisation, provides a good example of the sort of body that the Government have in mind. The Bill provides a gateway for public authorities to join such a body if they wish. There will be no compulsion on them to take advantage of the gateway, but it will be there if they wish to use it. Such a mechanism will enable those bodies to risk-assess applicants for services on the basis of this information exchange. It is difficult to estimate the savings that may result for the public sector in taking part in a CIFAS-type arrangement, but they could be significant. The current members, of whom there are about 250, estimate that they have avoided losses of about £790 million in 2005. Pilot studies with some potential public sector members suggest that they could save between £137 million and £273 million in a year.
The second element is to place the National Fraud Initiative on a statutory footing. This is a biennial data-matching exercise, which is already run by the Audit Commission as part of its auditing function and has already demonstrated its success. For example, in 2004-05, the National Fraud Initiative identified 905 housing benefit overpayments involving students and led to 396 successful prosecutions for housing benefit fraud. The initiative is already well established and operates to a code of practice, on which the Information Commissioner has been consulted, and that will continue to be the case.
The data-sharing provisions in the Bill are, as I said, very much about providing the mechanisms. They do not go to the nature of the data sharing itself. That is for later, at the implementation stage. But at that stage, working with the Information Commissioner, we will be seeking to ensure that the arrangements are transparent and command public confidence, are proportionate and are subject to periodic review. Importantly, we will ensure that the provisions are used to target suspected fraudsters rather than simply those who are potential fraudsters. These are no more than elements of existing good data-sharing practice. I assure the House, too, that the Government intend to continue to adhere to them in promoting data sharing for the purposes of the prevention and detection of fraud. These two proposals on data sharing provide the means that the Government believe will, if enacted, have a real impact in preventing and detecting fraud in the public sector. I commend them to your Lordships.
In recent years, we have made significant progress in recovering the proceeds of crime. The total amounts recovered have doubled since the Proceeds of Crime Act 2002 came into force to just under £100 million in 2005-06. If we meet this year’s target of £125 million, as we are on course to do, overall performance will have increased fivefold over the past five years. But we want to push on. We have therefore set a new target to double the current figure to £250 million per year by 2009-10. Not only is it right that we should not allow criminals to profit from the harm that they cause, but we must continue this success to prevent these proceeds from being a draw into serious crime and effectively a source of investment funding future serious criminal activity. As a result, we have reviewed the way in which criminal assets are recovered and have brought forward in this Bill proposals that will enable us to improve performance further.
In order to bring work on the recovery of assets closer to the intelligence-gathering and investigative functions carried out by the Serious Organised Crime Agency, we have decided to merge the Assets Recovery Agency with SOCA. This will allow for easier sharing of information and intelligence and will maximise the skills and expertise of both agencies. The ARA has contributed to the total amounts recovered in recent years and has made a significant impact in disrupting serious criminal groups and freezing their assets. The Government believe, however, that more can be achieved, and the merger should enable further improvement.
The ARA’s powers to bring proceedings in the High Court for the civil recovery of the proceeds of crime, under Part 5 of the Proceeds of Crime Act 2002, will be shared between SOCA and the main prosecuting bodies. The ARA’s powers to carry out certain taxation functions under Part 6 of the Proceeds of Crime Act will transfer to SOCA. The agency’s responsibilities for the training and accreditation of financial investigators will transfer to the National Policing Improvement Agency.
There are further measures in the Bill designed to drive up our overall performance in this area. Three specific powers, which are already available to the police and Revenue and Customs officers under the Proceeds of Crime Act, will be extended to certain accredited financial investigators who operate under the Act. These are powers to: seize property to prevent its removal from the United Kingdom; seize and seek the forfeiture of suspect cash; and execute search warrants. The safeguards that currently apply when police and HMRC officers use the search and seizure powers under the POCA will similarly apply to accredited financial investigators. We are also creating a new type of investigation under the Proceeds of Crime Act; namely, a detained cash investigation. This new power, requested by law enforcement agencies, will help them in the preparation of a cash forfeiture case to go before the courts.
The final part of the Bill reflects the increasing evidence of serious criminals attacking ex-Inland Revenue systems, now falling within Her Majesty’s Revenue and Customs, not just to evade paying tax on commercial profits but fraudulently to extract money from the Exchequer. The Bill makes certain surveillance powers that HMRC currently has only for serious crime in relation to ex-Customs and Excise matters also available to it for serious crime in relation to ex-Inland Revenue matters.
This extension will allow HMRC more effectively to investigate and bring to justice those serious criminals engaged in, for example, organised tax credit fraud, involving identity theft and using false identities to make thousands of fraudulent tax credit claims; identity theft occurring in relation to self-assessment repayment frauds and organised attacks against this system by the internet filing of false returns; serious criminal gangs attempting to obtain large self-assessment repayments by using multiple claims; or suspects fleeing the jurisdiction. In the most serious cases, use of RIPA interception powers could be used to alert HMRC, providing early and invaluable intelligence and help to identify a suspect who is planning to flee the jurisdiction where the serious criminal activity relates to ex-Revenue matters.
HMRC consulted on this change in March 2006. The majority of those who responded regarding the extension of these powers were in favour of what is proposed, provided that the powers can be used only in criminal investigations into serious tax crime and continue to be subject to the same safeguards and controls. I confirm that the safeguards and controls will be unaltered and that the powers will be used only for criminal investigations into serious tax crime. The use of the powers is also overseen by the independent Interception of Communications Commissioner and the Office of Surveillance Commissioners. None of that will change. These powers are not available for HMRC to use in exercising its routine civil compliance work—for example, tax inspectors checking that tax returns are accurate. Only the specialist teams that undertake investigations into serious tax crime may apply to use these powers.
In conclusion, these provisions comprise a package that I hope your Lordships will agree will bring about real and appreciable improvements in the way in which we identify, investigate, prevent and strip the profits from serious crime. They build on a solid foundation of existing policy and on significant levels of support shown during the consultation process and from key stakeholders, such as the Information Commissioner.
We are better able now to address these issues and I invite your Lordships to endorse the proposals, not least because they have been carefully framed and widely consulted on. We believe that the provisions in the Bill will potentially save us billions of pounds in the long term and represent a sensible way forward. I commend the Bill to the House.
Moved, That the Bill be now read a second time.—(Baroness Scotland of Asthal.)
My Lords, the Government clearly have a duty to protect the British public from those who do their utmost to encourage serious organised crime and to profit from it, while taking great care to stay at arm’s length from the crimes themselves. They are a danger to all of us, but their hands never appear dirty in public. I recognise that it is very difficult to take measures to protect the public from such people, but it is vital that we do so. However, those methods must be both proportionate and effective without undermining our system of law and justice. If the new system does not work, it is the “Mr Big”s who will have the last laugh—again.
Today we have before us the supreme irony of a Bill that creates a cross between ASBOs and control orders, at the very time when the effectiveness of both measures has come in for so much criticism. Control orders have been dogged with problems. Just last month a third terrorist suspect went on the run. That must raise serious doubts about the effectiveness of introducing a similar scheme for gangsters; and if up to 55 per cent of tearaways breach ASBOs, what makes the Home Secretary think that hardened, calculating criminals of the most dangerous kind will pay attention to one?
We are sceptical about whether measures such as the new serious crime prevention orders are the most effective way of combating serious crime. Less than two years after the Serious Organised Crime and Police Act 2005 was enacted, the Government would be well advised to answer our call to improve criminal evidence rules first; for example, by allowing evidence obtained through the use of phone tapping and other electronic surveillance to be admissible in court, so that more serious criminals can be charged and convicted. After all, the best weapon against serious criminals is to track them down, charge them and prosecute them.
However, the Home Office appears to be in denial, or, according to the Home Secretary last month, in wallpaper-stripping mode. He seems to see himself as Bob the Builder. In reality, he looks as though he is auditioning for the BBC’s “DIY SOS”. However, we must consider the Bill before us seriously. Of course it is right to do everything within reason to prosecute and punish those guilty of serious crime.
However, Part 1 gives sweeping powers to judges to impose super-ASBOs—which, I understand, the Home Office is colloquially calling “GASBOS”—on the basis of the civil burden of proof, the balance of probabilities. We shall need to examine the potential consequences of that. The Minister sought to reassure us today by saying that there would be a sliding scale of testing against the balance of probabilities, but in court and in the statute one wants clarity.
How easy will it be to apply for an order to be made? The Explanatory Notes state that there will be tight control over the process by the DPP, but paragraph (2)(1) of Schedule 2 does not seem to provide that. We shall consider whether that needs tightening up, because, despite what the noble Baroness said, there remains widespread concern that it could prove too tempting for the police to go for an order instead of bringing a prosecution in the criminal court, where perhaps they may think they have an underwhelming case. The noble Baroness said that that was not the intent. We will have to ensure in our scrutiny of the Bill that her assurance becomes a reality.
We shall need to examine whether there is sufficient protection in the Bill for those engaged in legitimate business, whether the prohibitions proposed by the orders are likely to be appropriate and effective, and what the costs may be.
I am puzzled by the Government’s definition of “serious crime” in Schedule 1. Why have they listed fishing for salmon with a prohibited instrument as a serious crime but left off something as serious as armed robbery? What is the rationale for that? Is it right that the list of serious crimes can be extended any day in court by a judge? Surely transparency and legal certainty are best served by extending the list of serious crimes by statutory instrument following parliamentary scrutiny.
Super-ASBOs have grabbed the headlines, such as there have been in the press, but we must not ignore the important provisions of Parts 2 and 3 in our scrutiny of the Bill. As the noble Baroness said, Part 2 is based firmly and squarely on work done by the Law Commission. I join her in commending the commission, as I always do, on its excellent work on these matters. In Committee, we should simply like to examine how the Government’s proposals diverge from the original Law Commission proposals so that the Government have the opportunity to put on the record how their thinking developed. Certainly, at first blush it appeared from the Bill that the Government had taken the more appropriate and reasonable of those proposals and that they were leaving until a later date those that might need more testing in pilot schemes or more research. However, we will need to look at that in some detail.
I turn to Part 3. Of course it is important that we should make the best use of modern data systems to detect and prevent fraud. As the Minister said, it is what the public expect and have a right to expect, but the methods adopted must be not only effective but proportionate. The Audit Commission’s National Fraud Initiative has been a valuable exercise, but in Part 3 we see sweeping changes to our data protection laws that will need very careful consideration. Extensive powers are being seized by the Home Secretary that could allow, for the first time, widespread data sharing between the public and private sectors in the name of tackling fraud. It will overturn the basic data protection principle that personal information provided to a government department for one purpose should not, in general, be used for another. Instead, the principle will now be that information will normally be shared in the public sector provided that it is in the public interest.
The Bill clears the way for data-matching exercises to be carried out on a large scale, even though a Home Office consultation paper last year acknowledged that many public bodies feared that such operations could be seen as fishing expeditions, which should be justified only on a crime-by-crime basis. But, of course, the Bill could open the way for operations under which software was used to search several databases to identify suspicious patterns of activity that simply could not be spotted when the data were seen individually.
Today the Minister assures us that this is intended to be a narrow gateway, very carefully policed and underwritten by guarantees. We shall need to examine that assurance to see whether it is borne out by the reality of the drafting. For example, I am concerned about new Section 32G under Schedule 6, which gives the Home Secretary the power to add to the purposes for which data-matching exercises can be carried out. Presumably, in the future that could include sensitive personal data, so I should like to look at that fairly closely in Committee.
The Explanatory Notes make it clear that, in the longer term, the National Fraud Initiative, in which 1,300 public bodies take part, will be extended to include information on central government systems, such as passports and driving licences. It has been suggested by some respondents on the Bill that it would not be the right way forward if that power were used to pave the way for a national identity register. It would certainly appear to contravene the assurances given to this House during the passage of the Identity Cards Bill.
We need to look carefully at Part 3, but of course I understand that we will need to ensure that the appropriate codes of practice and guidelines are in place. The noble Baroness said today, “Don’t worry. The Data Protection Act covers everything”, but the advice I have been given is that, although some of the new measures must comply with existing data protection codes of practice, some of the new powers are not subject to specific codes or guidelines, and I shall need to look at that. The noble Baroness shakes her head but we will need clarification on that point in Committee.
The Minister talked about the part of the Bill whereby the Assets Recovery Agency has its demise. It has now merged with the Serious Organised Crime Agency, which could be a measure of common sense. However, it is important that the costs of recovering assets, together with the amount recovered, are still published. It is a matter of public knowledge; we need it in the public domain. We must monitor the effectiveness of the process. The ARA has gone after small, more readily accessible amounts; at least its procedures were relatively transparent. What will be the impact of the transfer to SOCA, whose approach one might call quasi-secret? What accountability will there be to Parliament? SOCA has repeatedly made it clear that it quite properly, according to its rationale, concentrates on level 3 crime: organised gangs operating nationally and across borders.
There are fears that the merger could mean a narrowing of focus. My noble friend Lord Glentoran will table an amendment in Committee to debate the particular and significant concerns raised with us by the Police Service of Northern Ireland; I understand that it has approached other noble Lords on the same matter. It is worried that there will be a reduction in the focus on Northern Ireland, with a risk, for example, that the intimidation of neighbourhoods and persistence of protection rackets in sectors of the local economy will simply not appear high enough on any scale of SOCA priorities set in London. I am the first to recognise that, in general, SOCA’s more intelligence-led approach could offer a solid fit with asset recovery. SOCA has made it clear that it wants the hunt for criminal profits to be central to how it operates. That can only be good news. What we need from this merger is synergy, not a culture clash.
In conclusion, it is obvious that serious organised crime causes human misery and massive costs to society. There is nothing between all of us on that. The principles to be debated in this Bill are significant. Do they take us too far in the development of preventative orders and data sharing? Are they necessary in the fight against serious organised crime or are there other, more effective, measures that we should be adopting? All those matters deserve cautious and careful consideration, and we look forward to giving them that attention in what I am sure will be a rather intriguing Committee.
My Lords, back in 1760, Sir Francis Bernard, the governor of Massachusetts—then a British colony—adopted the practice of issuing writs of assistance. Their effect was that any place could be searched at the whim of the holder, and the searchers were not responsible for any damage they caused. The constant use of these writs of assistance proved such a burden to the colonists that they seriously considered their relationship with Britain. After one or two skirmishes around Boston, including the Boston Tea Party, the American revolutionary war broke out and America consequently became independent.
Following the defeat of the British forces at Yorktown, Lord North, the Prime Minister responsible for this fiasco, was defeated in a vote of confidence in Parliament and resigned in March 1782. He is famously said to have cried, “Oh God, it’s all over, it’s all over”; the parallels with the present are obvious. As a result of that, the fourth amendment to the American constitution, a significant part of their Bill of Rights, outlawed general search warrants and specified that judicially sanctioned search and arrest warrants must be supported by probable cause and be limited in scope, according to specific information provided by a person, usually a peace officer, who has sworn by it and is therefore accountable for it to the issuing court.
So what an excellent wheeze Part 3 of this atrocious Bill is. It introduces into our law a high-tech version of the writ of assistance. If the Bill goes through, the Audit Commission, whose job we thought was to concern itself with the efficient and effective delivery of public services, will appear in a new guise as spymaster-general. Nothing could be more appropriate for this Government, with their authoritarian bent. New powers are to be given to the Audit Commission to obtain,
“such data … as the Commission … may reasonably require for the purpose of conducting data matching exercises”.
That is data from public bodies subject to audits, such as police forces, emergency services, local authorities, NHS trusts and so on; and from any other bodies that voluntarily supply databases at the commission’s request.
Data matching—the focus of Part 3—is otherwise known as data mining. It is a process whereby large quantities of information about many individuals are gathered from many sources and are mined by mass cross-referencing in order to throw up patterns of behaviour. It is the sort of thing that the supermarket card is designed to do to demonstrate to the management whether a customer buys buy tins of salmon or jars of Marmite. The patterns of behaviour thrown up by the data matching in Part 3 may or may not be meaningful; it is all a matter of chance. Depending on how they are interpreted, the Audit Commission will be able to point the finger at what is deemed to be a suspicious constellation of characteristics or behaviours in an individual. Instead of a system in which a person is suspected of a crime and is then investigated by the police, a trawl using the latest computer techniques will throw up names and those people will be investigated because of their characteristics or behaviours. Suddenly, we have grounds for a serious crime prevention order under Part 1.
That is why I call it a modern-day writ of assistance. It is not necessary for there to be evidence of wrongdoing, a probable cause or a warrant based on reasonable suspicion, nor is there the accountability of having to go to a magistrate to get a warrant. It is no wonder that in her letter yesterday to the Constitution Committee the noble Baroness, Lady Scotland, said that the orders are not aimed at the one-off criminal but at those who conduct their lives and affairs in a criminal way; in other words, who may be thrown up by data matching or data mining.
This is the Serious Crime Bill, but when it comes to data sharing—the other limb of Part 3—the illustrations that the noble Baroness gave related to benefit fraud, housing benefit and matters of that sort. The Data Protection Act is given lip service in the Bill and is then circumvented. The Bill provides that a specified anti-fraud organisation, which is any unincorporated association, body corporate or other person which has as one of its purposes the enabling or facilitating of any sharing of information to prevent fraud—and we were told there are 250 of them—may require a public authority, for the purposes of preventing fraud, to disclose information of any kind about an individual, including sensitive personal information, either to itself or to any other person in accordance with any arrangement it may chose to make. Confidentiality is over-ridden, the Data Protection Act is over-ridden, no general code is proposed to govern the arrangements and the circumstances in which the disclosure is to be made are not to be limited in any way. The Bill proposes that databases can be exchanged and data can freely be thrown around without the safeguards of the Data Protection Act or any regard for confidentiality.
It is said to be a narrow gateway to obtain the information, but the Bill contains powers to extend data matching to other bodies and for purposes beyond those related to crime. Under the Bill, the Home Secretary can expand the scope of the provisions even further. For example, he can do so to assist in the recovery of debts owed to public bodies, such as congestion charges. He can have access to data obtained by public authorities for those purposes. The Home Secretary can add to the list of bodies that may be required to hand over information to the Audit Commission. There is nothing in the Bill to protect the interests of individuals or classes of individuals. I know that we shall hear about the Audit Commission’s code of practice that will be put forward, but that is not to be subject to parliamentary approval. Unlike codes such as PACE and so on, there will be no parliamentary approval for the Audit Commission’s code of practice in carrying out these things.
I turn to assets recovery. We know that the Assets Recovery Agency has been a complete failure. It has recovered far less than its cost and is to be abolished. We learnt in a Channel 4 programme the other day that the people employed by SOCA sit there twiddling their thumbs. They have nothing to do. The synergy to which the noble Baroness referred is the synergy of two failed organisations put together. The noble Baroness then has the chutzpah to say that we will save billions of pounds by this means. It is ridiculous. And I have not said anything about Part 1 yet.
The Select Committee on the Constitution in its report earlier this week said on this Bill:
“We draw to the attention of the House the fact that the far-reaching restrictions of a SCPO may be placed on a person against whom no criminal proceedings have been instituted or who has been convicted of no criminal offence. Moreover, the restrictions which can be imposed are not limited to conduct forming part of the particular type of crime which has been proved, by civil standards, against the defendant. ASBOs and other types of control order … generally deal with small-scale anti-social behaviour and have little impact on third parties. SCPOs will have a much wider reach”.
It concluded in this way:
“A broad question for the House”—
it is for us—
“is whether the use of civil orders in an attempt to prevent serious criminal activity is a step too far in the development of preventative orders. Whether or not the trend towards greater use of preventative civil orders is constitutionally legitimate (a matter on which we express doubt), we take the view that SCPOs represent an incursion into the liberty of the subject and constitute a form of punishment that cannot be justified in the absence of a criminal conviction”.
That is what the cross-party Constitution Committee of this House thought of these proposals.
I have read the response of the noble Baroness, Lady Scotland, which I received today. She claims that a recent report in December 2007 by the National Audit Office suggests that ASBOs were highly effective as part of a tiered approach to tackling the overall problem of anti-social behaviour within an area. I do not know where the National Audit Office gets its statistics, since the Home Office does not publish them in full and itself complains that there is under-reporting of ASBOs.
The British Crime Survey found that 17 per cent of people canvassed perceived a high level of disorder in their local area—the same as the previous year—and that the proportion perceiving young people being drunk had increased. It is constant anti-social behaviour orders: they have been going since 1999 and have shown no marked impact. Meanwhile, according to such Home Office statistics as do exist, 9,253 ASBOs were issued to December 2005, of which 47 per cent were breached and 55 per cent of those breaches resulted in custody. So ASBOs are not the highly effective success that the noble Baroness has claimed. They have not had any impact; all they have done is to have people sent to prison for matters which were not offences.
That is the template for the serious crime prevention orders that we are now being asked to accept. If you have a case, you should charge, as the noble Baroness, Lady Anelay, said. Bail conditions can be imposed just as restrictive as anything proposed under the orders. Where prosecution is too troublesome, trial too long or where you have to rely on rumour, gossip or lifestyle as thrown up by the data-mining provisions to which I referred, go for what the Minister calls the new tool, the SCPO. It will be a greater failure than ASBOs.
The imposition of such an order is based on a determination that an individual has done something wrong. It does not have to be proved, except by a civil balance of probabilities. The orders will have an effect on reputation, on people's businesses and on their home lives. The restrictions are deliberately vague. Only examples of restrictions are given in the Bill, so that the order can be flexible. Clause 5(7) states that the restrictions do not need to be stated in the order but are at the discretion of law-enforcement officers, so the police can make their own restrictions. It is not like an ASBO, where the restrictions are told in court to an individual. The restrictions can be imposed by law-enforcement officers themselves.
Are they proportionate? Can they be challenged? There is no provision for review. All that is relied on is the fact that the orders can, if there is no conviction, be made only by a High Court judge. There is a huge amount of work for High Court judges. Only today, I received a copy of a letter from the Lord Chief Justice about the Tribunals, Courts and Enforcement Bill, saying that he did not have enough High Court judges to go around. If the Government proposals go through, if they have their way, the streets will be full of people in red dressing gowns with wigs on running around granting the orders like confetti.
Everyone has a right to liberty and to security of the person under Article 5 of the European Convention on Human Rights, which the Government were good enough to make part of the law of England and Wales and of Scotland. Restrictions on liberty can be justified only by due process of law. Whatever credentials the party which is now in government had for civil liberties have long been lost. Oh God, Mr Blair, it’s all over, it’s all over.
My Lords, if I may, I shall confine my remarks to Part 1 and not try to cover the other parts. I want to cover Part 1 because it is the part which concerns me most closely. When I first read it, I had not then seen the briefing notes provided by Liberty or JUSTICE and I had not read the very stringent criticisms contained in the report of the Select Committee on the Constitution. I must say that on reading Part 1, I could scarcely believe my eyes.
The Government seem to be making exactly the same mistakes as they made when they forced the Prevention of Terrorism Act through Parliament in spring 2005. I could understand and sympathise with prevention orders in the case of those who have been convicted of a serious crime as part of the sentence imposed by the court. I could understand prevention orders in the case of those convicted of serious crimes by a foreign court, assuming we can ever find out who they are. That all makes perfectly good sense to me, but I simply cannot understand how one can justify prevention orders in the case of a man who has committed no crime—indeed, who may have done nothing more than facilitate the commission of the crime by others, even though he did not intend to facilitate the crime and even though in fact the crime has not been facilitated, but only made more likely, however one is going to decide that and whatever it may mean.
That, I think, is the effect of Clauses 1, 2 and 4 in Part 1. Those provisions are quite extraordinary. Equally extraordinary, indeed astonishing, is the range of restrictions that may be imposed on such a person. There are restrictions on where he can live, where he can go, who he can talk to, and what he can do for a living. If that were not enough, the court can authorise further restrictions to be thought up by the police, as the noble Lord, Lord Thomas, has already observed. When I read provisions such as those, I find it hard to believe that we are living in England.
My immediate reactions on reading Part 1 are thus exactly the same as the more mature reflections of JUSTICE, of Liberty, and of the Constitution Committee. I hope that we will hear more from the noble Viscount later, who is a member of the committee, on what its reasoning was. Rather than concentrate on the detailed provisions, which will come in for a great deal of criticism in Committee, I shall concentrate on something broader; the whole approach adopted by the Government in Part 1.
I was one of those who opposed control orders. I remember looking then for a precedent for the use of the civil justice system to impose what amount to criminal sanctions. I could find only two: non-molestation orders in domestic proceedings, and the anti-social behaviour orders. The industry of the Constitution Committee has identified some other instances, but surely we would all agree that control orders were in a completely different league from anything that had gone before. They were a way of depriving someone of his liberty without what Americans call due process of law. That is exactly what the Court of Appeal subsequently decided in the Secretary of State v JJ, where it quashed the standard form of control order on the ground that it was in plain breach of Article 5 of the convention. Mr Justice Sullivan held that it was not even a borderline case, and his views were upheld in the Court of Appeal. One would have thought, perhaps optimistically, that the Government would have learnt something from the reception which the Prevention of Terrorism Act has subsequently received.
When that Act was being forced through Parliament in 2005, it got through only because we were given a promise, which many Members of the House will remember, that we would come back to control orders at the start of the Session in 2006. That promise has not been kept, and we are still waiting. Instead of justification for the control orders then imposed, we have the regrettable procedure extended from terrorism to serious crime. It is time we protested against this method of dealing with crime. The Government say that the restrictions to be imposed under the present Act are justified because they are preventive, not punitive. However, restrictions do not cease to be punitive just because they are called preventive. I regarded, and still regard, control orders as punitive and an abuse of the civil process. I say the same about the prevention orders proposed in the Bill. As a result, I agree with every word of the last paragraph of the Constitution Committee’s report, which has been read by the noble Lord, Lord Thomas.
I have asked myself what sort of people these provisions are directed at. I had thought that they might be directed at people who organise serious crime but take care to remain in the background. The noble Baroness, Lady Scotland, said something that led me to believe that that might be the case. I suppose they could be said to “facilitate” crime, although it is perhaps an odd word to use in the circumstances. I do not doubt that such people exist, but surely they ought to be prosecuted under the ordinary law of conspiracy. We have seen how that can succeed in the Abu Hamza case and in two or three others since then. What we do not want is further legislation.
It is said that there may not be enough evidence to convict people of conspiracy. If that is so, they ought not to be subjected to quasi criminal sanctions. Before we decide whether there is enough evidence in such cases, please let us look again at the interception of communications, mentioned by the noble Baroness, Lady Anelay. Since we last debated that subject, JUSTICE has published a brilliant report on it, entitled Intercept Evidence: Lifting the Ban. It deals with all the arguments on both sides and it reaches a clear conclusion. Surely it is time that we, too, should take the plunge in this matter and bring ourselves into line with every civilised country by allowing this evidence to be admitted.
I said I thought that the purpose was to catch those who organise serious crime, but looking at the Home Office document, New Powers Against Organised and Financial Crime, I wonder whether that is true. It seems that the Home Office is more concerned with the small fry; with those on the fringes of serious crime; with the bit players. Let me read two sentences from the report at paragraph 3.2. It states:
“But in the case of organised crime investigations, there may be significant numbers of individuals at the fringes who cannot be pursued in the main trial, and for whom”—
and this is important—
“a separate trial is not thought worthwhile. Such individuals’ role might have been marginal and not warrant a prosecution”.
A little later it states:
“A preventative order disrupting future criminal activity by these currently minor players could play an important role in preventing them taking over the organisation in the leaders’ absence”.
I find those remarkable sentiments. If such people on the fringes are thought to have played a role in the offence, they should be prosecuted however inconvenient it might be to the prosecution service.
People on the fringes of crime who are thought to have been involved are entitled to the verdict of a jury one way or another. What is not tolerable is for that question of fact—because it is a question of fact—to be decided by a judge. It is not what judges are for. In criminal cases and quasi criminal cases, it is the jury which decides disputed issues of fact and not the judge.
My Lords, there is no doubt that serious and organised crime has a devastating effect on many of our communities, not only in our cities but in our countryside, too. There is also no doubt that serious and organised crime has a devastating effect on many of our individual citizens and societal values as well as on our nation's economy. Drug trafficking, crimes of a financial nature and people trafficking—all relatively newer crimes—create misery, fear, and trepidation not only among those who are directly affected, which is bad enough, but among a wider group of law-abiding citizens who witness the effects of such atrocities.
Too many criminals believe they cannot be touched by the law as currently written. Increasingly, personal identities are stolen and the lives of the victims are opened up to worry, frustration and disruption. Hard drugs are smuggled into our country and sold on to addicts whose lives are ruined by their effects, as are the lives of their families. The vulnerable of many nations, who often believe they will be improving their lot in life, seek assistance from hardened crooks who use them as prostitutes and virtual slaves, trafficking them across borders without mercy. Those are among the crimes that have instigated this Bill, which, unlike the two previous speakers, I support.
As the Minister pointed out, the Bill introduces new powers to tackle serious crime. It outlines a civil order that places conditions on both individuals and organisations to prevent the serious crime which they plan. It allows and encourages data sharing between public sector organisations and between public and private sectors. It introduces new offences aimed at those who encourage crime and those who assist crime, holding them responsible and accountable for their actions even if the crime is not actually committed. I support that. It also aims to combine the Serious Organised Crime Agency and the Assets Recovery Agency, bringing together the experience and expertise of those two important organisations.
The Serious Organised Crime Agency is a relatively new organisation which came into being on 1 April last year following a merging of the National Crime Squad, the National Criminal Intelligence Service, Her Majesty's Revenue and Customs and the Immigration Service. It is an intelligence-led agency with law enforcement powers and responsibility for the harm caused to communities and individuals by serious organised crime. Its workforce includes 1,100 former police officers from the National Crime Squad with their wealth of experience in the areas of investigation and prosecution of those engaged in serious and organised criminal activities. The Assets Recovery Agency was formed earlier, in 2003, under the Proceeds of Crime Act 2002. It undertakes civil and criminal recovery of money which is believed to be the proceeds of crime. It employs around 210 staff in London, Belfast and the regions. It seems sensible to combine these organisations, which currently have similar if occasionally not overlapping responsibilities.
The Bill should provide, through the serious crime prevention orders, a more flexible tool which can be used to prevent harm before it happens. It is a preventive measure. It should plug gaps in current legislation that allow those who support and assist crime to escape prosecution because they themselves do not commit it. It should encourage the sharing of data across the sectors, which also seems a sensible use of available valuable information. Additionally and importantly, it will place the national fraud initiative, a data-matching exercise run by the Audit Commission, on a statutory footing and expand its scope of operation. It seems to make sense for the national fraud initiative to be part of the proposed new organisation.
However, as with all new Bills that come before the House, there are queries that need to be raised. I look forward to the Minister’s answers to my queries and to those of other noble Lords. My first two queries concern the serious crime prevention orders, about which a number of noble Lords and organisations have expressed concern. I hope that my noble friend will be able to reassure the House that sufficient evidence will be found before such orders are issued and that the orders will therefore not be used as a measure of expediency to criminalise what is currently lawful behaviour. I hope that my noble friend can also assure the House that those who will be involved—prosecutors, members of the legal profession and the courts—will be given adequate training on the aims and objectives of the orders. Unless that happens, difficulties will occur, thus bringing the orders into disrepute before they even have a chance to work.
I turn to the sharing of data. I hope that my noble friend can also assure the House that the quality of the data to be shared will be of the highest standard. I can think of nothing worse than the sharing of poor-quality data. That would be not only useless but positively dangerous.
My final question concerns the staff who will inevitably be affected by the Bill’s proposals in both the short term and the long term. In any form of merger those employed by the organisations in question are naturally anxious about their future. Change can of course be for the good. However, as some of us who have lived through the merger of the organisation for which we worked can verify, changes can also be for the bad. I therefore want to ask the Minister about plans for the staff involved. Can my noble friend reassure me that they and the unions representing them will be kept fully informed of any proposed changes and will be fully consulted at an early stage of the process of change, particularly regarding protection of their current terms and conditions and any consideration of relocations or redundancies?
Like other noble Lords, I look forward to the Bill’s further stages and to our deliberations on it. I am sure that, if nothing else, they will be interesting.
My Lords, I shall concentrate on Part 3 of the Bill, the information-sharing provisions, and try to persuade my Front Bench and the Liberal Front Bench that this continual trying to stop the tide will just not work. They are in much the same position as Canute was without showing his wisdom.
There are so many good reasons to undertake data sharing. In any individual case you could persuade certainly this Government and I would imagine any Government that it is worth doing. If you are concerned about, for instance, the misuse of provision to support people when they claim that they are disabled, why not take data on people claiming disability benefit and match it, say, with camera data to see who is hopping and skipping round merrily in their town centres when they are supposed to be confined to a wheelchair? Why not look at the data from their credit cards or telephones to see whether they are ranging round the country when they are so disabled? Why not look at their medical and tax data to see what sort of income these people have and whether that is compatible with what they are saving? There is an argument in favour of this which it is possible for the Government to make when faced with substantial levels of fraud. They can say that fraud must be prevented and all that will happen is that people with suspicious patterns of data will be investigated. We will become much more effective at detecting fraud than we were before.
There is no good argument before the event for preventing these sorts of activities. The process of this Government and I would imagine of any following Government will be to do this more and more as capabilities improve, because it is the most effective way of preventing fraud. What we have to do, surely, is to ensure that what is being done is within what we find acceptable. The key to that is to know what is being done. So I want to persuade my Front Bench to support the provisions in the Bill—to make a start in this Bill, anyway—that say that where the provisions of Clauses 61 and onwards are used, such use must be registered with the Information Commissioner’s office and the commissioner must have the power to find out more about what is being done in a particular case and to make reports on it. In that way we will build up a real understanding of what is being done in our name and we can consider each individual case in relation to the request that was made, what has been done with the information, and any complaints made to the commissioner about it. We can then judge whether the powers are being used reasonably. There is always an argument for such powers, but there is always a suspicion that when these powers are given they will be used unreasonably.
There are many arguments for traffic wardens and for the enforcement of parking tickets. When, some 15 years ago, we passed legislation to decriminalise parking restrictions, it was done with the best of intentions. Now, some councils in this country set out to make the lives of their citizens a misery and to do so in order to generate revenue for themselves. The thing has gone beyond what is reasonable. If you do not have data to show what is going on, it is very difficult indeed to challenge that. The Government are making efforts now to row back on that by removing the incentives given to parking enforcement companies to issue ever greater numbers of tickets and by introducing measures to ensure that efforts are put into keeping the main roads clear, rather than into persecuting mums dropping off their children in the back streets. If we know what is going on, we can pick up on misuse. If misuse is going on at the level the noble Lord, Lord Thomas of Gresford, talked about, we can say, “This has gone too far and we need to do something about it”.
At the moment, the public want us to do this. They like the idea of fraud being prevented and do not see the danger to themselves. That is fine, and my noble friend on the Front Bench suggested that that understanding permeates her own team. This is not a Bill that will be easy to stand up to because the public do not share in such libertarian outrage as we have. I understand it when the noble and learned Lord, Lord Lloyd of Berwick, and others say that Part 1 of the Bill is a constitutional outrage, but it is going to be very difficult to stand up against it in the current climate. So the way to deal with our worries about data matching is to make sure that we have the information. If Part 1 is to go through, it must do so on the basis that we will record properly what serious crime prevention orders are—who they are given to, why they have been issued, what has been their effect—so that, unlike ASBOs, we know how they are being used and thus apply the proper level of scrutiny to the application of this extraordinary power.
I share all the reservations expressed by the Liberal Front Bench and the noble and learned Lord, Lord Lloyd, about the direction in which this Bill is taking us, but I do not see that it is stoppable. I do not see a power in the public will to go against it. But we must ensure that we know what is happening in our name. We must understand enough about this measure to ensure that if and when it goes too far we can put a quick stop to it.
I despair of this idea that we should prevent crime by penalising people. That is in the Mental Health Bill, which is going through the House at the moment. Where does this principle end? Do we stop people driving because we think they might drive too fast and kill someone? There is no logical limit to it. As the noble and learned Lord, Lord Lloyd, said, it seems able to reach out to some very small crimes. We know the police’s ability to use Acts that were drawn up to deal with big crimes to deal with little crimes. There is a reference in the Bill to an offence under the Officials Secret Act being one of the serious crimes. Will these orders be issued to investigative journalists to prevent them suborning civil servants to tell the truth about what is going on in their departments?
We are in difficult territory. I hope that we manage to make some amendments, but if we do not, whatever happens, this must not take place in secret. We must know what is happening so that when we grow disgusted by the results we can do something about it.
My Lords, I welcome the Minister back to her place on the Front Bench after what I understand was her recent bereavement. Certainly the government Front Bench is much the weaker without her.
I declare an interest as the chair of Justice, an organisation which has submitted a brief for the Second Reading. It is an important declaration because, although I do not speak on behalf of Justice, it is in large part because of my position in that organisation that I have decided to speak today.
What we have feared for a long time is now happening. Like the noble and learned Lord, Lord Lloyd of Berwick, I shall speak only on Part 1 of the Bill. The noble and learned Lord made an extraordinary speech, virtually every single word of which I agree with. We are now facing the fact that the Government’s use of civil penalties as a substitute for criminal convictions will rise to an unacceptable level under the Bill.
We started with ASBOs in the Crime and Disorder Act 1998. An argument can be made for ASBOs; in effect, they are similar to civil injunctions for harassment or nuisance, which victims could have obtained but they were deterred by costs and the possibility of revenge attacks by the person against whom they sought the injunction. As my noble friend Lord Thomas of Gresford said, in practice, ASBOs are not working nearly as well as originally expected.
The Government moved on from ASBOs to control orders under the Prevention of Terrorism Act 2005. We on these Benches accepted, with great reluctance, control orders in principle, although we did not accept the methods by which they are imposed. We accepted them because the aims of modern terrorists include the mass murder of ordinary people, and we see that as a unique case.
Part 1 pushes the boundaries of civil penalties further still—far too far. Under Clause 1, a serious crime prevention order can be made if the court is satisfied that,
“a person has been involved in serious crime”,
and the court has reasonable grounds to believe that the order will disrupt future involvement of that person in further serious crime. Does that mean that the person in question must have been previously convicted of a serious crime? Plainly not. Under Clause 2(1)(c), it is enough that the person,
“has conducted himself in a way that was likely to facilitate the commission by himself or another person of a serious offence in England and Wales (whether or not such an offence was committed)”.
The clause does not even require an intention to facilitate the crime.
The civil standard of proof applies for an SCPO. So what is a “serious crime”, specified in Schedule 1? As the noble Baroness, Lady Anelay, pointed out, armed robbery is not a specified serious offence, but Schedule 1 includes,
“fishing for salmon, trout or freshwater fish with prohibited implements”.
It also includes such desperate crimes as,
“making, importing or distributing an illicit recording”.
That is, of course, a dishonest way of making money but hardly a threat to the public; indeed, many members of the public are all too eager to benefit from that offence. There is also a catch-all provision that allows the court to treat any offence as serious if, in the circumstances of the case, it considers it,
“to be sufficiently serious to be treated for the purposes of the application or matter as if it were so specified”.
What can be restricted by the order? Under Clause 5, as the noble and learned Lord, Lord Lloyd of Berwick, pointed out, absolutely anything can be restricted. It includes, just as examples, the persons with whom the subject communicates or associates, the means by which he does so and the premises to which the subject has access. Most surprisingly of all, it includes the place where the subject may live. The subject may be forced into internal exile. It restricts travel, not just abroad but within the United Kingdom. The subject may be required to answer questions from law enforcement officers on any subject. Although that requirement is, in general, subject to the exclusion of answering questions that involve self-incrimination, the exclusion does not apply in one particular case: where officers are investigating a possible breach of an SCPO. The subject of that order must reply, even if the replies would incriminate him in the breach of the order. A breach carries a penalty of up to five years.
On top of all that, it is far from certain that SCPOs will be effective. As I mentioned, the civil standard of proof applies. I entirely accept, as the noble Baroness pointed out in her letter to the Constitution Committee, that the civil standard is flexible and not always just the simple balance of probabilities. That is clear, for example, from the decision of the Appellate Committee of your Lordships’ House in the McCann case of 2003. As the Law Society brief points out, in ASBO cases the courts now apply a standard close to the criminal standard. If the same principle applies to SCPOs, however, as clearly it will, their use will be limited to cases where a criminal prosecution would be likely to succeed and in those cases should be used. I know it is not the intention of the Government, but there is an inevitable danger that the prosecution, faced with a case where a criminal conviction is not absolutely certain, will seek a restrictive SCPO as an alternative because there will be a slightly lower standard of proof, no jury and the ability to rely on hearsay evidence.
Even if SCPOs might work, would they be justified? They impose restrictions on people because of what they may do in the future, not what they have done. I recognise that that might be legitimate as part of the sentencing process; that is to say, where there has been sentencing following the commission of a crime. That is part of the reason for imposing longer sentences for re-offenders. But here we have a power to impose restrictions of any kind on people who have not been found guilty of any relevant crime, on the basis of a belief—which, admittedly, must be a reasonable belief—that that person is likely to be involved in future offences which the court considers serious or which are on the list of serious offences. When, in a prosecution, one is looking at the possibility of future conduct, there can never be anything approaching certainty about what that conduct might be. It is not a case of saying, “on the balance of probabilities”; it just has to be a reasonable suspicion.
What are we doing here? Part 1 is the most authoritarian legislation I have ever seen promulgated in the United Kingdom in peacetime. It is a law worthy of an authoritarian state such as Belarus; it is not worthy of the United Kingdom. Restrictions on liberty as extensive as those possible under the Bill should be applied only on the basis of a criminal conviction. SCPOs are very similar to control orders, the only difference being that they are made by a judge rather than by the Home Secretary and are then judicially reviewed by judges. Control orders were, as I said, introduced to inhibit terrorist mass murder. There is no justification for extending them to the entire criminal justice system, which is what the Bill will do.
The Government say that all this is okay because SCPOs will be made by judges who will act reasonably; they will be aware of the impact of the Human Rights Act and will apply it. That is true, but it is not an answer. We should not create laws which enlarge the scope for injustice and rely on the judiciary to apply them with moderation. What we want are just laws, not the just application of unjust laws. That would be contrary to the rule of law. Part 1 is, I believe, incompatible with the basic principles of the criminal justice system, which have existed in this country for centuries, and it is incompatible with the rule of law.
I would like to think that the Minister, who had a very distinguished career at the Bar, is as aware as I am of the fundamental defects of Part 1. It should be removed from the Bill lock, stock and barrel.
My Lords, I speak as a member of your Lordships’ Constitution Committee. Unfortunately, our chairman has to be elsewhere and, in the best Army tradition, I have been volunteered as his inadequate stand-in.
The committee has produced a fairly brief report on the Bill, and on Part 1 in particular. It was published only last Friday and, as some of your Lordships may not have had time to study it fully, I was going to deal briefly with its main points. However, not having the status of the chairman of our committee, I did not get the position he would have had on the speakers’ list, so parts of the report have already been quoted. I will try to be coherent without being over-repetitive.
We received this morning an extremely prompt reply from the Minister; it seemed not to dispute the substantive comments we made so much as justify—or seek to justify—the departure from the constitutional norm in what she says are the exceptional circumstances of the Bill. I join the noble Lord, Lord Goodhart, in saying how delighted we are to see the noble Baroness back; her presence greatly enhances debates on this Bill and any other on which she will enlighten us.
The final sentence of our report, which has already been quoted, reads:
“Whether or not the trend towards greater use of preventative civil orders is constitutionally legitimate (a matter on which we express doubt), we take the view that SCPOs represent an incursion into the liberty of the subject and constitute a form of punishment that cannot be justified in the absence of a criminal conviction”.
I shall seek to indicate why we reached that conclusion.
Under the Bill, a serious crime prevention order can be made by a civil court acting on the civil burden of proof against someone who has not been convicted of any crime. The Minister says, and I am sure rightly, that the court will impose a quite high standard of proof, but that is not expressly provided for. In addition, there will be no jury, and hearsay evidence and such matters will be admissible, which would not be the case in a criminal trial.
The court has to be satisfied of two things. The first is that the individual has been involved in a serious crime. That can be anywhere in the world and “involved” includes, for example, a person conducting himself in a way that was likely to facilitate the commission by anyone of a serious crime, whether or not that crime was committed. I ask your Lordships to note that the Bill does not in any way say that the individual has to be intentionally or knowingly involved in facilitating the commission of a crime; he has only to do something that is likely to facilitate it; therefore, he can have done it without any fault on his part at all.
The court must then have reasonable grounds to believe that the order would protect the public by preventing or restricting an individual’s involvement in serious crime in this country. Again, it is important to note that that can be any serious crime, not only offences of the same kind as the court believes the individual has already been involved in. The Minister’s response to that criticism is that serious criminals are nothing if not flexible or diverse, and a drug smuggler may switch to people-smuggling. Criminal ingenuity is nothing new, but in this Bill we have committed ourselves for the first time to the proposition that if you have committed one crime you should be deemed highly likely to commit other sorts of crime, although they are not even of the same kind.
A serious crime may be one of those offences listed in Schedule 1, many of which are obviously serious and some of which could be serious or could be trivial. As other noble Lords have said, others seem almost inevitably trivial, although someone such as the noble Lord, Lord Kimball, would think that fishing with a prohibited implement was probably a much more serious crime than murder, treason or rape. However, a serious crime may also be—and this, one would have thought, will raise the eyebrows of most people used to the criminal law—any other offence that the court considers to be sufficiently serious to be treated as if it were on the list. Therefore, the Government accept that the court will have very wide discretion in deciding what fulfils the test, and the person in question may have no knowledge when he was thought to be going to commit or facilitate a crime that it was one that brought him within the legislation.
When the court has decided that the two requirements have been fulfilled, it can make an order containing any prohibition, restriction, requirement or other term as it thinks appropriate for protecting the public by restricting that person's involvement in any type of serious crime. As has been said, the Bill gives examples of the kind of provision that can be made but does not impose any limit. Extremely wide-ranging examples have been read out, but that does not mean that they cannot range even wider.
I come to perhaps the most amazing provision of all: you are not to do anything that a police officer tells you that you are not to do. A police officer can say, “You are not to go out of the house the whole weekend and you are not to allow anyone to visit you”. It can be said that that provision might be set aside. None the less, it will be there unless and until somebody succeeds in having it set aside.
It seemed to everyone on the committee that these provisions are a major departure from the basic principle of English common law, whereby the criminal law is the only mechanism to punish criminal activity and the civil law can grant an injunction only on a claim by an individual who has already been injuriously affected by the defendant’s wrong, and then only to prevent a repetition of that wrong.
It is true that there has already been some erosion of that general principle in football banning orders and in ASBOs, but in our view the Bill goes a long way further and wider than anything which has gone before. It is not for the committee to decide whether the policy of the Bill is necessary, justifiable or desirable. We merely draw the House’s attention to the fact that it seems to constitute a major change to the principles of our constitution, and a change that, we suggest, the House may wish to consider very carefully.
My Lords, the speeches that we have heard this afternoon illustrate a justification for the existence of the House of Lords in its present form. I shudder to think what would happen to this sort of legislation if this Chamber did not exist, given the expertise and depth of knowledge that we have heard today.
I ask myself how it is that the Home Office produces this endless procession of ill conceived and ill thought-out law and order Bills. I conclude that it is because it lacks three things: judgment, practicality and focus. One of the great problems we in the UK have is persuading the European Union to underline proportionality in its proposals. That is also a real problem for the Home Office.
Like most noble Lords who have spoken, I am astonished by the Bill’s schedule of offences. I believe that trout tickling has been mentioned. The Bill refers to offences under the Wildlife and Countryside Act and to offences concerning the treatment of waste under the Environmental Protection Act. If the Home Office regards those as serious crimes, quite apart from the fact that there is a let-out clause to include everything else, all I can say is that the RSPB has missed a trick. It had better get in touch with the Home Office and have the offence of egg collecting included. The RSPCA should get in touch about hunting, which is a perfect offence to include from its point of view. The Open Spaces Society should have a go at the abuse of footpaths. There is plenty of scope for more offences to be added. However, I hope that these Benches will remove such provisions in Committee.
I share the anxieties about Part 1. For me, it is too Stalinist. I refer to the concept of arranging for courts to classify unconvicted persons almost as if they were what were referred to in Soviet days as “enemies of the people”. That is a step away from the light of democracy towards the shadow of totalitarianism and it is quite unacceptable. I hope that it will be removed from the Bill, as other bad things have been from other Bills.
The Government are not doing things that should be done in the Bill. For example, we can make it a great deal more risky for criminals to carry guns in the streets. I shall, therefore, be reintroducing an amendment that I tabled previously to give the police powers to search for firearms. That would be in Part 3, which is entitled:
“Other measures to prevent or disrupt serious and other crime”.
I shall propose a new clause after Clause 75. I very much hope that the Government will recognise that what has happened on our streets since I made the proposal in October has reinforced the case. Those parliamentary colleagues with whom I have discussed this agree with that.
There are other opportunities to improve Part 3. There are proposals to extend data sharing that are not acceptable in their present form. We really need to make sure that we collect the data that we need—that the state collects the data that it needs. As the Minister knows, I have tabled a number of Written Questions, and I thank the Home Office for replying to them much more rapidly than it has in the past; that is a bouquet, at least.
As the Minister may know, Sub-Committee F of the European Union Select Committee, of which I am a member, has been studying the implications of the second generation of the Schengen information system. This is an EU-wide system for the collection and exchange of information relating to immigration, policing and criminal law for the purposes of law enforcement and immigration control. The UK has not, rightly in my view, signed up to the Schengen agreement. We continue to control our own borders. That means that there are limits to the amount of Schengen information that we can share. In my view, any modern state needs to know with certainty who its citizens are and who is residing in the state. The problem is that our present manner of identifying citizens and residents of the UK has been found wanting.
I will give some examples. First, believe it or not, anyone in the UK may lawfully change their name without any notification to the authorities that may need to deal with those persons. The Registrar-General for England and Wales set this out extremely clearly in a letter to me dated 29 January, which was published in Hansard. It said:
“There is no government agency that is responsible for registering the change of name of individuals. There is no requirement to register a change of name for it to become lawful. An individual may choose to make a statutory declaration or deed poll in order to provide evidence of their change of name. There is no central record of all name changes. Individuals are responsible for notifying relevant agencies that they have changed their names”.—[Official Report, 29/1/07; col. WA 15.]
This reveals a system that is quite simply anarchic. It would not inspire any respect from any Schengen member state. Note that, although individuals are responsible for notifying agencies of their change of name, they are under no obligation to do so. The present system is one that enables and, indeed, incites those of evil intention to conceal their identities with full legal cover. I hope that perhaps we might introduce an amendment to correct that situation.
Passports are supposed to enable the Government to control those who enter and leave the country. First, there is no official passport inspection by the immigration authorities of those leaving the country—only the airlines look at your passport, and that is not the same thing, nor is it an acceptable substitute. Secondly, there is only now starting to be an electronic record made of those arriving in the country. This facility is not, I understand, in full operation at all points of entry. If I am wrong about that, I hope that the Minister will correct me.
Next, let us examine the security of a passport. On 31 January, the noble Lord, Lord Bassam, kindly informed me in a Written Answer that, during 2006, the Identity and Passport Service processed 291,000 reports of lost or stolen passports. In the same year, it issued 298,000 replacement passports. How many of those were multiple replacements for the same person? How effective is the cancellation of a lost or stolen passport? How quickly does this information reach our frontiers? Of what use is it to prevent those using a stolen passport from leaving the country?
I was also informed that no attempt is made to cancel the passport of someone who is serving a custodial sentence until he or she has been released. Nor is any attempt made to pass to the security authorities the passport details of British citizens who have been detained overseas, even though the British consular services, when they have dealings with such people, collect the data. That information is just not used.
This ill conceived and ill thought-out Bill offers the opportunity for us to put into it things that need doing and I certainly hope that we will remove the things that should not be in it.
My Lords, I declare an interest: I am a lawyer, but I have never practised in criminal law and I hope that that will not become too apparent during our discussions on the Bill.
There are a number of extremely serious flaws in the Bill, to which my noble friend Lord Thomas of Gresford and other noble Lords referred, and I hope to be able to advert to some of those during the later stages. We are facing yet another Home Office Bill, and it is a Bill that has serious and fundamental flaws which undermine the liberties of our fellow citizens.
I should like to say a few words about the targets of the Bill: the tracing and sequestration of assets, intelligence, the international exchange of information and tax fraud. The Minister has said that many of the targets of this legislation are “not stupid”. That is an understatement. I note that individuals, companies, limited liability partners and presumably trustees are covered by the Bill, but I think that everyone in the House will agree that much serious crime has an international element and that enforcement will, in many instances, depend on the co-operation of other jurisdictions.
We rely on other jurisdictions for exchange of information and intelligence. In Committee, we shall have the opportunity to gauge whether sufficiently effective systems of international co-operation are already in place and whether we are using them adequately, properly and conscientiously. We need information and intelligence from overseas jurisdictions but we also need to be able to recover proceeds of crime from banks and other institutions and even from the most—shall I say?—protective and opaque regimes.
There are additional powers to assist the quest of Her Majesty’s Revenue and Customs to bring tax fraudsters to justice. I appreciate, and wholeheartedly agree with the Minister, that these powers are not appropriate in respect of HMRC’s day-to-day compliance work, but I remind her that in some countries—for example, in Switzerland, I believe—things such as tax fraud are definitely not criminal but civil matters.
The successful detection and prosecution of tax fraud often leads to the discovery and detection of other serious offences. Some years ago, the Government embarked on a series of international negotiations, even involving tax-haven countries, for more open exchange of information. I debated in the other place the first of such orders some two or so years ago. The order gave us very limited rights to obtain very limited information. In Committee, we shall have the opportunity to gauge the progress that the Government are making in tackling serious international crime and their effectiveness in pursuing such crime, given the powers that they already have.
As I said, there are some major and fundamental objections to parts of the Bill, but we shall wish to probe the effectiveness of existing powers, as well as the appropriateness and proportionality of the powers that the Government are seeking to take.
My Lords, I share many of the reservations expressed in your Lordships’ House this evening, but the Minister’s opening words, that this is a significant Bill, should be emphasised. The title itself, simple though it is, should focus our attention on a nationally serious problem.
I am generally comfortable with Part 2 of the Bill, certainly in so far as it covers the encouragement of, or assistance in, crime; inchoate liability, as many of us in this House know, has been a subject demanding address for some time. I am also comfortable with a good deal of Part 3, certainly in so far as it applies to the Proceeds of Crime Act 2002 and the suggested absorption of the Asset Recovery Agency into SOCA. The ARA has been a failure and has not recovered the sorts of sums that it should. One hopes that the projected move will improve that position considerably. However, I, too, have serious reservations about Part 1 and the aspects of Part 3 concerned with data mining—a term that I had not come across before, but which I have no doubt we will explore later.
I look at this issue as two sides of the same coin: the obverse and the reverse. On the obverse, it is one of those rare and strange coincidences that almost exactly 10 years ago, when I was leaving my post as Her Majesty’s Chief Inspector of Constabulary, I saw the launch of an operation against a then target criminal, Terry Adams. This morning, the newspapers are full of his conviction. Unsurprisingly, the Daily Mail had perhaps the biggest headline:
“Downfall of Britain’s ‘Godfather’ of crime”.
It said that, after a £50 million, 10-year investigation, the head of Britain’s most feared crime family finally—“finally” was in capital letters—faces jail.
During those 10 years, it is conservatively estimated that Adams racked up a £200 million criminal empire. Reading the newspapers, you would believe that he is the only major criminal—one name that shone out in that pantheon of criminality above all others. To balance that, one could talk about Kenneth Noye, Curtis Warren, the Charrington brothers or many others. All of them, in my ex-professional experience, have a series of typical attributes. They were and are all ruthless. They are violent to the point of using torture, extortion and murder as an easy recourse. They are avaricious, cunning and corrupting, and, above all, they are wealthy and they swagger. They swagger because they believe, often rightly, that they are impregnable to the deprecations of the law. They put in mechanisms and layers around and beneath them to prevent the legal process from getting to them. They cause mega-billions of damage to our economy, and a great deal of suffering.
I will come to the other side of the coin in a moment, but it is not just that these criminals operate in the stratosphere of crime. One would see two results at street level. First, it is their drugs, large numbers of pirate DVDs, prostitutes, imported firearms, illegal immigrants and protection rackets that affect all of us at street level. That is the scope of the problem. Secondly, small criminals are imitative. Little criminals, naturally enough, aspire to be bigger criminals. They look up at those with bigger cars, better suits and all the trappings of criminal wealth, and they aspire to move up. The higher the level at which we allow the top criminal to operate, the greater the ladder of criminal opportunity.
The Serious Organised Crime Agency was created to deal with core criminals—a very small number of very large fish. It is a multi-agency organisation, and it is not likely to be involved in ordinary, run-of-the-mill investigations. It will not deal with somebody who comes into its office and asks for a crime to investigated, which would happen in the average CID office. It is in the business of being pre-emptive and it tries to prevent, rather than detect, crime. It is in the business of thwarting, disrupting, dismantling and destroying criminal empires, and it goes without saying that it does so within the law. Prevention orders and data sharing could be the way forward but, as has been eloquently expressed from all parts of the House, we must not lose a sense of proportion in this debate. There is too much elasticity in parts of the Bill. There is too great a risk to the innocent and the Bill could be another assault on the central pillars of our constitution and our criminal justice system.
I shall keep my remarks short because the ground has already been covered. Part 1 bothers me as it bothers many other noble Lords. ASBOs have been mentioned; “too many” and “too loose” are epithets that could be attached to them, as they could be to serious crime prevention orders. I have no quarrel with the title—serious crime prevention is what this House and the whole of society should be involved in—but they come suspiciously close to control orders. I believe that the degree of legal uncertainty in the Bill is unacceptable. There is a need for greater specificity within Part 1. There are too few limits on the type and scope of its terms.
We have already explored Part 3. I am not altogether sure what data mining means, but it seems to me that we would have no problem with exchanging data on a target organisation or person. It might have been a good idea to have had that resource to target the criminal enterprise of Adams, the man I mentioned who filled the newspapers this morning. Joint police operations with HM Revenue and Customs sharing information in that way are presumably a good idea.
However, we should not go on fishing expeditions—with my tongue firmly in my cheek, I say that I, too, was surprised to see salmon and trout fishing in Schedule 1 to the Act. As I am a man who spends much of his spare time standing up to his waist in Scottish rivers looking for fish that do not exist, noble Lords might expect to find me in Committee arguing very strongly to keep that provision in the Bill—but, seriously, I share the doubts about some of the examples in Schedule 1. To go on a data-sharing fishing expedition infringing the privacy of millions on the off-chance of catching a few, admittedly quite big, fish would be a step too far. Not so very long ago, the Information Commissioner said that as a society we are,
“sleepwalking into a surveillance society that is already all around us”.
We are talking about means and ends. So far as the end is concerned—combating serious organised crime—let none of us lose sight of the fact that it is a real and dangerous problem. The end set out in the Bill has to be sensible and supportable. It is critical to the social stability and well-being of this nation. We have to give support to SOCA, as it is currently set up. At the same time, we must address very serious questions, in Committee and after, on the means that we use to achieve those ends. I share many of the doubts about how the Bill is drafted so far as means are concerned. I look forward to a full exposure and critical examination in Committee.
My Lords, I endorse the sentiments expressed by my noble friend Lord Goodhart. Perhaps I may say how delighted and pleased we are to see the noble Baroness, Lady Scotland, in her usual place. I thank her for introducing the Bill. Those are about all the good things that I will say for now, but there are many issues that we will need to tease out in Committee.
Two days ago I had the pleasure of a very informal chat with the noble Lord, Lord Peston, in the Library. The conversation turned to the Serious Crime Bill. We both agreed that there was a basic flaw in the way in which the Bill is framed. Nowhere is there a clear definition of “serious crime”. We have a category of crimes that are identified as serious. I will name a few: drug, people and arms trafficking; prostitution and child sex; money laundering, fraud, corruption and bribery; counterfeiting; blackmail; intellectual property offences; and environmental offences.
The first question for the Minister is: if there is no definition of serious crime, where is the threshold at which a crime becomes a serious crime? When is a serious crime downgraded to a not-so-serious crime? Schedule 1 to the Bill lists serious offences. That is helpful, but what will Joe Public make of that schedule? A number of noble Lords have talked about the issue of seriousness in relation to paragraph 11(1), which refers to,
“fishing for salmon, trout or freshwater fish with prohibited implements”.
If I were an angler, that would be a very serious matter, but how do you convince people in our inner-city areas that robbery with violence or gun crimes are less serious than a fishing expedition?
No one would dispute that serious and organised crime must be tackled. That is a common understanding among us. Such crime blights the lives of law-abiding citizens, and prevention and detection must be at the heart of any legislation. Equally, we must ensure that no criminals benefit from it. For those reasons, we want the Serious and Organised Crime Agency to succeed.
We do not dispute that Parliament should ensure that the law enforcement agencies have all the tools necessary to eradicate crime, but, in doing so, we must tread very carefully on matters of rights and liberties. My noble friend Lord Goodhart spelt out the dangers. I was delighted to listen to the noble Lord, Lord Dear, with his vast experience of policing matters and of a number of major investigations that he has led. His experience is so vital that we should take serious note of what he says about Part 1. That is the advantage that we have in the House of Lords, compared with the people in the Commons; we have people with vast experience on the issue that we are dealing with and, if we do not take their advice, we do so at our peril.
Part 1 introduces a new serious crime prevention order, which would take the form of a civil injunction, a breach of which would be a criminal offence. The proposal is similar in its construction to the current sex offender order, which can be used to place restrictions on someone previously convicted or cautioned for sexual offences who is behaving in a way that is preparatory to committing a further offence. For example, if someone with a history of sexual offending against children has started hanging around near school playgrounds—which is not in itself a substantive offence or an attempt to commit an offence—a court can pass a sex offender order requiring him to refrain from doing so. That is a reasonable power, which can be of obvious value in preventing crime, provided that it is used appropriately and proportionately.
Under the Bill, for a crime prevention order to be imposed, an offender must previously have been involved in serious crime; he or she must now be behaving in a manner likely to facilitate further serious crime; and the court must consider that the restriction that it imposes will prevent the offender’s involvement in further serious crime.
However, the scope of the provision is drawn very widely. In particular, the Bill is vague about what activity counts as serious crime. As I said, Schedule 1 contains a list of offences, but they include offences such as fraud, which range very widely in seriousness. Particularly disturbingly, Clause 2(2)(b) also allows courts to pass a crime prevention order on people with previous offences that are not specified in the schedule but which,
“the court considers to be sufficiently serious to be treated ... as if it were so specified”.
In other words, the court can regard any offence that it likes as serious. That is an Alice in Wonderland definition; it is effectively saying that words can mean whatever the courts want them to mean. That is an unacceptably wide degree of discretion to give courts in relation to powers that could potentially be used to impose significant restrictions on the liberty of individuals who have not been convicted of a new offence.
This is where we need to take serious note of the Constitution Committee’s report on the Bill—a point well stressed by my noble friend Lord Goodhart. Many noble Lords have commented on matters relating to serious crime prevention orders and, in particular, about the far-reaching restrictions that may be placed on a person against whom no criminal proceedings have been instituted.
The Government’s strategy to defeat organised crime now goes beyond intelligent policing and law enforcement provision. The Bill now introduces measures to prevent crime from happening in the first place. Have the Government quantified the resources, both financial and administrative, that are required to deal with this area of offences? At present, nearly 10 young persons a week are sent to prison for breach of ASBOs. What will be the impact on the prison population if that trend continues with the so-called adult ASBO orders?
Part 2 abolishes the offence of incitement and replaces it with two new offences: one of intentionally encouraging or assisting crime; and one of encouraging or assisting crime believing that an offence will be committed. In principle, that is a welcome provision, which will both clarify the law and remedy a lack of logic in the current common-law provision. Currently, someone who encourages another person to commit a crime is guilty of an offence, even if the other person does not in fact commit the offence, but someone who actively assists another person to commit an offence does not commit an offence if the other party does not in fact go on to commit the crime. There is an obvious lack of logic in treating words of encouragement as more serious than the deed of actually helping someone to commit a crime—for example, by giving another person an instrument for them to use in a burglary or an assault.
The newly formulated offences proposed in the Bill, which are based on recommendations by the Law Commission, would make the law more logical and consistent. They are limited to circumstances in which the individual either intends a crime to be committed or assists someone to commit a crime believing that it will be committed. The Government have wisely retreated from the idea of defining the mental element in the offence more widely than the Law Commission recommended, which they were considering at one point. Although the detail of the provision will be scrutinised carefully in Committee, the overall shape of Part 2 seems to be reasonable and any lingering doubts could be resolved in Committee.
Part 3 contains a range of measures on the provision of information for the purpose of preventing and detecting fraud. It also transfers various functions of the Assets Recovery Agency. I need not go into that, because generally that organisation has had a record of failure in recovering assets. Let us hope that SOCA will achieve better results than the ones that we have had so far.
To sum up, the Bill contains some measures that, if used appropriately, could play a legitimate and useful part in tackling serious crime. However, some aspects of the Bill, particularly Part 1, contain wide and loose definitions, not least of serious crime itself, which must be clarified and, where necessary, restricted before this legislation reaches the statute book. If that is not done, the Bill is heading for serious trouble during its further stages in this House.
My Lords, I follow other noble Lords in welcoming the Minister back to the Dispatch Box to introduce the Bill. We in this House have certainly missed her. We missed her on the Corporate Manslaughter and Corporate Homicide Bill, which has been taken very ably through the House by the noble Lord, Lord Bassam, who is sitting on her right, assisted by, I think, two noble and learned Lords. We probably also missed her on other Bills. However, I suspect that the Home Office has also missed her. By my reckoning, this is probably the 60th piece of Home Office legislation in the past 10 years since new Labour came to power. I understand that there were only 48 pieces of Home Office legislation in the previous 100 years. One suspects that the legal department, or the drafting department, or whatever it is, of the Home Office has been getting bigger and bigger—growing, I suppose, like Topsy. At the same time, I suspect that other departments in the Home Office have suffered reductions; we all know the result of that.
Furthermore, it is only two years since we had the Serious Organised Crime and Police Bill. This Bill is called simply the Serious Crime Bill. One really would like to know what the Home Office is up to by introducing quite so much legislation. Will this, as I suspect quite a lot of the other legislation did, sound as though it will do a great deal but, in the event, not achieve much at all? Is it simply the macho posturing of the Home Secretary, or is it mere legislative gesture politics, as I think I have described other legislation?
This evening, we get back to the Bill itself, and I shall put several questions to the Minister, which I think she should answer. Many of them have already been asked far more ably by noble Lords from all sides of the House. Here are a few that bear repeating. First, much has been made of ASBOs and of control orders. As my noble friend Lady Anelay made clear, they are simply not working as they should. The Minister should let us know how she thinks the prevention orders, which deal with serious, organised criminals, will work. Secondly, as several noble Lords have made clear, the burden of proof will be decided, as I understood it, and as I think the noble Lord, Lord Thomas, understood it, on a balance of probabilities. The noble Lord quite rightly intervened to ask the Minister whether that was the case. She said that it was, but that the burden of proof in this case would be much tougher and much nearer to the criminal burden of proof. However, the balance of probabilities in Clause 1(1)(a) and (b) looks just the same as it did, and we need more than just the Minister’s assurances to deal with this. Clearly it would be no bad thing to have an amendment to the Bill.
We also need to address the question asked by the noble Viscount, Lord Bledisloe, which arose from his examination of the Bill in the Constitution Committee; namely, what evidence would be allowed to go before the High Court in these cases, and would, for example, hearsay evidence be admitted on these occasions, if I understood the noble Viscount, in the way that it would not in a criminal case?
I turn to the list of offences in Schedule 1. A number of noble Lords quite rightly made light of them and I would probably want to do so. Does the noble Baroness remember the seminal Mel Brooks film “Blazing Saddles”? The chief bad guy, when persuading his gang of hoodlums to attack some small, benighted town lists all the offences they are supposed to commit: murder, rape and arson, and on he goes. If this Bill had been passed and he was listing all the crimes they had to commit, he would have to add fishing for salmon, trout and freshwater fish with prohibited implements. It seems extraordinary. To treat it slightly more seriously, as the noble Lord, Lord Dholakia, did, how do you explain to the man in the street or the man on the Clapham omnibus what a serious crime is when you have included fishing but not, as my noble friend made clear, armed robbery? All of us see that as a serious crime and certainly one that serious, organised criminals get involved with.
Four pages of the Bill are devoted to Schedule 1 and the same four pages are repeated for Northern Ireland. That seems completely unnecessary because under Clause 2(2)(b) the judge can then add whatever he wants, a point made by the noble Lord, Lord Goodhart. The list in Schedule 1 is therefore not necessary because the judge can decide what will be a serious crime if it is not listed. The noble Baroness ought to assist us—we will certainly assist her in Committee—to bring further light to this extraordinary list.
Clause 5 deals with the type of provision that may be made by orders. Clause 5(1) refers to the type of provision but adds that it does not limit the type of provision that may be made by such an order. Again, it seems that there is no limit to what the judge can do. I suspect that those like the noble and learned Lord, Lord Lloyd, who have served as judges would agree with me when I say that these are not things that would be right and proper for a judge to decide, just as it is probably not right or proper that a judge should decide exactly what is a serious crime when he cannot find it in Schedule 1.
I turn to less controversial parts of the Bill. Part 2 deals with encouraging or assisting crime. The Minister made it quite clear that this was largely in response to Law Commission recommendations. She admitted that they are complex and technical and agreed that they would need careful examination, I think she is right. She said she looked forward to exploring this in detail and so do we. As my noble friend made clear, we particularly want to expose and explore those areas in Part 2 where what the Government have included is different from what the Law Commission recommended. It is important that we look at that matter in detail in Committee.
I turn to Part 3 and what my noble friend described as the very sweeping changes it makes to our data protection laws. This needs very careful examination. My noble friend Lord Lucas referred to the need to collect yet more information. I think I ought to warn him that if yet more was collected, particularly by the Home Office, we really do not know what would happen to it, because we know what has happened to a great deal of other information that has been passed on. There are certainly some very worrying aspects to all this, particularly in relation to data sharing between different agencies, both public and private; in other words, the ability to look at the details of one's credit cards, store loyalty cards or whatever to try to find patterns that might indicate criminality. We want to look at certain things, but we will enter that process with an open mind, as my noble friend said.
The last part of the Bill on which I want to comment is Chapter 3 in Part 3. The noble Baroness will remember that Clause 75 which is, in effect, Chapter 3, relates to the extension of powers of Her Majesty's Revenue and Customs. I am always very alarmed when I see any extension being granted to HM Revenue and Customs. We know that Revenue and Customs has always had very excessive powers and probably still does. However, I am grateful for the assurance from the noble Baroness that the new powers may be used only for the investigation of serious crime. As I said, bearing in mind the already very extensive powers that HMRC has, we would certainly wish to explore that matter further.
I do not wish to be negative about the Bill and I hope I have not been. I end with a brief suggestion about how the Bill can be improved and what we can do to assist further the appropriate authorities in the fight against crime. I ask the noble Baroness to take note of what the noble and learned Lord, Lord Lloyd of Berwick, said. He seeks to improve the rules of criminal evidence by allowing evidence obtained by the use of phone tapping and other electronic surveillance to be admissible in court. I hope that the noble and learned Lord will seriously consider tabling amendments about that. If he does, we shall certainly support them, and if he does not, we would be willing to table them ourselves. I hope that in advance of the Committee stage the noble Baroness will give some indication that she will be able to accept such amendments.
My Lords, I thank all noble Lords for their participation in the debate. I thank most warmly the noble Lord, Lord Goodhart, the noble Viscount, Lord Bledisloe, the noble Lord, Lord Dholakia, and others who have expressed such kindness about my current position. Many have written to me and I thank the noble Lord, Lord Henley, for joining in that kindness. At one stage, I thought that the expression of condolences was just to see whether the House could do that which it has never achieved before: to make me cry at the Dispatch Box.
I also thank those who have supported the ethos and the purpose of the Bill, even if not all have wholeheartedly supported the way in which it has been done. Some of the barbed support will certainly be taken on board. I thank, in particular, my noble friend Lady Gibson of Market Rasen and the noble Lord, Lord Lucas, for his support in relation to data sharing.
I understand the anxiety expressed about ensuring that the provisions to address these very serious offences are proportionate and fair. I take on board the comment made by the noble Lord, Lord Goodhart, that law has to be just, as well as being justly applied. Those issues are very important indeed. I warmly thank the noble Lord, Lord Dear, because he encapsulated so beautifully the danger that is posed to us and to our communities by serious, organised criminals who undertake their pernicious crimes with a sense of arrogance, disregard and wholesale criminality in a way that is very shocking indeed. Our need to grapple with those issues cannot be underestimated and I am very grateful to the noble Lord for giving us such clear examples as to why that is so.
I also take very seriously the concerns expressed by the noble Lord, Lord Dear, the noble and learned Lord, Lord Lloyd, and the noble Lords, Lord Thomas of Gresford and Lord Goodhart, among others, about the need to get this right. That cannot be underemphasised. I particularly want to say how much I agree with the noble Lord, Lord Burnett, that this issue does not just affect us in the United Kingdom. Regrettably, serious crime has become an international business. These are multi-national criminals who often carry out their pernicious practices in many jurisdictions. Therefore, the need to understand comity and how we promote effectiveness and appropriate measures is absolutely critical.
I do not share with some noble Lords the belief that ASBOs, for instance, have been unsuccessful. I know that that view was initially expressed by the Liberal Democrat Benches, but I have had the joy of seeing a Damascene-like conversion: many Liberal Democrats have now joined to support the efficacy of anti-social behaviour orders if appropriately and proportionately used. I understand entirely the need for that.
That is why I want to remind the House that we have put certain stringent boulders in the way of inappropriate use of these orders. These are not orders which we think will be used on a wholesale basis, but orders which will be capable of being used very judiciously. That is why it is not the general Crown Prosecution Service which will be empowered to ask for these orders. Only three prosecuting authorities will have the ability so to do. I hope that the House will accept that the three identified are those that are charged on our behalf with dealing with the most serious offences. The evidential burden that will need to be discharged will rightly be heavy.
I thank those who have acknowledged the sliding scale in relation to the balance of probabilities. The noble Lord, Lord Goodhart, correctly referred the House to the McCann case in 2003 which set the standard very clearly for those who thought that it might, as time has passed, have come in doubt. It reaffirmed that he who asserts must prove and if the assertion is of a serious nature one has to produce commensurate evidence to discharge that balance of probability. In the most serious issues, quite often the distinction between the criminal standard and the civil standard will be negligible.
My Lords, the reason that the civil test is the appropriate one is that there may be different factors which will need a different level of proof. The noble and learned Lord will know well that we are—I do not hesitate to say—blessed with some of the best judges that the world has on offer. Our judges are very used, as the noble and learned Lord will know from his own experience, to making that judicious balance as to which factors need to be proved beyond reasonable doubt, which factors need a heavy burden of probability before the court would be capable of being satisfied about it and which factors can be safely used to a lesser burden. Overall, the court will take into account the different parts of the evidence and in the end have to judge whether the totality of the evidence produced reaches the commensurate standard with the assertion which has been maintained by the party so that it is discharged. That has proved over time to be an extraordinarily flexible and accurate tool for those properly trained to employ it. My noble friend Lady Gibson is therefore right about training. Noble Lords will know that particularly now with the Judicial Studies Board, every time we have new legislation we can ensure that there is appropriate training not only by legal practitioners but also by the judiciary in how to respond. I can assure her on that important matter.
I shall now concentrate my remarks on Part 1 because it has excited the most concern in the debate. I thank the noble Baroness, Lady Anelay, for the way in which she approached even Part 1, and because both she and the noble Lord, Lord Henley, along with a number of other noble Lords, have made it relatively clear that there is less concern about Parts 2 and 3, although there are issues related to data sharing and the operation of the Data Protection Act. The nature and specificity of the offences covered by Part 1 are important. I was tempted to rise during the debate to try better to explain the fishing example, but I confess that I was so enjoying the enjoyment of noble Lords in making their case that I hesitated to do so until it was my time to speak.
We have some serious environmental issues to tackle in relation to the inappropriate fishing of endangered species. They are fished on a wholesale basis for gain. It is a serious crime which damages both our fishing industry and that of Europe, and we are obliged to address it with appropriate seriousness. There is also the problem of dumping at sea, a form of pollution which has environmental consequences. These are serious crime targets that we are seeking to deal with in this Bill.
Certain cases are systemic while other serious offences are one-offs. We are looking at things that happen repeatedly. I also want to reassure the House that we are clear that if serious crime is identified, it should be investigated, prosecuted and the perpetrators brought to trial wherever possible. This part of the Bill looks at prevention, once patterns of serious crime have been established. It looks at how to prevent those who have been so identified continuing those patterns of behaviour. I anticipate that we will spend some time in Committee dealing with how to establish and define serious crime, what is its nature, its quantum and its continuity, and I understand why the House has identified this as an issue. Bearing in mind what the noble Lord, Lord Dear, described so graphically, I hope that together we will be able first to come to a common understanding and then to craft something with which noble Lords will at least feel content.
During the debate I have encountered some issues that are old friends. One of the oldest of these is intercept. The issue has now become very dear to me. I cannot but see the noble and learned Lord in his place to know that any debate at any time on any day on any issue should have intercept woven somewhere into its fabric. If it were not, I would be deeply disappointed. The same is true of the noble Lord, Lord Marlesford, and I hold the issue of gun crime in the same degree of affection given the debates that we have enjoyed over time. Indeed, I thank the noble Lord, Lord Marlesford, for sending his bouquet in relation to my answers. It is a rare bouquet; I acknowledge it and I am grateful for it. We have canvassed the issue on a number of occasions. We understand what the noble Lord intends to present but I anticipate that we may come to a similar conclusion.
I understand why the issue of intercept has been raised again, and the noble and learned Lord will know that it has remained under active consideration. The issue has not been resolved but, as he and other noble Lords will know, that has not been as a result of a lack of energy. There are difficult and complex points to be resolved. I reiterate that if it could be safely used, the Government would have no objection in principle. We have not yet found a way of using it safely but that does not mean that we will not continue to look at the issue.
Once it has been established that a crime has been committed, we have the possibility of using the orders on a preventive basis. We believe that if they could be used judiciously, appropriately and in a restrained way, it would accrue to our advantage and not our disadvantage.
I am conscious that I have about seven minutes in which to cover Parts 2 and 3. Therefore, if I may, I shall deal more briefly with the other issues raised. I hear with absolute clarity the concerns about mining for information. As I said in opening, the data protection provisions will remain. We were very anxious about the concerns expressed by the Information Commissioner, whose role is to scrutinise issues and to ensure compliance and that he is consulted. We have continued that consultation and are relatively assured that what is proposed in the Bill does not trespass inappropriately on the data protection provisions.
I can assure the noble Lord, Lord Lucas, that we are actively discussing with the commissioner the concerns which he expressed about scrutiny. We are already working with the Information Commissioner at official and ministerial level. As the provisions are enabling powers, the Information Commissioner’s role in them has still to be decided. However, we are committed to creating a transparent, proportionate and fair system which ensures that the right people receive the benefits and services that the provisions are intended to create. As noble Lords will be aware, the Data Protection Act already allows us to deal slightly differently with data for criminal and other purposes. Nothing that we propose in the Bill will trespass against those principles. The noble Lord, Lord Goodhart, raised extensive queries about what that will mean and how we will take it forward. Although I should like to give him a very detailed response, I know from the sheaves of paper in my hand and what is in my head that that may take some little time. We now have notice of all the issues which the House would most like to have answered. I can promise noble Lords that, in Committee, we will bear all those in mind and seek to address them. I thank noble Lords for indicating their concerns now so that we can bear them very much in mind when responding to any amendments.
The tax provisions are very similar to those that already exist. We have transposed the existing provisions into the new provisions in a way that we think is proportionate and temperate.
Before leaving this whole debate, I should like to say that I know that many disobliging comments have been made about the Assets Recovery Agency. With regard to its performance, we need to bear a number of issues in mind. First, it was a new agency. Secondly, the methods it was using to collect assets were complex and untested, and were challenged in the courts. That has reduced the speed with which it was able to work at the inception of the process. The agency has actually been successful, and has defeated all those challenges. As a result, the courts have been able to define what the agency can and cannot do, and what the process is. We have found in the past year that performance has speeded up considerably. This has been the most successful year so far. We anticipate that the outstanding claims, which were taking longer because of that process, will now come through.
I understand the anxieties in what has been said, but I also believe that had SOCA been in existence before we created the Assets Recovery Agency, we would probably have had one agency. I agree with what was said by the noble Baroness, Lady Anelay, that this is a sensible move. SOCA is a very impressive organisation, and we are hopeful that the amalgamation of the two agencies will greatly accelerate our ability to asset-manage.
I know that I have not dealt with each and every issue raised seriatim, but I assure your Lordships that I intend to answer fully when we come to debate this in Committee. I thank the House for its kindness to me and its welcome back, notwithstanding the nature of the Bill I have to propose.
On Question, Bill read a second time, and committed to a Committee of the Whole House.
Waste Electrical and Electronic Equipment (Waste Management Licensing) (England and Wales) Regulations 2006
rose to move, That a humble Address be presented to Her Majesty praying that the regulations laid before the House on 15 December 2006 be annulled (SI 2006/3315) 7th report from the Merits Committee.
The noble Lord said: My Lords, in moving this Motion I shall also speak to the Waste Electrical and Electronic Equipment Regulations 2006, which are the main regulations that we are now going to debate.
At last we have the WEEE regulations, seven years after the European Commission first proposed the directive, four years after the directive was agreed and with an implementation date that is some two years late. I welcome them like I welcomed getting to Kings Cross station when I came down on Monday and we were four hours late due to problems on the line: it was good to be there, but one wondered why we had not got there quite a lot earlier. Nevertheless, we need to put down some markers for the future because these are complex regulations and it is not at all clear that they are going to operate smoothly in practice. Today’s debate is perhaps a small first step in that direction.
The Government are up before the European Court for what is called an infraction. Perhaps the Minister will comment on that in his reply.
What I thought would be a fairly modest and mild debate was the subject of a vituperative Tory press release yesterday. I was denounced by a man called Alan Duncan; I had not heard of him before, but he is some bigwig in the Tory party nowadays. Perhaps the noble Baroness, Lady Wilcox, will have a word and tell him how we do things here. This kind of debate is a useful, low-key, not very political way of scrutinising European legislation.
The regulations, which deal with the disposal of waste electrical and electronic equipment, inevitably bring a new collection of acronyms. There are designated collection facilities—DCFs—where people will be able to take and dispose of their waste electrical and electronic equipment. There are approved authorised treatment facilities—AATFs—where the equipment will be treated, recovered or recycled rather than being put in landfill. Producer compliance schemes—PCSs—are systems the producers will use to organise this. There is the difficult question of individual producer responsibility, which I shall deal with in a moment, and various others.
The Explanatory Memorandum sets out clearly in paragraph 4.1 what the regulations are for, based on the directive. It says:
“These Regulations implement the main provisions of the Directive by introducing a waste management for WEEE in the United Kingdom that is intended to: (a) minimise the disposal of WEEE as unsorted municipal waste by establishing a network of designated collection facilities in the United Kingdom; (b) ensure that all WEEE from private households that is collected at such designated collection facilities is sent for treatment, recovery or recycling to authorised treatment facilities or exporters that are approved under these Regulations; (c) achieve the recovery targets set out in the Directive; and (d) provide that producers of EEE are registered and that they are responsible for financing the costs of managing the waste that arises from EEE in each compliance period”.
This is, on the face of it, a sensible way of going about things. It is, however, an extremely complex scheme. I pay tribute to the Merits of Statutory Instruments Committee, whose seventh report of the current Session is extremely useful and informative and will help people understand how we hope the regulations will work. A minor advance in House of Lords procedure took place during the Merits Committee. It was the first time the committee had taken oral evidence, which it took from three members of DTI staff. There has been talk of revolution this afternoon in your Lordships' House, but one of the things I have learnt since I have been here is that a lot of the useful advances and changes that take place are evolutionary. There has been a slight but important advance in the way in which we scrutinise legislation.
Who is to blame for the delays? It would be easy for me to stand here and blame it all on the Government. I am not going to do that, although I think that mistakes were made in the early years. A lot of the blame has been associated with the requirement for individual producer responsibility—IPR. The European directive requires that this should be included in the legislation, but it is not because it has been discovered that it is technically impossible to do. It is almost certainly not being done anywhere else in Europe either. It is interesting that this was a result of the co-decision process—the negotiations between the Parliament and the Council—and the Parliament got the upper hand and insisted on individual producer responsibility. There are lessons here for all of us as politicians that high principles are fine but unless you work out how they will be carried out, they will not work and you will end up with a lot of delay and angst.
My main concern about how these regulations are going to work is based at what is called the consumer level—the household level, at which individual people are throwing out this kind of equipment. The Merits of Statutory Instruments Committee had a long discussion about toasters—and the fact that the committee chose to have a long discussion about toasters from all the items of electrical or electronic equipment really says something about the Members of the House of Lords. A group of 25 year-olds having the same discussion would talk about iPods, not toasters.
Schedule 1 to the regulations sets out 10 categories, and it lists lots of items within those 10 categories which include large household appliances and big white goods such as fridges, freezers, cookers and so on; small household appliances; IT; consumer equipment, including TVs, radios and video recorders; toys; lighting equipment; and tools—anything at all that is powered by electricity up to 1,000 volts. What are people going to do under this new regime when they want to throw something out? Is anything significant going to change?
In the very interesting evidence given to the Merits of Statutory Instruments Committee, Mr Tony Pedrotti said:
“The consumer—you and me when we get rid of our waste electrical equipment—is going to be carrying on doing roughly what we do now”.
If we are all going to carry on doing roughly what we are doing now, is this actually a major step forward? I question whether that is the case. People can take large items to designated collection facilities, which will be civic amenity sites or waste disposal depots; they can have them removed by people coming to install new equipment, but they may have to pay for that; or they can take it to a shop where they are buying a new item as long as it is the same kind of item—and under the new rules that shop may take it for free, or it may not. The shop may say that the customer has to go to the designated collection facility and, if that is three or four or 10 miles away, the item may go in the bin instead.
Most small items are, frankly, still going to go in the wheelie bin. Toasters, kettles, clocks, CD players, mobile phones, iPods, little computers, toys, radios, electric whisks and electric toothbrushes will all go in the bin—even light bulbs. A curious thing about the regulations is that they will cover modern low-energy light bulbs but not the traditional filament light bulbs. The Minister may want to comment on that.
Why does the legislation not include the collection authorities at local level? Why does it not include the district councils, which collect the rubbish, and not only the people who dispose of it? Councils could do this work as part of their general recycling work, which is pervasive throughout the country. Most people nowadays are asked to separate the recyclable stuff from the general stuff; in many cases, people are asked to separate the recyclable stuff into three or four different streams. Why on Earth is WEEE stuff not included in that system? If we are serious about increasing considerably the quantities recycled, that is the way we should go. It is said that on average we throw away 14 kilograms a year and the target is only 4 kilograms—and we are achieving that already. It seems to me that the fundamental fault in these regulations lies at the district council level. I hope that the Minister can reassure me on this matter and that he will at least say whether it will be looked at as part of the review, which I understand will take place fairly soon.
We should wave through these regulations but they are going to run and run. There is talk in the Merits Committee of a review and a report to Parliament. We all hope that the measure works and that everyone involved will make a success of it—what the Minister might call stakeholders, but I do not. How long will it be before the scheme is assessed and evaluated so that we know how much of a success it has been? Will it be one year or five years? I offer the hope that when that evaluation takes place we shall have a further debate in Parliament to consider whether this legislation has succeeded or failed and what might be done to improve it. I beg to move.
Moved, That a humble Address be presented to Her Majesty praying that the regulations laid before the House on 15 December 2006 be annulled (SI 2006/3315) 7th report from the Merits Committee.—(Lord Greaves.)
My Lords, the noble Lord, Lord Greaves, clearly established what this legislation is all about. Curiously enough, I am more interested in the process behind the measure than in its implementation, but we should be aware of what we are talking about. I am told that people in this country throw away 5 million television sets, 2 million home computers and 8,000 tonnes of battery operated toys per annum. Since 2003, we have generated 3 million tonnes of electrical equipment waste. That is a huge problem. If it does not indicate what we are dealing with and why we need these regulations, nothing will.
I am interested in the process behind the measure. It seems that the Government’s reaction to a European directive is that it is an act of God: there is an almighty flash of inspiration, the European Commission—in this case, God—comes up with a directive and the Government are totally surprised. However, that is not the situation at all. These directives do not come from above in a flash of lightning; they are the product of years of negotiation, in which our own negotiators play a very active role. If the negotiators and the Government have talked to each other—I assume that that happens—one might think that we and the Government would be ready to start doing something about a directive when it arrived, instead of being taken by surprise and spending two more years talking about it.
There was a classic example of such an approach the other day, when my good friend the noble Lord, Lord Rooker, replied to my question on batteries. His answer was absolutely out of this world; he completely gave the game away. “Ah, my Lords”, he said, “the answer to that is that we have a directive coming”. The real question is: if a directive is coming and we know that there is a problem about which we ought to do something, could we not start to act without the directive? That is neither here nor there, but one wonders about the process in those circumstances.
This area is particularly difficult, and I acknowledge the Government’s problems with it, particularly the liability of individual producers. As the Merits of Statutory Instruments Committee pointed out, nobody has yet overcome that difficulty effectively. I suspect that a review may conclude that we have to wriggle round that provision or get rid of it. That is just a part of the problem of dealing with this matter but it does not excuse the delay.
Getting rid of computers is very difficult. When you throw out a computer, it still contains all the information stored on it. Unless you take a seven-pound hammer to it and smash it into pieces so small that no one would take the trouble to do anything about it, you could be throwing away the records of your family finances, allowing access to credit cards and so on. It could be dangerous if the computer fell into the wrong hands.
I know a firm in north London that makes a good business out of taking old computers, for nothing, and sweeping them until they are clean. Microsoft has given the firm permission to reinstall a somewhat dated programme, and the computers are sent into the community: to old people who want a computer, old people’s homes, hospitals and anywhere people may want the private use of a computer. The firm also trains people in computer use and so on and provides a wonderful service. I am not sure how that fits into these regulations, but computer recovery is a much better business than computer dumping. I agree that television sets cannot be recovered in that way, still less the proverbially difficult toasters, but there are other ways of dealing with aspects of this problem.
Although I sympathise with the Government about the difficulties in these regulations, if we were awarding points on performance, we might give a high mark for artistic impression but a very low mark for execution, because we should have been at this point two years ago. That is a criticism. As the noble Lord, Lord Greaves, has pointed out, this debate is part of the process of examining how we arrive at European directives. If there is a lesson to learn from what has happened in the infraction proceedings that have commenced, it is that we ought to take much more notice of what our negotiators are doing in Brussels so that we are not as ill prepared as we clearly have been when directives arrive from on high in a flash of lightning and take us all by surprise.
My Lords, I congratulate the noble Lord, Lord Greaves, on securing this debate on these regulations. They will not come into force until July this year; that is two years late, but this is a case of “worse late than never”. Late as they are, these regulations remain fraught with potential problems, as the 7th Report of the Merits of Statutory Instruments Committee, to which the noble Lord, Lord Greaves, referred, makes clear.
That report and evidence are studded with qualifications and useful words such as “challenging”, which is Defra-speak meaning that not only will it not happen but there will be a giant cock-up. In his evidence, Mr Pedrotti, the spokesman for the DTI, made his frustration clear when he stated,
“the most difficult part was where people signed up to the Directive who did not understand what it actually means in practice”.
I guess that if you do that it makes it quite challenging to implement. Mr Pedrotti went further: talking about individual producer responsibility (IPR) he said that it “has proved technically impossible”. I will not go further into the shortcomings of these regulations, because the noble Lord, Lord Greaves, and my noble friend Lord Dixon-Smith have dealt with them well.
Rather like my noble friend, I wish to examine the process, but from a different angle. What are we really doing in this House, passing this dog’s breakfast of legislation into law? We are obeying the diktat handed down by the Commission and the comitology process in Brussels. It is what Ministers like to call “fulfilling our treaty obligations”. That is all too painfully true. I am sure that your Lordships do not need reminding that neither this House nor the elected Chamber has any standing whatever when it comes to dealing with EU legislation. Witness this evening’s debate: we may criticise, complain, make suggestions and pick holes in the whole process, as the noble Lord, Lord Greaves, has done tonight, but it will not make any difference at all, I am sorry to say. We must, in the immortal words of Sir Con O’Neill,
“swallow the lot, and swallow it now”.
The noble Lord will not be able to call a vote on his Prayer, and I wonder whether we might all be better employed doing a crossword or a sudoku puzzle than standing here this evening.
That applies to every single regulation and directive that comes out of Brussels, more than 100,000 pages of law in the past 10 years, all of which have been passed into British law without Parliament having any input whatever. Ninety per cent of those regulations and directives are nothing but an unnecessary burden on the UK economy, whether it is the horse passport directive, the water framework directive, the landfill directive, the working at height directive, the vibrations directive or—a matter on which I asked a Question the other day—the financial services action plan. They are all a burden on the British economy. They add unnecessary costs and complications to our national life.
An excellent example of this were the curd cheese regulations, on which the noble Lord, Lord Greaves, was kind enough to support me about a month ago. It was manifestly unfair legislation, which bankrupted a successful small business. It would never have been railroaded through Parliament if Parliament had been responsible for introducing these sorts of regulations. But, as the noble Lord, Lord Warner, admitted, this was an EU competence; we had no choice but to swallow the lot and swallow it whole.
The German Parliament has recognised that 84 per cent of its laws now emanate from Brussels. Its Leader has openly questioned whether German democratic government can be said to be functional if so much law is passed through the Parliament without it being able to do anything about it. If Germany admits to 84 per cent of its laws coming from Brussels, can we be very far behind? Let us say that 78 per cent of legislation enacted by Parliament here comes from Brussels, for which we are merely a rubber stamp. There seems to be a general passive acceptance of this frankly extraordinary situation, where a democratically elected House and its second Chamber can only wave through without amendment 70 per cent of the legislation that comes before it.
I was interested to see in the report of the Merits of Statutory Instruments Committee that my noble friend Lord Jopling, who was a member of the committee, had a bit of a go at this, although from a different angle. He asked Mr Pedrotti of the DTI, who was giving evidence:
“Do you think it would be a good idea to tell the department that for future pieces of secondary legislation many people in Parliament resent orders which are laid on the brink of a recess to come into effect whilst Parliament is still in recess?”
Mr Pedrotti agreed that that was wrong. But I am afraid that I have news for my noble friend Lord Jopling: his point was purely procedural; it would not have made the slightest difference because it was EU legislation.
Surely we are a grown-up country and should be capable of enacting all our legislation where it is necessary to do so. We are told that we are the oldest democracy and the fifth largest economy in the world. We should be capable of running our own show. We do not need the EU to tell us how to dispose of our electrical waste. If Japan, Switzerland, New Zealand, Australia and America can do so, why cannot we?
I suggest that it is time to examine the role that Parliament plays and the way that it deals—or, rather, does not deal—with EU legislation. Parliament should have the right to amend or reject all EU legislation, or perhaps we should just stop signing the cheques.
My Lords, I know little about this instrument, or directive, that my noble friend Lord Greaves has talked about this evening, but I want to raise one or two issues that have come out of the discussion.
The statistic of 84 per cent regarding German legislation was very interesting. I have no way of verifying that figure but it is probably correct because Germany does not have the equivalent of a Home Office to legislate very widely and frequently.
The key issue is that if we wish to have a true single market for goods and services, we must ensure that there are no technical barriers to that trade. In that way, many British companies and industries have been successful in their exports and trade with other European partners. I strongly believe that it is a reasonable area of authority for the European Union to demand that manufacturers, whether importing into the EU or manufacturing and selling within it, increasingly produce products which can be recycled effectively and efficiently.
I accept that my noble friend has made important criticisms of this directive. I am also sympathetic towards how democracy works between us and the European Union. I suggest to the noble Lord, Lord Willoughby de Broke, that the way to achieve what he seeks is to tackle the democratic deficit in Brussels and Europe rather than trying to change how the single market works so that it would not work in reality. The technical barriers of a number of our partners, whether France or the southern European members, would mean many of our exports would be blocked in all sorts of technical ways.
Although there might be issues around this legislation, it is certainly an area of EU competence. It is a single-market issue of recycling and it is of environmental concern across the EU. That general principle therefore needs to be stated. Let us tackle the democratic deficit in Europe and ensure that all decisions are at least made by co-decision, so that we can have full democratic input in Brussels.
The role of national parliaments should be to control their Executives who send Ministers to the Council of Ministers. That is how national parliaments should be most effective and one of the biggest ways in which parliaments of member states have been least effective. That is the tragedy.
My Lords, the noble Lord, Lord Greaves, has given us the opportunity to debate these regulations, for which I thank him. They will have a fundamental impact on the collection, treatment, recovery and disposal of electronic and electrical equipment through a set of complex new arrangements.
As my noble friend Lord Dixon-Smith has highlighted, it is estimated that the United Kingdom will produce 1.1 million tonnes of household electrical equipment waste in this year alone. Can the Minister enlighten the House on whether the Government have made any assessment of how the digital switchover may add to this figure?
Environmentally, we on these Benches emphatically believe that, while these regulations are necessary for the basic recycling infrastructure, we must encourage greater social responsibility and develop a strong recycling culture in this country. There is a need for a holistic, cross-departmental approach, which we shall wish to adopt when we form the next Government.
It is my job to look at the regulations from the DTI perspective. To help the noble Lord, Lord Greaves, Alan Duncan is the shadow Secretary of State for Trade and Industry in another place. Businesses have informed us that they are disappointed with the information provided by the DTI about how electronic waste will be collected from consumers. I ask the Minister to ensure that both consumers and businesses are aware of the regulations and how they will affect them.
Your Lordships are well aware that the Government have held six consultations and a review, and that this has caused three years of delays in the implementation of the WEEE directive. We on these Benches recognise the scale of the challenge of implementing the directive, and the subsequent need for detailed consultation. I urge the noble Lord, Lord Greaves, not to push his prayer to a Division and introduce further delays and uncertainty for business.
The guidance accompanying these regulations is of critical importance to producers. It will determine much of the detail of the implementation of the regulations. The UK trade association for information technology—Intellect—has raised concerns that the publication of the guidance has yet again been delayed and it still has not seen a copy. Can the Minister guarantee that the guidance has been published or give a date when it will be published? Will the guidance contain rules to prevent recycling firms over-collecting and over-processing waste electrical and electronic equipment?
The regulations and guidance will inevitably have a disproportionate effect on smaller electronic producers and retailers. Will the Minister summarise the assessment made of the potential barrier that these provisions may create for new electronic producers and retailers? It is essential that these regulations do not threaten Britain’s international competitiveness in the electronics industry. Have the Government examined how other European countries have implemented this directive? Have other countries put in place similar schemes or are they, as so often, using paper-based compliance?
We welcome the Government’s decision finally to implement the directive but, as always, the devil will be in the detail. The DTI considers that the capacity is in place for the new arrangements, yet James Murray recently reported in IT Weekly that, despite all the consultation, the delays are only the start of the problems for IT businesses. His conclusion was that a well intentioned idea has been undermined by a weak Government, with good intentions but woeful execution. That may be so, but we are where we are, so let us move ahead without further delay in our attempt to save our environment and encourage our responsible British industry.
My Lords, this has been a short but interesting debate on a difficult issue. The difficulties have been eloquently expressed by noble Lords who contributed to the debate. In the few minutes that I take to respond, I hope to answer and touch on many of the matters raised, but if I fail to do that, I will write.
I listened with great care to the noble Lord, Lord Willoughby de Broke. I have to leave aside the noble Lord’s views on Brussels, but the Government’s view is that this is important environmental legislation that seeks to address in a practical and environmentally effective manner the increasing levels of waste electrical and electronic equipment—I refuse to use the acronym WEEE—within the European Union. The noble Baroness, Lady Wilcox, quoted a figure of 1.8 million tonnes and the noble Lord, Lord Dixon-Smith, gave graphic examples of what is being thrown away. Government figures are that last year 2 million tonnes of waste of this kind were generated in the UK. That figure is absolutely enormous, and imaginative and brilliant solutions are needed to solve the problem.
The regulations place obligations on all producers of electrical and electronic equipment to finance the costs of the waste management of the products they place on the UK market. The range of products covered by the regulations is extensive and runs to a full foolscap page in one of the documents. It includes washing machines, mobile phones and all sorts of things, including specialist equipment such as ventilators, dialysis machines and, in some cases, laboratory measuring equipment.
We had extensive consultations, and the business community as a whole supports the aims of the regulations and the need to limit the environmental impact of their products when they reach their end of life. As of this morning, the environmental agencies have received 37 applications from prospective compliance schemes that will help producers to meet their obligations. That is a real demonstration of the commitment within the producer community.
In drawing up the regulations it was agreed, following consultation with interested organisations and their representatives—I say to the noble Lord, Lord Greaves, that I managed to remove all references to “stakeholders” in my final speech, so they will be “interested organisations” rather than “stakeholders”—that the Government should bring forward separate regulations that cover the main obligations and necessary infrastructure and separate regulations in relation to the treatment requirements, which are focused on the waste management and treatment sector. There are three sets of permitting regulations, which amend the existing waste treatment licensing regimes in England and Wales, Scotland and Northern Ireland.
The main WEEE regulations—SI 3289—aim to introduce producer responsibility in a practical and cost-effective manner for producers and distributors in the UK. Although the bulk of the obligations rest with the producers of electrical and electronic equipment, the distributors of such equipment also have obligations. When a replacement item of EEE is purchased, distributors must provide facilities for consumers to return their equipment when it reaches the end of its life. That can be done in one of two ways. They can either offer services to take back the equipment on to their premises when a replacement piece of equipment is purchased, or they can join the Distributor Take-back Scheme, which will help them discharge their obligations. Distributors have offered funding of £10 million, via the Distributor Take-back Scheme, to local authorities for the use of their sites and to finance any upgrading, signage and so on, which may be needed.
The WEEE regulations place no new direct obligations on local authorities regarding waste collection; for example, current arrangements for bulky waste collections from households will be unaffected. However, local authorities are obligated under other waste management regulations to accept from households all types of household waste, including waste electrical and electronic equipment. Under the range of regulations they are also required to arrange the environmentally sound disposal of any such waste. They are not, however, obligated to separately collect WEEE or arrange the treatment in line with the targets within the WEEE regulations.
The involvement of local authorities will help to establish the robust infrastructure needed to produce an efficient and effective system under the regulations. By working with the Distributor Take-back Scheme, local authorities will be able to reduce their financial obligations under other waste management regulations. For example, producer compliance schemes will provide all containers for the separate collection of WEEE; producer compliance schemes will finance the collection, treatment and reprocessing of all separately collected household WEEE; local authorities may be able to count the recycling of WEEE deposited at their sites and collected by producer compliance schemes towards their recycling targets; and, by reducing the amount of waste sent to landfill, they will be able to reduce their landfill costs. In view of these benefits, we are absolutely confident that the vast majority of local authorities will wish to sign up their civic amenity sites as designated collection facilities.
As noble Lords have noted, the implementation of the directive in the UK has not been without its problems. The evidence given to the Merits Committee, as mentioned by the noble Lord, Lord Willoughby de Broke, was straightforward, up front and clear. Civil servants should be congratulated on that. While we are confident that the requirements for collective responsibility of waste can be fully implemented, Article 8.2 of the directive introduces the principle, which we have heard about, of individual producer responsibility—IPR—which provides for each producer to be responsible for financing the cost of waste from their own products placed on the market after 13 August 2005.
The Government fully support the concept of IPR in principle; we have, for example, implemented the end-of-life vehicles directive on the basis of own-marque responsibility for vehicle manufacturers. We have, however, taken the view that IPR for WEEE is neither technically feasible nor economically viable at present. It would require systems to be in place to allow for the identification of each producer’s own waste products. Such systems have not been introduced in any other member state, and the European Commission is well aware of the difficulties being experienced in implementing that requirement.
However, the regulations before us require all producer compliance schemes to put forward, by the end of 2007, their suggestions and ideas for how IPR can be achieved. In addition, the DTI will be working with producers to develop a process for sharing good practice to help in developing an effective solution.
The main costs of implementing the WEEE regulations are the separate collection, treatment and recycling of WEEE required under the directive. The DTI’s regulatory impact assessment estimates annualised costs in the region of £200 million to £300 million, but this estimate assumes that virtually all WEEE arising in the UK will be separately collected. However, we anticipate that these costs will fall over time as new treatment technologies develop and as recycling markets for materials deriving from WEEE grow.
The UK’s WEEE regulations implement the WEEE directive with as light a regulatory touch as possible, allowing a competitive market to develop in which producers can discharge their responsibilities under the directive. It is regrettable that delay in implementing the regulations has resulted in the UK missing the Commission’s deadline for transposition and implementation. As we know, the Commission has commenced infraction proceedings as a result, and judgment is expected shortly.
The diverse nature of the business community directly affected by the regulations resulted in the identification of a range of difficulties as the directive was transposed into UK law. The complexity of the base directive added to these difficulties in transposition and implementation. But, as I said, we are not alone in those difficulties. The majority of member states have had difficulties. Of the 24 member states, 18 were not able to complete transposition within the directive’s timescale and 13 of those were unable to meet the implementation deadline. One member state is still to transpose and implement.
In the process of developing the implementation policy, the Government recognised the importance of engaging with producers, distributors, local authorities and the waste management sector to develop the necessary infrastructure behind the regulations to provide an effective WEEE system in the UK. We are confident that the regulations will not only result in a robust infrastructure for the handling of WEEE but represent practical solutions to the issues faced.
I shall quickly deal with some of the questions raised by noble Lords. The noble Lord, Lord Greaves, was very interested in light bulbs and asked why ordinary light bulbs were not covered by the directive. The directive focuses on bulbs that contain hazardous materials. That is seen as a priority. It is entirely possible that the directive may cover filament bulbs in future. The UK will discuss that with the Commission during the review. The noble Lord also asked when the guidance would be issued. It is being finalised now and, he will be happy to hear, it will be available by the end of the month. He asks whether this is a major step forward. We feel that it is, as under WEEE regulations, WEEE will be taken out of the municipal waste stream and treated in an environmentally sound way. At the moment, it goes straight into landfill untreated, causing environmental damage.
Importantly, the noble Lord, Lord Greaves, also wants to know what the UK is doing to review regulations. The European Commission review starts in 2008, and the UK will participate fully. The UK will monitor the situation in the UK very closely. The first full year of the review will be 2008, and 2009 will be the earliest that we can look at the WEEE system.
The noble Baroness, Lady Wilcox, asked some very interesting questions. I do not have the answers to all of them, but I found extremely interesting the question about the digital switchover and the number of televisions that will go into recycling as a result. Not all existing TVs will be made redundant by the digital switchover. Those that are will be disposed of in the UK system, which has adequate capacity to deal effectively with television sets and radios.
As I said, I am very grateful to everyone for contributing to this short debate. I am aware that a number of questions asked by the noble Baroness, Lady Wilcox, have not been answered, and I undertake to answer them as quickly as possible.
My Lords, the Minister referred to the Merits of Statutory Instruments Committee, of which I am a member. I do not know how many Members of the House have read the report of the DTI’s evidence to that committee about a fortnight ago, but it answers many of the problems mentioned in the debate, particularly highlighting what is being done in other EU countries. I recommend it to anyone interested in this subject.
My Lords, I am very grateful to the noble Viscount for making that point. It was said at the beginning of the debate how interesting it was. Because it was the first time that the Merits of Statutory Instruments Committee had taken evidence, it has resulted in a great deal of interest, and I absolutely agree with the noble Viscount that what was said in that committee answers many of the questions asked today.
My Lords, I am sorry; we are here to discuss a specific issue. I know that the noble Lord would love to have a great debate on Brussels and its inequities, but, standing at the Dispatch Box this evening, I do not plan to have that discussion with him.
My Lords, I thank all noble Lords who have taken part in this debate. Perhaps I can thank even the noble Lord, Lord Willoughby de Broke. He and I come from opposite ends of the spectrum on Europe. He campaigns very well for his new party, and I am a Euro-enthusiast. However, when you get down to practicalities and are talking about what happens on the ground, people from surprisingly different areas come together, and I am grateful for his intervention in the debate and for his support. I am grateful, too, for the support of everyone else. I am particularly grateful to the noble Baroness, Lady Wilcox, on the Conservative Front Bench. I thought that she was going to give me what in my part of the world we call a right scragging, but her helpful and constructive intervention was much appreciated. Thank you.
I particularly thank the Minister for his very helpful and constructive comments. It is interesting to come to the House of Lords and find the Minister still talking about foolscap, which I think goes along with toasters. It is reassuring, somehow. If I may tease him a little further, he also ended up saying the dreaded acronym WEEE in the interests of getting through his speech towards the end. I thank everyone very much for the debate.
I want to raise only one point with the Minister. The Government are saying that having no new obligations on collection authorities is a good thing. I am saying that there should be obligations on collection authorities, because they can collect the medium-sized and smaller stuff. I hope that if there is no obligation on them, they will at least be encouraged to do this as part of their general recycling. The people who religiously put out their rubbish for recycling every week or fortnight will not understand that this is not part of it. However, the noble Baroness, Lady Wilcox, will be pleased to learn that I do not have large numbers of troops hiding in the bars and the lavatories of the House. I beg leave to withdraw the Motion.
Motion, by leave, withdrawn.
Waste Electrical and Electronic Equipment Regulations 2006
had given notice of his intention to move, That an humble Address be presented to Her Majesty praying that the regulations laid before the House on 12 December 2006 be annulled (SI 2006/3289).
The noble Lord said: My Lords, I shall not move the Motion.
Motion not moved.
House adjourned at 8.10 pm