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Lords Chamber

Volume 729: debated on Thursday 14 July 2011

House of Lords

Thursday, 14 July 2011.

Prayers—read by the Lord Bishop of Chester.

Young People: Creative Industries

Question

Asked By

To ask Her Majesty’s Government what steps they are taking to encourage young people to pursue careers in the creative industries.

My Lords, the Government support young people wishing to enter the creative industries at all levels through apprenticeships, careers advice, degree courses and business start-up schemes. We are expanding apprenticeships, including those in the creative industries, and the National Skills Academy for Creative and Cultural Skills has been successful in increasing career opportunities for young people.

My Lords, I thank the Minister for that reply. Does she acknowledge the significant contribution that the creative industries make to our economy, with over 1.3 million jobs in the sector? Does she agree with the recent CBI report that, despite the progress that has already been made, there is a need for many more flexible apprenticeships in this sector? What are the Government doing to address the fact that informal social networks and unpaid internships are helping children from affluent backgrounds to gain jobs in the sector at the expense of those less well connected?

I thank the noble Baroness for her question. I share her view of the importance of the creative and cultural industries. As she has pointed out, the exports alone are worth £17 billion a year and many jobs are created. When I sat down and started working out exactly what the answers were on this Question, I was amazed at just how much is going on. The Government are committed to expanding apprenticeships in this sector, which often relies on self-employed and contract work. We are providing flexibility in the delivery of apprenticeships to allow for those legitimate variations in working practice. We have to bear in mind what we are taking on, from the poet in the attic to the blockbuster moviemakers. It is a very varied group of people.

On the noble Baroness’s third question, we should ensure that all young people can get work experience or jobs based on merit to ensure the best possible talent base for the country. We have already asked employers to improve access to internships, and the Creative Industries Council will look at improving fair access and providing clearer entry and progression routes to the sector.

My Lords, if the noble Baroness, Lady Jones, had used the term “arts” instead of “creative industries” in the Question to address what would really have been the same concern, will the Minister confirm that it would likely have been answered by the noble Baroness, Lady Rawlings, on behalf of quite another department? Can the Minister elaborate on what is likely to be the future balance of involvement and the nature of the dialogue between the culture, education and business departments regarding encouraging the arts and young people into the arts?

I think that the noble Earl answers his question to me very well himself. We should all be working together and we will endeavour to do so.

My Lords, I declare an interest as chairman of the William Morris Craft Fellowship. What are the Government doing to encourage young people to enter the traditional crafts?

My noble friend talks of crafts. There are so many words to describe the subject of this Question, but the word “crafts” springs to mind. My father was himself a craftsman. What are we doing? We are making over 200 new apprenticeship schemes available and we are speaking with schools to ensure that our careers advice encourages all these craft skills for children who have those wonderful talents but maybe feel at this stage that this will not get them a job. We have to ensure that as we in this country go forward, all our children’s talents get used.

My Lords, the creative industries need creative people and creativity needs to be nurtured. The new EBacc contains no creative element at all, and it appears to be stopping young people from pursuing subjects such as art, design and computer science. Our thriving creative industries are already seeing a skills shortage. Will the Minister explain why the Government continue to refuse to revise their position on the EBacc? If they do not, the skills shortage will only get worse.

I am happy to answer this question. We are slimming down the curriculum in ways that enable us to spread the accessible required needs for just the things that my noble friend is talking about.

Would young people not be better assisted in pursuing careers in the creative industries if the Government were to abandon their policy of disadvantaging teaching and research in the humanities in their funding of universities?

Does the Minister realise that the creative industries were one of the most rapidly growing sectors throughout the north-east of England and that all five of the universities there have had a very fine record and are producing some first-class graduates? Is it not a tragedy that the whole of this sector is severely cutting back in employment because of the Government’s economic strategy?

My Lords, will the noble Baroness provide us with some examples of what, in her view, are non-creative industries?

Well, the right reverend Prelate himself represents a particular industry, which I support, although there are some who would say maybe not.

While associating myself entirely with the important question asked a moment ago by the right reverend Prelate the Bishop of Chester, perhaps I may say that I have had a large number of children, some of whom are in what I believe is known as the creative industries, and it never occurred to me to ask the Government for advice on what career they should pursue. Since when has it been the Government’s job to do that?

I think that it is now being recognised that the skills and talents that will take this country forward are very broad. We are already extremely successful in the creative industries and, as the noble Baroness who asked the Question emphasised, we really should be encouraging them. This Government are determined to do so.

My Lords, will the Government make maximum use of the Cultural Olympiad and the festival of culture next year as a lever to gain the maximum benefit for our youngsters in the future? Quite a lot of money—about £97 million, as I understand it, much of it private, as is correct—is already there. Will she assure the House that we are getting the maximum leverage from that for our youngsters?

Schools: Homophobic Bullying

Question

Asked By

To ask Her Majesty’s Government what steps they are taking to reduce the incidence of homophobic bullying in schools.

My Lords, the Government aim to help teachers to promote good behaviour through new legislation that is being introduced in the Education Bill. We have updated our advice to schools to make it clear that prejudice-based bullying such as homophobic bullying should not be tolerated. This advice signposts schools to specialist organisations, such as Stonewall, that can support them. Accountability in how schools tackle bullying will also be sharpened through the new Ofsted inspections framework.

I welcome the Minister’s response. However, we need more than just words; we need tools to do the job. Will the Minister therefore give an undertaking that Ofsted will investigate how schools respond to homophobic bullying when visiting them in future?

Without wishing to be too prescriptive about everything that Ofsted will look for, as the noble Lord will know the whole purpose of our slimming down the inspection framework for Ofsted to concentrate on four core areas—including behaviour and safety—is precisely so that they have more time to look for the kind of issues that the noble Lord is concerned about. The framework that we are putting in place will sharpen the focus on behaviour and the way in which Ofsted looks for bullying of all kinds.

My Lords, does my noble friend agree that any bullying for any reason is absolutely obnoxious and should be assailed and stopped wherever it happens?

I agree with my noble friend. If one is on the receiving end of bullying, no matter what the motivation is it feels pretty horrid.

Will the Minister reassure the House that the issue of bullying, including homophobic bullying, is part of teacher training? Ofsted inspections are fine but are only once every few years, whereas teachers are there every day. Their training therefore ought to emphasise the importance of identifying this behaviour very early on, and the skills to deal with it.

I agree with the noble Lord. He may know that some proposed new standards for qualifications have been published today by a group that has been advising the department. Those standards will then work through to what the initial teacher training providers provide. However, the noble Lord is obviously right; we want to make sure that teachers responsible for classrooms are properly and broadly trained in maintaining a good environment in which to learn, which will include an important focus on maintaining order and discipline and trying to minimise bullying.

My Lords, I am most grateful to the Leader of the House. The Minister invested in his Answer considerable confidence in Ofsted inspections, but he will know that in Clause 39 of the Education Bill, which is currently going through your Lordships’ House, the Secretary of State is taking powers to categorise classes of school that will no longer have to receive regular Ofsted inspections. What is the logic of removing schools from those regular inspections, given the problem of bullying that has been reflected here today? It is also known that a considerable proportion of category 1 schools are reduced in category on subsequent inspections.

The objective of the Bill, as in a number of areas, is to try to have a proportionate approach to inspection that is backed up by safeguards. I recognise that schools in an outstanding category can fall out of it, which is why Ofsted will have powers to carry on not only thematic assessments but risk assessments. Any member of the public or local authorities who have concerns of the sort that the noble Lord raises will be able to go to Ofsted and ask for an inspection.

My Lords, a few years ago when I was a councillor, I chaired a scrutiny review into the wider issue of bullying. We found that where there is evidence of homophobic bullying, there is often a wider issue in the social environment of the school of bullying in general against children with disabilities and other issues. Does the Minister agree that schools should use organisations such as Beatbullying to combat cyberbullying on Facebook and that sort of thing, which is now very widespread and insidious? Does he also agree that we need greater consistency in standards in schools, including in state-funded faith schools where this is often a difficult subject, and of course academies?

I agree very much that specialist organisations of the sort to which my noble friend refers can play an important part. I also agree about the dangers to children—and, indeed, to staff—of cyberbullying, which is a growing problem. That is one of the reasons why the Government are proposing measures in the Education Bill to tackle that problem. On faith schools, my note of slight caution to my noble friend is that one has to be very careful in making generalisations about whole categories of school. Nearly one-third of the schools in our country are faith schools. Many of them have outstanding records on behaviour, discipline and their work in promoting community cohesion. However, I agree with my noble friend’s underlying point that one needs as much outside help as one can to tackle these problems thoroughly and consistently.

My Lords, does the Minister agree that bullying in schools, as with bullying by newspaper tycoons, needs to be challenged and punished?

My Lords, can my noble friend tell me when this problem arose? It did not happen when I was at school, or I suspect when many of us in this House were at school. What has precipitated it?

The truth is linked to the earlier point raised by my noble friend Lady Knight. Bullying comes in many forms. Types, categories, natures and methods of bullying change over time. When my noble friend Lord Tebbit was at school, homophobic bullying may well not have been an issue. However, it is more of an issue today.

Health: Diabetes

Question

Asked By

To support the NHS in improving outcomes, NICE has published a quality standard for diabetes, providing an authoritative definition of good-quality care and building on the existing national service framework. This year, the NHS operating framework specifically highlights the need to do more to improve in-patient care for people with diabetes, the availability of structured education and retinopathy screening for everyone with diabetes, and access to therapies, including insulin pumps.

My Lords, I am grateful to the noble Earl for that Answer. Is he aware that 1.4 million people with diabetes are now at risk of preventable blindness, over a million of kidney disease, and up to 8,600 a year of having a foot amputated due to delayed diagnosis and treatment; and that doctors of distinction in this specialty insist that, with adequate resources, they could do much more to maximise prevention and treatment? Knowing as I do the depth of the Minister’s own concern for this policy area, when does he expect to be able to announce specific new measures to help the rapidly increasing number of children afflicted?

My Lords, Ministers often express thanks to those noble Lords who table Questions but I owe a particular debt to the noble Lord, Lord Morris, for highlighting one of the greatest public health challenges of our time. He is absolutely right in all that he has said. I alight particularly on his point about prevention. We are committed to preventing type 2 diabetes. All our work on promoting an active lifestyle and tackling obesity will support that aim. The NHS Health Check programme has the potential to prevent many cases of type 2 diabetes and, as the noble Lord said, to identify thousands more cases earlier in their development. The Change4Life programme—the campaign that started under the previous Government, which we are continuing —raises awareness of maintaining a healthy weight and being physically active. A great deal of work is going on in this area, which is one of the major focuses of our public health programme.

My Lords, the Minister has indicated that there is a clear positive correlation between the rising incidence of type 2 diabetes on the one hand and the rising incidence of obesity on the other. What action are the Government taking to advise the population at large of the dangers of overeating?

I have already mentioned the Change4Life programme, which is designed to raise awareness across a number of public health areas, including obesity and overeating. I think also of the Healthy Schools programme, which instils the need to eat healthily and take exercise in youngsters at an early age. As the noble Lord will know, there is no magic bullet for the problem of obesity. It is something that must be addressed in a variety of ways through public health programmes and general practice.

My Lords, does the Minister agree that foot ulceration precedes 85 per cent of amputations? A study in Southampton showed that, by keeping people in hospital and treating them well through preventing foot ulcers, over 36 months not only did patient outcomes improve but the National Health Service saved £1.2 million in in-patient time.

My Lords, I am grateful to my noble friend. I have an astonishing figure in my brief. On average, 73 amputations of lower limbs occur every week in England because of complications to do with diabetes. It is estimated that, with the right care, 80 per cent of amputations carried out on patients suffering from diabetes would be preventable. That is the scale of the challenge. We are clear that this is a major issue for diabetes. NICE has published guidelines on in-patient management of people with diabetic foot ulcers and infection. That is vital because amputations are often preceded by ulceration. That is also why the national clinical director for diabetes considers diabetic foot care and prevention to be a major priority.

My Lords, will the Minister give an assurance that the retinopathy screening that was introduced by the previous Labour Government, and which has been so successful, will continue apace to match his own ambition of ensuring prevention by identifying diabetic disease of the eye at an early stage?

The noble Lord, Lord Harrison, is quite right. England, along with the devolved Administrations, leads the world in this area. It is the first time that a population-based screening programme has been introduced on such a large scale. We are committed to continuing it. More people with diabetes are now being offered retinopathy screening than ever before and to higher standards, despite the increasing number of people with diabetes. The latest data that I have show that 98 per cent of people with diabetes have been offered screening for diabetic retinopathy during the past 12 months.

My Lords, is the Minister aware that people with diabetes are twice as likely to be admitted to hospital as people without diabetes? Will he undertake to look at best-practice models, such as that of the University Hospitals of Leicester, where diabetes specialist nurses have been stationed in the accident and emergency department and are able, in many cases, to advise against admission to hospital and provide more appropriate treatment and support? This is believed to have saved the University Hospitals of Leicester around £100,000. Diabetes UK estimates that, if rolled out nationally, such good practice might save the NHS up to £100 million a year.

My Lords, I am aware of that excellent beacon of good practice in Leicester, which is an example that we welcome. It is an approach that is already being taken in other parts of the country. The NICE quality standard for diabetes states that people who have the condition, and who have experienced hypoglycaemia that requires medical attention, should be referred to a specialist diabetes team for advice and support to reduce admissions in exactly the way that my noble friend described.

Railways: Thameslink Rolling Stock Contract

Question

Asked By

To ask Her Majesty’s Government whether they will review their decision to award the Thameslink rolling stock contract to Siemens.

My Lords, the competition for the Thameslink trains was designed and launched in 2008 in accordance with EU treaty obligations and UK public procurement regulations. I am satisfied that the proper process as originally advised to the bidders has been complied with. Both bids have been treated equitably and fairly in the process. The Siemens bid demonstrated that it offered better value for money against the published criteria and consequently the Government will not be reviewing the decision.

I thank the noble Earl for his response. When the Prime Minister and his colleagues came to Derby recently we heard lots about supporting engineering and manufacturing and creating jobs, but there is a wide gap between the words and the deeds. Why were the credit ratings of the two companies such a determining factor? This decision means that the last train maker in the UK—a maker of quality products and inward investor to this country—and the 1,500 people who will lose their jobs, whose families live in and around Derby, never stood a chance. That is a disgrace.

My Lords, it is not for me to comment on the ability of bidders to raise the finance. However, the model selected by the previous Administration is a good one and we support it. It is important to remember that the Siemens bid will also create employment in the UK, although I have to accept that it will not be as much.

My Lords, on Tuesday, the Conservative MP for Mid Derbyshire said:

“Over the months … we have been waiting for the decision, I personally lobbied the Secretary of State for Transport … Unfortunately, he told me every … time that I was not to worry because Bombardier was fine … as the company had lots of orders and would have no problem going forward. That is clearly not the case, so he misread the situation. I hope that he feels somewhat apologetic about the decision”.—[Official Report, Commons, 12/7/11; col. 10WH.]

That statement by the Conservative MP gives the game away. If the Secretary of State will not review the decision, what will he now do in negotiations with Siemens as the preferred bidder to maximise the number of additional jobs that it creates in this country to compensate for the thousands of jobs that will be lost in Derby and elsewhere in the rail supply chain as a result of the complacency and misjudgment which have now been revealed by one of his own MPs to have been behind the Secretary of State’s decision?

My Lords, any job losses are highly regrettable. However, Bombardier has previously advised the department that it expected to make redundancies at this time regardless of the outcome of the Thameslink procurement order as Bombardier’s Derby factory is currently operating at peak capacity and several of these orders come to an end later this year. Noble Lords will know that there are several other rolling stock procurement contracts in the offing.

My Lords, as I am sure the Minister will agree, it is crucial that we keep in this country the engineering skills to design and build trains. Are there any planned negotiations with Siemens and Hitachi to bring those kinds of jobs to the UK? In the case of Bombardier, has he considered extending some of its existing contracts, for example to provide electrical units to the train sets it has already built, and that are much needed on the Great Western, Northern and Southern lines and would help preserve that skill base in this country?

My Lords, on the last point, I am not sighted on that, but I will write to the noble Baroness if I have anything to add. There is an issue about the capacity for Bombardier to design rolling stock in the UK, but it is a matter for that company whether or not it maintains a capacity.

My Lords, are the Government aware that under the EU treaties there is no enforceable sanction against a country that refuses to pay a Brussels fine? So, why do we not behave like the French and award the Thameslink contract to Bombardier? Do the Government further agree that there would not even be the slightest risk, alas, that we would be ejected from the EU if we failed to pay any eventual fine? So, why do we not just go ahead and do it?

My Lords, the United Kingdom has never been fined in respect of an EU infraction and Her Majesty’s Government have no intention of allowing that to happen. I hope that the noble Lord fully accepts the benefits of competition. It would be most peculiar to keep accepting bids that were not competitive.

Does the Minister agree with me that this is just a symptom of a long-term problem whereby we have failed to co-ordinate our R&D expenditures, our government procurement and our encouragement of industry to put itself in a competitive position? We really must co-ordinate these things across the board so that our bid is clearly the strongest. I declare my interest as chairman of the Transport Knowledge Transfer Network of the Technology Strategy Board, which is trying to do these things but with precious little resource.

My Lords, the noble Lord makes an extremely good point. Another point concerns the need to schedule work such as rolling stock and other projects in order to avoid a situation of feast and famine. The McNulty report addresses that issue.

Nationality, Immigration and Asylum Act 2002 (Juxtaposed Controls) (Amendment) Order 2011

Immigration (Provision of Physical Data) (Amendment) Regulations 2011

Legislative Reform (Epping Forest) Order 2011

National Minimum Wage (Amendment) Regulations 2011

National Minimum Wage (Amendment) (No. 2) Regulations 2011

Motions to Approve

Moved By

That the draft orders and regulations laid before the House on 21 March, 23 May, 13 and 20 June be approved.

Relevant documents: 14th Report from the Regulatory Reform Committee, 23rd, 24th and 25th Reports from the Joint Committee on Statutory Instruments, considered in Grand Committee on 12 July.

Motions agreed.

Equality Act 2010 (Work on Ships and Hovercraft) Regulations 2011

Motion to Approve

Moved By

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

Relevant document: 23rd Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 27 June

Motion agreed.

Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 (Consequential Provisions) Order 2011

Adoption and Children (Scotland) Act 2007 (Consequential Modifications) Order 2011

Motions to Approve

Moved By

That the draft orders laid before the House on 9 and 10 June be approved.

Relevant document: 24th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 12 July

Motions agreed.

Police Reform and Social Responsibility Bill

Report (5th Day)

Amendment 244A

Moved by

244A: After Clause 96, insert the following new Clause—

“Exemption from civil proceedings for trespass brought by offender

(1) Section 329 of the Criminal Justice Act 2003 (civil proceedings for trespass to the person brought by offender) is amended as follows.

(2) In subsection (1)(b) at the end insert “, and”.

(3) After subsection (1)(b) insert—

“(c) at the material time, the defendant was not a constable acting in the course of his duty.””

My Lords, the purpose of my amendment is to amend Section 329 of the Criminal Justice Act 2003 to exclude civil proceedings against the police for trespass against the person occasioned during an arrest. Section 329 was designed to cover a situation where an individual harms another while that other is attempting to commit a crime against the individual. It was enacted in response to the case of Tony Martin, who shot two intruders to his home who he thought were attempting a burglary. Section 329 provides that the court must give permission for an offender to bring a civil suit for an assault committed at the time and in the circumstances that the offender committed the act for which he was convicted. There was a great deal of public disquiet that a person engaged in burglary should be able to sue the householder who had injured him.

Under Section 329 of the Criminal Justice Act 2003, the defendant has a defence to proceedings brought by the injured offender if he believed that the offender was about to commit an offence, was in the course of committing an offence or had committed an offence and that the defendant’s actions were necessary to defend himself or another person, protect or recover property, prevent or stop the offence or catch or secure the conviction of the offender, but only if his action was not grossly disproportionate. In other words, it was designed to protect the householder who reacted instinctively against an intruder into his home and injured that person, so that no suit could lie in the civil courts unless the force used was completely disproportionate. Unfortunately, it appears that only the police have taken advantage of Section 329 when they injure an individual in the course of arresting him.

To cite the judgment in Anthony Adorian v Commissioner of Police of the Metropolis—2009, EWCA Civ 18, paragraph 7—the standard historically set for police action and

“painstakingly established in the course of two centuries and more, and fundamental to the civil rights enjoyed by the people of this country”,

is that,

“an arrest must be objectively justified and that no more force may be used in effecting it than is reasonably necessary”.

When a police officer arrests an individual, he may, in the historic development of the common law, use no more force than is reasonable. That was replaced by Section 329 which requires only that the police do not use “grossly disproportionate” force in arresting and that arrests are not in bad faith, even though they may be entirely unreasonable. In the Adorian case, Anthony Adorian suffered injuries in being arrested which were so severe that the force medical examiner concluded that he was unfit to be detained. His class of injury is associated with head-on car crashes or falls from a significant height, but the claimant, Adorian, had been walking at the moment of arrest and, as the judge said in his decision,

“there is at present no evidence suggesting either that he has brittle bones or that anything happened following his arrest which is capable of explaining the injuries”.

When Section 329 was debated in the course of the passage of the 2003 Act, the noble and learned Baroness, Lady Scotland of Asthal, introducing it, said that it,

“would strengthen the civil law to improve protection for victims of crime against civil claims for damages by offenders”,

and that it,

“benefits third parties who are not the direct victim of the offence, but who may have intervened to protect the victim or deter the criminal”.—[Official Report, 11/11/03; cols. 1307-8.].

There was no mention during the introduction of Section 329 in 2003 of the police. Nothing was said about the police.

Lord Justice Sedley, giving the judgment in the Adorian case to which I referred, said:

“Conscious of art. IX of the Bill of Rights 1689, we say only that there is no indication that Parliament was aware, much less intended, that what it was enacting would have this effect”.

Nobody thought that Section 329 would be used by police who had used unreasonable force in effecting the arrest of an individual. So there is a mismatch between criminal and civil proceedings as far as the police are concerned. It is a defence to a criminal charge of assaulting a police officer to show that you are protecting yourself against unreasonable force on the part of the police. In that situation, the police cannot argue that although the force was unreasonable, it was not grossly excessive. That is on the criminal side. But if the same person who had been arrested unreasonably by the police tried to sue them for civil trespass to the person, the police could and do rely on Section 329 and will succeed unless the claimant shows not that their actions were unreasonable—that an unreasonable amount of force had been used—but that that their actions were grossly disproportionate. In other words, a test to be applied for the householder defending himself against intruders has only been utilised, as far as research can pinpoint it, by the police to defend themselves against civil cases.

Ordinary people may be given some leeway for honest and instinctive overreaction when they are protecting or defending themselves or another from a crime, but a police officer, who is trained in the use of force, must be required to justify his or her actions objectively and to use no more force in effecting an arrest than is reasonably necessary. It should be a different standard. I was involved in a case in Trinidad, where a police officer who had produced a gun and shot two individuals at a riot at a fête argued provocation. The prosecution in that case said, “Well, of course, you are a trained police officer. You should not react to unarmed civilians, even if they are threatening you, by producing a gun and shooting them”.

Amendment 244A would amend Section 329 to remedy a classic example of unintended consequences and to restore the position that a trespass against the person occurring in the course of an arrest by a police officer must be objectively justified, and that no more force must be used than reasonably necessary. Otherwise, as has happened for centuries, the arrested person should be able to bring a claim for damages. The amendment would add a new paragraph (c) to Section 329(1) that would effectively exclude a constable acting in the course of his duty from relying on the test intended for the householder. I beg to move.

My Lords, I can be very brief and start by saying how grateful the House should be to the noble Lord, Lord Thomas of Gresford, for explaining this amendment so clearly. We support the amendment. It seems sensible; and it seems equally sensible for the Government, when a sensible amendment is put before them, to react favourably. It would cost them nothing to accept the amendment and would put right something that has been slightly wrong in this section of the 2003 Act. As the noble Lord said, this is a classic example of unintended consequences. His analysis of the law seems to us to be correct and it would be sensible for the Government to accept the amendment.

I am grateful to the noble Baroness, Lady Browning, for having sent a letter to all interested parties on 24 June, included in which is a part that addresses this particular issue. She argued that no formal consultation had taken place between the police and the Government although there had been some informal consultation. She suggested that the Government would not give way on this amendment but we will wait for the noble Lord, Lord Wallace, to answer for the Government. If the noble Lord, Lord Thomas of Gresford, were minded to push this extremely sensible amendment to a vote, we would support it.

My Lords, this amendment is near identical to one tabled by the noble Lord, Lord Lester, during Committee stage of this Bill, and to which we gave a fairly full response at the time, so I will be brief. We promised the noble Lord in my response at the time that we would give the matter further consideration. Having done so, I am afraid that the advice we have received is that we remain unconvinced that we want to make an amendment that would make it easier for a convicted offender to sue the police for damages until we hear good answers to the questions and issues that I mentioned in Committee and which I will not repeat here.

We have looked at this again and take the view that the previous Government also took when the issue was raised in 2009. The House should be very clear that Section 329 does not give the police carte blanche to use disproportionate force. They are still subject to the criminal law which permits only reasonable force. All that Section 329 does is raise the bar by making it more difficult for criminals to get financial benefit from situations where they were the ones committing an imprisonable offence. It is reasonable and fair to treat a person who holds the office of constable in the same way for these purposes as any other member of the public. We should not rush to the assumption that it is an unintended consequence for the police to enjoy the protection of Section 329. As I have suggested, the police will inevitably be the people most likely to be able to invoke Section 329, given that their job involves confronting people who are in the course of committing imprisonable offences. The text of Section 329 supports this since subsection (5) specifically extends the protection to people who believe their act was necessary to

“apprehend, or secure the conviction, of the claimant after he had committed an offence”.

I therefore remain unconvinced that an amendment to Section 329 of the 2003 Act in the way proposed by the noble Lord is the right way forward. I hope that after the reassurance that we have again considered this issue the noble Lord will feel able to withdraw his amendment.

I note that my noble friend Lord Lester raised this matter in the Policing and Crime Bill 2009, and that at that stage undertakings were given by the noble Lord, Lord Brett, on behalf of the then Government to consult the police on the unintended consequences. That was reiterated on Report, and in February of last year, the noble Lord, Lord Bach, said that consultation had not yet taken place, and it still has not taken place. I do not think that it is appropriate that this matter should be put on the shelf until we have another Bill into which it can be inserted. It is very important that the police should not be able to shelter behind a provision that clearly was not designed for them, as the noble Lord, Lord Bach, has just acknowledged. Consequently, I propose to test the opinion of the House.

Schedule 14 : Police: complaints

Amendment 245

Moved by

245: Schedule 14, page 154, line 40, leave out “this paragraph” and insert “sub-paragraphs (2) to (5)”

My Lords, the government amendments to Schedule 14 correct a number of drafting errors that have come to light during the passage of the Bill. The changes are necessary in order to ensure that the changes to the existing police complaints legislation work properly. I assure noble Lords that in the main they are technical, drafting points that, for example, correct incorrect numbering and add consequential amendments that were missed. I realise that there are other amendments for debate in this group. I beg to move.

My Lords, I will speak to Amendment 256 in this group. Before doing so, I apologise to the House that I may be unable to stay until the end of the debate. I have to attend a special meeting of the Metropolitan Police Authority where the commissioner is coming to answer questions about the events surrounding the various police investigations into the News of the World.

The amendment relates to the handling of complaints against senior police officers in London.

I apologise to my noble friend Lady Doocey and I am most grateful to her for allowing me to intervene. This is the first time that I have heard a Member move their amendment and say that they might not be here at the end of the debate. Clearly, the Minister has to be in a position to respond to my noble friend. Perhaps she will consider her position and either continue and undertake to remain until the end of the debate on the amendment, or perhaps ask one of her very able colleagues to move the amendment on her behalf. I am concerned that we should not deviate from the normal practices of the House. I think that the noble Baroness, Lady Hamwee, may be about to offer her assistance.

I hope that I can reassure the House. In discussions with my noble friend, neither of us realised that we would reach this group quite so soon. My noble friend should be able to be here until well after we have got through this group—unless she is going to take an hour and a half, in which case there will be other problems.

I apologise to the House if I have got it wrong yet again and I thank my noble friend Lady Hamwee. My amendment relates to the handling of complaints against senior police officers in London. The Bill proposes that responsibility for complaints against senior ACPO officers—that is, officers below the rank of deputy commissioner—should be moved from the Metropolitan Police Authority to the Metropolitan Police Commissioner. My concern is not that this would make the commissioner responsible for employing, promoting and disciplining officers—I do not have a major problem with that—but that it would also make him responsible for sackings and, crucially, for hearing appeals against his own rulings. It would remove all the elements of independence and transparency that the Metropolitan Police Authority currently provides and would in effect make the commissioner judge, jury and executioner.

The proposals are deeply flawed because they concentrate too much power in the hands of the commissioner without any proper checks and balances. There is also no effective framework to safeguard impartiality. I am aware of the Government's response to the argument. They argue that it is commonplace for complaints to be decided within an organisation rather than by an external arbiter. However, this fails to appreciate that police officers are in a unique position. They are officers of the Crown who have the power to detain members of the public and to take away their freedom through arrest. Consequently, there is no valid analogy with how other organisations—even the Armed Forces—deal with complaints, conduct, dismissals and appeals. It is in the interest of the police that they should be able to demonstrate an independent element in the assessment of the seriousness and reputational risks of allegations made against their most senior ranks. The Bill envisages allowing appeals to the IPCC, but only at the end of the process. That is no substitute for an independent review of whether standards of conduct may have fallen below those that the outside world would recognise as proper.

Lack of independence also creates another problem. A very likely consequence of the new system is an increase in the number of complaints against the commissioner for failing properly to investigate complaints against ACPO officers under his command. If those making complaints against a senior officer feel that the issue has not been properly or sufficiently well dealt with in the first instance, they will almost certainly lodge a complaint against the chief officer. The whole rigmarole in turn creates an increased possibility of legal challenge.

I believe there is a more fundamental problem. In any closed institution, such as the police, it is common for custom and practice to become entrenched. An independent element is vital to provide a counterbalance and to ensure due process. It is worth considering the virtues of the current system for handling complaints. At present the Metropolitan Police Authority hears complaints through its professional standards cases sub-committee and there is a right of appeal to the Police Appeals Tribunal. This current system is not an accident of history. It evolved to address concerns about the perceived lack of independence and accountability in how complaints and conduct matters had been handled previously. Are we really confident that policing has matured sufficiently to deal with these concerns? The Government seem to be ignoring the lessons of the past and are therefore likely to repeat the errors of the past.

Since the Bill abolishes the Metropolitan Police Authority, the purpose of my amendment is to restore equivalent safeguards to the new arrangements. The amendment would, within London, make the Mayor’s Office for Policing and Crime the relevant appeals body. It is also essential that the Mayor’s Office for Policing and Crime has statutory access to all information and systems where complaints are recorded. Without this, the Mayor’s Office for Policing and Crime will be totally reliant on the commissioner advising it of complaint or conduct matters. It would also be unable to discharge the functions proposed in the Bill to ensure that chief constables have fulfilled their duty in the handling of such complaints. The Government’s proposals do no favours to the PCC. They expose him or her to accusations—unjustified, one would hope—of conflict of interest, bias and favouritism. This amendment would avoid these pitfalls without in any way affecting the proper authority of the PCC and the correct limits to his or her discretion. I therefore commend this amendment as a means of preserving the necessary elements of independence, transparency and impartiality. I beg to move.

I understand the thrust of the noble Baroness’s argument, but it is interesting that in her amendment she seems to be proposing that outside the Metropolitan Police area the chief constable still carries out that function. I wonder why she has not amended the situation outside London. The logic of what she is saying is that if it is the MOPC in relation to the Metropolitan Police area, it would presumably be the police and crime commissioner who would do the same thing in other areas. I should be grateful if she would clarify that point for me.

I can only plead ignorance and apologise. My amendment was meant specifically to deal with London and I do not think I was sufficiently good at checking that the final version of the amendment dealt just with London. I crave your Lordships’ indulgence.

I am very grateful to the noble Baroness for that. She has raised an important matter of principle and it will be interesting to see what response the Minister gives. If it were a sympathetic response, in which we had an opportunity at Third Reading to discuss this again, she might wish to look at the wording of the amendment. That depends on the Minister.

The principle that the noble Baroness has enunciated must be right. I hope she will pursue this. As for the government amendments, we, of course, welcome them.

My Lords, I have a query in relation to Amendment 245. A number of years ago, I was a member of the complaints committee of Northumbria Police Authority. I well remember being advised that every complaint that was written down was provided to the committee to see, whether or not it was regarded as spurious and whether or not action had been taken or was going to be taken. We were given all the original correspondence and a summary of the action that had been or would be taken. That system seemed to work well.

However, I would appreciate the Minister’s clarification on a point in the Bill. Paragraph 8(2) of Schedule 14 to the Bill substitutes paragraph 2(1) of Schedule 3 to the Police Reform Act 2002 with a new sub-paragraph which states:

“Where a complaint is made to the Commission, it shall give notification of the complaint to the appropriate authority”.

So far, so good, but it then states:

“But the Commission need not give that notification if the Commission considers that there are exceptional circumstances that justify its not being given”.

It is not clear to me, but it may be made clear by regulations or other means, what the definition of “exceptional circumstances” is. Years ago, I was in a position where every complaint was written down and was provided to the complaints committee. We need to be reassured that a structure is not being created whereby complaints made are simply not acted upon because there are deemed to be exceptional circumstances that justify there being no further progress on them.

My noble friend’s amendment would mean that the responsibility for dealing with appeals in relation to low-level complaints against the Metropolitan Police would be handled by the Mayor's Office for Policing and Crime rather than the responsibility resting with the Commissioner of the Metropolitan Police. While the Government recognise that giving the Mayor's Office for Policing and Crime responsibility for dealing with appeals against the handling of low-level complaints is one way of providing some independent scrutiny of such matters, we are not persuaded that the duty to consider individual appeals should rest with the Mayor's Office for Policing and Crime.

It is commonplace for complaints to be decided—as the noble Baroness said, because I think she has heard me say this before—within an organisation rather than by an external arbiter. In practice, the chief officer will not be hearing an appeal against his own decision. The duties will be delegated so that, for example, the initial decision is taken by the line manager of the officer complained against and the appeal is conducted by the professional standards directorate. A complainant who feels that an appeal has not been properly considered will have further routes of redress, first to the Mayor's Office for Policing and Crime, which can direct the chief officer to look again at the matter, and secondly to the courts if the decision is irrational or unfair.

The Government consider that these safeguards are sufficient and achieve the same effect as this amendment suggests. Further, we are concerned that giving the Mayor's Office for Policing and Crime responsibility for hearing all low-level complaints against the Metropolitan Police would place a significant burden on the office and distract it from its core duties of securing the maintenance of an efficient and effective force and holding the commissioner to account for the exercise of his or her functions.

As a final point, the amendment would mean, as the noble Lord, Lord Hunt, has already identified to my noble friend, that the police complaints regime would operate differently in London from the rest of England and Wales where low-level appeals would remain the responsibility of the chief constable.

With regard to the interpretation of “exceptional circumstances” raised by my noble friend Lord Shipley, rather than giving a detailed explanation off the top of my head, I will take advice and write to him about it. I hope that will be of help to the House. On this basis, I hope that my noble friend will not press her amendment.

Amendment 245 agreed.

Amendments 246 to 255

Moved by

246: Schedule 14, page 155, line 16, at end insert—

“(6) In consequence of the amendments made by sub-paragraphs (2) to (5)—

(a) in section 12(2) (complaints, matters and persons to which Part 2 applies), omit “, paragraph 2(4) of Schedule 3”;(b) in section 29(1) (interpretation of Part 2), omit paragraph (b) of the definition of “recordable conduct matter”.”

247: Schedule 14, page 156, line 13, leave out “paragraph 7(6)(a)” and insert “paragraphs 7(6)(a) and 16(1)(a)”

248: Schedule 14, page 156, line 14, at end insert—

“(3) In section 22 (power of the Commission to issue guidance), in subsection (5)(c), omit sub-paragraph (ii) (and the word “and” at the end of sub-paragraph (i)).”.”

249: Schedule 14, page 156, line 34, leave out sub-paragraph (6) and insert—

“(6) For sub-paragraph (2) substitute—

“(2) The appropriate authority shall notify the complainant —

(a) that the appropriate authority has decided to handle the complaint as permitted by sub-paragraph (1) (in a case where the appropriate authority is not required to apply for permission under sub-paragraph (1A) to so handle the complaint); or(b) about the making of the application under sub-paragraph (1A) (in a case where the appropriate authority makes such an application).”.”

250: Schedule 14, page 157, line 5, leave out “this paragraph” and insert “sub-paragraphs (2) to (4)”

251: Schedule 14, page 157, line 30, at end insert—

“(5) In paragraph 16(2)(a) of Schedule 3, for “10(4)(b)” substitute “10(4D)”.”

252: Schedule 14, page 157, line 34, leave out “this paragraph” and insert “sub-paragraphs (2) to (4)”

253: Schedule 14, page 158, line 21, at end insert—

“(5) In paragraph 16(2)(a) of Schedule 3, for “11(3)(b)” substitute “11(3E)”.”

254: Schedule 14, page 163, line 44, leave out sub-paragraph (9) and insert—

“(9) In sub-paragraph (9)—

(a) for “Commission” (in the first three places) substitute “relevant appeal body”;(b) for “considers appropriate, the Commission shall” substitute “considers appropriate—(a) sub-paragraph (9ZA) applies if the Commission is the relevant appeal body; or(b) sub-paragraph (9ZB) applies if the chief officer of police is the relevant appeal body.(9ZA) The Commission shall—”(9A) Before sub-paragraph (9A) insert—

“(9ZB) The chief officer of police shall take such action as the chief officer thinks appropriate in relation to the bringing of disciplinary proceedings in respect of the matters dealt with in the report.

(9ZC) If disciplinary proceedings are brought by virtue of sub-paragraph (9ZB), it shall be the duty of the appropriate authority to ensure that they are proceeded with to a proper conclusion.”.”

255: Schedule 14, page 164, line 8, leave out “the”

Amendments 246 to 255 agreed.

Amendment 256 not moved.

Schedule 15 : Police reform: transitional provision

Amendments 256A to 256G

Moved by

256A: Schedule 15, page 165, line 26, leave out from beginning to end of line 3 on page 166 and insert—

“Chief officers of policeCurrent chief officers to remain in post1 (1) At the relevant commencement time a person who, immediately before that time, is in post as the existing chief officer of the police force for a police area becomes the new chief officer of that police force.

(2) Where a person has, prior to the relevant commencement time, accepted an appointment as the existing chief officer of the police force for a police area which is to come into effect at a time (the “effective time“) which falls at or after the relevant commencement time, that appointment is to take effect at the effective time as an appointment as the new chief officer of that police force.

(3) Sub-paragraph (2) is without prejudice to any right of the person appointed not to take up the appointment.

Transfer of rights and liabilities2 At the relevant commencement time, all rights and liabilities which immediately before that time were rights and liabilities of the existing chief officer of the police force for a police area are to transfer to the new chief officer of that police force.

Relevant legislative provisions”

256B: Schedule 15, page 166, line 5, leave out “day” and insert “time”

256C: Schedule 15, page 166, line 6, after “apply” insert “after that time”

256D: Schedule 15, page 166, line 10, leave out “day” and insert “time”

256E: Schedule 15, page 166, line 11, after “apply” insert “after that time”

256F: Schedule 15, page 166, line 20, leave out from beginning to end of line 24

256G: Schedule 15, page 166, line 34, leave out from beginning to end of line 37 and insert—

“Interpretation3A In this Part “relevant commencement time” means—

(a) in relation to a police area listed in Schedule 1 to the Police Act 1996, the time when section 3 comes into force in relation to that area;(b) in relation to the metropolitan police district, the time when section 5 comes into force.Part 1AInitial transfer from police authoritiesTransfer of property, rights and liabilities3B (1) At the relevant commencement time, all property, rights and liabilities which immediately before that time were property, rights and liabilities of the existing police authority for a police area are to transfer to, and by virtue of this paragraph vest in, the new policing body for that police area.

(2) This paragraph does not apply to any rights or liabilities under a contract of employment (which are dealt with in paragraph 3C).

Transfer of staff3C (1) Subject to sub-paragraphs (5) and (6), this paragraph applies to any person who immediately before the relevant commencement time is a member of the staff of the existing police authority for a police area (the “existing employer”).

(2) A contract of employment between a person to whom this paragraph applies and the existing employer is to have effect from the relevant commencement time as if originally made between that person and the new policing body for the police area in relation to which the existing employer was established (the “new employer”).

(3) Sub-paragraph (2) does not break the continuity of a person’s employment and accordingly such a person’s period of employment with the existing employer counts as a period of employment with the new employer for the purposes of the Employment Rights Act 1996

(4) Without prejudice to subsection (2)—

(a) all the existing employer’s rights, powers, duties and liabilities under or in connection with a contract to which that sub-paragraph applies are by virtue of this paragraph transferred to the new employer at the relevant commencement time; and(b) anything done before that date by or in relation to the existing employer in respect of that contract or the employee shall be deemed from that date to have been done by or in relation to the new employer.(5) Sub-paragraphs (2) to (4) are without prejudice to any right of a member of staff to terminate the contract of employment if a substantial change is made to the person’s detriment in the person’s working conditions; but no such right arises by reason only of the change in employer effected by this paragraph.

(6) Where a person—

(a) has, prior to the relevant commencement time, entered into a contract of employment with an existing police authority which is to come into effect at or after that time; and(b) would, if the contract had come into effect before that date, have been a person to whom this paragraph applies,that person is to be treated as a person to whom this paragraph applies.(7) A person who would (but for this sub-paragraph) be treated as being dismissed by the operation of this paragraph (whether by an enactment or otherwise) is to be treated as not being so dismissed.

(8) Sub-paragraph (7) does not apply to a person who, by virtue of sub-paragraph (5), does not become an employee of a new policing body.

(9) This paragraph is subject to paragraph 3D.

Police civilians3D (1) The new policing body for a police area—

(a) is to have, for the purpose mentioned in sub-paragraph (2), relevant powers to arrange for the new chief officer of the police force for that area to discharge functions of that body; and(b) must exercise those powers for the purpose mentioned in sub-paragraph (2).(2) That purpose is securing that the police civilian members of staff of that new policing body are under the direction and control of that chief officer.

(3) Any arrangements made in compliance with section 15(2) of the Police Act 1996 between the existing police authority for a police area and the existing chief officer of the police force for that area which are in force immediately before the relevant time are to have effect at and after that time as if made under this paragraph between the new policing body for that area and the new chief officer of that police force.

(4) Sub-paragraph (2) applies to a person who—

(a) immediately before the relevant commencement time, is a police civilian member of the staff of an existing police authority, and(b) at that time becomes a member of the staff of the new policing body for a police area by virtue of paragraph 3C.(5) For as long as the person continues to be a member of the staff of that body, the person is to be—

(a) employed as a police civilian member of that staff, and(b) under the direction and control of the new chief officer of the police for that area.(6) Sub-paragraph (5) does not prevent the new policing body from making arrangements with the person for the person to cease to be a police civilian member of staff of that body (whether or not the person remains a member of the staff of that body).

(7) After the relevant commencement time, a new policing body may, for either of the purposes set out in sub-paragraph (8), make arrangements—

(a) with any member of the staff the body who is not a police civilian member of staff to become a police civilian member of that staff, or(b) with a person who is not a member of that body’s staff to become a police civilian member of that staff.(8) In relation to the new policing body for a police area those purposes are—

(a) replacing police civilian members of staff of the existing police authority for that area who did not become members of the staff of the new policing body in accordance with paragraph 3C;(b) replacing police civilian members of staff of the new policing body who have ceased to be police civilian members of staff of that body otherwise than by virtue of a transfer scheme under Part 2 of this Schedule; or(c) to supplement the police civilian members of staff of the new policing body.(9) Sub-paragraphs (1) to (5) are subject to—

(a) any provision included in a collaboration agreement under section 22A of the Police Act 1996, and(b) section 24(3A) of that Act (aid of one police force by another).(10) In this paragraph—

(a) “relevant powers” means powers corresponding to those conferred by sections 101 and 107 of the Local Government Act 1972 on police authorities established under section 3 of the Police Act 1996; (b) references to a police civilian member of staff of an existing police authority or a new policing body are references to a member of the staff of that authority or body who is employed solely to assist the police force maintained by that authority or body;(c) the chief officers’ powers of direction and control referred to include powers of engagement and dismissal.Seconded staff3E In the case of a person who, immediately before the relevant commencement time, is seconded to the existing police authority for a police area, the secondment is to have effect, after that time, as a secondment to the new policing body for that police area.

Interpretation3F In this Part “relevant commencement time” means—

(a) in relation to a police area listed in Schedule 1 to the Police Act 1996, the time when section 1 comes into force in relation to that area;(b) in relation to the metropolitan police district, the time when section 4 comes into force.Part 2Subsequent transfer by new policing bodyPower to direct new policing body to make transfer scheme4 (1) The Secretary of State may direct a new policing body—”

Amendments 256A to 256G agreed.

Amendment 257 not moved.

Amendment 257A

Moved by

257A: Schedule 15, page 167, line 3, leave out “existing police authority” and insert “new policing body”

Amendment 257A agreed.

Amendment 258 not moved.

Amendment 258A

Moved by

258A: Schedule 15, page 167, line 8, leave out “existing police authority” and insert “new policing body”

Amendment 258A agreed.

Amendment 259 not moved.

Amendment 259A

Moved by

259A: Schedule 15, page 167, line 17, leave out “existing police authority” and insert “new policing body”

Amendment 259A agreed.

Amendment 260 not moved.

Amendment 260A

Moved by

260A: Schedule 15, page 167, line 18, leave out “authority” and insert “body”

Amendment 260A agreed.

Amendment 261 not moved.

Amendment 261A

Moved by

261A: Schedule 15, page 167, line 21, leave out “authority” and insert “body”

Amendment 261A agreed.

Amendment 262 not moved.

Amendment 262A

Moved by

262A: Schedule 15, page 167, line 23, leave out “existing police authority” and insert “new policing body”

Amendment 262A agreed.

Amendment 263 not moved.

Amendments 263A and 263B

Moved by

263A: Schedule 15, page 167, line 23, at end insert—

“5A (1) The Secretary of State may direct a new policing body—

(a) to modify a transfer scheme made by that body, and(b) to submit such a scheme to the Secretary of State for approval.(2) Sub-paragraphs (2) to (5) of paragraph 4 apply to a direction under sub-paragraph (1) of this paragraph as they apply to a direction under sub-paragraph (1) of paragraph 4.

(3) In the application of paragraph 4(2) to (5) by virtue of sub-paragraph (2)—

(a) references to paragraph 4(1)(b) have effect as references to sub-paragraph (1)(b) of this paragraph;(b) references to the making of a scheme have effect as references to the modification of a scheme;(c) references to a scheme have effect as references to a scheme as modified.(4) The Secretary of State may modify a transfer scheme made by a new policing body if—

(a) the authority does not comply with a direction given to it under sub-paragraph (1), or(b) the Secretary of State decides not to approve the modified scheme submitted by the body.(5) A scheme modified by the Secretary of State under sub-paragraph (4) is to be treated as if modified (and made) by the new policing body.

(6) A scheme modified in accordance with this paragraph is to be deemed for all purposes to have come into force with those modifications.”

263B: Schedule 15, page 167, line 25, leave out from “the” to “to” in line 26 and insert “new policing body”

Amendments 263A and 263B agreed.

Amendment 264 not moved.

Amendment 264ZA

Moved by

264ZA: Schedule 15, page 167, line 27, leave out paragraph (a)

Amendment 264ZA agreed.

Amendment 264A not moved.

Amendments 264B and 264C

Moved by

264B: Schedule 15, page 167, line 30, leave out sub-paragraph (2)

264C: Schedule 15, page 167, line 43, leave out “existing police authority” and insert “new policing body”

Amendments 264B and 264C agreed.

Amendment 265 not moved.

Amendments 265A to 265E

Moved by

265A: Schedule 15, page 167, line 45, leave out paragraph (a)

265B: Schedule 15, page 168, line 1, leave out “a member of staff of”

265C: Schedule 15, page 168, line 4, leave out sub-paragraph (1)

265D: Schedule 15, page 168, line 16, leave out sub-paragraph (4)

265E: Schedule 15, page 168, line 41, leave out from first “the” to “and” in line 42 and insert “new policing body,”

Amendments 265A to 265E agreed.

Amendment 266 not moved.

Amendments 266A and 266B

Moved by

266A: Schedule 15, page 168, line 44, leave out sub-paragraph (i)

266B: Schedule 15, page 169, line 8, leave out from “the” to end of line 9 and insert “new policing body”

Amendments 266A and 266B agreed.

Amendment 267 not moved.

Amendments 267A to 267Q

Moved by

267A: Schedule 15, page 169, line 12, after “rights” insert “or interests”

267B: Schedule 15, page 169, line 13, after “scheme” insert “or retained by the transferor under the scheme or create rights or liabilities as between the transferor and transferee under the scheme”

267C: Schedule 15, page 169, line 16, leave out sub-paragraphs (3) and (4)

267D: Schedule 15, page 169, line 24, leave out paragraph 11

267E: Schedule 15, page 169, line 33, at end insert—

“(3) A transfer scheme may confer functions on any person (including the Secretary of State).”

267F: Schedule 15, page 170, line 5, leave out from “person” to end of line 14 and insert “who—

(a) ceases to be a member of the staff of an existing police authority, and(b) becomes a member of the staff of a new policing body.(4) Section 1 of the Local Government and Housing Act 1989 (politically restricted posts) does not apply to the person for as long as the person—

(a) continues to be a member of the staff of the new policing body, and(b) carries out duties which are the same, or substantially the same, as the duties the person carried out as a member of the staff of the existing police authority.”

267G: Schedule 15, page 170, line 18, at end insert—

“(1A) The replacement of an existing chief officer, the transfer or abolition of the functions of an existing chief officer, and the transfer of the rights and liabilities of an existing chief officer, do not affect anything done before the replacement, transfer or abolition.

(1B) The transfer of the property, rights and liabilities of a new policing body do not affect anything done before the transfer.”

267H: Schedule 15, page 170, line 20, leave out “an existing police authority” and insert “a person”

267J: Schedule 15, page 171, line 2, after first “to” insert “Part 1A of this Schedule and”

267K: Schedule 15, page 171, line 3, after “of” insert “Part 1A of this Schedule and”

267L: Schedule 15, page 171, line 4, leave out “of an existing police authority”

267M: Schedule 15, page 171, line 6, at end insert—

“Foreign property etc: perfection of vesting15A (1) Subsections (2) to (8) of section 414 of the Greater London Authority Act 1999 (foreign property, rights and liabilities: perfection of vesting) apply in any case where a transfer by or under this Act provides for the transfer of foreign property, rights or liabilities.

(2) In the application of those provisions by virtue of sub-paragraph (1)—

(a) references to a transfer or pension instrument have effect as references to the transfer by or under this Act; and(b) references to the transferor and the transferee are to be construed accordingly.Transfers: supplementary provision15B (1) All property, rights and liabilities to which a statutory transfer applies are to be transferred by that transfer, notwithstanding that they may be or include—

(a) property, rights and liabilities that would not otherwise be capable of being transferred, or(b) rights and liabilities under enactments.(2) The property, rights and liabilities which may be transferred by a transfer scheme include—

(a) property, rights and liabilities that would not otherwise be capable of being transferred, or(b) rights and liabilities under enactments.(3) No right of reverter, right of pre-emption, right of forfeiture, right of re-entry, right to compensation, option or similar right affecting any land or other property shall operate or become exercisable as a result of any transfer of land or other property by virtue of a statutory transfer or a transfer scheme (whether or not any consent required to the transfer has been obtained).

(4) No right to terminate or vary a contract or instrument shall operate or become exercisable, and no provision of a contract or relevant document, shall operate or become exercisable or be contravened, by reason of any transfer by virtue of a statutory transfer or a transfer scheme.

(5) Sub-paragraphs (2) to (4) above have effect in relation to—

(a) the grant or creation of an estate or interest in, or right over, any land or other property, or(b) the doing of any other thing in relation to land or other property,as they have effect in relation to a transfer of land or other property.(6) A transfer scheme may make provision for the apportionment or division of any property, rights or liabilities.

(7) Where a transfer scheme makes provision for the apportionment or division between two or more persons of any rights or liabilities under a contract, the contract shall have effect, as from the coming into force of the provision, as if it constituted two or more separate contracts separately enforceable by and against each of those persons respectively as respects the part of the rights or liabilities which falls to that person as a result of the apportionment or division.

(8) The provision that may be made by a transfer scheme includes provision for—

(a) any transfer of land or other property by virtue of the instrument,(b) the grant or creation of any estate or interest in, or right over, any land or other property by virtue of the instrument, or(c) the doing of any other thing in relation to land or other property by virtue of the instrument,to be on such terms, including financial terms, as the person making the scheme thinks fit.(9) The Secretary of State may by order confer on any body or person to whom property, rights or liabilities are transferred by a statutory transfer or transfer scheme any statutory functions which were previously exercisable in relation to that property, or those rights or liabilities, by the transferor.

(10) It shall be the duty—

(a) of existing police authorities, new policing bodies, existing chief officers, new chief officers and local authorities, and(b) of the trustees or managers, or administrators, of any pension scheme,to provide the Secretary of State with such information or assistance as the Secretary of State may reasonably require for the purposes of, or in connection with, the exercise of any powers exercisable by the Secretary of State in relation to a statutory transfer or a transfer scheme.(11) Where any person is entitled, in consequence of any transfer made by virtue of a statutory transfer or transfer scheme, to possession of a document relating in part to the title to, or to the management of, any land or other property in England and Wales—

(a) the instrument may contain provision for treating that person as having given another person an acknowledgment in writing of the right of that other person to the production of the document and to delivery of copies thereof; and(b) section 64 of the Law of Property Act 1925 (production and safe custody of documents) shall have effect accordingly, and on the basis that the acknowledgment did not contain any such expression of contrary intention as is mentioned in that section.(12) In this paragraph—

“relevant document” means—

(a) any enactment, other than an enactment contained in this Act;(b) any subordinate legislation made otherwise than under this Act; or(c) any deed or other instrument;“statutory transfer” means a transfer under Part 1 or 1A of this Schedule;

“transfer scheme” means a transfer scheme under Part 2.”

267N: Schedule 15, page 171, line 10, leave out “the abolition of the existing police authorities” and insert “Part 1 of this Act (including provision that supplements or varies the provision made by this Schedule).

(2) An order under this paragraph may, in particular—

(a) amend, or otherwise modify, any enactment;(b) make any provision that may be made by a transfer scheme under Part 2 of this Schedule (whether the provision in the order relates to that Part or Part 1A of this Schedule);(c) provide for the new policing body for a police area to make any payment which—(i) before a day specified in the order could have been made out of the police fund of the existing police authority for that area, but(ii) is not a liability which is transferred to the new policing body by virtue of Part 1A of this Schedule;(d) provide for a new chief officer or a local authority to which property, rights or liabilities of a new policing body are, or are to be, transferred by virtue of a transfer scheme under Part 1A of this Schedule to make any payment which—(i) before a day specified in the order could have been made out of the police fund of that new policing body, but(ii) is not a liability which could be transferred by virtue of such a transfer scheme;(e) make provision in relation to the accounts and audit of—(i) existing police authorities, and(ii) new policing bodies.(3) Provision of the kind referred to in sub-paragraph (2)(e) may, in particular—

(a) amend, or otherwise modify, any enactment relating to the accounts and audit of public bodies in its application to—(i) an existing police authority and the financial year in which that authority is abolished, or(ii) a new policing body and the financial year in which that body is established;(b) provide for the Secretary of State to give directions as to action to be taken in relation to the accounts and audit of—(i) an existing police authority in relation to the financial year in which that authority is abolished, or(ii) a new policing body in relation to the financial year in which that body is established;(c) provide for a person who, in acting in accordance with such a direction, fails to comply with a code of practice or other document relating to proper accounting practice to be taken not to have so failed to comply.”

267P: Schedule 15, page 171, line 14, leave out from beginning to end of line 20 and insert—

““existing chief officer” means—(a) in relation to a police area listed in Schedule 1 to the Police Act 1996, the chief constable of the police force for that area before the coming into force of section 3 of this Act in relation to that area;(b) in relation to the metropolitan police district, the Commissioner of Police of the Metropolis immediately before the coming into force of section 5;”

267Q: Schedule 15, page 171, line 30, at end insert—

““new chief officer” means— (a) in relation to a police area listed in Schedule 1 to the Police Act 1996, the chief constable established for that police area under section 3 of this Act;(b) in relation to the metropolitan police district, the Commissioner of Police of the Metropolis established under section 5;”

Amendments 267A to 267Q agreed.

Schedule 16 : Police reform: minor and consequential amendments

Amendments 268 and 269 not moved.

Amendment 270

Moved by

270: Schedule 16, page 176, line 33, leave out paragraph 30

Amendment 270 agreed.

Amendments 271 and 272 not moved.

Amendment 273

Moved by

273: Schedule 16, page 191, line 2, leave out paragraph 134

Amendment 273 agreed.

Amendments 274 to 290 not moved.

Amendments 291 to 293

Moved by

291: Schedule 16, page 200, line 7, after “Act),” insert “by a member of the civilian staff of a police force (within the meaning of that Part of that Act), by a member of the civilian staff of the metropolitan police force (within the meaning of that Part of that Act),”

292: Schedule 16, page 200, line 23, leave out “Mayor’s Office for Policing and Crime” and insert “metropolitan police force”

293: Schedule 16, page 200, line 34, after “body” insert “, except for a deputy police and crime commissioner”

Amendments 291 to 293 agreed.

Amendments 294 and 295 not moved.

Amendments 296 to 302

Moved by

296: Schedule 16, page 208, line 26, leave out from “for” to end of line 27 and insert ““person employed by a police authority” substitute “relevant employee”;”

297: Schedule 16, page 211, line 15, leave out sub-paragraphs (i) and (ii) and insert—

“(i) in paragraph (a)(i), for “a senior officer, the police authority” substitute “the chief officer or a person exercising or performing functions of the chief officer in accordance with section 42 of the Police Reform and Social Responsibility Act 2011, the local policing body”; (ii) in paragraph (a)(ii), for “a senior officer” substitute “the chief officer or a person so exercising or performing functions of the chief officer”;(iii) in paragraph (b)(i), for “a senior officer, the police authority” substitute “the chief officer or a person exercising or performing functions of the chief officer in accordance with section 42 of the Police Reform and Social Responsibility Act 2011, the local policing body”;(iv) in paragraph (b)(ii), for “a senior officer” substitute “the chief officer or a person so exercising or performing functions of the chief officer”;”

298: Schedule 16, page 213, line 39, leave out from “sub-paragraph” to end of line 41 and insert “(6)(a)—

(i) for “police authority” substitute “local policing body”;(ii) for “the authority” substitute “the body”;(c) in sub-paragraph (6)(c), for “police authority” substitute “local policing body”;(d) in sub-paragraph (6), in the words after sub-paragraph (c), for “the authority” substitute “the body”.”

299: Schedule 16, page 214, line 3, leave out ““that authority” substitute “that” and insert ““the authority” substitute “the”

300: Schedule 16, page 214, line 10, leave out ““the authority” substitute “the” and insert ““that authority” substitute “that”

301: Schedule 16, page 214, line 16, leave out ““the authority” substitute “the” and insert ““that authority” substitute “that”

302: Schedule 16, page 224, line 24, leave out from “Part 1,” to “, substitute” in line 25 and insert “under the heading “Police”, for “The Metropolitan” to “section 3 of that Act”

Amendments 296 to 302 agreed.

Clause 104 : Interpretation of Part 1

Amendment 303

Moved by

303: Clause 104, page 65, line 28, at end insert—

“and to the person (if any) appointed as the deputy police and crime commissioner under section 19.”

Amendment 303 agreed.

Clause 105 : Licensing authorities as responsible authorities

Amendment 304 not moved.

Clause 111 : Reducing the burden: premises licences

Amendment 304A

Moved by

304A: Clause 111, leave out Clause 111

My Lords, what a marathon. I wish to move Amendment 304A and speak to Amendments 304B and 304C. I return without apology to the subject of “appropriate” versus “necessary”. The Bill reduces the evidence test for the attachment of licence conditions so that these are “appropriate” rather than “necessary”. These amendments would delete these provisions from the Bill and retain the “necessary” test. In Committee, the noble Viscount, Lord Astor, set out extremely well the need for these amendments and the significance of the change from “necessary” to “appropriate”. I am sorry that he is unable to be with us today.

Review proceedings are quasi-judicial and designed to deal with infringements of the licensing regime, and have a wide range of penalties that are available to be deployed against the premises in question, from the imposition of new conditions restricting the operation of the premises to the suspension or even withdrawal of a licence. Licensing authorities are already able to impose conditions that they and other responsible bodies need in order to promote the licensing objectives without difficulty. In Committee, my noble friend the Minister claimed that “necessary” places a significant evidential burden on licensing authorities.

There is no evidence to suggest that local authorities find the evidential burden too restrictive and plenty of evidence from across the country to suggest that it is not a barrier to imposing tough trading conditions. For those that have experienced difficulties with a lack of representations being made by responsible authorities about problem premises, the Bill makes local authorities responsible authorities. This means that they will be able to tackle problem premises in their own right, not just rely on evidence supplied by other responsible authorities. The licensed trade asserts that the current “necessary” test has worked well and has ensured that conditions attached to licences are fair and address specific concerns, as opposed to being unfair and disproportionate. Where is the evidence to the contrary?

I understand from the Home Office that the plain English meaning of “appropriate” is “suitable”. That seems far too subjective. How about “convenient” on that basis? In these circumstances, the substitution of “necessary” for “appropriate” would allow decisions to be taken on the grounds of, for example, political expediency or subjective judgment. My noble friend the Minister may say I am wrong and that this will not be the case, but how equipped will licensing authorities be to adopt the correct interpretation of “appropriate”? It has been confirmed that the Local Government Association has concerns in this respect. The fact that “appropriate” is not clearly defined in law, unlike “necessary”, on which there is considerable case law, increases the likelihood of legal challenge and appeal.

“Necessary” is also a key component of the test of proportionality under the European Convention on Human Rights. I have given the Minister and her colleagues a copy of the analysis done by the licensed trade into the impact of the convention, and your Lordships will be glad to hear that I will not go into enormous detail at this stage. Article 1 of Protocol 1 of the ECHR provides for the “peaceful enjoyment” of possessions and states clearly that:

“No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law”.

The state can enforce such law,

“as it deems necessary to control the use of property”,

for the public interest.

The Explanatory Memorandum to the Bill makes clear the importance of the “necessary” test to ECHR compliance in respect of licensing. It acknowledges that an alcohol licence is a possession and is protected under the convention. The imposition of a restriction on a pre-existing permission or the removal of it without clear evidence of harm or irresponsible practice will in some cases amount to interference in the right to peaceful enjoyment of possessions. There is no analysis in the Explanatory Notes of what the reduction in this evidence burden would mean for compliance. The existing “necessary” test clearly helps to ensure a fair balance between public and rights-holder interests. How will the “appropriate” test do that?

It should be recognised that licence conditions impose additional costs and restrictions on business. The breach of a licence condition is a serious offence and carries a fine of £20,000. Surely such a penalty is too great in respect of conditions that are simply deemed “appropriate”, yet the only right of appeal is judicial review, which is a long and expensive process. As I said in Committee, many different types of conditions could be considered appropriate for most if not all licensed premises, but would certainly not be necessary for the vast majority of them, which are well managed, responsible businesses.

Can the Minister give examples of conditions that could not be imposed as “necessary” but that could be imposed as “appropriate” and are important or vital to the welfare of residents and local neighbourhoods? By contrast, I can give many examples of a string of conditions, many of which might not be considered necessary but perhaps appropriate, having already been imposed by licensing authorities. I have with me a number of different licences, one of which is for a pub in Westminster; it has 24 conditions. I have a licence for a school in Norfolk that is not for the sale of alcohol but that has 48 conditions, while the winner of this particular prize is a licence for a take-away in Lichfield that has 64 conditions attached. So there is no shortage of powers to impose conditions of many kinds on these premises.

However, on the basis that the Government will nevertheless proceed with the change of test, the Minister promised in Committee revised statutory guidance on the interpretation of “appropriate”. Will there be consultation on the contents of that guidance? If we are to change completely the basis on which conditions are assessed, that is absolutely crucial. There is still great uncertainty surrounding the changes sought by the Government, and I look forward to the Minister’s reply. I beg to move.

My Lords, I joined in the debate on these two terms at the previous stage, and on rereading Hansard I wonder now even more than I did at the time how assessing whether something is appropriate could be evidence-based. If I were still a councillor having to decide whether a condition is appropriate, I do not think I could avoid it being a subjective judgment. My noble friend has referred to this. I also asked at the last stage whether the assessment had to be reasonable. If it is “appropriate” rather than “necessary”, I assume that it would have to be, but the Minister very elegantly sidestepped that question. I do not blame her because I had not given her notice of it.

My final point refers to the statutory guidance, again just mentioned by my noble friend. We are not talking about a particular application, but licensing in general is a quasi-judicial activity. Perhaps this is not strictly quasi-judicial, but it comes quite close to it. I am concerned about the need to rely on guidance as distinct from primary legislation in the way this is approached.

My Lords, my noble friend Lord Clement-Jones and the Minister will recall that I spoke on this matter in Committee. I have no intention of running the risk of prolonging the debate by repeating what I said on that occasion, but nothing that has happened since the previous stage alters in any way the views I then expressed. The only thing I would say in a wholly friendly manner to my noble friend Lord Clement-Jones is that I used the human rights argument on a series of occasions during our debates on the Licensing Bill in 2003. I have to say, in a manner which I hope he will not find too discouraging, that on every single occasion the Front Bench of the then Government shut me up and told me that I did not actually have a case to argue.

My Lords, I am a bit intimidated by the thought that I might have to defend not only the point that we are talking about today but the whole panoply of human rights law, but perhaps we can duck that for now. As has been mentioned already, we had a good discussion on these points in Committee and we do not need to go over them. What is disappointing is that, as has been said, we do not seem to have moved on since then. We felt that the Minister’s responses to the original discussion were a bit lacking in the sort of detail required to be convincing, but it would have helped if we had been able to have sight of the guidance she promised. The guidance has not appeared, and therefore we are not much further forward. I hope that the Minister will be able to help us today, but if the noble Lord, Lord Clement-Jones, wishes to seek further support from this Bench, we would certainly be there behind him in the Lobbies.

My Lords, for some reason we seem to be in a “vote early and vote often” mode today. These amendments seek to remove three clauses from the Bill that lower the evidential threshold that applies to decision-making by licensing authorities. The clauses replace the requirement that licensing authorities should take actions that are “necessary” with the requirement that their actions are “appropriate”. I do not want to engage the House too long on this debate because we would end up rehearsing all that was said in Committee, but I should say that I do not think that the word “convenient” is a substitute for “appropriate”, although I suspect that he was being rather tongue-in-cheek when he said that.

Lowering the threshold will make it less onerous for licensing authorities to refuse or revoke licences if it is appropriate for the promotion of licensing objectives. The four licensing objectives will still apply. My noble friend Lady Hamwee suggested that I was not clear enough about this in Committee, so I reiterate that the four statutory licensing objectives still apply. However, lowering the threshold will make it less onerous for licensing authorities to refuse or revoke licences if it is appropriate for the promotion of the licensing objectives.

I am most grateful to my noble friend Lord Clement-Jones for advising me in advance of his concerns. On the “necessary” test and the importance of it being compliant with human rights law, the statutory test of what is appropriate as the basis on which licensing authorities must make decisions—alongside clear guidance to those authorities as to what is meant by this threshold, and the availability of statutory rights of appeal for licensing applicants and others affected by licensing decisions—ensures that the ECHR rights of those affected by licensing decisions are safeguarded. My noble friend prayed in aid his experience of previous legislation in this area. The requirement that an interference with ECHR rights must be “necessary” is a concept that has been developed in the context of human rights law and is not directly comparable with the meaning of “necessary” as it currently appears in the Licensing Act 2003.

My noble friend suggested that the only right of appeal against licensing decisions, including the imposition of conditions, is judicial review. That is not correct. Section 181 of the Licensing Act 2003 already provides for a statutory right of appeal to the magistrates’ court against most decisions by licensing authorities, including decisions on the granting or revocation of a licence and the conditions attached.

I must also inform the House that although it has been suggested that the Local Government Association is against these proposed changes, that is not the Government’s understanding. Indeed, in response to our consultation on rebalancing the Licensing Act, the LG Group said that it “broadly welcomes this proposal”.

My Lords, I am grateful to the noble Baroness. I think I am more sympathetic to the Government’s word “appropriate” than to the suggested use of the word “necessary”. In the context of the Bill, both these words are actually subjective in terms of what is being looked at. I assume that the Government prefers “appropriate” because I would have thought that it would be easier to argue either for or against in court than “necessary” would be, because that word is rather different. Is that not the thinking behind the Government’s proposal? I understand the arguments, but the central issue seems to be that of appeal. It would be easier for a court to reach a decision on what is “appropriate” than on what is “necessary”. However, please tell me if I am wrong.

My Lords, I am not in a position to try to second-guess how a court would determine that, because we are talking hypothetically and not about a specific example. I will come on to an example which might be helpful to the House. The lower evidence threshold would apply to most conditions, but to show that the imposition of conditions such as the use of plastic glassware or closure of windows after a late hour or the use of CCTV in or outside bars is “necessary” for the promotion of licensing objectives, including the prevention of nuisance or crime and disorder, is an onerous test. It would be less onerous for local authorities to show that such conditions were “appropriate” for the promotion of the licensing objectives. I hope that that is helpful to the House, because when we debated the equivalent amendment in Committee, I was unable to give an example such as that. I hope that that gives the House a feel for the thinking behind the Government’s change to the wording.

I can assure my noble friend that these decisions will still need to be evidence-based. We will include statutory guidance on the new tests, as I have suggested. I am not in a position to say that the guidance will be available at this stage of the Bill, but it will be made available. It will be consulted to ensure correct interpretation once the legislation is applied. On that basis, I ask my noble friend to withdraw the amendment.

My Lords, I thank my noble friend the Minister for her response. I thank also my noble friend Lady Hamwee and the noble Lord, Lord Stevenson, for their support. The Minister’s reply to the noble Lord, Lord Brooke of Sutton Mandeville, illustrated only too well how cunning government departments are in answering questions about the ECHR. The response was fascinating, being essentially that there is “necessary” and “necessary”, and that, for the purposes of the ECHR, “appropriate” equals “necessary”. That seemed to be what the Minister was saying. It is clearly highly dangerous to quote the ECHR in these circumstances, because you get an Alice in Wonderland type of response.

However, I was very grateful for the remainder of the Minister’s response. Her undertaking to consult on the statutory guidance will, I think, be welcomed by all concerned. Some of the examples that she gave might not be considered “necessary”, although, as I said in my opening contribution, if licensing authorities are able to impose 64 conditions on a takeaway, they do not lack powers. I am not going to push this. We have had a good debate over two stages of the Bill. I have tried to express the concerns of the trade on this matter. I hope that that dialogue will continue in the statutory consultation so that “appropriate” is confined —so that it is not equivalent to “suitable”, and certainly not equivalent to “convenient”. In the mean time, I beg leave to withdraw the amendment.

Amendment 304A withdrawn.

Amendments 304B to 305 not moved.

Clause 121 : Early morning alcohol restriction orders

Amendment 305ZA

Moved by

305ZA: Clause 121, page 82, line 1, leave out “may” and insert “shall”

My Lords, the amendment is designed to probe whether the Government have firm plans to introduce exemptions for the EMRO regime. I have a later, similar amendment, on which I shall not speak at great length, designed to probe whether there are plans to introduce exemptions from the late night levy and, if so, what those might be. As such, it represents at least a first attempt at defining some of those exemptions.

The Minister promised in Committee that there would be wide consultation on the exemptions to be introduced. It is important for the House to know what the Government are minded to introduce. For instance, will they introduce exemptions for private members' clubs which do not sell to members of the public but are membership-based? They are not, as I explained in Committee, generally positioned on the high street or close to centres of the night-time economy. Rather than basing the regime solely on premises type, can individual well run premises be exempted? Will exemptions recognise best practice and social responsibility initiatives such as those that we debated in Committee—for example Best Bar None, business improvement districts, Purple Flag, Pubwatch and so on?

I hope that the Minister can give us more detail and say that these exemptions will also be consulted on. I beg to move.

My Lords, my noble friend’s Amendment 305ZA would make it a requirement that regulations containing the cases or circumstances which may be exempt from an early morning alcohol restriction order include exempt cases that are defined by reference to particular kinds of premises or particular days. He was good enough to say that it was a probing amendment. I hope that I can give him the reassurance that he seeks when I say that the Government will ensure that exceptions to early morning restriction orders will define cases by reference to particular kinds of premises or particular days. Officials have already had useful discussions, including with representatives of the drinks industry and licensing authorities. As my noble friend acknowledged, we will carry out a full public consultation on the secondary legislation on EMROs later this summer. He asked specifically about private clubs. We will consider whether to include not-for-profit clubs and sports clubs as a separate class, and include that in consultation, before bringing forward the regulations. I therefore ask my noble friend to withdraw his amendment.

I thank my noble friend the Minister. What he has said will be very useful standing on the record for those who want certain exemptions. He has given a useful taste of the kind of exemptions that will be consulted on and indication that the whole EMRO regime will be consulted on later this summer. I beg leave to withdraw the amendment.

Amendment 305ZA withdrawn.

Clause 123 : Power for licensing authorities to set fees

Amendment 305ZB

Moved by

305ZB: Clause 123, page 85, line 17, at end insert “, and

( ) the costs of social services and trading standards when discharging their functions as responsible authorities under this Act”

My Lords, we discussed this matter in Committee and we want to probe further whether the Government have moved in their thinking. We welcome the Government’s move through Clause 123 to allow licensing authorities the ability to set fees locally on the basis of full cost recovery. Operating the licence system since 2005 has cost council tax payers over £100 million more than they anticipated due to the current, centrally set fee structure, which does not allow licensing authorities to set cost-neutral local charges. Given the economic climate, there is a real imperative to allow cost-neutral fees to be set as soon as possible. However, as we discussed last time, there is a drafting error within Clause 123, which would mean two-tier authorities not being able fully to recover all the costs associated with licensing. This was debated in Committee. When the Minister replied, he acknowledged that, as drafted, the Bill would exclude the relevant costs of trading standards and social services departments and that, even though they were discharging duties under the Licensing Act, they would not be able to recover them. He concluded by saying:

“I see sense in the intention of [the amendment] and, if I may, I shall reflect on it further”.—[Official Report, 16/6/11; col. 911.]

The purpose of the amendment is to press the Government for their response on this issue. I hope that they have some good news for us.

I support the amendment. I reacted rather to the suggestion that what is a marginal cost is therefore almost irrelevant in the case of the authorities affected. I, too, look forward to hearing the outcome of the reflection.

My Lords, as the noble Lord, Lord Stevenson, has explained, Amendment 305ZB seeks to ensure that the costs of social services and trading standards, in their role as “responsible authorities” only, can be covered by fees when they are located outside the licensing authority as well as within it. I certainly acknowledge that I said in Committee that I would reflect further on the proposal. I have done so very carefully and taken legal advice. Having examined it, I have found that the practical difficulties unfortunately outweigh the benefits.

The role of responsible authority involves, for example, considering applications and, in rare cases, applying for review. The costs arising will be very marginal—I am sorry that my noble friend Lady Hamwee objects to the use of that wording—in the context of overall fee income and the wider functions of these bodies. To set fees locally, each licensing authority will be required to calculate its own costs. We would not wish to require it to calculate the costs of another body without very good reason. The amendment would also imply a duty on county councils to report fractional costs and on the licensing authority to pass the funds to the county. The cost of this would then be passed on to fee payers even if the net gain to local government was very little or even nothing. The current fees regime makes no provision for district councils to pass funding to county councils in respect of these functions and we understand that no money has been transferred.

As I said, I have considered this matter carefully. In a nutshell, I am asking noble Lords to accept that the amendment would result in substantial extra bureaucracy and costs which would be passed on to licence holders for very little benefit. I ask the noble Lord to withdraw the amendment.

My Lords, can the Minister tell the House whether these practical difficulties have been discussed with the Local Government Association, which would undoubtedly have an input into this? If not, that is a pity.

My Lords, flicking rapidly through my papers, I cannot find the answer to my noble friend’s question. I shall write to her about it.

My Lords, I think that the noble Lord opposite and I would have heard if there had been a discussion. I put that rather gently but firmly.

There was, I think, a hint of menace in what the noble Baroness was saying. She was leaning forward slightly, and it was well judged to deliver that blow.

The LGA has indeed been concerned about this issue and has circulated documents widely which address the issue and make the main points that I repeated in the discussions earlier. It has also made it clear that it is very concerned about this matter. Although the Minister said that it was a marginal cost, every pound is important to local government. It is unfortunate that the Government have said that the cost of the bureaucracy of this might outweigh its benefits when those who are responsible for delivering it say that they want it to happen.

The Government are hiding under the question of bureaucracy. They promised a very important principle—that there would be a full cost recovery basis for licensing. They have gone so far down the line but they are not prepared to go the further stage. This is a disappointing result and we would like to test the opinion of the House.

Amendment 305A

Moved by

305A: After Clause 126, insert the following new Clause—

“Limits on temporary event notices

In section 107(4) of the Licensing Act 2003 (counter notice where permitted limits exceed) for “12” substitute “15”.”

My Lords, it gives me great pleasure to move Amendment 305A, in my name and that of other noble friends in many parts of the House. The purpose of the amendment is to extend the limits on temporary event notices under Section 107(4) of the Licensing Act 2003 from 12 to 15 events per annum.

I readily concede that, within a Bill as controversial and weighty as this police reform and social responsibility legislation, our amendment is both simple and harmless. Yet it carries with it the hopes and aspirations of many thousands of clubs throughout the UK—working men’s clubs, Conservative, Labour and Liberal clubs, British Legion, miners’ and Armed Forces’ clubs, all of which play a vitally important part in the lives of their communities in every part of this green and pleasant land. The proposal to extend that by three occasions a year gives these non-profit-making clubs the opportunity to play a greater part in contributing to fundraising and community events and supporting good causes, which are the essence of good community life.

The All-Party Group on Non-Profit-Making Members’ Clubs—of which I declare that I am currently the secretary and was chairman for many years when I was in the House of Commons—fully backs this modest extension of the temporary events for clubs, as also does the Minister for pubs and clubs, Mr Bob Neill. The Culture, Media and Sport Committee in reporting on the operation of the Licensing Act 2003 also recommended an increase to 15, as proposed in this amendment.

Non-profit-making clubs up and down the land have carried a heavy burden in the past few years. The negative effects on trading by the introduction of the smoking ban, the greater expansion of cheap alcohol in supermarkets and the perpetual increases in the cost of beer and beer duties, together with the disastrous effects of the bankers-induced recession, have all conspired to place many clubs in the greatest danger to their survival that they have ever experienced. Support for this amendment would demonstrate in a small but practical way our appreciation for the value and service that these institutions offer to their communities. I beg to move.

My Lords, my name is on this amendment. I fully support all the points raised by my noble friend Lord Bilston. If the Government feel unable to agree to this change today in the Bill, I hope that I could have some information and assurance that the matter will be raised through other channels. How soon could we revisit the issue if it cannot be done in this way?

My Lords, I will certainly be brief. I do not think anybody seriously believes that non-profit-making clubs are the cause of some of the problems sometimes associated with other clubs. They do much good work in the community and for charities, as has been said. They are not now always financially strong, as my noble friend Lord Bilston explained. We hope that the Government will be able to look sympathetically on the amendment.

My Lords, with even greater brevity, I just intervene to say that, having listened to the noble Lord, Lord Bilston, the noble Baroness, Lady Farrington, and the noble Lord on the opposition Front Bench, I want to appeal to the sympathy of my noble friends on the Front Bench. It sounds like a good worthy cause for people who have been having a bit of a struggle. I know a number of them in my own former constituency area, so I hope we shall get a sympathetic ear.

My Lords, I add my support. Like my noble friend Lord Newton, I had many such clubs in my former constituency. I thought that the noble Lord, Lord Bilston, moved the amendment very moderately and sensibly and made a completely unanswerable case. I hope that we have a very sympathetic response from my noble friend who will be replying to this brief debate and that, at the very least, he will be able to follow the injunction of the noble Baroness, Lady Farrington, and give us some encouragement, because it really is a truly worthy cause.

My Lords, Amendment 35A would increase the number of temporary event notices that may be given in relation to single premises in any one calendar year from 12 to 15. I am well aware of the noble Lord’s tireless work for these centres of our communities and thank him for that. This proposal is very much in line with the direction in which we are travelling. We are legislating to allow for greater flexibility and a more relaxed and liberal system, particularly for small, voluntary and community groups that make use of the temporary events notices to carry out licensable activities. I am very grateful to the noble Lord, Lord Bilston, and the noble Baroness, Lady Farrington, for not only agreeing with us in this general direction of travel but also taking the time to discuss this with me.

Through the Bill, we are already taking substantial steps to relax some of the requirements of TENs. For example, we propose to increase the total number of days in any calendar year on which a single premises can be used to carry on licensable activities under a temporary event notice from 15 to 21 days. We are also relaxing the provisions to allow licensing authorities to accept late temporary event notices. Furthermore, we are also using the Bill to increase the maximum period for a single event that may be authorised by one temporary event notice from 96 hours or four days to 168 hours, or seven days, to help festivals and other forms of entertainment that run over several days. I hope that noble Lords will agree that these are positive moves in the same direction as their amendment.

TENs are supposed to be a light-touch measure, outside the norm of the licensing regime for one-off, exceptional or occasional events. Just to give some balance, we have also considered carefully the views of many residents who responded to our consultation and who complained about noise nuisance from temporary events. We ask noble Lords to agree with us that allowing for an average of one such event a month, or 12 a year, achieves the right balance. However, the Government are committed to reducing the overall burden of regulation across the piece and have been consulting the public on this wider work, including alcohol licensing via its red tape challenge. So for example the Government have announced that they will shortly be carrying out a public consultation, led by the Department for Culture, Media and Sport, on the reform of regulated entertainment under the Licensing Act 2003. In the circumstances, I ask the noble Lord to accept that our direction of travel is very much in line with his own and to consider withdrawing his amendment.

I thank the Minister for that reply, which is very positive. I naturally hoped that he might allow the amendment today, but on the basis of what he has said and the very helpful discussions that we had yesterday, I am very happy to withdraw the amendment.

Amendment 305A withdrawn.

Clause 127 : Late night levy requirement

Amendment 305B

Moved by

305B: Clause 127, page 88, line 13, after “in” insert “the whole or part of”

I will speak also to Amendments 305C, 306ZA and 306ZB. Amendments 305B and 305C are designed to extend the ability of licensing authorities to determine the extent of the geographical spread of the late-night levy area so that it need not apply to the whole local authority area. As we discussed in Committee when, I believe, the Minister expressed some sympathy, this is one of the weaknesses of the provision for a late-night levy. It is a very blunt instrument to deal with the whole of a local authority area.

Clause 127(4) currently prohibits the licensing authority from applying the levy as it is currently stated in only parts of its area. Removing that provision and inserting the words of the amendment into subsection (2) would allow licensing authorities to designate a particular town or city centre within its control as being liable for the late-night levy rather than being totally broad brush in its approach.

A large number of trade organisations are particularly concerned about the untargeted nature of the proposed late-night levy. Community pubs in particular will be affected by a requirement which is really designed to address the cost of policing in towns and city centres. The power can be applied across a licensing authority district only as a whole, rather than to a specific area. As my noble friend Lady Hamwee said in Committee,

“local authority areas are not homogenous. If this new power is to be brought in it would be sensible for it to be focused and directed”.

That was a very succinct statement. The noble Lord, Lord Stevenson of Balmacara, agreed, saying:

“There is a problem about the scale and extent to which in any authority it would be sufficiently worth while for the licensing authority to introduce a local levy of this type … Is it really fair for a village shopkeeper to pay for reducing disorder that they could not possibly have caused?”.—[Official Report, 16/6/11; col. 940-1.]

The Government justify this measure on the basis that the easiest and most effective way in which to deal with the issue is to go for the whole council route, because it is viewed as less bureaucratic, and the levy must not only raise sufficient amounts but must be attractive to the licensing authority by being simple to introduce. I disagree. Unless amended in the way I suggest, the levy will be seen as manifestly unfair by those licensees who are not trading in city centres. I hope that the Government will reconsider.

As for the exemptions to the late-night levy, I dealt with this to some degree in the discussion on exemptions to early morning alcohol restriction orders. I seek very similar assurances from the Government so that well-run businesses can qualify for an exemption according to premises type and are not penalised by the provisions of the late-night levy. I recall that the noble Lord, Lord Stevenson of Balmacara, mentioned the example of a small jazz club that could be unduly penalised in these circumstances. I would not wish to see other venues, particularly those that host live music, being penalised in the same way. I hope that the Minister can give me similar assurances about the nature of the consultation, the types of exemption that will be available from the late-night levy and the premises that will be eligible for discounts under it.

Amendment 306ZB is really designed to probe the Government’s reasons for giving discretion to licensing authorities under Clause 127 as to whether to grant exemptions or discounts for the late-night levy, but not for the early morning alcohol restriction orders. Why are the Government making a distinction between the two? I beg to move.

My Lords, I intervene extremely briefly. On the strength of my own experience in the two cities, where there is of course an enormous amount of late-night activity and in other parts of the constituency there is absolutely nothing happening at all, I would like my noble friend, to whom I was not very helpful on the last occasion, to know that on this occasion I am sympathetic to what he is saying.

My Lords, I have Amendment 306ZZA in this group. On the issue of the division of the levy between the police and the local authority, at the previous stage I attempted to reverse the proportions, as provided by the Bill. This time I am suggesting a 50-50 split. I am sure that my noble friend will understand how completely reasonable that must be.

At that stage, my noble friend told me as reassurance that the levy had,

“been designed to raise money for the police, who bear the brunt of late night enforcement costs”.—[Official Report, 16/6/11; col. 943.]

I do not doubt the costs borne by the police, but to some extent they are already taken into account in the way that their funding operates. I am concerned that the costs to local authorities, particularly as regards environmental health and some of the organisation involved in dealing with late-night activity, are not acknowledged.

I have brought this back not only to change the proportion but because of a thought that occurred to me after the previous stage. If an authority is to receive little financial benefit from the levy, it may take a decision not to impose it at all. I wonder whether the Government have considered that risk, if I may put it that way.

I will be brief. The noble Lord, Lord Clement-Jones, referred to what my noble friend Lord Stevenson of Balmacara said in Committee in respect of the amendments that the noble Lord has moved, in particular the support that we on these Benches gave for a more targeted application of the late-night levy. That continues to be our position.

My Lords, there continues to be concern about the levy’s geographic coverage emanating from a belief that the levy should be a targeted tool. We are confident that we have provided tools such as early morning alcohol restriction orders to allow licensing authorities to target specific areas with alcohol problems. Businesses profit from supplying alcohol in a safe, late-night environment, so they should contribute to the very substantial police costs incurred. If we gave a licensing authority the power to target the levy, fewer businesses would contribute.

My noble friend Lord Clement-Jones’s Amendment 305B and my noble friend Lady Hamwee’s Amendment 305C risk the levy failing in its objective of raising a meaningful contribution towards policing. To retain the focus on policing, I must also resist my noble friend Lady Hamwee’s Amendment 306ZZA, which would reduce the proportion of the levy money after administrative expenses are deducted that goes to the police.

I hope that my noble friend Lord Clement-Jones will also agree not to press his Amendment 306ZA, with my firm reassurance that we will make regulations on exemptions and reductions. He asked specifically about rural pubs and also jazz clubs. We are currently considering the categories ahead of the consultation. Let me also reassure my noble friend that we wish to use the levy to promote participation in best practice schemes, and we will explore that further in consultation.

As regards Amendment 306ZB, we still wish to retain elements of local discretion, so we cannot accept an amendment that constrains this element of localism. Authorities should be trusted to select the right categories for their area. Many schemes are actively encouraged by licensing authorities. They are best placed to grant exemptions or reductions to those schemes that they feel are effective. On that basis, I ask that the amendment is not pressed.

I thank the Minister for that reply. I also thank the noble Lord, Lord Brooke of Sutton Mandeville, for his support. It is interesting that even in a borough such as Westminster there are cold and hot spots. By analogy, therefore, that is true of most boroughs in the country. I am also grateful to the noble Lord, Lord Rosser, for his support on this matter.

I understand the rationale behind the measure—that it is essentially fundraising designed to defray the costs to the police—but the exemptions will be extremely important in these circumstances. If there is no geographical exemption, there must be a category exemption in many cases so that country pubs can be exempted and not have to pay. If this measure is going to get acceptance, it manifestly must be fairly applied. This is essentially a local tax designed to pay for policing in relation to those establishments that are open late at night. I welcome the Minister’s comments about the consultation, but I hope that he and his colleagues will be in no doubt about the central importance of the consultation, even more so in the case of the late-night levy than in the case of early morning alcohol restriction orders.

Finally, the question that the Minister did not quite address was: why is the regime different for early morning alcohol restriction orders? It seems that while local authorities will not have so much discretion over them, they will have discretion about the late-night levy. I assume the answer to be that each is designed to achieve a particular balance in the circumstances. I take from the Minister’s nods that that is indeed the essence of the matter. I also take it that as the restriction orders are more discretionary, you need less discretion about the imposition of exemptions, and that as the late-night levy is for the local authority, those exemptions will not necessarily be applied so rigorously in those circumstances. However, there is considerable concern about the imposition of the late-night levy and I very much hope that there will be strong guidance to local authorities to exempt in appropriate circumstances—we shall return to the word “appropriate” at the end of Part 2—where the merits of the case demand it. I beg leave to withdraw the amendment.

Amendment 305B withdrawn.

Amendment 305C not moved.

Clause 133 : Application of net amount of levy payments

Amendments 306 and 306ZZA not moved.

Clause 137 : Permitted exemption and reduction categories

Amendments 306ZA and 306ZB not moved.

Consideration on Report adjourned until not before 2.27 pm.

Fuel: Electricity Supply Licences

Motion of Regret

Moved by

That this House regrets that the draft Modifications to the Standard Conditions of Electricity Supply Licences disappoint the legitimate expectations of businesses who placed reliance on Government announcements as to the availability and amount of subsidy, and favours the least efficient forms of solar electricity generation.

Relevant document: 34th Report from the Merits Committee

My Lords, I have no interest to declare in solar energy. Indeed, I am something of a sceptic and regard the subsidies we are discussing today as something of an unwelcome and unjustified imposition on the public. I am all in favour of the measures that the Government are taking to control the cost of these subsidies, but I regret—putting it gently—the way in which they have chosen to do that. I believe that they breach the trust that ought to exist between Governments and those who place faith in what they have said. The measure fails to take account of the opportunities for building new industries in this area, and it has been structured so as to be a much harsher imposition on consumers than it needs to be.

Before the election, we, the Conservative Party, were talking in terms of extending the limits of the feed-in tariff for solar to 10 megawatts—that is, if you are to believe Friends of the Earth. Personally, I do not often do so, but I suspect that the Government are more favourable towards them. However, on 1 February 2010, the Government said that adjustments would be made to the feed-in tariff,

“as evidence on actual deployment, costs and performance emerges … with the first review due to take place in 2013”,

subject to degression in the level of feed-in tariff from 31 March 2012. The meaning of that seems plain to me: anything that you get under way before 1 April 2012 will be at the stated tariff. Fine, that was said by a previous Government, but new Governments cannot just tear up what has been said before, which is what we appear to be doing.

The result of people relying on that government statement was that serious investors who were committed to supporting the development of alternative energy throughout the UK spent money on sites, on the design of kit, on planning, on organising grid connections and in some cases on building factories to make the kit. I do not have an exact figure but the closest I can get to the amount that was invested on this basis is in the order of £50 million. That has all been burnt to a crisp by the way that this Government have decided to change the feed-in tariff. The Government ought to reflect on the effect of that on their reputation. This is something that you expect to happen in the dodgier parts of the third world, not here. It makes the Government seem frivolous and unreliable.

I understand the underlying motivation but things could have been done in a different way. The tariff could have been lowered more generally. People running little schemes, operating at household level, must be pinching themselves at the level of feed-in tariff that they have been left with. I think that they find it hard to believe how profitable they are going to be over the next few years, which is why they are keeping so silent on the subject of the order.

If we had taken the general industry advice and lowered feed-in tariffs by 25 per cent to 30 per cent overall to achieve a general lowering of the market, we would have put investors in a position where, although they were not earning the returns that they had once expected from their investments, their money would none the less have been worth something and they would have gone ahead in one way or another with their schemes. Indeed, we could have offered some transitional arrangements, looked at the people who had invested a lot of money and said, “Right, you may not be able to take advantage of the scheme this year but we will let you bleed into the scheme over the next five to 10 years so that all you have lost is the time value of your money, not the absolute value”. However, we have done none of that. We have required them to write off everything and, in the case of many overseas investors, just throw up their hands and go off elsewhere, never to think of returning to the UK—at least, that is what they say.

We have also missed a trick in support for the solar industry. If noble Lords look at the current statistics, they might reasonably say, “What industry?”. Solar costs about 25p per kilowatt hour and the sun does not shine very much in this country, so it seems a basket case when looking at alternative technologies. DECC’s levelised cost estimates for solar say that, while in 2007 its estimate was that solar would cost 51p per kilowatt hour in 2015, in 2011 it is estimating that the cost in 2015 will be 23p. The cost of solar is falling extremely fast. Partly this is due to economies of scale as other countries, such as in the Far East and Germany, go in for large-scale solar development, and partly because it is an electronic technology. In common with many such technologies, given a decent market and the application of research and development, which is happening worldwide and indeed in the UK, its costs are coming down—predictably, to my mind. If the department is as wrong now as it was four years ago, the cost of solar electricity in 2015 will actually be 10p per kilowatt hour and at that point it will have achieved grid parity, or close to it.

Solar electricity is unlike a lot of other forms of electricity generation. It is local. It replaces electricity at a retail price rather than a wholesale price. There is no requirement to build extra grid for it. There will be no equivalents of the campaigns in east Wales and other places against the vast new lines of pylons marching across the countryside to bring us our wind power because we do not need them; in fact, solar saves on grid capacity. It is much more acceptable than wind in many ways, and that surely must have a value. There is generally no difficulty in getting planning permission for solar installations and none of the opposition that you get to wind power, and one can see why: it is a much less visually and aurally offensive technology. It produces daytime electricity and so is replacing the most inefficient forms of power generation, the peak generators that are turned on only in the daytime when we hit peaks. Its profile is generally complementary with wind; we tend to have sun when the wind is not blowing and vice versa. It irons out some of the peaks that we will have in electricity generation as a result of having a substantial amount of onshore and offshore wind.

The solar electricity industry has suffered because nowhere in government does anyone have a responsibility for looking after it. You can see this from the EMR White Paper that was published a couple of days ago. There seems to be very little understanding in that document of the benefits of local generation. It seems to be written entirely from the point of view of suppliers who think in terms of large centralised electricity generation and then distribution through a grid. The interests of solar energy do not appear to have been taken into account. The potential for solar being an economic form of electricity supply in its own right without subsidy by, say, 2020 does not seem to have received a rational assessment anywhere in government, although a lot of big companies like General Electric are being a good deal more optimistic than that. They are the proponents of the new solar technologies rather than the old one that we are used to.

There is a lot of development going on. If we look at all the prospects and sources for renewable energy, solar is the only one where we are seeing large and consistent cost reductions. It is the only one where we are looking at an end to subsidy rather than a continuous imposition on people’s electricity bills.

I get the impression that the Government have decided that our future is to be an installer of Chinese-made kit rather than to have a presence in this industry ourselves. One of the little things which convinces me of that is that they seem to be talking about a pot of money which will be available under the feed-in tariff scheme rather than continuous; in other words, at some point it will come to an end. This is fine for general builders who would be putting up these things one day and then doing something else the next, but if you are trying to build an industry, something that will add real value and jobs to the UK economy, having an episodic form of subsidy which will go through periods of unavailability is completely hopeless. All you can run on that basis is a business based on imports. We have this concentration on mini-installations—on the vanities of individual householders thinking that they are doing something for the climate by installing these vastly uneconomic things on their own roofs—rather than looking at how we can make a serious dent in our need for electricity generation by looking at things on the scale of factories or office buildings, all of which have been wiped out by the route that the Government have chosen to take.

I regret that the route that this Government have taken to achieve a laudable objective has so abused the trust that people have placed in the Government’s word. They have missed the opportunities to create a new industry and instead put an imposition on the consumer which is much higher than it needs to be to achieve the level of electricity generation that we would have from solar as a result of the subsidies. I do not think that there is any going back; Governments rarely back-track on this sort of thing. I am not urging the Government to spend more money on solar. However, they should sit down with the industry and make a proper assessment, first and most urgently, of how distributed generation should work under the EMR—they have got that wrong and have an opportunity to set it right. Secondly, they should make a proper assessment of their response to the real prospect that solar will achieve grid parity within the lifetime of this Government and the next; and how, under those circumstances, we are to have in this country our share of a great new industry rather than just being importers. I beg to move.

My Lords, one of the great fallacies of this debate about the changes that the Government intend to make to the feed-in tariff scheme is how it has been characterised as being between the Government, who say that they recognise that the scheme needed to be changed, and those who argued that no change was necessary whatever the financial implications. I lay that to rest at the very beginning of this debate. One of the reasons for my Motion today is that we consider the Government's projections to be flawed in that no one expects or is asking for the scheme to be left exactly as it is. The Solar Trade Association, Friends of the Earth, Low Carbon Group and others are all calling for cuts to be made in line with falling costs and a faster degression rate, so that the level of tariffs reduces faster over time.

It has not been fully understood that feed-in tariffs are designed as a pump-primer for the industry, to get it going. They would not add significant capacity in the early years but are really a building block to get a much faster-growing industry, as we have for example seen in Germany. For the same reasons, feed-in tariffs should not be seen as a permanent subsidy. The speed, the scale and the way in which the changes have been made is hugely damaging to investor confidence across the renewables sector, as the noble Lord, Lord Lucas, also outlined.

The purpose of the tariffs when they were brought in by the previous Labour Government was to encourage solar as part of the energy mix that is needed in this country to help achieve energy security, to help meet our renewables targets and to open up green energy generation to businesses, communities and householders. The consultation that the Government undertook on their proposed changes could have been a real opportunity for them to work with the industry to address its concerns. However, the consultation was only six weeks long, whereas the Government code of practice states that consultations should normally last 12 weeks or longer. Furthermore, 81 per cent of respondents opposed the Government’s plans and made alternative suggestions, but not a single change was made.

The consultation divided the market as being above or below 50 kilowatts, thus not only making the large-scale solar farms to which the Minister will no doubt refer unviable, but also community schemes and business and industry projects. The scheme was originally designed to incentivise projects up to 5 megawatts. The Secretary of State, Chris Huhne, has expressed his view that we do not leave our energy future to the exclusive preserve of the big six energy companies. Given the recent price hikes, I am sure that many of your Lordships would agree with that assessment. However, is the Minister aware that capping the scheme at 50 kilowatts is exactly what the energy companies lobbied for in the first place?

On the purpose of the Government’s changes, when the Government announced their consultation it was clear that this was a financial decision. The Government saw that there was increased interest in large-scale solar farms, particularly at the rate at which the tariff was set and with the significant fall of around 30 per cent in capital costs. That had not been anticipated by the department’s modelling, as undertaken prior to their introduction. Therefore, the Government consulted on proposals to reduce tariffs for solar developments of more than 50 kilowatts by 38 per cent to 42 per cent; for projects of more than 150 kilowatts by 50 per cent; and for projects of more than 250 kilowatts or any stand-alone installation of any size by nearly 70 per cent. That makes those larger developments and stand-alone developments unviable, which was clearly the Government’s intention. The Government’s argument is that these costs would have been too high if the industry had carried on growing at the same rate and, for the money involved, it would not have had enough capacity to make the investment cost-effective.

I understand that the Government want to avoid oversubsidising solar power. Capital costs have fallen so that is not an unreasonable objective. It is one that the industry fully understands. However, it would be helpful if the Minister could tell us what other options were considered to address the issue. Did the noble Lord consider any other tariff rates that would have reduced the costs but not choked off investment? Given that the costs are met not by government tax and spend but by the consumer—we are mindful of the need to keep prices down for the consumer—what estimate has the Minister made of the costs to an individual household over the next 10 or 20 years? I do not mean an estimate of the costs as though there were no changes at all. Most of us agree that some change was required and any analysis must take that into account. I see him frowning at me at this point. It is quite a tall order, so I am happy for him to write to me about this. However, those answers may go some way towards understanding the Government’s approach to this issue.

I have to tell the Minister that these cuts do not affect only solar farms, even by the Government’s definition. They go all the way down to projects such as installations on school roofs and community projects. The impact on community energy schemes must be addressed. The Government claim that they are supportive of community energy schemes. Is the Minister aware that the Government’s action, by setting the bar at 50 kilowatts, has also impacted on these schemes? For those who live in a development of flats, one where their roof is not appropriately placed, or one that is in a preservation area, the only option open to them is a community-scale solar scheme. These are much more cost-effective. I hope that this is an unintended—rather than intended—consequence, but the impact is the same.

For a typical UK small street or hamlet of, say, 60 houses, a community installation scheme would need to be of at least 150 kilowatts in scale, meaning that it would accrue support of 15p for each kilowatt hour under the proposed new tariffs. A community installation for a village of more than 90 houses would receive even less—only 8.5p per kilowatt hour—under the proposed new tariff. Solar installations of this scale do not access lowest-cost equipment. They do not benefit from economies of scale because fixed costs—development costs, connection costs, operating costs and administration costs associated with community schemes—are spread over a limited capacity. I shall read to your Lordships’ House from a letter about the impact that these proposals would have had on a development that is, fortunately, already in place. The South Yorkshire Housing Association installed a 54 kilowatt photovoltaic array at a scheme providing temporary accommodation for homeless families. The letter says:

“However, under the proposed changes to the Feed-In Tariffs none of that work would have been possible … This type of installation is not the kind of ‘Solar Farm’ the changes are intended to be targeting”.

There is also the issue of the impact on energy supply. Small-scale renewables covered by the feed-in tariff—that is, those under 5 megawatts, as defined in the 2008 Act, although the Minister and his colleagues argued at the time for that to be increased to 10 megawatts, as the noble Lord, Lord Lucas, indicated—have the potential to deliver one-third of our energy use. If the scheme had not been decimated, it could have generated roughly the same amount of electricity as a nuclear power plant by 2020. Now we plan to install less solar power this decade than Germany did last year. The impact on the industry has been massive. One issue is the impact on the growth of jobs. Before the feed-in tariffs, there were 3,000 jobs in the industry. By end of last year, there were 10,000 jobs, which was anticipated to increase to 20,000 by the end of this year. A fortnight ago, the Secretary of State, Chris Huhne, said to the corporate leaders group:

“The next time someone asks where the growth is coming from, you can tell them. Green energy”.

However, this review has culled one of the few fast-growing green energy industries, and potentially thousands of much needed jobs and tax revenue with it.

There is also—the noble Lord, Lord Lucas, made this point very clearly—the issue of investor confidence. The Government’s credibility on this issue has been severely damaged. As the Government’s energy White Paper highlighted this week, £200 billion of investment is needed in our energy system to make it fit for the 21st century. Will the Minister address the issue of such a dramatic change on such a tight timescale, with minimal consultation, having such a destructive impact on potential future investment? Ernst & Young has set out the effects, stating that the whole investor market has been ripped up by the feed-in tariff review. Ernst & Young goes on to say:

“Regulatory uncertainty will lead to an increased cost of finance over what would have been achievable under a stable FiT regime”.

In other words, in a mad rush to save money on this scheme we may have made every other policy designed to reach a low-carbon future a more expensive instrument. I am sorry that the noble Lord is smiling at me quite so intensely; there are many people who do not find this subject particularly amusing and are very concerned.

As regards the next steps and the lessons to be learnt from this, the full review of feed-in tariffs is an opportunity for the Government—I am trying to assist the noble Lord—to engage properly and fully with the industry as a partner and friend, not as an enemy. First, the Government need to show ambition. Instead of confining the solar industry to a cottage industry, there must be a vision of how local and decentralised energy can play a major role in creating a more open and competitive energy market and allowing these industries to grow. Both the comprehensive review of feed-in tariffs and the Government’s electricity market reform plans are opportunities to do this.

Secondly, there is an opportunity to look at examples from other countries and learn from these. For example, Germany has a degression mechanism which controls volume as well as returns. These mechanisms are set to reduce the tariffs once capacity thresholds are met. This would work in the UK only if we were significantly more ambitious with our PV programme. Such engagement with the industry and a wider knowledge of practice in other countries could have helped avoid the present crisis by allowing the Government to bring forward more measured changes that were in the long-term interest and would have been widely understood and supported.

Thirdly, as an interim measure there is an opportunity now to ensure that this industry is not brought to a halt. Will the Minister consider the very simple measure of taking advantage of the ROC budget being underspent at present by combining the two to assist the solar and renewables industries? This situation could be turned round and provide an opportunity for the Government to create jobs and transform towns. Communities across the country could generate their own green energy and discover the joy of their meters going backwards rather than constantly forwards.

My Lords, the only interest I declare is that I was a member of the campaign that persuaded the previous Government to adopt feed-in tariffs in the face of some reluctance in Whitehall. I think it was in November 2008 that my noble friend Lord Hunt of Kings Heath—a most enlightened Energy Minister—reacted positively to a Motion which had been tabled by no less a person than the noble Baroness, Lady Wilcox, then the Conservative spokesperson on DECC, to whose Motion was added no less a person’s name than my own.

The original amendment had no limit but led to the Government proposing the 5 megawatt limit, which dealt with the majority of schemes that we had in mind to benefit from that. The terrible thing is that that policy has worked. The decision, which was welcomed at the time by the parties which became the coalition, was also welcomed by and large by the industry. As the noble Lord, Lord Lucas, has said, it led to plans being brought forward, investment funds being found, schemes being established and many more schemes being proposed. However, the new Government decided that they would have a review just as the policy was getting off the ground. The review took a bit of time. They then got round to announcing the new rates. The initial rates were perhaps not entirely susceptible to rational justification but provoked the desired result. As noble Lords have said, investment has been stopped in its tracks by the 70 per cent cut in the feed-in tariff subsidy provided for schemes of between 50 kilowatts and 5 megawatts.

Other noble Lords will no doubt also have received representations from firms and organisations saying that this decision stopped well advanced plans in several parts of the country. Certainly, firms in Somerset, Cornwall, Yorkshire, the West Midlands and Scotland have approached me, and all say that plans which would otherwise have come forward have been stopped in their tracks. The whole point of this policy was to bring forward such investment. It was pump-priming in the sense that it drove down the price of solar energy. According to the Government’s own impact assessment, the price of solar energy came down by 30 per cent. In other words, as I say, the policy was working. That is rare enough in energy policy; to stop it after a few months because it is working seems to me bizarre in the extreme. The idea which is occasionally put about by the Government or other commentators that originally the policy was intended only to encourage domestic solar panels on housing, or small groups of housing, is absurd.

The reason why we wanted to move beyond 50 kilowatts was precisely because we were looking to semi-commercial or larger activities. For once, I cite myself, seconding the Motion of the noble Baroness, Lady Wilcox. We were talking about single-site operators; we were talking about farmers; we were talking about all-district heating schemes; we were talking about individual large buildings, schools, university campuses, community projects and small industrial estates. Those were exactly the sites on both the public and community side and the commercial side which we were attempting to encourage to adopt solar energy by extending the limit to 5 megawatts. The idea that it has been a distortion that the benefit has gone to farmers and industrial operators is quite wrong.

One reason we proposed that was that most such schemes would involve single-site operators who would not be that interested in the ROCs market, that ROCs were an inadequate incentive for them and that feed-in tariffs would be a much better way of mobilising that market. So it proved, as it has in other countries. Two or three days ago, I had an e-mail from one of my friends, who has no particular interest in the field, who was driving through Germany, remarking on the farms that he was visiting and passing, many of which ran on solar energy, and the solar panels on public buildings, flats and so forth. Germany has made a major investment in solar energy and, as a result, there are about 100,000 jobs in Germany in the solar and related installation industries. It was working elsewhere; it was beginning to work here; but the Government stopped it in its tracks.

I must address one other issue which was touched on by the noble Lord, Lord Lucas. Other noble Lords will have received a representation from Which?. I have often acted as consumer champion in this House, as has the noble Baroness, Lady Wilcox, who proposed the policy. We have to counter that argument. It is true that the cost eventually falls on the consumer, but that is true of every proposition to try to change the energy mix. The cost of ROCs eventually falls on the consumer. The cost of CERTs eventually falls on the consumer. The cost of various other schemes has all fallen on the consumer. That is an argument not for changing one bit of the green energy incentive plan but for looking at it in its totality.

I would have understood if the Government said: “We are looking at this in the light of trying to get a more rational system whereby, instead of different forms of subsidy employing dramatically different implied prices of carbon, we get something more consistent”. I would have understood if this had been part of a policy to ensure that the burden on the consumer was more fairly distributed than under the present system, which is almost a poll tax on energy consumers. That is not what is being said. The Government are not even saying that they are looking at the feed-in tariff consistently across the range of applications. Instead, we have hit a particularly promising and successful policy before it has really got off the ground.

The Minister’s colleague, Greg Barker, has spoken movingly and convincingly about his commitment to decentralised energy. As the noble Lord, Lord Lucas, said, this is the ultimate in decentralised energy in that it is very local, does not require a huge amount of connections and can operate without a huge burden on the grid. I do not understand why the Government have done this—or perhaps I do. Within the Minister’s department—which, generally speaking, I think is one of the better Whitehall departments—there was resistance even when the previous Government were trying to change the position. It took a lot of overturning. I was very grateful to my noble friend Lord Hunt of Kings Heath, who was able to face out that opposition. More importantly, it faced opposition from the Treasury.

I recognise that the Government are not likely to go into reverse again on a one-off, but I hope that in their assessment of the incentives for a decarbonising energy system they will seriously look at it realistically and provide for those industries where the cost can genuinely come down. I think that the noble Lord, Lord Lucas, was quite right that there is a lot more scope for reducing solar energy per unit. The Government should look at a rational system for subsidising, via either the tariff or government expenditure, the acceleration of the move away from fossil fuels and carbon usage, and instead come up with a system that has the effect of what this part of their incentivisation plan was about to do—to bring forward investment that otherwise would not have happened, speed up plans and, in the solar sector, engage in very rapid installation as it is probably one of the easier and quicker forms of investment in technology in greener energy. I hope that the noble Lord and his colleagues will be able to resist any recalcitrant elements in their own department and, more particularly, the Treasury when they come to look at this again, and I strongly urge them to look at it again.

My Lords, I rise briefly to register my strong support for the two Motions. I declare an interest as a director of a company that has already received planning permission to build a substantial solar farm in the south of England, but whose whole future has now been put in doubt because of the Government’s decision to reduce the feed-in tariff so drastically. I simply wish to say that I agree with everything that has been said so far today on this subject, and I am very keen to hear what my noble friend the Minister will have to say by way of, I hope, reassuring me, my noble friend Lord Lucas, and the House that he will get together with the industry and try to resolve this serious difficulty. It is basically a nascent industry that has been snuffed out at birth. Having said those few words, I look forward to the Minister’s response.

My Lords, I had not meant to intervene in this debate. In fact, I am breaking the habit of the past 25 years, since I was the Minister responsible for taking the Electricity Bill through Parliament. I also declare an interest as president of the Association of Electricity Producers.

I just want to enter two notes of caution about what has been said. Of course, renewables and solar are a good thing—nobody doubts that—but they are also expensive, as has been admitted by the noble Lord, Lord Whitty. They also require, certainly when talking about wind power, heavy extra capacity. Therefore, on capacity grounds and on price grounds above all, whatever we say about renewables—I hope that we will say positive things—we have to be realistic. One thing that worries me about the present situation is that we set targets that turn out to be unrealistic. Oil power and carbon-related fuels will be necessary. We will have to have either carbon-free coal or oil-fired power stations to a very great extent in the future. We had better recognise that, otherwise we will be another £200 billion behind in investment.

My Lords, as I have said on other occasions, I am pleased about the way in which DECC has managed to negotiate very positively with the Treasury over its budget, even in the areas of private taxation that are reflected in private energy Bills, and how the overall programme for renewables has started to move ahead. I also sympathise in many ways with the Government’s priority to make sure that as many people as possible are involved in the renewables industry so that households that want to fit solar PV to their houses, or SMEs solar PV to their business premises, can do that. Both those things are positive.

Having said that, the difficulties caused to the industry by this major change in policy over a short period of time have been very great. I understand and agree with my noble friend Lord Lucas on this. As many Members of the House will know, I come from Cornwall. I represent an electoral division there that as we speak is constructing a 5 megawatt facility to make sure that it can throw the switch before midnight on 31 July. I do not know whether any electricity will flow then: presumably it will, in order to come in before the tariff changes. In Cornwall, about half a dozen sites will hit the grid before the deadline arrives.

It is clear that a very large number of investors wanted to come into this field. Some were opportunists—which is not necessarily a bad thing, because we are trying to work with the market—but there was a basis to enable a number of new renewable energy companies that genuinely held the values of decarbonising our economy to start, work and gain ground in order to be part of that decentralised electricity-generating system that so many of us in the House want to see. Those business starts and the growth of micro-businesses into medium-sized businesses can no longer happen. The amount of investment, for example to secure planning permissions, was very great.

I accept that not all the schemes should have gone ahead. Planning permissions were extremely easy to obtain because people did not object to them as they do to a number of other renewable technologies. However, now the momentum has stopped in its tracks. I very much regret that. The particular practical difficulty is that even where too many of the larger schemes would have been very onerous, there were a number of community schemes, too, that have come to a halt or will not be fulfilled.

Two days ago, as well as receiving the electrical market review, we saw the UK Renewable Energy Roadmap, which I very much welcome. On the whole it is an excellent document. However, perhaps it is illustrative that chapter 3, “Actions”, names the technologies of onshore wind, offshore wind, marine energy, biomass electricity, biomass heat, ground source heat pumps and air source heat pumps—I am very pleased to see those there—and renewable energy in transport, which we sometimes forget about but which is of equal importance.

Solar PV is nowhere in that list. The document includes a case study of solar PV and states:

“The Government believes that solar PV could potentially have a role to play in larger-scale UK renewables deployment in the future”.

That is a very iffy assessment of solar PV. I am very aware, as we have seen today and during part of this week, that the UK is not the best country in the world for solar PV. However, there is no doubt that the technology is potentially useful. The costs are expected to come down very significantly in future. The initial FIT rate was too high and provided too great a return, but it has come down so much that it has acted as a veto on the industry. As a result, the green jobs that all of us want to see have been postponed or might not happen as they might have done.

The document goes on to say that the Government encourage solar PV on a large scale as part of the ROCs regime. Will the Minister say whether there is a way forward there for large-scale PV? The renewable obligations review is due in the next few weeks. The Government have cut out the higher FIT rates. Could they over a temporary period fix a higher ROC rate for solar PV so that we could again encourage investment in this industry? When the costs come down we can reduce the ROC rate, as we would do with any other technology.

Will the Minister tell us how many ROC schemes there are on solar PV at the moment? I do not know whether there are many. I would be interested to know what the scale of demand is at the minute. I think there is a good future for solar PV in this country. We want to encourage it for jobs and growth, and I would like it to be a larger part of the jigsaw of the renewable road map for the future.

My Lords, I welcome this debate. It is important that we discuss these issues and get clarity on them. I hope I am going to do that in response. I have received a very good letter from the chairman of the British Photovoltaic Association in conjunction with the director of the Combined Heat and Power Association, the chief executive of the Anaerobic Digestion and Biogas Association and the chief executive of the building council for sustainable energy. They say a number of things, including: “Those highly dependent on the previous tariff of photovoltaic levels are now few in number in comparison with the sizeable and growing industry for other parts of the feed-in tariff”. They also give a word of warning and, “urge people not to reopen the Government’s decision at this stage. It would cause lasting, and we believe irreparable, damage. This would apply not just to solar PV but also to the vibrant and growing activity of small and medium-sized wind, aerobic digestion and microchip”. Finally, they say: “We would urge you to oppose any attempts to overturn the Government’s decision implementation on 1 August”. I think that sets out the stall of the industry that we have consulted and discussed things with.

The noble Baroness said that it was a very short consultation. Of course it was a short consultation because the industry wants certainty. In government, we unfortunately have to make choices. We are in a situation of rising electricity and energy prices, and we have to make choices in order to prevent that. These are the questions we asked ourselves when getting to the point of making this decision. Do we consider that at a time of rising bills we should encourage the spending of £7 billion on solar PV? Does this represent value for money? Does it have a real impact on our demand for electricity, given that it produces under 0.1 per cent of our electricity supply? Even if everything worked as planned, by 2020 it would be only as much as 0.3 per cent of our energy supply. Like the noble Lord, Lord Teverson, who is so sound on all these subjects—even though I do not think he is in complete agreement with me, for a change, on this one—we asked ourselves whether we are best suited as a country, given that we need electricity in winter when we have narrow daylight hours, and whether this is the most effective way of creating electricity. Therefore, is this a core activity for the Government?

We also looked at some of the schemes that were being offered. I am sure this does not apply to my noble friend Lord Liverpool, but schemes were offering a 21.4 per cent return on investment guaranteed by government-backed FITs and were being sold to people as the greatest investment opportunity for a long time. There are many examples of that. The Government are concerned that people could be taken advantage of.

Similarly, did we think the support that we gave the schemes was fair? If you were putting up onshore wind you would get one ROC, if you were putting up offshore wind you would get two ROCs, and this feed-in tariff is the equivalent of over five ROCs. Is that fair and reasonable for the rest of the industry?

The noble Lord, Lord Lucas, criticised us for frivolous and unreliable decisions worthy of a third-world country. I emphasise that this is not retrospective. It does not apply to people who have installed this. I absolutely repudiate his suggestion that this is frivolous and unreliable. To suggest that we should push on with this regardless is frivolous and unreliable, which is why we have stopped it.

What was the purpose of this particular form of electricity generation? It was for microgeneration, and microgeneration stays as is. The noble Lord, Lord Lucas, referred to covering this green and pleasant land with pylons. I totally agree that that would be an unattractive sight. However, this could have covered our green and pleasant land with solar panels, and that was the intention of a lot of the large solar providers. That is not an attractive proposition either. For domestic use, microgeneration is still useful and still creates an opportunity—and, for that matter, for anyone who wants to put up solar panels of the equivalent size of two tennis courts. There is still scope within the industry to carry on.

Those were the questions we asked ourselves when coming to this difficult decision, which I am absolutely convinced is the right one. This is nothing to do with the Treasury because it was the Treasury that passed the FITs in the first place. I am grateful to the noble Lord, Lord Whitty, who said that this would pump-prime the industry. The industry has been pump-primed to such an extent that it was probably getting overheated and it was time that we adjusted it. I hope that allays fears about why we are doing this.

I will deal with a few specific points before I wind up because we are running out of time. The noble Lord, Lord Lucas, referred to £50 million invested. In the overall scheme, we are saving £3 billion. That is a pretty modest figure to throw back at us. In the overall scheme of things, it is very small. I think the noble Baroness, Lady Smith of Basildon, is broadly supportive of this. She may be frowning now or smiling in a minute, I am not entirely sure. Either way, she is quite right to point out that communities are very relevant to this. We do not want to have a huge impact on communities, but it has to be balanced. Of course, communities can benefit from this by adjusting their aspirations accordingly.

That probably covers most of the ground covered by the debate, apart from the question asked by my noble friend Lord Teverson about whether a review of ROCs could be considered. Obviously I am not going to prejudge the review on ROCs that we are having, but of course at any time convenient to him I am prepared to listen to him and discuss this. We are only too aware of the impact on jobs, but in focusing on the jobs we want to create by putting our shoulder behind a number of the other industries, we feel that we can achieve our very substantial aspiration on jobs.

I am grateful to the noble Lord for his explanation. I can assure him that I do not agree with what he is doing, which is why I tabled the Motion today. I asked him another specific question about what options were being considered other than the two all or nothing questions that he has spoken about today. He has not answered that or my other questions. If he cannot answer today, I would be very grateful if he could write to me.

My Lords, I can answer that straightaway. Let me make it clear that we considered every option. A whole magnitude of options are put forward in reviews and consultations with industry, so of course we considered other options. However, the option that was actually put to us, largely by industry, suggested that the contribution of FITs was going to be even more expensive than it is now, and I am afraid that that was an option that we were not going to embark upon.

In closing, I see no real sense in the feed-in tariff at the level that it was. We have made the right and brave decision. It is a decision to support the consumer, which is obviously a priority for the noble Lord, Lord Whitty. It saves consumers from a vast increase in bills on a form of electricity generation that is not really going to impact on the importance and size of the problem ahead of us.

My Lords, I am grateful to my noble friend for his reply, except that he did not actually reply to the last questions I asked him. I would very much appreciate the opportunity to come and see him to ask them again. They are: how are we going to deal with distributed generation in the energy market review, and what plans are we making for the day when solar becomes a competitive source?

I can respond to that. I do not intend to respond to questions on the broad scope of electricity generation in this debate. If the noble Lord had attended the debate on our electricity market reform Statement, or if he wishes to read the paper that was published this week, he would see how we are attempting to deal with the supply and demand side. It is a very big subject that unfortunately I do not feel I can cover now.

I am not trying to tempt my noble friend to do so. I am merely trying to tempt him to spend some of his time subsequently discussing it with me. I agree that the EMR review is an interesting paper, and I have read it with great interest. However, I think it misses the point about solar.

I will argue with my noble friend about his use of the term “not retrospective”, and I suspect that my noble friend Lord Liverpool would too. If you put a lot of money into a project and the Government then produce a cut-off that makes it impossible to realise that project, while there may be a few lucky people in Cornwall, there are a lot of unlucky people elsewhere who are losing what for them is a lot of money, even if it is not for the Government. I beg leave to withdraw my Motion.

Motion withdrawn.

Fuel: Electricity Supply Licences

Motion of Regret

Tabled by

That this House regrets that the implementation of the draft Modifications to the Standard Conditions of Electricity Supply Licences will have a significant negative impact on the United Kingdom solar industry; further regrets that this could have a devastating impact on community energy schemes and has created uncertainty about the Government’s commitment to a green energy policy; and calls on the Government to reconsider their approach to the Feed-in Tariffs, to consider a gradual taper for any changes that it makes and to set out their future intentions for the solar industry and its role in contributing to the energy security of the United Kingdom through a mixed energy supply.

Relevant document: 34th Report from the Merits Committee.

Motion not moved.

Sitting suspended.

Police Reform and Social Responsibility Bill

Report (5th Day)(Continued)

Amendment 306ZC

Moved by

306ZC: After Clause 142, insert the following new Clause—

“Youth rehabilitation orders: alcohol monitoring requirement

(1) In Schedule 1 to the Criminal Justice and Immigration Act 2008, after paragraph 24 insert—

“24A Alcohol monitoring requirement

(1) In this Part “alcohol monitoring requirement”, in relation to a youth rehabilitation order, means a requirement that during a period specified in the order, the offender must—

(a) not consume alcohol,

(b) for the purpose of ascertaining whether there is alcohol in the offender’s body, provide samples of such description as may be determined, at such times or in such circumstances as may (subject to the provisions of the order) be determined by the responsible officer or by the person specified as the person to whom the samples are to be provided, and

(c) pay such amount in respect of the costs of taking and analysing the sample as may be specified in the order.

(2) A court may not impose an alcohol monitoring requirement unless—

(a) it is satisfied that—

(i) the offender has a propensity to misuse alcohol and expresses willingness to comply with the alcohol monitoring requirement, or

(ii) the misuse by the offender of alcohol caused or contributed to the offence in question, and

(b) the court has been notified by the Secretary of State that arrangements for implementing the requirement are available in the local justice area proposed to be specified in the order.

(3) A youth rehabilitation order imposing an alcohol monitoring requirement must provide that the results of any tests carried out on any samples provided by the offender to the monitoring officer in pursuance of the requirement are to be communicated to the responsible officer.

(4) Where the offender has not attained the age of 17, the order must provide for the samples to be provided in the presence of an appropriate adult.

(5) The Secretary of State may from time to time give guidance about the exercise of the function of making determinations as to the provision of samples pursuant to sub-paragraph (1)(b).

(6) The Secretary of State make rules for all or any of the following purposes—

(a) regulating the provision of samples pursuant to an alcohol monitoring requirement, including hours of attendance, interval between samples and the keeping of attendance records;

(b) regulating the provision and carrying on of a facility for the testing of samples;

(c) determining the maximum and minimum fee that may be specified under sub-paragraph (1)(c), and the frequency of such payments;

(d) regulating the functions of the monitoring officer; and

(e) making such supplemental, incidental, consequential and transitional provision as the Secretary of State considers necessary or expedient.

(7) In this paragraph—

“appropriate adult” means—

(a) the offender’s parent or guardian or, if the offender is in the care of a local authority or voluntary organisation, a person representing that authority or organisation;

(b) a social worker of the local authority; or

(c) if no person falling within paragraph (a) or (b) is available, any responsible person aged 18 or over who is not a police officer or a person employed by the police;

“monitoring officer” means any person, other than the responsible officer, specified in an alcohol monitoring requirement as the person to whom samples must be provided.”

(2) Schedule (Youth rehabilitation orders: alcohol monitoring requirement) makes further amendments to the Criminal Justice and Immigration Act 2008.””

My Lords, the amendments in this group have been improved since Committee to address all the Government’s criticisms. I thank the Minister for her interest in tackling the problems of alcohol in society and for discussing this scheme with me.

The amendments would allow magistrates an additional sentencing arm, that of an alcohol monitoring requirement, where offenders whose crime had been alcohol-fuelled could be referred to a compulsory alcohol sobriety scheme. Such schemes cannot happen, and therefore cannot be piloted and evaluated effectively, without primary legislation. This new sentencing power would allow courts to require an offender to abstain from alcohol and be regularly tested twice a day to demonstrate compliance as part of any sentence, with provision for how breaches should be dealt with. Alcohol recovery support would also be offered.

In Committee, the Government expressed concerns that I shall specifically address. First, they said that primary legislation was not necessary for there to be successful implementation of a pilot scheme in interested areas, such as parts of London. Primary legislation is essential. Without it, piloting such a scheme in a voluntary capacity would dilute its efficacy, not be cost effective and fail to tackle the recidivist alcohol offender. The main principles of the scheme—testing an offender regularly; making them pay for the tests, probably £1; and imposing sanctions if a test is breached—all require primary legislation.

Since Committee, the Government have proposed using a sobriety scheme in a penalty notice for disorder and conditional caution. Such a scheme might at first sight appear tougher than existing arrangements, could start immediately and might capture a few harmful drinkers into recovery, but it would not tackle the root problem. First, the offender would need to admit guilt, yet information from the police indicates that, where alcohol is involved, people often cannot remember their actions—that is the first spanner in the works.

Secondly, the attendance at the scheme would be voluntary. Can we honestly expect offenders to volunteer for a scheme which is an imposition on their lives? I doubt it. The only ones who will are those who already realise they need to put time and effort into attending support and recovery schemes such as Alcoholics Anonymous. Others will chance their arm in the courts, especially where harm to another has occurred. Thirdly, a voluntary scheme will not ease bureaucratic pressures on front-line policing—quite the reverse—because the police will have to decide.

Even if a voluntary scheme worked, even if it did not increase paperwork, even if it did not lengthen custody and court procedures, primary legislation would still be needed to extend it to a full-blown compulsory scheme. Why not put in place the framework now to allow such a scheme to be piloted and, if it is successful, developed?

The alcohol monitoring scheme in the amendments is modelled on the one developed in South Dakota. The UK is not the US, but we must be open to evidence of efficacy when it comes from outside our shores because its success does not depend on administrative systems but on the way human nature responds in punishment. Those who have established similar schemes in North America have found sobriety schemes are cost effective in the long term because of their success in lowering rates of reoffending.

The second area of concern highlighted in Committee was the possibility of habeas corpus in the language used in the original amendment. This has been rectified by the clause now stating that a police constable “may arrest” rather than “must arrest” in the event of a breach. If an offender fails a breathalyser test, they will have the option to repeat it after about 20 minutes. If they have a clear and valid reason for failure, such as a family bereavement the preceding day, then no action is likely to be taken but the breach would be recorded. However, normally the person would be referred back to the magistrate for a breach of their conditions. Nathalie Lieven QC has confirmed that the wording is now completely compatible with human rights law, in particular Articles 5 and 8, and, importantly, does not breach the principle of habeas corpus.

A third concern is that the Government felt that sobriety alone will not solve the issue of crime. I am not claiming that this is a magic bullet, but the evidence from six years’ experience of the schemes in the US is impressive. Since 2005, 99.6 per cent of tests collected have been negative—that is, alcohol free; 60 per cent of offenders comply fully; 30 per cent fail one test over their period of sentencing, which is, on average, four months; and the remaining 10 per cent fail two or more tests. After three years, reoffending was less than half the rate of those who were not alcohol monitored. That is a dramatic reduction in reoffending rates in the long term. If that success was replicated in a potential cancer treatment, we would be clamouring to implement it tomorrow.

Of course there are some very impressive and expensive schemes being developed to treat people with alcohol disorder, but the beauty of the sobriety scheme is that it could enhance the efficacy of such schemes and would also push those whose alcohol habit is not severe enough to be taken into a programme to address it. Treatment is effective only if the person has already recognised and taken ownership of their need to change, which is why compulsory treatment schemes have repeatedly failed. The clients are often in a pre-contemplative stage and not ready to address change.

It is also worth noting from the US that the combination of a sobriety scheme and an alcohol recovery plan had a higher success rate than treatment alone. As part of any scheme here, alcohol addiction support would be offered.

Another concern expressed in Committee was the possibility that testing for the scheme would take place in a prison environment. In the UK this would not happen. Testing points would be away from police stations and prisons. They would be set up in community buildings at transport hubs so that those on the scheme could be tested on their way to and from work more easily, enabling them to remain fully in work and living with their families. Testing would not tie up police time because lay people can be trained to do it. The testing stations do not need police officers present.

Apart from social disorder in public places, there is the horror of domestic violence and other alcohol-related crimes that take place behind close doors. Children are direct or indirect victims of that. Here, the scheme has achieved unparalleled results. In cases where children are affected, it could be a requirement for the offender to be on a 24/7 sobriety scheme and, where this is breached, the relative authority informed and the children’s safety immediately reviewed—in addition to the ongoing safeguarding surveillance in place. The scheme is good for victims. We must always remember that victims have human rights, too. A scheme that decreases the number of future victims must be good for the population as a whole.

I hope noble Lords can now see that the amendments address the concerns raised in Committee. If the results here were only half as good in the Dakotas—where alcohol-related road fatalities have been cut by half—we would still be preventing 80 road deaths a year, quite apart from all the other harms in domestic violence and fights on our streets. If the sobriety scheme is a success, there is also the possibility of rolling it out into other areas of concern such as drug misuse. That has been done successfully in Hawaii.

The public are exasperated at the rising toll of people harmed by those who are inebriated. We cannot be so arrogant as to ignore evidence from an evaluated scheme in the US or so partisan that minor politics get in the way of a real way forward. Can we really tolerate a million alcohol-related arrests a year? Drinking is out of control in this country. Doing nothing about alcohol-fuelled crimes is not an option. Successive Governments have rejected minimum pricing, seem persuaded to spend millions on treatment schemes and continue with a touchingly blind faith in the alcohol deal with industry. These amendments allow a firm handling of a problem that is out of control with clear, transparent rules for the offender. I beg to move.

My Lords, I strongly support this group of amendments. I congratulate the noble Baroness, Lady Finlay, and fully support her in what she said. We know how serious alcohol abuse is. We have known that for many years. At the end of the day, the difference between now and previous years is availability—in price and outlets. Clearly, it is difficult for any Government to increase price or reduce outlets dramatically. If we are not going to do that, we have to find another way of dealing with that. This amendment has real possibilities.

One thing that we ought to focus on here is the young person’s side. Indeed, the only uncertainty I have about the noble Baroness’s amendment is that with young people as opposed to older people there may be some desirability in giving the court an option on whether to make it subject to the agreement of the young person or compulsory. You might want to consider it being compulsory for young people if the parents are doing a fairly good job in parenting but struggle to manage the alcohol abuse of a young person who may have a predisposition to alcohol abuse because of the known genetic aspect of alcohol addiction. It may then be beneficial to have a back-up for the family if they are working with the young person. There may be a case for leaving it to the court as to whether it should be with the agreement of the young person or not.

That becomes much more difficult with adults, who tend to deny the problem much more emphatically. A young person will often admit that they got into trouble because of drinking. They will know that they have a problem. How severe that becomes depends on the support system that they have around them in terms of family and friends. We need not worry too much about the US example. I am sure it is very good but these things change culturally. The principles underlying it are what should apply.

We know that young people go out and drink heavily and consistently, over a period of time; that is the big difference from years ago, because they have the money to do it and the outlets are there and it becomes an ongoing problem. That is the time when we need to intervene and to take some action to address it. When I see very young people—and sometimes the same person on several occasions during the course of a week or two—you know that that person is already getting into deep difficulties, and you would like to intervene at that stage. Having an ability to put them on this sort of regime would be very good.

Other systems of conditional treatment have been tested and tried over many years; it is applied on mental aspects and on other issues relating to probation orders and other orders of the court. So it should not be beyond our ability to devise something specifically on alcohol abuse in cases like this. I also like very much the idea of doing it as a pilot scheme, because I would be the first to acknowledge that over the decades we have tried many things, not just with alcoholics but with other groups. The noble Baroness, Lady Finlay, mentioned the drug groups. We have tried many things that we thought were good ideas but which have not turned out to work as we thought they would. So I do not mind if we do this on a piloted basis, setting it up for a certain period of time.

The noble Baroness, Lady Finlay, is absolutely right—and we all know it in this House—that the alcohol abuse problem is profoundly serious. The number of cases of young people, and increasingly young women at a very young age, with cirrhosis of the liver, which is one of the defining symptoms of alcohol abuse, is deeply disturbing. It is this issue of availability. If we are not going to stand up and say that we will reduce the outlet or increase the price, frankly we have to find something else. I cannot think of anything that is more effective than what is being proposed to the House today.

I have sat through sittings on this police Bill with various degrees of enthusiasm, but I have very great enthusiasm for this proposal. The House would be missing a very great opportunity if it did not back this amendment and if the Government did not give it a really good run for its money. It is a good idea and it is very likely to work. There are no guarantees in this game—we have thought that too often before—but there is a very good chance that it would work. It would be a missed opportunity if we did not put it in the Bill and give it a run. We owe it particularly to the young people in this country.

In the comments that I have just made, I do not want to include the older group of people. Of the current young group, many of them will not be able to stop drinking on their own in years to come; they will not just stop. Having in a distant past dealt with many people with severe alcohol problems, I think it is in many respects harder to get a person off alcohol abuse than it is from quite a few of the drugs available. The damage that is done to society is enormous. So I ask the Government to be generous and adventurous on this and to grab it and run.

My Lords, I am very pleased to add my support to the excellent response that the noble Baroness, Lady Finlay, has prepared to the points that arose in Committee. I was one of those who met Professor Keith Humphreys, who is the senior adviser to President Obama on drug and alcohol abuse, who gave us a very helpful presentation indeed on what they are doing in the States. They have made very good progress and are intending to roll out the programme over a much wider front, given the success that they have encountered.

On the point of different cultures, the one thing that those involved in drink and drug issues know is that they are widespread throughout countries in varying degrees. Some places have bigger problems than others, but those who have problems with drink and drugs have a common problem of approach. It behoves us that wherever we see people trying a new approach, if it is producing success and the kind of results that we have heard that this scheme is running, we should spend some time looking to see whether it can be applied in our home country.

The Americans are very progressive in many areas. They try schemes; yes, some of them fail, but they abandon those and move on. The problem I find from my experience of dealing with these issues in this country is that when we get an idea, we believe that it is going to work and research it very well indeed. We then start pouring a lot of money into it, which continues to go in regardless of what is happening with the scheme, yet we continue defending the status quo when others come to suggest trying to look for something a little different.

I hope that the Government will be prepared to think again on this and to be bold. The major issues which were troubling them have, I think, been answered by the noble Baroness in her response but I would underline the two points that I made previously. First, this will not work on a voluntary basis. It will work successfully on that basis in one or two areas, but then you will find that the probation officers move on and the police change. A different culture then occurs in the area where it has been successful, so it is not maintained and it disappears. This is all that we find happens when it is run purely voluntarily on an experimental basis. It needs instead to be in the Bill and to be a compulsory operation—again, on an experimental basis.

Secondly, there is a concern expressed that we might end up with more people going into jail at the end of the day. Well, some of those people will be going to jail in any event and will be costing the taxpayer an awful lot of money in the first instance. If this alternative runs, there is a chance that there will be significantly less cost to the taxpayer and to the public at large. I suggest to the Minister one way around this difficulty. Civil servants hate sunset clauses because they are seen as a mark of failure. We should be much more flexible in our approach to sunset clauses. If they are right that this will end up with more people going to jail—I do not believe that it will, and I think that most people around the House who attended these briefings do not think that—why do the Government not consider making these amendments subject to a sunset clause and bring that back at Third Reading? We can then find a way forward which would answer that problem.

I am sorry to think that my Front Bench is not going to give its full support to this venture. The Labour Party ought to be backing this. From a number of standpoints, it is a very helpful development indeed and even though our Front Bench may not be exalting my colleagues to join us in the Division Lobbies, I personally appeal very strongly indeed to the people on the Labour Benches to vote for this amendment, if we are pushed to a vote. However, I hope that is avoided and that we get a more positive response from the Minister than we have had before.

My Lords, I must declare an interest before I begin in that 50 years ago, when on night duty as a new constable on the streets of London, I found that the following morning, for weeks on end, one was standing in court with a defendant who was accused of a crime that turned out to be alcohol-related. As the Committee would expect, I have conferred with my former colleagues and, yesterday morning, I spoke to the territorial operations department of the Metropolitan Police to seek its view on this amendment. It is supportive, with one caveat: that this must be a magistrate’s decision. Police must not be expected to say, “This individual committed the crime because they were drunk”. That must be a decision of the magistrate but, with that one caveat, I know that my former colleagues support this amendment as indeed do I.

My Lords, it is a privilege to follow the noble Lord, Lord Imbert, who is a great deal more experienced in these matters than I am. I am also at one remove in following my namesake, who spoke earlier, and who alluded to the presentation which a number of us received on Monday morning. Reference has been made to the experience of the American professor from Stanford who gave a presentation to us about his White House experience. I would add the footnote that he also holds an honorary degree from King’s College London, so he is not without form on this side of the Atlantic.

Brevity is at a premium, so I shall not cover the ground that other speakers have covered. When the Minister spoke on the previous occasion in Committee, she indicated familiarity with the South Dakota experiment. I have a brief addition to make to that. Monday’s presentation emphasised the experience of the three states where the problem was most severe—North Dakota, South Dakota and Montana—and did so graphically with a parallel line high on the page representing North Dakota. A line at the bottom of the page indicated the average experience in the individual states in the US. A diagonal line from the top of the left-hand corner to the bottom right showed the way that South Dakota’s experience had so dramatically improved.

At the end of the presentation, I asked the professor what had been happening in the states that lay between the average figure at the bottom of the page and the experience in the Dakotas and Montana. He said that a series of them which fell in their own performance between the top and bottom lines had already also adopted the South Dakota experience, North Dakota and Montana having already done so. The most notable example of a state that had, as a result of the South Dakota experience, advanced to putting it on the statute book was California.

My name is attached to the amendment and I thank the noble Baroness, Lady Finlay, for tabling it. I, too, attended Monday’s seminar. Also present was the Deputy Mayor of London, who was most appreciative of the scheme in that it would add to the ammunition which the authorities have in dealing with drunkenness.

I do not think that any other speaker has yet said that the issue is not about anti-drinking but is about anti-drunkenness. That is what sobriety means in this instance. I am still a councillor in the London Borough of Barnet where there is a lot of drunkenness on the streets. Not all of it is youth drunkenness, but it is drunkenness. We have tried various ways of stopping it. For instance, in the ward of Cricklewood that I represent, there is an anti-street-drinking order. That helps the police to enforce measures against drunkenness. We tried to apply the order in another area of my ward. The local authority has not supported that but the police have done so.

Although that is not specifically to do with the amendment in front of us, I mention it because I believe that those who enforce the law, whether magistrates or the police, must have as many armaments as possible to use with caution to ensure that our streets are safe and pleasant for society to live in. Too often, in the urban environment in which I live many people—not all of them young—are drunk on the streets and throw down their beer cans and bottles. Perhaps with this amendment we can help in some way. The noble Baroness, Lady Finlay, has done us a great service because whether or not the amendment is adopted, the Government have highlighted the fact that they are aware of the problem and have said that tests will be carried out. I thank the noble Baroness for bringing the matter before us.

My Lords, I add a few words in welcoming the amendment and urging the Government to respond positively to it. When I was a magistrate, I would have loved the possibility of this rehabilitation order to monitor ongoing alcohol consumption. As the noble Lord, Lord Palmer, suggested, it is one of a range of possibilities, but to have had this in one’s toolbox, as I gather the phrase is, would have been an enormous advantage.

As has been made clear, the amendment allows the magistrate this power only if alcohol caused or contributed to the offence—in answer to the noble Lord, Lord Imbert, I say that it is the magistrate who will take that decision—and if the offender has a propensity to misuse alcohol and is willing to comply with the requirement. As I argued in Committee, help with alcohol misuse should also be available but, as the noble Baroness, Lady Finlay, has said, we must consider the victims in assessing this possibility.

Most of what we now call domestic abuse, but when I was growing up we used to call wife-battering, is alcohol-fuelled. Violence on the streets, whether against property or against people, would undoubtedly be less without the addition of drunkenness. When are we going to do what the ordinary decent people who walk around our streets want us to do, which is to reduce alcohol-related disruption that affects their lives? That is the question that we have to answer.

As the previous speaker said, this is not anti-alcohol. Indeed, I should declare an interest that last night I was at the parliamentary beer dinner. I was very grateful that we had not reached this amendment by then. I am not against the consumption of alcohol but I am very much against the consumption of excessive amounts of it that then damages the people concerned or, in the light of this amendment, damages the life and well-being of others.

This is an enabling measure and does not require the courts to impose it. It is an opportunity for someone with the propensity to misuse alcohol in a way that damages others to have a period of sobriety—with help available, I hope—thus improving their own family lives as well as the well-being of others. I urge support for this.

My Lords, I live in the middle of one of our cities so I see the typical culture late on a Friday or Saturday night, or indeed on other nights, and the malign influence on it of the excessive consumption of alcohol. In recent years I have also sat on the streets of Paris or Rome at 10 pm and seen virtually no evidence of the abuse of alcohol. Those who think that this measure is a step too far need to reflect upon the experience of many of our city centres.

Sometimes it is necessary for the law to take a clear stance to change culture. Drinking and driving is a prime example of that, where the law has changed the culture of how people approach the consumption of alcohol and driving to a much more responsible one. This is quite apart from the health benefits, which will be important to the noble Baroness who has moved the amendment. There is a clear case for sending a strong signal, with this or something like it, that I hope will lead to a change of culture on our streets.

My Lords, I support the principal objectives of this measure. I will not repeat everything that I said in Committee, but when I first heard about the new proposal—I was also at the briefing on Monday that has been referred to—I found that the most powerful and compelling thing about it was its simplicity. It is clear in its aim and simple in its practice, and it encourages responsibility. I know that the Minister feels strongly about alcohol-related crime and takes the issue seriously, so I will want to listen carefully to her response today. The only thing that I want to highlight is that, as with any new measure put in place to tackle the issue of alcohol-related crime, the aspects of simplicity and responsibility in this proposal should be taken account of.

My Lords, this has been a useful and good discussion, repeating to some extent what we discussed in Committee but taking the debate a step further. The interesting thing about how the amendment now looks is that it has picked up a lot of the points that were made when we discussed this the first time around and tried to come up with a fresh look at some of the issues causing concern. To a greater or lesser extent, those aims have been achieved for the amendment. We should therefore consider it carefully.

At the heart of all this is a feeling that has not yet got through to some of those responsible for drafting and supporting the Bill, which is that alcohol is a drug and falls to be considered alongside cigarettes and hard drugs, and is not to be treated as a distinctive social phenomenon that we tolerate but are not concerned about unless it gets to a certain level. This came up time and again in our earlier debates, and is at the heart of what has been said today.

We know from the experience of trying to deal with this over the years and across many countries, and the number of reports that have come out, that you cannot treat any of the problems that alcohol causes in isolation from the three main strands. You have to deal with price; you have to deal with availability, in terms of the times that it is available to be purchased and used; and you have to have treatment. You cannot satisfactorily come up with a policy in this area unless you deal with all three. I think that the debates have again shown that we have still not got the answer on price, although there are some measures going forward that we might want to consider in due course.

Availability is indeed the subject of much of the discussion of some sections of the Bill. One hopes, although it is a bit of an experiment in some cases, that questions of availability will be dealt with. We may have to come back to that in the future.

Treatment is the big black hole into which we seem to pour all our aspirations, but from which we do not receive any real solutions. I said in Committee that, looking at how society deals with alcohol—and drugs more generally—we are moving far too quickly to a penal approach. We do not think about the impact that other possible solutions might have. We do not seem to be bringing forward alternatives for consideration at a time when there are worrying consumption trends and concerns about the fact that our young people seem to be drinking stronger and stronger drinks and causing problems. Although I understood what the noble Lord, Lord Palmer, was saying about drunkenness, it plays to my concern about the effects of the pursuit, use and abuse of alcohol, which come before that rather sympathetic view of drunkenness: “He’s just drunk; sorry about that”. Actually, it is much worse than that because that leads on to violence, as we have heard, both in the home and outside. It leads on to car crashes, traffic incidents and other problems—and, of course, the impact on children, which we have heard about.

The figures cited initially by the noble Baroness, Lady Finlay, and the noble Lord, Lord Brooke of Sutton Mandeville, were astonishing. If that is the effect of these schemes, admittedly in different cultures and places, we are bonkers if we do not try to take account of those and get some schemes going on this. On whether this scheme is the one that we should get behind, we have our doubts. We are not necessarily going to support this in the Lobbies if it goes to a vote because we are strongly of the view that the Government’s role in this matter is to remove the barriers to those who would wish to undertake pilots in this area, but not necessarily to support this particular scheme in this particular location. I will be interested to hear the Minister’s response to that. Governments should not stand in the way of those who have the interest, the capacity, the funding and the structure to introduce such a plan, and we wish them well with it, if they wish to go ahead with that. It seems completely wrong for the Government to be obstructing that at this time.

The consequence of our position—and this will probably be true of the government Front Bench—is that it seems to be only the Front Benches who are against the scheme. Speeches from all around the Chamber have been supportive of it. We were discussing that on the Front Bench before I stood; we seemed to think that we were probably in the wrong on this matter. I am afraid that I do not quite see the solution to it, but we will have a further discussion after I have sat down to see if I can persuade us to move gently towards any Lobby that might be opening up before us. We will certainly encourage people to move through that Lobby, even if we cannot do so ourselves. That may feel a little strange.

I am just trying to be honest. I shall also be honest about the Home Office. The problem here is less that this is a bad scheme, or that these schemes on the whole will not help, but that the idea that the Home Office should sponsor this is a bit silly. At heart this is a public health issue. The idea that the Home Office, which is the home of repression and locking people up—as I characterised it, although perhaps I overstated the case—should be responsible is a little like asking cats to be responsible for the welfare of the mice in their house. You cannot do it. I challenge the Minister, if the Home Office cannot get behind this, at least to remove the obstructions to this scheme getting off the ground. We would support that. The Home Office should give up responsibility for this area and pass it to the Department of Health.

The noble Lord poses many challenges to me. It might be appropriate for me to remind the House that responsibility for drug and alcohol abuse is within my ministerial brief at the Home Office. I am conscious that, in addressing this part of the Bill, I have already spoken—perhaps extensively—in Committee about my commitment. While I hear what the noble Lord says about the Department of Health, which is very important and takes the lead on alcohol, this is none the less a matter that will have to be addressed by joined-up government. As has been said by several people, not least the noble Baroness, Lady Finlay, who moved this amendment, we need to look at a holistic approach.

I put on record that the Ministers in both the Home Office and the Ministry of Justice would like to see a sobriety scheme. Since we met to discuss this scheme in Committee, there have been extensive discussions at ministerial and official level with Members of this House and the office of the deputy mayor. We have tried very hard to come to some accommodation to find a scheme that works. The principle of the scheme is not in dispute.

I shall outline to the House why I must reject the amendment of—I am tempted to say “my noble friend” because we have worked closely together on so many issues in the past—the noble Baroness, Lady Finlay. She made her case very strongly. She will know that I have great respect for her expertise in this area and her dedication to resolving these problems, particularly that of crime resulting from alcohol. However, I must reject these amendments.

Perhaps it will be helpful if I first reiterate what has been said by the noble Lord, Lord Stevenson of Balmacara, and others. Sobriety, in itself, will not always tackle alcohol-related offending. Many offenders will require clinical treatment and support to aid their recovery. I choose those words carefully. Mention has been made of treatment but it is the Government’s intention, on both drugs and alcohol—there is often a combination of the two—that we should move on from treatment into recovery, which has to be the end goal. A lot of valuable work has gone into treatment. Nobody in any way suggests that treatment programmes are not an essential part of the journey. However, the end of the journey must now focus, for both alcohol and drugs, on recovery; it must not just end with treatment. I have to say that it is rather unclear whether the purpose of the amendments before us is punitive or rehabilitative. I see nothing in the amendments that gives us a steer as to how we should view this.

Surely the purpose of provisions such as these is preventive and educational, particularly for young people. I accept what the Minister is saying but treatment is rather a different ball game.

I accept what the noble Lord says on that and do not dispute it at all. I support the principle of a sobriety scheme that seeks to tackle the problems caused by alcohol-related offending—particularly by binge drinking, which can blight communities—but I must still resist these amendments. Contrary to what the noble Baroness has said, an effective and robust sobriety scheme can be implemented using existing powers. Piloting this approach will provide us with firmer evidence on which to consider the need for legislative changes such as those proposed. I believe that a scheme could be started almost immediately.

My noble friend raised a number of concerns about piloting a sobriety scheme using conditional cautions. I wish to take a moment to focus on those. A scheme based on conditional cautions which is already on the statute book is favoured by the Government. Indeed, there is already interest in some parts of the country in looking at a scheme based on conditional cautions. However, I understand that London supports the scheme put forward by the noble Baroness.

It has been suggested that conditional cautions would not allow repeat offenders to be targeted by a sobriety scheme. While serious and persistent offenders should obviously be prosecuted at court, conditional cautions can be considered where an offender has committed previous offences. For example, a pattern of alcohol-related offending which has previously resulted in an offender receiving a penalty notice for disorder, a simple caution or perhaps even being prosecuted for a low-level offence may well be appropriate for a sobriety condition as part of a conditional caution.

It has also been suggested that offenders are unlikely to consent to a sobriety condition, but I believe that many will consent when they are informed by the police and the Crown Prosecution Service that the alternative is to be prosecuted for their conduct and to face the prospect of the prosecution applying for a drinking banning order on conviction. In these circumstances I believe that very many offenders will consider that accepting a sobriety condition—which can include requirements to undergo testing, and to pay for those tests, and which has clear consequences for non-compliance—is by far the preferable option. The noble Lord, Lord Soley, talked about the educational aspect and the right reverend Prelate talked about a change of culture. As I hope I have already reassured the House, I am adamant that we will pursue a change of culture. I will not go into too much detail because I have probably said this two or three times now, but I find it unacceptable that we have a culture in this country whereby it is acceptable for people to be seriously drunk in public places either as individuals or collectively. That is a significant change of culture that many of us have witnessed in our lifetime. Using the toolkit—that is the terminology—I am looking for every opportunity to change that culture. I do not underestimate how long that will take as the problem has taken decades to present itself as we see it now, but I hope to impact on it as much as possible.

I note the changes that the noble Baroness has made to her amendments since they were previously discussed. I also note that she and the Deputy Mayor of London have received legal advice on the amendments. There were question marks over the differing legal advice that the Home Office and the Deputy Mayor of London had received, particularly around matters to do with offenders’ convention rights. Although I agree that a sobriety scheme as the noble Baroness envisages it could be compatible with an offender’s convention rights, I believe that any primary legislation in this area would require careful consideration about when such a scheme would be proportionate and what safeguards might be needed to ensure that a court does not impose an alcohol monitoring requirement that risks breaching an individual’s human rights. This is a difficult area and one which the results of piloting conditional cautions would help to illuminate, as well as providing us with evidence of the scheme’s effectiveness.

I have touched on the issue of treatment leading to recovery, which is the Government’s aim. As has been mentioned, extremely serious criminal consequences can arise from alcohol abuse. It is important to distinguish between what we might euphemistically describe as binge drinking and those very serious crimes, in which I of course include domestic violence, where the way forward may well be a conviction. Whether it is associated with a conviction or not, it will require a most extensive package to address what are often the complex needs of the offender.

Two pilots are beginning in October and another four in April that will seek to address some of the more complex conditions for both drugs and alcohol. We have identified a way forward. I have already had interesting meetings with those running the two pilots beginning in October to see how they will address that. I find it extremely reassuring that the pilot schemes will address not just the addiction—whether it is drugs, alcohol or a combination of the two—but will look holistically at moving people from treatment to recovery, with all the complex needs that must be addressed. Sometimes it is not just a question of the dependency on alcohol—or alcoholism, as we might describe it, which is perhaps very different from binge drinkers who would not be clinically defined as alcoholic. When we start to look at serious crime associated with alcohol, we are dealing with alcoholism as we would understand it. That requires a lot more than just treatment. People need to be able to keep a roof over their head and to manage their relationships. It is often associated with anger management. If there is to be a movement from treatment to recovery, those aspects of the complex problem must be addressed in a structured way which will produce outcomes, not persistent reoffending.

I am not suggesting for one minute that we have got there yet. These are new schemes just being put in place and. If we were to pilot conditional cautioning, we may well learn lessons from that which result in a sobriety scheme of one kind or another being associated with this package. I am convinced that we will not address serious crime associated with alcohol or drug abuse unless we take a holistic look at what we do to move people from treatment to recovery. That requires many agencies working together with clear and practical plans to ensure that that holistic approach is taken.

Although I realise that that is not part of the noble Baroness's amendment, I wanted to reassure the House that I am sighted of the need for a package that addresses those complex cases. I have to say to her that there is very little detail in her amendments about how such cases will be dealt with in resources, cost and application to move people with those serious, complex conditions from treatment to recovery. I am not being deliberately negative about them, but if such a scheme is to work, we need to be clear in which direction we are taking it.

The Government are fully committed to finding new ways to tackle the offending caused by excess drinking and ensuring that it is dealt with effectively. Although I recognise that my noble friend and the Deputy Mayor of London seek to achieve that by the amendments before us today, I am keen that we test that proposition using existing powers available to the police and the CPS. That will provide us with a helpful means of testing and developing the principles of the approach and monitoring its impact, effectiveness and potential risks before proceeding with legislative changes. To do that, we would like to identify two or three suitable areas where there is a problem with high-volume, less serious alcohol offending. That is the type of offending that blights many town centres, as has been mentioned in the debate. That is a pragmatic way forward that allows us to put into practice the principles of the noble Baroness’s amendment and begin to test the effect of a sobriety scheme to tackle alcohol-related offending.

Are the Government contemplating putting into legislation the package that the noble Baroness is talking about, or will it be run on a voluntary basis? If it is the latter, why is it not attached to what is before us now?

The sobriety scheme based on conditional cautions has all the legislative power that it needs now. I do not need to put it into this statute; there is sufficient statute to run it now. If we were to move on later to something as described by the noble Baroness, we would, as I indicated, need to pick up the results of those pilots in future legislation.

If we take forward these pilots on the basis that I have outlined to the House, it will allow us to test locally some of the more challenging elements of such a scheme, including its funding, proportionality, enforcement and impact on reoffending. Although I recognise the problem that the amendments seek to tackle and am sympathetic to their objectives, I hope that the noble Baroness will understand why I am unable to support their adoption. However, I give my full support to testing the principles of the scheme that she proposes and hope to begin a number of pilot schemes before too long.

I thank the Minister for her reply. I must preface my remarks by thanking her for her sincere commitment to tackling the alcohol abuse that we see in this country. None of us who have spoken today are anti-alcohol per se; it is the problem of the outcomes of harms.

I am a clinician, and if I am to evaluate any scheme of any sort, I compare one scheme with another scheme. The conditional caution scheme that the Minister outlined will require police constables to decide whether it is an alcohol-fuelled offence and whether to offer the scheme. That is the problem and is why, as my noble friend Lord Imbert outlined, the matter should be left with the magistrates. The noble Baroness, Lady Hayter, a magistrate herself, pointed out that it does not change the status quo; it does not stop something happening but simply provides an additional arm. If there is to be a sincere comparison of the different schemes in different parts of the country, I say hooray to that—let us do proper pilots and monitor them properly.

A sunset clause was suggested in the debate but the Minister did not mention it in her reply. She has seen the amount of support around the House today for including a scheme so that it can be piloted. These are people who have committed an offence who will be sentenced anyway; they will be either incarcerated or fined, probably in addition to losing their driving licence and other things. However, if there is a massive fine it will harm the children in the family much more than the offender because of all the things they will not be able to do when the money suddenly goes out of the household. With the proposed scheme the offender will pay directly—financially and, more importantly, with their time and commitment. Recovery is crucial. As I pointed out, recovery would be attached to this. It would be offered to people and they would be supported. We have evidence—I know it is from the US, which is why I am suggesting that the scheme should be piloted here—that long-term recovery is improved when people are put through a court-directed alcohol-monitoring scheme.

Before making a final decision, will the Minister say whether, in the light of today’s debate, she will consider coming back at Third Reading with a sunset clause? That would allow us to do a proper scientific study in the areas which want to use the scheme as outlined in the amendments, which requires primary legislation, in addition to the schemes which use police cautions as the Minister outlined. I need to know her response on inserting a sunset clause before we really decide where we are going.

My Lords, I am sorry that I did not pick up on the point about the sunset clause. I am not able to offer the noble Baroness a change in my view on such a clause. The amendments need substantial work to make them workable from a technical and legal point of view.

My Lords, I am grateful to the Minister for clarifying that. I have taken extensive legal advice on this. I have files of costings advice in my office. Report stage is not the appropriate time to go through this. However, we have a chance to do something different and imaginative that might provide us with a fantastic tool to help people into long-term recovery. If we close the door on it now, so be it: but I want to keep the door open. Therefore, I feel obliged to test the opinion of the House.

Amendment 306ZD not moved.

Amendment 306A

Moved by

306A: After Clause 146, insert the following new Clause—

“Parliament Square committee

(1) Within six months of the passing of this Act, the Secretary of State shall by regulations establish a committee with responsibility for managing the controlled area of Parliament Square.

(2) The committee’s members shall be representatives of—

(a) all of the bodies which own or have responsibility for the controlled area of Parliament Square, and(b) the metropolitan police force.(3) The committee shall co-ordinate the work of its members in order to ensure that the controlled area of Parliament Square is kept clear of litter, detritus or other debris.

(4) The Committee shall report annually to both Houses of Parliament.”

My Lords, we now move to the Parliament Square elements of this Bill. In moving Amendment 306A and speaking to Amendment 306B, which are very much interlinked, I am trying to save the Government from themselves. We are all agreed on the need for something to be done about Parliament Square and I think we are agreed on what should be done. Parliament Square is an appropriate place to have protests but at the moment it is completely out of control as a result of the encampments. In recent weeks and months, the encampments have grown greatly. A few months ago there were only eight tents; now there are over 30. In fact, a lot of Parliament Square has been taken over not so much by protesters but by rough sleepers. Obviously something has to be done. I am not producing the final word on this but I am producing what I believe to be a much more sensible and workable solu