My Lords, I regret to inform the House of the death of Lady Michie of Gallanach on 6 May. On behalf of the House, I extend our condolences to her family and friends.

asked Her Majesty’s Government:

What assistance they are providing to home owners seeking renewal of mortgages.

My Lords, the Government have put in place statutory regulation of mortgages to help to ensure responsible lending and they provide support, through the provision of debt advice, for those experiencing problems. The Government are working with the lending industry to see what more the industry could be doing to support borrowers. Sir James Crosby is leading a working group to consider market-led initiatives to strengthen the mortgage funding market, initially reporting in the summer and presenting proposals at Pre-Budget Report.

My Lords, I thank my noble friend for that Answer. Does he accept that much of the problem has been created by the banks themselves, who were overgreedy and falling over themselves to lend? As the Governor of the Bank of England has said, they have now got into a situation where they are refusing to lend even to good borrowers, thus creating more of a problem. While the Bank of England scheme will certainly help to improve liquidity, can my noble friend tell me how many of the banks and other institutions have now applied under the stringent conditions that apply to those loans and how many are likely to receive such loans? Will the figure be anywhere near the £50 billion that has been spoken of?

My Lords, on the general point, the House and the country are aware of the problems of an unfortunate extension of lending in an unwise way in the recent past. We know the consequences of the credit crunch, but the Government have taken action to relieve aspects of that and the Bank of England is making resources worth £50 billion available to the banks. I cannot give my noble friend any details on the extent of the take-up of those moneys yet. As he will appreciate, the issue is one for the Bank of England, which is carrying out the operation and, as yet, the Treasury does not have figures on the rate of the take-up. I think that the House will appreciate that aspects of the credit crunch are easing somewhat.

My Lords, do the Government recognise that, while all Governments have a responsibility to see that their citizens are decently housed, it does no one any good to encourage or facilitate people who simply cannot afford to become home owners to burden themselves with debt by doing so? In this country, 72 per cent of people are already home owners, which is a very healthy percentage. A fall in property prices could be wholly beneficial in the sense that it would bring houses closer to the living price rather than the speculative price which they are at the moment.

My Lords, some correction of the market in which prices fall to a limited extent may have that effect, but it is a proper aspiration of our fellow citizens to take out a mortgage on their own homes. By definition, that is taking out a loan. The important thing is that the ability to repay should be carefully assessed and the banks should not lend unwisely. That is a lesson that the banks have assuredly learnt as a consequence of the past six to nine months of financial affairs.

My Lords, the Chancellor said that one of the effects and benefits of the £50 billion Bank of England facility would be that it would lead to lower borrowing costs for home owners and on mortgages. In his recent discussions with the banks, what representations has the Chancellor made to encourage them to ensure that just that happens?

My Lords, we all recognise that the price of borrowing has increased because of the difficulties concerning the credit crunch, but I am pleased to report that the average effective mortgage rate was 5.72 per cent in March, down from 5.9 per cent in December. Those figures are a very long way from the 1990 crash with regard to mortgages and the level of repossessions that took place because people could not afford to keep up their mortgage repayments. Although there is absolutely no room for complacency and none of us should underestimate the pressures on family budgets at present, effective mortgage rates do not seem to be escalating wildly.

My Lords, bearing in mind that the number of repossessions is likely to rise to about 50,000 a year, or 1,000 families a week, with all the homelessness that goes with that, will the Minister prevail on his colleagues to improve the safety net that helps people through a difficult patch? In 1995, the period after which ISMI, income support for mortgage interest, kicked in was reduced from nine months to just two months. Could that be reconsidered, as the level of repossessions seems likely to rise a good deal further in the months ahead?

My Lords, of course the noble Lord is right to anticipate some increase in the rate of repossessions. That is why the Chancellor met the Council of Mortgage Lenders and others to press on them the necessity of ensuring that, as far as possible, measures are taken to ease the pressures on households, perhaps by delaying interest rate increases over time or by spreading the period over which repayment has to be made. I hear what the noble Lord says about the safety scheme, which is a limited scheme that applies to those who are out of work. All that will be under consideration.

My Lords, last year, the Government injected £25 billion into Northern Rock, more than has been put into any other company or organisation anywhere in the world by a Government, to avoid financial meltdown. Further, the Government have helped by a further £50 billion the whole of the banking community, yet, as we are seeing, the banks are not passing on mortgage cuts to the borrowers. Unless there is something wrong with my maths, the fall from 5.9 per cent to 5.72 per cent means that the average reduction in mortgage rates is about a quarter of a per cent at a time. The banks are not passing on the cuts. What can the Government do to encourage the banks to pass on those benefits?

My Lords, the noble Lord is of course right to say that the Government took salutary action in order to protect the financial system from what could have been catastrophic meltdown, with consequences for everyone. On passing on the advantages derived from the increase in capital made available, let me say that these are still early days. The banks have real problems with some of the debts that they have already incurred, but the Government will continue to press on the banks the necessity of keeping mortgage interest rates as low as possible.

asked Her Majesty’s Government:

Whether Transport for London has adequate continuity of funding to complete the modernisation programme of the London Underground system.

My Lords, the Comprehensive Spending Review 2007 settlement sets out the expected levels of Transport for London grant and borrowing to 2017-18 and makes provision for the continued modernisation of the Underground. It is now for Transport for London to manage its costs and priorities within its overall financial settlement.

My Lords, that is an extremely encouraging response, but given that the new and very able chief executive of London Underground has laid out such a comprehensive plan over these years, will the noble Lord be able to transmit to the new mayor his new enthusiasm and that of the Government for the whole scheme?

My Lords, I am sure that the newly elected mayor will be very well aware of his responsibility for ensuring that the money that we have set aside for the next 10 years is well spent and spent on the continuation of the refurbishment programme. I pay particular tribute to the Transport Commissioner for London, Peter Hendy. He has done a fantastic job, as has Tim O’Toole. They are to be congratulated on ensuring that the refurbishment programme is very much on track.

My Lords, I think that everyone acknowledges—certainly the Select Committee did—the financial disaster of the Metronet experiment with the Tube. Rosie Winterton announced a few weeks ago a working party to try to rectify some of that. To follow on from the supplementary question asked by the noble Viscount, Lord Montgomery, surely now that we have a new Mayor of London we can have a new staff, and I hope that those discussions start straightaway with the new mayor to improve both the safety and the quality of our Tube.

My Lords, this Government have a record and a reputation for working well with directly elected mayors. I am sure that Mayor Boris will fit neatly within that. It is in no one’s interests that we fail on these projects, because obviously we all share as a common objective the safety, security and continued improvement of London Underground and transport generally in London.

My Lords, will the noble Lord reassure us that the Government will not force Transport for London or the mayor down the expensive and complicated PFI route that was behind the collapse of Metronet, that they will cease to force fixed-price contracts on people, and that they will encourage partnership and the target contracts that are used by Docklands Light Railway and the London Overground where the contractors and the people buying enter into a partnership which in the end has delivered on time and on budget and has left a surplus to be shared by the two investors?

My Lords, I hear what the noble Lord has to say on the subject of PFIs, PPPs and so on, but Tube Lines, which is the other major provider of services on the network, has worked extremely well by and large. I think most people would argue that it has delivered satisfactorily and that it demonstrates that PPPs work. I understand that the new mayor is a fan of PPPs, so that will obviously inform his approach. It is perhaps worth recording that last July Tim O’Toole said about Metronet:

“This is more about Metronet’s structure”—

—the failure, that is—

“than it is about the PPP”.

We have to take a longer-term and more balanced view. PPP has delivered some significant improvements to our Underground network.

My Lords, as a member of the All-Party Parliamentary Group on Crossrail, it would intrigue me very much to know whether the financial future of Crossrail is now in place. Hitherto the impression that we have received from the Government is that they give moral exhortation but no money. This is a vital improvement to the London transport system, and I hope that the Government will take it in hand.

My Lords, we made an announcement towards the end of last year. The Prime Minister himself made it very clear that we are not only committed to Crossrail but that we have committed the money for Crossrail. We agreed a package with the London mayor and the City that we will deliver Crossrail. Crossrail is an extremely exciting and important project. I would not want to see anyone get in the way of ensuring that that project works properly.

My Lords, as the new mayor’s only policy statement on transport is to get rid of the bendy bus and to replace it with a new Routemaster at so far unspecified cost, how can the Government ensure that the money allocated to the Tube will stay there and not be moved by the new mayor to a new type of bus?

My Lords, the new mayor’s views on bendy buses are well known. I happen to take a completely different view, but that is as it is. Last week, people voted for Boris Johnson to be the mayor and we have to respect that. No doubt, he will take into account very carefully the views expressed to him by the transport professionals. They have enabled buses in London on every weekday to carry some 6 million passengers on more than 700 routes. The problem with taking away the bendy bus is that you will require two buses to replace the capacity that the bendy bus has in order to deliver on the major arterial routes. There is a very interesting argument to be had, is there not, on that issue? But I am sure that Mayor Boris will swiftly move from being a jester politician to someone who takes these issues more seriously.

My Lords, given the unfortunate collapse of Metronet and the funding required for Crossrail, does there remain sufficient funding to deliver the Tube modernisation programme at the rate originally envisaged for phase 2 of the PPP?

Yes, my Lords, that is the case. The funding is in place. As I said earlier, the settlement is for the 10-year period. The £1.7 billion that we have had to guarantee with regard to Metronet was money that Metronet had borrowed from the banks, which the Government would have had to pay over time in any event. That should not affect the programme for funding the continued improvements of the Tube network or Crossrail. Those refurbishments are very much on time and on budget.

asked Her Majesty’s Government:

What new policies they have towards Zimbabwe.

My Lords, the Zimbabwe crisis must be resolved quickly and in accordance with the will of the Zimbabwean people. We are engaging with leaders in the region and the international community to promote a resolution, including the deployment of sufficient international observers if a second round takes place. We are pressing for a UN mission to investigate state-sponsored violence and intimidation. We are also supporting the call for a temporary arms moratorium until democracy is restored.

My Lords, is not the choice of the observers, and the question whether they serve both before the election and during the election, absolutely vital? Is it not doubtful whether SADC observers only should be recruited? They are likely to be biased in favour of Mugabe, as they have been, and they are briefed by the SADC Secretary-General, who is very strongly in favour of Mugabe. Do we not have a good opportunity, now that we are this month in the chair of the Security Council, to go wider in the appointment of members of the monitoring group? Should we not also think of the African Union as a suitable reservoir of people to act as observers? Lastly, should we not be having a debate on Zimbabwe in the present situation?

My Lords, the noble Lord’s points are very well taken. We want to internationalise the observer pool as much as possible within the constraints of time—one could, after all, face a second round as soon as 21 days from now. There were non-SADC observers in the first round; there were certain observers from the Caribbean. There are also other possibilities to broaden the pool and sharply increase the numbers. As I have also said, we are pressing the UN Secretary-General to send an envoy of some kind to look into both the human rights situation and the intimidation. The previous Secretary-General’s envoy played a critical role in stopping the violence around slum clearances.

My Lords, does my noble friend recognise the concern about South Africa’s silence on this question? Does he agree that the statements made in London last week by Mr Zuma, the newly elected ANC chairman, and the action of the stevedores and COSATU members in Durban, who, in solidarity with Morgan Tsvangirai, would not unload the small arms shipment, so that the ship had to go back to China, are very encouraging new voices in the southern Africa scene?

My Lords, I certainly would agree. There has been a lively debate in South Africa, less about the need for change in Zimbabwe and more about the means to achieve it, with voices more openly calling for more robust action. That is widely to be welcomed.

My Lords, no doubt the Minister will have noticed that the African Union currently has a mission in Harare reviewing the whole electoral process, and he will have seen the comment by Dumisani Muleya in this morning’s Business Day that the regime has neither the money nor the logistical capacity to run a second round. In these circumstances, does not the international community have some leverage to provide not only the management of the second round, if it takes place, but the protection needed in the form of security for the members of the opposition who have been subject to repeated violence so far?

My Lords, this is a critical moment where it appears that the regime is indeed considering its options and whether it can either afford a second round or win a second round. When we talk about observers, it is clear that it is not enough to protect just the sanctity of the ballot; human lives must be protected as well. I should add that those who seem most at risk are the ordinary party members and election observers. Therefore, there will need to be peace in the country at large. This is not an issue of supporting just a handful of the leaders; we must try to secure peaceful conditions across the country. The noble Lord is right to say that an African Union mission is in Zimbabwe, led by the new head of the AU, Jean Ping, who is looking at the election situation. I think that the AU will play a critical role between SADC at one end and the UN at the other.

My Lords, what is the position on the arms shipment from China? Is there any truth in the claims being made by ZANU-PF that the arms have actually entered the country? If that is so, it is deeply important in the context of what the noble Lord has been saying. I know that the trade federation workers in Angola said that nothing had been landed and I am sure they meant it; they are very reliable. But it would be helpful to know the Government’s view on this. Have those arms entered Zimbabwe? They would only make the situation far more dangerous.

My Lords, the noble Baroness is right to be concerned. We have absolutely no evidence to suggest that the arms have entered the country. We believe that the boat is being refuelled and will return from Luanda to China, based on assurances given to us by the different Governments involved.

My Lords, does my noble friend agree that in the present situation it would be quite wrong to return Zimbabwean asylum seekers to that country? Will he confirm that none is being sent back? Moreover, in the mean time, would it not be humane to allow them to work while they are here?

My Lords, the noble Lord is right. Several cases are currently going through an appeals process, but it has always been the case that the British Government would not want to return people to a country where conditions like this prevail.

My Lords, will the Minister join me in recognising that in the present crisis, the leaders of the churches in Zimbabwe have come together in a quite new way to express a moral lead and a spiritual voice on behalf of the Zimbabwean people? When riot police begin to break up prayer meetings of the Mothers’ Union, you realise that a dictatorship has discovered where real power actually lies. As well as the solidarity and prayer so notably led by the most reverend Primate the Archbishop of York, I wonder whether there are other ways in which the international community could enhance the resolution of the leadership of the churches in Zimbabwe in the present crisis.

My Lords, the right reverend Prelate might be able to suggest ways in which that could be done. We all applaud the stand of the churches in Zimbabwe, as we do its civil society more broadly. If this situation is resolved, it will be because the churches, civil society and ordinary Zimbabweans have acted with tremendous courage, as have the rest of the southern African civil society and religious community.

My Lords, following my noble friend’s comments on SADC observers, is it British policy to back as strongly as possible the diplomatic efforts of the more positive SADC countries?

My Lords, what has got lost in this is that a growing group of SADC countries is playing a real leadership role. The leaders of Tanzania, Botswana, Zambia and other countries are all pressing for a resolution of the situation in the same direction as I think the House would wish to see.

asked Her Majesty’s Government:

Whether they plan to place cohabiting and dependent close family members on an equal footing with married couples and civil partners in relation to inheritance tax.

My Lords, the Government have no plans to alter the inheritance tax rules for cohabiting and dependent close family members. The inheritance tax spouse relief is long-standing and reflects the formal legal obligations that marriage and civil partnership relationships necessarily entail.

My Lords, I thank the Minister for his Answer. Does he recall that the unfairness of giving inheritance tax breaks only to those in a sexual relationship, regardless of need, was recognised by Jacqui Smith, then the relevant Minister in the other House, who said that this issue needed to be addressed at the appropriate time? Will the Minister now consider doing justice to elderly sisters who live together and to children who care for elderly parents in the same house by allowing, through legislation, for the inheritance tax to be deferred until the death of the second resident, thereby doing justice and probably saving the state a great deal of money?

My Lords, this issue has been the subject of intensive debate as the two sisters Burden took their case to the European Court of Human Rights for adjudication. The adjudication was in favour of the Government. That is against a background where the line has to be drawn somewhere and, at the present time, a clear line is drawn in terms of spouses, either of marriage or of civil partnerships. The noble Baroness is inviting the Government to extend that line and consider other cases. Wherever the line is drawn there will be difficulties, and there would be costs to the Exchequer if the exemptions were extended. It should be recognised that only 4 per cent of estates in Britain pay inheritance tax.

My Lords, will my noble friend develop the proposal suggested by the noble Baroness, Lady Deech, and publicise it? It is not to exempt elderly sisters, middle-aged women looking after elderly parents and cohabiting couples but to ensure that the death duties payable on the first death are rolled over so that they are not necessarily paid until the second death, thus allowing the elderly sister, for example, to remain in the home until her death?

My Lords, I recognise the constructive position which my noble friend has adopted on this matter. The Inland Revenue is not in the business of dispossessing people of their homes. That has not yet happened because the two sisters are, happily, alive and well. When such a case occurs, the Inland Revenue takes due care to ensure that the payments are staggered over a period in order that someone should not be dispossessed of the home they may have lived in for a long time. The present practice encompasses exactly the position identified by my noble friend, but that is different from changing the law on inheritance.

My Lords, does the Minister accept that while the current situation may be clear, it is also seen by many people to be extremely mean-spirited? Could the Government make an assessment of the costs of making the changes suggested by the noble Baroness, Lady Deech? I suspect that, in the overall context of government and tax expenditure, they would be very modest.

My Lords, they certainly would not be huge. As I have indicated, inheritance tax is not paid by 96 per cent of estates at present, so we are not talking about a massive loss to the Revenue—I freely admit that. We are, however, dealing with where the legal position should be drawn. I wanted to indicate to the noble Lord, in reply to my noble friend, that HMRC works sympathetically in cases such as the one that has been identified by the two sisters. No one is contemplating one of them losing her place in the home if the other dies. That will not happen.

My Lords, when the noble Lord leaves the Chamber, will he reconsider his rather lugubrious negativism on this issue? As the civil partnerships arrangements show, society moves on and so do Governments. Recognition of different ways of living and different circumstances are taken into account. Although we are talking about a small number of people, there is a genuine issue of hardship here. The issue raised by the two noble Baronesses about the benefit to society of the sort of change envisaged by the noble Baroness, Lady Deech, ought also to be taken into account. Perhaps he could think again.

My Lords, I am grateful to the noble Lord for the invitation to think positively. He will appreciate that although society might move on, the law moves on only when the Government overcome forthright opposition to changes in this area. It is not as if the issue of civil partnerships has not been contested in the past by others in the House.

It is clear what the categories are under the present law with regard to inheritance, but it becomes much more difficult the moment we move from that situation to additional categories. We could easily say that two sisters living together could easily be defined as being within the law, but it is not difficult to see how other very difficult cases could arise on the other side of any line that we draw. The significance of the line that exists at present is that it is based on the law of the mutual relationship of spouses and cohabiting partners and their legal obligations to each other.

My Lords, does the Minister—

My Lords, we are out of time.

My Lords, with the leave of the House, my noble friend Lord West of Spithead will repeat a Statement entitled “Cannabis” after consideration of the Commons amendments and reasons on the Criminal Justice and Immigration Bill.

My Lords, I beg to move that the Commons amendments be now considered.

Moved accordingly, and, on Question, Motion agreed to.

commons amendments AND REASONS

[The page and line references are to Bill 16 as first printed for the Lords.]

Motion A

My Lords, I beg to move that the House do not insist on its Amendments Nos. 9, 301 and 327, to which the Commons have disagreed, and do agree to Amendments Nos. 9A, 301A and 327A proposed by the Commons to the words restored to the Bill.

The other place has voted by a majority of 282 to 216 to reject your Lordships’ amendments to remove Clause 10 of the Bill, but in a spirit of compromise the other place has agreed an amendment that would enable the abolition of suspended sentences for summary-only offences itself to be suspended and, if appropriate, reactivated. Such a suspension or reactivation would be given effect by an order subject to the affirmative resolution procedure.

When this House last debated this provision, on Report, noble Lords on the Benches opposite and on the Cross Benches seemed to believe that Clause 10 would have the opposite effect to that anticipated by Her Majesty’s Government. This is not the occasion to set out again our case in full. I say briefly that it is our firm contention that the evidence since the introduction of suspended sentence orders in April 2005 points clearly to their being used in the case of relatively low-level offences not as an alternative to custody but as an alternative to community sentences.

In the other place yesterday, the honourable David Howarth, the Liberal Democrat spokesman, made an interesting and well argued speech on this issue. He pointed out that the increase in the use of suspended sentence orders was even bigger for each-way and indictable offences, both in magistrates’ courts and the Crown Court, than for summary offences. Those indictable, each-way suspended sentence orders were available before 5 April 2005, when Section 189 of the Criminal Justice Act 2003 came into force, but the post-2003 Act suspended sentence order is different from the pre-2003 order. For a start, such an order can be awarded even if no exceptional circumstances exist. Moreover, a supervisory community element can be included in it. It can be for an offence that would not demand up to 12 months’ imprisonment.

The honourable Member of Parliament demonstrated that there is a real problem both for indictable, each-way offences and for summary-only offences. Our Bill deals not with the whole problem—let me be frank about that—but only with the summary offences part of it. The figures show clearly that the prison population is not falling commensurately with the huge increase in suspended sentence orders. The only explanation can be that courts, both Crown and magistrates’, are imposing suspended sentence orders, which must mean that the prison tariff has been reached, whereas previously they would have awarded community sentences and, in some cases, even fines.

Perhaps I may deal with the figures. For summary-only offences, between 2004 and 2006, the number of suspended sentence orders went up from 700 to 12,700 and, between 2005 and 2006, they went up from 4,100 to the same figure of 12,700. In percentage terms, the increase in the immediate custodial rate for summary-only offences was marginally down, from 2.1 per cent to 1.9 per cent between 2004 and 2006 and from 2 per cent to 1.9 per cent between 2005 and 2006. But the rate of suspended sentence orders went up from 0.1 per cent to 1.1 per cent between 2004 and 2006 and from 0.3 per cent to 1.1 per cent between 2005 and 2006. Those figures tell a clear story.

Let us look at two summary offences. With the offence of common assault—the summary offence only—in 2004, 1 per cent of defendants were given a suspended sentence. In 2006, 8 per cent were given such a sentence. Between those years, the numbers of those who got community sentences and those who went to prison remained stable. Fines fell by 5 per cent and conditional discharges fell by 5 per cent.

Let us look at those same years and the offence of drinking and driving. In 2004, less than 1 per cent of defendants got a suspended sentence while, by 2006, 3 per cent had suspended sentences. Numbers serving community service between those two years for that offence had fallen by 4 per cent; custody had also fallen, but by 1 per cent only. Fines and conditional discharges both remained stable. That would suggest that with summary offences there has been an enormous increase in suspended sentences but a very marginal decrease in those sentenced to immediate custody.

My Lords, is the Minister telling the House that the Government dismissed this explanation for what he describes—namely, that courts, given this additional power, consider that to use it would better meet the justice of each individual case?

My Lords, I shall come on to the tariff in due course. Mr Howarth, whom I have quoted, also talked in his speech about this point. I fear that what happens is that, because a suspended sentence order is available for those who have committed summary offences, that is seen as being an option to take rather than the imposition of a community sentence on the defendant. The problem that then arises is that there is a breach of a suspended sentence and, almost as night follows day, the defendant is brought back and receives what it was promised that he would receive if he committed another offence—an immediate period of imprisonment. I am sure that all courts are doing absolutely their best in the context, within the rules that are set for them, to pass the appropriate sentence in each case, but I fear that sometimes suspended sentence orders are given when the tariff for imprisonment has not been reached.

I shall just make the point again that it is true that there is increased use of suspended sentence orders by magistrates dealing with triable either-way offences; the same applies to the Crown Court. In all cases, some of them must have been drawn from community orders. As I say, drops in immediate custody are not commensurate. In the Crown Court, with indictable offences between 2005 and 2006, suspended sentence orders have increased by 10 percentage points. Immediate custody has fallen by 3 percentage points.

My Lords, can the Minister explain why we are dealing with magistrates’ courts alone if there has been such an increase in the Crown Court? One point made by Mr Howarth, to whom the Minister referred, was that there is an imbalance, which should be dealt with comprehensively rather than simply in relation to the magistrates’ courts, as the Government propose in this case.

My Lords, I shall deal with the imbalance in a moment and suggest that it is not quite as much an imbalance as the honourable Member thought. I have already said that to deal with this whole problem we would have to deal with each-way and indictable offences, too. This Bill deals only with summary offences, which are the real problem—or the greater part of the problem—in this case.

In the Crown Court, with indictable offences between 2005 and 2006, suspended sentence orders have increased by 10 per cent. Immediate custody has fallen by 3 per cent. This compares to what happens with summary offences in the magistrates’ courts. For summary offences in the magistrates’ courts alone, there is a slight drop in the immediate custody rate, from 2.2 per cent to 1.9 per cent. However, the rate, as I have mentioned, shows a much greater increase, from 0.3 per cent to 1.1 per cent. Although the phenomenon of suspended sentence orders being drawn from the former community sentence population is not just confined to summary offences, we believe that the situation relating to summary-only offences is more concerning.

Why do I say that? First, these summary-only offences are the least serious offences in our criminal law. We should be attempting most strongly to mitigate the concern about what is rather unattractively called up-tariffing. Secondly, the ratio of increase is greater with summary-only offences. Immediate custody has dropped by about 0.1 per cent. The rise in suspended sentence orders is around six times greater than that fall in immediate custody. For indictable offences in the Crown Court, the drop in immediate custody is 3 per cent, while the rise in suspended sentence orders is 10 per cent—about four times greater. I have given the figures. Although I am conscious of having poured figures on the House this afternoon, this is an important issue in terms of figures and numbers if we are deciding the right thing to do.

The counter-argument is that strict operation of the sentencing guidelines and the custodial threshold precludes magistrates from operating in this way and that the inevitable effect of this clause will be the precise opposite of what the Government contend; namely, there will be an increase—not a decrease—in custody rates.

I could not fault that logic if the operation of the custody threshold was an exact science. The truth of the matter is, as all noble Lords know, that it is not. There is necessarily an element of judgment. That inevitably leads, as the Lord Chief Justice put it, to a borderline area where the decision might go either way. As we have repeatedly made clear, our contention, based on the available evidence, is that, in the absence of a power to pass a suspended sentence, magistrates would, when dealing with these borderline cases, by and large opt for a community sentence rather than immediate custody. I pray in aid of our case Paul Cavadino, the chief executive of Nacro, who said:

“Restricting suspended sentences to more serious offences should help to avoid the ‘boomerang’ effect of these sentences which is boosting the prison population. This happens when courts pass suspended prison sentences on offenders who would not otherwise have been jailed and then activate them on top of a new penalty if the offender returns to court”.

I have had the benefit of listening to the debates in this House, both in Committee and on Report; I have also had the benefit of reading what was said in another place yesterday. We are ready to concede that we cannot be 100 per cent certain of the impact of Clause 10. We believe that it will increase the prison population, but we may be wrong. The noble Lord, Lord Elystan-Morgan, put it this way on Report:

“The Government might be wrong on this matter”.—[Official Report, 2/4/08; col. 1090.]

As I have said, we stand by the view that the provision will lead to more community sentences being passed and not to an increased use of custody. If we are wrong, the amendment passed by the other place yesterday deals with that possibility. If the clause does not have the effect that we believe it will, the amendment enables us, with the agreement of both Houses, to suspend the operation of the clause. Such a suspension would restore the option of a suspended sentence order for a summary-only offence and allow a breathing space to re-examine the impact of the clause.

The Government are not saying that they are necessarily 100 per cent right here. We think that we are, the figures suggest that we are and our experts tell us that we are right, but we may not be. The compromise that we are offering this afternoon is the possibility to revoke the change in the law by order with no need for primary legislation. I am advised that it should be possible to tell whether any untoward trend is taking place within 18 months of commencement. Given that the elected House has shown its views on this matter on two occasions, I very much hope that this House will agree that the compromise that the Government are putting forward is both sensible and proportionate.

Moved, That the House do not insist on its Amendments Nos. 9, 301 and 327, to which the Commons have disagreed, and do agree to Amendments Nos. 9A, 301A and 327A proposed by the Commons to the words restored to the Bill.—(Lord Bach.)

rose to move Motion A1, as an amendment to Motion A, to leave out from “House” to end and insert “do insist on its Amendments Nos. 9, 301 and 327.”

The noble Lord said: My Lords, Clause 10 amends Section 189 of the Criminal Justice Act 2003. It removes the recently granted power to magistrates to make suspended sentence orders in summary cases. As many of your Lordships will be aware, this matter was debated at length both in Committee and on Report and I have no intention whatever of rehearsing in any detail the arguments that were advanced. For those of you who were present at those debates it would be an irritant because you are already extremely well versed. Those of you who were not there might be a little better informed at the end of what I would have to say but, to adapt the famous words of Mr F E Smith, I am almost certain that you would be none the wiser. Suffice it to say that at the end of Report the Government were defeated by a majority which I think I can fairly describe as very substantial.

Why do the Government want to do this? This power was introduced in the 2003 Act. Its implementation was delayed to right until the end of 2005. It was allowed then—

My Lords, I am sorry to interrupt but the date on which this became active was 4 April 2005.

My Lords, I am most grateful to the Minister for giving me the formal date but I am reliably informed that the practice was not in operation until the end of 2005; otherwise, why would the Minister place such emphasis on the comparative statistics between 2005 and 2006? The comparative statistics that he advanced would be absolutely valueless if the suspended sentence power was fully in operation between April 2005 and December 2005.

Having had one year of operation—2006—the Government then introduced their Criminal Justice and Immigration Bill now before your Lordships' House in 2007, revoking the provision in the 2003 Act. We all know that much of the content of the Criminal Justice Act 2003 has either not been implemented or already been revoked; so in a sense what the Government are doing here is very much in the tradition of what they have done with a whole range of provisions under the Criminal Justice Act 2003.

But our main concern about this proposal is that in our view the Government’s position is entirely irrational. A suspended sentence can be used only if the custodial threshold has been reached and the magistrate in question has concluded that imprisonment is the correct sentence. It is only at that point that he is entitled to consider whether, in the particular circumstances of the prisoner concerned, the conditions are present whereby a suspended sentence is appropriate. In other circumstances, a magistrate is prohibited from doing so by the appropriate guidelines.

My Lords, these proposals represent incoherence and dither on the part of the Government. In 2003, they brought into place legislation that extended suspended sentences to include the possibility of the provision of conditions similar to a community order. That received considerable support from all parties. That was not brought into being, we are told, until April 2005; although the noble Lord, Lord Kingsland, thinks that it started later, towards the end of 2005. After barely a year in practice, the Government then introduced this Bill to remove from the magistrates the power to suspend sentences. Whoops, they made a mistake; whoops, the number has gone up and as the Bill goes through Parliament—whoops, they might be wrong again, so they are now proposing to have the power to revoke this provision. That is not the way that legislation should be dealt with. So much of the Bill has been concerned with piecemeal alterations to the law without any real coherent approach. That is what we on these Benches have said from the very beginning.

I made the point—my honourable friend Mr David Howarth in the other place made it far better than I could—that it deals only with suspended sentences in magistrates’ courts. We are told that they have gone up 8 per cent in magistrates’ courts and 10 per cent in the Crown Court. Nothing is said about the power of suspension in the Crown Court. In other words, to use phrase of the noble and learned Baroness, Lady Scotland, there is no “holistic” approach to this issue of suspended sentences. That is unacceptable and we support the Motion of the noble Lord, Lord Kingsland.

My Lords, with respect, I do not regard the Government’s situation in such ungenerous terms as the noble Lords, Lord Thomas of Gresford and Lord Kingsland. It would be churlish of me not to accept that the Government have come quite some distance in their attempt to cure what may well have been an indiscretion on their part in the first instance. I said “indiscretion” because, for all the evidence that exists—empirical and anecdotal—in this context, it is extremely difficult to say exactly what the consequence of a change of policy and rules on suspended sentences would be. Even if the Government are exactly right in their analysis of what has gone wrong, they will never be able to say with any certitude or confidence exactly what the consequences of Clause 10 will be.

There has been a problem for a long time, which is, in many respects, an understandable jurisprudential problem in relation to the suspension of a sentence. In the Criminal Justice Act 1967, which brought in the concept of a suspended sentence, there was no spelling out of exactly how the sentencer—whether a judge, magistrates or a stipendiary magistrate—should approach that problem. The Act did not speak of any threshold of imprisonment or anything like that; the matter was left entirely to the discretion of the court.

By and large, sentences were looked on in this way: “We have sentenced this person to imprisonment because we are satisfied in all the circumstances that that is the proper sentence. Ten seconds later we constitute a parole board and ask, what do we do with this person who is already incarcerated? In his or her circumstances we do not think it is necessary that the sentence should be served”. That was, to an extent, understandable, although it involved an element of mental gymnastics, but there was nothing improper or illogical in that approach. But there was a much more complicated situation when, some time later, in the 1980s, if I remember rightly, a custody threshold was introduced to determine whether the circumstances of the offence, and one other offence taken with it, brought that case across the line. Then, after considering all other circumstances, it was determined whether the sentence should be moved back to the other side of that line. It was no longer a concept of a parole board, but the concept of the court itself having to say, “The threshold has been crossed and, according to all general considerations, this case should remain a custodial matter—but, nevertheless, the person should not go to prison”. That is the difficulty.

I appreciate that the Government have not approached the stool of penitence and said, “We have sinned and we undertake never to do so again”. Governments do not do that and they would not last very long if they did that in any country. But I accept that the Government have thought deeply and sincerely about the problem and I am very grateful to the noble Lord, Lord Bach, for the thoughtful and careful way in which he put his case.

It seems to me that the case against the Government’s line is this: their intentions are good; the intentions of seeking to reduce the prison population are honourable and practical; but there is no way at all of guaranteeing that their proposals will have the desired result. They may easily have the equally opposite result. That is what happened in 1967 when suspended sentences took the place of fines. The evidence seems to be that that is what has happened in the past two or three years. There is now no guarantee at all that magistrates, confronted with this situation, will not act in a way in which the Government would not wish them to act and did not foresee that they would act. In other words, there is no guarantee that they would not say, “Very well. We’ll send the person immediately to prison”. That can easily happen.

Perhaps I may suggest with very great respect—and, I hope, without any impression of impudence—that there is a much better course that the Government can take. The ideal course would have been never to have passed Clause 10 at all, but an equally meritorious course would be to ignore it for a short period. Section 201, which concerns timing, is divided into a number of subsections and brings different parts of the Act into force at different dates and according to different formulae. Subsection (6) deals with all the matters that have not been dealt with in the five previous subsections, and Clause 10 does not fall into any of them. Subsection (6) states that the Secretary of State shall bring into force on any day that he wishes such parts of the Act as are not specified in the other subsections. That being so, this matter could be left for quite a period of time so that the experiment takes place the other way round. I am not saying that there should now be justification for deleting, by order, the operation of Clause 10 but that the onus should be on changing the law as and when there is clear evidence that it should be changed. I urge the Government to consider that, as it seems to be a perfectly practical and honourable way of dealing with this problem.

There may be one crumb of comfort to be derived from the way that the Government have approached this question. They envisaged that the matter should be dealt with by subordinate legislation rather than primary legislation; in other words, perhaps they do not anticipate bringing about yet another criminal justice Bill for the next year or two. I believe we all deserve a respite: judges, counsel and solicitors deserve a respite and—God bless them—even criminals deserve a respite.

My Lords, the noble Lord, Lord Elystan-Morgan, has produced the most marvellous comment on the Bill. He said that he wishes that Clause 10 had not been put in the Bill. He half agrees with the Government’s amendment but says that Clause 10 should not be brought in anyway because the Secretary of State has the power to do so later. If he does bring it in, he then has the power to take it away again afterwards. With respect, that is a dotty way to produce legislation. It is not dithering; it is ducking, diving, weaving, wobbling all over the place and playing a bending-pole race. That is not how legislation should be handled.

I wish to say one other thing en passant. The Government say that the number of people being given suspended sentences is very much higher than it was before. I understood from the noble Lord, Lord Bach, that the Government’s contention was that magistrates are being a bit iffy over the threshold. Let us assume for the sake of argument that they get 50 per cent of the thresholds right and not, as could be assumed, 100 per cent. That would still produce an enormous increase in the number of people being sent to prison if the ability to give suspended sentences was taken away. We have far too many people in prison. It must be more sensible for there to be a power to give suspended sentences and for the magistrates to do it. It seems to me a very weak excuse to say that magistrates have not taken any notice of the threshold test. I think that we must assume at the very least that they have at least 50 per cent of the thresholds right and, if that is the case, there will be an enormous increase in the number of people going to prison for relatively small offences. That cannot be the right thing to do.

My Lords, the noble Earl has been somewhat unjust to the noble Lord, Lord Elystan-Morgan. I do not think that his proposal, although extremely complicated, was dotty. Either we should have Clause 10 or we should not; there are arguments in favour of each option. I prefer to keep the existing situation, which is not to have Clause 10, and to give much tougher guidance to the magistrates and see how that works. With respect, I do not believe that the amendment from the other place will be of the slightest use. They are just words that are not intended to be used but are there to placate the House, which they will not do as there are Members of this House who do not like the measure. I do not see how it will work as I cannot understand how the Government of the day will ever think that it is appropriate to bring the Section 189 power to suspend into effect.

The Minister carefully and helpfully explained the purpose of what he wishes us to do today, but I could not entirely follow—I hope it is not my foolishness—how it was expected to work on the ground under Amendment No. 9A. I ask that we do not accept this amendment.

My Lords, I hope the House will forgive another lawyer from the Cross Benches having his say. I agree very much with what my noble friend Lord Elystan-Morgan said, but I am not sure that I agree with his conclusion, as I am not sure that I understood what it was.

Noble Lords on the Government Front Bench will know that I have supported them in their proper attempts to reduce the pressure on prison places brought about by the Criminal Justice Act 2003. For example, in the case of indeterminate sentences I did not think that the Government went far enough. It would have been better to raise the threshold for indeterminate sentences from two years to three or perhaps four years. I did not persuade the Government of that, and I certainly did not persuade the Conservative Party, which was in favour of quite the opposite course of reducing two years—back to where it is currently.

Clause 10 is another clause that is aimed in the same direction—to reduce the pressure on prison places. Therefore, I strongly support the objective. The noble Lord has produced some figures which, on the face of it, are persuasive, but they do not persuade me sufficiently strongly that we should in the mean time deprive magistrates of a sentence that they obviously find of the greatest utility in dealing with the cases before them. Although the Government may be right on this, based on their figures, I would prefer to back the opposite horse and will vote for the amendment of the noble Lord, Lord Kingsland.

My Lords, I wish to take a moment to say that I did not find the solution of the noble Lord, Lord Elystan-Morgan, in any way complicated. All he is saying is: if Clause 10 is left in the Bill it need not be activated until some time much later. Therefore, we could have more evidence than has been produced in the short period in which the 2003 Act has been operating. That seems to be perfectly simple and what I understood the noble Lord to say. It is certainly an option.

My Lords, it is an option, and I am grateful to all noble Lords who have spoken. But if it is an option, Clause 10 must stay in the Bill. I understand that the attempt is to take Clause 10 out.

My Lords, I apologise for the convoluted way in which I put the argument. The point that I am seeking to make is that different parts of the Bill will come into force on different dates. The Secretary of State can delay certain parts of the Bill that are not specifically referred to in Clause 201(1) to (5) for as long as he or she likes. They could be kept in the fridge for some years. That was the point that I was making.

My Lords, does the noble Lord agree that that is the problem with the 2003 Act? Great parts of it have not been brought in to effect and many of them have been abolished.

My Lords, that is a proper political point to make but I do not think that it affects the argument in any way. This part of the Bill need not be brought into active force for many years. During that period, a close study could be made of what other avenues are explored—for example, stern evidence and advice being given to the Magistrates’ Association on the exact way in which magistrates should approach the problem of suspended sentences, if the problem is the same as the Government see it to be.

My Lords, I am grateful to the noble Lord, but I would like to consider further what he has said. However, if the opposition amendment is successful, Clause 10 will be removed from the Bill; that is it, it is not there. There is no chance of any Secretary of State bringing it in, because it will not exist. That is why I ask the House not to vote for the amendment of the noble Lord, Lord Kingsland, but to vote to keep Clause 10 in the Bill.

I am certainly not going to be long now in addressing the House, which was very patient earlier. We are suggesting, if our amendment is passed, that Clause 10 stays in the Bill and we have the option of revoking it at some stage if both Houses agree. An alternative course would be to do as the noble Lord, Lord Elystan-Morgan, says, which is an attractive proposition but I have not had the opportunity to take advice or consult about it.

The bottom line is that if we agree to the Motion of the noble Lord, Lord Kingsland, Clause 10 is out, and then the type of option proposed by the noble Lord, Lord Elystan-Morgan, is a non-starter. That would be very unfortunate. For that reason, I invite noble Lords not to vote for the Motion of the noble Lord, Lord Kingsland, but to vote for ours instead.

My Lords, I am grateful to all noble Lords who have spoken in this relatively crisp debate this afternoon. The noble Lord, Lord Elystan-Morgan, made an alternative suggestion to that advanced in the amendment which has arrived from another place—relating to the commencement clause, Clause 201. That clause is not before your Lordships’ House this afternoon; the noble Lord first made his suggestion 10 minutes ago.

I do not understand the Minister’s logic that, if your Lordships voted for the Motion this afternoon, it would kill any opportunity for the Government to look at Clause 201. The effect of your Lordships successfully supporting my Motion would be that that clause would go back to another place, which could then reconsider its position and send it back to your Lordships’ House at a later stage. In any case, it is quite plain that just to advance an amendment on the basis of Clause 201(6), giving the Secretary of State an unfettered discretion to decide when to implement Clause 10, would be wholly unsatisfactory to the Opposition and, I suspect, the Liberal Benches as well.

If such a clause were to be anything like a runner, it would need the most careful consideration, including a number of provisions which ensured that—

My Lords, as I understand it, Clause 201 is already part of the Bill. There is no proposal to amend it in any way at all. The power to delay or use the deep-freeze policy towards any part of the Bill not dealt with in subsections (1) to (5) of Clause 201 is already there.

My Lords, that is so; but I did not understand the noble Lord, Lord Elystan-Morgan, to be suggesting that Clause 201(6) without any amendment could conceivably be an answer to the criticisms that have been made from these Benches and by other noble Lords about the Government’s position. Simply to hand over complete discretion to the Secretary of State to decide when to introduce Clause 10 would be totally—if I may respectfully say so—against the grain of almost all speeches I have heard not only this afternoon in your Lordships' House but throughout the consideration of the Bill.

I set out, on behalf of the Opposition, our position at an earlier stage when I moved the amendment. I do not think I need to add anything further. I wish to test the opinion of the House.

My Lords, I beg to move that this House do agree with the Commons in their Amendment No. 28A, consequential on Lords Amendment No. 28. At Third Reading, the Government accepted Lords Amendments Nos. 24 and 28, which remove the power to amend the period of time certain offenders will spend in custody under the new recall provisions before being automatically re-released and the number of days an offender spends in custody not serving a fixed-term recall before the Secretary of State must refer his case to the Parole Board. The other place has agreed to a consequential amendment to these amendments. On that basis, I invite the House to agree to the Motion.

Moved, That this House do agree with the Commons in their Amendment No. 28A, consequential on Lords Amendment No. 28.—(Lord Bach.)

My Lords, this amendment, which the Government have brought back to your Lordships’ House, is a consequence of an undertaking that they gave at Third Reading in your Lordships' House. The Government have met that in full and we are, correspondingly, extremely grateful.

On Question, Motion agreed to.

Motion C

My Lords, I beg to move that this House do not insist on its Amendment No. 86, to which the Commons have disagreed, and do agree with the Commons in their Amendment No. 86A in lieu.

As noble Lords will recall, at Report stage the House made a number of amendments to what was originally Clause 105, which relates to the powers of the Crown Prosecution Service designated case workers. The amendments did essentially three things. First, they provided for designated case workers to be subject to statutory regulation under the Legal Services Act. Secondly, they excluded imprisonable summary offences from the trials remit of designated case workers. Lastly, the amendments limited the type of preventive civil orders in respect of which designated case workers could conduct proceedings.

The Government have reflected carefully on the debates in this House and the arguments that were advanced. The government amendments before the House today accept the spirit of the amendments passed on Report, but acknowledge the practical difficulties of providing for statutory regulation of designated case workers in the short term.

On regulation, the amendment provides for a transitional period of three years during which the Crown Prosecution Service would aim to ensure that all its designated case workers become members of ILEX. Once the relevant provisions of the Legal Services Act 2007 come into force, we expect ILEX to seek registration with the Legal Services Board as an approved regulator. It must be stressed that the present regulatory accreditation of ILEX would not allow them to regulate designated case workers. As a result, from 1 May 2011, all designated case workers will operate within the statutory framework provided by the Legal Services Act 2007. Consequently, the amendments provide that from that date their exemption from regulation under the Act would cease to apply.

rose to move Motion C1, as an amendment to Motion C, at end insert “but do propose Amendments Nos. 86B and 86C to Commons Amendment No. 86A.

The noble Lord said: My Lords, as the noble Baroness has indicated, there are two issues involved in Motion C. The first one concerns the class of case in which unqualified employees of the CPS can engage in magistrates’ courts proceedings, and the second concerns the legal framework within which they operate when they are litigating in magistrates’ courts.

On the first issue, our view has consistently been that it would be inappropriate for what, in the jargon, are termed DCWs to be engaged in contested cases in magistrates’ courts which are capable of terminating in sentences of imprisonment. We wanted that guarantee to be on the face of the Bill so that, if there was any subsequent change, it could be effected only by primary legislation. As the noble and learned Baroness has again informed your Lordships today, the Government felt that our position was too inflexible.

The second issue was what legal disciplinary framework should be appropriate for DCWs. In that regard, we are satisfied with the solution that the Government are proposing today. I entirely understand the difficulties that the CPS would have in producing a cadre of DCWs who would immediately be capable of falling within the framework of the existing Legal Services Act. The noble and learned Baroness is proposing that there should be a delay of three years before the appropriate framework is put into effect, and May 2011 is the suggested date. For our part, we are content with that. Our understanding is that any DCW appearing in a magistrates’ court will, by then, be fully subject to the approved regulator stipulated by the Legal Services Act, just as any other legally qualified person would be when operating either in the context of giving legal advice or appearing in court.

The single issue between us is whether the limitation on engaging only in non-imprisonable offences should be on the face of the Bill, or whether it should be dealt with by a more flexible procedure in the shape of an affirmative order. The noble and learned Baroness has helped us—and, I trust, your Lordships’ House—by giving an undertaking that the affirmative order would be presented to your Lordships’ House only once the framework of the Legal Services Act, as it would apply to the DCWs from May 2011, was fully in place. That undertaking lifts the majority of our concerns about the dangers implied in non-qualified individuals appearing.

I cast no aspersions whatever on the individuals concerned, but the Government were extremely tough in the course of the passage of the Legal Services Act 2007. At the outset of the deliberations on this Bill, we were somewhat astonished to find that DCWs were not to be subject to it. I therefore hope that the noble and learned Baroness understands where the Official Opposition, and indeed the Liberal Democrats, have been coming from in the course of the Committee and Report proceedings.

Nevertheless, the noble and learned Baroness has given a clear and unequivocal statement today that no affirmative order will be brought before your Lordships’ House until this category of DCWs is fully subject to the provisions of the Legal Services Act 2007. In those circumstances, I am content to accept that statement rather than pursuing my Motion—which, nevertheless, at this stage I beg to move.

Moved, as an amendment to Motion C, at end insert “but do propose Amendments Nos. 86B and 86C to Commons Amendment No. 86A”.—(Lord Kingsland.)

My Lords, the original Question was that Motion C be agreed to, since when Motion C1 has been moved as an amendment thereto. The Question now is that Motion C1, as an amendment to Motion C, be agreed to.

I have argued throughout Second Reading, Committee and Report that designated caseworkers should be subject to proper regulation by ILEX. I have always been a supporter of ILEX, which has an important role to play within the legal profession. If it is regulating designated caseworkers, I am content. I understand the practical difficulties which the noble and learned Baroness the Attorney-General has identified with bringing a regime into force straight away. Consequently, we accept the need for a three-year delay. We also accept the assurance she has given us today that any order that is sought under the amendment will not be brought before the House until after 1 May 2011.

It illustrates the defects of procedures in another place, which I hope will be addressed by the constitutional review committee, that it did not even debate the Lords amendment on this matter, and that accordingly it was not possible for the honourable and learned lady the Solicitor-General to give the sort of assurances that we have heard today—but that is perhaps a matter for another time. For the moment, we are content with the Government’s position.

My Lords, I am most grateful to the noble Lord, Lord Thomas of Gresford, for what he said, which seems entirely in accord with our own view. In those circumstances, I beg leave to withdraw the Motion.

Motion, by leave, withdrawn.

On Question, Motion C agreed to.

Motion D

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 88A to Lords Amendment No. 88. I have spoken to this Motion with Motion C.

On Question, Motion agreed to.

Motion E

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 89A to Lords Amendment No. 89. I have spoken to this Motion with Motion C.

On Question, Motion agreed to.

Motion F

My Lords, I beg to move Motion F, that the House do not insist on its Amendment No. 115, to which the Commons have disagreed, and do agree with the Commons in their Amendment No. 115A in lieu.

Noble Lords will recall that on Report in this House an amendment was moved, and accepted, to provide for a new criminal offence for data controllers who intentionally or recklessly disclose personal information, repeatedly and negligently allow information to be disclosed or intentionally or recklessly fail to comply with the data protection principles. The Government have looked carefully at the tenor of the arguments in this House. We accept the principles put forward by the noble Baroness, Lady Miller, and yesterday we brought forward in the Commons an alternative measure that could strengthen the protection of personal data, Amendment No. 115A. In bringing forward this amendment we are specifically taking into account that criminal liability is generally reserved for unlawful behaviour that is sufficiently serious to merit the most stringent liability that the law can impose.

In addition, we have consulted with the Information Commissioner. I am glad to report to the House that he welcomes the flexibility with which Amendment No. 115A provides him in his efforts to enforce the Data Protection Act more rigorously and proportionately. We also believe that the new monetary penalty should apply equally to the public and private sectors. Information gathered by the Information Commissioner’s office shows that data losses occur across both these sectors, and therefore it is only right that the monetary penalty should apply to both as well.

I hope that these amendments find favour with the House in view of our previous debates.

Moved, That the House do not insist on its Amendment No. 115, to which the Commons have disagreed, and do agree with the Commons in their Amendment No. 115A in lieu.—(Lord Hunt of Kings Heath.)

My Lords, I am glad that the Government have come forward with some sort of answer to the House’s deeply held concern that data controllers are not sufficiently regulated by the Information Commissioner’s power to enforce penalties. I would not resist the Government’s attempt to move away from criminal penalties, which we on these Benches regard very much as a last resort. However, we will keep an eye on how the regime works. I, too, have heard from the Information Commissioner and am glad that he sees that it is sufficient. When will the Secretary of State introduce regulations for deciding the amount of a fine? Given the amount of data lost during the past year, both from government departments and the private sector, I hope that the Secretary of State will choose to bring in those regulations speedily, because this is a matter of deep concern to the public. The amendment is supposed to strengthen the Information Commissioner’s arm and ensure that data controllers comply with all the provisions of the Data Protection Act. However, unless the regulations are introduced, it will not have the desired effect. I hope that the Minister will reassure me on that point.

My Lords, we, too, will not oppose the Government’s amendment at this stage, though to introduce five new clauses to the Data Protection Act 1998 at such a late stage, even after our various discussions of the noble Baroness’s amendment at an earlier stage, in a Bill that has been before both Houses for some 11 months, is a pretty odd way to legislate. Concern was expressed by my honourable friend Mr Garnier in another place yesterday about taking the civil route to a criminal law end, particularly as the provisions impose what could be severe penalties in the form of fines and as, my honourable friend put it, the commissioner will find himself the policeman, the prosecutor, the jury and the judge. That seems to be a difficult role for him to pursue. My honourable friend in another place hoped for further explanation from the Government if they had time.

However, we appreciate that the Government have tried to move on. We are grateful for a letter from Mr David Hanson on this matter, setting out what the Government were trying to do. Though we voted against it in another place, we shall now accept it with those misgivings and hope that the Government will be able in due course to provide some explanation of how the regime is going to bed down.

My Lords, I am grateful to the noble Lord and the noble Baroness for their general welcome to the amendment. The Government have taken careful note of the debates in your Lordships' House. I cannot give a definite date to the noble Baroness, but I understand her point about the seriousness of these matters. We are committed to ensuring that data controllers have a clear understanding of the circumstances in which the Information Commissioner will consider it appropriate to issue a monetary penalty notice and of how the amount of the monetary penalty will be determined. That will require careful consideration. The Information Commissioner will be required under Amendment No. 115A to publish with the agreement of the Secretary of State statutory guidance on these matters, which will be laid before Parliament. I hope that it will ensure that proper regard is paid to the circumstances in which the monetary penalty is introduced, the notice that will need to be given to data controllers and the need for sufficient parliamentary scrutiny. I hope that noble Lords will accept the amendment on that basis.

On Question, Motion agreed to.

Motion G

My Lords, I beg to move that the House do not insist on its Amendments Nos. 117 and 127, to which the Commons have disagreed, and do agree with the Commons in their Amendments Nos. 127A to 127E in lieu.

Noble Lords will recall that on Report the House agreed amendments to provide an exhaustive list of the prohibitions, restrictions or conditions that could be imposed as part of a violent offender order. The other place has agreed to the principle of these changes, to an amendment to improve the drafting and to ensure that the amendments are fully workable. On this basis, I invite noble Lords to agree the Motion standing in the name of my noble friend Lord Hunt of Kings Heath.

Moved, That the House do not insist on its Amendments Nos. 117 and 127, to which the Commons have disagreed, and do agree with the Commons in their Amendments Nos. 127A to 127E in lieu.—(Lord West of Spithead.)

My Lords, in the absence of my noble friend Lord Kingsland, we accept the Government’s concession. We are grateful for the letter from Mr David Hanson setting out what the Government are doing.

My Lords, we are grateful to the Government for rethinking on this point. We have urged that there be proper restrictions on violent offender orders. I just repeat our total opposition to such orders and the process that brings them about. I do not resile from anything that we have said about the making of civil orders and turning them into criminal offences. Apart from that, we are grateful to the Government for moving on this issue.

On Question, Motion agreed to.

Motion H

My Lords, I beg to move that the House do not insist on its Amendment No. 173, to which the Commons have disagreed for their Reason 173A.

The other place disagreed with your Lordships’ Amendment No. 173, because it affects the arrangements relating to making payments out of public funds. On that basis, I trust that your Lordships will not pursue the matter further.

Moved, That the House do not insist on its Amendment No. 173, to which the Commons have disagreed for their Reason 173A.—(Lord Hunt of Kings Heath.)

My Lords, the Minister’s wish is not entirely going to be fulfilled. Lack of time in the House of Commons yesterday meant that no discussion took place on this amendment and that there was only a vote, which the Government, not unexpectedly, won. I say “not unexpectedly”, but I believe that there were people on the Government Benches who understood the positions of both the police and prison officers on this matter, who might have had more courage and given them support.

I make no apology for returning to this issue, although the Government have now made it the subject of the privilege amendment, thus denying us the opportunity of voting on it again this evening. But it is matter of such importance that it will do no harm for me to rehearse our concerns. Pay awards for both services are subject to independent pay review bodies: the Police Negotiating Board and the Prison Service Pay Review Body. These bodies, along with the Armed Forces’ review body, with which we are not allowed to deal under this amendment because it is not appropriate in this Bill, were set up to ensure that these key public sector workers , who do not have the right to strike, were not, as a result, disadvantaged in pay negotiations. They each have a clear remit from the Government as to affordability and their inflation targets, which they must—not unreasonably—take into account. But having done so, they are free to put forward firm recommendations.

Last year, for the first time, the Government went to arbitration on the proposed police settlement of 2.8 per cent, having, as the noble Lord, Lord Dear, told us at the previous stage, already altered in 2006 the basket of occupations, which were the ingredients against which police pay and allowances should be measured on an annual basis. Arbitration produced an agreed, binding settlement of 2.5 per cent, but the Government ended up implementing 1.9 per cent in a staged award. The result of reneging on both a binding agreement and an understanding that the pay review bodies’ recommendations would be implemented was the unedifying sight of the police march, and the Government’s scramble to get this Bill through before tomorrow, to prevent a strike by the Prison Officers’ Association, which, having agreed a voluntary ban on striking, was equally disadvantaged, and is due, following the end of the voluntary ban, to strike later this week—hence the Government’s agitation to get those clauses through.

The amendment does not say that the Government should always implement the pay bodies’ recommendations. It says that if they are not going to do so they must seek the view of Parliament before they renege, explain their reasons, and have those reasons supported by affirmation. For Parliament, we must read the House of Commons. If the Government were trying to limit a pay increase and were over-ridden, that might have an effect on their financial targets and is a matter, apparently, for the House of Commons alone.

I am not at all comfortable with that argument or with the privilege amendment moved against the amendment as it seems to me that the Government are under a moral obligation to accept the recommendations and to have made allowances for them. We believe that they should have the courage of their convictions, stand by binding arbitration, implement for these services what is recommended, and, if they will not do so, explain themselves and seek parliamentary support for their denial of this undertaking.

For now there is little more that I can do to move the Government in the direction in which I believe they should go. Other opportunities will have to be found to give these public servants confidence and security in their pay body findings. The voluntary ban on the prison officers’ strike will now end and become mandatory as a result of the Bill. In not reaching a settlement the Government have let them and the police down.

My Lords, I am glad that the noble Baroness, Lady Hanham, has spoken as she has. I was interested that she used the word confidence. I would go further and say that a crucial word is needed in the content of the amendment; that is the word trust.

She has mentioned that the Armed Forces, the police, the Prison Service and other public bodies which now have pay review bodies must have trust in those bodies to represent fairly to government the case for whatever rise is recommended. As noble Lords know, there is a certain fragility in the industrial relations scene affecting prison officers. One thing increasing that fragility is that the Prison Officers’ Association has lost trust in both the Government and the Prison Service to deal fairly, as it sees it, with its concerns. One of those concerns is the staging of the pay rise which was recommended last year.

When I was a member of the Armed Forces I remember being equally concerned about proposed staged rises because it involved not just the staging of pay but the staging of pension rises. It meant that those people who retired during the first half of the year did not get the whole of the recommended pension rise included in the recommendation of the body.

I have to say that I am very surprised indeed that the other place did not even discuss this yesterday. They are the custodians of all this negotiation, and they are the people to whom the Prison Officers’ Association and others look to satisfy and look after their own interests. Therefore, I am extremely disappointed at the least to find that this is how this important amendment with its future ramifications for public service is being treated.

My Lords, I spoke before in your Lordships' House. I speak briefly now. I support entirely what the noble Baroness, Lady Hanham, and the noble Lord, Lord Ramsbotham, have said. My remarks may well be remembered by many who were present when I spoke and who are present today. I identify with two points that have been made. One is the huge breach of trust and the damage which the Government have caused, certainly to the police, and to others by inference. The second is a point that I identified previously—the total disparity in the way in which the Government treat those who can and those who cannot strike. The police, who cannot strike, were pegged down to 1.9 per cent, whereas police civilian support staff—police community support officers and others who patrol the streets with the police—were allowed 2.5 per cent, which they had asked for, because they can strike. That disparity, small though the amounts are—I said previously, and repeat, that the amounts are not the issue, the breach of trust is the issue—goes to the very root of the matter that we are looking at today. I sincerely hope that in the not too distant future we shall find a way to repair that breach of trust and put something in place that does not allow this to happen again.

My Lords, I support everything that the noble Baroness, Lady Hanham, and other noble Lords have said. I cannot understand how the Government can enter into what is supposed to be a binding arbitration and then ignore the result of it. If that does not destroy trust in the system, I do not know what does.

To use the law to deal with industrial relations has always been difficult. Your Lordships will recall that at the beginning of the previous century a Liberal Government freed up the trade union movement and permitted it to strike. I always thought that the Labour Party supported such movements. Here the Government put restrictions on the police and Prison Service. We do not say that those restrictions are necessarily wrong but there is a price to pay for that. We have talked about the military covenant which the Government do not always uphold. There has to be seen to be a covenant with the police and the Prison Service to act honourably and fairly with them. The Government have lost the trust of police and Prison Service officers and I do not think that they will regain it for a very long time.

My Lords, once again I have the great pleasure of welcoming the noble Baroness, Lady Hanham, to our debates on the Criminal Justice and Immigration Bill. Noble Lords hope that there will not be another criminal justice Bill in the next Session. I cannot possibly comment on that, but if there were to be, the noble Baroness’s cameo entrances would be most welcome.

The police, prisoner officers and the Armed Forces—although the latter are not covered by the terms of the Motion—are critically important groups of workers to whom the Government pay tribute for the contribution they make. However, the police and prison officers are not alone in having independent pay machinery which makes recommendations to Ministers. As I explained in previous debates, this machinery was developed over 35 years by this Government and the party opposite when it was in government. It has always been clear that pay recommendations cannot be binding on the Government. It has always been the responsibility of the Executive to make decisions on pay. Both Conservative and Labour Governments have overseen such a system.

I do not want to go through the list that I went through as noble Lords do not want me to do so. Nor do they want me to refer to the police arbitration tribunal decision of 1990, certain aspects of which the previous Government did not accept. Previous Governments and this one reserve the right to be flexible when considering the implications of recommendations of these independent pay bodies. That is why we do not think it right that that discretion should be subject to parliamentary approval. Parliament already has overriding oversight of departmental expenditure and we think that is the most appropriate scrutiny.

Of course, I fully accept what the noble Lords, Lord Ramsbotham and Lord Dear, had to say about the importance of trust between government employers and the services. The Government will work very hard to ensure that there is that trust. In relation, for instance, to prison officers—who we have discussed on a number of occasions—our overriding priority has to be the safety of prisoners, which is why we are taking the action that we are taking in relation to industrial action in the Prison Service. Overall, the importance of these staff cannot be underestimated, but there will always have to be discretion in relation to government decisions about the recommendations of those independent bodies. On that basis I hope that the House will accept the Motion.

On Question, Motion agreed to.

Motion J

My Lords, I beg to move that the House do not insist on its Amendment No. 285, to which the Commons have disagreed for their Reason 285A.

This is our final group. I welcome the opportunity to come back to debate this important question, on which we had an interesting and informed debate rather late at night on the third day of Report. That question has now been debated in the other place, which, having disagreed with your Lordships’ amendment by a large margin, has now sent it back to us for further consideration. It is clearly right that we should take this matter very seriously indeed.

Of course, I have looked carefully at the matter raised by noble Lords in our debates. The question before us is whether we have the balance right between the necessity of protecting targeted groups and the necessity of ensuring freedom of speech. The Government do not believe that any behaviour that is threatening and that is intended to stir up hatred needs special protection because of considerations of free speech. Only behaviour that is threatening and that is intended to stir up hatred is covered by the Bill. If such behaviour is neither threatening nor intended to stir up hatred, it is not covered by the Bill. We think that we have the balance right, as does the Joint Committee on Human Rights. We have had many, many happy days debating the Bill and on many occasions noble Lords have quoted the excellent report by the Joint Committee on Human Rights, so it is right that I pray in aid its judgment on this matter. The Equality and Human Rights Commission, too, believes that we have the balance right, as does the other place.

I am sure that we shall hear again the concerns about the risk of heavy-handed police enforcement. A number of cases have been mentioned where it is alleged that overzealous behaviour has occurred. Concern was expressed when we last debated this about what guidance would be available to the police, the Crown Prosecution Service and the public about this offence. I will take this opportunity to clarify those matters.

My understanding is that the Crown Prosecution Service will issue a policy bulletin and legal guidance on the new offence. The CPS legal guidance provides prosecutors with an online source of information on legislation and policy on a range of legal issues. The CPS legal guidance is accessible to the public on the CPS website. There is existing CPS guidance on the offence of incitement to religious hatred, which came into effect on 1 October last year. There is a policy bulletin and updated internal CPS legal guidance.

In addition, CPS prosecution policy on racist and religious crime, first published in July 2003, is being revised and will soon be reissued. It will address the new offence of incitement to religious hatred. The police will also have advice in a revised manual of hate crime. The current manual covers crimes motivated by hate, but it is being revised and will include crimes of incitement to hatred.

In addition, we of course have been listening carefully to the concerns expressed here and in the other place about what I have described as heavy-handedness. The Government, therefore, in seeking to meet those matters, are bringing forward an amendment to place on a statutory footing a duty on the Secretary of State to issue guidance. That will ensure that appropriate guidance about the offence is available for all interested parties. The guidance that my department will issue will reiterate that the only behaviour covered by the offence is behaviour that is threatening and intended to stir up hatred. It will take account of all the points that have been made in debate here and in the other place.

The measure that we are debating does not seek to make the holding of certain views or opinions illegal; it concentrates on behaviour. Threatening behaviour intended to stir up hatred is a real risk to public order and ought to be challenged. Of course, it will ultimately be for the courts to decide whether the offence is proven in a particular case, but, as I said in my introductory remarks, behaviour that is not threatening and not intended to stir up hatred is plainly not covered by the offence. The guidance will reiterate all this.

I and the Government have listened carefully to the speeches of the noble Lord, Lord Waddington, and other noble Lords. We think that we can take care of those matters by the way in which the offence has been constructed and the issue of guidance. On that basis, I invite the House to support my Motion.

Moved, That the House do not insist on its Amendment No. 285, to which the Commons have disagreed for their Reason 285A.—(Lord Hunt of Kings Heath.)

rose to move Motion J1, as an amendment to Motion J, to leave out from “House” to end and insert “do insist on its Amendment No. 285”.

The noble Lord said: My Lords, I feared for a few moments that the noble Lord might spoil the pleasure of this occasion for me by going on at length about the vote in the House of Commons that negatived my amendment. But I have to say that I took time off yesterday afternoon from listening to the discussions on the Lisbon treaty—a course that I heartily recommend to every Member of this House, and I refer not to the Lisbon treaty but to listening to the debate. I went into my office and turned on the television. I could not at that time see a single member of the Labour Party on the Back Benches of the other place. Yet, when the Division Bells rang, 338 of the sheep trooped through the Lobby—300 or more never having listened to a single word of the debate.

At the outset, I should point out that on this side of the House there is a free vote. We are on no three-line Whip. We are going to act according to our consciences. That is the way in which a matter such as this should be treated.

Quite obviously—and this does not need to be dwelt on, because it is so obvious—my amendment would not have the effect of weakening the offence. It is, however, a useful reminder not to infer intent from mere words, but to look for proof—for instance, from the surrounding circumstances. It is said that the amendment is not necessary, but such a plea always sounds pretty feeble. If it does no harm, why all the fuss?

My Lords, I have a particular interest in this subject not only as a member of the Joint Committee on Human Rights but because I suppose I was the architect of the amendments that the House made when considering religious hate speech. I drew the teeth of the Bill; we defeated the Government and the other place by one vote, as we all remember, and upheld the draft for which I was responsible, and which is now the law of the land.

I have spent most of my life dealing with two main issues: free speech and equal protection of the law—equality. When I was a special adviser to Roy Jenkins we extended the race hate speech provisions very broadly indeed—perhaps too broadly. The Race Relations Act 1976 made it a crime to stir up racial hatred not only where there was a deliberate intent to do so but objectively where it was likely in all the circumstances that race hate would be stirred up. That was a serious encroachment on free speech, which we did for reasons that no longer need to be thought about in this debate.

The view taken by this House and by one vote in the other place on religious hate was that the Government had gone too far in mimicking the race hate speech crime that we had devised in 1976 and applying it to the stirring up of religious hatred. We took that view because it was felt that religious hatred is different in kind from racial hatred. If you stir up hatred against someone because of their ethnicity, you do so for something that they were born with, their birthright, that they could not change. You are attacking their common humanity. However, if you stirred up hatred against someone because of their religious belief, or lack of belief, you were immediately involved in the battle of ideas, beliefs and practices.

It seemed to me—and, luckily for me, to the great majority in this House and a narrow majority in the other House—that it was right to narrow this speech crime dealing with religion so that there was a need to prove specific intent and a freedom to insult or abuse, but not to use threatening language. That is why, if one compares the crimes of religious hate and racial hate, one finds two safeguards built into the religious hate crime: first, the need for specific intent; and secondly, the freedom, although it is not an obligation, to insult—but not to threaten, because threatening speech obviously seriously affects public order.

The Government faced a difficult policy choice on what do to on homophobic speech. Is it more like race and ethnicity, or more like religion? Does the stirring up of hatred against someone because of their sexuality attack their common humanity—what they are born with, or are as a human being—or is it an attack on ideas and beliefs akin to religion? The Government could have chosen the unwise course of doing what they first tried to do with religious hate speech; that is to say, they could have devised a broad offence that applied not only to threatening speech but to abusive and insulting speech, and they could have used the same objective test of intent as they attempted for religious hate speech.

I had nothing to do with it but—in my view wisely—the Government chose instead a much larger measure of freedom of expression. As has been said by the Minister and others, they chose to criminalise only that which is deliberately stirring up and using threatening language, leaving a person free, however unpleasant and evil it may be, to insult somebody because they disapprove of homosexuality. They were right to do that, and this House should support the narrow homophobic hate speech offence.

I devised what came to be called the “English pen” clause—the free speech clause when dealing with religion—which the Government did not wish to have; I was quite surprised it got through both Houses. I invented it because I felt that religion, and controversy about it, is all about expression and it was therefore vital for writers, novelists, playwrights and broadcasters to know that, in the turmoil that religious controversy always creates, there should be the widest possible free speech. It is not necessary to do that for homophobic hate speech. That is why I support the position of the other place and the Government.

If a prosecution were launched that seriously threatened free speech in a way that violated the Human Rights Act and Article 10 of the European Convention on Human Rights, that would be a most serious matter that would have to be dealt with by the courts and, if necessary, by the European court. I do not imagine for a moment that that is likely to happen. For all those reasons—I apologise for taking so long to explain them—I hope that this House will speak with the same voice as the other place on this important matter.

My Lords, having listened with great interest to the noble Lord, Lord Lester, I do not think we can distinguish as clearly as he has sought to do between that which is religious and that which is not. We are talking about homophobia, which I, like, I assume, everyone in this House, abhor, but there are religious groups, not only Christians, not only bishops, but many Jews and Muslims, which share strong views that they gain from the Bible, the Old Testament in particular, or the Koran. Those people are potentially at risk. It is very unlikely that they are at risk of prosecution, but in the speech that the noble Lord, Lord Waddington, made today and on a previous occasion, he set out that his area of concern is the people who say what is understood incorrectly to be within this proposed clause. It is those people who will potentially be intimidated; they will certainly be bothered and may go through an extremely unfortunate experience before calmer heads point out that under the new clause, as under older clauses, they have not committed any offence. It is those people whom the noble Lord, Lord Waddington, has spoken about who, despite everybody’s objection to homophobia, none the less need some help. I do not believe that guidance, even better guidance than is provided at the moment—the case of the right reverend Prelate the Bishop of Chester is a pretty good indication that the police guidance cannot be much good—will do what is needed to look after people who genuinely have ideas that are unacceptable to many of us, but who hold them for strong religious views from various religions. That is why this amendment tabled by the noble Lord, Lord Waddington, is not, as the other place said, unnecessary.

My Lords, I listened with great care to the debate on the noble Lord's amendment on Report. I listened to the speeches of the noble Lord, Lord Waddington, and those who supported him. My objective was to understand what mischief his amendment was trying to resolve. The noble Lord's argument seems to hinge on the proposition that this provision, left unamended, would stop good, decent law-abiding citizens expressing the deeply held views, as the noble and learned Baroness has just said, that homosexuality is wrong and sinful. It would also have stopped those, particularly in the faith communities, who want to express their deep and heartfelt concerns that homosexuality, no matter how much they respect an individual, is wrong and is a sin.

I do not fear legitimate argument, and I do not support any provision that would outlaw a person's right to have and to hold these beliefs and to express them freely. I do not fear people who think homosexuality is a sin. I do not fear an open and frank discussion of homosexuality. It is that right which this House tries to uphold. I, along with a whole host of noble Lords, have argued not for special treatment for gay men and lesbians under the law, but for equal treatment. I have argued our case with, I believe, love, compassion and, most of all, equality. I have no quarrel with those who have a different view from mine; a view that I do not share.

If I believed that this provision would prevent good men and women up and down this country discussing their views openly, I would join the plea of the noble Lord, Lord Waddington, but it is not about curbing freedom of expression—it is about extending the existing offence of incitement to hatred on the grounds of race and religion equally to sexual orientation. That means, in relation to prosecutions, that the CPS will require two significant tests to be met: first, that the words were threatening; and, secondly, that those words were intended to stir up hatred.

I can put it no better than the noble Lord, Lord Thomas of Gresford, did at Report. He said:

“The prosecution has to prove, first, that certain words or behaviour used by the defendant were threatening. I suppose that that could be seen as an objective test. Would the jury or the magistrates consider it to be threatening if those words were used about them? The second ingredient of intent to ‘stir up ... hatred’ requires the jury or magistrates to be satisfied about the state of mind of the defendant and that he intended to stir up hatred. Those are strong words. It throws a considerable burden on the prosecution to satisfy the jury that there was an intent to stir up hatred”.—[Official Report, 21/4/08; col.1372.]

I cannot see how that burden of proof could possibly apply to the types of examples that the noble Lord, Lord Waddington, cited in his speech on 21 April. Incidentally, because of a number of those cases, we know that the Crown Prosecution Service changed its advice in November 2007. Since then, not a single case has been taken up unjustly.

I also agree with what was said by my noble friend Lord Smith of Finsbury. He said:

“For all the moderation and the consensual way in which”—

the noble Lord, Lord Waddington,

“quite rightly introduced it, my worry is that it”—

the amendment,

“will drive a coach and horses through the intention of the clause and it will allow those who stand up and incite hatred to take refuge in this clause, if it is amended”.—[Official Report, 21/4/08; col. 1371.]

It was amended. That amendment undermines the very heart of the clause. It provides a safe hiding place for those who want to stoke up hatred. It provides a fig leaf for the bigots and homophobes who would use violence and intimidation as their stock in trade. It is an amendment that uses freedom of expression as a disguise to reopen a debate.

My Lords, I thank the noble Lord for giving way. He will know a thing or two about the question that I shall pose to him; he will know that I am a Muslim and I know that he is familiar with the faith. From what he just said, does he suggest that a Muslim imam who is being true to his literalist interpretation—we may both disparage a literalist interpretation—and urging people to move away from homosexual behaviour is a bigot? Is that what he would decide?

No, my Lords. I am arguing that the offence does not capture the theological argument about homosexuality in Islam, nor would it affect the way that it is literally interpreted by the imams. It would prevent an imam using homosexuality and theology to incite and stir up hatred. That is the issue. It is not the theological discussion with which we are engaged. That is not made illegal under this offence.

The noble Lord, Lord Waddington, said in his opening speech at Report that the amendment,

“could not by the greatest stretch of imagination be thought to be aimed at gays”.—[Official Report, 21/4/08; col. 1366.]

Gays are all that it is aimed at. Let us see this amendment for what it really is.

The Government have given us the opportunity to restore this provision to its unamended state so that it may help communities that are vulnerable. In the process, the guidance that they will publish will help to clarify any misunderstandings. I support the Government and reject the noble Lord’s Motion.

My Lords, I strongly support the Motion of the noble Lord, Lord Waddington. In doing so, perhaps I can be brave enough to remind the House that I have absolutely consistently been a supporter of every piece of legislation in favour of gay rights that has come before the House while I have been here. There is, however, a single legal, but none the less important, point to make. There is serious misapprehension about the Government’s approach to the problem. On Report, the Minister said that although Parliament put into the Racial and Religious Hatred Bill an exemption clause that is very similar to the one that we are considering here,

“the Government did not think that it was necessary and we do not think that it is necessary in relation to this Bill”.—[Official Report, 21/4/08; col. 1375.]

There are two points to make. First, the Government may well have been right at that stage. Secondly, however—the Minister may not like this—we are concerned with what Parliament did in that Bill and not what the Government would have liked it to have done. What is on the record and what is fact is what was enacted. What the Minister said on Report was the point at which I am afraid he strayed into error; it comes from a totally false premise. The very similar race relations Bill has an express exclusion for freedom of speech that is not in precisely the same words as those of the noble Lord’s Motion but is to much the same effect. What the Government’s argument and, with respect the point taken by the other place, fails to take into account is the absolute principle of law that: first, Parliament is deemed to know what it said last time; secondly, it is deemed to have drafted provisions in a subsequent Bill in the light of what was said before; and, thirdly, if it says something different, it means something different.

Lord Maxwell, on statutory construction, says:

“From the general presumption that the same expression is presumed to be used in the same sense throughout an Act or a series of cognate Acts”,

such as these,

“there follows the further presumption that a change of wording denotes a change in meaning”.

He then cites Lord Tenterden:

“Where the Legislature in the same sentence uses different words, we must presume that they were used in order to express different ideas”.

If this Bill is enacted with no exclusion of any kind similar to the one in the Racial and Religious Hatred Bill, the courts will be bound to presume that Parliament intended a different result. Therefore, in this second Bill—

Order!

My Lords, I hope that I did not—I did not mean to—interrupt the noble Viscount in a discourteous way. But, first, is he aware that the Human Rights Act requires all existing and future legislation to be read in accordance with human rights, including free speech. That is now a fundamental principle of interpretation. Secondly, as the architect of the free speech clause, which he now seeks to invoke for homophobic hate speech, is the noble Viscount aware that in the entire range of public order offences, the only one in which the free speech clause is included is for religious hate speech, not for race hate speech and not for any stirring-up use of language? Therefore, when he quotes Maxwell and Lord Tenterden, with respect, it is beside the point. He should be focusing on whether the unique need for a free speech guarantee, which was written into the religious hate speech, really applies to homophobic and, therefore, to race hate speech as well.

My Lords, I am most grateful to the noble Lord. I was aware of most of his points. However, the last Act dealing with stirring up hatred on the grounds of ideas, expressions and things that have been said is the religious hatred Act. Presumably, one must assume that that was the model on which this Bill was based. The Minister did not suggest anything different. He suggested that because the Government did not think it was necessary to have it in the religious hatred Bill, they therefore did not think it was necessary here.

The trouble is that on the first occasion Parliament was of a different view. It may be that in the House of Lords the noble Lord, Lord Lester, might convince the court of his very subtle distinction and, therefore, get it not to make the presumption. I do not question that. But the fact remains that on the face of these recent Acts on a similar topic one does not want to have this vast distinction. I would say to the noble Lord, Lord Alli, who appears to think that there is real mischief in this that the Government do not say that. All that Parliament says is that it is unnecessary. It does not say that it is undesirable or causes trouble. It says that it is unnecessary because it is clear on the words themselves, which it might be if you did not have the contrasting Act.

My Lords, it is very important that all of us keep our eye on the main point of this amendment. I feel very strongly that the noble Lords, Lord Alli and Lord Lester, have made far too much play of the undoubted truth that should a case of this kind come before the courts, it would not succeed. The amendment of my noble friend Lord Waddington seeks to address the situation where anyone from anywhere for any reason can make an allegation against someone that they have made a statement. Although that allegation might not stand up in the courts, if the police have an allegation or an accusation of that kind to deal with, they may go for it tooth and nail, as rightly they should. The people would be out of their houses, and they would be interviewed and thoroughly questioned. For the many people whose crime did not exist, but who, as I pointed out the other day, had tried only to get people to go to a church service, it was wrong that they should have been interviewed by the police and made to feel like criminals.

My Lords, I, like many colleagues, was written to about that incident in Manchester. Through intermediaries, I undertook to find out the truth of that matter. I am given to understand that it was nothing to do with homophobia or any accusation, but that the people who set up the trestle table to give out the information about church services were blocking the way for disabled people to enter a local bank. It was that which was taken up by the police.

My Lords, the case that I had referred to me was an allegation of having made a homophobic remark. It sounds to me as if it was not the same case as that referred to by the noble Lord. My simple point is that we truly must understand in this House that we have to be very careful if we lay a duty on the police to harry, question and keep on at someone who has done no wrong. That is the point we should be addressing today.

My Lords, when I came into the House today, I did not originally intend to speak, but I have been listening very carefully to the discussion and I want to make two brief points. First, I can absolutely understand the wish on the part of the noble Lord, Lord Waddington, and his supporters to prevent a situation where people are unnecessarily interrogated, arrested, or questioned by the police or other authorities. I can absolutely understand the wish to ensure that that does not happen. My very strong belief is that the Government’s legislation does not lead to that mischief. However, I would simply ask the House to understand that for many people who happen to be gay or lesbian in this country, it is not just a case of being interrogated, questioned or harassed; it is a question of being kicked, bruised, injured and, in some cases, killed because of their sexual orientation. I simply ask the House: which is the greater evil?

Secondly, the House really should be careful about being seen by the world outside as if it were speaking in code. There is a danger that if we pass this amendment, it will be taken as a signal by those who wish for their own purposes—something that I know the noble Lord would not wish to endorse—to stir up hatred against people because of their sexual orientation. It will be taken as a signal that it is all right to do so, which, in my book, is something this House should be very careful about doing.

My Lords, I have spoken a number of times on the terms of this amendment. I shall make one comment on the Minister’s reference to the “alleged” evidence of heavy-handed police. There is no allegation about the couple in Fleetwood. It was a fact that these two lovely old people, who described themselves as Christian pensioners, suffered 80 minutes of interrogation by two six-foot policemen. That was not an allegation, it is a fact, because within 12 months—only 12 months—they got the apology that they deserved. They had committed no crime. There was no reason for what went on. But someone did not understand.

That is my worry about guidelines. If we mean that we are to maintain the principle of free speech, we should make sure that it is in this Bill and not leave it to the interpretation of guidelines, which would become another lawyers’ paradise. I say that with great respect to the noble and learned Lords in this House. I cannot speak as a lawyer, but I get very concerned when I hear all these angels on top of a pin being counted. The right of free speech is at stake here.

My mind goes back to the years I have spent in my party. I have sat here thinking about what we would be doing in the Hampstead Labour Party if a Conservative Government were publicly denying a clause allowing free speech. Every constituency in the country that I have had any experience with would come to the same conclusion. If we believe in free speech, we do not need guidelines, we need to write it in—as has been said about other Acts of Parliament.

I said that I would be brief. I have said that this is not necessary and that it is over-provided for. I support the noble Lord, Lord Waddington, in his desire to pass a necessary amendment and I shall follow him and others through the Lobbies to support this amendment, even if we are here until tomorrow morning.

My Lords, unlike those who were in the other place yesterday, and who were pretty few in number as I understand it, I have sat through most of our deliberations on this criminal justice legislation. We have heard today some extremely forceful and deeply felt arguments on both sides, and the one thing that unites us all is that none of us is in favour of homophobia. When I listened to the previous debates, I have to say that I was impressed by the comments of the right reverend Prelate the Bishop of Newcastle. He spelt out a number of the issues that we have already gone through in some detail today, and his conclusion, with which at the time I was in agreement, was that what the amendment proposes is a useful addition but would be better in guidance rather than in the Bill.

Today I have had the advantage of listening to another of those whom I would call my gurus, the noble Lord, Lord Lester. On many occasions on equal rights issues we have had the benefit of his hugely valuable advice. The history that he has given us of the background to this Bill and what is being proposed, as well as to the Racial and Religious Hatred Bill, is also extremely useful. For me, as it is spelt out, the behaviour has got to be threatening in nature and intended to stir up hatred.

Clearly, the two sides of this matter are going to bounce between the Houses, but as of this moment I wish to support the Government’s side of the argument. Equally, I do not believe that any of the speeches, and particularly the amendment being proposed, are in any way meant to be anti-gay. I should make that perfectly clear because one or two comments have perhaps implied the contrary.

My Lords, I should like briefly to say why I support the Motion proposed by the noble Lord, Lord Waddington. It was argued at an earlier stage that the amendment is unnecessary because the Bill defines the offence with sufficient clarity and there is therefore no doubt to be avoided. That is the reason given for the disagreement in another place. Looking at it from a purely legal point of view, I understand the argument. The definitions of the offence of incitement to hatred and of “threatening” are clear enough.

Some have argued that this amendment would water down the offence. It would do nothing of the kind. The definition of the offence is unchanged and unimpaired. But that does not mean that the amendment is unnecessary. We should be looking at this matter not just from a legal point of view, but from a human point of view as well. That there is need for the avoidance of doubt is evident from the letters that I, like many other noble Lords, I am sure, have received. There are many people who have no intention or desire to threaten or to incite to hatred, but who think that they should be able to feel free to enter into discussion of and express views about these matters without rancour or incitement to hatred and without fear of over-zealous pursuit by the police. This is a freedom which in our society they should be able to enjoy without doubt or fear. The amendment would reassure such people and would discourage over-zealous pursuit by the police without in any sense diminishing, affecting or watering down the offence as defined in the Bill.

In fact, a number of people who are strong supporters of the main proposal have expressed concerns about the “free speech” aspects of the provision in the Bill, and have even said that they would like to see the protection of free speech go further than this amendment. At this stage, I am not looking to propose an amendment in different terms which would go further than the amendment before us, though I stand almost aghast at my own moderation in failing to do so. But I would argue that this amendment is not unnecessary. There is a need for it, and for the assurance that it provides of the preservation of the right of people to enjoy freedom of speech when it can be enjoyed without rancour and without incitement to hatred.

So, if the noble Lord, Lord Waddington, decides to seek the opinion of the House, I urge your Lordships to support his Motion, and if the Motion is passed, I urge the Government to accept it and not seek to overturn it again in another place. There can be no loss of face in that course and no damage to the purpose or effectiveness of the Bill; indeed, it would be recognised as a counsel of moderation and good sense.

My Lords, I would not normally have spoken to this particular part of the criminal justice Bill, having spoken to just about every other part, but there are several points to be made. My noble friend Lord Lester has drawn, I believe, too clear a distinction between race and religion on the one hand and sexuality on the other. The problem with the area of sexual orientation is that it enters into faith and belief. Many noble Lords, including the noble Lord, Lord Alli, have spoken eloquently about the very high threshold. I probably accept that point, and that the threshold here is significantly higher than that being used by the police under public order legislation. But we know that religious beliefs are deeply held and that ultimately they are predicated on faith. We know also that faith is just that: it is faith. My concern has to do with the chilling effect of leaving the clause as it stands.

I absolutely support this clause but I subscribe to the view just outlined by the noble Lord, Lord Armstrong, that no one is talking about touching the clause itself, but about building in an additional protection. In the other place yesterday the Minister repeated over and over again that the additional protection was unnecessary and that it was otiose. It may well be unnecessary in terms of the threshold needed to bring a prosecution. That is accepted, but the point is that in terms of freedom of expression, the lack of this additional protection may well have a chilling effect.

Those noble Lords who know me know also that I am not religious. I am a Muslim, but on the whole I describe myself as a secular Muslim. My Muslim co-religionists often tell me that that is a contradiction in terms, and it may well be, but I think that what I am trying to say is that it must be accepted by those of us who do not have deeply held religious convictions that other people perhaps do have them. It may be that other people, following their religious convictions, may speak of things that we may not share but which are deeply held by them. However, they have the right to hold those religious convictions, and it is that right which I seek to uphold.

I do not say that I support absolutely the amendment proposed by the noble Lord, Lord Waddington. In fact I do not think I could ever support some of the policy directions emanating from where the noble Lord comes, but at this stage I am minded to abstain rather than vote for either case.

We have to be very mindful of this chilling effect.

The noble Lord, Lord Smith of Finsbury, again mentioned the violence used against gay people. We all understand where he is coming from; he is absolutely right to draw our attention to those concerns. But we cannot make good law on the basis of individual cases. We on these Benches have argued that point in relation to extreme pornography. We know that our clauses, which would have provided a defence in freedom of expression cases, were lost because of individual cases. That is the wrong way to make law. I hear the concerns of the noble Lord, Lord Smith, but I think that all sides would concede that the clause as it stands will provide protection in those regards. If the clause is not amended, those with concerns about it as it stands would say that there will be a loss of free expression.

My Lords, it is important to have in mind that the noble Lord, Lord Waddington, and I have no intention whatever of altering the clause that the Government have provided in the Bill. That should answer the difficulties raised by the noble Lord, Lord Smith, because the matters to which he referred—and we all deplore such things—are dealt with adequately in the clause proposed by the Government, to which no one has objected.

The amendment seeks to clarify the position with regard to discussion or criticism of sexual conduct or practices. The noble Lord, Lord Lester of Herne Hill, gave his account of the history of the Bill, but he also told us at an earlier sitting in connection with the Northern Irish provisions that sexual orientation could well require action to be taken to deal with conduct. The amendment deals only with discussion or criticism of sexual conduct or practices. The Government and the House of Commons have said so far that the amendment is unnecessary. Does that mean that there is no doubt that the discussion or criticism of sexual conduct or practices, or the urging of persons to refrain from or modify such conduct or practices, is not of itself to be taken as threatening or intended to stir up hatred?

My Lords, it is a terrifying thing to interrupt a former Lord Chancellor and a noble and learned Lord, but surely the answer to the question he has just posed is obvious. Provided that there is no deliberate intention to stir up hatred on grounds of sexuality, no crime can possibly be committed. I cannot imagine that there is any ambiguity. I am sure that if the noble and learned Lord was sitting as a judge or I as an advocate, neither of us would have the slightest difficulty.

My Lords, if the noble Lord, Lord Lester, was sitting as a judge, he might not have difficulty, but this law is administered at a stage where the people involved do not have the benefit of his long experience of this kind of discussion. I have a little experience of it. Even though I am older than the noble Lord, Lord Lester, I have nothing like his experience of it, but I have dealt with other things as well. This is an area where the relationship between sexual orientation and conduct involves a difficult distinction for many people to take. It is easy for a lawyer of long experience in this area to make the distinction, but many people, including well-intentioned people in the police force and elsewhere, would find it difficult. The amendment is necessary. The government position, apparently, is that it does no harm. I hope that your Lordships will adhere to it.

My Lords, it is with some trepidation that a simple old village schoolmaster rises in the midst of such noble and learned Lords as we have heard today. I have one point that I want to put directly to the Secretary of State. As I support the amendment of the noble Lord, Lord Waddington, I wonder how the Government can put the argument that guidance by the Secretary of State will be more learned, more perceptive and more reflective of what the public require than decisions made in this House. To substitute guidance for firm law strikes me as peculiar.

I hope the Secretary of State will see fit to tell us the extent to which his department will be able to interfere daily with the interpretation that the police put on the law as he would wish to see it. In pursuance of his guidance, will his department be able to interfere with police operations? If we know the safeguards for free speech that we want to achieve, as the noble Lord, Lord Waddington, has illustrated in his amendment, then there should be no requirement to leave the matter in limbo at the discretion of this Secretary of State or succeeding Secretaries of State.

The amendment has clarity and contains nothing that in any way supports those who are homophobic. I would not add my vote to that of the noble Lord, Lord Waddington, and others if I thought it would. However, there is a need to protect those who have principles that they want to express, regardless of whether those principles concern capitalism, homosexual activity or whatever. We have the right of freedom of speech and it should not be left to the will and pleasure of this Secretary of State, his department or any succeeding Secretaries of State.

My Lords, I think there is a sense that I should respond at this stage. There has been general agreement with the principle behind the Bill and that is to be welcomed. I believe in free speech. If I thought that the clauses which the Government are presenting today would in any way undermine free speech, I would not be standing at the Dispatch Box now. I say that in particular to my noble friend Lord Clarke. Nor do I think they will have a chilling effect on debate.

The answer to the question on the necessity of the amendment of the noble Lord, Lord Waddington, is that the Government believe it is unnecessary. One of the themes throughout the debate on the Bill has been the need to avoid unnecessary legislation. On a literal reading, it is true that the amendment is otiose; it has effect only for the avoidance of doubt and because it says only that discussion is not of itself enough to constitute an offence. That is right. I say to the noble and learned Lord that it is not the opinion that counts. The parameters of the offence remain: it is the use of threatening words or behaviour with the intention of stirring up homophobic hatred that is the test.

My Lords, does the Minister not accept that the number of individual cases quoted shows that the law is extremely difficult for the police to understand? Does he recognise that since 1984, when I took the PACE Act through this House, at least 50 and probably 54 criminal justice Bills have come through, almost every one of which has implications for police training and many of which are legislation by reference? Is it not time that we took the opportunity to clarify this small point? Will the Government take away an urgent message to stop new legislation on criminal justice and consolidate what they have?

My Lords, I wish the noble Lord had taken part in our earlier debate. We have discussed the number of criminal justice Bills taken through by my Government and his. My reckoning is that his Government took more through than we have, but I accept the substantive point that we need to be sparing with legislation in the future. I accept that one of our considerations must be that people in the field, whether in the courts, in the Probation Service or among the police, are able to understand as clearly as possible what is meant by new legal provisions.

Where I would disagree with the noble Lord is that I believe the provisions we have put forward are absolutely clear—but that must be followed up with guidance, hence my amendment which instructs the Secretary of State to produce appropriate guidance, and which I have already said will take account of a number of the matters that noble Lords have raised in our debate.

While I am not going to comment on the specific cases that noble Lords have raised, I reiterate what my noble friends Lord Alli and Lord Smith said: the CPS policy of prosecuting cases of homophobic and transphobic hate crime was revised in November last year. I believe that the cases which noble Lords have raised all predate that guidance. Guidance has much to offer.

The noble Lord, Lord Maginnis, made a fair point about the nature of guidance. Neither the Government nor the Attorney-General would give operational guidance to the police. That would be quite inappropriate for us to do. He took me to task for not producing the draft guidance. Although the proceedings on the Bill seem to have taken a long time, they have moved very swiftly, and any such guidance would need to reflect the debates that have taken place in both Houses. It will need to be carefully considered, but it will cover the purpose and the need for the offence.

My Lords, the amendment that the Minister is backing and asking this House to adopt says that the Secretary of State must issue guidance explaining the operation of the offences. That immediately tells us that there is something defective or inadequate about the section as it now stands. How can he simultaneously say that it is unnecessary to have what the noble Lord, Lord Waddington, has drafted in his amendment?

My Lords, if I had produced an amendment that said the Secretary of State “may” produce guidance, noble Lords would have taken me to task. The fact that it is drafted as “must” reflects the fact that the Government have listened carefully to the debates in both Houses and are happy for Parliament to give a clear instruction to my right honourable friend the Lord Chancellor. It is not at all an admission that we think the legislation in itself is defective. I reiterate: the guidance that we will produce will cover the need to ensure the balance between the convention rights on free speech and protecting groups from hatred, and we expect such guidance to coincide with the coming into force of the new offence.

I say again, particularly to the noble Lord, Lord Waddington, that the offence is not about making the holding of certain views or opinions illegal. It concentrates on behaviour. Threatening behaviour that is intended to stir up hatred is a real risk to public order and should be challenged. I do not believe that that offence is in any way a fundamental attack on free speech or undermines it in the way that has been suggested.

My Lords, at the beginning of his remarks when we commenced our debate, the Minister posed this question: is the balance right? It is clearly not right; how can it be, when there is a free speech clause in the religious hatred offence but no such clause here? Many spokesmen have mentioned that that is just asking for trouble. We talk about guidance for the police and prosecuting authorities, but what sort of guidance is it when they are encouraged to pay great regard to free speech in the case of religious hatred but to ignore the right to free speech when examining this offence? It is complete and utter nonsense to say that the balance is right.

The noble Lord, Lord Lester of Herne Hill, reminded us that he moved the amendment to the Racial and Religious Hatred Bill. It might be worth reminding ourselves of what that amendment said, because it is of a completely different quality and nature from the amendment that I have moved. His amendment said:

“Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system”.

That is a blockbuster for you, isn’t it? By Jove, that is a measure to try to safeguard free speech. How dare he say that there is no need for a free speech clause in this amendment when ours is so moderate in terms?

My Lords—

No, my Lords, I will not give way, not at this late stage. Let’s get on with the Division. How dare he say that there is no need for a free speech clause when he was responsible for putting on the statute book a blockbuster of a free speech clause like that?

The noble Lord, Lord Alli, mentioned that I had said that my proposed new clause could not by the greatest stretch of imagination be read as aimed at gays—and, by Jove, I am right. My carefully worded amendment states merely that,

“for the avoidance of doubt, the discussion or criticism of sexual conduct or practices or the urging of persons to refrain from or modify such conduct”.

My Lords—

I am not going to give way at this stage of the debate, my Lords; the noble Lord, Lord Alli, has had his say. If we are to give way at this stage, the debate will never end. I am answering the noble Lord’s point.

My amendment could not be more moderate in words, because it is different from that which was moved initially. It was deliberately changed to meet every objection made in Committee. Now it contains no reference whatever to homophobia; it contains no reference at all which anybody could say is aimed at gays. It states that for discussion of sexual practices, whether homosexual or heterosexual, there should be the same protection. The noble Lord, Lord Alli, asked what mischief the amendment would avoid. There is a very simple answer to that: it would avoid the inferring of intent from mere words, in the way that the police inferred that the right reverend Prelate’s words were threatening, abusive and insulting. That was something to infer, was it not? We must make absolutely sure that the police and prosecution authorities do not in future infer intent, threats, abuse and insults from mere words, but have to look at the context and the way in which they are spoken. That is plain common sense.

And then there was all the business referred to, quite inaccurately, by the Minister in his closing words. The CPS did not change its advice in any meaningful fashion. I have read its new advice, which contains the same glaring error as was contained in the original advice; namely, a completely false definition of homophobia which cannot be found in a single dictionary that I have consulted. It is not true that no cases have occurred since the new advice was issued. One of the worst occurred after the new advice was issued and concerned the questioning for more than an hour of a street preacher. He was taken into a police van and was apparently questioned for more than an hour for preaching religion before being eventually released. As my noble friend Lady Knight said, it is no consolation to tell people after the event, “Of course the police behaved really rather stupidly and reacted too quickly to a complaint, and of course you’d never have been convicted if you’d eventually been put before a jury”. That is really not the point.

I do not want to go on any longer, save to pay tribute to all those who have taken part in this debate and raised some interesting points. The noble Lord, Lord Smith of Finsbury, referred quite rightly to the appalling crimes which from time to time have been committed against gays. I repeat what I said at Second Reading and in Committee: a specific offence of inciting the commission of an offence, particularly violence, is on the statute book. To talk about the violence done to gays in the context of this amendment is to diminish the importance of that violence, because it can be dealt with by a very much more serious offence; namely, incitement to the commission of an offence of violence under the 2006 Act.

I thank all who have taken part in this debate. We really must press this amendment and see that free speech in this country is safeguarded.

My Lords, with the leave of the House, I shall now repeat a Statement made in another place by my right honourable friend the Home Secretary. The Statement is as follows:

“With permission, Mr Speaker, I would like to make a Statement on the classification of cannabis.

“In July 2007, my right honourable friend the Prime Minster announced that we would seek the advice of the Advisory Council on the Misuse of Drugs, as we are obliged to do by statute, on the classification of cannabis. I am grateful to the council for its work and have placed a copy of its report in the Library of the House. In reaching my decision, I have also taken into account the views of others, particularly those responsible for enforcing the law, as well as of the public, 58 per cent of whom, according to a survey carried out for the council, favour upgrading cannabis from class C.

“Cannabis use is falling significantly across all age ranges, which is testament to the success of the Government’s drug strategy. However, I am concerned to ensure that the classification of cannabis reflects the alarming fact that a much stronger drug, known as ‘skunk’, now dominates the cannabis market. I want it to be clearly understood that this powerful form of cannabis is an illegal and harmful drug.

“Today I am publishing the results of a study undertaken with 23 police forces across England and Wales. This provides clear evidence that skunk now makes up 80 per cent of street-seized cannabis, compared to 30 per cent in 2002. Furthermore, its potency has increased nearly threefold since 1995.

“The advisory council’s report confirms that cannabis use poses a real threat to health. The council is concerned about its use among young people. It points to growing evidence that suggests a causal link, albeit weak, between cannabis use and psychotic illness. The council acknowledges that use of stronger cannabis may increase the harm to mental health. Young people may be more at risk if they first use it at an early age; the council refers to the average age of first use being 13. It suggests that some young people might ‘binge smoke’ to achieve maximum possible intoxication—in the same way as some treat alcohol—and concludes that, if they do, the consequences,

‘may be very serious to their mental health’.

The council also believes that the evidence of the impact of stronger cannabis may not be clear for some years to come and has recommended that cannabis remains a class C drug.

“I have given the council’s report careful consideration. Of the council’s 21 recommendations, I accept all bar those relating to classification. I have decided to reclassify cannabis to a class B drug, subject to parliamentary approval.

“My decision takes into account issues such as public perception and the needs and consequences for policing priorities. There is a compelling case for us to act now, rather than risk the future health of young people. Where there is a clear and serious problem but doubt about the potential harm that will be caused, we must err on the side of caution and protect the public. I make no apology for that. I am not prepared to wait and see.

“To reflect the more serious status of cannabis as class B, I am clear that a strengthened enforcement approach for possession is required. The Association of Chief Police Officers said last week:

‘Should the decision be taken to reclassify cannabis we would expect to see increased robust enforcement activity particularly in cases involving repeat offenders or where there are aggravating circumstances’.

“I firmly believe that, while our response must remain proportionate and offer discretion to police officers, a system of escalation is necessary. I have therefore written to ACPO today, seeking its views on a clear and workable system of escalation that is consistent with reducing police bureaucracy and maintaining discretion. This will include looking at cannabis warnings, introduced by ACPO in 2004 to ensure that action is taken when someone is found in possession of cannabis. Prior to this, the police had to choose whether to make an arrest or to take no action. I am not against cannabis warnings, but I believe that it is unacceptable for someone to receive more than one warning and for that warning not to be properly recorded.

“I am fully aware that the system that we adopt will be delivered by those at the front line and I have asked ACPO to involve other police organisations and criminal justice partners in developing its proposals. This new approach to enforcement will not, of course, preclude officers from immediately effecting arrest.

“For those under 18 caught in possession, I am content that the current procedure, which uses a reprimand, final warning and charge, provides an appropriate escalation mechanism.

“In the past few years, we have seen a massive growth in the commercial cultivation of cannabis in the United Kingdom. This cannot be tolerated. We know that these cannabis farms are controlled by organised criminals who stand to make large profits and who, as the Child Exploitation and Online Protection Centre has found, will stoop to using trafficked children on these premises. Reclassifying cannabis will help to drive enforcement priorities in shutting these farms down.

“ACPO and the Serious Organised Crime Agency are responding to this threat. There is a dedicated ACPO lead on cannabis cultivation and it is working with SOCA on a co-ordinated, targeted and robust approach to cannabis farms. This involves building a national profile of these criminal activities, using forensic and other intelligence to make the links between individual farms and organised criminal gangs.

“We must also focus on other ways to combat the problem. Energy suppliers are currently losing significant revenue through abstraction by organised gangs running cannabis farms. I have today written to the chief executives of the six largest energy suppliers, asking them to work with us to identify abuse and to target these groups.

“We have already introduced statutory aggravating factors where supply is made on or in the vicinity of school premises and where a courier under the age of 18 is used. I accept the advisory council’s recommendation for additional aggravating factors to be introduced concerning the supply of drugs in the vicinity of colleges and universities, mental health institutions and prisons.

“I also accept the council’s recommendation for more effective regulation of the trade in cannabis paraphernalia. It is unacceptable that cannabis use is glamorised in any way. We will work with ACPO to look at how existing legislation and powers can be used by the police, local authorities and other partners to curtail the sale and promotion of these items.

“As the council makes clear, this is an important public health issue and one that solely a change in classification will not resolve. Through campaigns such as FRANK, we will continue to make the public aware of the health harms associated with cannabis use. The Department of Health will also update our messages on the harms caused by cannabis; look at providing more advice on the health risks and where to get help through NHS Direct, NHS Choices, the smoking helpline, Drinkline and other public information points; publish a report on the health risks associated with smoking cannabis and tobacco and, where appropriate, include advice on cannabis misuse in NHS smoking cessation services; and seek the advice of the four UK chief medical officers on what more needs to be done to reduce the risks to public health.

“My decision to reclassify cannabis is part of the relentless drive to tackle drugs and the harm that they bring to families and communities and I will seek to do so by the end of the year. This is the right action to protect the public, particularly the future health of young people and the most vulnerable”.

My Lords, that concludes the Statement.

My Lords, I thank the Minister for repeating the Statement made by the Home Secretary in the other place earlier today. The correction of the wrong that this Statement represents is long overdue. I make it clear from the outset that we support the reclassification of cannabis as a class B drug, with the appropriate legal penalties that this now brings with it. Many people would now agree that the Government made a serious error of judgment in downgrading cannabis in 2004.

With the Statement, the Prime Minister and the Home Secretary—I think that it is both of them—have overridden the advice of the Advisory Council on the Misuse of Drugs. The council’s recommendation was very clear that the matter should be left for at least a year for further consideration, but I think that the decision that has been made is correct. We fully support that action.

Whatever is said on this subject, parents of children who start taking cannabis, magistrates’ courts—I declare an interest as a magistrate—which see the result of theft and muggings by drug abusers, most of whom started their drug careers on cannabis and who carry out those activities to support their habit, and the general public all see the baleful effects that this drug has on those who take it habitually.

As the Minister said, the potency of the drug has increased substantially and pure cannabis has been replaced by the stronger, adulterated skunk. Anecdotally, at least, young people are driven to crime by their desire to have it and much of the increase in violent crime has as its genesis drug-taking of some sort. We have seen too much of that in the recent months and days, particularly with the recent death of the young boy in London.

Reducing cannabis from class B to class C gave out all the wrong messages. It suggested that cannabis was a soft drug and that it was relatively harmless. However, cannabis is recognised as a real threat to health, as the advisory council acknowledges. In susceptible people it has an effect on either or both their physical or mental health. It also reduces inhibition. Most important of all, its downgrading gave the message that it could be taken without fear of retribution. That meant that the police by and large gave up stopping people taking it in public and so achieved some of their other targets. They did that by issuing warnings rather than arresting those in possession of small amounts. Even the Association of Chief Police Officers, which initially supported the downgrading, announced in 2007 that it supported reclassification, as the current position was leading to confusion about the drug’s legal status.

The immediate impact of upgrading cannabis is to put it on a par with drugs such as amphetamines. For those arrested, the possible judicial penalties are substantially increased from a maximum of two to five years in prison. Fines and other penalties also rise proportionately. The offence has moved—rightly in our view—to become much more serious.

I am glad to hear that the Government will ensure that enforcement by the police will take place and that there will be a review of the value of cannabis warnings. There was an alarming report in the press a short while ago that suggested that some police forces might simply ignore the reclassification and carry on as they have done since 2004, treating cannabis possession as a very minor offence. It is not, and will not be, appropriate for it to be treated as such. I would like an assurance from the Minister that the police will be required to take the upgrading seriously and to deal with it appropriately. I know that that is what the Home Secretary has said, but we need a stark indication that that will happen.

Will the Minister tell us when the proposals developed by the police and criminal justice partners, to which he referred, will be ready? There is a nasty tendency for these things to be initiated and then never to be seen again. They vanish into the ether. This cannot be allowed to happen. I hope that a timescale will be set by which the proposals will have to be on the Home Secretary’s desk and be implemented.

Will the Minister also tell us what educational programmes will now be developed? Young children need to be taught about the dangers of starting on drugs and how to prevent drugs becoming part of their social life and they need to be taught that drugs will lead them into trouble. This must be done either in school or in educational establishments, but there is a responsibility on teachers and parents not to duck the issue. Having advice available through organisations associated with health, as outlined in the Statement, may be a useful adjunct, but it is not a replacement for preventive education.

The mostly young people whose lives and health are effectively ruined by the activities of those who provide, push and sell cannabis need to be protected from the drug and its suppliers. Sustained and firm action will be required to ensure that those involved are stopped and that their lines to the drug are severed. This Government failed parents, children, young people and the vulnerable by the message that they gave in declassifying this nasty drug. As they reclassify it, they need to give out an equally strong message that they will not weaken again in the fight to ensure that our younger generation grows up untainted by drugs.

My Lords, I thank the Minister for repeating the Statement made in the other place. It will come as no surprise to him that these Benches do not support the reclassification, particularly in the light of the fact that cannabis use has fallen, as he said, by 20 per cent since the then Home Secretary, David Blunkett, chose to reclassify it. It is particularly depressing that this reclassification goes against the advice of the Advisory Council on the Misuse of Drugs.

We welcome the fact that the Government have accepted the other recommendations in the report. The report contains particularly important recommendations on action on cannabis farms, organised criminals and enforcement around schools. However, the classification was supposed to reflect the harm incurred. The Government’s expert committee has given its opinion on the harm incurred. If there is one thing that young people understand, it is honesty and dishonesty in a message. It is critical to be honest to get the message through about the harm that drugs do. If the Government have been advised that this should remain a class C drug, it ill behoves politicians to fly in the face of that advice.

Now that the Government propose reclassification, what do they expect the result to be? What are their expectations regarding whether usage will continue to fall? What target have they set for the next two years? The Government argue that skunk is stronger, but the advisory council took that into account.

These Benches very much regret that this Statement is again one that has emanated from the Home Office. We would have preferred it to have come from the Department of Health, because this is basically a health and education issue. The Home Secretary says that her decision takes into account issues such as public perception and the needs of and consequences for policing priorities. However, we believe that the Government have placed the emphasis in the wrong place. This is really a health and education issue and should be a Home Office issue only when that approach has failed.

These Benches certainly do not deny the serious links that arise for a minority of people between the use of cannabis or skunk and psychotic mental health. That is a serious issue, which we do not underplay. The noble Baroness, Lady Finlay of Llandaff, made some interesting points about the whole question of addiction and brain function when we debated the issue previously. I am glad to see that she is present and will no doubt contribute to this debate. This is not a well understood area. Given that cannabis use is falling and that reclassification enabled the issue to be presented honestly to young people, the Government would have done better to continue on that course.

A couple of years ago, Tom Wood, then the drugs tsar for Scotland and a former deputy chief constable, said that the time for enforcement had passed and that we had to make education the number one priority. How right he was. I regret that the Government are taking a backward step, although I recognise that the Minister placed some emphasis on education.

Can the Minister tell me how many drug treatment places are available and how many are planned to satisfy the increased need in the next two years that will result from the action that we are discussing? I am sure that he is well aware that a drug treatment place costs at least £4,000 a year less than a prison place. If the course set out in the Statement is followed, it will inevitably result in far more people going to prison on account of cannabis use. That is not a good use of taxpayers’ money, which should be spent rather on education and health measures. How many people are in prison for drug offences? If just one in 10 went to a residential centre instead, we would save some £40 million a year.

At the end of the day, this is not just about saving money; it is about ensuring that the health and mental health of the nation are not adversely affected and that organised criminals do not profit from a trade that should not take place. We feel that the Government have taken a retrograde step. We shall scrutinise the orders closely.

My Lords, I am grateful to the noble Baroness, Lady Hanham, for her support for the move to change the classification of cannabis. She spoke very passionately about the damage and harm that drugs do to our society, and I agree with her. I think that all of us agree with that. There is no doubt that drugs affect a lot of young people. Equally, there is no doubt that the new variant of skunk has a huge impact. I know from my children and from their friends that there has been a tendency for people to smoke. I think that I am one of the few people who seems never to have had a puff of one of these things; it is amazing how many people have done. A friend of one of my sons has been appallingly affected by this. That is not unusual; all of us probably know friends and families who have been affected by this sort of thing.

I do not like talk of U-turns and changes. There was a lot of debate when we downgraded the drug, and a lot of advice was given. Skunk was not as prevalent at that stage. One was trying to see whether that would make a difference and help us in moving forward. Now we have looked at the evidence, and we have seen how much skunk is on the streets. There is a lot of doubt about what the scientific evidence is, but a lot of people feel that it has an impact. We all have personal examples of where this has damaged families and young people. It is very important that we revise these things and to send out the message of what impact this is having on society.

The noble Baroness asked whether we will make absolutely certain that the police will take this seriously and upgrade how they tackle such crimes. The answer is absolutely yes. The Home Secretary has written to ACPO and we are looking for something by the end of June. We need to take some action in this area, because it is extremely damaging.

Regarding the additional work that needs to be done as well as penalties, the noble Baronesses, Lady Miller and Lady Hanham, both touched on that. It is not just a question of punishment. We need a mass of other things that will enable us to educate people and move them away from using drugs. The noble Baroness, Lady Miller, spoke about that at length, and it is absolutely right. We have a good story to tell.

Spending on Frank was about £6.5 million last year, and we are spending in excess of £5 million this year. There was a reduction because of our previous investment. That has achieved a great deal. There is a lot of communication to people who are at risk and a series of adverts. I have seen only one or two of them because I became aware of them, but they are not really aimed at people like us—they are aimed at the people who might be using drugs. It is known as the “brain warehouse”. I do not know whether any noble Lords have seen the adverts. They have hit the mark; 69 per cent of youngsters in the 13 to 18 year-old bracket, which we want to reach, are aware of what this means. The slogan is, “With stronger strains than ever before, the more you mess with cannabis the more it can mess with your mind”. They are aware of that message, and it is a good message to get across.

We are also involved with parents. We tell them how to get hold of access lines and how to talk to us. There is a 24-hour helpline and a number of areas where they can talk to non-government organisations that provide information and support to parents, such as DrugScope, Re-Solv, the Children’s Society and Adfam. There is a whole raft of such organisations. It is right that we should do those things, because at the end of the day one cannot just punish one’s way out of this; it is much more than that. The two things are complementary. It is right to get the message across about how dangerous and damaging cannabis is.

The issue of paraphernalia is important. In some shops there are all sorts of things making out that this is smart, clever and a rather trendy thing to do. We need to point out that it is not smart and trendy; it is breaking the law, it wrecks families and wrecks lives. Those are the messages that we need to get across. It is not a smart, clever thing to do. It is not at all the drug that was used 40 or 50 years ago in flower power times; it must be that long ago now. Skunk is lethal stuff; it is seriously damaging. It is very, very strong indeed.

The noble Baroness, Lady Miller, asked how we can make this judgment when we have advice that we should leave it in its current category. It is only an advisory council. In the Statement, the Home Secretary explained why this was done. It is interesting that the police are firmly behind this. On the “Today” programme, Ian Johnston of the Police Superintendents’ Association talked about the report that had been given by the council. He said that the report says that they do not look at the impact on policing and that evidence from superintendents up and down the country is that cannabis is causing immense harm to society. He said that reclassifying it would help build a better and safer society and hoped that the Government would show political leadership and say that they believe that cannabis is harmful and that the police should take a stronger line. If that is the view of the police and of 59 per cent of the population who believe that we should do this, it is important that we take notice. I am pleased that the noble Baroness, Lady Hanham, spoke so passionately in support of this. I quite understand where the noble Baroness, Lady Miller, is coming from, but I believe that she is wrong in this case. I think that this move was the right thing to do.

My Lords, first, I thank the Minister for repeating the Statement. I declare an interest as a member of one of the technical sub-committees of the Advisory Council on the Misuse of Drugs, and I am a member of the UK Drug Policy Commission.

My concern relates to the fact that the Government have not listened to the plea to hold off for another year to look more closely at the evidence and the implications that there may be in rejecting scientific evidence and the politicisation of such an issue. As the noble Baroness, Lady Miller of Chilthorne Domer, clearly stated, there is not evidence that consumption has risen since the downgrading, nor is there evidence of an increase in the incidence of schizophrenia. No one underestimates the complete disaster that schizophrenia is, but there is no evidence that the classification will stop those who are at risk of schizophrenia consuming the drug, or that it will stop them developing schizophrenia.

The classification does not affect supply; it is a sentencing guideline. It was created in 1971 as a simple framework for sentencing. There is now a risk of it becoming discredited by political factors and of false expectations being pinned on the benefits of this so-called reclassification. The downgrading that occurred was portrayed in the media as giving a message of harmlessness; I want to be quite clear that there was never a message from ACMD that the downgrading was harmless. It related to the sentencing guidelines going from five years maximum to two years maximum.

The classification was never intended to send a message to young people, and both domestic and international evidence suggests that it is a poor vehicle to do so. The ACMD advised that the strategies designed to minimise use and harms must be predominantly public health ones and not based on criminal justice measures. I will quote a sentence from the letter at the beginning of the report from Professor Sir Michael Rawlins:

“In providing this advice … the Council wishes to emphasise that the use of cannabis is a significant public health issue. Cannabis can unquestionably cause harm to individuals and society”.

There are comparisons to be drawn in other areas of policy where the Government have been bold and devolved decision-making to independent experts. I hope that the Government will adopt all the other recommendations in full, including supporting research.

There is also a need to improve mental health services for young people, because there are young people who are developing mental health symptoms—

My Lords, I am reluctant to intervene, but I remind the House that this part of the debate following the Statement is for questions for elucidation, not for statements and debate.

My Lords, I apologise to the House. Does the Minister intend to increase the mental health services that are available to young people? There is evidence that young people self-medicate using cannabis. If further evidence comes forward that the reclassification has not made any difference at all, what will the Government do?

My Lords, I thank the noble Baroness, Lady Finlay, for her comments. She spoke about holding off for another year and about politicisation. I do not think that this is politicisation of the issue. The Home Secretary said in the other place that she was not prepared to wait another year and gamble with young people’s health. That is a very good reason for our move. It is far better to make the mistake in that way and not gamble with young people’s health.

As the noble Baroness said quite correctly, we can look at this as time goes on. We need to look at these issues to see how things are moving and what we are achieving. Then there might be a possibility of changing where we have gone; but, at the moment, I am absolutely sure that it was right not to gamble with young people. It was right to make this decision and to make sure that the police are well able to conduct the things that they need to do to enforce it—and to make sure that all the other supportive measures are in place because that is the way, finally, for people who have a drug habit to break out of their dependency .

Perhaps I may get back to the noble Baroness in writing on her question on mental health services for young people, as I do not have an answer.

My Lords, is my noble friend aware that in 2004 the Statement made on behalf of Her Majesty's Government did not receive universal support on this side of the House; but I am not going to criticise the Government for changing their mind. It is a sign of strength, rather than weakness to change your mind when you are so clearly wrong. I just regret the fact that it took four years to get around to making the right decision.

I have one or two specific questions to ask my noble friend. The Statement talks at some length about the massive growth in the commercial cultivation of cannabis in the United Kingdom. It talks about knowing about these cannabis farms that are controlled by organised criminals who stand to make large profits and will stoop to using trafficked children on these premises. If we have so much knowledge about such patently criminal activities, can we have some detail about what to date has taken place in terms of prosecuting those activities and what level of success there has been? How many of those organised farms have been raided by the police? How many perpetrators of illegal cultivation have been arrested? How many have been brought to justice and with what effect? I note from the Statement that my right honourable friend the Home Secretary is today writing to the chief executives of the six largest energy suppliers about the illegal abstraction of electricity to fuel these farms. If we have enough evidence today, coincidental with the Statement, to be writing, what have we done historically in relation to that illegal abstraction?

There is more joy in heaven over the repentant sinner than the one who does not require repentance, but some of the repentance would be better accepted if we had a little empirical evidence to back up the claims of the Statement on knowledge of criminal activity.

My Lords, I thank my noble friend Lord Tomlinson for his comments. I entirely agree with him about changing minds. There seems to be a great focus on U-turns. I feel slightly scarred by that. Although there are shouts of “U-turn!”, it seems logical that we should look at things closely and then make a judgment based on that. If that judgment has changed slightly—if it is better for the nation and one’s people—then it is best to carry that out.

I do not have exact details on cannabis farming, but I understand that more than 2,000 cannabis farms have been raided and shut down, and people have been charged. I am sure that noble Lords have read in the newspapers about ordinary houses that were found to have been stripped out entirely, with rows and rows of cannabis plants growing—not that I know that much about cannabis, I hasten to add. Little did I know some four years ago, when I was in command of a naval battle group, that I would be talking about cannabis on the Floor of the House.

Growing cannabis demands heat and a lot of power. We found that the places that we raided had high electricity readings if the power had been taken off the grid properly and charged for. The Home Secretary has decided that we need to look at whether there are extremely high power demands in any region and that might be act as a focus for us to find more farms. I understand that that is being done. Equally, a lot of these people had bypassed the normal power supply lines and were taking power directly from the grid, so that there was no way of monitoring that power through their bills. We are asking energy companies to see if there is a way of identifying where power is being drawn off, because that could help us. I hope that that answers my noble friend’s question.

My Lords, will the noble Lord accept from me that there is no place here for triumphalism about U-turns? The Government were on the wrong course and, as he as a mariner would know, if you are on the wrong course it is best to turn around and go back. I congratulate the Government on that.

Secondly, I hope that, through the appropriate channels, the attention of the judiciary will be drawn to the fact that this new policy is widely endorsed on both sides of the House by both of the parties that matter. Therefore, perhaps the judiciary might take note of that.

Thirdly, does the Minister not agree that, while the Government are right to listen to advice—and we are all right to do that—they are responsible for initiating policy and Parliament has the responsibility for endorsing or repudiating that policy? It is not the business of advisers to take decisions. They should be thanked for their advice and reminded of that.

Finally, will the Minister ask his colleagues in the Home Office to look at the article in the Los Angeles Times on 30 March by the American commentator James Q. Wilson? He drew attention to what appears to be a highly successful drug rehabilitation programme, slightly unorthodox by our standards, which for some time now has been carried out in Hawaii. It might have some good lessons for us.

My Lords, I thank the noble Lord, Lord Tebbit, for his useful points. He is right that we need to point out to the judiciary that the key parties feel very strongly about this issue. I will make sure that that happens through the proper channels.

In terms of listening to advice, the noble Lord is again absolutely right. Advisory groups and advisory panels are there to give advice and they are very useful at times. Indeed, a lot of their advice is superb. On this occasion, all of the advice has been accepted, except on one thing. But such groups are advisory and in the final analysis have no responsibility for anything. The Government then correctly have to take the initiative and it is for Parliament then to decide. That is the way that things should be done; and that is what I hope will happen in this case, because Parliament will finally be asked to agree to the recategorisation.

I have not seen the Los Angeles Times article. We will certainly look at that, because we do not have answers to all these issues. We have a long way to go in many areas and should use anything that is useful and is seen to be useful. I am particularly willing to go to Hawaii to check out the rehabilitation programme.

My Lords, does the Minister accept that, while of course the Government are lawfully entitled not to accept the main recommendation of the advisory committee, nevertheless there is a high moral obligation on them to justify taking a different course? Will he give urgent thought to the two sides of this question? On the one hand, of course, cannabis has immense dangers for those using it and has a close link with very serious crime. On the other hand, hundreds of thousands of young people who otherwise have entirely decent habits and attitudes go through a phase in life where it seems almost to be a part of growing up to have a few puffs, as the Minister has said. It would be a grave tragedy if hundreds of thousands of young people were brought into the criminal system in that way.

Will the noble Lord give urgent thought to examining what happened some 40 years ago when the Wootton report was considered in both Houses? I declare an interest as a Minister in the Home Office in those days. It was decided not to decriminalise cannabis but to make it absolutely clear that young persons would not be sent to prison for simple possession unless they showed complete and open defiance of authority. It might be difficult now, with legislation, to go along that path of 40 years ago, but will the Minister consider the two dangers and the fact that somehow or other the Government have to avoid both if possible?

My Lords, I agree with the noble Lord, Lord Elystan-Morgan. This has to be done with discretion and with a certain amount of sense, and we need to avoid any ratcheting-up of the situation. There is no intention whatever that the rather foolish young person aged 18 who is caught having one puff on a joint will be given five years in prison. However, there are some people whom I jolly well would like to put away when they are in possession of a lot of this stuff, even though they are not meant to be supplying it. When they have been caught and warned, and that has happened again and again, I have no doubt that it is absolutely right that the full weight of the law should be brought against them.

We talk about people having one little puff but I am afraid that that is now far more dangerous with skunk. The drug is not what it used to be, and that is one of the problems. People sometimes talk about it being no worse than alcohol but we have to put it in context. Over the past month, something like one and a half million people will probably have had a puff of a joint and something like 42 million people will have had a drink. One has to bear that in mind and get these things into perspective. However, the noble Lord is absolutely right: this is something that we have to think about. However, there is a balance to be struck and discretion has to be applied. The police have made it very clear that they will do that but they have to be told that this is a serious matter. We certainly take it very seriously.

My Lords, after we have seen what happens in practice after perhaps two years, will the Government agree to issue a report on how the reclassification is working and consider the alternative? In other words, I am asking for a very full report on the whole issue.

My Lords, I am not quite clear what the noble Lord, Lord Clinton-Davis, is asking. As I understand it, he is asking for this matter to be reviewed in about two years’ time. Rather than formalise that, I can say that we will keep looking at this issue, as we have been doing. That is why we have now decided that we should recategorise cannabis. I do not think that I could commit the Government to a formal report but we will constantly monitor the situation and see where we are going. As I said, I believe that the criminalising aspect is important to show how serious the matter is and that we take it very seriously. However, education and the other methods that we employ are the ways to resolve the problems of people getting into the drug culture.

My Lords, the Minister will not be aware of this but when the announcement by the noble Lord, Lord Hunt of Kings Heath, was made, I said how unwise it would be to downgrade strong cannabis. It is all written down in Hansard. Perhaps this Statement will encourage more research into cannabis and the triggering of schizophrenia. This is a serious matter and I hope that the Minister will set that research in motion.

My Lords, the noble Baroness raises a very important point. The situation is very difficult at the moment because the scientific evidence is not at all clear. As I said, my right honourable friend in the other place is absolutely right not to take a risk with our young people but, equally, there is a difficult balance to be struck. The scientific evidence is not at all clear and we do not know some of the details. It is therefore essential that more research is done. I am afraid that I do not know exactly what has to be put in hand for that to happen but I believe it is essential that it does happen.

Perhaps I may get back to the noble Baroness in writing. I think that we need to do more research to ensure that we know all the answers. I fear that some of them will take some time because the impact of things such as smoking skunk takes a rather long time to come out. With the more mild variants, the question that always used to be asked was: how do you know whether someone is taking too many drugs? The answer was: if you had a wheelbarrow-load of money at the top of a hill and an armchair half way up, the chap who was smoking cannabis would sit in the armchair and think about it, whereas other people would go and get the money. Skunk is very different; it has a huge impact on people. It is not just the benign substance that people thought cannabis was years ago. It is very harmful and, as I said, it destroys families and lives. It has a huge impact on our quality of life.

My Lords, in 2004 I spoke passionately about the downgrading of cannabis, and the very reasons that I gave are in the report today. Mothers, teachers and other people who have control of young people will be delighted that the Government have reconsidered this matter. It is suggested that there has been a decrease in the taking of cannabis, but we have not been vigilant and we do not know the figures. There are mothers in this country today who spent pounds and pounds on their children’s education. Those children come out of college addicted to this drug. Will the Minister congratulate the Home Secretary on taking this bold step? We cannot afford to be liberal. The killing of young black men by other young black men has its roots in the drug trade.

My Lords, I thank my noble friend Lady Howells for her interjection: she has expressed matters much more eloquently than I could have done. This drug has a huge impact on many lives and I think that the Home Secretary made absolutely the right decision. I shall certainly pass on my noble friend’s congratulations to my right honourable friend in the other place. My noble friend is absolutely right: some of the figures relating to a reduction in use and so on came about due to the drug’s reclassification. They did not mean that fewer people were smoking the drug but were due to the fact that we had reclassified it to class C. Therefore, the statistics did not reflect how it was being used, and that was a very dangerous situation.

My Lords, unless any noble Lord objects, I beg to move that the Report stage of the Child Maintenance and Other Payments Bill be postponed until after the Question for Short Debate.

Moved accordingly, and, on Question, Motion agreed to.

asked Her Majesty’s Government what action they will take to mitigate the constraints placed upon owners of listed places of entertainment seeking to provide modern facilities for customers and to satisfy contemporary artistic demands.

The noble Lord said: My Lords, first, I declare an interest as an owner of theatres in London and also as a composer who uses theatres.

In drawing attention to the problems facing the owners of places of entertainment, I totally admit that I do not know the answers to the questions that I am about to raise. My hope today is to draw attention to our ageing commercial theatre stock and, by doing so, to stimulate a serious discussion about the way forward for this country’s mainly Victorian and Edwardian commercial theatres. I must declare my other interest: I am passionate about architecture and I think that my love of Victorian art is quite well known. Therefore, some of the things that I am about to say sit extremely uneasily with me, especially as, when I was a boy, I was one of those who lay down in the street demonstrating against the shameful demolition of the St James’s Theatre. However, I must say these things.

First, I should like to quote from that tireless advocate of all things Victorian, Sir John Betjeman. In his First and Last Loves, he begins his chapter on the architecture of entertainment thus:

“If there is one word which safely can be applied to the constructions for entertainment it is the adjective impermanent”.

He goes on a little mischievously to compare theatres and concert halls to churches, but concludes that, while churches are built to last, places of entertainment are not. Sir John’s point is that taste, fashion and style of production change and that buildings constructed for entertainment must, by definition, be replaced or altered as entertainment itself evolves, although the controversial old rogue does add that, as fashion changes, new and more hideous structures arrive on the sites of older buildings as we continue to slide into deeper depths of barbarism. However, today, some of those barbarisms are listed.

Sir John is right that the architecture of entertainment is impermanent, but he could not have seen other developments that call into question the suitability of some of our older buildings for present-day theatrical use—or indeed any use. When the stock of theatre buildings was constructed times were very different from ours in a whole series of ways. People were physically smaller; there was less demand for bars and lavatories; it was assumed that the wealthy expected to be segregated from the hoi polloi in terms of auditorium ingress and egress; no one gave any thought to access for disabled people; and, for a significant number of patrons, being seen was far more important than being able to see what was on stage. We need only think about most 19th century opera houses. Backstage, dressing rooms for non-star names were cramped, poorly located and without showers. Technical capacities were severely limited by current standards in terms of lighting, sound and stage machinery. The modern audience, performer and artistic teams today all expect modern facilities. Decent sight lines are paramount today—nobody wants to sit behind a pillar all evening.

Ownership of a listed building imposes on the owner a kind of involuntary trusteeship of what is deemed to be part of our national heritage, but buildings that are in living contemporary use surely cannot be treated as if they are museum assets. English Heritage is reasonably flexible in its demands when listed buildings are refurbished, but the demands are there and meeting them can be very costly indeed. A substantial part of the cost of the recent refurbishment of buildings such as the Royal Festival Hall, the Coliseum and the Royal Opera House was the cost of maintaining the heritage aspects of the buildings. We are talking about many, many millions of pounds, not the odd hundred thousand. For example, to install the air conditioning that is badly needed in the Theatre Royal Drury Lane would cost in the region of £15 million. Were it not to be a grade 1 listed building, the figure would be about £1 million to £2 million. The reason is that the Theatre Royal Drury Lane has no cavities in its walls in which air conditioning can be installed. The listing requirement means that every internal wall of the building would have to be taken down, a cavity for air conditioning created, and the wall rebuilt exactly as it was originally constructed.

The difficulty for commercial theatre owners is that this expenditure yields no economic benefit in terms of the operational viability of their buildings. Not one more seat becomes available for sale as a result. Indeed, improving the audience experience while retaining the architectural qualities of the building normally means losing seats, which commercial theatres can ill afford to do.

May I introduce to the debate by way of example one London theatre I intimately know and love, if not adore, the Palace Theatre. My company bought the theatre in the mid-1980s. It was in a shocking state. Its main terracotta facade was covered with a huge neon advertising sign that dominated Cambridge Circus. All its statues had been removed. Its glorious marble front of house and its extraordinary auditorium had been covered in surplus paint from one of the old railway companies at a time when appreciation of high Victorian art was at its lowest. I remembered what Sir John Betjeman had written in the same chapter of First and Last Loves that I quoted from, in which he opined that the architecture of entertainment was by definition impermanent. He wrote:

“The noblest surviving building in my opinion more impressive within and without than Covent Garden—is the Royal English Opera House … This is on an irregularly shaped island site. Its main façade on Cambridge Circus is concave and the awkwardness of the corners of such a façade is overcome by graceful octagonal turrets … The three tiers of galleries are cantilevered out—a revolution at the time—so that no columns obstruct the view of the audience. The decoration throughout is scholarly Flemish Renaissance. Nothing is skimped and the entrance hall and staircases are rich in those contrasting marbles Collcutt”—

that great architect—

“delighted to use … The Palace is the only theatre architecture of the last sixty years in London, or for that matter the provinces, which climbs into the regions of a work of art”.

The theatre was constructed by Richard D’Oyley Carte as an opera house partly to thank his composer Sir Arthur Sullivan. It opened with Sullivan’s serious opera, “Ivanhoe”, which failed almost immediately. After a couple of short seasons, the whole project went belly-up and the Royal English Opera House became the Palace Theatre of Varieties. The Palace’s future is, I hope, completely secure as long as I am around but it is a good example of a building whose long-term situation I seriously worry about. For instance, the terracotta, which was totally restored only 20 years ago, now needs to be completely renovated again at a cost which will wipe out any profit that the theatre has made over the past few years.

The Palace has only 1,416 seats. If all those seats were great, it would be a wonderful medium-scale musical or opera house, but they are not. Three hundred and seventeen of them are in one of the most vertiginous balconies in theatreland today and very hard to see from or to sell. They are cramped and impossible to reseat due to the rake. Thirty-eight seats are in boxes which are great if you want to be looked at rather than watch the show, and 274 seats are considered to be restricted view.

Thus this wonderfully sited musical house has in practice only the number of seats of a large playhouse. Combined with the capital costs of, say, £3 million to £4 million for a production of a scale to fill the building, the running costs of such a production, let alone the cost of maintaining the building, will become extremely unviable as a theatre without public or private subsidy. The Palace is just a tip of the iceberg. Maybe it is an extreme example, but the fundamental problem of the theatre’s difficulty in keeping its head above water in today’s market is replicated on a differing scale all around the country.

Some will say, “What about the Royal Court? Is that not an example of what can be done with an old building?”. Without in any way deprecating the splendid achievements in Sloane Square, I draw attention to the fact that the public funds given to refurbish the Royal Court exceeded the total profit made by the four Shaftesbury Avenue playhouses since the Second World War.

Finally, I share with the House some remarks made by one of our leading and very important stage designers. He said:

“What the theatre needs today is the equivalent of a large warehouse attached to wonderful front of house and backstage facilities preferably in a location with great access by public transport. In that warehouse what you need are basic theatrical facilities like the ability to fly scenery but most of all you need comfortable, flexible seating so that a production can play in the round, in a proscenium shape or whatever a writer, director or artists require”.

I urge noble Lords to understand that I am not proposing the wholesale demolition of London’s West End, nor am I suggesting that the taxpayer is suddenly faced with a huge bill to refurbish our ageing commercial theatre stock. But as someone who has spent more than 40 years professionally involved with musical theatre, I felt that it was time to put my love of theatre architecture to one side and at least draw the attention of Her Majesty’s Government to some of the issues that confront theatre owners and artists as we head for the second decade of the 21st century.

My Lords, I thank the noble Lord, Lord Lloyd-Webber, for drawing our attention to this issue tonight, as well as for his contribution to all of our entertainment. May I just say in passing that I thought Jessie was phenomenal on Saturday night, though my other favourite Nancy was Sarah? Indeed, I have an “Oliver” strand running through my contribution this evening, so, to start: “I’m reviewing the situation”.

London is a world city. Its arts and culture are world-renowned, contributing to the quality of life in the capital. Some recent government policies and uncertain tax treatment have given the impression that London does not welcome foreign nationals and those doing business globally. The arts and culture of London counterbalance that unfortunate impression and keep people in London instead of in offshore tax havens. As Nancy would say:

“If you don’t mind having to go without things,

It’s a fine life”.

I would price the value which London’s theatres provide culturally way beyond their immediate economic benefit. However, at a minimum, London’s theatres make an economic contribution of around £1.5 billion per year.

The contribution of our theatres is threatened by the need to upgrade the building stock to 21st-century standards. As John Osborne wrote in his 1950s play “The Entertainer”:

“Don’t clap too hard. It’s a very old building".

The buildings are even older now.

London is a living city, not a museum. The needs of audiences and artists should be considered hand in hand with the preservation of buildings, which even Dickens may have considered to be of indifferent quality. They were built to stage shows, not to be considered as future heritage. Making them meet 21st-century disability-access, environmental health, fire and evacuation requirements is increasingly difficult. The radical solution, in many cases, would be to delist them and in some cases to demolish them. Owners and developers would then be free to redevelop the sites to include modern performing arts facilities. In a sporting parallel, the Wembley towers were treasured, but the quality of the new stadium far outweighs their loss.

There appear to be two options for the Government: either preserve the current buildings in aspic and subsidise uneconomic refurbishment; or accept that at least some of the buildings need a less purist approach, thus making it commercially viable to improve them. The current stand-off between theatre owners and the Government is profoundly unhelpful, particularly in the run-up to 2012. So, please, Government, can we have some more?

The prospect of the Olympics turning the limelight directly on to London offers a fresh opportunity to find solutions. If, on the other hand, the Government are unwilling to help the owners by reviewing the listing of theatres, then they need to look at the options to subsidise them to make up for their decision. Some five years ago, the Theatres Trust published a compelling report appropriately entitled Act Now. After five years of silence, perhaps it should be called “Act Then”. It called for an investment of £250 million at 2003 prices to be spent over a 15-year period to raise the quality of theatre buildings. That is roughly £20 million a year, a tiny amount of money considering the benefits they bring.

With the Olympics only four years away, there is an imperative to “act now”. Could we not find £80 million from the roundings of the Olympic budget to make an investment which would leave a very manifest and achievable legacy for the UK? There are many ways for the Minister to help. He could, perhaps,

“pick a pocket or two”,

from his government colleagues—for example, using VAT receipts from theatre ticket sales to help kick-start a refurbishment fund. Or we could leave the situation as it is. I could say:

“Oom pa pa, oom pa pa, that's how it goes … They all suppose what they want to suppose”.

Instead I call on the Minister to enter into constructive engagement with the theatre owners and then, if he does not mind me saying so, he could:

“Consider yourself

One of us”.

My Lords, nobody is better placed or equipped to introduce a debate relating to theatres than my noble friend Lord Lloyd-Webber. It has been made quite clear that his experience and background goes well beyond the West End. I have absolutely no difficulty in endorsing everything that he said. Indeed, I listened entranced to his comments about the various theatres which he so clearly loves—in particular, perhaps, the Palace. The difficulties for all historic buildings which are open to the public, of both conserving and, simultaneously, updating them, are nowhere more evident than in the theatres he described.

The starting point of this debate is the value and importance of the London theatres to the image of London as a world-renowned centre of culture and entertainment and a vital part of our tourist industry, as the noble Baroness, Lady Valentine, has pointed out. Looking forward, I can also see that the objective of an Olympiad of culture alongside the Olympic Games also gives the opportunity for fresh thought and action to preserve and extend the value of what we have so fortunately inherited.

Clearly, London’s monuments, museums, art galleries, opera, ballet and theatres all have to be included in the concept of an Olympiad of culture, but this debate gives us the opportunity to focus on the theatre and a specific issue: how best to modernise buildings and tie in health and safety requirements and regulation, as well as additional comfort, with the planning constraints on listed buildings. I thank my noble friend for giving us this opportunity.

Nevertheless, apart from my noble friend Lord Lloyd-Webber himself, a great champion, others’ voices can be heard. Kevin Spacey is doing a terrific job at the Old Vic. Also, organisations such as English Heritage are very much involved. I understand that it is currently funding work on a publication designed to provide clear and consistent advice to those engaged in making physical changes to the heritage assets we are talking about. The need to balance the special architectural and historic interests of listed theatres with expectations and standards which, as has been said, are very different today from when the majority of theatres were constructed, is evident. The effect of this consideration has been seen in major projects such as the Royal Albert Hall and the London Coliseum, but I understand that English Heritage also devotes considerable resources to more modest projects, such as the sub-division of the Whitehall Theatre and the restoration of both the Theatre Royal and the Savoy Theatre. So three cheers for English Heritage—as well as the Theatres Trust, which has a statutory role in promoting the better protection of theatres on behalf of the nation and does much valuable work.

However, the issue on which I once again press the Government is value added tax. It seems absurd that new build is exempted from VAT—or zero-rated—but the maintenance and restoration of beautiful and historic buildings is not. Can the Minister give us any hope on this? Before I am told that it is a matter for Brussels and not the Treasury, I recently visited the Teatro Olimpico in Vicenza and, somehow or other, the Italian Government seem to get around the rule, if there is one. Indeed, the Government have provided a partial exemption for historic churches, so why not for historic theatres too?

Further, can the Minister give any indication of whether the Government’s Heritage Protection Bill, which has just been published and is currently undergoing pre-legislative scrutiny, will contain any provisions to help the owners of historic theatres to overcome some of the difficulties that we have heard about, and provide modern facilities, both for theatre-goers and the actors and artists who give us so much pleasure and entertainment? I look forward to the Minister’s reply.

My Lords, it is great pleasure to follow the noble Baroness, Lady Hooper, especially as we are usually found together on Latin America; here we are on a domestic issue. Like other speakers, I commend the noble Lord, Lord Lloyd-Webber, for his splendid introduction which really sets the scene. As other speakers have said, nobody knows more about it than him.

The foreword to the excellent Theatres Trust report, to which my noble friend Lady Valentine referred, states:

“Commercial theatre ownership and management is a financially precarious business and relies a lot on huge enthusiasm”.

How right. I speak with feeling, as a former member of a small theatrical investment syndicate. We invested in straight plays—musicals were way above our capitalisation limits. Backers are rightly known colloquially as “angels”; others may well call them “damn fools”. However, in my 30 years in that role, the net result may have been zero but it gave me, as an enthusiast, a feeling of being an theatrical impresario manqué—very manqué, in my case, but a great deal of fun.

A further past interest is that I succeeded my noble friend Lord Rix as a trustee of the Theatre of Comedy, which gradually metamorphosed into the advisory council of the Shaftesbury Theatre. It was a purely honorary role. The Shaftesbury Theatre had to close in 1973 after parts of the ceiling fell in during a performance of “Hair”. The subsequent campaign to save the theatre prevented it from becoming an office block. In light of what has been said, perhaps that was a pity, but there it is. It is on the fringe of the West End and, for many years, actors considered that it had a jinx on it. I am glad to say that the myth is now dead and the current show, “Hairspray”, is a huge success and playing to packed houses.

In the same Theatres Trust report, there is a good section on the economics of theatre ownership. In this context, the Shaftesbury has a special problem in that it is one of the few listed theatres in single ownership and not part of a group. It can hardly carry out major refurbishment and modernisation, so very necessary, when a show is running. Here again there is a problem with the Treasury, which is a becoming a familiar problem to the noble Lord, Lord Davies, who will reply, who hears about this at regular intervals from all of us. The theatre has to pay tax on the annual profits, and there is no provision to accumulate them to have them ready at the end of a run. There needs to be some sort of offset arrangement to make the necessary provision. Meanwhile, it also pays large business rates to the local council. Although I have used the Shaftesbury Theatre as an example, this problem applies to any listed theatre in single ownership throughout the country and to some groups, especially the smaller ones. One obvious answer is to delist, as has been mentioned, but I hope the Minister will have something to say about the tax possibilities and what we can do.

My Lords, I join in thanking the noble Lord, Lord Lloyd-Webber, for initiating this debate. I note that according to the draft Heritage Bill that has just been published he will not be the owner of any listed buildings but of registered heritage assets. I am not sure whether he is yet aware of that, and I do not expect the Minister to respond on this occasion about what seems an unnecessary change of term.

Listed places of entertainment are also assets. They are buildings of great architectural merit and a major part of our cultural heritage. Thanks to the talents of people such as the noble Lord, Lord Lloyd-Webber, who fill their stages, they can continue to serve the purpose for which they were built and we, the public, can enjoy that experience. We are lucky that people such as the noble Lord, Lord Lloyd-Webber, have decided to invest not just in productions but also in the fabric of our theatres. As we heard from the noble Baroness, Lady Valentine, theatre produces great economic benefits not just for London but for the whole of the country, but that theatrical success depends on a healthy commercial as well as subsidised sector. In a recent debate in another place, Glenda Jackson MP, another example of talent nurtured here and appreciated across the globe, explained from her unique perspective as an actor and a politician the benefit that theatre brings to society.

“What happens when people go to the theatre? It is quite remarkable. For no reason other than that they think, ‘Oh, I’d like to go and see that tonight’, a large group of strangers decide to go to one theatre on one night of the week. They sit there in the dark, and another group, who are strangers to them, come on into the light. When it is working well, an energy goes from the light into the dark, is reinforced and is sent back. On a really good night, a perfect circle is created. It is a unique and transforming experience”.—[Official Report, Commons, 28/3/07; col. 453WH.]

We all wish to involve greater numbers and a greater variety of people in this perfect circle, but what the noble Lord, Lord Lloyd-Webber, is arguing is that the constraints faced by those involved in the theatre because of the buildings they occupy make that hard to achieve.

At the core of what we are debating so far as planning constraints are concerned is the need for flexibility. The issue is not the listing of these buildings but how to enable them to be transformed adequately to allow modern facilities while keeping their essential nature intact. Part of the value of some theatre-going relates to the ambiance of the old buildings and even, dare I say it, to watching the audience as well as what is on stage. Modern theatre buildings, if listed, face similar problems. The Royal National Theatre has to persuade English Heritage in order to achieve the smallest of changes. Buildings of quality of whatever age must not be frozen in time. The responsible authorities have to adapt their mindset to accept changes.

The draft heritage Bill, which I have already mentioned, recognises this and puts forward the case for the creation of heritage partnership agreements, which will involve partnerships between owners, local authorities and English Heritage. Places of entertainment clearly lend themselves to such partnerships. They will encourage consensus and get rid of repetitive, duplicate consent applications. We on these Benches welcome the idea. We are, however, concerned that where an owner is intent on flouting the listed status of a building, as in the case of the grade 2 listed Derby Hippodrome where one wall has been totally demolished without consent, probably meaning it is too expensive to repair, sanctions are too weak.

However, this debate is not just about the problems encountered in getting permission to change, but also about the problem, which all noble Lords have mentioned, that listed status adds hugely to the cost of change. A DCMS working group set up in 2003 to find a solution to the need identified by the Theatres Trust, as the noble Baroness, Lady Hooper, mentioned, proposed that half the amount required should come from the theatre industry and the rest from Arts Council England, the Heritage Lottery Fund and the London Development Agency. To date, no public bodies have provided funding. A recent report from the Society of London Theatres noted that the working group had made only “stuttering progress” and as at January 2008 had not met in over a year.

The truth is that pressure on public bodies’ funding as a result of the 2012 Olympics and the intrusion into our lives of the credit crunch makes the likelihood of significant public investment more remote now than in 2003, but we cannot allow the situation to remain static for another five years. The recent London Assembly report Restoration Drama—a very good name—suggested that a charitable body could be used to manage investment in renovating these wonderful buildings. It also suggested a levy on tickets, something Cameron Mackintosh has introduced, but tickets are already prohibitively expensive for many. On the other hand, it crossed my mind that the cost of programmes seems to outstrip the cost of producing them, and they are a voluntary purchase. Could the profit on their sale not go towards a restoration fund?

One of the most successful recent fundraising projects was Buy a Brushstroke. The Tate needed £4.95 million to acquire Turner’s “The Blue Rigi” and the Art Fund instituted a brilliant campaign whereby members of the public were invited to buy brushstrokes for £5 each. Alongside the money raised, the campaign achieved a very important thing: a sense among the public of involvement with and ownership of a piece of their cultural heritage. Theatres should think like that. The Rex cinema in Berkhamsted, Hertfordshire is grade 2 listed art deco cinema that was originally opened in 1938. It fell into state of dereliction, and developers moved in. It was saved by a local group which raised money through local loan schemes, sponsored seats, membership and some financing through local business. It is now a thriving enterprise and a boon to the local economy and the local community which has a stake in it.

We on these Benches agree with the noble Baroness, Lady Hooper, and do not believe that historic building repairs should be, as they currently are, subject to full VAT. We propose reducing VAT on conversions and repairs to historic buildings, to be paid for by introducing a new, low VAT rate for new building. Will the Minister consider extending the existing scheme covering memorials and places of worship to these listed places of entertainment?

The Government should re-establish the working group set up to secure investment in theatre buildings. They should, in collaboration with the GLA, the new mayor and the theatre owners, consider the options for West End theatres specifically. There are lots of ideas out there, and what is needed is action. The long-term future of our theatres is an integral part of this country’s cultural heritage.

My Lords, I thank my noble friend Lord Lloyd-Webber for introducing this debate. Like my noble friend Lady Hooper and many other noble Lords, I found his contribution interesting and thought provoking. I must declare an interest as the owner of four scheduled ancient monuments and a number of listed buildings. One of them is a 17th century barn, part of which has been adapted by building a dentist’s surgery, which can easily be dismantled at a future date, within the fabric of the building which fully retains its outward appearance. That is certainly not a use that was originally intended. I mention that only to demonstrate my commitment to the preservation and continued use of listed buildings.

Listening to this debate, my first reaction is that if my noble friend Lord Lloyd-Webber does not know what to do with the large number of buildings no longer suitable for contemporary needs in arts and entertainment, who on earth will? Reflecting on that question, it is easy to fall into the trap of believing that one person or group of people has a monopoly of wisdom. Human beings are adaptable and inventive, and I have no doubt that constructive uses will be found for those buildings—which, having listened to my noble friend, may be uses that have nothing to do with the theatre or entertainment.

Different uses will inevitably compromise the historical and cultural integrity of the buildings in question, so exactly what should be allowed? Except in limited cases, I urge the Minister to assist in reducing the bureaucratic obstacles to the evolution of those buildings, enabling them to have useful lives. The noble Baroness, Lady Bonham-Carter, has already commented on that. That will surely be the best way to ensure their preservation. There is certainly a strong case for keeping some existing theatres, after they have been adapted for modern use, in their historic form, but with the huge cost of modernisation, which has already been referred to this evening, that will be prohibitive except for a limited number.

One returns to the need for a lighter touch and an acceptance that places of entertainment are not static. They are constantly changing and evolving, and must be allowed to do so. As we all know, this Government are no opponent of change, so I trust that the Minister will listen to what he has heard from my noble friend Lord Lloyd-Webber, whose affection, knowledge and passion have been so deeply impressive, and take positive steps to ensure that there is the flexibility required to make those buildings useful in the 21st century.

My Lords, I share in the congratulations for the noble Lord, Lord Lloyd-Webber, on introducing this fascinating topic. I assure him that it fits in beautifully with our discussion yesterday evening about tourism in London. We have virtually the same cast this evening. We are very pleased to have his star attraction in introducing the debate and we welcome the noble Baroness, Lady Bonham-Carter, to the lists as well. Yesterday evening, the rest of us considered the attractiveness of London to visitors and references were made to the theatre. It is right that the noble Lord should seek to address our minds to the problems that theatres face. We all recognise the challenge to the West End.

The Government are committed to the arts, including the theatre. Over the past 10 years, investment in the arts has increased by 73 per cent in real terms, enabling the Arts Council to more than double its funding to theatre. That increased investment has reinvigorated the theatre sector. Recent research from seven of England’s biggest regional producing theatres shows an increase in audience numbers of almost 40 per cent between 2000 and 2005. That does not alter the fact that there are difficulties for the West End theatres, which the noble Lord identified. He was also open to potential solutions, which is to be welcomed.

Let me make the obvious point. Even with the additional funding from lottery and government sources allocated to the arts, we cannot expect those sources to provide everything. Private investment is of course important. It is important that we develop a stronger mixed economy for all aspects of the arts. The more investment goes in, the less dependence there is on public sector funding decisions, which from time to time cause great concern.

The lottery has an important part to play. In the 13 years since it began, the Heritage Lottery Fund has committed more than £205 million to projects that aim to conserve and enhance historic buildings in use or to be converted to use as performing arts venues. Of those awards, more than £79 million has been committed specifically to theatres, of which almost £62 million has gone to theatres in London. The noble Lord said in his opening speech that that is not much more than a drop in the ocean; it is a bit more than that, but it is nevertheless inadequate for the scale of the problems that he identified with our Edwardian and Victorian theatre stock.

I want to address the point raised by almost every noble Lord who spoke in the debate—the noble Baroness, Lady Hooper, raised it first—the question of VAT. We have difficulties with easy acceptance of proposals with regard to VAT. I hear what the noble Baroness says about the Italian position. Perhaps I will get officials to look at that, although not too closely; I am not offering them a free trip to look at that development. However, they can certainly do some analysis of where the resources come from. We are restricted in our use of VAT. Agreements with our European partners—signed, I hasten to add, by successive Governments—do not allow us to extend the scope of existing VAT reliefs or to introduce any new ones. Even if the Government wished to do so, we could not extend the current VAT zero rate for work to listed buildings—for example, to include work to commercial places of entertainment, such as theatres.

We are pressing where we can. That is why there is an attempt to get VAT zero rated or reduced rated for churches. We have not succeeded in that in Europe, but at least that is a project that we can see has the potential for widespread agreement in Europe. The glory of London in its extensive range of theatres is not something that other countries can necessarily respond to. As will be recognised, getting issues through Europe on a consensual model is quite a challenge.

I agree entirely with a point that I think was the burden of the speech of the noble Lord, Lord Lloyd-Webber, but which was emphasised in particular by the noble Baroness, Lady Valentine: we should not look on listed buildings as being preserved in aspic. It is important that any proposals for how we conduct operations for listed buildings in future, which must be based on partnership between the owners and English Heritage and others who can contribute, have an imaginative approach to the actual use to which the buildings can be put. In the draft Heritage Protection Bill, which is subject to pre-legislative scrutiny and will, all being well, be in the Government’s programme for next year, we will see the framework in which we can take forward the consideration of listed buildings on a much greater level of partnership than we have done in the past.

That is not to decry the work of the past. We are all too well aware of the fact that it is easy to throw brickbats at local authorities. Westminster is almost bound to get the first range of brickbats. Yesterday evening, it was criticised about litter in the West End, which we all know is a challenge for the resources devoted to it. This evening, Westminster sits in the centre of this debate because all the West End theatres are in the Westminster area.

We are looking forward to a much more constructive debate in partnership between local authorities, English Heritage and the owners of these buildings so that we can make progress. Some of that, as the noble Lord, Lord Lloyd-Webber, suggested, may mean that one redesigns part of the building to take account of the different use. The noble Baroness, Lady Bonham-Carter, might be right that some people still go to the theatre to be seen rather than to see, so we cannot take away altogether certain aspects of the boxes and so on of theatres. The noble Lord, Lord Lloyd-Webber, is right that the modern discriminating audience wants a decent experience once in the theatre. In too many of our theatres, we rely on tourists being prepared to take some of those seats because they do not know any better. The rest of us who have been pinned in one of those galleries on a hot summer evening and have lived to survive the experience are not likely to renew it quite so enthusiastically.

It is important that we look at ways in which we can modernise the theatres. We have projects across the country. In saying that, we do not have to go too far from the West End to see the refurbishments at the Hackney Empire. Enormous work is also being done on the Shakespeare Memorial Theatre in Stratford. The West End, however, presents a significant challenge. I know that the noble Lord, Lord Lloyd-Webber, wants my response to be much more constructive in terms of hard cash, but I cannot offer that so easily this evening. I can offer him the points that have been made in the debate. I take on board the point made so accurately by the noble Viscount, Lord Montgomery, that single ownership of a theatre presents particular challenges as to how one refurbishes while still keeping a revenue flow from a show that must go on.

I offer the House this. We are well aware of the crisis that faces the West End theatres. We are encouraged by the fact that various actors on the scene are moving much more constructively and we are looking at the reports from the London authorities on the way in which they want to co-operate with theatre owners. As I say, the Westminster authority will play its constructive part. We will, within the framework of our legislation, create an emphasis on partnerships that can give new stimulus and drive to this necessary work. I hope that I can indicate to the House that we cannot within this framework chase fool’s gold. I always welcome it when noble Lords seek to be constructive about resources, because otherwise it always looks from the Dispatch Box as though only the Government are cast in a defensive role. From time to time, we get proposals that are extremely helpful.

The VAT channel is, I fear, largely blocked to us and I suggest that we look to other areas for resources. The Government want to continue their record, which they began when they came into office, of being determined to see increased expenditure on the arts. That was a very important part of the programme in 1997. We have not fulfilled all our ambitions by a long way, but I think that it is recognised that participation in the arts has vastly increased over the past decade. A great deal of that is a reflection of the hunger of people out there for the experience that they can get from all aspects of the arts, including the theatre. I remember when people seemed to think that television would kill off live theatre. Quite the opposite has happened. It is clear from what television produces these days that without live theatre it does not have the actors who can present themselves in quite the way that is wanted in television production.

I am aware that everyone who has contributed to the debate this evening has been extremely constructive. That includes the noble Lord, Lord Howard, who as ever is extremely radical in his approach and indicates to us, probably following his noble friend, that we need to think constructively about some of these theatres. There may be other uses to which they need to be put. At the same time, we must preserve the glory of the West End theatre, which, if I may just reflect on last night’s debate, is appreciated not only by the nation but hugely by tourists who come to London and to the rest of the United Kingdom knowing full well that in London you get some of the greatest theatrical experiences in the world.

moved Amendment No. 1:

My Lords, should this amendment be agreed to, I shall be unable to call Amendments Nos. 2 to 4 inclusive owing to pre-emption.

My Lords, it is very useful to start the Report stage with these amendments. I shall speak only briefly because, as my noble friend will know, I have real reservations about the degree of voluntarism proposed in the Bill and the psychologically flawed view that if you do not pay under a statutory scheme you will somehow pay under a voluntary scheme which by definition becomes discretionary, optional and, in the worst possible case, avoided. The amendments deal with the issue of the commission being encouraged by statute to tilt what should be, at best, a level playing field up towards a voluntary system, with a statutory system only as a default. The amendments would change the position and give equal strength and support to both systems.

We could, equally, do it in a different way. Why cannot we have identical wording in subsection (2)(a) and (b) “to encourage and support the making and keeping by parents” and “to encourage and support the making of applications”? Both paragraphs would read either “encourage and support” or simply “support”, but at least on the face of the Bill they will not push the commission into a position that is full of risk, as I shall show when we come on to the more substantial debate about the repeal of Section 6. The potential losers will be children. It will be win-win for everyone else except the kids.

Is there any reason why the Government should not come back at Third Reading with an amendment to subsection (2)(b) which reads,

“to encourage and support the making”,

so that there is no tilt either way, in one direction or the other?

My Lords, I understand the point the noble Baroness, Lady Hollis, makes about a tilt in one direction or another, but I want to start my few words on the amendment of the noble Lord, Lord Kirkwood, by saying that it is not my practice to come into your Lordships’ House as the announcement of a Bill is made from the Woolsack. I had anticipated—indeed, I was not told any different, although I asked—that an hour for dinner-hour business would be the norm and therefore we would follow that procedure today. Clearly we have not; I was here just in time to hear the noble Lord’s opening remarks, and I am glad of that.

I rather expected that the noble Lord would table Amendment No. 1 so that we could have a fairly extensive debate on the objectives of the commission. He rambled rather wider than that, I have to tell him, but I excuse him for that and I hope the Minister will too. I am not sure that it was entirely necessary, but the noble Lord himself has deemed it so. We are therefore retreading an extensive debate that we had at the opening of Committee.

Given that the noble Lord has allowed these two amendments to be grouped, we ought to take them together. He is proposing to leave Clause 2(1) alone as it stands but to remove the whole of Clause 2(2) and replace it with the words, “to encourage, in particular” and so on, as on the Marshalled List. That would mean that the other two objectives would disappear. The Minister cannot want that.

Regarding Amendment No. 2, we all agree that the child support system is still in a mess, even though I accept, like the noble Lord, Lord Kirkwood, that the operational improvement plan has made it less so in the past few months. None the less, it is your Lordships’ duty to see that the Bill sorts out the problem. I question whether the amendment offers anything better than what is already proposed. I did not read out the whole of the amendment, nor will I do so now, but irrespective of what we mean by “maintenance”, which is the subject of the next group of amendments, surely the noble Lord’s proposal does very little that is new. Both amendments seek to ensure that more children will benefit from child maintenance payments. We all support that; it is the whole objective, first, of the CSA and, secondly, of the Bill and CMEC’s activities. Why it needs to be said twice is, I am afraid, beyond me. Perhaps the noble Lord could explain.

It is the details that I object to. By seeking to turn the clock back to the making of applications for child support maintenance under the Child Support Act 1991, the amendment would hinder the new CMEC from emerging successfully from the mess I have described. The old CSA did not work because it forced the PWC to use the statutory maintenance system. The new CMEC is a response to that, in which the voluntary system is a viable alternative. I am sure that the noble Baroness the Minister—the noble Baroness, Lady Hollis, rather; I am sorry, I am slightly out of date sometimes—is right in saying that the voluntary system could be significantly improved, but it is a major feature of the Bill. I agree with her that the Bill should therefore show no particular prejudice to either system, which the amendment does—there is no shadow of doubt about that.

The statutory system is always open to parents regardless of whether they are in receipt of the jobseeker’s allowance. I am sure the Minister will agree that Amendment No. 2 is potentially harmful to the worthy objectives of the Bill.

My Lords, I agree with noble Lords that our deliberations start in a good place by focusing on how this legislation can be relevant to the most vulnerable. As to the lateness of the hour at which we are considering our business, the noble Lord, Lord Kirkwood, will be aware that I have no influence over the powers that be, but I agree with him that it is right that we should take the time that we need on Report. We had a good Committee stage and should not skimp on time if that is what noble Lords think is necessary.

I apologise to the noble Lord, Lord Skelmersdale, for our rather hurried start. I, too, had anticipated that we would have the full hour of the dinner break before the business was called. I should perhaps have intervened at that stage. I apologise to the noble Lord and was pleased to see him in his place to be able fully to participate.

Before I discuss the detail of the amendments, perhaps I may respond to one or two of the points that the noble Lord, Lord Kirkwood, raised. Substantial progress has been made on the OIP. We could go through the detail of the statistics, but he will be as aware of them as I am. I highlight that, in the period to March 2008, in excess of £1 billion was collected. That is a significant sum and in excess of the target of £970 million. I agree that there is a way to go in terms of maintenance outcomes, but the outcome of 67 per cent was again in excess of the target for that period. Progress is being made.

The noble Lord referred to the build-up of debt. The latest internal CSA figures show that arrears grew by around £10 million per month during 2007-08, which is down from £16 million a month in the previous year and £23 million a month in the year before that. That is another indication of real progress.

The noble Lord quite rightly referred to IT upgrades, as he did in Committee. Another readiness assessment will take place shortly, but the agency is determined to learn from the mistakes of the past and is making sure that it undertakes the additional round of testing necessary to ensure that PR1 is fully effective when it is implemented. Changes proposed in the Bill will not be impacted by any delay to PR1.

The noble Lord referred to the costs of the Ventura contract. The figure of £23 million is indicative and does not represent the final value of the contract. That will be known when the contract is signed. In the mean time, we are working with the supplier to prototype and build the service.

The noble Lord referred also to clerical cases. The increase in the clerical case load is not evidence of any new failure in the IT system but a consequence of the agency’s success in reducing uncleared cases, which masks the number of cases needing clerical process. It is worth noting that 37,000 cases is less than 3 per cent of the total.

Amendment No. 1 would remove the commission’s two subsidiary objectives, leaving it with the single objective of maximising the number of effective maintenance arrangements in place for children who live apart from one or both parents. Amendment No. 2 would add a third subsidiary objective to Clause 2, which would require the commission to encourage parents with care in receipt of income support or jobseeker’s allowance to apply to the statutory maintenance service. The underlining rationale of both amendments is the same and I know is favoured by One Parent Families/Gingerbread, which has discussed it with the DWP.

Both amendments address the concern that, in meeting its duty to “encourage and support” appropriate voluntary arrangements, the commission will fail to support such parents for whom a voluntary arrangement may not be appropriate and thus risk their entirely dropping out of the child maintenance system. It is argued that such a bias would disadvantage those parents with care who are not well equipped with information and knowledge to secure a fair voluntary arrangement for their children or who are at risk of intimidation. To address this concern, Amendment No. 1 would place voluntary and statutory arrangements on an equal footing in statute. This is to ensure, for example, that future boards that have not been involved in drawing up the legislation are none the less clear about their obligations with respect to both types of arrangements, rather than systemically favouring voluntary over statutory arrangements.

Amendment No. 2 would address this concern by adding a third subsidiary objective, which would specifically require the commission to encourage parents with care in receipt of income support or jobseeker’s allowance to apply to the statutory maintenance service. Both amendments are eminently well intentioned, but I hope that I can persuade noble Lords—I can see that the noble Lord, Lord Skelmersdale, is persuaded already—that neither is necessary.

It is true that the Government favour voluntary arrangements when these are appropriate, in both level and type of maintenance. Research shows that such arrangements are the most durable and are associated with higher compliance rates, which is also because they can be tailored to the individual circumstances of both the parents in question. The first subsidiary objective, therefore, requires the commission to encourage and support both parents to make an arrangement that they, not the commission, judge is in the best interests of their child and that is most appropriate to both parents in respect of the level and terms of the arrangement. An appropriate voluntary arrangement must therefore be suitable to the needs of both parents and would, of course, be negotiated in the shadow of the statutory service, the services of which should be widely known and highly functioning to both parents.

There no question of the commission pressuring parents, either explicitly or implicitly, to trial or to attempt a voluntary arrangement before an application is made to the statutory service. The information and support services provided by the commission will support parents to make an effective arrangement. This means that the commission will explain and support the statutory service to parents as part of an overall discussion of their options. Furthermore, placing a requirement on the commission to encourage appropriate voluntary arrangements does not in any way diminish the commission’s duty to support applications to the statutory service.

The second subsidiary objective already requires the commission to support applications to the statutory service. This, incidentally, is one of the main reasons why we do not believe that a third subsidiary objective is necessary. I shall come back to the other reasons shortly. The statutory service is already to be the preferred route when there are imbalances of power between the parents in negotiation—for example, when the parent with care has no knowledge of the non-resident parent’s income, or when there is a history of intimidation in the relationship. However, the statutory service is important as an element in the mix for all separating parents, since, as I said, it provides them with the benchmark on which to base their decisions on child maintenance. As I made clear, support for applications to the statutory service is not to be the default position only when voluntary arrangements cannot be made to work. Rather, statutory arrangements will be the preferred route from the outset for many parents in many circumstances, including those that I have just set out.

My Lords, is the Minister saying that in practice there will be a level playing field because each lone parent, before they make the decision on which route to go—voluntary or statutory—will have not only initiated but received contact from the information and advice service, so that the choice of which route they go down will be an informed one, on the basis of the advice being given by the Government? If so, given that so much of this could be voluntary, how will the Government know how to get hold of these parents?

My Lords, the support and information service cannot guarantee to be in touch with every separating parent. As we discussed in Committee, there will be specific arrangements for parents with care on benefit who come into the system and stay in the system to be encouraged to use the information and support service. If they do not take up that opportunity, there will be a direct approach from the service to those individuals. Those opportunities will arise for those on jobseeker’s allowance, for example, because not only will an individual make an application but there is ongoing contact under the arrangements for the receipt of that benefit, driven through conditionality. Even in relation to people on income support, the claim is refreshed from time to time, generally no less than on an annual basis, so there will be opportunities for those individuals to be specifically targeted by the information and support service. Beyond that, the information and support service will be engaged in a wide range of activities in putting information on the website and in leaflets and in working with arrangements that DCSF is generating to support parents more generally. There will be a whole raft of opportunities.

It is absolutely right that parents with care and non-resident parents should be aware of what the statutory system provides. In due course, they need to be aware that it is effective in delivering as well. I do not diminish the challenges that the service faces, but I believe that there is a robust approach to making sure that the people about whom we are all concerned can genuinely be reached.

More detailed guidance for the commission on its operational parameters will come through non-statutory arrangements, such as the framework document, which is the foundation for relationships between NDPBs and their sponsoring departments, and the commission’s business plan, which the department must approve.

On a more technical drafting note, I can advise the noble Lord that the deletion of the second subsidiary objective would result in the removal of any reference to the requirement to pursue accrued debt in the objectives, a matter that has been of particular concern in your Lordships’ House, certainly in Committee. While removing this reference would not remove the commission’s statutory obligations to secure compliance under the Child Support Act 1991, it would reduce the visibility of this requirement in the primary legislation. To that extent, it would be unhelpful.

Amendment No. 2 would add a third subsidiary objective. As I have outlined, we do not believe that that is necessary, as there is already provision requiring the commission to support statutory applications in Clause 2(2)(b). Furthermore, we do not believe that reintroducing an automatic link between the statutory service and social security benefits should form part of the new child maintenance system’s objectives. I think that the noble Lord, Lord Skelmersdale, was also clear on that.

We recognise that the customers of HMRC and Jobcentre Plus will be an important client group of the statutory service. As I discussed in Grand Committee, the shadow body is working closely with Jobcentre Plus and HMRC to ensure that newly separated parents on both benefits and tax credits can be identified and referred across to the information and support service.

For the reasons that I have outlined, I say to my noble friend that her question has been dealt with. I reiterate that our preference is to have voluntary arrangements where appropriate because we believe that that will be the most effective way of sustaining maintenance arrangements. However, there will be a clear obligation to support applications to the statutory system where that is not the case. It would be difficult logically to have phraseology that encouraged two, in a sense, mutually exclusive circumstances. I believe that we have the right balance. This is about a level playing field; it is not about saying that, where it is not appropriate for people to have voluntary arrangements, they will not be supported into the statutory system.

My Lords, I am reassured to some extent by my noble friend’s helpful remarks. Would he be able to go further, perhaps at Third Reading, and insert in Clause 2(2) after the words,

“supported by the following subsidiary objectives”,

such words as, “following information and advice to encourage and support”? That would lock in the information and advice service before a decision is made and would be, I think, consistent with his position.

My Lords, I am not sure that it would be helpful to put something that specific in the Bill. There is a requirement to operate the information and support service. The commission will have to achieve and report on a whole raft of targets. However, we need to be careful about prescribing precisely how the information and support service will operate before it is established. It is absolutely key that it is a robust service and that it does its job, particularly as regards the most vulnerable parents. It will be tested on that. The annual reporting that is provided for in this legislation will clearly be one route by which we will all be able to judge whether the outcomes that we want are being achieved. If they are not, there is scope to change emphasis and to change resource if necessary. I hope that that has dealt with my noble friend’s query. The noble Lord, Lord Skelmersdale, looks as though he wishes to intervene.