To ask Her Majesty’s Government what action they will take to make the Trades Union Congress aware of their position on boycotts of Israel.

My Lords, we discuss policy frequently with a wide range of stakeholders, including the TUC. I chair a regular meeting with TUC leaders as part of this dialogue. We agree on a great many issues, especially the need to achieve a just, two-state solution. As part of this dialogue, we have made very clear the Government’s stance on boycotts.

I thank the Minister for her response and welcome her views. Does she agree that British unions display an unbalanced fixation in calling for boycotts of Israel in the light of extensive human rights violations and occupations, including security fences, in other countries, such as Sri Lanka, Saudi Arabia, Morocco in relation to Western Sahara, Iran and northern Cyprus, which do not elicit such calls?

I thank the noble Baroness. I reiterate that the United Kingdom believes that disinvestment, sanctions and boycotts directed at Israel would be counterproductive. Isolation of Israel would advance neither Britain’s influence nor, most important, the prospects of peace in the Middle East. We continue to focus on the wider perspective, which is to continue to strive towards a comprehensive peace process in the Middle East. That includes supporting the United States in its efforts now to launch that process.

My Lords—

Would my noble friend take note of the fact that the TUC, in pursuing the difficult issue of goods produced in what we all know to be—

Oh!

It is not mandatory to give way to a privy counsellor. The TUC, in pursuing the difficult issue of goods produced in what we all know to be illegal settlements, which is what the boycott demand is all about, has begun holding informal talks—

Reading!

It is important that I am accurate.

Oh!

I wish noble Lords opposite would be more civilised and listen for a minute. The boycott demand is all about goods produced in illegal settlements. The TUC has begun holding informal talks, both with Histadrut, the Israeli trade union centre, and with the PGFTU, which is its rough parallel in Palestine. These talks cover, inter alia, the interests of the Palestinian workers in the area of the illegal settlements.

As the noble Lord is aware, the Prime Minister and the British Government have been very clear at all times on the issue of illegal settlements, which we see as an obstacle to peace. The Government are exploring the possibility of improving the labelling of produce from the West Bank. We are also working with the European Union to ensure that goods from settlements do not benefit from the EU trading agreements with Israel. We believe that this is an issue of individual choice and that all retailers and consumers should have the information that they need to decide what produce they wish to buy. I say to my noble friend that we have worked very well with the TUC on this initiative in the past and hope to continue to do so in the future.

My Lords, does the Minister accept that many, if not all, calls for boycotts of Israel reflect genuine and justifiable concern about the constant erosion of Palestinian rights in the Occupied Territories, not least the continuing expansion of illegal settlements in both the West Bank and Jerusalem in spite of President Obama’s demands that there should be an immediate and total freezing of all settlement activity?

My Lords, settlement activity is illegal. It prejudges peace talks and must be halted immediately. This includes, of course, in east Jerusalem, to which the noble Lord alluded. Israel is committed through the road map and the Annapolis conference to freeze all settlement activity, as the noble Lord suggests, and immediately to dismantle settlement outposts erected since March 2001. We raise this issue consistently with the Israeli Government. The Prime Minister stressed it during his meeting with Prime Minister Netanyahu in August and several times in further conversations.

My Lords, does the Minister accept that the sympathy and support that many of us have for the security of the state of Israel rest on our understanding that Israel is a democracy with a deep commitment to the rule of law? If we are asked, as the noble Baroness, Lady Deech, suggested, to judge Israel by the standard only of Saudi Arabia, Sri Lanka and Morocco, Israel is in severe danger of losing that moral advantage.

I thank the noble Lord and, of course, accept that many standards will be mentioned and judgments made about Israel and other countries with which we deal in this House.

At a time when joint training between Israeli and Palestinian trade unions is being fostered, is it not damaging in the extreme to engage in diatribes about boycotts?

I thank the noble Lord. It is the view of the British Government that trade unions and others are free to talk about boycotts; they are very keen to engage with us on this issue. However, we still believe that we should not focus on sanctions and boycotts at this critical time. As noble Lords are well aware, President Obama has reconfirmed his commitment to the peace process. We have hoped for many years to have a US President prepared from day one to devote himself and his Administration to the creation of a Palestinian state living peacefully alongside Israel.

My Lords, mention has been made of the rule of law.

My Lords—

We should hear from the Conservatives.

My Lords, is it really the business of this House to inquire why the TUC should take account of the protests with regard to Israel or any other member state other than our own?

My Lords, I think that we should always be willing and anxious to listen and respond to issues raised by the TUC. These issues are raised by many trade union organisations across Europe and, indeed, in the UK—by the Scottish TUC, for example. That is why we think it important to make this response.

My Lords—

My Lords—

This side.

Next Question.

To ask Her Majesty’s Government what steps they are taking to reduce the level of domestic violence nationwide.

My Lords, the Government are committed to reducing the impact of domestic violence on victims and their families. The Government’s programme for tackling domestic violence can be found in the National Domestic Violence Delivery Plan, which was published as part of the fourth national domestic violence annual report on 21 August 2009. I have arranged for a copy to be placed in the House Library.

My Lords, I thank the Minister for that response. Does he support the view that a greater focus on educating perpetrators of domestic violence is necessary to reduce the domestic violence problem? Can the Government provide additional help for setting up and supporting such initiatives?

My Lords, we take this matter extremely seriously. One of the biggest studies of violence against women and girls, following the violence against women and girls consultation, was published earlier this year. As a result, we are working with private groups, local councils and the police in a raft of areas to make progress with what is a most horrible crime. Some of the statistics in this area are quite awful.

My Lords, is my noble friend aware of the example of the charity Standing Together Against Domestic Violence? Part of its aim is to help organisations in this area to integrate and co-ordinate their work, and it has been a model for other parts of the country. Could we do more to advertise what it does to other local authorities, courts and police services? It is a very good model to follow.

My Lords, it is a very good model to follow and it is part of the package of work that is going on in this area. I think that we can advertise the charity’s work more, as there are whole areas, such as refuges, where we deal with local area agreements. For example, the amount of money funding the Supporting People scheme has gone up from £61.6 million to about £65 million over the past two years. Therefore, we are putting money into these areas but I do not think that we can be complacent. We have to do more because, as I said, domestic violence accounts for something like 14 per cent of all serious violent incidents that come into our courts. It is a very serious issue.

My Lords, the police have recently been criticised across the board for issuing too many cautions. One of the main recommendations from the Home Affairs Select Committee was that the police should not issue cautions for breaches of injunctions relating to domestic violence. Have they been so instructed and what has been the result?

My Lords, I do not believe that they have been told specifically that they are not to do that. It is very interesting that in 2003 only 46 per cent of domestic violence cases brought to court resulted in a conviction, whereas now the figure is 72 per cent. Therefore, I think that we are focusing on and pushing down into these areas. However, the noble Baroness makes a very valid point and I shall take it away and ask whether the police have specifically been told to do that. It is important that we move in that direction.

My Lords, given the important role of social workers in supporting these families and, in particular, protecting the children in them, does the Minister share my deep concern at reports today in the media that six out of 10 local authorities are having difficulty retaining their social workers—a 50 per cent increase—since the death of Baby Peter? Will he communicate to his colleagues the deep concern that social work must be prioritised still further if we are to resolve these issues?

My Lords, I can assure the noble Earl that the Government take this very seriously indeed. It is, of course, an extremely difficult area to work in, so I can understand why there is a shortage of people going into it. We are pursuing this issue, but it is worth looking at the good news and what we have achieved. We now have in place 127 specialist domestic violence courts. We were aiming for a total of 128 and we are about eight months earlier than we thought we would be. We have provided £7.8 million to roll out independent domestic violence advisers and the multi-agency risk assessment conferences. We now have 700 advisers and 200 advisory conferences. This is a huge step forward. In the past 12 months we have been able to protect 29,000 victims of domestic abuse. It is a horrible number but the fact that we are doing that is quite an achievement by the Government.

My Lords, is my noble friend aware that one woman a week in the United Kingdom is murdered as a result of domestic violence? Will he accept that in my work as the chair of the Fawcett Commission on Women and the Criminal Justice System it has been evident that the Government’s initiative on domestic violence courts, independent domestic violence advisers and sexual assault referral centres has gone a long way towards addressing the seriousness of this crime and its designation and treatment as a crime throughout our statutory services, including the police in many constabularies?

My Lords, I thank my noble friend who has put it much more succinctly than I have in my previous answers. We have achieved a great deal but that does not mean that we are complacent. There is more to do but her question shows that we are pushing in a huge number of areas. It is important that we keep doing that.

Does the Minister have details of how much domestic violence is fuelled by alcohol or drugs and whether any special response is provided for such cases?

My Lords, I do not know the specific answer to that but I would guess on my feet that it is dramatically fuelled by alcohol and drugs. We know that they have a huge impact on violence generally. I do not know the exact percentages but I shall get back to the noble Baroness in writing.

My Lords, is the Minister aware that alongside the very important work done by statutory agencies a huge amount of work on domestic violence is done by local community groups, many of which find survival difficult because of inconsistency of funding?

My Lords, the right reverend Prelate is absolutely right. Indeed, a couple of those groups have been unable to get over the bar for funding in the past year. We have not reduced the amount of funding; it is just that the demands for it are that much greater. It is an issue that we must look at as it is important to keep them fully involved.

To ask Her Majesty’s Government how many websites have been closed under the Terrorism Act 2006.

My Lords, the police’s preferred route for removing potentially unlawful terrorist content is through informal contact with the internet service provider. They are happy with the impact of this approach to date. As a result, it has not yet been necessary for them to use the formal powers given under the Terrorism Act 2006 to close any websites.

My Lords, is it not extraordinary that—after an Act was passed following the 7/7 bombings, in response particularly to pressure from Prime Minister Blair; and in view of the emphasis that the current Prime Minister puts on terrorism—according to the Answer that the noble Lord has just given, we are still allowing these websites to exist and to be the lungs of publicity for the terrorists, modified only by the judgment of someone in the police force?

My Lords, my Answer did not say that we are allowing those things to happen; we have a whole raft of measures. We are removing websites on a voluntary basis with the ISPs. We are countering them by putting our own stuff on them. We are talking to local community activists, who put stuff on the websites. We are looking at how we can filter them. We have talked to all the various providers to ensure that we do that filtering, and we have looked at reducing access in areas of search engines and in things like Facebook. We are doing a huge raft of work. Indeed, I would be embarrassed to stand here, having been doing this for two years and pushing it, to find that we had not done that. We are out there in amongst it really trading blows toe-to-toe. We are doing that and we are actually getting somewhere on this. Now, that does not mean that we do not have to keep working—it is very difficult. As we know—and this is part of the Cyber Security Strategy—a lot of this is international. A lot of this is abroad—it is carried on by ISPs abroad. We have to deal with them internationally. However, I can assure this House that we are really working hard in this area. We will jolly well get there, and we will jolly well knock them for six finally.

My Lords, can Minister say a little more about how his department co-operates with other countries which are hosting websites of this nature?

My Lords, the noble Baroness touches on something that is very difficult. We are in negotiation with a number of countries about this; as I said, the issue impinges on our whole Cyber Security Strategy. Cyberspace is global—that is one of the problems with it—and many of these actors are acting elsewhere. Finding out who has done something, finding out which server the information is on and where it has come from, is very difficult. It takes very detailed and hard work. I am glad to say that we have some of the best people in the world doing this work, but it is highly complicated.

We deal with those countries, negotiate with them and talk about these things. However, some countries are not willing to do this—it is quite difficult—which is when we have to confront the problem and approach it in other ways. But we are working with many countries and trying to get international agreements. We have managed to do that in terms of paedophilia and child pornography and we need to try to do the same in this area, but it is much more complicated. What is violent extremism and what it is allowable for someone to say involve difficult nuances.

My Lords, are some of these websites a source of information in the battle against terrorism?

My Lords, I do not think that I want to talk about that.

My Lords, my noble friend indicated that it had not been necessary to use the powers under the Terrorism Act 2006 because of the levels of co-operation and work being done with internet service providers to block access to particular sites. Is that co-operation forthcoming from all the internet service providers operating in this country, or are some providers perhaps less co-operative?

My Lords, so far, the police have not found it necessary to use what they could use from the Act. That means that they have managed to achieve what they want to achieve. It would be wrong to say that everyone is as co-operative, because they are not. There is one area of weakness that I thought someone might ask me about, and that I am not happy with. It is that because police forces are operationally separate, they have probably not recorded formally as well as they should exactly when they have shut down a site. We are in negotiations about that. When we passed the Act in 2006, we laid down a requirement to make such records, but it has not really been done. The Office for Security and Counter-Terrorism is now talking in great detail to the Association of Chief Police Officers, and the requirement will be met. We need to make sure that records are properly kept because we need to have precise facts to work on. The successes of the police forces are not being registered, and that needs to happen.

My Lords, apropos of the Minister’s last remark, did he say how many sites have been recorded as having been shut down?

My Lords, I would be nervous of giving a figure because it would be meaningless as records have not been kept by all 51 police forces around the country. That is why we are doing this work now to ensure that records are formally kept. We are talking with ACPO about the need to get the precise figures. We need statistics and figures that are meaningful and can be accepted and used within this House.

My Lords, surely the terrorism websites should be closed down by the Serious and Organised Crime Agency, not by local police forces.

My Lords, we operate in this country by letting the local police carry on and take those particular actions. SOCA is very closely involved in some of these arenas, as is GCHQ and others, but the police take the action.

My Lords, can we have some advice on websites that instruct people on how to make bombs and are, in effect, sources of information rather than terrorist websites? It is unfortunate that people can just Google the question, “How can you blow everybody up?”.

My Lords, the noble Earl identifies a difficult area. If that is tied to things that are inciting people to take action, it is much more straightforward, but it is very difficult when it is just straight information. One of the reasons I am concerned about the whole area of CBRNE—chemical, biological, radiological and novel explosive-type stuff—is that the availability of such detailed information on the internet is quite worrying. A lot of that—for example, stuff to do with biological—we cannot take off because there is no reason why it should not be there. However, it is extremely worrying because, more than ever, there is access to things that are very dangerous.

My Lords, when we use the word terrorism in this context, are we mostly referring to violent Islamism, to the jihadists, or are other sects involved when we use that word, in which case how many and to what extent?

My Lords, the word terrorism applies to a whole spectrum of people. The greatest threat to our nation at the moment, without a doubt, is al-Qaeda or al-Qaeda-inspired terrorism, but there are a number of others. I would not wish to go through them all, but all of them are monitored and have action taken against them if they are breaking the law.

To ask Her Majesty’s Government when they forecast that unemployment will begin to fall.

My Lords, by long-standing convention, the Government do not publish unemployment forecasts.

My Lords, I expected that reply, but I thought that the Minister might have taken advantage of this opportunity to welcome today’s figures, because they show a welcome slowdown in the growth of unemployment. However, does the noble Lord share the general view that the outlook for jobs remains pretty grim, especially for young people, one in five of whom is out of work? Is the main problem lack of demand in the economy or lack of confidence to invest and recruit on the part of employers?

Well, my Lords, I am pleased that I did not disappoint the noble Lord in my first response. Like him, I welcome today’s figures. The ONS figures show some progress, the ILO unemployment figure has risen more slowly than expected and there are more people in work in October than previously, so there has been an increase in employment. As for young people, that is an important matter and we do not see the challenges of unemployment having yet been fully dealt with, which is why the investment that the Government are making, particularly to help the young and long-term unemployed, is very important. It was announced today that the Future Jobs Fund has created further jobs, bringing the total of that programme up to 95,000 new jobs in our economy.

My Lords, can I tempt my noble friend to go a little further? There are not just good figures this month; it is the second month in a row when the unemployment figures have shown a trend downwards. Does he therefore welcome the fact that even the television stablemate of the Sun newspaper was referring to the figures today as being good news? This is good news in which we expect everyone to join, rather than continuing the practice of finding the bad news within it.

My Lords, as ever, I agree fully with my noble friend, but we are not out of the woods yet, which is why we continue to need to invest and why the programmes that the Government have put in place and invested in have to remain in place. If we were to remove that funding now, as some—including the party opposite—suggest, that would be the wrong choice for our country.

Does the Minister accept that we must see economic growth of 2 per cent before unemployment starts coming down?

No, my Lords, I am not sure that I accept that.

My Lords, given that unemployment tends to lag behind a recovery in the market and that almost 50 per cent of those unemployed are under the age of 26, what measures are being taken to promote youth training?

My Lords, a whole raft of measures has been taken to support young people; we will hear about some of them from my noble friend Lord Mandelson when he makes his Statement shortly. We need to put youth unemployment in context. Although it increased by 15,000 over the last quarter, there has been a 14,000 rise in the number of full-time students. If you look at the total of unemployed under-25 year-olds, which is some 943,000, you see that 267,000 of them are in full-time education. There is a shift in this cohort.

My Lords—

My Lords—

It is the Liberals’ turn.

My Lords, does the Minister accept that many people find that the scale of the Government’s response to growing unemployment, particularly growing youth unemployment, has been disappointingly small? Does he further accept that the Government would have been a lot better off spending the £12 billion that they frittered away on the temporary VAT reduction—that particularly wasteful and pointless measure—on putting in place stronger measures to deal with youth unemployment?

No, my Lords, I do not accept that. The fiscal stimulus that the Government promoted has been very important in making sure that families have more money in their budget and that the cash flow of businesses is supported through the deferral of tax payments. Those are just two of the components, quite apart from issues around stabilising the banking system, which is important in giving stability to the macroeconomic framework that needs to underpin the addressing of unemployment. We have made the right policy decisions, in stark contrast to the party opposite, which has always made the wrong policy decisions.

Given the admirably flexible response of industry in this recession in terms of switching over to part-time employment, does the Minister expect a further lag in employment pick-up as this effect unwinds?

My Lords, I said at the start that the Government do not issue unemployment forecasts. A range of different factors goes into creating and addressing unemployment. Clearly, the structure of the job market, with perhaps more flexibility and more part-time working, is a benefit as well as one of the challenges.

My Lords, while these figures are not exactly cause for celebration, would the Minister agree that they represent good news? Would he also agree that unemployment, serious though it is, has never approached the levels reached under the previous Government, when, if my memory serves me right, at least one, and possibly two, members of the party opposite were Ministers?

My Lords, I absolutely agree with my noble friend. There are now something like 29 million people in employment; at the worst of the 1992-94 recession there were just 25 million and during the 1980s recession there were 23.5 million. The unemployment rate now is 7.8 per cent. In 1992-93, it was 10.7 per cent and, in the 1980s, it was, at worst, 11.9 per cent.

My Lords, at the end of today’s Question Time, it may be useful if I draw the attention of the House to some guidance about Questions that came out of a leaders’ group chaired by my noble friend Lady Hilton of Eggardon in 1999. The report concluded:

“If two … Lords rise at once, they should be … ready to give way immediately, rather than provoke a shouting-match, which is undignified and wastes time. If the Leader rises, other Lords should sit down at once”.

That the draft regulations laid before the House on 13 October be approved.

Relevant document: 22nd Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 9 November.

That the draft order laid before the House on 19 October be approved.

Relevant document: 23rd Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 9 November.

My Lords, with your Lordships’ permission, I would like to make a Statement on our policies for skills and their role in our future economic growth.

An active government approach to equipping this country for globalisation means making sure that we have the skills that underwrite the industries and jobs of the future. That means skills for the high-tech, low-carbon, more high-value-added sectors that drive the growth that underwrites everything else we want to achieve as a society. These skills are becoming more sophisticated and even more vital.

I also start from the position that skills in our society must always be an individual’s ladder up. That is why the skills system also needs to mesh with our university system. We need schools and colleges to make a strong vocational offer that leads to a clear vocational route from apprenticeship to technician to foundation degree and beyond. Equipping unemployed people with the skills that they need to get jobs in key sectors will be essential to a strong recovery, and let us remember that by equipping more of the domestic population with the right skills to compete for jobs we help employers to become less reliant on migrant labour.

Addressing these skills challenges has been the focus of our skills strategy in recent years, and remains the foundation on which our new policies build. We recognise that skills have historically been an area of British competitive weakness. Since 1997, we have made real progress in tackling the economic and social scandal of adult illiteracy and innumeracy. We will not abandon our promise of basic skills for all.

We have eradicated much of the poor quality that blighted our further education system. We have transformed workplace training through Train to Gain, which has trained more than 1 million employees and helped them to get on in work. We have revived apprenticeships, which were allowed to wither away in the 1980s and 1990s. The Apprenticeships, Skills, Children and Learning Bill, which received its Third Reading in this House yesterday, will ensure that this progress is sustained.

This skills strategy builds on the progress that has already been made. It reflects some important decisions and marks a radical shift in the balance of our skills priorities. It reflects the world in which we find ourselves: a world in which higher-level skills have never been more important to our growth, and where the skills challenge has to be tackled within more constrained resources.

We have made some difficult choices. The crisis help that we targeted to help to counter the effects of the recession will progressively be refocused on the skills that we need for a sustained recovery. We have taken three key decisions. First, we will change the focus of our skills system so that a new premium is put on higher skills, especially the technician skills that are the foundation of high-tech, low-carbon industry. Secondly, we will empower learners through more choice and better information to drive up the quality of the system through skills accounts. Thirdly, we will dramatically reduce the number of publicly supported bodies delivering skills policy, working with the UK Commission for Employment and Skills to reduce them by more than 30. These choices will target public investment at the most relevant skills for the future at the highest possible levels of quality and marketability.

The first of these decisions reflects the need for a new focus on the skills that we need in the laboratory, on the high-tech factory floor and in the computer facility. We will create a new, modern class of technicians—something that has long been identified as a gap in our labour market. To build this technician class, we will further expand the apprenticeship system by creating 35,000 new advanced places for those aged 19 to 30 over the next two years. The aim of creating this technician class will also be aided by the new generation of university technical colleges, the creation of which we are supporting.

To turn these apprenticeships into potential ladders to university, from 2011 all apprenticeship frameworks at levels 3 and 4 will be required to have UCAS tariff points just like A-levels, so that holders can apply for and make their way into university if they so choose. We will also commit to the recommendation of Alan Milburn’s Panel on Fair Access to the Professions that we should create an apprenticeship scholarship fund that will provide one-off bursaries of up to £1,000 for 1,000 apprentices entering higher education every year.

We will take a more strategic approach to the skills we fund. That means prioritising strategic skills in key industries such as advanced manufacturing, low carbon, digital technologies and biosciences, and in important growth sectors such as healthcare. Our decisions in the next bidding round of the national skills academies programme will reflect these core national priorities.

The second of our decisions is to increase the power of learners to drive up quality in the skills training sector by giving them more choice over where and when they train and better information on how to exercise that choice. To give effect to that greater choice, we will set up new skills accounts which will enable students to shop around for training, backed by good information on how well different courses and colleges can meet their needs. Critically, we are going to more than treble the number of public and private institutions where accounts can be used to over 1,500, creating not only new options for learners, but also a big incentive for providers to design courses that attract students.

The FE sector has made significant strides in improving the quality of its provision over the last decade. Many of our colleges are performing at world-class levels and overall success rates have increased by over 40 per cent in the last 10 years. We will build on this by providing progressively greater autonomy to colleges that demonstrate teaching excellence, but also by cutting funding to low priority and poorly provided courses. We will invest in the courses that employers judge are in line with their needs and requirements.

Finally, we have decided to simplify the organisational clutter of public bodies delivering skills policy. We welcome the recommendation of the UK Commission for Employment and Skills to reduce the number of separate publicly funded agencies by over 30 and will work with them and others to make this happen. Our new model will make the regional development agencies responsible for leading the regional skills strategy in each area, working in partnership with local authorities and others.

This skills strategy shares its fundamental challenge with our recent higher education framework. They must equip our people to prosper in a globalised knowledge economy. They must contribute to our return to sustained and sustainable growth. The goal of this strategy is a skills system defined not simply by targets based on achieved qualifications, but by “real world” outcomes: relevant, quality skills with real market value. It will be driven by the realities of a changing global economy and by demand from the British businesses and individuals who have to prosper in that economy. The clearer that demand is, the better the system will work.

Our expectations of business will rise. We will strengthen the role of employer-led sector skills councils and business-led regional development agencies in shaping an excellent supply of courses and training designed in direct response to local and national employer needs. But we will also expect businesses to make a greater contribution to the funding of skills training for their workforce. We need a culture in which all employers take the view that the skills of their staff are one of the best investments they can make. Our ambition is that, thanks in large part to the innovations in this strategy, three-quarters of people should participate in higher education or complete an advanced apprenticeship or equivalent technician-level course by the age of 30.

This strategy empowers the further education system above all to compete to meet the needs of businesses and learners. That will put further education where it belongs; right at the heart of the knowledge economy and at the heart of our recovery and our future prosperity. I commend the Statement to the House.

My Lords, I draw attention to my interests as declared in the Register, in particular to my role as non-executive chairman of McDonald’s Education Company. I thank the First Secretary of State, the Secretary of State for Business, Innovation and Skills and the President of the Council for his Statement on the Government’s intentions regarding skills, and for his clear recognition that investment in skills is a vital part of rebuilding this damaged economy and aiding recovery for our country.

Skills, of course, are also a means of addressing social inequalities; they can act as the magic bullet to create improved social mobility. Only yesterday, in a remarkable speech honouring the memory of that fine journalist, Hugo Young, David Cameron pointed out that,

“while people with good skills are able to benefit and indeed those who can best capture the opportunities of globalisation see rewards that are off the scale, those without are increasingly shut out of the global economy”.

We had been led to expect renewed ministerial commitment to skills after a spokesman from the noble Lord’s department, who spoke on Saturday night and was reported in the Observer on Sunday, said that:

“The skills sector has received record investment in recent years and we will shortly be publishing the skills strategy setting out our long-term plans for investment in skills to contribute to the future growth and success of the UK economy”.

After such a build-up, was that really it?

In the DBERR paper New Industry, New Jobs, published in April this year, one senses the influence of the First Secretary of State—he is fond of new titles, too—when he remarked that:

“We have maintained investment in the UK’s infrastructure and public services, vital for families and for businesses. Underlying these decisions is a core judgment that despite the tough times, it is better to keep investing in growth and jobs so as to speed recovery and build the manufacturing and services we need for the future”.

In the light of such reassuring words it might have seemed to the more trusting among us that we had little to fear and much cause for optimism. Yet, despite these warm words promising investment and concentration on skills, we were informed about some documents at the weekend which appear to adumbrate a gaping chasm between the Government’s rhetoric on skills and their intentions on delivery.

Last Sunday, the Observer obtained papers which showed that, rather than commitment to the skills sector, the Government appear to be planning dramatic cuts, including cuts to front-line services. Skills, too, are falling victim to the Government’s economic mismanagement. Apparently, preparations are currently being made for some £340 million of what are euphemistically termed “efficiency savings” in 2010-11. The First Secretary of State owes us an explanation. These cuts are planned for services on which the Government had specifically said they intended to focus. Exactly what are the noble Lord and his ministerial team planning?

We see, for example, investment for apprentices over 25 may well be cut by 10 per cent, in an area in which the Government have specifically promised to concentrate investment. We also learn that the number of career development loans will be halved and that £25 million may well be cut out of the new Adult Advancement and Careers Service. These areas are vital for adults wanting to re-skill or develop skills in order to maintain employment in a difficult economic climate. Something does not quite tally. It appears that this country is in danger of believing in reassuring promises which are not backed up by real commitment and investment. We are told, and it has just been repeated, that the Government have recognised their commitment to skills, but the facts do not back it up.

At a time when help to skill and to re-skill is needed most urgently, this is disappointing, damaging and inadequate. Of course, we welcome some of the proposals announced today. In particular, we welcome any measures that will improve flexibility in training and bring greater focus on individuals and their specific needs. As the First Secretary of State is no doubt aware, proposals moving in a very similar direction were set out in the Conservative Party’s excellent Get Britain Working. I would offer to send the Secretary of State a copy of this report but, as he has included several of the proposals in his Statement, it would appear that he is already aware of it.

I am delighted to see in his place the noble Lord, Lord Leitch, who published an excellent report in December 2006. However, we have been waiting three years for a clear plan of action in response to that excellent report. I am not sure what today’s Statement adds to the document entitled World Class Skills, which was published in July 2007 by the then Department for Innovation, Universities and Skills and which was notoriously high on aspiration but low on detail. We have just had official figures from DBIS; statistical first release shows that in the fourth quarter of the academic year 2008-09, the number of young people starting new apprenticeships was 36 per cent lower than at the same time last year. Between October 2008 and October 2009, the number of new apprentices has fallen by 20,000. I hope that the First Secretary of State will acknowledge that those statistics demonstrate a very worrying trend.

It does not help that this Statement is being rushed out on the day before the House is prorogued at the end of the Session, following hard on the heels of the higher education funding review and framework. The Government have delayed their response to the challenge set by the excellent Leitch review too long, and incalculable damage has resulted. In the three years that we have been waiting, we have seen the number of 18 to 24 year-olds not in education, employment or training—the so-called NEETs—rise to a record 835,000. We have seen unemployment figures soar across the board. On this of all days, it is surely poignant but also appalling and unacceptable that we should contemplate now the possibility of another lost generation of young people.

Some of these recommendations are welcome. As I say, they are ones that we recommended. Others should be subject to serious examination and scrutiny, but overall they are too little and too late.

Finally, does the noble Lord acknowledge that the very real figure that has been published today is the one relating to the number of young people out of work? Despite the sort of commitments being laid out here today as an attempt to deflect attention from those figures, and the all-too-real impending cuts to the skills sector, it will take more than smoke and mirrors to build a world-class high value-added skill-based economy here in the UK. I hope that the noble Lord understands why this Statement leaves me full of misgivings.

My Lords, from these Benches I also welcome the Statement and I thank the Minister for giving it to us. We share with the Minister the view that the role and importance of vocational skills have been consistently underplayed in this country and that more needs to be done to persuade young people—and older people—of the value of such training, particularly the value of progression within vocational training. We are delighted to see the emphasis on the higher-level technician, from foundation to degree level, emphasised in the Statement. As a member of the Skills Commission, which published earlier this year its inquiry into progression from apprenticeships, I fully endorse and appreciate that. It is vital that these young people are given aspirations to higher levels of training.

We also welcome the creation of the 35,000 new apprenticeship places for 19 to 25 year-olds, particularly for the advanced apprenticeships to level 3 and, I hope, level 4. We support the creation of university technical schools that the Government have begun to back through the academy programme, which mirror the German technical high schools. That is an area we need to explore further and we shall look with interest at how those schools progress. In particular, we enthusiastically endorse the re-emergence of individual skills accounts although we have some questions that I will put to the Minister about those.

I have a number of questions about the Statement. In the first place, as the noble Lord, Lord Hunt mentioned, it comes at the same time as rumours of a substantial cut in skills funding. The rumour is of a cut of £340 million in the skills budget, of which £100 million would be cuts in various quangos, including such bodies as the Learning and Skills Improvement Service. Some £250 million will come from the skills budget itself. Will the Minister tell us a little more about those cuts? In the Statement he said:

“We will not abandon our promise of basic skills for all”,

but are the Government cutting the basic skills programme for numeracy and literacy?

What about the ring-fenced or safeguarded adult learning budget of £210 million? There are rumours that that will be cut yet it is an essential part of the broader provision of adult education services in this country. It is the remnant of what was a much larger programme at one point and it has been under threat for a long time. His right honourable friend in the other place, Mr Denham, earlier this year granted a reprieve and regarded it as a safeguarded budget, but what has happened to that budget?

Am I right in thinking that, as far as the department is concerned, there is a switch of this money from further education to higher education? The projection of funding in the annual report 2008-09 for what was DIUS indicated that, whereas the higher education budget would actually increase by some £300 million, the further education budget would be dropping from £300 million. Is that what we are now seeing? Is that actually because the Government have overshot in terms of projecting university numbers and underestimated numbers in vocational training?

The Minister talks about a dramatic reduction in the number of public bodies in this area following the UKCES report. I was delighted to hear that, but we have just passed the Apprenticeships, Skills, Children and Learning Bill, which trebles the number of quangos in the apprenticeship area, so it seems odd that the Government are now talking about a reduction. I notice in the UKCES report that among those that were questioned were the RDAs. However, since the Minister is reinforcing the RDAs I take it that they are not going to be culled, so which bodies will be? It has been mentioned that there will be a concentration of the sector skills councils. Is it really sensible for there to be an amalgamation just after those councils have been through a process of reaccreditation and where the industry and employers are happy with the representation that they have?

The Minister talked about a more strategic approach to skills in particular areas such as advanced manufacturing, low-carbon technologies, digital technologies and bioscience, but I remind him that cultural and creative skills is the fastest-growing area in this country. It now contributes 11 per cent to GDP and its growth rate is 9 per cent. There are many jobs in this area that cannot be filled by universities such as Bournemouth University, which has specialist programmes in this particular area. Is he considering putting the emphasis on this area as well?

It is excellent to hear that skills accounts are going forward, but what form will they take? The Minister spoke of trebling the number of public and private institutions that will accept credits. Which institutions are these, what form will the accounts take and how will they be credited?

Finally, the Minister talks in paragraph 20 about the FE sector providing world-class skills. Will he congratulate the team who went to WorldSkills at Calgary this year and came back with eight gold medals, seven silver medals and five bronze medals? WorldSkills is scheduled to take place in the UK in 2011, when we will hope to match our success at the Olympics the following year.

My Lords, I straight away join the noble Baroness in congratulating the team at Calgary—she is right to draw attention to their success. I thank her in particular for the welcome that she has given to the new skills strategy and the way in which she at least has addressed the proposals contained in the strategy, rather than offering what I hope the noble Lord, Lord Hunt, does not mind me saying was a broad-brush, rhetorical dismissal of what the Government are announcing today. I hope that it was not because I failed to give him the Statement sufficiently in advance for him to read it. If that is the case, I will remonstrate with my private office.

I also say to the noble Baroness that we have no intention of reducing the fund that we are making available for training unemployed people and any other needy and vulnerable groups in society, including those with learning difficulties and disabilities. We recognise the important part that informal adult learning plays in society and we will continue to support informal adult learning opportunities for vulnerable, low-skilled adults.

The noble Baroness and the noble Lord, Lord, Hunt, should not, I am glad to say, get carried away by anything they read in the Sunday newspapers. The savings target referred to in the rather hyped piece of virtual journalism was made clear by the Government in April at the time of the Budget, and in May in a public letter from my predecessor, John Denham, to the Learning and Skills Council. In implementing the changes, there will be no reduction in apprenticeship numbers or provision for needy and vulnerable groups in society. In fact, those are increasing. The noble Baroness and the noble Lord should not worry. We will fund the commitments that we are announcing today by progressively refocusing money from lower priorities.

I say to the noble Baroness that I am responsible for 19-plus provision. That is the context in which we are talking about sweeping away what I call the cluttered landscape of public bodies that are responsible for delivering our skills. The noble Baroness asked about cultural and creative skills. In many respects these are quality, value-adding skills that are essential for many of the new jobs that are being created in growing sectors of our economy. Where these are linked to employers’ and businesses’ demand for skills, we would like to see the number of those courses increased.

In respect of skills accounts, the information that the noble Baroness asked for is in the Statement. Our desire is to see public money following individual choice and going to courses and institutions that are providing the very skills and training that are needed and demanded by people.

I return to the questions of the noble Lord, Lord Hunt. We are certainly not abandoning the ambition in the proposals set out by my noble friend Lord Leitch that we should be a world leader in skills through the creation of a truly demand-led system and that we should integrate employment and skills services. We are on course to meet, or nearly meet, most of our interim targets for 2011, based on my noble friend’s report, but we are behind on higher level 3. We need to do better there if we are to sustain recovery and return to growth. This historic gap in intermediate skills has led us to expand advanced apprenticeships as part of creating a modern technician class.

Lastly, in response to the noble Lord, he played on today’s unemployment figures, particularly those relating to young people. Of course, any figures of that kind are disappointing and a cause for concern, but unemployment among 16 to 24 year-olds has not hit the 1 million that many people predicted; it is broadly—I repeat, broadly—unchanged. This is due not least to the guarantee offered by the Government to all 18 to 24 year-olds. The figures show a significant increase in the number of young people in full-time education, which indicates that the Government’s guarantee is working.

As for the noble Lord’s commendation of Mr David Cameron’s “remarkable” speech last night, the last time that we heard a Conservative Leader of the Opposition pronouncing that government is the source of all our problems in our economy and society, and that the way to cut poverty and unemployment in Britain was to cut back government, poverty and unemployment soared to record levels after Mrs Thatcher came into office. I do not think—once bitten, twice shy—that anyone will be wanting to follow the advice and contents of Mr Cameron’s “remarkable” speech.

My Lords, I was about to welcome what the Secretary of State said, apart from the last few sentences. I welcome the Statement. I wish only that it could have been made five or six years ago. If it had, today the Government would not have to announce an unemployment rate among young people of 19.8 per cent. In particular, I welcome the Government’s support for university technical colleges, which is the type of school that I and Ron Dearing, before he died, had been promoting. Technical and skills training must start at the age of 14. That is the key element for turning us into a skills-based economy. These colleges are for 14 to 18 year-olds.

Finally, the past 25 years has been a golden age for further education, under both his Government—I recognise what has been spent—and the previous Conservative Government. However, the handbrake is on in further education; many fine colleges, such as Lewisham College, cannot expand. In the noble Lord’s talks with the Chancellor—it is rumoured that the Chancellor listens to him—can he ensure that in the expenditure programme for the next two years the budgets and programmes for FE are not cut?

I am grateful to the noble Lord for his remarks. I know that the Chancellor of the Exchequer is personally and strongly committed to skills training and the FE sector. I am absolutely sure that he will do everything he can to protect these sectors.

The noble Lord and the late Lord Dearing have championed university technical colleges. I am determined for the Government to do what they can to support their creation. They will offer new opportunities for 14 to 19 year-olds to undertake vocational and applied study. That is important because, as the noble Lord has argued, 14 is the age at which to capture young people’s interest in continuing vocational education in many cases and not 16 and beyond. It is also important to ensure good progression, where it is desired, from university technical colleges to other routes of study, including advanced apprenticeships and foundation degrees.

My Lords, I join those who have welcomed the Statement. I speak with a declared interest as chancellor of one of the universities that has an active policy of seamless transfer from technical colleges. Having spent most of my life in the manufacturing sector, I welcome the Statement’s recognition that our training and skills must continue to evolve to meet the challenges of the new industries; for example, the carbon technical sector, as we seek to ensure that our environment is protected. It is a new sector that demands new skills and sets new challenges, and we need the training to deliver it.

It is important to ensure that our skills base as it evolves is ready to deliver transferable skills, because transferability is a key element in maintaining skills to meet tomorrow’s challenges. Will the Secretary of State and the department consider encouraging employers to have annual skills audits so that we can keep abreast of the demands involved?

What progress, if any, is being made to unblock the capital budgets of the technical colleges, which are raring to move forward so that we can deliver on the aspirations and needs of our economy and secure Britain’s competitiveness?

I thank my noble friend for his encouragement and for what he said about the value of training and the need for investment in skills by government and employers alike, especially transferable skills. That will be one of the key features of the new technician class of advanced apprentices that we are seeking to promote. I take my noble friend’s point about the need for capital expenditure. We are always seeking to unblock and increase this, even at times of constraint in public finance. It is right, as my noble friend emphasised, for the Government to focus support on the areas of the economy that will provide future growth and jobs. It is not about picking winners and losers, but about developing the skills that we need for the economy to succeed. It is about equipping people with the skills that they need in the key, high-potential areas of the future so that, just as my noble friend said, Britain remains competitive and the people participating in that success are able to command the sort of well paid jobs to which they aspire.

I thank the Secretary of State for today’s Statement about skills. It is important to emphasise this field and I very much agree with what has been put forward. Will he consider one area which is of concern—that is, careers advice? It should be ensured that careers advice is top-rate in both schools and jobcentres. Perhaps the Minister will look into this. I give just one instance. Last week community groups came to the Palace of Westminster to talk about their experiences. I know that it is unfair to pick one quote, but it was representative of what a number of people said. A male jobseeker who is on jobseeker’s allowance said:

“I don’t see the use of Job Centre Plus. They just look at jobs you’ve been applying for and that’s it, you’re done in 5 minutes. They’ve never given me advice about apprenticeships or stuff like that. I want to do something with my life”.

I know that attempts have been made to improve careers advice, but could the Secretary of State look again at this very important area, particularly in schools but also in jobcentres? If people have a bad experience there, they get discouraged and do not feel that they can advance, either through skills or jobs.

The noble Lord is absolutely right to place this emphasis on careers advice. Two sorts of information, advice and guidance, are needed. The first relates to the individual’s aptitudes, potential and ability to aspire to different sorts of vocational work and careers. The other is the sort of information that they expect to get about different courses, colleges and the opportunities that are available to them. That, too, I am afraid, has been lacking in the past. By giving learners greater power to choose among courses, we also expect to see the quality of those courses rise. We want individuals to become well-informed, active consumers of what is available from the system, so as to drive improvements in what providers offer. That is why all colleges and learning providers should provide quality-assured data about performance at individual course as well as institutional level, so that people can not only receive careers advice, but make informed choices about the courses of training or education that they are able to follow.

My Lords, in welcoming this report, I ask the Secretary of State about those who are now at the bottom of the group of young people who previously would have gained a great deal of help and expertise, but who are being lost because there is now above them another layer of young people who are benefiting from many of the schemes. I mention in particular those in schemes run by the European Social Fund, for example, and schemes run by voluntary and other non-governmental organisations. I have not heard the Secretary of State mention non-governmental organisations at all in terms of giving employment help to these young people. This is the group that, when numbers increase, is much more likely to fall to the bottom of the pile. It is the group that will become criminals and fail in their families. Previously they have benefited from these schemes. Is the Secretary of State aware of this and will he take note of this group’s needs?

I am grateful to the noble Baroness for making that point; it was remiss of me not to make it myself. She is absolutely right. We value the important role that voluntary third-sector organisations play in the delivery of quality learning and skills. A whole host of organisations comes to mind. I cannot name them all. This is important; I agree with the noble Baroness on this. In our response to young people’s needs—and certainly in our response to those young people who, through no fault of their own, have become unemployed—there is no “one size fits all” solution. There has to be a mosaic—a plurality—of opportunities, placements, work experience, training and educational opportunity, many of which are better delivered by non-statutory bodies, not least because they reach out to, and recruit, young people from communities and parts of communities which government and statutory organisations are less successful in operating. She is absolutely right about that.

My Lords, I endorse the point made by the noble Lord, Lord Cotter, on the crucial importance of careers advice, to which the Secretary of State responded very favourably. As I am sure he is well aware, the new engineering diploma for 14 to 19 year-olds has got off to a very good start. However, it is depressing to read the following in the Institution of Engineering and Technology’s report on the diploma’s first year. The report states:

“Careers education and guidance must improve in quality and quantity, in line with the increased … options available to students following the introduction of Diplomas”.

Of course, that is the responsibility of another department—the DCSF. I hope that the Secretary of State will use his influence to see that this is done because if students do not know what the options are, they will not end up with the right training, the right skills and, eventually, the right careers.

I wish to mention one other matter. I declare an interest as the honorary president of the National Skills Academy for Nuclear. The sector skills councils vary enormously in their competence and achievements. I would not have accepted that post if I had not been entirely satisfied that the NSAN comes right at the top of the league. However, a lot of them do not. When the Secretary of State talks about getting rid of some of the clutter, is he indicating that there will be a substantial rationalisation of the sector skills councils, so that those which are not making progress and have lost the confidence of employers will disappear and their functions will be taken over by those which can properly claim to be employer-led? Some of them have told me very firmly, “Yes, publicly we say we are employer-led, but in fact we are not; we are led by the Government”. That is not a successful recipe.

I am grateful to the noble Lord, Lord Jenkin, for his comments, which I found very educative. I will now train my sights rather more on the sector skills councils than perhaps I might have done otherwise. I do not know how substantial a rationalisation is justified or possible. It is very important for us to work with the UK Commission for Employment and Skills and employers on such a rationalisation. It will receive both my energy and that of the relevant Minister in my department.

My Lords, I join many other noble Lords in welcoming the Statement. I follow the comments of the noble Lord, Lord Jenkin, on sector skills councils. However, I share my noble friend’s disappointment at the broad-brush response from the Conservative Benches. That does not do justice to noble Lords who sit on those Benches and who made many important contributions on the apprenticeships Bill. The comments of the noble Lord, Lord Hunt, were extremely disappointing given that he is part of that ongoing discussion. I welcome the view on the sector skills councils that is expressed in the document. As the noble Lord, Lord Jenkin, said, it reflects the fact that employer engagement to the level that is required is not achieved by all the sector skills councils. The emphasis on sector skills councils working with the regional development agencies addresses both strands of employer engagement. Organisations that are sectoral across the country need that sectoral approach, but they also need the regional development agency approach in addressing what is happening inside each region. Therefore, I share in welcoming the report, which simply balances what we are already doing. Despite the view that we are not doing very much, we are now doing lots and lots with regard to the skills process.

I am grateful to my noble friend. Key to a more intelligent skills system is ensuring that providers deliver the skills prioritised by their employers and learners. This system has to work in a way that relates not just to sectors but to local and regional labour markets. That is why we have tasked the regional development agencies with producing regional skills strategies, working in partnership with local authorities, sector skills councils and other local partners such as local employers. I will have early discussions with the RDAs and employer organisations to ensure that we see proper engagement with the sector skills councils in order to reduce their variable performances and achievements.

Will the Secretary of State take advantage of this Statement, which I welcome, to confirm that there is a United Kingdom dimension to all this and that there will be proper consultations with the sister legislatures in other parts of the United Kingdom about the deployment of the policy? As a non-executive director of the Wise Group in Glasgow, which is a service provider under the Flexible New Deal, I also ask him whether he agrees about the importance of integrating skills with other departmental programmes, such as the Flexible New Deal, and collaborating with colleagues in education, the Treasury and elsewhere? We need proper integration so that people who work on schemes such as the Flexible New Deal can take advantage of some of the important announcements that he has made this afternoon.

The noble Lord is absolutely right. We obviously have to talk to our colleagues and co-ordinate everything that we do so that we can tie in the experience of governing authorities in Scotland, Wales and Northern Ireland, and I assure him that we will do that. We have to ensure that in no part of the United Kingdom are people any worse off due to a patchy framework of provision. We want to see all providers, even the good ones, rising to the standards of the very best, and that is what we will seek to encourage.

My Lords, I did not have the advantage of seeing the Statement before hearing it from the Minister, but I thank him very much for what he said, particularly about the opportunities for those with learning disabilities and others. However, a number of us in this House are concerned that at the end of the discussion on the Apprenticeships, Skills, Children and Learning Bill last night there was a danger that a lot of promises were being made which would encourage young people to think that these opportunities would be available, yet there was the possibility of the resources not being available. Was I correct in understanding the Minister to say that there would not be cuts in the programmes that were discussed during the apprenticeships Bill yesterday?

I assure noble Lords that we will do all we possibly can to protect training programmes, courses and places. The noble Lord can be assured that that will have my absolute commitment and that of my colleagues. I am not hiding from him the fact that we are entering a period in which we shall experience constraints in public spending, but that makes it all the more necessary and important that we get the best value from what we are already doing. However, we must also carry out reforms in what we are doing to raise the performance of these programmes. If we stand still and stop reforming, we will get less value for money and more people will be disappointed as a result.

My Lords, I am aware that throughout our debates on the gang injunctions concerns have remained that these innovative provisions could be used against groups that the Government do not intend them to be used against. As I stated in my explanatory letter, I believe that scope for misuse is extremely small. However, I agree that it would be sensible to review the use of the provisions to consider the overall implementation and impact of these new powers.

On Report, I committed to returning to the House with an amendment to the effect of a statutory review. This is set out in Amendment 1, which inserts a new clause at the end of Part 4 introducing a requirement for the Secretary of State to review the operation of the provisions. A report detailing the findings of this review must then be published within three years of commencement and laid before both Houses of Parliament.

When the report is laid before Parliament, it will present noble Lords and honourable Members from the other place with a clear opportunity to review the evidence from the implementation of the provisions and make such representations to the Government as they think appropriate. I am minded that three years will be required properly to review the provisions on account of the injunctions being time-limited to two years. As the noble Lord, Lord Skelmersdale, noted on Report, it is important to allow for the possibility that a number of these maximum-length injunctions may be granted and we should include these within the scope of the review. I hope that this amendment addresses noble Lords’ concerns and I commend it to the House.

My Lords, I am most grateful to the Government for bringing this amendment forward and to the Minister for taking this issue so seriously. He is correct that we were worried about such big powers being given without any sort of review required in the Bill. The amendment goes quite a long way towards meeting our concerns. His helpful letter said that the review must be laid before Parliament. No doubt Parliament will debate it to see whether any further action is necessary. This is most helpful and I am very grateful.

My Lords, it would be churlish of me not to thank the Minister for this amendment, even though I have a concern about it. I note that the Minister used the words “both Houses of Parliament” when speaking to the amendment, whereas the amendment refers only to Parliament, which could in certain circumstances mean one House or the other. Even at this late stage in the parliamentary Session, it is not beyond the wit of the Government to replace the word “Parliament” in this amendment with “both Houses of Parliament”. I hope that the Minister will take that into consideration.

My Lords, I do not know whether that can be done off my own bat but I will certainly take it into consideration. I cannot see why it should not be done but no doubt some of the legal beavers might stop me. I will see what I can do.

My Lords, Amendments 2, 3 and 4 amend Schedule 3 and place a duty on those local authorities that have not resolved to adopt the lap-dancing provisions introduced by Clause 27 within one year of commencement to consult local people on whether to make such a resolution.

The amendments respond to concerns raised by several noble Lords on Report about the optional nature of the lap-dancing provisions in the Bill. We considered whether these concerns could be addressed in guidance but, having listened to noble Lords saying that such guidance could simply be ignored by local authorities, we resolved to ensure that a statutory duty was placed in the Bill. Therefore, these amendments will ensure that local authorities that have not adopted the provisions within one year of commencement must consult local people to give them the opportunity to express their views on whether the provisions should be adopted. They further empower local communities with regard to the regulation of lap-dancing clubs in their area and mitigate the concern that there could be a mismatch between the local authority and local people’s views on the licensing of lap-dancing clubs.

The Government have listened carefully and responded to concerns raised here and in the other place on this clause. I firmly believe that, with this amendment, Clause 27 now strikes the right balance and will ensure that local communities are appropriately empowered to have a say in the opening and ongoing licensing of lap-dancing clubs in their area. I commend the amendment to the House.

My Lords, I have not previously spoken on this part of the Bill, but I was minded to when I received a briefing this morning from the Local Government Association. It is extremely concerned about this amendment, which it feels will force local authorities to undertake a burdensome consultation if they decide not to use powers available to them.

The association is concerned that the new duties were not consulted on. It feels that the amendment is in direct contradiction to the principles already enshrined in the Bill, stating that councils have the power to adopt the new licensing regime where it is locally appropriate. It feels that this goes directly against the principle of closer working between central and local government.

Councils have been at the forefront of campaigning for the introduction of the new licensing powers and they will not neglect the chance to take them up locally when they are needed. I would be most grateful for the noble Lord’s comments on the association’s views.

My Lords, it is always a problem when the Government drip-feed amendments through the last stages of a Bill. I rather hope that I have understood what this composite group of amendments, tabled today and on Report, means. I understand that, on Royal Assent, local authorities will be able to choose whether to implement the new regime. If a local authority implements the new regime, the people living in its area will immediately be able to take advantage of the new provisions for taking their concerns into account. That is right and proper.

If the local authority considers that the new regime is not necessary in its area, it must, under today’s amendments, still hold a consultation within a year on whether the community that it represents agrees. If the consultation shows that local residents have concerns about lap-dancing venues, the local authority should implement the new regime giving those people the opportunity to have those concerns addressed. If the consultation shows that local residents are, on the other hand, relaxed about lap-dancing clubs, the current licensing system will continue, but the new regime could still be introduced at any point in the future. That is the important point.

As the new regime includes an annual review of existing clubs, as well as strict controls on new clubs, any delay in the implementation of the new regime will not prevent objections or concerns from being raised against existing or new venues. Similarly, as the noble Baroness, Lady Harris, knows far better than me, local authorities already have several avenues by which residents can make suggestions and complaints. So even if someone were to miss a consultation, they could still make their feelings known, whether they are for or against the new regime.

I, too, received the briefing this morning from the Local Government Association. I ask only that this should not be yet another imposition on local authorities without their being given some sort of monetary recompense for carrying it out.

My Lords, I spoke briefly on the amendment moved by the noble Baroness, Lady Gould, at Report, to which the noble Lord, Lord Brett, replied, when he indicated that he might well follow the line now being taken by the Government. I share the views expressed by the noble Baroness, Lady Harris, about local government, if possible, being allowed to decide what it wants to do, rather than having something imposed on it. I recall the Licensing Bill, now the Licensing Act 2003. Those of us who were familiar with the problems in central London were disappointed because it took so long for the disadvantages of the Act to become known throughout the country. It is a sensible fail-safe device to have the opportunity for consultation later to prevent communities from suddenly, through sheer ignorance, finding lap dancing imposed on them. I therefore congratulate the Government on the compromise solution that they have reached.

My Lords, of course, I, too, read the LGA document issued today. Part of the problem, reading between the lines, is that it cannot decide whether it wants something mandatory or not. Perhaps that is a false judgment, so I shall not pursue it. I thank the noble Lord, Lord Brooke, for his support, because we have had a negotiated balance in this House to arrive at the provision. What is clear is that, if authorities adopt the provisions, they will not need to consult. It is important that local people, rather than just local authorities, are consulted on whether to adopt provisions.

Is it a new burden? As has been said, there are already duties on local authorities to consult local people on an ongoing basis on a wide range of issues. We are fairly confident that the duty can be absorbed into the existing processes without imposing any particular new burdens. It is a one-off duty to consult and would not apply if the local authorities had already adopted the provision. So it is not overly onerous. In answer to the noble Lord, Lord Skelmersdale, this is not an imposition. Authorities have structures in place; it is a one-off consultation. I believe that it strikes a sensible balance.

I do not think that the LGA statement today helps to move things on. I take the point about consultation. We have tried to consult and I will raise with some of my people what the difficulties have been. However, that has not just been from our side, as it were; it has come from both directions and we need to resolve that. It is unfortunate to have a statement coming out today that shows perhaps a lack of discussion, but I do not believe that the LGA’s concerns are real. This is a sensible way forward. I thank the noble Lord, Lord Brooke, for his input and commend the amendment.

That the Bill do now pass.

My Lords, I would like to say a few words of thanks to all those who have taken part in today’s short debate, but also in the preceding days. Throughout, our debates have been knowledgeable, forceful, often passionate but also genuine and constructive. They have been held in a particularly good spirit, even when we have crept up towards midnight on occasion. The Bill leaves the House in a much better state—that is something that this House does.

I thank my noble friends Lord Brett and Lord Faulkner, and my noble and learned friend Lady Scotland, for all their help. They have borne the full force of your Lordships’ inquiry on the Bill and I am extremely grateful for their support. I also thank the noble Baronesses, Lady Miller and Lady Neville-Jones—and, before, the noble Baroness, Lady Hanham—as well as the noble Lord, Lord Skelmersdale, who joined us during Committee after the summer, the noble Viscount, Lord Bridgeman, and the noble Lord, Lord Thomas, for the role that they have played in sharpening up the Bill, which is much improved. I do not want to detain your Lordships any longer than necessary, but I extend my thanks to all noble Lords who have taken part.

Finally, I am sure that all of your Lordships will join me in thanking the members of the Bill team, who have been particularly focused and have tried to be helpful across the House, and those others who were behind the scenes, including opposition researchers, who have all helped in the smooth passage of the Bill.

That this House do not insist on its Amendments 1, 2 and 216 to which the Commons have disagreed, but do propose Amendment 1B in lieu—

My Lords, I beg to move that this House do not insist on its Amendments 1, 2 and 216 to which the Commons have disagreed and do agree Amendment 1B in lieu. The House will be aware that on Monday the other place accepted the Government’s Motion to disagree with these Lords amendments without a Division. In making the case for Motion A, I can do no better than quote from what the shadow Secretary of State for Justice, Dominic Grieve, said in the other place:

“there is an acknowledgement that to allow intercept evidence would be very difficult at this stage. My party is on the record on countless occasions as wishing to see intercept evidence available in criminal trials and at inquests … We subscribed to the Chilcot process so that it could be reviewed, and the Chilcot process is not yet complete. Therefore I acknowledge that to ride a coach and horses through that would be unsatisfactory, even though it is an end that I would wish to see, properly arrived at”.—[Official Report, Commons, 9/11/09; col. 60.]

My noble friends Lady Ramsay, Lord Robertson, Lord Harris of Haringey and Lord Foulkes made much the same point during our debate on 21 October, as did the right honourable Michael Howard, one of the members of the advisory group of privy counsellors, during the debate two days ago in another place. I hope that, given this wise counsel from a number of eminent sources, the House will not insist on its amendments.

I should add that my right honourable friend the Home Secretary has asked the intercept as evidence team—that is the team that is hoping to implement Chilcot—and the advisory group of privy counsellors, which includes my noble and learned friend Lord Archer of Sandwell, the right honourable Michael Howard MP and the right honourable Alan Beith MP, to look at the issue of coroners’ inquests in the light of their emerging findings. I hope that may provide some comfort to the noble Baroness, Lady Miller, and the supporters of her amendments.

Turning to the proposed amendment in lieu, it would further amend paragraph 3 of Schedule 1, which deals with the suspension of a coroner’s investigation pending the outcome of an inquiry under the Inquiries Act. On Report, the House agreed amendments, the effect of which is that the duty on a coroner to suspend an investigation pending the outcome of an inquiry would bite only if the inquiry is chaired by a senior judge. Where a coroner’s investigation is so suspended, the terms of reference of the inquiry must, as an irreducible minimum, include the matters to be determined by a coroner at an inquest. We find those matters set out in Clause 5. This amendment would add another crucial condition; namely, that the Lord Chief Justice has approved the appointment of the senior judge who is to chair the inquiry.

In another place, the shadow Secretary of State for Justice pressed the Government to provide for more judicial control over this whole process. This amendment does just that. The duty on a coroner to suspend an investigation pending the outcome of an inquiry would come into play only if the inquiry was to be headed by a High Court, or more senior, judge, and the Lord Chief Justice had approved the appointment for the purposes of paragraph 3. Noble Lords who were present at the time will remember that this is just the sort of judicial lock which Lord Kingsland asked the Government to put into effect many months ago. Let me be clear about what this means. The Lord Chief Justice is being asked in practice to approve the displacement of a coroner’s investigation by an inquiry. If he does not give his approval, no inquiry will be established.

It may assist the House if I explain how we envisage the process operating. It is worth emphasising that the point at which any question of establishing an inquiry arises is likely to be some way into a coroner’s investigation. In cases in which Article 2 is engaged, there is likely to be an investigation by a statutory organisation such as the Independent Police Complaints Commission. The coroner would proceed with planning for the inquest only once he or she was in receipt of the report from the IPCC and any criminal proceedings had been ruled out. At that point, the coroner would review all the evidence with which he or she had been provided, which might include gists of intercept or other sensitive material, and would consider whether an Article 2-compliant inquest with a jury could be held.

To assist this, the coroner would very likely hold a pre-inquest hearing to get the views of all interested persons. If the coroner’s conclusion was that the inquest could not go ahead because material that was central to the inquiry could not be disclosed, the organisation from which the material originated would inform the appropriate Secretary of State. That Secretary of State would then inform the Lord Chancellor who, in consultation with the Chief Coroner, would need to be satisfied that every effort had been made for the inquest to take place. Where the Lord Chancellor was satisfied that an Article 2-compliant inquest could not take place, he would write to the Lord Chief Justice to seek his approval of the appointment of a senior judge to chair the inquiry.

The Lord Chancellor’s letter could outline the reasons why the coroner’s investigation needs to be suspended and why conducting the investigation into the death in question by way of an inquiry set up under the Inquiries Act 2005 is more appropriate. It could also request the approval of the Lord Chief Justice of the appointment of a senior judge to chair that inquiry, and cite any other matters that may be relevant. This could be followed up if necessary by a meeting between the Lord Chancellor, the Secretary of State and the Lord Chief Justice to discuss the matter. We would expect the Lord Chief Justice to take into account what steps had been taken to enable an inquest to proceed and to consider whether other steps could be taken. The Lord Chief Justice may suggest that these are considered before he decides whether to agree to a judge being appointed to chair the inquiry.

Thereafter, the Lord Chief Justice would consider the request and, if he gave approval to the appointment of a senior judge, he could then suggest a particular person to chair the inquiry. I should add that if it is considered appropriate for a judge of the Supreme Court to chair the inquiry, the Lord Chief Justice would consult the president of the Supreme Court before giving his approval. It would then fall to the Secretary of State establishing the inquiry formally to appoint the nominated judge. At the same time, the Lord Chancellor would request the coroner to suspend the investigation if the Lord Chancellor was satisfied that the inquiry’s terms of reference established the matters that an inquest would otherwise have established, as per Clause 5.

Finally, the decision to establish the inquiry and the identity of the senior judge who will chair the inquiry will be announced by way of a Written Ministerial Statement by the Secretary of State responsible for establishing the inquiry. It would then be open to any interested party to seek a judicial review of the decision to establish the inquiry.

I am sorry to have gone on for so long, but these matters greatly concerned this House a few weeks ago, and I hope that my explanation has gone some way to showing that we have taken on board the points that were raised. I hope in the light of this explanation that the House will be reassured that these measures provide an improved balance between the respective roles of the Executive and the judiciary in the very rare circumstances in which these complex issues are likely to arise. As I said, they deliver the judicial lock that the late Lord Kingsland sought all those months ago when he spoke at Second Reading. I commend the amendment to the House, and I beg to move.

My Lords, I will in due course speak to Motion A1. I start by addressing Motion A because, without doing so, I cannot address Motion A1. I thank the Minister for his detailed explanation and for the assurances that he gave the House. I wish to put a few questions and seek a few further assurances, although he gave a number of them in his opening speech.

I am grateful to the Minister for quoting my honourable friend in another place, particularly when he referred to the difficulty of introducing intercept evidence at this stage. However, to be fair to my honourable friend, I ought to complete the quotation. The Minister quoted him as saying that our party is,

“on the record on countless occasions as wishing to see intercept evidence available in criminal trials and at inquests”.

The Minister then stopped. However, it is worth quoting the extra sentence that my honourable friend added, in which he made it quite clear:

“That is desirable and it is a shift that needs to take place”.—[Official Report, Commons, 9/11/09; col. 60.]

Having said that, we feel that we have taken the matter as far as we can in this Bill. I have no doubt that in future there will be further opportunities, in both this House and another, to consider the benefits of allowing intercept evidence to be heard in courts, including coronial courts. However, it is not necessarily a matter that we need to discuss further at this stage.

Moving on to what my honourable friend Mr Grieve and my late noble friend Lord Kingsland referred to as the “judicial lock”—my late noble friend made these points many months ago—the Minister has made an effort to meet this with Amendment 1B, which we are asked to agree in Motion A. As the Minister explained, the key addition is new paragraph (c), which provides that the Lord Chief Justice must indicate his approval to the Lord Chancellor of the appointment of a senior judge to chair an inquiry. In deciding whether to accept the amendment, we have to ask ourselves whether that is enough.

If one were marking an exam paper, one would have to say that the noble Lord could have done slightly better, but we are grateful for what we have. We have asked for the route to be one of formal application and, in talks with the Lord Chancellor, the Government have given us the impression that it is too late in the passage of the Bill to insert that the Lord Chancellor must make an application to court for an inquest to be suspended and an inquiry to be established. That route was proposed some time ago, and I cannot see why the Government could not accept it. In fact, I wonder whether, if it was really something that they found attractive, they could not even now do something about it—but that possibly is too late. I leave that thought with the Minister.

I turn to the amendment that the Minister has presented, on which I have a number of questions. First, what precisely in the amendment that he proposes does “indicated approval” mean? Clearly, there is no formal application in the sense of having judicial procedure through the courts. Would the exchanges between the Lord Chancellor and the Lord Chief Justice be a matter for public record? I am encouraged by the apparent improvement in the language from Section 10 of the Inquiries Act 2005, which states that, when a figure is appointed to an inquiry, the Minister must merely consult the Lord Chief Justice. In the current amendment, we must have his approval. That suggests to me that the Lord Chief Justice must agree with the reasons given by the Minister for needing an inquiry. In asking the Minister to confirm that, can I ask him also to explain carefully the wording of the new paragraph? If the Lord Chief Justice does not approve “that judge” whose name has been put to him, what happens then? Is the Minister saying that another judge will be nominated for approval? If the Lord Chief Justice refuses to give his approval for any judge, because he felt that the case presented to him by the Lord Chancellor was not suitable to be heard at an inquiry, what would happen then?

In the Commons, the Lord Chancellor said that,

“it goes without saying that I have to ask the Lord Chief Justice from time to time to nominate a judge; if he or she were to decide that no judge were to be nominated that would be the end of the matter”.—[Official Report, Commons, 9/11/09; col. 57.]

I believe that that is an ambiguous statement. It is the end of what matter? Does it mean that the Lord Chancellor would stop asking for an inquiry, as he would not have the approval of the Lord Chief Justice for a judge to be nominated, and accept that he had not made his case, or does it mean that he would simply ignore the Lord Chief Justice and push through an inquiry without an approved judge? I would welcome a clear statement on the record that, if the Lord Chief Justice does not approve a judge to chair an inquiry, there will not be an inquiry.

I expect that the effect of the proposed mechanism is that the Minister, as I think he made clear in his opening statement, will be obliged to make a statement explaining what is going on and, in the words of my honourable friend in another place, explain to the House why an inquest was impossible, answer the hostile questioning of the House and allow Members of the House to express a view. We would expect nothing less than that—a chance for Parliament to be able to debate the matter. I think that the Minister was talking merely of a Written Statement, but I should be grateful for what he has to say.

The last question that I wished to put to the Minister was on seeking confirmation that a judicial review would be available. However, since he has made it quite clear that it will be available, that is an assurance that I need not ask from the Minister.

Having asked for those assurances, perhaps I may say that although it might be putting it too strongly to say that we endorse Motion A—it is an imperfect situation—we will not oppose its passage at this stage. The Government could have done better as they have been offered a great deal of advice. For us, to oppose it at this stage or to support it would not be the right way forward.

I have some difficulty with the noble Baroness’s amendment moved in her Motion A1 because it would remove the inquiry route altogether. However, as she has accepted that the intercept route has stalled for the moment—at least, I presume she has accepted that—to remove it would put us back at square one. Obviously, I have some sympathy with her objections, but we have to take the pragmatic approach at this stage, as so often happens in this House, that half a loaf is better than no loaf at all. Therefore, we on these Benches will neither support nor oppose Motion A, but nor will we be able to support Motion A1.

My Lords, this is a much more difficult issue than the Minister suggests. An inquiry before a judge, however eminent he or she may be, is simply unlikely to command the same public confidence as a hearing before a jury, especially when the hearing is determining the cause of death of someone who died at the hands of state officials. The Minister rightly emphasised that we are dealing with a very small category of cases, but they will inevitably be precisely those cases where public concern about the death is at its most acute and where the exclusion of a jury will prevent the inquest from performing its basic function of providing a process by which the bereaved family and the public can be fully reassured that an investigation has identified the cause of death.

It may well be, as the noble Lord, Lord Henley, said, that we in this House have taken the matter as far as we can. For my part, I ask the Minister to give assurances on two matters. First, will the judge who is appointed under the inquiry have the power to appoint other independent persons who have security clearance to sit with him or her in hearing this matter? Secondly, will the Minister assure the House that the report of the inquiry produced by the judge will be published in all cases in full subject only to the exclusion of any security information as approved by the judge?

My Lords, I was not intending to speak, but the noble Lord, Lord Pannick, spoke about his hope that the Minister would give an assurance that if a judge sat in an inquiry he would have others to sit with him. I happened to sit on an inquiry of a totally different sort through 1987 and 1988, and I gained the most enormous help from three very talented assessors. I have looked with some dismay and concern at a number of important inquiries where distinguished judges or other people have been asked to sit alone. There is a huge amount of advantage in what the noble Lord, Lord Pannick, said about having others to assist the judge trying. They would not be the decision-makers: they would be the advisers. In my case, they were called assessors. That would help a great deal and would mitigate the problem, referred to by the noble Lord, Lord Pannick, about the absence of a jury meaning that it might not have the same degree of credibility. In those cases, the judge could be assisted by those who would advise, but who certainly would not make the decision.

I support the points made by the noble Lord, Lord Pannick, and the noble and learned Baroness, Lady Butler-Sloss. It is not clear to me what exactly is supposed to happen if the Lord Chief Justice does not agree to appoint a judge. I assume that that is a necessary step in the setting up of the inquiry. Therefore, if he declines to do so, there will not be one. I assume—I hope this is correct—that the Government consulted the Lord Chief Justice when they put forward this proposal, so that he knows about it and is willing to undertake this extremely important judgment at the stage when it is supposed to be made. As the noble Lord, Lord Pannick, said, that is an important matter.

My Lords, I am very grateful to all noble Lords who have spoken, particularly to the noble Baroness, Lady Miller, for moving her amendment. The amendments seek to strike out paragraphs 3 and 8 of Schedule 1, thereby removing the duty on a coroner to suspend an investigation following a request to do so from the Lord Chancellor in circumstances where an inquiry has been established into the circumstances of the same death. It remains our view that it is entirely appropriate that when an inquiry is established into the circumstances of a death, the coroner’s investigation should be suspended and resumed only if the coroner considers that there are sufficient grounds to do so. To do otherwise would, in our view, be a waste of public money as both sets of proceedings would in essence be considering the same issues. It could lead to confusion and inconsistency as well as possibly causing added intrusion into the private grief of the family for no discernable benefit. Those problems would be amplified only if the two separate investigations came to different conclusions, particularly if they heard different evidence from different witnesses. The added grief that this would cause to the bereaved family for no good reason is surely not something that we should want.

Moreover, in those exceptional cases where an inquiry had been established in order to protect highly sensitive information, such as intercept material, from public disclosure, it could well be the case that any coroner’s investigation that proceeded in parallel with an inquiry would not have access to the full facts and would not therefore be Article 2 compliant. It is questionable whether any coroner would want to proceed with an investigation in those circumstances. We consider that a coroner’s investigation should be suspended pending the outcome of an inquiry and it should be a matter for the coroner to decide if there is sufficient reason to resume the investigation at the conclusion of the inquiry.

Given the concerns expressed by noble Lords about delays in complex cases, if not in inquests generally, we would have thought that that in itself was sufficient reason not to have two similar types of investigation into the same case. For any Members of your Lordships' House who may be tempted to vote for Amendments 1C and 1D, perhaps I may remind them that the effect of these amendments would be, as the noble Lord, Lord Henley, pointed out, to strike out the judicial lock in the process of establishing an inquiry, which I described earlier. If Amendments 1C and 1D were carried it would still be open to a Minister to establish an inquiry to investigate the circumstances of a death, but the important safeguard in government Amendment 1B would not be there because that part of the Bill would be omitted. So I invite the noble Baroness to withdraw her amendment. If she does not, I invite the House to vote against it.

I will respond to the noble Lord, Lord Pannick, and to those who spoke and agreed with him on the questions that he asked, and will also answer the questions of the noble Lord, Lord Henley, who asked what was meant by “indicating approval” and whether it would be on the public record. I will come to that in a moment.

The noble Lord mentioned a judge. Amendment 1B(b) refers to “a senior judge” who has been appointed under the Inquiries Act as chairman of the inquiry. The Lord Chancellor cannot simply go through a list of judges until the Lord Chief Justice is content to approve one of them. The Lord Chief Justice is being asked to approve the displacement of a coroner’s investigation by an inquiry in the most rare of circumstances. I hope that my next sentence will answer some points asked by other noble Lords. If the Lord Chief Justice does not give his approval to the suspension of the coroner’s investigation, no inquiry will be established. I could not be clearer than that.

The noble Lord, Lord Henley, asked whether the exchanges between the Lord Chancellor and the Lord Chief Justice would be made public. I do not think that he will be surprised by my answer, which is that they will not. They will be summarised in the Written Ministerial Statement that the appropriate Secretary of State will be required to make when announcing an inquiry. There could be an Oral Statement if there were major public concerns about the death that was the subject of the inquiry. We know that noble Lords and honourable Members in another place are quite able to ask Questions and get Statements if they so require.

The noble Lord, Lord Pannick, asked whether the judge who is to chair any inquiry will have powers to appoint other panel members. I do not wish to appear disrespectful—the noble Lord will know Section 4 of the Inquiries Act 2005 much better than I do. When an inquiry panel is appointed:

“Each member … is to be appointed by the Minister by an instrument in writing … The instrument appointing the chairman must state that the inquiry is to be held under this Act … Before appointing a member to the inquiry panel (otherwise than as chairman) the Minister must consult the person he has appointed, or proposes to appoint, as chairman”.

The senior judge would be consulted before that appointment was made.

The noble Lord’s second question, which was also asked by other noble Lords, was whether the report of an inquiry would be published in full, subject to the exclusion of security information as approved by the judge. The answer is that it will—only security matters will not be disclosed. This will be a matter of agreement between the Minister and the inquiry chairman. I hope that that goes some way to satisfying noble Lords who are interested in these matters.

I have said what I want to say. In due course I will move my amendment.

My Lords, has the Lord Chief Justice been consulted on the terms of the amendment, and has he accepted the responsibility that it would impose upon him if it is passed?

My Lords, I must be very careful what I say about conversations that have taken place. The Lord Chancellor and the Lord Chief Justice spoke on the matter this morning, and I have no reason to think that anything that I have said would be disapproved of by either party.

My Lords, that last reply is surprising if this has been in the Government’s mind for some time and has been consulted on only this morning. I am grateful to the noble and learned Lord, Lord Mackay of Clashfern, for raising the issue.

This debate dwelt on process, rather than principle. I can understand why that is the case, because if the Government win the day on this, process will be important. The experiences of the noble and learned Baroness, Lady Butler-Sloss, and the noble Lord, Lord Pannick, are important. They asked extremely pertinent questions.

I return for a moment to what the Minister said. He talked about whether it would be helpful for a bereaved family in their private grief to go through more than one process. What matters to a bereaved family listening to an inquest is that they know the truth and that lessons are learnt for society. I know this from personal experience and because I have talked to bereaved families. When the inquiry process happens, however good the judge is, if there is loss of confidence by that family and by society, the Government will have taken a historically regrettable step. I recognise that we will not get much further with this argument today, so I ask the House to agree to my amendment.

That this House do not insist on its Amendment 55 to which the Commons have disagreed.

My Lords, the Government remain firmly of the view that the sexual infidelity exclusion in the new partial defence of loss of control, contained in Clause 45(6)(c), should remain part of that clause. The other place endorsed that view by a majority of 154. That is a significant majority against a Lords amendment. I note and, indeed, greatly welcome the fact that the Liberal Democrats abstained on that vote in another place.

On Report in this House, it was suggested that the exclusion of sexual infidelity as a cause of loss of self-control was both illogical and undesirable. We beg to differ. Far from being illogical, the Government’s position is based on recognition of the history of the partial defence of provocation—a history that has led to a commonly held belief that this is a defence that can be exploited by men who kill their wives out of sexual jealousy and revenge over infidelity.

We have been clear through every stage of the Bill: as a matter of policy we do not believe that in this day and age loss of control based on anger should normally justify reducing murder to manslaughter. No one is disputing the fact that people lose their temper and kill; we are simply saying that that should not generally constitute grounds for a partial defence to murder. This is one of the reasons why we are abolishing the partial defence of provocation and replacing it with a partial defence of loss of control, which, among other things, significantly narrows the circumstances in which a defendant will be able to plead a partial defence when they kill in anger.

The Government have also been consistently clear that we do not believe that, in this day and age, sexual infidelity on the part of the victim should ever, in and of itself, constitute grounds for making out a partial defence of loss of control. Of course, we do not dispute the fact that people lose their temper and kill in response to sexual infidelity on the part of the victim, but we are arguing that this should never be a reason to justify reducing a murder charge to manslaughter and we want to put that matter beyond doubt.

We are not alone in this view. No fewer than 55 organisations and individuals, including academics, practitioners, members of the public and victims of domestic abuse, have, since this House voted to remove the sexual infidelity exclusion from the Bill, taken the time to write to the Government asking for the provision that was previously in the Bill to be reinstated. Among these are the Women’s National Commission, an umbrella body representing more than 550 partner organisations, many of which work directly with women who have experienced violence, Rape Crisis England and Wales, Amnesty International UK, the Centre for Action on Rape and Abuse, Justice for Women, Assist and many others. They all ask for the government provision to be reinstated in the Bill. But it is the words of a member of the public that I wish to draw to the House’s attention. The lady stated in her letter:

“No-one condones infidelity; it is a terrible thing to do to someone. However, to suggest that the murder of the guilty party should be condoned is nothing short of barbaric. Usually it is men who plead this excuse but the type of man who would kill his partner is generally so controlling that he will have a history of jealousy and violence, potentially driving the woman away from him. To therefore suggest that she would be responsible for her own killing is as absurd as it is inhuman. It is not a plea that should be permitted in a supposedly civilised society”.

It has been suggested that the issue should be left to the jury to decide. However, those noble Lords who advocate such an approach are implicitly arguing that there are situations where a defendant should be able to successfully make out a partial defence based on sexual infidelity, in and of itself, on the part of the victim. We simply do not agree. As a matter of policy we believe that men and women who kill their partners because of unfaithfulness should be convicted of murder and we want this to be enshrined in statute.

It seems to the Government, based on the debates in this House, that there is a range of views on whether sexual infidelity should ever constitute grounds for reducing murder to manslaughter. This serves only to strengthen our view that, in order to put this matter beyond any doubt, it is important to set it out in the Bill. I urge the House not to insist on its amendment. I beg to move.

Amendment to the Motion

B1: As an amendment to Motion B, at end insert “, but do propose Amendment 55B in lieu—

My Lords, the noble Lord, Lord Bach, referred to the history of provocation. It was a defence in common law that started to be developed at the beginning of the 18th century as an act of mercy by a jury who, having considered all the circumstances, permitted a defendant who would otherwise have swung on the gallows for murder to be convicted of manslaughter. In 1957, when the death penalty was still in place, provocation was defined in statute in these terms:

“Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man”.

Case law developed the concept that the reasonable man with whom the defendant is to be compared should be taken to be of the same age and sex as the defendant and should share any particular peculiarities from which he suffers—for example, his stature, colour, ethnicity and so on.

Since the death penalty was replaced by the mandatory life sentence, the practical effect of the defence today is in sentencing. If a man or woman is found to have committed murder, the jury may reduce what would otherwise be a verdict of murder to manslaughter by reason of provocation. That makes it possible for the judge to sentence the defendant in his discretion to anything from life imprisonment to an absolute discharge. Indeed, I once prosecuted in a case where a woman who had killed her husband by driving a hammer through his head when he was asleep received an absolute discharge by reason of the way in which she had been treated by her husband shortly before she killed him 25 years before the body was found. However, life imprisonment is not an unusual or uncommon sentence.

Provocation raises many difficulties. In one appeal from Hong Kong, I represented a defendant who killed a young woman who had taunted him. The defendant had suffered brain damage as a child and therefore the question arose whether he should be compared for what he did with a reasonable man in full possession of his faculties or with a person who had suffered brain damage. The Privy Council held that that comparison should not be made but the Court of Appeal in England and Wales, which normally follows the Privy Council, disagreed and refused to follow that decision.

Therefore, the law, which was always unsatisfactory, became even more so, to the point that in 2005 the Law Lords sat, unusually, in a panel of nine in the Privy Council on an appeal from Jersey in the case of Holley. They attempted to bring some rationality into this area. The noble and learned Lord, Lord Nicholls of Birkenhead, giving the judgment of the majority, concluded:

“I should not like to leave this case without registering my strong agreement with both the majority and minority that the law of homicide needs comprehensive and fundamental reform. It is a patchwork of rules which makes coherent direction of juries unnecessarily difficult and reflects no credit on our legal system. Judges are bound to apply the law as it is, but that does not prevent one from reminding the world at large and the legislature in particular, that there is a real risk that the present law, containing as it does so many difficulties in its application, may cause injustice in individual cases, even where it is faithfully and correctly communicated to a jury. I do not propose to dilate upon the alternatives, a unified offence of unlawful killing or permitting the jury to return a verdict of murder with mitigating circumstances, allied with the abolition of the mandatory death penalty. They do exist, however, and the adoption of one or other would simplify the law, removing the need for the extended discussion of the minutiae of provocation and the differences of opinion among judges. The latter I genuinely regret, but as the law stands I must join the dissent”.

Provocation is a mess. The Law Commission, led by Professor Jeremy Horder, reported in November 2006. In its report, Murder, Manslaughter and Infanticide, following extensive consultation with a wide range of bodies, the commission said that,

“partial defences remain misleading, out-of-date, unfit for purpose, or all of these”.

The Government have not followed its recommendations for wholesale reform of the law relating to homicide into a three-tier system. By this Bill, they have simply tinkered with the existing unsatisfactory law. They seek to introduce changes to the existing partial defences of diminished responsibility and provocation. They have totally undermined the coherence of the Law Commission’s proposals in a way that can only bring further chaos and difficulty in this field.

The Law Commission never considered, let alone recommended in its report, that the jury should be barred, on a defence of provocation, from considering any circumstances arising on the facts of the case, but Ministers floated the entirely novel idea of excluding sexual infidelity as an ingredient of provocation. In a memorandum submitted at the Committee stage of this Bill in the Commons, Professor Horder, the law commissioner, who was appointed to look at the whole law of murder, commented on this sexual fidelity clause. The memorandum states:

“One of the difficulties about being ‘absolutist’ in this area is that one prevents the jury hearing rare, meritorious cases ... Can the jury not be left to filter out unmeritorious cases by deciding for itself in a loss of self-control case simply whether 42(4) and 41(1)(c) are satisfied?”.

That is the provision that we took out on Report. The memorandum continues:

“Even if that 42(6)(c) is left in, on the face of it, the wording is, with respect, bizarre. In what circumstances can a thing ‘said’ in itself ‘constitute’ sexual infidelity, and is that what is really being aimed at?”.

Professor Horder continued:

“I am sure that I will not be the only person to remark that the focus on sexual ‘infidelity’ is curious; even, paradoxically, old-fashioned. Does it cover unmarried relationships where there is no duty, in law, of fidelity? More seriously, is what is really being got at here sexual jealousy and envy, not ‘infidelity’? If so, why not say so?”.

That was the swingeing criticism of the expert in this field on the effect of the clause. It is “bizarre”; your Lordships are being invited to put back into the Bill something that is bizarre.

In this House, the noble and learned Lord, Lord Lloyd of Berwick, supported by us, introduced a new clause and substitution for all the Government’s clauses in question. His amendment was drafted by Professor John Spencer of the Faculty of Law at Cambridge University, who is an outstanding specialist in criminal law, as I am sure all lawyers would agree. The purpose of the amendment was to abolish provocation altogether but to permit a jury, if it thought fit and subject to safeguards, to add a rider to its verdict of guilty of murder a statement of mitigating circumstances, which would permit the judge to pass a sentence other than the mandatory life sentence. In other words, the amendment adopted one of the suggestions made by the noble and learned Lord, Lord Nicholls of Birkenhead, in the case that I quoted. That was defeated.

An hour later, the noble and learned Lord, Lord Lloyd, again supported by us, called a Division to exclude all these tinkering changes with the law of provocation. The final amendment, moved by me, was to remove the bizarre subsection. When that provision went back to the House of Commons, the Minister, the honourable Claire Ward, made the most basic error of reversing the burden of proof. That is fundamental, but she suggested that it lay on the defendant. She argued for this principle: whether the House believes that when a person commits sexual infidelity they in some sense bring upon their own death at the hands of their partner, husband or wife.

Hear, hear.

May I get to the amendment, in which we try to make at least some sense? It ties the issue of sexual infidelity to a specific part of the trigger provisions; namely, that the circumstances should be of an extremely grave character. It concentrates not on the thought processes of the jury but on the actions, intentions or reasons for action of the defendant. The jury can decide whether the defendant was acting principally out of a desire to punish his or her partner by reason of what he perceived to be sexual infidelity.

The focus of the amendment is on the defendant’s state of mind—his mens rea—which is familiar territory for the jury. If the issue is raised, the jury, using its broad experience and knowledge of the world, can and should determine it. I beg to move.

My Lords, I have some sympathy with what the noble Lord, Lord Thomas of Gresford, said, in particular, what he had to say about the Law Commission and provocation, but I sense the feeling throughout the House that this is possibly not the time and place for quite such a lengthy debate on these matters when we are considering Commons reasons.

I shall briefly set out our position. The Minister said that in another place the Government won the Division by a majority of 154. I think he would accept that anyone who listened to that debate or has read it since will agree that the Government comprehensively lost the argument, even if they won the vote on that occasion. It is therefore tempting to send a matter such as this back again, but it is quite clear that the Government have fixed themselves firmly on their misunderstanding of the argument and will stay there for the duration. To send it back would simply rehearse all the same arguments, waste yet more time and do nothing to change their minds. I believe that any further vote on this matter would be futile and I can assure the Minister that we will be abstaining on the amendment to the Motion if the noble Lord, Lord Thomas, presses it.

My Lords, I rise to oppose the amendment and ask for the reintroduction of the original clause. The noble Lord, Lord Thomas of Gresford, should offer an apology to my right honourable and learned friend Vera Baird, with whom I have had long conversations about the subject, and who fully and absolutely supports the Government's position. An apology is in order, because his remarks will now be printed in Hansard.

I do not have and cannot give examples of what has happened in court; I cannot cite cases. I can cite the views of many hundreds of women who feel absolutely outraged that this House deleted the clause in the first place. The Women’s National Commission, of which I am chair, and which, as my noble friend said, represents 550 very varied women’s organisations, large and small, around the country, was inundated with queries as to how that could possibly happen. No one believed that it could. As a consequence, I was asked as chair whether I would write to the Secretary of State for Justice expressing the concerns of those many women, which I did. I was delighted—as I am sure they were as well—to see it back. I hope that it stays in the Bill.

The Women’s National Commission has long known from our work with the violence against women sector the devastating effect of domestic homicide on families and communities. In the UK, two women a week die at the hands of their partners. That level is clearly unacceptable, but until violence against women is eradicated, we must ensure that justice is served on those men who commit such crimes.

As has been said, the law of provocation has a long history. The killing of a wife or girlfriend by a partner because of an actual or suspected infidelity—she may never have done anything, but he thinks that she has—has often been used in the past to reduce murder to manslaughter. The law should be clear that it is no longer acceptable in the 21st century—not the 18th century, the 21st century—that anyone owns anyone. The penalty for infidelity—which in itself is not a crime—should not be one of killing by anyone. Those partners who believe it right to kill should always go on trial for murder. In this instance, our concern is that men who kill women should not be able to plead the traditional argument that she was unfaithful, or that she might have been unfaithful, to support a plea of loss of self-control.

The noble Lord, Lord Thomas of Gresford, cited the Humes case of 2002. The point about the Humes case was that the judge accepted the manslaughter provocation. It did not go a jury, and yet we have heard an awful lot about how the clause is unnecessary because juries would understand in this modern age. That case did not go to a jury; the judge took the decision. Therefore, the argument in respect of juries collapses. I find it extraordinary that those arguments have been put.

It is vital that the Bill is amended once more to reintroduce the clause and to return it to the Commons. Without the clause, the Coroners and Justice Bill will allow men who perpetrate violence against women to operate with impunity. It is vital that we protect women and children by supporting the clause. Infidelity alone cannot and should not provide a defence for murder.

My Lords, I have not spoken in any of the earlier debates on this matter and, indeed, have been more than happy to listen to the advice and experience of those in an excellent position to treat the subject, but I respectfully believe—late though the hour is in relation to these debates—that there is a fundamental misconception that goes to the very heart, core and kernel of the issue.

The misconception is this. The case put forward by the Government in the House of Commons was that the public saw the provision as enabling a person who detected infidelity in a partner or wife to kill that partner. That has never been the law. That is the misconception. I appreciate that that can easily be misconceived, because the fact of infidelity, along with dozens of other situations, can prove a trigger to a core conclusion by a jury that there has been a loss of self-control of such magnitude as would justify a verdict of manslaughter rather than murder.

The Government have themselves misconceived the situation. I ask the House to indulge in this simple test. Clause 45(4), which covers one situation that can trigger a defence of provocation, states:

“This subsection applies if D’s loss of self-control was attributable to a thing or things done or said (or both) which—

(a) constituted circumstances of an extremely grave character, or

(b) caused D to have a justifiable sense of being seriously wronged”.

The Bill itself provides for a situation where mere words could be a provocation that a jury would have to adjudicate on.

It would be a misconception to say that surely it is wrong that there should be justification for killing a man or woman on account of what that man or woman has said—mere words. If we were to say that, we would be falling into exactly the same misconception as is at the very root of the Government’s attitude in this matter. It is not the fact of infidelity that justifies the taking of a life; it is the situation—it is a matter not for the defence to prove but for the prosecution to expunge—where the jury cannot expunge the fact that there could have been a loss of self-control of such magnitude as to reduce the case from murder to manslaughter.

In that context, bearing in mind that the law of provocation is some 300 years old, as the noble Lord, Lord Thomas of Gresford, reminded us, that it was codified in Section 3 of the Homicide Act 1957 and that it has never made any reference to infidelity or any other specific condition, it has allowed the law to have as broad as perimeter as necessary, bearing in mind the myriad situations that could be relevant to this issue. In those circumstances, what one has to look at is not the trigger condition—I appreciate that there is a trigger provision in Clause 45—but what the jury has to decide, which is whether what has happened has so unhinged, disintegrated or destroyed the control of the defendant as to render his act less than murder, but rather manslaughter.

The very fact that the public have a misconception about this matter does not justify this measure. I believe that the Government have looked upon it very sincerely and have come to the wrong conclusion because they have asked the wrong question. If this matter is not dealt with now, in the creative way that this House suggested, it could prove to the disadvantage of women. I have profound respect, as has the House, for the noble Baroness, Lady Gould of Potternewton, and I appreciate the strong, sincere feelings that are abroad on this matter, but it does not help the situation to pander to those misconceptions, to use legislation to fuel them and to do so in such a way as to do a disservice to the administration of justice.

My Lords, can the Minister reassure me on one matter? I entirely understand the Government’s arguments if the defendant lost self-control as a result of infidelity, but supposing the defendant lost self-control not just because of sexual infidelity but because of the other grave circumstances surrounding the sexual infidelity. Suppose, for example, in a very grave case, the sexual infidelity involved the couple’s own children. Would it then be open to the defendant to rely upon those circumstances in order to seek to persuade the jury that the offence of murder should be reduced to manslaughter?

My Lords, I am grateful to noble Lords who have spoken, not least the noble Lord, Lord Thomas of Gresford; although I have to say to him that in his learned speech I was waiting for him to put his amendment, and I waited a long time. He seemed to be opposing root and branch the Government’s amendment, which we are seeking to get back into the Bill, quite understandably given his attitude to it on Report. Then, almost as an afterthought, which did not fit in logically with his opposition to the government amendment, he spoke in a very few minutes, without going into any detail, to his amendment, which in many ways seemed to speak against the principle of opposing any legislation that talked about sexual jealousy or sexual infidelity. With the greatest respect to him, I thought that there was a mismatch between his overall opposition to what we are trying to bring back and the amendment that we are debating.

If I may say so, I take his amendment rather more seriously than perhaps he does. I shall argue against it on the grounds that it is, if I may use the expression, a damn good try to sort this out but, when compared to our original clause, it is not quite as good. I shall try to explain why. I do not want to take up too much of the House’s time, as I know that there are other matters that noble Lords are keen to get on to, but I feel obliged to do this. I shall do it in as short a time as I can. In the course of that, I hope I shall answer the proper question asked by the noble Lord, Lord Pannick.

We cannot accept the amendment before the House, which was tabled by the noble Lord, Lord Thomas, because it risks ruling out cases where we want defendants to be able to make out the defence and it opens up a loophole that could be abused in the very cases that we are trying to put beyond doubt. We think his amendment is both too narrow and too wide. Take the example of the case mentioned by the noble Lord, Lord Pannick, in which a woman discovers her husband sexually abusing their young daughter. This is the sort of case that both Houses quite rightly sought reassurance about when scrutinising the government clauses. The Liberal Democrat amendment risks excluding such a case. I shall try to explain why.

The effect of the amendment is that the defence cannot apply if the defendant acts principally out of a desire to punish the victim for any act, where that act is perceived to amount to sexual infidelity. In this scenario, the defendant may well perceive that the act—the abuse of the child by the father—amounts to sexual infidelity, although this is unlikely of course to be her reason for killing. However, the way that the exclusion is formulated in the amendment means that, once an act is perceived to be infidelity, killing principally in order to punish that act, whatever the motive for killing or whatever else the act may be perceived as, will be excluded. So the mother horrified at the abuse of her child, who may well kill out of a desire to punish her partner for abusing their child, but who also feels hurt by the fact that the father sought sexual gratification elsewhere, would put herself outside the defence on account of the perception of infidelity. That is not something that we would want to happen. By contrast, our approach was extremely carefully tailored after long consideration so as to allow the partial defence to still operate in this situation. Sexual infidelity is involved in this situation, and our clauses require that aspect to be disregarded—that is the word we use—but the defence can still stand or fall on the basis of the other aspects of the situation, namely the fact of the child abuse.

The answer to the noble Lord, Lord Pannick, is that the sexual infidelity motive cannot be recognised, but if there are other motives or reasons that constitute circumstances of an extremely grave character under Clause 45(4) and cause the defendant to have a justifiable sense of being seriously wronged, that would allow the defence to be used.

Our conclusion, therefore, is that this amendment quite inadvertently, and with the best of intentions, captures cases where we think—and both Houses have sought reassurance from us on this point—the defence ought to apply. Of course it is not the noble Lord’s intention that his amendment should do that but, regrettably, it is the effect. In that case, we think the amendment is too narrow.

The Government are also concerned that this amendment covers only those circumstances where the defendant kills to punish the victim for an act of sexual activity or whose motive is otherwise sexual jealousy or envy. Having a list of motives risks creating loopholes where killers can argue that their motive was something else not on the list; for example: fury, shock, embarrassment or betrayal. They are not mentioned in the amendment, so the man or woman who kills having walked in on their partner having an affair could argue that they lost their self-control and killed out of something other than a desire to punish. Focusing on motive inevitably creates these potential gaps. That is why our amendment, which we seek to put back into the Bill, focuses directly on the thing that has triggered the defendant to lose their self-control and to kill. If that thing is sexual infidelity, that fact must be disregarded. Sexual infidelity cannot be relied on as the reason for claiming the partial defence, however the defendant’s motive may be described.

I have taken the amendment seriously. It deserves serious consideration, and I know that it was planned with the best of intentions, but I invite noble Lords to take on board our concerns. Given the debate and particularly what my noble friend Lady Gould said, I hope that the noble Lord, Lord Thomas, will not press his amendment to a vote this evening, as in our view it might well make the position even worse.

We have had another substantial debate on this matter tonight, and it is now up to the noble Lord to decide what to do with his amendment.

My Lords, I am most grateful to the Minister. In my view, the amendment is wider than the Government’s proposal, not narrower. One only has to state the proposition which the Minister advanced—that a person could rely on a defence of provocation because he was embarrassed by sexual infidelity—to see what nonsense that is. Of course there is the question of punishing someone and of jealousy and envy. We have widened the amendment in that regard, so I do not accept the Minister’s criticism that our amendment is narrow, although I accept his compliments for the purpose behind it.

I have the greatest respect for the noble Baroness, Lady Gould. I also have the greatest respect and admiration for Vera Baird. I did not misrepresent her point of view; I just wished that she had taken part in the debate in the House of Commons so that one could grapple with real legal argument as opposed to what I quoted from the right honourable Harriet Harman—the contrast to which I was referring. The numerous organisations which the noble Baroness, Lady Gould, represents comprise people who will be on juries—and there are more women than men on most juries these days—and who will put forward the up-to-date position as the public see it. I refuse to have my argument diverted into a suggestion that I am defending husbands against wives.

My Lords, I apologise to the noble Lord; I should have intervened a moment or two earlier. Many of the women I represent are lawyers. Some are judges and some are academics. They are not people who might happen to sit on a jury; they have a very strong opinion, based on their expertise and their knowledge, that what the Government are doing is right.

My Lords, in that case I hope they will read the record of this debate and what I have said because, if provocation remains as a defence, it is a defence for women who may have killed their partners or husbands, rather than the other way around. That is the important point that I hope my speech has got across. I see that the noble Baroness accepts that that is the thrust of what I have been saying.

This is a very serious issue. It is quite wrong that a bizarre subsection, as the Law Commission put it, should be part of our legislation. As the noble Lord, Lord Elystan-Morgan, said—I am grateful to him for his support—there are huge misconceptions about this. If this goes through, judges up and down the country will have the greatest practical difficulty sorting what juries can and cannot consider as provocation. I just wish that this Government, instead of tinkering about at the edges, had had the guts to reform the law on homicide completely, as the Law Lords, the Law Commission and noble Lords have requested. I may not be successful this evening. Nevertheless, I ask your Lordships to agree to the amendment in my name.

C1: As an amendment to Motion C, leave out “not”.

My Lords, on Monday, in the other place, the Minister said that it was the settled will of the elected House that the free speech safeguard be removed from the statute book. But what sort of settled will is it when not a single Labour Member supported the Government’s case? Indeed, almost the only person on the Labour Benches throughout the debate was the honourable David Taylor who, in spite of the Government having refused to allow a free vote on this matter of conscience, stuck to his guns and voted for free speech.

The issue remains as it was in July: there is no dispute over whether there should be a new offence of stirring up hatred on the grounds of sexual orientation; and no one says that this safeguard weakens the offence or alters the threshold for the offence. The question is: what conceivable benefit will accrue from the repeal of a safeguard for free speech which parallels that in the religious hatred offence—and repealing it without even waiting to see whether, in practice, it interferes in any way with proper enforcement of the law?

The Government say that the words are unnecessary. But they are certainly useful in that, following the precedent set by the religious hatred offence, they provide clear guidance on the statute as regards what is lawful. Their value was well illustrated by the noble Lord, Lord Dear, in July, when he pointed out how the free speech clause was helping the police to resist the pressure put on them to follow up complaints made by people wishing to suppress any criticism of homosexual behaviour. After the noble Lord’s speech, I expected that the Government would go away and think seriously about how this problem might be dealt with; how there might be no repetition of the obvious abuses which have occurred; and how the police might be discouraged from following up trivial complaints. But the Government have done nothing. In our last debate, the CPS guidance was exposed as not only hopelessly defective but calculated to cause mischief. The Government have not yet got down to issuing proper guidance themselves. They have done nothing while abuses have continued.

One other respect in which the Government have clearly failed in their duty is that, after months and months, we are still waiting for them to address the obvious point that, if we are to finish up with a free- speech clause in the religious hatred offence but no such clause here, we are simply asking for trouble. On Monday, the Minister in the other place said that the Government did not approve of the free speech clause in the religious hatred offence. However, they have not lifted a finger to remove it. The question remains: what regard would the police be likely to pay to the right of Christians and others to comment on sexual behaviour if Parliament went out of its way today to say that free speech is important when it comes to comment on religious matters but is of no importance when it comes to comment on matters of sex? We would be giving the clearest signal to the police that they should interfere to prevent any criticism of homosexual behaviour.

On Monday, speaking from the Labour Benches in the Commons, the honourable David Taylor said:

“I thought that free speech, civil liberties and human rights were exactly the sorts of things that we were supposed to be in favour of”.—[Official Report, Commons, 9/11/09; col. 109.]

They are not only the sorts of things Labour supporters are supposed to favour; they are the sorts of things at the core of our democracy, in which we all believe. I trust that we will make that very plain tonight. I beg to move.

My Lords, I oppose the amendment. As the Minister said, this is the fourth time that we have discussed this issue. In July, the noble Lord, Lord Waddington, was successful in gaining the support of a majority of your Lordships. It is before us again tonight because the Government, I am glad to say, oppose it, and this opposition has been supported in the other place.

As I recall, a majority of your Lordships supported the noble Lord, Lord Waddington, on 9 July, believing that the amendment safeguarded the right to freedom of speech. An argument on these lines has been advanced by the noble Lord, Lord Dear, in an article in The House Magazine. In support, the noble Lord quotes Lord Justice Sedley in a judgment in 1999. The judge then ruled:

“Free speech includes not only the inoffensive, but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative—provided it does not tend to provoke violence”.

The qualification “provided it does not tend to provoke violence” is very important.

Those who spoke in support of the amendment last time emphasised that they were not homophobic and did not condone homophobic violence. I, of course, accept that those assurances were given in good faith. We know that there are countries where fundamentalist religions are powerful and it is quite usual there for clerics to advise their followers to attack homosexual people, often in the most gruesome and horrific way. Frequently death awaits those whose sexual orientation becomes known and is disapproved of. We, of course, have established a more humane and tolerant society, of which we are all proud. I am pleased with the way in which, over the years, we have established equal rights so that it is now unlawful to discriminate against people on grounds of their sexual orientation, and we now have provision for civil partnerships.

But that is the law—culture is sometimes different. Sadly, much of our society is quite violent, and there has recently been a growth in violence directed at gay and lesbian people. Some of the worst cases get reported; others are not. Quite a lot of bullying goes on, particularly in schools. There is also bullying by gangs on some of our streets. No doubt the individual who sought to remonstrate with someone who was shouting obscenities at him, believing him to be gay, thought that he was exercising his right of free speech, but he was immediately surrounded, beaten up badly and later died in hospital. The police are treating that as a homophobic crime. No one supporting the amendment would support such activity, but words matter, and that is particularly the case when they appear in legislation. They help to change how people look at the world around them.

Some groups, whether for cultural or religious reasons, simply do not like gay or lesbian people or what they do. They want to be able to say so—yes—but that does not include the right to bully, harass or threaten. The wording of the amendment opens the door to people who want to feel that they have a right to question relationships that are perfectly legal and do not harm anyone, and they can then go on to make threats with impunity. On the last occasion when we had a debate on this matter in this House, I said that we did not want a society in which gay and lesbian people were afraid to go out at night for fear of an attack. There has been an increase in the number and violence of homophobic attacks. We must ensure that this is not one of the unlooked-for results of legislation passed in your Lordships' House. I urge noble Lords to support the Government’s position on this and oppose the amendment.

My Lords, the amendment, which I support, does not in my view encourage anything with which the noble Baroness, Lady Turner, is concerned. It is not designed to have, nor will it have, the effect that she is understandably worried about. If I may respectfully say so, she has got this wrong.

I have had more letters and e-mails this week than I have had on all previous occasions when this matter has come before this House. I should like the Government to appreciate that there is an equal strength of feeling in this House, which is not whipped in the same way—certainly not with regard to Cross-Benchers—as there was in the other place, if not greater. There is a great strength of feeling among a minority of society and we ought not to ignore that either. As I have expressed on every occasion, I do not support what the minority says, but I support their right to say it, because there is and should be freedom of speech.

The real worry is that the lack of an amendment of the kind moved by the noble Lord, Lord Waddington, would give the message that he has described. It is not the message to the Crown Prosecution Service, because it is unlikely that it will prosecute. The message is at the beginning of the investigation; it is what the police think that they have to do. As the noble Lord, Lord Dear, said, and I hope will say again, the police want some protection from being told that they have to act because something has been said that people do not like—they have been sometimes bullied and got at by members of the public. I do not think that the fears are important here. What matters is freedom of speech, which is what we should be supporting tonight.

My Lords, in speaking in support of the noble Lord, Lord Waddington, I make a number of points in fairly quick time. Your Lordships addressed this issue in great depth and detail on 9 July this year, when the debate continued for over two hours. I do not believe that we need take that amount of time today. The facts and issues have not changed.

This has nothing to do with homophobia; the law is, rightly, rigorous enough already. It has everything to do with freedom of speech within the law, a principle that I was happy and proud to uphold in my earlier professional career in the police service. I reflect that upholding that principle of free speech sometimes called for a very delicate judgment, protecting the majority from the minority and almost simultaneously protecting the minority from the majority. I shall return to that police dilemma in a moment.

Surprisingly, I do not recall anyone in our July debate reminding us of the well known, often hackneyed words of Voltaire:

“I disapprove of what you say, but I will defend to the death your right to say it”.

That principle has been a cornerstone of English law for centuries and, until recently, there has been little cause to defend that principle. So long as the words were not intended to cause violence or gross insult, or likely to do so, they were tolerated. Noble Lords have it in their power tonight to protect that principle.

I must say, as the noble Lord, Lord Waddington, has already said, that it seems to me nonsense that, while there is a free speech clause in the legislation dealing with religious hatred, it is now sought to exclude a similar clause in the homophobic hatred offence. Is it, perhaps, that the Government have bowed to lobby groups that are more vociferous in the one category than in the other?

When I spoke in the debate in July, I highlighted the position and plight of the police and the prosecuting authorities. I shall do so again. Before the introduction of the Waddington amendment in 2008, the police and the prosecuting authorities were in an almost impossible position. There had never been any question that behaviour would be tolerated if it was offensive, aggressive, threatening or demeaning. The police would, and should, uphold the law to curb behaviour of that kind. The current law is robust and adequate on this point. But the police regularly received complaints from homosexual groups that exception was taken to remarks that homosexuality was deplored on religious grounds. The police were forced to act. They operated against a background of Home Office guidance notes on how to handle hate crime under the Public Order Act 1986, to which the issue of sexual orientation was added by the criminal justice Act 2008.

The so-called guidance notes in fact required rigid adherence. Any complaint of hate crime, whoever made it, even if it was made by a bystander, had to be formally recorded and fully investigated in the ensuing procedure. No exercise of discretion was countenanced. The prosecuting authorities were bound to go through the whole rigmarole of interview, arrest, fingerprinting, taking DNA samples, police bail and so on, even though it was clear to all concerned that there was little likelihood of a prosecution or even a conviction. As I commented in July, what a waste of time and resources and what a terrible burden on the person caught up in the process. The tactics were sometimes all too obvious: a tactical complaint from a pressure group; the inevitable police response; and the chilling effect on those who might later be tempted to speak up in public in a similar way—all in all, a very successful way of dissuading and limiting free speech.

I reported in the debate in July that the police support the Waddington amendment and I reassert that today. The Association of Chief Police Officers has carefully distanced itself from the issue; it has not declared a position either publicly or, as far as I know, privately. But individual chief officers, members of ACPO, and junior officers who face this problem in the streets have told me privately, in numbers, very clearly, that they support the amendment proposed, which will allow them to use a discretion and common sense that is often denied them in contemporary society and allow them to deal with these situations with that light touch that so many of us, and them, want to see. They resent the straitjacket that had been imposed on them.

While Parliament debates the pros and cons, patent injustices continue. Speaking in the other place on Monday this week, when the Waddington amendment was removed from the Bill, the Minister, Claire Ward, said in her introductory remarks:

“The House is not attacking free speech. It is clear that people retain their right to freedom of speech. The clause is unnecessary because the threshold of the offence is already set incredibly high … We believe that we have got the balance right”.—[Official Report, Commons, 9/11/09; col. 101.]

I very much doubt whether Mrs Pauline Howe would agree with that. Mrs Howe’s experience is by no means the only example that I could cite. Mrs Howe was not a shrill, loud-mouthed demonstrator, shrieking abuse in the streets. She did not carry a placard in public with abusive or insulting words written on it. Mrs Howe is an eminently respectable, highly principled, late-middle-aged, middle-class lady married to a clergyman. She lives in Norwich. In July this year, she wrote a letter to Norfolk County Council. She complained against the holding of a Gay Pride march in Norwich.

The letter, which I have seen, was well constructed and forthright, but it was by no means inflammatory. However, the council officials in their wisdom saw fit to pass it to the police. In September, she was visited and interviewed in her own home by not one but two police officers from Norfolk Constabulary. She was interviewed for writing a letter, not for demonstrating in public. I have spoken to Mrs Howe at length on the telephone and she has authorised me to quote from a letter that she wrote to me. She said:

“I must say, the police officers were professional and polite … nevertheless, the visit frightened me. Why was I made to feel like a criminal when all I had done was to express an opinion? It was an intimidating experience. For 67 years I have been a law-abiding citizen. I know some people don’t like my beliefs. That’s fine, it’s a free country. But surely I have the right to express my beliefs, particularly to a government body, without fear of a visit from police. This is Britain isn’t it?”.

Well, Mrs Howe, this is Britain in 2009 and I dare bet that George Orwell on this particular point would have been hard pressed to envisage such a state of affairs when he was writing his celebrated novel in the 1940s.

The noble Baroness, Lady Turner of Camden, has already referred to the case that I referred to in July—that of Redmond-Bate and the DPP in 1999. She quoted at some speed from it. I want to take noble Lords rather more slowly over those same words, because they bear heavily on what we are looking at tonight. I quoted that judgment at length before and I will not do that tonight—I will not explore the same ground—but the case still provides the best and surest signpost to us in our deliberations.

In that case, allowing the appeal of a woman who was described as a fundamentalist Christian and who had been arrested for addressing a crowd from the steps of Wakefield Cathedral, Lord Justice Sedley in the Queen’s Bench Divisional Court defined free speech, saying in his judgment:

“Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having”.

He concluded that,

“our world has seen too many examples of state control of unofficial ideas”.

It has indeed. I urge noble Lords, keeping the Mrs Howes of this world in the forefront of their minds, to insist in the Britain of 2009 on the inclusion of the free speech clause in the Bill.

My Lords, I rise to plead with your Lordships’ House to reject the amendment and agree with the House of Commons. I do so because it is important for us to recognise the signal that legislation sometimes sends to the world outside. The problem is that we are faced with a clash of competing profound values. No one could possibly argue against the principle of free speech and the need of this House and this Parliament to uphold free speech.

I happen to be gay. I happen also to be a Christian. I like to believe that I am robust enough to be able to be criticised and have offensive things sometimes said to me because of my sexual orientation and sometimes to be abused because of my sexual orientation. Many other lesbians and gay men face the same sort of offence and difficulty week in, week out. The freedom of people to express criticism is something that I defend to the hilt.

However, we also know that the level of violence against lesbians and gay men because of their sexual orientation is increasing. Very recently, we had the case of someone who was first shouted at, then abused and then assaulted in the heart of our capital city; he subsequently died. The attack happened because of his sexual orientation. We can support the expression of intolerance, but the problem comes when intolerance spills over into physical violence.

I am not suggesting that anyone who says that we should protect free speech in relation to this amendment would conceivably condone activity of that kind, but the problem is—

Is that point not already covered under existing law quite clearly and therefore what the noble Lord is saying has no bearing on what we are discussing tonight?

I am afraid that it does. The point that I was about to make is that legislation, in the signals that it sends to the world outside, can have an impact on behaviour way beyond the actual meaning of the words in the legislation. There is already a huge amount of anxiety and fear among the gay community about the increasing level of attacks. If the signal that the House sends is that it is all right to be intolerant, I fear that we will end up seeing more violence and more attacks and more difficulty for people simply because of their sexual orientation. That is why I feel so passionately. If this House stands up for free speech, as it so often has to, on this particular matter, it is at risk of sending the wrong signal to the wrong people outside.

My Lords, first, the only reason that the House of Commons has given for rejecting the amendment agreed by your Lordships is that it is unnecessary. Secondly, it has been said a great many times that the House of Commons has voted on this from time to time, but there is one important omission from that little category; namely, the time when it became part of a statute. The House of Commons at that stage must have agreed to it because it is on the statute book. It is not a question of still being an amendment proposed by the noble Lord, Lord Waddington. Unless and until an Act of Parliament is passed to change it, it is on the statute book by agreement of the Lords Spiritual and Temporal. I know that the Government said when they accepted the amendment as part of the statute that they would return to this matter, but that is aside from the point that they allowed it on to the statute book at that time.

As far as I am concerned, the main thrust of the clause that is in the Bill and remains in the Bill is against any kind of violence against those with a sexual orientation that is in question. The provision is very strong against that. Nothing in the amendment proposed by the noble Lord, Lord Waddington, detracts from that in the slightest. Over the years, this House has had the responsibility of maintaining the freedoms that have been hard won in our country. I believe that we should not flinch from doing that just because they happen to be attacked more than once, twice, three or four times.

Indeed, when the Minister in the House of Commons was summing up just before the vote was taken, she said:

“It is important that we make it clear to the public and to those who have strong religious and moral views that we are in no way fettering their freedom of speech”.—[Official Report, Commons, 9/11/09; col. 122.]

I invite your Lordships to support the amendment proposed by the noble Lord, Lord Waddington, which does just that.

My Lords, I shall say very little because virtually everything I wished to say has been said by the noble Lords, Lord Waddington and Lord Dear, and by the noble and learned Lord, Lord Mackay. Having read Monday’s debate in the other place, as others have said, the case seemed to be asserted but not made. I believe that this element of what, as the noble and learned Lord, Lord Mackay, rightly said, is the law, is necessary. It does not affect the very high threshold, but it makes clear that this element of the law we are talking about keeping is permissible. It protects individuals and society from the chilling and dumbing effect on free speech and debate that the noble Lord, Lord Dear, particularly, in the past, in writing and this evening, has clearly expressed.

I want to take issue with the noble Baroness, Lady Turner, and the noble Lord, Lord Smith. I want to say to the noble Baroness that words do matter, but, as the noble Lord, Lord Waddington, intimated but did not go into detail about, the absence of words matters too. If these words are not on the statute book, it will be harder for the police to be assisted in the ways in which the noble Lord, Lord Dear, has expressed. They need to be assisted to work in a way that uses their intelligence, common sense and judgment, and thus do not waste time investigating people who have not done anything to deserve being investigated, long before the Attorney-General comes into the picture.

I say to the noble Lord, Lord Smith, that signals matter, and they do. I share with him a horror of the fact that people are attacked, beaten up and killed because others believe them to be homosexual or because they are homosexual. That is manifestly wrong and wicked. But, as the noble Lord said, many others live increasingly in anxiety and fear. There is a very strong sense across quite a wide swathe not only of Christian opinion but of other opinion that the rights of those who hold the kind of views that this law would defend are seen as second-class. That is even there in the language of the noble Lord, Lord Smith. He said that it will be taken that it is all right to be intolerant. That is a particular kind of judgment on those who take the view that this amendment in defence of a piece of law seeks to sustain.

Notwithstanding an unargued assumption of the Government that they must carry on in this way, it is most important that people of all sorts can be assured that, whether they are on street corners, in mosques, churches or synagogues, or be they journalists, academics, comedians or whatever, they are free to express views with which others may strongly disagree and which question the currently dominant political orthodoxy in these matters.

My Lords, with regard to Mrs Howe, whose name was mentioned, she and her husband are personal friends of mine and I want to support all that my noble friend Lord Dear said on Mrs Howe’s behalf. I have no hard feelings against anyone because of their sexual orientation or any orientation, whether it is religious, political, ethnic or anything else, but I do not think that it has been mentioned tonight that people taking part in gay pride marches can offend those who do not agree with them, even though they do not say a word. I never go to see the gay pride marches, but as a born-again Bible-believing Christian, I have been offended when people have carried placards and shouted out that Jesus Christ is a fag. That has offended not only me; it has offended thousands of Christians. It has offended even people who are not practising Christians to think that others have been offended in this manner. I believe in free speech for all and it would be totally wrong to support the Government tonight. I support the noble Lord, Lord Waddington, 100 per cent.

Let me start by making it clear that on these Benches, as with issues of conscience—we consider this Motion to be an issue of conscience—we have a free vote. My remarks, from the position on which I stand, are mine and mine alone, and I accept responsibility for that. However, I speak as a Liberal. In a democracy, free speech is a fundamental prerequisite that allows for all people, but particularly for minorities, however off the wall their views might be, to find expression of those views. The Minister told us that where incitement is concerned we need his clause. If it is incitement, statute exists to cover those crimes.

Those minorities who have views on the basis of prejudice or, as the noble Lord, Lord Smith, said, ignorance or—I speak from a certain perspective with which the House is familiar—from a religious perspective, where those views do not impinge on the rights of others, they should be given expression in a tolerant and just society. It is for the rest of us in this kind of society to help those who hold entrenched religious views to cast their objections to our behaviour in respect of the values that prevail today. Therefore, it is our duty—I speak as a Muslim—to help others from among our ranks who for religious reasons do not go along with certain freedoms and to work with them so that they can see that our values might, in another instance, protect their values.

I shall comment briefly on the chilling effect that these kinds of clauses have. To paraphrase the noble Lord, Lord Smith, he implied that legislation has a totemic effect on society whereby lessons are drawn from it without it having had to be applied. It also has the reverse effect; namely, that the existence of something in a statute makes one think and think again. That is an impingement on a person’s freedom. So when we make law, we have to be extremely careful not to bring about unintentional effects. The number of plays that are withdrawn, exhibitions cancelled, writers threatened or academics unable to publish are too numerous for me to mention, but I know full well that this chilling effect exists.

Finally, speaking as a member of multiple minorities—of a religions minority, an ethnic minority and, in this House, a gender minority—I say that we look to the law for protection probably more than most others. We look to the law for protection, but not at the cost of impinging on the freedoms of all.

My Lords, I do not intend at this hour to repeat what I said in previous debates. I support the amendment of the noble Lord, Lord Waddington. I thought that we had done sufficient, in the education of the other end of the building, to see that this would not come back. I will not go into the highways and byways, but will deal with two things. The first is the question of signals. If this House were to reject an amendment that calls for freedom of speech in our nation, that signal will be misrepresented and used against politicians of all parties for a long time.

Secondly, today is an appropriate day for this debate. We have seen a magnificent service in Westminster Abbey, following the tremendous display of support for our Armed Forces and veterans on Remembrance Sunday. On Saturday evening, I and others were privileged to hear a Member of this House, the most reverend Primate the Archbishop of Canterbury, deliver his homily to the gathered ranks in the Albert Hall. We heard him use the word “freedom”. The freedom that he referred to was also the freedom that those gallant people who were represented at the weekend fought for over many generations. It is the same freedom that Her Majesty the Queen honoured when she showed her support for civilians and servicemen who have been through dreadful times. The word that keeps coming through is “freedom”. In my book, the basic freedom that should always be included is freedom of speech. I support the amendment.

My Lords, I intervene briefly, first to make it clear, as the late Lord Kingsland did in Committee, that on these Benches this is a matter for a free vote. It will be entirely up to each Member on these Benches to decide how to vote. I shall support my noble friend in due course.

Secondly, I will pick up the point made by the Minister about this matter being debated four times, and sent back to us four times by another place. This was very well dealt with by my noble and learned friend Lord Mackay of Clashfern. My late friend Lord Kingsland made the same point in June or July when he said that the Government chose not to oppose the decision taken in your Lordships’ House last year to support,

“my noble friend Lord Waddington’s amendment, which subsequently became Section 29JA of the Public Order Act 1986”.

My late friend continued:

“It is, in my view, an abuse of parliamentary procedure to bring this matter back to Parliament without any evidence that Parliament had made bad law, especially when the same Government are in power. Indeed, the Government say, in terms, that Section 29JA is not bad law. Their case is that it is unnecessary law because the definition of the offence of incitement implies, in terms, the contents of my noble friend Lord Waddington’s amendment … In these circumstances, it cannot be good constitutional practice for a Government to compel Parliament, the law-maker”—

and this is what they are doing—

“to spend further time on this matter. Indeed, I would describe it as abuse of legislative procedure”.—[Official Report, 9/7/09; col. 812.]

With that and with the speeches that we have heard this evening, we should invite the Minister to comment and then invite the House to come to a decision on the issue.

My Lords, I thank all noble Lords who have spoken in the debate on both sides of the issue—starting with the noble Lord, Lord Waddington. I will deal with a couple of preliminaries. I was interested that the noble Lord reaffirmed that, in this House at least, his party is on a free vote. That was not the case in the Commons the other day. The honourable Mr Dominic Grieve said:

“We on the Opposition Front Bench will vote to support Lord Waddington’s amendment”.—[Official Report, Commons, 9/11/09; col. 109.]

If that is not a Whip, I do not know what is, but I am delighted that there is not one today—but perhaps noble Lords would tell me what it is.

My Lords, I fail to see the relevance of the noble Lord’s point. We are talking about what goes on in this House. I made it clear that we on these Benches have a free vote. Will he confirm that the same is true on his Benches?

My Lords, I will not. This is government policy and we expect Members on our Benches to support the Government—I make no bones about it. It is not we who are ambiguous about this, but the noble Lord’s party. In the Commons, their Front Bench spokesman said that their Front Bench would vote to support the amendment of the noble Lord, Lord Waddington. That did not sound to me like a free vote, but a hint to those behind him and a message to those sitting on the Front Bench with him. Is it a free vote or not? I recall that the last time that we debated this, in Committee, there was a so-called free vote—the noble Lord used the same expression.

My Lords, I wonder whether I would be right in saying that 99 per cent of the Members in this Chamber have already made up their minds which way they are going to vote. Will the Minister cut the cackle and let us get on with it?

Hear hear.

My Lords, there is no answer to that. I will cut the cackle, but it will be interesting to see whether there will be a repeat of what happened last time there was a “free vote”, when about 109 out of 111 of the party opposite voted in one Lobby and their Whips were seen in the Lobby during the vote. We will see tonight whether that changes.

My second point is that the noble Lord, Lord Waddington, talked about the settled will of the other place. He made the point that one government Back-Bencher got up to support the Government the other day. I will tell him what the settled will of the other place is.

My Lords, no member of the Labour Party supported the Government. The only member of the Labour Party who spoke, spoke in favour of my amendment.

My Lords, the honourable Claire Ward, a member of the Labour Party in the House of Commons, spoke very well on that occasion. The noble Lord says there is no settled will of the other place. The settled will was expressed in the majorities of 169, 202, 154 and 197. That seems to me to represent conclusively the settled will of the other place. It is perhaps time, on this issue, that this House realises that it not the elected House.

The noble and learned Baroness, Lady Butler-Sloss, made the point that there is great strength of feeling in this House. Of course there is—I accept that and respect it, even though I disagree with many noble Lords. The noble and learned Baroness contrasted that with the strength of feeling in the other place. There is great strength of feeling on this issue in both places. The difference is that the other place is the elected place—this House is not elected. I am sorry to repeat the proposition, but it is normal and constitutionally proper, when the other place has voted on as many occasions as it has with such huge majorities on an issue such as this, to support the views of the elected Chamber.

The issue is not really freedom of expression. No-one here is against freedom of expression. I have already tried to point out that freedom of expression is preserved by this legislation, first, by the fact that the Attorney-General has to approve of all prosecutions and she is bound to follow the European Convention on Human Rights. Secondly, two very distinguished groups—the Joint Committee on Human Rights and the Equality and Human Rights Commission—have looked at this matter carefully and concluded that there are no freedom-of-expression issues.

If you are to have freedom-of-expression clauses in the Bill, why not have them in every Bill? Why do you not always have a freedom-of-expression clause?

The Minister is on an important point. Perhaps he can give us a guarantee that the Government will not seek to remove the similar provision concerning religious discrimination.

My Lords, I cannot give guarantees about any future Government. That provision was passed by a majority of one vote in the House of Commons and became the law. Of course I understand that completely. However, the noble Lord may hope that his party will come to power in a few months; if that is to be the case, how can I possibly give any guarantee as to what it may or may not do? This is not at all about freedom of expression. We all agree that there should be maximum freedom of expression.

I turn to the case of Mrs Howe. I understand the comments that have been made about her and that she is a personal friend of the noble Baroness, Lady Paisley. However, given that the case has been also raised by the noble Lord, Lord Dear, I should tell the House what this middle-class lady said in her letter to Norwich City Council. She referred to homosexuals as “sodomites” and blamed, “their perverted sexual practice” for sexually transmitting diseases and for the “downfall of every Empire”. She is, of course, absolutely entitled to make those remarks. The chief executive of Stonewall himself said that the police response had been disproportionate, so the very suggestion that she would somehow fall foul of this legislation, if there were no freedom-of-expression clause in it, is absolute nonsense. Whatever view you take of what she did, it was hardly threatening, nor was it intended to stir up hatred on the grounds of sexual orientation. This lady was entitled to make her remarks; she did so, and the police have been criticised. What has it got to do with this particular issue?

The noble Lord said that the police have been criticised. That is not the real point. This lady wrote a private letter to her local authority and it should have been kept confidential. The police would not have been involved unless that local authority—perhaps by breaking the Data Protection Act—had passed on the letter to the police. Have we reached a stage in this country where a council tax payer cannot write to their local authority criticising something without that private letter being passed onto the police? That is the real point.

The noble Lord makes a fair point.

Perhaps I may intervene. I did not speak earlier, because we wanted to get through the debate quickly. I live in Brighton where you have complete freedom.

My Lords, you cannot have an intervention on an intervention. I should like the Minister to be allowed to answer my intervention.

I think that I already have done that. The noble Lord made a fair point. The point that I am trying to make is that this lady would not fall foul of this legislation, whether or not there was a freedom-of-expression clause.

My Lords, I come from a city where there is freedom. You can write to the local newspaper, criticise gay pride, raise issues on the radio and in phone-ins, and no action is taken by the police. Will the Minister clarify the position as regards ACPO, given that we are provided with much evidence, based on confidential discussions with police officers who are not named and which we have no way of checking?

I am grateful. I was just about to move on to ACPO and what the noble Lord, Lord Dear, told us. He said in July:

“However, my recent discussions privately with senior ACPO figures, including those most closely involved with issues of this nature, reveal two facts critical to our debate today: first, not only has ACPO not declared an official stance but it has not given an unofficial view in any quarter; secondly, it would much prefer to see the defeat of Clause 61 and the continuation of the Waddington amendment”.—[Official Report, 9/7/09; col. 803.]

Stephen Otter, the ACPO lead on race and diversity, was so concerned about that statement that he wrote to the Government before we contacted him on the issue. He wanted to clarify that ACPO,

“would not enter into this debate on either side”.

He clearly believed that the views of his organisation had been misrepresented. He said that,

“individual chief officers … may or may not have expressed a variety of view … but it is vital these conversations are not taken as representing the view of ACPO in its role of representing the police forces of England and Wales”.

Consequently, it is simply wrong to suggest that ACPO is for, or indeed against, the retention of Section 29JA of the Public Order Act. I am entitled to ask from this Dispatch Box why we heard, not just in Committee but tonight, the view that stated, “Hush, hush; secret, secret; police officers are for the Waddington amendment”. It seems to me that the noble Lord, Lord Dear, is trying to have it both ways. He is trying to say that ACPO does not have an official policy on this, but I have spoken—

In another place and, I suspect, in another age, I would be sending my seconds round to the Minister at this point—but I resist that temptation. Perhaps I may read from my speaking notes accurately for a second time. I said:

“The Association of Chief Police Officers (ACPO) has carefully distanced itself from the issue. It has not declared a position either publicly, or so far as I know, privately. But individual Chief Officers (members of ACPO), and junior officers who face this problem in the streets, have told me privately, very clearly, that they support the amendment”,

because it gives them discretion, and so on. Perhaps I may say that I am probably better placed than most noble Lords in this House to take a straw poll of the opinion at ACPO level, unofficially and on the streets. I stand by what I said.

I hope that I have answered my noble friend; he knows ACPO’s position.

I repeat that these offences relate only to threatening words and behaviour intended to stir up hatred. They were introduced because of the fact that gay men were often subject to attacks of this kind. That is why the legislation was introduced. Those uttering such words or exhibiting such behaviour should not have the cloak of so-called freedom of expression saving to protect them.

This is a moment of truth. Do we really mean it when we say that gay men and lesbian women should be treated as equal, and that we should do all we can to avoid them being discriminated against, threatened and having violence used against them? Or do we think that it does not really matter? Although very distinguished speeches have been made on behalf of the noble Lord, Lord Waddington, not least his own, the claim that he and those who support him make, that this is an issue of freedom of speech, is untrue: it is not about freedom of speech at all. Freedom of speech is guaranteed. People in this country should not be arrested under this section because they have behaved or spoken in the same way, for example, as the lady who was mentioned. We are talking about an extremely serious criminal offence with a very high threshold. Not only is the freedom of expression clause unnecessary but it has the danger that it may lead some of those who attempt to commit this offence to rely on the cloak that it offers. So those who really believe what they say about equality as far as sexual orientation is concerned should support the Government tonight.

I am bound to say that I have been rather surprised by the Minister’s reply. At no time has he sought to address the issue before the House tonight. There is no doubt that there have been abuses in the sense of inappropriate action by the police. My amendment is an attempt to prevent those abuses continuing. The Government have not said one word as to how they propose to deal with this difficulty with which we are faced today. Therefore, one can only describe the Minister’s reply as failing completely to meet the object of such a reply; that is, to answer the points made in the debate.

I know that the House wishes to come to a quick conclusion over this matter. I shall say no more except thank all those who have taken part.

That this House do not insist on its Amendment 66 to which the Commons have disagreed and do agree with the Commons in their Amendment 66A in lieu thereof.

My Lords, Amendment 66 seeks to establish an independent commissioner for terrorist suspects. As my noble friend Lord Brett indicated in Committee, we are concerned that the establishment of such a commissioner would have a detrimental effect on the efficient and effective conduct of terrorist investigations. Such investigations are fast-moving and having to accommodate a commissioner would cause delays to extension hearings and could be used by suspects to hamper investigations.

The period between the arrest and charging of a terrorist suspect is one of considerable pressure. It is possible that suspects could use the role of commissioner to manipulate and control the time available for an investigation by requesting private interviews or by insisting on the commissioner’s presence in police interviews. It is also possible that suspects could be detained at different locations throughout the country—for example, in Manchester, Bristol and London. The length of time that could elapse before a commissioner was able to visit all detainees would be unacceptable. These concerns are shared by the police, the CPS and, in Scotland, the Crown Office and Procurator Fiscal Service.

I note the concern of the noble and learned Lord, Lord Lloyd, about the need for further balanced scrutiny of the pre-charge detention process for terrorist suspects. However, this process is already rigorous. At present, those arrested can be detained for 48 hours, after which the police or CPS must apply to a judicial authority for a warrant for further detention—a WFD. This judicial authority is to be a designated district judge when the person has been detained for less than 14 days and a High Court judge thereafter. Applications for WFDs are for a maximum period of seven days at a time. If a period of longer than seven days is required, up to a maximum of 28 days, further applications by the police or prosecutor must be made before the expiration of each seven-day period.

Each application for a WFD requires detailed preparation. Preparing it is time-consuming and places significant pressure on the police and prosecutors to meet the required deadlines. The application for a WFD must include detailed grounds that set out relevant considerations, including details of interviews, forensic examination and any financial investigation. All applications to extend the detention period beyond 14 days need to be considered and made by the CPS. If the CPS considers that there are no grounds for making the application, it will not be made. When granting a warrant for further detention, the judge must be satisfied that the further detention is necessary to obtain relevant evidence by questioning the suspect or otherwise, or to preserve relevant evidence, or pending the result of an examination or analysis of any relevant evidence, and that the investigation is being conducted diligently and expeditiously.

In April this year, Her Majesty’s Crown Prosecution Service Inspectorate reported on the CPS’s counterterrorism division. As part of the report it examined 12 cases from a sample where there had been pre-charge detention. In all cases the inspectorate was satisfied that there was evidence on the file that pre-charge detention had been properly monitored and reviewed.

While it is clearly regrettable that the other place did not have the opportunity to debate the amendment on Monday of this week, it is none the less clear from the vote that the other place shares our concerns, given that it voted by a majority of 223 to disagree with the Lords amendment. The other place has, however, offered an amendment in lieu, which I commend to this House. That amendment provides for enhanced independent scrutiny and further guarantee of the treatment of terrorist detainees.

The amendment in lieu proposes two changes to bolster the existing arrangements. First, it seeks to give statutory force to the independent reviewer of terrorism legislation’s ability to review and report on the treatment of persons detained under a warrant of further detention under the Terrorism Act 2000—that is, broadly speaking, persons detained beyond 48 hours from the time of their arrest. The reviewer may dedicate a specific section of his annual report to the treatment of terrorist suspects detained for these extended periods. The report may cover whether Parts 1 and 2 of Schedule 8 to the Terrorism Act 2000 are compliant with the PACE codes of practice, which deal with the treatment of detained persons and the review of their detention by the police. In order to reinforce this legislative change, the Home Secretary will write to the noble Lord, Lord Carlile, making it clear that he is able to visit any detention facility where terrorist suspects are held and observe police interviews in real time or view or listen to interview tapes. He may also attend any extension hearing that he chooses, but he would not have a role in the actual hearing other than as observer.

Secondly, the amendment in lieu will extend the role of independent custody visitors under Section 51 of the Police Reform Act 2002. Independent custody visitors will be allowed to view or listen to recordings of any police interviews with the suspect. They will also be required to provide a report on their findings to the relevant police authority, which will pass this on to the independent reviewer. Custody visitors will be required to attend specialist training prior to starting their extended duties and will need to be appropriately security-cleared. Amendments will be made to the national code of practice for custody visitors to reflect this and the increase in their responsibility.

I believe that the approach set out in the Government’s amendment and in the letter to be sent to the noble Lord, Lord Carlile, will provide the additional protection for terrorist suspects that provided the motivation behind Amendment 66, while not having a detrimental effect on terrorism investigations. I beg to move.

My Lords, I find it disappointing that the Government’s objection to the notion of having a special commissioner for terrorist suspects is based on the idea that it would somehow obstruct speedy or fair process. This idea is part of UK experience; it has been in operation in Northern Ireland. Why is it considered wholly unsuitable to be deployed in current circumstances? I find this very difficult to understand.

It is a great pity that the Government are not prepared to accept that the reassurance that such a process and such an individual would provide is suitable to our current circumstances. After all, we may have to live with this for a long time. When we debated the proposal, your Lordships’ House was not convinced that extending the role of independent custody visitors or that of the statutory reviewer of terrorism legislation, the noble Lord, Lord Carlile, was a sufficient step. I do not at all suggest that these people do not do a very important job—they most certainly do—but it is a great pity that the Government have taken the stance that they have.

We need to enlighten ourselves on certain issues regarding how the system that the Government are proposing will operate. The proposal does not satisfy the point that is constantly made by the Joint Committee on Human Rights, which is that the current arrangements for judicial authorisation of extended pre-charge detention do not satisfy the requirements of either habeas corpus or Article 5 of the European Convention on Human Rights. I do not believe that the Government’s ideas will meet those requirements.

However, in the spirit of wanting to know how this might operate, I ask the following probing questions. The first relates to the role of the statutory reviewer of terrorism legislation. If the noble Lord, Lord Carlile, has always had—as appears to be the case—the power to review the operation of Section 41 of the Terrorism Act 2000 and the related codes, can the Minister confirm whether he has attended any detention hearings so far and whether he has reported on them? If he has not done so, why is that the case and why did not the Government ask him so to do?

Secondly, I am sure that the Minister will agree that the noble Lord already has a significant amount of work to do in relation to the operation of other parts of terrorism legislation. It would be helpful to know whether discussion has taken place with him about how much extra time looking at the whole position of the detention of terrorist suspects will involve.

Thirdly, it would be helpful to know how it is intended that the noble Lord will go about his work. Is it the intention that he will visit the majority of terrorist suspects? Will his office be given any additional support for this task? Will he be able to feed in to detention hearings, or will this be only an ex post facto task? That is an important point. Is this going to be a living part of the procedure or is it simply going to be a case of reviewing in order to comment on, and possibly find fault with, what has previously happened? That relates very much to the findings of the Joint Committee on Human Rights.

My second set of questions is about the role of independent custody visitors, who have been put forward as important people in this scenario. First, will police authorities be required to prioritise terrorist suspects for visits by independent custody visitors? Will this actually happen?

Secondly, will there be additional training and guidance for custody visitors in preparation for this task? These are not things that custody visitors normally do. Related to this, is it the intention that there will be a specialised cadre of custody visitors? I come back to the specialist nature of the task. This is why it seems to us that an independent commissioner would be so much better.

Thirdly, what are the grounds for denying independent custody visitors access to records of interviews? I am absolutely prepared to believe that there would be legitimate grounds, but it would be helpful to know how those are defined by the Government, because the amendment does not specify what these grounds are now or might be in the future. Without some specificity, it is obviously possible to restrict the role of custody visitors so that they could not report fully on the detention of terrorist suspects. That is an important point in practical terms.

Related to that is my fourth point. Can the Minister confirm that in cases where the independent custody visitor had concerns after having heard records of interviews and/or having spoken to the suspects, he would then be able to communicate them to the judge before a detention hearing? This comes back to whether this is an academic, ex post facto activity or whether it is intended to apply safeguards within the procedure as a living procedure. That is very important and it will be a requirement if this is to be a real safeguard.

Fifthly, how will the Government act on the visits and reports of independent custody visitors? Even now, some of the recommendations of the noble Lord, Lord Carlile, are ignored. Therefore, what hope will custody visitors have of being able to influence the operation of Section 41 and the related codes of practice?

I worry that the Government’s proposals will neither achieve comprehensive monitoring of the detention of terrorist suspects nor improve the procedures of detention hearings. Therefore, the Minister’s response to my points will be very important as regards how effective and acceptable the Government’s ideas are as an alternative to what we think should be the case. I very much look forward to the Minister’s explanation of how the proposals will work in practice. I should add that, should the Conservative Party enter office, we will want to revisit this topic.

My Lords, I share the regrets and concerns expressed by the noble Baroness, Lady Neville-Jones. Of course, the purpose of the new clause agreed to by this House is to ensure that, where the police apply for an extension of the period of detention for a terrorist suspect, the judge has information that may assist him or her in understanding any weaknesses in the police case for an extension of custody. That is a vital matter.

I thank the Minister for the steps taken by the Government to address these concerns to some extent, as approved by this House. However, I seek two assurances from the Minister; I know that they are matters that also cause concern to the noble and learned Lord, Lord Lloyd of Berwick.

First, can the noble Lord confirm that, because the independent custody visitors are positively vetted, it is not the intention of proposed new subsection (3A) to deny them access to the audio or video recording simply because it contains information whose publication would be damaging to national security? Can the Minister assure the House that subsection (3A) is simply intended to cover a much more specific and much narrower set of circumstances—that is, where the recordings would disclose an ongoing police operation that it would be damaging to reveal at that time?

The second matter on which I seek an assurance has been mentioned by the noble Baroness. It concerns the vital matter of communication of information from the independent custody visitor to the judge. Can the Minister assure the House that a procedure will be devised to ensure that, after the independent custody visitor has seen and heard the recordings, he will be able to communicate his views to the judge, who will decide on whether there should be an extension of custody?

My Lords, perhaps I may first address the concerns of the noble Lord, Lord Pannick, who explained rather better than I can from my notes the basis of his first point. Proposed new subsection (3A) is meant to relate to the narrow point of operational police matters. Because the ICVs will be appropriately cleared, they will normally be able to listen to recordings and so on.

The second, and I think key, point was made by the noble Baroness. It concerns whether this is other than an ex post facto exercise. It is not and it would be wrong of me to try to use words that gave comfort in that direction. We believe that the process will be powerful in monitoring whether the procedure has been carried out properly. Earlier, I gave the noble Baroness various assurances about the inspectorate looking at how this is done. I was asked whether the ICVs would have any input into the observations of the noble Lord, Lord Carlile. I do not think that this will be a simply academic process. I believe that the fact that the views of responsible persons will be looked at carefully by the noble Lord, Lord Carlile, will have an effect on maintaining standards.

One of the most telling points made by the noble Baroness—I can see why it was quite attractive—concerned the Northern Ireland experience. The independent commission worked well in Northern Ireland because it was a small jurisdiction with one place where subjects were held and with high levels of co-operation between the police and the commission. On the mainland, however, a significant number of terrorist suspects have been arrested and held in police stations throughout the country, including in London, Devon, Manchester, Kent, Heathrow, Norfolk, Nottingham, Surrey, Buckinghamshire and the West Midlands. With so many forces potentially involved, it would be harder to maintain levels of co-operation and communication. Ultimately, the commission in Northern Ireland was no longer deemed necessary because of the significant overlap with the work of other bodies charged with inspecting and investigating pre-charge detention conditions—for example, the work carried out by the noble Lord, Lord Carlile, lay visitors and the HMIC. In fact, I believe that the commission was abandoned in 2005.

I turn to the other points raised by the noble Baroness. There will be a specialist coroner. He will receive specialist training and will of course be appropriately security-cleared. On the JCHR, we are sensitive to the Joint Committee’s views, but the Government take the view that the process is rigorous, for the reasons that I set out earlier.

With regard to the extent to which the noble Lord, Lord Carlile, will be involved in this work and the amount of time that he will have to spend on it, it is unlikely that he will attend more than the odd extension hearing, because he has no role in the process. As I said, his role is ex post facto; none the less, it is a powerful role. He is likely to limit his detention centre visits to the most serious investigations.

The noble Lord, Lord Carlile, has been consulted about the amendment. He already has a statutory role in relation to the operation of the Terrorism Act 2000, which includes reporting annually on the operation of pre-charge detention. Although he has tended not to get involved in individual cases, his role does not preclude him from doing so. Indeed, he has reported on the individual cases of those involved in Operation Pathway.

I hope that, with those explanations, the House will be able to support the Motion.

That the House do agree with the Commons in their Amendments 1 to 3.

My Lords, I shall speak also to Amendments 18, 19, 21 to 26 and 28.

Amendment 1 to Clause 7 was agreed in the other place to ensure that references to the Marine Management Organisation in regulations made under Section 4(B) of the Sea Fish (Conservation) Act 1967 are linked to the exercise of the MMO’s functions, rather than to geographical area. Amendment 2 to Clause 21(4) ensures that Schedule 15 to the Deregulation and Contracting Out Act 1994, which concerns restrictions on the disclosure of information, applies to a body exercising functions on behalf of the MMO.

Amendments 21 and 22 are necessary consequential amendments that we missed in the earlier drafting and correct the definition of the gas importation and storage zone in Section 35 of the Energy Act 2008, which has been invalidated by the amendment made to Section 1(5) of the Energy Act by paragraph 5 of Schedule 4 to the Bill. Amendment 23 to Schedule 4 was agreed in the other place to remove provisions amending the British Fishery Limits Act 1976 to take account of the creation of the Welsh zone. These provisions are no longer necessary as the required changes will be achieved by the transfer of functions order which is to be made under Clause 43 transferring fisheries functions in the Welsh zone to Welsh Ministers.

As we turn to the amendments to Part 3 made in the other place—Amendments 3, 18, 19 and 24—I take this opportunity to tell the House of recent developments on the subject of planning in the Scottish and English border areas, which is not an unimportant issue. I note that the noble Duke, the Duke of Montrose, is nodding assent. The House will recall that we debated how planning would operate in the Solway Firth. I am pleased to tell your Lordships that the Minister for the Natural and Marine Environment and the Scottish Cabinet Secretary for Rural Affairs have agreed a joint statement on marine planning in the areas bordering England and Scotland. This statement makes clear our commitment to build on cross- border collaboration already in place to enable a joined-up planning process across the borders. A copy of this statement will be placed in the House Library.

Amendment 24 to Schedule 5 is a missed consequential amendment on the changes made to Schedule 5 at the Bill’s Report stage in this House. It clarifies that the timetable set out by the policy authorities in the statement of public participation for the preparation of the marine policy statement must include time for carrying out the appraisal of sustainability. Amendment 3 is also consequential on changes made to the Bill in this House, which added a subsection to place a duty on a marine plan authority to seek to ensure that a marine plan or marine plans are prepared for the whole of the marine planning region where an MPS governs marine planning for that region. However, some adjustment to the drafting was required to ensure that the provision would work as intended by this House.

Amendments 18 and 19 were made in the other place to provide for early commencement of certain provisions in Part 3 referring to marine planning. These provisions relate to the preparation and publication of a statement of public