House of Lords
Thursday 5 November 2009
Prayers—read by the Lord Bishop of Bath and Wells.
EU: Lisbon Treaty
To ask Her Majesty’s Government when they will next discuss the Czech President’s stance on the treaty of Lisbon with their counterparts in other European Union member states.
The Czech Government’s stance on the Lisbon treaty was discussed at the October European Council. The Council’s conclusions make clear that the UK protocol on the European Charter of Fundamental Rights shall, at the time of the next accession treaty, apply to the Czech Republic. The Czech constitutional court met on 3 November and ruled that the Lisbon treaty was in line with its constitution. President Klaus signed the Czech Republic’s instrument of ratification on the same day.
I thank the Minister for that Answer. Now that the erratic Mr Klaus has seen the light on the true, deep interests of the Czech Republic, does the Minister agree that Lisbon has now been fully ratified by the 27 sovereign parliaments of the national member states, themselves with deep intrinsic national sovereignty that is not only unimpaired but actually enhanced by the treaty provisions that give collective strength in the future?
I agree 100 per cent.
Has my noble friend had a chance to consider the remarks of the French Europe Minister about the position of Her Majesty’s loyal Opposition following the circumstances being in place for the ratification of the Lisbon treaty? Is it not a matter of national regret that a party that has pretensions to government is now seen as being so isolated on matters related to Europe?
My Lords, one of my old mum’s maxims was, “Never intrude on private grief”. My only comment here is that if some of the Eurosceptic views that we have heard in the past few days were to become the practised policy of the British Government at any time, they would lead to public grief. Three million jobs are linked directly and indirectly to the EU, and more than half our exports go there. Perhaps more significantly, over the past month Europe has come together to ease the impact of the global economic storm on businesses and families. The co-ordination was truly unprecedented, and that action has helped considerably to bring us from recession. A recent poll shows that almost 80 per cent of the British people agree with the co-ordinated action. I am therefore happy to say that I do not see the substance of the French comments coming to pass, because I do not see a change of Government coming.
My Lords, I thought we would not get far this morning without this kind of vacuous exchange. Does the Minister now understand and accept that it is our intention when in government to make the European Union more democratic and decentralised, as originally intended at the Laeken declaration, and fit for purpose in the 21st century? That is why never again will we allow undemocratic transfers of constitutional power, and why we propose a referendum lock, a legal lock and a sovereignty lock, as our German friends have, to protect the British people. May we at least have an assurance that the Labour Party, in or out of office, will agree to these sensible provisions?
I noted what the noble Lord said about vacuous comments and I appreciate the vacuous comments that he has added.
My Lords, I should declare an interest as someone who used to work with the current French Europe Minister 20-odd years ago when we were both in think tanks. The Czech President has now achieved a fig leaf in the form of a future protocol to satisfy Eurosceptics within the Czech Republic. What similar fig leaf might any future British Government attach as a future protocol to a treaty which would not damage Britain’s interests or relations with other members of the EU27?
I cannot imagine a fig leaf large enough. If what the noble Lord, Lord Howell of Guildford, said—it will be read in the press—enunciates the policies of the Conservative Party in relation to Europe, I do not believe that they can be achieved with a fig leaf, however large. It would be a long way along the road to withdrawal from the European Union, which would be disastrous.
Will my noble friend confirm that repatriation of powers would require treaty changes, that treaty changes would require unanimity among all member states and that, therefore, a programme of repatriation is a cynical con on the British people?
That is absolutely true, my Lords. One of the areas where we have heard talk of repatriation is the Social Chapter and the employment protection given by it. The Social Chapter does not exist any more; it is scattered throughout the treaty. To repatriate any of those powers would inevitably require treaty changes. The unanimity which such a proposal would require is highly unlikely.
Is the Minister aware of the damaging effect on the National Health Service of the working time directive and the fact that, the more often cases are handed from one person to another, the more accidents and errors occur and the more patients are at risk?
My Lords, we have discussed the importance of the working time directive before. It is not directly relevant to the Question. As we have said previously, we have put the working time directive in place; we have consulted; and it is working satisfactorily.
Poland: Inter-ministerial Meeting
To ask Her Majesty’s Government whether they have plans for an inter-ministerial meeting with Polish Ministers in the near future.
My Lords, there are currently no plans for any inter-ministerial meetings in the near future, but we have regular and close contact with the Polish Government. The Prime Minister has visited Poland this year and the Foreign Secretary has visited three times.
Can my noble friend give an assurance that in meetings with EU Ministers, and Polish Ministers in particular, the Government will stand by those principles underlying the EU and, unlike the Opposition, will never resort to dubious alliances or seek to consort with European extremists spurned by both Merkel and Sarkozy in order to weaken the EU?
My Lords, I can assure my noble friend that the Government will assert their adherence to the principles of the European Union, which were clearly expressed in the Maastricht treaty signed by a Conservative Prime Minister in 1992 and reaffirmed in the Lisbon treaty; namely:
“The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law”.
That guides our discussions with all Governments.
My Lords, as the Polish newspapers do not normally display the xenophobia and anti-EU hysteria that we see in the comics that masquerade as newspapers in this country, particularly those which happen to be owned by overseas owners who do not pay proper UK taxes, will the Government through our embassy in Warsaw encourage our Polish counterparts to come to our country to explain why it is in our true interests to remain full-hearted members of the EU, as Monsieur Lellouche suggested yesterday—which would be in contrast to the hysteria that we witness repeatedly from members of UKIP, the BNP and quite a few Tory politicians?
My Lords, the noble Lord has the advantage of me, as his knowledge of the Polish press is far greater than mine. He makes an interesting suggestion, which I will happily take away and look at. We have a situation whereby government-to-government relationships between Britain and Poland are very good and co-operation is very good. We should not always be diverted by what happens in party-to-party relationships—although another maxim of my old mother was, “By ye friends will ye be known”.
As the Minister says, our relations with Poland are extremely good and we have a lot of common interests. I hope that that remains the case. Is he aware that the Visegrád countries, including Poland, Czechoslovakia, Hungary and others, seek to form a new arrangement among themselves, over and above, or beyond, any common membership of the European Union, particularly in energy matters and north-south transport links? Will he assure us that the British Government will support their aspirations in this field, which include slightly greater flexibility than perhaps Brussels is ready to allow them? This is a very encouraging development. They are our obvious friends—can we support them?
My Lords, I take note of the question. I am not aware of the absolute detail of those discussions. As the noble Lord rightly says, we are supportive of Poland and other countries in their access to Europe. We maintain good relationships and have interests in common, which I am sure will guide our discussions with Poland and the other Visegrád countries.
Disabled People: Student Loans
To ask Her Majesty’s Government what action they are taking to investigate the problems caused to disabled students who are not receiving their support through the student loans system.
My Lords, as part of widening participation, the Government give generous financial support to disabled students, and are aware of concerns expressed about delays in providing that support this academic year. These will be investigated in the Student Loans Company’s review of lessons learnt, which has external scrutiny, expertise and challenge. Government-funded arrangements are in place to ensure that universities and colleges can support disabled students if there are delays in their assessments or payments, so no disabled student should be prevented from starting their course.
I thank the Minister for that answer, but is he aware that there is overwhelming evidence from various bodies that students are not getting their support? Exactly who is responsible for breaking the commitments made in numerous Acts, many of which were passed by this Government? Whose head is ultimately on the block here and how many commitments have actually been broken?
My Lords, I think that we should keep this in perspective. More than 855,000 students have been paid by the Student Loans Company this year, more than ever before at this time of the year. We should acknowledge that a significant number of students seem to practise through lastminute.com., in that they do not apply until shortly before the start of term. A very large number have been dealt with, but it is clear that there are lessons to be learnt from this year’s processing cycle. I have asked for a review to ensure that those lessons are learnt and customer service is improved. It is a little premature to talk about such extreme measures as execution and decapitation.
My Lords, will the Minister explain why 250,000 phone calls went unanswered from students worried about not receiving their loans? Of those waiting, how many managed to start their courses?
My Lords, in relation to the phone calls, frankly—or so I have been told—there were not enough phone lines to deal with the situation. There were an unprecedented number of starts this year but, nevertheless, that clearly needs to be remedied. As the noble Baroness knows, there is also an online system, so people are perfectly capable of processing their applications online, and many do. However, as soon as things start to go wrong, phone calls are made. There was a deficiency there that is being investigated and lessons will no doubt be learnt.
My Lords, that is all very well but SKILL, the National Bureau for Students with Disabilities, of which I am the president—and I declare my interest—has evidence of the Student Loans Company refusing to accept applications by e-mail. SKILL has a fat file of evidence of students receiving no response to their applications for disabled students’ allowance. Access centres have reported that they have no bookings for assessments at what should be their busiest time and medical evidence has been lost, which means that students have to pay for it a second time—and much more besides. All those things increase the likelihood of course deferral and drop-out. When does the Minister expect the Student Loans Company to have in place a disability equality scheme that is fit for purpose?
My Lords, first let me endeavour to reassure the noble Lord, Lord Low, that we have appointed somebody to investigate that. Deian Hopkins, an ex-vice-chancellor, will be investigating and he has already been in contact with SKILL, so I hope that that will be established. On disabled students, again, we should put this in perspective; this is a great success story, inasmuch as we have a huge increase in students generally, but the number of disabled student allowances has increased steadily since 1997-98. There were 10,770 disabled student allowances paid to HE students in England and Wales, and the total DSA expenditure was £13.3 million. I remind the House that those are non-means-tested, non-repayable grants for disabled students, so the contribution that we are making to those students is huge. We have a seen a 146 per cent increase in the number of disabled students enrolled in UK higher education. That is a success story.
My Lords, the Minister is right to say that the scheme has been a success until this year, but is he aware that since the Student Loans Company took it over, which was this year, only 2,500 out of 14,000 applications have so far been processed? As the noble Lord, Lord Low, mentioned, it is a scandal. They had to be sent through by post rather than online; they were sent to Doncaster, but processed in Glasgow. The scanning equipment in Doncaster broke down; they were not sent properly to Glasgow, and many have gone missing. Can he explain why this is so, and why students should have been so disadvantaged as a result?
I do not think that I can explain all of those reasons; that is the whole purpose of the review and the investigation. We do take this seriously, but as for being disadvantaged our main concern is that disabled students are able to start their courses and that there should not be financial barriers. I agree that we will have to deal with the question of the assessment process, and ensure that that is able to take place on time. My information on HE students in receipt of the disabled student allowance was that there are 41,000 of them and a total expenditure of £90 million, so that the average DSA expenditure per student was £2,210. While there is money going through, we need to improve the assessment process and we will be working on that.
If the noble Lord calls this a success story, how does he describe a failure? He has had criticism from all parts of the House. We need an urgent inquiry and an urgent report to this Chamber on exactly what is happening.
I think that I would describe as a failure the higher education policies that we inherited. That would be my description of a failure.
My Lords, what advice is being given to students who just have not been able to access courses, given that there will be an unprecedented number of students applying for courses in the new academic year?
I believe that I have already answered that question. This year, more students than ever before have been dealt with. There are some outstanding loan applications that require to be dealt with but, if you take into account the 855,000 students who have been paid by the Student Loans Company this year, it is more than ever before at this time of the year. We still have some to process and there were mistakes made, which will be investigated.
My Lords, why does the Minister exude such complacency, given that there have been expressions of alarm and despondency from all sides of the House on this issue? He really must indicate to the House that he will make this a number one priority.
I do not think that I have exhibited any complacency. I have merely endeavoured to put the matter in context. We have freely admitted that mistakes were made. We have said that there will be a full investigation and have appointed somebody of significant status to preside over it. We will be dealing with the organisations that represent students with disabilities. There is no complacency. I merely wanted the House to understand that, while mistakes have been made, there is still a great success story in the number of students attending university.
My Lords, in asking the Minister a question I thank him for admitting that mistakes have been made, but also ask him not to say for one minute that, after 12 years of this Government, they were the result of Conservative government policy.
To assure the House that there is a sense of urgency, will the Minister tell us the timetable for the results of this investigation? When are we going to know and when will action be taken?
I make no apologies for my comments on the 12 years of success in ensuring that 40 per cent more students with a disability are receiving a full grant payment and that 2 million more students are entering higher education in England, a rise of more than 20 per cent from 1997. Should the Opposition ever get into power, we will praise them if they can match that.
I will write to the noble Baroness on that.
I will not play the blame game. Does my noble friend recall, as I do, that throughout the 18 years of Conservative Administration there were frequent references to the problems of the 1970s and the difficulties, according to them, associated with the previous Labour Government? Given that we are now only 12 years into this Government, will the Minister continue the policy of blaming the previous Conservative Government where it is justified until 18 years have elapsed—that is, in 2015—and at that point, by all means, review the policy?
In the style of the mafia, my noble friend has made me an offer I cannot refuse.
My Lords, the time has come for a ministerial rescue on compassionate grounds. Let us forget our party politics for a moment. All that the House is asking for is an assurance that, with thousands of careers on the line, there is real urgency and that a report which will correct the situation is coming forward as soon as possible. That is all we need.
I have given that assurance, but I cannot let it go when the noble Lord says that thousands of careers are on the line. They are not. Disabled students are able to start their courses. We have processed more loans than ever before. However, I give the noble Lord an assurance that we treat this seriously and that there will be timely investigation.
My Lords, the noble Lord is wrong about that. Students are starting their courses, which are dependent upon this assistance that they are not receiving. Will the noble Lord kindly tell us correctly, ignoring the report, what will be done about this and when the Government will correct it for this year?
My Lords, I have no information that disabled students are not able to start their courses. However, if the noble Lord gives me any information, I will ensure that we deal with the situation.
To ask Her Majesty’s Government what assessment they made, in moving cannabis from class C to class B, of what the effect would be on the prices charged by criminal dealers.
My Lords, the Government have made no formal assessment of the effect that reclassification of cannabis to a class B drug in January 2009 would have had on the prices charged by drug dealers.
I thank the noble Lord for that rather predictable response. Would he agree that it is a disgrace that the drugs trade, which is now said to be the second largest global market, after oil, is totally in the hands of criminals? Should not the United Nations and national Governments be looking for new policies such as, for example, those that have been successfully trialled in Portugal?
My Lords, I know that the noble Lord has for some time held the view that we should legalise controlled drugs. I understand the complex arguments for their being looked after in a regulated manner, but I am afraid that I believe, and the Government have concluded, that the disadvantages would far outweigh the benefits.
At a time when we are trying to reduce the use of tobacco and the misuse of alcohol due to concerns over their safety, it would be absolutely perverse to take a huge gamble on public health in legalising currently illegal drugs. These things have a real impact on the streets. People talk about them in a remote, airy-fairy way, but the reality on the streets in some areas of our country is really quite horrendous. What we are doing is absolutely right.
My Lords, I declare an interest as a former head of a drugs squad. Does my noble friend agree that the increasing strength of cannabis, particularly skunk, creates a very real danger to young people and makes it far more dangerous? Does he also agree that it is more carcinogenic than tobacco? Could my noble friend explain to the House what steps the Government are taking to prevent people driving under the influence of cannabis, which is increasing daily? Is a roadside detection device, rather like a breathalyser, being developed?
My Lords, I thank my noble friend for those questions. I agree with him: skunk is far more dangerous. I know this from the experience of my youngsters and their friends. One of my sons has two friends who have been severely affected by the use of this really strong drug. It is nonsense to say that it does not have appalling effects. Also, in referring to alcohol, all the chaps and women who take cannabis seem also to drink and smoke ordinary cigarettes, so there is another issue there. We need to be very careful. As regards driving, there is no doubt that these drugs have an impact on people. We are looking hard at ways to identify this clearly. Skunk has a huge impact on people’s ability to drive, particularly if they have had even one drink as well, making them a danger with a lethal weapon on our streets.
My Lords, we on these Benches agree about the dangers of skunk. Following up on that, what proportion of the domestic drugs market is now made up of high-potency skunk, given that it is a serious danger? How widespread is the domestic cultivation of this strain, compared with the amount that is imported? It is important to know how this market is evolving.
My Lords, may I get back to the noble Baroness with the exact figures? I know I have them somewhere, but I cannot get to them in time. Domestic cultivation accounts for a growing proportion of the market. One of our real concerns, and one of the reasons for the reclassification, is that we want to home in on cultivation. Very often we find foreign criminal gangs growing huge amounts of this very strong skunk—not the ordinary cannabis that people remember from years ago. It is a real issue; we want to be able to get the people who are doing this and putting skunk on to the market.
My Lords, would the Minister agree that reclassification does not have much impact on the streets, as he puts it, or indeed on the international drug traffickers? Would he comment on the record of the Navy in seizing illegal drugs? In 2006, I think it seized some £600 million-worth; in the following two years, the figure was £200 million. However, the figure that I have for this year is only £7 million. Can the Minister account for the drop-off in naval seizures? Is the Navy now not being resourced enough to do this?
My Lords, the noble Baroness knows how to hit my heart with this issue. The Navy has had huge success in this field. Just under £4 billion-worth at street value, primarily of cocaine, has been captured since the turn of the millennium. In September, the “Iron Duke” caught the biggest haul ever, worth £240 million at street value. This is having a slight—but only slight—impact. These people make such profits that they can afford to lose two-thirds of all the drugs they are transporting before it hits them. However, it is beginning to have an impact; that haul and the flights are affecting the flow of drugs through west Africa, which we were very worried about. It is really good stuff. I am always delighted to speak about the Navy. Sixty-nine years ago today, Captain Fegen got a VC for steaming towards two German battle cruisers in a little merchant ship. The Navy still shows the same spirit towards drugs.
My Lords, is the Minister aware that some years ago, your Lordships’ Select Committee on Science and Technology conducted a major inquiry into the medical uses of cannabis? It came to the conclusion that there was anecdotal evidence to suggest that cannabis might, on occasions, have beneficial effects on the symptoms of multiple sclerosis, but it condemned the smoking of cannabis because the evidence was clear that smoking cannabis leaf was much more dangerous than smoking tobacco. Since that time, a standardised preparation of cannabis leaf for absorption through the oral mucous membrane has been developed. Controlled trials have shown significant benefit in some patients with multiple sclerosis. Can the noble Lord give an assurance that the reclassification of cannabis will not have an adverse effect on the availability of that preparation if and when it is licensed by the MHRA?
My Lords, I am somewhat thrown back on being a simple sailor as regards the detail of that. However, I will certainly look at this. It seems to me a very important issue and I am sure that we would not allow that to happen, but I shall get back in writing.
My Lords, everyone accepts that drugs are dangerous, but in view of the increasing acceptance across the globe that criminal penalties for the possession of drugs for personal use have been a failure, and the increasing move across the globe to civil penalties or indeed the medicalisation of drugs, does the Minister agree that the Government should now undertake an impact assessment of our outdated drugs legislation, at least in an attempt to restore their reputation in the scientific community?
My Lords, as I stated before, there are a number of issues involved in all this. I understand all the arguments about the possible legalisation of certain aspects and dealing with drugs in different ways, and that groups of people do a lot of good work in countering drug use. These things are all extremely important, but I believe that we needed to send a very strong message to our youngsters and our population that these things are really dangerous. Walking back from it and saying they are not sends a message that they are all right really, but they are not. We have to be very careful about that. We need also to focus on the people who are growing skunk on an ever bigger scale and give the police an opportunity to get them. We should bear in mind that, although cannabis is a class B drug, the police can first give a warning. It is up to them whether they give two warnings and then move on to a PND. We are trying to do this to an extent.
Company, Limited Liability Partnership and Business Names (Sensitive Words and Expressions) Regulations 2009
Company, Limited Liability Partnership and Business Names (Public Authorities) Regulations 2009
Legislative and Regulatory Reform (Regulatory Functions) (Amendment) Order 2009
Motions to Approve
That the draft order and regulations laid before the House on 20 July, 30 September and 12 October be approved. 22nd Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 29 October.
Saving Gateway Accounts Regulations 2009
Financial Restrictions (Iran) Order 2009
Motions to Approve
That the order and draft regulations laid before the House on 21 July and 12 October be approved. 22nd Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 2 November.
Green Energy (Definition and Promotion) Bill
That the Bill do now pass.
My Lords, I thank noble Lords on all sides of the House, Members of another place and those outside who have supported this Bill. I beg to move that this Bill do now pass.
Coroners and Justice Bill
My Lords, I have it in command from Her Majesty the Queen and His Royal Highness the Prince of Wales to acquaint the House that they, having been informed of the purport of the Coroners and Justice Bill, have consented to place their prerogative and interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
Before the House begins Third Reading of the Coroners and Justice Bill, it may also be helpful for me to say a few words about Third Reading amendments. The House has agreed a procedure for addressing amendments which, in the view of the Public Bill Office, fall outside the guidance in the Companion and the rules set out by the Procedure Committee. In line with that procedure, the Public Bill Office yesterday advised the usual channels that three amendments on the Marshalled List for Third Reading today fall outside that guidance. These are Amendment 23 in the name of the noble Lord, Lord Laird, and Amendments 27 and 28 in the name of the noble Baroness, Lady Miller of Chilthorne Domer. On the basis of the Public Bill Office’s advice, the usual channels have agreed to recommend to the House that these amendments should not be moved.
My Lords, I am extremely surprised to hear that news, because it was the clear will of the House to deal with the issue of inquests. It voted, it came to a conclusion, and Schedule 1 is merely consequential upon and cleans up that decision. The House voted substantively and I am surprised to hear that the Public Bill Office would think that it was reasonable to keep in the Bill a schedule that is not part of anything substantial, now that the main clauses have been removed.
My Lords, I thank the noble Baroness for her statement. Obviously, under the circumstances I shall withdraw my amendment and take the issue up in a different way.
My Lords, I am grateful to both noble Lords. I should say to the noble Baroness that there is clear guidance. The Public Bill Office has said that her amendments fall outside that guidance. There is a clear procedure which has been followed. It is, therefore, up to the House to decide.
May I have discussions on the issue before we reach that stage in the Bill? We are not deciding it this second.
My Lords, the amendment will be called in the usual way. I believe that it is the will of the House that the amendment should not be dealt with, but if the noble Baroness wishes to have further discussions with the Public Bill Office, that is entirely up to her.
Clause 1 : Duty to investigate certain deaths
1: Clause 1, page 2, line 21, leave out subsections (8) and (9)
My Lords, Amendments 1, 3 and 7 concern those coroners’ investigations that take more than 12 months to complete. They respond to an amendment which was tabled at Report stage by the noble Baroness, Lady Miller, and which the House agreed, on a Division, should be added to the Bill. The relevant provision now appears at subsections (8) and (9) of Clause 1, which Amendment 1 would omit. The other government amendments would have substantially the same effect as that passed by the House at Report.
Government Amendment 3 places a duty on a senior coroner to notify the Chief Coroner of any investigation that has not been completed within 12 months of when he or she is made aware that the person has died. There will also be a duty to notify the Chief Coroner when such an investigation is finally completed or discontinued. This is a slight change to the noble Baroness’s amendment which would have required senior coroners to provide the Chief Coroner with details of investigations that are likely to take longer than 12 months to complete. I hope that the House will agree that the revised formulation is less open to subjective interpretation.
We also considered whether Amendment 3 should require a senior coroner to notify the Chief Coroner of the date when an investigation of more than 12 months is suspended, as well as the date it is completed or discontinued. On reflection we decided against this. This is because a suspended investigation is ongoing until a coroner is in a position to make a decision on whether or not to resume it. In either eventuality, the amendment already requires the coroner to notify the Chief Coroner if more than 12 months have elapsed since he or she was made aware that the death occurred.
In addition, Amendment 3 places a duty on the Chief Coroner to keep and maintain a register of the deaths which are reported to him or her under this provision. We considered whether the Chief Coroner’s register should be updated and publicly available on an ongoing basis—for example, as soon as the 12-month time limit has been reached in a particular case—but we concluded that this would be problematic for both resource and personal-privacy reasons. On personal privacy, while some families may have no objection to their loved ones’ names being displayed in such a way, others may well find it an unwelcome intrusion into their private grief. There is a risk that journalists or others may believe that it gives them licence to approach families directly to seek their views and opinions on matters relating to the death but entirely unrelated to a delayed investigation.
Government Amendment 7 stipulates that the annual report, which the Chief Coroner must submit to the Lord Chancellor under Clause 35, must include a summary for the previous year of the number of investigations that have taken more than 12 months, the reasons and any action taken. Families and others whom the coroner has determined are interested persons in a case will be aware of any reason for delay as they will be provided, under paragraph 21 of the charter for bereaved families published alongside the Bill, with three-monthly explanations of the progress or otherwise of their case. This is the most appropriate way for coroners to be accountable to interested persons for the length of their investigations, and is the most proportionate use of resources to deliver the policy behind the noble Baroness’s amendment. I hope that the House will accept the government amendment in lieu of the amendment passed on Report. I beg to move.
My Lords, I warmly thank the Minister and his department for their thoughtful and helpful response in bringing forward the amendment. There will be many grateful families. Keeping an eye on timing is so important, and, as the Minister said, so is spelling out reasons for any delay. This is a tremendous step forward and I am extremely pleased that we will see it in the Bill.
My Lords, I, too, thank the Government for the amendment. We took this point very seriously. The Bill as a whole, and this particular amendment, have helped considerably with the problem of delays. This was an important point.
Amendment 1 agreed.
Clause 14 : Investigation in Scotland
2: Clause 14, page 7, line 35, leave out subsection (6)
My Lords, government Amendments 2, 4, 12 and 31 bring us back to the important issue of investigations into the deaths of service personnel who die serving their country. We tabled the amendments following the House’s agreement to a similar amendment tabled on Report by the noble Baroness, Lady Fookes. That amendment provided for a deputy chief coroner to be responsible for monitoring investigations into the deaths of service personnel, and for the training of coroners who conduct these investigations.
The amendments reflect—and I suggest enhance—the noble Baroness’s amendment tabled on Report. Whereas the noble Baroness’s amendment would have made a deputy chief coroner responsible for service personnel investigations, the amendments confer those duties instead on the Chief Coroner. This refinement to the noble Baroness’s amendment will further strengthen the provision while retaining the spirit and motivation of her proposal. In the reformed coroner system it will be the Chief Coroner who is responsible for setting standards and training coroners to investigate particular types of deaths. It is therefore fitting for the Chief Coroner to have responsibility for training coroners who carry out service personnel investigations, and for monitoring those investigations. I hope that the noble Baroness and the House will be content with the amendment. I beg to move.
My Lords, on behalf of my noble friend Lady Fookes I thank the Government for accepting the principle of having a national figure who can monitor military inquests. I congratulate my noble friend, who unfortunately is unable to be here today, on driving the issue in Committee and on Report. We are pleased to note that government Amendment 4 covers inquests into the deaths of service personnel who are killed on active service and in training. I thank the Minister for tabling the amendment.
My Lords, as probably the only services representative in the House, I thank the Minister for the amendment, and the noble Baroness, Lady Fookes, for fighting the cause, which has given immense pleasure to the services fraternity.
My Lords, the Liberal Democrats supported the noble Baroness, Lady Fookes, in her campaign. We are very glad that the Minister has come to a very sensible conclusion.
Amendment 2 agreed.
Amendments 3 and 4
3: After Clause 17, insert the following new Clause—
“Investigations lasting more than a year
(1) A senior coroner who is conducting an investigation under this Part into a person’s death that has not been completed or discontinued within a year—
(a) must notify the Chief Coroner of that fact;(b) must notify the Chief Coroner of the date on which the investigation is completed or discontinued.(2) In subsection (1) “within a year” means within the period of 12 months beginning with the day on which the coroner was made aware that the person’s body was within the coroner’s area.
(3) The Chief Coroner must keep a register of notifications given under subsection (1).”
4: After Clause 17, insert the following new Clause—
“Monitoring of and training for investigations into deaths of service personnel
(1) The Chief Coroner must—
(a) monitor investigations under this Part into service deaths;(b) secure that coroners conducting such investigations are suitably trained to do so.(2) In this section “service death” means the death of a person who at the time of the death was subject to service law by virtue of section 367 of the Armed Forces Act 2006 (c. 52) and was engaged in—
(a) active service,(b) activities carried on in preparation for, or directly in support of, active service, or(c) training carried out in order to improve or maintain the effectiveness of those engaged in active service.”
Amendments 3 and 4 agreed.
5: After Clause 27, insert the following new Clause—
“Amendment of Treasure Act 1996
After section 8 of the Treasure Act 1996 (c. 24) (duty of finder to notify coroner) insert—
“8A Duty to notify coroner of possession of certain objects
(1) A person who—
(a) has possession of an object, and(b) believes or has reasonable grounds for believing—(i) that the object is treasure, and(ii) that notification in respect of the object has not been given under section 8(1) of this Act,must notify the Coroner for Treasure before the end of the notice period.
(2) The notice period is fourteen days beginning with—
(a) the day after he obtains possession of the object; or(b) if later, the day on which he first believes or has reason to believe—(i) that the object is treasure; and(ii) that notification in respect of the object has not been given under section 8(1) or subsection (1) of this section.(3) Any person who fails to comply with subsection (1) is guilty of an offence if—
(a) notification in respect of the object has not been given under section 8(1) or subsection (1) of this section; and(b) there has been no investigation in relation to the object.(4) Any person guilty of an offence under this section is liable on summary conviction to—
(a) imprisonment for a term not exceeding the relevant maximum;(b) a fine of an amount not exceeding level 5 on the standard scale; or(c) both.(5) In proceedings for an offence under this section, it is a defence for the defendant to show he had, and has continued to have, a reasonable excuse for failing to notify the Coroner for Treasure.
(6) If the office of Coroner for Treasure is vacant, notification under subsection (1) must be given to the Chief Coroner.
(7) This section does not apply to a person to whom section 8 of this Act applies.
(8) In this section “investigation” means an investigation under section 26 of the Coroners and Justice Act 2009.””
My Lords, I wish to speak to the amendments in my name in this group but I shall withdraw them, as the Government have tabled Amendment 6. Those members of the All-Party Archaeology Group who were involved in the work on this amendment would like to thank the Minister and his team for the assiduous work they have done to close what we believe is a loophole in the section on metal detecting and treasure. We believe that Amendment 6 meets very clearly the areas which we have raised. As it has been dealt with, we will not have to speak at any great length. I beg to move.
My Lords, I, too, welcome the amendments tabled by the Government and echo what the noble Lord, Lord Redesdale, has said about the very helpful collaborative process, not least the impressive degree of collaboration between the Minister's department and the Department for Culture, Media and Sport.
We may have a handful of minor reservations about the amendments which the Government have brought forward. I regret that auction houses are not to be brought within the scope of new Section 8A. I regret that they have judged that it was not appropriate to use the formulation of the noble Lord, Lord Redesdale, in referring to a person coming into possession rather than having property in an object because that would have had the effect of widening the scope of the measure also to include bailees, for example people to whom an object had been consigned for valuation or repair. Given that the purpose of these amendments was to ensure that, where an object should have been identified as potential treasure in the past but had not been and had got into the marketplace, it could then be restored back into the treasure process. I would have thought that we would want to spread the net widely, but that is perhaps a quibble.
I very much welcome the presumption that objects will have been found after 24 September 1997, the date on which the Act came into effect in England and Wales. I also welcome the extension of the scope of the measure to Northern Ireland. However, I am sorry that the Government did not feel able to accept the thrust of other amendments which we tabled on Report, particularly that there should be a duty on those trading in antiquities to produce documented provenance. That is an issue to which we can return in a different context on a future occasion. Meanwhile, I very much welcome the movement made by the Government in these extremely constructive and helpful amendments which they have tabled and which will greatly improve the legislative position.
My Lords, I, too, thank the Government for their very sympathetic response to these amendments, which were originally tabled by the noble Lords, Lord Redesdale and Lord Howarth of Newport. This represents a very satisfactory outcome. On behalf of the All-Party Archaeology Group, I would like to say how much we appreciate the care given by the Government to the consideration of these amendments.
However, I echo the point already made by the noble Lord, Lord Howarth of Newport, that the change in the wording of new Section 8A from,
“has possession of an object”,
in Amendment 5 to,
“acquires property in an object”,
in Amendment 6, seems to let the auction houses off the hook. I am not quite clear what their duties will be in such an instance. Perhaps the Minister could say a word about that or, if it is too complex a matter to deal with now, he could write to us later.
The same question applies to eBay. A lot of the problems have arisen from sales on eBay, and I am not entirely clear now on its status or responsibilities in these affairs. eBay is not the vendor, as I understand it, and probably does not have property in the object. I am not even certain whether eBay would have had possession of the object in the original amendment. I realise that may be going into detail that is too difficult to deal with on the present occasion but, as the noble Lord, Lord Howarth of Newport, has indicated, this area remains grey. Auction houses are not at present required to indicate where they got an object from; they are not even, as I understand it, always obliged to indicate who the vendor is. These are matters that must be dealt with on a subsequent occasion.
For the moment, we thank the Government very warmly for responding to these amendments in so constructive a manner, which is a significant step forward. I am happy to support the government amendment.
My Lords, I am very grateful to the three noble Lords who have spoken, not just for the thanks they have given to the Government for fulfilling our undertaking on Report, but for the way in which they have brought pressure on various departments of the Government to move these matters forward. It has been a model of the way in which those who want to achieve progress in their expert field decide to do so. I dare say—I get it from the gentle caveats that I have heard in the general praise—that they will be attempting to move forward in due course. Whether I am standing at this Dispatch Box when they eventually do so is a different matter.
Amendment 6 introduces a duty on acquirers of objects that may be treasure to report them to the Coroner for Treasure. The duty will apply to all those who, after the duty comes into force, acquire an object that they believe might be treasure. This might be as a gift or a bequest or through a sale. The acquirer will have a duty to report the item to the Coroner for Treasure. We are satisfied that there is a need to ensure that the system to protect cultural objects is not undermined. Acquirers will be granted a reward, as the finder would have been if he or she had reported the find. We believe that we will be able to balance the rights of acquirers with the important purpose of the treasure system of preserving the nation’s cultural heritage.
We will of course continue to carry out educational activities, telling people about the duty on finders and the new duty on acquirers, but we hope that this new duty, with criminal sanctions attached, will deter that small minority of people who sought to exploit the loophole. As with the duty on finders to report an object, the maximum period for prosecution will be three years.
Amendments 33, 34 and 35 allow the Secretary of State to designate persons to whom reports of treasure finds or acquisitions can be made instead of the Coroner for Treasure. We will need to consult in relation to this, but it is hoped that we will be able to designate finds liaison officers as designated officers to whom reports may be made. Such officers will then inform the Coroner for Treasure of the report.
Taking all these amendments into account, we now have a comprehensive package of reforms to the treasure investigation system. The Coroner for Treasure will form the centre of the new system, and finders and acquirers can be sure that objects that may be treasure will be investigated thoroughly. We believe that these improvements to the system will also show the public that the cultural heritage of this country matters to us. I repeat how grateful we are for the contributions of the three noble Lords who spoke today.
As to the use of the word “property”, I have a form of words here, but I think it would be better if I wrote to the noble Lords about that matter.
I am conscious that I did not give time for the Opposition to speak. I do not know if they wanted to. Before I invite the noble Lord, Lord Redesdale, to withdraw his amendment it is perhaps fitting that on the day when we come to this agreement about the future, the Metro, which I know is widely read by Members of this House, has an article headlined:
“Seven steps to finding £1m in gold”.
It tells the story of:
“An amateur treasure hunter using his metal detector for the first time”,
“discovered a £1 million Iron Age hoard just seven paces from where he parked his car”.
This was not in England or Wales but in Scotland, but it is good news for him and perhaps good news for the House.
My Lords, I would like to say a few words about the use of the word “property” with regard to auction houses. I warmly support what the noble Lord, Lord Renfrew, said about the duty of auction houses to investigate the provenance of what they are selling. This relates not only to the Bill but to the question of looted property which the House considered a few months ago. This is a matter of great importance, and I hope that it will come back to the House at some later stage.
My Lords, I certainly agree that it is a matter of great importance, but it would be better on this occasion if I wrote to all those who have taken part in this debate.
My Lords, I thank the Minister for that response. I, too, noticed the article in the Metro this morning. Anyone can go to the British Museum and see the great Staffordshire hoard. I say that only because it was looted from Northumbria, and I very much hope that it will be repatriated to that great county and not stay in Staffordshire. Although I know that museums in Staffordshire are fighting to get hold of it, it is ours and we want it back. On that basis, I beg leave to withdraw the amendment.
Amendment 5 withdrawn.
6: After Clause 29, insert the following new Clause—
“Duty to notify Coroner for Treasure etc of acquisition of certain objects
(1) After section 8 of the Treasure Act 1996 (c. 24) there is inserted—
“8A Duty to notify coroner of acquisition of certain objects
(1) A person who—
(a) acquires property in an object, and(b) believes or has reasonable grounds for believing—(i) that the object is treasure, and(ii) that notification in respect of the object has not been given under section 8(1) or this subsection,must notify the Coroner for Treasure before the end of the notice period.(2) The notice period is fourteen days beginning with—
(a) the day after the person acquires property in the object; or(b) if later, the day on which the person first believes or has reason to believe—(i) that the object is treasure; and(ii) that notification in respect of the object has not been given under section 8(1) or subsection (1) of this section.(3) Any person who fails to comply with subsection (1) is guilty of an offence if—
(a) notification in respect of the object has not been given under section 8(1) or subsection (1) of this section; and(b) there has been no investigation in relation to the object.(4) Any person guilty of an offence under this section is liable on summary conviction to—
(a) imprisonment for a term not exceeding 51 weeks;(b) a fine of an amount not exceeding level 5 on the standard scale; or(c) both.(5) In proceedings for an offence under this section, it is a defence for the defendant to show that he had, and has continued to have, a reasonable excuse for failing to notify the Coroner for Treasure.
(6) If the office of Coroner for Treasure is vacant, notification under subsection (1) must be given to an Assistant Coroner for Treasure.
(7) In determining for the purposes of this section whether a person has acquired property in an object, section 4 is to be disregarded.
(8) For the purposes of an investigation in relation to an object in respect of which notification has been given under subsection (1), the object is to be presumed, in the absence of evidence to the contrary, to have been found in England and Wales after the commencement of section 4.
(9) This section has effect subject to section 8B.
(10) In this section “investigation” means an investigation under section 26 of the Coroners and Justice Act 2009.
(11) In its application to Northern Ireland this section has effect as if—
(a) in subsection (1), for “Coroner for Treasure” there were substituted “coroner for the district in which the object is located”; (b) in subsection (3)(b), for “investigation” there were substituted “inquest”;(c) in subsection (4)(a), for “51 weeks” there were substituted “three months”;(d) in subsection (5), for “Coroner for Treasure” there were substituted “coroner”;(e) in subsection (6), for the words from “Coroner for Treasure” to “Assistant Coroner for Treasure” there were substituted “coroner for a district is vacant, the person acting as coroner for that district is the coroner for the purposes of subsection (1)”;(f) in subsection (8), for “investigation” there were substituted “inquest” and for “England and Wales” there were substituted “Northern Ireland”;(g) in subsection (10), for ““investigation” means an investigation under section 26 of the Coroners and Justice Act 2009” there were substituted ““inquest” means an inquest held under section 7”.”(2) In section 10 of that Act (rewards), in subsection (5) (persons to whom reward may be paid), at the end insert—
“(d) any person who gave notice under section 8A in respect of the treasure.”(3) In relation to an offence under section 8A of that Act (inserted by subsection (1) above) committed before the commencement of section 280(2) of the Criminal Justice Act 2003 (c. 44), a reference in the inserted section to 51 weeks is to be read as a reference to three months.”
Amendment 6 agreed.
Clause 35 : Reports and advice to the Lord Chancellor from the Chief Coroner
7: Clause 35, page 17, line 19, at end insert—
“( ) the number and length of—(i) investigations in respect of which notification was given under subsection (1)(a) or (b) of section (Investigations lasting more than a year), and(ii) investigations that were not concluded or discontinued by the end of the year and in respect of which notification was given under subsection (1)(a) of that section in a previous year,as well as the reasons for the length of those investigations and the measures taken with a view to keeping them from being unnecessarily lengthy;”
Amendment 7 agreed.
8: Clause 35, page 17, line 21, at end insert—
“( ) the matters recorded under paragraph 3A of Schedule 5;”
My Lords, we return to the powers in paragraph 3 of Schedule 5 for a coroner conducting an investigation to enter and search land or premises and seize any items or inspect or take copies of any documents.
On Report, the noble and learned Baroness, Lady Butler-Sloss, spoke very eloquently of her concerns and those of the Coroners’ Society about the workability of these powers. In essence, she was concerned that the scope of the powers was insufficient as, in the time it would take to obtain written authorisation from the Chief Coroner, valuable evidence might be lost, which could affect many coroner investigations. She therefore tabled amendments to Schedule 5 on Report to remove the requirement for Chief Coroner authority and to enable coroners to authorise the police and other specified persons to enter and search premises on their behalf.
With the Minister, my honourable friend Bridget Prentice, I have subsequently had a very useful meeting with the noble and learned Baroness and the Coroners’ Society. I am pleased that, as a result of that meeting, we have been able to agree a way forward.
First, these government amendments remove the requirement for authorisation from the Chief Coroner, or from a senior coroner nominated by the Chief Coroner to give authorisation, to be in writing, which will enable authorisation to be sought and given over the telephone. Secondly, they add a requirement for the person giving authorisation to make a record of why they agreed the authorisation. Finally, they add a requirement for the Chief Coroner’s annual report to include a summary of the reasons given for authorisations granted in the calendar year to which the report relates. This will help to ensure public transparency for the use of these powers. I beg to move.
First, I thank the Minister for seeing a representative of the Coroners’ Society and myself, and, as far as they go, for the government amendments. Taking out the words “in writing” is a help. But the senior coroners remain very concerned that they are trained to be coroners and they do not have the power to search or to seize. That is slightly odd because, on the assumption, which may be brave of me, that the Times is accurate, a few days ago, the Times stated:
“Councils and other bodies had access to asset recovery powers before but only with the authorisation and involvement of the police. Now they will be able to act independently of any police force or law enforcement agency”.
Apparently, such groups as the Gangmasters Licensing Authority, councils, Counter Fraud and Security Management Service, the Gambling Commission, the Rural Payments Agency, the Vehicle and Operator Services Agency, Transport for London and Royal Mail, among others, will be able to search premises and seize, none of them probably being either lawyers or trained to do this, whereas coroners who are trained will not have those powers.
However, the coroners recognise that this is as far as the Government would go. They remain concerned and I want it on the record that they are concerned, and they will look to see what problems arise from time to time through the failure to get their approval, which will not now have to be in writing, in time. I thank the noble Lord for the amendment as far as it goes, but he needs to know that the coroners retain considerable concerns.
Amendment 8 agreed.
9: Clause 35, page 17, line 22, leave out “Schedule 5” and insert “that Schedule”
Amendment 9 agreed.
Clause 43 : Treasure regulations
Amendments 10 and 11 not moved.
Clause 47 : Interpretation: general
12: Clause 47, page 25, line 35, at end insert—
““active service” means service in—
(a) an action or operation against an enemy (within the meaning given by section 374 of the Armed Forces Act 2006 (c. 52)),(b) an operation outside the British Islands for the protection of life or property, or(c) the military occupation of a foreign country or territory;”
Amendment 12 agreed.
13: After Clause 49, insert the following new Clause—
“Public funding for advocacy at certain inquests
(1) Schedule 2 to the Access to Justice Act 1999 (c. 22) (Community Legal Service: excluded cases) is amended as follows.
(2) In paragraph 2, at the end insert “, and
(5) proceedings at an inquest under Part 1 of the Coroners and Justice Act 2009 to which sub-paragraph (1), (2) or (3) of paragraph 4 applies.”
(3) After paragraph 3 there is inserted—
“4 (1) This sub-paragraph applies to an inquest into the death of a person who at the time of the death—
(a) was detained at a custodial institution or in a custody area at a court or police station,(b) was detained at a removal centre or short-term holding centre,(c) was being transferred or held in pursuance of prison escort arrangements or immigration escort arrangements,(d) was detained in secure accommodation,(e) was a detained patient, or(f) was in service custody.(2) This sub-paragraph applies to an inquest into the death of a person that occurred in the course of the person’s arrest by a constable or otherwise in the course of the execution or purported execution of any functions by a constable.
(3) This sub-paragraph applies to an inquest into the death of a person who at the time of the death was subject to service law by virtue of section 367 or 369(2)(a) of the Armed Forces Act 2006 and was engaged in active service.
(4) Paragraph 2(5) does not authorise the funding of the provision of services to anyone who is not an interested person within section 46(2)(a) of the Coroners and Justice Act 2009.
(5) In this paragraph—
“active service” means service in—
(a) an action or operation against an enemy (within the meaning given by section 374 of the Armed Forces Act 2006),(b) an operation outside the British Islands for the protection of life or property, or(c) the military occupation of a foreign country or territory;“custodial institution” means a prison, a young offender institution, a secure training centre or a remand centre;
“detained patient” means a person who is detained in any premises under Part 2 or 3 or section 135(3B) or 136(4) of the Mental Health Act 1983;
“immigration escort arrangements” means arrangements made under section 156 of the Immigration and Asylum Act 1999;
“prison escort arrangements” means arrangements made under section 80 of the Criminal Justice Act 1991 or under section 102 or 118 of the Criminal Justice and Public Order Act 1994;
“removal centre” and “short-term holding facility” have the meaning given by section 147 of the Immigration and Asylum Act 1999;
“secure accommodation” means accommodation, not consisting of or forming part of a custodial institution, provided for the purpose of restricting the liberty of persons under the age of 18.”
My Lords, these amendments would extend the scope of the community legal service in England and Wales to cover advocacy at inquests into deaths of military service personnel who die on active service. They would also put the Legal Services Commission’s ability to fund inquests into deaths in state custody and inquests into deaths that occurred in the course of a police action or arrest on a statutory footing. The amendments cover only advocacy because legal advice and assistance under the legal help scheme is already available.
Currently, legal aid for advocacy at inquests into the deaths of military personnel on active service is outside the ordinary scope of civil legal aid, but it is nevertheless available under the exceptional funding procedure and is granted, sadly, on a regular basis. The current procedure requires that applications are considered by the Legal Services Commission and Ministers before they can be granted.
The amendments would bring these inquests within the ordinary scope of civil legal aid for the first time. The practical effect of the amendments will be to simplify and speed up the application process as Ministers will not need to approve individual applications before funding can be granted. Funding for inquests into deaths in custody and inquests into deaths that occurred in the course of a police action or arrest is already in scope, but the amendments put that on a statutory footing.
This change is intended to provide funding for a legal representative for a family or families, but not separate representatives unless there is a conflict of interest. Funding for advocacy and legal help at these inquests will continue to be subject to financial means tests and contributions towards legal aid costs. Presently, the financial eligibility limits and contributions towards costs can be waived and it is our intention to amend the relevant secondary legislation to ensure that the Legal Services Commission continues to have the power to waive the means test and contributions where that is appropriate.
I know that some noble Lords, including the noble Lord, Lord Thomas of Gresford, have called for this funding to be provided without being subject to means limits. It is a general principle of the legal aid scheme that those who can afford to pay for their legal expenses should be expected to do so. Indeed, means-free legal aid is provided only in very narrow circumstances, such as for those detained under mental health legislation or for parents engaged in child protection cases and at risk of losing their children. In domestic violence cases where people are seeking protection from harm, the eligibility limits can be waived. I do not consider that means-free funding is appropriate for these inquests, but it is right that financial eligibility limits and contributions should be waived where appropriate.
All legal aid funding is subject to the funding criteria set out in the funding code created under Section 8 of the Access to Justice Act 1999. The current funding code criteria do not apply to inquests, which are instead considered against the exceptional funding criteria. We therefore need to introduce a new section into the funding code to ensure that applications for representation at these inquests can be considered properly against relevant criteria, as they are now. We will consult with key stakeholders on this in the coming weeks. The change to the funding code will require the affirmative approval of both Houses and therefore will be considered further by Parliament in due course.
Before I move the government amendment, I thank the noble Lord, Lord Thomas of Gresford, for his efforts on this matter. I think he will say that he has not achieved all that he set out to do, but he has achieved quite a lot. I beg to move.
Amendment 14 (to Amendment 13)
14: After Clause 49, line 8, at end insert “at the discretion of the coroner”
My Lords, I am grateful to the Minister for the amendment he promised on Report and for what is included in it. However, he will remember that at that stage he also undertook to hold a meeting with the noble Lord, Lord Thomas of Gresford, which I would have attended but unfortunately it was not offered. Having heard about all the meetings that the Minister has had since Report, I can only presume that there was no time to fit this one in. Had there been a meeting, I would have used it to suggest my amendment rather than perforce have to put it forward in the House. I would have liked to have discussed it with the Minister before the government amendment was tabled.
I remind the House that the purpose of this Bill as set out in the Explanatory Notes is to establish more effective, transparent and responsible justice and coroners’ services for victims, witnesses, bereaved families and the wider public. In March 2008 in another place, the right honourable Harriet Harman said:
“We need to give bereaved relatives at inquests a real sense of fairness and support … it is important to improve the Coroner Service so that bereaved relatives can get answers to their questions”.—[Official Report, Commons, 20/3/08; col. 1088.]
On an earlier occasion she said:
“If bereaved relatives, with no legal representation, turn up on the steps of a coroner’s court and find that the Ministry of Defence and the Army”,
or the Ministry of Justice and the Prison Service,
“have a great battery of solicitors and QCs, they cannot help but feel that the position is unfair”.—[Official Report, Commons, 13/3/08; col. 420.]
During Second Reading in another place, the right honourable Jack Straw said:
“Successive governments have resisted the notion that legal aid should be made available. There are exceptions to that—I have been party to agreeing to them … but there are some complexities. We must also consider the overall issue of cost, in the context that the legal aid budget for England and Wales is now the same amount that we spend on prisons … but I understand the concern that has been well expressed by Members in all parts of the House”.—[Official Report, Commons, 26/1/09; col. 27.]
At present, only a few families are awarded funding for representation by the Legal Services Commission, and then only following a lengthy, complicated, intrusive and time-consuming application process. Therefore I am particularly glad that the Minister has said that the process is to be simplified. In addition, the exceptional funding may be awarded if the inquest requires the participation of the deceased’s parents or if the state’s obligation to investigate the death has not been fulfilled through other processes, including police investigations and internal inquiries. But as the Minister indicated, very few applications have been granted. Of the 69 applications in 2007-08, only 12 were agreed; and of the 104 applications in 2006-07, only 16.
My amendment to the Minister’s amendment takes that exceptional funding a stage further and suggests that, because they know the circumstances of each inquest, coroners should be required to decide and recommend whether every family listed in the Minister’s amendment should be entitled to state-funded legal representation. Such decisions would be based on, for example, the level of representation the state will have at the inquest, and the likelihood of the inquest containing issues that are so complex that the bereaved family is likely to be at a disadvantage. I had hoped to be able to expand on this but I am advised that that is not possible at Third Reading or in the context of the Access to Justice Act 1999, cited in the Minister’s amendment, so a fuller amendment may be tabled in the other place.
An inquest is an extremely traumatic time for the bereaved family, particularly when the death of a loved one occurs while in the hands of the state and, as is all too often the case, years rather months have elapsed since the death. I admit that I am more familiar with such occurrences in the military or in prisons than in police custody, but on more than one occasion in this House I have referred to the paucity of information made available to families before inquests, leading to their having false expectations of what they may learn there.
Improving that situation is of course outside the scope of the Bill. However, put at its starkest, what is at stake here is trust in the Government’s word. Either it means that they intend to provide effective, transparent and responsible justice for bereaved families whose loved ones have died at the hands of the state—which, in equity, should include parity of legal representation with that provided by and for the state—or it does not, in which case they should amend or withdraw the described purpose of the Bill. Of all the cases for means-testing being dropped, this is one, because we are talking about deaths in which the state is the principal stakeholder. I beg to move.
My Lords, I am grateful to the Minister for acknowledging the efforts made from these Benches to obtain a right to legal aid at inquests. However, the Minister should acknowledge that hand in hand, marching side by side, has been the noble Lord, Lord Ramsbotham, who has been extremely effective in putting forward submissions similar to ours.
As the Minister pointed out, the amendment does not go as far as we would like. At Second Reading I said I would have liked to have had legal aid as a matter of right in every inquest where the state is represented—not in the categories set out here, but where there is representation for other parties seeking to diminish the liability of the organ of the state involved. However, I am grateful to the Minister for the distance the Government have moved.
I am concerned about the change in wording between what he said to us, both in discussion and in Committee, to the effect that, although as a matter of principle the legal aid would have to be means-tested, he was,
“mindful that it would be appropriate to waive that, save in exceptional circumstances”.
When I received a letter from the Minister dated 3 November, the wording had altered slightly but possibly significantly. He wrote:
“This funding will be means tested, but the Legal Services Commission will have the power to waive the means test limits where appropriate”.
That was the wording that the Minister used today—not that it will be waived “save in exceptional circumstances”, but that it will be waived “where appropriate”. I should be glad if the Minister would explore which wording we are to rely on.
It may be helpful to your Lordships if I give an illustration of what I mean. A lady called Moyra Stockill died tragically in Middlesbrough police station on 10 December 2003, having been a patient at St Luke’s Hospital, where she had been committed under the Mental Health Act. She had suffered a mental illness due to bereavement after the deaths of her husband and a younger sister and she had developed a habit of putting things into her mouth. One problem in the hospital was that she pushed paper tissue into her mouth, which had to be extracted by means of tweezers and a suction pump. When, allegedly, she became violent towards staff in the hospital, the nurse decided to call the police. However, a male nurse pretended to be a policeman and spoke to her as though he were a policeman before the police arrived. Anyway, she was taken to Middlesbrough police station, where there was a failure of communication; there is a dispute between the police and the hospital over what happened. She was put in a cell with a toilet, where she stuffed toilet paper down her throat and died. Nobody knew about it.
That was in 2003. The inquest was supposed to take place on 19 October 2009—six years later. Throughout that period, her daughter, who is a single parent with very little income, was subjected to the stress of the constant delay due to the considerations of the CPS and so on about what was going on. She applied to the Legal Services Commission for funding and the waiving of the eligibility requirements in accordance with the procedures that have pertained until now. Eventually, on 18 March this year, it was decided that she could have legal aid to support advocacy at the hearing but that she would have to meet the costs of £4,000 that she had incurred up to that date. Her only income was an inheritance from her mother who had died. She was in the position of having to pay £4,000 from the inheritance of a mother who, by one means or another, had died in the circumstances that I have mentioned.
At the inquest, there were 12 legal representatives, including six counsel representing police officers, the care trust, the medical professionals and so on—all paid for by us, the taxpayers. It is the taxpayer who pays for the state to be represented, while this poor lady is faced, I believe, with a £4,000 payment. If ever there were circumstances where someone should have had full legal aid to cover the costs of the proceedings, these were they.
I come back to the wording used by the Minister, who said in debate that,
“it would be appropriate to waive”,
a means test,
“save in exceptional circumstances”.—[Official Report, 21/10/09; col. 748-49.]
That was changed, possibly under pressure from the Legal Services Commission, to the means test being waived “where appropriate”. I look forward to hearing what the Minister has to say about that.
I am pleased to hear that there will be a new section of the funding code, which will be brought in by order after consultation with the parties. What all these families have found to be so difficult in applying for exceptional legal aid in the circumstances that have pertained until now is filling out the forms and getting over all the applications and representations that have to be made. If there is to be a new section of the funding code, I hope that it will simplify all these procedures, and make it easy for a family to make the application for legal aid and to set out all the circumstances of the case.
I have every sympathy with the amendment moved by the noble Lord, Lord Ramsbotham, who points out that decisions like this would be helped by a direction or order of the coroner who has read the papers, and who knows precisely what issues are involved as well as how the other parties to the inquest will be represented.
I know that there is a lot of cavilling in that, but it is an important issue. In particular, I am sure that the Minister will tell me whether the means test will be waived, save in exceptional circumstances, as a matter of course.
My Lords, I have a brief question in support of the amendment of the noble Lord, Lord Ramsbotham, to give discretion to the coroner. As I understand it, the position is that in human rights terms we are looking at Article 2 of the convention on the right to life and the need for procedural fairness, and at Article 6, essentially the due process clause. It is clear that the principle of equality of arms, a principle well known under the convention and in common law, applies here. We are amending a schedule to what is described as an “access to justice” statute, and access to justice involves equality of arms. Is it not to be said strongly in favour of the noble Lord’s amendment that it would give the coroner the necessary discretion to allow them, in the circumstances of the case, to decide how the principle of equality of arms would apply when dealing with access to justice to ensure that there was not the kind of gross imbalance that my noble friend has just described? Without that discretion, how will the principle apply to the government scheme as amended today?
My Lords, I thank the Government for bringing forward their amendment. We accept that there should be equality of arms between public bodies and the families of individuals who have died while in custody of the state. It has long been seen as an iniquitous situation that government departments have been able to draw on public funds for their legal support while families have not, and we think that the Government have done the right thing.
While we have considerable sympathy for the amendment of the noble Lord, Lord Ramsbotham, however, sadly we have to point out, in view of the constraints on the budget, particularly that of the Ministry of Justice, that there are considerable cost implications in his amendment and we would therefore find it difficult to support it at this late stage of the Bill. No doubt he will find other ways of raising this subject in future and will keep up the pressure on the Government, but because of those cost implications I regret that we are unable to support him at this stage.
I thank noble Lords who have spoken, particularly the noble Lord, Lord Ramsbotham. I am duly corrected; I should of course have praised him too for the part that he has played in moving the Government as far as they have gone.
I am afraid, however, that I cannot accept his amendment on behalf of the Government. As I understand it, his intention is that legal aid should be available in the cases that we are talking about at the discretion of the coroner. I cannot accept that for the following reasons. The decision will be made against the relevant criteria, which will reflect the position now, when legal aid for representation at inquests is considered under the exceptional funding procedure. The current guidance states that one of the matters to be considered is:
“Any views, concerning the necessity of representation, expressed by the coroner, although these are not determinative”.
We intend to replicate that in the new arrangements.
As I understand it, there are currently no situations in civil cases where legal aid is granted before a hearing by judicial office holders, and we see no reason to give greater power in this regard to coroners than to the wider judiciary. Apart from anything else, different coroners may well take different views on the value of representation and, for example, on financial eligibility issues.
I know that the current secretary of the Coroners’ Society, for example, would be against the noble Lord’s amendment. He has said:
“I never support or influence legal aid applications. The means test is factual and the merits test is a matter for the decision maker and fundholder … Further in inquisitorial proceedings it is still important to be seen to be impartial. Though Circuit and District Judges deal with legal aid they are unlikely to also hear the case”.
A past secretary of the Coroners’ Society has said:
“I don’t think the Coroners’ Society has an agreed position, in that it has never been formally debated. Individual coroners will have their own view … In the past, it has sometimes been suggested that coroners should ‘support’ the legal aid application submitted by properly interested persons in Art 2 cases but I have always been uncomfortable with this in that what may be a ‘simple’ case to one coroner may be complex to a less experienced one and so any letter in support will be very subjective”.
The suggestion of the noble Lord, Lord Ramsbotham, goes much further, potentially leaving coroners exposed to a further area for judicial review. We are looking for as clear, fair and consistent a system as possible, with applications being considered against published criteria. The noble Lord’s amendment would not achieve that aim. If I were being pernickety, I would say that his drafting might not achieve his apparent objective. Adding,
“at the discretion of the coroner”,
would involve a new stage of requiring the coroner’s view and would be likely to restrict the availability of legal aid to cases where the coroner asked for it. However, that wording would not make the coroner’s decision determinative, as it would still be subject to the criteria in the funding code. I therefore invite the noble Lord to withdraw his amendment today. I have no doubt that he will have other ways of trying to bring it forward on a later occasion.
I hope that the noble Lord, Lord Thomas, will be relieved to hear that I stand by what I said on Report, but we will consult on that when we consult on the regulation. I hope that in my response to the noble Lord, Lord Ramsbotham, I dealt with the matter raised by the noble Lord, Lord Lester.
I am grateful to the Minister and the noble Lord, Lord Thomas of Gresford, for their kind words. I listened with great care to what was said. I have been advised that if I were to propose a vote in this House at this time, it would preclude the opportunity for the other House to discuss this matter when the Bill returned to them. I think that it is a matter of sufficient seriousness for me not to hamper that process. Therefore, conscious that the amendment which I have proposed is not as long or as full as I would have liked and that there is an intention to table it in the other House, I beg leave to withdraw it.
Amendment 14 (to Amendment 13) withdrawn.
Amendment 13 agreed.
15: After Clause 68, insert the following new Clause—
“Slavery, servitude and forced or compulsory labour
(1) A person (D) commits an offence if—
(a) D holds another person in slavery or servitude and the circumstances are such that D knows or ought to know that the person is so held, or(b) D requires another person to perform forced or compulsory labour and the circumstances are such that D knows or ought to know that the person is being required to perform such labour.(2) In subsection (1) the references to holding a person in slavery or servitude or requiring a person to perform forced or compulsory labour are to be construed in accordance with Article 4 of the Human Rights Convention (which prohibits a person from being held in slavery or servitude or being required to perform forced or compulsory labour).
(3) A person guilty of an offence under this section is liable—
(a) on summary conviction, to imprisonment for a term not exceeding the relevant period or a fine not exceeding the statutory maximum, or both;(b) on conviction on indictment, to imprisonment for a term not exceeding 14 years or a fine, or both.(4) In this section—
“Human Rights Convention” means the Convention for the Protection of Human Rights and Fundamental Freedoms agreed by the Council of Europe at Rome on 4 November 1950;
“the relevant period” means—
(a) in relation to England and Wales, 12 months;(b) in relation to Northern Ireland, 6 months.”
My Lords, at Report stage I accepted in principle the case made powerfully by the noble Baroness, Lady Young of Hornsey, and others that there should be a bespoke criminal offence to tackle modern-day slavery and forced labour. Further points have been made to the Minister and me in correspondence, to which I intend to speak at some length.
These government amendments, and in particular the new clause to be inserted by Amendment 15, will create a new offence of holding another person in slavery or servitude or requiring them to perform forced or compulsory labour. The offence will be anchored in Article 4 of the European Convention on Human Rights. The terms “holds another person in slavery or servitude” and “requires another person to perform forced or compulsory labour” would be defined in accordance with the prohibitions in Article 4, including the exceptions that that article contains.
This follows the precedent set by the offence of trafficking people for exploitation in Section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, which includes behaviour contrary to Article 4 as one form of prohibited exploitation. We believe that this meets the need that has been identified and provides a consistent and coherent approach.
There are exceptions under Article 4 which will also automatically be exceptions in the offence. Work done in the course of lawful detention or military service covering emergencies or life-threatening situations and work or service which forms part of normal civic obligations will be exempt. The new offence will attract a maximum penalty of 14 years’ imprisonment to reflect its seriousness.
The behaviour that the new offence prohibits is holding another person in slavery or servitude or requiring another person to perform forced or compulsory labour where the offender either knew or ought to have known that the person was being held or required to perform labour in such circumstances. Broadly speaking, the offence will require proof of a relationship of coercion between the defendant and the worker, and the circumstances will need to be such that the defendant knew that the arrangement was oppressive and not truly voluntary or had deliberately turned a blind eye to that fact. Precisely what constitutes slavery, servitude and forced or compulsory labour will be determined by the courts using existing case law on Article 4 of the European Convention on Human Rights and Section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 as it develops. In the vast majority of cases, we do not anticipate any difficulty for the courts in deciding whether the behaviour that they are asked to consider amounts to prohibitive behaviour under the new offence. In addition, we anticipate that sentencing guidelines will include a range of factors which will provide an indication of the relative seriousness of the prohibited behaviour. We would expect these to draw on the types of indicators in the International Labour Organisation’s conventions.
The CPS routinely issues legal guidance on offences to prosecutors which is freely available on the internet. It already publishes guidance on the trafficking-for-exploitation offence in Section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. One of the ways in which that offence can be committed is where the purpose of the trafficking is exploitation, contrary to Article 4. The guidance refers prosecutors to the case of Siliadin v France, July 2005, stating:
“The evidence showed the applicant, an alien who arrived in France at the age of sixteen, had worked for several years for the respondents carrying out household tasks and looking after their three, and subsequently four, children for seven days a week, from 7 am to 10 pm, without receiving any remuneration. She was obliged to follow instructions regarding her working hours and the work to be done, and was not free to come and go as she pleased. The Court unanimously held that there has been a violation of Article 4 of the Convention”.
We anticipate that separate guidance will be issued in relation to the new offence, drawing on the same case law. We also expect that the police will arrange appropriate training for officers. We will work with stakeholders, the public and employers among them, to raise awareness of the new offence.
The noble Baroness asked when the offences will come into force. We intend that it should be as soon as practicable, but we need time to make the necessary arrangements for training and raising awareness. I cannot realistically promise that the offence will be in force in six months’ time, but I hope that it will. There is much to be done in the interim, and a range of organisations will need to be involved. I assure the noble Baroness that we will do our best; we will not be dragging our heels. I beg to move.
I thank the Government for introducing this amendment, which corrects a historical anomaly, whereby we have not in this country made slavery and forced labour a criminal offence. I am glad also that the Minister took the time to address each of my points around guidelines and training et cetera. I take the point about not being able to guarantee the commencement of the offence, but I hope, as the Minister stated clearly, that we will be moving to get the training guidelines off the ground as quickly as possible so that we can get the offence on the books.
I think that this is admirable. The Minister’s speech is very important and when it is read its importance will be still more appreciated. The amendment fulfils the positive obligation on the United Kingdom under the convention. The reference to ILO standards and other matters is also most welcome, and I congratulate the Government and the noble Baroness, Lady Young, who was the original architect.
As one who supported my noble friend’s original amendment, I thank the Government warmly for this, and for remaining in contact during the coming period of consultation with the organisations that put time into this debate. I make only one comment. Under existing legislation there have been very low rates of conviction. I hope that the new offence will to some extent make up for that, in conjunction with Article 4 and the asylum and immigration Act 2004.
My Lords, I congratulate the noble Baroness, Lady Young, on pursuing this so successfully, and I thank the Government for listening to her arguments.
My Lords, on the point made by the noble Earl, Lord Sandwich, about prosecution rates, I hope that he picked up in my speech the positive commitment to training in enforcement and raising awareness. I hope that that will mean either a good rate of prosecution or, even better, a greatly diminished occurrence of the offence.
I thank the noble Baroness for her pursuit of this point, along with the organisations and the other noble Lords who supported her. I thank noble Lords for the time that they took with the Bill team. I think that I can speak on behalf of all noble Lords involved in thanking the Bill team for the time that they took in developing this response and, for a non-lawyer, the particularly elegant response that they produced.
Amendment 15 agreed.
16: After Clause 70, insert the following new Clause—
“Abolition of blasphemy in Northern Ireland
The offences of blasphemy and blasphemous libel under the common law of Northern Ireland are abolished.”
I should make it clear that I move this amendment not with any intention of dividing the House or, probably, of disagreeing with the Government’s position. The reason for bringing it back at Third Reading is that when we debated this on 28 October—together with our decision to abolish the common-law offences of sedition and seditious, defamatory and obscene libel in England, Wales and Northern Ireland—I then raised a question about the other common-law offence emanating from the Star Chamber, namely blasphemous libel, and pressed for that to be abolished, too, in Northern Ireland. It is a reserved matter and, therefore, one that can be dealt with only by the Westminster Parliament. The Minister kindly concluded the debate by offering to relay to the Minister of State at the Northern Ireland Office the points that I and other speakers had made. I am grateful to the Minister for having written to me on 3 November and for having met with me and his officials. It would be helpful to have him on the record with his response.
I shall make a couple of points. I perfectly understand that devolution and the devolution settlement is extremely important and that, when criminal law is transferred to Northern Ireland, it will be for the Northern Ireland Assembly, subject to the general law regulating the Assembly, to debate the issue of blasphemy. The reason why it remains my belief that at this stage it would be preferable to abolish blasphemy on this side of the Irish Sea and in Northern Ireland relates to my own experience in a case in which I must declare a professional interest. I acted for the Family Planning Association for Northern Ireland against the Department of Health, seeking guidance to be given to doctors, nurses and women and girls about the lawful termination of pregnancies in common law. The Northern Ireland Court of Appeal, in a unanimous judgment, required the Government to give that guidance. After a couple of years the guidance was given, but the Northern Ireland Assembly, having received this order of the Court of Appeal and the guidance of the Government, descended into a long political wrangle, seeking to frustrate the decision of the Court of Appeal and of the Northern Ireland Department of Health.
It would be regrettable, when we do not have the benefit of a Court of Appeal Northern Ireland judgment or a decision of the Northern Ireland Government, were anything similar to happen here. It would be regrettable because, south of the border in the Irish Republic, there has been a complete shambles over blasphemy whereby, owing to de Valera’s 1937 constitution, the present Government of the republic have reintroduced the offence of blasphemy by statute this summer in a most curious way, after their own supreme court decided that it was unenforceable and there to protect only the Church of England.
I have two final points. First, Northern Ireland already has a very strong law on incitement to religious hatred, going back to 1987. Secondly, our rights as citizens of the United Kingdom of Great Britain and Northern Ireland should not vary on fundamentals according to which part of the territory we are in. That I believe to be a profoundly important conservative and unionist principle—that we do not wish to see the rights of citizens of the UK dependent on where we happen to be at any particular time. Here there are rights about freedom of religion and free speech. It would be most unfortunate if that were not to continue.
I am heartened by a paragraph in the letter to me from the noble Lord, Lord Bach, in which he talks about enabling,
“a future change in the law at the appropriate time”.
I seek an assurance that the Government intend, with all deliberate speed, to secure this change in Northern Ireland, taking account of any local debates and discussions. I beg to move.
My Lords, at the last stage I made it clear that the view from these Benches was that this was a matter that should be left to the Northern Ireland Assembly to deal with in due course. Despite listening to the blandishments of the noble Lord, Lord Lester, that remains our view, and I do not think that I can add anything further to the debate.
My Lords, I want to make a few observations on this matter. I have noted that the noble Lord, Lord Lester, said that he does not intend to divide the House on this issue. However, I would like to make a few brief remarks. In my opinion, the amendment has a secularising agenda. Before the blasphemy law was repealed in England, the Government held a consultation with the Church of England. I am aware of no such consultation being held with the churches in Northern Ireland in relation to the amendment by the noble Lord, Lord Lester.
I am sure that noble Lords are aware that Christianity plays a more prominent role in Northern Ireland society than in the rest of the United Kingdom. Research carried out by the relief agency Tearfund and published on the BBC News website in April 2007 found that 45 per cent of people in Northern Ireland are regular churchgoers. That compares with 15 per cent in other regions of the United Kingdom. A survey of young people in 2007, carried out by the CBBC programme “Newsround”, found that 95 per cent of young people in Northern Ireland believed in God, and that 65 per cent of Northern Ireland children prayed most days.
Abolishing the offence of blasphemy does not demonstrate neutrality; rather, it contributes to a wider campaign of imposing a secular ideology, which would actually be hostile to religion. There is no neutral ground here. Every society has some cherished beliefs that it protects in law. The amendment would remove the offence of blasphemy from law at the same time as the Government are increasingly adopting hate-speech laws which are, in a sense, a form of replacement.
Christianity has profoundly influenced society in Britain and Ireland. Over the centuries, the Christian worldview has given us individual liberty and parliamentary democracy. Christians have been to the forefront of humanitarian endeavours; we need only call on such names as Wilberforce, Shaftesbury and Josephine Butler. I am not aware of a single political party or church denomination in Northern Ireland calling for the offence of blasphemy to be overturned, and certainly none of the major churches—or indeed the minor ones—have been consulted on this. I quite agree with those who say that the best place for this issue, and the best arbiter on it, would be the Northern Ireland Assembly. It is in place, it has 108 Members, and it otherwise crosses all the straddles of political opinion in Northern Ireland.
My Lords, perhaps I might make a short observation on the amendment by the noble Lord, Lord Lester. He said that he wanted the rights of citizens throughout the United Kingdom to be uniform, wherever in the United Kingdom they happened to be. However, he will surely acknowledge that since Scottish devolution the rights of people north and south of the border have, at times, varied quite considerably. There are the rights of drinkers and of foxhunters, to name but two. They may coincide temporarily, but after the next election they may once again vary. Perhaps the noble Lord will take that on board.
My Lords, first I declare that I am a Member of the Northern Ireland Assembly, and noble Lords will surely be aware that, since its establishment, considerable progress has been made in achieving a stable and peaceful society there. Currently, a Bill on policing and justice is being considered by all the parties in Northern Ireland, and when there is public confidence there is the likelihood of that being devolved to the Northern Ireland Assembly. Therefore, I firmly believe that this issue should be considered by all 108 Members of the Assembly, who will then have the opportunity to consult with all of their constituents and, obviously, come to make a well-informed decision on this. I therefore oppose the amendment.
My Lords, the noble Lord, Lord Lester, tabled similar amendments to these on Report to bring about the abolition of blasphemy and blasphemous libel in Northern Ireland. Members of the House understood, of course, the concern that he raised about what appears to be the law, even if there is no record of either of those offences ever having been prosecuted in Northern Ireland. At the same time, a number of noble Lords shared the Government’s view that these are matters better left to be considered by the Northern Ireland Assembly when it assumes responsibility for the criminal law. On the last occasion, the noble Lord, Lord Browne of Belmont, who has spoken again today, spoke of the particular sensitivity around religious issues in Northern Ireland, and of how it was important for the people of Northern Ireland to have their say. The noble Lord, Lord Henley, agreed from the Opposition Front Bench that the offences were arcane and redundant, but felt that the matter should be left for the devolved Administration—a view that he has expressed again today.
I recall that the right reverend Prelate, the Bishop of Winchester, had similar reservations about this Parliament legislating for Northern Ireland on a matter of this kind. He has been good enough to communicate to me, first, that he is surprised that this matter has returned to the House today and, secondly, that he thinks this matter should be dealt with in Northern Ireland. As the right reverend Prelate rightly said, the arguments that were powerfully adduced by the minority when the abolition of blasphemy and blasphemous libel in England and Wales was debated, during the passage of the Criminal Justice and Immigration Bill, are held with a great deal more force on all sides of the community in Northern Ireland than, perhaps, they are on this side of the water.
I undertook to convey to the Minister of State for the Northern Ireland Office the views that the noble Lord, Lord Lester, and other noble Lords expressed in the previous debate. I have done so, and the Minister’s strong view is that the right forum for consideration of this sensitive issue is the Northern Ireland Assembly, once it has assumed responsibility for justice. Given the strength of feeling on this matter, however, he has undertaken to ensure that the matter is fully researched, by drawing on the helpful analysis of the noble Lord, Lord Lester, and that advice on it is prepared so that a devolved justice Minister would have immediate access to it. In dealing with this issue, those in Northern Ireland will also need to pay close attention, as they obviously will, to the right to freedom of expression and the right to freedom of conscience, thought and religion enshrined in the ECHR.
I hope that that will give the noble Lord, Lord Lester, some reassurance that even if we differ from him on how the matter should be progressed—and indeed we do—we are taking it seriously and laying the foundations for a future change in the law. I am grateful to all of those who have spoken in this short debate, and I now invite the noble Lord to withdraw his amendment.
I am very grateful to everyone who has spoken, including the Minister, who has now put on record his important statement. My noble friend Lord Alderdice apologises for the fact that he cannot be here today, and the noble and right reverend Lord, Lord Eames, who was another supporter of the amendment, was also unable to speak.
In answer, quickly, to some of the points made by the noble Lord, Lord Morrow, first, a Select Committee of this House looked into all of these questions and examined closely, on the basis of evidence, the situation in Northern Ireland. There was very full consultation when that happened; I am not sure whether he would be aware of that. The Northern Ireland law was expressly referred to in the course of it. Secondly, this is not about any hostility to religion. On the contrary, the problem is that one person’s religion is another person’s blasphemy. The vice in the common law on blasphemy, which has never been used in Northern Ireland, is that it immediately leads to demands by, for example, Muslims that it be extended to their religion—something which has, extraordinarily, been done in the Republic. Thirdly, it is there to protect Christianity, which is regarded as divisive by non-Christians.
Concerning the point made by the noble Lord, Lord Monson, I was referring to the fact that the Convention rights are written into the Scotland Act, the Wales Act and the Northern Ireland Act in order to ensure that those basic rights do not vary from place to place. That is what I had in mind before, but there are of course variations in the pattern of legislation, provided that it is subject to those basic rights.
Finally, the Government of the Republic of Ireland decided not to have a referendum on this question for the very reason that the kind of arguments that one has heard would have been aired in the Republic. This is, if I may respectfully say so, largely hot air, given that blasphemy at common law has never operated in Northern Ireland.
I very much hope, as I am sure that the Government do, that this problem will at last be put to sleep in Northern Ireland as it has been here, and not left as it is in the Republic. Having said all that, I beg leave to withdraw the amendment.
Amendment 16 withdrawn.
17: After Clause 79, insert the following new Clause—
(1) The Secretary of State must review the operation of this Chapter and prepare a report of that review.
(2) The Secretary of State must lay a copy of the report before Parliament before the end of the period of 2 years beginning with the day on which section 74 comes into force.”
My Lords, the amendment makes provision for a statutory review of investigation anonymity orders within two years of the commencement of Chapter 1 of Part 3 of the Bill. The amendment has the same effect as a similar one tabled by the noble Lord, Lord Henley, on Report, which I accepted in principle. The amendment is self-explanatory, and I therefore beg to move.
My Lords, I am grateful to the Minister for moving the amendment. We look forward to the review in a couple of years’ time, which will help us to keep an eye on developments. Scrutiny is right on this occasion.
Amendment 17 agreed.
18: After Clause 149, insert the following new Clause—
Damages-based agreements relating to employment matters
(1) The Courts and Legal Services Act 1990 (c. 41) is amended as follows.
(2) After section 58A insert—
“58AA Damages-based agreements relating to employment matters
(1) A damages-based agreement which relates to an employment matter and satisfies the conditions in subsection (4) is not unenforceable by reason only of its being a damages-based agreement.
(2) But a damages-based agreement which relates to an employment matter and does not satisfy those conditions is unenforceable.
(3) For the purposes of this section—
(a) 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—(i) 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 (ii) the amount of that payment is to be determined by reference to the amount of the financial benefit obtained;(b) a damages-based agreement relates to an employment matter if the matter in relation to which the services are provided is a matter that is, or could become, the subject of proceedings before an employment tribunal.(4) The agreement—
(a) must be in writing;(b) must not provide for a payment above a prescribed amount or for a payment above an amount calculated in a prescribed manner;(c) must comply with such other requirements as to its terms and conditions as are prescribed; and(d) must be made only after the person providing services under the agreement has provided prescribed information.(5) Regulations under subsection (4) are to be made by the Lord Chancellor and may make different provision in relation to different descriptions of agreements.
(6) Before making regulations under subsection (4) 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.(7) In this section—
“payment” includes a transfer of assets and any other transfer of money’s worth (and the reference in subsection (4)(b) to a payment above a prescribed amount, or above an amount calculated in a prescribed manner, is to be construed accordingly).
“claims management services” has the same meaning as in Part 2 of the Compensation Act 2006 (see section 4(2) of that Act).
(8) Nothing in this section applies to an agreement entered into before the coming into force of the first regulations made under subsection (4).”
(3) In section 120(4) (regulations and orders) after “58(4),” insert “58AA”.”
My Lords, these amendments provide for the statutory regulation of damages-based agreements relating to employment matters. Previous amendments on damages-based agreements were tabled for Report stage. However, as the House will recall, I withdrew those amendments in light of the concerns raised by some noble Lords, including the noble and learned Lord, Lord Woolf, and of course the noble Lords, Lord Hunt of Wirral and Lord Thomas of Gresford, about the wide scope of those amendments. I undertook to bring back at Third Reading revised amendments, which would be narrower in scope and limited to the regulation of damages-based agreements in respect of employment tribunal claims. These amendments achieve that objective.
It may be helpful if I briefly explain how these agreements work. Damages-based agreements allow for the representative to claim a percentage of any damages awarded to the claimant. In contrast, of course, conditional fee agreements, which are typically used in court proceedings, allow for an “uplift”, or success fee, on top of the representative’s normal fee. Unlike conditional fee agreements, damages-based agreements are not permitted in court proceedings and the amendments do not change this. They are, however, commonly used by some solicitors and some claims managers in proceedings before the employment tribunal.
Recently published research into claimants’ experience of employment tribunals, by Professor Moorhead of Cardiff University, shows the worrying absence of specific consumer protection in respect of this type of agreement, particularly in relation to information about costs and charges, and the potential availability of other forms of representation. The Government believe that damages-based agreements, like conditional fee agreements, require specific statutory regulation to ensure that claimants have the protection they require. They do not currently have that specific statutory regulation.
While these amendments set out the broad regulatory framework, the details of the regulatory requirements will be set out in regulations to be made under the new statutory provision. These regulations will be subject to the affirmative resolution procedure.
We published a consultation paper on the regulatory requirements, seeking the views of the judiciary, the Law Society, the Bar Council and others. The consultation closed at the end of September and we published a summary of the responses on 27 October 2009. While some questioned the need for statutory regulation, others highlighted the need for, and welcomed the introduction of, more specific statutory requirements in the interests of protecting consumers in employment tribunals. It is envisaged that the first regulations could include, among other things, a requirement for representatives to provide claimants with clear and transparent information on all likely costs and expenses, and to provide claimants with information about other sources of funding to which they may be entitled and which may allow them to keep all of their damages.
These amendments are necessary now to ensure consumer protection for claimants in employment tribunals. I emphasise that the amendments only seek to regulate damages-based agreements in respect of employment matters to ensure that these claimants are protected from the outset. These amendments do not extend beyond employment matters that may go to the employment tribunal. In particular, any potential extension of damages-based agreements to civil litigation would require further consideration by us at a later date. As the House knows, this is being looked at by Sir Rupert Jackson in his review of civil litigation costs, which is due to report by the end of December. We all await that report with interest and will consider carefully any recommendations for further legislation in this area. I beg to move.
My Lords, I declare a professional interest, as I have been involved in litigation in an employment context—by which I mean equal pay, which I take to be included in what is meant by “employment”—where there has been real abuse because of the absence of regulation in this area. I do not want to go into embarrassing details to illustrate the precise nature of the abuse, but I am certainly aware that trade unions have been concerned that, for example, women are induced to enter into relationships with lawyers whereby a cut is obtained out of the damages that may be claimed for, say, an equal pay case, without the woman being properly informed. They are told by the solicitor that they cannot settle a case without the solicitor’s consent, in a situation where the solicitor will have a stake in the outcome. On the basis of my own experience, I am convinced that it is important that there are safeguards for the consumer in this context.
I say nothing about the previous debates on procedures and whether this is or is not rushed. All I can say is that there is a mischief, which the amendment seeks to tackle.
My Lords, I declare my interests recorded in the Register of Members’ Interests; in particular, being a partner in the national commercial law firm Beachcroft LLP. The Minister has reintroduced this group of amendments. I suppose that he is hoping that this will be the third time lucky. He has had to withdraw his amendments at the last minute both in Committee and on Report after finding that they were not really in accordance with what he sought to do. I am not sure that to have the first proper debate on such an important amendment at Third Reading is the right way to legislate.
The Minister was at pains to stress in his speech that the Government had consulted over the summer. However, that was because they had tried to introduce amendments in Committee before the summer without bothering to consult anyone very much beforehand. Having spoken to a number of organisations that have been consulted, I believe that, in their view, these revised amendments will probably cause significant difficulties without properly addressing the problems that the Government have acknowledged exist, and which the noble Lord, Lord Lester, has just outlined.
Well, we have been here before. If we look back at what has happened to the conditional fee agreements, as we were reminded in the previous debate, that regime said that the agreements would continue to be unenforceable unless they complied with regulations. I presume that they were similar to the regulations now proposed for damages-based agreements, although we have not seen them. I am not sure whether the Minister has seen any draft regulations. It would be very helpful if he could acquaint us with their substance, if not yet their detail. With CFAs there has been an enormous amount of satellite litigation, which has certainly not been in the public interest. The cases demonstrated that there were certain fundamental flaws in CFAs. Is the Minister satisfied that those fundamental flaws will not exist as far as DBAs are concerned?
DBAs have been available for many years in non-contentious work. As the Minister explained, they are not permitted in court-based litigation here. We all know the problems that they have caused in the United States. They are, of course, available here for tribunal cases. The argument is that they are, in some ways, particularly suitable for employment and tax cases because it is very rare for the losing side to be liable for the other side’s costs. Above all, I ask the Minister whether he is satisfied that this move on his part is in the public interest.
He has now tried to limit DBAs in the way that is expressed in Amendment 18. In many ways, this is all now based on some rather limited research to which he referred a few moments ago. That limited research, he feels, enables him to make regulations which ensure that DBAs are unenforceable unless they comply with regulations which are to be made, and might cover—I presume—such things as the percentage of damages that can be taken by the lawyer; exactly what costs are included in the percentage; the contractual terms; and the advice that must have been given before the agreement is entered into. I am guessing, because I have not seen the regulations. The Minister may well have seen some draft regulations.
The amendments propose to make agreements which do not comply with such regulations unenforceable. I suppose that would mean that consumers who wish to challenge will have to take legal action to establish whether their agreements comply with regulations. I am not sure that consumers will be aware of whether their agreement complies or not. I also do not think they will be queueing up to litigate further. If they do, there will a similar round of expensive satellite litigation. Surely that cannot be in the public interest.
It is anyway inappropriate for the Government to move in this direction, particularly when some of the people we are talking about are not regulated to the same level as solicitors. I immediately declare an interest: I was asked by my firm to give a report to the Law Society on the future regulation of solicitors. I pointed out that there are various areas where others have started to creep in—as we see extensively from TV adverts—to undertake work that is very similar to that of solicitors, but is not regulated in the same way. I hope that the Minister agrees that there should be a level playing field, and that the public interest demands that everyone is regulated to the same level. The Solicitors Regulation Authority has made clear that it has power to deal with concerns about solicitors, and it should be allowed to do so. If it is felt that the powers of regulators of those who are not solicitors are insufficient, the approach should apply only to them.
Finally, the Minister has referred to the much-respected review of costs by Lord Justice Jackson, which is now under way. The Minister knows that I expressed the strong view that we should await that report before we start going down this particular road. The Minister has made clear that he does not think he can wait. I hope that, when he responds, he will take into our account our dismay at the way in which the amendment has been produced and the way he is explaining why it is so necessary. We need a little more detail than we have so far had.
My Lords, having been a solicitor for some five years and a member of the Bar for too many years, I declare an interest to that effect. I have deep in my bowels a distaste for any litigation in which the lawyer has an interest. I have to weigh that distaste against access to justice and all the arguments that we had about that when the Access to Justice Act went through. As the noble Lord, Lord Hunt, said a moment ago, the blessing of the Government on conditional fee agreements has led to satellite litigation, which is a considerable burden that a litigant has to bear in addition to all the pressures and difficulties of the case itself.
This proposal was introduced at a very late stage of the Bill, so there has been no opportunity for full discussion. I have had the benefit of a discussion with the noble and learned Lord, Lord Woolf, on the third edition of the clause that is now being put forward. I will not speak for him, but as a result of that discussion I do not propose to oppose this clause today. However, the Government must be very careful in drawing up any regulations that they propose to impose, and the matter should be monitored very closely to try to get away from the lay client—who is at the receiving end of it all—the threat of even more legal proceedings.
My Lords, I thank the noble Lords who have spoken in this debate, all with a great degree of expertise, perhaps none more so than the noble Lord, Lord Hunt of Wirral, whose chairmanship I served under when we looked at the draft Legal Services Bill. I know that his recent report for the Law Society has been very widely welcomed, by both the society and others interested in that field. It is because I disagree with him so strongly that I have to praise him most strongly at the start of what I have to say.
The noble Lord asked whether it is in the public interest to legislate now. The answer is an emphatic yes from the Government. If I look for reasons, I rely to some extent on the speech of the noble Lord, Lord Lester, and the kind of cases that he has referred to today. In that sense, it cannot wait in this limited field of employment law, where there clearly has been abuse. Extremely unusually for the solicitors’ profession, I am afraid that recent research concluded:
“Many solicitors failed in their professional obligation to inform and advise claimants of alternative methods of funding”.
I am sure that the Law Society and its many thousands of members will want to put that right at the earliest opportunity.
On the question of public interest, we are adamant that we need to legislate, and legislate quickly. I take the point that this is the first time that this has been properly debated in this House. We withdrew in Committee because the Delegated Powers Committee made some powerful points to us, which we of course took on board in the normal way. On Report I had a Hobson’s choice. There were concerns from the noble and learned Lord, Lord Woolf, and others about this matter. We thought it best to take it away and try to narrow the scope of these clauses to satisfy him. I had the opportunity of speaking to the noble and learned Lord only yesterday. That is what we have done. It is not entirely satisfactory; I agree with the noble Lord about that.
We will draw up regulations in the light of our consultation and take note of any points raised today. We will consult with all the key stakeholders over the details of our regulations. A consultation will begin shortly after the Bill gains Royal Assent. I remind the House that I have said it is envisaged that the first regulations could include, among other things, a requirement for representatives to provide claimants with clear and transparent information on all likely costs and expenses and on other sources of funding to which they may be entitled and which may allow them to keep all of their damages. However, I say to the noble Lord that I have not seen the draft regulations.
By passing this legislation we are establishing a more level playing field in this area. CFAs are regulated statutorily; damages-based agreements are not. We think it is right that they should be on the same level. Why cannot this await the Jackson report? As the House will know, Sir Rupert published a preliminary report in May this year, which recognised that the unregulated use of damages-based agreements at employment tribunals, where they are most commonly used, is open to abuse. That is supported by the findings of research. Sir Rupert is considering the use of these agreements as a method of funding litigation before the courts and we await with interest any recommendations his report might include on this issue. In the mean time, we believe that the absence of specific statutory regulation of damages-based agreements in employment matters poses a real risk to vulnerable claimants. Therefore, there is a strong case for proceeding quickly to regulate this class of agreement in proceedings before employment tribunals. That is why we have brought forward these amendments today.
Amendment 18 agreed.
Clause 154 : Relevant offences
19: Clause 154, page 101, line 17, at end insert—
“( ) it is a heinous offence, and”
My Lords, I am very grateful to the Minister and his advisers for having met me yesterday to discuss my amendment in the context of the amendments that the Government have tabled.
Noble Lords will recall that on Report on 29 October, the House decided, by 74 votes to 56, to reject the attempt of the noble Lord, Lord Borrie, to remove Part 7 from the Bill. In the course of the debate, the noble Lord, Lord Tunnicliffe, acknowledged that in its original form the scheme in Part 7 would apply to,
“offenders who exploit information about any offence, regardless of the seriousness of that offence”.—[Official Report, 29/10/09; col. 1295.]
Nothing in the Explanatory Notes to the Bill explained how that could possibly be compatible with the rights and freedoms protected by the European Convention on Human Rights. No doubt because the Government came to realise that the scheme was grossly over-inclusive, the noble Lord, Lord Tunnicliffe, also explained:
“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”.—[Official Report, 29/10/09; col. 1293.]
The adjective “heinous” is not a technical term of art. It is a word whose ordinary meaning is given in the Oxford English Dictionary as,
“odious; highly criminal; infamous; chiefly of offences and offenders”.
Like many other adjectives, such as “reasonable”, or “proportionate”, it involves questions of fact and degree involving the exercise of judgment.
The noble Lord further explained:
“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”.—[Official Report, 29/10/09; col. 1295.]
He added that the scheme would then cover,
“only offences at the most grave end of the spectrum such as murder, manslaughter or rape”.—[Official Report, 29/10/09; col. 1296.]
Offences at the grave end of the spectrum are what might conveniently be described—in the noble Lord’s words—as heinous offences; not just serious, but grave.
Unfortunately, the Government's new amendment does not achieve the Minister's stated aim of confining the scheme to profiting from “accounts of heinous crimes”. Offences triable only on indictment in the Crown Court are serious, which is why they cannot be tried in magistrates' courts, but not all indictable offences triable only in Crown Courts can properly be described as “heinous” offences, or as being at the most grave end of the spectrum. They are all serious but are not all heinous or grave. For example, the various types of homicide involving murder and manslaughter are undoubtedly serious offences triable on indictment in the Crown Court, but they range widely in their character depending on the circumstances of the particular offence. The offence of murder, which can be tried only on indictment and carries a mandatory life sentence, covers a broad range of situations from mercy killings, or the killing of an abusive partner by a victim of domestic violence, to terrorist atrocities and mass murders.
In other words, the scheme, as it would stand with the government amendments moved today, remains overinclusive in that those at risk of having the proceeds of their works forfeited to the state, and the chilling effect on freedom of expression, would remain. A former criminal who wishes to write a book, collaborate in the making of a play or film, or discuss his or her crime with a journalist or publisher to receive a fee, will not know from the language written into Part 7 whether he or she may be liable to pay the penalty of confiscation merely by knowing that discussion of indictable-only offences creates a risk. That is why, to achieve the Government's stated aim, and no more, it is necessary to limit the scheme's application to those who exploit material about heinous indictable offences.
Some might argue that the test of heinousness is too vague to be applied by the courts. There are several answers to this objection. In the first place, the Government consider that the courts will be capable of interpreting and applying the vague criteria already contained in the Bill. The test of whether an offence is heinous is just as capable of being applied by the court having regard to the particular circumstances of the offence as is that of deciding the social value of a work. What is heinous and at the grave end of the spectrum involves a judgment about matters of fact and degree, which the courts are perfectly capable of making.
Secondly, senior courts in the common law world, notably in India and the United States, already use the test of whether a crime is heinous for the purpose of deciding whether it merits the death penalty. It has been used by the Supreme Court of India in deciding which categories of murder could attract the death penalty. In the case of Bachan Singh, the Supreme Court noted:
“While considering the question of sentence to be imposed for the offence of murder under Section 302, Penal Code, the court must have regard to every relevant circumstance relating to the crime as well as the criminal. If the court finds, but not otherwise, that the offence is of an exceptionally depraved and heinous character and constitutes, on account of its design and the manner of its execution, a source of grave danger to the society at large, the court may impose the death sentence”.
Similarly, the Supreme Court of the United States, when interpreting the Eighth Amendment's prohibition against cruel and unusual punishment, has repeatedly decided that, under the precept of justice, punishment is to be graduated and proportioned to the crime, and that capital punishment must be limited to those offenders who commit,
“a narrow category of the most serious crimes”,
and whose extreme culpability makes them,
“the most deserving of execution”.
The case of Roper v Symonds, cited by Justice Kennedy in Kennedy v Louisiana in 2008, illustrates that. The American federal courts do that in accordance with the well-known principle of proportionality. That shows that the criterion is capable of being interpreted and applied in context by our judiciary.
Similarly, the European Court of Human Rights and our own courts and tribunals have to carry out a similar process when deciding whether a given example of ill-treatment is sufficiently severe to amount to inhuman or degrading treatment in terms of Article 3 of the European convention. The confiscation of proceeds under this scheme undoubtedly involves the infliction of a penalty or fine for exercising the right to free expression. The proceeds are not to be paid to victims or their families. They are to be confiscated and paid to the state, like any other fine or penalty.
In fact, the order involves the infliction of a double penalty: first, the penalty of a custodial sentence; and then the penalty, as a convicted criminal or previous criminal, of having the proceeds not of the crime but of exercising the right to freedom of expression confiscated by the state. The defendant has already been sentenced and punished for the offence. He or she is to be further punished for writing about it in an article or book, or making a film or a play, deemed by the court to have insufficient value to be in the public interest.
The JCHR report in which I was involved expressed concern about the lack of certainty in the scheme. Unfortunately, in my view, and that of others, it did not take sufficient care on this occasion. I remain concerned about the lack of certainty in drawing a distinction between offences triable only on indictment and other offences. I have tried my best but I have been unable to discover any comprehensive list of offences which are triable only on indictment—indeed, I have asked the Minister’s department about that. I am sure that the Minister will provide a list in his reply, although I am not sure that such a list exists. I cannot tell, therefore, which offences are covered. However, my greater concern is with the fact that the Government’s use of this category is overinclusive by not being restricted, as the Minister wished, to heinous or grave offences.
The Government accept, as they must, that to deprive a criminal or former criminal of profiting from an account of his crime interferes with the right to free expression and the right to property. The Government also accept, as they must, that the interference must be no more than is necessary to conform to proportionality. My amendment seeks to give effect to that principle by ensuring that the forfeiture scheme will apply only to heinous offences at the most grave end of the spectrum of indictable offences.
Like the Mikado, I hope the Government and the House, will appreciate that, “my object all sublime”, is to,
“let the punishment fit the crime, the punishment fit the crime”.
If my amendment is agreed to, it will be much more likely that Part 7 will pass muster if its compatibility with the convention rights is challenged in British courts or before the European Court of Human Rights. I beg to move.
My Lords, I shall not hide the fact that I would prefer that the Government had withdrawn the whole of Part 7, because it is neither worth while nor will be of much value. It will have a number of serious disadvantages. However, we debated those a week ago. On behalf of noble Lords from various parts of the House who supported withdrawing Part 7 altogether, I say that we had the voices but the Government had the votes. All those who spoke, apart from an uncertain voice from the main opposition party, were against Part 7. However, we move on.
The noble Lord, Lord Lester of Herne Hill, is more constructive than me. He has sought, alongside the Government’s move to reduce further the scope of Part 7—to use “heinous” to separate those more serious crimes, where perhaps there is justification for Part 7, from the rest. He has given a number of reasons why “heinous” could be included, despite its apparent vagueness. It features in the Oxford English Dictionary, but I have looked at the law dictionaries and they do not mention it—probably because it does not appear in our statutes. None the less, it has a reasonably clear meaning, as the noble Lord indicated. It is a more worthwhile attempt, and it goes further than that of the Government. The Government have already made two moves to reduce the scope of Part 7, and maybe they will explain further why those moves were sufficient.
The main objection to “heinous” in this context is its vagueness. However, I am much impressed, not only by what the noble Lord, Lord Lester, said about the Supreme Court of India and the Supreme Court of the United States in the use of “heinous” to separate, for example, crimes justifying the death penalty from other crimes; I am also impressed by the noble Lord’s indication that, in so far as there is an uncertainty about the word, by Jove, there are plenty of uncertainties in this part of the Bill. If you study the list of things that the court is to take into account in determining whether an order should be made under Part 7 proceedings, you will see phrases such as the “social value” of the literature or taking into account the “extent to which” the victim or his family will be offended. There are so many vague, uncertain and subjective items for the court to consider. If it is to consider the difference between a heinous crime and a less than heinous crime, that is a relatively straightforward matter which a judge would find a good deal easier to determine than the social, cultural or literary value of a book written by an offender.
I appreciate that vagueness remains, but I also appreciate the value and constructiveness of the attempt of the noble Lord, Lord Lester, to address this point when the Government have, thus far, singularly failed to do so in their attempt to define and distinguish between indictable and non-indictable offences and so on, thereby reducing the scope of the Bill.
My Lords, as the noble Lord, Lord Borrie, made clear, the House debated this matter a week ago and came to a firm conclusion. For that reason, Part 7 will remain in the Bill, but the Government are making their attempt to tighten it up a little, as is the noble Lord, Lord Lester of Herne Hill.
I look forward to hearing from the Government on their Amendments 20 to 22, which are about the restriction to indictable offences only. We do not disagree with the Government’s attempt to tighten this up. However, we do not think that it will make much difference. Far more important was the Government’s statement last week that they would restrict these matters to offences,
“at the most grave end of the spectrum”.
Those words were quoted by the noble Lord, Lord Lester. Merely leaving out “indictable offence” and inserting,
“offence which, if committed by an adult, is triable only on indictment”,
does not add much to the words,
“most grave end of the spectrum”.—[Official Report, 29/10/09; col. 1296.]
We are happy that other safeguards will limit the use of this provision; for example, the fact that one needs the permission of the Attorney-General. We trust that the Government will not use powers of this sort frivolously.
In light of those safeguards, I will comment briefly on the amendment of the noble Lord, Lord Lester. He suggests a restriction to “heinous” offences. There is some confusion in the House about the pronunciation of the word. The noble Lord, Lord Borrie, pointed out that he could not find it in his legal works, but found it in the Oxford English Dictionary. Perhaps if we could decide how to pronounce it, we would have made a step in the right direction. I note the noble Lord’s point that not all indictable offences are heinous. However, I imagine that the Minister will say that the Attorney-General will make the call in due course.
We are grateful to the noble Lord, Lord Lester, for pointing out that the word has been defined by the Supreme Court of India, and in the United States. I was grateful for the note that he sent me on the matter. Again, I do not think that it would add much in the light of other government assurances that were given last week. I am not unsympathetic to what the noble Lord is doing, but I am not sure that we would support him if he pressed the matter to a Division, because I do not think that his amendment adds much. We will listen very carefully to what the Government say, but we dealt with this matter last week.
My Lords, having disagreed with the noble Lord, Lord Lester, on an amendment a while ago, I was completely convinced by his cogent argument in favour of this amendment and would gladly support him were he to decide to divide the House—assuming that the Government do not accept it.
The use of “heinous” has been criticised by the noble Lords, Lord Borrie and Lord Henley. As a lay man, I find no difficulty with it. It derives from the French word “haine”, which gives the clue to its pronunciation. It means “hateful”, and 80 to 90 per cent of the population would broadly agree on what crimes are the most hateful.
My Lords, one can see from the structure of this very unsatisfactory part of the Bill that an application has to be made by an enforcement authority with the consent of the Attorney-General. My noble friend’s amendment sets a threshold for the application, which would not be considered either by the enforcement authority or by the Attorney-General unless it concerned a hateful crime. It is not too difficult to interpret that expression. Clause 157 sets out what the court has to consider in determining applications. These are not just the matters set out in subsection (3)—which, as many noble Lords have said, are very indistinct and open to the discretion of the judge who hears the application. Under subsection (2)(b), the court,
“may take account of such other matters as it considers relevant”.
The judge has complete discretion when considering whether to make an order, and may consider matters apart from those listed in the Bill. Any criticism that the term used by my noble friend is vague pales into insignificance when one has regard to the scheme that the Government have introduced.
My Lords, the noble Lord, Lord Lester, has proposed an amendment that would limit the scope of the criminal memoirs scheme to memoirs about heinous offences. This is intended to be in addition to government amendments to restrict the scheme to offences that are triable only on indictment. Given the concerns raised in the House about the potential breadth of the scheme, I understand why the noble Lord should seek to limit it in this way. The House will recall that the original scheme would have applied to offenders who exploited material about any offence. On Report, the House agreed amendments to limit the scheme to offences that were triable on indictment or triable either way.
The government amendments in this group go a good deal further by limiting the scheme to memoirs about the most serious offences, namely those that are triable only on indictment. This is a significant move. Indictable-only offences make up a very small proportion of criminal cases dealt with by the courts, and no more than 2 per cent of all convictions in 2007. Indictable-only offences include very serious crimes such as murder, rape and manslaughter. Offenders who profit from exploiting material about these offences are likely to be the subject of cases that cause the greatest concern to surviving victims or bereaved families.
As a result of our amendments, the scheme will no longer cover offenders who exploit material about offences that are triable either way. Our amendments have the considerable advantage that there can be no doubt which offences will be covered by the scheme. Limiting the scheme to memoirs about indictable-only offences that are heinous lacks that advantage. “Heinous” is undefined in the amendment and is not known in our law. If it were adopted, it would be far from clear what crimes the scheme would cover. It is extremely undesirable—we would say wrong—to introduce this considerable and unnecessary uncertainty to the scheme. Limiting the scheme to indictable-only offences draws the scheme sufficiently narrowly—no further narrowing is needed. Indictable-only offences are, by definition, the most serious crimes in our law. It is clear which offences are included in the group and which are not.
A final, crucial point is that Clause 157 already requires the court to consider the seriousness of the offence to which the memoirs relate when deciding whether to impose an order. The court will automatically have regard to the fact that, for example, the memoirs relate to a particularly brutal crime, or to a crime that is not particularly serious in the overall spectrum.
The noble Lord, Lord Lester, raised a series of points that I will not respond to individually. I believe that almost every point he raised was covered by my speech on Report. I learned a long time ago that giving the same explanation twice is full of hazard.
My Lords, as the Minister will not reply to the specific point, I ask: is he saying that he accepts that the reference to serious crimes covers only grave or heinous crimes? On Report, I asked whether the intention was,
“to deter people by depriving them of the profits from publishing material considered by the Government to be undesirable and of no value”.
The noble Lord replied:
“There is a sense of chilling in what we are doing, for the most heinous crimes and within the context of the Act”.—[Official Report, 29/10/09; col. 1293.]
Is he saying today that he accepts that the reference to serious crimes in the Bill should be interpreted by the court and by the Attorney-General as concerned only with the gravest of indictable-only offices, the most heinous, or not?
My Lords, I shall not go beyond what I said on Report. As the noble Lord, Lord Henley, has pointed out, the Attorney-General will have a general responsibility as regards public interest and will have regard to the debates that we have had in this House so far.
For a few seconds I thought that my noble friend Lord Borrie was going to agree with me, which would have been an exciting relief. He made the case that the word was not defined. I refer back to what I said on Report on proportionality. We used some very careful words about proportionality being at the centre of how this part of the Bill would be interpreted. I hope that the noble Lord, Lord Lester, will agree that the government amendments substantially address his concerns and that he will withdraw his amendment.
My Lords, I am very grateful to everyone who has spoken and to the Minister for his reply. I am not grateful to the Minister for not replying to my specific points, which I have discussed with him and his advisers in private. That is not appropriate and I am sorry about that.
In terms of the principle of legal certainty, when what is at stake is free speech and property it is not satisfactory for a Minister to say to the House that the judge can read the debates. That is not good enough. The law should be clear, with proper criteria. The Minister indicated last time, and has not changed his position today, that the scheme is intended to apply only to heinous crimes at the grave end of the spectrum. That is not what the Bill says; it is what my amendment seeks to achieve. I wish to test the opinion of the House.
5 November 2009
Division on Amendment 19.
Amendment 19 disagreed.View Details
Amendments 20 to 22
20: Clause 154, page 101, line 19, leave out “indictable offence” and insert “offence which, if committed by an adult, is triable only on indictment”
21: Clause 154, page 101, line 21, leave out from first “triable” to end and insert “only on indictment,”
22: Clause 154, page 101, line 23, leave out from “is” to end of line 25 and insert “triable only on indictment,”
Amendments 20 to 22 agreed.
Clause 176 : Extent
Amendment 23 not moved.
24: Clause 176, page 122, line 4, at end insert—
“( ) section (Slavery, servitude and forced or compulsory labour);”
Amendment 24 agreed.
Amendment 25 not moved.
Clause 177 : Commencement
26: Clause 177, page 122, line 41, at end insert—
“( ) section (Damages-based agreements relating to employment matters);”
Amendment 26 agreed
Schedule 1 : Duty or power to suspend or resume investigations
27: Schedule 1, page 127, line 30, leave out paragraph 3
My Lords, I appreciate what the Leader of the House said just after Question Time. For clarity, I wish to make a few points on the amendment. First—
My Lords, I think the Leader of the House made the position perfectly clear at Question Time. Much as I appreciate the courteous way in which the noble Baroness is addressing these matters, I am not sure that it is entirely in order for her to continue to pursue this without the leave of the House. I do not think the leave of the House has been sought or given. Certainly, I would take great exception to a ruling by the usual channels being countered in this way. I do not think it is entirely appropriate. It is quite wrong and, so far as I am concerned, it stretches the bounds of the usual working relationships. We try to agree things in good order in this House, and that is the tradition within which I intend to live, and I know that view is shared by noble Lords opposite and, traditionally, by noble Lords on the Liberal Democrat Benches. I would courteously invite the noble Baroness to withdraw from this current debate and perhaps not to move her amendments. I think that to go against that the noble Baroness will need to seek the leave of the House.
My Lords, it needs to be made clear that my noble friend was endeavouring to make it clear that she was not going to move her amendment, but she felt it right, in the circumstances, to make a personal statement and put something on the record. She was making it clear that she was not going to move the amendment. In the spirit of the way the House works, it seems to me that that is in order.
My Lords, with the leave of the House, if I could just complete the statement, I would like to make one point of clarification for the convenience of the Government.
My Lords, I am becoming increasingly confused about the procedure the House is now adopting. I am aware of an agreement by the usual channels about the way in which Third Reading amendments may be discussed, or may not be on the advice of the usual channels when the Public Bill Office has indicated that they have been debated on previous occasions. As I understand it, if one starts to make a statement, one is, in fact, moving an amendment. If the noble Baroness wishes to move the amendment, she must seek the permission of the House to do so and is acting against the advice of her own Chief Whip.
My Lords, I am most grateful to the noble Baroness, Lady Anelay, for her support in this matter. It is only right that the leave of the House be sought if the noble Baroness wishes to pursue this issue.
My Lords, forgive my absence from the Chamber for the beginning of this very short debate on this amendment. As I indicated earlier, this is a matter for the House. I saw my noble friend at the Dispatch Box earlier making the point that this had been agreed by the usual channels. That is the usual procedure by which we work in this House. It makes for a good working relationship throughout the House and enables us to get through our legislation, as we usually do. I recognise that I said earlier that the noble Baroness should seek the advice of the Public Bill Office again. In retrospect, I may have been wrong to suggest that because I think that, when an agreement has been made by the usual channels, it is beholden upon us as a House to respect that advice or put it to the House by a vote. It is especially beholden upon Front Benchers in this House to follow the advice that has been agreed by the usual channels.
My Lords, had my noble friend been allowed to continue, we would now be on the next amendment. I do not understand why the Government Front Bench and the Opposition Front Bench—I am highly suspicious about it, quite frankly—are wanting to, as it were, filibuster because I understood that the Government wanted to get on with the business of the House. They could have done that. If my noble friend wishes to, perhaps she should test the opinion of the House.
My Lords, I shall clarify for the House that this is not a matter of filibustering, but of the procedure of the House. It is important that procedures in this House are followed correctly, otherwise no business will be got through.
My Lords, I think the Front Benches have brought this on themselves because we have been trying to get this business through. I sat through long meetings when the noble Lord, Lord Williams of Elvel, was pushing this idea through the Procedure Committee. I warned then that if we allowed rules and regulations to interfere with genuine discussion, we would find ourselves in more trouble and wasting more time than if we simply used a bit of common sense about allowing Members to make a point. I think I have been borne out by what has happened here.
My Lords, if the noble Baroness speaks to the amendment, she may not then withdraw it. I must call for it to be moved.
Amendments 27 and 28 not moved.
Schedule 5 : Powers of coroners
Amendments 29 and 30
29: Schedule 5, page 140, line 3, leave out “in writing”
30: Schedule 5, page 140, line 31, at end insert—
“3A (1) The person by whom an authorisation under paragraph 3(1) is given must make a record—
(a) setting out the reasons for the suspicion referred to in paragraph 3(2)(a);(b) specifying which of the conditions in paragraph 3(3) is met.(2) Where the authorisation is given by a senior coroner nominated under paragraph 3(1)(b), that coroner must give the record made under this paragraph to the Chief Coroner.
(3) The Chief Coroner must retain a record made this paragraph until the Chief Coroner has given to the Lord Chancellor the report under section 35 for the calendar year in which the authorisation in question was given.”
Amendments 29 and 30 agreed.
Schedule 8 : Chief Coroner and Deputy Chief Coroners
31: Schedule 8, page 147, line 18, leave out sub-paragraph (2)
Amendment 31 agreed.
Schedule 21 : Minor and consequential amendments
32: Schedule 21, page 213, line 14, at end insert—
“After section 33 insert—
“33A Short certificate of death
(1) Any person shall—
(a) on furnishing the prescribed particulars, and(b) on payment of such fee as may be specified in regulations made by the Minister by statutory instrument,be entitled to obtain from the Registrar General, a superintendent registrar or a registrar a short certificate of the death of any person.(2) Any such certificate shall be in the prescribed form and shall be compiled in the prescribed manner from the records and registers in the custody of the Registrar General, or from the registers in the custody of the superintendent registrar or registrar, as the case may be, and shall contain such particulars as may be prescribed.
(3) A statutory instrument containing regulations under subsection (1)(b) of this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.””
My Lords, this amendment was tabled in response to one tabled by the noble Lord, Lord Thomas, on Report. This issue has been of particular interest to the noble Baroness, Lady Finlay.
The amendment inserts a new clause into the Births and Deaths Registration Act 1953 that will enable the Registrar-General, with the approval of the Minister, in regulations made under that Act, to prescribe a short form of death certificate that will omit the cause of death. The provision of a short death certificate will allow the relatives of the bereaved to provide evidence of a death in circumstances in which the cause of death does not need to be disclosed. This may be because an agency such as a bank or utility company requires only confirmation of the fact of death.
I understand that, due to the possibly sensitive nature of the cause of death—for example, suicide or drug abuse—a relative may not wish to disclose the cause to a third party unless there is a genuine need to do so. It is important that the current full death certificate will remain available because there are circumstances in which the cause of death is required to be disclosed: for example, to insurance companies. The provision of the short death certificate will add to, rather than replace, the current death certificate that contains the cause of death.
I should add that the amendment also provides for the fee for a short death certificate to be specified in regulations made by the responsible Minister. Such regulations will be subject to the negative procedure. This change to the original version of our amendment responds to points made in the 13th report of the Delegated Powers and Regulatory Reform Committee, which was published this morning. I understand that the chairman of the committee is content that the amendment as now drafted meets the point made by the committee in its report. I beg to move.
My Lords, I thank the Minister and the Government for the amendment. Many organisations have pressed for this change, which protects people from having to disclose the most intimate details of the cause of death of a relative to people who really should not know, and I am very grateful that this step has been taken.
Amendment 32 agreed.
Amendments 33 to 35
33: Schedule 21, page 217, line 11, at end insert—
“(6) This section has effect subject to section 8B.”
34: Schedule 21, page 217, leave out lines 12 to 24
35: Schedule 21, page 217, line 34, at end insert—
“After section 8A (inserted by section (Duty to notify Coroner for Treasure etc of acquisition of certain objects) of this Act) there is inserted—
“8B Notice under section 8 or 8A to designated officer
(1) A requirement under section 8 or 8A to give a notification to the Coroner for Treasure (or an Assistant Coroner for Treasure) may, if the relevant place falls within an area for which there is a designated officer, be complied with by giving the notification to that officer.
(2) A designated officer must notify the Coroner for Treasure of all notifications given under subsection (1).
(3) If the office of Coroner for Treasure is vacant, notification under subsection (2) must be given to an Assistant Coroner for Treasure.
(4) In this section—
“designated officer” means an officer designated by an order made by statutory instrument by the Secretary of State;
“the relevant place” means—
(a) in relation to a requirement under section 8, the place where the object in question was found;(b) in relation to a requirement under section 8A, the place where the treasure in question is located.(5) A statutory instrument containing an order under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(6) In its application to Northern Ireland this section has effect as if—
(a) in subsection (1), for “the Coroner for Treasure (or an Assistant Coroner for Treasure)” there were substituted “a coroner”;(b) in subsection (2), for “Coroner for Treasure” there were substituted “coroner for the district in which the relevant place falls”;(c) in subsection (3), for the words from “Coroner for Treasure” to “Assistant Coroner for Treasure” there were substituted “coroner for a district is vacant, the person acting as coroner for that district is the coroner for the purposes of subsection (2)”.8C Offences under section 8 or 8A: period for bringing proceedings
(1) Proceedings for an offence under section 8 or 8A may be brought within the period of six months from the date on which evidence sufficient in the opinion of the prosecutor to warrant the proceedings came to the prosecutor’s knowledge; but no such proceedings may be brought by virtue of this subsection more than three years after the commission of the offence.
(2) For the purposes of subsection (1)—
(a) a certificate signed by or on behalf of the prosecutor and stating the date on which the evidence referred to in that subsection came to the prosecutor’s knowledge shall be conclusive evidence to that effect; and(b) a certificate to that effect and purporting to be so signed shall be deemed to be so signed unless the contrary is proved.”
Amendments 33 to 35 agreed.
Amendment 36 not moved.
Schedule 22 : Transitional, transitory and saving provisions
37: Schedule 22, page 240, line 44, at end insert—
“Slavery, servitude and forced or compulsory labour13A In the definition of “the relevant period” in section (Slavery, servitude and forced or compulsory labour)(4), as it extends to England and Wales, the reference to 12 months is to be read as a reference to 6 months in relation to an offence committed before the commencement of section 154(1) of the Criminal Justice Act 2003.”
Amendment 37 agreed.
Schedule 23 : Repeals
38: Schedule 23, page 250, line 29, at end insert—
“In Schedule 2, in paragraph 2, the “and” following paragraph (3).”
“In Schedule 2, in paragraph 2, the “and” following paragraph (3).”
Amendment 38 agreed.
Amendments 39 to 41 not moved.
42: In the Title, line 6, after “aid” insert “and about payments for legal services provided in connection with employment matters”
Amendment 42 agreed.
Bill passed with amendments and sent to the Commons.
Policing and Crime Bill
Report (2nd Day)
Clause 14 : Paying for sexual services of a prostitute subjected to force etc: England and Wales
Amendments 21 and 22 not moved.
Clause 15 : Paying for sexual services of a prostitute subjected to force etc: Northern Ireland
Amendments 23 to 25 not moved.
Clause 16 : Amendment to offence of loitering etc for purposes of prostitution
26: Clause 177, page 122, line 41, at end insert—
“( ) section (Damages-based agreements relating to employment matters);”
My Lords, it is a pleasure to get to an amendment that I can move. This amendment takes us back to the question of whether children under the age of 18 should still be included in the provisions on prostitution. We had a pretty full debate on this in Committee, so I will not go back over the arguments. I will say, however, that I was very grateful for the support of the noble Baroness, Lady Hanham, who said very concisely:
“If anybody needs to be taken out of the system, it is a child under 18”.—[Official Report, 1/7/09; col. 283.]
The Minister continued to resist our arguments by saying that,
“decriminalising under-18s could risk sending out a message that we do not think it is acceptable for adults to be involved in street prostitution, but we consider it acceptable for a child or young person to loiter or solicit for the purposes of prostitution”.—[Official Report, 1/7/09; col. 286.]
His argument that removing under-18s from these provisions could be dangerous for them takes us back to the days of Dickens and is akin to saying that this would encourage the Fagins of the modern world to employ six year-olds to commit robbery because the criminal law cannot be applied to them. His argument continues at Third Reading: that what the amendment proposes would encourage pimps to seek people under 18 to sell sex because they cannot be regarded as criminals. That is not a good argument.
Further—I mentioned this in Committee but would really like to re-emphasise it—the UN Convention on the Rights of the Child, to which we have now signed up, states:
“The State party should always consider, both in legislation and in practice, children victims of these criminal practices, including child prostitution, exclusively as victims in need of recovery and reintegration and not as offenders”.
That conclusion was not come to lightly; there was substantial debate on the issues.
Our own domestic Joint Committee on Human Rights is correct that it is far more appropriate to strengthen the duties and capabilities of children’s services. In our debate the other night, we heard just how many children come from care into prostitution. I hope that the noble Baroness, Lady Stern, will refer to that in a moment. Children end up in prostitution because of the failure of institutional services, and we should not criminalise them further. I beg to move.
My Lords, I added my name to this amendment, and I am very happy to support the noble Baroness, Lady Miller. She has been a stalwart campaigner on this matter since we started our consideration of the Bill.
It is clear that a particular group of young girls—and, I am afraid, boys—are very vulnerable to sexual exploitation: young people from care, runaways from horrible home situations, and those who have been excluded from school and have nothing to do. These young people crave affection and attention. They are very needy and very sad. They do not need to be criminalised, and they do not need messages as the Government think they do. They need help and support that sticks with them, safe places to go and worthwhile things to do.
The Government’s position hinders the provision of these things. The idea that it sends a bad message if under-18s are criminalised shows the limits of their view on messages. What might seem like a message saying one thing to people in government offices in Whitehall will most likely not have been heard in the backstreets and, even if it is known, it will be understood vaguely. In the backstreets the law will be seen as a strange, external force to those we are talking about. It will certainly not seem real enough to be the determinant of what they do. So the argument about messages is unconvincing.
On the face of it, the other argument of the Government has more force, but that, too, is ultimately unconvincing. Exploiters will go for young people for a range of reasons. They are easily exploitable, but I have seen no evidence whatever to suggest that, because these young people can be arrested, charged, fined and returned to their work, exploiters are put off exploiting them. This argument is another attempt to impose the Whitehall theory on the complexity and messiness of the real world. The exploiters are more likely to be put off by very effective police work to deal with sexual exploitation of the young, which I am sure the Minister knows is done in some places extremely thoroughly with very good results and with the adequate backing of current law. I very much hope that the Government will change their mind on this matter.
My Lords, I support this amendment and I stand with the words of the noble and learned Baroness, Lady Scotland, ringing in my ears from late Tuesday evening. She said:
“What we are talking about is the abuse, degradation, humiliation and pain caused to women who engage in this activity, not because they desire it but because they are compelled, coerced and manacled in a way that no human being should be”.—[Official Report, 3/11/09; col. 244.]
If that is true of women and we substitute the word “child”, is it not all the more poignant that we should listen to what is being said?
Down the decades, I have heard the arguments that if this is removed, children would be put in greater danger. As someone who probably has worked with children as much as anyone in this House, I utterly refute that. These youngsters, as the noble Baroness, Lady Stern, has outlined—I will not repeat the catalogue she has already given—come from the most appalling backgrounds. My noble friend Lord Williamson, who is not in his place, and I had a conversation in what was our dinner break, although there has not been one for the Chamber. We talked about the glories of this House and how we sit here with all our gold. How far we are from the squalid rooms that I have seen where girls are used hour on hour. We are not talking about mature women; we are talking about youngsters who have often been prostituted from the age of 14, a point which I made on Tuesday. To say that it would give some sort of message is to forget that 75 per cent of such women find themselves in the sex trade before they are 18 years old. We have to tackle this issue not in the criminal justice system, but in the children’s system.
The Government have an exceptional programme in Every Child Matters. If every child matters, why do these children in the greatest need—both boys and girls, but particularly a large number of girls—not matter? They are abused, deprived children. By the time they get into the sex trade they are usually on drugs as well. I have to say that many of them are not what you would call nice people: they are difficult, disturbed and angry, and cause problems in a neighbourhood. But would not you if you had been used hour on hour since you were 14 years old? They have also lost self esteem, so they do not see themselves as being of any value. The criminalisation simply adds yet another layer to their lack of value. They then believe that society and the Government—I am speaking to noble Lords on the Front Bench—will not hear that what they need are good services, to be helped out of the situation and to be given a better life.
I hope that the Government will take this back and have another look at the way in which we treat these young people, who might be their daughters. You may not have read the Barnardo’s booklet on this, but these girls are all someone’s daughter. These girls and young boys need another chance and should not be criminalised or treated in the way suggested. The arguments given by the Government do not hold water. They simply add another lack of value. It is true that these are children of the darkness. I ask that noble Lords bring them into the light. If the noble Baroness goes through the Lobby, I shall be with her.
My Lords, I want to say a brief word in support of the amendment. It seems perverse that, on the one hand, we say these children are exploited by someone else—that is, they are not in that situation willingly—and, on the other hand, we criminalise them for doing something that they have unwillingly done. That is a contradiction. Therefore, if we believe that these children are exploited, they should be rehabilitated and looked after, and not criminalised.
I, too, support the amendment. Had I written a speech, most of what I would have said has already been said, certainly by people who know more about this issue than me. I was not able to be here when Clause 14 was debated. I am sorry that it is in the Bill. It is a mistake and I think that we will live to regret it. We have a chance to improve Clause 16 today. I hope that my noble friend on the Front Bench, whom I respect greatly, will listen to what is being said in the Chamber and will think again about this issue.
My Lords, I also support the amendment in the name of the noble Baroness, Lady Miller. Like my noble friend who has just spoken, I am extremely concerned about Clause 14 and think that we will live to regret it. In this case, the message is clear. We are dealing with damaged young people. On that basis alone, we should be thinking about the fact that it takes ordinary children differing times to grow up. But, my goodness, if you are damaged in the way that these children are, it will take considerably longer and, if we have to criminalise them at all, which I would not want, I would raise the age to 21 and not 18. I very much support this amendment. I fear that we have failed these children. We try not to criticise social services, which try very hard, but we have to put more effort in the preventive side of what is going on in families. That is where the effort should be.
I know that this Government have done a lot in that direction, but, alas, the priorities have now moved in different directions and are compounded by the shortage of money that we all face. I warmly support what has been said by all Members who have spoken so far.
My Lords, I understand entirely the concerns of the noble Baronesses, Lady Miller, Lady Stern and Lady Howarth, that the victims of sexual abuse are not penalised, but instead are given the support that they need, which is absolutely right. I understand also the concern of the noble Baroness, Lady Miller, that our support for international conventions is consistent with domestic legislation. However, I have not been convinced that legalising the practise of soliciting for the purposes of prostitution for children will address these concerns.
It is important to remember that we are not talking about legalising or criminalising all prostitution here. We are talking about legalising a dangerous activity for children and young adults. I agree with the noble Baroness that they should not be in that position in the first place, but we have to face it that regretfully they are. Is not the key point here that behaviour which impacts seriously on the local community is to be accepted when engaged in by children but not by adults? That cannot be right.
That said, I would encourage the Government to look seriously at the wider issue of whether the direction of their policies regarding prostitution is beneficial or not. At this point, I find them to be in a total muddle. Over the past few weeks, many of us have been talking to different groups and organisations working with prostitutes. I have been struck by the enormous variation not only in opinions on the best way forward but even disagreements over the basis of the facts and figures. These arguments over evidence simply should not be necessary. We have the luxury of numerous international examples of different approaches to prostitution, from all-out criminalisation in the United States through regulation to significant decriminalisation in New Zealand. Yet Ministers’ responses to this House and another place on the matter show no sign of a proper analysis of what has happened in those countries or any indication that the department has taken the arguments for decriminalisation seriously.
To return to the amendment, I agree with what its proponents would call a “wrong-headed” concern of the Government; namely, that under 18 year-olds being decriminalised could well lead to pimps and traffickers targeting them. I accept, as I said, that it is disputed by many, but everyone would agree that it is an outcome we would wish to avoid. I hope very much that the Government’s actions are based on real evidence and not a wish to find a convenient reason to avoid looking at decriminalisation as a serious option.
My Lords, if there were more social workers making the sort of interventions in families that my noble friend Lady Howarth has just said are so important, this would be much easier to achieve. Similarly, if there were more social workers, there would be many more foster carers because they rely on good quality social workers to support them in managing children who are often difficult because of their histories. I urge the Minister to encourage his colleagues in the important work they are doing to reinvigorate social work. If we are to avoid having children end up on the streets, it is vital that we make a profound commitment to social work by encouraging the best people to enter the profession, giving them the support they need, and remedying the situation where in some London authorities there is a 33 per cent vacancy rate.
My Lords, we begin our debates today with Amendment 26, which addresses an extremely important issue. I will try to be brief given the length of our agenda of business and the limited time available, but it is necessary to do justice to this important issue. I shall start by saying that everyone who has spoken has echoed the Government’s view on this; namely, that treating children who are loitering and soliciting for the purposes of prostitution are indeed victims of abuse. I hope to demonstrate that the Government have a holistic view, so the question that needs to be answered is that put by the noble Baroness, Lady Howarth: why do these children not matter? I hope to prove that these children do matter, and that the last thing we want to do is to criminalise them. We believe that it is our responsibility to do all we can to help children who are abused through prostitution so that they recover and can rebuild their lives. However, we are of the view that decriminalisation is not the right way to achieve this. We consulted on the issue in 2004 and as a result decided to maintain this offence then. We continue to hold that view.
We are not starting with a blank sheet of paper. As the noble Lord, Lord Skelmersdale, said, we are where we are and there is a criminal offence. The fact is that this is in statute. As it stands, the offence sends a clear message that we do not think that street prostitution is acceptable. Were we to decriminalise the under-18s, it would send a very wrong message. On the one hand it would say that it is not acceptable for adults aged over 18 to be involved in street prostitution, but on the other hand, it is in some way acceptable for a child or young person to loiter or solicit for the purposes of prostitution. It is one thing not to have a criminal offence for under-18s, but it is an entirely different thing to decriminalise an offence for those aged under 18. Retaining the offence may help to deter some children from engaging in street prostitution in the first place. We do not know the measurement of that, but the statute exists. As several noble Lords have said, vulnerable young people do not just fall into prostitution. The reality is that pimps and traffickers actively target them and draw them into a life of misery and exploitation. In many cases, these young people are already coming from a life less wholesome and complete as a result of what has happened in their younger years and the position in which they found themselves.
If we were to decriminalise in the way suggested in Amendment 26, it would simply strengthen the work of pimps and traffickers. It is naïve to pretend that they would not seek to take advantage of the fact that children could not be prosecuted if they were found loitering or soliciting. We know that these are evil people and we know also that they are clever people. They might be encouraged to send children out on to the street as prostitutes knowing full well that police powers to tackle the problem had been inhibited. I am sure no one would wish that to happen, but it could be a perverse and unintended consequence of these amendments.
Children are prosecuted only in the most exceptional circumstances; in other words, as a very last resort. For example, where support from other agencies has been made available but has not been accessed or is not effective in helping a child to exit street prostitution, the intervention of the criminal justice agencies may be vital to ensure the removal of that child or young person from a situation of danger and subsequently to ensure that they are engaged with the support services—however adequate or inadequate, as the noble Earl, Lord Listowel, suggested, they may be. Our guidance on safeguarding children and young people from sexual exploitation was updated in June of this year and published. It has been in existence for some years—since 2004—and is very clear and effective. Why do we think that? There have been only five convictions and five cautions given to under-18s for the offence. That suggests that we are not treating these children as criminals, but in the vast majority of cases as victims. In 2007, there was one conviction and one caution. Therefore, we can demonstrate that in practice this offence is used only very rarely in relation to the under-18s because in the overwhelming majority of cases these young people are treated as victims and not as criminals.
The policy is only a small element in the guidance and one aspect of our overall approach. We have taken a number of steps to help provide earlier interventions to rescue children from street prostitution. We have established local safeguarding children’s boards which are responsible for ensuring that the relevant agencies are aware of sexual exploitation in their areas and that appropriate training is made available for and given to those who either work with children or in services that affect their welfare. The boards have helped to develop strong links with the local agencies that are responsible for preventing the harm caused by the sexual exploitation of children, thereby helping to improve the level of intervention to tackle these problems at the points at which a number of noble Lords have suggested are the most effective. Practical examples can be cited, such as the Sheffield Safeguarding Children Board Sexual Exploitation Service and the Croydon Sexual Exploitation Group.
We have established strong links with important voluntary sector organisations working in the field, such as Safe and Sound Derby. In addition to the supportive and preventive work that we have helped to foster, we have been involved in significant efforts to bring to justice those who exploit children for the purpose of prostitution. These include legislative measures such as the range of new offences linked to child prostitution and exploitation which were introduced by the Sexual Offences Act 2003, as well as practical measures such as the establishment in 2006 of CEOP. It is clear from these developments that we consider the real criminals to be where they are and their victims to be in need of support.
The Government have considered fully the arguments in favour of decriminalisation and have listened carefully to the impassioned, principled and well-argued points in favour of decriminalisation made in a number of quarters. I have to say, however, that I remain unconvinced. The House has a duty not just to look at laws, but to be ever-mindful of the realities of the world and the practical impact that a change in our laws will have. We all agree that children are and should be treated as victims, but even though it may feel counterintuitive, in this instance I believe that amending the law to decriminalise the under-18s will have serious consequences for the very children that we are seeking to protect. Moreover, I have to say that both ACPO and the Crown Prosecution Service share our views on this matter. The adoption of the measures I have outlined, backed up by the criminal law and the measures we are bringing forward in the Bill, together with the absolute commitment the Government have to continuing to do all they can, is the best practical way to tackle these issues.
I hope I have been able to show that we are adopting a holistic approach to tackling the problem of prostitution among the under 18s and that the noble Baroness will feel able to withdraw her amendment. If she presses the matter, I hope noble Lords will join me in the Lobby. We care deeply about vulnerable young prostitutes and those who want to support them, and this will enable us to tackle the issue in a practical and effective way.
My Lords, I thank everyone who has spoken in the debate. I am glad to see the noble Baroness, Lady Gibson, back in her place and I hope that she is feeling better.
I agree with the noble Lord, Lord Skelmersdale, about the total muddle that the policy seems to have been in for much of the time. I agree with him also that there have been far too many arguments over the evidence for it to be at all clear from which quarter the Government have finally drawn their conclusions. That is very unsatisfactory. However, in this amendment, above all others, it is very clear.
The Minister has given a list of the initiatives that have commenced, but those are evidence of why the legislation that has been on the statute book for so long can finally be removed. It means that the Government are now in a better position to go back to the principle of using social services in the way that they should be used—provided that they are properly resourced, as the noble Earl, Lord Listowel, mentioned—and not resort to the criminal justice system.
The Minister prayed in aid the fact that very few young people have had convictions or cautions. However, if there were so few cases, the intervention services could have made a strong effort with those few children and prevented them being landed with a criminal record.
We have here an ideological divide but I shall not take more time to spell it out. I wish to test the opinion of the House.
5 November 2009
Division on Amendment 26
Amendment 26 disagreed.View Details
27: Clause 16, leave out Clause 16
My Lords, Amendments 27, 28 and 30 to 33 all question whether the clauses dealing with prostitution should stand part of the Bill. The other evening, we had a good debate on the Government’s exact position on protecting women or not protecting women. These clauses taken together make me feel extremely distressed that the Government are still going down the wrong path, although they have tabled some amendments—I am sure that the Minister will speak to them—that are a slight deviation off that path, recognising even at this stage that there might be a slightly different route to take.
Clause 16 redefines “persistently” as two times in three months. It is hard to envisage that “persistently” could be so infrequently. We have an argument with that at the outset. Under Clause 17, once a woman has been found to be in need of rehabilitation, to use the Government’s words, she will have orders requiring attendance at meetings. The issue is not that people are going to meetings for rehabilitation; if they are doing so voluntarily and they get support, that is all to the good. However, if you do not attend, penalties follow and ultimately you can be detained. We do not feel that that is the right route.
I want to spend a little time on Clauses 19 and 20, which seem to us to be going in the most dangerous direction. The clauses amend the Sexual Offences Act, which already makes kerb-crawling and soliciting criminal offences, although only when the defendant acts with persistence. Clauses 19 and 20 will remove the need for the prosecution to prove persistence; a single incident will suffice. That is most definitely an effort to make prostitution into a more criminal offence. My worry is that that alone will mean that women will seek out remoter and more hidden places where there is not only less likelihood of being caught but also, of course, less likelihood of anyone hearing your cries for help should you need to make them. We feel that these two clauses are deeply disturbing.
The other evening, the Government made much of the fact that the aim of Clause 14 is to tackle demand by men. However, when you look at Clauses 19 and 20 and all the evidence of social difficulties, you see that the problems are caused by men who persistently kerb-crawl. We believe that the emphasis in these clauses on the women is yet again a move in the wrong direction.
Finally in this series of clauses, Clause 21 deals with the closure of brothels. The Government have brought forward an amendment to try to make the situation a little more reasonable, but we feel that what is proposed is a recipe for the women operating from brothels to have every reason to fear raids by the police. A recent raid in Soho provides a good example of why this approach is difficult and dangerous and not constructive in the way in which the Minister has led us to believe the Government are trying to be.
We do not believe that this, as a parcel of legislation, moves in the right direction. I know that is too late for the Government to reconsider, but I hope that they will assess the costs of the direction in which they are heading to the women and to wider society. I beg to move.
My Lords, the noble Baroness, Lady Miller, has raised some important questions with this group of amendments. However, it seems to us on these Benches that the wholesale removal of these clauses would do nothing to reduce the incidence of prostitution. Although it has been argued by the many organisations that I have met and in the briefs that I have received that prostitution will be driven underground—indeed, the noble Baroness has repeated that argument today—I simply do not believe that to be so.
Let me spend just a moment looking at the situation in which too many of these unfortunate women find themselves. It is a revolving-door scenario. Loitering with intent leads to a fine, which is paid for by a return to prostitution, usually by going back on the streets. Clauses 16 and 17 taken together will help to break that vicious circle, which is all to the good. Clause 17, for instance, is designed to help women escape from prostitution, the causes of which are many and various. Only the day before yesterday we had a long debate on trafficking. We do not know what proportion trafficked women comprise of the whole, but we know that those in the hands-on sex trade who prostitute themselves to gain extra money might well be doing so to care for their children; there are others who are unable, for whatever reason, to get a job paying the equivalent amount of wages, maybe because of a lack of education, or it may be that they are in this work through a lack of knowledge of the social security system and what it can do for them, perhaps because they are migrants.
Over recent years the administration of benefits has, rightly, become more than just divvying out money to unemployed or disabled people. I acknowledge the tremendous effort that the Department for Work and Pensions has put in and is putting in to help people to become work-ready in mainstream jobs.
The noble Baroness, Lady Miller, does not seem to have appreciated that Clauses 19 and 20 follow a line that the House has agreed in the Welfare Reform Bill. I see nothing wrong with them.
I thank the Minister for government Amendments 29, 34 and 35. As he has said, the first of these ensures that any time spent in prison for breach of a rehabilitative order is kept to a minimum. The other two government amendments also make a small movement in the right direction, and I thank the Minister for them. Closing private premises is a controversial policy with the potential to cause a great number of unintended consequences. Ensuring that the officer in charge of the closure order takes some time to consider and avoid those problems is only sensible. My only concern is that the constable actually does stop and think. How is the Minister going to enforce that?
My Lords, I support the noble Baroness, Lady Miller, in these amendments. If I am realistic, I am not expecting them to be supported across the House but I support them because, as I have said previously, I fear that all these clauses, Clause 14 and so on, are going in the wrong direction.
I worry greatly about using these sorts of methods to compel people who are being employed or employing themselves as prostitutes to go along a more sane and sensible route to earning a living. I am all for encouraging that sort of activity and training, and I would go further: I would give financial incentives so to do and backing in that sort of way. I fear that the form of compulsion in the Bill will just lead to further problems. I expect that there will also be problems with pimps—those behind those who are already on the streets.
For those reasons, should the noble Baroness wish to test the opinion of the House, I will support her. Above all, though, I hope that this might get the Government to think again. Some aspects of what they are doing might well be counterproductive. I admire what they are trying to do; I just think that they are doing it in the wrong way.
My Lords, I thank all those who have taken part in this short debate. I particularly appreciate the contribution of the noble Lord, Lord Skelmersdale, and I shall seek to answer his point first. When closure notices come into effect, there will be guidance to the police that will ensure that what he fears will not come to pass.
I turn to the amendments in this group, including the government amendments. Amendments 27 to 33 seek to remove a number of the prostitution provisions in the Bill. We believe that they are important provisions, and I will set out in each case why we think the clauses should be retained.
Amendment 27 would remove Clause 16 and, in doing so, hinder important reforms to the law in relation to street prostitution. These reforms were identified as an action point in the Government’s co-ordinated prostitution strategy, which followed a large public consultation. The clause will remove the outdated and offensive term “common prostitute”. Respondents to the Government’s consultation paper Paying the Price, which informed the prostitution strategy, were unanimous in their support for the removal of the term from the statute, and its removal will undoubtedly be welcomed by many working with those involved in prostitution. Indeed, this element of the clause was welcomed by the UK Network of Sex Work Projects during the oral evidence sessions conducted, and is supported by the Josephine Butler Society.
I recognise immediately that this aspect of Clause 16 is not the reason behind the noble Baroness’s attempts to remove the clause, but failure to implement this change would none the less be a consequence of this amendment. I see that the noble Baroness’s main concern is the statutory definition of “persistence” that it introduces. Currently the inclusion of the term “common” ensures that prosecutions are brought only against those who have been found loitering or soliciting for the purpose of prostitution on a regular or persistent basis.
We need to ensure that the removal of this term does not have the effect of increasing enforcement action against those prostitutes involved in street prostitution. Clause 16 therefore inserts the word “persistently” so it is clear that an offence is committed only by a person who persistently loiters or solicits in a street or public place for the purpose of prostitution.
To ensure consistency, we believe that it is necessary to define “persistence”. Clause 16 therefore defines it as conduct that takes place,
“on two or more occasions in any period of three months”.
We have discussed in Committee and in another place whether that definition of “persistence” is too wide. However, we maintain that our definition strikes the right balance between providing offenders with the opportunity to change their behaviour and allowing the police to take action if they do not. Indeed, current police practice is generally to arrest a person for this offence only when they have already been found loitering or soliciting twice in the previous 12 months. Our definition is therefore likely in practice to amount to a narrowing, rather than a widening, of the current offence.
We do not think fears that this change could lead to increased enforcement against those in street prostitution are well founded. As evidenced by a decline in convictions for loitering or soliciting, current policy advocates a welfare-based approach over an approach focused solely on enforcement. Following the implementation of the Government’s prostitution strategy, which will increase partnership working between the police and voluntary organisations providing support to those involved in prostitution, there will be greater opportunities for the police to ensure that the welfare approach continues. This is current ACPO policy and will be promoted in a new Home Office circular on policing prostitution.
Amendment 28 would remove Clause 17, which introduces a new penalty for the offence of loitering or soliciting for the purpose of prostitution, building on the modernising approach that we are taking in Clause 16. The clause will provide an alternative to a fine. As the noble Lord, Lord Skelmersdale, has pointed out, too often a financial penalty can have the counterproductive effect of encouraging those convicted of loitering or soliciting to continue in prostitution in order to pay the fine.
We believe that we are introducing a more constructive approach. The order will help those involved in prostitution to address the underlying factors that cause them to continue their involvement in street prostitution and help to connect these people with the support services they need.
There are those who believe it is wrong to criminalise prostitution and those who work as street prostitutes at all. Different views on this were expressed in response to Paying the Price. However, there was no clear consensus to justify a change in the current law. Indeed, a number of respondents felt that the decriminalisation of those in street prostitution sent out the wrong message to young people about the acceptability of street prostitution; it would create a demand for sex markets and control those markets. This is why we believe that it is necessary to maintain the law.
My Lords, I am sorry to interrupt the Minister, but he has prompted a thought: when was the last time that the subject of legalising brothels came up in the Home Office?
I will take note of that question, if I may, and hope to return to it courtesy of the Box before we end this debate.
Given that we have decided to maintain this offence, it is important that we seek to ensure that it can be used constructively and that it does not exacerbate the problems that it is intended to address. It is not our intention that this should be the sole means of ensuring that support is available to street prostitutes, but sometimes criminal justice action may be necessary. When it is, it is important that the court has the option of imposing a more constructive sentence than a fine, and Clause 17 ensures that it does.
Concerns have been raised about the ability of courts to impose an order without the consent of an offender, but there may be some cases where as a last resort a level of compulsion is justified. However, we recognise that the orders are far more likely to be successful when they are imposed with a person’s consent and we will emphasise this in guidance.
The process of exiting prostitution may be long, and there may be relapses along the way. The orders are not intended to be the sole means of helping someone leave prostitution, but, in many cases, we hope they will be a start.
We recognise concerns that there are not sufficient safeguards on the police power of detention in Schedule 1. Our Amendment 29 will therefore impose an upper limit of 72 hours on the time that a person can be detained, in addition to the proviso that someone must be brought to court “as soon as practicable”. It is clear from Amendment 27 that the concerns of the noble Baroness, Lady Miller, extend beyond the period of detention. I accept that she may wish to see a more broad-ranging agenda of reform, but preventing the order being introduced will not improve the situation. It would simply allow the continuance of the current circumstances in which courts, faced with someone who has been convicted of loitering and soliciting, have little alternative but to fine them.
Amendment 30 would remove Clause 18, presumably as a consequence of removing Clause 17. Clause 17 will reduce the rehabilitation period for those convicted of loitering or soliciting for the purposes of prostitution where they are sentenced under the new rehabilitative orders. It means that, in general, those sentenced to the new orders will be required to disclose their conviction only for the six-month period following it, at which point the conviction will become spent. Six months is the maximum duration of the order. As with all spent convictions, it will remain disclosable in certain limited situations; for example, in the assessment of suitability for some types of employment. Since we therefore wish to maintain Clause 17, we also seek to retain Clause 18, which is an important element of the rehabilitative process that the orders are intended to support.
Amendments 31 and 32 would remove Clauses 19 and 20, which will replace the two existing offences of kerb-crawling and soliciting found in the Sexual Offences Act 1985 and equivalent Northern Ireland legislation. This will allow the police to prosecute an offender on the first occasion on which they are found to be kerb-crawling or soliciting, without the need to prove either persistence or, in the case of kerb-crawling, that the behaviour is likely to cause annoyance to the person solicited or nuisance to others in the neighbourhood. A number of responses to Paying the Price identified kerb-crawling as a significant problem which contributes to the existence of street prostitution by fuelling the demand and is a source of nuisance for communities affected by street prostitution. Consequently, the co-ordinated prostitution strategy and the subsequent Tackling the Demand review made enforcement against kerb-crawling a key priority in fulfilling the wider objective of tackling the demand for prostitution. The amendments to the law which Clauses 19 and 20 will make ensure that this problematic behaviour can be tackled more easily by the police, thereby sending a significant deterrent message.
Concern has also been expressed that these clauses could endanger further those involved in street prostitution—a point made by the noble Baroness, Lady Miller—forcing them to take more risks in more isolated and dangerous locations, where their clients are less likely to be caught by the police if they engender violence or mistreatment. The Government take these concerns seriously. We are acutely aware of the dangers that those involved in street prostitution face every day and of our responsibility to them when legislating in this area. But tolerating kerb-crawling will not address those dangers. We firmly believe that the most effective way of making the lives of those involved in prostitution safer is to take steps to tackle demand while ensuring that support is available to them, with the long-term aim of reducing the levels of street prostitution. Over recent years, convictions for kerb-crawling have increased, while convictions of those found loitering or soliciting for the purposes of prostitution have decreased, reflecting a shift in emphasis which we intend to consolidate.
We do not accept that prostitution is inevitable. A vital part of reducing street prostitution is tackling demand and taking more action against kerb-crawlers. Amendment 33 would remove Clause 21, which introduces a new order allowing courts to close premises associated with certain prostitution or pornography-related offences for three months. The measures will be a vital tool in helping police disrupt criminal activity and protect victims of abuse. Currently, when the police raid premises linked with prostitution or child pornography offences, they may find the premises open again for business within hours or days of the raid. While they have the power to arrest those suspected of committing offences involving prostitution or child pornography, they are able to close the premises only if they are associated with persistent disorder or nuisance or use of class A drugs. The lack of an appropriate closure power means that exploitative activities may restart as soon as the police have left. Giving the police the power to serve a closure notice under Schedule 2 to the Bill is designed to prevent that.
I understand that the noble Baroness and other noble Lords are concerned that allowing police greater powers to target off-street prostitution would be detrimental to the safety of those providing sexual services in brothels. The police will not be able to use the powers introduced by Schedule 2 to close all brothels. Instead, closure notices and orders will target particularly exploitative activities and will be used in relation only to premises associated with certain specified sexual offences. Before a closure order is made, a court must be satisfied that it is necessary to prevent the premises being used for activities related to the offences listed in Sections 47 to 50, 52 and 53 of the Sexual Offences Act 2003. Those are the offences relating to child pornography, child prostitution and causing, inciting or controlling of prostitution for gain found in that Act. The orders can be used only where necessary to prevent activities related to these serious crimes occurring.
Our Amendments 34 and 35 reflect our desire to address concerns about these orders. They add to the conditions already in the Bill by requiring the courts to be satisfied that prior to the issue of a closure notice, which must precede an application for closure order, the police took reasonable steps to identify those with an interest in the premises and gave them a copy of the closure notice.
A closure notice must be served by a police officer before an application for closure order is made at court. One of the conditions that must be met before a police officer, who must be of at least the rank of superintendent or above, can authorise the issue of a closure notice is that he must be satisfied that reasonable steps have been taken to establish the identity of persons who reside on the premises or who have control of, responsibility for, or an interest in them. The amendment would therefore impose a condition on courts to ensure that the police had properly followed this procedure. We hope that noble Lords are assured that, with that extra requirement, we will provide a clear safeguard for those with an interest in the premises, ensuring that the police take steps to identify and inform them of the closure proceedings, which in turn will give those people a chance to attend court to raise any objections to the closure order before it is made.
We believe that a number of the concerns raised in Committee and in this debate have been dealt with. Given the importance of disrupting the criminal activity that can sometimes be associated with off-street prostitution, it is vital that these new powers are granted to disrupt the exploitation and serious criminal activity that exists not throughout but certainly in some areas of off-street prostitution. Clauses 16 to 21 are important provisions that should be retained to improve our approach to prostitution. I ask the noble Baroness not to press her amendments, and I commend Amendments 29, 34 and 35 to the House.
In closing, I respond to the question asked by the noble Lord, Lord Skelmersdale. The Home Office considered the merits of a legalised or regulated approach to prostitution, including legislation on brothels, in the Tackling the Demand review published in November 2008.
I should like to add a little something. From listening to noble Lords in Committee and at this stage, I understand that there is some concern that, as the noble Baroness said, while the Government’s intentions may be right, some of their methods may prove to be wrong in the event. That is particularly addressed to the question of rehabilitation orders and how we deal with prostitution and the prostitute in relation to the law. I offer the assurance that, as soon as is practicable and meaningful, probably within two years of the commencement of rehab orders, we will conduct an assessment of the nature and impact of the current service provision for the rehabilitation of prostitutes, identify and share good practice and consider the most effective way in which to deliver services to those involved in prostitution, including what works as an effective route out, while monitoring the usage of rehabilitation orders as a means of helping individuals out of prostitution.
I hope that, when we see how this works in practice, that will reassure those who fear that, although our destination may be desirable, the route that we are taking is not the most meaningful. We believe that it is, and I commend the Government’s proposals.
My Lords, I thank the Minister particularly for the last paragraph of his remarks. The offer of an assessment at least offers some comfort to those of us who are very worried about the direction that this Bill has taken. I am grateful to the Minister for the time he has spent in thinking about these issues. The Government have come forward with three amendments. To ask me to be very enthusiastic about Amendment 29, on less time in detention, would be like asking me to be grateful for a very awful present. I am not hugely grateful because I did not like the provision in the first place. However, the provisions in Amendments 34 and 35 are much more reasonable.
We have had a very full debate on these issues over two days, and I am very grateful to everybody who has shown so much concern from all around the House. When we come back to these issues, I hope that we have much clearer evidence—and I am sure that we will come back to them. I hope that we will be in much less of a muddle, as the noble Lord, Lord Skelmersdale, described it, and that we will be able to see what reforms of the law would be constructive. I appreciate the Minister’s comment that removing all the clauses would simply revert the law to where it already is, which we do not believe is very satisfactory either. I beg leave to withdraw the amendment.
Amendment 27 withdrawn.
Clause 17 : Orders requiring attendance at meetings
Amendment 28 not moved.
Schedule 1 : Schedule to the Street Offences Act 1959
29: Schedule 1, page 137, line 22, after “practicable” insert “and in any event before the end of the period of 72 hours beginning with the time of the arrest”
Amendment 29 agreed.
Clause 18 : Rehabilitation of offenders: orders under section 1(2A) of the Street Offences Act 1959
Amendment 30 not moved.
Clause 19 : Soliciting: England and Wales
Amendment 31 not moved.
Clause 20 : Soliciting: Northern Ireland
Amendment 32 not moved.
Clause 21 : Closure orders
Amendment 33 not moved.
Schedule 2 : Closure orders
Amendments 34 and 35
34: Schedule 2, page 142, line 43, leave out “two” and insert “three”
35: Schedule 2, page 143, line 17, at end insert—
“(9A) The third condition is that the court is satisfied that—
(a) before the issue of the closure notice was authorised, reasonable steps were taken to establish the identity of any person of a description mentioned in section 136B(7)(b), and(b) a constable complied with section 136C(3)(d) in relation to the persons so identified.”
Amendments 34 and 35 agreed.
36: Before Clause 27, insert the following new Clause—
“Control of sex establishments: local authorities
(1) Section 2 of the Local Government (Miscellaneous Provisions) Act 1982 (c. 30) (control of sex establishments) is amended as follows.
(2) For subsections (1) to (4) substitute—
“(1) Schedule 3 to this Act shall have effect with respect to the licensing of sex establishments and the requirements of that Schedule shall apply to all local authorities.””
In moving Amendment 36 and speaking to Amendments 37, 43 and 54, I shall no doubt also refer to other amendments in this group. I start by thanking the Minister for giving me time to express my feelings about why these amendments are important. I am not sure whether I have convinced him, but we will wait and see. I also thank the Public Bill Office for its help in drafting very complicated amendments.
It is encouraging that the Government have listened to the long-time concerns that lap-dancing establishments were licensed under the same category as restaurants and pubs, while clearly being part of the commercial sex industry. This Bill reforms the licensing category to allow lap-dancing clubs to be licensed in the same way as sex shops and sex cinemas—as sex entertainment venues—although the proposed new description does not take into account that, in many clubs, the word encounter would have made the purpose much clearer. However, I believe that the Government’s good intentions are seriously undermined in two ways. The Bill is seriously flawed by the new licensing regime being optional for local councils, by having adoptive provisions, and by there being an exemption for those venues holding lap dancing less than once a month—that is, the occasional use exemption.
The Bill as drafted exempts from regulation premises that organise lap dancing no more than 11 times a year. The effect of this exemption is potentially far-reaching. It will make it lawful for any private individual to lay on occasional live sex shows in their own premises, be it a bar or other private premises. It would also be lawful for an impresario to tour with a troupe of performers to different venues without any need for a licence. The upshot of this exemption is that regulation will apply to proper lap-dancing venues but not to unregulated occasional venues, whether in respect of planning, public safety or the safety of performers. Nor will local authorities be able to ensure the conditions that guarantee the safety of those performers.
I believe that the Bill provides a ready-made loophole for large commercial lap-dancing agencies to create a submarket in hiring out their performers. Ironically, the exemption is not supported either by the campaigners for these amendments or by the lap-dancing industry itself—though for very different reasons. However, we believe that the exemption is completely unworkable. There is surely a better way. Paragraph 7 of Schedule 3 to the Local Government (Miscellaneous Provisions) Act 1982 already permits the licensing authority to grant a waiver, the use of which would also have the benefit of maintaining records of use. This would be far more appropriate than the exemption proposed as it would allow local authorities to consider a range of factors relating to the waiver, such as an adequacy of facilities at the venue or the character of the area.
The adoptive provisions will have the effect of preventing local people from being able to object to prospective venues. It is unfortunate that the Government have not taken note of the view of the Culture, Media and Sport Select Committee or of the petition with 10,000 signatures, both of which demanded that the community have a greater say on applications for lap-dancing clubs. I appreciate that the Government might issue guidance to local authorities but this is only guidance and can easily be ignored in some instances—as I am sure it will be—although we may well be told that that would not be the case.
First, I am convinced that stronger action is required by government in order to ensure that local authorities conduct full consultations involving not only the local community but the police and others who might be affected. Secondly, this exemption will mean that the gender equality duty can be disregarded, which is both undesirable and probably unlawful. Thirdly, the first the authority will know of a lap-dancing venue opening in its area will be when the venue has opened, and, fourthly, modern licensing legislation has tended to move away from locally adoptive legislation to national framework legislation. To create an adoptive regime in this way is therefore a retrograde step. The waiver in the 1982 Act could have covered the Government’s concerns.
I have two final points. The impact of lap-dancing clubs also extends beyond the clubs themselves. Lap-dancing clubs fuel a sexist culture in which it is increasingly acceptable to treat women as sex objects, not as people. That was recognised in 1979 by CEDAW, a convention which the Government have of course signed up to. Areas surrounding lap-dancing clubs can also become no-go areas for women, with many women and girls reporting that they feel unsafe in their vicinity.
The Lap Dancing Association—a body established in 2008 to co-ordinate industry opposition to the change of legislation, and which according to the Times has spent large sums in its fight against the reform—is wrong to refute the notion that it operates within the commercial sex industry. I believe that it is also wrong in opposing annual reviews of the licence. It has always been the case with sex establishment licences that authorities can take account of changing circumstances in any area. One year is the right period for that periodic review to take place. Surely it must be right that the public and the police are given the opportunity to raise objections after a year so that any difficulties, problems of harassment, or effects on the community can be taken into account.
If I might make a point on Amendment 47, I believe that it would diminish the legislation that we have in front of us. If this amendment became law, operators could sidestep the new legislation entirely by getting variations of their Licensing Act 2003 licence which take no account of issues such as the character of the area, the appropriateness of premises in a locality or gender equality, thus nullifying this legislation.
My amendments are supported by all the major women’s rights organisations, including Rights of Women, the Fawcett Society, Object, and by the major campaigners against violence against women, including Eaves, as well as the Equality and Human Rights Commission. Because of the strength of feeling from all sides, both outside and inside your Lordships’ House, that the Bill is inadequate in protecting vulnerable women and communities, there has been considerable pressure on me to test the opinion of the House, if not today then at Third Reading. Before I take that decision, however, I shall await the Minster’s reply. I beg to move.
My Lords, I support my noble friend Lady Gould, and am pleased to support Amendments 36, 37, 43, 53 and 54. She has already outlined the reasons for these amendments, but I will mention a few things in addition.
The purpose of the amendments is to close loopholes in the proposed licensing regime for lap-dancing clubs and to ensure a consistent approach across the country. Lap-dancing clubs are currently licensed solely under the Licensing Act 2003, and share the same licence as cafes and karaoke bars. These lax licensing laws mean that, since the introduction of the 2003 Act, it has become a lot easier for lap-dancing clubs to obtain licences and far more difficult for local communities to have a proper say in whether a licence should be given in their area. The flat exemption for all venues hosting lap dancing less than once a month will leave local authorities powerless to enforce any regulations on such events and could make it difficult to prevent the growth of lap-dancing sub-markets. Venues hosting lap dancing less than once a month are less likely to have facilities and procedures in place to protect the safety of performers, such as separate changing rooms, CCTV and security. It is therefore crucial that these venues are not exempt from the new licensing controls in order for local authorities to apply conditions that will ensure the safety of performers.
I am pleased to have added my name to the amendments of my noble friend Lady Gould. I hope that the Minister will take note of the strong reasons for the amendments, which I am sure he will. I look forward to his reply.
My Lords, we have been very well briefed indeed, not only by the noble Baroness, Lady Gould, but by Object, Fawcett and Liberty, on these provisions. Certainly, they appeal to me, not least because of the far greater choice that they would give to neighbourhoods. Why should they not have a say? They clearly have had nothing like enough say in where these clubs have been already. That is important.
It is not just that, however. Equally, this route seems to provide for not only a national, rather than local, way of sorting out an equitable approach to these things, but one with far less bureaucracy involved. The more I look at this briefing, the more I think that the Minister must be convinced by what has been said. I hope that, when everybody has finished and he gets up, there will be much praise for this idea and he will accept it as a sensible way forward. I thoroughly support it.
My Lords, I hope this speech will not be a self-indulgent meander down memory lane, but the Bill and the amendments of the noble Baroness, Lady Gould, concentrate on Section 2 and Schedule 3 of the Local Government (Miscellaneous Provisions) Act 1982, in which I take a paternal interest. In 1981 as the Member of Parliament for Soho, I wrote five sides of foolscap in my own hand to the late, great Lord Whitelaw, as he then was not, in his capacity as Home Secretary. I said that there were 164 sex establishments in Soho and that—to abbreviate my argument of long ago—unless the Government did something about it, they would spread throughout the West End, rising first to 264 and then to 364, and central London would be damaged by the expansion. I am told that Home Office officials sought to dissuade their Secretary of State from responding favourably to me because of the inherent complications. However, Section 2 and Schedule 3 of the 1982 Act were the direct consequence of the Home Secretary deciding to agree with me.
Of course, the powers were discretionary and not mandatory. The powers were left to the discretion of local authorities to take up if they wished. Many chose not to, perhaps because they simply encouraged the sex trade to enter their areas. Westminster used the powers to great effect in Soho, which became, for at least a decade, massively the beneficiary of tight controls, welcomed by residents and businesses alike. The amendments of the noble Baroness, Lady Gould, seek to make the powers mandatory, as well as to take certain other aspects out of the Bill. I understand her motivation. I have an instinctive hesitation to impose mandatory responsibilities on local authorities, having a personal preference for letting local authorities take the maximum responsibility on their own account, but I recognise that the noble Baroness, Lady Gould, is adducing arguments which would not have applied in 1982. Naturally, I have no ability to consult the late, great Lord Whitelaw, and certainly no proxy to represent his spirit, but his independence of mind in 1982 might have influenced his judgment on the noble Baroness’s issue as well.
Finally, paragraph 5(2) of Schedule 3 to the 1983 Act says:
“This Schedule applies to hovercraft as it applies to vessels”.
The noble Lord, Lord West, will know better than me whether lap dancing on hovercraft has health and safety implications.
My Lords, I pay tribute to the noble Baroness, Lady Gould, for all her hard work on this issue. Normally we would not want additional mandatory conditions imposed on local authorities, but the noble Baroness has a very good point, which is that it would be better if all local authorities, in this case, took a similar view. If, on one side, a local authority decides to do nothing and another is particularly rigorous, it will create a very difficult situation in the way that she has explained. We support her amendments.
My Lords, I also support these amendments. We have had considerable correspondence supporting them and I hope the Minister will listen.
My Lords, I have three amendments in this group, relating specifically to the transitional arrangements that the Government intend to apply to existing venues, and to the length of licence that a local authority will be able to award to a venue.
Amendment 42 was tabled in Committee. I have returned to it to allow the Minister to give us a little more detail than he elected to do then. Many owners of relevant venues are extremely concerned about their long-term investment in premises. We have heard from many in the industry who feel that the Government are being far too dismissive about the cost to owners of defaulting on loans that were taken out on the assumption that their licence was safe for several years, and the cost of being forced to convert their premises to other uses. I hope very much that the ongoing consultation on transitional arrangements will be a genuine attempt to take the industry’s concerns into account, and that any representations will be seriously listened to.
Amendments 45 and 46 go in a rather different direction from the amendments of the noble Baroness, Lady Gould. Like my noble friend Lord Brooke of Sutton Mandeville, we would prefer to see local authorities given more flexibility, not less. There will be plenty of local authorities in this country for whom these provisions will be entirely unnecessary. Even where there are some relevant venues within a local authority’s area, it is not beyond the bounds of possibility that planning restrictions and general good sense can, and do, prevail when there are no objections to their continuing. I therefore would like to see local authorities able to decide whether these potentially expensive and bureaucratic provisions are strictly necessary in their area, and whether they feel they have to go through the rigmarole of licence renewal every year.
The noble Baroness, Lady Miller, has tabled an interesting amendment with regard to exemption for infrequent use and I look forward to the Minister’s response. In the mean time, I take the opportunity to probe him a little further on the power in sub-paragraph 4 of new paragraph 2A in Schedule 3 to the Local Government (Miscellaneous Provisions) Act for the national Government to amend the monthly exemption. Under what circumstances would this power be used? Surely such discretion would be better left to local authorities, which would be better placed to know whether the current legislation was causing them problems.
Finally, I would like to comment on the government amendments in this group. The noble Lord has moved a very small way and at least has addressed the implication of contact in the term “encounter”. However, it was the reference to sex that women working in this entertainment industry most objected to. It is disappointing that the Government have not appreciated this. It is very hard not to feel sympathetic to the dancers. Since a film must show,
“clear images of real sex, strong fetish material or very strong sexual images”,
before it is considered necessary to slap a restricted rating on it and remove it to a cinema licensed under the Local Government (Miscellaneous Provisions) Act, it appears that in many cases, if the dancers were performing in a film, it would lead to, at most, an 18 certificate from the British Board of Film Classification.
Of course, not all clubs providing this sort of entertainment are safe and legal and I have to agree with the wish of the noble Baroness, Lady Gale, to improve the law to ensure that dancers are kept as safe as possible. I also agree that the location, number and type of clubs offering erotic dancing is a matter in which local communities should have a say, but I do not see how labelling dancers as sex workers will achieve either of these things.
My Lords, I thank all noble Lords who have participated in this debate and note the strength of feeling in a number of quarters on these issues. Amendments 36, 37, 43, 52, 53 and 54 seek to address issues related to the optional nature of these provisions and the exemption of infrequent events. I am sympathetic to the concerns expressed by noble Lords on this matter. However, the Government continue to believe that it is appropriate that these provisions remain optional for local authorities and that they contain an exemption for infrequent events. Keeping the provisions optional for local authorities recognises that while the presence of sex establishments can raise concerns in many communities, the issues are not necessarily relevant to all communities. A number of local authorities chose not to take action under the provisions of the 1982 Act and some local authorities may choose not to take action under the provisions of the Bill. However, I listened with care to the contributions of noble Lords, particularly those of the noble Baronesses, Lady Gould and Lady Gale. I appreciate the concern that these provisions could provide a postcode lottery for local people. Therefore, I commit to bring forward an amendment at Third Reading to address concerns regarding the lack of a statutory duty on local authorities to consult with local people on adopting these powers when they come into force. This, of course, means consulting with the police and local communities. I hope that this will overcome the fear that lap-dancing establishments can be established against the wishes of, or in ignorance of the wishes of, local communities.
On Amendment 43, we do not agree that premises which provide relevant entertainment on a one-off or infrequent basis, such as a strippergram booked for a birthday party in a pub, should be classed as sexual entertainment venues and regulated in the same manner as lap-dancing clubs that offer relevant entertainment every night, or even every week. For this reason, the exemption should remain for such infrequent events, which will continue to be regulated under the Licensing Act 2003.
Amendment 52 also appears to address concerns regarding the exemption by introducing the concept of a personal licence. However, this amendment is unnecessary and is not workable in practice. Currently, sex establishment licences, although granted to a named individual, regulate the provision of entertainment or services at particular premises. Therefore Schedule 3 to the 1982 Act is designed—as the noble Lord, Lord Brooke, said—for granting or refusing licensing and issuing of conditions based on the location and character of known premises. While the local authority could impose general conditions on a personal licence, it would be unable to impose conditions specific to a particular premises.
On the approach proposed by the noble Baroness, a person would need both a personal licence and permission under the 2003 Act if they wished to provide more than six events at premises that were not sex entertainment venues. This would be likely to cause significant confusion about which legislation was responsible for regulating the provision of relevant entertainment in these circumstances. While the Government firmly believe that the exemption for infrequent events is a proportionate measure and should remain in Clause 27, I can reassure noble Lords that should it become clear that it is being exploited in a way that is obviously against the wishes of local people, they will have the power to tighten the exemption or remove it altogether.
Amendment 42 would render these reforms virtually useless and prevent local people having a greater say in the regulation of many existing venues and other venues that may open in the future. That amendment goes even further than the changes that the industry has been calling for. It is the Government’s intention that where a local authority adopts this legislation, all venues in the area offering relevant entertainment should be regulated under Schedule 3 to the Local Government (Miscellaneous Provisions) Act 1982. The transitional arrangements mentioned by the noble Lord, Lord Skelmersdale, will set out the process for migrating existing businesses to the new regime set out in secondary legislation. In line with the commitment we made in Committee the Government are publishing a consultation on these arrangements that outlines proposals for dealing with existing lap-dancing clubs.
The Government are sensitive to the concerns of industry about the impact that these reforms may have on existing businesses. Noble Lords have expressed these concerns today and in Committee and we have met with industry representatives on this matter. However, we are conscious that the concerns of industry must appropriately be balanced with the legitimate concerns of local communities, which these reforms aim to address.
Therefore, given that we know of instances whereby under the existing regime lap-dancing clubs have been allowed to open despite widespread local opposition, we are proposing that all lap-dancing clubs be required to apply for a sex establishment licence if they wish to provide relevant entertainment. This will give local authorities when they adopt this legislation the necessary powers to deal with local concerns regarding existing businesses.
We recognise that existing businesses will need time to comply with the new regime. Therefore, we are proposing a transitional period of one year from the time that the local authority adopts the legislation. During that period, existing venues will be allowed to continue to operate under their existing permissions so that they have time to comply.
In the consultation paper, we made clear our intention that the new category of sex establishments introduced by Clause 27 will replace the existing and largely overlapping category of sex-encounter establishments which applies in the London boroughs, where they have adopted the relevant provisions. We intend to repeal the sex-encounter establishment category in its entirety, using the power to make consequential provisions under Clause 111. Clearly, we would not wish to have two definitions that attempt to regulate the same or similar types of activity in this area. The consultation will run until 14 December and we will look carefully at the responses before making any final decisions. I hope that I have explained why the Government are not able to accept Amendment 42 and that noble Lords will not move it.
The Government also have reservations about Amendments 45 and 46. As I explained in Committee, requiring businesses to renew their licences on an annual basis will not be overly burdensome or result in premises losing their licences arbitrarily. Sex shops and sex cinemas are already subject to annual renewal requirements and I am aware of no evidence that this has been problematic. It is true that, where the legislation is adopted, lap-dancing clubs and similar venues will be required to apply for a sex establishment licence and will have to renew that licence each year. The potential costs to industry are set out in the impact assessment that we have published. However, while it is right that we acknowledge the potential impact on business, we should not forget the benefits to local communities.
Lap-dancing clubs offer entertainment that is fundamentally different from that offered by other entertainment venues such as nightclubs and pubs. The annual renewal process ensures that local people have the opportunity to raise concerns on an ongoing basis and allows the process of considering a licence for renewal to take into account any changes in the context or circumstances of communities. The grounds on which local authorities can refuse to renew a licence are set out in paragraph 12 of Schedule 3 of the 1982 Act. If a local authority decides to refuse to renew a licence on any grounds, it must explain the reasons for doing so. There is no evidence that a local authority will refuse to renew a licence unless it has good reason. However, if an applicant is not satisfied with the reason provided, they can seek a judicial review. On these grounds, I hope that noble Lords will not press Amendments 45 and 46.
I will respond to a point made by the noble Lord, Lord Skelmersdale. We will consider whether to use the power to remove the exemption in consultation with local authorities. If they indicate that there is a serious problem with the exemption, we will be able to use that power to ensure that problems are not replicated across the country. I hope that that meets with the approval of the noble Lord.
The decision to change the name to “sexual entertainment venue” goes some way to meeting concerns. It would be difficult to claim that lap-dancing clubs do not have a connection with sex, at least in the male mind, in the same way that “sex cinema” and “sex encounter venue” do. However, “sexual entertainment venue” is a more neutral term that I hope will be less offensive and avoid giving the impression that sex is for sale at those venues. I hope that the amendments put forward by the Government address the concerns that have been raised by noble Lords.
My Lords, I thank everybody who has spoken today, and also the many noble Lords who cannot be here but who have indicated their support for my amendment. I regret that the Minister has not accepted it. The Government have failed to appreciate the great strength of feeling on this issue.
I accept and appreciate that the Minister has said that they will think again on one or two aspects, and will come back to the matter at Third Reading. I will read carefully what he said, because he covered many overlapping amendments in his reply. I was unhappy about the reference to creating a balance between industry and the community, with no mention of the safety of the women working in the clubs. That is a fundamental issue that the Government are failing to understand. However, I will wait and see what the Minister comes back with and hope that the provisions are as wide-reaching as we would hope.
I will not divide the House today, but that does not preclude me from doing so at Third Reading if I do not feel satisfied with the replies. I beg leave to withdraw the amendment.
Amendment 36 withdrawn.
Clause 27 : Regulation of lap dancing and other sex encounter venues etc
Amendment 37 not moved.
Amendments 38 to 41
38: Clause 27, page 24, line 24, leave out “sex encounter venue” and insert “sexual entertainment venue”
39: Clause 27, page 24, line 27, leave out “sex encounter venue” and insert “sexual entertainment venue”
40: Clause 27, page 24, line 28, leave out “sex encounter venue” and insert “sexual entertainment venue”
41: Clause 27, page 24, line 38, leave out “sex encounter venues” and insert “sexual entertainment venues”
Amendments 38 to 41 agreed.
Amendments 42 and 43 not moved.
44: Clause 27, page 26, line 5, leave out “sex encounter venue” and insert “sexual entertainment venue”
Amendment 44 agreed.
Amendments 45 and 46 not moved.
Amendments 47 to 51
47: Clause 27, page 26, line 37, leave out “sex encounter venues” and insert “sexual entertainment venues”
48: Clause 27, page 26, line 38, leave out “sex encounter venues” and insert “sexual entertainment venues”
49: Clause 27, page 27, line 32, leave out “sex encounter venues” and insert “sexual entertainment venues”
50: Clause 27, page 27, line 34, leave out “sex encounter venue” and insert “sexual entertainment venue”
51: Clause 27, page 27, line 39, leave out “sex encounter venue” and insert “sexual entertainment venue”
Amendments 47 to 51 agreed.
Amendment 52 not moved.
Schedule 3 : Lap dancing and other sex encounter venues etc: transitional provision
Amendments 53 and 54 not moved.
Clause 28 : Increase in penalty for offence
55: Clause 28, leave out Clause 28
My Lords, the amendment would remove Clause 28 from the Bill. That clause increases the maximum fine for refusing to comply with a police officer's instructions to stop drinking and/or to surrender alcohol in a designated public place from £500 to £2,500. We have listened to the concerns of noble Lords expressed in Committee about the fact that the current maximum fine had never been imposed. They are right, so I accept that the practical impact of increasing the maximum fine was likely to be minimal. Therefore, I am content that this clause be removed from the Bill. I invite noble Lords to accept the amendment. I beg to move.
Amendment 55 agreed.
Clause 31 : Offence of persistently possessing alcohol in a public place
Amendment 56 not moved.
Clause 32 : Directions to individuals who represent a risk of disorder
57: Clause 32, page 29, line 29, leave out from beginning to “for” in line 30 and insert—
“(1) Section 27 of the Violent Crime Reduction Act 2006 (c. 38) (power to require person to leave a public place etc) is amended as follows.
(2) In subsection (1)”
My Lords, Amendments 57 and 58 would allow the police to take a young person home or to a place of safety if they have been issued with a direction to leave and the police reasonably suspect that they are under 16. We have listened to the concerns expressed by noble Lords in Committee about the welfare and safety of young children issued with a direction to leave. We can all agree on the importance of safeguarding such vulnerable people. Therefore, in the light of our earlier debate, I have tabled these amendments so that when the police issue a young person with a direction to leave, and they suspect that the young person is under 16, the police will be able to take them home or to a place of safety.
Under the Children Act 2004, the police already have a statutory duty to have regard to the need to safeguard and to promote the welfare of children when discharging their functions, including directions to leave. These amendments offer an important additional safeguard to protect such children without making the power to issue directions to leave any less effective for tackling alcohol-related problems. I invite noble Lords to accept the amendment. I beg to move.
My Lords, briefly, thank you.
My Lords, my noble friend Lady Walmsley, who moved our amendments in Committee, will be particularly grateful that the Government have listened so carefully and returned with something so satisfactory.
Amendment 57 agreed.
58: Clause 32, page 29, line 31, at end insert—
“(3) After subsection (4) insert—
“(4A) A constable who gives a direction under this section may, if the constable reasonably suspects that the individual to whom it is given is aged under 16, remove the person to a place where the person resides or a place of safety.””
Amendment 58 agreed.
Clause 33 : General licensing conditions relating to alcohol
59: Clause 33, page 29, line 33, leave out “general” and insert “mandatory”
My Lords, I shall take Amendments 59, 61, 63, 65 and 105 to 127 together. Amendment 61 inserts a new clause which would mean that members of a licensing authority are added to the definition of an interested party. In particular, that would allow them to object to a licence application or to initiate a licensing review, powers which they do not have a present. That would give them more flexibility to decide what action to take against irresponsible premises locally.
During the debate on Schedule 4 in Committee, noble Lords raised concerns about the limitations on the role of members of a licensing authority. In making these changes we have listened to the concerns of noble Lords and of the Local Government Association and others throughout our consultation events held during the summer. In deciding to table Amendment 61, we have also listened carefully to the feedback at the consultation workshops held over the summer. Both licensing authorities and the licensed trade were concerned about the practicalities of imposing licensing conditions on groups of premises at once. Amendments 63 and 65 are responding to those concerns as they would remove the provisions in Schedule 4 which allow licensing authorities to impose general licensing conditions from a prescribed list on two or more premises at once where certain conditions are satisfied.
Amendments 59, 106, 108 and 110 to 127 are consequential to Amendments 63 and 65 and simply remove references to the locally applied conditions from Clause 33 and Schedule 7. Amendments 105, 107 and 109 are minor and technical amendments to the Licensing Act 2003 to take account of the Legislative Reform (Supervision of Alcohol Sales in Church and Village Halls &c) Order 2009, which has come into force since the Bill was introduced. These amendments ensure that, unless the order specifying the new mandatory conditions states otherwise, they will also apply to community premises. I believe that these amendments clearly demonstrate that we have listened and responded to the consultation response and to the opinions of those in this House. I beg to move.
My Lords, our Amendment 62 is in this group. It returns us to minimum pricing or some other way of ensuring that alcohol is not sold at such a low price as to create all the problems we have seen from vodka, white cider and so on being sold at well below cost. This amendment merely gives the interested party or responsible authority the power to apply to the licensing authority to have a licence reviewed when it believes that alcohol is persistently being sold at below cost price. I realise that at this stage of the Bill, the Government are not likely to be minded to accept this amendment, but we need to look at all the possible ways to address this issue. There is no doubt that below-cost selling is at the heart of creating a lot of the problems that we see and that we debated in Committee. I have tabled this amendment as an alternative route that the Government might like to take at some time.
My Lords, my Amendment 64 is in this group. I wish to raise concerns that have been expressed by the Central Council of Physical Recreation and by community amateur sports clubs about the likely impact on sports clubs of the schedule on general licensing conditions relating to alcohol and the associated draft code on alcohol sales. It appears that the impact will be to put further pressure on the finances of voluntary sports clubs and the goodwill of the volunteers who run them, on whom such clubs are dependant. The primary purpose of sports clubs is the promotion of sport, and all hospitality and catering income is reinvested in this purpose. The vast majority of voluntary sports clubs sell alcohol to members and guests only, primarily after sporting events. I suggest that there is no evidence of poor practice in the sale of alcohol through, for example, promotions to encourage heavy or speedy drinking, nor of alcohol-related disorder at sports clubs.
It appears that the mandatory code will place a disproportionate burden on sports clubs, which do not retail significant amounts of alcohol or contribute to social disorder. In some instances, sports clubs employ part-time bar staff, but in many instances, the operation is run entirely by volunteers. These new measures will place an additional responsibility on them, which will divert them from their primary purpose of providing sporting opportunities, and could reduce the club’s capacity to provide positive physical activity in a social environment that contributes to well-being and community cohesion.
The key points of the additional workload are identifying a representative selection of beverages, researching unit values, which are not currently provided on all alcoholic beverages and therefore would need calculation, and preparing price and unit value information. Clubs will also be required to incur the cost of producing price and unit value lists. While the additional workload may not in itself seem overly onerous, it needs to be borne in mind that this is in the context of a range of other regulatory requirements facing voluntary clubs from child protection through to the purchase of a music licence. In totality, these time and monetary costs can present a real challenge to the viability of clubs, as volunteers can be deterred by the range of tasks that often have no direct bearing on sport, and slender margins—the average surplus of a sports club is £1,300 per annum—are eaten into. Will the Minister indicate the Government’s assessment of the additional work that will arise for secretaries of voluntary sports clubs as a result of the impact of the terms of this schedule?
I appreciate that there is a need to minimise alcohol-related disorder, and that this could be an issue in high-volume drinking establishments in which it might be helpful to offer customers advice about the alcoholic strength of different drinks, but there is no evidence of a problem in sports clubs requiring this action. It would be better for club volunteers to spend the time and resources that they have to develop further the work of such clubs in the community. Bearing in mind that there are also sanctions for failing to comply, there is a real risk of deterring volunteers from operating sports clubs’ bars for fear of a significant fine—or even, at the top end, of imprisonment—rather than reducing alcohol-related disorder by applying the code to sports clubs.
Once again, it would be helpful if the Minister could say what the evidence is that leads him to believe that there is a problem with alcohol-related disorder in community sports clubs that necessitates extending all the provisions of the schedule and the code to such clubs. Are there not already measures in place for tackling alcohol-related disorder through alcohol disorder zones that are not always utilised as extensively as they might?
Amendment 64 would remove some 5,000 registered community amateur sports clubs from the requirements of the part of the schedule to which it refers and of the associated draft mandatory code of practice, in particular condition 6, as the schedule’s provisions on the supply of alcohol do not seem to be justified for community amateur sports clubs, would create further workload pressure on hard-pressed club secretaries and other voluntary officers, and would ultimately adversely affect the finances and the running of such clubs that provide a service to the community.
My Lords, there is no question that the current licensing regime is insufficient to regulate alcohol sales. You need only to go out to any number of our town or city centres on a Friday or Saturday night to see that irresponsible and damaging drinking is a serious and growing problem, but not—I agree with the noble Lord, Lord Rosser—in responsibly run sports clubs. It is inevitable that a responsible club will look after its members and police the situation to ensure that it does not lose its licence, so I go a long way in agreeing with what the noble Lord has said.
The Government cannot decide what they should do to address this problem. It is no good using a battleship anchor to anchor a dinghy—a point which the noble Lord, Lord Rosser, might have made. Over their time in government, we have seen the licensing laws relaxed to being almost non-existent, with local authorities having no control over the premises operating in their area. Now that the damage caused by policies such as 24-hour licences is being felt, the Government are struggling to come up with policies to address the natural consequences without being forced to admit that their entire licensing structure needs review.
The Government’s consultation on the conditions that might be imposed shows how little they understand the problem. It included, for example, a suggestion that retailers should use robust age-verification systems—a suggestion that rang rather hollowly with an industry that launched the Challenge 25 scheme in January, which set an industry best-practice standard that anyone who appears to be under 25 should be asked for age verification. This launch was rapidly followed by a Home Office announcement that the old system of Challenge 21 should be made mandatory. Rather than freeing local authorities to respond to the challenges that they are experiencing on the ground, the Government have removed any possibility of seeing these proposals being implemented in a proportional, targeted manner. They clearly have decided not to trust local authorities to use their discretionary powers wisely, but are resorting to top-down, centralised micromanagement.
Turning to the amendment proposed by the noble Baroness, Lady Miller, I like the amended version much more than her previous one. I agree entirely that the sale of alcohol at below-cost prices is a serious problem. If I were to quibble, it would be that the amendment does not go quite far enough, as it is Conservative Party policy that the sale of alcohol at below cost price should be banned outright. In Committee, the Minister came back with a pretty unsatisfactory response, which he has followed with a truly baffling letter.
In Committee, I was able to agree with him that cheap alcohol is only part of the problem, although I should like to point out that, as the Scottish Government have realised, it is a very serious part. What I find extraordinary is the Minister’s insistence that, although there is clear evidence of low prices being a cause of binge drinking, the recession is to be used as an excuse for not taking action. Supermarkets are in the business of making profit. If they use alcohol as a loss leader, it must be because extremely low-cost alcohol encourages people to buy other goods that they otherwise would not consider. Removing such irresponsible offers would save householders money, as well as immeasurably improving their health.
Similarly, the Government expressed concern for responsible drinkers. I agree with that concern, but we are clearly not talking about responsible drinkers; we are talking about people buying a crate of super-strength lager, or vodka, as the noble Baroness said, at rock bottom prices. How that is meant to equate to responsible drinking, I simply do not understand. The drop in alcohol prices over the past 30 years has meant that we are returning to a Hogarth-like situation where it is cheaper to buy a strong alcoholic drink than a non-alcoholic alternative. With such incentives, it is no surprise that so many people drink irresponsibly.
My Lords, Amendments 60 and 66 would remove Clause 33 and Schedule 4, which contain provisions about the mandatory code. I recognise that large numbers of retailers sell alcohol responsibly, but there are still too many irresponsible practices and promotions in operation, which simply should not happen anywhere and need to be tackled at a national level.
Earlier this year, as was mentioned by a previous speaker, we consulted on which activities should be tackled or required at a national level. We have received more than 7,000 responses and the initial findings suggest that the majority of respondents consider that these types of practices need tackling at a national level. There is also strength of feeling that the mandatory conditions need to go further than just banning irresponsible promotions, which is what Amendment 60 would limit the Bill to, and put in place national conditions that promote best practice, responsible trading and consumer choice. I will not go into detail here on what all these might be, but they are set out in our consultation. Our consultation events also highlight the concerns about local conditions, to which we have listened and responded, by tabling Amendments 61, 63 and 65, to which I spoke earlier. There is a clear need to take action at national level, which is supported by our consultation findings. For that reason, I would ask the noble Lord not to press his amendments.
Amendment 62 would allow responsible authorities and interested parties to make representations to request a licensing review if a licensed premises is persistently selling alcohol below cost. It would then also allow the licensing authority to take action against that premises, such as modifying the licence, adding conditions or even suspending or revoking the licence. This summer, we sought views on banning below-cost selling in our public consultation on the code of practice, but it would be wrong to take any action on the issue until we have fully considered the responses and the impact that such a move would have on the majority of people in this country who drink alcohol responsibly. It would be quite unfair if responsible drinkers had to pay significantly more for their alcohol because of a small minority of people who drink irresponsibly. We are doing more research into this. We need to bolster the evidence base—the noble Baroness, Lady Miller, and the noble Lord, Lord Skelmersdale, touched on this—about the impact of cheap alcohol on crime and disorder, particularly the night-time economy.
That will also address so-called pre-loading. We also need to do further work on the economic impact of action on pricing, and we will use the new information to move forward, but a lot of work needs to be done and one cannot draw conclusions from some of the evidence. For those reasons, action on pricing should not be taken in this Bill and I invite the noble Baroness not to press her amendment.
On Amendment 64, I thank my noble friend Lord Rosser for making me aware of his concerns, which to an extent I share. However, there is no doubt that in deciding whether to grant exceptions, we need to strike the right balance between not imposing unnecessary burdens on premises and not inadvertently weakening the mandatory code by creating an easy way to circumvent it. I disagree with my noble friend when he says that the code will place a disproportionate burden on businesses. The Government have not yet taken a final decision on what will be in the code precisely because we are mindful of its impacts. It is therefore wrong to suggest that the code will be costly when its content has not even been finalised and we are still negotiating and talking about it.
My noble friend says he does not believe that there is evidence of poor practice in the sale of alcohol in sports clubs. All I would say to him is that we have no evidence to suggest that all sports clubs are selling alcohol responsibly and are not causing problems. Indeed, within walking distance of my cottage in the country, there is a cricket club that does not even have a cricket square, but where one can get a drink pretty much all the time. I shall say no more than that. Given the importance of these issues, it would be inappropriate to grant any exemptions until we have had the opportunity fully to analyse all 7,000 responses, which is what we are doing at the moment.
I also have concerns about placing exemptions in the Bill as suggested in this amendment. If the mandatory conditions are to be effective, the decision to exempt certain premises should be made on a condition-by-condition basis. If the list of mandatory conditions is changed or updated, it will not always be appropriate for the same type of premises to be exempt. On that basis, I ask my noble friend not to press his amendment, and I hope that the government amendments will be accepted.
Amendment 59 agreed.
Amendment 60 not moved.
61: After Clause 33, insert the following new Clause—
“Individual members of licensing authorities to be interested parties
(1) In section 13(3) of the Licensing Act 2003 (meaning of “interested party”: premises licences) after paragraph (d) insert—
“(e) a member of the relevant licensing authority.”(2) In section 69(3) of that Act (meaning of “interested party”: club premises certificates) after paragraph (d) insert—
“(e) a member of the relevant licensing authority.””
Amendment 61 agreed.
Amendment 62 not moved.
Schedule 4 : General licensing conditions relating to alcohol
63: Schedule 4, page 154, line 26, leave out paragraph 3
Amendment 63 agreed.
Amendment 64 not moved.
65: Schedule 4, page 157, line 29, leave out paragraph 6
Amendment 65 agreed.
Amendment 66 not moved.
Clause 34 : Injunctions to prevent gang-related violence
67: Clause 34, page 30, line 5, leave out “for either or both of the following purposes”
My Lords, we move to the provisions for injunctions to be imposed on people who may be part of a gang that intends to carry out violence—in the Government’s terms. The point of Amendments 67 and 68 is to explore further the issue we touched on in Committee. The Bill provides that an injunction can be imposed on an individual for their own protection. We questioned that at the time and we were not happy with the Minister’s response. The Government are making a big departure if they impose injunctions on people in order to protect them. We have a perfectly good system of statementing people for their own protection when they are not capable of making a decision, but this is quite different, because these people are capable of doing so. Although the Government’s intentions may be good—I am not underplaying the issue of gangs and gang violence at all—that is a very big step. The nanny state is saying, for example, “I am going to look after you by confining you to your house”.
Amendment 69 is prompted by the remarks of the noble and learned Lord, Lord Mackay of Clashfern, about definitions in the Bill. He made interesting contributions about “threat of violence” and “intention of violence”. The amendment attempts to get away from the concept of violence and suggests that a more reasonable definition of “gang” might be a group of people formed for the purposes of carrying out criminal activity, which could well include violence. We are interested to explore further, even at this stage, whether the Government have got their definitions correct. We have deep concerns about this part of the Bill. I beg to move.
My Lords, I seem to have spent most of the afternoon arguing against the miscellaneous points made by the noble Baroness, Lady Miller. I am glad on this occasion to be able to support her—in part, anyway.
Notwithstanding the government amendments, for which I thank the Minister, I have a great deal of sympathy for the noble Baroness’s concerns. I agree with her that the novelty of imposing constraints on adults for their own protection makes a measure of post-legislative scrutiny a necessity. I share her dislike of the Government’s definition of a gang, although, as I said in Committee, I would prefer her alternative to specifically mention anti-social behaviour.
Those weaknesses could easily lead to two equally unattractive outcomes. The injunctions may turn out to be impossible to implement and subject to legal challenge. Alternatively, the lack of detail in the drafting of Clause 34 will tempt police forces to use injunctions inappropriately, either applying them to innocent bystanders or using them in place of arresting and then charging serious criminals who should be prosecuted for a criminal offence.
As to what level of post-legislative scrutiny would be appropriate, I do not quite gel with the noble Baroness, but almost. We all know that there is a problem with gang violence in some communities in this country and that the police certainly need the proper tools to tackle that. We want the Government to take steps to improve the provisions once any failings had become apparent, not just give up and return to the current, clearly inadequate, situation.
One year is far too little time to see how the injunctions work. Not only can they be imposed for as long as two years in the first instance, but I sincerely hope that there will not be so many taken out as to give enough examples of their operation in the first year to allow the Government to conduct a proper review. We would therefore prefer a review of how the injunctions are working after, say, three years. Such a review should be made public and laid before Parliament in order for a proper debate to be held with all the evidence to hand. With that speech, I hope the noble Baroness will feel able to give me at least half marks.