House of Lords
Monday, 8 February 2010.
Prayers—read by the Lord Bishop of Manchester.
My Lords, this Government will continue to fund learning and skills provision in prisons from April onwards through the Skills Funding Agency. For those in youth detention, the Government will fund education through the Young People’s Learning Agency from April, and from September this will be funded through local authorities with funds allocated to them by the Young People’s Learning Agency.
My Lords, I thank the Minister for that reply, which was rather what I feared. Only in the past three years has education in prisons come together under one authority, the Learning and Skills Council, but that is now to be abolished and the responsibility is to be split between two organisations. Who will be responsible for telling the YPLA and the SFA what they have to fund so that provision is consistent for prisoners of the same type wherever they happen to be held in the United Kingdom? Who will lay down who does what on a split-site young offender establishment, which has juveniles who will be under the YPLA, and subsequently local authorities, and young offenders under the SFA? Who will control that?
My Lords, as the noble Lord, Lord Ramsbotham, knows, after rather extensive discussions on those issues during the passage of the Apprenticeships, Skills, Children and Learning Bill, there is a transition process from the Learning and Skills Council to the Young People’s Learning Agency and the Skills Funding Agency. It is done on an age criterion. We believe that that will be a more appropriate system for providing education for young people in custody, which is one of the principal concerns. The YPLA will deal with those up to the age of 18 and the Skills Funding Agency from 18 onwards. The prison authorities will be notified accordingly. An important point is that spending on education for young people in custody has increased since April 2000 more than sevenfold.
My Lords, education in prison is a proven pathway to reducing reoffending. Given that two-thirds of prison education is provided by further education, what measures are the Government taking to ensure that changes in college funding do not impose additional disadvantage on this most vulnerable group of learners?
I thank the noble Baroness for her question. We will reply in detail in writing. We do not expect them to be disadvantaged. Educational provision for offenders has risen threefold from £57 million in 2001-02 to more than £175 million in 2009-10. We are not expecting any impact in that respect. I will give a more detailed reply in writing in relation to that point.
Does the Minister agree that it is not only young people’s education that one should worry about? It is the mature person who can neither read nor write and therefore has the utmost difficulty ever getting a job, which starts him on the road downhill. I hope the Minister agrees with me that education all round in prison is vital.
I agree with the noble Baroness about education all round being of prime importance. For the over-18s, the Skills Funding Agency will continue to fund a full range of courses from below level 2 through to level 4. We know from reoffending rates that those who receive education and employment help are least likely to reoffend.
My Lords, we do not see a problem with local authorities delivering an education service to prisoners. We laid down specific safeguards in the Apprenticeships, Skills, Children and Learning Bill. They are best placed to provide education. We believe they will have an incentive to ensure that young people, for example, are delivered the education they need while they are in offender establishments.
How does the Minister account for the fact that only one-third of prison education managers regularly receive prisoners’ records following transfer? How can education that is aimed at improving prisoners’ chances of getting jobs upon release be effective with such a lack of information on their needs?
My Lords, before I answer the question, I am sure the House will join me in congratulating the noble Baroness on her birthday today. I am sure she is merely a smidgeon over 21, like me. We currently have a system for adults that has learner plans following prisoners. We think that is a good system, and it is gradually being put on an electronic database. In relation to young people, education authorities have a responsibility, which we defined in the Apprenticeships, Skills, Children and Learning Bill, to make sure that learning records follow young offenders around.
My Lords, has the Minister made any assessment of the impact of these new education arrangements on IPP prisoners who have served their term but are still in prison because there are already insufficient educational courses available to them?
Our investment in education in prison for offenders has risen threefold from £57 million in 2001-02 to more than £175 million in 2009-10. Since April 2000, spending on education for young people in custody has increased more than sevenfold.
My Lords, we will work with Kazakhstan to deliver progress on the key issues facing the OSCE. These include the discussion on the future of European security, the protracted conflicts in Moldova and the Caucasus, and the protection and promotion of democratic institutions.
We welcome President Nazarbayev’s pledge on 14 January to “pursue further political liberalisation”. We will continue to support Kazakhstan’s efforts towards meeting its OSCE commitments and the challenges that it faces as chair.
This could be the important East-West landbridge year for the OSCE, the chairmanship and Kazakh internal best practice. Are the differing Eurasia security concepts initiated under the Corfu process being advanced satisfactorily? In addition to keeping that process alive, has not the Helsinki Committee on Human Rights also now recommended, with official US support, the merits of an end-of-term summit last held in Istanbul in 1999, which would allow leaders to adopt agreed priorities?
I thank the noble Viscount and pay tribute to the work that he undertakes in the all-party group which fosters links between the UK and countries in central Asia. The Corfu process was set up to discuss the security concerns of all members of the Euro-Atlantic and Eurasian space and across all three dimensions of our security. At the OSCE ministerial meeting in December, all OSCE countries agreed that the Corfu process had already improved the quality and contributed to revitalisation of political dialogue. We are committed to supporting and continuing that dialogue.
On the second issue, I would point out that the OSCE is not just about human rights; it has a busy agenda, including European security issues, conflict prevention, human rights democratisation and security impact of energy and environmental issues. Progress discussions will be relevant to our consideration of a possible summit.
My Lords, Kazakhstan has made some welcome moves away from autocracy but my noble friend will recall that at the Madrid conference in November 2007, to allay fears about the human rights record, Kazakhstan made a number of specific commitments. Are the Government satisfied on the expectations of compliance with those commitments during the one-year term of office?
I agree that Kazakhstan’s performance on human rights since independence compares favourably with some of its neighbours. Kazakhstan has taken some important steps forward with its reform agenda, but certainly we would say that more progress needs to be made, which was acknowledged by the Kazakh Government, on individual cases, on human rights, on media restrictions, internet law, legislation and religion. We expect all those issues to be addressed.
While it is perfectly proper to put pressure on Kazakhstan to accelerate its democratic development, does the Minister accept that this country is an important part of the Afghanistan jigsaw and the international energy security jigsaw? Will she assure us that aside from any links on our foreign policy through the European Union we will develop strong bilateral connections with Kazakhstan over the coming years to ensure that our foreign policy interests are promoted effectively?
I thank the noble Lord for the important points he makes and his acknowledgement that Kazakhstan has made public commitments to preserve the mandate of the OSCE Office for Democratic Institutions. We support Kazakhstan’s focus on the protracted conflicts in Moldova and the Caucasus. We would like to see more progress from Kazakhstan on arms control under the Kazakh chairmanship and the treaty on conventional forces in Europe. We welcome Kazakhstan’s focus on Afghanistan, to which the noble Lord referred, and the engagement in central Asia is essential to the stabilisation of Afghanistan.
Perhaps I may press the Minister further on the answer given to the noble Lord, Lord Anderson. The special reputation of the OSCE is likely to be tarnished if the Kazakh Government do not make more progress on democracy, human rights and freedom of speech. There is still a lot to be done. Why is the Minister so confident that the Kazakh Government are dealing properly with these matters?
I do not think that I was being as positive as perhaps the noble Lord thought. I acknowledged clearly that, although there has been some progress, a great deal still needs to be done. We are working with the Kazaks bilaterally and with our EU partners on a wide range of human rights issues, including that controversial legislation on religion and the internet, as well as individual cases, such as Yesergepov and Zhovtis who have had very flawed legal processes to face. The Kazaks participate in human rights dialogue under the EU central Asia strategy, and the UK and the EU contribute their views. But we want them to co-operate more effectively and consistently on all these matters.
My Lords, given what my noble friend has said about general support and how much more needs to be done, has any consideration been given to forming a group of the friends of the chair for Kazakhstan during the period of its chairmanship and, if no such thought has been had, will consideration be given to that point?
I thank the noble Baroness for her intervention. I agree that friends of various countries and organisations have been effective in the past. I am not aware of any initiative of the kind of which she just spoke, but I will investigate whether it has some potential.
My Lords, I notice that the non-compliance by Armenia of the various United Nations resolutions relating to its occupation of Nagorno Karabakh and several provinces of Azerbaijan was not listed as one of the priorities of the OSCE. As the non-resolution of this problem could lead to further violence, will the Minister bring this matter to the attention of Kazakhstan and have it on the agenda during its presidency of the OSCE?
My Lords, the Government’s policy with regard to a third runway at Heathrow remains as announced to the House in January last year. We support a third runway at Heathrow, subject to conditions, including an initial limit on the overall number of flights. It is for the airport operator, the BAA, to bring forward a planning application in the light of this announcement.
My Lords, I am grateful to the Secretary of State for that reply. Is he satisfied that the consultations conducted by the BAA are being properly conducted? They have been widely criticised. In the light of things that have happened since the Government made their announcement in this matter, is he satisfied that their original decision is still correct?
My Lords, I am satisfied with the consultations that have been conducted. If the noble Lord wishes to draw any particular matters to my attention, I would be glad to look at them, but I am not aware of any which give me cause for concern. The decision to allow a planning application to come forward for a third runway, subject to conditions being met, has stood the test of time, despite two years of recession. Heathrow is still running at near 100 per cent capacity, despite the downturn in business at other airports. It is our main international hub airport. The lifeblood of our national economy depends on it. This Government will not betray the national interest by refusing to take a decision which is manifestly in the best interests of the country.
My Lords, is my noble friend aware that the Mayor of London has taken up a position opposing a third runway at Heathrow on the grounds of noise and pollution, but in favour of building a new airport floating in the middle of the Thames to the east of London? Will my noble friend comment on whether that policy position is consistent and in the national interest?
My Lords, the proposal for an estuary airport has been widely dismissed by sensible commentators, including most of the official spokespeople of the Conservative Party. The official Tory spokesperson says that Boris takes an independent line as Mayor of London. I thought he was a Conservative, but clearly this is not the case for the purposes of this and so many other decisions. Paul Carter, the leader of Kent County Council, the second largest Conservative-controlled authority in the country, says:
“There is a growing consensus that the estuary airport is undeliverable, unaffordable and unnecessary”.
I could not put it better myself.
My Lords, can I ask the Secretary of State about the status of the UK’s application to the European Commission for derogation of the nitrogen dioxide and particulate matter 10 limits around Heathrow? Will giving the go-ahead to a third runway at Heathrow not make it impossible to improve the air quality sufficiently to avoid this country being penalised?
My Lords, we are in discussions with the European Commission on this very point and I am confident that we will reach a satisfactory position. In respect of nitrogen dioxide, combined aircraft and road-vehicle nitrogen dioxide emissions around Heathrow are expected to halve by 2030 compared with 2002, even with a fully utilised third runway.
The Minister must have contact with a number of companies and organisations concerned with Heathrow. Are those organisations planning for everything to stop if his party loses the election, or do they think to themselves that the present expedient decision of the Conservative Party to vote against the third runway will be reversed once the election comes?
Given my noble friend’s commendable enthusiasm for a high-speed rail network, has he made any estimate of what effect a fully developed high-speed rail network would have on demand at Heathrow? Although I admit in advance that this is slightly on the margin of the original Question, can he give any indication as to when he is going to make his announcement on the high-speed rail network?
My Lords, I anticipate that we will publish a White Paper on high-speed rail in March. In respect of the potential for high-speed rail to substitute for a third runway, only a very small proportion of Heathrow traffic goes to domestic destinations that would be served by high-speed rail. The great growth of demand at Heathrow is for long-haul flights and therefore the best interests of this country are served by having both high-speed rail and a third runway. In life one does not always have to choose between desirable objectives.
I declare my interest as president of BALPA. Would not British aviation be dealt a mortal blow if we were unable to proceed with a third runway at Heathrow? Is there any possibility that Birmingham Airport can provide a viable alternative? My own view is that it cannot. Is it not apparent, also, that the next generation of aircraft will have to take climate change very seriously into account, whatever decision is reached with regard to airports?
My Lords, I agree with all the points which my noble friend has made. When the Government took their decision in respect of the third runway, they asked the Committee on Climate Change, chaired by the noble Lord, Lord Turner, to look at the capacity of aviation to reduce its emissions in 2050 below those pertaining in 2005 and the policies that would be needed to meet that objective. The committee reported recently as follows:
“The Report finds that there is potential for aviation demand to increase while still meeting the Government’s target—in the most likely scenario, a 60% increase in demand is allowed. Higher increases might be possible if technological progress and the development of sustainable biofuels were more rapid than currently envisaged”.
It is perfectly possible for us to increase aviation in this country while, over the medium to long term, reducing carbon emissions.
My Lords, the Government understand the value of access to leisure and tourism activities for all. By providing support for those who need it most, we are committed to a society where everyone can engage in leisure activities, including holidays, if they wish. A good example is our policy of free admission to many national museums and galleries, resulting in an increase of 124 per cent in the number of visits to museums offering free access.
My Lords, I thank my noble friend for his Answer. Is he aware that France, Spain and Italy have integrated social tourism into their social welfare policy, providing holidays for people on low income who do not have a holiday? Could not the United Kingdom do something similar?
My Lords, we have taken rather a different view on the question of improving life for the less well off in our society to that taken by France, Italy and Spain. We prefer to ensure that increased resources are available for families to make their choices. We are conscious of the fact that France, in particular, puts a very great emphasis on holidays, even regarding them as a human right.
The concept behind social tourism is to ensure that those in society who are less well off get the opportunity to go on holiday. There are one or two organisations that provide very inexpensive holidays for the less well off. That is the concept of social tourism, and the Government are of course sympathetic to it. They even give £10 million in grants to an organisation concerned with holidays for the disabled. That is the concept.
Would the Minister consider encouraging the Government to set up a mechanism so that those who do not need or want the winter fuel allowance can divert that money to a charity of their choice, such as the Family Holiday Association, which provides holidays for the disadvantaged, to which the noble Baroness referred?
My Lords, the Family Holiday Association is certainly a deserving institution in these terms. Of course, people are encouraged to give support to a charity with that intent, but it would destroy the concept of charitable giving if the Government made it mandatory.
My Lords, my noble friend will be aware that a Child Poverty Bill is going through your Lordships' House at the moment. Is there any evidence that providing breaks to families who live in poverty helps to boost their morale, so that they are enabled to climb out of poverty?
My Lords, there is some evidence of that. Of course, the French put a greater emphasis on the advantages of holidays. There is no doubt that a break does boost morale. I apologise to the House, because I said that the grant to Tourism for All, which gives holidays to the disabled, was £10 million. I meant £10,000. We want to encourage this. We have no doubt at all that it is advantageous to families who are less well off, and there is evidence that people benefit from holidays.
My Lords, is the Minister aware, in the unexpected absence of the noble Lord, Lord Pearson of Rannoch, that the European Parliament is considering amending the scheme under which almost 100 of its highest paid officials have their children taken on holiday at half price, so that it goes to low-paid officials instead?
My Lords, I never thought that the House would miss the noble Lord, Lord Pearson of Rannoch. The noble Lord has stepped into the breach. We can all draw some satisfaction from the point that he makes, but I am talking here about a benign concept of holidays for the less well off and the disabled, rather than holidays for those who may be regarded as somewhat overprivileged.
In a highly interdependent global community, does my noble friend agree that just as foreign languages are imperative in preparing our young to meet the challenges of that international community, it is essential to give all possible support to youngsters during their education to take opportunities to travel abroad? Can we ensure that this does not become a prerogative of the more affluent members of society?
My Lords, my noble friend has a good point—that is why we are pleased that in the education system schools are concerned with these opportunities for holidays abroad. However, this Question focuses upon families who are less well off: the concept behind it is that family holidays should be supported and provided for. I indicate how sympathetic the Government are to that concept, without having an excessive contribution of public funds towards it.
My Lords, does the Minister agree that under the Every Child Matters agenda the Government are looking to give equal opportunity to all children? A recent report, put together by the children and families courts service, has found that one of the greatest worries for children on the separation of their parents is finance. It is not only a question of the emotional issues—finance leads to emotional issues. One of the other issues is the consequence of poor finance, which means children lose all the benefits they have known as a family. Holidays are particularly important when you are a young person going back to school after the summer holidays and sharing with others what you have experienced.
My Lords, I am grateful for that point from the noble Baroness. The Government’s drive to reduce the number of children in poverty—reduced by 500,000 over a number of years—reflects our concern that these children should not suffer too great a disadvantage. The noble Baroness is absolutely right: children who live in families where the home is broken and the parents have separated are often to be found in that category.
Arrangement of Business
Infrastructure Planning (Decisions) Regulations 2010
Motion to Approve
Cluster Munitions (Prohibitions) Bill [HL]
A privilege amendment was made.
My Lords, we on these Benches are absolutely delighted that this Bill has now been agreed in this House; we hope that it will speed its way through the other place. A number of noble Lords in this House have played a key role in getting to this point—not least the noble Lords, Lord Dubs and Lord Elton, and also my late lamented friend Lord Garden.
Cluster bombs are an appalling danger to civilians. They have no place in modern warfare and should be put beyond use. I am very glad that we have been able to play our part in ensuring that the UK can take a leading role in this regard.
My Lords, I thank noble Lords for their comments. As the noble Lord, Lord Dubs, has said, we hope very much that this cluster munitions legislation will move swiftly through the Commons and that we will see the results it will bring for the many thousands of people across the world who will be safer because of it.
Bill passed and sent to the Commons.
Bribery Bill [HL]
My Lords, before the House begins the Third Reading of the Bribery Bill, it may be helpful for me to say a few words about Third Reading amendments. The House has agreed a procedure for addressing amendments which, in the view of the Public Bill Office, fall outside the guidance in the Companion and the rules set by the Procedure Committee. In line with that procedure, the Public Bill Office advised the usual channels on Friday that some of the amendments on the Marshalled List for Third Reading today fall outside that guidance. On the basis of that advice, the usual channels have agreed to recommend to the House that Amendments 1, 2 and 5, in the names of the noble Lords, Lord Thomas of Gresford and Lord Goodhart, should not be moved. As ever, this is ultimately a matter for the House as a whole to decide.
Clause 1 : Offences of bribing another person
Amendments 1 and 2 not moved.
Clause 10 : Consent to prosecution
3: Clause 10, page 7, line 2, at end insert—
“(6) Consent may not be given for the institution of proceedings under subsection (1) or (2) in respect of conduct which was specifically authorised in advance under the hand of—
(a) the Secretary of State, or(b) a senior official, but only if the Secretary of State has expressly and personally authorised the giving of the authorisation and considers the case to be urgent, and a statement of those facts is endorsed on the authorisation.(7) An authorisation shall not be given for the purposes of subsection (6) unless the Secretary of State is satisfied that the conduct is necessary for one of the functions stated in section 13(1).
(8) An authorisation for the purposes of subsection (6) ceases to have effect—
(a) at the end of the period of 6 months starting with the day on which it was given, if it was given under the hand of the Secretary of State, and(b) at the end of one week after the day on which it was given, if it was given under the hand of a senior official.(9) Subsection (8) does not apply if the authorisation is renewed under subsection (10) before the day on which it would otherwise cease to have effect.
(10) The Secretary of State may renew an authorisation for a period of 6 months starting on the day on which it would otherwise cease to have effect if, at any time before that day, the Secretary of State considers it necessary for the authorisation to continue to have effect for the purpose for which it was given.
(11) Subsection (10) may apply more than once.
(12) A renewal under subsection (10) must be made under the hand of the Secretary of State.
(13) The Secretary of State must cancel an authorisation if he is satisfied that an act or omission authorised by virtue of it is no longer necessary for the purpose for which it was given.
(14) For the purposes of this section, “senior official” has the meaning given by section 81 of the Regulation of Investigatory Powers Act 2000.”
My Lords, with the agreement of the House and of the noble Lord, Lord Goodlad, perhaps I may move Amendment 3.
Each of the amendments in this group seeks to improve on the wording of Clause 13, the better to implement the objectives—which I believe are shared across the House—of ensuring that acts of bribery are carried out on behalf of the state only when necessary, and that officers of state are given as much assistance as possible in advance in order to know when it is permissible to carry out such an act. Clause 13 is deficient in relying on a criminal prosecution after the event, with the onus of proof on the defendant as sufficient protection of the public interest.
I continue to hold the view that I expressed in more detail on Report, which is that it is important for there to be an authorisation procedure for acts of bribery by the state. That is essential to ensure that if acts of bribery are to be carried out by the state, it is done only when truly necessary and to ensure that officers carrying out such acts have proper protection from prosecution. Indeed, without an authorisation procedure, I would be surprised if officers would be willing to conduct acts of bribery and to take the risk of later prosecution. Amendment 3 does not require prior authorisation; it simply recognises that where the Secretary of State gives prior authorisation, a prosecution should not take place thereafter.
I add that I have put my name to Amendment 6, tabled by the noble and learned Lord, Lord Woolf. I look forward to hearing from the Minister why the Government object to the modest requirement in Amendment 6 to issue guidance simply to ensure that proper records are kept of acts of bribery by the state, or why the Government object to reporting to Parliament in that context, particularly when Amendment 6 expressly recognises the operational needs of the services. The guidance would only require records to be kept,
“so far as is practical”,
and so far as it does not impede “the proper exercise” of intelligence and Army functions. I therefore hope that, even at this late stage, there will be some movement on this important matter. I beg to move.
My Lords, I support this amendment for the reasons that the noble Lord, Lord Pannick, has given. The idea of a prior authorisation is incorporated in the statutes of the security and intelligence services. The authority or precedent of the Protection of Children Act, which the noble Lord previously quoted, refers to an amendment which was introduced into what I think is quite an elderly Act by a children’s Act in 2003. This deals only with questions of the possession of pornography and the like for the protection of children. It is a very much simpler issue than the contents of this legislation involve.
Secondly, I want to mention the very considerable intervention at the last stage by the noble and learned Lord, Lord Archer of Sandwell, who is probably more experienced than any of us in this area, certainly from the point of view of seniority. His was a very serious comment on having this simply as a defence. Therefore, in my view, what he said is best met by the kind of amendment that the noble Lord, Lord Pannick, has moved, which greatly improves the drafting of the Bill.
My Lords, speaking as the Lords member of the Intelligence and Security Committee—I have now also been nominated for the Joint National Security Committee which is to be set up between the two Houses—I am in a very privileged position, as all noble Lords here are aware. We are privy to a great deal of information regarding the operations of the security services. I can therefore speak with the knowledge but, unfortunately, without being able to go into too much detail.
When I read the proceedings in Committee, I was appalled at the suggestion that Clause 12 should be deleted. As I understand it, we are not now considering that, which I am very pleased about. However, the alternative that has been put forward by the noble Lords, Lord Pannick and Lord Goodlad, is also unacceptable for a number of reasons.
My understanding is that the first Joint Committee on this corruption Bill ruled out the question of authorisation for a number of reasons. No doubt my noble friend Lady Whitaker and others can confirm that. The most important reason for ruling it out is how impractical it would be. The volume of authorisations would be enormous. I know that some Members who have been Ministers, or Home, Defence or Foreign Secretaries, will understand the huge volume that there would be in relation to authorisation where agents, as part of their duty, have to make payments to contacts to get information which can be vital for national security, the prevention of terrorism and a whole range of other things that are in the national interest. There would be hundreds and thousands of pre-authorisations on a regular basis.
The Home Secretary and other Secretaries of State already have to deal with authorisations for interception, wire-tapping and a whole range of other things which provide an enormous burden on them. This would be an added burden that is quite unnecessary and intrusive. It is being suggested by lawyers. I think that everyone who has spoken for it, both in Committee and outside it, have been lawyers. Lawyers are generally like MPs and other politicians. When I was an MP, I found that people like you individually but they are not very fond of you collectively. In my constituency I had a lot of support, but collectively we were not very popular. I like lawyers as individuals. I like no one better than the noble and learned Lord, Lord Mackay, who I have known for many years. However, I get a bit worried when they gather together as a herd and push something. The wisdom of this amendment must be questioned—I hope that the House will question it—as it is an unfair, undue and, above all, unnecessary burden to put on Secretaries of State when the system has been operating quite properly and effectively up until now.
I fully respect my noble and learned friend, who served on the Intelligence and Security Committee with great distinction for a long period. However, I understand that my colleagues on the present committee, who come from all parties, feel the same as I do.
My Lords, I support the noble Lord, Lord Pannick, in his exposition of the reasons why the amendment in our names should commend itself to the House. I want to make three brief points. First, I express the gratitude of members of your Lordships’ Select Committee on the Constitution to the noble Lord, Lord Bach, and his ministerial colleagues for their unfailing courtesy in briefing us on the Bill’s potential consequences. Secondly, it has been said to me—my noble and learned friend Lord Mackay of Clashfern referred to this—that there is already statutory provision for prior ministerial authorisation of bribery on the part of the armed services and the security services. It has also been said that this is impractical. Both propositions cannot possibly be true. Therefore, the Minister will no doubt wish to say whether there is already statutory provision, as my noble and learned friend says, in which case it ought, clearly, to be in the Bill, or whether prior authorisation is impractical.
Many government transactions require ministerial authority. One thinks of the millions of transactions involved in social security. We are not here envisaging a very large number of transactions—quite a lot, but not an enormous number. However, the noble Lord, Lord Foulkes, with whom I agree on a surprising number of things, failed to point out that not every transaction falls within the provisions of the Bill. Class authorisations are available to the Secretary of State. It is up to him to decide. Therefore, it is not a matter of authorising hundreds of thousands of transactions; it can, if he or she so judges, be a class action.
My final point has not been previously deployed. If we are to ask people in our armed services and the security services to continue to engage in acts of bribery on behalf of the state, we must do so because there is no alternative, and we must protect them in other jurisdictions where they may well be prosecuted. We do not know, nor can we know, what other jurisdictions say or are going to say. If they are grabbed in another country and prosecuted, we must give them the protection of being able to say that they have the authorisation of the Government. Therefore, I wholeheartedly endorse what the noble Lord, Lord Pannick, has said. I very much hope that the Minister, with his unfailing courtesy, will address these points.
My Lords, as not only a non-lawyer but a non-expert, I always thought that the idea of authorisation was unwise. It is very permissive and very broad. Not only do I defer to my noble friend Lord Foulkes’s expertise on practicality; if one steps back a bit from the amendments and returns to the Bill as drafted, the result of Clause 13 as now drafted is that there will not be prosecutions by the prosecuting authority unless there is a doubt about the legality of an act by the security services or the Army. It seems to me that that is the right balance.
My Lords, I think the point that we are all trying to cover is the protection of the security services and the Armed Forces in offering favours or money in order to obtain information or whatever it is that is necessary for them to carry out their role.
Four ways have been discussed in the proceedings on the Bill. The Government’s approach is to have a statutory defence open to members of those services, which is what we see in Clause 12 or Clause 13. Another way would be prior authorisation, which the amendment argues for. A third way, which I have previously argued for, is to allow prosecutorial discretion. The director of the Serious Fraud Office or the Director of Public Prosecutions would have ample discretion to prevent prosecutions of members of their services if it was in the public interest not to prosecute them. I set out a fourth way in my amendment to Clause 1, which is simply to make it not an offence for a member of those services to do those very acts. To my mind, that is a simple, straightforward way of dealing with it, and my first and second amendments were merely redrafting the Government’s provisions to make what I regarded as a far more practical way of dealing with the object that we all have in mind.
I heard the criticism by the noble Lord, Lord Foulkes, of lawyers, and I am not surprised about that. Even he will concede that he does not know—many people do not know—precisely how the courts work in practice. You need to have considerable experience to appreciate that a reverse burden of proof is not a very satisfactory way of proceeding. Indeed, reverse burdens of proof have made a lot of people in the legal profession a lot of money over the years, not only in this country but in Strasbourg. I recall in particular the case of the Attorney-General of Hong Kong v Lee Kwong-kut, which was before the Privy Council here and was concerned with the interpretation of the bill of rights in Hong Kong. I was for one of the parties in that case, and the noble and learned Lord, Lord Woolf, gave the lead judgment, in which he pointed out that putting the legal burden on the defendant is right when, among other instances, the defence depends on facts within the defendant’s own knowledge. For example, in Clause 7, there is a statutory defence for a company to prove that it,
“had in place adequate procedures”.
Why is that satisfactory? Because it is within the company’s own knowledge as to what adequate procedures it has and what it can advance.
My criticism of Clause 13 as it now stands, and the reason why I opposed it and wish to strike it out, was that a person who is in the security services or the Armed Forces cannot possibly have access to the evidence which would be required for him to support such a defence. He would not, as I said on the last occasion, be able to walk into the offices of MI5 and demand to see the papers on which his defence would depend. If he was in the armed services, he would have great difficulty in bringing witnesses from the far reaches of the earth, where the British forces may happen to be and where the offence might have been committed, and obtaining papers the release of which would probably be resisted by the Ministry of Defence. It is impractical.
I still share the same object as others. I am disappointed that what I regarded as a redrafting has seemed to the usual channels to be in breach of the Third Reading amendments principle. There it is: the Government have tied themselves to the worst of the four courses I put forward. For that reason, we on these Benches will support pre-authorisation, which is a better solution for the particular problem.
My Lords, I hope I will be forgiven if I deal with the present amendment at the same time as Amendment 6, to which I have placed my name and which has the support of the same noble Lords as support this one. I repeat the disclosure I made on Report as to my interest.
I start by explaining why I consider that this provision and the issues we are discussing are of considerable importance. As I understand it, the defence made available in Clause 13 has the effect of the state acknowledging that there will be circumstances where members of the security services, intelligences services and Armed Forces will, in the course of their duties on behalf of the state, commit acts of bribery. This House would agree that there could be circumstances where that is right and proper but this is a significant power to give to the security and other services: the power to bribe without any form of parliamentary scrutiny or other form of prior authorisation.
We have certain experience in this field. Three Acts deal with the security services and intelligence services and work reasonably well. They require a warrant to authorise acts which would otherwise be unlawful. The systems provided for are the subject of a form of review and scrutiny by an independent person who is normally a retired senior judge. That is done, for example, in relation to telephone tapping. One can see why it is absolutely necessary, even though the situations where telephone tapping has to take place are substantial. I have difficulty understanding why, if it is practical in relation to telephone tapping or the searching of premises, something cannot also be done in this connection. It is important that, whereas the security services and intelligence services now have well-developed methods of keeping appropriate records so that they can be inspected, there is no legislation of which I am aware—I know I will be corrected if I am wrong—dealing with the Armed Forces, who are going to have this power to bribe on behalf of the state.
It is self-evident that if a new power to bribe is being given by this legislation to the Armed Forces, that could properly be said to be necessary in particular circumstances. We do not say otherwise; but it does need safeguards. One way of providing them, particularly in relation to the officers of the various services to which I have referred, was suggested by the amendment referred to by the noble Lord, Lord Pannick. It creates an improvement. However, in drafting Amendment 6, on which I am primarily addressing your Lordships, I listened to what was said by the noble Lord, Lord Bach—I endorse the remarks made by the noble Lord, Lord Goodlad, about the Minister’s courtesy—and treated it with the seriousness that it obviously deserved. I sought to find a way in which there could be a form of supervision, admittedly not ideal, that would provide protection in regard to both matters to which I have referred; first, the need for there to be a system in place to indicate the scale of bribery that is occurring, and the circumstances in which it is occurring; and secondly, to provide a flexibility that would not and could not interfere with the security services in the way indicated by the noble Lord, Lord Foulkes.
I thank the noble and learned Lord and assure him that the Intelligence and Security Committee has the power not just to examine the accounts of three services, but to ask detailed questions about them. In my experience over the past three years, the three services have given detailed information along the lines that the noble and learned Lord is suggesting. There is scrutiny by a committee of Members of both Houses of Parliament of the accounts generally and of the details of those accounts.
I am grateful to the noble Lord, Lord Foulkes, for indicating that, but my understanding of the situation is that, in regard to bribery, the act of scrutiny does not take place now. Obviously it should do. I do not know whether the noble Lord, Lord Foulkes, has knowledge of whether there is any form of scrutiny at the present time. Certainly, if there is a form of scrutiny, that is beneficial. However, the form of scrutiny that my amendment, supported by other noble Lords, recommends to the House is one that will end up in an annual report to the House. When it comes to bribery on behalf of the state, the rule of law requires no less than that there should at least be regular reports to the House about what is happening on the state's behalf in relation to bribery. Resorting to bribery is a very corrosive exercise, and if it is going to be resorted to, we need care and protection of the sort that I have indicated.
I ask the noble Lord, Lord Bach, if he does not feel that he can accept the amendment, to tell the House why it is not practical from the point of view of the services to which it refers. It requires the Secretary of State to determine what guidance should be given on the nature of the scrutiny. The Secretary of State can certainly consult and be guided by the services in drawing up the guidance. It does require, however, that the guidance should in its turn require that a record, so far as is practicable without impeding the proper exercise of the functions referred to in Clause 13, be made before the act of bribery is carried out; to state when and by whom it was carried out and to give such particulars as are sufficient to identify the act of bribery. I should like to endorse what the noble Lord, Lord Thomas of Gresford, has said about the difficulty of the person who is to be the subject of an offence. The new clause gives that person the right to make a request and to receive a copy of the record which relates to him,
“unless the Secretary of State considers that such disclosure would be contrary to the public interest, in which event such disclosure shall only take place if the trial judge directs that it should occur”,
thus taking advantage of the well known procedure of the trial judge being put in the position of having to safeguard the public interest.
I provided the noble Lord, Lord Bach, with a copy of the amendment. I am sorry that he has not had the time to consider it but I would like him to have done so because of the timescale to which we have been working. I suggest, however, that it was difficult to see why this is not a method of providing some realistic protection both to the state and to those who have to engage in the nefarious world where bribery is required to be carried out in circumstances where no offence will be committed.
My Lords, apart from the fact that the four people who have put their names to this amendment could be described in modern terms as some of the most grown up in the House, I should like to draw a small point to your Lordships’ attention. As your Lordships know, there is an expression which says you cannot buy an Afghan, you can only rent him. As far as I can gather from reading the newspapers, British and American policy is to rent Afghans on a large scale. Surely, that is the sort of policy which needs even more serious oversight and consequently I seriously support the four great grown-ups who have put their names to this amendment.
My Lords, I should like very succinctly to support these amendments and the points that have been made. I start by endorsing the point of my noble friend Lord Goodlad that the noble Lord, Lord Bach, has always been unfailingly courteous. I am sure he will give this careful consideration and we shall listen most carefully to what he has to say.
The dangers and corrosive effects of bribery have been perfectly put by the noble and learned Lord, Lord Woolf. It seems to me that there has to be some system of supervision and control by the Secretary of State and that there is an enormously strong case for the officers, whether of the Armed Forces or the security services, having the benefit of an authorisation procedure which will give them confidence that what they do will not lead to prosecution. There is a great deal of sense in the proposals that the Government should issue guidance. They will issue guidance in a great many areas, whether or not they are leaving matters to the discretion of the prosecuting authorities.
The principal argument that seems to be made against these proposals is that there are so many authorisations that it is not practicable to give them. They can, however, be broken down into classes. The fact that you have to break some down into classes and the fact that some have to done at very short notice and under some general instruction is no argument, in my view, against a system of control. The system of control may not be perfect because a perfect system would completely upset the practical needs of the services. However, that is not an argument for no system of control. Indeed, the committee on which the noble Lord, Lord Foulkes, sits—he has great knowledge in this matter—calls for and receives a great many detailed records, and I cannot believe other than that careful records are kept of bribes that are made in all these circumstances and of the amounts that are spent.
Not only do we examine the accounts very carefully and ask a lot of questions, but now, under this Government, we also provide an annual report both to the House of Commons and to this House that is debated. I introduced it in the Grand Committee in the Moses Room just a few months ago, and another one is coming up. That provides an opportunity for individual Members of the House to ask questions. On the previous occasion, no one asked about bribery.
The noble Lord’s remarks are pertinent, but I am sure he will instantly recognise that they cut both ways. If the necessary records are to some extent already being kept, it is not asking too much for the records that are required by the amendments to be kept. We as a country will hold our heads higher for being seen to have a system of control, even given what I entirely accept are the practical needs of the armed and security services to bribe, often on many occasions. Having supervision and control would raise our status, which is quite rightly very much part of the Government’s objective in the Bill. Keeping these records would not be an excessive requirement, because most of them are already kept. I very much hope that the Government will respond favourably to the thrust of the amendments and will put into place some such system, if not precisely this one.
My Lords, I have an amendment in this group that deals with the matter in the opposite way from the Government. I hope that there will be an answer to the point, to which the noble and learned Lord, Lord Mackay, has already adverted and which the noble and learned Lord, Lord Archer of Sandwell, and the noble Lord, Lord Thomas of Gresford, rehearsed on Report, about how the defence will work.
There are various methods of dealing with the problem about which everyone has been talking and obviously understands very well. The Government have decided on the method of a defence which the House has been told by people who are much more eminent in the criminal law than I am simply will not work, because the material will not be available to the defendant—or to the court, let alone to the jury—for him to establish the defence on which the Government are dependent. The noble Lord, Lord Bach, has therefore had notice of this, and I hope that he will explain exactly how it is intended to work. It will be no defence if the result is either that the case cannot be prosecuted because such sensitive material is involved that it cannot be presented to a court, or that it cannot be defended because the defendant has no access to exactly that sensitive material and therefore cannot establish the defence that he has been given by the statute. This was the concern that moved me, so I reversed the whole thing in my amendment and put the burden on the prosecution instead. I hope that the noble Lord will deal with this point.
My Lords, at this very late stage of the Bill, I hope that the House will forgive me if I intervene on behalf of my noble friend Lord Henley. Indeed, it is appropriate that the shadow spokesman on transport is standing in his place because he is stuck in a broken-down train. I will say what I believe he might have said had he been here to say it.
Amendments 3 and 6, which were tabled by the noble Lords, Lord Goodlad and Lord Pannick, and the noble and learned Lords, Lord Mackay of Clashfern and Lord Woolf, seek to qualify the provision in the Bill by inserting further requirements on the defence to the offence of bribery for the secret services and the Armed Forces. Amendment 3 amends Clause 10 in order to make it impossible to prosecute a member of the Secret Services or the Armed Forces for bribery if their conduct was specifically authorised by the Secretary of State. Amendment 6 inserts a new clause, after Clause 13, requiring the Secret Services and the Armed Forces to keep records of all acts that would constitute a bribery offence were it not for the provision in Clause 13.
We are minded to favour the approach put forward by the noble Lord, Lord Pannick, in Amendment 3. We have accepted the position that there needs to be a defence against the offence of bribery for certain classes of person. Those classes have been debated and amended, and now consist of the Armed Forces and the intelligence services. We have accepted that there are circumstances when men and women who are acting in the interests of the United Kingdom may need to perform acts which ordinarily would not be permitted.
The supporters of Amendment 3 have identified some principles which need to be upheld, notwithstanding our acceptance that some latitude needs to be shown for persons operating in the country’s best interests, in what may be very challenging circumstances. It is fair to say that bribery by the state, which is effectively what Clause 13 would allow as a defence to general offences of bribery, is so important a matter of public interest that the Secretary of State, as the Minister responsible—and directly answerable to Parliament for his actions—must be involved in its prior authorisation.
On Report, my noble and learned friend, Lord Mackay of Clashfern, made the powerful argument:
“The rule of law suggests that the Government should obey the law like everyone else”.—[Official Report, 2/2/10; col. 162.]
Any derogation from this principle should need explicit authorisation.
Amendment 3 requires that the Secretary of State must consider what he is prepared to authorise. Ahead of any use of the state’s powers to commit bribery with impunity, the Minister who is answerable to Parliament must give thought to what those powers will be used for. The amendment will require the active participation of the correct authority, and I can see much constitutional merit in that argument.
The Government have told us before that they want safeguards in place so that officers and agents of the state are not left in a position where they do not know whether or not their actions amount to criminal conduct. We agree that Amendment 3 will do nothing to weaken the certainty given to members of the Armed Forces and intelligence agencies. Rather, we believe that the certainty that they were acting correctly would be strengthened by subjecting their possible actions to prior authorisation.
We are also not particularly swayed by the argument against Amendment 3 made by the noble Lord, Lord Foulkes of Cumnock, and the noble Baroness, Lady Whitaker, that a system of prior authorisation would be too cumbersome. The Government have already laid their own amendments to limit the groups of people to whom Clause 13 would apply. From our reading of Amendment 3, there is nothing which would prevent a class of acts, operations or persons being granted prior authorisation.
As the thoughtful speeches made by noble Lords today have shown, this is not an easy issue, and there are powerful arguments to be mustered on either side. Perhaps it is even fair to say that there are more than two sides to this argument. However, having listened carefully to what noble Lords have said, we are persuaded that the course laid out by the noble Lord, Lord Pannick, and supported by the noble and learned Lord, Lord Woolf, my noble friend Lord Goodlad and my noble and learned friend, Lord Mackay of Clashfern, is the most appropriate to follow. We will therefore give Amendment 3 our support in the Content Lobby if noble Lords are minded to test the opinion of the House.
My Lords, I thank all noble Lords who have spoken in this debate. I also thank them personally for their very kind remarks and say what a pleasure it is to be across the Dispatch Box from the noble Baroness, Lady Hanham. It is a long time indeed since we last faced each other across the Dispatch Box, and I will have something to say in a moment about the change of view of the Official Opposition. That does not take away from how pleased I am to be debating with her again.
With these amendments, we return to the issue of prior ministerial authorisation of conduct by the intelligence services or Armed Forces that would constitute bribery under the Bill. At this stage of the Bill—I remind noble Lords that this is Third Reading—it is probably not helpful to dwell too much on the specifics of each of these amendments, but instead I shall address my remarks to the general approach that they seek to adopt in place of, or in addition to, what is currently in Clause 13. However, later on, I shall make a few observations on the details of the amendments. I also think it is incumbent on me to answer the points made by the noble Lord, Lord Thomas of Gresford. For the life of me, at first blush I cannot see why, if other amendments are acceptable at Third Reading, his is not, and vice versa.
My Lords, I do not think that the noble Lord is rephrasing at all. It is doubtful whether either set of amendments is fully in line with the guidelines set out in our rules. This is how things have ended up.
I readily accept that there are different approaches to this issue, as the noble Baroness said a few minutes ago. One approach would be to provide for a blanket exemption for conduct by the intelligence services and the Armed Forces. A second approach is to provide a defence, so that a person who would otherwise be guilty of an offence under the Bill will not be guilty of an offence in the circumstances where the defence applies. After careful reflection, that is the approach that we have adopted in Clause 13. I readily accept that it is a departure from the approach in the draft Bill, but as with the Constitution Committee, particularly in regard to the Armed Forces and prior authorisation, our thinking on this has developed over time in close consultation with the intelligence agencies and the Ministry of Defence. The third approach, which is the one favoured by the members of the Constitution Committee of this House and the noble Viscount, Lord Colville, is an authorisation scheme. We also have hybrid models which seek to marry up an authorisation scheme with the defence.
I do not suggest that one or other model is clearly the right one, while other models are wrong. Of course, a case can be, and has been, made for each one. However, after careful and extremely extensive deliberation, including with the intelligence services and the Ministry of Defence, we are satisfied that the defence provided for in Clause 13 provides the right mix of transparency, accountability and operational practicality.
It is incumbent on me to explain why we do not agree with the noble Lord, Lord Thomas of Gresford, that it would be impossible for a defendant to be able to run a defence fairly. The noble Lord argues that the defence is not an appropriate model for dealing with this issue on the basis that it would not be possible in practice for a person to establish the defence. He has also suggested that the operation of such a defence would create too many difficulties in practice. We do not agree. First, these arguments do not recognise the reality that cases which genuinely fall within the scope of the defence in the Bill are most unlikely to come before the courts at all. Where any case came to the attention of the police, they would, of course, be provided by the agency concerned with any material relevant to their investigation. That may well result in the police not taking the investigation any further forward on the basis that the case plainly falls within the terms of the defence. Where a case does reach the Crown Prosecution Service, it would have available the relevant material and would take it fully into account in deciding whether to bring a prosecution. A prosecution will not be brought where it is clear that the defence applies, as there would be no realistic prospect of conviction. The evidential test in the Code for Crown Prosecutors would not be met in such a case.
What of the situation where a case is brought to court and a person wishes to rely on the defence? In our view, the suggestion that it would be impossible for a person in such a case to establish the defence is wrong. There is no legal or practical reason preventing a defence being established. The criminal courts are well used to dealing with cases where sensitive information is involved. All the usual criminal procedures will apply. The defendant would, no doubt, seek disclosure of any relevant material held by others that he believed supported his case.
I am not sure I can give the noble Lord an example, but I do not think that the fact I cannot implies that it would be impossible to run a defence adequately in that case.
Independently of this, the disclosure duties imposed by the Criminal Procedure and Investigations Act 1996 mean that the agency involved would identify any material held by it that might be potentially available for disclosure, applying that Act and the codes made under it. Any material undermining the prosecution case or supporting the defence case would need to be disclosed in the usual way. As far as public interest immunity is concerned, there is the possibility in cases of this kind that an application might be made to the trial judge that certain information should not be disclosed on the grounds of public interest immunity. However, an application would not, in reality, be made in respect of material essential to the defence that is being relied upon by the accused. Indeed, a judge would not allow an application in respect of such material. If the material were essential, but too sensitive to be disclosed, the prosecution would choose not to proceed further in the public interest.
Therefore, there cannot be any question that a defendant who stands trial for such an offence would not have available any material that he or she needed to deploy to establish the defence or could not have a fair trial. The defendant will, of course, be entitled to go into the witness box to put his or her case. The arguments that have been made that it would be impossible for the defendant to meet the legal burden of proof are, we think, misguided. Where extremely sensitive material is involved, it is open for the Crown to apply for all or part of the proceedings to be held in camera under the Criminal Procedure Rules. This has happened in past cases and can happen in the kinds of cases that we are discussing here, if necessary, and I hardly need tell the House that the court can make reporting restriction orders as appropriate.
Noble Lords should be under no illusion. These kinds of situations arise from time to time, and the criminal courts find ways of dealing with them fairly. If the courts were not able to deal with sensitive criminal cases where defences are an issue, one might ask how it has ever been possible to convict anyone under official secrets legislation. We therefore disagree with the noble Lord when he says that a defence could not be run.
However, as it is not, for one reason or another, the noble Lord’s amendment that is before the House this afternoon, let me turn to the amendments that are and deal first with transparency. I apologise that this reply is quite lengthy, but the importance of this matter demands that the Government put out their case as best they can. The Bill could have been silent on the whole question of whether the intelligence services and the Armed Forces have to engage in conduct that would constitute a Clause 1 or Clause 2 offence. Indeed, this is the approach adopted in many other countries. We concluded that this would have been disingenuous and, equally importantly, would not have provided the necessary legal protection and certainty for those who have to engage in such conduct on behalf of the state.
At one level, Clause 13 is arguably an authorisation scheme. In passing this Bill, Parliament would in effect be saying that we accept that there will be occasions when it is necessary for the proper operation of the intelligences services and the Armed Forces when engaged on active service to undertake conduct that would amount to bribery. The services and Armed Forces would need their own internal controls—I will come on to this—but Parliament, not Ministers, will in practice have authorised such conduct by this clause when, and only when, it can meet the test of necessity.
That test of necessity is an important one. We are not giving the intelligence services or the Armed Forces a blank cheque. The person offering the bribe will have to be satisfied that this test is met. One of the difficulties that we have with the amendment of the noble Viscount, Lord Colville, is that it omits the necessity test and thereby reduces the threshold for an act of bribery in the exercise of the functions of the intelligence services or a member of the Armed Forces.
Given that we are dealing here with the intelligence services and the Armed Forces engaged on active service, there must be significant limits on transparency. It is long-established practice that Ministers do not comment on operational aspects of the work of the intelligence agencies. Similar considerations apply to operations by our Armed Forces. The reason for that is obvious: to do so could significantly undermine their operational capability and put lives at risk. I will come on to other aspects of Amendment 6 in due course, but I cannot accept the proposition that an annual report which goes into detail about the operation of the guidance should be laid before Parliament.
Turning to the question of accountability, I mentioned on Report the difficulties that we have with either a case-specific or class-based ministerial authorisation scheme. The former would in our view be unmanageable and would not confer the necessary operational flexibility. I am grateful for the support that that proposition has had this afternoon from my noble friend Lord Foulkes, with his experience.
One only has to consider the dynamics of military operations in Afghanistan to recognise the impracticability of a Minister sitting in London having to approve in advance each act of bribery. I recognise from the discussions I have had with a number of noble Lords, and from the debate this afternoon, that there is a general acknowledgment of the difficulties with a case-specific authorisation. I welcome that. As to a broad class-based authorisation, we have serious doubts about whether it would achieve significant added benefits in terms of accountability beyond that already achieved by Clause 13(1) and the other mechanisms that I am about to describe.
I am grateful to the noble Lord, Lord Pannick, and other noble Lords who have signed his amendment, and to the noble Viscount, Lord Colville, who have sought with their amendments to find a middle way. None the less, both still have an authorisation scheme at their heart and, in the case of Amendment 3, the reference to conduct being “specifically authorised” suggests that they have in mind a case-specific authorisation or at least something very close to that. But it is not clear what type of authorisation is intended.
Amendment 6, in the name of the noble and learned Lord, Lord Woolf—again, I am very grateful for what he has said—seeks to address the accountability question from a different angle and to put in place internal accountability arrangements to be set out in mandatory guidance issued by the Secretary of State. I assure the House that rigorous internal and external procedures, and controls governing all aspects of the activities of the intelligence and security services, are already in place. We firmly believe that these safeguards are sufficient to guard against any misapplication of the defence under Clause 13 and that internal procedures and record-keeping are properly a matter for the intelligence services and Armed Forces, and not for statutory regulation.
I say that because all three intelligence services are statutory agencies. They conduct all their activities within a framework of legislation, which sets out their functions or purposes and the covert methods which they employ to perform these functions. There are no circumstances in which the intelligence services would make a payment or offer an inducement which might, in the absence of the defence, constitute an offence under the Bill, other than to facilitate legal activity in support of the services’ statutory functions and purposes. The operational activities of the agencies are subject to a robust system of internal checks in which the onus is on the intelligence officer involved to demonstrate the necessity and proportionality of the proposed activity.
The level of oversight required for particular types of covert activity is set out explicitly in legislation; namely the Intelligence Services Act and the Regulation of Investigatory Powers Act. All activities conducted under this legislation are subject to scrutiny by the independent Intelligence Services Commissioner and the independent Interception of Communications Commissioner. These independent commissioners must, by law, be given access to whatever documents and information they need, and report annually to the Prime Minister and to Parliament.
Furthermore, the Investigatory Powers Tribunal, an independent body made up of senior members of the legal profession or judiciary, can hear and investigate the complaint of any person who is aggrieved by anything which he believes the intelligence services or GCHQ have done in relation to him or to any property of his. If an individual thought for any reason that he had suffered a financial or other disadvantage as a result of an act of bribery committed by any of the security and intelligence agencies, that individual would have recourse to the Investigatory Powers Tribunal, which has the legal power to investigate and to order such remedial action as it sees fit.
Moreover, a record is already kept within each of the security and intelligence agencies of every payment made, by and to whom, and, in the case of a covert human intelligence source or agent, what assistance that individual has provided to the service or agency involved. Payments are subject to internal audit controls, and the intelligence and security services’ accounts are subject to audit by the National Audit Office.
Parliamentary accountability of all three intelligence services is provided by the intelligence services committee, which examines the policy, administration and expenditure of the three services. Today, we have heard from a member of that committee, my noble friend Lord Foulkes. The Defence Select Committee in the other place provides similar oversight of the work of the Armed Forces.
The Armed Forces are clearly highly disciplined to follow and maintain the rule of law. They are subject to the jurisdiction of the service police, which operate wherever the Armed Forces serve; the service prosecuting authority under the independent Director of Service Prosecutions; and the service courts, which can sit anywhere that the Armed Forces are operating.
All money spent on military operations has to be fully accounted for. It is subject to strict government accounting rules, and internal and external audit. They can be expected to operate within the confines of the defence provided under this Bill in the same way as they can be expected to obey the full panoply of the criminal legal system of law. Judicial oversight will be provided in this context by the courts in any bribery case brought to trial and the defendant will rely on the Clause 13 defence. Where it is clear that a person meets the test of necessity, the investigator or the prosecutor will surely decide not to proceed with the case because there was no realistic prospect of securing a conviction.
On the safeguards which have been referred to by my noble friend, several noble and learned Lords, including a former Lord Chief Justice, a former Attorney-General and a former Lord Chancellor, have all expressed concern about the present situation. Notwithstanding what my noble friend has cogently argued, is there not a possibility of being able to scrutinise further what has been put forward by them?
My Lords, I appreciate as much as anybody the distinction of the noble and learned Lords who have spoken in this debate, in Committee and on Report. I agree, what they have to say has to be considered extremely carefully. However, as I have said at all stages, as far as this matter is concerned, the Government’s view is that we should not change the policy that we have put into this Bill. I will come onto that in a moment when I finish.
As I was saying, in such a case, independent oversight will have been provided by the investigator or prosecutor. Where the suspect’s account was not corroborated by the intelligence services or Armed Forces, and the case was brought to trial, the judge would ensure, as judges always do, the fairness of the trial and the jury would decide whether or not to convict.
In conclusion, the Government understand and respect the arguments that have been put forward in support of these amendments. I have tried to set out why I cannot commend them to the House. We believe that the defence in Clause 13, coupled with the existing well established accountability mechanisms which ensure democratic oversight of the work of the intelligence agencies and of the Armed Forces, provides an appropriate and workable level of accountability. That lay at the heart of the Constitution Committee’s concerns. We have been listening to the debates on this clause and we brought forward a significant concession on Report which removed law enforcement agencies from the ambit of the clause, but we are clear that the defence as it is now constituted is a core part of the Bill. I would like to think I may have persuaded the House that it is necessary and already subject to appropriate safeguards and I ask noble Lords with amendments in this group to withdraw them. If they are not minded to do so, I invite the House to reject them. If your Lordships see fit to pass these amendments, the Government will have to think very seriously about whether this Bill should be pursued. I do not say this as a threat. I am repeating in other words what I have said on a number of occasions. I cannot emphasise enough the importance Her Majesty’s Government attach to Clause 13 in its current form.
Does the Minister feel able to address, even briefly, an argument that was advanced by the chairman of the Constitution Committee, the noble Lord, Lord Goodlad, about the importance of prior authorisation in the event of individuals being subjected to jurisdictions overseas where the panoply of defences and arguments would not apply? Can he say—although he clearly has not followed what I have said—what he thinks is the virtue or otherwise of the arguments proposed by the noble Lord, Lord Goodlad, about the possibility of a case arising against a member of the services in other jurisdictions?
What we are taking about in this Bill is a defence of bribery that could be tried only in United Kingdom courts. It could be as a result of activities by an accused overseas, but anyone charged, as I understand it, would be tried in our courts under our rules with that same fairness for which our rules allow.
The noble Lord asked me that question before, and I still do not have the answer—but I suspect that there have been very few prosecutions, if any. Even after this Bill has passed, if it is passed in its present form, we do not expect to have very many cases of this kind to report. That is part of my argument. We believe that with the Clause 13 defence the vast majority of cases will not end up in court, because the member of the Armed Forces or the intelligence services who is suspected will have available the defence in Clause 13. That is something that the police and the prosecutor will know.
I just ask for the Minister’s help. Let us suppose that one is persuaded by him of the difficulties of specific authorisation in advance for the security services and Armed Forces. What I am not clear about is his fundamental objection to Amendment 1 from the noble Lord, Lord Thomas, which preserves Clause 13 but in a different form. Could he explain that to me?
With the greatest respect to the noble and learned Lord, the amendment would not preserve Clause 13, which is a defence to an offence of bribery. The offence is committed but there is a defence to it if Clause 13 is satisfied. What the noble Lord, Lord Thomas of Gresford, suggests is that there be an exemption altogether to the offences of bribery set out in the Bill, so no offence would have been committed at all.
In the light of the Minister’s remark that, if the House does not agree with the Government’s proposals, the Government may bring forward no other proposals, I suggest that would be a dereliction of duty on the Government’s behalf. It may be necessary to use these powers and, if is necessary to use them, protection must be given to those who use them. The essence of his argument against prior authorisation is impracticability. Let us suppose that the power to tap telephones and open letters did not exist today and someone suggested that it should be given to the Government in the same way as he recommends a power should be given for bribery. It would have no chance of passing whatever, because the principle has been established that, when you ask a citizen of this country to perform an illegal act, it requires the prior authorisation of the Home Secretary, the Foreign Secretary or the Secretary of State for Defence. In the case of defence, it would be practicable; if the proposal emerged from the field of war, it could be sent immediately to the Secretary of State—there would be a secure line to his office, and he could decide whether it should be approved. It is practicable, and the legal advice that we have had today from the distinguished legal luminaries in this House should be listened to.
I accept the noble Lord’s great experience on this point, but I am advised that with regard to offences of the kind that we are discussing, a case-specific approach would be completely impracticable. For example, for members of the Army in Afghanistan who have to take decisions quickly, out of the blue and without expecting to, in dangerous situations, there would be absolutely no way in which such prior authorisations could be given by a Secretary of State for Defence in London. That would also apply to those in the security services, who also have to take decisions of this kind sometimes. I hoped it was generally agreed that the case-specific authorisations were absurd.
I thank the Minister for his careful and courteous consideration of this issue at all stages of the Bill.
As I understand the Minister, the essence of the Government’s objection to Amendment 3 is that it would make prior authorisation impracticable. However, the whole point of Amendment 3 is that it allows the Secretary of State to authorise; it does not require him to authorise in any circumstances where he considers it impracticable. It would not prevent acts of bribery on behalf of the state going forward in such circumstances. In any event, each act of interception has to be authorised by the Secretary of State. It is very difficult to understand why a different approach should be taken in this context.
With the greatest respect, the Minister simply has not answered the concern expressed by a number of noble Lords in this debate. Clause 13 is defective, because it contains no procedure whatever for consideration by the Minister who is answerable to Parliament prior to acts of bribery being carried out by the state. This is a matter of enormous public importance. It purports to protect the public interest only after the event by a criminal prosecution—a cumbersome procedure, which as the noble Lord, Lord Thomas of Gresford, has explained, is also unfair, because it places the burden of proof on the defendant, who will not have access to the necessary information. It gives inadequate prior guidance to those individuals who will be carrying out the acts of bribery on behalf of the state.
I say to the noble Lord, Lord Foulkes, that nothing in the valuable work of the Intelligence and Security Committee can rectify these defects in Clause 13. In the light of the support given in the House today, I wish to test the opinion of the House.
Clause 13 : Defence for certain bribery offences: legitimate purposes
Amendments 4 and 5 not moved.
Amendment 6 not moved.
Bill passed and sent to the Commons.
Anti-Slavery Day Bill
The Bill was presented and read a first time.
Damages (Asbestos-Related Conditions) (No. 2) Bill
The Bill was presented and read a first time.
My Lords, with the leave of the House, I shall repeat a Statement made in the other place by my right honourable friend the Prime Minister. The Statement is as follows:
“Mr Speaker, I wanted to report to the House at the earliest opportunity on the agreement reached between the DUP and Sinn Fein at Hillsborough Castle, and which we and the Irish Government fully support. Their agreement will lead to the completion of devolution of power to Northern Ireland. I will also report on the accompanying arrangements that Parliament will need to make to enable devolution to be completed.
I am making this Statement conscious that General de Chastelain has today announced that the INLA, responsible for more than 110 deaths during the Troubles, and the official IRA, have decommissioned their weapons. The House will want to record our thanks to the international commission, which has overseen decommissioning by the UDA, UVF, PIRA and now INLA and the official IRA, as part of the process of moving Northern Ireland from violence to peace.
In 1998, with the signing of the Good Friday agreement, Northern Ireland opened a new chapter in the peace process. The St Andrews agreement marked the next step forward. Now we have reached a significant and defining moment. Each of the Northern Ireland agreements since 1998 has had a different basis on which it was reached. The Good Friday agreement was an agreement between the participants to the talks, including the two Governments. St Andrews was an agreement between the two Governments, later endorsed by the parties through their participation in the newly-elected Assembly. The Hillsborough Castle agreement—the final stage of the journey to completing devolution—was reached between the two parties which were the largest in the Assembly following the 2007 elections. It was the outcome of many hours of talks, consultations and plenary meetings involving all the Assembly parties. We should be in no doubt about its significance. Without this agreement the work done at St Andrews and Belfast could not have been moved forward. Without the completion of devolution the whole process of devolution and the peace process itself would be at risk, so this agreement is essential to securing the future, because in turn it will bring stability, investment and jobs.
For decades, conflicts over institutions have dominated the politics of Northern Ireland. Even in the past two years a failure to agree on the devolution of policing and justice has cast a shadow over Northern Ireland’s politics. When the cross-community vote takes place on 9 March and the parties request the transfer of powers, Northern Ireland’s politicians will have, by 12 April, full control over their Government and be able to focus on the economy, jobs, housing, public services and, of course, policing and justice. With this agreement, communities once locked in the most bitter of struggles are choosing to be bound together in a shared future, with a common destiny, and it must be in a spirit of partnership.
None of this could have been achieved without working closely with the Irish Government, and I pay tribute to Brian Cowen; the Irish Foreign Minister, Michael Martin; and to the Taoiseach’s predecessors, Bertie Ahern and Albert Reynolds. Nor could it have been achieved without the continued and unstinting support of the American Government and Presidents Clinton, Bush and Obama. I especially want to thank Secretary of State Clinton for her generous support.
This agreement is the conclusion of a process, and the House will want to record its thanks for the work of Tony Blair, and before him John Major. The House will want to thank previous Secretaries of State for Northern Ireland. I want to record my personal thanks to them and to the current Secretary of State for Northern Ireland, and his Minister the right honourable Member for Wythenshawe and Sale, East for the time they spent in detailed negotiations and for their patience, resilience and wisdom.
Two weeks ago, the Taoiseach and I joined the parties for part of their negotiations in Hillsborough. There has been comment about the amount of time needed to reach this agreement. We should recognise that the talks were demanding because they went to the very core of Northern Ireland’s shared future. But implicit in the agreement now reached between Sinn Fein and the DUP, and there for all to support, is an even greater prize: that the parties together seize this opportunity to build a new trust in a fresh spirit of respect, co-operation and understanding. It is my view that this agreement represents a reasonable concord for all to be able to put difference to one side and enter in a spirit of good will to a better shared future.
There were four crucial breakthroughs. First, the parties have resolved the outstanding issues on the transfer of policing and justice powers and agreed a timetable for the completion of this final stage of devolution. Following community consultation, the First and Deputy First Ministers will jointly table a resolution seeking a transfer of policing and justice powers by means of a cross-community vote in the Northern Ireland Assembly on 9 March—four weeks tomorrow—for devolution to occur on 12 April. Then Parliament will be asked to approve the necessary transfer orders so that devolution can occur on 12 April.
Secondly, the parties have agreed how the devolution of policing and justice will work in practice and in particular how the relationship between the Justice Minister and Executive will work.
Thirdly, the parties have committed to a new and improved framework for regulating and adjudicating on parades which will maximise cross-community support. At its core is a commitment to ensuring local dialogue, transparency and mediation, as well as specific proposals for dealing with contentious parades. The First and Deputy First Ministers will set up a co-chaired working group to take forward this work with legislation on the agreed outcomes completed in the Northern Ireland Assembly before the end of this year.
Fourthly, this agreement also proposes to address how devolved government could work better in Northern Ireland. In the talks, all the parties raised the issue of the need for greater efficiency and transparency and also the need for greater inclusiveness. It is clear from the agreement that this was firmly recognised. The First Minister and Deputy First Minister have therefore proposed three very important working groups at Executive level, to begin work immediately. I am pleased that the First Minister is in the House today as we discuss this.
The first group will look at how the Executive might function better and how delivery might be improved, and two further working groups will deal with all outstanding Executive business and make recommendations on how progress can be made on all outstanding matters from the St Andrews agreement.
The House will know that last October I sent to all party leaders in Northern Ireland my proposals for a financial settlement—worth an additional £800 million to underpin the new department of justice—available only if and when the parties decided to take the historic step of requesting the transfer of powers of policing and justice. All the details of this have been studied by the Assembly and Executive Review Committee.
The financial settlement will ensure stability for the new department, enabling it to deal with those issues outstanding from the Troubles and current security needs. I am sure that it is the wish of the House to ensure that in reaching such an agreement the new department has the resources to complete the Patten proposals on policing and meet the unique pressure of Northern Ireland’s past and present security needs.
Taken together, these parts of the agreement will lead to a better functioning Northern Ireland Executive who are better able to focus on growth, jobs, public services and of course law and order. I believe our duty now is to do all we can to encourage the parties to support and give effect to this agreement.
Subject to the cross-community vote on 9 March, the First Minister and Deputy First Minister have now agreed to support an accelerated passage for the budget Bill and any related Assembly steps to ensure devolution of powers by 12 April.
Too many lives have been lost in Northern Ireland. Just a few weeks ago, dissident republicans tried to murder a police officer, Constable Heffron. They did not succeed, but he was very badly injured. There have been significantly more attacks in the past 12 months than in any recent year. Indeed, the House will record with sadness the murders just 12 months ago of two brave young British soldiers. On 9 March last year, criminals also murdered a brave PSNI officer, Stephen Carroll.
The IMC report at the end of last year was clear: early devolution would be a potent intervention on the activity of the dissidents. So the decisions made in the past few days are the most powerful signal we can send to those who choose violence over politics. I hope that the whole House will join me in sending an unequivocal message to those who would defy the will of the people: that the politics of peaceful change must irrevocably succeed in Northern Ireland and it must overcome whatever obstacles are put in its way.
The next stage is to show that this new stability can bring results in jobs and prosperity. So I am grateful that Secretary of State Clinton has immediately announced her invitation to the First Minister and Deputy First Minister to meet her and the US economic envoy, Declan Kelly, to see how together the UK, Irish and American Governments can accelerate all options for encouraging new inward investment into Northern Ireland.
The peace process has taken men and women of courage who were prepared to set the past aside in the service of the future. The peace of Northern Ireland and its future stability ask that we put the interests of all its people above the interests of party. We have a proud record in this House of all-party support. Today it is important that we support not only the principle but also the dates in the agreement. Upon all of that falls the responsibility to make this work. Together we should complete the process of giving the government of Northern Ireland to the people of Northern Ireland. With policing and justice in the hands of the Northern Ireland Executive, the future of Northern Ireland is finally and truly in the hands of its people. I commend this Statement to the House”.
My Lords, I thank the noble Baroness for repeating that welcome Statement. Once again, its length and language show the personal hand of the Prime Minister, and for once I do not offer that as any criticism. The Prime Minister has clearly felt and lived up to a high sense of duty that transcends party allegiance, as did the Taoiseach and the Northern Ireland politicians involved. Everyone in the House would thank him and them for that, as will the patient, good people of Northern Ireland.
We all hope that this latest agreement will be another step on the road to a secure peace under the rule of an impartial and independently executed law. It has been a long road. The opening pages of the Statement said a new world began in 1998. I was therefore glad to hear glancing references not only to Mr Blair but also to Sir John Major. After the brutal blows handed to my party by IRA and INLA terrorism, still so painfully remembered today, it was not an easy choice to make. However, it was the right choice to make to try and take the Armalite out of Ulster politics. I welcome further decommissioning by the INLA and the official IRA.
We support devolution in Northern Ireland, and so we also welcome this agreement between Democratic Unionists and Sinn Fein. We support the principle of policing and justice powers being devolved to Stormont. That is why, as my right honourable friend Mr Cameron earlier told another place, we backed legislation last year, and why we will honour the financial package in the agreement. Our prime objective will always be a peaceful, prosperous and stable Northern Ireland in which all parts of the community share.
However, amid the optimism surrounding this agreement we need a cold, open-eyed realism. Can the noble Baroness tell us whether there has been any progress in getting the Real and Continuity IRA to lay down arms? In fact, is there hope that this agreement will change that? How many of the so-called dissident republicans referred to in the Statement are in arms? We have come a long way, but as the noble Baroness said, the cowardly attack on Constable Heffron last month shows that real dangers endure.
Can the noble Baroness answer several specific questions? First, is there any significance in the change from the phrase “operational independence” of the police to “operational responsibility”? Secondly, the agreement proposes the transfer of police and justice powers on 12 April. Under the current law, the department of justice in Northern Ireland, which will be responsible for these matters, will be dissolved on 1 May 2012 unless there is agreement on a replacement. Is there a risk of another set of very difficult negotiations unless this is resolved now?
Thirdly, the Parades Commission has just three weeks from 9 February to agree its proposals. Will the vote on policing and justice powers in the Assembly on 9 March go ahead even if that deadline is not met? Fourthly, the First and Deputy First Ministers are to examine unimplemented elements of the St Andrews agreement. What issues will that cover? Fifthly, last week’s agreement is between just two of the four parties at Stormont. Can the noble Baroness assure the House that no specific concerns have been raised by any other parties?
Finally, there are several reports of other agreements not included in the formal text. Will the noble Baroness clarify whether these exist; and, if they do, will she undertake to lay a document before the House? In fact, if the noble Baroness would prefer to respond to any of my questions by letter, I would be happy to receive it.
The devolution of policing and justice is something that we have to get right. Without the impartial and fearless rule of law, there is no true freedom. We hope now that the politicians of Northern Ireland will focus on the issues that people care about most: health, housing, schools, jobs and social deprivation. We should all pray that we will see a return to normal, democratic, devolved politics in a long-tormented Northern Ireland within the United Kingdom.
My Lords, I, too, thank the Leader of the House for repeating the Statement made in another place by the Prime Minister. There will be relief that the Hillsborough talks have led to an agreement; but much remains to be done. The excruciatingly protracted nature of the negotiations does not augur well for future progress towards achieving a mature civil society and a fully functioning democratic polity. That will take decades. Northern Ireland remains a divided society, fractured on sectarian lines. One precondition for further progress is for the unionist community to come together to form a united, coherent and moderate political organisation. Continuing triangulation between the various unionist factions will risk the strangulation of Northern Ireland politics.
As the Hillsborough agreement recognises, the Executive must become more effective and assume collective responsibility for their actions. This is vital for the successful management of a divided society, which can then cease to rely, as it has for the past dozen years, on the de facto Dublin-London condominium. Tensions are best managed locally, but that requires a properly functioning Executive.
In the much longer run, we must hope that conditions will permit the creation of “normal” politics, based on differences of ideas and programmes rather than sectarian interests. That is a distant dream, and doubtless there will be many setbacks on the way; but an immediate obstacle has now been cleared with the transfer of responsibility for policing and justice from London to Belfast, and we wish the proposed Minister of Justice good fortune in setting up and exercising this vitally important office.
The transfer marks an irrevocable step—I stress that. The status quo ante can never be restored, whatever the circumstances. If the devolutionary settlement now formally completed breaks down, the likely solution will be some sort of mandated territory administered by the European Union or by a de jure London-Dublin condominium. Such a prospect should concentrate minds on striving to create a democratic polity, a mature civil society and a prosperous economy for Northern Ireland. As the noble Lord, Lord Strathclyde, said, that must be the hope of all of us in your Lordships’ House. We on these Benches welcome the agreement.
My Lords, I am extremely grateful for the warm welcome for the Statement from noble Lords opposite. It is a pleasure and privilege to repeat this Statement, knowing that truly it has bipartisan support. That is a mark of all the negotiations that have taken place, not just since 1998, but, as the noble Lord, Lord Strathclyde, said, also during earlier Conservative Administrations. We have come a long way: we all recognise that today.
The noble Lord, Lord Strathclyde, asked about decommissioning. We have come a long way on decommissioning and the agreement sends a clear message to the men of violence that politics, not violence, is the way in which conflicts are to be resolved. It is hoped that the people who still have their arms will listen to that message and that they will decommission. However, to date there is no news of the Real IRA and the Continuity IRA decommissioning.
As for the operational independence of the police, the operational independence of the chief constable will continue to be enshrined in legislation. So nothing should be read into the terminology within the agreement on that front.
The noble Lord asked about the risk of more difficult negotiations in 2012. The agreement last week at Hillsborough marks a new phase in Northern Ireland politics. I believe that the agreement provides a very firm basis for addressing all outstanding issues and demonstrates the desire and capacity of all parties to work together on difficult issues in a spirit of co-operation. One of the working parties announced in the agreement is specifically looking at outstanding issues from the St Andrews agreement, and I am sure that it will consider all outstanding issues.
I am also very grateful for the welcome from the noble Lord, Lord Smith of Clifton. He is right to say that although it is an enormous relief that the agreement has been reached, there is much more to be done. There has indeed been a fractured society in Northern Ireland for many years, but there appears to be a real will—not just on behalf of politicians but on behalf of the people of Northern Ireland—to move forward together. The noble Lord rightly said that everyone feels that the Executive must become more effective. That is why the agreement encompasses a working group which we hope will be chaired jointly by Sir Reg Empey, who has particular concerns about these issues, and Margaret Ritchie, whom we must congratulate as the new leader of the SDLP.
Like the noble Lord, Lord Clifton, we believe that normal politics is what everybody in Northern Ireland desires and is striving for, and that we must look forward to a healthy democratic polity and a mature civil society.
My Lords, I also thank the Minister for repeating the Statement. I am always extremely reluctant to bring a discordant note to your Lordships’ House. However, what has been widely acclaimed as an historic agreement is somewhat less—indeed, it is not that. The document given to us this afternoon has neither signature nor ownership and at best it can be considered only as a starting point for negotiations in the future. I am extremely saddened that my Government endeavour to mislead the electorate of Northern Ireland and indeed your Lordships in this House about the significance of this two-party arrangement.
My Lords, perhaps I was using my words without due consideration. All parties were invited to participate in round tables and to make their views known. It is now for the parties to take this forward. The Government are not imposing anything on the people of Northern Ireland or their politicians. This agreement came out of the people of Northern Ireland and we believe that is how it should be taken forward.
My Lords, does my noble friend agree that on what is a good day for Northern Ireland we should not forget the important part played in the process by the noble Lord, Lord Trimble, and the Ulster Unionist Party, and indeed by John Hume, Seamus Mallon and the SDLP? Without their brave contributions throughout the peace process we would not have got to where we are today.
Finally, we have established a very good relationship between Britain and the Government of Ireland. Does my noble friend agree that it is absolutely essential that we continue to work at that relationship, which has been a basis not only for peace in Northern Ireland but for good relationships between this country and Dublin?
My Lords, I will take the last point first. Yes, the agreement was reached—it marked a very good relationship between the two Governments, and I am confident that that will continue—and, yes, perhaps I was remiss earlier in not acknowledging the enormous role played by the noble Lord, Lord Trimble, and by the Ulster Unionist Party and the SDLP, in ensuring that ultimately this agreement could be reached.
I should have stressed in my answer to the noble Lord, Lord Rogan, that the talks were open and inclusive and that all parties had the opportunity to be fully involved.
My Lords, I would like to think that, in the briefing material available to the Leader of the House, there is a reference to the wise words of Seamus Mallon that were uttered in a debate in the other place in reply to my having called for the devolution of policing and justice. He said that for that to happen, the Northern Ireland Executive would have to show that the Assembly is robust and durable. Does the noble Baroness not agree that he was quite right to identify those requirements, but that unfortunately the present Executive have shown a woeful inability over the past few years to agree on almost anything, and that if this is going to work they will have to find in themselves characteristics that have not so far been in evidence?
My Lords, I have no doubt that Seamus Mallon, whose party, I understand, welcomed the agreement today, is right that the Assembly should be robust. However, that is precisely why part of the agreement was to establish the working party, which I am sure will ensure that the working methods and various other issues pertaining to the Executive are changed and that we have a robust Executive who can take the Northern Ireland Assembly forward so that it well represents its people not just in the devolution of policing but in jobs, housing and all the other things that matter to the people of Northern Ireland.
My Lords, I wholeheartedly welcome the Government’s Statement today and thank the Leader of the House for addressing us this afternoon. Before I proceed further, I draw the House’s attention to the fact that I am a Member of the Northern Ireland Assembly for the East Belfast constituency.
The agreement that was announced at Hillsborough Castle on Friday represents the successful conclusion of a long and arduous negotiating process. Although there were numerous dark days and false dawns, the determination of my party to succeed never wavered, and the perseverance of our negotiators has achieved a deal that we can recommend with confidence to the people of Northern Ireland. Indeed, we will consult the community in the next few weeks. In particular, I pay tribute to the dedication and commitment of my party leader, who, despite personal difficulties, devoted himself unstintingly to the task of achieving a successful outcome to the negotiations.
This agreement not only represents an appropriate resolution of the problem of devolving policing and justice powers to the Northern Ireland Assembly, but reflects the strong public desire for cross-community co-operation through the successful functioning and development of the devolved institutions. The agreement was made in Ulster with the agreement of most political parties, and it provides a solid framework for the devolution of policing and justice powers while at the same time resolving the parading issue that had the potential to frustrate progress in the future. It is regrettable that not all parties have seen fit to participate fully in the negotiating process. Indeed, at least one party has to date refused to support the agreement that was arrived at. It must be hoped that the party concerned will be made aware of the serious damage to the peace process that its continued obstinacy may cause, and that wiser counsel will prevail.
My Lords, I would also like to mark the determination of the noble Lord’s party, but especially that of its leader, Peter Robinson, who clearly did a splendid job in very difficult circumstances. I also agree with the noble Lord that there is strong public desire for cross-party co-operation in Northern Ireland.
I should like to ask the noble Baroness the Leader of the House for reassurance on one topic which has not really been covered in the Statement—I realise that it lies slightly outside. The Continuity IRA and the Real IRA—the dissidents—are definitely providing a greater risk and threat than they previously have. There is, according to the police, a haemorrhaging of people from the old IRA and therefore the technology that they use. The munitions that they have been using lately show that quite clearly.
In Northern Ireland, we have quite a large part of the security services from this country, and that has not been devolved. We would like to hear an assurance that that effort will not ease up as a result of the success of this agreement. We must also remember that more recently, the information that has been given on various incidents has been from the Republic; the incidents we have had no lead in to have been planned in the north. Therefore, I think that we have a right to ask for increased security, and for reassurances that those services will not be devolved.
My Lords, the noble Viscount, Lord Brookeborough, makes an extremely important point. The Government completely recognise the need for the national security services to remain in Northern Ireland. As I understand it, they have recently enhanced allocations. I assure the noble Lord that the national security service in Northern Ireland will continue to be properly funded so that it can properly defend the interests of the people there.
My Lords, I, too, thank the Leader for bringing us this Statement, and place on record the thanks of the people of Northern Ireland to the two Prime Ministers who gave up their time freely to deal with our issues. It is a good day for Northern Ireland that we have agreement, even in a document. So from that point of view, Friday was good. However, confusion reigns in Northern Ireland. Listening to the media from Friday to today, most people out there do not understand what is going on. I have heard a lot about community confidence. Will the noble Baroness say how the general public will know what is going to happen in the future?
My Lords, that is a very good point. I am sorry that I cannot tell my noble friend exactly what will happen to ensure that the people of Northern Ireland are properly informed not just of the agreement, but the process which will now be undertaken. I completely agree that communication is now of the essence in ensuring that the people of Northern Ireland are taken with the politicians of Northern Ireland on the journey into this exciting new future. I will come back to my noble friend in writing if I may, and will place a copy of the letter in the Library of the House.
My Lords, I welcome the fact that the Statement begins with a reference to the decommissioning of the INLA. A few weeks ago, I was one of the two independent observers at the decommissioning of the weapons of the largest loyalist paramilitary organisation, the UDA. Does the Leader agree with me that one of the real tests now for the devolved Administration in Northern Ireland is to address the fact that, in the areas from which the UDA and other loyalist paramilitary organisations drew their strength, there is widespread alienation from the political process? I believe it is now incumbent on the devolved Administration in Northern Ireland to address that alienation and to find ways in which the vacuum, which has been welcomed but which was caused by the decommissioning to which I have referred, can be addressed. Does the Leader agree with me that that will be a priority for the devolved Administration?
My Lords, I pay tribute to the noble and right reverend Lord for the extraordinary work that he has been doing on decommissioning. I certainly agree that the Executive and the Assembly have a huge role to play in ensuring that that alienation from the political system or the vacuum is filled not by violence but by proper political activities or proper engagement with the people of Northern Ireland. In taking this last step towards devolution, the Executive and Assembly can now focus on the issues of real importance to the people of Northern Ireland, such as jobs and housing, as well as political engagement. That will assist in ensuring that the vacuum is not filled by violence.
My Lords, I, too, welcome this agreement. It is important to place on record the fact that the agreement was made between two parties and that the other parties had no sight of it until after it was agreed. It is also important to say that it is an agreement to think about agreeing because it is contingent upon the workings of a number of working groups which will be established in the future. It is enormously important that this House recognises the significance of the appointment of a justice Minister in Northern Ireland and the method by which that justice Minister is appointed; it is not the product of effective gerrymandering.
My Lords, I recognise the wise words of the noble Baroness and the fact that the agreement was reached ultimately by two parties. As I said earlier, we believe that the talks were open and inclusive. It was for other parties to be involved if they so wished. I fully agree with what the noble Baroness says about the justice Minister. That is a huge step forward.
My Lords, it is not widely known that General de Chastelain, before he became the Canadian Chief of Defence Staff, kept wicket for Fettes. In that capacity he has been a perfectly admirable longstop in the years since the Belfast agreement. What will happen to the international commission in the future?
My Lords, I apologise to the noble Baroness for not being here on time. That was due to a transport delay.
Having worked shoulder to shoulder with the noble Lord, Lord Trimble, in 1998, I am hugely disappointed to see this arrangement—it is certainly not an agreement—impacting on the future of Northern Ireland and to find that, again and again, the St. Andrews arrangement has been used to divert and distort what we worked very hard to achieve in 1998. There is the idea that somehow we can cut a Minister of Justice out of the hedge, rather than use the processes that were agreed in 1998; there is the idea that the leader of the SDLP and the leader of my party can somehow be instructed to chair a working group without ever having been involved, at any stage, in the Hillsborough talks—not even having seen a piece of paper with a proposal on it. There is the fact that the piece of paper that we talk about today is totally anonymous—it does not have a signature or a name. This is not an agreement—it is an insult to the people of Northern Ireland and I feel it is an insult to Members of this House to have it sold as an agreement. Nothing is a greater insult to this House.
Does the Secretary of State for Northern Ireland know something we do not know about the processes that were put in place to examine certain allegations against the First Minister that were carried on a BBC programme? This effusive response by the Secretary of State is not acceptable.
My Lords, I recognise the deep concern that the noble Lord expresses but I have to refute some of the arguments he made. This was not an agreement made by two Governments; it was an agreement made by two parties—the party of the First Minister and the party of the Deputy First Minister—in the Northern Ireland Assembly. It is regrettable that the Ulster Unionist Party was absent for a large part of the time but, as I understand it, that was a matter for the Ulster Unionist Party itself. I should also say that the leader of the Ulster Unionist Party was not instructed to chair the working party: he has been invited to chair the working party. We very much hope that he will take up that invitation. In repeating this Statement I am not trying to sell the agreement; I am trying to inform noble Lords of the agreement and of where we are vis-à-vis the agreement, which has support on most Benches in this House.
Finally, on the position of the Justice Minister, the Assembly decided late last year in the Bill to create a department of justice that, given the special sensitivities of the post, the appointment of the Justice Minister should be made by a cross-community vote in the Assembly. This is nothing to do with the agreement going behind or beyond the St Andrews agreement. It is following on a decision made by the Assembly last year.
Digital Economy Bill [HL]
Committee (7th Day)
Clause 31 : Renewal of national radio licences
Debate on whether Clause 31 should stand part of the Bill.
My Lords, before I propose that the clause not stand part, I must apologise. As a result of the way in which the business of the House has been organised today, I shall not be able to be here for about two hours of the Committee’s proceedings. I very much regret that, as many important matters remain to be debated. However, since the business was switched at extremely short notice—I hope that the Whips are whipped for it in some future incarnation—
I am of course not referring to the noble Lord, Lord Davies. Moving this business from Tuesday to Monday at very short notice is not a happy situation. I therefore hope that Ministers will give full and frank responses as if I were present. I am very grateful to my noble friend Lord Addington, who has kindly agreed to step into the breach when I am not able to put the arguments.
I propose that Clause 31 should not stand part. Under this clause, the national analogue radio stations talkSPORT, Classic FM and Absolute Radio are receiving valuable seven-year extensions to their licences. In exchange, the existing licensees have been asked to give their support to an early switchover, with the proposed 2015 date coming much earlier than that recommended by the Government’s 2008 Digital Radio Working Group.
However, there is a view among some operators that extensions to these licences are not worth the damage to radio of a digital switchover policy which assumes an unrealistic timetable for digital switchover and which fails to provide solutions that allow all local radio stations to move to digital. They do not accept that as a reasonable quid pro quo for an early switchover. They believe, on the contrary, that the industry’s engagement with the digital radio switchover proposal has been distorted by its interest in licence extensions which are essentially to do with the attractiveness of the current analogue model for radio rather than the proposed digital model. Their view is that Clause 31 will deprive the Government of revenue due from re-auctioning the licences for these national analogue stations. However, the Government have failed to publish an assessment of how much revenue will be lost to the Treasury under this approach.
The Government need to justify the advantage of the clause against the background of the following factors: that the sums lost to the Treasury will clearly amount to tens of millions of pounds over the lifetime of the extended licences; and the lack of evidence about whether digital investment by the holders of these licences will continue without the extensions. On the face of it, many are already contractually or otherwise committed to digital even without this.
My Lords, although I share a number of the noble Lord’s concerns, I do not think that removing the clause would be helpful. It is a facilitating clause that enables the move to switchover at a later date, and it does not set in stone when the switchover will take place or indeed that it must happen. It is more important that the Secretary of State considers a range of issues before nominating a switchover date than that the process in its entirety is stopped. I believe that the level of digital radio listening should be much higher than the Government have suggested. It would also be very much better if the fact that the FM spectrum will remain in use for local and community radio stations was on the face of the Bill. More progress should be made in creating a help scheme and a recycling scheme. We should be focusing on these issues rather than on an attempt to derail the digital switchover process completely.
My Lords, I recall that last week the noble Lord, Lord Clement-Jones, and I supported each other’s amendments, but sadly that relationship is about to be broken albeit, I hope, temporarily. To allow the Bill to pass without this clause would pose a real problem for the entire digital radio project.
The three commercial stations currently granted national analogue licences cater for a broad range of tastes, from Beethoven and Brahms to Bon Jovi, via the latest soccer score from Bolton Wanderers. Their collective appeal has been vital to encouraging digital take-up by listeners, with around a fifth of their current audiences now listening via a digital platform. To disrupt that migration would be rather unwise.
Readvertising these national licences with just a few years to run before we expect to switch off the service seems to be sending the wrong signal to both the industry and to listeners. It seems to suggest that we are not fully committed to digital as the future, that we doubt whether we will be in a position to switch over the bulk of national stations in seven years, and that we can expend less energy on the steps that are undoubtedly still needed to get listeners to switch to digital, especially through pushing down the cost of DAB radio sets and through getting DAB into more cars as standard. I do not think that any of those things are the right course.
If, as I understand it, the message from the legislature to the private sector is to be, “We want you to invest in this new technology, market it to your listeners and encourage them to adopt the new listening platforms”, surely we cannot keep expecting these companies to keep on writing blank cheques.
We all appreciate that digital platforms are still in their relatively early days. It has to be remembered that not one digital radio station has yet posted a profit. For their pioneering endeavours, they deserve the stability that this reprieve offers them. One does not often hear pleas for breaks for business from these Benches, but this is a case of tidying up the licensing regime to make it serve the purposes of the digital age.
My Lords, I declare an interest as chair of the consumer panel of Classic FM. This panel is entirely independent of the company. It is devoted to maintaining the standards of Classic FM and the widespread broadcasting of classical music by the independent sector. If this clause does not stand part of the Bill, your Lordships should be aware that the future of Classic FM will be severely compromised because it is a requirement of existing law that the analogue licences are auctioned. As at present conceived, analogue licences do not have a clear format specification. There is not a licence for classical music. There is simply a licence for non-speech, which is the licence held by Classic FM.
If these national stations were to be auctioned in the near future, I would be willing to bet the noble Lord who is opposing that Clause 31 shall stand part of the Bill at least a bottle of claret that this licence would be secured by a pop music station, and that Classic FM would disappear. I wonder whether the noble Lord has taken into account that possibility in his proposal.
My Lords, key to supporting the drive to digital is to encourage and to allow broadcasters to invest in their digital futures. Experience shows that licence renewals, which are linked to the provision of a digital service, are a key incentive. At a time when the Government are asking the industry to contribute to a focused and intense drive towards digital, we believe that it would be wrong to remove this incentive.
Clause 31, alongside Clause 32, would allow Ofcom to grant a further renewal period of up to seven years to analogue licence holders which also provide a digital service. Clause 31 relates specifically to the national analogue licences, although the rationale for the decision for extending the renewal is identical for both national and local licences.
I do not want to take up too much time because noble Lords who have contributed to this debate have put many of the arguments excellently. The noble Lord, Lord Howard, talked about the necessity to maintain the clause. The right reverend Prelate displayed a very catholic—I hope he does not mind me using the word—taste in music from Beethoven to Bon Jovi, which I liked. In his analysis of the need for Clause 31, he is absolutely right. As he said, we cannot expect companies to carry on writing blank cheques. We need to give them an incentive. My noble friend Lord Eatwell’s analysis of Classic FM was exceedingly apposite. We believe that this clause is essential for the reasons stated by a number of noble Lords. In those circumstances, I support the clause standing part of the Bill.
My Lords, I thank the Minister for that reply. I also thank other noble Lords for contributing to the debate with some fairly bloodcurdling prospects. However, I do not think that the Minister has answered the question about why these extensions are required. I put this proposal somewhat as a devil’s advocate. By and large, I believe that the majority of the radio industry is behind the scheme as put forward by the Government, but there is a significant minority of interest which is not. That is why I put forward the clause stand part debate. But if I were in their shoes, listening to what the Minister had to say, I would consider that his arguments were entirely circular and that the Government have done this because they needed to and that this was the best way forward. I do not think that any real forensic argument has been put forward by the Minister. I could probably put forward rather better arguments than the Minister has. I certainly could have put my finger on areas where investment is needed, since I have been briefed by some of the major radio players.
The Minister has been extremely half-hearted in responding. This is the one bit of this Bill which is the Government’s opportunity to set out their stall in terms of their digital radio policy, other than the amendments we have already dealt with. We had quite a useful debate on our last Committee day, but the Minister has not really answered the questions in a robust way. Certainly, he has not set out the stall for the Government’s policy in terms of the extensions of these national analogue radio stations. We are talking about digital radio switchover. What is it about these extensions that will make those radio stations invest more when they migrate to digital? That is what it is all about.
The Minister did not even attempt to talk about the amount of money that the Treasury would forgo. Some estimates have put that as high as £73 million, which is a large amount of money. I do not think that the Minister dealt with that either. The Minister has been extremely disappointing. I do not think that that minority of radio stations will be particularly happy to hear the Minister’s lack of engagement with their arguments. It is almost as if he has taken a view that only a minority of radio stations is concerned, that the bulk of the radio industry is quite happy and that therefore that minority will be overridden without so much as a by your leave.
That is an unfortunate position to be in. This House, above all, is about rational debate and about putting forward the arguments. To be frank, in previous amendments to this clause, the Minister put forward some useful points—he certainly did in response to some of mine—but when I have tried to elicit an overarching policy, he has been lacking and I have been somewhat disappointed.
Clause 31 agreed.
Clause 32 agreed.
Amendment 241B not moved.
Clauses 33 and 34 agreed.
Clause 35 : Local radio multiplex services: frequency and licensed area
241C: Clause 35, page 39, line 3, leave out “local”
My Lords, this amendment, which relates to the provisions for digital radio, seeks to allow for the efficient use of the radio spectrum and for a potential increase in radio listening choice for the people of Northern Ireland. Although national BBC services are available via digital radio in all four parts of the United Kingdom, the national commercial multiplex is unavailable in Northern Ireland. The reasons for that are historical and technical, and relate to how the same frequencies were used in the Republic of Ireland. The result is that stations, including Absolute Radio, Planet Rock, BFBS radio and Premier Christian Radio, cannot be heard digitally in Northern Ireland. There is some hope that the spectrum position will change. However, as currently worded, even if that spectrum were to become available, Ofcom would not have the powers to allow it to be used by the national commercial multiplex.
That is clearly an anomaly and, I suspect, an oversight. It would result in the inefficient use of spectrum and an artificial restriction on the radio-listening choice for some citizens. This amendment seeks to correct the situation and, without obliging, would enable Ofcom to increase the coverage of the national commercial multiplex. Were this to become technically possible, Ofcom would follow the process already proposed for similar expansion of local digital radio or multiplexes using the framework already in the Bill. This amendment, while modest and not contentious, will have benefits for the people of Northern Ireland and clearly will be welcomed by the radio industry, so I hope that the Government will be prepared to accept it. I beg to move.
My Lords, this amendment would allow Ofcom to vary the frequency or licensed area of national, as well as local, radio multiplex licences. On the face of it, this is not an unreasonable change and would potentially enable the national commercial radio multiplex to extend its coverage to Northern Ireland. However, Clause 35 was structured specifically with reference to local radio multiplexes so as to allow them to merge or be extended in order to close the gaps in local radio multiplex coverage in the UK not currently served by DAB. Simply removing the word “local” from the text may not be the best way to achieve the desired result. Consideration needs to be given to what variation powers Ofcom should have with regard to national multiplex licences and to the basis on which such powers should be exercised. We have some sympathy with what the noble Baroness is trying to achieve and the Government will consider this issue before Report. With that assurance, I hope that the noble Baroness will feel able to withdraw the amendment.
My Lords, I am pleased to hear that, even if this amendment is not entirely appropriate according to the Minister, serious consideration is going to be given to how this can be made possible. Under those circumstances, I beg leave to withdraw.
Amendment 241C withdrawn.
Amendments 241D to 241F not moved.
Clause 35 agreed.
Clause 36 : Renewal of radio multiplex licences
Debate on whether Clause 36 should stand part of the Bill.
My Lords, Clause 36 deals with the renewal of radio multiplex licences and it inserts a new Section 58A after Section 58 of the Broadcasting Act 1996. The House of Lords Delegated Powers and Regulatory Reform Committee, which we always listen to with some respect, had some interesting words to say about this clause:
“It is impossible to tell from the Bill whether the policy is that the licences should or should not be renewable at all, let alone for what period or on what grounds. Indeed, paragraph 56 of the memorandum candidly admits that the relevant policy decision has yet to be made. We draw attention to the skeletal nature of the power in clause 36, to enable the House to examine it further and determine whether it is justifiable in this context”.
I am merely a humble hand maiden of this House in tabling this clause stand part debate, and I hope that the Minister can give us further enlightenment.
I have never had to respond to a hand maiden before in this House. I am still wrestling with that analogy. The Government stated in the Digital Britain White Paper that we would work with the industry to agree a plan to build out the DAB infrastructure to current FM coverage. We recognise the need to limit as much as possible the impact of such build-out on radio stations. One way this can be achieved is to allow multiplex operators to spread the cost of the investment in the new infrastructure by extending the period of their licence. We have suggested that licences could be extended up to 2030.
The renewal of multiplex licences as a means to support digital radio was first introduced in the Broadcasting Act 1996. However, these renewal powers only apply to licences which were granted within 10 years of the 1996 Act coming into force. Therefore, there are a number of multiplex licences which are currently not eligible for a renewal. If renewals are to provide a real support to the build-out of DAB coverage to FM levels, they need the flexibility to achieve three objectives: first, to allow the extension of the licence period for those licences which are already eligible for, and in some cases have already been awarded, a renewal under the existing terms; secondly, to allow the renewal to apply to all multiplex licences, including those not currently eligible within the existing provisions; and thirdly, to ensure that any further renewals are awarded with conditions which link them to the progress to digital radio switchover, and more specifically to an agreed build-out plan and timetable.
The link to a DAB coverage plan for switchover, which is likely to take a year to agree, is why we believe these powers are most appropriately applied via an affirmative order. I note concerns about the breadth of the order-making powers and I hope that I have satisfied noble Lords that they are justified because of the range of changes needed to implement this policy.
I thank the Minister for that brief but—I hope to discover on reading Hansard—informative statement. As somebody who is not fully conversant with the radio multiplex licence variations, that was not the clearest possible answer I could have asked for. I hope that it will make sense on further consideration. It seemed to tell me that the Government need the maximum possible flexibility without having determined exactly which licences require extension. I am not sure that takes us a great deal further than what the House of Lords Delegated Powers and Regulatory Reform Committee said, but perhaps, as I say, on reading Hansard it will all become blindingly obvious.
Clause 36 agreed.
Clause 37 agreed.
Clause 38 : Payment for licences
Debate on whether Clause 38 should stand part of the Bill.
My Lords, I feel somewhat like the Ancient Mariner at this part of the Bill. I am hoping that the Minister will give me a better reply than he has to previous clause stand part debates. The purpose behind this clause stand part debate is to ensure that the Government put on the record their spectrum policy to deliver 4G mobile telecoms and set out their key objectives. Consultations are currently taking place on the report by the Independent Spectrum Broker, Kip Meek. He clearly has tried to reconcile a number of interests within the confines of his brief from Government. A key assumption underlying his conclusions was that there is adequate competition in the mobile market. Are the ISB’s conclusions still valid now in the light of the reduction in the number of mobile operators through the merger of T-Mobile and Orange? The Government have acknowledged this to a degree in their extension of the consultation period.
Will there be an adequate portfolio of spectrum between the various competitors as a result of an auction process for the 800 megahertz freed up by analogue TV switchover—the so-called digital dividend—and the currently unused 2.6 gigahertz spectrum? This is one of the key questions. Will the proposals really have the maximum possible effect in terms of promoting competition in the mobile sector, as claimed by the impact assessment? Why is there no proposed special provision for new entrants as there was when the 2.1 gigahertz spectrum was auctioned? Does this not mean that the auction process is essentially a closed one, confined to existing operators? Why auction the 800 megahertz at the same time as the 2.6 gigahertz? Why not auction the former before the 800 megahertz is freed up from digital TV switchover? Why deal with our spectrum wholly separately from the process on the continent? Should we not be looking at this on a pan-European basis?
Are the emergency channels properly dealt with? Will there be adequate free spectrum for the Olympics, as the Government guaranteed in their bid? Save Our Sound highlighted the problems faced by the programme-making and special events sector, where a whole range of wireless radio microphones and similar equipment will be rendered obsolete by the auction of the 800 megahertz spectrum. The Government made reference to the issue in the Digital Britain White Paper, but what concrete proposals are there now by Government to meet their costs of enforced migration from 800 megahertz, which will add up to tens of millions of pounds? What justification is there to extend the 2.1 gigahertz 3G licences? Is that really necessary to stimulate further investment? Why have the expected financial benefits not yet been quantified in the impact assessment for the Bill? Will the annual licence fee, the administrative incentive pricing arrangement, be charged and will those charges reflect the true value of the use of the spectrum after 2021? What assurances will there be that the spectrum-trading model envisaged will actually work, when it has not worked so far?
What the Government propose is complicated, but some want to unpick it. BT, for example, may take legal action via judicial review. What view have the Government taken on its chances of success? The Government need to articulate very clearly why their proposals are necessary to deliver next-generation mobile and why the provisions in Clause 38 are required to implement them.
My Lords, Clause 38 is intended to support the Government’s proposals to achieve the spectrum modernisation programme set out in the Digital Britain report. I am having trouble with the noble Lord’s transformation from handmaiden to ancient mariner; that is a terrible ageing process in the space of a few minutes.
The proposals, recommended by the independent spectrum broker, have been developed with the objective of enabling the early release of significant amounts of new spectrum into the market, offering the opportunity for existing operators and new entrants to acquire sufficient spectrum holdings that will allow them to deploy next-generation wireless networks, delivering high-speed mobile broadband services to businesses and consumers. An example of the licences that could be affected by the changes enabled by this clause are 3G licences which were auctioned in 2000 and are due to expire in 2021. The Government propose to direct Ofcom to make these licences indefinite, but that annual licence charges will be applied from 2021. The Government believe that this is an appropriate step to take.
Further investment is required in 3G networks, but with the licences due to expire in 2021, operators face a difficult decision at a time when capital expenditure budgets are under pressure. By making the licences indefinite, the operators can invest with greater certainty and confidence, to the benefit of consumers and businesses alike.
Some have argued that we are giving these licences away. This is not the case. The intention is to apply annual licence fees to these licences from 2021, which will reflect full market value. The amount of the charges will be set by Ofcom at the appropriate time. Of course, they will be required to exploit the spectrum that they have efficiently and effectively. At the moment, we have only one remedy—to remove the licence. We think that this gives us more flexibility.
On the specific question of the Olympics, I can guarantee that a suitable spectrum has been identified and will be available for the Olympics. I am pretty sure that the same guarantee could be assured for emergency services as well.
My Lords, I thank the Minister for that reply, but he barely touched the surface of the policy. I hope that he has read the independent spectrum progress report; it is the subject of consultation, which has been extended because of the Government’s concern about the merger of Orange and T-Mobile affecting the competitive situation. I do not think that the Minister used the word “competition” in his answer to me. What is the Government’s view about the new element introduced by the merger of T-Mobile and Orange? Has it affected the spectrum broker’s recommendations? Do the Government still believe that their package is viable in the face of going down from five operators to four?
Whether the joint venture between Orange and T-Mobile takes place is a matter for the relevant competition authorities. Whatever decision they arrive at will need to be accommodated within our proposals for the spectrum modernisation programme.
My Lords, that is an extraordinary answer. The Government are making policy on the basis of certain assumptions. The Minister is telling me that that is in the hands of the competition authority; of course it is, in terms of the commercial practices of those particular mobile operators. However, I asked whether the Government’s assumption about the level of competition in the mobile sector still stood, so that there would be a proper portfolio of spectrum available to keep competition within the mobile sector. The auctioning of the 800 megahertz and 2.6 gigahertz is going to have a considerable impact on the mobile operators’ ability to deliver fourth-generation mobile.
In the opening part of my contribution I did specifically refer to the point that the noble Lord made when I said that the proposals recommended by the Independent Spectrum Broker have been developed with the objective of enabling the early release of significant amounts of new spectrum into the market, offering the opportunity for existing operators and new entrants to acquire sufficient spectrum holdings that will allow them to deploy next-generation wireless networks, delivering high-speed mobile broadband services to businesses and consumers. I specifically addressed the point about new entrants and competition, and I wish that the noble Lord would perhaps pay a little more attention to what I am saying rather than criticise me for not giving answers.
My Lords, I was listening very carefully and I took note of exactly what the noble Lord said, but he did not say that five competitors moving down to four made any difference to the Government’s proposals. That was the point that I was making. Of course, he said that that was the Government’s belief, but he did not say whether the Government had changed their view as a result of changes in the number of mobile operators. The other aspect was the Save Our Sound campaign. There have been assurances from the Government, but it seems that there is nothing concrete yet to help it in terms of replacing all the equipment which currently uses the 800 megahertz spectrum, which it will have to deal with. I was listening carefully to what the Minister had to say—but again, if I have misinterpreted the Minister, I apologise. I think that I have been listening pretty carefully, and I certainly did not hear the Minister say anything of that sort or anything about whether spectrum should be dealt with on a European-wide basis. That seems a rather important point. I do not know whether the Minister has any crumbs of comfort or scraps of paper or anything else that he cares to deliver in these circumstances. He shakes his head, so clearly not. We shall just have to wait until Report for further enlightenment.
Clause 38 agreed.
Clause 39 : Enforcement of licence terms etc
242: Clause 39, page 42, line 38, at end insert—
“( ) In section 400 of the Communications Act 2003 (destination of licence fees and penalties), in subsection (1)(d), after “42” insert “or 43A”.”
This government amendment rectifies an omission in the Bill.
Clause 39 of the Bill inserts proposed new Section 43A into the Communications Act 2003, giving Ofcom a new power to impose financial penalties in certain circumstances. This technical amendment adds a reference to the penalties imposed under new Section 43A to Section 400 of the Communications Act 2003. Section 400 requires specified licence fees and penalties paid by operators to be paid into the Consolidated Fund. This amendment therefore ensures that any such penalties are dealt with in a consistent fashion to other amounts and penalties paid to Ofcom. I beg to move.
Amendment 242 agreed.
Clause 39, as amended, agreed.
243: After Clause 39, insert the following new Clause—
“Electromagnetic spectrum: access for European emergency service
(1) OFCOM must set aside a spectrum band or bands amounting to not less than 15 MHz in total and lying within that part of the spectrum that is expected, under Council recommendation 10141/09 or subsequent proposals, to be agreed upon for the extension of European emergency service access.
(2) OFCOM may not release any of the spectrum so set aside unless it sets aside equivalent spectrum, or determines after due consultation that the emergency services have no reasonable likelihood of requiring the spectrum to be released.”
My Lords, this amendment picks up a point raised minutes earlier by the noble Lord, Lord Clement-Jones, and not replied to by the Minister: what are we doing to protect the interests of the emergency services, and our national interests, when it comes to allocating spectrum for them? This has two prongs to its attack.
It is clear that the emergency services will, over time, require substantial additional spectrum. I have put in 15 megahertz here just as an illustration of the magnitude of the requirement. Although the current emergency services systems are generally operating well, if near capacity—there have been points in recent times when that has got very close—they were designed 10 years ago. All of us, even those with parliamentary communication systems, are operating at a much more advanced level than the emergency services are able to.
If, as I think is inevitable, we give the emergency services the ability to use streaming video—so that the situation on the ground could be immediately communicated to the centre by the constable on the beat, or so that that constable could see immediately the recipe required to free a person from an obstacle or deal with a situation, as would be common on commercial networks that have to deal with such situations—we will require substantial additional spectrum to handle it.
If we are going to do that, there is great advantage in harmonising that spectrum across Europe. We achieved this with the current system, and greatly to our benefit. There have been two benefits. One is that because the system operates at common frequencies the kit is much less expensive. Secondly, by being an early adopter of the system, we have been able to take a very large share of the equipment manufacture market for the current system as it is spread out worldwide. It has been a great benefit to us in both those ways.
We now appear to be in a situation where a harmonisation process is under way in Europe for future emergency services spectrum. The noble Lord, Lord West, has very sensibly signed up to it on behalf of the Home Office, but Ofcom is doing its best to derail it, because it thinks that it can sell the bit of spectrum that Europe is looking at for more money. That is an extremely short-sighted view. Ofcom may get a bit more money for it now, but it will cost us a great deal more in the future both in terms of the cost of our kit and in terms of lost markets.
In this amendment, I am asking that this bit of the Government sign up as the other bit of the Government has. In other words, I ask that we are wholeheartedly part of the European co-operation on finding common spectrum for the next generation of emergency services’ kit, so that we benefit, or have a very good chance of benefiting, as we have from the current system. I beg to move.
Amendment 244 (to Amendment 243)
244: After Clause 39, line 3, leave out “amounting to” and insert “commensurate with the requirements of the UK critical national infrastructure in addition to spectrum”
My Lords, the noble Lord, Lord Lucas, has made some very useful points. I must confess that the reason why we tabled amendments to the noble Lord’s amendment—which I am sure is fully formed and perfect—is lost in the mists of time. Nevertheless, a more general statement would be appropriate in the Bill, rather than something this specific about the actual use of parts of the spectrum; I suspect that was our motive in tabling these two amendments. They are all about the critical infrastructure.
In debating the Bill, we need to consider the public benefit of reserving a small amount of radio spectrum for use by the critical infrastructure, which is crucial to our well-being, compared to the incremental benefit of using this spectrum to provide more entertainment services and marginally quicker broadband communications.
Thirteen years ago, during the passage of the Wireless Telegraphy Act 1998, which introduced the concept of spectrum trading to the UK, the Government gave the assurance that,
“it is not our intention that the introduction of spectrum pricing should affect the access of utilities to the radio spectrum that they require”.—[Official Report, 8/7/97; col. 559.]
Similar commitments have been made on subsequent occasions, and these should be honoured in the Bill to safeguard the operation of gas and electricity networks specifically.
As we move to a more interconnected society based around communications technology, the interdependence of the underlying electricity networks and communications must not be overlooked. It is not in the consumer’s or citizen’s interest for the integrity of the electricity supply network to be compromised by the lack of resilient communications infrastructure.
I have received a considerable number of briefings, all in language that I am sure the noble Lord, Lord Lucas, will understand, but I confess that I do not—particularly in terms of the emergency infrastructure. I hope the Government have taken all these matters into account, and that they can reply to say that they have done so. I beg to move.
My Lords, in listening to what noble Lords have said, I have been rather attracted by the arguments put forward, not least by the idea that we should perhaps go down the line advocated by the noble Lord, Lord Lucas, towards European spectrum.
We all know that there are too many, if not vast, areas where reception is appalling, about which one is currently very concerned, and where the likelihood is that it will not be perfect for quite a while to come. We would be pretty worried about whether the emergency services, if needed in these areas, would be accessible via the facilities they have.
I am certainly no more capable of understanding the technologies of this, but I hope that even though, as has been admitted, we may not have got it right, sufficient attention will be given to this point. Even during the cold weather we had recently, there were examples where the emergency services could not be accessed. This needs to be taken very seriously.
My Lords, I rise to support the amendment of the noble Lord, Lord Lucas, plus the amendments to it, because they are slightly different things. Taken as a package, the whole thing, though not essential, would be extremely useful for the UK and possibly the world.
Nowadays, in a global society where more things are happening and there is more international assistance, it seems silly that teams who go abroad should not be able to interoperate to a certain extent. If we operate on completely different frequencies, the kit has no hope of interoperating. It might be possible—I do not know—to get stuff to interoperate if we, for instance, dispatched a team to Haiti. If other international teams were there, we might find that we could, whereas the kit will not interoperate if we are working on completely different frequencies. Therefore the idea of organising this at a European level, for a start, is extremely sensible.
There has been quite a lot of debate on this around the scenes for the past year or so. When it has been raised at meetings with various people from the Civil Service, the general attitude has been, “Well, the emergency services have to bid for their spectrum like everyone else, and if that is wanted they will be given the budget to do so”. What worries me is my suspicion that, with the current parlous state of the economy, they will not be given that budget. Because of a temporary crisis in our economy, we may well find ourselves regretting that in 10 or 15 years’ time—or even at the Olympics. If there were a disaster then, it would be far better if we were operating on the European frequency. If teams were there with similar equipment, we might find it easier to operate together.
The point about the critical national infrastructure is that that is different. It would not be regarded as being for the emergency services. Again, however, it is important that they have spectrum allocated to them. More and more control systems—for power stations, for the grid and for other things—are running over radio frequencies. Those systems are not running down just wires or cables. We must make sure that those services have frequencies reserved for them that cannot be interfered with and that will not interfere with other transmissions. They should be dedicated to them. I therefore support all of these amendments.
My Lords, the Government fully recognise the importance of access to spectrum for the emergency services. It is an essential tool, without which they would not be able to operate. The Government regard the safety and security of UK citizens as of paramount importance, and have consistently stated that spectrum management should pay due regard to that. The Government also note the additional amendments that would require spectrum to be set aside for critical national infrastructure.
It is important that we take account of the context within which these amendments are proposed. Spectrum is a finite resource; although technology advances have allowed greater use of the available spectrum, rising demand means increasing pressure on a fixed supply. Against this background, the Government commissioned an independent audit of spectrum by Professor Martin Cave in 2004, from which one recommendation was that any new spectrum requirements from the public sector should be met through the market. He recognised that that might not be possible in certain circumstances, so recommended that a process be established to determine whether an administrative allocation should be made. Government departments and their agencies act within this framework. Determining future spectrum requirements should be treated in the same way as any other resource.
I stress that the National Policing Improvement Agency is presently working on its future communications programme, part of which will address the emergency services’ future spectrum needs. There is no way that those needs will be overlooked or that we will in any way undermine them. We will therefore be in a better position to determine what spectrum is required, and in what band, once that work has been completed and thoroughly assessed.
The noble Lord, Lord Lucas, asked about Ofcom derailing. We certainly do not share that view. The noble Lord referred to Europe and to Council recommendation 10141/09. The recommendation states that when needed and justified, and taking account of national arrangements for distributing spectrum, member states should allocate additional frequencies at national level in a co-ordinated timeframe in co-operation with CEPT—the European Conference of Postal and Telecommunications Administrations. A working group has been established to look at possible spectrum requirements, and the UK will be fully involved. I note, however, that the recommendation clearly states that any requirement for spectrum should be based on an identified need and should be justified. The working group only recently met for the first time. How quickly it will carry out its tasks and what their outcome might be is unknown, so it is premature to determine at this stage any amount of spectrum that may or may not be required.
I think that we have already given an assurance on the Olympics. In response to the noble Earl, Lord Erroll, we can see the difficulties of dealing on a European level, never mind a global level. If we are serious in trying to ensure that we address the needs of the Olympics, we have to be aware of the timescales for achieving this kind of operation. I am not dismissing the need to do that; it is the time that it will take. On critical national infrastructure, at present there is no certainty on what, if any, spectrum might be required. It would therefore be inappropriate and inefficient to set aside spectrum for that purpose.
I repeat: the Government consider the safety and security of UK citizens—and, indeed, of the emergency services in executing their duties—to be of paramount importance. However, the Government’s view is that established mechanisms exist for assessing and, if necessary, allocating spectrum for the emergency services’ use. As I said, the National Policing Improvement Agency is already working on its future communications programme. I hope that, with those assurances, the noble Lord will feel capable of withdrawing the amendment.
Before my noble friend withdraws his amendment, I was very interested in what the Minister said about the National Policing Improvement Agency, which is of course for one emergency service. However, I draw his attention to the report on communication that has just come out from the Royal United Services Institute. It referred to the critical national infrastructure and said that communication between the emergency services is the issue as well.
I think that the Minister was implying that because one emergency service sees the situation as adequate, it is adequate. However, I strongly refer him to that report from RUSI. It makes a strong plea for a vastly improved situation between the emergency services and, indeed, with other authorities such as local authorities. I apologise for not having contributed to the debate before the Minister replied, but I had not realised how relevant reading the RUSI report would prove to be.
Perhaps I may reassure the noble Baroness that communications between the emergency services will be covered; I am getting an affirmative nod from the Box on that. If we can give any more explicit information on that we will communicate it in writing, because I share that point of view. We believe that it is covered and we will give her the detail on that. I agree with her that there would not be much point in the police examining their requirements if they did not also take into account the need to communicate with the fire and ambulance services and, perhaps in some circumstances, with local authorities, in cases of flooding or whatever. I take her point. We think it is covered, but we will be a bit more explicit in writing.
Unfortunately, such large departments very often do not necessarily look, in the remit of their reports, at all the issues regarding interoperability with the other emergency services et cetera. That was a police report and was therefore unlikely to try to take into account issues between, say, the fire and ambulance services and other such matters. I would have thought that, on the precautionary principle, it would be safer to reserve some of that spectrum and auction it later than to include it in the hotchpotch at the beginning. Once it has gone, it will be difficult to get it back. Therefore, it is much safer to hang onto it. Then, if the European ideal falls through, it can be auctioned later.
My Lords, I have already given assurances that the emergency services are working together and, as I said, we will give further details. We do not believe that reserving spectrum on an unidentified basis would be the right thing to do. We have always ensured that we have sufficient spectrum for the emergency services. That is still our intention and, as I said, we are involved in the working party in Europe. We believe that we have the necessary precautions and the right procedures to ensure that the emergency services are available to operate whatever requirements there may be. Once again, I hope that, with those assurances, the noble Lord will feel capable of withdrawing the amendment.
My Lords, I, for one—not being endowed with the technological knowledge that the noble Lord, Lord Lucas, and the noble Earl, Lord Erroll, clearly have—was strangely reassured by what the Minister said. The fact that he said we are doing this in conjunction with our European neighbours, I found doubly reassuring—a reassurance that he was not able to give me about the use of the rest of the spectrum. I do not know why he could not give me that assurance in previous answers. That we are making sure that the emergency spectrum is dealt with on a common basis with our European neighbours seems to be a good thing and is something that we should pursue perhaps in other areas of the use of spectrum.
I am not quite sure what the procedure is. I think that I should withdraw my amendment before the noble Lord, Lord Lucas, withdraws his, and so I shall do so.
Amendment 244 withdrawn.
Amendment 245 not moved.
I am very sorry, Lord Chairman.
I was carefully parsing what the Minister said. I am of course comforted by what he said about the priority given to the needs of the emergency services. He said that we are involved with Europe. Yes, I know that we are involved in Europe. I was taken to task quite severely by Ofcom for saying that we were not. We are just not co-operating. We are not doing our best to reach a resolution on this. It is going back to the days I remember from my early engagement in politics under different management. There is a great difference between being involved in discussion and working to bring the discussion to a fruitful conclusion.
I would very much like to know that the Government are committed to the idea of identifying common spectrum that the emergency services might use in the future. It seems to be a very important concept with a lot of benefits for us. I would very much like to hear the Government say that, rather than just getting involved in discussions which—looking at past discussions on this subject and the contributions made to it from the direction of Ofcom—have been singularly unconstructive. It seems to be a piece of co-operation which we should be encouraging. If the noble Lord cannot reply to me now, I would very much like to have it in writing that we are actively seeking to get towards the agreed goal of a common spectrum allocation for future use by the emergency services.
I do not disapprove at all of the basis that the Government have laid out regarding how the emergency services and others should acquire spectrum in essentially a competitive situation where they have to justify their use of the spectrum. We have been terribly profligate with it in the past. The Ministry of Defence still sits on about a quarter of the entire spectrum, which is a little excessive to say the least. What matters here is timing. The police will certainly develop a strategy. However, there is no way that this Government, or any other Government, will allow them a budget for the next three, four or five years to put in a new system or to begin work on a new system. We will come through a period where public authorities will have to be extremely careful about their budgets.
In that period, under the rubric set out by this Government, the key bits of spectrum will have been flogged off to mobile telephone companies. That is the problem which I seek to address in this amendment. It is not about the principles of the way that the Government are going at it; it is about timing. Because the Government are waiting for things to happen that necessarily cannot happen for five or 10 years before they will allocate spectrum to the emergency services, the other provisions of the Bill will result in the key bits of spectrum—the bits which would have worked on a European or an international basis—having already been allocated to other services. That is what I seek to avoid.
I do not seek some unjustified allocation of spectrum. I am advocating that we should be properly careful to make sure that a longer term objective—a five or 10-year objective—is not sacrificed in the cause of a more immediate gain. I have not had the answer that I am looking for on that. I suspect that I shall need to return to this at a later stage of the Bill. For now, however, I will withdraw the amendment.
Things were going rather fast but I see that we have comfortably gone back to the old pace of 20-minute groupings on this Bill. I shall absent myself from the next section, not least because my noble friend’s amendment comes rather too close to my own school days for me to want to sit around and listen to it. I beg leave to withdraw the amendment.
Amendment 243 withdrawn.
Clause 40 : Classification of video games etc
246: Clause 40, page 43, line 9, at end insert—
“( ) In subsection (2)—
(a) in paragraph (b), for “mutilation or torture of, or other acts of gross” substitute “graphic”;(b) in paragraph (c), after “organs” insert “anus, breasts or buttocks”;(c) in paragraph (d)—(i) after “offences” insert—“(e) dangerous behaviour;(f) racist, homophobic or other discriminatory language”;(ii) after “paragraph (b)” insert “, (e) or (f)”.”
My Lords, I rise to move Amendment 246. This seeks to plug a loophole that the British Board of Film Classification and others feel remains in the legislation connected to the exemption awarded to certain video material. Indeed, I see that the names that have been added to the amendment are from across the political spectrum.
This exemption, set out in Section 2 of the Video Recordings Act 1984, to which Clause 40 relates, allows works to be exempted from classification if they are designed for educational purposes or are concerned with sport, religion or music, and do not depict, to a significant extent—and I paraphrase—sexual activity or gross violence. This threshold is very high, significantly higher than the threshold in non-exempted work. For example, it allows unsimulated, strong, bloody violence and the after effects of self-harm. It also includes topless lap-dancing, which is an activity the Government viewed as being equivalent to explicitly pornographic videos when dealt with in the Policing and Crime Act 2009.
We accept that there will always be a grey area in matters such as this. However, when many in the industry are voluntarily submitting exempted works for classification because they consider their material unsuitable for under-12s—even though it does not reach the threshold—there clearly is a problem. The Government appear to consider that there is sufficient legislation for using enforcement officers against such material, but we hear a different story from those same officers and agencies. The Government have also commented that the amendment would increase the regulatory burden. I cannot understand that argument. Certainly, more works might be subject to classification, but every individual work has to be assessed against a single threshold as it is, and that is not changing.
The Government also pray in aid the technical standards and regulations directive and the three-month consultation period. After our debates on Clause 17, I find that argument astounding. We would be more than happy to help draft a very precise power for the Secretary of State to take steps to ensure that the threshold for exempted video works is brought into step with that for non-exempted works.
Finally, let me briefly address the more specific arguments against my amendment. I appreciate that the wording is not sufficiently precise; the nudity must be more closely linked with sexual behaviour. The discriminatory behaviour needs to be more precisely defined, and so on.
However, the intention of my amendment is clear. We feel that the differences between exempted and non-exempted classes of video work are no longer sufficiently significant, and that steps must be taken to ensure that any loophole that allows unsuitable material to be completely unclassified is closed. I beg to move.
My Lords, as the noble Lord, Lord De Mauley, has said, I have added my name to this amendment. I am equally pleased that it has secured support from all round the Chamber. Your Lordships may recall that it is an issue which I first raised at Second Reading following a rather gruesome viewing of some of the material that is available, on the high street, totally exempt from classification.
As has already been stated, the amendment seeks to update the current Video Recordings Act which currently allows too wide an exemption for music, sports and documentary videos. The exemption may have been appropriate in 1984 but appears out of date and naïve now. Most of us would expect boundaries to have been pushed to their absolute limits, and that is what has happened. The standards in the current Act relating to gross violence and actual sexual activity are way too high for successful prosecutions to take place, as the noble Lord said. I think the Minister in the other place suggested that prosecutions can already take place under the VRA. Indeed they can, but they rarely do so simply because the standard is set too high.
The music and sports videos that a number of us have seen do not contain anything as strong as gross violence or actual sexual activity, but do contain graphic violence such as close-up hits to the head, with commentary glorifying the action and plenty of blood. Like the noble Lord, Lord De Mauley, I have seen music videos which contain no actual sex but feature topless dancing. This is not something to which children should have access and, most importantly, it is not something that parents would expect children to have access to. I suggest this is why both the BBFC and LACORS support this amendment. Trading standards officers want to be able to take action to prevent such works being sold to children.
One of the things that worries me most about these exemptions is that the public are not really aware of them. Generally, consumers know the BBFC regime and expect it to protect them and their children. There is an assumption that such works will be classified and responsible members of the industry, generally members of the BVA, classify these works voluntarily. However, there is still a small but significant section who do not, and claim the exemption. This creates a parallel, unclassified market, which confuses consumers—the word “citizens” is very appropriate in this regard—still further. For example, would you not assume that a music video marked as exempt was less harmful than one that had voluntarily sought classification and been rated 15?
I know from the meeting that I had with the Minister last week, for which I am very grateful, that there is recognition that some of these works should be regulated. Therefore, I hope that the Minister will consider either accepting this amendment or, at the very least, as the noble Lord, Lord De Mauley, suggested, proposing an alternative wording, as the Bill represents an ideal opportunity to plug an obvious loophole.
My Lords, I have no objection at all to the purpose of this amendment but I quibble with some of the wording. As anyone with the slightest knowledge of Greek will be aware—Heaven knows, my Greek is sketchy in the extreme—“homophobia” does not mean a dislike of homosexuals. If it means anything at all, it means an aversion to one’s own kind. The press love the words “homophobia” and “homophobic” because they are short and snappy and save them a lot of space when composing headlines. However, a bogus word like that should not appear in an Act of Parliament.
My Lords, as the noble Lord, Lord De Mauley, and the noble Baroness, Lady Howe, have already noted, this amendment has drawn support from all Benches and I add my broad welcome for it from this Bench.
As I think we all agree, it is important to bring the most unacceptable content within the scope of statutory regulation and there is a need to update the law in this area. However, I take on board the valid point made by the noble Lord, Lord Monson, about the need to use language carefully and to remember what it means in its original context. Ironically, the readiness of responsible film makers and distributors to submit any borderline content to the regulator on a voluntary basis, as some are already doing—as the noble Baroness, Lady Howe, indicated—makes it more confusing for parents and other consumers, who simply may not realise that other similar content has not been past by any sort of regulator or classification system. This move will inevitably increase the number of videos that have to go through the video works authority for classification. However, if that increases trust in the system, and therefore its effectiveness in protecting young people from exposure to inappropriate material, I for one think that is a price well worth paying.
That said, I have concerns that the proposed new paragraph (f) pertaining to discriminatory language could lead to some presumably unintended consequences for so-called comedy performances where there are references to religion, sexual orientation or gender issues. It might also mean that some video recordings of sermons or other evangelistic material would cease to be exempted works because, for example, theological views that were critical of other religions were expressed. Clearly, this would have to be assessed on a case-by-case basis and a judgment would have to be made on the age appropriateness of different types of content. However, on a point of principle, it would be a shame if free speech were curtailed when we already have a host of laws, which, of course, the church welcomes, on preventing the stirring up of hatred against certain groups. The guidance note prepared by the British Video Association in association with the BBFC as a draft framework for what sort of material would and would not become non-exempt if this amendment were accepted, does not immediately address that issue. Nevertheless, I am persuaded that the board would take a sensible view on this because its track record suggests that that would be the case.
My Lords, I add the support of these Benches for the principle behind the amendment. I apologise for being the stand-in for my three colleagues at the moment. However, as my noble friend Lord Clement-Jones pointed out, last-minute changes of date occasionally lead to last-minute changes of personnel.
If you start to pull these things apart and suggest that there might be something wrong, you never achieve anything because you always have to rely on somebody somewhere having common sense. As regards going back to the original Greek, I suggest that that way madness lies. We have to rely on good judgment at some point. We need to have a system whereby people have a rough idea what it is and we need to let people know what is going on. I suggest that the measure is a sensible way forward. If the wording is not perfect we can debate it as we are in Committee, but we should have a good long look at the principle behind this.
My Lords, I am grateful to all noble Lords who have spoken in this brief debate on this important issue. I am grateful for the manner in which the noble Lord, Lord De Mauley, presented his case. He indicated that he was not entirely sure about the drafting of the amendment. I shall trade on that a little as it reflects the difficulties we all face with regard to these issues. We recognise that this is a very significant line to draw, particularly given the need to protect children from potentially harmful material. The noble Baroness, Lady Howe, indicated her interest in this issue, which is long established in any case, when she spoke on Second Reading. We know of the position of the noble Lord, Lord Monson, with regard to these issues. I am grateful for his intervention in the debate. However, as the right reverend Prelate indicated, we have to be careful where we tread because we certainly do not want to inhibit free speech and the proper discourse in a free society of issues pertaining to fundamentally held belief systems and views.
I find myself in a position where I fully understand the views that have been expressed and I have considerable sympathy with some of the principles which have been expressed. However, I emphasise that certain types of video content are exempt from classification. They include those that, when taken as a whole, are concerned with sport, music or religion and include works that are designed to inform, educate or instruct. On the whole, we all expect such works to enjoy freedom of expression, because their intent is clearly benign and for the good of society.
When the Video Recordings Act was drawn up, it was felt that, although the vast majority of this content should be exempt, if any otherwise exempted video work contained certain elements, such as sexual activity, they should fall back within the scope of the Act, because we recognised the capacity for the giving of offence, and in particular we were concerned about children. The current criteria listed in Section 2 of the Video Recordings Act have been working well for the past 25 years. The right reverend Prelate testified to certain successes in those terms. The vast majority of exempted video works are innocuous, and we believe that the existing text is sufficient to maintain the balance of proportionate regulation—which is what we are seeking—in an admittedly difficult and sensitive area.
The existing criteria mean that video recordings are not exempted if they contain material such as gross violence or depictions of sexual activity et cetera. The Government remain unconvinced that the issue extends beyond a handful of titles. I know that there are concerns about one or two titles. We do not think that this is reflective of gross abuse, but one or two titles cause concern. Even with those, we are not convinced that the existing criteria set down in the Act are not sufficient to cover most of them in any event. Just because some video publishers claim exemption does not mean that they have a right to it.
The Government believe that the intention behind the amendment, which was so articulately expressed this evening, is absolutely right; particularly the desire to protect children from inappropriate content. Although we do not believe that the amendment is the right way to achieve this—the noble Lord, Lord De Mauley, indicated that he had some anxieties about the drafting of his amendment—we do agree that we need to consider the issue further. I hope the noble Lord will accept that the Government are not cut and dried in defence of what we have presented in the Bill. We think it has real substance to it, and we are talking about a very limited number of instances. Anxiety has been expressed, and there is wide support across the House for the general theme of the amendment in this difficult area. We intend to consider the matter further and bring forward a position on Report. Therefore, I hope that the noble Lord, Lord De Mauley, will feel that his amendment has advanced the cause a considerable way. The Government will consider the matter further.
My Lords, I thank the noble Baroness, Lady Howe, not only for speaking, but for adding her name to the amendment. I thank the noble Lord, Lord Addington, for speaking on behalf of the noble Lord, Lord Clement-Jones, who had done the same. I am grateful to the noble Lord, Lord Monson, for his helpful contribution. I completely accept his correction. Indeed, when I moved the amendment, I acknowledged that it needed improvement. Likewise, I accept and welcome the contribution made by the right reverend Prelate the Bishop of Manchester. He is absolutely right, especially on the free speech point.
I thank the Minister for his response. He has not entirely convinced me, and I think that he has not entirely convinced himself, that we should let the matter rest. I am grateful for his last few words, which confirmed that. There is still work to be done. For today, I beg leave to withdraw the amendment.
Amendment 246 withdrawn.
247: Clause 40, page 43, leave out lines 41 to 44
Amendment 247 is designed to probe the use of the power which Clause 40 would give to the Secretary of State. As I understand it, it is intended to allow for the implementation of the updated Pan-European Games Information, which is the European standard for video games. I hope that the Minister will be able to confirm that when he responds. Could he tell the Committee whether the clause permits the Secretary of State to carry out other activities, or is it exclusively to implement PEGI? Would the Minister not agree that matters would be improved by putting in some safeguards around the use of the power? A requirement for consultation would seem to be appropriate. Defining a specific purpose, such as allowing an order to ensure consistency with an international standard, would also be useful. I beg to move.
My Lords, I am grateful to the noble Lord for his amendment. Proposed new Section 2A sets out the conditions that determine whether a video game is exempted from classification. The purpose is to define the criteria that mean that the video game is suitable only for persons aged 12 years and above. That is in line with the recommendations by Professor Tanya Byron for a statutory system which covers only games suitable for those over 12.
The content of video material is subject to change in a growing and developing technical world. Types of content many indeed change over time. The list of criteria currently set out in proposed new Section 2A will ensure that content suitable only for children over the age of 12 is covered by statutory regulation.
We cannot predict what alterations to the current criteria might be necessary in the future. If the type of content that is considered to be suitable only for children over the age of 12 changes, it is important that the Secretary of State and Parliament have the opportunity to reflect such matters of detail in the Act and make appropriate adjustments. It would be unworkable and overly restrictive not to allow changes to be made to these relatively low-level criteria set out in proposed new Section 2A to take account of any possible future developments and changes. I emphasise that the Secretary of State is not being given a power to make changes without accountability. The power to amend the criteria is subject to the affirmative resolution procedure and therefore subject to parliamentary scrutiny and debate. We are not seeking to extend the Secretary of State’s powers arbitrarily. We are seeking that essential flexibility—future-proofing, if one likes—against a background where we all recognise that the Bill has to tackle, and be valid to deal with, changes which may occur.
We looked closely at the scheme that best met the criteria set out by Professor Byron in her report. As she recommended, we began by consulting on various options. Following the consultation, which weighed four suggested options against the nine criteria put forward by her, and having carefully considered all the responses and all the issues, we concluded—as I think the noble Lord, Lord De Mauley, was arguing—that the PEGI system best met all the requirements. The enhanced PEGI option was selected because it best meets all the criteria that the professor set out in her report, it will offer excellent protection to children—which is the position that all noble Lords adopt with regard to these issues—and it will last into the future as far as we are able to identify. It also has the least negative impact on industry.
I hope it will be appreciated that the Government have taken into account all aspects of this challenging area. In reserving potential changes to these criteria for an affirmative resolution procedure rather than having to go back to re-establish primary legislation, the Government are not seeking to present the Secretary of State with grossly enhanced powers but merely making provision for the fact of potential change without recourse to primary legislation. I hope the noble Lord will feel that that is a satisfactory answer and that he can withdraw his amendment.
Amendment 247 withdrawn.
Clause 40 agreed.
Clause 41 : Designated authority for video games etc
248: Clause 41, page 44, line 42, at end insert—
“( ) Where there are two designated authorities, the video games authority must allocate to the video works authority—
(a) if the primary purpose is not gaming; or(b) if the video game is likely to be rated R18.”
Amendments 248 and 249 explore the point at which the video games authority passes over responsibility for the classification of game material to the video works authority. According to the Explanatory Notes, the purpose of the proposed new subsections is to ensure that the classification of video games which are similar to video works that would rate a restricted classification or would lead to that sort of video work remains in the hands of the British Board of Film Classification, which has experience of handling such material. This is a sensible policy. It is a shame that, as drafted, the Bill does not set it out as such. Why have the Government not specified, as Amendment 248 does, the purpose of the subsection? What other purpose have the Government in mind for it?
Amendment 249 looks at where the responsibility lies for passing over material to the BBFC for classification. I understand that since responsibility for games generally lies with the video games authority, it needs to take an active part. How does the Minister envisage that a body with no experience in distinguishing between an 18 and R18 classification will identify the works that need to be sent to the BBFC? Are the Government proposing a whole new department within the video games authority which duplicates the work of the BBFC? I beg to move.
Again, I have added my name to the amendments of the noble Lord, Lord De Mauley. I am equally glad that they have secured Cross-Bench support. The Bill allows the video games authority to allocate certain classes of work to the video works authority. Interestingly, it is left to the Explanatory Notes to give Blu-ray discs and R18 games as examples. I understand that there is already agreement that these will be allocated to the BBFC. Since that is already agreed for good reason, it would make sense to include it in the Bill.
On the first class of work, films are increasingly being marketed with ancillary games attached to the same disc. The basic product is a film with some minor gaming additions. The BBFC has extensive experience of rating films and games together. I understand that the home entertainments industry wishes this situation to continue. The Bill should specifically enable this allocation to the BBFC.
R18 material consists of problematic and extreme material which can be sold only in a sex shop, and rightly so. The BBFC has years of experience in classifying such material. It is so trusted that, under the Criminal Justice and Immigration Act 2008, if a video work has a BBFC classification it is accepted that there cannot be a charge of possession of an extreme pornographic image. This exemption was included because the BBFC is recognised as the expert in judging what is often quite a fine line between acceptable and unacceptable content. Noble Lords will understand that this form of expertise has taken a number of years to develop and should be more sensibly recognised in the Bill. We should also be aware that if this does not happen it would be possible for pornography distributors to use a game format in an attempt to secure classification with fewer cuts.
Amendment 249 is also important as otherwise the clause establishes a potentially damaging inequality between the two regulators. In short, the existing regulator—the BBFC—is made completely subordinate to the new video games regulator in matters of determining which body should regulate a particular product. This is undesirable as a matter of principle and also as a matter of practice. If, because of its expertise, the BBFC is given responsibility for classifying R18 games, it makes no sense for the Video Standards Councils—with no experience of such content—to have the power to determine whether the game falls to the BBFC. Such decisions on individual works within a class of work that have been allocated should be left for the regulators to reach agreement.
I received a briefing from the VFC last week which implied that if this allocation were enforced, and if the BBFC were to judge a game to be 18 rather than R18, it would still rate the work, thus creating a dual system. I have checked this with the BBFC, which confirmed that it would do no such thing. It would refer the work back to the VSC with a recommendation that the game was not R18. The VSC would then be able to rate the game as it saw fit. This is already agreed between the VSC and the BBFC. This amendment in no way proposes otherwise. As the Bill stands, the VSC could judge a work as 18 and not refer it to the BBFC, and the BBFC could not overrule that decision, even if it were convinced that the work in question was an R18. Given the implications in law of such a mistake, this amendment should be accepted in full by the Government.
I am grateful to noble Lords for their contributions to this debate. The Government maintain that Clause 41 provides clarity about the division of responsibility between the video works authority and the video games authority. This is absolutely fundamental in creating a seamless system that delivers the policy intention, subscribed to by all the parts of the Committee, to adopt the Pan-European Games Information system of classification for video games.
The clause balances this clarity with the necessary degree of flexibility to deal with certain types of video games and the manner in which some games are now supplied with films. This flexibility is important to ensure that we have a clear, sensible and effective system that actually works on the ground. The overriding principle is that the video games authority is responsible for determining the classifications of video games. However, following detailed discussions with the BBFC and the VSC, and in order to allow a degree of flexibility in the system that will make practical sense to everyone, the Bill allows the video games authority to allocate to the video works authority a particular class of video game, such as R18—which the noble Baroness described accurately in her speech—or a game that is to be supplied in a particular way, such as the Blu-ray discs. This means that the Bill already allows what the noble Lord is seeking to achieve with Amendment 248. We do not need to say anything more in the legislation. Clause 41 achieves what is required in a neat, clear and helpful manner, without unnecessary complication or definition. I am at one with the noble Lord in his efforts with the amendment to achieve those aims: I am merely indicating that they have been achieved already.
I emphasise that the Secretary of State can issue guidance. Both the BBFC and the video games authority must pay attention to that guidance. I assure noble Lords, because I am responsive to the concerns expressed in several parts of the Committee, that the Government will include specific guidance that R18 video games should be allocated across to the BBFC, underpinning the agreement that we already have in place and in practice. I give the assurance that the Government will include that in guidance. Therefore I hope that noble Lords will feel that they have pressed the Government on these issues, that we are fully cognisant and aware of the anxieties, and that the Bill as it stands, and the way in which it is intended that it should be implemented, meets their anxieties and concerns, so that they will not press their amendments.
My Lords, I thank those from all parts of the Committee who put their names to the amendment, and those who spoke. I am grateful for what the Minister said, in particular about the proposed guidance. We will all think about the matter before Report. I beg leave to withdraw the amendment.
Amendment 248 withdrawn.
Amendment 249 not moved.