House of Lords
Monday, 9 July 2007
The House met at half-past two: the LORD SPEAKER on the Woolsack.
Prayers—Read by the Lord Bishop of Newcastle.
Introduction: Lord Malloch-Brown
Introduction: Lord West of Spithead
Terrorism: Tamil Tigers
My Lords, the arrest and prosecution for offences related to proscribed organisations is a matter for the police and the Crown Prosecution Service respectively. I understand that the police have recently charged two individuals with offences relating to membership of and support for the Liberation Tigers of Tamil Eelam. It would not be appropriate for me to comment further on such matters, as to do so could prejudice any potential trial.
My Lords, is the Minister aware that the action taken by the authorities in arresting Mr Shanthan and Mr Lambert is extremely welcome, Mr Shanthan being the de facto leader of the Tamil Tigers in the UK? In their press release, the police state that,
“a quantity of literature and manuals including Underwater Warfare Systems, Explosive Ordnance Disposal and Naval Weapons Systems”
was found in his home. Does not that, the continuing credit card fraud, intimidation and bogus charities underline the need to ensure that proscription of the Tamil Tigers continues until such time as the leader, Mr Prabhakaran, comes to the conference table and agrees to have peace and a final settlement in war-torn Sri Lanka?
My Lords, I entirely agree with the noble Lord and thank him for his support for the police’s continued efforts to deal with the LTTE. We have taken action on other fronts. We are clamping down on the group’s funds through bogus charities, as the noble Lord will be aware, as part of our work overall to combat terrorism and its funding in the United Kingdom.
My Lords, does the noble Lord agree that atrocities have been committed on both sides, by government forces as well as by Tamils, and that the real distinction is between the extremists on both sides, who are seeking to escalate the violence, and the moderates on both sides, who are looking for negotiated accommodation? Does he also agree that, in those circumstances, to label one side only as terrorists while condoning the actions of the other is not a helpful solution to the peace process?
My Lords, the noble and learned Lord is right that we should encourage moderates on both sides of the argument. It serves no good purpose to encourage terrorism in any shape or form. We are completely opposed to terrorist activity, particularly terrorist activity in the United Kingdom. We must make efforts to work with the Sri Lankan Government to ensure that the peace process is reinvigorated, so that peace can be brought to Sri Lanka.
My Lords, a few days ago, the Liberation Tigers of Tamil Eelam celebrated the 20th anniversary of its campaign of suicide bombing, which it pioneered long before anyone else took it up. It continues to use child soldiers, and the International Institute for Strategic Studies claims that there is evidence of its commercial links with al-Qaeda. Is the noble Lord satisfied that adequate resources are made available to SOCA to prevent the campaign of intimidation and extortion by which the LTTE raises funds in the United Kingdom for its terrorist activities in Sri Lanka?
Yes, my Lords, we are content that adequate resources are set aside for anti-terrorist activity. Obviously we must do more to maximise the use of those resources to ensure that our anti-terrorist efforts, whether against the LTTE or the other proscribed organisations, are at their best at all times. We know that we must be ever vigilant, and we encourage the British public to join us in that vigilance.
My Lords, as the noble Baroness will know, an organisation can be proscribed only if the available evidence meets the test set out in the Terrorism Act 2000, which allows for proscription on the ground that an organisation is concerned in terrorism. For these purposes, that includes promoting or encouraging terrorism. As the Prime Minister made very clear last week, we keep under very careful review all organisations about which there are real concerns.
Africa: Family Planning
My Lords, the Government are committed to improving sexual and reproductive health, including family planning, across Africa. In 2006, DfID provided £25.1 million to UNFPA and £7.5 million to the International Planned Parenthood Federation to support work on sexual and reproductive health and rights. We also work at country level and are funding reproductive health services in the Democratic Republic of Congo, Ethiopia, Sierra Leone and Zimbabwe, enabling women, men and adolescents to avoid unwanted pregnancy and HIV.
My Lords, although I welcome and appreciate the Government’s efforts, is it not a tragedy that funding for family planning, which has been pretty successful in reducing the birth rate even in some of the poorest countries, should now be reduced and that, because of the lobbying against contraception in the United Nations by the American evangelicals, unfortunately supported by the Catholic Church, the birth rate in countries such as Uganda is now more than seven children per woman—in rural Africa, it is more than six per woman? Does this not mean that any hope of achieving the millennium goals will be frustrated, that no progress can be made in the education of women and, indeed, that making poverty history will be a vain aim? Is it not surprising that there has not been more of a squeak of protest against this moral outrage from Her Majesty’s Government, those who organise pop concerts and others who profess their concern about welfare in Africa?
My Lords, in response to the last point, I am slightly outraged at the noble Lord’s view of what this Government are doing on sexual health and reproduction. We have been leading the world. It is thanks to this Government that we now have a universally accepted target for sexual health and reproductive rights before 2015. This Government have done an excellent job, although I well recognise that it is important to keep family planning at the heart of development policy.
My Lords, while I endorse the sentiments expressed by the noble Lord, Lord Taverne, on the attitude of the current US Administration, does the Minister agree that the history of our own society and many others demonstrates that the best inducements to limiting family size are confidence in the future, a falling rate of child mortality and rising incomes? I therefore congratulate the Government on their balanced programme to promote sexual health and family planning while simultaneously addressing assiduously the basic requirements of development throughout the world.
My Lords, my noble friend is right that experience shows that improving health, education and livelihoods, promoting gender equality and rights and addressing sexual health and reproduction all have to be a balanced part of current and future policy. On the earlier question from the noble Lord, Lord Taverne, which I did not answer, I agree that we have some problems with US policy. We firmly believe that policy should be driven not by moral ideology, but by a firm evidence base.
My Lords, is there not an important health issue here? Is the Minister aware that worldwide more than 25 million people have so far died from AIDS, mostly in Africa? Can the Government not put it to the leaders of the Roman Catholic Church that the encouragement, not the discouragement, of the use of condoms could preserve life and significantly reduce this toll of death?
My Lords, I am sure that my honourable friends in the other place who have contact with people from the Roman Catholic Church and the Holy See do put it to them. We well recognise that condoms are important for sexual health and reproduction, and as a counter against HIV and AIDS.
My Lords, is there not a precedent in that one of the major influences on family spacing is the education of women? Will the Minister therefore not give real priority, as the Government have already done, to education generally and particularly the education of women in Africa?
Yes, my Lords. The Government fully recognise that and are making a huge investment in the education of children and especially the education of women in Africa. We recognise that women’s empowerment can come only through the education of women and girls.
My Lords, does the noble Baroness agree that few countries have risen out of poverty while their birth rates are extremely high? We have heard from other noble Lords about the difficulty and the decline in international support for family planning. Could this be brought more within the current expansion of provision to combat AIDS so that women are better able to control the size of their families, as they clearly wish to do?
My Lords, this is one of the things that the Government pressed for at the recent G8 meeting in Heiligendamm. We were working to ensure that sexual and reproductive health and rights were incorporated into the G8’s comprehensive AIDS response, and I understand that we were successful.
My Lords, is the Minister seeking to support Angola in its efforts to prevent any rise in its HIV infection rate, which is lower than that of its neighbours, as the country has so far been protected by the long civil war and its aftermath? Is she aware of the constructive work being undertaken by Angola’s churches in response to HIV/AIDS?
My Lords, does the Minister agree that in several countries in Africa, not least in Botswana, the ABC campaign—A is for abstain, B is for be faithful, and C is for using condoms—is becoming increasingly effective? Does she welcome, support and encourage the further development of this campaign?
My Lords, does the noble Baroness agree that the arguments both for and against family planning are many-sided? Perhaps I may mention something that has influenced me. A good many years ago, before the arrival of AIDS, I visited a developing country and at a lunch was seated next to the wife of the Minister of planning. She asked me about my family, and I asked her about hers. She said, “I have had 14 children, but happily seven of them died”. That seemed to me a very powerful argument in favour of family planning.
My Lords, there has been a huge improvement in the number of condoms being distributed in Nigeria, for example, as well as in other African countries, but clearly there are nowhere near enough. That is something that we, with our international colleagues, have to work on. However, it must be said that it is not just up to donor Governments; it is also the responsibility of African Governments themselves.
My Lords, current projections suggest that Africa’s population will double within a generation. Can the noble Baroness therefore explain why Chapter 5 of DfID’s White Paper, Making Governance Work for the Poor, does not contain proposals to deal with the problems of population growth in Africa?
My Lords, population growth may well not have been a topic of that specific chapter. However, themes relating to sexual health and reproduction, such as health services in general and the empowerment and education of women, run across the White Paper as a whole. Therefore, they are an integral part of that paper.
Israel and Lebanon: Cluster Munitions
asked Her Majesty’s Government:
What further discussions there have been either directly or through the European Union or the United Nations with the Government of Israel to ensure that the teams clearing cluster munitions in south Lebanon have access to the co-ordinates of the shells fired last year by the Israeli army.
My Lords, the UK regularly raises this important issue with Israel bilaterally and through the EU and UN. The British embassy in Tel Aviv last discussed this with the Israeli defence forces in April and UN forces in southern Lebanon do so on a regular basis. Additionally, in April, the EU, with full UK support, reiterated its call for the full disclosure of all relevant information to the UN. However, I very much regret that Israel has yet to provide the UN with detailed data on the use of cluster munitions during last year’s conflict. I take this opportunity to repeat the UN Secretary-General’s call for this information to be made available immediately.
My Lords, I am grateful for that Answer. I should declare an interest in that a few weeks ago I was in southern Lebanon looking at the process of clearing these dreadful weapons. Is my noble friend aware that the teams clearing these cluster munitions said that it would be enormously helpful in their dangerous work if they had the co-ordinates of the shells that launched them? Does she further agree that it is unacceptable for any country to use weapons that harm civilian populations long after the conflict is over and that it is only right to go on demanding that all countries should make such information available—or, better still, to ban the weapons altogether?
My Lords, the Government pay great tribute to the teams working on the de-mining processes in southern Lebanon and elsewhere. As for the abolition of cluster bombs, we warmly welcome the Oslo process and the excellent work done to ensure that dumb cluster bombs are no longer legal.
My Lords, in order to get rid of unexploded cluster sub-munitions, it is necessary to know where they are. Does the noble Baroness recognise that on 17 April the noble Lord, Lord Dubs, asked a Question on whether the British Government had given the co-ordinates of the cluster munitions that we used in Serbia in the recent Kosovo war to the Serbian Government, and that the noble Baroness, Lady Amos, replied in a letter on 15 May to say that the British Government had handed the co-ordinates to NATO and that NATO would “in due course” hand them to Serbia? It has been eight years for children to blow their feet off. If NATO has not yet done this, why can we not send our co-ordinates to the Serbians direct and get others to do the same?
My Lords, it is rather shameful that the information detailed by the noble Lord has not been provided henceforth. I do not know why it has not been, but I am aware of the exchange of correspondence to which he referred. I fully take on board his point. If NATO has not yet forwarded the information—I understand that it is in the process of doing so—I will ensure that the idea he put forward is put to the Ministry of Defence.
My Lords, does the noble Baroness agree with the head of an Israel Defence Forces rocket unit based in southern Lebanon who said:
“What we did was insane and monstrous; we covered entire towns in cluster bombs.”?
Is she confident that the Israelis know, as they are supposed to, where these bombs were dropped? Is this not an argument, as the noble Lord, Lord Dubs, said, for a comprehensive ban on these bombs, both the dumb ones and the so-called smart ones?
My Lords, we cannot be entirely confident that Israel knows exactly where all the cluster bombs are—I am not sure that any Government could be—but I am as a confident as I can be that it knows where they are. As for the abolition of cluster bombs, the Government are working within the Oslo process and the CCW precisely to try to ensure that there are no more dumb cluster bombs, but that if cluster bombs are used, they are used in full respect of human rights.
My Lords, I am sure that many of us would agree that Israel should provide these co-ordinates. However, are we really in a position to be quite so critical when, eight years after the use of such weapons in Serbia, the alliance of which we are a very important, integral part—that is, NATO—has failed to give the same information to the Serbian authorities? If we are still using these ghastly weapons, should this sort of information not be sent as a matter of routine after hostilities have ceased?
My Lords, we all agree that these are horrific and horrible weapons, and I pay tribute to my noble friend Lord Elton and indeed many others for their ceaseless campaigning until these dumb weapons are outlawed and the Oslo process really makes progress. But perhaps I may widen the Question a little on to not so much the cluster-bomb side as the south Lebanon side.
Is the Minister aware that the Lebanese Government in Beirut are hanging on by a thread—by the vote and opinion of one Minister only—under colossal pressure from Hezbollah and other disruptive forces outside? Does she recall that, with their hand on heart, the British Government and the American Government and others made massive proposals for supporting Mr Siniora and the Lebanese both in clearing up the cluster bombs and in reconstruction, and that these resources were supposed to be forthcoming? Does she realise that a weekend conference is coming up in Paris to consider how further help can be given to this fragile Government? Will she assure us that the British Government are living up to their word and doing what they said they would do in supporting Mr Siniora, before Lebanon collapses and with it still further support for peace in the Middle East?
My Lords, the noble Lord is right that the situation in Lebanon is very fragile. The Government are certainly living up to what we said we would do. We are supporting the Lebanese Government as strongly as we can. The noble Lord will also be interested to know that the Security Council will be looking at this issue on 18 July when it considers the report of the independent assessment team on arms smuggling across the borders together with the report of the Secretary-General, to see what else the United Nations as a whole might do to support Lebanon.
My Lords, can the Minister assure us, in view of what she has said and the moral attitude she has struck, that the British Government will now forward to the Serbian Government all the details they have of the locations of weapons in Serbia forthwith, and cease sheltering behind NATO?
As I explained earlier, my Lords, that was in relation to only one point, but I am totally assured that the Government would act morally on each and every occasion. If NATO has not yet provided the information to Serbia, I will speak to my colleagues in the Ministry of Defence to see if it can be provided directly.
asked Her Majesty’s Government:
Whether in 2001 NATO member states, including the United Kingdom, granted blanket overflight clearances and access to airfields to United States military aircraft involved in operations against terrorism; and whether the Government were then aware that such operations included the transfer of detainees.
My Lords, on 12 September 2001, NATO states, including the UK, granted blanket overflight clearance for American and other allies’ military flights for operations against terrorism. NATO also agreed to provide access to airfields for operations against terrorism. At that time the precise form of the international community’s response to the events of 11 September had not been determined. The Government’s policy on the transfer of detainees is clear: we have not approved, and will not approve, the transfer of individuals through the UK to places where there are substantial grounds to believe that they would face a real risk of torture.
My Lords, I thank the Minister for her reply. Recent reports reveal compelling and extensive circumstantial evidence that the UK has been involved in the practice of extraordinary rendition. Does she believe that the Government have a moral duty to protect and promote fundamental human rights, including the right to be free of torture, and that, no matter what public opinion might be, they must come out in the strongest possible terms against the utterly unacceptable and counterproductive practice of extraordinary rendition? Does she agree that there should now be legal safeguards to ensure that the practice cannot continue in any shape or form in the future?
My Lords, it is indeed the Government’s moral duty to protect the human rights of all their citizens. Torture is morally wrong, and the Government unreservedly condemn its use. Last week my right honourable friend Kim Howells made a statement in the other place about how much the Government condemn the practice of extraordinary rendition, where the term means transfer to torture. Where that is the definition of extraordinary rendition, our position is clear: we do not approve of transfers to torture.
My Lords, is the Minister aware that President Bush and the Secretary of State have admitted that rendition is taking place, and have said that that is not unknown to European Governments? Can we expect the Government to act on what Harriet Harman said during the Labour deputy leadership campaign—that the Chicago Convention should be amended so that we know precisely who is on these flights, in order that we are not, as she said, complicit in transferring prisoners for torture?
My Lords, my right honourable friend Harriet Harman said in the other place last Thursday:
“Many people think that it is anomalous that while one must declare whether an aircraft is carrying a VIP or a dangerous substance, there is no requirement under the Chicago convention to declare whether prisoners are being carried”.
She continued that she was sure that her ministerial colleagues would note that point because they are,
“already concerned about the matter and will be looking further at the possibilities”.—[Official Report, Commons, 5/7/07; col. 1099.]
My Lords, it is time to hear from this side, but there is plenty of time.
My Lords, does my noble friend agree that the past conduct of the CIA supports a reasonable suspicion that an aircraft under its control may be being used for unlawful rendition? That being so, is there a problem about requiring that any aircraft seeking permission at least to land at a United Kingdom airport should disclose in advance its estimated time of arrival, and is there then any difficulty about arranging for a search? Could any reasonable American Government object to that?
My Lords, the Government believe that the systems in place are adequate and that it would not be possible to provide the sort of searches and information that my noble and learned friend suggests. However, they are continually looking at this active, live issue, and I am sure that they will look at it further.
My Lords, does the noble Baroness acknowledge the massive divergence between the Council of Europe’s report on rendition and the ACPO inquiry? Have the Government undertaken any analysis to establish whether this divergence is due to fresh information being provided to the ACPO inquiry or whether the absence of such information meant that it was impossible to show whether these approvals had been given? Or is it simply that the right questions have still not been asked of the US Government to confirm or deny whether approvals for rendition had been given?
My Lords, I am replying on behalf of Her Majesty's Government; therefore, I am looking at the case from a very British perspective. We are confident that over the past few years no person has been rendered through the UK. We believe that the Council of Europe report by Dick Marty did not bring forward any new evidence of people who might have been rendered through UK air space. That is not the case; nothing like that has happened since 2001. We know that of the four cases since 1998, two people were rendered; permission was asked to render two more, and they were not rendered.
My Lords, would it be acceptable to the Government if planes used for extraordinary rendition came to British airports for refuelling even if they did not at that moment contain any suspects being transported for such operations in other countries?
Business of the House: Standing Order 41
My Lords, I beg to move the first Motion standing in my name on the Order Paper.
Moved, That Standing Order 41 (Arrangement of the Order Paper) be dispensed with on Thursday 12 July to allow the Motion in the name of Lord Bassam of Brighton to be taken before the Motion in the name of Lord Truscott and on Wednesday 18 July to allow the Motion in the name of Baroness Hanham to be taken before the Motion in the name of Lord Adonis.—(Baroness Ashton of Upholland.)
On Question, Motion agreed to.
Housing Benefit (Loss of Benefit) (Pilot Scheme) Regulations 2007
My Lords, I beg to move the second Motion standing in my name on the Order Paper.
Moved, That the regulations be referred to a Grand Committee.—(Baroness Ashton of Upholland.)
On Question, Motion agreed to.
Terrorism (Northern Ireland) Act 2006 (Transitional Provisions and Savings) Order 2007
My Lords, I beg to move the third Motion standing in my name on the Order Paper.
Moved, That the order be referred to a Grand Committee.—(Baroness Ashton of Upholland.)
On Question, Motion agreed to.
Terrorism Act 2006 (Disapplication of Section 25) Order 2007
My Lords, I beg to move the fourth Motion standing in my name on the Order Paper.
Moved, That the order of 5 July referring the draft order to a Grand Committee be discharged.—(Baroness Ashton of Upholland.)
On Question, Motion agreed to.
Vehicle Registration Marks Bill
Read a third time, and passed.
Statistics and Registration Service Bill
My Lords, I beg to move that the Commons amendments and reasons be now considered.
Moved accordingly, and, on Question, Motion agreed to.
[The page and line references are to Bill 53 as first printed for the Lords.]
1: Clause 3, page 2, line 3, leave out “Treasury” and insert “Cabinet Office”
The Commons disagree to Lords Amendments Nos. 1 to 9, 21 to 30, 40 to 64 and 66 but propose Amendments Nos. 66A to 66QQQ in lieu.
66A: Clause 3, page 2, line 3, leave out “Treasury” and insert “Minister for the Cabinet Office”
My Lords, I beg to move, That this House do not insist on its Amendments Nos. 1 to 9, 21 to 30, 40 to 64 and 66, and do agree with the Commons in their Amendments Nos. 66A to 66QQQ in lieu.
The amendments are all concerned with where residual responsibility for the board should lie. As we have set out both here and in the other place, the Government believe that, if the provisions to ensure the independence of the board are effective, the question of who has residual responsibility will become much less significant.
We have explained at some length the mechanisms that we are putting in place to ensure independence for the board. These include an assured, five-year funding package, set outside the normal spending review process, and a commitment that all appointments to the board will be made in line with the standards set by the Office of the Commissioner for Public Appointments. In addition, as the whole House will be aware, my right honourable friend the Prime Minister made further announcements last week that relate directly to the issues before us today. I speak about the package of reforms announced last Tuesday, aimed at reforming the governance of Britain to make the Executive and Government more accountable to Parliament and to the people.
The Prime Minister announced that the Government will reduce the length of time for which pre-release access is available to 24 hours—we will come to that in more detail later—and proposed that the choice of the chair of the board should be subject to an affirmative vote by the House of Commons prior to their appointment. If noble Lords consider that alongside the changes made to the Bill, and the other measures already announced, they cannot reasonably doubt the sincerity of the Government’s desire to make genuine reforms to the statistical system in the UK and to ensure that the independent board at the heart of the Bill will be just that: independent of government.
Consequently, as my honourable friend the Exchequer Secretary said in another place, the Government still believe that the board would benefit from having the Treasury as the link with the Government. The Treasury has a strong interest in ensuring that we have a good evidence base; it has long experience of working with and understanding statistics; and it has a role in co-ordinating performance reporting and monitoring across government. We had hoped that retaining the link with the Treasury would build further value into the reforms.
There has of course been considerable debate on this issue. The Government recognise the strength of feeling about it, particularly in this House. We are therefore prepared to agree to the shift of responsibility in principle. However, for largely technical reasons, the Government cannot accept the amendments that the House passed last time we discussed these issues. They have therefore tabled amendments in lieu, which have been accepted in the other place and which I hope noble Lords will accept. The amendments give effect to the intent of this House expressed in the votes that it cast last time.
Moved, That this House do not insist on its Amendments Nos. 1 to 9, 21 to 30, 40 to 64 and 66, and do agree with the Commons in their Amendments Nos. 66A to 66QQQ in lieu.—(Lord Davies of Oldham.)
My Lords, I thank the Minister for that introduction and am glad that he mentioned the Prime Minister’s Statement last week. Two policy announcements were made then, one of which related to 24 hours’ pre-release and the other to the confirmatory vote in the House of Commons—or that is what the Minister said, although I believe that the Statement said that the vote was by Parliament, thereby implying that the House of Lords could be included as well. Why has neither of those things appeared in amendments to the Bill? The Minister could easily have achieved that.
Having said that, we of course welcome the Government’s conversion to our view that the Cabinet Office is a safer place for the Statistics Board and the transfer of the ONS therein. In particular, we had many debates about the resource squeezes put on the ONS and the forced relocation to Newport. These may not be completely avoided under new ownership, so to speak, but at least someone will speak for the Statistics Board in Parliament.
I have one further question. I believe that the appointment of chairmen was announced in the name of the Treasury and that that process is proceeding. Is the Treasury or the Cabinet Office in the lead on that process?
My Lords, we are pleased that the Government have decided to accept the spirit of the amendments passed on this issue. During the discussions of this Bill in your Lordships’ House, we have sought to persuade the Government that four issues of principle needed addressing satisfactorily in the Bill, of which this is one. On two other of these issues—the first to do with the nature of official versus national statistics and the second to do with staff, members of the board and their duties—the Government have, very sensibly in our view, followed the line that we have taken, and the Bill now reflects that. We shall come in a minute to the remaining area in which the Government have so far not been persuaded. However, we are optimistic that, having got three out of four proposals across so far, the Minister’s powers of persuasion will carry the day when he goes back to his colleagues after the conclusion of this afternoon’s business.
My Lords, in introducing this large group of amendments, the Minister said that the question of residual responsibility was less important now that there was to be proper scrutiny by Parliament. Here I am echoing a point made by my noble friend Lady Noakes: will this be done by a joint committee of both Houses of Parliament? I asked for this when we first discussed the matter in the debate on the Loyal Address to the Queen’s Speech last year and the point has been repeated again and again by a number of Members of this House, so we need to know where we stand.
The terms of the Prime Minister’s Statement, as I shall come to under another amendment, were not very encouraging. The only mention that the right honourable gentleman made of the House of Lords was in the paragraph about House of Lords reform. Otherwise he seemed to equate the word “Parliament” with the House of Commons, which causes a good deal of alarm at this end of the Palace. Will the Minister say something to set our minds at rest? On this important issue, on which the Government have made important concessions, can we have some prospect of there being a joint committee of both Houses?
My Lords, I welcome the Government’s acceptance in principle of this amendment, so that ultimate responsibility for what are now called the residual responsibilities will go back to the Cabinet Office. I remind your Lordships of a nice historical point. When Winston Churchill established the first statistics office in 1941, he set up a central office because of the lack of coherence and co-ordination in statistics across Whitehall. He placed the new statistics office in the Cabinet Office. It remained there happily—including during the many years I was in charge of it—and moved to the Treasury in, I think, 1989.
The welcome for its move back to the Cabinet Office has nothing to do with any negative feelings about the Treasury; indeed, I am confident that since 1989 the Treasury has looked after government statistics very carefully, especially economic statistics. However, there is no doubt that it had a conflict of interest because of its leadership in economic affairs, whereas the Cabinet Office is a consumer-neutral department, so to speak. Therefore, it makes total sense that these responsibilities should go back there. I wish the Minister for the Cabinet Office, who will now have the ultimate responsibility, well in this task. I am sure that this new situation will help the reforms that we have debated.
My Lords, I thank all noble Lords who contributed to this short debate. I particularly thank the noble Lord, Lord Moser, for his small historical contribution, which enlightened us all. I am grateful that he and the noble Lord, Lord Newby, are delighted that the Government have moved on this. I am sure that the House will recognise that this listening Government have responded to the pressures that it has applied.
On several other points I can give only a factual response. The Treasury is carrying on with the appointment of the board because, as the House may have noted, this legislation is not yet in place. It will be in place very shortly, if the House agrees to the Government’s proposal today, and not so shortly if it does not. The Treasury started the process of appointing the chair and will continue with it until the appointment is complete. However, when this Bill is enacted, all aspects of the board and national statistics will be the residual responsibility of the Cabinet Office, not the Treasury, as we debated.
We do not want to put the length of time for pre-release access in primary legislation as we want flexibility, but the 24-hour intention was clearly expressed by the Prime Minister. That point is significant and will govern the position of the Government in the development of the work. We have further pre-release issues to discuss on subsequent amendments, which we shall consider shortly.
I reassure the noble Lord, Lord Jenkin, that we expect this House to play a full role in the scrutiny of the statistics system. It will have many opportunities to do so. I refer to the obligations on the board in relation to its report and the opportunities for debate. There will be other significant opportunities. This House will play its part.
The appointment will be proposed to Her Majesty the Queen by the Prime Minister. Therefore, it is appropriate that the vote should take place in the House in which the Prime Minister sits. It is, after all, the elected House and it has a critical role to play in scrutiny of important work such as that of the board and the whole statistics system. I hear what the noble Lord says, but I think that on this matter he would probably recognise that the Prime Minister would identify the lower House—another place—as having the primary role in the scrutiny of appointments.
However, I should make it clear that it is always up to Parliament to decide on the arrangements that apply in Parliament. Therefore, if it were thought that a joint committee would give greater effect to the work and that one should be set up consisting of Members of this House and of the Commons, it would certainly be for Parliament to decide. The Prime Minister identified the primary responsibility, but arrangements between the two Houses might come into effect here, as they do in relation to many other aspects of our work. However, such arrangements are not identified in statute and it would be surprising if it were to be suggested that arrangements on the appointment of the board should be identified in statute. I hope that the noble Lord will recognise that no offence is given to this House when the Prime Minister identifies the responsibility of the other place. He is clearly saying that he wants Parliament to play its role, but it will be for Parliament to decide how it gives effect to that position.
On Question, Motion agreed to.
10: Page 4, line 36, at end insert-
“( ) The Board is to monitor the arrangements for-
(a) the release of official statistics, and
(b) any access to official statistics in their final form prior to publication.”
The Commons disagree to Lords Amendment No. 10 for the following Reason-
10A: Because the Statistics Board can in any event monitor the arrangements for the release of official statistics and access to official statistics in their final form prior to publication.
14: Page 5, line 13, at end insert-
“(1D) The Code shall include rules and principles relating to the release of official statistics, including-
(a) the location from which the release of official statistics may be made;
(b) the time at which the release of official statistics may be made; and
(c) the identification of the person or persons who are responsible for the release of official statistics.”
The Commons disagree to Lords Amendment No. 14 for the following Reason-
14A: Because it is for the Statistics Board to decide whether to include rules and practices relating to the release of official statistics and, if so, what those rules and practices should be.
My Lords, I beg to move that this House do not insist on its Amendments Nos. 10 and 14, to which the Commons have disagreed for their reasons 10A and 14A.
These amendments relate to the important issue of how and when statistics are released under the new system and the monitoring of the arrangements for release. We have discussed amendments similar to these at considerable length at earlier stages. I have explained in some detail that these amendments seek to make explicit something that is already possible under the Bill as drafted.
These amendments would require the board to monitor the arrangements for the release of official statistics and pre-release access to those statistics. They would take this duty further and require the board, through its code of practice, also to provide for the rules and principles relating to release practices that the board would be monitoring.
I emphasise that the board already has this power. Under Clause 10, the board must prepare, adopt and publish a code of practice. It is inconceivable that such a code would not provide guidance as to how and when statistics shall be released and who shall be responsible for that. Moreover, under Clause 12, the board has a duty to assess compliance with that code. The Government fully expect the board to include in its code of practice arrangements for the release of statistics. Indeed, the Bill before us allows the board not only to monitor these arrangements as required under Amendment No. 10, but to determine them in the first place, as required by Amendment No. 14.
As part of this—as I have explained in some detail, and as I set out in my letter to noble Lords—the Government are committed to the creation of a central publication hub, through which all national statistics will be released in the new system, separating statistical commentary from policy statements. That has been at the nub of the issues presented to us on this question of pre-release matters. Clearly, as a “release practices” tool, it will be for the board, in consultation with the National Statistician, to create the hub. The Government have made it clear that their expectation is that the board should do so, and I hope that the House will agree with that strategy.
In anticipation of the creation of the new board, and with an eye to the board establishing a central hub in good time, statisticians and officials across government have been considering how this hub might operate in practice, and its key features. I have laid in the Library of the House a paper summarising the outcomes of this early consideration, which we intend to pass to the board, once it is established, to guide the hub’s development. I note, however, that the final form and specification of the hub will be for the board to decide; that is its responsibility.
I fully accept the position taken on these amendments in another place. As I have set out, the Bill as drafted makes more than adequate provision for the board’s supervision of release arrangements. That is why I hope that the House will recognise that the position adopted in another place should be endorsed. I beg to move.
Moved, That this House do not insist on its Amendments Nos. 10 and 14 to which the Commons have disagreed for their reasons 10A and 14A.—(Lord Davies of Oldham.)
rose to move, as an amendment to Motion B, leave out from “House” to end, and insert “do insist on its Amendments Nos. 10 and 14”.
The noble Baroness said: My Lords, Amendment No. 10 inserted a requirement for the board to monitor the arrangements for the release and pre-release of statistics. The reason for disagreement given by the other place is that,
“the Statistics Board can in any event monitor the arrangements for … release”,
and pre-release. We accept that under the Bill the board could look at the mechanics of publication but we are not sure that it is crystal clear that it should look at all aspects of how statistics are released, including, for example, their separation from governmental and ministerial comment.
The board can produce a report at any time in relation to its functions; that is provided for in Clause 26. We need to ensure that it is clear and unambiguous that monitoring release and pre-release are part of the board’s functions. Release and pre-release, which we will consider in Motion C, have given rise to grave concern. We debated that at length during our consideration of the Bill. That has contributed to the lack of trust in statistics that now undoubtedly exists. We believe that Amendment No. 10 should stand precisely because our—and, we hope, the Government’s—ambition is to rebuild public trust. That means that the locus of the board in the areas that have gone wrong in the past must be clear.
Amendment No. 14 ensures that, when the board draws up its code of practice for statistics, it must cover the rules and principles for release. The reason given for disagreement is that it is for the Statistics Board to decide what is in the code. The Minister said that he expected that the code would cover release arrangements, but the Bill does not say so. The arrangements for release are so important that they must be included in the code.
This morning I received from the Minister a letter dated last Friday, setting out the Government’s proposals for the new statistics hub. He referred to that letter earlier. I thank him for it, but I suggest that a letter sent only in hard copy on a non-sitting day is not designed to give noble Lords much notice of its contents. Fortunately, my colleagues in another place had already given me a copy of a virtually identical letter from the Secretary to the Treasury, released three days earlier. This letter sets out, as the noble Lord explained, the detailed arrangements for the hub, through which some statistics will be released. It is clear that in the Government’s mind the hub will apply only to that subset of official statistics that are designated national statistics. It will not apply to the devolved Administrations, even where national statistics are involved, and, what is more, the rules will usually—not invariably—be mandatory for Whitehall departments.
I think that we agree with the Government that the board should set the rules on release but we believe that they should go wider than is envisaged for the hub, and we hope that the board will not feel intimidated by this paper into allowing extensive opt-outs.
Even if the board has set the rules in the code, that does not mean that they will be followed. As we debated on Report, there is only a weak duty to comply, and that applies to statistics which have been designated national statistics. That duty carries no legal consequences, and the penalty for non-compliance may be no more than the loss of status as national statistics and the possible use of the public disagreement provisions in Clause 15. But at least we shall ensure that the board sets the rules and that they are designed for all statistics and not just non-devolved, national ones.
On the next Motion we shall come to the important area of pre-release, where these arguments have much more force, but we continue to believe that the board’s role in relation to the release arrangements should be in the Bill to ensure that it is clear and unambiguous. I beg to move.
Moved, as an amendment to Motion B, leave out from “House” to end, and insert “do insist on its Amendments Nos. 10 and 14”.—(Baroness Noakes.)
My Lords, I certainly support my noble friend on this. We have referred to it already today, but I want to call attention again to the Statement on constitutional reform made by the Prime Minister last week. His very first sentence in another place was:
“All Members of this House and all the people of this country have a shared interest in building trust in our democracy”.—[Official Report, Commons, 3/7/07; col. 815.]
Those who have taken part in the Bill will recognise that we have had a great deal to say about what the Government have called “enhancing” trust but what the rest of the country has referred to as “restoring” trust. The main debate started with a report, which I shall not bother to quote, from the Treasury Select Committee in another place; it, too, made it very clear that the restoration of trust had to be at the heart of this legislation.
I recognise that Ministers, under sustained pressure in both Houses, have moved quite a bit, but they have not yet done what is necessary if their aim of restoring trust is to be achieved. At the heart of this public mistrust lies the perception that it is Ministers and departments that spin the figures which, no doubt with complete honesty and integrity, are produced by statisticians at the ONS and at the departments.
Again, as was drawn to our attention by the Select Committee in another place, we need to remember that the United Kingdom is alone in suffering this massive loss of public trust in its statistics, and therefore we have to make a special effort to put that right. The Government’s strategy on this has been to separate the role of Ministers from that of those who produce and disseminate statistics, and the principal instrument has been the creation of the Statistics Board, which has been widely welcomed in all parts of the House as a very positive step forward. The release of statistics and what is known as pre-release have been the source of much criticism—the former because of Ministers’ selective use of the statistics produced by the statisticians, which has drowned out the voices of the professional statisticians, and the latter because it has opened up the temptation to spin in advance of what may be in the eventual release.
I was here on Friday and got the Minister’s letter, and therefore I have been able to study it carefully. He set out the reasons for rejecting the amendments agreed to in this place, which would have put the board, not Ministers, at the heart of managing the process. The Government have said that they will deal with this by secondary legislation, but that is not good enough. We all know that secondary legislation cannot be amended and that almost exclusively it is passed by the Government using their majority in another place. Rarely are regulations rejected.
The Minister’s letter describing what has been set out referred to the central publication hub, and I believe that at last we have some information about it. We have been asking about the hub from the beginning of the Bill. Now we have it in the paper that he says he placed in the Library, and which he attached to his letter. Much of this is very welcome. The roles of the board and the National Statistician needed to be clarified. I come back to the same sentence referred to by the Minister in his letter. He said:
“Clearly—as a ‘release practices’ tool—it will be for the Board, in consultation with the National Statistician, to create the hub. The Government has made clear its expectation that it should do so, and I hope Parliament will do likewise”.
Parliament can do likewise by making sure that the provision goes into the Bill. That is our role; we are legislators. Amendments Nos. 10 and 14 will do that. I hope that this House will insist on those amendments. The Prime Minister has rightly recognised that the restoration of trust in our political system is now a top priority. I contend that putting the board and not Ministers in the driving seat on release and pre-release would be a real touchstone of his sincerity. I support my noble friend.
My Lords, I hope I am right in thinking that at this stage we are simply discussing release arrangements and not pre-release. On those, I ally myself completely with the remarks of the noble Baroness, Lady Noakes. The idea of the hub is a good development in that it would seem to centralise publication of statistics, and take it further away from political comment. If I am right in thinking that, I warmly welcome the establishment of the hub. There are quite a lot of specific things to sort out in its creation, but I am reassured by the Minister’s commitment that the board will be fully involved in that task. I am talking purely about the hub and not about pre-release arrangements.
My Lords, I apologise to the noble Lord, Lord Jenkin, for not having risen earlier, but I wanted to check something that the Minister said about the hub. Although I got his letter on Saturday, I have not had a chance yet to commit it to memory. He said that the board would be responsible for the development and oversight of the central hub, including the development of guidance on the content of national statistics releases. This brings us back to an old argument about national versus other statistics. Noble Lords will remember that at Second Reading a number of noble Lords referred to the fact that NHS waiting list statistics produced on a quarterly basis were national statistics and those produced monthly were official statistics. If the hub is to concern itself about how NHS waiting list statistics are produced and issued, it will have to look at both national and official statistics if the official ones are also of significant public interest. I was therefore pleased when the Minister said that the attachment to his letter was guidance for the board, and it would be for the board to decide exactly how to interpret the guidance. It was not intended to be absolutely writ in stone, as it were. The board, in its management of the hub, will have to deal with some of these tricky issues about statistics, some of which will not be national statistics.
The Government have given us their reason for objecting to the amendments that your Lordships’ House agreed to:
“Because it is for the Statistics Board to decide”.
It is not; it is for us to decide. We decided that these are very important issues that we wanted to put in the Bill. We did not want to give the Statistics Board any scope for not looking at these things, and we also wanted to stiffen its resolve to regard this as being near the top of its list of responsibilities. While it is useful that the Government tell us that the Bill allows the board to do this anyway, they have not come up with a shred of an argument against including this in the Bill, other than that they do not want to. There is no substantive argument against what is proposed, because they, like us, accept that these are important things that the board should be doing. It therefore seems sensible to be straightforward, put the provision in the Bill and give the board a clear mandate to do these things.
My Lords, I support what the noble Lord, Lord Newby, said. Our Amendments Nos. 10 and 14 do not seem in any way detrimental. I do not think that the Minister produced an argument that there was any detriment; he argued simply that the amendments may not be necessary. We are looking at a situation where the board is not in existence and the relationship between the chairman and the National Statistician has yet to settle down, so I cannot see that these two amendments could do any harm. If they turn out not to be necessary, that will be fine because the board will not have to pay much attention to these particular provisions, but it will not do it any harm to have them there. I support the amendments.
My Lords, I am grateful to noble Lords who have contributed to this debate; it reflected the contention of the Government: we are against being overly prescriptive about the hub and the board because, as the noble Lord, Lord Newby, said, in certain areas its obligations might go beyond national statistics because of the importance of official statistics. It would need to consider that, and it could take it upon itself to exercise its functions in that scrutiny. We expect that the board will perform that kind of role, but we seek to avoid being too prescriptive in the legislation, particularly where the main issues that noble Lords have contended should be prescribed are already in the Bill. Of course the board will monitor the statistics and report on its work. That is contained in the Bill as it stands, and a case has not been made today or previously for the extra prescription sought.
The noble Lord, Lord Jenkin, said that it was a matter of restoring trust. Well, is it suggested that we restore trust by putting every single duty and power of the board in the Bill? I do not see how that would lead to good practice or to good law. The board’s work will evolve as it develops. If we are overprescriptive in the legislation, we will not give the board the degree of independence that in other contexts noble Lords suggested it requires. We do not want to tie the board’s hands on every aspect of the new arrangements, but it would be unthinkable that it would not put release practices into the code for which it is responsible; nor is it conceivable that, having put the practices into the code, it would not regard it as a major duty to monitor the activities of those concerned with the release practices. That is at the very heart of the code by which the board is to be governed; it is therefore unthinkable that the board would not take very seriously its responsibilities in these areas.
I apologise for the lateness of the letter on the central hub. The discrepancy between the timing in the Commons and in the Lords happened simply because the Commons Minister was responding to a debate and had the letter ready in response. I was looking on the letter as preparation for today’s debate. I regret that it was not sent out on the sitting day, Thursday—it was a mistake in the office. The slight difference between a Commons Minister and a Minister in the Lords is that a Commons Minister has direct responsibility for limited work in one department, whereas it will be recognised that I am responsible for work in three departments. Therefore, one does not always hit the very highest standards in correspondence. The letter should have been sent out on Thursday, but it is dated Friday. That is my mistake.
However, the letter indicated our arguments all along: that we expect the board to take seriously these responsibilities. But the final arrangements with regard to the hub must be the board’s responsibility. The noble Lord, Lord Moser, endorsed that point. I am sure that the House will recognise that we do not need to identify this very valuable concept in legislation. It is an aid and a guide to the board on how the work will evolve to meet the highest standards.
The noble Lord, Lord Jenkin, said that our primary role was to end distrust between those who read the statistics and learn about them in the media, and the Government. There are many reasons why Governments can be challenged on the question of trust; however, neither the production of statistics nor spin on statistics have been a substantial part of the country’s anxieties about government. The noble Lord will say, “Well, it is the way the Government present the statistics”, but I do not think that the issues of trust have revolved substantially on the question of statistics.
I recognise that trust between the Government and the people is of enormous significance. I cannot think of any Government who did not think that that was of enormous importance or of any who did not fall short in some respects. That is in the nature of politics and how the world changes under government. It is difficult to contend that at the heart of the problems of government is how statistics have been handled, but in so far as that is an issue, it will be recognised that the Bill—the first to be concerned with national statistics for 60 years—would create an independent board with a clear specification on which it needs to act and on its role. We seek in the Bill to create an independent board that will take responsibility for its actions, and we are being prescriptive in legislation only where we need to be. The Bill is already sufficient in those terms, and I hope therefore that the noble Baroness will feel able to withdraw her Motion.
My Lords, I thank all noble Lords who have taken part in this short debate. The noble Lord, Lord Davies of Oldham, said that he did not think the Bill should be overly prescriptive. I do not think that the amendments that are the subject of the Motion are overly prescriptive. The issue is simple: should the Bill be clear about the responsibilities of the board that are important to its role in future?
As my noble friend Lord Jenkin noted, that concerns its role in relation to trust. There have been issues about the release of statistics that have engendered a loss of trust. That is why we believe that the Bill should be absolutely clear about what the board is expected to do in those areas. I beg to test the opinion of the House.
On Question, Motion B agreed to.
12: Page 5, line 13, at end insert-
"(1A) The Code shall include rules and principles relating to the access to official statistics in their final form prior to publication ("pre-release access"), including-
(a) the circumstances in which, or descriptions of statistics in relation to which, pre-release access may or may not be granted; (b) the persons, or descriptions of persons, to whom pre-release access may be granted;(c) the period, or maximum period, during which pre-release access may be granted; and(d) the conditions subject to which pre-release access may be granted.(1B) The Code may make different provision for different cases."
15: Leave out Clause 11
The Commons disagree to Lords Amendments Nos. 12, 13, 15, 20, 67 to 70 and 72 for the following Reason and propose Amendments Nos. 15B and 15C to Clause 11 -
12A: Because the rules and principles relating to pre-release access are more appropriately provided for by order made by Ministers or the devolved administrations, subject to scrutiny by affirmative resolution procedure, than by the Statistics Board.
15B: Page 5, line 22, leave out "National"
15C: Page 6, line 4, leave out "Treasury" and insert "Minister for the Cabinet Office"
My Lords, I beg to move that the House do not insist on its Amendments Nos. 12, 13, 15, 20, 67 to 70 and 72 to which the Commons have disagreed for their Reasons 12A, 13A, 15A, 20A, 67A to 70A and 72A and do agree with the Commons in their Amendments Nos. 15B and 15C to the words restored to the Bill by the Commons disagreement with Lords Amendment No. 15.
These amendments all relate to the important issue of who, under the new system, should determine the rules relating to early access to official statistics in their final form prior to publication—the so-called pre-release access. There was a great deal of discussion on these matters not only when the Bill was last before this House but on other occasions, as indeed there was in the other place. I have in previous sittings set out in detail the Government’s rationale for the way in which they propose to handle pre-release in the new system. As I indicated earlier, the Prime Minister has since announced that the Government will further reduce the length of time that pre-release access is available to 24 hours, down from the previously agreed reduction to 40.5 hours for all statistics. By committing to reduce pre-release access from up to five days as enjoyed at present to a maximum of 24 hours, the Government are demonstrating that they have listened to the robust debate on this issue in this House and the other place.
This is a big move. It amounts to an 80 per cent reduction in pre-release for some statistics. Under the Government’s proposals, as the House will know, it is for the Government to determine the precise content of the new pre-release arrangements under the new system. We propose to set out the arrangements in secondary legislation. We expect that the statutory instrument will set out rules and principles to restrict the number of people who receive pre-release access and the statistical series to which pre-release might apply. It will also restrict the length of time that pre-release access is available to the new maximum of 24 hours.
We are not yet in a position to share with the House a draft of the statutory instrument—a point which would no doubt be made in our subsequent debate if I did not anticipate it now. Noble Lords may ask why. We intend to consult the shadow board when it is created on the content of the order before laying it before Parliament. The board is bound to have strong views on these issues and we want to make sure that it is consulted. This provides a powerful role for the board in determining the new arrangements. Further, putting the pre-release arrangements in secondary legislation rather than in the code of practice reflects the fact that it has never been the Government’s intention to hand a free rein to Ministers on the matter. On the contrary, there will be public consultation on the proposed content of the statutory instrument and detailed discussions with the shadow board and other interested parties before any final decisions on the nature of the statutory instrument are made. Such consultation will be key to creating rules and principles for pre-release access that are credible, practical and appropriate in the context of the wider code.
There is also to be another key way in which the board will be able to influence the content of the new pre-release arrangements. As we have discussed on previous occasions, the Government expect the new board to play an important role in monitoring the production and publication of official statistics. This function is established in Clause 8(1) and (2), while under Clause 25(3) the board may at any time provide a report about any matter relating to the exercise of its functions. Under Clause 25(4), such a report must be laid before one or more House of Parliament or the devolved legislatures. So the board is active on the matter and its role is clearly created within this framework. Even after a full consultation with the board before the pre-release rules are determined, the Bill provides that should the board not be content with that outcome or in the fullness of time wish to see further changes to the regime established in the secondary legislation, it could call publicly for further changes. Were it to do so, we would expect Parliament and the wider media to question the Government quite closely on whether they were going to take up the recommendations of the independent board, and if not, why not. Such a report from the board would be bound to attract attention.
In any case, the Government are committed to reviewing the operation of the pre-release arrangements after 12 months. Clearly this is precisely the sort of event that we might expect the board to be closely involved in, and precisely the sort of event that might trigger it to write a report under the provisions in Clause 25(3) should it feel it necessary to do so. Indeed, the Government believe that there would be benefit in the board putting its views on public record in this manner, regardless of the outcome of the review. As such, the legislation, together with this commitment to consult the board in determining the content of the pre-release regime, will ensure a strong and meaningful role for the board both in influencing the content of the pre-release regime itself and in enforcing the new arrangements.
When the content of the secondary legislation has been agreed, it will be laid before the House for approval by affirmative resolution. Once commenced, Clause 11(3) provides that the board must treat the content of the secondary legislation as though it were part of the code of practice. In particular this means that in assessing a set of statistics for its compliance with the code, the board must assess whether the rules and principles for pre-release have been followed. If the board determines that those rules and principles had not been adhered to, for example if it determines that a person has been given pre-release access beyond that set out in the rules, the board cannot designate the statistic as a national statistic. I want to emphasise a point that cropped up in the previous debate. It will be no small matter if a statistic put forward by the department and defined as a national statistic loses its status because of non-compliance with the board’s requirements. We would expect the board to comment publicly on the reasons for its decision against the loss of national statistic status. It is safe to say that Parliament and, of course, the media would pursue the matter very vigorously indeed.
At the risk of repeating myself: securing the new pre-release arrangements, which will have to be determined in consultation with the board, is not about safeguarding ministerial control over this key issue; rather, by putting the new, tighter pre-release rules in secondary legislation rather than directly into the code of practice—which is backed by statute but not set out in statute—it will be clear that these rules are backed by Parliament and by Ministers. Statisticians across government will therefore benefit from the significant authority that such a status provides for this important part of statistical practice.
In summary, there will be a full and powerful role for the board under these new arrangements. The board will be consulted on the content of the secondary legislation before it is laid before the House. It will have the power to comment publicly on any concerns it may have, either now or in the future, in relation to the pre-release regime and a duty to lay such concerns before the House and the devolved legislatures. It will have a statutory duty to assess compliance with the new arrangements and to withhold or withdraw national statistic accreditation from any statistical release it finds to have been prepared or released in contravention of the new, tighter pre-release regime.
I do not, however, propose to put the duty to consult the board on the content of the pre-release secondary legislation on the face of the Bill. I again emphasise, as I did in the last debate, that I do not want to over-complicate the legislation nor to over-specify matters on which the Government are already clearly committed. However, just to clarify the point, I give an undertaking to the House today, just as the Exchequer Secretary did in the other place, that the Government will consult the board on the content of the pre-release secondary legislation before it is laid before this House.
Moved, That the House do not insist on its Amendments Nos. 12, 13, 15, 20, 67 to 70 and 72 to which the Commons have disagreed for their Reasons 12A, 13A, 15A, 20A, 67A to 70A and 72A and do agree with the Commons in their Amendments Nos. 15B and 15C to the words restored to the Bill by the Commons disagreement with Lords Amendment No. 15.—(Lord Davies of Oldham.)
rose to move, as an amendment to Motion C, leave out from “House” to end, and insert “do insist on its Amendments Nos. 12, 13, 15, 20, 67 to 70 and 72, and do disagree with Commons Amendments Nos. 15B and 15C.”.
The noble Baroness said: My Lords, throughout our consideration of the Bill, one issue has dominated our discussions: public trust. The well documented decline in trust in statistics is in no small measure attributable to the way in which statistics have been manipulated or spun by politicians. While spin did not start in 1997, it certainly accelerated in the past decade. The lifeblood of spin and manipulation is access to statistics before they are released. This is partly a matter of the amount of time ahead of official release and partly the number and type of people who have access. At present it is entirely in the hands of the Government, and the Commons disagreements to our amendments would in effect preserve that position. It is our firm belief that the Statistics Board should set all the rules for pre-release, and our amendments, to which the other place has disagreed, achieve just that.
The UK’s pre-release access arrangements are among the most lax in the developed world. At present, up to 40 people have access to statistics ahead of their publication for five days, or 40.5 hours in the case of market-sensitive statistics. Australia manages with three hours, France has only one hour, and Canada grants Ministers access to market-sensitive statistics at 5 pm the day prior to release.
During the passage of the Bill in another place the Government announced a retreat from the current position to 40.5 hours for all statistics, and last week they announced a further retreat to 24 hours for all statistics. Although that was an eye-catching announcement by the new Prime Minister, as the Minister has confirmed today, there is no government amendment to put a maximum of 24 hours in the Bill. Indeed, the Minister, when talking about this issue earlier, referred ominously to the Government needing to retain flexibility—which means doing something other than 24 hours when it suits them. Twenty-four hours would still give Ministers in this country much more access than in other developed economies.
I should make it clear that we accept the principle of Ministers and officials getting access to statistics before they are released. We have never thought that the debate was about the specifics of particular time limits. The important issue is who makes the rules, and, as I said, our clear view is that that should be the independent Statistics Board. The Minister talked about the consultation that the Government commit to before the first statutory instrument setting out the rules. It is welcome that the Government are prepared to consult the board, or the shadow board, but why have they not included the board in the Bill?
If the Commons amendments were allowed to stand, there would be no statutory constraint on the Government whatever. They would be able, whatever consultation they carried out, to draft the statutory instrument as they chose. I hope the Minister will not pretend that Parliament has any real say in the content of an order. Our view remains that the Statistics Board should be in the driving seat. If the Government believe that the board should not have an unfettered power to set the rules, there could be other ways of achieving either the Government’s involvement or that of Parliament by drafting in the involvement of either or both by way of consultation or approval mechanisms, but to leave everything in the hands of the Government alone is, for us, not acceptable.
The Minister referred to the fact that the statutory instrument that will set the rules will become part of the code, and hence something against which national statistics will be assessed. I find that argument faintly ludicrous. Is the Minister seriously saying that the prospect of the designation of a statistic as “national” will have any impact at all on whether his fellow Ministers will follow the pre-release rules? The Minister merely reveals one of the unremedied weaknesses in the Bill; namely, enforcement other than by public announcements of disagreement.
That leads me to my final point. The Statistics Board can use its annual reports or other reports to highlight its views on pre-release, on either the rules themselves or the fact that they have been breached. In extremis the chairman or other members could resign if they were not listened to. Those are desperate measures, however. How much more straightforward it would be if the board set the rules. It would then be able to fine-tune them on a flexible basis over time, perhaps in response to blatant breaches of the rules or even to a principled case made by a particular Minister for greater pre-release access. That would be a system to be proud of. I beg to move.
Moved, as an amendment to Motion C, leave out from “House” to end, and insert “do insist on its Amendments Nos. 12, 13, 15, 20, 67 to 70 and 72, and do disagree with Commons Amendments Nos. 15B and 15C.”.—(Baroness Noakes.)
My Lords, the issue of pre-release has been with us throughout these debates. I support the amendment proposed by the noble Baroness, Lady Noakes, and I shall explain how it fits into the context of the Bill as a whole.
The whole thing started back in November 2005, when the Chancellor decided to legislate for independence in statistics, principally to improve public trust in official figures. The centrepiece was to be the new Statistics Board as a non-ministerial department. Most of us welcomed that as a general principle. In due course the Treasury published the details, after which there was the helpful public consultation period. The Bill then went to the other place, where it had a fairly easy ride, and reached your Lordships’ House earlier this year.
From the beginning, the Bill was welcomed here as an initiative; I think that most of us recognised that the reforms, if properly set out and implemented, could be an historic improvement to our statistical system. We found the Bill flawed in many ways, and I think it fair to say that it has been significantly improved by your Lordships’ questions, debates and amendments. Indeed, I see it as a good example of how this House can improve complex legislation on even a very tricky and not particularly popular subject and make it fit for purpose, to use today’s jargon. In this case, that means a statistical system more remote from political involvement and more trusted throughout the whole of society, which it aims to serve.
That we now have a good Bill owes a great deal to the former Financial Secretary, John Healey, who from the beginning worked on it tirelessly, very effectively and with constant courtesy to all involved. Now in the final stages, we also owe thanks to the Exchequer Secretary, Angela Eagle, who is clearly equally committed. The result is a number of vital improvements to and concessions on the original Bill.
Here on the Floor of the House, the Bill has benefited from the energetic and positive involvement of the Minister, the noble Lord, Lord Davies, who managed to focus on it despite having, to put it mildly, a few other things on his plate. Much depended on the quality of the debate and amendments in this House. Although I do not want to embarrass individual colleagues, I express my admiration to those of your Lordships who have contributed, especially those on the opposition Front Benches who moved a number of crucial amendments.
We have all been grateful throughout for the help from the Royal Statistical Society and its president, Tim Holt, and from the Statistics Commission and its chairman, David Rhind, and chief executive, Richard Alldritt. They have all played a major part in briefing. This is an occasion to note the enormous contribution to the statistical world made by the commission in recent years, when it has become ever-more powerful and influential. The new board will be very wise if it chooses to build on many of the good examples set by the commission, whose annual report, published this morning, gives a good picture of its excellent work.
Much will depend on the board, still to be established as a non-executive board. It faces numerous challenges, and reading through the various debates in Parliament will provide helpful background for its work. I have many hopes for it, including for what it does on things to do with release arrangements. Apart from that, I look to it for a comprehensive new code for regional and local interests; for total authority in professional matters for which the National Statistician will be in charge; for securing adequate resources for quality statistics; and, above all, together with the National Statistician, for overseeing the whole statistical system, not just ONS.
Let me say for the last time that statistics from the policy departments are the problem, not those from ONS. It is there that quality is patchy and very sensitive to matters of public trust. We need think only of migration, crime, health, education and so forth. Most of the problems have an element of sensitivity, regarding not so much the quality of the statistics as the way in which they are used by Ministers, officials and the media. That is why this discussion about release and pre-release is crucial.
As has been made clear in many of our discussions, none of us questions the principle of pre-release—that is not the issue—nor have we concentrated on the numbers game. Our emphasis throughout the debates has been on who is responsible for monitoring pre-release arrangements. To put that in context, let us remember the issues that surround pre-release. They are the time allowed between availability of statistics to Ministers and when they go public, the number of people who receive them, and the number of series involved.
This country is now more generous—to put it positively—or more lax in all these respects. It is sad that we have become much more so in recent years. I do not want to make claims about my role in earlier years, but we succeeded many years ago in tightening up release arrangements considerably. It saddens me how lax they have become in our present day. That is why we have focused on this issue and why I stress that the outside statistical community looks to it more than to almost any other for what the Bill will do. That is why we keep on stressing how important it is that the role of the board in this area and the importance of the code are made explicit in the Bill.
Perhaps I may be generous and acknowledge how much has been achieved in various ways since the Bill started its journey many months ago. Seriously significant advances have been made. The first was made by the Financial Secretary to the Treasury, who responded to public debates early on by reducing pre-release access from a maximum of five days to 40.5 hours. I shall not spend time talking about market-sensitive data; that is a separate problem. We welcomed the reduction as a step in the right direction, though we emphasised that it did not go nearly far enough; indeed, it went nowhere near what is common in almost every other country, which is either zero pre-release or a few hours. We can now welcome the Prime Minister’s initiative, which was announced last week—noble Lords have already referred to it—of a further reduction to 24 hours. I welcome this most warmly and recognise the Prime Minister’s commitment to this subject. I hope that in due course we will go much further—to a few hours rather than 24 hours—but the trend line, when extrapolated, from five days to one day in a period of just a few months is encouraging to me as a statistician. In a few years, when I shall probably no longer be here because of death—nothing else—we may reach close to zero.
That is very encouraging, as is the Prime Minister’s commitment to reduce the number of people who will gain pre-access. Also encouraging is the commitment from the Exchequer Secretary on secondary legislation and its details. As I understood it from the Minister today, that is a significant step forward. It will ensure that all the details of pre-release will be in the secondary legislation and, even more important, that consultation will be held with the shadow or the actual board before it is finalised.
I find that very encouraging, but it takes me back to my final point. Despite these improvements, which show that on the substance and essence of pre-release we are all following the same lines, the role of the board and code must somehow be recognised in the Bill. I see no difference in attitude or essence between any of us in this discussion, and I genuinely cannot understand why the Government still resist introducing a simple amendment giving the board power to monitor—quite a weak word—pre-release arrangements and setting that out as part of the code.
In conclusion, we now have a Bill that is extremely helpful and could historically lead to a new statistical system, except that it misses out on one particular. Unfortunately, that particular—pre-release—is probably the most known-about in the statistical community and is in some ways indicative of the Government’s ultimate attitude to the whole subject of public trust. Our original amendment is not the only way; there are very simple ways in which to include a reference to the role of the board and the code in the Bill and not only in secondary legislation. The matter is not overspecialised or specific; it is central. I still hope that it is not too late for the Government to think again on the only aspect that keeps this from being a really good Bill and makes it flawed in one particular. As I say, there are various ways in which to introduce this measure. The key point is that to have the provision, however well formulated, in secondary legislation does not help public trust or confidence. It must be in the Bill.
My Lords, we, too, welcome the fact that the Government have moved considerably on the norm for the pre-release access that Ministers would have to government statistics. Given that the period proposed fell from 40.5 to 24 hours in a day, if that trend had continued last week Ministers would now get access to official statistics several days after they had been published. However, we are pleased that focus has been put on that period and that 24 hours is now being considered rather than 40.5 hours. As noble Lords have said, there is nothing splendid about a period of 24 hours, but it is significantly better than one of 40.5 hours.
The key question over these amendments is the one to which the noble Baroness referred—that the principal purpose of the Bill is to restore trust in official and national statistics. For that to happen, the board needs to be seen to be in charge. In virtually every other aspect of the way in which statistics are going to be produced and disseminated, the board is in charge.
In the debates on the last set of amendments, we heard the noble Lord explain eloquently why the board would have powers to be responsible for all aspects of the release mechanism. Therefore, it seems to us plain logic that it should be responsible for the most important element of the process in terms of public trust; namely, that it should be seen to be in charge of the rules and timing of pre-release.
The Government have given a number of reasons why they disagree with this view. We should stress that our amendments make it clear that Ministers will have the necessary time to meet their needs in terms of what they say on statistics. Amendment No. 13 explicitly makes that clear. If our amendments are carried and the Government want to ensure that the 24 hours are enshrined very clearly, it would be easy for them to add a few words to Amendment No. 13 to state that in any event the period would be no longer than 24 hours. I do not think that that is a great problem; we can deal with the 24 hours in legislation.
The Government say that if their model is agreed to today it will be all right because the board can make a report calling for changes, to which the Government will listen. Perhaps they would, perhaps they would not. However, if a change were required to the secondary legislation, noble Lords will know that it cannot be done at the drop of a hat, even if the Government are minded to do it. If often takes a very long time for secondary legislation to be introduced.
We are told that there is to be a 12-month review. That is better than nothing but if the problem arises after 15 or 24 months the review will be no help. The Minister said that the status of pre-release requirements would be higher in secondary legislation than if they were dealt with via the code, but surely that is an argument for the whole code to be in secondary legislation, not just this element of it.
At this stage in the consideration of a Bill, the role of your Lordships’ House is to make the Government reconsider. There is an additional reason why we should ask the Government to reconsider this measure, which is that, to all intents and purposes, we have had a new Government since we first looked at this Bill. Not a single Treasury Minister remains in the Treasury. When she was dealing with the issue in another place a week ago, the Exchequer Secretary admitted—incidentally, she thought that she was still talking about 40.5 hours—that she had had a very busy weekend reading the relevant papers. It seems to me that if there were ever a case for your Lordships’ House asking the Government to look again, it is now, when Treasury Ministers have barely had time to read the papers, far less to consider some of the arguments in great detail. The Government should be asked to look again at this most crucial point of principle remaining in the Bill.
My Lords, in his magisterial way, the noble Lord, Lord Moser, spelt out the history of the Bill and how we have reached the position we are in now. He made a compelling case for putting this measure in the Bill. In these circumstances I do not think that I need to add very much. He referred to the commission’s annual report, which was published today, 9 July. I am grateful to the officials in the Printed Paper Office who were able to give me a copy at the release time—10 o’clock this morning. I confess that on Friday I asked them whether they would arrange that, and they did.
I wish to refer to two paragraphs of the report. We should bear in mind that the Statistics Commission is not a statutory body and that the code that it has been operating is not a statutory code. I refer to annex D of the report, should anybody wish to pursue some of the other examples. It states:
“The National Statistics Code of Practice sets out principles and practices that government departments and agencies should follow in producing and publishing official statistics. However, only a few parts of the present Code are of a kind that readily allow an independent judgement to be made about compliance”.
Some of the examples that the commission dealt with in that year are set out in the three or four pages that follow. It had to consider whether what happened was consistent with the code. I shall not read out all the examples, because we wish to reach a conclusion on this; I shall mention only one matter which related to the publication by the Department for Education and Skills of annual results for key stages 1 and 2. The argument arose in the department about the right date on which to publish them. The commission said:
“However, internal DfES correspondence, made available to the Commission in order to explain the Department’s decision-making process, suggested that senior officials and special advisers believed that their own views on the appropriate release date for the figures were a relevant consideration”.
The commission makes it clear that it did not think that that was at all appropriate. The issue must be considered against that sort of background.
The Minister will recognise that we have raised this issue previously; there has been a tug within the Cabinet between the Treasury, which was originally in charge of this Bill, and other departments that publish statistics, which were desperate to retain control over their pre-release arrangements. I shall not quote him exactly, but the Minister said that anyone who has been in Cabinet knows that that is how it works. That has happened here, but the Minister in the Treasury at that time was the right honourable Gordon Brown, the former Chancellor the Exchequer and now the Prime Minister. He is now in a position to impose his will on his colleagues and make sure that they fall into line with what he originally would have liked to see: these matters firmly set out in the Bill, with the board having the monitoring role. These amendments would do that. One would delete Clause 11, which states simply that the board shall have no responsibility for the pre-release of statistics. That flies in the face of everything that the Minister said in moving his Motion and that is why it is absolutely right to insist that the code shall deal with these matters in the way set out in the amendments spoken to by my noble friend.
This is a matter of enormous importance; it is emphasised by how the Statistics Commission has reported on what will be its last year of operation. We now have a statutory Statistics Board; that is in the Bill. We now need a statutory code backed by legislation. That is what our amendments would achieve, and I hope that the House will support them.
My Lords, this has been an interesting debate and was all the better for being put in historical context by the noble Lord, Lord Moser. I thank him for his kind words about fellow Ministers’ efforts and the extent to which the Government have sought to adopt a sharing role with Parliament on the development of the Bill. It will be recognised that, in many key areas, government thinking has been influenced by contributions in this House and another place.
Let us be clear about our position. The noble Baroness said we need certain things in legislation because statements are not good enough. The Prime Minister said he intended that the pre-release period should be 24 hours and no longer. Is anyone suggesting that if we do not agree to the amendments today, 24 hours will not be the maximum pre-release period? That was, of course, a categorical statement. Likewise, when we said that the Government would consult the board on the content of the pre-release secondary legislation—recognising the board’s significant role with regard to pre-release—that was a categorical statement, which was made in another place and repeated by me today. The House will recognise that, as a Minister making such a statement to the House, my honourable friend in another place was effectively stating what she intended the law should be and how things should work. It is well known that the courts interpret Ministers’ categorical statements about how legislation should be interpreted in these terms. That is why that statement about the board was made in such categorical terms and why I had the pleasure of repeating it today.
The Government intend that the board should have a full and meaningful role in determining the new pre-release arrangements and ensuring that they are complied with. We have a substantial degree of consensus, as the noble Lord, Lord Moser, indicated, on the importance and value of the Bill, which governs the conduct of national statistics in this country—it is the first such Bill for 60 years. We have reached consensus on most of the key structures and processes that the Bill will establish.
I repeat that the Government have listened to Parliament. Two of the amendments from the Commons, which the noble Baroness suggested should be rejected—they are mentioned in her Motion—would make the Cabinet Office in charge of the statistics legislation and operational matters. That is the very thing that this House voted for and which the Government have sought to comply with, hence the amendments, which the noble Baroness suggests we should not agree to.
Wherever possible, we have moved to meet the views of all sides and have made real changes to the Bill. We have done so on the governance of the board—in particular on the role of the National Statistician—and on where residual responsibility for the board should lie within government, which was the subject of earlier amendments. It will be recognised that the Government have been responsive. We have had further clarification of the board’s important role in relation to pre-release. That is probably the last remaining area of contention. The Government are proposing real and significant reforms to the current pre-release regime, with a meaningful and strong role for the board in determining the new arrangements.
Although I have heard a great deal about the question of trust in statistics, let us not devalue ourselves too far. Despite the persistent belief expressed, there is little evidence to support systematic abuse of our current arrangements. The Statistics Commission, which investigates alleged breaches of the current protocol on release practices, makes it clear that the number of breaches is an extremely small percentage of the mass of statistical releases. The Phillis review of government communications three years ago found no evidence that the right of pre-release had been abused. A recent Statistics Commission survey found that, as regards quality, the official outputs in the United Kingdom are considered by the public to rival the best in the world. They do; our statistics have enjoyed a reputation across the world. Therefore, the Bill is a conscious attempt to enhance trust in statistics. It improves control arrangements, but we should not sell ourselves short on the basis of our current regime.
I hope it will be seen that the Government’s proposals create a significant role for the board with regard to pre-release. The noble Baroness derided the sanction that the board would have in identifying a national statistic produced outside the code of practice, the development and monitoring of which it would be responsible for. That would be a highly significant sanction for anyone who was responsible for such a statistic, and of course the role of the board is clearly identified.
The sooner the Bill receives Royal Assent, the sooner can begin the important business of making a reality of the new system. We have had very intensive debates about these issues, but the Minister in the other place expressed the view that the Government do not propose to move on this narrow issue. I emphasise that this Bill is too important to be put in jeopardy, and its definition has been much improved by debate here and in the other place. I hope it will be recognised that the best way to enhance confidence in our national statistical system is to ensure that the Bill gets a ready passage, and I hope that the noble Baroness will not press her Motion.
My Lords, I thank all noble Lords who have spoken in this debate—in particular, the noble Lord, Lord Moser, who paid tribute to a number of parties, including the Statistics Commission. I associate myself with those remarks.
The Minister referred to the commitments made at the Dispatch Box about the 24-hour period and consultation. We accept the force of those commitments, but that is not the issue. The issue is who should set the rules, and that can be seen most clearly in the wording of the Commons disagreement:
“Because the rules and principles relating to pre-release access are more appropriately provided for by order made by Ministers”.
We do not agree with that. We think that it is more appropriate that the independent Statistics Board sets those rules. I wish to test the opinion of the House.
Motion C, as amended, agreed to.
Corporate Manslaughter and Corporate Homicide Bill
My Lords, I beg to move that the Commons amendments be now considered.
Moved accordingly, and, on Question, Motion agreed to.
[The page and line references are to Bill 19 as first printed for the Lords.]
2: Page 2, line 29, at end insert—
“(d) a duty owed to anyone held in custody.”
3: Page 3, line 12, at end insert—
““custody” includes being held in prison, secure mental healthcare facilities, secure children’s homes, secure training centres, immigration removal centres, court cells and police cells, and being subject to supervision by court, prisoner and detainee escort services;”
5: Page 3, line 37, leave out “or (b)” and insert “, (b) or (d)”
6: Page 3, line 40, leave out “or (b)” and insert “, (b) or (d)”
10: Page 5, line 8, leave out “or (b)” and insert “, (b) or (d)”
The Commons insist on their disagreement with the Lords in their Amendments Nos. 2, 3, 5, 6 and 10, do not insist on their Amendments 10C and 10D in lieu but propose Amendments 10F, 10G, 10H and 10I in lieu—
10F: Page 2, line 31, leave out “subsection (1)” and insert “this Act”
10G: Page 3, leave out line 25
10H: Page 13, line 3, at end insert the following new Clause:—
“Power to extend meaning of “relevant duty of care”
(1) The Secretary of State may by order make amendments to this Act to the effect that a duty of care owed by an organisation under the law of negligence to a person who—
(a) is in any specified form of custody or detention, or is otherwise on premises of a specified description or on premises in specified circumstances, and
(b) is by reason of that fact a person for whose safety the organisation is responsible,
is a “relevant duty of care”.
(2) An order under this section—
(a) may amend this Act so as to restrict or disapply exceptions as regards the application of any provision contained in this Act as a result of such an order;
(b) may make any amendment to this Act that is incidental or supplemental to, or consequential on, an amendment made by such an order.
(3) An order under this section is subject to affirmative resolution procedure.”
10I: As an amendment to the Clause inserted into the Bill after Clause 19 by Lords Amendment No. 33—
Line 30, at end insert—
““premises” includes land, buildings and moveable structures;”
My Lords, I beg to move that this House do not insist on its Amendments Nos. 2, 3, 5, 6 and 10 and do agree with the Commons in their Amendments Nos. 10F to 10I in lieu.
We are again called on to consider the Corporate Manslaughter and Corporate Homicide Bill. The issue remains the difference in position between this House and the other place on the appropriate way for the Bill to deal with deaths in custody. Your Lordships were due to consider this Bill last Monday. That debate was postponed while further consideration took place. I am extremely grateful for the time that the noble Lords, Lord Ramsbotham, Lord Hunt of Wirral, Lord Dholakia and Lord Lee of Trafford, have taken to discuss this issue further with me.
This has also been a period in which new Ministers have taken up their posts. The Government have given extremely serious consideration to your Lordships’ concerns. We have explored the different options available with great care. The Government have offered considerable movement in response to your Lordships’ concerns. We have accepted the principle of the offence extending to custody and provided a means in the Bill to bring that about. That is a great deal of movement when measured against the Government’s very clear view when introducing the Bill that the offence should focus on health and safety duties and not apply to the discharge of specific public responsibilities.
Your Lordships have therefore secured a very considerable compromise by the Government. Since that was adopted in the other place, your Lordships have asked the Government to reconsider the position twice. We have done so, and we have given careful thought in doing so. My discussions with noble Lords will, I hope, have demonstrated how seriously we have taken the issue, and that we have been prepared to look at the range of options. Nevertheless, there comes a point at which, as a responsible Government, we must say that we have gone as far as we can. Following careful reflection, the Government have concluded that the position adopted in the other place is as far as it is right for the Bill to go.
Strong concerns have been raised by your Lordships on the issue of deaths in custody. The Government have taken those concerns seriously and have sought to steer a path between those who wish to see the offence extended and the Government’s view that any such extension must be delayed while the implications of the lifting of Crown immunity in practice are considered. There are considerable uncertainties involved in applying the new offence to Crown bodies. The prosecution of government departments represents uncharted territory and there will inevitably be difficult questions about how exactly that will work in practice, not least what the consequences will be for extending the criminal law to the organisation and activity of very significant public functions.
The Bill steers a careful path and sets out a number of areas where the offence will apply across the board, private and public sector, Crown and non-Crown alike. These cover key responsibilities towards employees and in the occupation of premises, and other important health and safety duties in the provision of services and the use of plant and equipment.
Your Lordships’ House and the other place have both recognised that the exercise of some public functions must stand outside this offence. The Government have recognised the very strongly held concerns of a number of your Lordships on the issue of deaths in custody and have provided a means in the Bill for addressing them. In doing so, we have recognised the principle of extending the offence beyond the traditional ambit of health and safety matters to wider concerns. That is very considerable movement.
The arguments since put by your Lordships have rightly caused the Government to go back and consider their position, but we have reached the conclusion that it is not right to go further. That position is accepted by the other place, and I urge your Lordships to accept the clear insistence of the other place.
Before sitting down, let me bring two matters to your Lordships’ attention. Noble Lords will recall that following the concerns raised on deaths in custody in the context of this Bill, the Government offered to put the Prisons and Probation Ombudsman on a statutory footing. I am pleased to inform your Lordships that a criminal justice Bill was introduced in the other place on 26 June and will give effect to that.
I also want to draw your Lordships’ attention to changes made to the amendments in lieu. The first is to address a point raised in the other place by the right honourable gentleman, Douglas Hogg. He was concerned about the inclusion of scope in subsection (2) of the proposed power to specify exceptions to the forms of custody to which the offence would extend. As we wish to address that concern, the scope to specify exceptions has been removed. Moreover, changes have been made to make it clear that the definition of “premises” in subsection (1) of the power is the same definition as already contained in Clause 2. That definition will now appear in the wider interpretation clause inserted by other amendments made in your Lordships’ House and already accepted by the other place.
There is much that is good in this Bill. It will set out a new basis for holding organisations to account for gross corporate negligence. The identification principle will no longer present an obstacle to prosecution in such cases. The Bill will usher in a new type of sentence for organisations—the publicity order. In passing the Bill, Parliament will send out a clear message that the law will bear down hard on those organisations that do not take their health and safety responsibilities seriously.
The Bill has come a long way—not just in discussion in this place and the other place, but in a long journey from a clear need to reform the law being identified to this House standing on the threshold of putting a new offence on a statutory footing. I urge this House to take that final step today.
Moved, That this House do not insist on its Amendments Nos. 2, 3, 5, 6 and 10 and do agree with the Commons in their Amendments Nos. 10F to 10I in lieu.—(Baroness Ashton of Upholland.)
rose to move, as an amendment to Motion A, leave out from “House” to the end and insert “do insist on its Amendments Nos. 2, 3, 5, 6 and 10 and do disagree with the Commons in their Amendments Nos. 10F to 10I in lieu.”
The noble Lord said: My Lords, I am most grateful once again to the noble Baroness the Leader of the House for the way in which she has explained her case and pay great tribute to her for the fact that she has been at great pains to consult and keep those of us interested in the amendments in the picture—in the loop, as it were—of what has been going on. I know that it has not been easy for her, not least because, at the time, she has been taking over other responsibilities.
Therefore, we were extremely pleased when she came with the information that the Secretary of State for Justice was minded to include custody in the Bill and asked if we would be happy if there were a delay while he considered. We were immediately happy to give that assurance and did so. I wrote to him saying that I was extremely happy and glad that he was doing that. We were happy to consult with him if he would like that. Because “time” and “if”, as opposed to “when”, were mentioned in the previous letter, I suggested to him a date that might be acceptable to everyone in this House. That was a date sometime ahead, 1 January 2009, which gives a considerable amount of time for all the concerns that the Government have expressed to be considered.
I speculated that I could have conducted four four-month tours of duty in Belfast during that time, and I was always asked to do rather more than merely consider that. Therefore, I was extremely concerned when, on Friday, the noble Baroness came to say that, unfortunately, the Secretary of State for Justice had now withdrawn what he had offered. I can only speculate on what had encouraged him to change his mind. In taking the step that he had of agreeing, as I understood it, that both custody and the private sector should be included in the Bill, there was no point in pressing for a time, because it would include both. Therefore, the Bill, which everyone welcomes and wants on the statute book, could be proceeded with as quickly as possible, in the knowledge that both sets of victims—who are the object of our concern—were included in the Bill.
It would be invidious of me to repeat all the arguments that I and other noble Lords have made many times as to why that should be, because this House has now voted three times showing that it understands those arguments, which are not party-political. As we were invited to consider, this is a matter of doing a good that has long been needed. The noble Lord, Lord Morris of Handsworth, challenged Ministers, if they declined to include custody in the Bill, to look in the eyes Mrs Edwards, Mrs Campbell, Mrs Day, Mrs Mubarek, Mrs Aziz, Mrs Bailey, Mrs Rickwood and Mrs Myatt, to name but eight whom I have mentioned in this debate, whose sons or daughters died while they were in the hands of the state, and explain why it is that they, as victims of government policy, should not be treated in the same way as victims of a private sector company.
As I said before, we in this House now have a real opportunity to do good. I realise that pressing the Motion for a fourth time may seem like stubbornness and going near the constitutional limits of the rights and privileges of this House. I do not want to go further than would be constitutionally wise, because I respect, as always, the gravity, the wisdom, the humanity and the decency with which this subject has been treated by Members on all sides of the House in our debates on it. To put it at its deepest, we are trying to stand up for the victims of the state against the state, because I cannot for the life of me see why the Government should not recognise that they are responsible for good management on the part of their managers. That is a matter not of public policy or public expenditure but of actual detail. Therefore, I beg to move.
Moved, as an amendment to Motion A, leave out from “House” to the end and insert “do insist on its Amendments Nos. 2, 3, 5, 6 and 10 and do disagree with the Commons in their Amendments Nos. 10F to 10I in lieu”.—(Lord Ramsbotham.)
My Lords, here we go again. This is the fourth time that I have supported the Motion of the noble Lord, Lord Ramsbotham, and the whole thrust of his approach to the Bill. We all hoped that the new Administration would see sense, because, as the noble Lord said a littler earlier and as we have said on many occasions, this is not a party- political issue but an issue of humanity and common sense. Indeed, almost everyone who has spoken on the Bill in Committee, in the other place, and certainly in your Lordships’ House has argued, and strongly, for deaths in custody to be included in the Bill.
I refer particularly to the speech made by the noble Lord, Lord Morris of Handsworth, the last time that we debated the Bill and amendments to it, and to the speech made on 28 June in the other place by a senior and very respected Labour Member, David Winnick, who concluded by saying:
“As I have said, I am saddened and disappointed. I believe that the Government should go further, and that the Lords were right. I would not be surprised if they insisted on their amendments and the Bill came back before us once again”.—[Official Report, Commons, 28/6/07; col. 499.]
I am very sad to say that the new Administration has fallen at the first hurdle. We on these Benches shall vote tonight to maintain our position, and we urge the Government once again to think again.
My Lords, I declare an interest, which I have previously declared, as a member of the Prison Service and National Offender Management Service boards, as set out in the register. However, my views on the Prison Service are purely my own. The Government have altered their stance on the Bill quite considerably, and I much preferred their original stance. I am not convinced that applying to the Prison Service the terms of the Government’s current wording in the Bill will reduce the number of deaths in custody, but I shall vote with them because their proposition, which still implies that an order will be appropriate at some stage, may not be quite so damaging as the alternative on offer, with its more immediate application to the Prison Service.
The Prison Service operates in a very different climate from that of the organisations and companies to which the Bill was originally intended to apply. It cannot turn away its customers on the basis that they are violent, unstable, have drug or alcohol problems, or present a threat to others. It does not have customers who are happy to be using the service on offer. It cannot control the mix of prisoners or where they come from. Only in the circumstances of being full to bursting has it control over the number of prisoners.
Yet the Prison Service does not determine its own budget and, thus, the money available to meet operational requirements is determined in part by others. It does not have control over levels of investment to ensure, for example, that the prison estate is fit to meet today’s needs. It is in a position where acts of violence, disturbances, challenges to authority and incidents of self-inflicted harm or death are an everyday possibility at best and an everyday occurrence at worst. It does not need a failure by senior management or staff to result in injury or death to a prisoner, whether self-inflicted or otherwise.
Failures by the Prison Service have, however, contributed to deaths; we have heard about them during the discussions on the Bill. There have been inquests, independent inquiries and investigations, some very high profile, into such tragic incidents, as there are into every death, self-inflicted or otherwise. The decisions in these cases, including the Mubarek case, have not laid sole responsibility on the Prison Service. Any inference that, had this Bill been in force at the time, a corporate manslaughter charge under the criteria laid down in the Bill would have been successful or even laid in the tragic incidents referred to during the discussions on the Bill, is thus open to question.
Will the Government’s wording in the Bill reduce or increase the likelihood of such incidents, and will the same apply as far as the amendments that have been moved? Will this Bill change the way in which the Prison Service functions, in particular the approach and practices of its senior management faced with the prospect of potentially being literally in the dock if the service faces corporate manslaughter charges? I believe that the answer is that it could. However, the question that needs some thought is how?.
I would have thought that the application of this Bill to the Prison Service will make the service much more cautious in its approach. Surely there will be an impact of some sort on prison capacity. There will be less willingness to have sharing of cells, since the Prison Service will want to eliminate any potential risk arising from sharing cells, including in relation to prisoners who have arrived only recently and about whom less is known. Some would argue that this is a step in the right direction, but clearly it has potentially serious implications at a time when prison capacity is already at full stretch. If prison capacity is lower than it would otherwise be as a result of the Bill’s impact on the Prison Service, then in the absence of shorter and fewer custodial sentences, presumably further numbers will need to be let out earlier than they would have been.
Most of our prisons were built many years ago and many cells still have ligature points. The investment has not been made to eliminate them and levels of investment are not determined by the Prison Service. Could it be corporate manslaughter to put someone in a cell with ligature points on his or her own if that person then carries out a course of action which results in a self-inflicted death using a ligature point? I am sure that some will campaign vigorously for such a charge to be laid.
The climate already may be beginning to change. Some feel that a more robust approach is being adopted to the questioning of Prison Service staff following a death, including questioning under caution. I would suggest that the result could well be that the Prison Service increasingly adopts an approach designed to minimise the likelihood of its facing corporate manslaughter charges, rather than an approach that seeks to minimise the likelihood of incidence of self-inflicted harm or death. The Prison Service may currently take a view based not on capacity issues but on what it sees as an individual’s behaviour and manner and in the absence of any documentation or information indicating to the contrary that it would be helpful to such an individual not to be alone in a cell but to be sharing with someone.
Why, though, in the future? Let us consider that slight risk of there being an incident in the shared cell when the prospect for the service could be a corporate manslaughter charge. The service cannot, by definition, get any credit for saving a self-inflicted death due to a decision to share a cell, because no one knows whether such a tragic incident would have taken place in the absence of such action. However, if the decision backfires and a death results, the evidence will be all too obvious.
The likelihood of avoiding a corporate manslaughter charge in the event of a self-inflicted death will surely be greater if the service has simply played it safe, put the individual in a cell on his or her own and made checks at the required intervals. It is more likely that the Prison Service will not even face a corporate manslaughter charge being laid let alone found proved in the case of a self-inflicted death than it would be where what was regarded at the time as a well-intentioned judgment based on the absurd behaviour and manner of an individual went wrong and a self-inflicted death or murder in a shared cell was committed.
I do not know what the overall impact on incidence of self-inflicted harm and death will be if the Bill applies to the Prison Service. I am not able to assert that it will lead either to a reduction or an increase in such incidents. I simply make the point that there is a credible possibility that it could result in the Prison Service playing safe and gearing its approach to reducing the prospect of facing corporate manslaughter charges being brought, and in so doing an outcome could be the unintended consequence of an increase in incidence of self-inflicted harm or death.
My own view is that more work needs to be done to ascertain what the Bill’s actual impact on the Prison Service and the incidence of death, self-inflicted or otherwise, is likely to be before making a decision on whether to proceed to apply it to the Prison Service. Is my noble friend able to give an assurance that under the Government’s current position on this Bill, as set out in the amendment, there will be no move to apply the corporate manslaughter provisions to the Prison Service unless an appropriate investigation has been undertaken into the likely impact of the Bill on the way that the Prison Service operates and the number of deaths in prison, with the results being published, including the evidence for any conclusions reached about the impact on the number of deaths, whether it be an increase or a decrease?
My Lords, given that my noble friend has put the emphasis on this issue one way, I think that it is necessary to put the emphasis slightly differently. He seeks an assurance that nothing will be done until there has been a comprehensive inquiry. There is going to be such an inquiry and so a further question arises. After all this toing and froing, can my noble friend on the Front Bench confirm that there is no doubt at all that talks will be held with the prison authorities and the police about the principle in the Bill that is to be introduced at some stage? On the last occasion, I said that that should be done not over 10 or 20 years, but within the lifetime of a Parliament, for example. Such talks must take place or else there will be an inconsistency between what the Government have now accepted in the Bill and what we now expect will ensue.
My Lords, this is my first opportunity to offer my warm congratulations to the noble Baroness on her promotion, which has given great pleasure to her friends and colleagues on all sides of the House. We look forward to her leadership of the House.
On this issue, I thank the noble Baroness for having taken so much time and trouble to try to find a way through. However, as the noble Lord, Lord Ramsbotham, has said, these amendments go to the heart of a profound and serious responsibility, that of the deprivation of an individual’s liberty. The treatment of those individuals is a test of how a society treats its members; it is a test of its fairness and compassion. We might even say that it is a defining characteristic of the British way of life and the British sense of fair play.
I should say to the noble Lord, Lord Rosser, that although I respect his personal judgment on these matters, the vital principle of our position remains that it cannot be argued that, where a public function as profound as holding an individual in custody is negligently and grossly contravened, that should go unpunished. Those we hold in custody are among the most vulnerable in society, and today we are debating whether or not custodial institutions owe a duty of care to their charges. I submit that unequivocally they do. Custodial institutions ought not only to owe a duty of care to their charges, but to stand accountable if they fail in that duty. What is more, access to justice must be access equal to all; all must be equal in the eyes of the law. Those who lose loved ones as a result of grossly negligent treatment by a corporation—be it a prison, a rail company or whatever—must, as the noble Lord, Lord Ramsbotham, has pointed out to us on so many occasions, be entitled to justice. The new Prime Minister, Gordon Brown, has promised:
“At no point will our British traditions of supporting and defending civil liberties be put at risk”.
I agree. I remind him and the Government again of the great civil liberty that all are equal in the eyes of the law.
The debate is now quite simple. Let me make it clear to the Government that we on these Benches and my colleagues in the other place will readily agree to any Motion that the Government may bring forward that proposes further time for consideration of the Bill. I recall that the Minister said last time that it was possible for there to be such a Motion. If the Minister tables one, we will agree to it. Therefore the Bill cannot fall through the action of the Opposition. If it falls, it will be as a result of ministerial homicide, because Ministers can provide for further time.
The issue is now simply this: if the Government win the vote, deaths in custody may never come within the scope of the Bill. Indeed, the noble Lord, Lord Rosser, hopes that they will not. There is no obligation on the Government to extend the Bill to deaths in custody.
My Lords, I do not know what the response of my noble friend is going to be, but it may be that there will be a prior investigation, with the results being published, to show what the impact would be on the number of deaths. I have made it clear that I am not asserting that this provision would lead to an increase or a decrease; I have simply painted a scenario where it could go in a way that is not being anticipated by many Members of your Lordships’ House.
My Lords, we are in agreement. I do not know why the noble Lord intervened. I was merely pointing out, as he pointed out, that it is perfectly possible for deaths in custody not to come within the purview of this Bill. There is no obligation on the Government to introduce an order bringing them within the confines of the Bill. So, if the Government win the vote, we may never see deaths in custody coming within the Bill. If the noble Lord, Lord Ramsbotham, wins the vote, then they will come within the purview of the Bill at whatever time the Government decide to bring the provisions of the Bill into effect. That meets the point made by the noble Lord, Lord Lea, that it must be for the Government to decide when to bring the provisions of the Bill into effect. That is always the case. Under Clause 21, the Government will designate the day on which the provisions will come into effect. So it is perfectly possible for the Government still to make that decision if the House agrees to the amendment in the name of the noble Lord, Lord Ramsbotham, as I very much hope it will.
My Lords, I am grateful to noble Lords. I am extremely grateful to the noble Lord, Lord Hunt of Wirral, for his kind remarks on my new role.
As noble Lords have acknowledged, I sought to keep people involved in all the twists and turns and deliberations and discussions that have gone on within the Government; they will know that part of the reason for the postponement last week was that we wanted to ensure that my right honourable friend Jacqui Smith and my right honourable friends who have been involved with the terrorism attacks had the time to consider this properly. I am very grateful to all noble Lords who enabled us to do that.
The noble Lord, Lord Hunt of Wirral, is right: it is possible for the Government to move a Motion in another place to delay the fall of this Bill on 19 July—I am told it may be 20 July. However, our understanding of the way in which that would work, and I appreciate that we are in uncharted territory to some degree, is that such a move would have to be in order to achieve something. I have to ask the question of your Lordships’ House: delay in order to do what? That is my difficulty.
My Lords, I am grateful to the noble Baroness. Perhaps I may answer her question. As yet, I am not aware of any meeting that has taken place between the proposers of these amendments, the Secretary of State for Justice and the Home Secretary. Surely we should have a pause so that such a meeting can take place to see whether we can find a way through.
My Lords, I am grateful to the noble Lord for answering my question, but it was entirely rhetorical. I meant it in the context that I agree that there should be meetings, but the Government must be able to discuss with noble Lords what happens next. Any suggestion on my part that by having a meeting the Government’s position will change would be wrong. Noble Lords will know that I am very open to any suggestion that might enable us to make progress in a different way, but I have asked my right honourable friends to consider this issue carefully, and they in turn have talked to those with whom they wished to consult in order to make their decision.
If we were to seek a Motion, we would have to be candid in saying that we were doing so simply to extend ping-pong with no hope that we could do anything further. It has been our desire to get this legislation on the statute book, for all the reasons we have discussed, certainly in the time I have been dealing with the Bill and before that, when my noble friends on this side of the House dealt with it.
I will be honest with your Lordships. If they send the Bill back another time, we run the risk that it will fall. Noble Lords do not want to see that happen, and neither do I, but we have no reason to extend the timetable. We are not going to move any further. Noble Lords were right to ask me to take it back to my new colleagues, and I have done that. Noble Lords were right to seek discussions; I know the noble Lord, Lord Ramsbotham, is seeing my noble friend Lord Hunt of Kings Heath tomorrow on another issue, so he will be able to have discussions. But sending the Bill back again would not make anything further happen. I am concerned for the future of the Bill.
I did not know my noble friend Lord Rosser was going to speak, but he outlined well the concerns expressed in many quarters. We must look extremely carefully at the impact this legislation could have on operational issues. I will not repeat what he said, because I thought he said clearly and candidly what those issues might be. He also, supported by my noble friend Lord Lea, was keen that the Government should think carefully about having the talks that need to take place with those involved. I assure my noble friends that we wish to do that, within the context that we have conceded the principle of what we are seeking to do by taking the order-making power.
My noble friends have also indicated—and I think this view is held in your Lordships’ House—that it is important to ensure that we have a full and proper debate on this subject. Although I know there are issues about secondary legislation and the ability to manoeuvre around it, that would none the less provide a further opportunity for debate. I am not trying to suggest that the discussions should not begin quickly, nor that we would seek to do other than involve noble Lords who have shown such great interest in these issues. On that basis I believe we will be able to make progress at a good pace while taking into account the points made by my noble friend Lord Rosser.
At the end of the day, my right honourable friend the Secretary of State for Justice was very clear. He believed that it was right and proper to behave in a responsible manner, and that the way to achieve this was to do what the Government have done: concede the principle, take the order-making power, consider the implications, have the discussions with those who will be directly affected and bring this in at a time when it is right and proper to do so, when we understand more about the implications of what the Bill will do in terms of Crown immunity. He also felt it was important that we talk to those who are concerned about the operational impact the changes might have.
The Government have gone as far as they can. I have done everything I said I would do. I have allowed your Lordships to discuss this with me at all times. To send the Bill back another time would achieve no more than to delay it even further, and I do not think that that is in the best interests of the many people who have waited a long time for this legislation and who are now watching with great interest to see it go on to the statute book. I say that in the spirit of ensuring, as I will, that the dialogues begin and the conversations go on. Contrary to what the noble Lord, Lord Hunt, fears, there will be no question that we will not do what we said we would.
My Lords, once again I am enormously grateful to the Minister for being so forthright and clear. I am very grateful to all those who have spoken and am sorry that time has not allowed a longer debate. I am also very grateful to the noble Lord, Lord Rosser, for putting his case. I am glad that it has been put like that because it allows me to say that nothing is further from the case and that I have fully considered what the impact might be on the Prison Service.
Virtually all the 237 reports, six thematic reviews and five annual reports that I wrote while Chief Inspector of Prisons homed in on some problem of management which was inhibiting the development of the Prison Service. We are not talking about damaging the Prison Service or about every incident being liable to prosecution. We are talking about the occasional gross breach of management which it does no good to the reputation of the Prison Service or anyone else to leave unexamined.
Cautiousness of course is a risk. One reason why I suggested in my letter to the Secretary of State for Justice and discussed with, among others, the noble Lords, Lord Hunt and Lord Lee, having a date as far ahead as 1 January 2009 was to allow precisely the sort of consultation and examination that the noble Lord, Lord Rosser, mentioned. I believe it is terribly important that that should happen. This debate is not about all the preventive measures the noble Lord mentioned; it is about management.
My concern remains, as the noble Lord, Lord Hunt, said so clearly, that “may” is not a doing word; it could be a delaying and a holding word. We still have a duty to make that point as firmly as we can, because this issue affects us all. Therefore, I wish to test the opinion of the House.
Motion A, as amended, agreed to.
House adjourned at 6.08 pm.