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Lords Chamber

Volume 713: debated on Thursday 29 October 2009

House of Lords

Thursday, 29 October 2009.

Prayers—read by the Lord Bishop of Ripon and Leeds.

Government: Debts


Asked By

To ask Her Majesty’s Government what is the total value of unpaid debts to the Government in the form of benefit overpayments and unrecovered tax; and what action they will take to recover those debts.

My Lords, the value of unpaid tax debts is shown on page 96 of HMRC’s trust statement. On 31 March 2009, the figure stood at £27.7 billion.

The value of benefit overpayments to be recovered, as on 31 March 2009, is £1.8 billion, which the noble Lord could have found on page 108 of the DWP’s resource accounts. If people owe a debt to the Exchequer, it should be paid. HMRC and the DWP can, do and will continue vigorously to pursue those who can pay but will not.

My Lords, I thank the Minister for that response. He will agree that that is a very high proportion indeed of the national debt and, as he rightly says, if it is not paid the burden will continue to fall on the responsible taxpayers who do continue to discharge their debts. Is he aware of the Government’s guidelines on government agencies’ debt recovery, particularly the section on the legal services framework, and will he say whether he considers those guidelines still to be an adequate response to the need for collection activity in an incisive manner?

I am not intimately familiar with the document to which the noble Lord refers, but I shall put a copy alongside my bed tonight. What is more reassuring is that HMRC collects all but 1 per cent of tax due. Of the 1 per cent that is not collected, 90 per cent is due to business insolvency. That is an extraordinarily good record of debt recovery, which most businesses would find hard to match.

Does my noble friend agree that the figures sought by the noble Lord, Lord James, were about known tax debt? Does he further agree that the real problems that need to be addressed—I am sure they are receiving attention—are some of the corporate fiddles for evading taxation, such as transfer pricing, so that profits can be put into the most favourable tax domain even when they are earned in this country?

The Government and HMRC are committed to pursuing tax avoidance wherever they see evidence of that happening. We have been particularly vigilant in our dealings with the banking sector in this respect because some of the most invidious forms of tax avoidance are those associated with, and perpetrated or facilitated by, major banks. We are also extremely alert to areas in which tax codes and rules can be improved in order to reduce the risk of unintended consequences.

My Lords, does the Minister not agree that the noble Lord, Lord Tomlinson, in trying to put all the blame on the corporate sector, is being quite unfair? An awful lot of people operating privately are avoiding and evading tax.

I agree that we all have a commitment to meet our tax obligations and it is a great tribute to the vast majority of citizens and companies that they pay their tax at the time when it is due without being pursued or putting additional burdens on the system. That is to be welcomed. However, a small number do not and they should be pursued appropriately.

My Lords, no doubt the Minister is aware that CPAG recently won a case in the Court of Appeal to the effect that the Department for Work and Pensions could not recover overpayments of social security benefits through the courts where the claimant was not at fault. Some 65,000 claimants received letters saying that they would have to repay major overpayments. Can the Government give those people an assurance that they will now be written to again to tell them formally that they no longer have to pay back benefits that they were overpaid through no fault of their own?

If the judgment stands, there is no further appeal and that is the outcome, the DWP will of course recognise that and, I am sure, it would be the department’s intention so to communicate.

My Lords, is not our 99 per cent collection rate one of the highest, if not the highest, in western Europe?

I thank my noble friend for his question. I believe that the figure is very high, and as I said, it is high in comparison with my experience of the private sector. HMRC also works to understand the procedures used by tax authorities elsewhere and is constantly enhancing its methods, including in particular in terms of communication and phased payment. It is a good record and one on which HMRC deserves to be congratulated.

My Lords, what is HMRC’s latest estimate of the size of the black economy, and how accurate does the Minister think that estimate may be?

I do not have a figure to provide for the noble Lord, Lord Lawson, but I will endeavour to find out from HMRC its current estimate and communicate with him in writing. There is an economy which acts outside the formal economy with clear tax evasions as a consequence. We are much focused on ensuring that we raise the appropriate rate of taxation from all taxable activities.

My Lords, is my noble friend willing to comment on the fundamental issue here, which is that the benefit system is so complicated that you have to be a genius in order to be able to fill in the forms, and increasingly the tax system is so complicated that you worry enormously about making mistakes because you are never clear about the right answers? Have we not spent years talking about simplification? The problem is that while we all say that it is a good thing, we never do anything about it.

My noble friend Lord Peston makes a point with which I have much sympathy. The tax system and the benefit system are both complicated, but that is the consequence of targeted policies that try to ensure that we raise taxes in a fair and proportionate way and that we focus benefits on the most needy. The need to get good value for money and to preserve focus needs to be counterbalanced with the fact that there are some consequences in terms of complexity. I am not sure that any government will ever get it perfectly right, but the message of my noble friend is one with which I have much sympathy.

My Lords, in May the Public Accounts Committee criticised Her Majesty’s Revenue and Customs for failing to explore new payment methods for taxpayers to settle their liabilities and called on HMRC to look at letting people settle their debts through schemes such as Paypoint and Pay Zone. What progress has been made in this area?

As I said, HMRC is looking at new ways of settling tax through electronic money, adjustments to PAYE coding and adjustments to benefits received. Again, we are drawing on the experience both of the private sector in its management of debt recovery as well as that of tax agencies elsewhere. I have found HMRC to be an innovative and customer-focused organisation that is constantly seeking to improve its performance.

Africa: Water Shortages


Asked By

To ask Her Majesty's Government what long-term policies they will develop to deal with water shortages in Africa.

My Lords, climate change will result in more frequent water shortages, such as the current drought in east Africa. A deal at Copenhagen is crucial to limit temperature rise to two degrees centigrade and ensure that vulnerable African countries have access to additional finance to adapt to climate change. We are working with a number of African countries to improve water management. We will provide up to 25 million people with drinking water over the next five years.

My Lords, with water shortages caused both by the effects of climate change and by population growth, as a recent conference of Africans in Cambridge pointed out, and being highly variable across Africa, are Her Majesty’s Government assisting each country in a focused way to establish its future water resources and policies? Will they ensure that there is adequate funding of technical support programmes by the Met Office and other UK agencies, and that these will continue at least at the current level?

My Lords, DfID funding has helped more than 7 million people in sub-Saharan Africa gain access to clean water and sanitation over the past four years. The Government are providing country assistance to water programmes in Ethiopia, Democratic Republic of Congo, Nigeria, Sierra Leone and Sudan. We are supporting a regional programme within and between member states of the Southern African Development Community, and between the 10 countries that share the waters in the Nile Basin.

My noble friend will be aware that, as part of the £100 million that DfID has committed to climate research, we are developing a new partnership with the Met Office Hadley Centre to support African countries to improve knowledge and climate science capacity. We are also providing £15 million to the ClimDev programme in Africa, hosted by the United Nations Economic Commission for Africa; we support the Climate Change Adaptation in Africa programme; and we provide core funding to the Global Water Partnership, which has helped 12 African countries to develop integrated water resource management plans.

My Lords, is the Minister aware that climatologists predict that by the 50th anniversary of the 1984 famine in Ethiopia, this kind of drought will hit the Horn of Africa in three years out of every four? Given the gravity of that situation, what does he hope will be achieved today at the EU meeting? What does he think are the outstanding issues for Copenhagen?

My Lords, drought in the Horn of Africa is a tragedy that we have seen in the past. We hope that the El Niño rains that have started to fall will help to make this drought something that passes relatively quickly but, as the noble Baroness rightly says, under climate change those activities that are to our disadvantage will be more frequent in future. We hope that Copenhagen will produce an agreement to put additional finances into climate change. We believe it is important that we do not abandon the African continent and its fight against poverty and for health and education by diverting money from the ODA and to climate change. That is why the Prime Minister is seeking £100 billion from the Copenhagen summit, and today at the EU he will be pressing for support in that regard, as set out in his speech on 20 September.

My Lords, is the Minister aware that, while there are huge national shortages of water, personal access to water is very important to people in Africa? Is he aware of the marvellous work being done by many charities—NGOs, as they call them—to provide pumps and things? Where people had to collect water in a little cup, now they can get a bucketful of water. It is important to ensure that this work is continued.

My Lords, I agree with the noble Baroness. We find that the work internationally and nationally of the NGO community, of Water Aid and other international bodies, assisting as partners in the fight to provide water and sanitation, is vital. This situation can be overcome only by the partnership of civil society, government and the international community.

My Lords, does the Minister agree that one of the greatest drivers for conflict in Africa at the moment is the scarcity and shortage of water in many parts, particularly in eastern Africa? Will he reconsider the answer he gave a moment ago about the countries where help is being given? I notice the omission of Kenya, particularly the situation in Turkana, where many tribesmen are coming in from southern Ethiopia to raid cattle and much conflict is being driven by the absence of water. Will the Minister consider including Turkana in northern Kenya within the list of countries that DfID is able to help?

My Lords, I listened with interest to the noble Lord. Some 65 people have lost their lives in conflict in Kenya this year over water disputes. I know that I will be chastised for giving long answers if I deal in detail with the question, so I shall happily take it away and respond in writing to the noble Lord.

My Lords, is it not the case that while the long term needs to be addressed, this is a short-term matter that has to be dealt with now, with Kenya having the worst drought for 10 years and Somalia in the worst position since 1991? What is DfID doing to deal with the situation on its own account and to alert the international community to the tragedy that is unfolding, which may hit us very soon?

My Lords, DfID is supporting countries in Africa in dealing with the drought in a number of ways. It has committed £83 million in humanitarian aid to Ethiopia, Eritrea, Kenya and Sudan. It has also provided £40 million to the UN’s Central Emergency Response Fund this year, making us the fund’s largest donor. So far, £36 million has been drawn from that fund for east Africa. DfID has also provided £35 million to the productive safety net programme in Ethiopia, which provides food and cash transfers to more than 7 million vulnerable people. We continue to work with countries across Africa and the regional development authorities, in SADC and beyond, to assist in this very difficult situation.

My Lords, I received a very distressing e-mail yesterday from a friend in northern Kenya, who had seen hundreds of dead cattle. That is an area where we traditionally have a lot of military training. Will the Minister talk to his colleagues in the Ministry of Defence to see whether there is anything we can do immediately to use the skills and resources of the British military to dig more wells in that area?

I listened with interest to the noble Lord. If he could let me have greater detail on that matter, I shall pass the information on to my colleagues in the Ministry of Defence.

My Lords, what evidence do Her Majesty's Government have of misappropriation of funds in this context?

DfID has a very robust system of checking that the funding that it gives is used properly. When we feel that Governments are not in that position, we use the civil society organisations and others. We audit the funds very carefully and, when we find misappropriation, we seek to take action to avoid funds being embezzled in any way, shape or form. It is a large budget and is spent across a number of countries, so there are bound to be occasions when things do happen. We keep them to a minimum and investigate them all.

Northern Ireland: Cross-Border Police Co-operation


Asked By

To ask Her Majesty’s Government what progress has been made in reducing the delays and complexities affecting investigations and the bringing of suspects to trial in Northern Ireland when witnesses or evidence are in the Republic of Ireland or vice-versa.

My Lords, to address the complexities referred to by the noble Lord, officials in both jurisdictions are preparing draft procedural manuals for their respective police forces and prosecutors. This work is due for completion before the end of the year. In respect of delays in the processing of letters of request, all mutual legal assistance requests are processed and responded to as quickly and as comprehensively as possible.

I am grateful to the noble Baroness, particularly for her recognition of the importance of these issues for proper policing either side of the border. Will these procedural manuals mean that a policeman taking a statement on either side of the border will find that it can be used in both jurisdictions in court, as evidence in court in pursuing a trial? We were told that the procedural manuals would be available in the autumn, but we seem to have reached autumn and now it has moved to the end of the year. What is the reason for that delay?

The reason for the delay is to ensure that the procedural manuals are the best possible manuals that they could be. There is no other reason, and they will certainly be available by the end of the year. Work is still continuing. As for witness statements—I do not want to get this wrong, so I shall read it—a witness statement recorded by a member of An Garda Siochana may be used in committal proceedings in Northern Ireland, providing that it complies with certain requirements of Article 33 of the Magistrates' Courts Order 1981. Evidence of a confession made to a member of An Garda Siochana may be admitted in proceedings in Northern Ireland, unless the court considers that this would have an adverse effect on the fairness of the proceedings. That is the clear position. The procedural manual will ensure that people are better able to implement the law as it stands.

My Lords, will the Minister give us an assurance that this issue will be resolved before the transfer of policing and justice powers to the Northern Ireland Assembly? There really has been a great deal of procrastination by Dublin and London on this issue. My noble friend Lord Alderdice raised it over a year ago and the noble Lord, Lord Cope, did so again in June. I should like an assurance that it will be done before it is given to the Northern Ireland Assembly.

My Lords, if the noble Lord is referring to delays in mutual legal assistance requests, a lot of work has been done on that since it was raised in June this year. Discussions have taken place between the two authorities, and both authorities are adamant that there are no longer any delays due to bureaucratic problems. Any delays are only the result of the complexity of the information requested.

My Lords, given the very good co-operation at the moment between the PSNI and the Garda Siochana, am I right in thinking that some of the difficulty posed is that information has to be sent via London to Dublin or via Dublin to London rather than directly from one police force to another? If not, the process could be speeded up much more.

My Lords, the process is according to the law. Information goes from a unit in the Home Office to a unit in the respective department in Dublin, but that is not the reason for the delay. There are no delays due to bureaucracy, postbags or whatever. The delays are due only to complexities in the information requested.

My Lords, after devolution of criminal justice powers to Northern Ireland, will this problem be devolved with it? Under what authority will the Northern Ireland Executive negotiate with the Irish Government?

My Lords, I do not believe that the devolution of policing and justice will have any impact on this. There is not a problem at the moment, and with the devolution of policing and justice there will continue to be no problem. As I understand it, the Home Office will still be involved. However, if I am wrong, I will certainly come back to the noble Viscount in writing.

My Lords, it has already become clear in this discussion that the issue raised by the noble Lord, Lord Cope, is connected to the issue of devolution of policing and justice. One of the most remarkable things that has happened in Northern Ireland over the past 15 years is the way in which north-south co-operation, which was previously very controversial, is now uncontroversial and largely accepted on both sides of the community. The one exception is this area where we have not been able to demonstrate mutual benefit. Therefore, does the Minister accept that, in view of the controversy surrounding devolution of policing and justice, it is vital that both Governments redouble their efforts to ensure that we deliver to citizens on both sides of the border real progress in this area?

My Lords, I entirely accept what the noble Lord says. It is clear that there is a perceived problem. However, from my discussions with Northern Ireland officials and everybody else to whom I have spoken, it is a perceived problem. In reality, there is no problem in getting information from one side of the border to the other. However, I will certainly look into this again.

Territorial Army


Tabled By

To ask Her Majesty’s Government what will be the consequences for Her Majesty’s Armed Forces of the reduction in training of the Territorial Army.

My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I declare an interest as an honorary colonel of a TA regiment.

My Lords, first, I know that the whole House will wish to join me in offering our sincere condolences to the family and friends of Corporal James Oakland from the Royal Military Police, who was killed on operations in Afghanistan last week, and Corporal Thomas Mason of The Black Watch, 3rd Battalion The Royal Regiment of Scotland, who succumbed to his injuries at the Royal Centre for Defence Medicine, Selly Oak on Sunday.

On the Question, as the Secretary of State for Defence announced in another place yesterday, £20 million has been found by the Treasury to ensure that routine training for TA members can continue. The Government have consistently made it clear that all Territorial Army members deploying on operations will get the full training that the Army considers appropriate and necessary.

My Lords, we on these Benches also send our condolences to the family and friends of Corporals Oakland and Mason.

Turning to the Question on the TA, we obviously welcome the government U-turn. There is no way that the Regular Army could continue the war in Afghanistan without the TA. Does the Minister agree that the original decision to suspend training was a shocking error of judgment? What signal did Ministers think it would send out to serving and future TA recruits, to employers of territorials, and, crucially, to the Taliban?

My Lords, I happily acknowledge the expertise that the noble Lord has—and, indeed, that other noble Lords in this House have—in the Territorial Army. I know that there is a great deal of experience here. He asks what led to the decision. In part it was the improved recruitment to the Regular Army, which is more than 1,000 up on last year. Land Forces decided that, because of those pressures, this was something that they would look at. They made recommendations up to Ministers, but Ministers of course accept the responsibility for the decisions that were made.

The TA has played a very significant role in Afghanistan: 540 TA members are deployed there at the moment, and we have had over 15,000 deployed in Iraq and Afghanistan since 2003. So there is no doubt about the contribution that has been made. I think it important to remember that, in all of those discussions, it was made absolutely clear that no one who was going to be deployed would have other than the full training that they needed prior to deployment.

My Lords, is the noble Baroness aware that many of the men and women gazing down upon her now from up above us are officers—battle-tried officers—of Her Majesty’s Army? Is it not a fact that they are most welcome in your Lordships’ House today? I am sure they will be most interested in the Minister’s answers.

My Lords, this is a very good opportunity to reiterate the appreciation of the whole House for all of those who serve in the Territorial Army, and indeed for all of our reservists. Earlier this week I had the pleasure of meeting some of the employers who have been mentioned, and who are extremely important in making sure that this system that we have is so successful. The last week has had some unintended benefits, one of which has been an opportunity for everybody to express their appreciation of the TA.

My Lords, may I first enjoin these Benches in the earlier tribute? The very embarrassing U-turn by the Government on the TA seemingly came about as a result of a phone call from John Reid to the Prime Minister. As a former Government Chief Whip in the other place, what would the noble Baroness say now to John Reid for humiliating Defence Ministers in this way?

My Lords, I, too, welcome the noble Baroness’s response on training. One of the concerns among the territorial service personnel in my diocese is how many of them return to work after a very considerable commitment in the field. What provision is made in training to enable those personnel to return in a way that enables the fullness of their lives to be taken up appropriately?

My Lords, that is an extremely important point and one which was, in a way, touched on in the reserves review earlier this year. It is important that those who are in the TA have all the benefits of all of the support mechanisms that we now know are necessary for all of those who serve in the Armed Forces. Whether the people who have served come back well or have been injured, or their families need support, or mental health problems arise later, we have learnt a great deal in recent years about how to improve the service that we give to our personnel. The TA, and indeed all reservists, should have the same entitlements. We endeavour to make sure that that is the case.

My Lords, the TA is but one element of the Reserve Forces. The Royal Navy and the Royal Air Force, in particular the Royal Air Force Regiment, field personnel in the operational theatres and now in Afghanistan. Can the Minister assure the House that there is no reduction in the training funds made available to these two forces?

My Lords, this difficulty came about, as I mentioned earlier, because of the increase in recruitment to the Army. That is why it was Land Forces that made the original suggestion. It does not affect the other services.

My Lords, the whole House will doubtless recognise the crucial significance and usefulness of the TA and its counterparts in other parts of the Armed Forces. Does my noble friend recognise that it is passing strange that when a Government heed advice and change policy, it is a humiliating climb-down, but when they fail to do so they are being stiff-necked and arrogant? Could my noble friend, with all her experience, refer us to the oracle of immaculate judgment that appears to advise the Opposition Front Bench?

My Lords, I fear that some things are beyond me. I think that we should all be somewhat cautious in the statements that are made. After all, those who are calling for no cuts anywhere are very often the same people who are not proposing any increase in defence spending whatever. As for the Territorial Army, it was the party opposite which reduced numbers from 90,000 to 60,000.

My Lords, all Ministers in the department share collective responsibility and acknowledge responsibility for the decisions that were made.

House of Lords: Code of Conduct


My Lords, on 21 May this year I reported to the House that I intended to establish a leader’s group to consider the House’s code of conduct and the rules relating to Members’ interests, and to make recommendations. I am now in a position to report to the House that the Leader’s Group, chaired by the noble and right reverend Lord, Lord Eames, has now completed its work. The group’s report is being published today. Copies are now available in the Printed Paper Office and will be published online. This is a unanimous report, from a group chaired by a Member from the Cross Benches and including representatives from all the political parties. I urge all Members of the House to study and consider it.

On behalf of the whole House, I place on record my thanks to the noble and right reverend Lord, Lord Eames, all the members of the group and the staff of the House, who provided the secretariat for the group’s work. The group also included, until his untimely death, the late Lord Kingsland, in one of the last of his many acts of service for the House. It may be helpful to the House if I indicate now the process which we are proposing for the consideration of the report.

I said in May that the report would go to the Committee for Privileges, but I am advised that precedent suggests that the report should come directly before the House, and my proposals are in line with that precedent. It is intended that the House will have an opportunity on Monday 30 November to debate the report and approve the proposed new code of conduct. In addition, the noble and right reverend Lord, Lord Eames, is proposing to hold a number of meetings with Members of the House to discuss the report in advance of its consideration by the House as a whole. These meetings will include one open to all Members, to debate and question the report, which will take place on Thursday 5 November. The noble and right reverend Lord, Lord Eames, will also be holding a press conference on the report today. I understand that it will take place shortly.

I undertake to continue to keep the House informed on these and related issues. I believe that the report of the Leader’s Group offers a vital blueprint for the future of the House. It is a thorough and important piece of work, which deserves careful consideration by Members of the House. I am confident that Members will give it that consideration, and I commend the report to the House.

My Lords, I am grateful to the noble Baroness the Leader of the House for taking the first available opportunity to make that announcement. I echo her thanks to the group for its sterling work, and I thank her for her kind words about Lord Kingsland. I am also grateful to her for setting out so clearly the procedure that is to be followed for the discussion of this important report. Like all Peers, I am delighted to hear that precedent means that it will go before the whole House first.

My Lords, from these Benches I thank the noble and right reverend Lord, Lord Eames, and his group, and particularly my colleague and noble friend Lady Hamwee for serving on a group that has done such great service to the House. I also associate myself with the tribute to Lord Kingsland; it was indeed one of his last great services to this House.

We need to study the report carefully, as the Leader of the House has said, and I welcome the offer from the noble and right reverend Lord, Lord Eames, of a further consultation with Peers, and the offer of a debate on 30 November. I also put on record my thanks for the leadership shown by the Leader of the House and the Lord Speaker in carrying this forward. It is because of that leadership that we have had, at this end of this building, a welcome absence of political point-scoring while we tried to go through this process. A year ago I said that the rules governing this House were vaguely drawn and lightly policed. That light-touch regulation produced one of the cheapest and most cost-effective legislatures in the world. However, we all recognised that things could not stay as they were. The Eames report is one more example of the determination of this House to put our house in order. This House does a good job, and this report—and the SSRB study that we will receive very soon—is an exercise in improvement, not in collective punishment. In that spirit, I welcome the report, promise full co-operation from these Benches and again record my thanks to the noble and right reverend Lord, Lord Eames, and his colleagues.

My Lords, the noble Baroness, Lady D’Souza, regrets that she could not be present in the House, but we also thank the noble and right reverend Lord, Lord Eames, for both the substance and the clarity of the report. At the current time, when we have so much speculation about parliamentary business, I think the clarity will be very much welcomed in this House, especially on the issue of paid advocacy and in emphasising our first duty—to be mindful of the public interest. We are content with the approach taken. We also welcome the chance for some meetings with Members before the report comes to the full House, and we thank the Leader of the House for her statement.

May I introduce a slightly discordant note? First, I have not read the report, and therefore am unable to join all the leaders in saying that I welcome it—I would prefer to read the report before welcoming it, because I might not welcome it. Secondly, did I understand my noble friend the Leader of the House to say that when it comes to be debated in the House, it will be on the basis of whether we accept it or not? My own judgment—given the soundings I have been taking on a whole range of suggestions to do with our future—is that it would be much better if we had a Take Note debate on this report, so that we could listen to each others’ views on the matter, and then come back to a more controversial debate in which we might amend or not. Given the other pressures that have come on to us from other reports, a Take Note debate would be an ideal way of finding out their Lordships’ views on this subject.

My Lords, I take note of the views expressed by my noble friend, and he is absolutely right to say he should not welcome the report until he has read it. When he has read it, he might then think that a Take Note Motion is not the most appropriate one, but we will discuss that among our colleagues and the usual channels, and we will come back to the House on that.

Beverley Freemen Bill [HL]

London Local Authorities Bill [HL]

London Local Authorities and Transport for London (No. 2) Bill [HL]

Transport for London (Supplemental Toll Provisions) Bill [HL]

Carryover Motions

Moved By

Beverley Freemen Bill [HL]

That this House resolves that the promoters of the Beverley Freemen Bill [HL], which was originally introduced in this House on 22 January 2009, should have leave to suspend any further proceedings on the Bill in order to proceed with it, if they think fit, in the next Session of Parliament according to the provisions of Private Business Standing Order 150A (Suspension of Bills).

London Local Authorities Bill [HL]

That this House resolves that the promoters of the London Local Authorities Bill [HL], which was originally introduced in this House on 22 January 2008, should have leave to suspend any further proceedings on the Bill in order to proceed with it, if they think fit, in the next Session of Parliament according to the provisions of Private Business Standing Order 150A (Suspension of Bills).

London Local Authorities and Transport for London (No. 2) Bill [HL]

That this House resolves that the promoters of the London Local Authorities and Transport for London (No. 2) Bill [HL], which was originally introduced in this House on 22 January 2008, should have leave to suspend any further proceedings on the Bill in order to proceed with it, if they think fit, in the next Session of Parliament according to the provisions of Private Business Standing Order 150A (Suspension of Bills).

Transport for London (Supplemental Toll Provisions) Bill [HL]

That this House resolves that the promoters of the Transport for London (Supplemental Toll Provisions) Bill [HL], which was originally introduced in this House on 22 January 2007, should have leave to suspend any further proceedings on the Bill in order to proceed with it, if they think fit, in the next Session of Parliament according to the provisions of Private Business Standing Order 150A (Suspension of Bills).

Motions agreed.

Driving Instruction (Suspension and Exemption Powers) Bill

Third Reading

Bill passed.

Coroners and Justice Bill

Report (4th Day)

Amendment 96

Moved by

96: After Clause 143, insert the following new Clause—

“Damages-based agreements

(1) The Courts and Legal Services Act 1990 (c. 41) is amended as follows.

(2) After section 58A insert—

“58AA Damages-based agreements

(1) A damages-based agreement which satisfies the conditions in subsection (3) is not unenforceable by reason only of its being a damages-based agreement; but any other damages-based agreement is unenforceable.

(2) For the purposes of this section, a “damages-based agreement” is an agreement between a person providing advocacy services, litigation services or claims management services and the recipient of those services which provides that—

(a) the recipient is to make a payment to the person providing the services if the recipient obtains a specified financial benefit in connection with the matter in relation to which the services are provided, and(b) the amount of that payment is to be determined by reference to the amount of the financial benefit obtained.(3) The agreement—

(a) must relate to proceedings or a claim of a prescribed description;(b) must not relate to proceedings in a relevant court;(c) must not provide for a payment above a prescribed amount or for a payment above an amount calculated in a prescribed manner;(d) must comply with such other requirements as to its terms and conditions as are prescribed;(e) must be made only after the person providing services under the agreement has provided prescribed information; and(f) must be in writing.(4) A description of proceedings prescribed under subsection (3)(a) must not include proceedings that are—

(a) criminal proceedings; or(b) family proceedings (within the meaning given by section 58A(2)).(5) For the purposes of subsection (3)(b) an agreement is not to be treated as relating to proceedings in a relevant court if the services to be provided under the agreement are services that are to be provided only in contemplation of such proceedings before they are commenced.

(6) Regulations under subsection (3) are to be made by the Lord Chancellor and may make different provision in relation to different descriptions of damages-based agreements.

(7) Before making regulations under subsection (3) the Lord Chancellor must consult—

(a) the designated judges,(b) the General Council of the Bar,(c) the Law Society, and(d) such other bodies as the Lord Chancellor considers appropriate.(8) In this section—

“claim” and “claims management services” have the same meaning as in Part 2 of the Compensation Act 2006 (see section 4(2) of that Act);

“payment” includes a transfer of assets and any other transfer of money’s worth (and the reference in subsection (3)(d) to a payment above a prescribed amount, or above an amount calculated in a prescribed manner, is to be construed accordingly);

“proceedings” includes any sort of proceedings for resolving disputes (and not just proceedings in a court), whether commenced or contemplated;

“relevant court” means—

(a) a magistrates’ court;(b) a county court;(c) the High Court;(d) the Court of Appeal;(e) the Supreme Court.(9) In this section references to “advocacy services” or “litigation services” include a reference to services that it would be reasonable to expect a person who is acting (or contemplating acting) for another in relation to proceedings that do not take place in a court, to provide.

(10) Nothing in this section applies to an agreement entered into before the coming into force of the first regulations made under subsection (3).”

(3) In section 120(4) (regulations and orders) after “58(4),” insert “58AA”.”

My Lords, with the leave of the House, I have every intention of withdrawing the amendment at the end of the debate, which I hope may be short or even non-existent. I shall try to explain in a few words why I intend to take this course.

These amendments would establish a statutory framework for regulating damages-based agreements. They are not currently permitted in court proceedings and these amendments do not seek to change this. These agreements are, however, commonly used by solicitors and claims managers in some tribunal proceedings, primarily proceedings before the employment tribunal.

I am particularly grateful to the noble and learned Lord, Lord Woolf, for taking the time yesterday to discuss with my officials his and other noble Lords’ concerns. As a consequence, I shall seek the leave of the House to withdraw the amendment in due course.

The primary intention of the amendments is to ensure consumer protection of claimants. We know from recent research that a significant number of claimants in employment cases who sign up to a damages-based agreement are not given proper information by their representatives. This lack of information covers alternative funding which may be available, such as through a trade union or a legal expenses insurance policy. Claimants are also not fully informed about the costs, such as experts’ and counsels’ fees, which they may nevertheless have to pay—notwithstanding that they have signed a no-win no-fee agreement. It is right to legislate to introduce regulation to protect consumers.

I understand that some noble Lords were concerned at the extent of the amendments as drafted. We are listening to those concerns, and propose to withdraw or not move these amendments at this stage, with a view to bringing back at Third Reading redrafted amendments, which will be narrower in scope and limited to the regulation of damages-based agreements in respect of employment claims which may go to the employment tribunal. I hope in this way that we can meet the concerns that have been raised by noble Lords, while ensuring from the outset the consumer protection of vulnerable claimants in employment cases. I beg to move.

My Lords, I am most grateful to the Minister for the course that he has taken. We have shared the concerns to which he referred and consider that the proposals as currently drafted are wide and could capture areas which the Government would not wish to. The noble and learned Lord, Lord Woolf, has taken a leading part in dealing with this matter and I hope that when we see the redrawn clauses our concerns will be met. I am pleased to note, for example, that the Minister says that damages-based agreements will be restricted to the proceedings in employment tribunals. That is important. I shall also look for whether the concerns have been met of bodies that are not subject to any form of statutory regulation and which deal with third-party claims.

My Lords, I welcome the comments of the Minister. I, too, was concerned and had discussions with the noble and learned Lord, Lord Woolf. I agreed with the points that he made that the amendment would have an effect much wider than the one that the Minister outlined.

We are all aware of a timely review of costs conducted by Lord Justice Jackson, which has been welcomed on all sides of the House. Will the Minister consider not taking this matter further until the report has been received and carefully considered—as his ministerial colleagues have indicated that it will be? In the light of the concerns, and as the review is still under way—I understand that it will be completed shortly—we urge the Government to hold on until the report is published; and, if they are minded to bring the matter back, we will consider it in the light of the review and following wider consultation. These are important areas where we must proceed step by step to ensure the maximum level of consumer protection.

My Lords, I thank both noble Lords who have spoken. I say straight away to the noble Lord, Lord Hunt, that we need to legislate urgently on this and will bring back amendments at Third Reading, which I hope to share with noble Lords in good time. We will see where we go from there. The suitable course now is for me to beg leave to withdraw the amendment.

Amendment 96 withdrawn.

Clause 144 : Exploitation proceeds orders

Amendment 97

Moved by

97: Clause 144, leave out Clause 144

My Lords, together with other noble Lords whose names are appended to several amendments of the same kind, I tabled these amendments to remove Part 7 altogether from the Bill. We were not satisfied with the Government’s response to similar amendments that were tabled in Committee. We continued to be concerned that the Government’s proposals to enable court proceedings to be brought to recover royalties and fees earned by criminals from books, articles, films et cetera were not a proportionate response to a pressing social need.

Soon after we tabled the amendments on Report, the Government tabled amendments to modify their proposals in Part 7. First, they seek to reduce the scope of their proposals by confining them to indictable offences. Secondly, they seek to remove the test of offensiveness to the general public from considerations to be taken into account by the court when an exploitation proceeds order is sought. What remains for consideration by the court, if the Government’s amendments are accepted, is any offensiveness to the victim or the victim’s family from the offender receiving payments from a book, article et cetera.

The amendments proposed by the Government are welcome, particularly because proceedings could not now be based on a media-led populist appeal to public outrage. All along, the Government have said that the new provisions would be exercised only sparingly. In the light of that assertion, and the amendments now proposed by the Government, noble Lords are entitled to ask: why seek the new powers at all? They ignore existing powers to deal with criminal memoirs and necessarily involve limitations on freedom of expression. Therefore, they are doubtfully compliant with the European Convention on Human Rights—a matter on which my colleague, the noble Lord, Lord Lester of Herne Hill, will speak. These proposals introduce a large discretionary power for the Attorney-General and, if a court action is brought, discretion for the judge. This must leave anyone acting as an adviser to a potential author, and indeed the author himself or herself, in a state of considerable uncertainty as to whether the law would apply.

The Government’s answer is that sometimes real pain is caused to the victim or the victim’s family from the offender being able to profit by exploiting his offence for personal gain. But these proposals are bound to have what I call a chilling effect on any attempt by an offender to express himself, including publications or artistic work that may of course be very helpful in assisting his rehabilitation. It is not as though our present law on criminal memoirs is non-existent. There is the Proceeds of Crime Act 2002, the full implications of which have not yet been pursued sufficiently to see its advantage in extreme cases. The prison rules, enabling confiscation of memoirs by anyone serving a prison sentence, were upheld by the Court of Appeal in the case of Dennis Nilsen as being in conformity with the European Convention on Human Rights. Because Dennis Nilsen is serving a life tariff—he has already served 26 years in prison—there will never be a time when the Government’s proposals could apply in his case. He will never be a free man able freely to engage in publishing memoirs. The same point could be made about Ian Brady, the Moors murderer, who is also serving a full life tariff.

Then there are cases at the other end of the spectrum where there are no obvious victims whose outrage could form the basis for an exploitation proceeds order. In the recent case, which your Lordships may have read about during the Summer Recess, John Darwin the canoeist faked his own death so that he and his wife could live in Panama on insurance payouts. He profited from newspaper articles and was given a jail sentence of eight years for fraud. It seems that the proposed legislation can hardly apply to what is sometimes called a victimless crime. When you take all these things into account, surely the Government have a real question to answer. What is the value, use and worth of Part 7 of the Bill, with its 15 pages of proposed legislation? Part 7 can achieve very little for the victims of crime in whose name it is promoted, but it could have a number of damaging consequences, and it is doubtfully compliant with the European Convention on Human Rights. I beg to move.

My Lords, I understand fully where the Government are coming from on this, and I am sympathetic to anything that tries to stop the distress caused by some of these publications to victims of crime and their close friends and families. As the Minister has already discovered, the problem is in the detail of how to do it without slipping into undesirable censorship. I make the point in passing that if we had a similar rule for newspapers publicising these sorts of crimes, most of the articles would not be published. After looking at yesterday’s reporting of the poor 17 year-old girl who was killed as a result of an internet connection, one could well argue, as I suspect some of her friends and family may, that the detail and description given in the articles was undesirable and unacceptable. Of course, newspapers profit from that, so there is a delicate line here.

I leave that to one side because the important question relates to how we draft legislation in such a way that does not stop the release of good books and films. The Minister will know that this goes back to the publication of a book by Gitta Sereny about the Mary Bell case. I think that it was a good and important book because it explained a lot about why children kill. However, the media storm around it developed into a suggestion for legislation of this type. There is a case for it because there are examples of acute distress being caused to victims by people exploiting the horror of what they have done.

At this stage, I would ask the Minister to look at the degree of flexibility available. I know why he moved to the indictable offence factor as a way of trying to judge the seriousness of the issue, but I am troubled by the fact that that also catches other people. In other circumstances, I mentioned to him the book by John Healey, a recovered alcoholic. It is the only book I know that was written by someone who was a vagrant alcoholic for some 15 years, who came off the drink and published a book that won an autobiographical prize and became a Channel 4 film that also won awards. Like most vagrant alcoholics, he has many convictions, most of which were petty—being drunk and disorderly and so on—but among them were several indictable offences.

That book would not have been written if ultimately some payment had not been involved because it helped his development and it helped the development of the film that won the award. As I have indicated, it was also an important book in describing the process by which a person becomes a vagrant alcoholic and the processes by which they can abandon that position. It therefore has an important element. We have talked about the well known cases of Mary Bell, Dennis Nilsen and so on. But, thinking about it, the book by Jean Genet, the French author, would probably never have been published.

We therefore have to think carefully about this aspect, and I have a solution for the Minister. I understand the dilemma of getting this right. I wonder whether we could do more on the rights of the victim. The Government have introduced legislation in other areas where the victim has a greater say in what happens in sentencing. Without overriding the court, their views can be heard and considered. I am not sure whether in this case there is not an area where we can say that there must be some identifiable person with a genuine interest—a friend, relative or whoever—who needs to express concern before the process can be triggered. In other words, the process would start only if you had a person saying, “I find this just too painful”.

I repeat for the benefit of the media that they need to think very hard about how they approach these things. If we introduce such a law for the media, most of the stories about violent crimes will not be reported. Although I do not like the way that they report crime, I have to say that that would be a serious mistake. The same applies to books and films. I ask the Minister to look again at the way in which we trigger this process. That is important. If we have a blanket provision of indictable offences, for example, I am almost sure that John Healey’s book, The Grass Arena, and the Channel 4 film based on it, as well as books by people such as Jean Genet would not be published.

My Lords, my name is attached to the amendments, and I have tabled a couple of my own, Amendments 106A and 107A. I shall concentrate on why I consider that the Bill is not fit for purpose because Part 7 does not comply with the European Convention on Human Rights. Before I do that, perhaps I may say how much I agree with what the noble Lord, Lord Soley, has just said. The concerns that he expressed are very important and place this House in something of a dilemma, because we are faced today with the problem that Part 7 was not properly debated in the other place—which is a matter of great regret. We are the scrutineers and the revising Chamber, and that, plainly, Part 7 as it stands is not satisfactory. Somehow we need to try to stimulate the Government to reflect on what the noble Lord, Lord Soley, and others have said.

First, I thank the Minister and his advisers for having met the noble Lord, Lord Borrie, and me to discuss the possibilities of Amendments 106A and 107A, which I tabled in the hope—foolish optimist that I am—that there might be some way of making Part 7 convention-compliant. I am grateful for that.

One of the points that Her Majesty's Official Opposition make in their scepticism about aspects of the Human Rights Act is that it does not allow Parliament to do its job sufficiently and leaves too much to the courts to repair legislation enacted by us. I have some sympathy with that, even though I think that I am one of the architects of the Human Rights Act. It has come to be seen as an easy get-out for Governments, who can simply say, “The courts have an obligation to read and give effect to legislation if they possibly can to make it convention-compliant, so it does not really matter if the legislation enacted does not really get it right on its face”. One of the attractive points made by the Opposition is that it is really important for Parliament to do the best it can to pass legislation that is fit for purpose in being convention-compliant.

Yesterday evening, in a short debate on Section 5 of the Public Order Act, the noble Lord, Lord Bach, perfectly correctly referred to the fact that the European Court of Human Rights has held that Article 10(1) of the convention, the free speech guarantee, applies,

“not only to ideas that are favourably received, or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb”.—[Official Report, 28/10/09; col. 1190.]

That is the starting point for Article 10. There is a right to freedom of expression which can be interfered with only where there is legal certainty and necessity—proportionality. I am sure that that is common ground and that Ministers would not dissent from that basic position. There is also the right to property, the right to the peaceful enjoyment of one’s possessions in Article 1 of protocol 1.

The Explanatory Notes to the Bill, although they do not explain why the Government think that the provisions are convention-compliant, repeat the fact that they think that they are convention-compliant. I do not understand how a Minister could have been advised to come to that view. In the first place, the criteria in the Bill, which the court will be expected to exercise, are not only incommensurable—you cannot weigh one properly against the other for the reasons explained in our previous debate—but they are so vague, even without the “offence to the public” provision, which will now happily be removed if Part 7 stands, as to have the chilling effect to which the noble Lords, Lord Soley and Lord Borrie, have referred. Therefore, the first vice in these provisions is that they are vague and lack legal certainty. That would be quite enough to cause the European Court of Human Rights to say that they are in breach of Article 10.

Secondly, they also sweep too broadly; they are disproportionate. The Minister will no doubt say in his reply that all that may be, but it is for the judge to make sure under the Human Rights Act that the provisions of Part 7 can be read and given effect in a way that cures the vices of legal uncertainty and overbreadth. The courts cannot cure the vice of lack of legal certainty. That vice can be corrected only by Parliament. As the Joint Committee on Human Rights, on which I serve, has repeatedly pointed out, it is quite wrong to use the Human Rights Act, which I strongly favour, as a substitute for proper legislation. The safeguards have to be in the Bill.

In Amendment 106, especially, and Amendment 107A, I have endeavoured, in a rather pathetic way, to find some way of writing something into the Bill, not very satisfactorily, that might deal with this. Obviously, the Minister will wish to explain whether he is willing to accept that or something very similar to it. It is important that we know that. It is also important to know whether there is any Strasbourg case that Ministers can point to in this debate that supports their belief that this satisfies either legal certainty or proportionality in the context we are talking about. I know of no basis in Strasbourg case law that could possibly support a view that these provisions as they stand are convention- compliant. I very much hope that the Minister will be able to enlighten us because the legal advice he will have received about why it is compatible will surely have pointed to whether there are any Strasbourg cases—I bet there are not—and I reserve the right, if I may, having heard that, to reply to him later in the debate. I hope that when the Official Opposition come to decide what to do they will join those of us who want to get legislation passed that is fit for purpose and not leave it to the courts to give a declaration of incompatibility in future or to try to rewrite the statute instead of us having done so.

My Lords, I rise to support these amendments. I believe I am the only professional writer—that is, one who lives solely by her writing—to have spoken during the course of the Bill, and therefore what I have to say may be of some help.

At Second Reading, my noble friend Lord Borrie cited memoirs by Ian Brady, Mary Bell and Dennis Nilsen—he mentioned him again this morning—and went on to speak of the prison diaries of a former Member of Parliament and of a fellow Member of your Lordships' House. The noble Baroness, Lady Stern, spoke of Silver Threads by John Williams and John Hoskison's Inside: One Man's Experience of Prison. Perhaps, though, the most famous and distinguished example of a criminal whose memoirs, novels and plays can be said to stem entirely from his experience of crime and imprisonment is the French author Jean Genet, who has already been mentioned by my noble friend Lord Soley.

Genet, who was born in 1910, was a social outcast who, as a novelist, transformed erotic and even obscene subjects into what has been called a poetic vision of the world. He began his life of crime as a child. His mother abandoned him to the care of the assistance publique. He lived in state institutions and spent five years in the notorious reform school at Mettray. There he lived through the degrading experiences that were later described in his novel, Miracle of the Rose, in which he pondered the meaning of imprisonment.

After deserting from the Foreign Legion, he wandered around Europe, to be charged in various countries with vagrancy, theft, and homosexuality, which was then a crime. Here it may be apposite to say that Genet’s obscene or pornographic work is never gratuitous or designed to excite or titillate. Much of it explores man’s solitude and the meaning of shame and abjection.

More time was spent in prison, but in 1939 he began to write, and the outstanding nature of his work attracted the attention of Sartre, de Beauvoir and Gide. Under French law, automatic life imprisonment ensued after 10 convictions and, when Genet was convicted of burglary for the 10th time, Gide, Sartre and Cocteau, among others, successfully petitioned the President of the Republic for his reprieve and release.

Genet subsequently wrote a poem that praised criminals’ values and in which a prison cell becomes a centre for dreams and meditations. His autobiography, The Thief’s Journal, followed. This, about his youth and what he called a forbidden universe, is a prime example of the kind of memoirs that we are talking about here—a convicted criminal profiting from the publication of a record of his experiences.

My noble friend Lord Borrie pointed out at Second Reading that the publication of a criminal’s memoirs may in some cases have beneficial outcomes in the rehabilitation of the offender. He cites the learning of new technical or language skills or the discovery by an ex-prisoner of artistic talent. This absolutely applied to Genet, who is a fine example of what redemption can achieve if not by imprisonment then by writing about the prison experience.

In 1966, Genet largely gave up writing and spent his time giving lectures and supporting various radical causes. Concern for the victims of criminals is a theme that runs through this Bill, although the victims are not to recover compensation. To return to my own theme, those who suffered from Genet’s crimes were mostly the people from whom he stole. I do not know whether any of them believed that his large output of distinguished literary work compensated them, but I do not see how anyone could be injured by the work itself. I can, however, see the damage that may be caused by censorship.

If kleptomania exists, it looks as though Genet suffered from it—some pathological condition that impelled him to steal. For a story is told that he was so addicted to theft that he stole diamonds from his hostess while at a literary party. Such a condition may well be true of many compulsive thieves whose early lives were as tragic as Genet’s. This is a matter only for speculation, as is the possibility that what Genet wrote may have been restrained if, as the noble Baroness, Lady Stern, has put it, he had come under the dampening effect of measures such as these.

My Lords, I, too, have added my name to the amendment. I should like to say how grateful I am to all those involved in trying to deal with this part of the Bill who have taken it so seriously, and to outside organisations, such as English PEN and the Howard League for Penal Reform, which have worked hard to set out and explain to the wider world why this is such a flawed proposal.

We had a fair amount of time between Committee and Report, so I had a chance to try to get a little nearer to the bottom of how this very large piece of law, which in theory covers hundreds of thousands of people—all those with a conviction for an indictable offence and with a vast range of artistic expression—came into anyone’s mind. Why did the Government want to put this into the Bill? I am aware that there were consultations here and in Scotland, but it is clear that very small numbers responded. Most people who work in offender rehabilitation have never heard of these consultations, although presumably that was their fault because they would have been on a website somewhere.

I thank the noble Lord, Lord Bach, for his reply to my Written Question during the recess. He told me that there were 24 responses to the consultation, including two from victims’ organisations, not including Victim Support, and one from a relative of a crime victim. I got a clue about from where this might have come from reading the equivalent Scottish documentation and I thank the Minister for the information about Scotland included in his letter of 14 October to those who had spoken in Committee. The Scottish material talks about preventing “defamation of murder victims”. I began to see that a sensible germ of an idea was at the basis of all this. It is clear that defamation of murder victims by perpetrators would cause enormous distress and may call for a remedy. The noble Lord, Lord Soley, made that point very helpfully. However, it is not at all clear how we got from murder victims to all indictable offences and from books to all forms of artistic expression. When confronted with one or two bad examples of offensive behaviour, the Government have a tendency to look for a new law that aims to prevent it and stretches more widely to encompass a huge range of behaviour. But this measure must be the most dramatic example of that genre—if I can use that word.

In his letter of 14 October, if I understand him correctly, the Minister says, as consolation, that the scheme does not prevent publication of any material. It prevents only the author keeping the money earned by it. The letter suggests that the books I mentioned by ex-prisoners give valuable insights into imprisonment and prison reform and that they could still be published, but that the authors would not be able to keep the money they made. From a Government who are committed to offender rehabilitation, this approach is absurd.

The noble Baroness, Lady Rendell, is one of the most well known writers in the world. She has explained the importance of writing for rehabilitation better than many of us could. Writing, painting and making films are all better activities for society than violence, robbery and theft. We should welcome such rehabilitation and not take away the lawfully earned money of the rehabilitated.

I should declare an interest as president of the Arts Alliance and former chairman of the Koestler Trust. Has the Minister or any Minister from the Ministry of Justice been across the river to the South Bank to see this year’s Koestler exhibition of art by offenders, an exhibition curated by six women offenders on release from Downview prison? It is a quite outstanding display which demonstrates the value of the arts in the rehabilitation of offenders. The arts do not necessarily contribute to the prevention of reoffending as such but, by encouraging and developing the self-esteem of the person engaged in the activity, they encourage them to become involved in the education, training and work education that may lead to their being able to live a law-abiding and useful life. They therefore have a very pertinent part to play in encouraging the development of offenders.

I strongly support these amendments because all the members of the Arts Alliance—which consists of more than 500 voluntary organisations involved in all aspects of the arts and in bringing the arts to offenders, whether in prisons, psychiatric hospitals or probation areas—are extremely alarmed about the implications of this legislation. The impact has not been properly thought through. As the small print of the Bill reveals, it could have an impact on organisations that are involved in the delivery of arts to offenders—which is part of protecting the public. My strong recommendation, therefore, is that this whole part of the Bill should be withdrawn and rethought because it really is a sledgehammer to crack a small nut. I believe that the nut can be cracked in a much more effective way.

I apologise for not having contributed to the debate in Committee and therefore coming to the argument very late. To begin, may I say how strongly I agree with what has just been said by the noble Lord, Lord Ramsbotham, and other speakers thus far, including my noble friend Lord Soley? I do not pretend to have even a fragment of the expertise of the noble Lord, Lord Lester, in the matter of the human rights implications of the proposal, so I neither can nor should address it, but what I would like the Minister to explain is this. In what way will the legislation address the harm that it seeks to redress? Perhaps I have misunderstood it, but the legislation addresses only those circumstances in which prisoners or ex-offenders are paid for the work they produce. It seems possible, at least in principle, that someone could publish work that has the capacity to offend or distress victims or their families and not be paid for it, but the distress and harm would be exactly as if the writer had been paid. I cannot see how the linking of distress and harm to victims and their families—which is something we certainly should be concerned about—with payment in any way seriously allows the mitigation of that harm to be achieved.

This proposed legislation falls at the first hurdle that must be the test of any legislation, which is that it does what it sets out to do. When the Minister comes to reply, could he address that issue?

My Lords, I thank the Minister for his lengthy letter of 14 October, which sets out in greater detail the Government’s thinking on this issue. However, having read it and listened to the powerful comments and questions put by Members of your Lordships’ House today, I think that the Government should take away and rethink the set of clauses dealing with this issue.

The point made by the noble Lord, Lord Soley, is powerful because the question of the trigger is the essential one, but it is far from clear in the Bill. Perhaps I may cite the Minister’s letter where he talks about seeking the consent of the Attorney-General, who will weigh up matters of public interest. Although the Government have now tabled an amendment to address the issue of public distaste, the Attorney-General will nevertheless have to weigh up something when a case is put before her. The Minister then goes on to talk about how the court will have,

“wide discretion as to whether or not to impose an order, taking account of a number of factors”.

Lengthy arguments will arise in court where offenders will no doubt have great difficulty representing themselves—we have not touched on this issue—but what it comes down to is the chilling effect spoken about by many noble Lords.

The Minister’s letter does not give any sound examples of what drove the Government to introduce this provision. The noble Baroness, Lady Stern, asked why that is so, but none of the examples quoted in the four pages of the Minister’s letter really answers the question. The Minister will recall that he quoted the case of Nick Leeson. That, as the noble Lord mentioned, is clearly a victimless crime for the purposes of this Bill. If that case informed some of the thinking behind these clauses, that might explain why these clauses are so inadequate to deal with the problem which the Government are struggling to address.

The noble Baroness, Lady Rendell of Babergh, made a powerful point. There is no doubt that, as I mentioned, there will be a chilling effect, even when this is never going to come to court because the books or works of art will never be produced. That is something that we need to worry about.

This is not adequately drafted. No doubt there are other approaches and solutions that would not have this effect. We are unhappy with the way that these clauses are drafted.

The book Cries Unheard, which was one of the major reasons why the Government moved down this road, was written by someone else. The Government do not address at all the issue of books written by someone else, and although I gather Mary Bell received a payment for it—we have never seen any evidence of that, but she may have received a payment—this would not prevent someone else writing about a crime. This catches only the person who has written themselves about their crime, which leaves a bit of a gap if the Government are trying to prevent the victims from suffering more.

For all the reasons that we have heard today, we shall be supporting these amendments.

My Lords, I hesitate to interpose myself between the Government Front Bench and their Back Benches or, for that matter, noble Lords from the rest of the House, who do not seem to like what the Government are attempting to do.

I shall briefly set out the Opposition’s point. We accept that people who have committed awful crimes should not be allowed to profit from that crime by selling their story, so there is some merit in what the Government propose. We also note, and this is relevant in this House, that it is a matter that was promised in their manifesto at the last election. The Minister nods.

Having said that, it is also important to remember the point made by the noble Lord, Lord Lester, that Part 7 was hardly discussed in another place. It is unfortunate, when a new crime—and this is a new crime—or a new procedure is being added to the statute book, if these matters are not properly discussed in another place as well as in this House. I hope that the Minister can comment on that. It is obviously rather late in the day for that to be rectified, but procedures are such that the Government should ensure that these matters are properly discussed.

In some respects we are slightly more supportive of the Government. We note that nothing in these provisions actually prevents publication. We do not think that there is an infringement of free speech. In fact, free speech is not the issue; we are talking about paid speech. I dare say that the noble Lord, Lord Lester, will correct me if I am wrong on this, but there is no human right to be paid for saying or writing what you wish.

The clauses in the Bill allow an application to be made for profits or benefits to be confiscated. A court may hear an application for an order—

I think the noble Lord was asking me to respond, in a way. The answer is that it is not just the right to communicate with the public; any impediment—for example, a tax on free speech, newsprint or costs—or any other burden upon free speech implicates Article 10. That is accepted in the Explanatory Notes. I think the Government will accept that there is an issue under Article 10 of the convention, as well as on the right to property.

It is my own fault for offering an opening to the noble Lord, and I will try to restrain myself from doing that in future. I think the Minister will accept that it is still possible to publish; there is just the impediment that he referred to that the individual cannot be paid for it. He might remember what Dr Johnson said about people not writing for money, which has some bearing on that. If he does not know the quotation, I think the great doctor said, “No one but a blockhead ever wrote but for money”. I can have that corrected if I have got it slightly wrong.

A court may hear an application for an order only if it has been authorised by the Attorney-General. We have voiced doubts at times about the Government’s proposals, but we accept that checks, balances and safeguards are built into the process. It is not simply a grabbing exercise but what we trust could be a carefully targeted system that would deny offenders convicted of some of the worst crimes the opportunity to profit from their misdeeds.

Having said that, we await assurances from the Government on a number of points. Clearly there are people who have reformed or are reforming and who make a positive virtue out of their past offences. An ex-convict who draws on his experiences to make critiques of penal policy, or who writes about their experiences as a warning to others, should not, under any reading of these clauses, be swooped on by the enforcement authorities. When determining the application, the court will be mindful of such requirements in Clause 151(3). We have asked the Minister to confirm that. We think that these orders should be applicable only in the case of the most serious offences. Again, we would like to have some confirmation to that effect.

The noble Lord, Lord Lester, has proposed Amendments 106A and 107A, which would put in the Bill a direct reference to the convention rights. No doubt the noble Lord might intervene again, but while he has made a good point, in our view it is an unnecessary one; as I understand it, the courts have to make their decisions in the light of the convention in all cases. His amendments are therefore unnecessary.

It is clear to the Government that there is significant opposition to the clauses in the Bill. However, we have endorsed the principle behind them, and we look now for assurances from the Government to the House that they have struck the right balance between protecting the right to free speech and the rights of victims and their families. For that reason, we cannot support the amendments but we will leave it to others in this House to decide what they wish to do with them. We want further assurances from the Government.

My Lords, I thank the noble Lord, Lord Henley, for the only support I got in the whole debate. I thank all noble Lords for this extensive debate on this interesting area.

We have not changed our view that it is wrong for a criminal to cash in by exploiting the story of his or her crime, especially in cases where the offence has already inflicted immense suffering on victims and their families. We felt so strongly on this point of principle that we included a commitment to legislate in this area in the Labour Party’s 2005 election manifesto.

Earlier this month I wrote to the noble Baroness, Lady Miller, giving details about those offenders who had prompted public debate after receiving payment for material about their crimes. There are several more, including the Ian Huntleys of this world, who have reportedly written material that has not yet been published. I do not intend to go over each case cited in my letter, but one thing is clear: offenders will continue to benefit in the future from publishing material about their crimes if we do not take this opportunity to do something about it.

My noble friend Lord Borrie has argued that the scheme is not worth while because it will rarely be used. It is, of course, hard to predict precisely how many cases there will be each year. We suggested a figure of two a year in the impact assessment published alongside the Bill; this was on the basis of past cases that have caused concern. However, in some years there could be a greater or smaller number. Even if the scheme is rarely used, it does not mean that we should turn a blind eye to this problem. The fact that the scheme may be used in only a small number of cases is no reason for saying that people who cash in on their crimes should be outside the reach of the courts.

My noble friend also cited the existence of the prison rules and existing legislation on confiscation as a reason for not introducing these provisions. I recognise that the prison rules provide some degree of protection, but history shows that they cannot fully address the problem. Crucially, prison rules bite only when an offender is in prison. As to the Proceeds of Crime Act 2002, this was not designed with criminal memoirs in mind and its potential application to such cases is doubtful. Even if the Act could be utilised, confiscation orders are imposed at the time a person is convicted, whereas criminal memoirs are often published months or years after the conviction.

I turn now to some of the other criticisms that have been levelled at our scheme in recent weeks. I know that the noble Baroness, Lady Miller, and some organisations think the scheme will have a “chilling effect” on the right to freedom of speech and might damage an offender’s prospects of rehabilitation. Let me be clear that the scheme does not prevent anyone from writing or publishing anything. If offenders want to write and publish material to develop their skills, they can continue to do so. Indeed, we recognise that the natural outflow of expression in print can greatly aid rehabilitation. All we are saying is that if offenders profit from accounts of heinous crimes, an action which can cause great distress to surviving victims and bereaved families, the courts should have the power to order them to pay back the proceeds.

As I understand the Minister, it is the intention that these provisions should have a chilling effect by deterring the Ian Huntleys, for the reasons that Dr Johnson gave. Are they not to deter people by depriving them of the profits from publishing material considered by the Government to be undesirable and of no value?

There is a sense of chilling in what we are doing, for the most heinous crimes and within the context of the Act, which, as I shall go on to explain, will take account of all proper issues, particularly proportionality and the narrowing of the crime.

While the Minister is still on this part of his speech, could he address the point made by the noble Baroness, Lady McIntosh? As I understand it, the Government are of the view that what the victim of a serious crime minds, if something is written about it, is not that it is written about and that is published and many people read it but that the person gets money for it. I understand that it is the Government’s view that once that money is taken away, the victim no longer suffers from the hurt and distress of having it published. Have I understood that right?

I was going to come to that point—but, to answer it now, we believe that the publication can cause offence to victims and friends, but we think that it would be a step too far—and I am sure that noble Lords would descend on us like a ton of bricks—simply to ban publication. We believe that what is particularly offensive to victims, and to families and friends of those victims, is that the criminal is able to profit from his crime by subsequent publication. We have looked to all sorts of things to make this reasonable and fair, but we see the act of profit as particularly and excessively offensive. We believe that we could not possibly address the simple act of publication, because it would go too far the other way. I am sure that all noble Lords in this House would say that it would, and that it would interfere with freedom of speech.

When an application for an order is made, the court will have a wide discretion in deciding whether to make an order and setting the amount that the offender has to repay. It will consider a number of factors before deciding whether to impose an order and, if so, the amount. These include whether details about the offence are central or integral to the publication as a whole; the social, cultural or educational value of the publication; the extent to which the material is in the public interest; and the degree to which the publication causes offence to victims and their families.

I am sorry to interrupt the Minister again but this is a very important point. What sort of criteria will the judge have to decide on the educational value, for example? We have referred several times during this debate to the book Cries Unheard, which was of immense value in showing what might lead a child to such a crime. It has a readership among social workers and all sorts of people, which has been very valuable. What criteria will the Government suggest form the basis of that judgment?

It will be for the courts to decide how to use these clauses. We believe that the courts are quite capable of doing so. It is for the judgment of the House whether it thinks that courts are that capable, but we think that they are and that not only the criteria in the Bill but also the general duties of courts under the Human Rights Act will lead them to sensible decisions in any case that comes in front of them.

I am aware of Amendments 106A and 107A, tabled by the noble Lord, Lord Lester, which seek to amend the factors that a court has to consider before imposing an order. The amendments have the effect of explicitly requiring the courts to have regard to the right to freedom of expression and peaceful enjoyment of property and the extent to which the imposition of an order is a proportionate interference with those rights. We have considered his proposals carefully, but we do not believe that it is right to amend the scheme in that way. We have already set out clearly in the Explanatory Notes our firm view that the scheme complies with the convention rights.

As noble Lords will know, any interference with the right to freedom of expression is justified under the convention if it is in accordance with law, in pursuance of a legitimate aim—in this case the protection of the rights of others and the protection of morals—and necessary in democratic society—the latter term referring to there being a pressing social need for the interference—and that the means employed are proportionate to the legitimate aims being pursued. Interference with the right to peaceful enjoyment of property is justified under the convention when the interference is in the public interest, subject to conditions provided by law, and is proportionate to the aim pursued.

The detailed reasons why any interference with convention rights that may result from the operation of the scheme is fully justified and therefore compatible with the convention are set out in the Explanatory Notes. Any order made applying the scheme set out in the Bill will accordingly be consistent with the convention. Indeed, the Joint Committee on Human Rights in its report on the Bill did not raise any general concerns regarding the scheme. It simply raised one detailed point about Clause 151(3)(f), which is addressed in Amendment 106A, to which I will turn shortly.

Noble Lords will also recall that under Section 6 of the Human Rights Act the courts are already required to act compatibly with convention rights and will therefore need to do so when applying this new scheme. The courts will not impose an order if to do so would in fact be an unjustifiable interference with the right to freedom of expression or the right to peaceful enjoyment of property. The amendments requiring the courts to consider the convention rights are therefore unnecessary. It is also—

I must remind noble Lords that this applies not only to Report; it applies to interruptions of speeches in any event:

“A member of the House who is speaking may be interrupted with a brief question for clarification”.

That is what the noble Lord is entitled to do, but lengthy or frequent interruptions may not be made, even with the consent of the Member speaking. Of course, the noble Lord should ask his question if it is for clarification, but if it is any more than that, such as a debate, this is not the appropriate time for it.

I am grateful to be reminded of what I know already. I have not yet asked my question, but the Minister was explaining why my amendments are unnecessary and why the convention rights are secure. I rose because I asked before for case law of any kind on which the Government rely to show that these provisions, in this context, are compatible with the legal certainty and proportionality—not general case law, but specific case law. Does the Minister have those, please?

There is no case law. I believe that that is true for much of the Human Rights Act. That does not mean that courts do not take account of that Act all the time. I am proud to represent a Government that brought in the Human Rights Act and that that Act is impacting on the behaviour of courts and how they set about their business.

It is also important to bear in mind that, when deciding whether to impose an order, the courts will naturally balance the various factors that they have to consider in reaching their decision. The need for such a balancing exercise is plain from the clauses, which provide a list of factors to be considered, some of which are likely to tend towards an order being made and others that are not. The court will also be free to take into account any other factors that it considers to be relevant when carrying out that exercise.

I now turn to the government amendments. In Committee, the noble Baroness, Lady Stern, asked me to clarify whether the scheme would truly apply to offenders who exploit information about any offence, regardless of the seriousness of that offence. I can confirm that that is indeed the effect of the current clauses. However, we have been reflecting on this issue over the summer and government Amendments 101, 102, 103 and 112 should help to allay concerns about the breadth of the scheme.

Those amendments will narrow the scope of the scheme so that it applies only to offenders who exploit material about serious offences, namely those offences that can be tried on indictment—that is indictable-only offences and offences that are triable either way. It is, after all, people profiting from accounts about serious offences, not low-level summary offences, who are most likely to be of concern. To provide additional reassurance to the House and after extensive consultations, we intend to bring forward amendments at Third Reading to further limit the ambit of the scheme to indictable-only offences. Limiting the scheme to those who exploit material about offences that are triable only on indictment will be a major move on our part. The original scheme in the Bill would have applied to memoirs about any offence. Offences can that can be tried only on indictment form a small proportion of such cases. It would cover only offences at the most grave end of the spectrum such as murder, manslaughter or rape.

Noble Lords may also recall that the Joint Committee on Human Rights was concerned about the reference to the “general public” in Clause 151(3)(f). It was suggested that it would be difficult for a court to measure the extent to which the general public was offended by a publication when weighing up whether to impose an exploitation proceeds order. I know that that view is shared by other noble Lords, as it was raised during the debate in Committee on 21 July. On reflection, we think that that is a valid point. Government Amendment 107 therefore deletes the reference to the “general public” from Clause 151.

Importantly, however, the reference to the extent to which the victim or family of the victim are offended by a publication will remain. It would be much easier for the court to measure the degree to which victims or family members were affected than it would be to gauge the strength of public feeling.

I hope that I have answered the points made by the noble Lord, Lord Borrie. He brings forward what I called in my previous life the de minimis dilemma. Yes, this provision will relate to only a small number of cases. Nevertheless, our judgment is that those cases are important. The noble Lord, Lord Soley, talked about the case for flexibility. It is quite clear that the court can consider all factors and will reasonably do so. The impact on rehabilitation, the impact on victims and the victim's views are all things that the court should consider, but the key issue about flexibility is addressed by the move that we have made to indictable-only offences. Non-lawyers in the House may not know what that means. Offences that are triable either way include sexual assault, burglary, causing death by careless driving, fraud, membership of a proscribed terrorist organisation and drugs offences. When we bring forward our amendments at Third Reading, none of those offences will be included in the Bill.

The noble Lord, Lord Lester, made his case about the Human Rights Act. I thank him for the time that he spent discussing that with us and I am sorry that we have not come to a common understanding. The noble Baroness, Lady Rendell, made a brilliant speech about a French novelist, whom I have never heard of. I cannot possibly judge whether heinous crimes were committed by that novelist or not, but the contribution that she described would be considered by the courts if a parallel situation were to exist. The noble Baroness, Lady Stern, suggested that hundreds of thousands of people would be impacted. Our view in the impact statement was two per year. I hope that I answered the point made by the noble Baroness, Lady McIntosh.

The noble Baroness, Lady Miller, quoted from the letter that I wrote, particularly the Leeson part. She claimed that his was a victimless crime. That would no longer be included under the Third Reading amendments that we intend to introduce.

The noble Lord, Lord Henley, started to make a speech in support of us and I hope that as an individual he will support us in the Lobbies. We have now limited the provision to the worst crimes. I cannot bring forward the specific reassurances that he asked for, but I hope that I have answered the issues on the Human Rights Act and that the breadth of the Act allows all sensible things to be taken account of.

I hope that we will get support for this provision, the bipartisan nature of which goes back to before the previous election. Michael Howard, the then leader of the Tory party, said:

“We don’t think criminals should benefit from their crimes—society should draw a clear distinction between right and wrong”.

Later in the same discussion, he said:

“What I want to see is a presumption against criminals benefiting from their crimes in this way”.

As I set out in my letter to the noble Baroness, Lady Miller, there was cross-party support in the other place. I am afraid that I cannot be responsible for its conventions. During Committee in the other place in March 2009, Shadow Justice Minister Henry Bellingham stated,

“We have supported the Government’s policy of including part 7 on criminal memoirs in the Bill and have taken the view for some time that people who commit heinous crimes should not benefit financially from them after their release or, as in some cases, while they are in prison”.

Despite some misgivings about the finer detail of the Bill, the Liberal Democrat Home Affairs spokesman, David Howarth, stated:

“Like the hon. Gentleman, I have no objection to the general principle—indeed, I support it—that people should not benefit from their own wrong. Civil remedies in this area are more difficult to obtain”,

and are not as exhaustive,

“as some academic commentators would have us believe”.—[Official Report, Commons, Coroners and Justice Bill Committee, 10/3/09; col. 680.].

I hope that I have touched upon all of the points. Finally, I again remind the House that the provisions in this part of the Bill stem from a commitment in the Labour Party’s 2005 election manifesto. The relevant passage reads,

“we will develop new proposals to ensure that criminals are not able to profit from publishing books about their crimes”.

I hope that in the light of all I have said, the House will accept the need for these provisions, as modified by the Government amendments, and I invite my noble friend Lord Borrie and the noble Lord, Lord Lester, to withdraw their amendments. If they will not, I invite the House to vote against them.

My Lords, first, I thank the Minister for a very comprehensive response to the debate. He will have noticed, as I did, that apart from the fairly modest and partial support of the noble Lord, Lord Henley, every single person who spoke in the debate was critical of and generally against Part 7 of the Bill. In my view, having listened to the debate, Part 7 is an example of gesture politics. It is a gesture in the direction of victims of crime, for whom we must all have sympathy because the state of anguish and offence that they may feel when an offender profits from a book or article written by him is a serious matter.

However, it is no more than a gesture, because under these proposals the victim is not to receive a single penny of any proceeds that the Government will obtain under the new action that will be permitted. The Government admit that the new powers are to be used only rarely. Almost every time that the Minister has referred to these matters in detail, whether privately yesterday or today in this House, he has emphasised how very unusual it would be and in how few cases the proceedings suggested by Part 7 will result in proceeds being recovered.

The proceedings which are described in Part 7 are hedged around with restrictions and qualifications, and to some extent that is welcome because it allows for the literary value of publications, and for the general public interest to be observed. However, as the noble Lord, Lord Lester of Herne Hill, has clearly pointed out—and in this House, he has a particular knowledge of this field—the uncertainty of application of these proceedings is too vague, and not proportionate to the mischief that is said to be involved. That is because of the vagueness that, almost inevitably, has to appear in the legislation.

To say that the Government are attracted to it may be an exaggeration, but they are still resolute in their desire to have Part 7 on the statute book. The Government are not willing to modify it on the lines helpfully proposed by the noble Lord, Lord Lester of Herne Hill, despite their inability, which has been confirmed today, to show that there would be any European case law for the compliance of this part of the Bill, and the things that can take place under it, with the European Convention on Human Rights.

It is impossible to summarise the breadth, width and thoughtfulness that went into so many of the speeches that we have heard today, but in one way and another they all say to the Government, “You haven’t got it right, even if there is some basis for this sort of legislation. You should withdraw it”. They are unwilling to withdraw it, and I feel that I have to divide the House on this matter. It is not my custom to do that while sitting on the Government Benches, which I have been on for at least as long as the noble Lords on the Front Bench. On this occasion, however, I feel that this has hardly anything to do with party politics but is a matter of principle. I feel that I should ask to divide the House unless, perhaps, the Minister does that the other way around.

Clause 145 : Qualifying offenders

Amendment 98 not moved.

Clause 146 : Qualifying offenders: service offences

Amendment 99 not moved.

Clause 147 : Qualifying offenders: supplementary

Amendment 100 not moved.

Clause 148 : Relevant offences

Amendments 101 to 103

Moved by

101: Clause 148, page 95, line 2, leave out subsection (1) and insert—

“(1) In this Part “relevant offence”, in relation to a person (“P”), means—

(a) a serious offence by reason of which P is a qualifying offender,(b) a serious offence which was taken into consideration by a court in determining the sentence imposed on P for an offence by reason of which P is a qualifying offender, or(c) a serious offence committed by another person which is associated with—(i) an offence by reason of which P is a qualifying offender, or(ii) an offence which was taken into consideration by a court in determining the sentence imposed on P for such an offence.(1A) For this purpose an offence is “serious” if—

(a) in the case of an offence under the law of England and Wales, it is an indictable offence,(b) in the case of an offence under the law of Scotland, it is an offence triable on indictment (whether or not it is exclusively so triable),(c) in the case of an offence under the law of Northern Ireland, it is an offence which, if committed by an adult, is punishable on conviction on indictment (whether only on conviction on indictment or either on conviction on indictment or on summary conviction),(d) in the case of a foreign offence, the act constituting the offence—(i) at the time it was done, would have constituted an offence within paragraph (a), (b) or (c) if it had been done in any part of the United Kingdom, and(ii) would also constitute such an offence if it were done in any part of the United Kingdom at the time the application for an exploitation proceeds order is made in respect of it.”

102: Clause 148, page 95, line 33, at end insert—

“(4A) Subsection (1A) does not apply in relation to a UK service offence or a foreign service offence, and for the purposes of subsection (1) such an offence is “serious” if—

(a) in the case of a UK service offence—(i) the act constituting the offence is a serious offence within subsection (1A)(a),(ii) the act constituting the offence, if done in England and Wales, would be a serious offence within subsection (1A)(a), or(iii) the offence is within subsection (4B);(b) in the case of a foreign service offence, the act constituting the offence—(i) at the time it was done, would have constituted a serious offence within subsection (1A) or an offence within subsection (4B) if it had been done in any part of the United Kingdom by a member of Her Majesty’s forces, and(ii) would also constitute such an offence if it were done in any part of the United Kingdom by a member of Her Majesty’s forces at the time the application for an exploitation proceeds order is made in respect of it.(4B) An offence is within this subsection if it is an offence under—

(a) section 24(1) of the AA 1955 or of the AFA 1955, section 2(1) of the NDA 1957 or section 2(1) of the AFA 2006 (misconduct on operations),(b) section 25 of the AA 1955 or of the AFA 1955, section 3 of the NDA 1957 or section 1 of the AFA 2006 (assisting an enemy),(c) section 26(1) of the AA 1955 or of the AFA 1955, section 4(1) of the NDA 1957 or section 3 of the AFA 2006 (obstructing operations),(d) section 30(a) or (b) of the AA 1955 or of the AFA 1955, section 5(a) or (b) of the NDA 1957 or section 4(1) or (2) of the AFA 2006 (looting),(e) section 31 of the AA 1955 or of the AFA 1955, section 9 of the NDA 1957 or section 6 of the AFA 2006 (mutiny), or(f) section 32 of the AA 1955 or of the AFA 1955, section 10 of the NDA 1957 or section 7 of the AFA 2006 (failure to suppress mutiny).”

103: Clause 148, page 95, line 40, leave out subsection (6) and insert—

“( ) In this section—

“AA 1955” means the Army Act 1955 (3 & 4 Eliz. 2 c. 18);

“act” includes a failure to act (and references to the doing of an act are to be read accordingly);

“AFA 1955” means the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19);

“AFA 2006” means the Armed Forces Act 2006 (c. 52);

“foreign offence” has the same meaning as in section 145;

“foreign service offence”, “Her Majesty’s services” and “UK service offence” have the same meaning as in section 146;

“NDA 1957” means the Naval Discipline Act 1957 (c. 53).”

Amendments 101 to 103 agreed.

Amendment 104 not moved.

Clause 149 : Deriving a benefit

Amendment 105 not moved.

Clause 150 : Applications

Amendment 106 not moved.

Clause 151 : Determination of applications

Amendment 106A not moved.

Amendment 107

Moved by

107: Clause 151, page 97, line 22, leave out from “offence” to “is” in line 23 and insert “or the family of the victim”

Amendment 107 agreed.

Amendments 107A and 108 not moved.

Clause 152 : Limits on recoverable amount

Amendment 109 not moved.

Clause 153 : The available amount

Amendment 110 not moved.

Clause 154 : Property

Amendment 111 not moved.

Clause 155 : Effect of conviction being quashed etc

Amendment 112

Moved by

112: Clause 155, page 100, line 12, leave out paragraphs (a) and (b) and insert—

“(a) the relevant offence is within paragraph (a) of section 148(1) and the respondent’s conviction for it is subsequently quashed, or(b) the relevant offence is within paragraph (b) or (c) of that section and the respondent’s conviction for the offence (or, if more than one, all of the offences) by virtue of which the relevant offence is within either of those paragraphs is (or are) subsequently quashed.”

Amendment 112 agreed.

Amendment 113 not moved.

Clause 156 : Powers of court on repeat applications

Amendment 114 not moved.

Clause 157 : Additional proceeds reporting orders

Amendment 115 not moved.

Clause 158 : Exploitation proceeds investigations

Amendment 116 not moved.

Clause 159 : Functions of Serious Organised Crime Agency

Amendment 117 not moved.

Amendment 117A

Moved by

117A: After Clause 164, insert the following new Clause—

“Police retention of photographs

“(1) The Secretary of State must, as soon as possible and not later than three months after Royal Assent, amend Code D made under section 67(3) of the Police and Criminal Evidence Act 1984 (c. 60) (codes of practices—supplementary) as follows.

(2) After article 3.3 insert—

“3.4(a) Where an officer takes a photograph or photographs of an individual who has not been arrested, those photographs must be destroyed as soon as possible, but at the latest within 14 days of the day on which the photograph was taken.

3.4(b) Where an officer takes a photograph or photographs of an individual who has been arrested but not charged with any criminal activity, those photographs must be destroyed as soon as possible after the decision has been taken not to charge the individual, but at the latest within 14 days of the day on which that decision was taken.

3.4(c) This subsection applies to, but is not limited to, evidence gathered by Forward Intelligence Teams and other evidence gathering operations.””

My Lords, Amendment 117A moves us on to the issue of police retention of photographs, a matter on which I tabled an amendment in Committee. We had a lively debate in Committee. I was encouraged to return to the issue by the noble Lords, Lord Monson and Lord Henley, who reminded us that this is only part of the wider issue of the retention of DNA, and the regime that we need so that innocent individuals do not have all sorts of information, including photographs, retained inappropriately.

Since Committee stage in July, the Guardian has this week carried out quite a lot of investigation into the scale of the retention of photographs. We were very surprised. We knew that there was a problem, but we had not realised that the sheer scale was as great as that uncovered by the Guardian. In Committee the Minister gave his main reason for rejecting the amendment. He said:

“We are not convinced that the codes of practice are the appropriate vehicle for governing retention of all photographs taken by the police”.—[Official Report, 21/7/09; col. 1574.]

I must ask him again: what is the appropriate vehicle? The PACE codes govern the retention of all evidence collected, of which photographs are one example, so there could be no more appropriate place than the PACE codes.

Secondly, there is still the problem that there seems to be no statutory accountability of the three national police units that are responsible for the policing of domestic extremism, as they call it. We would call it the right to protest and demonstrate. The very unfortunate terminology of “domestic extremism” being applied to innocent people who do nothing more than go on a protest is a move that must be strongly resisted. It is only on the basis that they attend protests that such people are photographed. There is a very serious issue here, which is why we have returned to it on Report.

I know that the Minister will say that we should wait for Denis O’Connor, the Chief Inspector of Constabulary, to release his national review of the policing of protests. The Minister would be wrong. We do not need a review to know that the photographs of innocent people—people who are not being charged with any offence—should not be retained. For the Minister to quote the review of the policing tactics at protests is simply a red herring. Nor do we need a review to know that the present situation has got so out of control. Anton Setchell, who is in command of ACPO’s domestic extremism unit, apparently said that people who find themselves on the databases,

“should not worry at all”.

However, people are worried. We have had a number of people listed on the so-called “sus” cards who were very worried about being on the cards, and who were very worried that their children had been photographed. There can be no excuse for the retention of these photographs past the point where police know whether they are going to charge anyone or not or whether any crimes have been committed, other than for the purpose of building up a database of innocent people, which begins to smack of a police surveillance state, of which we are all very wary.

I hope that the Minister will have found it in his heart to agree that this amendment has merit. I beg to move.

My Lords, the noble Baroness, Lady Miller, quite rightly said that I voiced some sympathy for her amendments when she moved them in July. I suggested that she should come back to them. However, I note that the amendment that she has moved today is significantly different from the earlier version. In July she was asking for photographs to be destroyed after a year if they are not being used, while that has now been reduced rather drastically to two weeks. It is possible that the noble Baroness has diluted the strength of her argument by producing quite such a tight timeframe. Nevertheless, the Minister, back in July, made a suggestion that a better method than amending PACE codes, which was one option, might be to work with ACPO to ensure that all forces are aware of the implications of the judgment in Wood, which found that the taking of photographs at public order events is not unlawful, but that the continuing retention of photographs will generally have to be justified by the existence of clear grounds for suspecting that the individual photographed may have committed an offence at the event in question.

We would be interested to hear more details from the Minister about what steps the Government have taken in the months since then to engage with ACPO in this way. For the moment, I think we prefer that approach, and would prefer to hear whether the Government have done anything in that direction, rather than endorsing the noble Baroness’s rather overrestrictive amendment.

My Lords, I am grateful to the noble Baroness, Lady Miller, for raising this important issue again. However, it is an entirely different amendment to the one that she moved in July, and I will come to that in a moment. We share her desire to see these matters addressed, but are clear that the route to ensuring the proper use and retention of photographs is not more legislation, but compliance with the statutory framework that already exists. Without going into the details of the Data Protection Act, or the management of police information guidelines, surely the key principles are that the police, or any public authority, need to be very clear about the purposes and reasons for which they are taking, retaining and storing images of any individual—protester or otherwise—and that they need to justify those reasons.

Proposed new article 3.4(a), contained in proposed new subsection (2) of the amendment states:

“Where an officer takes a photograph or photographs of an individual who has not been arrested, those photographs must be destroyed as soon as possible, but at the latest within 14 days of the day on which the photograph was taken”.

Is it seriously being suggested that the law should be changed so that whatever the circumstances, a photograph of someone who has not been arrested within 14 days after the photograph was taken should be destroyed? If so, that would be a fantastic advantage to those who have committed criminal offences—they would be mad not to hide themselves away for 14, or 15, days, because, if they had not been arrested by that stage, the photographs that might well be valuable identification evidence against them would have to be destroyed. It is completely irresponsible to suggest that this amendment be implemented and become the law of the land. Although there is every justification in broad terms for bringing this subject back, this part of the amendment would lead to absolute chaos. Anyone who was guilty of an offence, where the evidence of identification was the photograph, could simply escape justice by avoiding being arrested for 15 days. That would be an absurd piece of law, which would mean that many criminals would escape justice for no good reason at all.

The police may need to retain images for longer than 14 days for a variety of reasons: for evidential purposes, of course; the photographs may be of assistance in responding to complaints that are made against them or others; for legal challenges, or to tackle criminal activity. The retention of photographs is important for the complaints system. If we consider the G20 protests, the Independent Police Complaints Commission will have examined images taken by the Metropolitan Police when investigating complaints. Surely the noble Baroness and others would support retention of those images by the police, to ensure that any complaints were properly dealt with, but if the person involved had not been arrested within 14 days, those photographs would have to be destroyed forthwith. That on its own would be a reason for opposing this amendment. While the current legislative framework acknowledges the need for retention, it does not allow police to retain information without valid reason.

It comes down to proper guidance and training, to ensuring that officers understand the guidance, and leadership to ensure that officers have this training. ACPO is already committed to ensuring that these issues are addressed in revised guidance that also picks up wider lessons from the reviews into the policing of the G20 protests and the Kingsnorth climate camp, and that training for public order commanders flags the importance of this issue.

The HMIC review on policing protest is due to be published later this year and there will no doubt be important learning for police forces to pick up from that thorough review. The Home Office will also be setting out in its policing White Paper, due out later this year, the key principles for the policing of protest and how they need to be embedded in policing operations. Part of that will touch on the use and retention of photographs. The retention of photographs has to be assessed on a case-by-case basis. Police will have to weigh up the human rights implications of retaining images versus the public-protection consequences of disposing of them.

The noble Baroness still thinks that PACE code D is the appropriate place to change the law. She knows that we disagree. She will be aware that the Police and Criminal Evidence Act governs the taking, retention and use of photographs of persons detained at a police station, as well as photographs taken on the street of people who have been arrested or detained by a police community support officer or given a fixed penalty notice. PACE code D also sets out the procedures for conducting identification parades to enable witnesses and victims to identify suspects. These powers are focused on evidence of either the identity of the person suspected of the offence or evidence of the offence in question. The amendment would extend the scope of the PACE code D provisions to all images taken by the police, including intelligence information. We are not convinced that the codes of practice are the appropriate vehicle for governing retention of all photographs taken by the police. Article 3.4 of PACE code D relates to the procedures governing the conduct of identification procedures when the identity of a suspect is known, not the retention of images. If this change to PACE code D were to take place, the effect would be confusing.

I have outlined why the Government are opposed to this amendment and, if introduced, it would bring in bad law.

My Lords, the debate was helpful and has narrowed down the issues. I can appreciate the comments of the noble Lord, Lord Henley, that while in principle the retention for a long time of innocent people’s photographs is unacceptable, he finds 14 days too short a period. I accept the arguments that he and the Minister made whereby there may be a difficultly with 14 days, but the Minister is missing the point. It is one thing when the police are normally taking photographs of a suspect because they have actually committed an offence, but I was talking about all the photographs taken of people who have committed no offence, other than to exercise their right as citizens to take part in a peaceful demonstration. The Minister will no doubt say that some of them may have committed an offence and that the police may need to keep those photographs to identify them, but that is a hypothetical situation.

Photographs are taken of vast numbers of innocent people as they enter and leave openly advertised public meetings or demonstrations. These images of people, who it is accepted are innocent, are put on force-wide databases—and that is about chronicling campaigners’ political activities. It is that which is unacceptable.

I understand why a period of 14 days has not found favour on the Conservative Front Bench, but an important issue remains. It is so serious that I shall take it away and consider it further. Although I shall not press it today, I do not intend to leave the matter to rest, because the principle here is as important as that regarding the retention of innocent people’s DNA. For that reason, I hope to return to the issue at some point. In the mean time, I beg leave to withdraw the amendment.

Amendment 117A withdrawn.

Schedule 19 : Amendments of the Data Protection Act 1998 (c. 29)

Amendment 118

Moved by

118: Schedule 19, page 185, line 19, at end insert—

“ In section 20 of that Act (duty to notify changes), in subsection (2)—

(a) omit “that at any time”,(b) at the beginning of paragraph (a) insert “that at any time”,(c) before “and” at the end of that paragraph insert—“(aa) that the correct fee is paid under section 19(4),”, and(d) at the beginning of paragraph (b) insert “that at any time”.”

These amendments fill a small gap in the Bill as currently drafted. Noble Lords may be aware that the Government have introduced a new two-tiered structure for the fee which data controllers pay to the Information Commissioner to be registered as a data controller. This replaces the existing flat-fee structure. The notification fee for tier 1 data controllers will remain at £35 while the fee for tier 2 data controllers will be £500. The higher tier will encompass all data controllers with 250 or more members of staff and a turnover of £25.9 million or more, as well as all public authorities with 250 or more members of staff. We estimate that that represents around 5 per cent of all data controllers.

The new fee structure will ensure that the Information Commissioner’s Office has the necessary income to fulfil its current and future data protection responsibilities, such as those being brought forward in this Bill. Schedule 19 as drafted contains provisions that allow the Secretary of State to make regulations to require data controllers to provide information to the Information Commissioner for the purpose of verifying that the correct annual notification fee is paid.

However, this information has to be provided only upon initial registration. There is currently no mechanism to require data controllers to notify the Information Commissioner’s Office of changes in circumstance that would place them in another tier. Section 20 of the Data Protection Act 1998 requires data controllers to notify the Information Commissioner’s Office of certain relevant changes in circumstance. Amendments 118 and 132 amend Section 20 to enable regulations to be made requiring data controllers to notify the ICO of any changes to their registrable particulars for the purpose of ensuring that the correct annual notification fee is paid.

We have drafted the amendment whereby organisations will not need to provide the Information Commissioner’s Office with this information year after year whenever they pay their notification fee. Instead, they will need to provide this information only upon a change of circumstance. This will help to ensure that the bureaucratic burden on data controllers is minimised. I hope that noble Lords will agree to these amendments. I beg to move.

I welcome the amendment, because I am involved in the data world. I note that the noble Lord said that the change should provide sufficient funds for all the things that the office is meant to do. I am not sure that it will, because we are putting more and more duties on to the Information Commissioner to protect us. He is a bastion of protection for the citizen. I suspect that these fees may need to be looked at again, but this is certainly a move in the right direction.

Amendment 118 agreed.

Schedule 20 : Minor and consequential amendments

Amendments 119 to 119L

Moved by

119: Schedule 20, page 208, line 37, at end insert—

“Part 3AAbolition of common law libel offences etcCriminal Libel Act 1819 (60 Geo. 3 & 1 Geo. 4 c. 8)62A (1) In section 1 of the Criminal Libel Act 1819 (power of court to make order for seizure of copies of libel)—

(a) after “In every case” insert “in Northern Ireland”;(b) omit from “, or any seditious libel” to “means”.(2) This paragraph does not extend to Scotland.

Libel Act 1843 (c. 96)62B In section 7 of the Libel Act 1843 (evidence to rebut prima facie case of publication by agent)—

(a) after “Whensoever” insert “in Northern Ireland”;(b) before “libel” insert “blasphemous”.Newspaper Libel and Registration Act 1881 (c. 60)62C In section 4 of the Newspaper Libel and Registration Act 1881 (inquiry by court of summary jurisdiction as to libel being for public benefit etc)—

(a) after “jurisdiction” insert “in Northern Ireland”;(b) before “libel” (in first place it occurs) insert “blasphemous”;(c) omit from “as to the publication” to “malice, and”.Law of Libel Amendment Act 1888 (c. 64)62D In section 8 of the Law of Libel Amendment Act 1888 (order of Judge required for prosecution of newspaper proprietor etc)—

(a) after “commenced” insert “in Northern Ireland”;(b) before “libel” insert “blasphemous”.”

119A: Schedule 20, page 212, line 42, leave out sub-paragraph (2) and insert—

“(2) In section 34 (disqualification for certain offences), after subsection (4A) insert—

“(4AA) For the purposes of subsection (4)(b), a disqualification is to be disregarded if the period of disqualification would have been less than 56 days but for an extension period added pursuant to—

(a) section 35A or 35B,(b) section 248D of the Criminal Procedure (Scotland) Act 1995, or(c) section 147A of the Powers of Criminal Courts (Sentencing) Act 2000.””

119B: Schedule 20, page 214, line 14, leave out sub-paragraph (6) and insert—

“(6) In section 35 (disqualification for repeated offences)—

(a) in subsection (2), in the words following paragraph (b), after “offender is” insert “, subject to subsection (2A),”, and(b) after subsection (2) insert—“(2A) A previous disqualification imposed on an offender for a fixed period is not to be taken into account for the purposes of subsection (2) if that period would have been less than 56 days but for an extension period added pursuant to—(a) section 35A or 35B,(b) section 248D of the Criminal Procedure (Scotland) Act 1995, or(c) section 147A of the Powers of Criminal Courts (Sentencing) Act 2000.””

119C: Schedule 20, page 214, line 16, leave out sub-paragraph (7) and insert—

“(7) In section 37 (effect of order of disqualification)—

(a) in subsection (1A)(a), after “56 days” insert “(disregarding any extension period)”,(b) in subsection (1A), after “period of disqualification” insert “(including any extension period)”, and(c) after subsection (1A) insert—“(1B) In subsection (1A) “extension period” means an extension period added pursuant to—(a) section 35A or 35B,(b) section 248D of the Criminal Procedure (Scotland) Act 1995, or(c) section 147A of the Powers of Criminal Courts (Sentencing) Act 2000.””

119D: Schedule 20, page 214, line 21, leave out sub-paragraph (8) and insert—

“(8) In section 42 (removal of disqualification)—

(a) in subsection (3)—(i) for “the date of the order by which the disqualification was imposed” substitute “the relevant date”,(ii) in paragraph (a), after “four years” insert “(disregarding any extension period)”, and(iii) in paragraph (b), for “period of disqualification, if it is” substitute “period of disqualification (disregarding any extension period), if the disqualification is (disregarding any extension period)”,(b) after subsection (3) insert—“(3A) In subsection (3) “the relevant date” means—(a) the date of the order imposing the disqualification in question, or(b) if the period of the disqualification is extended by an extension period, the date in paragraph (a) postponed by a period equal to that extension period.”, and(c) after subsection (3A) (as inserted by paragraph (b)), insert—“(3B) “Extension period” means an extension period added pursuant to—(a) section 35A or 35B,(b) section 248D of the Criminal Procedure (Scotland) Act 1995, or(c) section 147A of the Powers of Criminal Courts (Sentencing) Act 2000.””

119E: Schedule 20, page 214, line 39, leave out sub-paragraph (9) and insert—

“(9) In section 47 (supplementary provisions as to disqualification and endorsements)—

(a) in subsection (2) (as substituted by paragraph 44(2) of Schedule 3 to the Road Safety Act 2006 (c. 49)), after “or more” insert “(disregarding any extension period)”, and(b) after subsection (2), insert—“(2ZA) In subsection (2) “extension period” means an extension period added pursuant to—(a) section 35A or 35B,(b) section 248D of the Criminal Procedure (Scotland) Act 1995, or(c) section 147A of the Powers of Criminal Courts (Sentencing) Act 2000.””

119F: Schedule 20, page 215, line 6, after “40A” insert “or Article 91A of the Criminal Justice (Northern Ireland) Order 2008”

119G: Schedule 20, page 216, line 27, after “40A” insert “or Article 91A of the Criminal Justice (Northern Ireland) Order 2008”

119H: Schedule 20, page 216, line 28, leave out sub-paragraph (7) and insert—

“(7) In Article 42 (effect of order of disqualification)—

(a) in paragraph (2)(a), after “56 days” insert “(disregarding any extension period)”,(b) in paragraph (2), after “period of disqualification” insert “(including any extension period)”, and(c) after paragraph (2) insert—“(2A) In paragraph (2) “extension period” means an extension period added pursuant to—(a) Article 40A,(b) Article 8A of the Criminal Justice (Northern Ireland) Order 1980 (S.I. 1980/704 (N.I. 6)), or(c) Article 91A of the Criminal Justice (Northern Ireland) Order 2008 (S.I. 2008/1216 (N.I. 1)).””

119J: Schedule 20, page 216, line 33, leave out sub-paragraph (8) and insert—

“(8) In Article 47 (removal of disqualification)—

(a) in paragraph (3)—(i) for “the date of the order by which the disqualification was imposed” substitute “the relevant date”,(ii) in sub-paragraph (a), after “4 years” insert “(disregarding any extension period)”, and(iii) in sub-paragraph (b), for “period of disqualification, if it is” substitute “period of disqualification (disregarding any extension period), if the disqualification is (disregarding any extension period)”,(b) after paragraph (3) insert—“(3A) In paragraph (3) “the relevant date” means—(a) the date of the order imposing the disqualification in question, or(b) if the period of the disqualification is extended by an extension period, the date in sub-paragraph (a) postponed by a period equal to that extension period.”, and(c) after paragraph (3A) (as inserted by paragraph (b)), insert—“(3B) “Extension period” means an extension period added pursuant to—(a) Article 40A,(b) Article 8A of the Criminal Justice (Northern Ireland) Order 1980 (S.I. 1980/704 (N.I. 6)), or(c) Article 91A of the Criminal Justice (Northern Ireland) Order 2008 (S.I. 2008/1216 (N.I. 1)).””

119K: Schedule 20, page 217, line 2, at end insert—

“(9) In Article 52 (supplementary provisions as to disqualification and endorsements)—

(a) in paragraph (2), after “or more” insert “(disregarding any extension period)”, and(b) after paragraph (2), insert—“(2ZA) In paragraph (2) “extension period” means an extension period added pursuant to—(a) Article 40A,(b) Article 8A of the Criminal Justice (Northern Ireland) Order 1980 (S.I. 1980/704 (N.I. 6)), or(c) Article 91A of the Criminal Justice (Northern Ireland) Order 2008 (S.I. 2008/1216 (N.I. 1)).””

119L: Schedule 20, page 217, line 9, at end insert—

“( ) Article 8A of the Criminal Justice (Northern Ireland) Order 1980;”

Amendments 119 to 119L agreed.

Amendment 120 not moved.

Amendment 121

Moved by

121: Schedule 20, page 218, line 18, at end insert—

“( ) In Schedule 1, in paragraph 30 (date of taking effect of youth rehabilitation orders etc)—

(a) in sub-paragraph (1)—(i) for “sub-paragraph (2)” substitute “sub-paragraphs (1A) and (2)”, and(ii) omit “the day after”,(b) after that sub-paragraph insert—“(1A) A court making a youth rehabilitation order may order that it is to take effect instead on a later date.”, and(c) in sub-paragraph (2), for “If” substitute “In particular, if”.”

My Lords, these are minor amendments to the Criminal Justice and Immigration Act 2008 that change the date that a youth rehabilitation order comes into effect to the day that it is made. The current legislation delays the date that the order comes into effect until the day after it is made. A delay in the start of the sentence would result in a gap of at least 24 hours between sentence and supervision or monitoring of an offender. During this period, any further offending would not technically constitute a breach. This would mean that a high-risk young offender might be at large overnight or over a weekend, and free to commit further offences with no immediate redress.

The amendments in this group address the defect by providing for a youth rehabilitation order to come into force on the day that it is made, or on such later date as the court may specify. I am sure that your Lordships will agree that the amendment is entirely sensible. I beg to move.

Amendment 121 agreed.

Schedule 21 : Transitional, transitory and saving provisions

Amendment 122

Moved by

122: Schedule 21, page 220, line 18, at end insert—

“3A Section (Amendment to the Regulation of Investigatory Powers Act 2000) has effect in relation to investigations that have begun, but have not been concluded, before the day on which that section comes into force (as well as to inquests beginning on or after that day).”

Amendment 122 agreed.

Amendments 123 to 125B

Moved by

123: Schedule 21, page 223, line 8, leave out from second “to” to end of line 12 and insert—

“(a) an offence under Part 2 of the Army Act 1955 (3 & 4 Eliz. 2 c. 18), Part 2 of the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) or Part 1 of the Naval Discipline Act 1957 (c. 53),(b) an offence under paragraph 4(6) of Schedule 5A to the Army Act 1955 (3 & 4 Eliz. 2 c. 18) or the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) or of Schedule 4A to the Naval Discipline Act 1957 (c. 53),(c) an offence under section 47K of the Naval Discipline Act 1957 (c. 53),(d) an offence under section 18 or 20 of the Armed Forces Act 1991 (c. 62) committed before the commencement of section 50 of the Armed Forces Act 2006 (c. 52) (“the 2006 Act”),(e) an offence under any of sections 95 to 97 of the Reserve Forces Act 1996 (c. 14) committed before the commencement of section 50 of the 2006 Act, and(f) an offence under paragraph 5(1) of Schedule 1 to the Reserve Forces Act 1996 (c. 14) committed before the commencement of section 50 of the 2006 Act which the Court Martial established by the 2006 Act has jurisdiction to try.(2) Notwithstanding subsection (4)(b) of section 74, the references in that section to a charge are to be treated as including a reference to a charge that is not brought under Part 5 of the Armed Forces Act 2006 (c. 52) but is to be regarded for the purposes of Part 5 as allocated for Court Martial trial, summary hearing or (as the case may be) Service Civilian Court trial.”

124: Schedule 21, page 224, line 26, at end insert—

“17A (1) Section 82 has effect with the modifications made by this paragraph for the purposes of discharging or varying a witness anonymity order made under the Criminal Evidence (Witness Anonymity) Act 2008 (c. 15) by—

(a) a Summary Appeal Court established by the Army Act 1955 (3 & 4 Eliz. 2 c. 18), the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) or the Naval Discipline Act 1957 (c. 53), or(b) a Standing Civilian Court established under the Armed Forces Act 1976 (c. 52).(2) The references in section 82(2) to (5) to the court that made the order are to be treated—

(a) where the order was made by a Summary Appeal Court, as references to the Summary Appeal Court established by the Armed Forces Act 2006 (c. 52), and(b) where the order was made by a Standing Civilian Court, as references to the Service Civilian Court established by the Armed Forces Act 2006 (c. 52).”

125: Schedule 21, page 225, line 10, leave out from second “to” to end of line 14 and insert—

“(a) an offence under Part 2 of the Army Act 1955 (3 & 4 Eliz. 2 c. 18), Part 2 of the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) or Part 1 of the Naval Discipline Act 1957 (c. 53),(b) an offence under paragraph 4(6) of Schedule 5A to the Army Act 1955 (3 & 4 Eliz. 2 c. 18) or the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) or of Schedule 4A to the Naval Discipline Act 1957 (c. 53), (c) an offence under section 47K of the Naval Discipline Act 1957 (c. 53),(d) an offence under section 18 or 20 of the Armed Forces Act 1991 (c. 62) committed before the commencement of section 50 of the Armed Forces Act 2006 (c. 52) (“the 2006 Act”),(e) an offence under any of sections 95 to 97 of the Reserve Forces Act 1996 (c. 14) committed before the commencement of section 50 of the 2006 Act, and(f) an offence under paragraph 5(1) of Schedule 1 to the Reserve Forces Act 1996 (c. 14) committed before the commencement of section 50 of the 2006 Act which the Court Martial established by the 2006 Act has jurisdiction to try.”

125A: Schedule 21, page 226, line 39, after “to” insert “, or has effect by reference to,”

125B: Schedule 21, page 228, line 5, leave out “added pursuant to section 35A or 35B”

Amendments 123 to 125B agreed.

Schedule 22 : Repeals

Amendment 126

Moved by

126: Schedule 22, page 232, line 20, at end insert—

“Libel Act 1792 (c. 60)

The whole Act.

Criminal Libel Act 1819 (60 Geo. 3 & 1 Geo. 4 c. 8)

In section 1, from “, or any seditious libel” to “means”.

Libel Act 1843 (c. 96)

Sections 4 to 6.

Newspaper Libel and Registration Act 1881 (c. 60)

In section 4, from “as to the publication” to “malice, and”.

Law of Libel Amendment Act 1888 (c. 64)

Sections 3 and 4.

Defamation Act 1952 (c. 66)

Section 17(2).”

Amendment 126 agreed.

Amendment 126A not moved.

Amendment 127

Moved by

127: Schedule 22, page 232, line 29, at end insert—

“Theatres Act 1968 (c. 54)

In section 4(1), from “(including” to “matter)”.

In section 7(2), from “or an offence” to “course of a performance of a play”.

In section 8, from “or an offence” to “play”.”

Amendment 127 agreed.

Amendment 128

Moved by

128: Schedule 22, page 232, leave out line 30

My Lords, I speak on behalf, and at the request, of my noble friend Lord Waddington. I shall speak also to Amendments 130, 136 and 139. The amendments are consequential to the amendment that my noble friend successfully persuaded the Committee to accept on 9 July of this year. I beg to move.

My Lords, we were disappointed that the Committee voted to retain the freedom of expression section in relation to the offence of inciting hatred on grounds of sexual orientation. However, it is important, when the Bill returns to the other place for consideration of the amendments made by this House, that it is properly drafted in all respects. We therefore support the amendments in this group, which are consequential on the removal of the former Clause 61. I make it clear that this does not change our position on the need for the freedom of expression section, and I would not be surprised if the House comes to debate this substantive issue again before long.

My Lords, I am grateful to the noble Lord for what I might call his “without prejudice” acceptance of the amendments.

Amendment 128 agreed.

Amendment 129

Moved by

129: Schedule 22, page 232, line 30, at end insert—

“Broadcasting Act 1990 (c. 42)

In section 166, from “(including” to “matter)”.

Criminal Procedure and Investigations Act 1996 (c. 25)

Section 61(4) and (5).

Defamation Act 1996 (c. 31)

Section 20(2).

Legal Deposit Libraries Act 2003 (c. 28)

In section 10—

(a) in subsection (1), “, or subject to any criminal liability,”,

(b) in subsection (2)(a), “in the case of liability in damages”,

(c) in subsection (3), “, or subject to any criminal liability,”,

(d) in subsection (4)(a), “in the case of liability in damages”,

(e) in subsection 6(a), “, or subject to any criminal liability,”, and

(f) in subsection (8), “and criminal liability”.”

Amendment 129 agreed.

Amendment 130

Moved by

130: Schedule 22, page 232, leave out lines 33 and 34

Amendment 130 agreed.

Amendments 131 to 133

Moved by

131: Schedule 22, page 232, line 34, at end insert—

“Notes1 The repeal of the Libel Act 1792 (c. 60), the repeal in section 1 of the Criminal Libel Act 1819 (60 Geo. 3 & 1 Geo. 4 c. 8), the repeal of section 17(2) of the Defamation Act 1952 (c. 66), the repeal of section 20(2) of the Defamation Act 1996 (c. 31) and the repeals in section 10 of the Legal Deposit Libraries Act 2003 (c. 28) do not extend to Scotland.

2 The repeal of section 4 of the Law of Libel Amendment Act 1888 (c. 64) and the repeal of section 20(2) of the Defamation Act 1996 (c. 31) do not extend to Northern Ireland.”

132: Schedule 22, page 236, line 10, at end insert—

“In section 20(2) “that at any time”.”

133: Schedule 22, page 236, line 18, at end insert—

“Criminal Justice and Immigration Act 2008 (c. 4)

In Schedule 1, in paragraph 30(1), “the day after”.”

Amendments 131 to 133 agreed.

Clause 170 : Extent

Amendment 133A not moved.

Amendments 134 to 135A

Moved by

134: Clause 170, page 114, line 36, at end insert—

“( ) paragraph 3A of Schedule 1;”

135: Clause 170, page 115, line 3, at end insert—

“( ) section (abolition of common law libel offences etc);”

135A: Clause 170, page 115, line 25, at end insert—

“( ) In section 79(3) of the International Criminal Court Act 2001 (c. 17) (power to extend provisions of that Act to Channel Islands, Isle of Man etc) the reference to that Act includes a reference to that Act as amended by section (Genocide, crimes against humanity and war crimes).”

Amendments 134 to 135A agreed.

Clause 171 : Commencement

Amendment 136

Moved by

136: Clause 171, page 115, line 34, leave out paragraph (b)

Amendment 136 agreed.

Amendments 137 and 138 not moved.

Amendment 139

Moved by

139: Clause 171, page 116, line 1, leave out sub-paragraphs (i) and (ii)

Amendment 139 agreed.

Amendments 140 to 143

Moved by

140: Clause 171, page 116, line 17, at end insert—

“( ) section (abolition of common law libel offences etc);”

141: Clause 171, page 116, line 18, at end insert—

“( ) Part 3A of Schedule 20 (and section 166 so far as relating to that Part);”

142: Clause 171, page 116, line 20, at end insert—

“( ) in Part 2 of Schedule 22, the repeals relating to the following Acts—(i) Libel Act 1792 (c. 60);(ii) Criminal Libel Act 1819 (60 Geo. 3 & 1 Geo. 4 c. 8);(iii) Libel Act 1843 (c. 96);(iv) Newspaper Libel and Registration Act 1881 (c. 60);(v) Law of Libel Amendment Act 1888 (c. 64);(vi) Defamation Act 1952 (c. 66);(vii) Theatres Act 1968 (c. 54);(viii) Broadcasting Act 1990 (c. 42);(ix) Criminal Procedure and Investigations Act 1996 (c. 25);(x) Defamation Act 1996 (c. 31);(xi) Legal Deposit Libraries Act 2003 (c. 28);and section 167 so far as relating to those repeals.”

143: Clause 171, page 116, line 32, after “18,” insert “(National Medical Examiner),”

Amendments 140 to 143 agreed.

Amendment 144 not moved.

Education (Special Educational Needs Co-ordinators) (England) (Amendment) Regulations 2009

Motion to Resolve

Moved By

That this House calls upon Her Majesty’s Government to withdraw the Education (Special Educational Needs Co-ordinators) (England) (Amendment) Regulations 2009 (SI 2009/1387) and to replace them with regulations that leave more responsibility with schools and headteachers.

Relevant document: 22nd Report from the Merits Committee.

My Lords, I emphasise from the start that we on these Benches are not opposed to training, especially in the field of special educational needs. However, we feel that this SI has consequences that the Government did not intend. The SI applies only to SENCOs who have been in post for less than a year, but there is an indication that the committee felt that all SENCOs should eventually gain this qualification. I ask the Minister how and when this training will take place. Will time away from their school duties be designated for special educational needs teachers? If so, who will replace them while they are training? If not, when are they expected to complete this qualification?

The average SENCO may have other childcare commitments—lesson development work will be just one of their duties. My understanding of the SI is that it is widely accepted that SEN provision is patchy—but is this qualification the way forward? We must bear in mind the cost, not just in monetary terms but also in time. The figures given by the Government in the impact assessment do not reflect an honest picture of the cost and implications, nor indicate who will pick up the bill. Is it expected that those undertaking the qualification will pay for, or contribute to, their training? Does the Minister appreciate that these proposals may lead to a two-tier system, in which some SENCOs may be disadvantaged if they do not have this qualification, despite their years of valuable experience?

We on these Benches understand that this is a specialist field for teachers and that all support that can improve the quality of provision must be given. However, the Government’s proposals yet again undermine the ability of head teachers to ensure that appropriate assessments take place and, where they identify a failing, to decide what appropriate training should take place.

Our main concern is that this will become a retrospective necessary qualification for teachers who have been in the profession for a long time. If SENCOs then decide that they would rather retire than continue, this would create a vacuum in the profession. There is already a shortage of people coming into this specialised area of teaching. Will the Minister tell us who has drawn up this qualification, and who was consulted? Has there been a debate about the contents of the qualification, and will the qualification have a review period? If so, when will the review take place, who will conduct it and will the results be made publicly available?

Will the Minister also say on what grounds an impact assessment can be made when the Government do not know how many SENCOs there are? The SI estimates that 8,130 SENCOs will have to be replaced over a period of three years. Will the Minister explain how this figure has been reached?

We all want the best possible provision of education for all our children, in particular for the most vulnerable in our society. They need continuity, as well as expertise that is not always summed up in a qualification. We have, in our teaching profession, some of the most dedicated and committed SENCOs, who would no doubt undergo training to improve their skills; but they must not be put at a disadvantage because they do not have a qualification that the Government have indicated must be a requirement for all SENCOs.

Although the ideals and sentiments behind this policy are good, and improving our educational system, especially for those who need the extra help, is a top concern, I am worried that it is an ill thought-out, broad-brush scheme which will ignore the micro-expertise of our head teachers and teachers. It will incur escalating costs with little real benefit, much like the Government’s one-to-one tuition plan which is hurting SEN strategies in many schools by stretching resources and taking some of these pupils away from specialist SEN teachers. We would like the Government to show more trust in our education professionals and allow them to use their expertise and common sense. They should decide what their staff need and provide them with the support mechanisms to carry out regular assessments.

In 2007-08, the Government’s bi-weekly e-mail to head teachers, if printed, would have contained as many words as the King James Bible and would have been 40 centimetres thick. Do we really want to add an extra burden on this noble profession? I will listen carefully to the Minister’s response.

My Lords, I want to say a few words on this subject because my wife is a governor at a school in Bedfordshire for children with learning difficulties. We have had some dyslexic children so we have met a lot of this at the sharp end. I want to echo support for the noble Baroness, Lady Verma, and to say that we must be careful not to make the best the enemy of the better. We have a lot of dedicated people, some of whom may not be as good as others, but very often the personality matters more than the qualifications. Just having qualifications does not mean that someone is brilliant. Removing flexibility, which we need, and consistency, which is often the most important thing, and taking people away to get a qualification which may not be necessary, could be damaging for children. I do not see why we cannot trust our head teachers and other people in education to try to do their best for the children within the limited resources that we have. They may be financial limitations or the number of people available may be limited. Further to restrict it and limit their options would be foolish. I am concerned that we are trying to overbureaucratise something that is working, even if it is not perfect.

My Lords, first, I must apologise to the noble Baroness, Lady Verma, for missing the first couple of minutes of her speech. Pagers that are constantly buzzing and repeating messages occasionally do not get picked up on time.

The idea of SENCOs being properly trained is not one that I have an instinctive reaction against. The idea that we might be getting rid of qualified teachers who are doing the job properly will raise a few alarm bells. The question is how to bring the two together. SENCOs were seen as a great wonder worker when they were brought in, but it became quite apparent that many did not know what they were doing. Some have acquired experience and some will have an amazing range of qualifications and experience from various places which probably will not conform to any new regulation, but may mean that they are qualified enough to do the job. The Minister undoubtedly knows the answers so will she tell us how the Government will make an assessment of whether somebody is properly qualified by experience and perhaps some older qualifications, and how that can be brought into the current training scheme? Let us not waste money by taking people away or giving them an extra load if they know what they are doing. Effectively, is there a certain test of competence that could be built into the current qualifications that would mean that the person does not need further training at the moment? As we discover more about special educational needs, we tend in every piece of legislation to put a slightly greater load on the education system to deal with these problems. There is a greater expectation in the initial impact that something should be done. At the moment, we are a long way from catching everybody or getting the right amount of involvement early enough in the system. We are better than we were, but in my 25 years of experience we have improved this situation steadily by a very irregular series of steps. It is undoubtedly better now than it has ever been but it is still not good enough.

Will the Minister say whether some consideration has been given to those who have acquired a series of core qualifications that are sufficient for the job as it currently exists and that the retraining process can take place when they are there? Because we happen to know how to deal with a dyslexic does not mean that we know how to deal with somebody with autism. To take those two: one is a subject I know best and the other I had to speak on at the beginning of this week. Another department answered that debate, so I understand why the noble Baroness will not have caught the passing shot from that debate.

There is an ongoing process. If there is a way of addressing the fact that competent teachers should be assessed as competent and should not have to go through the training scheme or at least all of it, that would be a good thing. We must not forget that many people were appointed as SENCOs but have not had the right training. However, we must not throw the baby out with the bathwater. How we square the circle of being where we are now will be interesting to hear and I look forward to what the Minister has to say.

My Lords, I start by thanking noble Lords who have taken part in this brief debate on an important Motion. I hope that I can answer the questions that have arisen in this brief discussion and I shall review Hansard to ensure that I have picked up all the questions.

I shall start with a question asked by the noble Baroness, Lady Verma, and alluded to by the noble Lord, Lord Addington, about the burden on the profession. We need to be clear that continuous professional development is very much the tenure of teacher training nowadays. We expect that when teachers finish their training qualifications, they will continue with their professional development. If a teacher becomes a SENCO, continued training and professional development in the area of special educational needs will be extremely important for them. A licence to teach will require a portfolio of skills development in the future and parents will expect teachers and SENCOs to have relevant skills and experience.

The noble Earl, Lord Erroll, asked how far the Government are prepared to trust heads to know best. Our entire education system is dependent on the skill, leadership and contribution that head teachers make. We are incredibly indebted to them for the progress that they have made on behalf of our children. We must also listen to what head teachers and specialist teachers have said. It is important that there is more continuity, as the noble Earl said, across schools. That is why these measures have been brought in and why we want to see training and the status of SENCOs raised. This is part of achieving that. It is important that we make the training for SENCOs mandatory. We know that some, as noble Lords have suggested, have received very good training, but we also know that that provision is extremely uneven as others have received little or no preparation for the role that they are asked to take on. We need to tackle that and recognise the importance of the role that SENCOs play in schools. We want to support heads and governors to help strengthen their provision for children with special educational needs. These regulations directly address the concerns raised by the 2006 Select Committee and they are an important part of the commitment made in the Children’s Plan in 1997 to improve SEN provision.

The noble Lord, Lord Addington, was concerned about the credit given to existing teaching professionals who fulfil SEN roles. The awarding institutions which will be running the training will take into account prior learning, and qualifications will properly be taken into account. Those who put themselves forward will have their qualifications properly recognised.

My Lords, I want to be clear about that. Is it right that those who took qualifications some time ago and who have kept up to date through correspondence and so forth will be encouraged to take an assessment of the level of their skills base?

My Lords, I can agree with the noble Lord. I will be happy to write to him in detail on exactly how that will work. However, I want to be clear that the provision is about training for new teachers coming into post. The funding is targeted at the newly appointed SENCOs. Depending on the awarding institution, any masters qualification in any sphere of teaching can take into account prior learning. I will write to noble Lords to ensure that that is clear and I will place a copy of the letter in the Library.

The noble Baroness, Lady Verma, was concerned about cover for teachers during the training. Cover is essential and we have included it in the cost of the training. It is anticipated that about 12 days’ training will be needed outside the classroom, and cover will be built into the funding provided for that. There were concerns about the approach promoting a two-tier system. Newly appointed SENCOs will be the priority, but as greater clarity on the numbers emerges, we will look with the Training and Development Agency at the scope within assigned resources for supporting SENCOs who have been in post for longer. An enormous amount of work has been undertaken by the TDA, and as the numbers become clearer we can consider revising the scheme.

The noble Baroness, Lady Verma, and the noble Lord, Lord Addington, were interested to know how we will be reviewing the regulations. We will do so through the TDA, which will examine the scheme after a three-year period. The noble Baroness, Lady Verma, asked about who had developed the scheme. It was developed by the TDA and there was significant consultation with specialists involved—head teachers and SENCOs alike. We will also look at the TDA to monitor the take-up of places. Already 700 have been taken up, with 2,000 more to be taken in January. That is a significant number. Our aim is to improve the skills, knowledge and confidence of a group of people who are key to the outcomes for children with SEN and disabilities. From 2010, the school workforce survey will help us to keep track of SENCO qualifications. That will give us a running commentary on how things are going.

I welcome the recognition expressed by the noble Lord, Lord Addington, that there have been improvements over the years, and I echo his clear statement that not enough has been done. None of us in government, or in this House, would for one moment think that enough had been done, but we are very much committed to making further improvements. Twenty per cent of pupils in maintained schools have SEN or disabilities—a significant number of children and young people. A school’s special educational needs co-ordinator has a vital role to play in meeting those needs. The SENCO also forms an important point of contact within the school for children with SEN and their parents. I can say that from personal experience when working with my daughter’s SENCO.

Serious concerns about the perceived low status of SENCOs within schools were expressed in the July 2006 report of the Education and Skills Select Committee. As a result of that committee’s recommendations, there is now a requirement in law for maintained schools to designate an SEN. Hitherto, there had simply been an assumption that that would happen—here we return to the noble Earl’s concern about a lack of consistency. Regulations laid last November established a requirement for SENCOs to be qualified teachers. It does not mean that all staff working with SENCOs must be teachers, but the SENCO must be a qualified teacher. That is essential if they are to have the necessary authority to negotiate with qualified colleagues on differentiated provision geared towards children’s individual needs. This is about raising the status of SENCOs.

That in no way hinders non-teacher members of the SENCO team from continuing to play an important role in supporting the SENCO function. A further recommendation of the Select Committee was that SENCOs should receive appropriate training. Noble Lords here today have recognised that that is important and the right way to go. We know that some SENCOs have received very good training and I take this opportunity to commend the efforts of schools, local authorities and the individuals in this regard. However, there was no obligation to undertake such training, and it was therefore possible to take on the role of SENCO with little or no professional preparation. I do not think that that is the right way to go.

Some SENCOs have received little preparation for their important role and some say that they have received no training at all. If we want to ensure effective educational provision—we are all agreed that we do—for children with additional needs and abilities, we must provide SENCOs with the training and professional skills they need. We believe that the best way to improve the skills of the workforce and boost parental confidence is by requiring those new to the role to obtain the nationally approved qualification within three years. We consulted on the regulations earlier this year. The majority of the respondents, who included SENCOs, head teachers, local authorities, governors, teacher unions and SEN organisations, supported the proposals now before us. The course should normally take one year to complete on a part-time basis, assuming that no credit is given for prior qualifications or experience, but the time could be shorter. Our draft regulations proposed a three-year period of latitude to obtain the award so as to make allowance for the individual circumstances of post-holders and schools—for example, those with caring responsibilities. We believe that that will provide latitude there, a point which concerned the noble Baroness, Lady Verma.

We will also examine ways to ensure that SENCOs who have been in post for some time benefit from the new training resources developed under the other work that the TDA is doing on our inclusion development programme, to which I have already referred. We know that it takes time for SENCOs to grow into their role. The new training is intended to enable those with less experience to get up to speed as quickly as possible. That is why we are not requiring those who have extensive experience or are working as a SENCO already to undertake the training. Instead, we leave it up to head teachers’ discretion whether SENCOs who have been in post for more than 12 months should be encouraged to take the course. SENCOs do an important job, as we all agree. They deserve our support, as do the children that they work with.

The Government agree with the recommendations of the Select Committee, and we have taken action to address its concerns. The regulations, the professional training courses approved by the TDA and the funding that we have earmarked for the next two years will ensure that all SENCOs new to the role will receive the training and support that they need to perform a demanding and valuable job. I therefore hope that noble Lords will support the initiative.

My Lords, I thank all noble Lords for contributing to this short but very important debate. We are all agreed that SEN teachers play an incredibly important role, as well as often being main classroom teachers. I still feel very concerned because, reading the SI and the committee’s report, my opinion is that when this is rolled out, those teachers will be expected to have that qualification, even though they have been SENCOs for a very long time. I have listened carefully to the Minister, and I shall read Hansard carefully. I hope that she is assuring us properly that only new people coming in will need that qualification—ruling out completely those who have been SENCOs for a long time—and evaluating them only on what may be their weak areas. Otherwise, I fear that we will lose a whole group of teachers.

I fear that I have not been as clear as perhaps I could have. It is the new SENCOs who are required to have this training. For those who have been in post for some time, it will be at the discretion of the head teacher. If a SENCO has been in post for some time, it is possible that they will want to do the course, and of course that will be available to them, but it is important that I am clear that the discretion of the head teacher will come into play.

I thank the noble Baroness for that clarification. I just want to make sure that we are all singing from the same hymn sheet: that we want to support SEN as best as we can, without taking teachers away from the classroom. The noble Baroness said that it would take 12 days outside the classroom. That does not really take into account the work that would be needed to be done outside the classroom and outside their other duties. Has she estimated what timeframe will be needed? I know that she is saying that it is over a three-year period, but I am still slightly worried that it will be an extra burden for SENCOs to deliver that in the way that the Government expect. As I said, I shall read carefully what the Minister has said.

Motion withdrawn.

Health: Medicines

Question for Short Debate

Tabled By

To ask Her Majesty’s Government what steps they are taking regarding the consistency of decision-making processes between primary care trusts in determining the off-label use of medicines in near-label conditions.

My Lords, I am raising an issue which to the casual reader of the Order Paper may look rather abstruse but which is in fact the very opposite; and it is an issue which has far-reaching implications both for patients and for the NHS. Medicines are used off label when they are not licensed for the particular indication to which they are applied. There are two main reasons why a license may be absent. It is either because the illness is so rare that the manufacturer is unable to recruit enough participants to take part in clinical trials; or else it is because the manufacturer has come to the view that the potential market is so small as to make the costs of conducting trials uneconomic.

Many cancers, particularly some of the rarer cancers, are treated with a medicine used off label. There are also a number of less common auto-immune conditions for which the treatment is unlicensed. Rituximab is licensed to treat rheumatoid arthritis, but doctors also use it to treat vasculitis, which is a disease affecting the blood vessels. Infliximab is licensed to treat Crohn's disease, ulcerative colitis and ankylosing spondylitis, among other conditions, but it is also prescribed off label for the treatment of Behcet's disease, which is a most unpleasant complaint that can involve ulceration and extreme exhaustion. Micophenolic acid is licensed to prevent organ rejection after a transplant, but it is additionally used to treat psoriasis and lupus.

The use of those treatments outside their licensed indication is widespread because some clinicians believe that the unlicensed treatments can lead to better patient outcomes than licensed treatments, where those exist. Ironically, the fact that doctors may develop a strong belief in the efficacy of an off-label use can make it harder to conduct any registration trials necessary to secure an extended licence. That is because they would deem it unethical to randomise patients to a control arm of a trial if they are already convinced that doing so would not be in those patients’ best interests.

As the Minister will know, NICE assesses the use of medicines only in their licensed indication. Because of that, there can be no NICE guidance for a drug's off-label use, and hence no mandatory funding direction at national level. That inevitably means that decisions about the funding of treatments outside their licensed indication are left to local discretion. That fact is one which works to many patients’ disadvantage. Although in a given PCT, the requests that come forward may be quite few, the treatments may often have a relatively high unit cost, which can throw budgets into some disarray. There may be little or no published information on the effectiveness of the treatments requested, which means that commissioners often have little to go on, and the decision collapses into a calculation of raw cost rather than a more considered assessment of clinical and cost effectiveness.

The commissioners at PCT level are typically not specialists, and many find it hard enough to make informed decisions about relatively common conditions, let alone rarer ones. There is something of a vicious circle here, because funding for treatments is not made available, as there is little published evidence in support of them, and that itself perpetuates the paucity of information.

The result is an extraordinary amount of duplication in each of the 152 PCTs, which must each develop their own processes and maintain their own advisory committees to determine whether to fund a particular treatment. The people who suffer most, of course, are patients. For those who need off-label medicines, the postcode lottery is a stark reality, and health inequalities are accentuated, not least because the most articulate and well informed patients will typically negotiate their way through the system to secure a positive outcome.

The Minister may have read the report published recently by the Rarer Cancers Forum, called Off Limits, which looked into the way in which acute trusts and PCTs determine requests for off-label use of medicines. There were some alarming findings in that report. Nearly a third of hospital trusts which responded to the audit said that they had no protocol in place for off-label treatments. That is a serious matter, bearing in mind that for cancer in particular, chemotherapy is a process which administers toxic substances into the bloodstream. Because there is a relative lack of evidence about the safety and efficacy of an off-label treatment, commensurately greater care needs to be taken over it. There are wide variations in attitude about this issue from trust to trust. Some trusts appear actively to discourage off-label use, while others acknowledge that it is a necessary ingredient of high-quality patient care. Perhaps the surprising thing is the number of trusts that do not appear to distinguish between on-label and off-label use at all and do not keep records of the requests they get. As they are vicariously liable for the outcome of off-label treatments, this seems a somewhat reckless attitude.

Among PCTs, the picture is, if anything, worse. Almost three-quarters of PCTs reported that they operated protocols for determining off-label funding requests. However, 42 per cent do so by using the exceptional case process, despite the fact that the National Prescribing Centre has said that this absolutely should not happen. Three PCTs—North Staffordshire, Oldham and Western Cheshire—said that they had a policy of never funding off-label treatment requests. This is arbitrary and unjustifiable. It may also be illegal in the context of the NHS Act. Perhaps the Minister would care to comment on this. It is certainly a situation that appears to run directly contrary to the NHS Constitution.

At the heart of the problem is the absence of an information base about the uses of off-label medicines and the clinical outcomes achieved thereby. Somehow this needs to be overcome. I say that not least because of the need to guard against inappropriate off-label treatments. Perhaps the most worrying instance of this is the overuse of antipsychotic medicines in care homes to treat dementia. The Psychiatric Bulletin published a study two years ago that brought this issue to the fore, as did evidence presented to the All-Party Parliamentary Group on Dementia last year. Not only do such medicines carry safety risks, they also have unpleasant side effects, and there is clear evidence that people with dementia derive only limited benefit from them. The Department of Health is about to publish a report into this subject, and we await it with interest. I hope that it will cover two issues in particular: the need for care home staff to receive training in dementia care and the need for those to whom antipsychotics have been prescribed to have that prescription formally reviewed by a doctor on a regular basis.

It is uncomfortable for me to admit that, in the context of off-label treatments, the split between purchasers and providers and the competition that exists between them serves to frustrate the delivery of the most effective care to patients. My own view is that the only way to tackle these difficulties satisfactorily is to put in place a collaborative commissioning arrangement, perhaps across each strategic health authority area, which combines the skills of both hospital specialists and PCT commissioners. A single commissioning committee, perhaps not unlike that which deals with specialised conditions, could be established in each strategic health authority to examine requests for off-label treatments. This would drastically reduce waste and duplication at PCT level, and it would also allow different local health economies to pool their expertise. However, the real benefit would flow over the medium term because once a certain number of requests for an off-label treatment had been reached, the committee could form a consensus opinion about that treatment, and that in turn could be used as a means of informing funding decisions in the future. Consensus opinions reached in this way could be made available to NHS Evidence, which would act as a conduit to inform decisions elsewhere in the country. Of course, there would need to be a mechanism for updating the content of a consensus opinion to take account of experience and any new research that emerges.

I very much hope that this idea, or something like it, will commend itself to Ministers. I say this more in expectation than in hope, because in the department's paper published in November last year, called Improving Access to Medicines for NHS Patients, it did seem that they had in mind some kind of collaborative arrangements for making decisions about the off-label use of medicines. My firm view is that this dimension of drug prescribing in the NHS has been overlooked for too long. Someone needs to champion the whole issue and come up with a completely new model that is designed to ensure that patients across the country receive speedy and appropriate access to the medicines they need.

My Lords, I am pleased to follow the noble Earl, Lord Howe, who, typically generously, shared some of the briefing that was made available to him. I am grateful for that. I am a trained pharmacist. I did a degree a long time ago in the days when pharmacists were trained to roll pills—that shows how long ago it was—so my pharmacy is not as modern as it should be. However, I am also a recently appointed lay member of the General Medical Council, which gives me an interest in this debate. I congratulate the noble Earl on this debate. The timing is absolutely right. He is correct that this subject has been overlooked for too long. I was quite surprised when I looked at some of the material. This is not the area of public policy in which I specialise, but there are so many different, overlapping issues that need urgent attention that the time has come for it. I hope the Minister can give us some comfort in that direction.

I shall go off-label in the debate and make two quick points. First, overprescribing in the NHS is still a problem. A sentence of reassurance from the Minister would be helpful. Secondly, we all understand that the escalating costs of the drug bill are a problem for us all. However, I do not think this issue is predominantly about cost. If everything recommended by the noble Earl was brought into being in good order in a reasonable time, it would not cost a lot, but it would improve the pathways of care for some patients throughout the whole United Kingdom—I shall come back to that point. I do not think the Government can hide behind the fact that this will cost a lot of money, because it should not.

In addition to the important areas that the noble Earl, Lord Howe, referred to—rare cancers and the antipsychotics issue that the Alzheimer’s Society perfectly properly raised with us—there are other cases and circumstances that the Government are already aware of. I shall refer to one of them, although I am sure there are others. It is the question of Lucentis versus Avastin in the treatment of age-related macular degeneration. It is a particularly interesting case because the same company produces an expensive drug that treats colon and breast cancer and the even more expensive Lucentis, which is properly licensed for the treatment of wet AMD. There are practitioners who believe in soul and conscience and their best clinical judgment that the cheaper product would be as efficacious, but they cannot get past the bureaucracy of the extra cost for the NHS for the reasons that the noble Earl suggested. It is right to say that in rare conditions, such as rare cancers, you cannot get the critical mass to get statistical validity for the trials that are necessary for the licence. There are also perverse incentives for pharmaceutical companies within the licensing system. I do not blame them. Why should they license another drug when they have a more expensive licensed drug on the market? It would cost them money to do so. There are issues around the licensing system that we need to look at.

However, equality of access is the main burden of the noble Earl’s powerful evidence to the House this afternoon. I concur with him. There are quite indefensible variations of treatment. I commend the Rarer Cancers Forum, an organisation of which I was previously ignorant. Its report is extremely well argued and well researched and repays careful study. It is very clear about the impact on patients who are suffering from rarer cancers. I did not realise that rare-cancer sufferers are quite a proportion of cancer sufferers. It is important not to forget that.

The noble Earl made a very important point about NICE. It is hamstrung and cannot do much about this issue without a new look at the whole thing. I also agree that the lack of NHS protocols to ensure the clinical governance of off-label treatments is not satisfactory and needs attention. The report demonstrates that there is a wide variety of practice in the NHS, which is not satisfactory.

Some NHS trusts have vicarious liability, and as a member of the GMC I know that it has no rules with a locus in this argument. The GMC, in any case, is not responsible for licensing or for determining price efficacy or anything else. There is, however, some pretty clear guidance in Good Medical Practice, a GMC publication, which is supplemented by a document called Good Practice in Prescribing Medicines, which also sets out quite clear guidance on how medical practitioners should conduct themselves when they prescribe a medicine for use outside the terms of its licence. They must, for example:

“Be satisfied that it would better serve the patient’s needs than an appropriately licensed alternative”,


“Be satisfied that there is a sufficient evidence base and/or experience of using the medicine to demonstrate its safety and efficacy. The manufacturer’s information may be of limited help in which case the necessary information must be sought from other sources”.

It is perfectly possible, legal, right and proper that people using their medical judgments—that is why they are trained—should prescribe off-label medicines for treatments that they think are appropriate, but they should not be doing so casually and without being properly cognisant of the regulatory environment that is all around them. It is unsatisfactory for trusts not to support the people whom they employ to discharge these important responsibilities as medical practitioners.

There is a difference in practice north and south of the border. The Scottish Medicines Consortium is light years ahead of and much better organised than the situation in England, due partially to the fact that it operates on a much smaller scale and can get these things done an awful lot more expeditiously. I make the point facetiously. Nevertheless, we in Scotland seem to be more fleet of foot and able to move more expeditiously in determining some of these things. If the Minister has the briefing, will she reassure the House that there is dialogue, as I hope there is, between professionals, if not Ministers, about all this?

Secondly, there is an international body of opinion and experience on which we can draw. The noble Earl made an important point about treatments for psychosis and drew very interesting comparisons between how we and our sister European nations deal with some of these technical problems. Arguably, their best practice could be looked at and we could benefit from that.

I come back to where the noble Earl came in. There is no coherent framework of provision for these things at the moment, and this needs to be attended to. There is also a really urgent need for accurate and comprehensive information about off-limit prescriptions and treatments in future. It is not safe to leave the situation as it is, and I congratulate the noble Earl again on spotting this. It is a really important subject, and I hope that the Government agree.

My Lords, I am grateful to the noble Earl for calling this debate. Although we may be few in number, we make up for that in the quality of our contributions. Precious things come in small packages.

I know that the noble Earl takes a keen interest in the Government’s medicines policy; this is not the first time that we have looked at this complex issue. I will take a moment to set out its background. A marketing authorisation, or product licence as it is often known, defines a medicine’s terms of use. The licensing system ensures that medicines are effective, safe and of good quality. As both noble Lords have said, however, there will always be clinical situations in which a prescriber may judge that the use of a medicine outside the terms of its licence is in the best interests of a patient based on the available evidence. This, as has been remarked, is known as off-label or off-licence use. Such practice is relatively common in the treatment of some cancers and other conditions, and decisions are normally taken by hospital doctors. They need to be taken in discussion with the patient concerned, and funding may sometimes need to be agreed with the patient’s primary care trust.

The use of off-label treatments in cancer presents a particular challenge because treatments are not licensed for cancer but for a specific type and stage of a cancer. The Rarer Cancers Forum—I have looked at its excellent report—has coined the term “near-label” to describe the situation in which such drugs are used off-label but in an indication that is near, or similar, to the licensed indication. However, because these near-label treatments are not licensed for such a use, they cannot usually be appraised in England by NICE, because NICE generally issues mandatory guidance on the use of a medicine within its licensed indication. To do otherwise risks undermining the licensing process, which exists to protect patients. This means that PCTs have to use their own processes for determining whether to fund these off-label or near-label treatments. In a way, how this operates is the nub of both noble Lords’ contributions.

The issue of patients’ access to off-label treatments was dealt with by Professor Mike Richards in his report, Improving Access to Medicines for NHS Patients, which was published last November. Professor Richards reported that there are particular challenges for PCTs in taking such decisions, as the noble Earl described very adequately. He commented that better collaboration by PCTs would help better quality decisions to be taken on applications for funding, although, as the noble Lord, Lord Kirkwood, quite rightly said, funding is not always the only issue; how decisions are taken is also important.

Mike Richards made a number of linked recommendations that focus on the manner and processes by which PCTs take decisions on new medicines and that, where there is no guidance from NICE, stress the need for PCTs to be proactive, transparent and rational in their commissioning decisions, to work collaboratively and to be better supported.

Again, the noble Earl is completely correct when he says that the NHS Constitution includes the right to expect rational PCT funding decisions on drugs. He asked about the illegality of barring funding for treatments. PCTs must have arrangements in place to consider all requests. A blanket ban would leave them open to challenge in the courts.

To help PCTs improve the quality of their decision-making so that patients can have confidence in these arrangements and therefore deal with the issue of postcode lotteries and unevenness of decision-making, we have commissioned a number of measures to support the introduction of improved local processes. We have produced a set of public-facing principles to inform PCT decision-making, which is about governance arrangements and procedures; a set of directions to PCTs making explicit their public law responsibilities to put in place processes for making decisions on new drugs and treatments, which should address the issue raised by the noble Earl; and, most importantly, a handbook of detailed good practice guidance for the NHS, covering funding policies on new drugs and processes for considering individual funding requests, which is a very important document. The National Prescribing Centre has embarked on a major programme of work to provide a bespoke and continuing training package for key PCT staff to help ensure that local processes are able to develop in the way that we, and our policy, believe that they should.

The NHS chief executive wrote to strategic health authorities on 4 November 2008 asking them to review the way in which PCTs in their area collaborate to support effective decision-making on new drugs. Although this work is not specific to off-label use of drugs, it is very relevant to that issue as the same general principles should apply. The key part of this package is the handbook of good practice guidance, which was issued to the NHS in March 2009. It provides tools to help PCTs review their current decision-making processes about the funding of medicines.

PCTs are likely to be faced with decisions about a range of medicines and treatments for rarer conditions where they and their local providers cannot reasonably be expected to have the full range of expertise. It is our view that PCTs must consider collaborating in these circumstances and collaborative arrangements already exist for many cancer medicines. Funding the off-label use of drugs is an area that might trigger collaborative decision-making and we would expect the good practice guidance to inform such decisions.

I understand the concern of the noble Earl and the noble Lord, Lord Kirkwood, about the report from the Rarer Cancers Forum, which alleged that, over the past three years, almost 3,200 cancer patients were forced to apply for funding from the NHS for near-label treatments. From what I have said, noble Lords will appreciate that the Government have a great sympathy with these concerns. It is difficult and complex to see how all PCTs and their provider trusts can be reasonably expected to have the full expertise or resources to make the full range of decisions on rarer and more complex cases. It is possible that the noble Earl’s proposal may go some way to addressing that issue and I intend to take this question back to the department. I will let noble Lords know the answer.

The National Prescribing Centre is engaged in developing ongoing support for PCT decision-making and, as part of this work, it has established that most SHA areas now have some supra-PCT activities to support local decision-making. However, I appreciate that that is not quite the point being made by the noble Earl.

The noble Earl asked about antipsychotic drugs, which is an important and complex issue affecting people with dementia in all care settings. That is why we have commissioned the independent review on antipsychotic drugs, which we will publish next month. I will take the issues raised about collaborative commissioning back to the department and will explore them.

The noble Lord, Lord Kirkwood, mentioned overprescribing. We are attempting to tackle this again through our quality and productivity challenges. Controlling the growth of the drugs bill is permanently on the agenda. The noble Lord also asked about Scotland. Every time I answer a question about NICE, I also have a note about how closely we work with Scotland and how much easier it is for it to be fleet of foot, to paraphrase what my brief usually says. The dialogue is ongoing and there is a lot of co-operation and collaboration between the teams.

The noble Lord also asked about local decision-making. The department has always taken a cautious approach to mandating or encouraging the use of drugs outside licensed indications. Aside from obvious liability issues if there is an adverse incident, there is a real risk that national advice to use a drug outside its licence could undermine the established licensing process. While some off-label cases may be obvious, others may be far more complex, so it is difficult to draw a clear line about what the national level should be. Although not specifically intended for the small volume of off-label prescribing that takes place in the NHS, the measures that we are putting in place to strengthen and support local decision-making will be relevant to such prescribing as well.

Finally, while a good deal of progress has been made, we are not complacent. With the development of new drugs, more complex drugs and the applications of many different drugs, it becomes more important that these procedures and processes are transparent and in the best interests of the patient. We will continue to promote and encourage collaboration through the strategic health authorities. We will also continue to consider whether there is a need to provide further support to PCTs to enable them to effectively discharge their responsibilities in this area.

House adjourned at 2.45 pm.