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Lords Chamber

Volume 705: debated on Tuesday 4 November 2008

House of Lords

Tuesday, 4 November 2008.

The House met at half-past two: the LORD SPEAKER on the Woolsack.

Prayers—Read by the Lord Bishop of Chelmsford.

Leave of Absence: The Lord Speaker

My Lords, the President of the Federation Council of the Russian Parliament has invited me to undertake an official visit to the legislature in Moscow prior to the meeting of the Association of European Senates in St Petersburg next week. Accordingly, I seek leave of absence from your Lordships’ House from 12 to 14 November.

Railways

asked Her Majesty’s Government:

What steps they are taking to ensure there is sufficient rolling stock available to the railways to meet demand.

My Lords, we have committed to provide 1,300 additional passenger carriages for the rail network by 2014. Four hundred and twenty-three new carriages have already been ordered. Officials are in commercial discussions with train operating companies to secure the remainder over the agreed period.

My Lords, I thank the Minister for that reply. The rolling stock is urgently needed. It has been the subject of many announcements, but few orders have been placed. Is he aware that the country’s only diesel train production line—Bombardier at Derby—will be closed down if new orders are not forthcoming shortly? There will be a large loss of skilled jobs and much damage will be done to the railway manufacturing industry.

My Lords, as I said, 423 of the 1,300 carriages have been ordered. The carriages are scheduled for completion by 2014, so we have not been slow off the mark. We are looking to place additional orders, although I cannot of course comment about particular companies that might benefit.

My Lords, does the Minister, with his usual fairness, agree with me that the situation with regard to rolling stock can best be described as—I am trying to think of a parliamentary phrase I can use—unsatisfactory in the extreme? I invite him to travel at the earliest possible opportunity on some of those routes that experience the greatest overcrowding—for example, from Cardiff to Portsmouth via Bristol and on the lines north of Manchester.

My Lords, I am well aware—indeed, I travel on some of these lines myself—of the degree of overcrowding and the pressure that there is, which in good part is because of the success of the railways. They are carrying more passenger traffic now than at any time since the late 1940s, so it is a remarkable success story. There are 11,300 rail vehicles in operation, which is an increase of 900 since 1995, so we are seeking to meet the additional demand. As I say, the 1,300 additional vehicles to that 11,300 are in the pipeline. We have ordered more than 400, but I am well aware of the urgency the noble Lord sets out.

My Lords, does my noble friend agree that it was very unsatisfactory last year when many of the trains around the Bristol area were so overcrowded that somebody fainted standing up and there was no room for him to sit down? That was mitigated by borrowing trains from the Welsh valleys. Those trains are required back next year. Who is going to faint first—the Bristol people or those in the Welsh valleys? What can my noble friend do about it?

My Lords, the 1,300 additional vehicles will benefit the Bristol area. The High Level Output Specification Plan update of July this year, which sets out the progress being made in planning and providing additional rolling stock, states that 52 of the additional vehicles will be for First Great Western, including provision of additional vehicles for the Bristol area. Therefore, I hope that we will be in a position to meet some of the additional demand to which my noble friend refers.

My Lords, I declare my interest as the proprietor of a private group of railway engineering companies. Can the Minister give a categoric assurance that the six-year programme as specified in his department’s White Paper, Delivering a Sustainable Railway, will remain intact regardless of the current uncertainties about the economy and the outcome of the general election and beyond? If he cannot give such an assurance, will the Government then issue as a matter of urgency gilt-edged railway bonds or their equivalent, which would be dedicated entirely to heavy and light rail programmes to maintain current employment levels in the railway industries up to 2014?

My Lords, the noble Lord is asking me to give a large number of assurances on issues, some of which are within my control and some of which are not. Alas, with all my great powers, I personally cannot determine the outcome of the next general election, although I have a good idea what it will be. Therefore, I cannot give him an assurance on that issue. However, as regards all the matters about which he asked which are within my power to address, I give him the assurances that he seeks. In particular, I give him an absolute assurance that we intend to stick by the rail investment strategy, which will see £15 billion worth of additional government investment in the rail network over the next five years and the provision of 1,300 additional rail vehicles.

My Lords, does the Minister not understand the point made by the noble Lord, Lord Bradshaw, that delays in government ordering of this rolling stock create boom and bust for the manufacturing industry rather than a steady state and efficient demand?

My Lords, I do not accept that there have been delays. We have ordered more than 400 of these vehicles already, other orders are in the pipeline and we are committed to providing the 1,300 by 2014, so we are getting on with the ordering with all deliberate speed.

My Lords, the Minister will have seen the Rail Regulator’s determination. Does he agree that the rolling stock plan is an incomprehensible muddle, as stated in paragraphs 9.82 and 28.22?

My Lords, I am very concerned about the 2014 date. Does the Minister not realise that the greatest influx of tourists this country has ever known will happen between 2011 and 2012 for the Olympic Games, followed by the Commonwealth Games in Glasgow in 2014? I beg him to do something to bring that date forward to enable us to deliver what we are expected to deliver in looking after and transporting tourists throughout the kingdom, not just round London.

My Lords, we are seeking to move as rapidly as we can, but as I say, the provision is to be made by 2014. We have ordered 400 of these vehicles already and we will move ahead as fast as we practically can.

My Lords, in contrast to the slightly churlish point made by the noble Earl on the ORR’s determination, does my noble friend agree that the investment that the ORR is authorising Network Rail to spend will make a huge difference to solving overcrowding problems over the next six years?

My Lords, I do agree. Last week’s determination will ensure that £28.5 billion is available for investment in the rail network over the period up to 2014. That is a huge sum of money and will make a huge difference, not least—talking of causes close to my noble friend’s heart—with regard to the doubling of the Cotswold Line, for which he has campaigned for many years.

My Lords, the arrangements whereby railway leasing companies own the stock and the Government order it appear to have provided substantial and reliable revenue and profit for banks over the past few years. Do the Government intend to revisit the arrangements whereby rolling stock is acquired, owned and leased?

My Lords, we intend to keep the existing structure in place, but the department has a very keen interest in ensuring that these 1,300 vehicles are procured as rapidly as we practically can. I would not want to close particular options for the way that we might procure those vehicles.

Gold Reserves

asked Her Majesty’s Government:

How many tonnes of gold have been sold from United Kingdom reserves since 1 May 1997; how much revenue was received from the sale of those gold reserves; and what the gold would be worth at current prices.

My Lords, in view of the volatility of gold prices, 395 tonnes of gold were sold from the reserves as part of a restructuring programme to reduce the risk exposure of the official holdings portfolio between July 1999 and March 2002. The total proceeds were around $3.5 billion, equivalent to £1.9 billion. On 3 November, the current market value of the gold sold was around $9.3 billion, equivalent to £5.7 billion.

My Lords, I thank the noble Lord for that informative Answer. What replacement investment did the Government make to ensure that the UK had a significant reserve for the inevitable rainy day, and how did this investment fare?

My Lords, given that gold is not a liquid asset, the Government invested the proceeds in dollars, euros and yen, which are interest-bearing, which gold is not, and have reaped the benefits from that. The present position reflects the volatility of all prices. To take the most obvious factor, the price of gold itself has gone down by something like 20 per cent in the past six or seven months.

My Lords, the Question is very simple:

“how many tonnes of gold have been sold from United Kingdom reserves since 1 May 1997”.

The Minister has not given the answer. What is it? Is it not high time that the Treasury stopped putting up stonewalling Answers?

My Lords, the Treasury has given straight answers to the question ever since the sale of gold concluded way back in 2005. The Government undertook at that time to reduce the risk factor in the portfolio by selling tranches of gold, and they made clear the amount being sold. They made it absolutely clear that those were the sums and that nothing was to be sold subsequently, and nothing has been.

My Lords, given that the balance of payments deficit has risen as a proportion of GDP by 100 per cent over the past four years and now stands at almost 4 per cent of GDP, is the Minister content that the current level of reserves is adequate? Do the Government believe that they have adequate foreign currency reserves given the likely outlook for the British economy?

My Lords, as the noble Lord is all too well aware, particularly with the advantage of yesterday’s debate, we live in challenging economic times. All aspects of the economy are under pressure, including the reserves. But he knows what the reserves are there primarily for, in relationship to the currency; and the Government do not intervene on exchange rates.

My Lords, the Minister has told the House that if we had held on to our gold, we would have another $6 billion-worth in reserves. I am sure he would agree that if an investment manager had made a transaction like that, he would probably now be out of a job. So can the Minister confirm that it was the Prime Minister who authorised the sale of the gold?

My Lords, it was the Chancellor of the Exchequer who authorised the sale of the gold. Let me make this point clear. The Conservative Front Bench is being wonderfully predictive after the event, basing its position on where the gold price is now. It did not advance those criticisms to the same extent at the time; nor was it the case that other informed analysts suggested that this was anything other than a perfectly proper transaction by the Government. The then Governor of the Bank of England, Eddie George, thought that it was a perfectly reasonable strategy for the Government to follow.

My Lords, if we are in the business of trading blows with the opposition Front Bench on the value of assets sold some years ago as compared with what they might be worth today, can my noble friend remind us—if he does not have the figures to hand, perhaps he could place a copy in the Library—of the value of all the privatised industries sold between 1979 and 1997, including the railways that we have just been discussing?

My Lords, I cannot follow my right honourable and noble friend in trading blows with the opposition Front Bench, because our relations are entirely cordial. Through these exchanges we merely seek to enlighten the public. The Opposition are worried about a small amount of gold, but the country was worried about the huge amount of family silver that they sold.

My Lords, does the Minister concede that the inexorable logic of recent turbulence is that the British Government should now join the eurozone?

My Lords, that proposition was put forward from the Liberal Benches in the debate last night and was received marginally more enthusiastically than it has been today. There were fewer groans.

My Lords, does the Minister recall the boast of Poo-Bah in “The Mikado” that he could so manage things as Paymaster General that the Lord High Auditor would not be able to detect what he had done, and that he held both roles?

My Lords, Poo-Bah is not answerable for Treasury activities in this country but Her Majesty’s Treasury is answerable to Parliament. As the noble Lord will know, all these transactions are open, identifiable and, of course, subject to scrutiny. Not only the Treasury Select Committee but the Public Accounts Committee has examined the position, and it was regarded as an entirely reasonable position at the time.

Japanese Knotweed

asked Her Majesty’s Government:

What steps they will take to eradicate the spread of Japanese knotweed.

My Lords, in 2003, the cost of eradicating Japanese knotweed from Great Britain was estimated at £1.56 billion. Eradication is, therefore, beyond any realistic prospect. My department has supported research into the potential for safe biological control of Japanese knotweed. If successful, this could limit its growth or natural spread, and enhance the effectiveness of its management.

My Lords, I thank the noble Lord for that reply. It is 20 years since I first asked this question, and nothing much has happened. Does he accept that the 2-millimetre Japanese insect, Aphalara itadori, which is a type of psyllid, could more effectively control the spread of knotweed, Fallopia japonica, which can push its way through concrete? This is a real and considerable problem.

My Lords, the noble Baroness is right to say that it is a considerable problem. Japanese knotweed was introduced to this country in 1855, it has no natural enemies and it is a great nuisance in most parts of the country. From the research, I agree that there seems great potential in the psyllid she mentioned. This is a knotweed specialist whose juvenile nymph sucks the sap from the plants and is capable of causing significant damage to the knotweed plant. We are carefully considering this; some more research will have to be undertaken and undergo due process and regulation. Ministers will have to make the final decision, but I hope that it will not be another 20 years before we find a way to deal with this very nasty weed.

My Lords, does the Minister agree with the Government’s estimate a year ago that dealing with non-native invasive plants costs the country some £2 billion a year? Does he also agree that 60 per cent of non-native invasive plants are escapees from gardens or garden centres? If he does agree, can he tell us how many of these non-native species are banned from sale and how the situation in England compares with that in Scotland?

My Lords, the noble Lord is absolutely right to suggest that invasive non-native species should be considered very seriously. That is why the Government, with the Scottish Executive and the Welsh Assembly, produced the Invasive Non-Native Species Framework Strategy for Great Britain in May. Because eradication can be very expensive once a particular species has taken root, the strategy ensures that measures are taken at a very early stage. That is the strategy that we are pursuing. My department is responsible for England but we work closely with the Scottish Executive on this.

My Lords, if no sanctions are available, are the Government considering introducing sanctions under the Wildlife and Countryside Act for anyone found to be spreading Japanese knotweed? Is the Environment Agency compiling a list of the sites that are currently identified and, if so, how frequently will it review that list?

My Lords, the situation is quite complex regarding sanctions. There is no statutory requirement for landowners to remove the plant but it is regarded as controlled waste and local authorities have powers to require landowners to clear up land that is adversely affected. The weed is listed in the Wildlife and Countryside Act, so it is an offence to plant it or to cause it to grow in the wild. Its illicit dumping is illegal. The Environment Agency can prosecute; there can be fines; and indeed, if it goes to Crown Court, imprisonment is a possibility. Most developers deal with this problem responsibly, although there are cowboys and it is clear that we need to take action against them.

My Lords, when I asked a Written Question about this matter on 25 June last year, I was told that the four-year scientific research project was due to report before the end of the year. I believe that that report is now on the Minister’s desk. The Answer that I was given by the then Minister, the noble Lord, Lord Rooker, was that, if a proposed control agent is found,

“it will be necessary to produce a pest risk assessment and obtain a derogation from European plant health legislation”,

and that the Government would appoint a group of independent experts,

“to critically evaluate the research findings and data before any decision was made”.—[Official Report, 25/6/07; col. WA 108.]

Can the Minister confirm that that is the process and that those are the actions that the Government are now looking at, to find a way of at least controlling this appalling plant? I remind the House that, because it spreads only vegetatively, it is in effect biologically all one plant and is said to be the largest female clone in the world.

My Lords, as ever, the noble Lord, Lord Greaves, is informative on these critical matters. A regulatory process has to go forward. My Science Quality and Priorities Team is commissioning a peer review at the moment. If, from the processes that the noble Lord has described, it is deemed that the risk is acceptable, Ministers can be asked to agree to the publication of an assessment for consultation with all stakeholders, and we then need to inform the EC Standing Committee on Plant Health. Clearly, very great care has to be taken in relation to the proposed use of a biocontrol agent but, on a positive note, so far the research looks very promising. We must hope that that is confirmed and that we can go through the regulatory processes, and Ministers will then be in a position to make a final decision.

My Lords, does the intergovernmental strategy that the Minister described cover Himalayan balsam, which is rapidly blocking many watercourses in England and Wales?

My Lords, I understand the concern about Himalayan balsam. My understanding is that an assessment of its impact is in progress using the UK non-native species risk analysis mechanism. We will be advised by the result of that assessment as to whether further action needs to be taken, but I assure the noble Lord that we are not complacent on this matter.

My Lords, further to the Minister’s earlier response to my noble friend, has the research previously undertaken on the use of the insect to control knotweed been completed and is the research document on his desk, or he is saying that the research is starting as of now? If so, how soon are we likely to have the results?

My Lords, the first question I asked my officials was whether I could give noble Lords a timetable. I fear I cannot. This research is continuing, building on research that has already taken place. I can assure noble Lords that my department is not at all complacent. We well understand the problem of this weed. We are very anxious to do everything we can. In the mean time, there is guidance from the Environment Agency about current procedures, such as the use of chemicals, for dealing with the matter. We shall pursue this as quickly as possible, given the regulatory process through which we have to go.

Air Quality

asked Her Majesty’s Government:

Whether they requested by 31 October a derogation from the European air quality directive for particulate matter in order to avoid legal action for potential breach of the limits in 2005, 2006 and 2007.

My Lords, the Government have made the European Commission aware that, subject to public consultation, the UK intends to submit an application for an exemption for those few parts of the UK where there have been breaches of limit values, including London, from the obligation to apply the limit value for particulate matter until June 2011, as provided for by the new ambient air quality directive. Public consultation is expected early in 2009.

My Lords, I thank the Minister for that Answer, which I take to be no, the Government did not apply. I declare an interest as, when in London, I live in one of the most polluted areas of the UK and even of Europe. Is the Minister aware that particulate matter includes particles much smaller than the width of a human hair and that, when inhaled, they can enter the blood stream from the lungs and lead to strokes, heart attacks and other serious health problems, resulting in more than 1,000 premature deaths from this cause alone in London each year? I repeat the Question I asked the noble Lord, Lord Rooker, on 9 October 2007, to which I received no reply: by what date do the Government expect to meet the European Union air quality limit values for particulate matter throughout London?

My Lords, the noble Baroness is quite right to raise the issue of London and the health consequences of particulate material. She is right to say that some particles can be very small. Some progress has been made. Most of the country meets the target now and, on current projections, a few areas will meet it by 2011. We have a problem in London, but our aim in seeking to extend the time limit to 2011 is that, by working with the London government and its local authorities, we will meet the target by that date.

My Lords, does the Minister agree with me that particulates come mostly from old vehicles in the fleet and that one way of dealing with them is to scrap and crush vehicles on the road that are not insured or licensed, to offer a scrapping allowance to the owners of old vehicles for a short time and thereby get rid of the particulates and stimulate the motor industry, which sorely needs it?

My Lords, that is a very interesting suggestion, and I am sure that my colleagues on the Front Bench from the various departments concerned will take great notice of it. Clearly, actions can be taken. The noble Lord has suggested one. We have to look at whether we can have more low emission zones, particularly in London. I know that Transport for London is looking at bus emissions. Other actions can be taken. Clearly, the authorities need to work very hard, particularly in London, to ensure that they meet the target by 2011.

My Lords, following the Question from my noble friend Lady Gardner of Parkes, is the Minister telling us that there was no deadline in October for applications? Have any other countries been found to be in breach of these regulations and, if so, what fines have been applied?

My Lords, I do not think it is time to talk about fines. This year, the European Union requested a letter setting out reasons why the UK and other countries had failed to meet the target. However, we had little notice of that request. We have already informed the European Commission of our action and we will consult in 2009. We will then write to the European Commission. My understanding is that most of the EU countries are in the same position as the UK on this.

My Lords, perhaps the Minister could clarify the position. I do not understand his reply to my noble friend’s question. My understanding is that the application for an extension had to be made by 31 October and, according to the Minister’s Answer, that was not done. A letter was sent simply explaining why we were not applying within the correct time. Is that so?

My Lords, that is correct because we had very little notice from the Commission that the letter would be required. It is not simply a matter of writing on two sides of A4. Alongside the application, a lot of detailed specification has to be undertaken; that is why we need more time. We also need a public consultation about measures that will have to be undertaken, particularly within London, and we need to take care over that. That is why we initially wrote to the European Commission. We will follow that up next year with a full and detailed dossier in the light of public consultation and our discussions with the various authorities in London.

My Lords, do these particulates present any particular problems for children’s health, and do they contribute to childhood asthma?

My Lords, the answer to that is yes and yes. Clearly, these particulate matters create significant health issues. That is why it is so important to meet these air quality targets. Children are as affected, which is why we are pleased that most of the country has met the targets. We are pleased that those parts of the country which have not done so are on track to meet them by 2011. It re-emphasises the importance of ensuring that London is sorted out so that by 2011 it meets those targets.

Business

My Lords, at a convenient point after 3.30 pm, my noble friend Lord Darzi of Denham will repeat a Statement on improving access to medicines for National Health Service patients.

In a moment, the noble Lord, Lord Forsyth of Drumlean, will ask a Private Notice Question. Before he does so, I thought that it might be helpful to remind the House of the guidance in the Companion on such Questions. Proceedings follow the rules for Oral Questions. In particular, supplementary questions should be short and confined to not more than two points. Proceedings are expected to take no longer than 10 minutes.

Economy

My Lords, I beg leave to ask a Question of which I have given private notice.

The Question was as follows:

To ask Her Majesty’s Government whether, following the proposals announced yesterday, they will urgently report to the House how they will maintain an arm’s-length relationship with the banks in which they have taken a shareholding.

My Lords, I am grateful to the noble Lord for his Question. Yesterday, the Chancellor provided the chair of the Treasury Select Committee with a written update on the financial stability measures introduced in October. The letter, now available in the House Library, provides details about UK Financial Investments, the arm’s-length body that will manage the Government’s investments in financial institutions.

My Lords, I am grateful to the Minister for the Answer. Will he explain why, in yesterday’s debate in this House on the economy, when we were given assurances that the banks would be dealt with at arm’s length, there was no mention of the setting up of this new high-powered body chaired by one of the most distinguished chairmen in the City, and comprising a senior Treasury official, two other officials and three non-executives? Is it not an affront to this House that when so many Peers asked deliberately about this issue we were not told? What is the explanation?

My Lords, I thank the noble Lord for his question. I am delighted that he has expressed such confidence in the choice of Sir Philip Hampton as chairman of UK Financial Investments. He will chair a board which will be primarily composed of private sector people with eminent and relevant commercial experience. No discourtesy was intended to your Lordships' House by not announcing the establishment of the arm’s-length body yesterday. It would clearly have been inappropriate for me to anticipate what the Chancellor of the Exchequer might say at the hearing being conducted by the Treasury Committee in another place. That hearing ran concurrently with our debate. I concluded my opening speech—quite an achievement given the number of interjections from the other side—before the Treasury Committee hearing began.

My Lords, we had an extensive debate that highlighted what this House is all about as it involved Members with world-class expertise, including three former Chancellors of the Exchequer. Our debate finished at 9.58 pm. The Treasury’s press release was dated yesterday. What stopped the Government circulating a copy of that release during the debate when so many questions were asked about this matter? The Government should be proud as the private sector and the public sector are working together. The Government would probably have been congratulated. Are they scared of being congratulated?

My Lords, I understand that it is the protocol of the House—when I made my maiden speech barely a week ago, I begged noble Lords’ indulgence as I became accustomed to the procedures and processes of the House—that written documents are tabled only at the beginning of debates.

My Lords, we are not criticising the noble Lord, Lord Myners, because we realise the sequence of his speech. However, when the noble Baroness, Lady Vadera, who unfortunately is not in her place, wound up the debate, she was supposed to be responding to some detailed questions on this point, but largely she did not seek to answer them. That is the discourtesy to this House.

My Lords, I thought my noble friend Lady Vadera made an extraordinary winding-up speech of great breadth and understanding of the complex issues arising from nearly seven hours of debate in your Lordships' House.

My Lords, I must apologise to the House for not being able to come to the debate yesterday. I had to be in court.

Don’t ask, my Lords. On the substance of the question, rather than the procedure, does the Minister accept that if it is an arm’s-length relationship, we need very short arms because these are effectively nationalised industries with many billions of taxpayers’ money put into them in order to keeping lending going to British business and British families? Does the Minister agree that we need experienced private-sector business people who have run real businesses through real recessions? I suggest that a minimum age of 60 would be appropriate.

My Lords, the noble Lord, Lord Oakeshott, brings great and relevant experience to this matter as well as youth. These are not nationalised industries; they are companies in which the Government are taking a shareholding. Those companies will be under the direction of their boards of directors. Those boards of directors will be responsible to all shareholders, including the Government. In some cases, we are taking steps with the boards of directors to strength the boards because it is clear that, in some respects, boards were among those who failed in their oversight of risk management and control of the institutions for which they were responsible. We are going to work with those boards to strengthen them. We will also ensure that UK Financial Investments Limited—the arm’s-length body that will have oversight of these investments on behalf of the country—will be appropriately staffed with a majority of independent directors under the chairmanship of Philip Hampton, who is one of our most extraordinary and successful businessmen.

My Lords, does my noble friend accept that his statement was widely accepted in the House, including his apology, but that the apparent discourtesy to the House pales into insignificance in comparison with the damage that has been done to this country by some of our banks and some of their directors and senior staff? Will he accept my congratulations on the measures that have been taken—albeit lately announced—to make sure that the public investment in our banking system is properly secured and defended?

My Lords, I thank my noble friend for his comments. I will convey his appreciation and thanks back to those in the Treasury and elsewhere who played the leading role in the recapitalisation of our banks in a truly innovative way, which has been admired and copied throughout the world. I am but a small bit player in that, but I will ensure that those who worked diligently and extraordinary well over many days and weeks are appropriately reminded of the appreciation of this House.

My Lords, in the absence of the noble Baroness, Lady Vadera, can the noble Lord explain her comments last evening? My noble friend Lord Forsyth asked at the end of the debate:

“My Lords, would the Minister deal with the specific questions which I asked her about the bail-out”,

and so on. The noble Baroness, Lady Vadera, said:

“My Lords, I have not dealt with a number of questions. I would be very happy to answer them”.—[Official Report, 3/11/08; col. 114.]

Then she picked out two. I asked her three questions, but not one of them was answered. That was surely an opportunity for her to say what had developed at the other end of the building.

My Lords, I thank the noble Baroness for her question. There were 47 speakers yesterday. In a winding-up speech, it was exceedingly difficult to capture every point and question raised. I remember well the final question of the noble Lord, Lord Forsyth. I believe that he was fixated with the issue of dividends and preference shares. We have addressed that issue in fully explaining, for the benefit of the noble Lord, Lord Forsyth—if of no one else—that preference shares can be refinanced, repaid and the banks will be able to pay dividends as soon as their tier 1 and core tier 1 capital is appropriate to meet their ongoing obligations to the Financial Services Authority.

My Lords, I am sorry, but the noble Baroness, Lady Vadera, had plenty of time; it was not a timed debate and we actually finished before the recommended time. There was time; 47 speakers did not ask 47 questions. If you go through the text of Hansard, you will find that there were not that many questions.

My Lords, if noble Lords go through Hansard, they will note that a number of Peers asked several questions, so it is not a simple matter of multiplication. My noble friend Lady Vadera made a full and complete explanation of the issues to the House. I stand here; if noble Lords have further questions, I stand here ready to answer them. Please ask your questions.

My Lords, I accept the noble Lord's invitation and ask him to justify yet again why the Government are dealing so badly with ordinary shareholders in the recapitalised banks and insisting that the preference shares must be redeemed before any dividend is paid.

My Lords, the Government have handled this with the interests of the shareholders to the forefront. In particular, we have insisted on a full right of clawback. There is no usurpation of shareholder rights. The shareholders of Lloyds TSB, HBOS and Royal Bank of Scotland can participate fully in the capital-raising of the ordinary shares. There is a full and unlimited clawback. That has been admired and appreciated by institutional investors, and it is our hope that many shareholders will so participate.

It is also a basic rule and principle—I look to the noble Lord, Lord James of Blackheath, as someone whose work in this area I have much admired—that preference shares stand in priority to ordinary shares. We have said that preference shares must be repaid or refinanced out of retained earnings, a new capital issue or disposal of the premium over book value, at which point ordinary share dividends will be payable. I can assure the noble Lord that that is absolutely standard practice in a refinancing.

Counter-Terrorism Bill

Report received.

Clause 1 [Power to remove documents for examination]:

1: Clause 1, page 2, line 19, leave out subsection (4) and insert—

“( ) A constable has the same powers of seizure in relation to a document removed under this section as the constable would have if it had not been removed (and if anything discovered on examination after removal had been discovered without it having been removed).”

The noble Lord said: My Lords, before I speak on the detail of Amendment No. 1, I draw noble Lords’ attention to the amendments which I tabled yesterday. These amendments deal with financial restrictions in relation to countries where money laundering, terrorist finance and the proliferation of weapons of mass destruction are a cause for concern. I apologise for tabling these amendments so late in the parliamentary process, but I hope that there will be ample time to debate and scrutinise them on day two of Report next Tuesday. My noble friend Lord Myners will deal with the detail of this issue in the Chamber next week. He has written to all Members who have taken part in the debate on the Bill so far, and he and his officials are happy to provide any further information that noble Lords may require in advance of that debate.

My approach to the Bill from the start has been to try to reach a compromise where possible on the various proposals. I have tried where possible to meet concerns expressed and to incorporate, where appropriate, all the excellent points made about the Bill, because it is important to deal with matters of national security consensually where at all possible. I have made compromises and adjustments where I could, and I am sure that as a result some of the provisions in the Bill will be in better shape when they leave the Chamber than when they came to it.

When I stand at the Dispatch Box, other Members of the House often ask me to remember that, although they might oppose something that the Government are doing, they have the welfare and safety of this nation just as much at heart as we do. I have always been very fulsome in my regard for that because I believe it to be true, but I also ask the House to remember that the Government are very interested in human rights and in looking after the freedom of individuals. That should also be acknowledged. We are not doing this to try to bear down on those things, and we do not take lightly some of the measures that we sometimes have to introduce. That is important to remember.

Amendment No. 1 is a small example of what we have done to compromise. During the debate on the provisions in Clauses 1 to 9 on the power to remove documents, a number of your Lordships expressed concern that Clause 1(4), although essential to the functioning of the power, could be drafted to be more readily understandable. At that point in the debate, I agreed to take the clause away and work with the parliamentary counsel to redraft the clause if at all possible.

Clause 1 is vital to the functioning of the power to remove documents, as it sets out the powers of seizure available to an officer after a document has been removed, examined and found to pass the threshold for seizure. Once a document is removed following the search of premises, the original seizure powers no longer apply because they exist only while the constable is actually on the premises. We therefore need a provision in the Bill to spell out that, where the reasonable belief test is met following examination of the document after it has been removed from the premises, a constable may indeed seize that document. That is what Clause 1(4) does.

Should an officer exercise one of the search powers in Clause 1(1) and find a document which he is not sure reaches the threshold for seizure, the power in Clause 1 enables him to remove the document to the police station or another place so that it may be examined further. Once back at the police station, the document is examined further and the officer realises that it is of interest. That is when Clause 1(4) kicks in. Were we not to have such a provision, the officer would not be able to seize the document. Instead, as a result of Clause 1(4), the officer has the same powers of seizure as he would if the seizure threshold were crossed when he exercised the initial search power.

We have not changed the functioning of this clause from the one that appeared in Committee. Rather, following the concerns that noble Lords expressed during that debate, we have tried to redraft it to be much more understandable. I beg to move.

My Lords, I thank the Minister for his explanation. As far as I can see, a pair of brackets has been inserted in the clause. It still is not brilliantly worded, but, no doubt, someone will understand it. If they do not, they will have to ask, because the Minister’s explanation is now on the record.

I also listened to his explanation on the proposed amendments to Clause 62 and onwards on money laundering. That will be handled by the noble Lord, Lord Kingsland, and I suspect that someone has written to him with an explanation of those clauses.

My Lords, we appreciate the Minister’s comments on his wish to work consensually. On 13 October, we felt that our role as opposition parties was treated very badly in the Home Secretary’s announcement. Throughout the conduct of this Bill through this place, the Minister has not given rise to any of those feelings and we are grateful for that. The fact that further concessions still are being made to make the Bill more reasonable and more workable is meaningful.

The Minister has referred to the large amendment to be introduced by the noble Lord, Lord Myners, and his department. We are already grateful that the Treasury has seen fit to concede that reports should be made to Parliament and has included that in its report following discussions with us. There may be further useful amendments, which we will discuss at the time. However, I have to put on record that it was pushing procedure to the limits to introduce something so large at such a late date. It is lucky that it will be debated next week and not this week.

My Lords, perhaps I may add to what my noble friend has said on the Minister’s preamble. I give notice that we are particularly concerned at the rather extraordinary extension of jurisdiction in paragraphs 32 and 34 of the proposed new schedule, and the extraordinary time limits to be imposed under paragraph 35. I say that because the Minister did not indicate that anyone with a legal background would deal with this when it comes before us next week.

My Lords, I should like to express my appreciation for this amendment. It is a considerable improvement. Certainly, it does not in any sense alter the underlying idea behind the clause as it was originally drafted. Clarity of this kind is always to be appreciated.

My Lords, I thank the noble and learned Lord for his input. In response to the noble Baroness, Lady Hanham, as I understand it a note will go to the noble Lord, Lord Kingsland, and to the noble Baroness. I will make sure that that will happen. A very large body of amendments came out yesterday, which we will leave for one week, as is required. They did not come out until yesterday because I wanted to be absolutely certain that there was no other way to do this. It seemed to be a rather bad way of doing things, but I believe that there is a requirement for this to be done and that there seems to be no other way to achieve it. It took some time to work that out—over a weekend—and to be absolutely certain, for which I apologise. It will be debated next week and I hope that all noble Lords will have a chance to look at it and see the detail.

My Lords, I thank the noble Lord for his first remarks, which were generous and in stark contrast to those of the noble Lord, Lord Myners, on the previous Question—perhaps that is a bit unfair. I do not know whether this is possible, but Amendment No. 61A goes on for pages. Normally with legislation of this length one would have a Second Reading, Committee and Report stages, and a Third Reading. Would it be possible to recommit this new clause either on the same day or possibly a day earlier so that it can be considered through all the stages? Technically I believe that one can recommit certain parts of a Bill, and that it has been done before. I do not know what others think about that suggestion, but this is a very long addition to the Bill.

My Lords, I do not think that I can say we would do that. We have now given more than seven days for the amendment to be looked at and there is an opportunity for considerable discussion. Moreover, my noble friend Lord Myners is available to discuss these issues with any noble Lord who wishes to talk them through, and he will write. I realise that this is not ideal, but, as I have said, it is an important point. I believe most noble Lords agree that it needs to be done; it is really a question of how it is done. I think, therefore, we need to move forward in this way. Again, I apologise for the lateness, but I wanted to be absolutely certain that there was no other way of doing it, and that is why it has arrived like that.

On Question, amendment agreed to.

2: Before Clause 14, insert the following new Clause—

“National guidelines on fingerprint and sample database

(1) The Secretary of State shall by regulations publish national guidelines for governmental agencies establishing—

(a) a procedure by which a person can request a statement of what information relating to fingerprints and samples is held on them or on a dependent;(b) a procedure by which a person can request that such information held on them or a dependent is destroyed (c) the circumstances in which a request under paragraph (b) may be refused.(2) If a request made under paragraph (1)(b) is refused under paragraph (1)(c), the relevant agency shall write to the person setting out why such information will not be destroyed and when such circumstances as prevent it being destroyed may no longer apply.

(3) In drawing up guidelines under subsection (1), the Secretary of State shall consult such bodies as he thinks appropriate.

(4) Regulations under subsection (1) shall not be made until a draft copy is laid before, and approved by resolution of, both Houses of Parliament.”

The noble Baroness said: My Lords, we had an interesting debate in Committee on the retention of samples such as fingerprints and DNA. The Minister kindly followed that up with a comprehensive letter which included a fact-sheet compiled for the police on the retention and use of such samples. As I indicated in Committee, I was not particularly reassured by the Minister’s answers, and therefore I return today with the second of the two amendments I tabled at that stage. The aim of this amendment is to try to spark a national debate about the retention of samples and to inform the public about what information is being held on them.

This amendment would require the Secretary of State to draft and lay before Parliament regulations governing the procedures by which people can discover what information is held about them and under what circumstances a request can be made by them to have samples taken during an investigation by the police destroyed. As we will see, there is no transparency in the current situation and the dice are severely loaded against innocent people being able to ensure that their most personal details are not kept indefinitely following their exclusion, either by a court or following a decision that there is no reason for them to be involved further in any inquiry. No one disputes the value of DNA and fingerprint information in identifying criminals and possibly terrorists, and that it has and will continue to make a useful contribution in pursuit of identifying and bringing to justice perpetrators of crime and terrorism. However, there is wide concern about the retention by the police of information on samples taken from a wide range of people during their inquiries which is then retained indefinitely on the police national computer. The provisions in this Bill add to those already in PACE 1984 and, as we now know, this legislation can be used to justify action over a wider range than counterterrorism purposes.

Few innocent people will resent helping the police by giving samples whether they are innocent at the time or subsequently found to be, but they question, as we do, the justification for their personal identification material being held and for it to be difficult to find out how they can have it removed from the police national computer. There is an additional factor in that such information can now be transferred to other EU countries. The general assumption in those countries is that anyone whose details are held on the database is guilty or at least suspected of being associated with crime. Transparency is needed.

The Minister was kind enough to identify where the current guidelines on the retention of DNA are set out, but their title, “Retention guidelines for nominal records on the police national computer”, has clearly not been chosen with transparency in mind. However titled, they certainly did not pop up in a sample search of the internet; rather, they appeared on the website of the Association of Chief Police Officers and are, apparently, only for the guidance of the police. Members of the public would find it extraordinarily hard to make any headway through this maze.

The guidelines are deeply worrying and make clear just how high a barrier the Government have imposed on DNA and fingerprint information ever being destroyed. The initial response to a request for destruction is an automatic refusal. The guidelines state:

“In the first instance applicants should be sent a letter informing them that the samples and the associated PNC record are lawfully held and that their request for deletion/destruction is refused”.

But the chief police officer is then recommended to check with the DNA and Fingerprint Retention Project if the applicant persists.

Appendix 2 makes it clear that, while the chief police officers have the discretion to authorise deletion of any specific data, it is,

“suggested that this discretion should only be exercised in exceptional cases”.

It then goes on to say:

“Exceptional cases will by definition be rare”.

Indeed they will be rare, for the case study given of when DNA information might be suitable for destruction is almost laughable. It is that if the police arrest every occupant of a building for murder following the discovery of a dead body and forcibly take DNA samples, but then discover that the dead body in fact died of natural causes and that no crime has been committed. That is then considered sufficiently a case where, possibly, DNA samples—taken from entirely innocent people—might be destroyed. The number of similar cases will not be enormous.

In responding to similar amendments in Committee on 9 October 2008, at col. 384 of Hansard, the Minister prayed in aid to his conclusion that the retention of all samples taken helped identification in other criminal inquiries that some 8,500 individuals had been matched—he did not say in what timescale—with DNA taken from crime scenes involving some 14,000 offences which, he said, included more than 100 murders and attempted murders, 116 rapes, 68 other sexual offences and a number of other serious crimes.

A briefing from GeneWatch in June this year drew attention to these or similar figures raised in a speech by the Prime Minister. It asked where the figures came from and pointed out that DNA matches are not successful prosecutions and that many matches occur with the DNA of individuals who are not perpetrators of crime. Only some matches, known as DNA detections, lead to someone being prosecuted for a crime and,

“it is not possible to provide figures for the number of convictions produced by DNA”.

The first annual report in April of this year of the Ethics Group of the National DNA Database, a body set up by the Government, made 11 recommendations. They are all important but I shall not worry the House with them. However, for today’s purposes I shall draw attention to four of them as they are laid out in the report. Recommendation B states:

“For those members of the public who are believed to be innocent at the time of sampling and voluntarily donate their DNA to help the police with their enquiries, the presumption should shift to an expectation that these samples will be used only for the case under investigation, that the profile will not be loaded onto the NDNAD, and that the samples and all data derived from them will be destroyed when the case has ended”.

Recommendation C says:

“There should be a specific consent form for competent adults who are not suspected of the crime under investigation when they agree to give a volunteer DNA sample”.

Recommendation G is:

“A clearer, simpler and less cumbersome process needs to be put in place to enable those who wish to appeal against the decision of a chief constable to retain their DNA profile on the NDNAD”,

the National DNA Database. Recommendation I states:

“Consideration should be given to further public clarification of the role of the NDNAD and reinforcement of the message that it is intended only to be used for criminal intelligence”.

The Minister agreed during Committee that a debate surrounding all this was needed. We believe that our amendments today would give that opportunity. Regulations laying out the guidelines on the whys, wherefores and means of DNA and other samples being either retained on or removed from the police national computer that are clear, explicit and user-friendly are long overdue. Changes to the whole system during the passage of the Criminal Justice Act in 2001, which turned the assumption of the destruction of DNA at the end of a case into the assumption of retention, upset the presumption of innocence. The balance at present is not in favour of the innocent.

Endless justifications may be put forward by those who believe that the current use of the database is too restricted and should be widened into one that is universal. However, it is perhaps now time to listen to the voices of those in favour of the current situation, and of those who are frankly appalled by the possibility of having their identifying materials held indefinitely by the police, and, with their aid, come to a balanced judgment. The Government’s justification for their current policy needs to be properly scrutinised. I beg to move.

My Lords, we supported this amendment in Committee when the noble Baroness, Lady Hanham, made an outstanding case for why the Government should listen seriously to the amendment. She has made an even stronger case today for this amendment, which we will support. It is a moderate amendment; it requires nothing other than national guidelines on the issue. That is why it is particularly surprising to us on these Benches that the Government have not felt able to move in the direction of issuing such guidelines and including this sensible amendment in the Bill.

The noble Baroness has laid out eloquently why it needs to be done. I simply add that the increase in fingerprints and DNA taken from innocent individuals, from people volunteering after a crime has been committed, has been extraordinary over the past decade. The Government must recognise that, to keep public confidence in the system, continue to protect the innocent and, as the noble Baroness said, work on the presumption of innocence, the very least they could do is accept this moderate amendment.

My Lords, I confess that I am puzzled by what the noble Baroness, Lady Hanham, said. I quite understand that if I give my DNA voluntarily to eliminate me because I was in the house, so that no one suspects me, I should be entitled to have it destroyed. As I read it, however, proposed new subsection (2) is an absolute obligation to destroy all DNA unless you give a reason to the contrary. The noble Baroness shakes her head, but the amendment states:

“If a request … is refused … the relevant agency shall write to the person setting out why such information will not be destroyed”.

As I understand it, that would apply to any request, including that made by a suspect who had not yet been charged because the police had not concluded their investigations—albeit that they had perhaps had to let them go to sleep until more information came out—and not by any means to the innocent or non-charged person to whom she referred. That seems very worrying.

My Lords, the inclusion of DNA profiles on the National DNA Database and the retention of fingerprints do not indicate either innocence or guilt. These databases are used by the police to provide intelligence leads on the possible identity of the offender by matching the DNA taken from a person with the DNA at or collected from the scene of a crime.

We are legislating in Clauses 14 to 18, first, to put a counterterrorism DNA database on a firmer legal footing; secondly, to allow fingerprints or samples taken under the Police and Criminal Evidence Act 1984 and the Police and Criminal Evidence (Northern Ireland) Order 1989 to be used for national security; and, thirdly, to make it easier to allow fingerprints or samples taken under the Terrorism Act 2000 to be placed on the National DNA Database.

The amendment would require the publication of national guidelines by the Secretary of State on the operation of the National DNA Database and ultimately the counterterrorism DNA database to which Clauses 14 to 18 refer. The guidance would include a procedure for requesting information held on the database and for requesting the destruction of any information held. I shall resist the amendment as such procedures already exist with regard to samples held on the National DNA Database. I shall set out my reasons for this first, before explaining why I resist the amendment, with reference to samples held on the counterterrorism sample database. I hope that it will illustrate some of the transparency referred to in the debate.

The amendment requires guidelines on requesting information about the fingerprints and samples held. Access to information held on an individual is regulated by the Data Protection Act. Under that Act, an individual can ask the police what information they hold on them. Information on how to make a subject access request can be obtained from a local police station or through the force’s website. The Information Commissioner provides independent oversight of data protection issues, including the retention and use of fingerprints and samples. Given this established system, it seems unnecessary to require an additional set of national guidelines to be published.

I turn to the destruction of samples held on the National DNA Database. The Criminal Justice and Police Act 2001 amended PACE to remove the requirement on the police to destroy samples and fingerprints taken from people who had been acquitted or against whom charges had been dropped or not proceeded with. The amendment in the 2001 Act arose from decisions in the Court of Appeal relating to two cases where compelling DNA evidence that linked one suspect to a murder and another to a rape could not be used and neither man could be convicted. This was because, at the time when the matches were made, both defendants had either been acquitted or a decision made not to proceed with the offences for which the DNA profiles had been taken.

The Criminal Justice Act 2003 then amended PACE so that samples and fingerprints could be taken and retained before charge from persons who had been arrested on suspicion of involvement in a recordable offence. Prior to that, DNA samples could be taken only from a person who had been charged with, informed that they would be prosecuted for, or found guilty of having committed a recordable offence.

Only chief officers have the discretion to decide whether to remove records from the police national computer or other databases such as the National DNA Database. The matter of discretion is an operational one for the police force involved.

The Association of Chief Police Officers has issued guidance for chief officers on the consideration of applications from individuals for the removal of personal information, including DNA samples, from police records. The guidance, known as the “Exceptional Case Procedure”, is incorporated in ACPO’s Retention Guidelines for Nominal Records on the Police National Computer and will help to ensure national consistency regarding retention and deletion. It has been published on the ACPO website. It provides a business process for chief officers to follow when considering applications for the removal of records. The guidance makes it clear that it is expected that records and profiles that have been taken lawfully will be removed in exceptional cases only. The norm will therefore be to retain the profile and associated sample. However, each case has to be considered on its merits. What constitutes exceptional circumstances is ultimately a matter for the individual chief officer. The guidance states:

“Exceptional cases will by definition be rare. They might include cases where the original arrest or sampling was found to be unlawful. Additionally, where it is established beyond doubt that no offence existed, that might, having regard to all the circumstances, be viewed as an exceptional circumstance”.

Only profiles and samples obtained in relation to terrorism and terrorism investigations will be held on the CT DNA database. A proportion of the database will contain samples recovered by covert and surveillance means, which have been obtained lawfully and with proper authorisation for the purposes of counterterrorist investigation and national security. Covertly obtained samples will account for approximately 2 to 5 per cent of the data on the counterterrorism database. Current operational activity indicates that no more than a few hundred samples per annum will be recovered and retained on the database.

In order to protect counterterrorism investigations and national security from compromise, we would not wish to make the covertly acquired contents of the database public knowledge. Disclosure of who is held on this database would create a serious risk of compromising these investigations. Individuals who are under investigation would find this out and investigations would be compromised.

I have made clear the procedures already in existence on the retention, use and destruction of fingerprints and samples. We are debating not the principles but the procedures. I know that there was talk of a much larger debate on DNA, but I do not think that this is the time to have that debate. There will have to be another opportunity for that. We can open up all sorts of issues. For example, the noble Earl, Lord Ferrers, said when we last debated this that he could see no reason why any innocent person would be concerned. This matter throws open all sorts of issues and that debate is beyond the context of the narrow provisions in the Bill.

I firmly believe that national guidance of the type prescribed in the amendment is unnecessary; indeed, it would be extra bureaucracy. Information on how to obtain details of what information the police hold on an individual and the ACPO guidelines on the retention, use and destruction of fingerprints and samples are already publicly available. However, I take the point made by the noble Baroness, Lady Hanham, that this is somewhat convoluted. When I looked for myself, I saw that it was not as straightforward as it perhaps should be. I very much recognise the importance of clarity for the public on these matters and so I will ask my officials to work with the relevant bodies to ensure that the guidance is much more easily accessible, through pop-ups or whatever, for members of the public. On that basis, I ask that the amendment be withdrawn.

My Lords, I am grateful to the Minister for rereading the ACPO guidelines, which I mentioned. However, we are perhaps missing the point entirely. The purpose of the amendment is to ensure that anyone who is on the database has access to guidelines that will tell them how to get off the database. There is only one way of getting off it at the moment, according to the ACPO guidelines, which is to be involved in a case in which you have been accused of murder but it transpires that the dead person died by some other means. That is not a happy example; there may be better ones.

The principle goes back to what the noble Baroness, Lady Miller, and I said. Those who are innocent should not be on any database. They should not be under the eye of the law of this country. They are innocent. They have no truck with the law and their DNA should not passed to Europe for whatever reason simply because it is a chunk of information that the police hold.

The Information Commissioner is there for data protection. He is not there to tell people how to get themselves off a database that they should not be on in the first place. I do not think that that will help us at all. I do not think that further clarity on the ACPO guidelines will help us either. All that says is that it will take an absolutely extraordinary exception to get off the database.

I do not know—I suspect that many do not know—what the public believe is the situation. Like the noble Viscount, Lord Bledisloe, I suspect they think that if you have had your DNA and fingerprints taken but are found innocent and cease being involved in any sort of criminal inquiry, that will be the end of it, the material will be gone, finished, over. But it is not gone, finished or over by any means. You are still on that database. If you cannot remain tranquil, calm and unaffected about it, you will get very mad indeed in trying to get yourself off it.

The Minister says that these clauses are to do with counterterrorism and the counterterrorism database but, as we know from the asset-freezing provision, one bit of legislation can be used for any other purpose. It can be used in any way, so that a bit of database information taken for police inquiries can be used in conjunction with another inquiry. That is no way out at all.

We need a proper discussion. We need proper guidelines for the public and for those who are involved. I do not know, but my fingerprints may be all over a database. If that is the situation I would like to know, and I would like to get off it. I would like to know how to do so, but the fact is that I do not. We need a major debate on this so that people can understand the situation. For the moment, however, we need to have proper and clear guidelines on how to make an application to get off the database in reality and not only in exceptional circumstances. I wish to test the opinion of the House.

Clause 18 [Material not subject to existing statutory restrictions]:

3: Clause 18, page 14, line 5, leave out “(whether”

The noble Baroness said: My Lords, we are bringing this amendment back because, on reflection, and having read the Minister’s reply to the points we raised in Committee, we are not happy that Clause 18(4) is so widely drawn. We wonder why the provision that,

“the reference to crime includes any conduct that … constitutes a criminal offence”,

and so on, is necessary. We can understand that position as regards the UK, but my question in Committee was: what about crimes committed in another country, which this subsection encompasses, that are not crimes in the UK? I invited the Minister to give examples of situations in which information might be held on an individual who had committed a crime in another country which was not a crime here—for example, the consumption of alcohol.

The Minister’s reply related mostly to terrorism, which is internationally recognised as a crime; but I had hoped to draw out why the Government had chosen such a wide definition of criminal offences in the Bill, including those that would certainly not be crimes in the UK. By tabling the amendment again, I hope that the Minister will answer in a way that I can understand and give some of the examples that I had asked for. We left it open for more information to be given between Committee and Report, but we have not received any. I would like that information to be put on the record. I beg to move.

My Lords, the provisions on the retention and use of fingerprints and samples have three objectives: putting a counterterrorism DNA database on a firmer legal footing, allowing fingerprints or samples taken under the Police and Criminal Evidence Act 1984 and the Police and Criminal Evidence (Northern Ireland) Order 1989 to be used for national security, and making it easier to allow fingerprints or samples taken under the Terrorism Act 2000 to be placed on the National DNA Database.

Clause 18 puts the retention and use of DNA and fingerprint material that is not currently subject to statutory restrictions on a statutory footing, permitting law-enforcement use for certain purposes. Those purposes are: the interests of national security; purposes related to the prevention or detection of crime; the investigation of an offence or the conduct of a prosecution; and purposes related to the identification of a deceased person or of the person from whom the material came. I must make it clear that these provisions do not—I repeat, do not—create any new powers for the covert acquisition of fingerprints and samples.

Included in the samples covered by Clause 18 are those obtained covertly under Part 3 of the Police Act 1997 and Part 2 of the Regulation of Investigatory Powers Act 2000. The use of the powers in those Acts is subject to numerous safeguards and oversight. Covert and investigatory powers can be used only when they are necessary and proportionate with regard to human rights. Independent oversight is exercised by the Office of Surveillance Commissioners, the OSC, which conducts regular public authority inspections that are reported to the Prime Minister, and produces annual publications of its findings.

Anyone who believes that they have been the victim of unlawful, covert surveillance or any other investigatory powers set out in RIPA can apply to an investigatory powers tribunal to investigate their claim. The tribunal is independent of government, law enforcement and intelligence services. Statutory codes of practice provide guidance on the use of covert investigatory powers, including surveillance, and the Home Office is currently revising the covert surveillance code of practice. The OSC also provides advice during its regular inspection visits to public authorities.

As has been said, these amendments refer to the use of samples covered by Clause 18 for the prevention or detection of crime. Clause 18(4)(b)(i) covers offences under UK law or the law of another territory. Clause 18(4)(b)(ii) covers conduct that is, or corresponds to, conduct which, had it taken place in the UK, would have constituted an offence.

The definition in this Bill has been in operation under Section 64(1B)(d) of the Police and Criminal Evidence Act since 2001, when it was amended by Section 84 of the Criminal Justice and Police Act 2001. Since that change, there have been no challenges to the provision. The definition can also be found in the Police and Criminal Evidence (Northern Ireland) Order and the Terrorism Act 2000.

There are two reasons why the definition must remain as currently drafted: first, there is an operational need to share samples internationally to tackle crimes such as drug trafficking, people smuggling and terrorism; and, secondly, for the purpose of uniformity, which enables the most effective and efficient use of retained samples.

Sub-paragraphs (i) and (ii) of Clause 18(4)(b), to which these amendments attach, provide the definition of crime for the purpose of these clauses. When this amendment was tabled in Committee, I made the point that the definition as currently drafted is essential for the most efficient use of fingerprints and samples. The definition must remain the same if we are to be able to counter the national and transnational threat of crime and terrorism. The effect of this definition is that the police can share fingerprints and samples internationally to aid terrorist and criminal investigations of crimes committed in the UK or abroad.

The threat of terrorism and crime requires both national and transnational multi-agency co-operation. It is important that we are able to share our data with national and international partners so that we can properly protect our national security and investigate crimes of an international and serious nature, such as drug-related crimes. The definition of crime at Clause 18(4)(b)(i) is drafted to maximise international co-operation where there is a serious criminal offence abroad. I shall explain the process by which samples covered by Clause 18, to which the amendment applies, may be shared internationally.

A request from a foreign partner would be submitted to the police to cross-check a sample with one held here. Initially, given the sensitivity of the samples covered by Clause 18, the police would treat the request with caution and, unless they considered it a valid request for a check regarding a particularly serious crime, it would be denied. There is no requirement to share these samples. Should the request pass this stage, a check may be done against the samples covered by Clause 18. It must be remembered that the number of samples covered by Clause 18 is very limited. Where a sample is shared with a foreign partner, it is completely anonymised. Therefore, if it is a fingerprint, the foreign partner receives only an image of the fingerprint and none of the biographical detail, the status of the sample or its provenance. Where it is a DNA sample, the foreign partner will receive a string of numbers—again, stripped of the biographical detail, status and provenance. Should the foreign partner subsequently find a hit against the shared sample, they would have to return to the police to request any of the sample’s biographical information, status and provenance, and a decision would then be taken as to whether to reveal that information.

The decision to share samples internationally is discretionary and is taken by the police. Given the nature of the samples covered by Clause 18, the decision is given considerable thought.

There are safeguards against the abuse of samples held subject to Clause 18. In line with his existing powers, the Information Commissioner will provide independent oversight of the database with regard to data protection issues. Additionally, the Metropolitan Police Service will liaise with the newly appointed Forensic Science Regulator to establish protocols for international exchange of DNA data. Working with the Custodian of the National DNA Database, the MPS will ensure compliance to standards it has set, which are accepted and adhered to by forensic laboratories.

The definition of crime in Clause 18(4)(b) is the same as that in Section 64(1B)(c) of the Police and Criminal Evidence Act 1984, Article 64(1B)(c) of the Police and Criminal Evidence (Northern Ireland) Order 1989 and paragraphs 14 and 20 of Schedule 8 to the Terrorism Act 2000. In those statutes and in this Bill a crime is defined as a criminal offence under the law of the UK or of a country or territory outside the UK.

It is vital that the definition of crime remains the same across those pieces of legislation and in the Bill we are debating today. Such a uniform definition is fundamental to the efficient use of fingerprints and samples. As long as fingerprints and samples are obtained legally and retained legally, their subsequent use for the prevention and detection of serious crime must be of the utmost importance. As I have already said, samples are shared internationally only for the most serious crimes and where this definition has been in operation since 2001. The number of requests received from all other countries to check profiles from unsolved serious crimes or for the identification of an unknown deceased person believed to be a United Kingdom national for the year 2007-08 is 727.

It would be an anomaly for the definition in this legislation not to remain the same as that in other legislation concerning the retention and use of fingerprints and samples. What is more, given the nature of the samples held on this database, the ability to share them during investigation of the most serious crimes is likely to be of great utility to the United Kingdom as we work to build up a clearer picture of the criminal and terrorist networks which entwine and span the globe. It is important to remember that the number of samples covered by Clause 18 is very small. The number of officers who have access to those samples is limited and all are subject to stringent vetting processes. The samples subject to Clause 18 will be classified as secret and, as such, they will be closely guarded. Where these samples are shared internationally, it will be only for the most serious offences, in the very limited circumstances I have set out and subject to anonymisation.

We can all agree that it will be in the national interest to bring to justice those who have committed the most serious offences and we must do all we can to assist in that. I can state absolutely categorically to the noble Baroness, Lady Miller, that such material would not be with regard to drinking or other very minor crimes in this country. Historically, that has not been the case. I hope the noble Baroness is able to withdraw her amendment.

My Lords, I thank the Minister for that very helpful and full reply. He set out the guidelines, when they will be revised, how they will be applied and police attitudes generally to this legislation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 4 not moved.]

NHS: Access to Medicines

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

“With permission, I would like to make a Statement about Professor Mike Richards’s review of current policy concerning NHS patients who wish to pay for additional private drugs.

“I would like to begin by paying tribute to Professor Richards and his team for the diligence with which they have conducted this review. The report is informed by evidence from thousands of patients, carers and clinicians across the country, and was completed with necessary urgency, but without in any way compromising its thoroughness. The time scales I set were deliberately challenging because this is an issue that is causing great concern and distress to a number of patients and their families.

“The terms of reference for this review were to examine current policy relating to patients who choose to pay privately for drugs that are recommended by their clinician but not funded by the NHS and who, as a result, are required to pay for the NHS care that they would otherwise have received free of charge. I also asked Professor Richards to make recommendations on whether policy or guidance could be clarified or improved. Professor Richards quickly identified the underlying causes of the problem. His review starts from the fundamental principle that the NHS provides a universal and comprehensive service to all of its patients, free at the point of need.

“During the Second Reading of the 1946 NHS Bill, Nye Bevan described the financial anxiety endured by people seeking medical help as the first evil that the NHS must vanquish. Yet Professor Richards’s report shows that access to certain treatments on the NHS, particularly drugs for the terminally ill, is inconsistent, and, as a result, a very small number of patients feel that they have to pay for additional treatment and are worried that in doing so they will jeopardise their entitlement to NHS care.

“The report makes recommendations not only to revise the guidance for these exceptional and rare circumstances, but to improve access to certain drugs on the NHS, reducing the need for such patients to resort to private care. His recommendations are accompanied by proposals put forward by Professor Sir Michael Rawlins, chair of the National Institute for Health and Clinical Excellence (NICE), to employ greater flexibility in the appraisal of certain treatments, specifically those relating to drugs for the terminally ill. I accept Professor Richards’s recommendations in full, and today I can announce two immediate developments to make more drugs available on the NHS to those who will benefit from them.

“Since it was established in 1999, the National Institute for Health and Clinical Excellence has ensured not only that many thousands of patients benefit from access to the latest treatments, but that the taxpayer gets value for money. NICE provides wholly independent and scientifically rigorous assessments of the latest medicines and treatments, and is widely admired across the world for its work. Its guidance on drugs and treatments is internationally respected, and many other countries are adopting similar models.

“The price of the drugs that NICE assesses is a matter for the manufacturers. I can also confirm today that I am working closely with the pharmaceutical industry on new and more flexible pricing arrangements that will increase patients’ access to new drugs. These arrangements will include enabling drug companies to supply drugs to the NHS at lower initial prices, with the option of higher prices if value is proven at a later date. The new arrangements will also build on patient access schemes already developed for particular drugs. This will help to ensure that patients can access medicines that would not otherwise have been deemed cost-effective by NICE. I expect to be able to say more about this shortly.

“In addition, NICE itself has for some time been concerned about its ability to take into account the premium that society places on helping those with terminal illnesses. Professor Sir Michael Rawlins has written to me to outline a new, more flexible approach to the appraisal process in order to address these concerns. NICE proposes to introduce more flexibility in the evaluation of higher-cost drugs, which have been shown to extend the lives of terminally ill patients, and where the less common nature of a particular condition may mean that the more flexible pricing arrangements we are discussing with the industry are not in themselves sufficient. The proposal will be implemented immediately while NICE holds a full consultation. These two measures will ensure that more treatments, which in the past patients may have been able to access only privately, will be available free on the NHS.

“The work of NICE is necessarily complex, but as we highlighted in the cancer reform strategy, it sometimes takes too long. Its appraisal guidance has often not been available for two years or more after a drug has been licensed. Steps have already been taken to address this with, for example, fast-track procedures to automatically appraise significant new cancer drugs. But the time it takes NICE to publish guidance can lead to a significant local variation.

“In response to Professor Richards’s report, I am today setting out a new timetable to speed up the appraisal process for all drugs evaluated by NICE. In 2009, draft or final guidance will be available within six months of licensing for about half of the drugs that are being appraised through the fast-track single technology appraisal programme. In 2010, draft or final guidance for all new cancer drugs will be available on average within six months of a drug being licensed. We will work with NICE to explore further ways of speeding up the appraisal process, with the intention of announcing the outcome of our work early in the new year.

“All these measures will dramatically reduce the instances where a drug is available on the market but primary care trusts have no guidance from NICE on which to base their decisions about funding a particular treatment. However, we cannot totally eliminate instances where primary care trusts have to make decisions in the absence of NICE guidance altogether. Professor Richards has found that patients and professionals often are not clear who is taking such decisions or how they are making them. Patients and their families are often left bewildered as to why a particular treatment has been denied, despite what they see as a clear clinical need. As we highlighted in the NHS constitution, we need to do more to improve the quality and consistency of these decisions, particularly during any interim period before NICE’s guidance is released.

“We will therefore publish a set of core principles to inform how primary care trusts make decisions on the funding of new drugs. It is essential that the process, as well as the decisions, is clear and accessible to patients and the public, so that if a patient is denied access to a particular treatment, the reasoning behind that decision is both transparent and consistent. We will be publishing detailed good practice guidance for PCTs about the processes they should have in place to make decisions about the funding of new drugs and their handling of exceptional cases.

“Better local decision-making, a faster appraisal process, fairer pricing and greater flexibility in the evaluation of certain treatments will address the main issues that have fuelled the demand from some patients for additional private treatment. However, it would be unreasonable to expect the NHS to fund every single new treatment, and we cannot guarantee that we will completely eradicate the circumstances in which a very small minority of patients wish to pay for a drug that the NHS does not provide. The vast majority of people Professor Richards spoke to during his review thought that, in these circumstances, it would be wrong to take away a patient’s entitlement to NHS care because he had purchased an additional treatment privately. Professor Richards recommends that this practice should end, and I agree with him. It will end with immediate effect.

“However, he is also clear that there must be tight controls to prevent the NHS becoming a two-tier system. Today, we will publish draft revised guidance to take immediate effect in order to ensure that the NHS is clear on how to deal with the rare occasions—which, with the implementation of the proposals already mentioned, will be even rarer—where patients opt to fund additional drugs privately. The guidance will make clear that in those circumstances NHS care should never be withdrawn and that administering private care should take place separately from NHS care to ensure that NHS funds are never used to subsidise private care. In short, there is no question of patients who are able to pay more being able to access a different and higher level of NHS treatment, but neither should any patient who has at some point paid for private treatment lose his entitlement to NHS care. Today’s draft revised guidance sets out that, in such circumstances, private treatment should be provided in a private facility so that it is always clear whether a particular treatment is NHS or private. This removes any confusion over what constitutes a single visit or a single episode of care. It will also remove any question of there being a two-tier system where those who pay for additional care are having their private care subsidised by the NHS.

“The NHS must by definition be continually evolving and improving to meet rising expectations and to offer the latest advances in medical care to all our citizens, irrespective of wealth, class, ethnicity or disability.

“This has been a debate of critical importance to the NHS and the values that underpin it. I believe that the measures that I have outlined today, in enabling the NHS to exercise its natural compassion, will actually help to secure these values for the future. We are fortunate in Britain to have a health system that provides a comprehensive service for all patients, based on clinical need, with public funds for healthcare devoted solely to the benefit of the people it serves. The report by Professor Richards enhances these principles, and I commend the Statement to the House”.

My Lords, that concludes the Statement.

My Lords, the House will be grateful to the noble Lord, Lord Darzi, for repeating the Statement. I am sure that I will not be alone among your Lordships in having mixed feelings about the announcement that he has made. On one level, the Government are to be congratulated, as is Professor Mike Richards, on having grasped a very difficult policy nettle and come up with a way forward that they believe is workable. I certainly welcome the announcements on NICE appraisals, flexible pricing for new drugs and the core principles to guide PCTs in their decision-making. On another level, we are left with the distinct impression, despite the noble Lord's assurances, that the way forward adumbrated today on top-ups amounts to nothing less than a two-tier NHS, something against which all political parties have hitherto set their faces.

We are also left asking whether the Government have focused sufficiently on the real issue, which is surely: why are NHS patients in England not able to receive clinically effective treatments that are routinely available in other European countries free at the point of need? Against that background, I have a simple query to level at the Minister: is he or is he not in favour of top-ups? Does he believe that top-ups will be good or bad for the NHS? Obviously, from the point of view of the patient, there can be no disagreement: patients in this country want to receive clinically effective treatments. If there are clinically effective treatments that the NHS is unwilling to supply, the NHS should not stand in the way of patients who want to access them. I would not for a minute argue with that. Equally, if a patient chooses to purchase a drug privately for which the NHS will not pay, it is wrong that he should then lose all entitlement to his other NHS care. The wonder is that the Government have allowed that to happen in those instances where it has been reported.

However, is creating a two-tier NHS the right way to address the issue? Do not top-ups in one important sense represent a defeat? Does the noble Lord think that by allowing an NHS patient in an NHS bed to top up his care with his own money we can successfully avoid blurring the line between private and NHS care? As he will know, to blur that line risks giving rise to enormous public resentment, as well as, for practical purposes, an abandonment of one of the founding principles of the NHS. Personally, I am fearful of that prospect in the light of today's announcement, because I do not think that the occasions on which the right to top-up is invoked will be as rare as the noble Lord suggests.

There is one thing about which we should all be clear. The announcement made today will not rid us of the postcode lottery. Unless the Government make the proposed core principles statutory and mandatory, PCTs will still be able to decide for themselves what exceptional cases they are prepared to fund and what cases they are not. That means that gross disparities in NHS-funded care are bound to remain around the country. What additional action are the Government going to take to address that issue?

I have a number of more detailed questions for the Minister. Once top-ups, in any form, are allowed, there must be a concern that patients may be at risk of exploitation. We must avoid a patient being led to invest their own money in treatments that do not deliver the clinical results that the patient expects, with the result that he spends in vain a great deal of money—money that he might not have. What does the Minister propose to do to prevent this kind of risk and to enable patients to make a genuinely informed choice? In so far as patients may be charged by the NHS for the cost of administering a drug purchased privately, what arrangements will be put into place to ensure that these charges are fair and transparent and genuinely represent only the marginal costs incurred?

On a related issue, how are patients to be protected from unjustifiably high prices for the medicines that they buy? Once pharmaceutical companies know that patients can purchase a drug privately, and that they do not have to justify their products to NICE, what is to deter them from raising their prices to a level that exploits the desperation of patients? Equally, what is to deter PCTs from deciding not to fund a particular treatment, knowing, as they will, that the patient can pay for them privately? How will the advent of top-ups not lead, slowly and quietly, to large numbers of treatments no longer being available on the NHS at a local level?

I could ask several detailed questions about how a top-up is to be defined, which is a fairly basic question, but I shall focus on more substantive practical issues. Where a privately purchased drug has been administered, who will be responsible for follow-up care, and where does the financial liability lie if the clinician is negligent or incompetent? What will happen if, half way through a treatment, the patient no longer has the money to pay for it? What happens if, having commenced a treatment privately, the patient finds that it prolongs his life for much longer than he had budgeted and that he is spending money that he has not got simply to keep the treatment going? What action will the Government take to ensure that patients are properly advised before they decide to top up their NHS care privately?

Today’s announcement will certainly come as a relief to patients who have been left in a state of uncertainty about whether they will be able to access certain drugs and still remain an NHS patient. To that extent, it is good news. Equally, however, we can surely no longer argue from today that treatment on the NHS is available based solely on need and not the ability to pay. Indeed, the Government have created a potentially awful muddle here. On the one hand, they think it right to exempt cancer patients from prescription charges. On the other, they know that the cost of that exemption—some £20 million—would be enough to fund all the requests that were turned down by exceptions panels in 2007 for drugs to treat rarer cancers, drugs that patients will in many instances find themselves paying for out of their own pockets and at considerable cost.

The Statement leaves unanswered as many questions as those that it purports to remedy. No doubt much of the detail will emerge, but the national debate on these questions is only just beginning.

My Lords, I, too, thank the noble Lord, Lord Darzi, for repeating the Statement, and Professor Mike Richards for his report.

There is something inevitable about today’s Statement. There has been a build-up ever since one or two very high-profile cases came to light last year, and it was inevitable that this matter would unfold as it has. To a certain extent, neither the Government nor the opposition parties have any option but to go in principle with the position which the noble Lord has outlined. It is now inevitable that there should be a system that enables patients to pay for additional care without losing their entitlement to NHS care.

I welcome the Statement for one particular reason. I hope that it will signal the beginning of a much quicker process of NICE approval for drugs and remove one of the weapons that many people wield in order to bash NICE. A great deal of that bashing comes from the NHS. I believe that NICE is important and that we should do everything that we can to support it.

Like the noble Earl, Lord Howe, I believe that it is easy to agree with the principle, but it is essential to have clarity on the detail. Many issues have to be examined. One sentence in the middle of the Statement states:

“There is no question of patients who are able to pay more being able to access a … higher level of NHS treatment”.

We have a duty to test that central assertion. I believe that this new system will bring inequities and inequalities; it is simply a question of how those will be managed. A key test will be whether patients receive the provision from the NHS that they need as opposed to the provision that they want, which may be very different.

I should like to give the Minister the opportunity to reply to some very specific questions, as I think that the answers will help people as they come to terms with the implications of the proposals. First, what will and will not be included? So far the discussion has been largely about cancer drugs. Are we going to talk about drugs for other conditions, including Alzheimer’s, and will the system extend to therapies such as hormone therapies? What steps will be taken to prevent drug companies manipulating patients? What sanctions will there be if drug companies are found to have manipulated patients or to have influenced or sought to influence the treatment decisions of health professionals?

Primary care trusts have to set an annual medicines budget. In the absence of any evidence about the number of people who could take advantage of the new top-up rules, what guidance to PCTs will there be on how to estimate the potential patient contribution in their area? When it sets PCT budgets, will the Department of Health take into account the difference in affluence among populations in different parts of the country? This question may be naive, but will the income generated go into the medicines budget of the NHS? Will it be ring-fenced or will it go elsewhere? Will patients pay the full cost of a drug that is not funded by the NHS, or will they pay merely the difference between the price of the requested drug and an existing drug with similar therapeutic qualities?

If drugs are effective and cost-effective for a significant number of people, NICE will recommend them for reimbursement by the NHS. But in terms of top-ups we must be talking about drugs that are marginally effective, or not cost-effective, though they may have a very high value to an individual in that they may prolong their life. In the Government’s new system, what is the incentive to pharmaceutical companies to make drugs cost-effective? It is inevitable that an insurance market covering drugs and people’s needs will develop. Have the Government estimated the cost to the NHS of a new insurance-funded market in medicines in which drug companies have no incentive to keep prices down? How is the system to be reviewed, and will any such review compare and contrast with the system being implemented in Scotland to see which works best in terms of patient benefit?

The proposal outlined in the Statement poses an interesting but severe challenge to clinicians, pharmaceutical companies and patients. The one thing that could damage it irreparably is any attempt to fudge or shy away from clarity about what is being proposed. I think that we are talking about the introduction of a private market into the NHS in terms of drug treatment. If it is going to be implemented in full, patients need to know at the beginning that they are in a private market. The worst thing the Government could do would be to present it otherwise.

My Lords, I am grateful for the feedback from the noble Earl, Lord Howe, and the noble Baroness, Lady Barker. I shall start with the issues raised by the noble Earl on top-ups. The term “top-ups” has been used by different people to mean different things. There is no clear definition and I think that it is a confusing and sometimes unhelpful term. The Statement makes it clear that the Government are committed to not in any way allowing people to buy better care on the NHS. We are fundamentally committed to a comprehensive NHS free at the point of use, and the proposals we have announced today will widen access to drugs and treatments on the NHS. What we have said is that in very rare circumstances, ones that will become even rarer, where people choose to pay for additional care through drugs privately, they must receive that care separately. However, they will not have their entitlement to NHS care withdrawn. That was very strongly signalled in Professor Richards’s report, which involved consultation with more than 2,000 patients and members of the public, as well as a large number of clinicians.

The wider package which has been announced today improves the timeliness of NHS appraisals, giving NICE greater flexibility and improving local decision-making. That reinforces the message that these new policies will reduce significantly the current circumstances in which a patient may seek to purchase a drug privately, but at the same time we are making an explicit statement that if a patient wishes to purchase a drug privately, their rights to NHS treatment should never be withdrawn.

The other issue that came up was the question of why other countries fund these drugs while we do not. We have to accept the fact that different countries have different healthcare systems and that the provision of drugs and other kinds of healthcare is funded in different ways. However, there is a growing recognition internationally that all healthcare systems face the same challenges and need ways of assessing both the clinical and the cost-effectiveness of drugs so that decisions can be taken on how best to prioritise investment in health. We set up the National Institute for Clinical Excellence so that these difficult issues could be considered objectively and without political interference. While in general terms we use fewer cancer drugs than other countries, as highlighted by the noble Earl, that is not necessarily always the case. Perhaps I may give one example: the use of Herceptin for breast cancer is running at around 95 per cent of international average use. In many cases the level at which we use drugs runs close to the levels found in countries such as Australia, Canada and Norway. However, I acknowledge that we could do better, and that is the reason for these new policy announcements.

A further issue raised by the noble Baroness and the noble Earl is that of pharmaceutical companies exploiting patients at a very difficult point in their lives, a good example being as they approach the diagnosis of an advanced metastatic cancer. The revised guidance we have issued, which is out for public consultation, makes it clear that clinicians should exhaust all reasonable avenues for securing NHS funding before suggesting that a patient’s only option is to fund the treatment for him or herself. One of the most important safeguards for patients is the transparency created by the revised guidance and Professor Richards’s recommendations in regard to providing patients with clear, written information. In the EU and the UK, law prohibits the advertising to the public of prescription-only medicines. This means that the pharmaceutical industry may not promote such products directly to the public.

The noble Baroness also raised the issue of incentives. These policies do not in any way incentivise the pharmaceutical companies. The major policy announcement today about flexible pricing will incentivise pharmaceutical companies to introduce their drugs at a lower cost initially to get them through a NICE appraisal because the volume of patients using a drug once it is recognised by NICE will be significantly greater than the small number of patients who may decide to purchase the drug privately.

The noble Earl raised issues about clinical governance with which I agree. He will acknowledge that in many care pathways patients are transferred from different clinical teams throughout the journey. Whether it is a cancer pathway or a stroke pathway, we know that a large number of teams are involved in its delivery. Any effective team has clear policies for the transfer of a patient to the care of another team if that issue should arise.

On the issue of clinical governance from the perspective of the doctors involved in the delivery of such care, the revised guidance which has been issued today, and which will be open for consultation for a period of 12 weeks, establishes that if a patient seeks information about private services the NHS clinician should provide them with as full and accurate information as is available at that time—whether it is the evidence base, the side effects or other factors—in the same way as any other professional having a one-to-one discussion with the patient in front. Consultants, however, should not initiate discussions about providing private services from the NHS; the patient will instigate such discussions.

Professor Richards’s review also recommends that doctors who are likely to have conversations with patients about treatments that are not routinely funded on the NHS should have the necessary knowledge and skills to communicate the information to patients in a balanced way. Another policy announcement today is that the Department of Health will commission communication skill programmes through royal colleges for clinical oncologists who will be involved in the counselling of their patients.

I could not agree more with the noble Baroness about the need to measure what we are doing. One of the recommendations in the report is to create a registry in which any drug a patient may wish to purchase privately will be registered. This is because we want to see whether the policy is working and, more importantly, we need to establish a benchmark. If a clinician advising patients in one part of the country shows an increase which is threefold that of another clinician, the situation will need to be looked into. So the safeguards are in the guidance to ensure that there is no exploitation, as suggested earlier.

My Lords, the Minister’s clear statement that a patient using any form of top-up drug will have their previous or current NHS care protected is enormously welcome. However, it raises a question about those who have suffered, not least since his colleague in this Chamber, in reply to a question that I raised on a previous occasion, said that it was the misinterpretation of advice that had created this situation. Some families will have suffered greatly: what kind of compensation will there be for them? Secondly, why is it not mandatory on a PCT to provide a drug that is approved by NICE?

My Lords, I am grateful to the noble Lord. With regard to the interpretation of the guidance, it is obvious from the Richards report that there has been a large variation in the interpretation of the guidance in different parts of the country. That is why we are where we are. Professor Richards’s recommendation is to get rid of those variations across the country, and the clarity that we brought in today should do that.

The noble Lord asked about compensation. These are individual cases with unique circumstances, which I have no doubt should be taken up at a local level between the patients and the PCTs in discussions about their entitlement or otherwise to NHS treatment. From here on, though, we have brought in the clarity that no patient will ever lose their entitlement if they wish to purchase a drug privately.

PCTs should, if a drug is approved by NICE, be funding that drug. The next-stage review that I recently led, High Quality Care for All, can be met only if commissioners ensure on behalf of their patients that the best evidence that has an approval, whether for a drug, a medical technology or any other advance, should be available to any patients across the NHS in England.

My Lords, like other noble Lords, I greatly welcome the Statement and congratulate the Minister and Professor Richards. This creates a level playing field and regularises what in many ways has been happening in medicine for many years, with patients coming from private care possibly into A&E or ITU when things have gone wrong.

I want to ask more about registration. Will the register of those who have had additional drugs privately, based on clinical need, be held by the cancer registries? Will the data on that registry include data on outcomes that will be fed into NICE so that, where a drug has unexpectedly good or unexpectedly adverse outcomes when given to patients with multiple co-morbidities, that information can be fed into the NICE process and may alter the way that a drug is classified in the future?

It would be helpful to the House if the Minister could briefly outline how as a clinician he would explain the risk as well as the benefit to a patient who asked him whether he should go for an additional private and self-funded anti-cancer treatment.

My Lords, I am grateful for the noble Baroness’s thoughts about the registry. She raised some important issues. We have not yet reached a conclusion on the exact details of what information should be on the registry or who should own it. I have no doubt that a registry of this kind should have not just the types of drugs but the conditions the patients are being treated for, the side effects of such treatments and their effectiveness. The purpose of the database is to use that information to empower NICE in the future to look at its appraisals based on the information available locally. One of the tasks following the review will be for Professor Richards to implement some of the recommendations in it. I would welcome the noble Baroness’s expertise in helping him to decide where the registry should be and how it should be managed.

With regard to risks and benefits, she will also agree that one thing we learn in professional training is the ability to communicate with a patient about any treatment, whether it is a cancer drug or a straightforward day case procedure, the clinician might be carrying out. That is one of the basic principles of being a competent practitioner: to be able to sit in front of the patient and describe the risks and benefits. However, I appreciate that in certain circumstances, with terminally ill patients, such discussions might be much more challenging. We are talking about areas of drugs for which sufficient data may not be available. That is why I strongly believe that we should pursue the recommendation that the department should be commissioning the royal colleges specifically to target clinicians in specialised clinics, such as medical oncology clinics, who may have to have these difficult conversations—challenging conversations, in some instances—with their patients.

My Lords, there was widespread approval for what the Minister said, because he has listened to the hard evidence of cases put forward and submitted a change that will be met with gratitude on all sides. The Minister mentioned only drugs. Will the new rules apply also to some kinds of technical treatment? Can we assume, in this bright new day, that patients who have had cataract treatments may be fitted with the new implant lenses, for which they have always had to pay, without thereby being banned from further treatment for their eye condition? Will such patients be able to obtain those new lenses, which are an infinitely better treatment and give them far better vision than the previous lenses, eventually on the NHS?

My Lords, I am grateful for that question and delighted that the noble Baroness has accepted the policy announcement today. The answer to her question about cataracts is no. Cataract treatment is part of an operation that is funded by the NHS, so we cannot have two different proposals in that single treatment. The best example that I see in my own clinics is a patient coming in for a groin hernia repair who may request a tummy tuck on the side. The answer to that is no. However, if there are much more effective cataract treatments and there is an evidence base to support that, and if an appraisal could be carried out by NICE to conclude that that cataract treatment is significantly better, I cannot see why the NHS could not fund it across the country. However, there is no way we will provide for a patient purchasing a separate device during a single procedure.

My Lords, we are extremely grateful to the Minister for repeating an important Statement. It raises an important principle of care which I imagine will grow within the health service as our healthcare becomes increasingly complex and often quite expensive. One of the issues, however, is whether the principle might apply not merely to drugs but to other treatments. I think in particular of reproductive medicine. NICE has recommended that up to three cycles of in vitro fertilisation treatments might be offered, but in practice many primary care trusts refuse to treat any patients for IVF if they have already had a private cycle for which they have paid separately. As my noble friend knows, many NHS units quite properly offer private and public treatments in the same unit, accounting with proper governance, which we all respect and would wish to see.

Perhaps the Minister might opine on whether these kinds of treatments might also extend to pregnancy care; for example, to a patient who might go during pregnancy for an anomaly scan which is not available under the National Health Service but might do a great deal of good psychologically, if not medically, in dictating the course of her pregnancy care. I would be grateful for some preliminary evaluation and clarification of these points in general, although I understand that my noble friend may not be able to commit himself completely.

My Lords, the noble Lord, Lord Winston, spoke mostly about his area of expertise. If a patient has received IVF treatment privately and has never received the NHS-funded three cycles to which the noble Lord referred, they have every right to their three-cycle treatment. Having private treatment first does not take away your right to seek NICE-approved, three-cycle treatment. If a treatment is not approved by the NHS, such as an anomaly scan, as highlighted by my noble friend, the patient could purchase it privately if they wished to do so.

My Lords, does the noble Lord agree that much of the difficulty that has been expressed by, for example, the noble Earl comes from a failure to recognise that different people will take different views about the value of a treatment? If I am told that I could spend £20,000 on treatment that might keep me alive in some discomfort for another two months, I would say, “No thank you”. However, a lot of people might say, “I want it regardless”. The National Health Service cannot make individual judgments such as that; it makes a general judgment. If someone does not like the general judgment and wants to pay the difference, I can see no reason why they should not do so and every reason why the Government’s Statement is greatly to be welcomed. The Opposition’s cavilling is a failure to understand that some people will spend their money regardless, in the faint hope of keeping alive for just a little longer.

My Lords, the noble Viscount says that different people will value things in different ways. Indeed, it is our right to value different things in different ways, whether that is the money, the treatment or the risk of the treatment. That is one of our basic rights as patients or members of the public in seeking the opinion of an expert; we make the judgment based on that. However, on the second suggestion, I believe that paying the difference would create a two-tier system and erode one of the most fundamental principles of the NHS, which is 60 years old this year and in which care is provided for free at the point of need, irrespective of ability to pay. The Richards review received very negative vibes on that suggestion in its public consultation.

My Lords, it is clear that the flexibility and timeliness that will result from these welcome decisions will significantly reduce the occasions on which patients feel that they want to pay for private treatment. However, does the Minister agree that it is also important that we reduce confusion about this issue, particularly for patients? The advice of clinicians will be of the utmost importance, so I am delighted to hear that there will be training in communication skills for clinicians who have to convey these difficult messages. Will that training also include how patients can be involved in these difficult decisions, given the NHS’s commitment to user and public involvement?

My Lords, absolutely. Communication skills are developed for talking to patients and should be based on what patients are telling us about these difficult conversations. The purpose of the communication skills is to meet the aspirations not just of the patients but also of their families and loved ones, who are usually involved in these difficult decisions.

My Lords, does the Minister think that the Statement will make postcode prescribing better or worse? Surely that is the real problem of a two-tier system.

My Lords, the purpose of this announcement by my right honourable friend in the other place is absolutely to reduce and tackle the postcode lottery in a dynamic NHS, which has constantly been challenged with new treatments and new drugs at a significant cost. Perhaps I may go into more detail on the two most important policies that we have announced. The first is flexible pricing, which will allow a pharmaceutical company to introduce a drug at a lower cost to get through the approvals system; if a larger pool of patients is using the drug, the company will obviously more easily recuperate R&D and other associated costs. The second policy is the announcement made by NICE today about rarer cancers. As the number of patients benefiting from these drugs is very small, the current appraisal processes make the cost per quality-adjusted life years greater than the benchmark, which has been between £20,000 and £30,000. NICE’s announcement will significantly increase that level for these drugs for rarer conditions, which have given rise to many of the issues that the noble Baroness has been referring to over the past year or 18 months.

My Lords, I welcome the Minister’s announcement. Has he looked at the interrelationship with the European health directive, currently under consideration, which raises similar difficulties? That is the directive whereby patients will be able to opt to go to Europe for their treatment and then claim the amount that the National Health Service would have spent had they stayed in this country. I declare an interest as chair of the European Union Committee, which is looking at the issue. I ask the noble Lord this because the Minister in the other place was unable to comment on the impact of top-up in this situation as this announcement was likely to be made.

One of the issues that concerns the committee, and it reflects the points made by the noble Earl, Lord Howe, is that it is clear that if you have more money—indeed if you have £20,000 to spend—you can travel, arrange accommodation and so on to avail yourself of some different kind of treatment. Does the Minister recognise that there will be greater complexities, even though we have a simplified system, that need to be considered when looking at both top-up and the capacity to travel to Europe? In addition, insurance schemes will develop to enable people to take up the healthcare they wish to have.

My Lords, the noble Baroness obviously has much greater expertise on the EU and the EU directive than me but I shall attempt to answer the question. There are clear guidelines. If a patient wishes to receive a treatment in Europe, their reimbursement will be based on what the local health service pays in their home country. If there were a differential between the two, I would hope that any European country providing that treatment would make that clear to the patient prior to their receiving it.

I do not think that it is the Government’s role to decide what patients or the public spend their money on. If patients wish to purchase a drug privately, the NHS will make it clear that we will help them in achieving that purpose, so long as that care is delivered in a separate setting. If they wish to have that treatment elsewhere, they have every right to do so.

My Lords, I apologise to the Minister for not being here at the beginning of his Statement, but I have read it thoroughly. One, perhaps small, point worries me. If a patient opts to pay for a drug privately that he or she thinks will help them and they get a complication or a reaction to that drug, which is directly related to the drug, will the patient then have to pay for treatment of that complication in the private sector, or will the health service accept them back into the NHS? Will it be made clear to the patient before they do so?

My Lords, if the complication or the side effect is related to the drug—and we are well aware of the side effects of most of these drugs—that patient will be counselled before, not only about the drug but also about the side effects, and they will be responsible for paying for the side effects of that specific drug. If a patient has or develops a complication related to their illness, which is nothing to do specifically with the drug, they will receive their full entitlement, which is free NHS care.

My Lords, I warmly applaud the Statement in general and particularly that part that deals with the purchase of additional drugs. I appreciate that administratively this matter has been transferred to the Welsh Assembly, but what discussions have taken place with the Assembly on the matter? My understanding is that this matter was already actively under consideration for some time by the Assembly. I uphold the right and responsibility of the Assembly to take its own independent decision on this matter, but is it possible that a common policy can be agreed—particularly since, as I understand it, some 30,000 patients each year cross the border in one direction or another, and it is therefore very much in the interests of all concerned that there should be commonality on this policy?

My Lords, this is a devolved issue, as the noble Lord has suggested, but I shall make two points in relation to Wales. First, Wales uses the NICE recommendations in its decision-making, unlike Scotland, which has its own system for appraising technologies; therefore, there are a lot of commonalities between England and Wales, and I have no doubt that officials in England are talking to officials in Wales.

Secondly—the noble Lord might view this positively—the flexible pricing which my right honourable friend in the other place is negotiating with the pharmaceutical companies is a UK-wide issue. If my right honourable friend is successful—the signals are that the Government and the pharmaceutical companies are both committed, but we are currently in discussions regarding the PPRS—many patients in Wales will benefit from one of these policies.

Counter-Terrorism Bill

Consideration of amendments on Report resumed.

5: After Clause 22, insert the following new Clause—

“Independent Commissioner for Terrorist SuspectsIndependent Commissioner for Terrorist Suspects

(1) The Secretary of State shall appoint a person to be known as the Independent Commissioner for Terrorist Suspects (the “Commissioner”) and such appointment shall be subject to the approval of the Lord Chief Justice, and shall be on such terms as to length of service and remuneration as the Secretary of State shall determine.

(2) The principal function of the Commissioner shall be to monitor the detention and treatment of terrorist suspects held under section 41 and Schedule 8 to the Terrorism Act 2000 (c. 11).

(3) In order to fulfil his functions under this section, the Commissioner shall be entitled to visit Paddington Green Police Station, and any other place of detention where terrorist suspects are held, so as to ensure that the questioning of suspects is being carried out diligently and expeditiously, and in accordance with the provisions of Schedule 8 and PACE Code H.

(4) Such visits shall take place at the discretion of the Commissioner and may be unannounced.

(5) The custody officer shall inform the Commissioner within 24 hours of a terrorist suspect being detained.

(6) The police shall give the Commissioner such assistance as he may reasonably require so that he can fulfil his functions under this section.

(7) The Commissioner shall be entitled to interview terrorist suspects with their consent, and may require such interviews to take place in the absence of the police and he may also attend interviews conducted by the police.

(8) The custody officer shall inform the Commissioner whenever the police are to make an application for the extension of the period of detention and the Commissioner shall be entitled to be present at the hearing before the judicial authority in order to give him such assistance as he may require.

(9) The Commissioner shall make an annual report to Parliament as to the carrying out of his functions under this section.”

The noble and learned Lord said: My Lords, I expect the House will know that if the police wish to detain a terrorist suspect for more than seven days, they must make an application to the judge, or the judicial authority as he is called in Schedule 8 to the Terrorism Act 2000. If the judge is satisfied that the police are getting on with the investigation in the way that they should, he may extend the time from seven to 14 days and thereafter from 14 to 21 days and ultimately to 28 days. That is fine as far as it goes; it is the judge who decides. However, there is a weakness in the system because the judge has very little to go on other than what the police tell him. No doubt the police will explain the difficulties that they are facing and say that they are getting on as fast as they can, but there is no way at present in which the judge can verify what he is being told. The object of the amendment is simply to fill that gap. It may seem a small gap, but I suggest that it is a serious and important one. There are a number of reasons for that. It is a fact that in terrorist cases a far higher proportion of suspects are released without charge than in other criminal cases. One wants to know why that is and what the reasons could be, and one wants to keep a watch on that. Even in cases where suspects are ultimately charged, up to a week will often go by before anything incriminating is put to them at all. During all that time they are left in doubt about why they have been arrested. There is anecdotal evidence that in the airline case, known as Operation Overt, there was sufficient evidence in relation to two of the suspects, who were charged only after 28 days, to charge them after 14 days, which is when, if that is true, they should have been charged. So there is indeed a job for an independent commissioner to do.

Before continuing, I should apologise for not having tabled an amendment to this effect in Committee, although I mentioned it at that stage. However, I do not think that the amendment will come as a surprise to the noble Lord, Lord West, because I mentioned it to him as long ago as last summer, or even perhaps the summer before—it is difficult to remember how these things proceed—when the Home Office was looking for material to put into its new terrorism Bill. Indeed, I raised it in the House and the then Leader of the House said that it was just the sort of idea that the Government were looking for. That is perhaps not a lot to be going on but it is at least something. The virtue of the amendment is that it is based on something that has already been tried and tested in Northern Ireland.

In 1992, the noble and learned Lord, Lord Mayhew, who was then Secretary of State, appointed Sir Louis Blom-Cooper to be the first independent commissioner for the holding centres in Northern Ireland. The holding centres were places such as Castlereagh, where terrorist suspects were then detained. Of course, there were differences in Northern Ireland, but everyone agrees that that appointment was a great success and that it actually worked. It continued year after year until after the Labour Government had taken office in 1997.

The amendment is based almost word for word on Sir Louis Blom-Cooper’s terms of reference, but there are some important additions, which have been suggested by Professor Clive Walker of the University of Leeds, who is the leading academic authority on terrorism. Indeed, as long ago as 1998, he suggested extending the jurisdiction of the independent commissioner for the holding centres to England and Scotland. Incidentally, he also pointed out that there has been a commissioner for detainees in South Africa since 1982, so there is good precedent for what I am proposing.

My Lords, I am very grateful to the noble and learned Lord for giving way. What is the intended territorial jurisdiction of the amendment? Does it intend to cover Northern Ireland and Scotland as well as England?

My Lords, that is a very sound question. I am proposing the amendment in relation to a single commissioner who would cover all three jurisdictions, but it may well be the position if the amendment were accepted that we would require separate commissioners for each of the jurisdictions.

What are the objections to the amendment? Two objections have been put forward by the noble Lord in his recent letter. The first objection was that there is already an independent reviewer of terrorism legislation, in the shape of the noble Lord, Lord Carlile, who is not here today. The new commissioner’s job would be quite different. He would not be advising the Government on terrorism legislation; he would be making sure on the ground that the police were getting on with their investigation. Unlike the noble Lord, Lord Carlile, he would not be reporting to the Government after the event. He would be reporting before the event to the judge who was granting the extension on whether to extend the period of detention.

There is another reason why a new appointment would not duplicate the work of the noble Lord, Lord Carlile. Terrorist prisoners are often transferred from Paddington Green to prison after 14 days. The noble Lord, Lord West, says that that is all right because they would then be subject to the oversight of Her Majesty’s Inspector of Prisons. With respect, that misses the whole point, which is to have someone who will follow the case right through from the moment the suspect is arrested to the moment when he is charged. To split the job between the noble Lord, Lord Carlile, and Her Majesty’s Inspector of Prisons would not be a sensible way ahead, if indeed it would even be feasible.

The second point made by the noble Lord in his recent letter is equally wide of the mark. He said that the suspect’s own lawyer would be present at the application to extend the time, and he could cross-examine the investigating officer to challenge the application “rigorously”. I think that is the word that he uses. The short answer to that is that the suspect’s own lawyer, however rigorous he might be, would not have access to the closed material, without which effective cross-examination would not be possible.

I invite the House to accept the amendment, which would fill a small but important gap in the present scheme of things. It would also do more than anything to reassure ethnic minorities that when suspects are detained the police are complying with their obligations under the law. That must be a desirable objective. I beg to move.

My Lords, we support this important amendment. The noble and learned Lord said that the gap may be small, but it is important. There is a lacuna in the current system of real-time monitoring. The noble and learned Lord mentioned that the noble Lord, Lord Carlile of Berriew, reports annually on the operation of relevant counterterrorism legislation, which is obviously an ex post facto activity. The importance of the amendment is that it would enable monitoring in real time. Real-time monitoring would result in the capacity for input into the way in which hearings are conducted and decisions to extend pre-charge detention are made.

There is currently no oversight of the practical operation of the relevant codes of practice, and the same is true of independent custody visitors. Given the significant concern about the nature of closed hearings which decide whether to extend pre-charge detention—and it should be remembered that in a closed hearing there is no capacity for external consideration—an independent assessment and an assurance from an individual who would be entitled to have, and would have, intimate familiarity with the developing case would be particularly valuable.

The amendment has the advantage, as the noble and learned Lord, Lord Lloyd, said, of being based on practical experience of an extremely relevant kind in Northern Ireland. This is not an untried idea. Given that the extension of pre-charge detention from 14 to 28 days is already an exceptional power, it is important to put in place appropriate monitoring, because we are already facing an important departure from normal practice.

My final point is that the amendment would reassure the public, particularly minority groups, that suspects were not being held unnecessarily—the noble and learned Lord started with that point—and that the charge would come at the right moment. That would mean that the power would not be suspected of being used in an oppressive manner.

My Lords, anyone who heard the noble and learned Lord, Lord Lloyd, would not be surprised that I strongly support the amendment. He generously referred to my paternity of it. In a display of equal generosity, I must acknowledge that the paternity is shared, because when I started in Northern Ireland in 1992, I picked up a recommendation of the noble Viscount, Lord Colville of Culross, who is in his place, that there should be independent monitoring of the three holding centres in Northern Ireland. In the middle of August that year I asked Sir Louis Blom-Cooper to undertake a task of that character, which he generously accepted. In December that year, I appointed him, and was able to do that administratively by announcing it in an Answer to a Written Question.

I support the amendment, because it serves at least two desirable objectives. The first is the avoidance of any oppression or unfairness by police who are holding suspects of terrorist offences in exceptional circumstances. That has to be the first objective. The second objective is that the amendment would forestall, or go a very long way to forestalling, at a subsequent trial any bogus allegation raised to the effect that there had been unfairness in the rendering of a confession statement, which would be inadmissible evidence.

In Northern Ireland, although the same is true here, such allegations were very common; one might even say that they were standard in terrorist centres. On each occasion it was necessary thereafter to try that issue in a trial within the trial, which for some reason that, I dare say, is familiar to lawyers in this House—although I have never got to the bottom of it—was known by its Norman French name of a voir dire. That could typically take as much as 20 days to determine, with evidence and counterevidence going back and forth, which held up the trial and added considerable expense.

What was needed was some objective, impartial evidence to corroborate the evidence of the interrogating police which could not be gainsaid. There was strong judicial support for an innovation of that kind in Northern Ireland. That was why we went along the road that has been described. Sir Louis took on, and was assisted by, a deputy, Dr William Norris, who is a psychiatrist. Their terms of reference, as the noble and learned Lord, Lord Lloyd, said, are to a considerable extent replicated in this amendment.

I spoke to Sir Louis today. The proof of the pudding is that he confirmed to me that after his appointment, for the eight years that he held the post in Northern Ireland, there was made no single complaint of impropriety having occurred in the course of interrogation in the centres, which would have led to a voir dire during the subsequent trial. Questioning or behaviour alleged to have taken place in the police car after an arrest remained a very different matter. However, the lack of complaints was an extraordinarily effective consequence of the innovation. Video and audio recording were introduced later, and we shall deal with those matters in a later amendment. In his first report, Sir Louis recommended video and audio recording—it was possible to include them some time later—which were a much better vehicle for securing justice in the context that I have described.

I should perhaps have added a third beneficial objective: the reassurance of the public, who very properly are suspicious and anxious about the kind of powers that are necessarily conferred by the various anti-terrorism Acts. The public would be reassured that no unfairness characterised the detention of terrorism suspects before or after being charged in a detention centre, which, in England, is at Paddington Green.

Annual reports were laid before Parliament. Anyone who knows Sir Louis Blom-Cooper will not be surprised to learn that they were extraordinarily detailed, balanced, fair, diligent and impressive. Sir Louis very quickly secured in a series of unannounced visits, sometimes at 2 am or 3 am, the confidence of all concerned in the administration of this aspect of justice.

Therefore, there are sound reasons for following that precedent and I very much hope that the Minister will think again before he insists on opposing the amendment for the reasons mentioned by the noble and learned Lord, Lord Lloyd.

My Lords, I take this opportunity to recollect an unannounced visit that I made to Castlereagh with Sir Louis. At the time, I was the reviewer of the legislation and I reported to the noble and learned Lord, who was the Secretary of State. There was a profound difference between my function and that of Sir Louis. I reported retrospectively after quite a long time had elapsed, whereas Sir Louis went while the investigation was still going on. That was the fundamental difference in our roles. He could see what was happening in the holding centre and, if anything was wrong, he would see it on the spot. I could not correct it later in the annual report that I presented to Parliament any more than the noble Lord, Lord Carlile, can do today, and therefore I support what my noble and learned friend Lord Lloyd has suggested.

My Lords, it is a privilege to follow two noble Lords with such experience in this area. I am taken back to the days of the voir dire, which led to a cottage industry in my profession. Particularly in Hong Kong, as I recall, six or seven weeks would be spent on the voir dire in determining whether a confession had been properly obtained.

The illustration of the point made by the noble and learned Lord, Lord Lloyd of Berwick, is as follows. When we discussed the 42-days issue, it emerged that no judge had ever refused an application by the police to extend the time allowed under the terrorism legislation. I think that there was one instance when a few days less than that asked for had been ordered by the judge but, by and large, the judge has nothing before him except the application from the police or security services saying that it is essential to continue the line of questioning. There is nothing to check at all. A person such as the commissioner, as the noble and learned Lord, Lord Lloyd, advocates, would be in a proper position not only to monitor the way in which the prisoner was being held, particularly in a police station, but to ensure that any interrogation was necessary, giving a second, independent voice to the judge, who has to make the decision on whether the period of time is to be extended. That is the value of the amendment and it is why we on these Benches support it.

My Lords, I should point out to noble Lords who are not familiar with Latin or Norman French that this is not another example of voir dire; the spelling is rather different.

I shall be very brief in supporting the amendment. The case has been admirably set out by my noble and learned friend Lord Lloyd. Three reasons for supporting him are present in my mind: the amendment obviates any suggestion of oppression; it obviates the false allegations, of which we have heard plenty already; and it is patently fair—almost transparent, one might say—and would give huge reassurance to the general public, not least to minority groups. In addition, the costs would be marginal compared with the gains that would be made. I support the amendment.

My Lords, I am very pleased that the noble Lord, Lord Thomas, reminded the House that no judge has refused a police application. On the JCHR, we heard evidence of quite short periods of interrogation and of very long periods of languishing in cells during the extended time. I suspect that, if the amendment were accepted, the process could even pay for itself by speeding up the interrogation time, leading to either earlier charging or earlier release, because it would have the effect of making the police act more diligently. I am not criticising the police. If people are given chances to do things, they will always take them. That is part of human nature; it is how people behave. I support the amendment for that reason and, above all, because it would avoid allegations of people being beaten up behind a bike shed and so on, which people would undoubtedly make if there were not open and transparent supervision. It would make it easier to get convictions and proper interrogation, and it is in everyone’s interests that the amendment is agreed to. We are not asking for a vast sum to be spent; we are simply asking for something which, I suggest, will make life easier for everyone.

My Lords, I support the amendment but I wish to make a couple of comments—one in defence of the police. It has absolutely not been my experience that they are in any way dilatory in interrogating terror suspects, which often involves the collation of vast amounts of information. They work at great speed under enormous pressure, doing hours that break every EU working time directive. Therefore, I should like to defend my colleagues. That said, I think that the amendment of the noble and learned Lord, Lord Lloyd, is useful.

My Lords, the point made by the noble and learned Lord, Lord Lloyd, about restoring—or perhaps “building in” if “restoring” is inappropriate—confidence in ethnic minority communities is extremely valuable. We know that one particular community—the Muslim community—is, on the whole, the subject of much of the plethora of terrorism legislation that we have seen in the past decade or so, and deservedly so because that is where part of the problem lies. I do not think that anyone in this debate is implying that the police are at all dilatory in carrying out their functions. In order to build in confidence on the part of the community in the criminal justice system and in this particular system, there should be transparency, and the people who are held for long periods without charges being laid against them should be aware that an independent person is keeping an eye on things as they unfold and they should know that they have access to that person should anything untoward occur. Of course, that does not imply that anything untoward would occur but it would build in a safeguard. On that basis, I add my voice to those of others on these Benches in supporting the amendment.

My Lords, I want to raise one issue. The noble and learned Lord, Lord Mayhew of Twysden, made some very powerful points but I think that there is an element of misunderstanding. The noble Lord, Lord Thomas, talked, as did other noble Lords, about the police making the applications and not acting swiftly enough. One thing that we did when the time was extended from 14 to 28 days was make it clear that applications for extra time should be made by the prosecutors. The prosecutors have a professional responsibility—although I am not saying that the police do not—to come to the judges to say, “This is necessary. This is being conducted with due diligence”. They are the people who have to take responsibility and make the applications. That is one aspect of this issue. It does not meet many of the other points that have been made but, in fairness to those who made them and to the police, I thought that it was right to draw that to the House’s attention.

My Lords, as I understand it, the purpose of the amendment is to introduce an independent commissioner principally to monitor the detention and treatment of terrorist suspects held under Section 41 and also to be present at police interviews, monitor their compliance with relevant safeguards, and interview suspects and so on during the proceedings.

I step into this debate somewhat nervously, bearing in mind that we have had a triumvirate, if not a quadrumvirate, of noble and learned Lords, many of whom seem to have been involved in setting up this apparatus for Northern Ireland at some time in the past. I bear in mind that in 1650 on this day HMS “Black Prince” was burned by parliamentarians, and so it is not an auspicious day in that sense.

I think that there is already very adequate independent scrutiny of those detained before charge. I should like to run through what is in place because it is important. It is true that the amendment would have significant cost implications and that there would be an increase in bureaucracy. Almost certainly because of jurisdictions, there would be three independent assessors, plus the noble Lord, Lord Carlile, and no doubt they would want some staff. Therefore, I think that there would be some considerable costs. However, these things can be got round and, if it is really important, it can be done.

It is worth stating what is already done to look after those who are held in custody awaiting charges on a terrorism offence. It is important to get that into Hansard. As has been said, some of the minorities might feel that they are not looked after well. Section 61 of the Police Reform Act 2002 already provides for independent custody visiting of persons held in police detention, including all detainees held under terrorism provisions. Under the Act every police authority is required to make arrangements for detainees to be visited by persons who are independent of the police and the police authority.

The Act formalised independent custody visiting, formally known as lay visiting, which had been established following the Scarman report into the Brixton riots in 1981. Not surprisingly, the independent custody visiting process developed with a clear and strong focus on public confidence. The reason why I make this point is that the key strength of independent custody visiting is the way in which it is founded on the engagement of the local community. Members of the local community are given access to the detainees in their local police station.

I wish to strengthen, rather than dilute, that important aspect. As we made clear in the PACE review consultation paper published on 28 August this year, we are looking to strengthen community engagement in custody and are working with the Association of Police Authorities and others to look at how best to raise the status of independent custody visitors and other community members and draw on their knowledge and expertise to inform local and national change. Alongside that, we continue to work closely with the Association of Police Authorities and the Independent Custody Visiting Association in the provision of national guidance, training and support materials for independent custody visitors and police authorities who administer the schemes in their area.

Independent custody visitors can visit suspects, and their visits are random, unannounced and normally conducted out of hearing of an escorting officer. A report is completed after each visit and copies are provided to the police, the police authority and the Home Office. Those reports provide a vital source of information on the environmental and welfare conditions in which detainees are held. Although independent custody visitors cannot sit in on interviews with suspects, safeguards are already in place, in addition to the right to legal advice, to ensure that juvenile, mentally vulnerable—

My Lords, I thank the noble Lord for giving way. Could he share with us the statistics on the number of independent custody visitors who come from the same ethnic minority or religious group as most of those who are detained under these provisions?

My Lords, I do not have those statistics with me but shall certainly inform the noble Baroness of them in writing.

Taken together with the post of the independent reviewer of terrorism legislation and the other safeguards which I will come on to in a minute, I believe that we already have sufficient safeguards in place to ensure that detainees have appropriate support and that that supports effective community confidence in policing and engages the local community in scrutinising the detention of persons held in police custody. That is an important little strand of our prevention strategy and we must ensure that we reinforce it and make it even stronger.

Safeguards on the detention and treatment of terrorist suspects are set out in Schedule 8 to the Terrorism Act 2000. In addition, Code H of the codes of practice issued under the Police and Criminal Evidence Act 1984 covers the detention, treatment and questioning by police officers of persons under Section 41 of and Schedule 8 to the Terrorism Act 2000. This makes clear the need to ensure that appropriate and respectful treatment is provided to all detainees. Appropriate action is required to be taken to support the person; to help minimise any additional risk arising from their situation or vulnerability; and to provide appropriate facilities or materials to meet any specific requirements. Detained suspects have the right to legal advice; must be held in cells that are adequately heated, cleaned and ventilated; have the opportunity for exercise; may be visited by friends and family; have access to writing materials; are allowed the opportunity to practise religious observance; and are medically examined daily. As has been said, continued detention is subject to the authorisation of a senior judge at least every seven days.

In February 2006 the Home Office and the Association of Chief Police Officers, in conjunction with Centrex, now known as the National Policing Improvement Agency, published Guidance on the Safer Detention and Handling of Persons in Police Custody. The guidance identifies the standards expected in the handling of persons who come into contact with the police. It outlines the framework within which the police and other agencies must operate and sets the strategic mechanisms which should be in place to deliver the required outcomes. It aims to provide the practitioner with practical support, advice and direction in raising the standards of custodial care and enhancing the treatment of persons in custody. Implementation of the guidance in each force area is subject to oversight by the National Policing Improvement Agency, the Association of Chief Police Officers and the Home Office. In January 2008, an accompanying training package for custody officers was published.

Her Majesty’s Inspectorate of Constabulary and Her Majesty’s Inspectorate of Prisons jointly carry out inspections of police custody. The inspection process aims to provide a regime of planned inspections on the efficiency and effectiveness of police forces and the provision of custody facilities. Up to nine inspections will be carried out during 2008, and thereafter there will be a programme of inspecting custody suites in 10 force areas over the next five years.

As the noble and learned Lord, Lord Lloyd, said, suspects held beyond 14 days are generally transferred to prison where they are subject to oversight by Her Majesty’s Inspectorate of Prisons. The purpose of HMIP is to provide independent scrutiny of the conditions for and treatment of prisoners and other detainees and its role includes unannounced inspections. The noble Lord, Lord Carlile of Berriew, in his capacity as the independent reviewer of terrorism legislation, also reports annually on the operation of counterterrorism legislation, including pre-charge detention.

The amendment proposes that part of such a commissioner’s role would be an entitlement to attend extension hearings to give the judge such assistance as he may require. The noble and learned Lord, Lord Lloyd, mentioned ex parte hearings. They are not closed hearings and only a very small part is ex parte. They are also extremely rare; I think there have only ever been two such cases. I do not believe the provision is necessary because the suspect is entitled to his own legal representation. I attended one of these events and it was quite a ding-dong battle. The CPS, which is expert in investigatory proceedings, gave the judge all the information that it felt he required about how the investigation was proceeding and why further detention time was necessary.

The noble and learned Lord, Lord Lloyd, spoke about anecdotal evidence concerning a trial where people could have been charged much earlier than after 27 days had elapsed. I think that it is dangerous to use such anecdotal evidence and I do not believe that it is true at all. I have great faith that our police service proceeds as fast as it can to get to a charge. Although I can see that that view is not necessarily held by some noble Lords, my feeling is that the service does try to push forward as quickly as it can.

The information provided during extension proceedings through representations and evidence is extensive. The suspect’s lawyer is able to cross-examine the investigating officer to challenge the application vigorously, as happened in the one that I attended. A senior judge oversees the proceedings and ensures that the tests for further detention are satisfied before any extension is granted. That also was done in the one that I attended. I also have faith in our senior judges. Maybe that faith is ill-placed, as a number of people seem to think that that is not sufficient, but I was very impressed by what I saw.

I have now listened to a large number of noble and learned and very experienced lawyers speak on this. Although I was originally minded to resist the amendment absolutely, I think that I might now like to take it away. I cannot give a timescale, but there may be merit in going down that route. I have talked with the noble and learned Lord, Lord Lloyd, about this in the past. He sort of convinced me about 12 months ago, but I sort of became unconvinced again. As I say, however, it is important to put on the record how amazingly well we take care of these people and look after them. I do get fed up with people when they have a go at the police and our judiciary about what they do and how these people are looked after. I find it really quite dreadful, and it comes out again and again. I shall not resist the amendment, but I should like to see how it could be implemented in timescales. There is clearly a feeling that the provision is necessary. The Government want to do their best in looking after people, but also their best in looking after the security and safety of our nation. Sometimes that is an extremely difficult balance. If I may, therefore, I shall move ahead on that basis.

My Lords, I am grateful to all noble Lords who have spoken and who have made many new points. I am particularly grateful to the noble and learned Lord, Lord Goldsmith, for correcting me on the important point that the prosecuting authorities make the application, not the police. However, that does not undermine the main point that the judge still needs more to go on. That is besides all the other points.

If the noble Lord is accepting the amendment, subject to further discussion on how it should be framed, of course I will withdraw it. However, I am not clear whether he is accepting the substance of the amendment.

My Lords, I would like to accept the substance of the amendment, but I want to look at exactly how we phrase it. I cannot set a timescale and would like to see how it is done. There is also the issue of jurisdictions.

My Lords, I am grateful to the noble Lord and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

My Lords, before calling Amendment No. 6, I must advise your Lordships that if it is agreed to, I shall not be able to call Amendments Nos. 9 to 13 inclusive, or Amendment No. 29, due to pre-emption.

Clause 23 [Post-charge questioning: England and Wales]:

6: Clause 23, page 16, line 33, leave out subsections (2) to (5) and insert—

“( ) A judge of the Crown Court may authorise the questioning of a person about an offence—

(a) after the person has been charged with the offence or been officially informed that they may be prosecuted for it, or(b) after the person has been sent for trial for the offence,if the offence is a terrorism offence or it appears to the judge that the offence has a terrorist connection.( ) The judge—

(a) must specify the period during which questioning is authorised, and(b) may impose such conditions as appear to be necessary in the interests of justice, which may include conditions as to the place where the questioning is to be carried out.( ) The period during which questioning is authorised—

(a) begins when questioning pursuant to the authorisation begins and runs continuously from that time (whether or not questioning continues), and(b) must not exceed 48 hours.This is without prejudice to any application for a further authorisation under this section.

( ) Where the person is in prison or otherwise lawfully detained, the judge may authorise the person’s removal to another place and detention there for the purpose of being questioned.

( ) A judge must not authorise the questioning of a person under this section unless satisfied—

(a) that further questioning of the person is necessary in the interests of justice,(b) that the investigation for the purposes of which the further questioning is proposed is being conducted diligently and expeditiously, and(c) that what is authorised will not interfere unduly with the preparation of the person’s defence to the charge in question or any other criminal charge.”

The noble Lord said: My Lords, the government amendments in this group seek to address the concerns raised in Committee in respect of the post-charge questioning provisions. The amendments remove the ability of a police superintendent to authorise post-charge questioning about the offence charged. Rather than authorisation by the police, all questioning will need to be authorised by a Crown Court judge in England and Wales, a sheriff in Scotland and a district judge in the magistrates’ courts in Northern Ireland.

We have selected the district judge following consultation with colleagues in Northern Ireland. They advised that it would be the most appropriate judicial tier for authorisation in Northern Ireland as they are legally qualified and have full case-management responsibilities for all cases, including terrorism cases, before they go to trial. They also commit cases for trial, which requires them to determine whether there is a prima facie case by examining written evidence in preliminary inquiries and by means of hearings involving the examination of witnesses in preliminary investigations.

As I have already said, authorisation in Scotland will be by a sheriff. Scottish colleagues advise us that this is broadly equivalent to the Crown Court judge of England and Wales and that this would be the appropriate level for authorisation.

The amendments limit the period for which post-charge questioning can be allowed to a maximum of 48 hours before further authorisation must be sought. This 48-hour period would run continuously from the commencement of questioning and would include time for meal breaks, sleep and consultation with legal advisers.

The amendments ensure that questioning would be authorised only if the judge deemed that it would not interfere unduly with the preparation of the defendant’s defence to the charge, or any other criminal charge, that he may be facing. In effect, this would prevent questioning close to or during a defendant’s trial.

The amendments allow the judge to authorise questioning for an offence not specified in terrorism legislation if it appears that the offence with which the person has been charged has a connection to terrorism; for example, a judge could authorise post-charge questioning for the offence of murder if it appeared to them that it was connected to terrorism. This is instead of the original proposal where questioning for a non-terrorism offence would have been allowed if the judge had made an order under Section 29 of the Criminal Procedure and Investigations Act 1996 for a preparatory hearing to be held on the basis that the offence was connected to terrorism. It is no longer necessary to make reference to a hearing under Section 29 as the judge authorising questioning will be seized of the matters and so will determine whether there is a connection of a general criminal offence, such as conspiracy to murder, as part of the authorisation for questioning. This has an advantage over the previous position as there was a potential gap between charging and when the order for a preparatory hearing was made, where it would not have been possible for post-charge questioning for general criminal offences to have taken place.

Finally, the amendments allow the judge authorising questioning to impose conditions on the questioning, such as the location or length of the questioning, as they deem necessary in the interests of justice. They do not, however, specify that the judge could determine the scope of questioning, unlike the amendments tabled by the noble and learned Lord, Lord Lloyd, and the noble Baroness, Lady Neville-Jones.

We had considered including in the Bill a provision that allowed the judge to impose conditions as to the matters in respect of which questioning was authorised. However, following further consultation with the Crown Prosecution Service, the police, and Crown Office & Procurator Fiscal Service in Scotland, we do not believe that it would be appropriate for a judge to determine the exact scope of police questions.

While the pre-trial phase has certainly been started after charge, the Government do not accept that this should give a judge a role in directing or limiting any continuing police investigation. The defendant may be under the protection of the court, but he is not under the control of the court. There is an overlap with case management responsibilities that are certainly within the judge’s remit, which come into play the later in the proceedings the application is made. However, the new clause contains a provision that the judge can refuse questioning if it would interfere unduly with the preparation of the person’s defence.

It is important to remember that following a sudden terrorist event, people may be charged on the threshold test before all the evidence in what may be a very complex web of facts, circumstantial evidence and contacts has been gathered or analysed. At that stage, the investigation is very much still under way and may be at an early stage in respect of some, if not all, lines of inquiry. Court proceedings will not be in full swing in the sense that any trial is remotely imminent.

Any decision to allow post-charge questioning is therefore squarely part of the police responsibility, over which they have a very wide discretion, to conduct a proper investigation following up reasonable lines of inquiry pointing towards or away from guilt. If they act inappropriately in any way, they may be sanctioned and the judge may rule out any evidence at trial. These principles are well established in relation to pre-charge interviews.

We also believe that if we were to specify that a judge could impose limits on, and identify closely, the scope of questioning, it could start to take their role a little way towards that of examining magistrates in France. We do not want anything that might start to take us down that route, something I know the Joint Committee on Human Rights has looked at in detail.

In addition, practical problems may arise if the judge determines the scope of questioning. For example, if unforeseen issues arose from any answers to an authorised line of questioning, the police might be hampered in their ability to question further without first returning to the court to seek a fresh authorisation. The implication for any subsequent trial would be that if there was any deviation from the line of questioning authorised, this would prompt an objection to the admissibility of those questions and any answers. There would likely be extensive arguments in court as to whether the individual questions were within the scope allowed by the judge. We therefore believe that the admissibility of the post-charge questioning as a whole is a matter which should properly be determined at trial with reference to the principles of admissibility and fairness.

We believe that the rights of a defendant subject to questioning are adequately protected as the judge can specify how long the police would have to question them. The judge would need to be satisfied that the questioning was in the interests of justice and in practice, if the police only had a small amount of additional evidence on which to question the suspect, they would grant only a short time for additional questioning. Finally, the fact that the judge has authorised post-charge questioning does not require the accused to answer those questions. He will have the same right to silence, in relation to any and all questions, as in any other situation and is certain to have a solicitor present to advise him. I beg to move.

7: Clause 23, line 13, after “to” insert—

“(i)”

The noble and learned Lord said: My Lords, the House may have gathered from what the Minister has said that in Committee there was no support for the Government’s proposals on post-charge questioning. The noble Lord was given an extremely difficult hand to play but, in truth, subsections (2) to (5) of Clause 23 were indefensible. They have now been scrapped. The question for the House today is: what should be put in their place?

Perhaps I may be forgiven for describing the sequence of events as they concern me. During the evening of Tuesday 28 October, I heard from the noble Lord, Lord Thomas of Gresford, that the Government had caved in and that post-charge questioning would be authorised not, as had been proposed, by the police but by a Crown Court judge. On Wednesday 29 October, I asked if I could see the government amendment, which sounded good. It had already been printed. I was told that there was some urgency as the amendment needed to be tabled as soon as possible. When I saw the amendment—not the one that is now before your Lordships—I realised at once that it was good, and I rang the Home Office the next day to say so.

However, when I rang again on Thursday, I was told that the Home Office was having second thoughts. The amendment that I had seen, which I have here, would not be tabled after all. There had been opposition from the police and the Crown Prosecution Service in England and from the procurator fiscal in Scotland. They wanted certain words deleted. If noble Lords look at the Marshalled List, they will find the relevant provisions set out at line 12 of Amendment No. 6. The judge,

“may impose such conditions as appear to be necessary in the interests of justice, which may include conditions as to the place where the questioning is to be carried out”.

In the original version the clause continued,

“and the matters in respect of which the questioning is authorised”.

Those words have now been deleted at the behest of the police, and my argument is that they are vital words. The sole purpose of my amendment is to restore them in the Government’s amendment.

Why are the words vital? It is easiest to give an example. Let us suppose that after charge the police come across an altogether new piece of evidence on which they wish to interview the defendant—he is by then a defendant. They want to put it to him, and it is right that they should be able to do so. So they go before a judge, and he authorises further questioning for, let us say, 48 hours—the maximum allowed under proposed new subsection (2). Now let us suppose that the police have finished asking the questions about the new evidence after a few hours. What happens then? Are the police really free to go back during the remainder of the 48 hours over old ground about which the suspect, because he was then a suspect, has already been questioned for 28 days? Clearly, they cannot. If that were possible, there is a real danger of the court holding that the defendant had not had a fair trial. However, there is nothing in the government amendment before the House to prevent that happening. That is why it is so important for the judge to be able to limit the further questioning in the example I have given to the new evidence about which he has been told. Yet those are the very words that have been omitted. It seems almost self-evident that if the judge is going to authorise the further questioning, as everybody now accepts, he should be able to say what he is authorising—in other words, the matters in respect of which he is giving his authority—and those are the very words that are now missing.

Why do the police and the prosecuting authorities in England and Scotland want those words removed? It is not for me to speculate, and I am afraid that the noble Lord has not yet explained to me why they need to be excluded. One reason might be that the police do not like judges looking over their shoulders, but that is an important part of the judges’ task. Indeed, it is part of the judges’ duty, which was formulated in the Judges’ Rules at the request of the then Home Secretary nearly 100 years ago to oversee the manner in which interviews are conducted by the police. Another reason might be that the police would feel inhibited in following the questioning where it led. However, the judge would not dictate the questions; he would only circumscribe the subject matter. Within the limits of the subject matter authorised by the charge, the police could ask whatever they wanted.

This is a case where the Government’s first thoughts were clearly best. If the noble Lord now feels able to accept this amendment and restore the vital words that are missing at the moment, as they were deleted, apparently at the behest of the police, I would be more than happy to support his amendment. On the other hand, if those words were not restored, I would oppose it. I beg to move.

My Lords, we welcome the Government’s acceptance that post-charge questioning should be authorised by a judge of the Crown Court or his equivalents in Scotland and Northern Ireland. That move by the Government is very welcome, but we take the view that the concession is too limited. The Government’s amendment allows the judge to,

“impose such conditions as appear to be necessary in the interests of justice, which may include conditions as to the place where the questioning is to be carried out”.

The noble and learned Lord, Lord Lloyd of Berwick, eloquently set out the limitations of that concession. We on these Benches consider that post-charge questioning will be helpful and useful, but we also believe that the process must have integrity. It is difficult to see how judges will be able to exercise proper judicial supervision, which is what we are seeking, if they are not able to have any authority in relation to the scope of the questioning. The concession seems to vitiate the core that one would like to see there. It is a move in a direction that does not go far enough.

I want to link this point to the revised draft PACE codes that the Minister sent us on Thursday. We had a look at them; to my surprise, they are much less detailed than the previous versions, which is not what I was expecting. It would be helpful if the Minister could explain why. It is important that the PACE codes list the safeguards that will guide post-charge questioning to prevent it becoming oppressive, but in doing that they need to make a clear statement, as the Act will, that post-charge questioning must not take place near or during the defendant’s trial. That is not there. Can the Minister say that he intends that those safeguards will apply to post-charge questioning as they already apply to pre-charge questioning? I think his answer will be yes, but I would like confirmation of that.

More generally, we are not entirely happy with where we now seem to be coming out, because the Government are proposing two things simultaneously: disallowing the judge from determining the scope of police questioning, and curtailing the guidance in the PACE codes about the rules under which the police would conduct such questioning. I have to say that that move is in precisely the wrong direction. I am certain that the aim of this House is not to hamper the police in their duties, but to create public confidence in the way that they carry them out. I therefore support the amendment of the noble and learned Lord, Lord Lloyd.

My Lords, I am reminded of the biblical quotation, “What the Lord giveth, he taketh away”. I fear that that is what the noble Lord, Lord West, has done. On the Joint Committee on Human Rights, we heard an awful lot about post-charge questioning. We went into it very carefully. It must be obvious that if a judge has to be asked for permission to interrogate, he must be asked for direction about what can be interrogated. The two must be linked. Without that link, the Lord hath taken away, as opposed to the Lord giveth; and I wish that he could go on and giveth because he is by nature a generous and gallant Lord.

My Lords, I am glad that my noble friend tabled Amendment No. 6. It seems to me a worthwhile response, as far as it goes, to the anxieties about the Bill’s provisions on post-charge questioning expressed in Committee, most notably by the noble and learned Lord, Lord Lloyd of Berwick, but also by others of us.

As the House knows, I support the provision of a contingency power for the Home Secretary within tightly defined conditions to extend pre-charge detention of terrorist suspects. The delicate but always pragmatic balance of liberty and security may properly be recalibrated in circumstances of major terrorist threat. However, if that is done, there is an absolute duty on us to ensure that procedures for questioning people who are detained and trying people who are accused are such as to secure justice. I welcome the safeguards that my noble friend has proposed in response to our debate in Committee to provide for judicial oversight of post-charge questioning; but I also hope that he will reflect carefully on the merits, which seem very great, of the further safeguards proposed by the noble and learned Lord, Lord Lloyd, in his amendments and in his speech.

My Lords, this worries me. Let us take the scenario where the police wish to continue to question after arrest and charge and go to the judge to say, “We want to do this for this reason. This is the information that we have and we need to ask the defendant these questions”, and the judge says, “Yes”. Under the government amendment, having done that, they are perfectly free to go back to ask any question they choose on any matter about which the judge has not been asked at all.

That drives a horse and cart through the whole idea of having protection for a defendant in a post-questioning period. I cannot understand why the Government have left out the other words, which the noble and learned Lord, Lord Lloyd of Berwick, has asked to be put back—which the Government themselves put in—unless it is the view of the procurator fiscal, the CPS and the English police that they want a chance to have a second bite at the cherry, although they do not want to be honest about that.

My Lords, as the noble and learned Lord, Lord Lloyd of Berwick, said, there was a lot of dissatisfaction in Committee about the structure of the Bill at that stage with regard to post-charge questioning. It is necessary to acknowledge the steps that the Government have taken to address those criticisms. Although in the Bill as it stood, in Scotland it would be a sheriff from whom authorisation was sought, there was concern that in England and Northern Ireland it would be lay justices. The fact that they will now be professional justices, judges, is very welcome. There was also concern that, for the initial 24-hour period, questioning could be done at the behest of any senior police officer. There was criticism of that from all sides, and I very much welcome the fact that the Government have thought better of that and that, from the outset, there will be judicial authorisation. The amendments I have tabled in this group are superseded by the comprehensive amendments that the Government have tabled.

It is also fair to recognise that one of the amendments that I proposed in Committee was to limit the period for questioning to 72 hours, as opposed to five days. I welcome the fact that the Government have come back to be even more restrictive on the length of questioning.

I listened carefully to what the noble and learned Lord, Lord Lloyd of Berwick, said about his amendment to the amendment. I have cited before in the context of post-charge questioning the principle of Scots law as enunciated by the then Lord Justice-General Normand in 1938:

“When an accused person has been committed, he comes under the protection of the court and it is the court’s duty to see that nothing is done by the police that will prejudice his trial”.

That principle is consistent with the amendment moved by the noble and learned Lord, Lord Lloyd.

I listened carefully to the Minister's answers. Simply to assert that the police, the CPS, the procurator fiscal and the Lord Advocate do not like it is not answer enough. We want to know why they do not like it. The amendment is limited, in that the judiciary is not determining which questions will be asked but rather the scope or subject matter of the questions. That is an important distinction. I therefore want to learn from the Minister why the amendment is being resisted.

My Lords, it is a bit of an evening for admissions of parentage. In government, I think that I was the first to press for post-charge questioning, although I confess that that was very largely to meet the argument that there was a need for an extension of the period of detention pre-charge, but it always seemed important that post-charge questioning should be subject to proper safeguards. I, too, welcome the way that my noble friend has produced the amendment.

There is much merit in what the noble and learned Lord, Lord Lloyd, said about the ambit of the questioning, but one aspect of it troubles me, and I want to hear what my noble friend says about it. That is the balance between the need for safeguards and operational requirements. I suspect that it very much depends on how one reads the words, “the matters”. Looking at how the safeguards are drafted, that relates to questioning about the offence itself. The judge must be satisfied under what I think will become subsection (6) that,

“further questioning of the person is necessary in the interest of justice”,

and, what is more,

“that what is authorised will not interfere unduly with the preparation of the person's defence”.

So one would anticipate that the prosecutors will have to state why they want to question. That is fine.

What would worry me is if the interpretation of the words in the noble and learned Lord’s amendment,

“the matters in respect of which the questioning is authorised”,

amounted in effect to the drawing-up by the judge of a list of permissible questions. That is not how questioning takes place.

I see the noble and learned Lord, Lord Lloyd, shake his head. It will be very interesting to know how that is dealt with, but I see circumstances in which, if I were a prosecutor, I would be concerned that the effect of the amendment might be to do just that, to limit how questioning takes place. Therefore, I want to hear what my noble friend says about how the Government view the concerns about the amendment and how they intend to deal with the particular concern which the noble and learned Lord, Lord Lloyd, has put forward.

My Lords, I respectfully suggest that there is not a world of difference between the amendment proposed by the noble Lord, Lord West, and that proposed by the noble and learned Lord, Lord Lloyd of Berwick. Both come from the same direction and starting point: that is, the horror with which English law has over the centuries looked on the prospect of a person who, after all, is in the care of the court, after being charged, having further questions put to him. As I understand it, there have always been very narrow exceptions. There are narrow exceptions in Code C to the Police and Criminal Evidence Act 1984, which broadly applies at the moment. They apply where it is necessary to put questions in the hope of minimising or avoiding loss to a person, in the public interest, or where a further statement made by another person has come to light or has been referred to in an interview by another person. Those are the limitations that apply at the moment.

There are two avenues in Clause 23. One might be described as the police path of questioning. The other is the judicial path, and it is a great improvement on the part of the Government to want to drop the police path and concentrate on the judicial path. The difference now is whether the judge should sit in essence as an examining magistrate, which would be the probable effect, although not the intention, of the amendment of the noble and learned Lord, Lord Lloyd, or whether the judge should be at large. I believe that the judge should be trusted. I have served for some 18 years as a circuit judge. Circuit judges very often have to face very difficult choices and can maintain a proper and just balance in such circumstances.

The difference might be that, under the amendment proposed by Her Majesty’s Government, this application would be made ex parte but the defendant would not be represented. I am sure that that can be cured either by further amendment or by some administrative decision. On the other hand, there is a danger, which was properly expressed by the noble and learned Lord, Lord Goldsmith, that if one begins to spell out exactly what the question should be, one is in very difficult waters.

The noble and learned Lord, Lord Lloyd, has argued that the judges’ rules—of 1904, if I remember rightly; I will be corrected if I am wrong—allowed the judge to oversee the questioning, but only post the event. There was no question of the judge being able to draft the area of questioning. He was obliged to consider whether any information or evidence had been extracted unlawfully and was therefore inadmissible. The oversight was limited to oversight long after the event. I know of no other instance where a judge in our law is entitled beforehand to set out the detailed parameters of the questioning.

I appreciate that the noble and learned Lord, Lord Lloyd, is not saying that; he is saying that we should set out the area of investigation. That is why there is no world of difference between the two amendments. The area of investigation is bound to be affected by the provision in the Government’s amendment, which says that,

“further questioning of the person is necessary in the interests of justice”.

If you say that questions in that area are necessary but that questions in another area are not, you are drawing a proper boundary between the two. On the other hand, if you say that this is the type of question that can be asked only up to that point but not beyond it, you are making the position of the questioning police officer almost impossible. There can be compromise where the area of questioning can be adequately delineated without over-circumscribing the content of the question.

My Lords, the particular paragraph (b) in the Government’s amendment that is the subject of the amendment in the name of the noble and learned Lord, Lord Lloyd, says:

“The judge … may impose such conditions as appear to be necessary in the interests of justice”.

That allows the judge, if he wishes, to circumscribe the area of questioning. The only reason for my slight doubt about this interpretation is that apparently the Crown Prosecution Service and the procurator fiscals in Scotland—I think the Lord Advocate was also mentioned—objected to the further provision in the clause. They are not infallible, of course, and what is left may be sufficient for the purpose of securing the basic idea that the noble and learned Lord, Lord Lloyd, has in mind.

It occurs to me that so much in the development of questioning depends on the answers. At the stage at which the judge authorises this questioning, he will not have a very full idea of what the answers may be. I am sure that the noble and learned Lord has, in his long experience, occasionally come across surprising answers, even to questions that he has asked. The scope of the questioning may depend on how the answers develop. This is a developing theme. At the moment, I am prepared to leave this on the basis that the judge may impose conditions that appear to be necessary in the interests of justice on the questioning that he has authorised. If he thinks it necessary to specify the matters on which that questioning should proceed, he could certainly do so.

My Lords, if the Crown prosecutor—I accept the noble Lord’s earlier rebuke—makes an application to the judge for post-charge questioning into a certain area, it is quite simple; the judge permits the application as it is drafted. If further matters arise in the course of the questioning into that area, as applied for, there is nothing to stop the Crown prosecutor going back to the court and seeking to delineate a further area in which he wishes to question the accused person. This will not make a great deal of difference from a practical point of view. I follow the noble and learned Lord, Lord Mackay of Clashfern, when he says that the interests of justice must decisively come first, because if the judge thinks that it is in the interests of justice that questioning should be allowed only in one area and not in another, he can make that order under the clause.

My Lords, that was quite an interesting dialogue. The noble and learned Lord, Lord Lloyd, had a good run at explaining exactly how we have been involved in detailed consultation, which, as I have said, I like to try to be. I am not sure that it helps to say when certain things were given, certain things were changed and other things were done, because that is part of life when one is consulting. It may lead one not to consult, which would be a bit unfortunate because consultation is clearly very important. Phrases such as “caved in” are not very helpful, either. I should like to think that I listen to debates in this Chamber and then consult people.

A number of noble Lords have asked why the Crown Prosecution Service, the police and the Crown prosecutor said all these things. I have not only asked them but have taken other advice. I have talked to a number of other senior judges about this, and it is by no means clear cut. Indeed, a number of them, rather like the Crown Prosecution Service, are nervous about the direction in which we are going. They feel that we should not move towards a judge having a role in placing and directing questions in what should be the investigation stage of post-charge questioning. They genuinely feel that there is a real risk that this might lead us to go down the route of having examining magistrates, as France has.

This is finely balanced, as a number of noble Lords have mentioned. Setting out the area of investigation, as the amendment does, allows the judge to take the right decisions and set broad parameters. We all know that people say amazing things sometimes when they are questioned. So, as the questioning goes ahead, to have to stop to ask for more permission and to open up all the potential in the case for this to be challenged by the defence later is very risky.

Lots of safeguards are in place. The suspect has a right to legal representation throughout post-charge questioning. His man will be there. The solicitor will be present. He will stop abuse and will protect the interests of the defendant. The trial judge can refuse to admit any evidence that was obtained inappropriately. I do not believe that the police have any incentive to abuse their power, but in terms of the investigation and of protecting us, they have the opportunity to move quickly down a route when things come out suddenly during the questioning. It makes absolute sense to do that.

On the PACE code issue raised by the noble Baroness, Lady Neville-Jones, it is less detailed. With post-charge questioning now authorised by a judge, we do not need the parts of the code about police authorisation. The judge must consider the proximity of questioning to the trial, which he will do. Therefore, it will not impinge on the trial and will not move in that direction.

I have touched on the practical problems that this amendment would raise and on the danger that the judge would become an examining magistrate, which I do not think will help. I believe that within the amendments there are protections to look after the person who is being questioned, but there are not the risks of these other things, which will not help justice. Certainly, we look after the individual and make sure that he is protected by having a solicitor and by the fact that the evidence could be inadmissible at the trial. Therefore, I should like my amendment to stand.

My Lords, I am not suggesting—I am sure that no one really imagines that I am—that the judge in these circumstances should sit as an examining magistrate. Nor do I suggest, and nor would the effect of this amendment be, that the judge could spell out what the questions should be. When my noble friend Lord Elystan-Morgan says that there is perhaps not a great deal of difference between what I am contending and what the noble Lord is accepting, I venture to disagree. There is a great deal of difference. It seems to me still to be essentially important that the judge should indicate the areas—I am perfectly happy with that word—in which the further questioning should take place. I thought that the word “matters”, the original word and clearly intended to cover areas proposed by the Government, was a sensible word. I still think that “matters” is a sufficiently sensible word, but it means areas rather than individual questions. On that basis, I should like to test the opinion of the House.

Resolved in the negative, and Amendment No. 7, as an amendment to Amendment No. 6, disagreed to accordingly.

[Amendment No. 8, as an amendment to Amendment No. 6, not moved.]

On Question, Amendment No. 6 agreed to.

[Amendments Nos. 9 to 14 not moved.]

Clause 24 [Post-charge questioning: Scotland]:

My Lords, I should remind the House that if Amendment No. 15 is agreed to, I will not be able to call Amendments Nos. 18 to 20 inclusive due to pre-emption.

15: Clause 24, page 17, line 45, leave out subsections (2) to (6) and insert—

“( ) On the application of the prosecutor, a sheriff may authorise the questioning of a person about an offence—

(a) after the person has been charged with the offence, or(b) after the person has appeared on petition in respect of the offence,if the offence is a terrorism offence or it appears to the sheriff that the offence has a terrorist connection.( ) The sheriff—

(a) must specify the period during which questioning is authorised, and (b) may impose such conditions as appear to be necessary in the interests of justice, which may include conditions as to the place where the questioning is to be carried out.( ) The period during which questioning is authorised—

(a) begins when questioning pursuant to the authorisation begins and runs continuously from that time (whether or not questioning continues), and(b) must not exceed 48 hours.This is without prejudice to any application for a further authorisation under this section.

( ) Where the person is in prison or otherwise lawfully detained, the sheriff may authorise the person’s removal to another place and detention there for the purpose of being questioned.

( ) A sheriff must not authorise the questioning of a person under this section unless satisfied—

(a) that further questioning of the person is necessary in the interests of justice,(b) that the investigation for the purposes of which the further questioning is proposed is being conducted diligently and expeditiously, and(c) that what is authorised will not interfere unduly with the preparation of the person’s defence to the charge in question or any other criminal charge.”

On Question, amendment agreed to.

[Amendments Nos. 16 and 17, as amendments to Amendment No. 15, not moved.]

[Amendments Nos. 18 to 20 not moved.]

21: Clause 24, page 18, line 24, leave out “subsection (2) or (3)” and insert “this section”

22: Clause 24, page 18, line 25, at end insert “(or had appeared on petition)”

On Question, amendments agreed to.

23: Clause 24, page 18, line 25, at end insert—

“( ) The Lord Advocate shall publish guidelines about the questioning of a person by a constable in accordance with this section.”

The noble Lord said: My Lords, the amendment intends that the Lord Advocate should publish guidelines about the questioning of a person by a constable in accordance with the clause. In the previous debate, the noble Baroness, Lady Neville-Jones, referred to the draft code issued last week under the Police and Criminal Evidence Act, and how she very much regretted its vagueness and lack of definition compared with the previous code. In England and Wales, however, at least there is a code that proceeds on a statutory basis. In Scotland, not only have we not seen any draft protocol or guidelines; there is no statutory basis for such guidelines to be issued.

This issue was raised in Committee and the noble and learned Lord, Lord Boyd of Duncansby, a former Lord Advocate, indicated that he wanted the Lord Advocate to issue a protocol or guidelines. In his letter, the noble Lord, Lord West, indicated that the Lord Advocate has confirmed that she intends to issue guidelines on post-charge questioning in the same way as for the detention, treatment and questioning of persons arrested under Section 41 of the Terrorism Act.

I welcome the fact that such guidelines are to be issued, but noble Lords will recognise that there is a world of difference between the statutory provisions that safeguard the way in which post-charge questioning takes place in England and Wales and the promise by the Lord Advocate to issue guidelines in Scotland. The amendment seeks to put this on a statutory footing. I have not yet been given a good reason why there should be a difference between how post-charge questioning provisions are implemented in Scotland and how they are implemented in England and Wales. I do not think that I need to elaborate further on this. Good intentions are fine and welcome, but I have not yet had a good explanation of why the provisions cannot proceed on a statutory basis, as is the case in the parts of the Bill dealing with England and Wales and Northern Ireland. I beg to move.

My Lords, as the noble Lord, Lord Wallace, has said, and as I made clear in Committee, the Lord Advocate has confirmed that she intends to issue guidelines on post-charge questioning and that they will be similar to those that the Lord Advocate issued on detention, treatment and questioning of persons arrested under Section 41 of the Terrorism Act 2000. These were issued despite there being no statutory requirement to do so.

We have made a legislative requirement that codes of practice must make provision regarding post-charge questioning in England and Wales and Northern Ireland because in these jurisdictions codes of practice are a statutory requirement—for example, in England and Wales, under Section 66 of the Police and Criminal Evidence Act 1984. As for why that should not be the case in Scotland, the answer is that Scotland is different. It is not the case in Scotland, and it is a matter for the Lord Advocate to determine whether it is appropriate or necessary to issue guidelines. We therefore do not believe that a statutory requirement would be helpful or appropriate, and the Lord Advocate supports us in this view.

My Lords, I hear the argument that Scotland is different, and it can be a compelling argument. Will the Minister undertake to ensure that when the Lord Advocate issues these guidelines, a copy will be placed in the Library of the House?

My Lords, I would be happy to do that. I shall have to check with the Lord Advocate, but I cannot see any difficulty whatever in doing so. Assuming that she has no issue with that, and I cannot see that she would, I will certainly agree to do it. On the basis of there being a difference, as we know there is, and that she will be issuing guidelines, I ask the noble Lord to withdraw the amendment.

My Lords, it is always worthwhile to challenge and test these matters. When legislation is making provision for all parts of the United Kingdom, we should ensure that at least some equivalence of protection is given to those affected by it. I hear and accept what the Minister has said. Given his willingness in principle, subject to consultation with the Lord Advocate, to place the guidelines in the Library of the House, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 25 [Post-charge questioning: Northern Ireland]:

24: Clause 25, page 18, line 29, leave out subsections (2) to (4) and insert—

“( ) A district judge (magistrates’ courts) may authorise the questioning of a person about an offence—

(a) after the person has been charged with the offence or been officially informed that they may be prosecuted for it, or(b) after the person has been committed for trial for the offence,if the offence is a terrorism offence.( ) The judge—

(a) must specify the period during which questioning is authorised, and(b) may impose such conditions as appear to the judge to be necessary in the interests of justice, which may include conditions as to the place where the questioning is to be carried out.( ) The period during which questioning is authorised—

(a) begins when questioning pursuant to the authorisation begins and runs continuously from that time (whether or not questioning continues), and(b) must not exceed 48 hours.This is without prejudice to any application for a further authorisation under this section.

( ) Where the person is in prison or otherwise lawfully detained, the judge may authorise the person’s removal to another place and detention there for the purpose of being questioned.

( ) A district judge (magistrates’ courts) must not authorise the questioning of a person under this section unless satisfied—

(a) that further questioning of the person is necessary in the interests of justice,(b) that the investigation for the purposes of which the further questioning is proposed is being conducted diligently and expeditiously, and(c) that what is authorised will not interfere unduly with the preparation of the person’s defence to the charge in question or any other criminal charge.”

On Question, amendment agreed to.

[Amendments Nos. 25 and 26 not moved.]

Clause 26 [Recording of interviews]:

27: Clause 26, page 19, leave out line 30

The noble Lord said: My Lords, the House will recall that the Bill included an order-making power which allowed the Secretary of State to disapply the compulsory requirement for post-charge questioning to be video recorded with sound, which caused some amusement at the time. The power had been included because there are police stations in some parts of the United Kingdom which do not have the facility to video record interviews with sound. The inclusion of this order-making power raised concerns at the previous stage and the Government concede that that power should be removed. That is the effect of the amendment.

All post-charge questioning under these provisions will now be video recorded with sound in all parts of the United Kingdom. The effect of the amendment will be to prevent post-charge questioning in certain police stations until the necessary facilities are available. We do not anticipate that this will be a significant problem as a suspect could be transferred for questioning to a police station which does have the facilities, and in time these facilities will be available in other police stations. I beg to move.

My Lords, I welcome what the Minister has just said. Is there a programme to equip the police stations where the facilities are not available? It would be a good idea to avoid having to shift people around because the necessary facilities are not on the spot.

My Lords, I do not know the exact answer. Perhaps I may get back to the noble Baroness in writing on the issue.

On Question, amendment agreed to.

[Amendments Nos. 28 and 29 not moved.]

30: Clause 26, page 19, line 37, leave out “An order or” and insert “A”

31: Clause 26, page 19, line 42, leave out subsection (6)

On Question, amendments agreed to.

Clause 28 [Meaning of “terrorism offence”]:

[Amendment No. 32 not moved.]

Clause 29 [Jurisdiction to try offences committed in the UK]:

33: Clause 29, page 21, line 24, after “may” insert “, with the written consent of the relevant law officer,”

The noble Lord said: My Lords, we now move to Part 3 of the Bill. The amendments relate to the clause which allows that where an offence to which the section applies is committed in the United Kingdom, proceedings for the offence may be taken at any place in the United Kingdom and the offence may, for all incidental purposes, be treated as having been committed at any such place. The clause then indicates the offences which would be covered by this, with provision as to how the offences might be amended.

Nothing in the Bill indicates the criteria or procedure which might be followed to establish that a particular place in the United Kingdom will be where the proceedings take place. The amendments do not seek to set down criteria. I can foresee possible difficulties if criteria were established, as they would no doubt create a breeding ground where lawyers could pour over them to find ways in which certain criteria had not been met. However, we should perhaps at the very least expect a formal basis of agreement between the prosecuting authorities in two distinctive jurisdictions; otherwise there could be confusion and challenge.

When the Lord Advocate appeared before the Public Bill Committee in the other place, and when I raised this matter with the Minister in Committee, the response was that the present Lord Advocate wishes this and that she thinks that everything will work fine and that she and the Attorney-General get on well. I have never thought of that as a sound basis for a constitutional legal framework. I have no doubt that the Attorney-General and the Lord Advocate get on well, but it is not impossible that future holders of the two respective offices might not get on so well. Some formal recognition that a transfer of jurisdiction has taken place would at least ensure some certainty in the proceedings.

In addition, and this is why one of the other amendments in this group seeks to establish some protocols, there are a number of practical consequences that can arise from a transfer of jurisdiction. As I pointed out before, in Scots criminal law procedures there are certain time limits to be followed with regard to the serving of an indictment, or the time when a trial should start—140 days after committal. If a person is then moved from Scotland to England to stand trial in the Old Bailey rather than in the High Court in Glasgow, what happens to those time limits? Are they just arbitrarily dismissed because we have moved into a different jurisdiction? If the transfer was in the other direction and someone was transferred from England to stand trial in the High Court in Glasgow, that person would lose the right to habeas corpus. Should that really be done by administrative fiat without any background explanation being given?

Then there is the point about what happens in circumstances where a case with a substantial Scottish component is to be tried in the English courts but the Attorney-General decides, no doubt with good cause, not to proceed with a particular charge. Will the Lord Advocate be able to bring separate proceedings on a separate occasion in Scotland on a charge that has not been proceeded with in England? I do not know the answer, but if we are legislating on an important issue such as this it is reasonable that there should be some guidance on the public record that would indicate whether the Lord Advocate would be able to bring a charge in separate proceedings in such circumstances.

In Committee the Minister said:

“It had been said that the general principles would be articulated with the Attorney-General and Lord Advocate, and … there has been mention of a protocol. Having thought about it, I believe it would be absolutely correct for a protocol to be seen by people, because there are technicalities that could cause problems and those little things can make quite a difference sometimes. If I may, I should like to go away and confirm when that is to be done. As I said, the Lord Advocate very much pushed for it to be done and I think that it makes sense to go down the route of a universal jurisdiction”.—[Official Report, 15/10/08; col. 779.]

He said that he would look at the issue of the protocol. This is his opportunity to indicate, having looked at it, what is to be done about the protocol and when we are likely to see it. It could cover a number of important issues, and it would provide some reassurance, in putting this clause on to the statute book, that these understandings are there in the public domain. I beg to move.

My Lords, I thank the noble Lord, Lord Wallace, for his amendment because it is important that we give this matter some exposure. I hope that my explanation will cover the points he has raised.

Clause 29 gives UK-wide jurisdiction for specific terrorism offences, irrespective of which jurisdiction they were committed in. The amendments seek to alter the provisions in two ways. Amendments Nos. 33 and 35 would make it a legal requirement for the law officer of the jurisdiction in which the offence was committed to give written consent to the transfer of cases from that part of the UK to another part of the UK for prosecution under the jurisdiction provided by the clause. Amendment No. 34 would require the Attorney-General, the Lord Advocate and the Director of Public Prosecutions for Northern Ireland to jointly issue, and from time to time revise, a code of practice regarding the operation of Clause 29. That code of practice would first have to be issued in draft, consulted on and laid before Parliament under the affirmative resolution procedure. Once final, it would be binding on anyone exercising an investigative or prosecutorial function in relation to the clause.

Noble Lords will recall that the Lord Advocate, Elish Angiolini, gave evidence to the Commons Public Bill Committee, saying that she did not think an express provision of consent would be helpful. We agree that the addition of a requirement for written consent would be unhelpful. Dominic Grieve spoke about this very issue at the previous Report stage of the Bill, saying:

“Given what the Lord Advocate has said so emphatically, I would be loth to interfere. I appreciate the hon. Gentleman’s anxiety, and perhaps I can reassure him by saying that if there were to be a serious difference of view on an issue of the kind we are discussing”—

that is, which jurisdiction a prosecution should take place in—

“it would create a mini constitutional crisis and the House would have to return to the issue. The smooth running of constitutions depends on more than our getting a series of rules right. If an established relationship is so clear and self-confident—at both ends—that no one has ever seen a problem on which there has not been a meeting of minds, I would be loth to interfere with it”.

He also discussed the disadvantages of including a requirement:

“The disadvantage would be that where a relationship works well without such a requirement—and is therefore seen perhaps as a pillar of the good working of our Union, which I support—I would not wish to see its having to be qualified with even the suggestion that it would require some statutory clarification in certain circumstances”.—[Official Report, Commons, 10/6/08; col. 228.]

The Government are with Dominic Grieve on this issue. As we have said previously, experience shows that where jurisdictional issues arise, the Lord Advocate and the Attorney-General, in conjunction with the Director of Public Prosecutions and the DPP for Northern Ireland, would be engaged immediately in discussions to resolve issues arising from concurrent jurisdiction. The relevant law officers and independent directors, with their role in prosecutions, and acting in the public interest, will consult on the decision about the most appropriate place for the prosecution to take place. We believe that this practice, which is already in place, provides sufficient protection.

This is not simply about the personal relationship between the current Lord Advocate and the Attorney-General, good as it might be. That was suggested a bit in the previous debate on this matter. The good relationship we are talking about is between the offices of relevant law officers, as evidenced by the good co-operation and collaborative approach shown between successive office-holders down the years when dealing with cross-border issues.

We also believe that the decision on the appropriate jurisdiction is likely to be taken early on in an investigation during the evidence-gathering stage—indeed, it needs to be. Introducing a bureaucratic requirement for written consent could well slow down an investigation.

The same arguments apply to the issue of the proposed code of practice for this clause, as outlined in Amendment No. 34. Decisions about how to pursue a criminal investigation where conduct crosses UK borders, or a combination of UK and international borders, will be very fact-sensitive. No code, whether statutory or otherwise, could set out rules that would enable the outcome to be determined in advance in any given case; it could only ever set out general considerations that were relevant. We also need to be careful to minimise the scope for litigation that would seek to second-guess investigative and prosecutorial decisions.

I remind the House of the purpose of this clause: it seeks to remove an impediment to the prosecution of cross-border terrorism activity in the UK by avoiding the need for multiple trials in multiple jurisdictions if that would not best serve the public interest. In removing that impediment, we do not want to put a new barrier in the way. I reassure the House that the Lord Advocate and the Attorney-General will set out some of the main considerations that may be relevant to decisions made under Clause 29, and that these will be made available in the House Library before the provisions are brought into force.

On a technical level, the amendment is also deficient in that, for example, the definition of “relevant law officer” does not cover an offence committed in Wales. Reference to where an offence is committed is not really sufficient either as, in these cases, the offence is likely to have been committed across two or more jurisdictions. The governing principle in common law that Clause 29 seeks to override is that it is where the substantial part of the criminality takes place that determines jurisdiction. That concept is not captured in the amendment. On this basis, I hope the noble Lord will feel that the amendment can be withdrawn.

My Lords, I am grateful to the Minister for that response. I still have some concern that a lot of this is being to left, “It’ll be all right on the night”, but I take the point that it is about the relationship between the offices of the law officers as well as any personal relationship—although it is worth pointing out that until May 1999 the two officers were actually members of the same Administration. It is only recently that they have been members of different Administrations. One hopes that this will stand the test of time, not least for the sake of the Union to which Dominic Grieve referred.

Most important in the Minister’s reply was that there will be a number of issues that the Lord Advocate and the Attorney-General will be prepared to address and that that will be made publicly available prior to these provisions coming into force. That is a very welcome response, and on that basis I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 34 and 35 not moved.]

36: Before Clause 45, insert the following new Clause—

“Persons to whom the notification requirements apply

The notification requirements apply to a person who—(a) is aged 16 or over at the time of being dealt with for an offence to which this Part applies, and(b) is made subject in respect of the offence to a sentence or order within section 45 (sentences or orders triggering notification requirements).”

The noble Lord said: My Lords, at the previous stage of the Bill, I agreed to give further consideration to how the proposed notification requirements would operate. There were two main areas of concern about them. The first was that a child convicted of a terrorism offence could become subject to the requirements. The second was that the notification requirements would apply indefinitely in the case of anyone sentenced to five years or more.

After looking at these issues further—I would not want to think of it as a “cave-in”, because I hate that expression—we have decided to make a number of amendments to the notification provisions. The first amendment, inserting a new clause before Clause 45, addresses how the notification requirements apply to young people. It will ensure that they do not apply to anyone under the age of 16 on the date that they are dealt with for a terrorism or terrorism-related offence, recognising to an extent the extraordinary ways in which young people can sometimes act and the fact that they can change.

The amendments to Clause 53 address the length of time for which the notification requirements apply. They will mean that notification requirements will apply only for 10 years where someone is aged 16 or 17 on the date of their conviction for a relevant offence, regardless of the length of the sentence imposed, provided of course that the sentence is for more than 12 months.

The amendments also change the notification period for persons aged 18 or over on the date of conviction. Those sentenced to 10 years or more, or to an indeterminate sentence for a relevant offence, will have to notify for 30 years under the proposed amendment rather than the indefinite notification period which is found in the existing print of the Bill and which is not appropriate. Adults sentenced to between five and 10 years will be required to notify for 15 years, once again instead of the indefinite notification period. The period for persons sentenced to between 12 months and five years will remain 10 years.

The amendments to Clause 45 are largely minor and technical, and those to Schedule 6 replicate the new policy that I have just described in relation to offences dealt with before the service courts.

In making the amendments, we considered the proposal to shorten the application of the notification requirements to five years but to allow them to be renewed by a court if it considered it necessary for the purpose of protecting members of the public from a risk of terrorism. We also considered whether someone subject to the notification requirements could apply to a court to have them disapplied.

However, we could not envisage how a court could realistically undertake either of these tasks. If there was sufficient open evidence that an individual subject to the notification requirements was concerned in terrorism, we would expect the police to seek to arrest them with a view to prosecuting, rather than to seek to have the notification requirements renewed. If there was no evidence available that the individual was involved in terrorist activity, it would be inevitable that a court would either not renew the requirements or would have to remove them from the individual. However, the evidence might simply be unavailable as the individual was operating covertly, or waiting for their notification period to end before resuming their involvement. We also consider that the resources involved in undertaking such an exercise would be disproportionate as set against the minimal interference posed by the notification requirements, which we believe are fully justified by the risk established by the very fact of a conviction for a serious terrorist offence. We have therefore decided against adopting either of these approaches.

I remind the House that the notification requirement will apply only to convicted terrorists. The police should have access to information to assist them in monitoring the people concerned following their release from custody. In addition, the requirements are not onerous: they do not stop the individual doing anything; they merely require the person to notify certain details, such as change of address, to the police and to keep this information up to date.

I hope that the amendments are sufficient to address concerns about the notification requirements. I beg to move.

My Lords, I wholeheartedly thank the Minister for taking the time to meet us à propos the amendments. We said then that we welcomed the change of position. I would never apply laddish terminology such as “cave-in” to any morsels that the Minister might throw in my direction. Such an expression does not figure in my lexicon. I consider the Minister’s rethinking of his position an extremely gracious act.

However, while not wishing to be at all churlish, I take this opportunity to remind him of my now recalibrated concerns in one or two small areas, one of which is the treatment of 16 and 17 year-olds. Current arrangements for young people regarded as representing a risk to others are already stringent, and there seems to be no evidence that they are ineffective.

In the following points, I refer to an extensive briefing that I have received from the Standing Committee on Youth Justice. Youth offending teams are required to conduct an assessment of risk of serious harm in all cases where there is any suggestion that a young person might pose a risk to others. They are obliged to develop a risk management plan. Where levels of risk are at their highest, young people are subject to multi-agency public protection arrangements. Such arrangements provide a much higher level of supervision and oversight than would be afforded by the young person notifying his or her details to the police annually. For these very reasons, the Government were persuaded that violent offender orders, included in the Criminal Justice Bill not so very long ago, should not be introduced for those below the age of 18.

I know that the Minister is sympathetic to the argument that adolescence is a time of transition and identity formulation. During the minimum proposed period for notification, each young person will have changed beyond all recognition, and the risk that they may have posed 10 years previously may no longer be relevant.

A further concern is that terrorism-related activity differs from other forms of offending in a number of respects. Where young people are involved, it will in nearly every case be encouraged by, or undertaken under the influence or at the instigation of, older individuals—we have talked about the grooming that takes place—who may deliberately target children. In such cases, it is important that responses to terrorist offending should aim to foster social inclusion through a process of education and rehabilitation. The notification requirements are likely to be unhelpful in this regard.

I draw noble Lords’ attention to the Prime Minister’s visit to Saudi Arabia earlier this week, where he met some alleged suspects—I have to say “alleged”, because Saudi Arabia has not taken any terrorist suspects to trial as yet. They had been the subject of rehabilitation and seemed to have seen that they were under the influence of a pervasive ideology and to have recanted. While not suggesting for a second that we employ those tactics, we would hope that we could look forward to their education and rehabilitation, particularly with regard to this young group, rather than stigmatisation through notification requirements ad infinitum. Will the Minister, who I know is mindful of these points, accept that we might wish to keep an eye on this area, and, as we go forward and see how it beds down, perhaps in some forthcoming legislation revisit these concerns?

My Lords, I owe the Minister an apology for the use of a shorthand expression, when passing the noble and learned Lord, Lord Lloyd, in the Corridor, that I normally use only about his Government. In fact, I think that I referred to his Government and not to the noble Lord himself, because we all know that he has never caved in personally or in his career throughout his life. We welcome from these Benches the straightforward way in which he deals with and listens to us. I should have said that the noble Lord, having given careful consideration to our points, has come to a sensible conclusion.

On Question, amendment agreed to.

Clause 45 [Sentences or orders triggering notification requirements]:

37: Clause 45, page 32, line 37, after “imprisonment” insert “or custody”

38: Clause 45, page 32, line 38, after “imprisonment” insert “or detention in a young offender institution”

39: Clause 45, page 32, line 39, after “imprisonment” insert “or detention in a young offender institution”

40: Clause 45, page 33, line 12, leave out subsection (2)

41: Clause 45, page 33, line 23, leave out sub-paragraphs (i) to (viii) and insert—

“(i) imprisonment or detention in a young offenders institution for life,(ii) imprisonment or detention in a young offenders institution for a term of 12 months or more,(iii) an order for lifelong restriction under section 210F of the Criminal Procedure (Scotland) Act 1995 (c. 46),(iv) detention without limit of time under section 205(2) of that Act (punishment for murder for offenders under 18),(v) detention for a period of 12 months or more under section 208 of that Act (detention of children convicted on indictment);”

42: Clause 45, page 34, line 4, leave out “or extended”

43: Clause 45, page 34, line 5, leave out “or 14”

44: Clause 45, page 34, line 6, at end insert—

“( ) an extended custodial sentence under Article 14(5) of that Order (offenders under 21 convicted of certain offences),”

45: Clause 45, page 34, line 14, after “more” insert “(other serious offences committed by a child)”

On Question, amendments agreed to.

Clause 53 [Period for which notification requirements apply]:

46: Clause 53, page 38, line 38, leave out subsections (1) to (3) and insert—

“(1) The period for which the notification requirements apply is—

(a) 30 years in the case of a person who—(i) is aged 18 or over at the time of conviction for the offence, and(ii) receives in respect of the offence a sentence within subsection (2);(b) 15 years in the case of a person who—(i) is aged 18 or over at the time of conviction for the offence, and(ii) receives in respect of the offence a sentence within subsection (3);(c) 10 years in any other case.(2) The sentences in respect of which a 30 year period applies are—

(a) in England and Wales—(i) imprisonment or custody for life,(ii) imprisonment or detention in a young offender institution for a term of 10 years or more,(iii) imprisonment or detention in a young offender institution for public protection under section 225 of the Criminal Justice Act 2003 (c. 44), (iv) detention during Her Majesty’s pleasure;(b) in Scotland—(i) imprisonment or detention in a young offenders institution for life,(ii) imprisonment or detention in a young offenders institution for a term of 10 years or more,(iii) an order for lifelong restriction under section 210F of the Criminal Procedure (Scotland) Act 1995 (c. 46);(c) in Northern Ireland—(i) imprisonment for life,(ii) imprisonment for a term of 10 years or more,(iii) an indeterminate custodial sentence under Article 13 of the Criminal Justice (Northern Ireland) Order 2008 (S.I. 2008/1216 (N.I. 1)),(iv) an extended custodial sentence for a term of 10 years or more under Article 14(5) of that Order (offenders under 21 convicted of certain offences),(v) detention during the pleasure of the Secretary of State under Article 45(1) of the Criminal Justice (Children) (Northern Ireland) Order 1998 (S.I. 1998/1504 (N.I. 9)).(3) The sentences in respect of which a 15 year period applies are—

(a) in England and Wales, imprisonment or detention in a young offender institution for a term of 5 years or more but less than 10 years;(b) in Scotland, imprisonment or detention in a young offenders institution for a term of 5 years or more but less than 10 years;(c) in Northern Ireland—(i) imprisonment for a term of 5 years or more but less than 10 years,(ii) an extended custodial sentence for a term of 5 years or more but less than 10 years under Article 14(5) of that Order (offenders under 21 convicted of certain offences).”

On Question, amendment agreed to.

Clause 61 [References to a person being “dealt with” for an offence]:

47: Clause 61, page 45, line 18, at end insert—

“( ) section (Persons subject to notification requirements)(a) or paragraph 3A(a) of Schedule 6 (persons subject to notification requirements: age when dealt with for offence),”

On Question, amendment agreed to.

My Lords, I beg to move that further consideration on Report be now adjourned.

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

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